Spire Inc S-3ASR, filed May 9, 2022
Spire Inc (SR)
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As filed with the Securities and Exchange Commission on May 9, 2022
Registration No. 333- and 333- -01
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
under
THE SECURITIES ACT OF 1933
| SPIRE INC. | Missouri | 74-2976504 | ||
| SPIRE MISSOURI INC. | Missouri | 43-0368139 | ||
| (Exact name of registrant as specified in its charter) |
(State or other jurisdiction of incorporation or organization) |
(I.R.S. Employer Identification No.) |
| MARK C. DARRELL | ELLEN L. THEROFF | |
| Senior Vice President, Chief Legal and Compliance Officer |
Vice President, Chief Governance Officer and Corporate Secretary |
700 Market Street
St. Louis, MO 63101
314-342-0500
(Names, address, including zip code, and telephone number, including area code, of agents for service and address, including zip code, and telephone number of registrants’ principal executive offices)
Approximate date of commencement of proposed sale to the public: From time to time after this Registration Statement becomes effective.
If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. ☐
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box. ☒
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. ☒
If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. ☐
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
| Large accelerated filer |
Accelerated filer |
Non-accelerated filer |
Smaller reporting company |
Emerging growth company |
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| Spire Inc. |
☒ | ☐ | ☐ | ☐ | ☐ | |||||||||||||||
| Spire Missouri Inc. |
☐ | ☐ | ☒ | ☐ | ☐ | |||||||||||||||
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☐
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Explanatory Note
This registration statement contains the following two separate prospectuses:
| (1) | The first prospectus relates to offerings by Spire Inc. of its senior debt securities, junior subordinated debt securities, preferred stock, common stock, depositary shares, stock purchase contracts and stock purchase units; and |
| (2) | The second prospectus relates to offerings by Spire Missouri Inc. of its first mortgage bonds, unsecured debt securities, preferred stock and depositary shares. |
Each offering of securities made under this registration statement will be made pursuant to one of these prospectuses, with the specific terms of the securities offered thereby set forth in an accompanying prospectus supplement.
Additionally, this combined registration statement is separately filed by Spire Inc. and Spire Missouri Inc. The registration statement of each of the respective registrants consists of the prospectus of such registrant (including the documents incorporated therein by reference) and the information set forth in Part II of this registration statement that is applicable to such registrant. Each registrant makes no representation as to information relating to the other registrant.
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PROSPECTUS
SPIRE INC.
Senior Debt Securities
Junior Subordinated Debt Securities
Preferred Stock
Common Stock
Depositary Shares
Stock Purchase Contracts
Stock Purchase Units
We may offer for sale, from time to time, either separately or together in any combination, the securities described in this prospectus. Each time we sell securities pursuant to this prospectus, we will provide a supplement to this prospectus that contains specific information about the offering and the specific terms of the securities offered. You should read this prospectus and the applicable prospectus supplement carefully before you invest. This prospectus may not be used to sell securities unless accompanied by a prospectus supplement.
We may sell the offered securities through the solicitation of proposals of underwriters or dealers to purchase the offered securities, through underwriters or dealers on a negotiated basis, through agents or directly to a limited number of purchasers or to a single purchaser. The supplements to this prospectus will describe the terms of any particular plan of distribution, including any underwriting arrangements. Please see the “Plan of Distribution” section of this prospectus.
Investing in our securities involves risks that are described in the “Risk Factors” section of this prospectus as well as in our annual, quarterly, and current reports filed with the Securities and Exchange Commission under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), which are incorporated by reference into this prospectus.
Our common stock trades on the New York Stock Exchange under the symbol “SR.”
Our address is 700 Market Street, St. Louis, Missouri 63101 and our telephone number is 314-342-0500.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or passed upon the accuracy or adequacy of this prospectus. Any representation to the contrary is a criminal offense.
The date of this prospectus is May 9, 2022
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This prospectus, any prospectus supplement and any free writing prospectus we authorize contain and incorporate by reference information that you should consider when making your investment decision. We have not authorized anyone to provide you with any information other than information incorporated by reference or provided in this prospectus, any prospectus supplement and any free writing prospectus. We can take no responsibility for, and can provide no assurances as to the reliability of, any information that others may give you. We will not make an offer of these securities in any state where the offer is not permitted. You should not assume that the information in this prospectus, any prospectus supplement or the documents incorporated by reference herein or therein is accurate as of any date other than the date on the front of the applicable document. Our business, financial condition, result of operations, and prospects may have changed since those dates.
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| Description of Stock Purchase Contracts and Stock Purchase Units |
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The distribution of this prospectus may be restricted by law in certain jurisdictions. This prospectus does not constitute, and may not be used in connection with, an offer or solicitation by anyone in any jurisdiction in which the offer or solicitation is not authorized or in which the person making the offer or solicitation is not qualified to do so, or to any person to whom it is unlawful to make the offer or solicitation.
The terms “we,” “our,” “us” and “Spire” refer to Spire Inc. and its subsidiaries unless the context suggests otherwise. The term “you” refers to a prospective investor.
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This prospectus is part of a registration statement that we filed with the Securities and Exchange Commission (“SEC”) using a “shelf” registration process. Under this shelf registration process, we may offer and sell, from time to time, any combination of securities described in this prospectus in one or more offerings.
This prospectus provides you with a general description of the securities we may offer. The registration statement we filed with the SEC of which this prospectus is a part includes or incorporates by reference exhibits that provide more detail on descriptions of matters discussed in this prospectus. Each time we offer and sell securities, we will provide a prospectus supplement that will contain specific information about the terms of that offering, including the specific amounts, prices and terms of the securities offered. The prospectus supplement may also add, update or change information contained in this prospectus. If there is any inconsistency between the information in this prospectus and the prospectus supplement, you should rely on the information in the prospectus supplement. You should read this prospectus and the related exhibits filed with the SEC and any prospectus supplement together with additional information described under the heading “Where You Can Find More Information.”
Investing in our securities involves risks. Before making an investment decision, you should read and carefully consider the risk factors described in our annual, quarterly and current reports filed with the SEC, which are incorporated by reference into this prospectus, as well as other information we include or incorporate by reference in this prospectus before making an investment decision. The prospectus supplement applicable to each type or series of securities we offer may contain a discussion of additional risks applicable to an investment in us and the particular types of securities we are offering under that prospectus supplement.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and current reports, and other information with the SEC. These SEC filings are available on the Internet at the SEC’s web site at “http://www.sec.gov” or on our own website at “http://www.spireenergy.com.” Information contained on our website does not constitute part of this prospectus.
The SEC allows us to “incorporate by reference” into this prospectus the information we file with the SEC, which means we can disclose important information by referring you to those documents. The information we incorporate by reference is an important part of this prospectus or any prospectus supplement relating to an offering of our securities and information that we file later with the SEC will automatically update and supersede this information. We incorporate by reference the documents listed below and any future filings made with the SEC under Sections 13(a), 13(c), 14 and 15 of the Exchange Act from the time we file the registration statement of which this prospectus is a part until the termination of all offerings under such registration statement. These documents contain important information about us and our finances. We are not, however, incorporating, in each case, any documents or information that we are deemed to furnish and not file in accordance with SEC rules.
| SEC Filings (File No.1-16681) |
Period/Date | |
| Annual Report on Form 10-K |
Year ended September 30, 2021 | |
| Quarterly Reports on Form 10-Q |
Quarters ended December 31, 2021 and March 31, 2022 | |
| Current Reports on Form 8-K |
November 12, 2021, November 19, 2021, December 6, 2021 and December 7, 2021 | |
| Current Report on Form 8-K/A |
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You may request a copy of these filings at no cost by writing or telephoning us at the following address:
Spire Inc.
Attn: Investor Relations
700 Market Street, 6th Floor
St. Louis, Missouri 63101
(314) 342-0878
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Certain matters discussed in this prospectus and the information incorporated by reference herein, excluding historical information, include forward-looking statements. Certain words, such as “may,” “anticipate,” “believe,” “estimate,” “expect,” “intend,” “plan,” “seek,” “target” and similar words and expressions identify forward-looking statements that involve uncertainties and risks. Future developments may not be in accordance with our current expectations or beliefs and the effect of future developments may not be those anticipated. Among the factors that may cause results or outcomes to differ materially from those contemplated in any forward-looking statement are:
| • | Weather conditions and catastrophic events, particularly severe weather in U.S. natural gas producing areas; |
| • | Impacts related to the COVID-19 pandemic and uncertainties as to their continuing duration and severity; |
| • | Volatility in gas prices, particularly sudden and sustained changes in natural gas prices, including the related impact on margin deposits associated with the use of natural gas derivative instruments, and the impact on our competitive position in relation to suppliers of alternative heating sources, such as electricity; |
| • | Changes in gas supply and pipeline availability, including as a result of decisions by natural gas producers to reduce production or shut in producing natural gas wells and expiration or termination of existing supply and transportation arrangements that are not replaced with contracts with similar terms and pricing (including as a result of a failure of the Spire STL Pipeline to secure permanent authorization from the FERC), as well as other changes that impact supply for and access to the markets in which our subsidiaries transact business; |
| • | Acquisitions may not achieve their intended results; |
| • | Legislative, regulatory and judicial mandates and decisions, some of which may be retroactive, including those affecting: |
| • | allowed rates of return and recovery of prudent costs, |
| • | incentive regulation, |
| • | industry structure, |
| • | purchased gas adjustment provisions, |
| • | rate design structure and implementation, |
| • | capital structures established for rate-setting purposes, |
| • | regulatory assets, |
| • | non-regulated and affiliate transactions, |
| • | franchise renewals, |
| • | authorization to operate facilities, |
| • | environmental or safety matters, including the potential impact of legislative and regulatory actions related to climate change and pipeline safety and security, |
| • | taxes, |
| • | pension and other postretirement benefit liabilities and funding obligations, or |
| • | accounting standards; |
| • | The results of litigation; |
| • | The availability of and access to, in general, funds to meet our debt obligations prior to or when they become due and to fund our operations and necessary capital expenditures, either through (i) cash on hand, (ii) operating cash flow, or (iii) access to the capital markets; |
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| • | Retention of, ability to attract, ability to collect from, and conservation efforts of, customers; |
| • | Our ability to comply with all covenants in our indentures and credit facilities, any violations of which, if not cured in a timely manner, could trigger a default of our obligation; |
| • | Energy commodity market conditions; |
| • | Discovery of material weakness in internal controls; |
| • | The disruption, failure or malfunction of our operational and information technology systems, including due to cyberattacks; and |
| • | Employee workforce issues, including but not limited to labor disputes, the inability to attract and retain key talent, and future wage and employee benefit costs, including costs resulting from changes in discount rates and returns on benefit plan assets. |
You are urged to consider the risks, uncertainties and other factors that could affect our business as described in this prospectus and the information incorporated by reference herein. All forward-looking statements made or incorporated by reference in this prospectus rely upon the safe harbor protections provided under the Private Securities Litigation Reform Act of 1995. We do not, by including this statement, assume any obligation to review or revise any particular forward-looking statement in light of future events.
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Spire, with its principal office in St. Louis, Missouri, is a public utility holding company whose primary business is the safe and reliable delivery of natural gas service to more than 1.7 million residential, commercial and industrial customers across Missouri, Alabama and Mississippi. We have two key business segments: Gas Utility and Gas Marketing. The Gas Utility segment consists of our natural gas utilities: Spire Missouri Inc. (serving eastern and western Missouri, including the St. Louis and Kansas City regions), Spire Alabama Inc. (serving central and northern Alabama, including Birmingham and Montgomery), Spire Gulf Inc. (serving southwestern Alabama, including Mobile) and Spire Mississippi Inc. (serving south-central Mississippi, including Hattiesburg). Our natural gas-related businesses include the following entities: Spire Marketing Inc. (“Marketing”), Spire STL Pipeline LLC (“Pipeline”) and Spire Storage West LLC (“Storage”). Marketing provides natural gas marketing services across the United States. Pipeline owns and operates a 65-mile FERC-regulated pipeline connecting the Rockies Express Pipeline in Scott County, Illinois, to delivery points in St. Louis County, Missouri, including Spire Missouri Inc.’s storage facility. Storage provides physical natural gas storage services and is strategically located near the Opal hub and interconnects with five interstate pipelines serving a wide range of natural gas markets throughout the Rockies and western United States.
Our principal offices are located at 700 Market Street, St. Louis, Missouri, 63101 and our telephone number is 314-342-0500.
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Unless we state otherwise in any applicable prospectus supplement, we intend to use the net proceeds from any sale of the offered securities for general corporate purposes, including for working capital, repaying indebtedness, and funding capital projects.
We may set forth additional information on the use of net proceeds from a particular offering of securities in the prospectus supplement relating to that offering.
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DESCRIPTION OF DEBT SECURITIES
General
The description below contains summaries of selected provisions of the indentures, including supplemental indentures, under which the unsecured debt securities will be issued. These summaries are not complete. The indentures and the form of the supplemental indentures applicable to the debt securities are exhibits to the registration statement of which this prospectus is a part. You should read them for provisions that may be important to you.
We are not required to issue future issues of indebtedness under the indentures described in this prospectus. We are free to use other indentures or documentation, containing provisions different from those described in this prospectus, in connection with future issues of other indebtedness not under the registration statement of which this prospectus is a part.
The debt securities will be represented either by global senior debt securities registered in the name of a securities depositary, or by securities in certificated form issued to the registered owners, as set forth in the applicable prospectus supplement.
Unless otherwise provided, we may reopen a series without the consent of the holders of the debt securities of that series for issuance of additional debt securities of that series. Unless otherwise described in the applicable prospectus supplement, neither indenture described above limits or will limit the aggregate amount of debt, including secured debt, we or our subsidiaries may incur.
The following briefly summarizes the material provisions of the indentures and the debt securities. You should read the more detailed provisions of the applicable indenture, including the defined terms, for provisions that may be important to you. The indentures have been filed as exhibits to the registration statement of which this prospectus is a part. Copies of the indentures may also be obtained from us or the applicable trustee.
The applicable prospectus supplement relating to any series of debt securities will describe the following terms, where applicable:
| • | the title of the debt securities; |
| • | whether the debt securities will be senior or subordinated debt; |
| • | the total principal amount of the debt securities; |
| • | the percentage of the principal amount at which the debt securities will be sold and, if applicable, the method of determining the price; |
| • | the maturity date or dates or the method of determining the maturity date or dates; |
| • | the interest rate or the method of computing the interest rate; |
| • | the date or dates from which any interest will accrue, or how such date or dates will be determined, and the interest payment date or dates and any related record dates; |
| • | the location where payments on the debt securities will be made; |
| • | the terms and conditions on which the debt securities may be redeemed at our option; |
| • | any of our obligations to redeem, purchase or repay the debt securities at the option of a holder upon the happening of any event and the terms and conditions of redemption, purchase or repayment; |
| • | any provisions for the discharge of our obligations relating to the debt securities by deposit of funds or United States government obligations; |
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| • | whether the debt securities are to trade in book-entry form and the terms and any conditions for exchanging the global security in whole or in part for paper certificates; |
| • | any material provisions of the applicable indenture described in this prospectus that do not apply to the debt securities; |
| • | any additional events of default; and |
| • | any other specific terms of the debt securities. |
Federal income tax consequences and other special considerations applicable to any debt securities issued by us at a discount may be described in the applicable prospectus supplement.
Book-Entry Securities. We may issue some or all of the debt securities as book-entry securities. Any such book-entry securities will be represented by one or more fully registered global certificates. We will register each global security with or on behalf of a securities depositary identified in the applicable prospectus supplement. Each global security will be deposited with the securities depositary or its nominee or a custodian for the securities depositary.
Registration, Transfer and Exchange. Unless otherwise indicated in the applicable prospectus supplement, each series of debt securities will initially be issued in the form of one or more global securities, in registered form, without coupons, as described above under “Book-Entry Securities.” Except in the circumstances described in the applicable prospectus supplement, owners of beneficial interests in a global security will not be entitled to have debt securities registered in their names, will not receive or be entitled to receive physical delivery of any debt securities and will not be considered the registered holders thereof under the debt indenture.
Debt securities of any series will be exchangeable for other debt securities of the same series of any authorized denominations and of a like aggregate principal amount and tenor. Subject to the terms of the applicable indenture and the limitations applicable to global securities, debt securities may be presented for exchange or registration of transfer, duly endorsed or accompanied by a duly executed instrument of transfer, at the office of any security registrar we may designate for that purpose, without service charge but upon payment of any taxes and other governmental charges as described in the applicable indenture.
Unless otherwise indicated in the applicable prospectus supplement, the security registrar will be the trustee under the applicable indenture. We may at any time designate additional security registrars or rescind the designation of any security registrar or approve a change in the office through which any security registrar acts, except that we will be required to maintain a security registrar in each place of payment for the debt securities of each series.
Payment and Paying Agents. Principal of and interest and premium, if any, on debt securities issued in the form of global securities will be paid in the manner described in the applicable prospectus supplement.
Unless otherwise indicated in the applicable prospectus supplement, the principal of and any premium and interest on debt securities of a particular series in the form of certificated securities will be payable at the office of the trustee or at the authorized office of any paying agent or paying agents upon presentation and surrender of such debt securities. We may at any time designate additional paying agents or rescind the designation of any paying agent or approve a change in the office through which any paying agent acts, except that we will be required to maintain a paying agent in each place of payment for the debt securities of a particular series.
All monies we pay to a trustee or a paying agent for the payment of the principal of, and premium or interest, if any, on, any debt security that remain unclaimed at the end of two years after such principal, premium or interest shall have become due and payable will be repaid to us. The holder of such debt security thereafter may look only to us for payment thereof, subject to the laws of unclaimed property.
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Redemption. Any terms for the optional or mandatory redemption of the debt securities will be set forth in the applicable prospectus supplement. Unless otherwise indicated in the applicable prospectus supplement, debt securities will be redeemable by us only upon notice not less than 30 (or, in the case of junior subordinated debt securities, 20) nor more than 60 days prior to the date fixed for redemption, and, if less than all the debt securities of a series are to be redeemed, the particular debt securities to be redeemed will be selected by the method provided for that particular series, or in the absence of any such provision, by the trustee in the manner it deems fair and appropriate and, in the case of debt securities issued in the form of global securities, in accordance with the depositary’s applicable procedures.
Any notice of redemption at our option may state that redemption will be conditional upon receipt by the trustee or the paying agent or agents, on or prior to the date fixed for such redemption, of money sufficient to pay the principal of and premium, if any, and interest on, the debt securities and that if that money has not been so received, the notice will be of no force and effect and we will not be required to redeem the debt securities.
Annual Notice to Trustee. We will provide to each trustee an annual statement by an appropriate officer as to our compliance with all conditions and covenants under the applicable indenture.
Notices. Notices to holders of debt securities will be given by mail to the addresses of the holders as they may appear in the security register for the applicable debt securities.
Title. We, the trustee, and any agents of us or the trustee, may treat the person in whose name debt securities are registered as the absolute owner of those debt securities, whether or not those debt securities may be overdue, for the purpose of making payments and for all other purposes irrespective of notice to the contrary.
Governing Law. Each indenture and the debt securities will be governed by, and construed in accordance with, the laws of the State of New York.
Regarding the Trustees. Regions Bank is the trustee under the senior debt indenture. U.S. Bank Trust Company, National Association is the trustee under the subordinated debt indenture. These banks have provided to us and our affiliates, and may provide from time to time in the future, certain commercial banking and other services in the ordinary course of business, for which they have received and may continue to receive customary fees and commissions. In particular, these banks or their affiliates are lenders under our and our affiliates’ credit facilities.
A trustee may resign at any time by giving written notice to us or may be removed at any time by act of the holders of a majority in principal amount of all series of debt securities then outstanding delivered to the trustee and us. No resignation or removal of a trustee and no appointment of a successor trustee will be effective until the acceptance of appointment by a successor trustee.
Each indenture provides that our obligations to compensate the trustee and reimburse the trustee for expenses, disbursements and advances will be secured by a lien prior to that of the applicable senior debt securities upon the property and funds held or collected by the trustee as such, except funds held in trust for the payment of principal of, or interest, if any, on, such securities.
Consolidation, Merger or Sale of Assets. Each indenture provides that we will not consolidate with or merge into, or sell, lease or convey our property as an entirety or substantially as an entirety to any other person unless the successor corporation assumes our obligations under the debt securities and the indentures and is organized and existing under the laws of the United States, any state thereof or the District of Columbia.
Senior Debt Securities
General. The senior debt securities will be unsecured and, except as set forth under “—Senior Debt Securities Issued as Part of Equity Units” below, issued under the senior debt indenture between us and Regions
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Bank and, unless otherwise specified in the applicable prospectus supplement, will rank equally with our other unsecured and senior indebtedness. The senior debt indenture does not limit the aggregate principal amount of senior debt securities that may be issued under the senior debt indenture. The following summaries of some important provisions of the senior debt indenture (including its supplements) are not complete and are subject to, and qualified in their entirety by, all of the provisions of the senior debt indenture, which is an exhibit to the registration statement of which this prospectus is a part. At March 31, 2022, we had outstanding $830.0 million principal amount of senior notes issued as senior debt securities under the senior debt indenture.
Ranking. The senior debt securities will be our direct unsecured general obligations and will rank equally with all of our other unsecured and unsubordinated debt.
We are a holding company that derives substantially all of our income from our operating subsidiaries and primarily from our utility subsidiaries. As a result, our cash flows and consequent ability to service our debt, including the senior debt securities, are dependent upon the earnings of our subsidiaries and distribution of those earnings to us and other payments or distributions of funds by our subsidiaries to us, including payments of principal and interest under intercompany indebtedness. Our operating subsidiaries are separate and distinct legal entities and will have no obligation, contingent or otherwise, to pay any dividends or make any other distributions (except for payments required under the terms of intercompany indebtedness) to us or to otherwise pay amounts due with respect to the senior debt securities or to make specific funds available for such payments. Various financing arrangements, charter provisions and regulatory requirements may impose certain restrictions on the ability of our subsidiaries to transfer funds to us in the form of cash dividends, loans or advances. Furthermore, except to the extent we have a priority or equal claim against our subsidiaries as a creditor, the senior debt securities will be effectively subordinated to debt and preferred stock at the subsidiary level because, as the direct or indirect common shareholder of our subsidiaries, we will be subject to the prior claims of creditors and holders of preferred stock of our subsidiaries.
Events of Default. Each of the following will constitute an event of default under the senior debt indenture with respect to senior debt securities of any series:
| • | failure to pay principal of or premium, if any, on any senior debt security of that series, as the case may be, within three business days after maturity; |
| • | failure to pay interest on the senior debt securities of such series within 60 days after the same becomes due and payable; |
| • | failure to perform or breach of any of our other covenants or warranties in the senior debt indenture (other than a covenant or warranty solely for the benefit of one or more series of senior debt securities other than that series) for 90 days after written notice to us by the trustee or to us and the trustee by the holders of at least 33% in aggregate principal amount of the outstanding senior debt securities of that series; |
| • | certain events of bankruptcy, insolvency, reorganization, assignment or receivership; or |
| • | any other event of default specified in the applicable prospectus supplement with respect to senior debt securities of a particular series. |
No event of default with respect to the senior debt securities of a particular series necessarily constitutes an event of default with respect to the senior debt securities of any other series issued under the senior debt indenture.
If an event of default with respect to any series of senior debt securities occurs and is continuing, then either the trustee for such series or the holders of at least 33% in aggregate principal amount of the outstanding senior debt securities of that series, by notice in writing, may declare the principal amount of and interest on all of the senior debt securities of that series to be due and payable immediately. However, if the event of default applies to more than one series of senior debt securities under the senior debt indenture, the trustee for that series or the
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holders of at least 33% in aggregate principal amount of the outstanding senior debt securities of all those series, considered as one class, and not the holders of the senior debt securities of any one of such series, may make such declaration of acceleration.
At any time after an acceleration with respect to the senior debt securities of any series has been declared, but before a judgment or decree for the payment of the money due has been obtained, the event or events of default giving rise to such acceleration will be considered waived, and the acceleration will be considered rescinded and annulled, if
| • | we pay or deposit with the trustee for such series a sum sufficient to pay all matured installments of interest on all senior debt securities of that series, the principal of and premium, if any, on the senior debt securities of that series that have become due otherwise than by acceleration and interest, if any, thereon at the rate or rates specified in such senior debt securities, interest, if any, upon overdue installments of interest at the rate or rates specified in such senior debt securities, to the extent that payment of such interest is lawful, and all amounts due to the trustee for that series under the senior debt indenture; or |
| • | any other event or events of default with respect to the senior debt securities of such series have been cured or waived as provided in the senior debt indenture. |
However, no such waiver or rescission and annulment shall extend to or shall affect any subsequent default or impair any related right.
There is no automatic acceleration, even in the event of our bankruptcy, insolvency or reorganization.
Other than its duties in case of an event of default, the trustee is not obligated to exercise any of its rights or powers under the senior debt indenture at the request, order or direction of any of the holders, unless the holders offer the trustee a reasonable indemnity. If they provide a reasonable indemnity, the holders of a majority in principal amount of any series of senior debt securities will have the right to direct the time, method and place of conducting any proceeding for any remedy available to the trustee, or exercising any power conferred upon the trustee. However, if the event of default relates to more than one series, only the holders of a majority in aggregate principal amount of all affected series will have the right to give this direction. The trustee is not obligated to comply with directions that conflict with law or other provisions of the senior debt indenture.
No holder of senior debt securities of any series will have any right to institute any proceeding under the senior debt indenture, or to exercise any remedy under the senior debt indenture, unless:
| • | the holder has previously given to the trustee written notice of a continuing event of default; |
| • | the holders of a majority in aggregate principal amount of the outstanding senior debt securities of all series in respect of which an event of default shall have occurred and be continuing have made a written request to the trustee and have offered reasonable indemnity to the trustee to institute proceedings; and |
| • | the trustee has failed to institute any proceeding for 60 days after notice and has not received any direction inconsistent with the written request of holders during that period. |
However, the limitations discussed above do not apply to a suit by a holder of a debt security for payment of the principal of, or premium, if any, or interest, if any, on, a senior debt security on or after the applicable due date.
Modification and Waiver. We and the trustee may enter into one or more supplemental indentures without the consent of any holder of senior debt securities for any of the following purposes:
| • | to evidence the assumption by any permitted successor of our covenants in the senior debt indenture and in the senior debt securities; |
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| • | to add additional covenants or to surrender any of our rights or powers under the senior debt indenture; |
| • | to add additional events of default; |
| • | to change, eliminate, or add any provision to the senior debt indenture; provided, however, if the change, elimination, or addition will adversely affect the interests of the holders of senior debt securities of any series in any material respect, such change, elimination, or addition will become effective only: |
| • | when the consent of the holders of senior debt securities of such series has been obtained in accordance with the senior debt indenture; or |
| • | when no debt securities of the affected series remain outstanding under the senior debt indenture; |
| • | to provide collateral security for all but not part of the senior debt securities; |
| • | to establish the form or terms of senior debt securities of any other series as permitted by the senior debt indenture; |
| • | to provide for the authentication and delivery of bearer securities and coupons attached thereto; |
| • | to evidence and provide for the acceptance of appointment of a successor trustee; |
| • | to provide for the procedures required for use of a noncertificated system of registration for the senior debt securities of all or any series; |
| • | to change any place where principal, premium, if any, and interest shall be payable, debt securities may be surrendered for registration of transfer or exchange and notices to us may be served; or |
| • | to cure any ambiguity or inconsistency or to make any other provisions with respect to matters and questions arising under the senior debt indenture; provided that such action shall not adversely affect the interests of the holders of senior debt securities of any series in any material respect. |
The holders of a majority in aggregate principal amount of the senior debt securities of all series then outstanding may waive our compliance with certain restrictive provisions of the senior debt indenture. The holders of a majority in principal amount of the outstanding senior debt securities of any series may waive any past default under the senior debt indenture with respect to that series, except a default in the payment of principal, premium, if any, or interest and certain covenants and provisions of the senior debt indenture that cannot be modified or be amended without the consent of the holder of each outstanding senior debt security of the series affected.
If the Trust Indenture Act of 1939 is amended after the date of the senior debt indenture in such a way as to require changes to the senior debt indenture, the senior debt indenture will be deemed to be amended so as to conform to the amendment of the Trust Indenture Act of 1939. We and the trustee may, without the consent of any holders, enter into one or more supplemental indentures to evidence such an amendment.
The consent of the holders of a majority in aggregate principal amount of the senior debt securities of all series then outstanding is required for all other modifications to the senior debt indenture. However, if less than all of the series of senior debt securities outstanding are directly affected by a proposed supplemental indenture, then the consent only of the holders of a majority in aggregate principal amount of all series that are directly affected will be required. No such amendment or modification may:
| • | change the stated maturity of the principal of, or any installment of principal of or interest on, any senior debt security, or reduce the principal amount of any senior debt security or its rate of interest or change the method of calculating such interest rate or reduce any premium payable upon redemption, or change the currency in which payments are made, or impair the right to institute suit for the enforcement of any payment on or after the stated maturity of any senior debt security, without the consent of the holder; |
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| • | reduce the percentage in principal amount of the outstanding senior debt securities of any series whose consent is required for any supplemental indenture or any waiver of compliance with a provision of the senior debt indenture or any default thereunder and its consequences, or reduce the requirements for quorum or voting, without the consent of all the holders of the series; or |
| • | modify certain of the provisions of the senior debt indenture relating to supplemental indentures, waivers of certain covenants and waiver of past defaults with respect to the senior debt securities of any series, without the consent of the holder of each outstanding senior debt security affected thereby. |
A supplemental indenture that changes the senior debt indenture solely for the benefit of one or more particular series of senior debt securities, or modifies the rights of the holders of senior debt securities of one or more series, will not affect the rights under the senior debt indenture of the holders of the senior debt securities of any other series.
The senior debt indenture provides that senior debt securities owned by us, any of our affiliates or anyone else required to make payment on the senior debt securities shall be disregarded and considered not to be outstanding in determining whether the required holders have given a request or consent.
We may fix in advance a record date to determine the required number of holders entitled to give any request, demand, authorization, direction, notice, consent, waiver or other act of the holders, but we shall have no obligation to do so. If a record date is fixed for that purpose, the request, demand, authorization, direction, notice, consent, waiver or other act of the holders may be given before or after that record date, but only the holders of record at the close of business on that record date will be considered holders for the purposes of determining whether holders of the required percentage of the outstanding senior debt securities have authorized or agreed or consented to the request, demand, authorization, direction, notice, consent, waiver or other act of the holders. For that purpose, the outstanding senior debt securities shall be computed as of the record date. Any request, demand, authorization, direction, notice, consent, election, waiver or other act of a holder shall bind every future holder of the same senior debt securities and the holder of every senior debt security issued upon the registration of transfer of or in exchange for those senior debt securities. A transferee will be bound by acts of the trustee or us taken in reliance upon an act of holders whether or not notation of that action is made upon that senior debt security.
Satisfaction and Discharge. We will be discharged from our obligations on the senior debt securities of a particular series, or any portion of the principal amount of the senior debt securities of such series, if we irrevocably deposit with the trustee sufficient cash or government securities to pay the principal, or portion of principal, interest, any premium and any other sums when due on the senior debt securities of such series at their maturity, stated maturity date, or redemption.
The indenture will be deemed satisfied and discharged when no senior debt securities remain outstanding and when we have paid all other sums payable by us under the senior debt indenture.
Senior Debt Securities Issued as Part of Equity Units. Notwithstanding the foregoing, senior debt securities issued as part of equity units will be issued under the senior debt indenture between us and U.S. Bank Trust Company, National Association, which is an exhibit to the registration statement of which this prospectus is a part. The terms of the indenture and such senior debt securities will be more fully described in the applicable prospectus supplement. At March 31, 2022, we had outstanding $175.0 million principal amount of senior notes issued as senior debt securities and part of equity units under this senior debt indenture.
Junior Subordinated Debt Securities
General. The junior subordinated debt securities will be unsecured and issued under the junior subordinated debt indenture between us and U.S. Bank Trust Company, National Association and, unless otherwise specified in the applicable prospectus supplement, will rank equally with our other unsecured and subordinated indebtedness. The junior subordinated debt indenture does not limit the aggregate principal amount of junior
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subordinated debt securities that may be issued under the junior subordinated debt indenture. The following summaries of some important provisions of the junior subordinated debt indenture (including its supplements) are not complete and are subject to, and qualified in their entirety by, all of the provisions of the junior subordinated debt indenture, which is an exhibit to the registration statement of which this prospectus is a part. At March 31, 2022, we had no junior subordinated debt securities outstanding.
Subordination. Unless otherwise specified in the applicable prospectus supplement, the junior subordinated debt securities will rank subordinated and junior in right of payment, to the extent set forth in the junior subordinated indenture, to all of our “priority indebtedness.”
“Priority Indebtedness” means the principal, premium, interest and any other payment in respect of any of the following:
| • | all of our current and future indebtedness for borrowed or purchase money whether or not evidenced by notes, debentures, bonds or other similar written instruments; |
| • | our obligations under synthetic leases, finance leases and capitalized leases; |
| • | our obligations for reimbursement under letters of credit, surety bonds, banker’s acceptances, security purchase facilities or similar facilities issued for our account; |
| • | any of our other indebtedness or obligations with respect to derivative contracts, including commodity contracts, interest rate, commodity and currency swap agreements, forward contracts and other similar agreements or arrangements; and |
| • | all indebtedness of others of the kinds described in the preceding categories which we have assumed, endorsed or guaranteed or with respect to which we have a similar contingent obligation. |
However, “Priority Indebtedness” will not include trade accounts payable, accrued liabilities arising in the ordinary course of business, indebtedness to our subsidiaries, and any other indebtedness that effectively by its terms, or expressly provides that it, ranks on parity with, or junior to, the junior subordinated debt securities.
If we default in the payment of principal of or interest on any priority indebtedness when it becomes due and payable after any applicable grace period, then, unless and until the default is cured or waived or ceases to exist, we cannot make a payment on account of or redeem or otherwise acquire the junior subordinated debt securities issued under the junior subordinated debt indenture. If there is any insolvency, bankruptcy, liquidation or other similar proceeding relating to us, our creditors or our property, then all priority indebtedness must be paid in full before any payment may be made to any holders of junior subordinated debt securities. Holders of junior subordinated debt securities must return and deliver any payments received by them directly to the holders of priority indebtedness until all priority indebtedness is paid in full.
The junior subordinated debt indenture does not limit the total amount of priority indebtedness that may be issued.
Events of Default. The junior subordinated debt indenture provides that events of default regarding any series of junior subordinated debt securities include the following events that shall have occurred and be continuing:
| • | failure to pay required interest on the series of junior subordinated debt securities for 30 days; |
| • | failure to pay when due principal on the series of junior subordinated debt securities; |
| • | failure to perform, for 90 days after notice, any other covenant in the junior subordinated indenture applicable to the series of junior subordinated debt securities; and |
| • | certain events of bankruptcy or insolvency, whether voluntary or not. |
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If an event of default regarding junior subordinated debt securities of any series should occur and be continuing, either the junior subordinated debt securities trustee or the holders of at least 25% in total principal amount of outstanding junior subordinated debt securities of a series may declare each junior subordinated debt security of that series immediately due and payable.
Holders of a majority in total principal amount of the outstanding junior subordinated debt securities of any series will be entitled to control certain actions of the junior subordinated debt securities trustee and to waive past defaults regarding that series. The trustee generally will not be required to take any action requested, ordered or directed by any of the holders of junior subordinated debt securities, unless one or more of those holders shall have offered to the trustee reasonable security or indemnity.
Before any holder of any series of junior subordinated debt securities may institute action for any remedy, except payment on that holder’s junior subordinated debt securities when due, the holders of not less than a majority in principal amount of the junior subordinated debt securities of that series outstanding must request the junior subordinated debt securities trustee to take action. Holders must also offer and give the junior subordinated debt securities trustee satisfactory security and indemnity against liabilities incurred by the trustee for taking that action.
We are required to annually furnish the junior subordinated debt securities trustee a statement as to our compliance with all conditions and covenants under the junior subordinated debt indenture. The junior subordinated debt securities trustee is required, within 90 days after the occurrence of a default with respect to a series of junior subordinated debt securities, to give notice of all defaults affecting that series of junior subordinated debt securities to each holder of such series. However, the junior subordinated debt indenture provides that the junior subordinated debt securities trustee may withhold notice to the holders of the junior subordinated debt securities of any series of any default affecting such series, except payment of principal and interest on holders’ junior subordinated debt securities when due, if we, in some cases with the trustee’s input, consider withholding notice to be in the interests of the holders of the junior subordinated debt securities of that series.
Modification and Waiver. The junior subordinated debt indenture permits us and the junior subordinated debt securities trustee to enter into supplemental indentures without the consent of the holders of the junior subordinated debt securities to:
| • | establish the form and terms of any series of securities under the junior subordinated debt indenture; |
| • | secure the notes or debentures with property or assets; |
| • | evidence the succession of another corporation to us, and the assumption by the successor corporation of our obligations, covenants and agreements under the subordinated indenture; |
| • | add covenants from us for the benefit of the holders of the junior subordinated debt securities; |
| • | add or change any of the provisions of the junior subordinated debt indenture to permit or facilitate the issuance of junior subordinated debt securities in bearer form, registrable or not registrable as to principal, and with or without interest coupons; |
| • | change or eliminate any provisions of the junior subordinated debt indenture; provided, however, that any such change or elimination shall become effective only when there are no junior subordinated debt securities of any series outstanding created prior to the execution of such supplemental indenture which are entitled to the benefit of such provision; |
| • | qualify, or maintain the qualification of, the junior subordinated debt indenture under the Trust Indenture Act of 1939, as amended; |
| • | cure any ambiguity or correct or supplement any provision in the junior subordinated debt indenture or any supplement to the junior subordinated debt indenture, provided that the action does not adversely affect the interests of the holders of the junior subordinated debt securities in any material respect; and |
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| • | evidence and provide for the acceptance of a successor trustee. |
The junior subordinated debt indenture also permits us and the junior subordinated debt securities trustee, with the consent of the holders of a majority in total principal amount of the junior subordinated debt securities of all series then outstanding and affected (voting as one class), to change in any manner the provisions of the junior subordinated debt indenture or modify in any manner the rights of the holders of the junior subordinated debt securities of each such affected series. We and the trustee may not, without the consent of the holder of each of the junior subordinated debt securities affected, enter into any supplemental indenture to:
| • | change the time of payment of the principal; |
| • | reduce the principal amount of the junior subordinated debt securities; |
| • | reduce the rate or extend the time of payment of interest on the junior subordinated debt securities; |
| • | reduce any amount payable upon redemption of the subordinated debt securities; |
| • | modify the provisions with respect to the subordination of outstanding junior subordinated debt securities of any series in a manner adverse to the holders thereof; or |
| • | impair the right to institute suit for the enforcement of any payment on any junior subordinated debt securities when due. |
In addition, no modification may reduce the percentage in principal amount of the junior subordinated debt securities of the affected series, the consent of whose holders is required for that modification or for any waiver provided for in the junior subordinated debt indenture.
Before the acceleration of the maturity of any junior subordinated debt securities, the holders, voting as one class, of a majority in total principal amount of the junior subordinated debt securities with respect to which a default or event of default has occurred and is continuing, may, on behalf of the holders of all such affected junior subordinated debt securities, waive any past default or event of default and its consequences, except a default or event of default in the payment of the principal or interest or in respect of a covenant or provision of the applicable indenture or of any junior subordinated debt securities that cannot be modified or amended without the consent of the holder of each of the junior subordinated debt securities affected.
Satisfaction and Discharge. The junior subordinated debt indenture provides that, at our option, we will be discharged from all obligations in respect of the junior subordinated debt securities of a particular series then outstanding (except for certain obligations to register the transfer of or exchange the junior subordinated debt securities of that series, to replace stolen, lost or mutilated junior subordinated debt securities of that series, and to maintain paying agencies) if all of the securities of such series have become due and payable, or are to become due and payable within one year, and we, in each case, irrevocably deposit in trust with the relevant trustee money and/or securities backed by the full faith and credit of the United States that through the payment of the principal thereof and the interest thereon in accordance with their terms, will provide money in an amount sufficient to pay all the principal and interest on the junior subordinated debt securities of that series on the stated maturities of the junior subordinated debt securities in accordance with the terms thereof.
General
The following descriptions of our preferred and common stock and the relevant provisions of our articles of incorporation and bylaws are summaries. These summaries are qualified by reference to (1) our articles of incorporation and bylaws that have been previously filed with the SEC and are exhibits to the registration statement of which this prospectus is a part and (2) the applicable provisions of The General and Business Corporation Law of Missouri.
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Under our articles of incorporation, we are authorized to issue up to 75,000,000 shares of capital stock, consisting of 70,000,000 shares of common stock, $1.00 par value per share, and 5,000,000 shares of preferred stock, $25.00 par value per share. Our Board of Directors (the “Board”) has designated 10,000 shares of the preferred stock as 5.90% Series A Cumulative Redeemable Perpetual Preferred Stock (“Series A Preferred Stock”). At May 1, 2022, we had outstanding 52,121,977 shares of common stock and 10,000 shares of Series A Preferred Stock. The shares of Series A Preferred Stock are represented by 10,000,000 depositary shares, each representing a 1/1,000th interest in a share of our Series A Preferred Stock.
Because we are a holding company and conduct all of our operations through our subsidiaries, our cash flow and ability to pay dividends will be dependent on the earnings and cash flows of our subsidiaries and the distribution or other payment of those earnings to us in the form of dividends, or in the form of loans to or repayments of loans from us. Some of our subsidiaries may have restrictions on their ability to pay dividends including covenants under their borrowing arrangements and mortgage indentures, and possibly also restrictions imposed by their regulators. Currently, the Mortgage and Deed of Trust of Spire Missouri Inc., under which it issues its first mortgage bonds, contains a covenant that restricts its ability to pay dividends to us as its sole common stock shareholder. Under that covenant, as of May 1, 2022, $1,580 million was available to pay dividends. Further, the right of common shareholders to receive dividends may be subject to our prior payment of dividends on any outstanding shares of preferred stock.
Description of Preferred Stock
General. Our articles of incorporation authorize the Board to approve the issuance from time to time of up to 5,000,000 shares of preferred stock, $25.00 par value per share, in one or more series, without shareholder action. The Board can determine the rights, preferences and limitations of each series. Before issuing a series of preferred stock, the Board will adopt resolutions creating and designating the series as a series of preferred stock. The Board and has the authority to determine or fix the following terms with respect to shares of any series of preferred stock:
| • | the dividend rate, the dates of payment, and the date from which dividends will accumulate, if dividends are to be cumulative; |
| • | whether and upon what terms the shares will be redeemable; |
| • | whether and upon what terms the shares will have a sinking fund; |
| • | whether and upon what terms the shares will be convertible or exchangeable; |
| • | whether the shares will have voting rights and the terms thereof; |
| • | any amounts payable to the holders upon liquidation or dissolution, if any; |
| • | whether interests in the preferred stock will be represented by depositary shares; and |
| • | any other preferences, qualifications, limitations, restrictions and special or relative rights. |
These terms will be described in the prospectus supplement for any series of preferred stock that we offer. In addition, you should read the prospectus supplement relating to the particular series of preferred stock offered thereby for specific terms, including:
| • | the title of the series of preferred stock and the number of shares offered; |
| • | the initial public offering price at which we will issue the preferred stock; and |
| • | any additional dividend, liquidation, redemption, sinking fund and other rights, preferences, privileges and limitations and restrictions. |
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When we issue the preferred stock, the shares will be fully paid and non-assessable. This means that the full purchase price for the outstanding preferred stock will have been paid and the holder of the preferred stock will not be assessed any additional monies for the preferred stock. Unless the applicable prospectus supplement specifies otherwise:
| • | each series of preferred stock will rank senior to our common stock and equally in all respects with the outstanding shares of each other series of preferred stock; and |
| • | holders of the preferred stock will have no preemptive rights to subscribe for any additional securities that we may issue in the future. This means that the holder of preferred stock will have no right, as holder of preferred stock, to buy any portion of preferred or common stock that we may issue in the future. |
Description of Common Stock
Listing. Our outstanding shares of common stock are listed on the New York Stock Exchange under the symbol “SR.” Any additional common stock we issue will also be listed on the New York Stock Exchange.
Liquidation Rights. In the event of any dissolution, liquidation or winding up of our affairs voluntarily or involuntarily, the holders of our common stock will be entitled to receive the remainder, if any, of our assets after the payment of all our debts and liabilities and after the payment in full of any preferential amounts to which holders of any preferred stock may be entitled.
Voting Rights. Except as otherwise provided by law and subject to the voting rights of holders of our preferred stock that may be issued in the future, all voting power rests exclusively in the holders of shares of our common stock. Each holder of our common stock is entitled to one vote per share on all matters submitted to a vote at a meeting of shareholders, including the election of directors. The common stock votes together as a single class. The holders of our common stock are not entitled to cumulate votes for the election of directors. At annual and special meetings of shareholders, the holders of a majority of the outstanding shares of common stock, present in person or by proxy, constitute a quorum.
Dividends. Because we are a holding company and conduct all of our operations through our subsidiaries, our cash flow and ability to pay dividends will be dependent on the earnings and cash flows of our subsidiaries and the distribution or other payment of those earnings to us in the form of dividends, or in the form of loans to or repayments of loans from us. Some of our subsidiaries may have restrictions on their ability to pay dividends including covenants under their borrowing arrangements and mortgage indentures, and possibly also restrictions imposed by their regulators. Currently, the Mortgage and Deed of Trust of Spire Missouri Inc., under which it issues its first mortgage bonds, contains a covenant that restricts its ability to pay dividends to us as its sole common stock shareholder. Further, the right of common shareholders to receive dividends may be subject to our prior payment of dividends on any outstanding shares of preferred stock.
Miscellaneous. The holders of our common stock have no preemptive or preferential rights to subscribe for or purchase any part of any new or additional issue of stock or securities convertible into stock. The outstanding shares of our common stock are and the shares of common stock offered hereby will be, upon payment for them, fully paid and non-assessable. Our common stock does not contain any redemption provisions or conversion rights.
Transfer Agent and Registrar. Computershare Trust Company, N. A. acts as transfer agent and registrar for our common stock. Its address is P. O. Box 505000, Louisville, Kentucky 40233-5000. You can reach it at 1-800-884-4225.
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Anti-takeover Effects of our Articles of Incorporation and Bylaws
It is not the intent of the Board to discourage legitimate offers to enhance shareholder value. Provisions of our articles of incorporation or bylaws, however, may have the effect of discouraging unilateral tender offers or other attempts to acquire our business. These provisions include the classification of our directors with three-year staggered terms, the requirement that director nominations by shareholders be made not less than 90 nor more than 120 days prior to the date of the shareholder meeting, and the ability of the Board, without further action of the holders of common stock, to issue one or more series of preferred stock from time to time, which may have terms more favorable than the common stock, including, among other things, preferential dividend, liquidation, voting and redemption rights. These provisions might discourage a potentially interested purchaser from attempting a unilateral takeover bid for us on terms that some shareholders might favor. If these provisions discourage potential takeover bids, they might limit the opportunity for our shareholders to sell their shares at a premium.
In addition, our articles of incorporation do not provide for cumulative voting in the election of directors. Cumulative voting permits shareholders to multiply their number of votes by the total number of directors being elected and to cast their total number of votes for one or more candidates in each shareholder’s discretion.
Our bylaws also include provisions setting forth specific conditions and restrictions under which business may be transacted at meetings of shareholders. For example, no business may be transacted at a meeting unless it is (a) specified in the notice of meeting, (b) otherwise brought before the meeting by or at the direction of the Board or a committee thereof or (c) brought before the meeting by a shareholder of record who provided notice and other specified information in writing to the corporate secretary not less than 90 nor more than 120 days prior to the meeting. These provisions may restrict the content of the issues to be discussed at a shareholders meeting.
In addition, the issuance of authorized but unissued shares of our common or preferred stock may have an anti-takeover effect. These shares might be issued by the Board without shareholder approval in transactions that might prevent or render more difficult or costly the completion of a takeover transaction by, for example, diluting voting or other rights of the proposed acquiror. In this regard, our articles of incorporation grant the Board broad powers to establish the rights and preferences of the authorized but unissued preferred stock, one or more series of which could be issued entitling holders to vote separately as a class on any proposed merger or consolidation, to convert the stock into shares of our common stock or possibly other securities, to demand redemption at a specified price under prescribed circumstances related to a change in control or to exercise other rights designed to impede a takeover.
Missouri Shareholder Protection Statutes
We are subject to Missouri corporate statutes that restrict the voting rights of a person who acquires 20% or more of our outstanding common stock as well as that person’s ability to enter into a business combination with us.
The control share acquisition statute provides that shares acquired that would cause the acquiring person’s aggregate voting power to meet or exceed any of three thresholds (20%, 33-1/3% or a majority) have no voting rights unless such voting rights are granted by a majority vote of the holders of the shares not owned by the acquiring person or any of our officers or directors or employee-directors. The statute sets out a procedure under which the acquiring person may call a special shareholders meeting for the purpose of considering whether voting rights should be conferred. Acquisitions as part of a merger or exchange offer arising out of an agreement to which we are a party are exempt from the statute.
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The business combination statute restricts transactions between us and a beneficial owner of 20% or more of our voting stock. A business combination is defined in the statute as any of the following transactions with or proposed by an interested shareholder: merger, consolidation, disposition of assets, significant securities issuance, liquidation, dissolution, reclassification of securities, loan, advance, guarantee, pledge or tax credit. Generally, the statute prohibits for five years from the date one becomes an interested shareholder a business combination between us and the interested shareholder unless the business combination or the interested shareholder’s stock acquisition was approved by the Board on or before that date. An interested shareholder may enter into a business combination with us after the five-year period if it is approved by holders of a majority of the outstanding shares not owned by the interested shareholder or if it meets certain consideration requirements.
Application of the control share acquisition and business combination statutes are automatic unless we take steps to “opt out” of their application. We have not “opted out” of the statutes.
DESCRIPTION OF DEPOSITARY SHARES
General
We may issue depositary shares representing fractional interests in shares of our preferred stock of any series. At May 1, 2022, we had 10,000,000 depositary shares outstanding, each representing a 1/1,000th interest in a share of our Series A Preferred Stock. The following description sets forth certain general terms and provisions of the depositary shares to which any prospectus supplement may relate. The particular terms of the depositary shares to which any prospectus supplement may relate and the extent, if any, to which the general terms and provisions may apply to the depositary shares so offered will be described in the applicable prospectus supplement. To the extent that any particular terms of the depositary shares, deposit agreements and depositary receipts described in a prospectus supplement differ from any of the terms described below, then the terms described below will be deemed to have been superseded by that prospectus supplement. We encourage you to read the applicable deposit agreement and depositary receipts for additional information before you decide whether to purchase any of our depositary shares.
In connection with the issuance of any depositary shares, we will enter into a deposit agreement with a bank or trust company, as depositary, which will be named in the applicable prospectus supplement. Depositary shares will be evidenced by depositary receipts issued pursuant to the related deposit agreement. Immediately following our issuance of any shares of preferred stock related to the depositary shares, we will deposit such shares of our preferred stock with the relevant depositary and will cause the depositary to issue, on our behalf, the related depositary receipts. Subject to the terms of the deposit agreement, each owner of a depositary receipt will be entitled, in proportion to the fractional interest in the share of preferred stock represented by the related depositary share, to all the rights, preferences and privileges of, and will be subject to all of the limitations and restrictions on, the preferred stock represented by the depositary receipt (including, if applicable, dividend, voting, conversion, exchange, redemption, sinking fund, subscription and liquidation rights). The applicable prospectus supplement will describe the specific terms of the depositary shares offered thereby.
Book-Entry Securities
We may issue some or all of the depositary shares as book-entry securities. Any such book-entry securities will be represented by one or more fully registered global certificates. We will register each global security with or on behalf of a securities depositary identified in the applicable prospectus supplement. Each global security will be deposited with the securities depositary or its nominee or a custodian for the securities depositary.
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DESCRIPTION OF STOCK PURCHASE CONTRACTS
AND STOCK PURCHASE UNITS
General
We may issue stock purchase contracts, including contracts obligating you to purchase from us, and us to sell to you, a specified number of shares of our preferred or common stock at a future date or dates. The price per share of stock and the number of shares of stock may be fixed at the time the stock purchase contracts are issued or may be determined by reference to a specific formula described in the stock purchase contracts. We may issue stock purchase contracts separately or as part of units, often known as stock purchase units, consisting of a stock purchase contract and beneficial interests in:
| • | senior debt securities or junior subordinated debt securities or preferred stock; or |
| • | debt obligations of third parties, including U.S. Treasury securities, |
securing your obligations to purchase the stock under the stock purchase contract. The stock purchase contracts may require us to make periodic payments to you or vice versa, and these payments may be unsecured or prefunded on some basis. The stock purchase contracts may require you to secure your obligations in a specified manner. The applicable prospectus supplement will describe the terms of the stock purchase contracts or stock purchase units. The description in the applicable prospectus supplement will not necessarily be complete and is subject to, and qualified in its entirety by, all of the provisions of the relevant purchase contract and pledge agreement, a form of which is an exhibit to the registration statement of which this prospectus is a part.
At May 1, 2022, we had 3.5 million equity units outstanding, which were initially issued in the form of “Corporate Units”, each consisting of (i) a stock purchase contract and (ii) a 1/20, or 5%, undivided beneficial ownership interest in one thousand dollars principal amount of our 2021 Series A 0.75% Remarketable Senior Notes due March 1, 2026, which were issued as senior debt securities.
Book-Entry Securities
We may issue some or all of the stock purchase contracts and stock purchase units as book-entry securities. Any such book-entry securities will be represented by one or more fully registered global certificates. We will register each global security with or on behalf of a securities depositary identified in the applicable prospectus supplement. Each global security will be deposited with the securities depositary or its nominee or a custodian for the securities depositary.
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We may sell the offered securities through the solicitation of proposals of underwriters or dealers to purchase the offered securities, through underwriters or dealers on a negotiated basis, through agents or directly to a limited number of purchasers or to a single purchaser.
The prospectus supplement with respect to each offering of securities will set forth the terms of such offering, including:
| • | the name or names of any underwriters, dealers or agents; |
| • | the purchase price of the offered securities and the proceeds to us from their sale; |
| • | any underwriting discounts and commissions and other items constituting underwriters’ compensation; |
| • | any initial public offering price and any discounts or concessions allowed or reallowed or paid to dealers; and |
| • | any securities exchange on which the offered securities may be listed. |
Any initial public offering price, discounts or concessions allowed or reallowed or paid to dealers may be changed from time to time.
We may engage in at-the-market offerings into an existing trading market in accordance with Rule 415(a)(4) under the Securities Act of 1933, as amended (the “Securities Act”). In addition, we may enter into derivative transactions with third parties, or sell securities not covered by this prospectus to third parties in privately negotiated transactions. If the applicable prospectus supplement indicates, in connection with those derivatives, the third parties may sell securities covered by this prospectus and the applicable prospectus supplement, including in short sale transactions. If so, the third parties may use securities pledged by us or borrowed from us or others to settle those sales or to close out any related open borrowings of stock, and may use securities received from us in settlement of those derivatives to close out any related open borrowings of stock. The third parties in such sale transactions will be underwriters and, if not identified in this prospectus, will be identified in the applicable prospectus supplement (or a post-effective amendment). We or one of our affiliates may loan or pledge securities to a financial institution or other third party that in turn may sell the securities using this prospectus. Such financial institution or third party may transfer its short position to investors in our securities or in connection with a simultaneous offering of other securities offered by this prospectus or otherwise.
Underwriters
If underwriters are used in the sale, they will acquire the offered securities for their own account and may resell them on one or more occasions in one or more transactions, including negotiated transactions, at a fixed public offering price or at varying prices determined at the time of sale. The offered securities may be offered to the public either through underwriting syndicates represented by one or more managing underwriters or directly by one or more firms acting as underwriters. The underwriter or underwriters with respect to a particular underwritten offering of securities will be named in the prospectus supplement relating to such offering and, if an underwriting syndicate is used, the names of the managing underwriter or underwriters will be set forth on the cover of that prospectus supplement. Unless otherwise set forth in the prospectus supplement relating thereto, the obligations of the underwriters to purchase the offered securities will be subject to certain conditions precedent, and the underwriters will be obligated to purchase all the offered securities if any are purchased.
Dealers
If dealers are utilized in the sale of offered securities, we will sell such offered securities to the dealers as principals. The dealers may then resell such offered securities to the public at varying prices to be determined by
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such dealers at the time of resale. The names of the dealers and the terms of the transaction will be set forth in the applicable prospectus supplement.
Agents
The offered securities may be sold directly by us or through agents designated by us from time to time. Any agent involved in the offer or sale of the offered securities will be named, and any commissions payable by us to such agent will be set forth, in the applicable prospectus supplement. Unless otherwise indicated in the applicable prospectus supplement, any such agent will be acting on a best-efforts basis for the period of its appointment.
Direct Sales
The offered securities may be sold directly by us to institutional investors or others, who may be deemed to be underwriters within the meaning of the Securities Act with respect to any resale thereof. The terms of any such sales will be described in the applicable prospectus supplement.
Indemnification
Agents, dealers and underwriters and the persons who control them may be entitled under agreements with us to indemnification by us against certain civil liabilities, including liabilities under the Securities Act, or to contribution with respect to payments which these agents, dealers or underwriters may be required to make in respect thereof. Agents, dealers and underwriters may be customers of, engage in transactions with, or perform services for us or our subsidiaries in the ordinary course of business.
Remarketing
The offered securities may also be offered and sold, if so indicated in the applicable prospectus supplement, in connection with a remarketing upon their purchase, in accordance with a redemption or repayment under their terms, or otherwise, by one or more firms (“remarketing firms”), acting as principals for their own accounts or as agents for us. Any remarketing firm will be identified and the terms of its agreement, if any, with its compensation will be described in the applicable prospectus supplement. Remarketing firms may be deemed to be underwriters, as such term is defined in the Securities Act, in connection with the offered securities they remarket. Remarketing firms may be entitled, under agreements that may be entered into with us, to indemnification or contribution by us against certain civil liabilities, including liabilities under the Securities Act, and may be customers of, engage in transactions or perform services for us and our subsidiaries in the ordinary course of business.
No Assurance of Liquidity
The offered securities may or may not be listed on a national securities exchange. You should read the applicable prospectus supplement for a discussion of this matter. We cannot assure you there will be a market for any of the offered securities.
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Unless otherwise indicated in the applicable prospectus supplement, certain legal matters will be passed upon for us by Mark C. Darrell, who serves as our Senior Vice President, Chief Legal and Compliance Officer, or Akin Gump Strauss Hauer & Feld, LLP New York, New York. Mr. Darrell is a salaried employee and earns stock-based compensation on our common stock. As of May 1, 2022, Mr. Darrell beneficially owned 54,751 shares of our common stock. Pursuant to various stock and employee benefit plans, Mr. Darrell is eligible to purchase and receive shares of our common stock and to receive options to purchase shares of our common stock. Certain other legal matters may be passed upon for any underwriters or agents by Bracewell LLP, New York, New York.
The consolidated financial statements, incorporated in this prospectus by reference from our Annual Report on Form 10-K for the year ended September 30, 2021, and the effectiveness of Spire Inc. and subsidiaries’ internal control over financial reporting have been audited by Deloitte & Touche LLP, an independent registered public accounting firm, as stated in their reports, which are incorporated herein by reference. Such financial statements have been so incorporated in reliance upon the reports of such firm given upon their authority as experts in auditing and accounting.
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PROSPECTUS
SPIRE MISSOURI INC.
First Mortgage Bonds
Unsecured Debt Securities
Preferred Stock
Depositary Shares
We may offer for sale, from time to time, either separately or together in any combination, the securities described in this prospectus. Each time we sell securities pursuant to this prospectus, we will provide a supplement to this prospectus that contains specific information about the offering and the specific terms of the securities offered. You should read this prospectus and the applicable prospectus supplement carefully before you invest. This prospectus may not be used to sell securities unless accompanied by a prospectus supplement.
We may sell the offered securities through the solicitation of proposals of underwriters or dealers to purchase the offered securities, through underwriters or dealers on a negotiated basis, through agents or directly to a limited number of purchasers or to a single purchaser. The supplements to this prospectus will describe the terms of any particular plan of distribution, including any underwriting arrangements. Please see the “Plan of Distribution” section of this prospectus.
Investing in our securities involves risks that are described in the “Risk Factors” section of this prospectus as well as in our annual, quarterly, and current reports filed with the Securities and Exchange Commission under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), which are incorporated by reference into this prospectus.
Our address is 700 Market Street, St. Louis, Missouri 63101 and our telephone number is 314-342-0500.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or passed upon the accuracy or adequacy of this prospectus. Any representation to the contrary is a criminal offense.
The date of this prospectus is May 9, 2022
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This prospectus, any prospectus supplement and any free writing prospectus we authorize contain and incorporate by reference information that you should consider when making your investment decision. We have not authorized anyone to provide you with any information other than information incorporated by reference or provided in this prospectus, any prospectus supplement and any free writing prospectus. We can take no responsibility for, and can provide no assurances as to the reliability of, any information that others may give you. We will not make an offer of these securities in any state where the offer is not permitted. You should not assume that the information in this prospectus, any prospectus supplement or the documents incorporated by reference herein or therein is accurate as of any date other than the date on the front of the applicable document. Our business, financial condition, result of operations, and prospects may have changed since those dates.
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The distribution of this prospectus may be restricted by law in certain jurisdictions. This prospectus does not constitute, and may not be used in connection with, an offer or solicitation by anyone in any jurisdiction in which the offer or solicitation is not authorized or in which the person making the offer or solicitation is not qualified to do so, or to any person to whom it is unlawful to make the offer or solicitation.
The terms “we,” “our,” “us” and “Company” refer to Spire Missouri Inc. unless the context suggests otherwise. The term “you” refers to a prospective investor.
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This prospectus is part of a registration statement that we filed with the Securities and Exchange Commission (“SEC”) using a “shelf” registration process. Under this shelf registration process, we may offer and sell, from time to time, any combination of securities described in this prospectus in one or more offerings. We are required to obtain the authorization of the Missouri Public Service Commission before we can sell or issue these securities or use the proceeds of any sales other than as currently authorized.
This prospectus provides you with a general description of the securities we may offer. The registration statement we filed with the SEC, of which this prospectus is a part, includes or incorporates by reference exhibits that provide more detail on descriptions of matters discussed in this prospectus. Each time we offer and sell securities, we will provide a prospectus supplement that will contain specific information about the terms of that offering, including the specific amounts, prices and terms of the securities offered. The prospectus supplement may also add, update or change information contained in this prospectus. If there is any inconsistency between the information in this prospectus and the prospectus supplement, you should rely on the information in the prospectus supplement. You should read this prospectus and the related exhibits filed with the SEC and any prospectus supplement together with additional information described under the heading “Where You Can Find More Information.”
Investing in our securities involves risks. Before making an investment decision, you should read and carefully consider the risk factors described in our annual, quarterly and current reports filed with the SEC, which are incorporated by reference into this prospectus, as well as other information we include or incorporate by reference in this prospectus before making an investment decision. The prospectus supplement applicable to each type or series of securities we offer may contain a discussion of additional risks applicable to an investment in us and the particular types of securities we are offering under that prospectus supplement.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and current reports, and other information with the SEC. These SEC filings are available on the Internet at the SEC’s web site at “http://www.sec.gov” or on our parent’s, Spire Inc. (“Spire”), website at “http://www.spireenergy.com.” Information contained on Spire’s website does not constitute part of this prospectus.
The SEC allows us to “incorporate by reference” into this prospectus the information we file with the SEC, which means we can disclose important information by referring you to those documents. The information we incorporate by reference is an important part of this prospectus or any prospectus supplement relating to an offering of our securities and information that we file later with the SEC will automatically update and supersede this information. We incorporate by reference the documents listed below and any future filings made with the SEC under Sections 13(a), 13(c), 14 and 15 of the Exchange Act from the time we file the registration statement of which this prospectus is a part until the termination of all offerings under such registration statement. These documents contain important information about us and our finances. Many of our reports are filed with the SEC on a combined basis by us, Spire and Spire Alabama Inc., another wholly owned subsidiary of Spire, but we are only incorporating the information that relates to us and not the information that relates to Spire or its other affiliates. We are not, however, incorporating, in each case, any documents or information that we are deemed to furnish and not file in accordance with SEC rules.
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| SEC Filings (File No.1-1822) |
Period/Date | |
| Annual Report on Form 10-K |
Year ended September 30, 2021 | |
| Quarterly Reports on Form 10-Q |
Quarters ended December 31, 2021 and | |
| Current Report on Form 8-K |
You may request a copy of these filings at no cost by writing or telephoning us at the following address:
Spire Missouri Inc.
Attn: Investor Relations
700 Market Street, 6th Floor
St. Louis, Missouri 63101
(314) 342-0878
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Certain matters discussed in this prospectus supplement and the information incorporated by reference herein, excluding historical information, include forward-looking statements. Certain words, such as “may,” “anticipate,” “believe,” “estimate,” “expect,” “intend,” “plan,” “seek,” “target” and similar words and expressions identify forward-looking statements that involve uncertainties and risks. Future developments may not be in accordance with our current expectations or beliefs and the effect of future developments may not be those anticipated. Among the factors that may cause results or outcomes to differ materially from those contemplated in any forward-looking statement are:
| • | Weather conditions and catastrophic events, particularly severe weather in U.S. natural gas producing areas; |
| • | Impacts related to the COVID-19 pandemic and uncertainties as to their continuing duration and severity; |
| • | Volatility in gas prices, particularly sudden and sustained changes in natural gas prices, including the related impact on margin deposits associated with the use of natural gas derivative instruments, and the impact on our competitive position in relation to suppliers of alternative heating sources, such as electricity; |
| • | Changes in gas supply and pipeline availability, including as a result of decisions by natural gas producers to reduce production or shut in producing natural gas wells and expiration or termination of existing supply and transportation arrangements that are not replaced with contracts with similar terms and pricing (including as a result of a failure of the Spire STL Pipeline to secure permanent authorization from the FERC), as well as other changes that impact supply for and access to the markets in which our subsidiaries transact business; |
| • | Acquisitions may not achieve their intended results; |
| • | Legislative, regulatory and judicial mandates and decisions, some of which may be retroactive, including those affecting: |
| • | allowed rates of return and recovery of prudent costs, |
| • | incentive regulation, |
| • | industry structure, |
| • | purchased gas adjustment provisions, |
| • | rate design structure and implementation, |
| • | capital structures established for rate-setting purposes, |
| • | regulatory assets, |
| • | non-regulated and affiliate transactions, |
| • | franchise renewals, |
| • | authorization to operate facilities, |
| • | environmental or safety matters, including the potential impact of legislative and regulatory actions related to climate change and pipeline safety and security, |
| • | taxes, |
| • | pension and other postretirement benefit liabilities and funding obligations, or |
| • | accounting standards; |
| • | The results of litigation; |
| • | The availability of and access to, in general, funds to meet our debt obligations prior to or when they become due and to fund our operations and necessary capital expenditures, either through (i) cash on hand, (ii) operating cash flow, or (iii) access to the capital markets; |
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| • | Retention of, ability to attract, ability to collect from, and conservation efforts of, customers; |
| • | Our ability to comply with all covenants in our indentures and credit facilities, any violations of which, if not cured in a timely manner, could trigger a default of our obligation; |
| • | Energy commodity market conditions; |
| • | Discovery of material weakness in internal controls; |
| • | The disruption, failure or malfunction of our operational and information technology systems, including due to cyberattacks; and |
| • | Employee workforce issues, including but not limited to labor disputes, the inability to attract and retain key talent, and future wage and employee benefit costs, including costs resulting from changes in discount rates and returns on benefit plan assets. |
You are urged to consider the risks, uncertainties and other factors that could affect our business as described in this prospectus and the information incorporated by reference herein. All forward-looking statements made or incorporated by reference in this prospectus rely upon the safe harbor protections provided under the Private Securities Litigation Reform Act of 1995. We do not, by including this statement, assume any obligation to review or revise any particular forward-looking statement in light of future events.
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We are the largest natural gas distribution utility in Missouri. We serve approximately 1.2 million residential, commercial and industrial customers in eastern and western Missouri, including the St. Louis and Kansas City regions). Our utility operations are subject to the jurisdiction of the Missouri Public Service Commission. Generally, we sell gas for house heating, certain other household uses, and we sell and transport gas for commercial and industrial space heating and other industrial uses. We employed 2,450 persons at March 31, 2022.
For the fiscal year ended September 30, 2021, we had utility operating revenues of $1,516.6 million. For the six months ended March 31, 2022, we had utility operating revenues of $919.1 million, approximately 84% of which came from sales to residential customers and 10% from sales to commercial and industrial customers. The balance of our utility operating revenues is primarily attributable to our on-system transportation services and our off-system sales, and capacity release services. Due to the seasonal nature of our business, earnings are typically concentrated in the November through April period, which generally corresponds with the heating season. We are a wholly owned subsidiary of Spire Inc. (NYSE: SR), a holding company, and we contributed approximately 68% and 64% of Spire’s consolidated operating revenues for the fiscal year ended September 30, 2021 and the six months ended March 31, 2022, respectively.
Our principal offices are located at 700 Market Street, St. Louis, Missouri, 63101 and our telephone number is 314-342-0500.
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Unless we state otherwise in any applicable prospectus supplement, we intend to use the net proceeds from any sale of the offered securities for general corporate purposes, including for working capital, repaying indebtedness, and funding capital projects and acquisitions.
We may set forth additional information on the use of net proceeds from a particular offering of securities in the prospectus supplement relating to that offering.
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DESCRIPTION OF FIRST MORTGAGE BONDS
General
The following description sets forth certain general terms and provisions of first mortgage bonds that we may offer by this prospectus. We may issue first mortgage bonds from time to time in one or more series. Each series of first mortgage bonds will be issued under our Mortgage and Deed of Trust, dated as of February 1, 1945, to UMB Bank & Trust, N.A., successor trustee, as amended and supplemented by supplemental indentures and as may be further amended and supplemented from time to time, collectively referred to as our “mortgage.” Our mortgage is incorporated by reference as an exhibit to the registration statement of which this prospectus is a part, and you should read our mortgage for provisions that may be important to you. Our mortgage has been qualified under the Trust Indenture Act of 1939, as amended.
The prospectus supplement relating to any series of first mortgage bonds being offered will include specific terms of that offering, including:
| • | the date or dates on which the principal of the first mortgage bonds will be payable and how it will be paid; |
| • | the rate or rates at which the first mortgage bonds will bear interest; |
| • | the date or dates from which interest on the first mortgage bonds will accrue, the interest payment dates on which interest will be paid, and the record dates for interest payments; |
| • | the place for payment and for the registration and transfer of the first mortgage bonds; |
| • | any date or dates on which, and the price or prices at which, the first mortgage bonds may be redeemed at our option and any restrictions on such redemption; |
| • | any sinking fund or other provisions or options held by holders of first mortgage bonds that would obligate us to repurchase or otherwise redeem the first mortgage bonds; and |
| • | any other terms of the first mortgage bonds not inconsistent with terms of our mortgage. |
Unless otherwise indicated in the applicable prospectus supplement, the first mortgage bonds will be issued in denominations of $1,000 and integral multiples thereof. At March 31, 2022, we had outstanding $1,648 million principal amount of first mortgage bonds issued under our mortgage.
Payment and Paying Agent
Principal, interest and any premium on first mortgage bonds issued in the form of global securities will be paid as described in the applicable prospectus supplement.
Unless otherwise specified in the applicable prospectus supplement, interest on the first mortgage bonds payable on the applicable interest payment date will be paid to the person in whose name the first mortgage bond is registered at the close of business on the record date for the interest payment date. However, if we default in the payment of interest on any first mortgage bond, the defaulted interest will be paid to the person in whose name the first mortgage bond is registered on the date of payment of such defaulted interest.
Unless otherwise specified in the applicable prospectus supplement, principal, interest and any premium on first mortgage bonds in certificated form will be payable at the corporate trust office of the trustee as paying agent for us, or we may direct payment of interest by checks mailed to the registered owners of the first mortgage bonds. We may change the place of payment on the first mortgage bonds, may appoint one or more additional paying agents (including us) and may remove any paying agent, all at our discretion.
Book-Entry Securities
We may issue some or all of the first mortgage bonds as book-entry securities. Any such book-entry securities will be represented by one or more fully registered global certificates. We will register each global
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security with or on behalf of a securities depositary identified in the applicable prospectus supplement. Each global security will be deposited with the securities depositary or its nominee or a custodian for the securities depositary.
Registration and Transfer
Unless otherwise indicated in the applicable prospectus supplement, first mortgage bonds will initially be issued in the form of one or more global securities, in registered form, without coupons, as described above under “Book-Entry Securities.” Except as described in the applicable prospectus supplement, owners of beneficial interests in a global security will not be entitled to have first mortgage bonds registered in their names, will not be entitled to receive physical delivery of any first mortgage bonds and will not be considered the registered holders of the bonds under our mortgage. First mortgage bonds may be exchanged for other first mortgage bonds of the same series in any authorized denominations for a like aggregate principal amount. Our mortgage allows us at our option to charge up to two dollars per first mortgage bond for a transfer or exchange as well as a sum sufficient to cover any applicable taxes or other governmental charges in either case. However, we are not required to make transfers or exchanges of first mortgage bonds:
| • | for a period of ten days prior to an interest payment date; |
| • | for a period of fifteen days prior to the selection of first mortgage bonds for redemption; or |
| • | of any first mortgage bonds called or selected for redemption in full. |
Security
Our mortgage creates a continuing lien to secure the payment of the principal of, and interest and any premium on, all first mortgage bonds issued under our mortgage, which are in all respects equally and ratably secured without preference, priority or distinction. The lien of our mortgage covers substantially all of our properties (real, personal and mixed) and franchises, whether now owned or hereafter acquired, other than cash, shares of stock, obligations (including bonds, notes and other securities), property acquired for the purpose of sale or resale in the usual course of business or for consumption in the operation of our properties, construction equipment acquired for temporary use, vehicles and automobiles, and all judgments, accounts and choses in action.
Our mortgage allows certain permitted liens and encumbrances:
| • | 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 we claim title thereto; |
| • | with respect to property acquired since the execution of our mortgage, all defects and limitations of title and all other encumbrances existing at the time of such acquisition, including any purchase money mortgage or lien created at the time of acquisition; |
| • | defects of title with respect to certain real estate of minor importance acquired by us since 1945; |
| • | liens and deeds of trust on our leasehold estate at our general offices; and |
| • | excepted encumbrances as defined in our mortgage. |
Satisfaction and Discharge
We will be discharged from our obligations on the first mortgage bonds, or any portion of the principal amount of the first mortgage bonds, if we irrevocably deposit with the trustee sufficient cash to pay the principal, or portion of principal, interest and any other sums when due on the first mortgage bonds at their maturity, stated maturity date or redemption.
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Our mortgage will be deemed satisfied and discharged when no first mortgage bonds issued under our mortgage remain outstanding and when we have paid all other sums payable by us under our mortgage.
Consolidation, Merger and Sale of Assets
Our mortgage does not prevent our consolidation with or merger into another corporation or our sale or lease of all or substantially all of the mortgaged property to a corporation provided:
| • | we effect the transaction so as to preserve and not impair the lien of our mortgage; |
| • | any lease is subject to immediate termination by (a) us or the trustee at any time during a completed default under our mortgage or (b) a purchaser of the property at a sale under our mortgage; and |
| • | the payment of the principal and interest of all first mortgage bonds issued under our mortgage and the performance and observance of all of our covenants and conditions in our mortgage are expressly assumed by the successor corporation. |
The successor corporation may exercise our same powers and rights under our mortgage. Our mortgage will not become a lien upon any of the property or franchises of the successor corporation, except:
| • | property which the successor corporation may acquire or construct which becomes an integral part of the property covered by our mortgage; |
| • | property used by the successor corporation as the basis under our mortgage for the issuance of first mortgage bonds; or |
| • | franchises, repairs and additional property as may be acquired, made or constructed by the successor corporation (a) to maintain, renew and preserve the mortgaged property or (b) in pursuance of some covenant or agreement under our mortgage. |
Our mortgage does not restrict transactions in which we are the surviving entity.
Eminent Domain Provision
If any governmental body or agency exercises any right that it may have through eminent domain or otherwise to purchase or designate a purchaser of all or substantially all of the mortgaged property, or if we sell all or substantially all of the mortgaged property to any governmental body or agency, then we shall have the right to redeem all first mortgage bonds outstanding under our mortgage. The first mortgage bonds would be redeemed at their principal amounts plus accrued interest to the date of redemption together with any premiums as may be required. We covenant that in any of such events we will deposit with the trustee an amount in cash as needed so that all monies then held by the trustee shall be sufficient to redeem all first mortgage bonds outstanding under our mortgage. The trustee will then take such steps as may be necessary to effect the redemption. The trustee will use the deposited monies for the redemption. If we fail to take any steps necessary to effect the prompt redemption of the first mortgage bonds, the trustee shall have the power, in our name or otherwise, to take such steps. The trustee, however, is under no obligation to take any such steps unless the amount of cash on deposit with the trustee shall be sufficient to effect the redemption.
Dividend Restriction Covenant
Our mortgage contains several restrictions on our ability to pay dividends on our common stock. Under the most restrictive of these provisions, we may not declare or pay any dividend if, after the dividend, the aggregate net amount spent for all dividends after September 30, 1953 would exceed a maximum amount determined by using a formula in our mortgage, which is described below. This provision does not, however, restrict dividends paid in the form of our common stock. In addition, the amount we have spent on the acquisition or retirement of our common stock since that date is added to, and the amount received from the issuance of new stock is
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deducted from, the aggregate amount spent for dividends. Under our mortgage’s formula, the maximum amount is the sum of $8 million plus our earnings applicable to common stock (adjusted for stock repurchases and issuances) for the period from September 30, 1953, to the last day of the quarter before the declarations or payment date for the dividend. As of March 31, 2022, the amount under our mortgage’s formula that was available to pay dividends was $1,580 million.
Issuance of Additional First Mortgage Bonds
The aggregate amount of first mortgage bonds that may be issued under our mortgage is unlimited. Our board of directors shall determine, for each series of first mortgage bonds, denominations, maturity, interest rate, redemption or sinking fund provisions, and other terms. Sinking fund, redemption or maintenance and improvement fund provisions for first mortgage bonds of one series may be inapplicable to first mortgage bonds of another series.
Our mortgage permits the three different types of issuances of additional first mortgage bonds: (1) on the basis of unfunded property additions not subject to a prior lien, in a principal amount not exceeding 60% of the cost or fair value thereof, whichever is less; (2) on the basis of retired first mortgage bonds previously outstanding and not made the basis of certain credits under other provisions of our mortgage; and (3) on the basis of cash deposited with the trustee, which we may later withdraw after substituting either property additions or retired first mortgage bonds.
At March 31, 2022, approximately $961 million principal amount of first mortgage bonds were issuable under clause (1) above and no first mortgage bonds were issuable under clause (2) above.
Notwithstanding the foregoing, additional first mortgage bonds generally may not be issued unless our net earnings for 12 consecutive months within the 15 months preceding such issuance is equal to or greater than 2 1⁄4 times the annual interest charges on all first mortgage bonds and prior lien bonds then outstanding and then being issued. We do not need to comply with the earnings test under clause (2) above if the interest attributable to the retired bonds was included in a net earnings certificate delivered to the trustee and the interest rate on the new first mortgage bonds is less than the interest rate of the retired bonds.
Release and Substitution of Property
Unless we are in default under our mortgage, property may be released against cash or, to a limited extent, purchase money mortgages, property additions, and the waiver of the right to issue first mortgage bonds. Any cash deposited may be withdrawn upon the basis of property additions and the waiver of the right to issue first mortgage bonds on the basis of property additions. Our mortgage contains special provisions with respect to pledged prior lien bonds.
Events of Default and Remedies
A “completed default” under our mortgage means any of the following:
| • | failure to pay the principal of any first mortgage bond when due, whether at its stated maturity or by declaration, redemption or otherwise; |
| • | failure to pay interest on any first mortgage bond within 60 days of when it is due; |
| • | failure to pay any interest on or principal of any outstanding prior lien bonds within any applicable grace period; |
| • | certain events involving our bankruptcy, insolvency or reorganization for a period of 90 days or more or our written admission of our inability to pay our debts generally as they mature; or |
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| • | failure to perform any covenant, agreement or condition in our mortgage within 90 days of notice thereof to us from the trustee. |
Our mortgage provides that if a completed default happens, the trustee may, and upon written request of the holders of a majority in principal amount of the first mortgage bonds then outstanding will, declare the principal and accrued interest then owing immediately due and payable. However, after that declaration but before any sale under that declaration, the holders of a majority in principal amount of all outstanding first mortgage bonds may, under certain circumstances, rescind and annul the declaration if all agreements with respect to the completed default have been fully performed and all interest in arrears and expenses and charges have been paid. Upon the occurrence of a completed default, the trustee may take possession of, manage, and operate the property. In addition, the trustee may sell all of the property, or those parcels as the holders of a majority in principal amount of the first mortgage bonds outstanding may determine.
Subject to the provisions of our mortgage relating to the duties of the trustee, if an event of a completed default occurs and continues, the trustee is under no obligation to exercise any of its rights or powers under our mortgage unless the holders of a majority in principal amount of the first mortgage bonds then outstanding have requested the trustee to take action and have adequately indemnified the trustee. In addition, the holders of a majority in principal amount of the first mortgage bonds then outstanding have the right to direct the time, method, and place of conducting any proceedings for any remedy available to the trustee and to exercise any trust or power conferred on the trustee.
Our mortgage provides that the trustee, within 90 days after the occurrence of a completed default, will give notice to the holders of the default, unless the default is cured before the giving of the notice. In the case of a default in the payment of the principal of or interest on any of the first mortgage bonds, however, the trustee is protected in withholding notice if it determines in good faith that the withholding of the notice is in the interest of the holders of first mortgage bonds.
Holders of first mortgage bonds have no right to institute any suit, action or proceeding in equity or at law for the foreclosure of our mortgage, for the execution of any trust, for the appointment of a receiver or any other remedy unless:
| • | prior notice is given to the trustee of a completed default; |
| • | holders of at least 25% of the first mortgage bonds then outstanding request the trustee, and offer it reasonable opportunity, to proceed; |
| • | offer the trustee adequate security and indemnity; and |
| • | the trustee within 60 days of the notice fails or refuses to institute such action. |
Our mortgage also provides that a court in its discretion may require, in any suit to enforce any provision of our mortgage or against the trustee, the filing by the party filing the suit of an undertaking to pay the costs of the suit. The court may also assess reasonable costs including attorneys’ fees against any party to the suit. These provisions do not apply, however, to a suit filed by the trustee or any bondholder for the payment of principal or interest on any first mortgage bond on or after the stated due date of the first mortgage bond.
Compliance Certificates
We are required to furnish annually to the trustee a certificate as to compliance with all conditions and covenants under our mortgage. We must provide similar certificates to the trustee upon each release of property from the lien of our mortgage and upon each issuance of additional first mortgage bonds. Further, our mortgage requires us to deliver a similar certificate to the trustee each time we declare a dividend, make any other payment or distribution on our capital stock, or purchase, redeem, acquire or retire any shares of our capital stock.
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Trustee
UMB Bank & Trust, N.A., is the trustee under our mortgage. Affiliates of this bank have provided in the past to us and our parent, Spire Inc., and may provide from time to time in the future certain commercial banking, investment banking and other services for us and our affiliates in the ordinary course of their business, for which they have received and may continue to receive customary fees and commissions.
Modification of Mortgage
Our mortgage contains provisions permitting modification of our mortgage by consent of the holders of two-thirds in principal amount of all first mortgage bonds whose rights are affected by such modification. However, no modification may:
| • | extend the maturity of the principal of any first mortgage bonds, |
| • | reduce the rate of interest on any first mortgage bond, |
| • | modify any other term of payment of principal and interest, |
| • | deprive to any holder of a first mortgage bond the mortgage lien, |
| • | create a lien on the mortgaged property ranking equal or prior to the mortgage lien, or |
| • | reduce the percentage required for modification, |
without the consent of any holder of first mortgage bonds affected by the modification. Holders of at least three-fourths in principal of the first mortgage bonds outstanding (including first mortgage bonds offered by this prospectus), however, may consent to the postponement of any interest payment for a period not exceeding three years from its due date.
Reservation of Rights
In (a) the Thirty-second Supplemental Indenture dated as of August 13, 2013 for our first mortgage bonds 2.000% Series due August 15, 2018, 3.400% Series due August 15, 2023 and 4.625% Series due August 15, 2043 issued on August 13, 2013, (b) the Thirty-fifth Supplemental Indenture dated as of May 20, 2021 for our first mortgage bonds 3.300% Series due June 1, 2051 and (c) the Thirty-sixth Supplemental Indenture dated as of December 7, 2021 for our first mortgage bonds, Floating Rate Series due December 2, 2024 (collectively, the “Applicable Supplemental Indentures”), we have reserved the right to amend or supplement our mortgage without any consent or other action of the holders of any first mortgage bonds of such or any subsequent series of first mortgage bonds, including our first mortgage bonds offered hereby:
| • | to provide that any “Treasurer’s certificate,” “engineer’s certificate” and “net earnings certificate” may be executed by additional officers of the Company; |
| • | to provide for an increase in the bonding ratio of property additions to 75% from 60% such that first mortgage bonds may be authenticated upon the basis of property additions for a principal amount not exceeding 75% of the balance of the cost or fair value (whichever is less) of such property additions as calculated in accordance with the mortgage and to make related conforming changes in the mortgage; |
| • | to provide for certain exclusions from the calculation of operating expenses in determining the net earnings of the Company for any net earnings certificate; |
| • | to provide information for the delivery of notices to the trustee and the Company; |
| • | to permit the Company to provide notice of redemption with respect to a series of first mortgage bonds on a conditional basis; |
| • | to permit the Company to release property from the lien of the mortgage; provided that the aggregate fair value of such property, together with all other property released pursuant to this provision in a |
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| given calendar year, does not exceed the greater of $20 million or 3% of the aggregate principal amount of first mortgage bonds outstanding and that the Company (i) deposits with the trustee an amount in cash equal to 75% of the aggregate cost or fair value (whichever is less) of any released properties that constitute funded property or (ii) identifies property additions not constituting funded property to take the place of the funded property being released, which property additions shall thereafter constitute funded property, and the Company shall waive the right to use such property additions as the basis for the authentication and delivery of bonds; |
| • | to provide that a corporation may succeed the trustee based on a transfer of substantially all of the corporate trust business of the trustee to such corporation; |
| • | to increase to 25% from 15% the minimum holders in principal amount of first mortgage bonds outstanding necessary to request that the trustee call a meeting of bondholders; |
| • | to provide that, for any meeting of bondholders, the holders of not less than a majority in principal amount of first mortgage bonds outstanding shall constitute a quorum; |
| • | to provide that any modification or alteration of the mortgage shall be adopted by the affirmative vote of the holders of at least a majority in principal amount of first mortgage bonds outstanding entitled to vote on such matter; |
| • | to correct or amplify the description of property subject to the lien of the mortgage, to better assure, convey and confirm to the trustee any property required to be subject to the mortgage or to subject additional property to the lien of the mortgage; |
| • | to change or eliminate any provision of the mortgage or to add any new provision to the mortgage provided that the change, elimination or addition must not adversely affect the interests of the holders of the first mortgage bonds of any series; |
| • | to provide that our mortgage shall be deemed to be amended to comply with the Trust Indenture Act of 1939, as in effect from time to time; and |
| • | to make explicit that the mortgage shall be governed by and construed in accordance with the laws of the State of Missouri, subject to certain exceptions. |
The amendments and supplements to the mortgage described above are intended to update the mortgage to reflect similar provisions in more recent first mortgage bond indentures of other comparable issuers. Each holder of first mortgage bonds issued pursuant to each of the Applicable Supplemental Indentures, and each holder of our first mortgage bonds issued thereafter, by its acquisition of an interest in such bonds, will irrevocably (a) consent to the amendments and supplements to the mortgage described above, whether as a condition precedent to the authentication and delivery of such bonds or otherwise, without any other or further action by any holder of such bonds, and (b) designate the Company, and its successors, as its proxy with irrevocable instructions to vote and deliver written consents on behalf of such holder in favor of such amendment or supplement at any meeting of bondholders, in response to any consent solicitation or otherwise. Such amendments and supplements would be made with the approval or consent of at least two-thirds in principal amount of all first mortgage bonds then outstanding.
Maintenance and Improvement Fund
First mortgage bonds issued on and after June 9, 2006 are not, and our first mortgage bonds offered hereby will not be, entitled to the benefits of a maintenance and improvement fund. However, so long as the outstanding series of first mortgage bonds created prior to June 9, 2006 remain outstanding (i.e., our first mortgage bonds 6% Series due May 1, 2034, 7.9% Series due September 15, 2030 and 7.0% Series due June 1, 2029), we will be required to comply with the maintenance and improvement fund requirements. Those requirements include
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paying annually to the trustee cash equal to 23⁄4% of the average amount of our gross property account less certain credits. These credits consist of:
| • | credit for ordinary maintenance and repairs to the mortgaged property in the calendar year in question; |
| • | credit for expenditures since August 31, 1942 for property additions that have not been made the basis for the issuance of first mortgage bonds, for a prior credit or as to which the right to have first mortgage bonds authenticated has been waived (this credit is limited to the cost of mortgaged property retired subsequent to August 31, 1942); |
| • | credit for property additions that could be the basis for the issuance of first mortgage bonds, but which first mortgage bonds have not yet been issued; |
| • | credit for outstanding first mortgage bonds surrendered to the trustee for cancellation; and |
| • | credit up to $2,000,000 for the payment of certain debentures that were issued in 1945 and have now been paid. |
If the credits taken exceed the amount of the annual payment that would otherwise be required, the excess credits may be carried forward from year to year. We may choose to use these excess credits or to deposit cash into the fund. Any cash so deposited may be withdrawn on the basis of those credits or used to redeem first mortgage bonds. Any cash not so withdrawn or used within three years from the receipt thereof by the trustee shall be used by the trustee to redeem first mortgage bonds. The credit balance that is shown on the most recent certificate, which was filed in 2022 for the calendar year 2021 and may, therefore, be carried forward, is $19.3 million.
DESCRIPTION OF UNSECURED DEBT SECURITIES
General
The following description sets forth certain general terms and provisions of unsecured debt securities that we may offer by this prospectus. We may issue debt securities from time to time in one or more series. Each series of debt securities will be issued under our indenture between us and the trustee. The form of our indenture is incorporated by reference as an exhibit to the registration statement of which this prospectus is a part, and you should read our indenture for provisions that may be important to you. Our indenture will be qualified under the Trust Indenture Act of 1939, as amended.
The debt securities will be our direct senior, unsecured and unsubordinated general obligations. The debt securities will rank equally with any of our other senior, unsecured and unsubordinated debt. As of March 31, 2022, we had no unsecured debt outstanding and $1,648 million principal amount of first mortgage bonds issued and outstanding under our mortgage. Our indenture does not restrict our ability to issue additional first mortgage bonds under our mortgage.
The prospectus supplement relating to any series of debt securities being offered will include specific terms relating to that offering, including:
| • | the title of the debt securities; |
| • | the total principal amount of the debt securities; |
| • | the date or dates on which the principal of the debt securities will be payable and how it will be paid; |
| • | the rate or rates at which the debt securities will bear interest, or how such rate or rates will be determined; |
| • | the date or dates from which interest on the debt securities will accrue, the interest payment dates on which interest will be paid, and the record dates for interest payments; |
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| • | any right to extend the interest payment periods for the debt securities and the duration of the extension; |
| • | the percentage, if less than 100%, of the principal amount of the debt securities that will be payable if the maturity of the debt securities is accelerated; |
| • | any date or dates on which, and the price or prices at which, the debt securities may be redeemed at our option and any restrictions on such redemptions; |
| • | any sinking fund or other provisions or options held by holders of debt securities that would obligate us to repurchase or otherwise redeem the debt securities; |
| • | any changes or additions to the events of default under our indenture or changes or additions to our covenants under our indenture; |
| • | if the debt securities will be issued in denominations other than $1,000; |
| • | if payments on the debt securities may be made in a currency or currencies other than United States dollars; |
| • | any convertible feature or options regarding the debt securities; |
| • | any rights or duties of another person to assume our obligations with respect to the debt securities; |
| • | any collateral, security, assurance or guarantee for the debt securities; and |
| • | any other terms of the debt securities not inconsistent with terms of our indenture. |
Our indenture does not limit the principal amount of debt securities that may be issued. Our indenture allows debt securities to be issued up to the principal amount that may be authorized by us.
Debt securities may be sold at a discount below their principal amount. United States federal income tax considerations applicable to debt securities sold at an original issue discount may be described in the applicable prospectus supplement. In addition, certain United States federal income tax or other considerations applicable to any debt securities that are denominated or payable in a currency or currency unit other than United States dollars may be described in the applicable prospectus supplement.
Except as may otherwise be described in the applicable prospectus supplement, the covenants contained in our indenture will not afford holders of debt securities protection in the event of a highly leveraged or similar transaction involving us or in the event of a change of control.
Payment and Paying Agents
Except as may be provided in the applicable prospectus supplement, interest, if any, on each debt security payable on each interest payment date will be paid to the person in whose name such debt security is registered as of the close of business on the regular record date for the interest payment date. However, interest payable at maturity will be paid to the person to whom the principal is paid. If there has been a default in the payment of interest on any debt security, the defaulted interest may be paid to the holder of such debt security as of the close of business on a date to be fixed by the trustee, which will be between 10 and 15 days prior to the date proposed by us for payment of such defaulted interest or in any other manner permitted by any securities exchange on which such debt security may be listed, if the trustee finds it practicable.
Unless otherwise specified in the applicable prospectus supplement, principal of, and premium, if any, and interest, if any, on the debt securities at maturity will be payable upon presentation of the debt securities at the trustee’s corporate trust office. We may change the place of payment on the debt securities, may appoint one or more additional paying agents (including us) and may remove any paying agent, all at our discretion.
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Registration and Transfer
Unless otherwise specified in the applicable prospectus supplement, the transfer of debt securities may be registered, and debt securities may be exchanged for other debt securities of the same series or tranche, of authorized denominations and with the same terms and principal amount, at the trustee’s corporate trust office. We may change the place for registration of transfer and exchange of the debt securities and may designate additional places for such registration and exchange. Unless otherwise provided in the applicable prospectus supplement, no service charge will be made for any transfer or exchange of the debt securities. However, we may require payment to cover any tax or other governmental charge that may be imposed. We will not be required to execute or to provide for the registration of transfer of, or the exchange of, (a) any debt security during a period of 15 days prior to giving any notice of redemption or (b) any debt security selected for redemption except the unredeemed portion of any debt security being redeemed in part.
Book-Entry Securities
We may issue some or all of the debt securities as book-entry securities. Any such book-entry securities will be represented by one or more fully registered global certificates. We will register each global security with or on behalf of a securities depositary identified in the applicable prospectus supplement. Each global security will be deposited with the securities depositary or its nominee or a custodian for the securities depositary.
Defeasance and Discharge
Unless the applicable prospectus supplement states otherwise, the indenture, with respect to any and all series of debt securities, will be discharged and canceled (except for certain specified surviving obligations) if, among other things, we pay, in full, the principal of (and premium, if any) and interest on all series of the debt securities and all other sums required under the indenture and we deliver a certificate to the trustee stating that we have complied with all conditions precedent relating to the satisfaction and discharge of the indenture.
In addition, we may at any time terminate certain of our obligations under the indenture with respect to the debt securities of any series or terminate our obligations under certain covenants set forth in the indenture (after which any omission to comply with such obligations shall not constitute a default with respect to the debt securities) if we irrevocably deposit in trust with the trustee for the debt securities, for the benefit of the holders, cash or United States government obligations, or a combination thereof, in such amounts as will be sufficient to pay the principal of and premium and interest, if any, on the dates such payments are due in accordance with the terms of the indenture and the debt securities; provided that such funds shall have been on deposit with such trustee for a period of at least 90 days, or such trustee shall have received an opinion of counsel to the effect that payments to holders with such monies as proceeds are not recoverable as a preference under any applicable United States federal or state law relating to bankruptcy, insolvency, receivership, winding-up, liquidation, reorganization or relief of debtors. We must also comply with certain other conditions, including (under certain circumstances) the delivery of an opinion of counsel to the effect that the holder of the debt securities will not realize income, gain or loss for federal income tax purposes as a result of such defeasance. The opinion of counsel may be required to be accompanied by a ruling of the Internal Revenue Service issued to us or based on a change in law or regulation occurring after the date of the indenture.
Consolidation, Merger, and Sale of Assets
Under the terms of our indenture, we may not consolidate with or merge into any other entity or convey, transfer or lease our properties and assets substantially as an entirety to any entity, unless:
| • | the surviving or successor entity is organized and validly existing under the laws of any domestic jurisdiction and it expressly assumes our obligations on all debt securities and under our indenture; |
| • | immediately after giving effect to the transaction, no event of default and no event which, after notice or lapse of time or both, would become an event of default shall have occurred and be continuing; and |
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| • | we shall have delivered to the trustee an officer’s certificate and an opinion of counsel as to compliance with the foregoing. |
The terms of our indenture do not restrict us in a merger in which we are the surviving entity.
Events of Default
“Event of default” when used in our indenture with respect to any series of debt securities, means any of the following:
| • | failure to pay interest, if any, on any debt security of the applicable series for 60 days after it is due; |
| • | failure to pay the principal of or premium, if any, on any debt security of the applicable series within three business days after its maturity; |
| • | failure to perform any other covenant in our indenture, other than a covenant that does not relate to that series of debt securities, that continues for 90 days after we receive written notice from the trustee, or we and the trustee receive a written notice from 33% of the holders of the debt securities of that series; however, the trustee or the trustee and the holders of such principal amount of debt securities of this series can agree to an extension of the 90-day period and that an agreement to extend will be automatically deemed to occur if we are diligently pursuing action to correct the default; |
| • | certain events involving our bankruptcy, insolvency or reorganization; or |
| • | any other event of default included in any supplemental indenture or officer’s certificate for a specific series of debt securities. |
The trustee may withhold notice to the holders of debt securities of any default, except default in the payment of principal, premium or interest, if it considers such withholding of notice to be in the interests of the holders. An event of default for a particular series of debt securities does not necessarily constitute an event of default for any other series of debt securities issued under our indenture.
Remedies
If an event of default with respect to fewer than all the series of debt securities occurs and continues, either the trustee or the holders of at least 33% in principal amount of the debt securities of such series may declare the entire principal amount of all the debt securities of such series, together with accrued interest, to be due and payable immediately. However, if the event of default is applicable to all outstanding debt securities under our indenture, only the trustee or holders of at least 33% in principal amount of all outstanding debt securities of all series, voting as one class, and not the holders of any one series, may make such a declaration of acceleration.
At any time after a declaration of acceleration with respect to the debt securities of any series has been made and before a judgment or decree for payment of the money due has been obtained, the event of default giving rise to such declaration of acceleration will be considered waived, and such declaration and its consequences will be considered rescinded and annulled, if:
| • | we have paid or deposited with the trustee a sum sufficient to pay: |
| • | all overdue interest, if any, on all debt securities of the series; |
| • | the principal of, and premium, if any, on, any debt securities of the series which have otherwise become due and interest, if any, that is currently due; |
| • | interest, if any, on overdue interest; and |
| • | all amounts due to the trustee under our indenture; or |
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| • | any other event of default with respect to the debt securities of that series has been cured or waived as provided in our indenture. |
There is no automatic acceleration, even in the event of our bankruptcy, insolvency or reorganization.
Other than its duties in case of an event of default, the trustee is not obligated to exercise any of its rights or powers under our indenture at the request, order or direction of any of the holders, unless the holders offer the trustee a reasonable indemnity. If they provide a reasonable indemnity, the holders of a majority in principal amount of any series of debt securities will have the right to direct the time, method and place of conducting any proceeding for any remedy available to the trustee, or exercising any power conferred upon the trustee. However, if the event of default relates to more than one series, only the holders of a majority in aggregate principal amount of all affected series will have the right to give this direction. The trustee is not obligated to comply with directions that conflict with law or other provisions of our indenture.
No holder of debt securities of any series will have any right to institute any proceeding under our indenture, or to exercise any remedy under our indenture, unless:
| • | the holder has previously given to the trustee written notice of a continuing event of default; |
| • | the holders of a majority in aggregate principal amount of the outstanding debt securities of all series in respect of which an event of default shall have occurred and be continuing have made a written request to the trustee and have offered reasonable indemnity to the trustee to institute proceedings; and |
| • | the trustee has failed to institute any proceeding for 60 days after notice and has not received any direction inconsistent with the written request of holders during that period. |
However, such limitations do not apply to a suit by a holder of a debt security for payment of the principal of, or premium, if any, or interest, if any, on, a debt security on or after the applicable due date.
Annual Notice to Trustee
We will provide to the trustee an annual statement by an appropriate officer as to our compliance with all conditions and covenants under our indenture.
Modification and Waiver
We and the trustee may enter into one or more supplemental indentures without the consent of any holder of debt securities for any of the following purposes:
| • | to evidence the assumption by any permitted successor of our covenants in our indenture and in the debt securities; |
| • | to add additional covenants or to surrender any of our rights or powers under our indenture; |
| • | to add additional events of default; |
| • | to change, eliminate, or add any provision to our indenture; provided, however, if the change, elimination, or addition will adversely affect the interests of the holders of debt securities of any series in any material respect, such change, elimination, or addition will become effective only: |
| • | when the consent of the holders of debt securities of such series has been obtained in accordance with our indenture; or |
| • | when no debt securities of the affected series remain outstanding under our indenture; |
| • | to provide collateral security for all but not part of the debt securities; |
| • | to establish the form or terms of debt securities of any other series as permitted by our indenture; |
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| • | to provide for the authentication and delivery of bearer securities and coupons attached thereto; |
| • | to evidence and provide for the acceptance of appointment of a successor trustee; |
| • | to provide for the procedures required for use of a noncertificated system of registration for the debt securities of all or any series; |
| • | to change any place where principal, premium, if any, and interest shall be payable, debt securities may be surrendered for registration of transfer or exchange and notices to us may be served; or |
| • | to cure any ambiguity or inconsistency or to make any other provisions with respect to matters and questions arising under our indenture, provided that such action shall not adversely affect the interests of the holders of debt securities of any series in any material respect. |
The holders of at least a majority in aggregate principal amount of the debt securities of all series then outstanding may waive our compliance with certain restrictive provisions of our indenture. The holders of not less than a majority in principal amount of the outstanding debt securities of any series may waive any past default under our indenture with respect to that series, except a default in the payment of principal, premium, if any, or interest and certain covenants and provisions of our indenture that cannot be modified or be amended without the consent of the holder of each outstanding debt security of the series affected.
If the Trust Indenture Act of 1939 is amended after the date of our indenture in such a way as to require changes to our indenture, our indenture will be deemed to be amended so as to conform to such amendment of the Trust Indenture Act of 1939. We and the trustee may, without the consent of any holders, enter into one or more supplemental indentures to evidence such an amendment.
The consent of the holders of a majority in aggregate principal amount of the debt securities of all series then outstanding is required for all other modifications to our indenture. However, if less than all of the series of debt securities outstanding are directly affected by a proposed supplemental indenture, then the consent only of the holders of a majority in aggregate principal amount of all series that are directly affected will be required. No such amendment or modification may:
| • | change the stated maturity of the principal of, or any installment of principal of or interest on, any debt security, or reduce the principal amount of any debt security or its rate of interest or change the method of calculating such interest rate or reduce any premium payable upon redemption, or change the currency in which payments are made, or impair the right to institute suit for the enforcement of any payment on or after the stated maturity of any debt security, without the consent of the holder; |
| • | reduce the percentage in principal amount of the outstanding debt securities of any series whose consent is required for any supplemental indenture or any waiver of compliance with a provision of our indenture or any default thereunder and its consequences, or reduce the requirements for quorum or voting, without the consent of all the holders of the series; or |
| • | modify certain of the provisions of our indenture relating to supplemental indentures, waivers of certain covenants and waiver of past defaults with respect to the debt securities of any series, without the consent of the holder of each outstanding debt security affected thereby. |
A supplemental indenture that changes our indenture solely for the benefit of one or more particular series of debt securities, or modifies the rights of the holders of debt securities of one or more series, will not affect the rights under our indenture of the holders of the debt securities of any other series.
Our indenture provides that debt securities owned by us or anyone else required to make payment on the debt securities shall be disregarded and considered not to be outstanding in determining whether the required holders have given a request or consent.
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We may fix in advance a record date to determine the required number of holders entitled to give any request, demand, authorization, direction, notice, consent, waiver or other act of the holders, but we shall have no obligation to do so. If a record date is fixed for that purpose, the request, demand, authorization, direction, notice, consent, waiver or other act of the holders may be given before or after that record date, but only the holders of record at the close of business on that record date will be considered holders for the purposes of determining whether holders of the required percentage of the outstanding debt securities have authorized or agreed or consented to the request, demand, authorization, direction, notice, consent, waiver or other act of the holders. For that purpose, the outstanding debt securities shall be computed as of the record date. Any request, demand, authorization, direction, notice, consent, election, waiver or other act of a holder shall bind every future holder of the same debt securities and the holder of every debt security issued upon the registration of transfer of or in exchange of those debt securities. A transferee will be bound by acts of the trustee or us taken in reliance upon an act of holders whether or not notation of that action is made upon that debt security.
Notices
Notices to holders of debt securities will be given by mail to the addresses of the holders as they may appear in the security register for the debt securities.
Title
We, the trustee, and any agent of us or the trustee, may treat the person in whose name debt securities are registered as the absolute owner of those debt securities, whether or not those debt securities may be overdue, for the purpose of making payments and for all other purposes irrespective of notice to the contrary.
Governing Law
Our indenture and the debt securities will be governed by, and construed in accordance with, the laws of the State of New York.
Regarding the Trustee
We will appoint the trustee under our indenture. A trustee may resign at any time by giving written notice to us or may be removed at any time by act of the holders of a majority in principal amount of all series of debt securities then outstanding delivered to the trustee and us. No resignation or removal of a trustee and no appointment of a successor trustee will be effective until the acceptance of appointment by a successor trustee. So long as no event of default or event which, after notice or lapse of time, or both, would become an event of default has occurred and is continuing and except with respect to a trustee appointed by act of the holders, if we have delivered to the trustee a resolution of our board of directors appointing a successor trustee and that successor has accepted such appointment in accordance with the terms of our indenture, the trustee will be deemed to have resigned and the successor will be deemed to have been appointed as trustee in accordance with our indenture.
DESCRIPTION OF PREFERRED STOCK
General
The following description of our preferred stock is a summary and is qualified by reference to (1) our articles of incorporation and bylaws that have been previously filed with the SEC and are exhibits to the registration statement of which this prospectus is a part and (2) the applicable provisions of The General and Business Corporation Law of Missouri.
Under our articles of incorporation, we are authorized to issue up to 1,480,000 shares of preferred stock, $25.00 par value per share. At March 31, 2022, no shares of preferred stock were issued and outstanding.
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Description of Preferred Stock
Our articles of incorporation authorize our board of directors to approve the issuance of preferred stock in one or more series, without shareholder action. Our board of directors can determine the rights, preferences and limitations of each series. Prior to the issuance of a series of preferred stock, our board of directors will adopt resolutions creating and designating the series as a series of preferred stock. Our board of directors has the authority to determine or fix the following terms with respect to shares of any series of preferred stock:
| • | the dividend rate, the dates of payment, and the date from which dividends will accumulate, if dividends are to be cumulative; |
| • | whether and upon what terms the shares will be redeemable; |
| • | whether and upon what terms the shares will have a sinking fund; |
| • | whether and upon what terms the shares will be convertible or exchangeable; |
| • | whether the shares will have voting rights and the terms thereof; |
| • | any amounts payable to the holders upon liquidation or dissolution, if any; |
| • | whether interests in the preferred stock will be represented by depositary shares; and |
| • | any other preferences, qualifications, limitations, restrictions and special or relative rights. |
These terms will be described in the prospectus supplement for any series of preferred stock that we offer. In addition, you should read the prospectus supplement relating to the particular series of preferred stock offered thereby for specific terms, including:
| • | the title of the series of preferred stock and the number of shares offered; |
| • | the initial public offering price at which we will issue the preferred stock; |
| • | any convertible feature of the series of preferred stock; and |
| • | any additional dividend, liquidation, redemption, sinking fund and other rights, preferences, privileges and limitations and restrictions. |
When we issue the preferred stock, the shares will be fully paid and non-assessable. This means that the full purchase price for the outstanding preferred stock will have been paid and the holder of such preferred stock will not be assessed any additional monies for such preferred stock. Unless the applicable prospectus supplement specifies otherwise:
| • | each series of preferred stock will rank senior to our common stock and equally in all respects with the outstanding shares of each other series of preferred stock; and |
| • | the preferred stock will have no preemptive rights to subscribe for any additional securities that we may issue in the future. This means that the holder of preferred stock will have no right, as holder of preferred stock, to buy any portion of those issued securities. |
DESCRIPTION OF DEPOSITARY SHARES
General
We may issue depositary shares representing fractional interests in shares of our preferred stock of any series. At March 31, 2022, no depositary shares were issued and outstanding. The following description sets forth certain general terms and provisions of the depositary shares to which any prospectus supplement may relate. The particular terms of the depositary shares to which any prospectus supplement may relate and the extent, if any, to which the general terms and provisions may apply to the depositary shares so offered will be described in
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the applicable prospectus supplement. To the extent that any particular terms of the depositary shares, deposit agreements and depositary receipts described in a prospectus supplement differ from any of the terms described below, then the terms described below will be deemed to have been superseded by that prospectus supplement. We encourage you to read the applicable deposit agreement and depositary receipts for additional information before you decide whether to purchase any of our depositary shares.
In connection with the issuance of any depositary shares, we will enter into a deposit agreement with a bank or trust company, as depositary, which will be named in the applicable prospectus supplement. Depositary shares will be evidenced by depositary receipts issued pursuant to the related deposit agreement. Immediately following our issuance of any shares of preferred stock related to the depositary shares, we will deposit such shares of our preferred stock with the relevant depositary and will cause the depositary to issue, on our behalf, the related depositary receipts. Subject to the terms of the deposit agreement, each owner of a depositary receipt will be entitled, in proportion to the fractional interest in the share of preferred stock represented by the related depositary share, to all the rights, preferences and privileges of, and will be subject to all of the limitations and restrictions on, the preferred stock represented by the depositary receipt (including, if applicable, dividend, voting, conversion, exchange, redemption, sinking fund, subscription and liquidation rights). The applicable prospectus supplement will describe the specific terms of the depositary shares offered thereby.
Book-Entry Securities
We may issue some or all of the depositary shares as book-entry securities. Any such book-entry securities will be represented by one or more fully registered global certificates. We will register each global security with or on behalf of a securities depositary identified in the applicable prospectus supplement. Each global security will be deposited with the securities depositary or its nominee or a custodian for the securities depositary.
We may sell the offered securities through the solicitation of proposals of underwriters or dealers to purchase the offered securities, through underwriters or dealers on a negotiated basis, through agents or directly to a limited number of purchasers or to a single purchaser.
The prospectus supplement with respect to each offering of securities will set forth the terms of such offering, including:
| • | the name or names of any underwriters, dealers or agents; |
| • | the purchase price of the offered securities and the proceeds to us from their sale; |
| • | any underwriting discounts and commissions and other items constituting underwriters’ compensation; |
| • | any initial public offering price and any discounts or concessions allowed or reallowed or paid to dealers; and |
| • | any securities exchange on which the offered securities may be listed. |
Any initial public offering price, discounts or concessions allowed or reallowed or paid to dealers may be changed from time to time.
Underwriters
If underwriters are used in the sale, they will acquire the offered securities for their own account and may resell them on one or more occasions in one or more transactions, including negotiated transactions, at a fixed public offering price or at varying prices determined at the time of sale. The offered securities may be offered to
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the public either through underwriting syndicates represented by one or more managing underwriters or directly by one or more firms acting as underwriters. The underwriter or underwriters with respect to a particular underwritten offering of securities will be named in the prospectus supplement relating to such offering and, if an underwriting syndicate is used, the names of the managing underwriter or underwriters will be set forth on the cover of that prospectus supplement. Unless otherwise set forth in the prospectus supplement relating thereto, the obligations of the underwriters to purchase the offered securities will be subject to certain conditions precedent, and the underwriters will be obligated to purchase all the offered securities if any are purchased.
Dealers
If dealers are utilized in the sale of offered securities, we will sell such offered securities to the dealers as principals. The dealers may then resell such offered securities to the public at varying prices to be determined by such dealers at the time of resale. The names of the dealers and the terms of the transaction will be set forth in the applicable prospectus supplement.
Agents
The offered securities may be sold directly by us or through agents designated by us from time to time. Any agent involved in the offer or sale of the offered securities will be named, and any commissions payable by us to such agent will be set forth, in the applicable prospectus supplement. Unless otherwise indicated in the applicable prospectus supplement, any such agent will be acting on a best-efforts basis for the period of its appointment.
Direct Sales
The offered securities may be sold directly by us to institutional investors or others, who may be deemed to be underwriters within the meaning of the Securities Act of 1933, as amended (the “Securities Act”), with respect to any resale thereof. The terms of any such sales will be described in the applicable prospectus supplement.
Indemnification
Agents, dealers and underwriters and the persons who control them may be entitled under agreements with us to indemnification by us against certain civil liabilities, including liabilities under the Securities Act, or to contribution with respect to payments which these agents, dealers or underwriters may be required to make in respect thereof. Agents, dealers and underwriters may be customers of, engage in transactions with, or perform services for us in the ordinary course of business.
Remarketing
The offered securities may also be offered and sold, if so indicated in the applicable prospectus supplement, in connection with a remarketing upon their purchase, in accordance with a redemption or repayment under their terms, or otherwise, by one or more firms (“remarketing firms”), acting as principals for their own accounts or as agents for us. Any remarketing firm will be identified and the terms of its agreement, if any, with its compensation will be described in the applicable prospectus supplement. Remarketing firms may be deemed to be underwriters, as such term is defined in the Securities Act, in connection with the offered securities they remarket. Remarketing firms may be entitled, under agreements that may be entered into with us, to indemnification or contribution by us against certain civil liabilities, including liabilities under the Securities Act, and may be customers of, engage in transactions or perform services for us in the ordinary course of business.
No Assurance of Liquidity
The offered securities may or may not be listed on a national securities exchange. You should read the applicable prospectus supplement for a discussion of this matter. We cannot assure you there will be a market for any of the offered securities.
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Unless otherwise indicated in the applicable prospectus supplement, certain legal matters will be passed upon for us by Mark C. Darrell, who serves as Senior Vice President, Chief Legal and Compliance Officer of Spire, or Akin Gump Strauss Hauer & Feld LLP, New York, New York. Mr. Darrell is a salaried employee and earns stock-based compensation on Spire’s common stock. As of May 1, 2022, Mr. Darrell beneficially owned 54,751 shares of Spire’s common stock. Pursuant to various stock and employee benefit plans, Mr. Darrell is eligible to purchase and receive shares of Spire’s common stock and to receive options to purchase shares of Spire’s common stock. He does not own any Spire Missouri Inc. securities. Certain other legal matters may be passed upon for any underwriters or agents by Bracewell LLP, New York, New York.
The financial statements for Spire Missouri Inc., incorporated in this prospectus by reference from our Annual Report on Form 10-K for the year ended September 30, 2021, have been audited by Deloitte & Touche LLP, an independent registered public accounting firm, as stated in their report, which is incorporated herein by reference. Such financial statements have been so incorporated in reliance upon the report of such firm given upon their authority as experts in auditing and accounting.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following table sets forth the estimated expenses in connection with the issuance and sale of the securities being registered.
| Filing Fee Securities and Exchange Commission |
||||
| Registration Statement |
$ | * | ||
| *Accountants’ fee |
** | |||
| *Printing costs |
** | |||
| *Fees and Expenses of Trustees and/or Transfer Agent and Registrar and Depositary |
** | |||
| *Legal Fees |
** | |||
| *Rating Agencies’ Fees |
** | |||
| *Miscellaneous expense (including blue sky expense) |
** | |||
|
|
|
|||
| Total Expenses |
$ | ** |
| * | In accordance with Rules 456(b) and 457(r) under the Securities Act, the registrants are deferring payment of the registration fee relating to the securities offered hereby and will pay “pay-as-you-go registration fees.” |
| ** | Because an indeterminate amount of securities is covered by this registration statement, the expenses in connection with the issuance and distribution of securities are not currently determinable. The estimate of such expenses in connection with securities to be offered and sold pursuant to this registration statement will be included in the applicable prospectus supplement. |
Item 15. Indemnification of Directors and Officers
Spire Inc.:
The General and Business Corporation Law of Missouri provides that a corporation may indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit, or proceeding by reason of the fact that he or she is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses, judgments, fines and amounts paid in settlement actually and reasonably incurred by him or her in connection with such action, suit, or proceeding if he or she acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful. However, a corporation may not indemnify such a person against judgments and fines, and no person shall be indemnified as to any claim, issue or matter as to which such person shall have been adjudged to be liable for negligence or misconduct in the performance of his or her duty to the corporation, unless and only to the extent that the court in which the action or suit was brought determines upon application that the person is fairly and reasonably entitled to indemnity for proper expenses.
Missouri law also provides that, to the extent that a director, officer, employee or agent of the corporation has been successful in defense of any such action, suit, or proceeding or of any claim, issue or matter therein, he or she shall be indemnified against expenses, including attorneys’ fees, actually and reasonably incurred in connection with the action, suit, or proceeding.
The statute also provides that a corporation may provide additional indemnification to any person indemnifiable as described above, provided such additional indemnification is authorized by the corporation’s
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articles of incorporation or shareholder-approved bylaw or agreement, and provided further that no person shall be indemnified against conduct that was finally adjudged to have been knowingly fraudulent, deliberately dishonest or willful misconduct.
The Registrant’s articles of incorporation provide that it shall indemnify each of its directors and officers to the full extent permitted by The General and Business Corporation Law of Missouri and, in addition, shall indemnify each of them against all expenses incurred in connection with any claim by reason of the act that such director or officer is or was, serving the Registrant, or at its request, in any of the capacities referred to in The General and Business Corporation Law of Missouri, or arising out of such person’s status in any such capacity, provided that the Registrant shall not indemnify any person from or on account of such person’s conduct that was finally adjudged to have been knowingly fraudulent, deliberately dishonest or willful misconduct, or to the extent that such indemnification shall otherwise be finally adjudged to be prohibited by applicable law. The Registrant’s articles also allow it to indemnify any other person as permitted by The General and Business Corporation Law of Missouri.
The Registrant has also entered into indemnification agreements with each of its directors and officers that (1) provide for the indemnification of each such director and officer to the extent provided for by the Registrant’s articles of incorporation as described above and (2) state that the indemnification provided thereunder shall survive the elimination or modification of the Registrant’s articles of incorporation with respect to claims that have arisen prior to such elimination or modification.
The Registrant’s articles further provide that no present or former director shall be personally liable to the Registrant or its shareholders for monetary damages for breach of fiduciary duty as a director other than (i) for any breach of the director’s duty of loyalty to the Registrant or its shareholders, (ii) for acts or omissions not in subjective good faith or that involve intentional misconduct or a knowing violation of law, (iii) for the payment of an illegal dividend as provided in Section 351.345 of The General and Business Corporation Law of Missouri, or (iv) for any transaction from which the director derived an improper personal benefit. To the extent that The General and Business Corporation Law of Missouri is amended to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of a director of the Registrant shall be eliminated or limited to the full extent permitted by The General and Business Corporation Law of Missouri as so amended.
The Registrant has obtained insurance protecting the officers and directors against certain liabilities.
The rights of indemnification provided for above are not exclusive of any other rights of indemnification to which the persons seeking indemnification may be entitled under the Registrant’s articles of incorporation or bylaws or any agreement, vote of stockholders or disinterested directors, or otherwise.
Spire Missouri Inc.:
The General and Business Corporation Law of Missouri provides that a corporation may indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit, or proceeding by reason of the fact that he or she is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses, judgments, fines and amounts paid in settlement actually and reasonably incurred by him or her in connection with such action, suit, or proceeding if he or she acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful. However, a corporation may not indemnify such a person against judgments and fines, and no person shall be indemnified as to any claim, issue or matter as to which such person shall have been adjudged to be liable for negligence or misconduct in the performance of his or her duty to the corporation, unless and only to the extent that the court in which the action or suit was brought determines upon application that the person is fairly and reasonably entitled to indemnity for proper expenses.
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Missouri law also provides that, to the extent that a director, officer, employee or agent of the corporation has been successful in defense of any such action, suit, or proceeding or of any claim, issue or matter therein, he or she shall be indemnified against expenses, including attorneys’ fees, actually and reasonably incurred in connection with the action, suit, or proceeding.
The statute also provides that a corporation may provide additional indemnification to any person indemnifiable as described above, provided such additional indemnification is authorized by the corporation’s articles of incorporation or shareholder-approved bylaw or agreement, and provided further that no person shall be indemnified against conduct that was finally adjudged to have been knowingly fraudulent, deliberately dishonest or willful misconduct.
The Registrant’s articles of incorporation provide that it shall indemnify each of its directors and officers to the full extent permitted by The General and Business Corporation Law of Missouri and, in addition, shall indemnify each of them against all expenses incurred in connection with any claim by reason of the act that such director or officer is or was, serving the Registrant, or at its request, in any of the capacities referred to in The General and Business Corporation Law of Missouri, or arising out of such person’s status in any such capacity, provided that the Registrant shall not indemnify any person from or on account of such person’s conduct that was finally adjudged to have been knowingly fraudulent, deliberately dishonest or willful misconduct, or to the extent that such indemnification shall otherwise be finally adjudged to be prohibited by applicable law.
The Registrant has also entered into indemnification agreements with each of its directors and officers that (1) provide for the indemnification of each such director and officer to the extent provided for by the Registrant’s articles of incorporation as described above and (2) state that the indemnification provided thereunder shall survive the elimination or modification of the Registrant’s articles of incorporation with respect to claims that have arisen prior to such elimination or modification.
The Registrant has obtained insurance protecting the officers and directors against certain liabilities.
The rights of indemnification provided for above are not exclusive of any other rights of indemnification to which the persons seeking indemnification may be entitled under the Registrant’s articles of incorporation or bylaws or any agreement, vote of stockholders or disinterested directors, or otherwise.
Item 16. List of Exhibits
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| * | Incorporated by reference. |
| ** | To be filed by amendment or incorporated by reference in connection with the offering of securities. |
| † | To be filed pursuant to Section 305(b)(2) of the Trust Indenture Act of 1939. |
| 1 | Laclede Gas Company changed its name to Spire Missouri Inc. effective August 30, 2018. |
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Item 17. Undertakings.
| (a) | Each of the undersigned registrants hereby undertakes: |
(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933.
(ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high and of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in the volume and price represent no more than 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement.
(iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement.
Provided, however, that paragraphs (a)(1)(i), (a)(1)(ii), and (a)(1)(iii) of this section do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission by the registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement or is contained in a form of prospectus filed pursuant to Rule 424(b) that is a part of the registration statement.
(2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(4) That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser:
(i) Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and
(ii) Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required by Section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date.
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(5) That, for the purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities: The undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
(i) Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;
(ii) Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant;
(iii) The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and
(iv) Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
(6) That, for the purpose of determining any liability under the Securities Act of 1933, each filing of the registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(7) The undersigned registrant hereby undertakes to file an application for the purpose of determining the eligibility of trustees to act under subsection (a) of Section 310 of the Trust Indenture Act in accordance with the rules and regulations prescribed by the Commission under Section 305(b)(2) of the Trust Indenture Act.
(b) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question of whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of St. Louis, and State of Missouri, on May 9, 2022.
| SPIRE INC. | ||
| By | /s/ Steven P. Rasche | |
| Steven P. Rasche | ||
| Executive Vice President and | ||
| Chief Financial Officer | ||
Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed below by the following persons in the capacities and on the dates indicated.
| Name |
Title |
Date | ||
| * Suzanne Sitherwood |
Director, President and Chief Executive Officer (Principal Executive Officer) |
May 9, 2022 | ||
| /s/ Steven P. Rasche Steven P. Rasche |
Executive Vice President and Chief Financial Officer (Principal Financial and Accounting Officer) | May 9, 2022 | ||
| * Edward L. Glotzbach |
Chairman of the Board | May 9, 2022 | ||
| * Mark A. Borer |
Director | May 9, 2022 | ||
| * Maria V. Fogarty |
Director | May 9, 2022 | ||
| * Carrie J. Hightman |
Director | May 9, 2022 | ||
| * Rob L. Jones |
Director | May 9, 2022 | ||
| * Brenda D. Newberry |
Director | May 9, 2022 | ||
| * Stephen S. Schwartz |
Director | May 9, 2022 | ||
| * John P. Stupp, Jr. |
Director | May 9, 2022 | ||
| * Mary Ann Van Lokeren |
Director | May 9, 2022 | ||
| *By: | Steven P. Rasche | |
| Steven P. Rasche | ||
| As Attorney-in-Fact for each of the persons indicated |
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Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of St. Louis, and State of Missouri, on May 9, 2022.
| SPIRE MISSOURI INC. | ||
| By | /s/ Timothy W. Krick | |
| Timothy W. Krick | ||
| Controller and Chief Accounting Officer | ||
Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed below by the following persons in the capacities and on the dates indicated.
| Name |
Title |
Date | ||
| /s/ Suzanne Sitherwood Suzanne Sitherwood |
Chairman of the Board | May 9, 2022 | ||
| /s/ Steven L. Lindsey Steven L. Lindsey |
Director and Chief Executive Officer (Principal Executive Officer) | May 9, 2022 | ||
| /s/ Adam W. Woodard Adam W. Woodard |
Chief Financial Officer and Treasurer (Principal Financial Officer) | May 9, 2022 | ||
| /s/ Timothy W. Krick Timothy W. Krick |
Controller and Chief Accounting Officer (Principal Accounting Officer) | May 9, 2022 | ||
| /s/ Scott B. Carter Scott B. Carter |
Director and President | May 9, 2022 | ||
| /s/ Mark C. Darrell Mark C. Darrell |
Director | May 9, 2022 | ||
| /s/ Steven P. Rasche Steven P. Rasche |
Director | May 9, 2022 | ||
Exhibit 4.10
THE LACLEDE GAS LIGHT COMPANY
TO
MISSISSIPPI VALLEY TRUST COMPANY,
TRUSTEE
Mortgage and Deed of Trust
Dated as of February 1, 1945
| Printed in U.S.A. |
Browne & Co., Inc., New York |
TABLE OF CONTENTS
| PAGE | ||||
| Parties |
1 | |||
| Recitals |
1 | |||
| Description of bond issue |
1 | |||
| General form of coupon bond |
1 | |||
| General form of coupon |
4 | |||
| General form of fully registered bond |
5 | |||
| Form of Trustee’s Certificate |
8 | |||
| Compliance with legal requirements |
8 | |||
| Granting clauses |
8 | |||
| Description of property |
8 | |||
| No. 1—First and Mullanphy Streets |
8 | |||
| No. 2—Sarah Street and Evans Avenue |
10 | |||
| No. 3—Second and Rutger Streets |
10 | |||
| No. 4—Piedmont Avenue and Gasconade Street |
11 | |||
| No. 5—Fourteenth and Gratiot Streets |
12 | |||
| No. 6—Spruce Street |
12 | |||
| No. 7—California and Gravois Avenues |
12 | |||
| No. 8—Forest Park Boulevard |
13 | |||
| No. 9—Switch Track Right-of-Way |
13 | |||
| No. 10—Duncan Avenue |
13 | |||
| No. 11—Chevrolet Avenue |
14 | |||
| No. 12—Broadway and River Des Peres |
15 | |||
| No. 13—Chouteau and Newstead Avenues |
17 | |||
| No. 14—Leasehold—Eleventh and Olive Streets |
17 | |||
| General and after-acquired property clauses |
18 | |||
| Appurtenances, etc. |
18 | |||
| Agreement as to after-acquired property |
19 | |||
| Properties excepted from lien of Indenture |
19 | |||
| Habendum |
19 | |||
| Exceptions, reservations, etc. |
20 | |||
| Grant in trust |
20 | |||
| Defeasance clause |
20 | |||
| Covenant clause |
21 | |||
| ARTICLE I | ||||
| DEFINITIONS | ||||
| SEC. 1.01—Explanatory statement |
21 | |||
| SEC. 1.02—“the Company”, “the Trustee”, “this Indenture”, “the lien hereof”, ”the lien of this Indenture”, “the mortgaged and pledged property”, “outstanding”, bonds owned by the Company and certain others not to be counted for purposes of certain sections, “daily newspaper” |
21 | |||
| SEC. 1.03—“resolution”, “engineer”, “independent engineer”, “accountant”, ”Treasurer’s certificate”, “engineer’s certificate”, “independent engineer’s certificate”, “opinion of counsel”, “independent”, “control”, “person”, “affiliate” |
23 | |||
| SEC. 1.04—I “property additions” |
25 | |||
| II Deductions from and additions to property additions |
27 | |||
| III Retirement of property |
29 | |||
| SEC. 1.05—“funded property”, “funded cash” |
29 | |||
| SEC. 1.06—“excepted encumbrances”, “prior lien”, “prior lien bonds”, “outstanding” with respect to prior lien bonds |
31 | |||
| SEC. 1.07—“net earnings certificate” |
33 | |||
| ARTICLE II | ||||
| FORM, EXECUTION, REGISTRATION AND EXCHANGE OF BONDS | ||||
| SEC. 2.01—Series and form of bonds |
36 | |||
| Form of each series must specify the descriptive title of the bonds, designation of series, date of coupon bonds, rate of interest, date of maturity, dates of interest and place of payment of principal and interest and for registration and transfer of bonds |
36 | |||
| Optional provisions: |
||||
| (a) Additional places for payments, registration or transfer |
36 | |||
| (b) Payment of taxes, creation of sinking fund, conversion of bonds into stock |
37 | |||
| (c) Exchange of bonds |
37 | |||
| (d) Redemption |
37 | |||
| (e) Other terms and conditions |
37 | |||
| SEC. 2.02—Kinds and denominations of bonds on original issuance |
38 | |||
| SEC. 2.03—Dates of registered bonds and coupon bonds |
38 | |||
| SEC. 2.04—Legends on bonds |
38 | |||
| SEC. 2.05—Procedure for exchange of bonds |
38 | |||
| Charges |
39 | |||
| SEC. 2.06—Registration and transfer of bonds |
39 | |||
| SEC. 2.07—Execution of bonds |
40 | |||
| Execution by former officers |
40 | |||
| Matured coupons to be detached |
40 | |||
| SEC. 2.08—Temporary bonds |
40 | |||
| SEC. 2.09—Bonds in lieu of lost, destroyed or mutilated bonds |
41 | |||
| SEC. 2.10—Trustee’s certificate |
42 | |||
| SEC. 2.11—Payment of bonds in foreign countries |
42 | |||
| SEC. 2.12—Bonds of the % Series due 1965 |
42 | |||
| Unlimited |
43 | |||
| Maturity date |
43 | |||
| Denominations |
43 | |||
| Interest rate |
43 | |||
| Paying Agent |
43 | |||
| Date of issue |
43 | |||
ii
| Redemption |
43 | |||
| Premiums |
43 | |||
| Exchangeability |
45 | |||
| Registration |
45 | |||
| SEC. 2.13— Sinking fund for bonds of 1965 Series |
46 | |||
| ARTICLE III | ||||
| GENERAL PROVISIONS AS TO CERTIFICATES AND OPINIONS | ||||
| SEC. 3.01—Required statements |
47 | |||
| ARTICLE IV | ||||
| INITIAL ISSUE OF BONDS | ||||
| SEC. 4.01—$19,000,000 of 1965 Series Bonds to be issued forthwith |
48 | |||
| ARTICLE V | ||||
| GENERAL PROVISIONS AS TO ISSUE OF BONDS | ||||
| SEC. 5.01—Amount of bonds which may be secured hereby |
48 | |||
| Board of Directors may fix terms of issue of bonds |
48 | |||
| ARTICLE VI | ||||
| ISSUANCE OF BONDS UPON THE BASIS OF PROPERTY ADDITIONS | ||||
| SEC. 6.01—Bonds issuable upon basis of property additions |
49 | |||
| SEC. 6.02—No bonds issuable upon basis of funded property |
49 | |||
| SEC. 6.03—60% of cost or fair value of property additions basis of issuing bonds |
49 | |||
| Method of determining cost |
49 | |||
| SEC. 6.04—Conditions of issuing bonds, etc., upon basis of property additions subject to prior liens |
50 | |||
| SEC. 6.05—Net earnings requirements |
51 | |||
| SEC. 6.06—Requirements for issuance by Trustee of bonds upon basis of property additions |
51 | |||
| (1) Resolution |
51 | |||
| (2) Treasurer’s certificate |
51 | |||
| (3) Engineer’s certificate |
52 | |||
| (4) Independent engineer’s certificate in certain cases |
53 | |||
| (5) Written appraisal in certain cases |
54 | |||
| (6) Net earnings certificate |
55 | |||
| (7) Opinion of counsel |
55 | |||
| (8) Instruments of conveyance, other documents |
56 | |||
| (9) Deposit of prior lien bonds and/or cash |
56 | |||
iii
| SEC. 6.07—Issuance of bonds upon acquisition of St. Louis County Gas Company |
57 | |||
| “cost” |
57 | |||
| “fair value” |
58 | |||
| Value of securities |
58 | |||
| Section is optional |
58 | |||
| ARTICLE VII | ||||
| ISSUANCE OF BONDS UPON RETIREMENT OF BONDS | ||||
| PREVIOUSLY OUTSTANDING HEREUNDER | ||||
| SEC. 7.01—Requirements |
58 | |||
| (1) Resolution |
59 | |||
| (2) Treasurer’s certificate |
59 | |||
| (3) Opinion of counsel |
60 | |||
| (4) Certificates or documents specified by counsel |
60 | |||
| Net earnings certificate required in certain cases |
60 | |||
| ARTICLE VIII | ||||
| ISSUANCE OF BONDS UPON DEPOSIT OF CASH WITH TRUSTEE | ||||
| SEC. 8.01—Requirements |
61 | |||
| (1) Resolution |
61 | |||
| (2) Treasurer’s certificate |
61 | |||
| (3) Net earnings certificate |
61 | |||
| (4) Opinion of counsel |
61 | |||
| (5) Certificates or documents specified by counsel |
62 | |||
| SEC. 8.02—Withdrawal of cash in lieu of issuance of bonds |
62 | |||
| SEC. 8.03—Application of deposited cash to purchase, payment or redemption of bonds |
62 | |||
| ARTICLE IX | ||||
| PARTICULAR COVENANTS OF THE COMPANY | ||||
| SEC. 9.01—Lawful possession; Maintenance of lien; Right to mortgage |
63 | |||
| SEC. 9.02—Payment of principal and interest |
64 | |||
| SEC. 9.03—Maintenance of office or agency for payments, etc. |
64 | |||
| SEC. 9.04—Duties of paying agent other than Trustee |
64 | |||
| SEC. 9.05—Payment of taxes and assessments |
65 | |||
| Discharge of liens |
65 | |||
| Payment of judgments in installments |
66 | |||
| SEC. 9.06—Insurance on property |
66 | |||
| Application of insurance proceeds received by Company |
67 | |||
| Application of insurance proceeds received by Trustee |
67 | |||
| SEC. 9.07—I Covenants as to maintenance |
68 | |||
| Annual payments to Maintenance and Improvement Fund |
69 | |||
| Credits |
69 | |||
| Annual Treasurer’s certificate; contents thereof |
71 | |||
| Application of cash in Maintenance and Improvement Fund |
73 | |||
iv
| Opinion of counsel for credit under subdivision (b) |
73 | |||
| Requirements for credit under subdivision (c) |
74 | |||
| II “Gross operating revenue of the Company” for Section 9.07 |
74 | |||
| III “Average amount of gross property account” and “amount of the gross property account” for Section 9.07 |
75 | |||
| SEC. 9.08—Maintenance of corporate existence and franchises |
75 | |||
| SEC. 9.09—Advances by Trustee |
75 | |||
| SEC. 9.10—Recording, filing of this Indenture |
76 | |||
| (1) Initial opinion of counsel |
76 | |||
| (2) Annual opinion of counsel |
76 | |||
| SEC. 9.11—Instruments of further assurance |
77 | |||
| SEC. 9.12—Books and records; inspection thereof |
77 | |||
| SEC. 9.13—Observance of covenants |
77 | |||
| SEC. 9.14—I Limitations on withdrawal of cash deposited with trustee under a prior lien |
77 | |||
| II Requirements on discharge of any prior lien |
78 | |||
| III Limitations on increase of prior lien bonds |
79 | |||
| SEC. 9.15—Company not to pay dividends, etc., unless certain conditions met Company to notify Trustee of declaration of dividend or acquisition, etc., of capital stock and deliver Treasurer’s certificate |
80 | |||
| “Net Income” |
80 | |||
| SEC. 9.16—Restrictions on Capital Surplus |
81 | |||
| ARTICLE X | ||||
| BONDHOLDERS’ LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE | ||||
| SEC. 10.01—Company to furnish bondholders’ lists to Trustee |
81 | |||
| SEC. 10.02—Preservation of information by Trustee |
82 | |||
| Destruction of information by Trustee; conditions thereof |
82 | |||
| Access of bondholders to list; conditions thereof |
82 | |||
| Alternatives of Trustee to granting access to bondholders’ list |
83 | |||
| SEC. 10.03—Company to file with Trustee copies of reports filed with Securities and Exchange Commission |
84 | |||
| Filing of additional reports, etc., may be required |
84 | |||
| Summaries of reports, etc., to be sent to bondholders |
85 | |||
| SEC. 10.04—Annual information to be furnished to bondholders by Trustee |
85 | |||
| (1) Eligibility of Trustee |
85 | |||
| (2) Advances made by Trustee |
85 | |||
| (3) Particulars of indebtedness of the Company to Trustee individually |
85 | |||
| (4) Property in possession of Trustee as such |
86 | |||
| (5) Releases of property |
86 | |||
| (6) Additional issues of bonds |
86 | |||
| (7) Performance of Trustee’s duties |
86 | |||
| Additional reports |
86 | |||
| (1) Releases of property |
86 | |||
| (2) Advances made by Trustee |
87 | |||
v
| Bondholders entitled to reports |
87 | |||
| Reports to be filed with Securities and Exchange Commission and Stock Exchanges |
88 | |||
| ARTICLE XI | ||||
| CONCERNING PRIOR LIEN BONDS DEPOSITED WITH TRUSTEE | ||||
| SEC. 11.01—Requirements for deposit of prior lien bonds |
88 | |||
| SEC. 11.02—Deposited prior lien bonds to be held as part of pledged property |
88 | |||
| SEC. 11.03—Right of Trustee to cancel prior lien bonds |
89 | |||
| SEC. 11.04—Rights of Trustee to enforce prior lien bonds |
90 | |||
| ARTICLE XII | ||||
| REDEMPTION OR PURCHASE OF BONDS | ||||
| SEC. 12.01—What bonds redeemable |
90 | |||
| SEC. 12.02—Redemption of part of series |
91 | |||
| Selection by lot |
91 | |||
| Notice |
91 | |||
| SEC. 12.03—Deposit of redemption price with Trustee |
92 | |||
| SEC. 12.04—Redemption of moneys held in trust |
92 | |||
| Payment to bondholders |
93 | |||
| Bonds cease to bear interest |
93 | |||
| Partial redemption of a registered bond |
93 | |||
| SEC. 12.05—Purchase of bonds by Trustee |
93 | |||
| Price |
94 | |||
| Procedure |
94 | |||
| Interest paid by Company |
95 | |||
| “Current redemption price” |
95 | |||
| SEC. 12.06—Redeemed and purchased bonds to be canceled |
95 | |||
| ARTICLE XIII | ||||
| POSSESSION, USE AND RELEASE OF MORTGAGED AND PLEDGED PROPERTY | ||||
| SEC. 13.01—Right of Company to possess and enjoy mortgaged and pledged property |
95 | |||
| SEC. 13.02—What Company may do without release by or consent of Trustee |
96 | |||
| (1) Sale of obsolete, etc., property |
96 | |||
| (2) Abandonment |
96 | |||
| (3) Cancellation, alteration of contracts |
97 | |||
| (4) Surrender or modification of franchises; conditions thereof |
97 | |||
| SEC. 13.03—Release of property by Trustee |
97 | |||
| Requirements |
97 | |||
| (1) Resolution |
97 | |||
| (2) Treasurer’s certificate |
97 | |||
| (3) Engineer’s or independent engineer’s certificate |
97 | |||
| (4) Opinion of counsel |
98 | |||
| (5) Consideration; computation thereof |
98 | |||
vi
| (6) Opinion of counsel in certain cases |
100 | |||
| Additional requirements in certain cases |
100 | |||
| Disposition of bonds, prior lien bonds, cash, etc., deposited with Trustee |
101 | |||
| SEC. 13.04—Release of certain unimproved real estate |
102 | |||
| Resolution |
102 | |||
| Engineer’s or independent engineer’s certificate |
102 | |||
| Deposit of consideration |
102 | |||
| SEC. 13.05—I Withdrawal, use or application of money received by Trustee for release of property |
103 | |||
| Requirements |
104 | |||
| II Disposition of money not so withdrawn, used or applied within three years |
105 | |||
| Purchase money mortgages on released property |
105 | |||
| Substituted property subjected to the lien hereof |
106 | |||
| Disposition of deposited bonds and prior lien bonds |
106 | |||
| SEC. 13.06—A. Release of property taken by eminent domain or purchased by governmental body |
106 | |||
| Opinion of counsel |
107 | |||
| Application of proceeds |
107 | |||
| B. Redemption of bonds where substantially all mortgaged property taken by exercise of eminent domain or sold to governmental body |
107 | |||
| Deposit of redemption moneys with Trustee |
107 | |||
| SEC. 13.07—Rights of receiver or trustee in possession to releases |
108 | |||
| Release by Trustee after default |
108 | |||
| SEC. 13.08—Purchaser in good faith of released property protected |
108 | |||
| ARTICLE XIV | ||||
| REMEDIES OF TRUSTEE AND BONDHOLDERS UPON DEFAULT | ||||
| SEC. 14.01—What constitutes “completed default” |
109 | |||
| Declaration of principal and interest due upon completed default |
110 | |||
| Holders of majority in amount of bonds may annul declaration |
110 | |||
| SEC. 14.02—Trustee to notify bondholders of known defaults; exceptions |
111 | |||
| SEC. 14.03—Trustee may take possession |
111 | |||
| Application of income |
111 | |||
| When Trustee shall surrender possession to Company |
112 | |||
| SEC. 14.04—Power to sell mortgaged and pledged property |
112 | |||
| Notice of sale |
112 | |||
| SEC. 14.05—Judicial proceedings |
112 | |||
| General Remedies |
112 | |||
| When action by Trustee obligatory |
113 | |||
| Remedies cumulative |
113 | |||
| Delay, etc., no waiver of rights |
113 | |||
| Waiver of default not to extend to subsequent default |
113 | |||
vii
| SEC. 14.06—Holders of a majority in amount of bonds may direct time, method and place of proceedings |
113 | |||
| SEC. 14.07—Appointment of a receiver |
114 | |||
| SEC. 14.08—All bonds to become due and payable on sale of property |
114 | |||
| SEC. 14.09—Property may be purchased by bondholders |
114 | |||
| SEC. 14.10—Receipt of Trustee or sale officer as discharge of purchaser |
114 | |||
| SEC. 14.11—Sale to bar company forever |
115 | |||
| SEC. 14.12—Disposition of proceeds of sale |
115 | |||
| (1) Taxes, costs of sale, compensation of Trustee |
115 | |||
| (2) Principal and interest on bonds secured hereby |
116 | |||
| (3) Surplus to Company |
116 | |||
| SEC. 14.13—Waiver of advantage of any appraisement, valuation, stay, extension or redemption laws, and right to marshal assets |
116 | |||
| SEC. 14.14—Right of Trustee to sue for principal and interest as trustee of an express trust |
117 | |||
| Right of Trustee to recover judgment regardless of other proceedings |
117 | |||
| Lien of Indenture not affected by such judgment or levy of execution thereon |
118 | |||
| Application of moneys so collected |
118 | |||
| Powers of Trustee in reorganization, bankruptcy, etc. proceedings |
118 | |||
| Trustee irrevocably appointed attorney-in-fact of bondholders |
118 | |||
| Exception |
119 | |||
| SEC. 14.15—Possession of bonds unnecessary to action by Trustee |
119 | |||
| SEC. 14.16—Limitations on rights of bondholders to avail of remedies provided by Indenture |
120 | |||
| Right to enforce payment of principal and interest absolute |
120 | |||
| SEC. 14.17—Court may require undertaking for costs in certain cases |
120 | |||
| SEC. 14.18—Waiver of periods of grace |
121 | |||
| Effect of abandonment, etc., of proceedings hereunder |
121 | |||
| ARTICLE XV | ||||
| EVIDENCE OF RIGHTS OF BONDHOLDERS AND OWNERSHIP OF BONDS | ||||
| SEC. 15.01—Execution of instruments by bondholders |
121 | |||
| Proof of execution thereof |
121 | |||
| (a) Notary’s certificate |
122 | |||
| Certificate of Bank, etc. |
122 | |||
| Request, consent, etc., binding future bondholders |
122 | |||
| SEC. 15.02—Ownership of temporary or coupon bonds |
122 | |||
| Ownership of registered bonds |
122 | |||
| Submission of bonds for inspection |
123 | |||
| ARTICLE XVI | ||||
| IMMUNITY OF INCORPORATORS, SUBSCRIBERS TO THE CAPITAL STOCK, | ||||
| STOCKHOLDERS, OFFICERS AND DIRECTORS | ||||
| SEC. 16.01—No recourse clause |
123 | |||
viii
| ARTICLE XVII | ||||
| EFFECT OF MERGER, CONSOLIDATION, ETC. | ||||
| SEC. 17.01—Right of Company to merge, consolidate, sell or lease all assets |
124 | |||
| No impairment of lien |
124 | |||
| Lease subject to termination |
124 | |||
| Assumption of obligation |
125 | |||
| SEC. 17.02—Rights of successor corporation |
125 | |||
| Execution of Indenture |
125 | |||
| Rights of successor corporation to issue bonds and take other action on basis of property additions |
126 | |||
| Conditions precedent |
126 | |||
| Opinion of counsel |
127 | |||
| SEC. 17.03—Extent of lien in case of consolidation, etc. |
127 | |||
| ARTICLE XVIII | ||||
| CONCERNING THE TRUSTEE | ||||
| SEC. 18.01—Eligibility requirements |
128 | |||
| Office of Trustee not to be vacant |
129 | |||
| SEC. 18.02—Acceptance of Trust |
129 | |||
| Degree of care to be exercised by Trustee |
129 | |||
| SEC. 18.03—Limitations on liability of Trustee |
129 | |||
| SEC. 18.04—Recitals are by Company |
130 | |||
| SEC. 18.05—Limitation on personal liability of Trustee after entry |
130 | |||
| SEC. 18.06—Notice by Trustee to Company |
130 | |||
| SEC. 18.07—When Trustee protected in relying on statements of others |
131 | |||
| SEC. 18.08—Trustee not responsible for selection of experts; exceptions |
131 | |||
| SEC. 18.09—Trustee may own bonds as individual |
131 | |||
| SEC. 18.10—Moneys received by Trustee hereunder to be held in trust |
131 | |||
| SEC. 18.11—Compensation of Trustee |
132 | |||
| Indemnity of’ Trustee |
132 | |||
| SEC. 18.12—Proof of matters by certificate |
132 | |||
| SEC. 18.13—Incidental powers of Trustee |
133 | |||
| SEC. 18.14—Trustee may not have a conflicting interest |
133 | |||
| When Trustee deemed to have a conflicting interest |
134 | |||
| Definition of terms used in Section 18.14(d) |
137 | |||
| “security” |
137 | |||
| “securities” |
137 | |||
| “voting security” |
137 | |||
| “director” |
137 | |||
| “executive officer” |
138 | |||
| “underwriter” |
138 | |||
| “Company” |
138 | |||
| Computation of percentages under subsection (d) |
138 | |||
| Application of this section to separate or co-trustee |
140 | |||
| SEC. 18.15—Obligation of Trustee as creditor of Company to account |
140 | |||
| Exceptions to obligation to account |
141 | |||
ix
| Disposition of special account |
142 | |||
| This section binding on Trustee who has resigned; exceptions |
143 | |||
| Definitions |
143 | |||
| “default” |
143 | |||
| “other indenture securities” |
143 | |||
| Creditor relationships excluded from this section in certain cases |
143 | |||
| Definition of terms in this section |
145 | |||
| “cash transaction” |
145 | |||
| “self-liquidating paper” |
145 | |||
| “Trustee” |
145 | |||
| “Company” |
145 | |||
| SEC. 18.16—Trustee may resign; procedure |
145 | |||
| SEC. 18.17—Trustee may be removed; procedure |
146 | |||
| SEC. 18.18—Appointment of successor Trustee; procedure |
146 | |||
| Lien of Trustee after resignation or removal |
147 | |||
| SEC. 18.19—Appointment of separate or co-trustees |
147 | |||
| Conditions subject to which separate or co-trustee is to be appointed |
148 | |||
| (1) Rights, etc., to be exercised jointly |
148 | |||
| (2) Authentication, etc., of bonds |
148 | |||
| (3) Removal or resignation of separate or co-trustee; appointment of successor |
148 | |||
| (4) No personal liability for acts of other trustees |
149 | |||
| Notices to trustees |
149 | |||
| Contents, filing, etc., of instrument appointing trustee |
149 | |||
| Separate or co-trustee may appoint Trustee as agent |
149 | |||
| Effect of resignation, incapacity, etc., of separate or co-trustee |
149 | |||
| Application of Sections 10.04, 14.02, 18.02 and 18.03 to separate or co-trustee |
150 | |||
| SEC. 18.20—Instruments to be executed by successor trustee |
150 | |||
| Requirements of predecessor on retiring |
150 | |||
| SEC. 18.21—Effect of merger or consolidation of Trustee |
150 | |||
| ARTICLE XIX | ||||
| DISCHARGE OF MORTGAGE | ||||
| SEC. 19.01—Discharge of mortgage by Trustee |
151 | |||
| When bonds deemed paid |
152 | |||
| ARTICLE XX | ||||
| MEETINGS OF BONDHOLDERS | ||||
| SEC. 20.01—Modification of Indenture |
152 | |||
| SEC. 20.02—Call of meeting by Trustee |
152 | |||
| Call of meeting by bondholders |
152 | |||
| Place, when called by Trustee |
153 | |||
| Written notice |
153 | |||
| Published notice |
153 | |||
| Place, when called by Company or bondholders; notice |
153 | |||
x
| When notice not required |
153 | |||
| SEC. 20.03—Attendance at meetings |
154 | |||
| Certificate in lieu of production of unregistered bonds |
154 | |||
| SEC. 20.04—Persons entitled to vote at meetings |
154 | |||
| Further conditions of voting |
155 | |||
| Proxies |
155 | |||
| SEC. 20.05—Temporary chairman and secretary |
155 | |||
| Permanent chairman and secretary |
155 | |||
| Inspectors of votes |
155 | |||
| SEC. 20.06—Quorum |
156 | |||
| Notice of adjournment |
156 | |||
| SEC. 20.07—Vote required for modification, alteration, etc., of Indenture and/or rights thereunder; limitations thereon |
157 | |||
| Opinion of counsel |
158 | |||
| SEC. 20.08—Record of meetings |
158 | |||
| Conclusiveness of record |
158 | |||
| Copy of resolutions to be mailed to bondholders |
158 | |||
| Necessity of approval of resolutions by Company |
159 | |||
| When Company, Trustee and bondholders bound |
159 | |||
| Proviso |
159 | |||
| SEC. 20.09—Notation on bonds of action taken |
159 | |||
| New bonds may be issued |
159 | |||
| Supplemental indentures may be executed; compliance with Trust Indenture Act |
160 | |||
| SEC. 20.10—Company may stipulate that provisions of this article shall be of no effect in certain cases |
160 | |||
| ARTICLE XXI | ||||
| MISCELLANEOUS | ||||
| SEC. 21.01—Limitation of rights hereunder |
160 | |||
| SEC. 21.02—Investment of cash by Trustee in certain securities |
161 | |||
| Investments part of pledged property |
161 | |||
| SEC. 21.03—Deposit with Trustee of funds to pay overdue bonds and coupons |
161 | |||
| When Trustee to pay over to Company amount unclaimed |
162 | |||
| SEC. 21.04—Rights hereunder may be waived by Company |
162 | |||
| Company may make further covenants |
162 | |||
| Correction of ambiguities, etc. |
162 | |||
| Supplemental instruments |
162 | |||
| SEC. 21.05—Successors and assigns |
163 | |||
| SEC. 21.06—Due date of Indenture |
163 | |||
| SEC. 21.07—Trust Indenture Act requirements control |
163 | |||
| SEC. 21.08—“Trust Indenture Act” defined |
163 | |||
| SEC. 21.09—Titles of articles, marginal notations and table of contents not a part hereof |
164 | |||
| SEC. 21.10—Execution in counterparts |
164 | |||
| Testimonium |
164 | |||
| Signatures and seals |
164 | |||
| Acknowledgments |
165 | |||
xi
xii
Indenture, made as of the first day of February, 1945 between THE LACLEDE GAS LIGHT COMPANY, a corporation of the State of Missouri, hereinafter sometimes called the Company, party of the first part, and MISSISSIPPI VALLEY TRUST COMPANY, a corporation of the State of Missouri, hereinafter sometimes called the Trustee, party of the second part;
WHEREAS, the Company desires to borrow money for its corporate purposes and to issue its bonds therefor from time to time in one or more series, and to mortgage and pledge its property hereinafter described or mentioned, to secure the payment of the same, such bonds to be coupon bonds and/or fully registered bonds, authenticated by the certificate of the Trustee and issuable as in this Indenture hereinafter provided, such coupon bonds, coupons, fully registered bonds and Trustee’s certificate to be substantially in the forms following, respectively, with such insertions, omissions and variations as the Board of Directors of the Company may determine in accordance with the provisions of this Indenture:
[GENERAL FORM OF COUPON BOND]
THE LACLEDE GAS LIGHT COMPANY
FIRST MORTGAGE BOND
No Series $
THE LACLEDE GAS LIGHT COMPANY, a corporation of the State of Missouri (hereinafter called the Company), for value received, hereby promises to pay to the bearer, or, if this bond be registered, to the registered owner hereof, on , , at the office or agency of the Company in , Dollars 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 interest thereon from the date
hereof at the rate of per centum per annum in like coin or currency, at said office or agency on and in each year, until the Company’s obligation with respect to the payment of such principal shall have been discharged, but only, in the case of interest due on or before maturity, according to the tenor and upon presentation and surrender of the respective coupons therefor hereto attached, as they severally mature.
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, 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 (herein called the Mortgage), dated as of February 1, 1945, executed by the Company to Mississippi Valley Trust Company, as Trustee, 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 bearers or registered 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 holders 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 affirmative vote of the holders of at least sixty-six and two-thirds per centum (662⁄3%) in principal amount of the bonds affected by such modification or alteration, then outstanding under the Mortgage (excluding bonds disqualified from voting by reason of the Company’s interest therein as provided in the Mortgage); provided that no such modification or alteration shall permit the extension of the maturity of the principal of this bond or the reduction in the rate of interest hereon or any other modification in the terms of payment of such principal or interest or the creation of a lien on the mortgaged and pledged property ranking prior to or on a parity with the lien of the Mortgage or the deprivation of the holder hereof of a lien upon such property
2
without the consent of the holder hereof except that the holders of not less than seventy-five per centum (75%) in principal amount of the bonds at the time outstanding may consent on behalf of the holders of all bonds at the time outstanding to the postponement of any interest payment for a period not exceeding three years from its due date.
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.
This bond is negotiable and shall pass by delivery unless registered as to principal in the owner’s name at the office or agency of the Company in , and such registration noted hereon, after which no valid transfer hereof can be made, except at such office or agency, until after registered transfer to bearer, but after such registered transfer to bearer this bond shall be again transferable by delivery. Such registration, however, shall not affect the negotiability of the coupons, which shall always remain payable to bearer, be treated as negotiable and be transferable by delivery. The Company and the Trustee may deem and treat the bearer of this bond if it be not registered as to principal, or, if this bond is registered as herein authorized, the person in whose name the same is registered, and the bearer of any coupon hereto appertaining, as the absolute owner for the purpose of receiving payment and for all other purposes.
No recourse shall be had for the payment of the principal of or 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.
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Neither this bond nor the coupons hereto attached shall become obligatory until Mississippi Valley Trust Company, the Trustee under the Mortgage, or its successor thereunder, shall have signed the form of certificate endorsed hereon.
IN WITNESS WHEREOF, THE LACLEDE GAS LIGHT COMPANY has caused this bond to be signed in its name by its President or one of its Vice-Presidents and a facsimile of its corporate seal to be imprinted hereon and attested by its Secretary or one of its Assistant Secretaries, and interest coupons bearing the facsimile signature of its Treasurer to be attached hereto.
Dated,
| THE LACLEDE GASLIGHT COMPANY, | ||
| By: |
| |
| President. | ||
Attest:
|
|
| Secretary. |
[GENERAL FORM OF COUPON]
No. Series $
On , , THE LACLEDE GAS LIGHT COMPANY will pay to bearer at its office or agency in , Dollars 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, as specified in its First Mortgage Bond, Series No , being six months’ interest then due on said bond.
This coupon shall be treated as negotiable. It will not be payable if said bond shall have previously become payable or been called for previous redemption and payment duly provided for.
|
|
| Treasurer. |
4
[GENERAL FORM OF FULLY REGISTERED BOND]
THE LACLEDE GAS LIGHT COMPANY
FIRST MORTGAGE BOND
No. Series $
THE LACLEDE GAS LIGHT COMPANY, a corporation, of the State of Missouri (hereinafter called the Company), for value received, hereby promises to pay to or registered assigns, on , at the office or agency of the Company in , Dollars 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 interest thereon from the or next preceding the date of this bond, at the rate of per centum ( %) per annum in like coin or currency, at said office or agency on and in each year, until the Company’s obligation with respect to the payment of such principal shall have been discharged.
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, 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 (herein called the Mortgage), dated as of February 1, 1945, executed by the Company to Mississippi Valley Trust Company, as Trustee, 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 bearers or registered owners of the bonds in respect thereof, the duties and immunities of the Trustee and the terms and conditions upon which
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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 holders 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 affirmative vote of the holders of at least sixty-six and two-thirds per centum (662⁄3%) in principal amount of the bonds affected by such modification or alteration, then outstanding under the Mortgage (excluding bonds disqualified from voting by reason of the Company’s interest therein as provided in the Mortgage); provided that no such modification or alteration shall permit the extension of the maturity of the principal of this bond or the reduction in the rate of interest hereon or any other modification in the terms of payment of such principal or interest or the creation of a lien on the mortgaged and pledged property ranking prior to or on a parity with the lien of the Mortgage or the deprivation of the holder hereof of a lien upon such property without the consent of the holder hereof except that the holders of not less than seventy-five per centum (75%) in principal amount of the bonds at the time outstanding may consent on behalf of the holders of all bonds at the time outstanding to the postponement of any interest payment for a period not exceeding three years from its due date.
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.
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 , upon surrender and cancellation of this bond and upon presentation of a written instrument of transfer, duly executed, 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.
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No recourse shall be had for the payment of the principal of or 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 Mississippi Valley Trust Company, the Trustee under the Mortgage, or its successor thereunder, shall have signed the form of certificate endorsed hereon.
IN WITNESS WHEREOF, THE LACLEDE GAS LIGHT COMPANY has caused this bond to be signed in its name by its President or one of its Vice-Presidents and a facsimile of its corporate seal to be imprinted hereon and attested by its Secretary or one of its Assistant Secretaries.
Dated,
| THE LACLEDE GAS LIGHT COMPANY, | ||
| By |
| |
| President. | ||
Attest:
|
|
| Secretary. |
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[FORM OF TRUSTEE’S CERTIFICATE ON AI.L BONDS]
This bond is one of the bonds, of the series herein designated, provided for in the within-mentioned Mortgage.
| MISSISSIPPI VALLEY TRUST·COMPANY, | ||
| TRUSTEE | ||
| By |
| |
| Authorized Officer. | ||
and
WHEREAS, all things necessary to make said bonds when duly authenticated by the Trustee and issued by the Company, valid, binding and legal obligations of the Company, and to make this Indenture a valid, binding and legal instrument for the security thereof, have been performed, and the issue of said bonds as in this Indenture provided has been in all respects duly authorized;
NOW, THEREFORE, THIS INDENTURE WITNESSETH: That The Laclede Gas Light 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 hereunder, according to their tenor and effect and the performance of all the provisions hereof (including any instrument supplemental hereto and any modification or alteration made as in this Indenture provided) 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 Mississippi Valley Trust Company, 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:
NO. 1 — FIRST AND MULLANPHY STREETS
The following described property situated in the City of St. Louis and State of Missouri, to-wit: A parcel of land in and immediately east of City Block 234, (formerly City Blocks 234 and 235) of the City
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of St. Louis: Beginning at the southeast corner of First (or Main) Street and Mound Street, thence east along the south line of Mound Street 337 feet 6 inches to the east line of said City Block 234, thence south along the east line of said City Block 147 feet 6 inches, more or less, to the north line of a tract of land acquired by The Laclede Gas Light Company by deed recorded in Book 437 on Page 417 in the Office of the Recorder of Deeds for the City of St. Louis, thence east along the north line of said tract 250 feet, more or less, to the Mississippi River, thence south along the Mississippi River to the north line of Mullanphy Street produced eastwardly, thence west along said prolonged north line of Mullanphy Street and the north line of Mullanphy Street as now established, 500 feet, more or less, to a point 90 feet east of First Street, thence north and parallel to First Street 60 feet, thence west and parallel to Mullanphy Street 90 feet to the east line of First Street, and thence north along that line 525 feet 6 inches to the point of beginning; excepting therefrom the following tracts designated as (a), (b), (c) and (d):
(a) Beginning at a point in the northeast corner of said City Block 234, thence west along the south line of Mound Street 169.5 feet to a point, thence south and at right angles with said Mound Street 138 feet, thence east and parallel with Mound Street 77.5 feet, thence south and at right angles with Mound Street 109 feet, thence east and parallel with Mound Street 101.94 feet to the east line of said City Block 234, and thence north 247.2 feet to the initial point.
(b) Beginning at a point 65.8 feet east of the east line of said City Block 234 and 147.5 feet south of the south line of Mound Street, extended eastwardly, said beginning point being in the north line of property acquired by The Laclede Gas Light Company by deed recorded in Book 437 on Page 417 and in the east line of the right-of-way of the Wabash Railroad Company, thence south with the railroad-right-of-way 77 feet, thence east and parallel with Mound Street, extended, 45 feet, thence north and parallel with said railroad right-of-way 17 feet, thence east and parallel with Mound Street, extended, 110 feet, thence south and parallel with said railroad right-of-way 61 feet, thence east to the Mississippi River, thence northwardly along and with said River 121 feet, more or less, to the north line of property acquired by The Laclede Gas Light Company by deed recorded in Book 437 on Page 417,
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and thence west with said property line to the initial point.
(c) The railroad rights-of-way as now located running across said property from north to south.
(d) A strip of land bounded on the east by the Mississippi River, on the west by the east line of said City Block 234, on the south by the north line of Mullanphy Street, extended eastwardly, and on the north by a line parallel with and distant 137.5 feet north of the north line of Mullanphy Street extended.
NO. 2 — SARAH STREET AND EVANS AVENUE
The Western 23 feet of lot 26, all of lots 27, 28, 29 and 30 in Block 11 of Evans Place and in Block 3732 of the City of St. Louis, beginning at the point of intersection of the North line of Evans Avenue with the East line of Sarah Street; thence northwardly along the East line of Sarah Street 165 feet 10 inches, more or less, to the North line of said lot 30; thence eastwardly along the North line of said lots 30, 29, 28 and 27 and the Western 23 feet of lot 26, 205 feet, more or less, to a point; thence southwardly and parallel with the east line of Sarah Street, a distance of 165 feet 10 inches, more or less, to the North line of Evans Avenue; thence west along the north line of Evans Avenue 205 feet to the point of beginning.
NO. 3 — SECOND AND RUTGER STREETS
1. All of Block 197 of the City of St. Louis; bounded west by Second Street, north by Convent Street, east by First Street, and south by Rutger Street.
2. A parcel of land in Blocks 199 and 200 of the City of St. Louis, and described as follows:—Beginning at the point of intersection of the south line of Rutger Street and the west line of First Street, thence southwardly along the west line of First Street, a distance of 437 feet 5 inches, more or less, to the north line of Park Avenue; thence westwardly along the north line of Park Avenue, a distance of 506 feet 5 inches, more or less, to the east line of the north and south alley in
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City Block 200; thence northwardly along the east line of said alley, a distance of 425 feet 2 inches, more or less, to the south line of Rutger Street; thence eastwardly along the south line of Rutger Street, a distance of 514 feet 21⁄2 inches, more or less, to the point of beginning: EXCEPTING therefrom a north and south alley, 20 feet wide, in City Block 199; and that part of Kosciusko Street lying north of Park Avenue, and which separates City Block 199 from City Block 200.
3. Lots 13, 14, 15 and 16 of School Land Subdivision and in block 200 of the City of St. Louis, having an aggregate front of 111 feet 6 inches on the east line of Second Street, by a depth eastwardly of 111 feet 10 inches on the north line of lot 16, and of 114 feet 101⁄2 inches on the south line of lot 13, to an alley; bounded on the north by Rutger Street.
NO. 4 — PIEDMONT AVENUE AND GASCONADE STREET
A parcel of land in Blocks 2617 and 2618 of the City of St. Louis, and described as follows:—Beginning at the point of intersection of the east line of Piedmont Avenue, 80 feet wide, and the south line of Gasconade Street; thence eastwardly along the south line of Gasconade Street, a distance of 269 feet 6 inches, more or less, to the west line of lot 32 of Ormston Place; thence southwardly along the said west line of lot 32, a distance of 123 feet 6 inches, more or less, to the south line of lots 32, 31, 30 and 29 of Ormston Place; thence along the said south line of lots 32, 31, 30 and 29, a distance of 104 feet, more or less, to the western end of a public alley; thence southwardly along the western end of said public alley, the west line of lot 13 of Ormston Place, and the western end of Hickman Street, a distance of 178 feet 6 inches to the south line of Hickman Street; thence continuing southwardly on a line at right angles to the north line of Meramec Street, prior to vacation thereof by Ordinance No. 41764, a distance of 48 feet, more or less, to a point in a line 250 feet north of and parallel with the north line of Meramec Street, prior to vacation thereof; thence westwardly along said line 250 feet north of said Meramec Street, a distance of 370 feet, more or less, to the east line of Piedmont Avenue, thence northwardly along the east line of Piedmont Avenue a distance of 350 feet, more or
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less, to the point of beginning. Said parcel being bounded on the north partly by Gasconade Street, and partly by lots 29, 30, 31 and 32 of Ormston Place; on the east partly by lots 32 and 13 of Ormston Place, and partly by a public alley, Hickman Street and land conveyed by The Laclede Gas Light Company to the City of St. Louis by deed recorded in book 5785 page 272; on the south by land conveyed by The Laclede Gas Light Company of the City of St. Louis by said deed recorded in book 5785 page 272, and on the west by Piedmont Avenue.
NO. 5 — FOURTEENTH AND GRATIOT STREETS
All of Block 446 of the City of St. Louis; bounded east by 14th Street, south by Singleton Street, west by 15th Street, and north by Gratiot Street.
NO. 6 — SPRUCE STREET
Lots 15 to 25, both inclusive, and a strip off the east side of lot 26, all in Block 5 of Adam’s Addition, and in Block 1724 of the City of St. Louis, having an aggregate front of 275 feet 111⁄2 inches on the north line of Spruce Street, by a depth northwardly of 114 feet 9 inches, more or less, to an alley, on which there is an aggregate width of 275 feet 11⁄2 inches; bounded on the east by lot 14 of said Block and Addition and on the west by the remaining portion of lot 26, owned now or formerly by John Lynn.
NO. 7 — CALIFORNIA AND GRAVOIS AVENUES
Lots 2 to 8, both inclusive, in Block 13 of Durand Tract, and in Block 1425 north of the City of St. Louis, having an aggregate front of 189 feet 6 inches on the west line of California Avenue, by an irregular depth westwardly to an alley; bounded on the north by an alley and on the south by Gravois Avenue: EXCEPTING therefrom the triangular southeast part of lot 2, at the intersection of Gravois and California Avenues, dedicated to public use by plat recorded in Plat book 16 page 123.
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NO. 8 — FOREST PARK BOULEVARD
A parcel of ground in block 26 of Peter Lindell’s Second Addition, and lots 7 to 14, both inclusive, of Forest Park Boulevard Subdivision by John Jackson, all in Block 3918 west of the City of St. Louis, having an aggregate front of 765 feet 63⁄8 inches on the south line of Forest Park Avenue, by a depth southwardly of 200 feet to an alley, on which there is an aggregate width of 765 feet 67⁄8 inches, more or less; bounded on the east by a line 300 feet west of the west line of Vandeventer Avenue, and on the west by lots 6 of Forest Park Boulevard Subdivision by John Jackson.
NO. 9— SWITCH TRACK RIGHT-OF-WAY
Undivided one-third interest in right-of-way for switch track over two parcels of land, (1) in City Block 3918-W and (2) in City Block 3953, both of the City of St. Louis, Missouri.
1. A strip of land 14.0 feet wide whose center line intersects the south line of a public alley in City Block 3918-W, 408 feet 41⁄2 inches west of the west line of Vandeventer Avenue and thence in a south-eastwardly direction to the north line of Duncan Avenue, which it intersects at a point 176 feet 5 inches west of the west line of Vandeventer Avenue.
2. A strip of land of varying width, whose west line begins at a point in the south line of Duncan Avenue and thence southwestwardly 521.3 feet where it terminates in a point 492.1 feet, more or less, south of south line of Duncan Avenue and 262.2 feet, more or less, west of the west line of Vandeventer Avenue.
Said parcels (1) and (2) being the same parcels conveyed to The Laclede Gas Light Company by deed recorded in Book 5900, page 335.
NO. 10 — DUNCAN AVENUE
Lots 15, to 28, both inclusive, of Forest Park Boulevard Subdivision of Block 27 of P. Lindell’s Second Addition by John Jackson, and in
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Block 3918 west of the City of St. Louis, having an aggregate front of 682 feet 8 inches on the north line of Duncan Avenue, by a depth northwardly along the east line of lot 15 of 194 feet 8 inches, and along the west line of lot 28 of 191 feet 3 inches, to the south line of an alley, on which there is an aggregate width of 682 feet 81⁄2 inches; bounded on the east by property now or formerly of Granite Bituminous Paving Company and on the west by Sarah Street.
NO. 11 — CHEVROLET AVENUE
Lots 7 to 19 and part of lot 20 in block 1 of General Motors Park and in block 5733 of the City of St. Louis, also lots 10 to 21 and part of lot 22, part of lots 26 and 27, all of lots 28 to 37 in block 2 of General Motors Park and in block 5734 of the City of St. Louis, also part of lot “K” of the Subdivision of Alice E. Davis Estate, according to plat filed in Plat book 8 page 96 of the St. Louis County Recorder’s Office, U.S. Survey 1913, and in Out lot 102 of the City of St. Louis, also part of Lexington Avenue, vacated by Ordinance No. 30973 and North and South alley in block 5733 of the City of St. Louis, conditionally vacated by Ordinance No. 38229; Beginning at a point in the west line of Hamilton Avenue 136 feet 93⁄8 inches south of the south line of Natural Bridge Avenue, as widened pursuant to the provisions of Ordinance No. 30828, being also the south line of an alley 15 feet wide dedicated on the plat of block 2 of General Motors Park, according to plat recorded in Plat book 20 page 26, thence west and parallel with the south line of Natural Bridge Avenue, and along the south line of said alley as shown on plat of blocks 1 and 2 of General Motors Park, according to plat recorded in Plat book 20 page 26 and south line of an alley 15 feet wide as shown on the plat of blocks 1 and 2 of Natural Bridge Terminal Loop Subdivision, according to plat recorded in Plat book 20 page 55, a distance of 1041 feet, more or less, to property of Florissant Construction Real Estate and Investment Company, being also the west line of said lot “K”, Davis Estate; thence south along the east line of property of Florissant Construction Real Estate and Investment Company 630 feet, more or less, to a point, being the southeast corner of
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property of Florissant Construction Real Estate and Investment Company; thence east 928 feet, more or less, to the west line of Hamilton Avenue at a point 325 feet south of the south line of point of beginning; thence north along the west line of Hamilton Avenue 325 feet to the south line of an alley and point of beginning. (EXCLUSIVE of Chevrolet Avenue and alley in City block 5734 dedicated to public use as shown on the plats of blocks 1 and 2 of General Motors Park, according to plat recorded in Plat book 20 page 26 and East and West alley on south side of City block 5733, according to plat recorded in Plat book 24 page 16).
NO. 12 — BROADWAY AND RIVER DES PERES
1. A parcel of land in St. Louis County, situated immediately east of Broadway and immediately South of the Southern City Limits and described as follows: Beginning at a point on the East line of Broadway at its intersection with the Southern City Limits of the City of St. Louis; thence running eastwardly along said City Limits Line, about 1800 feet to its intersection with the West line of property now or formerly of Missouri Pacific Railroad Company; thence Southwardly along the West line of property of said Railroad Company about 2468 feet to a point 226 feet North of the South line of Allen’s Subdivision in the Chouquette Tract; thence Westwardly and parallel with said South line of said Subdivision about 106.9 feet to the Northeast corner of Lot 7 in Block 4 of said Allen’s Subdivision in the Chouquette Tract; thence Southwardly along the East line of said Lot 7 in Block 4 of said Subdivision 226 feet to the South line of said Allen’s Subdivision in the Chouquette Tract; thence Westwardly along said line about 2317 feet to its intersection with the east line of Broadway and thence northwardly along the east line of Broadway about 2519 feet 8 inches to the place of beginning.
2. A parcel of land in the City of St. Louis, Missouri, lying immediately north of the Southern City Limits and east of Broadway, and described as follows: Beginning at a point on the east line of Broadway 60 feet wide at its intersection with the Southern City Limits of the
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City of St. Louis; thence running northwardly along the east line of Broadway about 187 feet 23⁄4 inches to the center line of River des Peres; thence eastwardly along said center line of River des Peres about 10 feet to the east line of Broadway now widened to a width of 80 feet; thence northwardly along the east line of Broadway about 457 feet to the South line of Lorentz Street; thence eastwardly along the south line of Lorentz Street about 352 feet 31⁄2 inches to the east line of Water Street; thence northwardly along the East line of Water Street about 373 feet 8 inches to a point 20 feet south of the north line of Lot 64 of Ivory’s Subdivision in Block 3250 of the City of St. Louis; thence eastwardly along a line parallel to the south line of Catalan Street 155 feet 43⁄4 inches to a point on the east line of an alley in said Block; thence north along the east line of said alley about 292 feet 6 inches to the south line of Catalan Street; thence eastwardly on the south line of Catalan Street about 2140 feet to the Mississippi River; thence southwardly along said River about 900 feet to the center line of the River des Peres, thence westwardly and southwestwardly along center line of said River des Peres, about 1472 feet to its intersection with the west line of property now or formerly of Missouri Pacific Railroad Company; thence southwardly along the west line of property of Missouri Pacific Railroad Company about 260 feet to its intersection with the Southern City Limits of the City of St. Louis; thence westwardly along the Southern City Limits of the City of St. Louis, about 1800 feet to the place of beginning; EXCEPTING therefrom however the following described parcels of land: (a), (b), (c), and (d).
(a) A certain strip of land 50 feet wide and about 928 feet 41⁄2 inches long being the right-of-way of the Missouri Pacific Railroad Company and more particularly described as follows: A strip of land 25 feet wide on each side of a center line beginning at a point on the South line of Catalan Street 600 feet 31⁄2 inches east of the east line of Polk Street; thence running southwardly at an angle of 88 degrees 287⁄8 minutes with the south line of Catalan Street a distance of about 928 feet 41⁄2 inches to the left hand or North boundary line of Right-of-Way of River des Peres Drainage Works as described in Ordinance No. 32986 of the City of St. Louis, approved April 16, 1924.
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(b) A strip of land 280 feet wide between Broadway and the Mississippi River and being the right-of-way of the River des Peres Drainage Works and more particularly described in said Ordinance No. 32986.
(c) A strip of land 20 feet wide and about 1860 feet long fronting on the east line of Broadway and lying south of, parallel to and abutting on the said Right-of-Way of said River des Peres Drainage Works, and extending from Broadway eastwardly to the center line of the River des Peres, said center line of River des Peres being also the western line of property now or formerly of Missouri Pacific Railroad Company.
(d) A parcel of land bounded on the west by the original east lines of Blocks 78 and 87 of Survey 3 of the Carondelet Commons North of the River des Peres, on the east by the Mississippi River, on the north by the south line of Catalan Street extended east to the Mississippi River and on the south by the center line of the River des Peres.
NO. 13 — CHOUTEAU AND NEWSTEAD AVENUES
A tract of land in United States Survey 3307 and in block 4807 of the City of St. Louis, fronting 621 feet 41⁄4 inches, more or less, on the north line of Chouteau Avenue, by a depth northwardly of 250 feet, more or less, to an alley; bounded on the east by Newstead Avenue, and on the west by property now or formerly of Walter Freund Bread Company.
NO. 14— LEASEHOLD — ELEVENTH AND OLIVE STREETS
A leasehold expiring March 30, 2005, in a tract of land in Block 280 of the City of St. Louis, having a front of ninety-eight (98) feet eight (8) inches on the north side of Olive Street by a depth northwardly to an alley, bounded west by Eleventh Street and east by property now or formerly of Rebecca W. Sire; the said tract of land is improved by a modern ten (10) story office building which was erected in 1913.
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Whenever any reference is hereinabove made to any deed or deeds, conveyance or conveyances, or other documents, such reference shall in no way be in limitation of the properties granted or mortgaged herein but shall be deemed to have been inserted to aid in identifying the premises therein mentioned and described.
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 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 hereinbefore described or referred to;
TOGETHER WITH all and singular the tenements, hereditaments and appurtenances belonging or in any wise 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 hereof, hereinafter contained), 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
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Company now has or may hereafter acquire in and to the aforesaid property and franchises and every part and parcel thereof;
IT IS HEREBY AGREED by the Company that all the property, rights and franchises acquired by the Company after the date hereof (except any hereinbefore or hereinafter expressly excepted) shall be as fully embraced within the lien hereof as if such property, rights and franchises were now owned by the Company and were specifically described herein and specifically conveyed hereby;
Provided that the following are not and are not intended to be now or hereafter granted, bargained, sold, released, conveyed, assigned, transferred, mortgaged, pledged, set over or confirmed hereunder and are hereby expressly excepted from the lien and operation of this Indenture, viz.: (1) cash, shares of stock and obligations (including bonds, notes and other securities) not hereafter specifically pledged, paid, deposited or delivered hereunder or hereinafter covenanted so to be; and (2) any goods, wares, merchandise, equipment, materials or supplies acquired for the purpose of sale or resale in the usual course of business or for consumption in the operation of any properties of the Company; construction equipment acquired for temporary use; vehicles and automobiles; and (3) all judgments, accounts and choses-in-action, the proceeds of which the Company is not obligated as hereinafter provided to deposit with the Trustee hereunder; provided, however, that the property and rights expressly excepted from the lien and operation of this Indenture in the foregoing subdivisions (2) and (3) shall (to the extent permitted by law) cease to be so excepted in the event that the Trustee or a receiver or trustee shall enter upon and take possession of the mortgaged and pledged property by reason of the occurrence of a completed default as defined in said Article XIV;
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;
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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 herein 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 defined in Section 1.06 hereof, and subject, with respect to property 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 herein set forth, for the benefit and security of those who shall hold the bonds and coupons issued and to be issued hereunder, or any of them, in accordance with the terms of this Indenture without preference, priority or distinction as to lien of any of said bonds and coupons over any others 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 hereinafter 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 this Indenture, and that the lien and security of this Indenture shall take effect from the date of execution and delivery hereof as though all of the said bonds of all series were actually authenticated and delivered and issued upon such date;
PROVIDED, HOWEVER, and these presents are upon the condition that if the Company, its successors or assigns, shall pay or cause to be paid, the principal of and interest on the bonds, together with the premium, if any, payable on such of said bonds as may have been called for redemption prior to maturity, or shall provide, as permitted hereby,
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for the payment thereof by depositing with the Trustee the entire amount due or to become due thereon for principal, interest and premium, if any, and if the Company shall also pay or cause to be paid all other sums payable hereunder by it, then this Indenture and the estate and rights hereby granted shall cease, determine and be void, otherwise to be and remain in full force and effect.
IT IS HEREBY COVENANTED, DECLARED AND AGREED by and between the parties hereto, that all such bonds and coupons are to be authenticated, delivered and issued and that all property subject or to become subject hereto is to be held subject to the further covenants, conditions, uses and trusts hereinafter set forth, and the Company, for itself and its successors and assigns, docs 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 said bonds and interest coupons, or any of them, as follows:
ARTICLE I.
DEFINITIONS
SECTION 1.01. The terms specified in the next succeeding six Sections hereof, numbered from 1.02 to 1.07, both inclusive, shall (except as herein otherwise expressly provided or unless the context otherwise requires), for all purposes of this Indenture, and of any indenture supplemental hereto, have the meanings in such Sections specified. All other terms used in this Indenture which are defined in the Trust Indenture Act of 1939 or which are by reference therein defined in the Securities Act of 1933, as amended, (except as herein otherwise expressly provided) shall have the meanings assigned to such terms in said Trust Indenture Act and in said Securities Act as they were in force on the date of the execution of this Indenture.
SECTION 1.02. The term “the Company” shall mean the party of the first part hereto, THE LACLEDE GAS LIGHT COMPANY, and subject to the provisions of Article XVII hereof, shall also include its successors and assigns.
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The term “the Trustee” shall mean the party of the second part hereto, MISSISSIPPI VALLEY TRUST COMPANY, and, subject to the provisions of Article XVIII hereof, shall also include its successors and assigns.
The term “this Indenture” shall mean this instrument of mortgage and deed of trust, either as originally executed or as the same may from time to time be supplemented, modified, altered or amended by any supplemental indenture entered into pursuant to the provisions hereof.
The terms “the lien hereof” and “the lien of this Indenture” shall mean the lien created by these presents (including the after-acquired property clauses hereof) and the lien created by any subsequent conveyance or delivery to or pledge with the Trustee hereunder (whether made by the Company or any other corporation or any individual or copartnership) effectively constituting any property a part of the security held by the Trustee upon the terms and trusts and subject to the covenants, conditions and uses specified in this Indenture.
The term “the mortgaged and pledged property” shall mean as of any particular time the property which at said time is covered or intended to be covered by the lien of this Indenture whether such lien be created by these presents (including the after-acquired property clauses hereof) or by subsequent conveyance or delivery to or pledge with the Trustee hereunder or otherwise; property of the character described in clauses (2) and (3) of the proviso in the granting clauses of this Indenture which expressly excepts certain property from the lien and operation of this Indenture shall not be deemed to be included in the term “mortgaged and pledged property,” unless and until and then only so long as such excepted property shall cease to be so excepted as set forth in said proviso.
The term “outstanding”, subject to the provisions of the next succeeding paragraph hereof, shall mean as of any particular time with respect to bonds issued or issuable under this Indenture all bonds which theretofore shall have been authenticated and delivered by the Trustee under this Indenture, except (a) bonds theretofore paid, retired, redeemed or canceled and/or for the payment and/or redemption of which moneys in the necessary amount shall have been
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deposited with or shall then be held by the Trustee with irrevocable direction so
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to apply the same, (b) bonds deposited with or held in pledge by the Trustee under any of the provisions of this Indenture, and (c) bonds authenticated and delivered hereunder, upon transfer of which or in exchange or substitution for and/or in lieu of which other bonds have been authenticated and delivered under any of the provisions of this Indenture.
For the purposes of Sections 9.09, 9.12, 14.01, 14.05, 14.06, 14.16, 18.03, 18.17, 18.18, 18.20, 20.02, and 20.07 hereof, in determining the percentage of the principal amount of bonds outstanding (or of bonds of a particular series outstanding) entitling the holders thereof to take any action hereunder, or in determining whether the holders of the required percentage of the principal amount of bonds outstanding (or of bonds of a particular series outstanding) have concurred in any direction to the Trustee or in any consent, or in determining a quorum under Section 20.06 hereof, bonds owned by the Company or by any other obligor on the bonds, or by any person directly or indirectly controlling or controlled by or under direct or indirect common control with the Company or such obligor, shall be disregarded, except that for the purpose of determining whether the Trustee shall be protected in relying on any such direction or consent, only bonds which the Trustee knows are so owned shall be so disregarded. Bonds so owned which have been pledged in good faith may be regarded as outstanding for the purposes of this paragraph, if the pledgee shall establish to the satisfaction of the Trustee the pledgee’s right to vote such bonds and that the pledgee is not a person directly or indirectly controlling or controlled by or under direct or indirect common control with the Company or any other obligor on the bonds. In case of a dispute as to such right, any decision by the Trustee taken upon the advice of counsel shall be full protection to the Trustee.
The term “daily newspaper” shall mean a newspaper customarily published at least six days a week, exclusive of holidays.
SECTION 1.03. The term “resolution” shall mean a resolution certified under the corporate seal of the Company by the Secretary or an Assistant Secretary of the Company to have been duly adopted by the Board of Directors of the Company.
The term “engineer” shall mean an individual who is an engineer (who may be an employee of the Company) or a partnership or a
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corporation, engaged in an engineering business, appointed by the Board of Directors or Executive Committee or President of the Company and satisfactory to the Trustee.
The term “independent engineer” shall mean an engineer, who is independent, as that term is hereinafter’ in this Section defined, and who is selected by the Trustee in the exercise of reasonable care and approved by the Board of Directors or Executive Committee of the Company.
The term “accountant” shall mean any person actively engaged in accounting work and practicing accountancy, who need not be certified or licensed or public, and who may be in the regular employ of the Company. A regular employee of the Company who is principally engaged in accounting work shall be deemed to be an accountant.
The term “Treasurer’s certificate” shall mean a certificate signed and verified by the President or a Vice-President and the Treasurer or an Assistant Treasurer of the Company. Each such certificate shall include the statements required by Section 3.01 hereof.
The term “engineer’s certificate” shall mean a certificate signed and verified by the President or a Vice-President or the Treasurer of the Company and by an engineer. Each such certificate shall include the statements required by Section 3.01 hereof.
The term “independent engineer’s certificate” shall mean a certificate signed and verified by an independent engineer. Each such certificate shall include the statements required by Section 3.01 hereof.
The term “opinion of counsel” shall mean an opinion in writing signed by counsel (who may be of counsel to the Company) appointed by the Board of Directors or Executive Committee of the Company and satisfactory to the Trustee. Each such opinion shall include the statements required by Section 3.01 hereof. ‘
The term “independent”, when applied to any accountant, engineer, appraiser or other expert, shall mean such a person who (a) is in fact independent; (b) does not have any substantial interest, direct or indirect, in the Company or in any other obligor upon the bonds issued hereunder; and (c) is not connected with the Company or any other obligor upon the bonds issued hereunder as an officer, employee, trustee, partner, director, or person performing similar functions.
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The term “control” shall mean the power to direct the management and policies of a person, directly or through one or more intermediaries, whether through the ownership of voting securities, by contract, or otherwise, and the terms “controlling” and “controlled” shall have meanings correlative to the foregoing.
The term “person” shall have the meaning assigned to such term in the Securities Act of 1933, as approved May 27, 1933 and amended June 6, 1934.
The term “affiliate” shall mean a person controlling, controlled by, or under common control with, another person.
The acceptance by the Trustee of a certificate, opinion or appraisal shall be sufficient evidence of its appointment, selection or approval of the signer or signers within the meaning of this Indenture.
SECTION 1.04. (I) The term “property additions” shall mean plants, systems, lines, machinery, distribution, service and supply systems, property, real or personal, and permanent improvements, extensions or additions acquired by purchase, consolidation, merger, donation or in any way whatsoever subsequent to August 31, 1942, or made or constructed subsequent to August 31, 1942, or in the process of construction or erection in so far as actually constructed or erected subsequent to August 31, 1942, and used or useful or to be used in the business of manufacturing, distributing, transmitting or supplying gas, or any substitute therefor, for light, heat, power or other purposes, (including any property acquired from St. Louis County Gas Company, or any successor thereto) and properly chargeable to fixed capital account in accordance with the Classification of Accounts of the Missouri Public Service Commission. Without enlarging the definition of property additions above set forth or the purposes for which such property shall be used or useful, the term “property additions” shall not, however, include (1) any shares of stock or obligations (including bonds, notes and other securities), or (2) any leasehold estates (other than estates for twenty (20) years or more) or any improvements, extensions or additions thereon, or (3) except as herein otherwise specifically provided, going value, good will, franchises or governmental
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permits granted to or acquired by the Company, as such, separate and distinct from the property operated thereunder or in connection therewith or incident thereto, or (4) any goods, wares, merchandise, equipment, materials or supplies acquired for the purpose of sale or resale in the usual course of business or for consumption in the operation of any properties of the Company, or construction equipment acquired for temporary use, or vehicles or automobiles, or judgments, accounts or choses-in-action, or (5) any property the cost of acquiring, making or constructing which is chargeable to operating expenses in accordance with the Classification of Accounts of the Missouri Public Service Commission, or (6) any property located outside of the states of Missouri or Illinois, or (7) any improvements, extensions or additions to or upon the property, whether real, personal or mixed, described in contract dated August 12, 1942 entitled “Agreement for the Sale of Electrical Properties by and between Laclede Power & Light Company, The Laclede Gas Light Company and Phoenix Light, Heat and Power Company, Sellers, and Union Electric Company of Missouri, Buyer,” which said property is to be sold, conveyed, assigned and delivered prior to the delivery of this Indenture.
Any property (other than property of the character described in clauses (1) to (3) inclusive of the proviso in the granting clauses of this Indenture which expressly excepts certain property from the lien and operation of this Indenture and other than any property the cost of acquiring, making or constructing which is chargeable to operating expenses in accordance with the Classification of Accounts of the Missouri Public Service Commission) acquired by the Company subsequent to August 31, 1942, or made or constructed subsequent to August 31, 1942, or in the process of construction or erection in so far as actually constructed or erected subsequent to August 31, 1942, may, however, be deemed to be and treated as property additions for the following limited purposes:
(i) as a basis for the release from the lien of this Indenture of (x) any property owned by the Company on August 31, 1942 which is of such character as would not have been included within the term “property additions” (as hereinabove defined in the
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first paragraph of this Section 1.04) if it had been acquired or made or constructed subsequent to August 31, 1942, or (y) any property acquired or made or constructed subsequent to August 31, 1942 which is of such character as not to be included within the term “property additions” (as hereinabove defined in the first paragraph of this Section 1.04); property of the character described in subdivisions (x) and (y) of this clause (i) being hereinafter in this Indenture referred to as “unfundable property”;
(ii) as a basis for the withdrawal of the proceeds of insurance on, the consideration for the release of or the proceeds of the disposal of, any unfundable property;
(iii) as the basis of a credit under subdivision (b) of Section 9.07 hereof against retirements of unfundable property; and
(iv) for inclusion in the additions under the provisions of clause (B) of subdivision (II) of this Section 1.04 to such extent as may be necessary to equal the deductions under clause (A) of subdivision (II) of this Section 1.04 with respect to such unfundable property retired.
(II) When any property additions are certified to the Trustee in any certificate under any of the provisions of this Indenture as the basis either of the right to the authentication and delivery of bonds which are being applied for or of the right to the authentication and delivery of bonds which is being waived pursuant to the provisions of this Indenture, or as the basis of a credit under the provisions of Section 2.13 hereof, (A) there shall be deducted, except (if the Company shall so elect) in the case of property additions which consist of assets acquired from St. Louis County Gas Company, or any successor thereto, as provided in Section 6.07 hereof, from the cost or fair value thereof to the Company, as the case may be, an amount equal to the cost (or as to property additions the fair value of which at the time the same became funded property was less than the cost as determined pursuant to this Section, then such fair value in lieu of cost) of all funded property previously retired (other than the funded property, if any, in connection with the application for the release of which such certificate is
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filed) and not theretofore deducted from the cost or fair value to the Company of property additions theretofore certified to the Trustee and (B) there shall be added to such cost or fair value to the Company of property additions as the case may be, the sum of
(a) the principal amount of all obligations secured by purchase money mortgage and all cash (other than proceeds of such purchase money obligations) received by the Trustee or the trustee or other holder of any prior lien, in either case representing the proceeds of insurance on, the consideration for the release of or the proceeds of the disposal of, such funded property retired;
(b) the principal amount of any bond or fraction of a bond, the right to the authentication and delivery of which under the provisions of Section 7.01 hereof shall have been waived as the basis of the release of such funded property retired;
(c) ten-sixths (10/6ths) of the principal amount of each bond or fraction of a bond, the right to the authentication and delivery of which upon the basis of property additions shall have been waived as the basis of the release of such funded property retired; and
(d) the amount of the proceeds of insurance on or of the disposal of such funded property retired which shall have been applied by the Company to the acquisition or construction of property in substitution therefor or replacement thereof in the exercise by the Company of any right so to apply such proceeds without depositing such proceeds with the Trustee hereunder or with the trustee or other holder of a prior lien as hereinafter defined;
provided, however, that the aggregate of the amounts added under clause (B) above shall in no event exceed the amounts deducted under clause (A) above. For the purposes of the deductions required by this subdivision (II) of Section 1.04, the cost and/or the fair value of funded-property retired shall be determined as follows: (1) in the case of property which was owned by The Laclede Gas Light Company on August 31, 1942, the cost shall be the amount at which such property
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was carried in the fixed capital account on the books of the Company on August 31, 1942, or, if such amount shall subsequent to August 31, 1942 be adjusted on the books of the Company pursuant to any order, rule, regulation or recommendation of any governmental commission or other public authority having or assuming jurisdiction over the Company or over any of its property or business, then such adjusted amount; provided, however, that if any item of property retired is not separately carried on the books of the Company the amount shall be such amount, as shown on the books of the Company, as shall be allocated by the Company to such property retired; and (2) in the case of property additions retired, the cost and the fair value thereof, respectively, shall be the cost and the fair value thereof respectively, to the Company, as shown by the engineer’s certificate or independent engineer’s certificate furnished to the Trustee at the time such property additions became funded property, or, if not so separately shown, shall be such portion of the cost and/or the fair value to the Company of property additions properly allocable thereto, and in case such property additions shall not have been included in any engineer’s certificate or independent engineer’s certificate theretofore furnished to the Trustee, the cost and fair value thereof shall be as shown, as of the time when they became funded property, in an engineer’s certificate then delivered to the Trustee.
(III) The Company covenants that it will promptly retire or treat as retired for the purpose of this Indenture (1) such of the mortgaged and pledged property which at or subsequent to the date it became mortgaged and pledged property was or became used or useful in the Company’s business and thereafter ceased to be used or useful in the Company’s business; and (2) all mortgaged and pledged property that has been sold or disposed of by the Company.
SECTION 1.05. The term “funded property” shall mean:
(1) All property owned by The Laclede Gas Light Company on August 31, 1942 (other than property of the character described in clauses (1) to (3) inclusive of the proviso in the granting clauses hereof which expressly excepts certain property from the lien and
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operation of this Indenture and other than the property, whether real, personal or mixed, described in contract dated August 12, 1942 entitled “Agreement for the Sale of Electrical Properties by and between Laclede Power & Light Company, The Laclede Gas Light Company and Phoenix Light, Heat and Power Company, Sellers, and Union Electric Company of Missouri, Buyer,” which said property is to be sold, conveyed, assigned and delivered prior to the delivery of this Indenture and also other than any property retired subsequent to August 31, 1942 and prior to the delivery of this Indenture);
(2) All property additions to the extent that the same shall have been made the basis of the authentication and delivery of bonds under this Indenture or the waiver of the right to such authentication and delivery;
(3) All property additions to the extent that the same shall have been made the basis of the release from the lien of this Indenture of funded property, as defined in this Section;
(4) All property to the extent that the same shall have been substituted for or shall have replaced funded property, as defined in this Section, in the exercise by the Company of any right to apply the proceeds of insurance on, or of the disposal of, such funded property to the acquisition or construction of such substituted or replaced property without depositing such proceeds with the Trustee hereunder or with the trustee or other holder of a prior lien as hereinafter defined;
(5) All property additions to the extent that the same shall have been made the basis of the withdrawal of any funded cash, as hereinafter defined in this Section, held by the Trustee hereunder or by the trustee or other holder of a prior lien as hereinafter defined;
(6) All property additions to the extent that the same shall have been made the basis of a credit under the provisions of Section 2.13 hereof or under other similar devices for the retirement of bonds of one or more series issued hereunder;
(7) All property additions to the extent that the same shall
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have been made the basis of a credit under the provisions of subdivision (c) of Section 9.07 hereof.
If any funded property shall be released from the lien hereof as hereinafter in Article XIII provided, the property so released shall thereupon cease to be funded property but may at any time thereafter again become funded property.
The term “funded cash” shall mean:
(a) cash (held by the Trustee hereunder or by the trustee or other holder of a prior lien as hereinafter defined in Section 1.06 hereof) to the extent that it represents the proceeds of insurance on or the release of or the taking by eminent domain of funded property;
(b) cash held at any time in any sinking fund or other like device for the retirement of bonds of one or more series issued hereunder; but when all bonds of such one or more series shall have ceased to be outstanding hereunder, such cash shall no longer be deemed to be or to have been funded cash; or
(c) any cash deposited with the Trustee under Sections 2.13, 8.01 and/or 9.07 hereof.
SECTION 1.06. The term “excepted encumbrances” shall mean as of any particular time any of the following:
(a) liens for taxes, assessments or governmental charges not then delinquent;
(b) any liens or other encumbrances, neither assumed by the Company nor on which it customarily pays interest charges, existing upon real estate, or rights in or relating to real estate, acquired by the Company for sub-station, distribution line or right-of-way purposes, or gas purification purposes;
(c) rights reserved to or vested in any municipality or public authority by the terms of any franchise, grant, license, permit, or by any provision of law to terminate such franchise, grant, license or permit or to purchase or recapture or to designate a purchaser of any of the property of the Company;
(d) rights reserved to or vested in others to take or receive
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any part of the gas, or any substitute therefor, manufactured on or the power developed or generated by or distributed from any property of the Company;
(e) easements, rights-of-way, reservations, restrictions, covenants (other than for the payment of money), party wall agreements, conditions of record, landlords’ rights of restraint, and other similar encumbrances on any property of the Company, provided that none of the items mentioned in this subdivision (e) materially impairs the use by the Company of the affected property in the operation of the business of the Company;
(f) rights reserved to or vested in any municipality or public authority to use or control or regulate any property of the Company or to erect structures thereon; or
(g) any obligations or duties affecting the property of the Company to any municipality or public authority with respect to any franchise, grant, license or permit.
For the purposes of subdivision (e) of this Section 1.06, the absence of any material impairment of the use of property of the Company for the purposes for which it is held, subject to the provisions of Sections 18.02 and 18.03 hereof, may be conclusively established by an engineer’s certificate.
The term “prior lien” shall mean mortgage or other lien (not including excepted encumbrances as defined in this Section) prior to the lien of this Indenture, existing at any particular time upon any property additions (so long as such property additions remain subject to the lien hereof), then or theretofore made the basis under any of the provisions of this Indenture for the authentication and delivery of bonds or the withdrawal of cash or the release of property or the basis of a credit under the provisions of Section 2.13 or subdivision (c) of Section 9.07 hereof.
The term “prior lien bonds” shall mean bonds, obligations or principal indebtedness secured by prior liens.
The term “outstanding” with respect to prior lien bonds shall mean as of any particular time all prior lien bonds theretofore authenticated and delivered by the trustee or other holder of the prior lien securing the same and/or, if there be no such trustee or other holder,
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all prior lien bonds theretofore made and delivered by the maker (or his successor) of such prior lien and secured thereby and all other prior lien bonds otherwise secured, except (a) prior lien bonds theretofore paid, retired, redeemed, discharged or canceled, (b) prior lien bonds held in pledge hereunder, (c) prior lien bonds for the purchase, payment or redemption of which moneys in the necessary amount shall have been deposited with or be held, with irrevocable direction so to apply, by the Trustee hereunder or by the trustee or other holder of such prior lien, and (d) prior lien bonds upon transfer of which or in exchange or substitution for and/or in lieu of which other prior lien bonds have been authenticated and delivered or made and delivered under any of the provisions of the prior lien securing such prior lien bonds.
SECTION 1.07. The term “net earnings certificate” shall mean a certificate signed and verified by the President or a Vice-President and the Treasurer or an Assistant Treasurer of the Company, (which Treasurer or Assistant Treasurer shall be an accountant) stating (A) the net earnings of the Company for a period of any twelve (12) consecutive calendar months within the fifteen (15) calendar months immediately preceding the first day of the month in which the application for the authentication and delivery under this Indenture of bonds then applied for is made, showing how the same have been calculated, and to that end specifying the total operating revenues of the Company, with the principal divisions thereof, and the net non-operating income of the Company, and deducting from the total thereof the total of the operating expenses (including (a) taxes—other than in-come taxes, profits taxes and other taxes measured by, or dependent on, net income after deduction of interest, (b) rentals and insurance, (c) expenses for ordinary maintenance and repairs, and provision for retirements and/or depreciation, the total of which shall be in no event less than the amount (prior to any deductions therefrom or credits thereagainst) of the Maintenance and Improvement Fund requirement specified in Section 9.07 hereof, but not including any expenses or provisions for interest on any of the indebtedness of the Company or the
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amortization of debt discount and expense or for any sinking fund or other like device for the retirement of indebtedness or the amortization of utility plant adjustment or acquisition accounts or other intangibles, or the amortization of the book values of gas manufacturing and storage facilities owned by the Company on August 31, 1942, which shall hereafter become no longer used or useful by reason of the substitution of natural gas), and further deducting from such balance of earnings –the amount by which the aggregate of (1) net non-operating income and (2) net income which in the opinion of the signers is directly derived from the operation of property not subject to the lien of this Indenture at the date of such certificate, exceeds ten per centum, 10% of such balance of earnings; the amount so arrived at being for all purposes of this Indenture the net earnings of the Company for such period; and (B) the annual interest requirements upon, and the principal amount of, (1) all bonds outstanding hereunder at the date of such certificate, except any which are then being made the basis, pursuant to the provisions of Article VII, for the authentication and delivery of bonds, (2) those then applied for in the application in connection with which such certificate is made and those applied for in any other pending application, and (3) all other indebtedness (except indebtedness for the purchase, payment or redemption of which moneys in the necessary amount shall have been deposited with or be held by the Trustee or the trustee or other holder of a lien prior hereto with irrevocable direction so to apply the same) outstanding in the hands of the public on the date of such certificate and secured by lien prior to the lien of this Indenture upon property of the Company subject to the lien of this Indenture, if said indebtedness has been assumed by the Company or if the Company customarily pays the interest upon the principal thereof. In determining net non-operating income there shall not be included profits realized or losses sustained from the sale or other disposition of capital assets or profits or losses on retirements of bonds secured hereby or Debentures issued under Debenture Agreement dated as of March 1, 1945 between the Company and Manufacturers Trust Company, as trustee.
If any of the property of the Company owned by it at the time of the making of any net earnings certificate shall have been acquired
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during or after any period for which net earnings are to be computed, the net earnings of such property (computed in the manner specified in this Section for the computation of the net earnings of the Company) during such period or such part of such period as shall have preceded the acquisition thereof, to the extent that the same have not otherwise been included, and unless such property shall have been acquired in exchange or substitution for property the earnings of which have been included, shall be included in the net earnings of the Company for all purposes of this Indenture unless in the opinion of the Company, evidenced by a Treasurer’s certificate delivered to the Trustee, it is impracticable to determine such net earnings without unreasonable effort or expense; in like manner, the net earnings of any property to be acquired through the issue of bonds applied for in the application in connection with which such net earnings certificate is made shall be included in the net earnings of the Company unless it is impracticable to determine such net earnings as aforesaid.
In any application for the authentication and delivery of bonds where a net earnings certificate is required, if (1) the twelve months’ period covered by the net earnings certificate is covered by the annual reports of the Company which the Company has filed or is at the date of the net earnings certificate required to file with the Trustee pursuant to subdivision (1) of Section 10.03 hereof, and (2) the aggregate principal amount of bonds then applied for plus the aggregate principal amount of bonds authenticated and delivered since the commencement of the then current calendar year (other than those with respect to which a net earnings certificate is not required or with respect to which a net earnings certificate signed by an independent public accountant appointed by the Company and approved by the Trustee in the exercise of reasonable care, has previously been furnished) is ten per centum (10%) or more of the aggregate amount of the bonds at the time outstanding hereunder, such net earnings certificate shall be made and signed by an independent public accountant appointed by the Company and approved by the Trustee in the exercise of reasonable care, in addition to being signed and verified by such officers of the Company.
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Each such certificate shall include the statements required by Section 3.01 hereof.
ARTICLE II.
FORM, EXECUTION, REGISTRATION AND EXCHANGE OF BONDS.
SECTION 2.01. At the option of the Company, the bonds issued hereunder may be issued in one or more series, the bonds of each series (other than the 31⁄2% Series due 1965, hereinafter in Sections 2.12 and 2.13 described) maturing on such date or dates and bearing interest at such rate or rates as the Board of Directors of the Company prior to the authentication thereof may determine. Subject to the provisions of Sections 2.12 and 2.13 hereof with respect to the 31⁄2% Series due 1965, the form of each series of bonds issued hereunder and of the coupons to be attached to the coupon bonds of such series shall be established by resolution of the Board of Directors of the Company. The bonds and coupons of any one or more series may be expressed in one or more foreign languages, if also expressed in the English language. The English text shall govern the construction thereof and both or all texts shall constitute but a single obligation. The English text of the coupon bonds, coupons, fully registered bonds and the Trustee’s certificate shall be respectively substantially of the tenor and purport above recited, provided, however, that the form of each series, as established by the Board of Directors, shall specify the descriptive title of the bonds (which shall contain the words “First Mortgage Bond”), the designation of the series, the date of the coupon bonds of that series, the rate or rates of interest to be borne by the bonds of that series, the date or dates of maturity, the dates for the payment of interest, and a place for the payment of principal and interest and for the registration and transfer of the bonds. Subject to the provisions of Sections 2.12 and 2.13 hereof with respect to the 31⁄2% Series due 1965, any series of bonds may also contain such provisions as the Board of Directors may, in its discretion, cause to be inserted therein:
(a) specifying any additional place or places, either in the United States of America or, subject to the provisions of Section
37
2.11 hereof, elsewhere, for the payment of principal and/or interest and/or for the registration and/or the transfer of bonds;
(b) expressing any obligation of the Company for the payment of the principal of the bonds of that series or the interest thereon, or both, without deduction for taxes and/or for the reimbursement of taxes in case of payment by the bondholders, which obligation may be limited to taxes imposed by any taxing authorities of a specified class and may exclude from its operation or be limited to any specified tax or taxes or any portion thereof; and/or expressing any obligation of the Company for the creation of a sinking fund or other similar device for the retirement of bonds of that series, and/or expressing any obligation of the Company to permit the conversion of bonds of that series into capital stock of the Company of any designated class or classes;
(c) permitting the bondholders to make, at a specified place or places, any or all of the following exchanges, viz., exchanges of coupon bonds for fully registered bonds; exchanges of fully registered bonds for coupon bonds; exchanges of coupon bonds for coupon bonds of other denominations; exchanges of fully registered bonds for fully registered bonds of other denominations; and exchanges of bonds of one series for bonds of another series; and such privilege of exchange may in any case be made subject to such conditions, limitations or restrictions as the Board of Directors may determine and the privilege of exchange may in any case be conferred upon the holders of bonds of one or more denominations and withheld from the holders of bonds of other denominations of the same series and may in any case be conferred on the holders of fully registered bonds and withheld from the holders of coupon bonds or vice versa;
(d) reserving to the Company the right to redeem all or any part of the bonds of that series before maturity at a time or times and at a redemption price or prices to be specified in the form of bond; and/or
(e) in any other respect expressing or referring to the terms and conditions upon which such bonds are to be issued and/or secured under this Indenture or any indenture supplemental hereto.
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SECTION 2.02. Any series of bonds may be executed, authenticated and delivered originally as coupon bonds and/or as fully registered bonds, of such denomination or denominations as the Board of Directors of the Company may from time to time authorize.
SECTION 2.03. Every fully registered bond of any series shall be dated as of the date of authentication (except that if any fully registered bond of any series shall be authenticated upon any interest payment date for that series, it shall be dated as of the day following) and shall bear interest from the beginning of the current interest period for that series, provided, however, that if any fully registered bond shall be authenticated and delivered upon a transfer of or in exchange for any bond or bonds upon which interest is in default, it shall be dated so that no gain or loss of interest shall result therefrom. The coupon bonds of each series of bonds issued hereunder shall be dated as of such date as may be determined by the Board of Directors of the Company and designated in the form established for such series.
SECTION 2.04. Any bond may have imprinted thereon or included therein any legend or legends required in order to comply with any law or with any rules or regulations made pursuant thereto or with the rules or regulations of any stock exchange or to conform to usage, and the Board of Directors of the Company by resolution may at any time amend any legend on bonds then outstanding so as to comply with any such law, rule or regulation, or so as to conform to usage.
SECTION 2.05. In all cases in which the privilege of exchanging bonds exists and is exercised, the bonds to be exchanged shall be surrendered at such place or places as shall be designated by the Board of Directors of the Company for the purpose, with all unmatured coupons appertaining thereto (in the case of coupon bonds) and the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor the bond or bonds which the bondholder making the exchange shall be entitled to receive, having attached thereto, in
39
the ease of coupon bonds, all unmatured coupons appertaining thereto. In case at the time of any such exchange interest on the bonds of such series is in default, all coupon bonds of such series surrendered for exchange and all coupon bonds of such series delivered in exchange shall have attached thereto all matured coupons in default. All bonds so surrendered for exchange shall be in bearer form or if registered, accompanied by a written instrument or instruments of transfer in form approved by the Company duly executed by the registered holder or by his duly authorized attorney. All bonds, and the coupons appertaining thereto so surrendered for exchange shall be canceled by the Trustee and upon the request of the Company may be cremated by the Trustee and a certificate evidencing the cremation thereof delivered to the Company. Upon every transfer of bonds as permitted by the next succeeding Section, and upon every exchange of bonds, the Company may make a charge therefor sufficient to reimburse it for any tax or taxes or other governmental charge required to be paid by the Company and in addition may charge a sum not exceeding two dollars ($2) for each bond delivered upon any such transfer or exchange which shall be paid by the party requesting such transfer or exchange as a condition precedent to the exercise of the privilege of making such transfer or exchange. The Company shall not be required to make transfers or exchanges of bonds of any series for a period of ten (10) days next preceding any interest payment date of said series.
SECTION 2.06. The Company shall keep at such place or places as shall be designated by it for the purpose, books for the registration and transfer of bonds issued hereunder, which, at all reasonable times, shall be open for inspection by the Trustee; and upon the presentation for such purpose at any such place or places, the Company will register or cause to be registered therein, and permit to be transferred thereon, under such reasonable regulations as it may prescribe, any bonds issued under this Indenture and entitled to registration or transfer at such office. Upon the registration of any coupon bond as to principal, the fact of such registration shall be noted on such bond. Upon the transfer of any fully registered bond the Company shall issue in the name of the transferee or transferees a new fully registered bond or new fully registered bonds of the same series for a like
40
principal amount and the Trustee shall authenticate and deliver the same to him or them. All fully registered bonds so surrendered for transfer shall be canceled by the Trustee and upon the request of the Company may be cremated by the Trustee and a certificate evidencing the cremation thereof delivered to the Company.
SECTION 2.07. All bonds issued hereunder shall, from time to time, be executed on behalf of the Company by its President or one of its Vice-Presidents and its corporate seal shall be thereunto affixed or a facsimile thereof imprinted thereon and attested by its Secretary or one of its Assistant Secretaries. The coupons to be attached to coupon bonds shall bear the facsimile signature of the present or any future Treasurer of the Company. In case any of the officers who shall have signed any bonds or attested the seal thereon or whose facsimile signature appears on any coupons, shall cease to be such officers of the Company before the bonds so signed and/or sealed shall have been actually authenticated and delivered by the Trustee or issued by the Company, such bonds nevertheless may be authenticated, delivered and/or issued with the same force and effect as though the person or persons who signed such bonds or attested the seal thereon or whose facsimile signature appears on any coupons had not ceased to be such officer or officers of the Company. Before authenticating any coupon bonds the Trustee shall cut off, cancel and cremate all matured coupons thereto attached (except as otherwise provided in Sections 2.05 and 2.09 hereof), and shall deliver to the Company a certificate evidencing the cremation thereof.
SECTION 2.08. There may be authenticated and delivered and issued from time to time in lieu of (or in exchange for) any definitive bond or bonds under this Indenture one or more temporary typewritten, printed, lithographed or engraved bonds substantially of the tenor of the bonds hereinbefore described, with or without one or more coupons, and with or without the privilege of registration as to principal only, or as to both principal and interest, and such temporary bond or bonds may be in such denomination or denominations as the officers of the Company executing the same may determine. Until a definitive bond or bonds secured hereby are issued in exchange therefor, each such temporary
41
bond or bonds shall be entitled to the lien and benefit of this Indenture. Upon the exchange by the Company of definitive coupon bonds or definitive fully registered bonds for temporary bonds (which exchange the Company shall make on request of, and without charge to, the holder, when definitive bonds are ready for delivery) such temporary bond or bonds and any unmatured coupons appertaining thereto shall be canceled by the Trustee and upon the request of the Company may be cremated by the Trustee and a certificate evidencing such cremation delivered to the Company. When and as interest is paid upon any unregistered temporary bond without coupons, the fact of such payment shall be noted thereon and interest due on any temporary bond which is represented by a coupon shall be paid only upon presentation and surrender of such coupon for cancellation. Temporary bonds without coupons of any series shall bear interest from the beginning of the current interest period for bonds of such series in which such temporary bonds without coupons shall be authenticated. The holder of one or more temporary bonds may exchange the same on the surrender thereof in bearer form or, if registered, accompanied by a written instrument or instruments of transfer in form approved by the Company, duly executed by the registered holder or by his duly authorized attorney, with all unmatured coupons, if any, appertaining thereto, to the Trustee for cancellation, and shall be entitled to receive a temporary bond or bonds of the same series of like aggregate principal amount of such other denominations as the Board of Directors or Executive Committee of the Company may determine to issue in exchange.
SECTION 2.09. Upon receipt by the Company and the Trustee of evidence satisfactory to them, of the loss, destruction or mutilation of any bond outstanding hereunder and the coupons appertaining thereto, and of indemnity satisfactory to them, and upon payment, if the Company shall require it, of a reasonable charge and upon reimbursement to the Company and the Trustee of all reasonable expense incident thereto, and upon surrender and cancellation of such bond, if mutilated, and the coupons appertaining thereto, if any, the Company may execute, and the Trustee may authenticate and deliver, a new bond of like tenor and of the same series with corresponding
42
coupons in the appropriate case, in lieu of such lost, destroyed or mutilated bond and coupons, if any.
Any duplicate bonds and/or coupons issued pursuant to this Section shall constitute original additional contractual obligations on the part of the Company, whether or not the lost, destroyed or mutilated bonds or coupons, be at any time found by anyone, and shall be equally secured and entitled to equal and proportionate benefits with all other bonds and coupons issued hereunder in any moneys or property at any time held by the Trustee for the benefit of the bondholders.
SECTION 2.10. No bond shall be secured hereby unless there shall be endorsed thereon the certificate of the Trustee, substantially in the form hereinabove recited, that it is one of the bonds (or temporary bonds), of the series designated therein, herein provided for; and such certificate on any such bond shall be conclusive evidence that such bond has been duly authenticated and delivered and when issued will be secured hereby.
SECTION 2.11. The Company may provide for effecting payment of the principal of or interest on bonds of any series at one or more places in foreign countries, provided that such payment shall be only the stated amount of such principal and/or interest in such coin or currency of the United States of America as at the time of payment is legal tender for public or private debts, or the equivalent thereof in the appropriate local foreign currency at the buying rate at the time of such payment at such place or places for sight drafts on New York.
SECTION 2.12. Notwithstanding any of the provisions hereinbefore in this Article II contained to the contrary, which said contrary provisions shall not be applicable to the bonds in this Section described, there shall be a series of bonds designated “31⁄2% Series due 1965” (herein sometimes referred to as the “1965 Series”), each of which shall also bear the descriptive title First Mortgage Bond, and the form’ thereof and of the appurtenant coupons, which shall be established by resolution of the Board of Directors of the Company, shall contain suitable provisions with respect to the matters hereinafter in this Section specified. Bonds of the 1965 Series shall be unlimited as to amount, shall mature on February 1, 1965, and shall be issued as coupon bonds in the denomination of One thousand dollars, registerable as to principal, and as fully registered bonds
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in denominations of One thousand dollars and Five thousand dollars and, at the option of the Company, in any multiple or multiples of Five thousand dollars; they shall bear interest at the rate of three and one-half per centum (31⁄2%) per annum, payable semi-annually on February 1 and August 1 of each year; and the principal of and interest on each said bond shall be payable 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, in such coin or currency of the United States of America as at the time of payment shall be legal tender for public or private debts.
Coupon bonds of the 1965 Series shall be dated as of February 1, 1945, and fully registered bonds of the 1965 Series shall be dated as in Section 2.03 hereof provided.
Bonds of the 1965 Series shall be redeemable at the option of the Company in whole or in part at any time, prior to maturity, upon at least thirty (30) days’ published notice, such publication to be made at least once in each of four (4) successive calendar weeks upon any secular day of each such calendar week which need not be the same day in each week (provided, however, that if all the bonds of the 1965 Series at the time outstanding shall be fully registered bonds or coupon bonds registered as to principal, such publication need not be made, but, in lieu thereof, such notice shall be given by mailing the same to each such registered holder directed to his registered address not less than thirty (30) days before the date fixed for redemption), at the principal amount thereof and accrued interest to such date of redemption, together, if redeemed otherwise than by the application of cash deposited with the Trustee pursuant to Sections 2.13 or 9.07 hereof and otherwise than pursuant to the provisions of paragraph B of
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Section 13.06 hereof, with a premium equal to a percentage of the principal amount thereof as set forth in the tabulation below under the heading “Regular Redemption Premium,” and, if redeemed by the application of cash deposited with the Trustee pursuant to Sections 2.13 or 9.07 hereof or pursuant to the provisions of paragraph B of Section 13.06 hereof, with a premium equal to a percentage of the principal amount thereof as set forth in the tabulation below under the heading “Special Redemption Premium”:
| Regular Redemption Premium |
Special Redemption Premium |
|||||||
| Year |
(If redeemed prior to February 1 of the calendar year stated and subsequent to the last day of January of the calendar year next preceding such year) |
|||||||
| 1946 |
51⁄8 | % | 21⁄8 | % | ||||
| 1947 |
5 | % | 2 | % | ||||
| 1948 |
43⁄4 | % | 2 | % | ||||
| 1949 |
45⁄8 | % | 17⁄8 | % | ||||
| 1950 |
43⁄8 | % | 13⁄4 | % | ||||
| 1951 |
41⁄4 | % | 13⁄4 | % | ||||
| 1952 |
4 | % | 15⁄8 | % | ||||
| 1953 |
33⁄4 | % | 11⁄2 | % | ||||
| 1954 |
31⁄2 | % | 13⁄8 | % | ||||
| 1955 |
31⁄4 | % | 13⁄8 | % | ||||
| 1956 |
3 | % | 11⁄4 | % | ||||
| 1957 |
23⁄4 | % | 11⁄8 | % | ||||
| 1958 |
21⁄2 | % | 1 | % | ||||
| 1959 |
21⁄4 | % | 7⁄8 | % | ||||
| 1960 |
2 | % | 7⁄8 | % | ||||
| 1961 |
15⁄8 | % | 3⁄4 | % | ||||
| 1962 |
l3⁄8 | % | 5⁄8 | % | ||||
| 1963 |
1 | % | 1⁄2 | % | ||||
| 1964 |
3⁄4 | % | 3⁄8 | % | ||||
and without premium in either case if redeemed on or after February 1, 1964.
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At the option of the holder, any coupon bonds of the 1965 Series, upon surrender thereof with all unmatured coupons appertaining thereto 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, shall be exchangeable for a like aggregate principal amount of fully registered bonds of the same series of authorized denominations. At the option of the registered holder, any fully registered bonds of the 1965 Series, upon surrender thereof at said office or agency of the Company together with a written instrument of transfer in form approved by the Company duly executed by the registered holder or by his duly authorized attorney, shall be exchangeable for a like aggregate principal amount of coupon bonds of the same series, with all unmatured coupons attached, or for a like aggregate principal amount of fully registered bonds of the same series of other authorized de-nominations.
The holder of any coupon bond of the 1965 Series may have the ownership thereof registered as to principal on the books of the Company 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, and such registration noted on such bond. After such registration no transfer of such bond shall be valid unless made at said office or agency by the registered holder in person or by his duly authorized attorney and similarly noted on such bond; but the same may be discharged from registration by being in like manner transferred to bearer and thereupon transferability by delivery shall be restored; but such bond may again from time to time be registered or transferred to bearer in accordance with the above procedure. Such registration, however, shall not affect the negotiability of the coupons appertaining to such bonds, but every such coupon shall continue to be transferable by delivery merely and shall remain payable to bearer. Fully registered bonds of the 1965 Series shall also be transferable on the books of the Company at said office or agency of
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the Company by the registered holder thereof, in person or by his duly authorized attorney, upon surrender for cancellation thereof.
SECTION 2.13. The Company covenants that, so long as any of the bonds of the 1965 Series issued under this Indenture shall remain outstanding, it will, on or before the 1st day of April of each year, beginning with the year 1957, deliver to the Trustee for the benefit of the holders or the registered owners of all bonds of the 1965 Series:
An amount in cash and/or principal amount of bonds of the 1965 Series equivalent to one percentum (1%) of the greatest principal amount of bonds of the 1965 Series theretofore at any one time outstanding; provided, however, that there shall be credited against the amount of cash or bonds payable or deliverable pursuant to this Section sixty percentum (60%) of the cost or fair value to the Company (whichever is less) of any property additions which are not then funded property and which the Company elects to make the basis of a credit under this Section. Any property additions which the Company elects to make the basis of a credit under this Section shall, to the extent of the cost or fair value thereof to the Company (whichever is less) made the basis of such credit, have the status of funded property.
For all purposes of this Section bonds held in the treasury (other than bonds sold and reacquired) shall not be deemed to be outstanding.
All cash deposited by the Company with the Trustee pursuant to the provisions of this Section shall be applied by the Trustee from time to time and as rapidly as may be practicable to the purchase of bonds of the 1965 Series then outstanding, at public or private sale, at the lowest prices at which such bonds can be obtained, not exceeding, however, the redemption prices specified in Section 2.12 hereof for redemption by the application of cash deposited pursuant to this Section and accrued interest to the date of purchase, or, if the Company shall so
47
request, the Trustee shall apply any cash then held by it under this Section to the redemption of bonds of the 1965 Series as soon as may be practicable after such request. In case the balance of such cash remaining with the Trustee on the fifteenth day of August next following the deposit thereof shall aggregate $50,000 or more, the Trustee shall apply the same to the redemption of bonds of the 1965 Series on the next succeeding October 1st, such redemption to be at the redemption prices specified in Section 2.12 hereof for redemption by the application of cash deposited pursuant to this Section and in the manner provided in Article XII hereof. The Company shall have the right to tender bonds of the 1965 Series for sale by it to the Trustee under the provisions of this Section.
Any bonds deposited with the Trustee pursuant to the provisions of this Section shall forthwith be canceled by the Trustee, and upon the request of the Company, the Trustee may cremate the same and deliver to the Company a certificate of such cremation.
If the Company elects to make property additions the basis of a credit under this Section, in whole or in part, as above provided, the Company shall deliver to the Trustee the certificates, instruments and opinions of the kind described in, and setting forth the facts, in so far as applicable, with respect to such property additions, specified in subdivisions (2), (3), (4), (5), (7), (8) and (9) of Section 6.06 hereof.
ARTICLE III.
GENERAL PROVISIONS AS TO CERTIFICATES AND OPINIONS.
SECTION 3.01. Each certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture shall include (a) a statement that the person making such certificate or
48
opinion has read such covenant or condition, (b) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based, (c) a statement that, in the opinion of such person, he has made such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such covenant or condition has been complied with, and (d) a statement as to whether or not in the opinion of such person such condition or covenant has been complied with.
ARTICLE IV.
INITIAL ISSUE OF BONDS.
SECTION 4.01. Bonds of the 1965 Series for the aggregate principal amount of Nineteen million Dollars ($19,000,000) shall forthwith be executed by the Company and delivered to the Trustee and shall be authenticated by the Trustee and delivered (whether before or after the filing or recording hereof) from time to time, in accordance with the order or orders of the Company, evidenced by a writing or writings signed by the Company by its President or one of its Vice-Presidents and its Treasurer or one of its Assistant Treasurers.
ARTICLE V.
GENERAL PROVISIONS AS TO ISSUE OF BONDS.
SECTION 5.01. The aggregate principal amount of bonds which may be secured by this Indenture shall be such aggregate principal amount as may now or hereafter from time to time be authenticated and delivered under the provisions hereof.
Nothing in this Indenture contained shall limit the power of the Board of Directors of the Company to fix the price at which the bonds
49
authenticated and delivered under any of the provisions of this Indenture may be issued, exchanged, sold or disposed of, but in so far as permitted by law (and subject to the valid regulation of any public authority) any or all of said bonds may be issued, exchanged, sold or disposed of upon such terms and for such considerations as the Board of Directors of the Company may deem fit.
ARTICLE VI.
ISSUANCE OF BONDS UPON THE BASIS OF PROPERTY ADDITIONS.
SECTION 6.01. Bonds in addition to those provided for in Article IV hereof and of any one or more series may from time to time be executed by the Company and delivered to the Trustee, and shall be authenticated by the Trustee and delivered from time to time in accordance with the order or orders of the Company, evidenced by a writing or writings signed by the Company by its President or one of its Vice-Presidents and its Treasurer or one of its Assistant Treasurers upon the basis of property additions, but only in accordance with and subject to the conditions, provisions and limitations set forth in the next succeeding six Sections of this Indenture, numbered from 6.02 to 6.07, both inclusive.
SECTION 6.02. No bonds shall be authenticated and delivered at any time under the provisions of this Article VI upon the basis of funded property.
SECTION 6.03. Bonds of any one or more series shall be authenticated and delivered under the provisions of this Article VI upon the basis of property additions for a principal amount not exceeding sixty per centum (60%) of the balance of the cost or of the fair value thereof to the Company (whichever is less) after making any deductions and any additions required by subdivision (II) of Section 1.04 hereof. The cost of any such property additions (except as otherwise provided in
50
the next succeeding sentence) shall be deemed to be the sum of (1) any cash forming a part of such cost, which, for all purposes of this Indenture, shall include amounts payable in cash, liability for which has actually been incurred by the Company, (2) an amount equivalent to the fair market value in cash (as of the date of delivery) of any securities delivered in payment therefor or for the acquisition thereof and (3) the principal amount of any prior lien bonds secured by lien upon such property additions at the time of their acquisition unless the engineer’s certificate hereinafter in subdivision (3) of Section 6.06 hereof provided for shall state that the principal amount of such prior lien bonds has theretofore been included in cost when other property additions subject to the same prior liens shall have been made the basis under any of the provisions of this Indenture for the authentication and delivery of bonds or the withdrawal of cash or the release of property or a credit under the provisions of Section 2.13 or subdivision (c) of Section 9.07 hereof. The cost of any such property additions received or to be received by the Company, in whole or in part, as consideration in exchange for property released or to be released shall be determined in the manner provided in Section 13.03 hereof. The amount of the cost of any property additions and the then fair value thereof to the Company and the fair market value in cash of any securities so delivered in payment therefor and the amount of any deductions and any additions required to be made by subdivision (II) of Section 1.04 hereof shall be determined for the purposes of this Article VI by the appropriate certificates provided for in Section 6.06 hereof.
SECTION 6.04. No bonds shall be authenticated and delivered under the provisions of this Article VI nor funded cash withdrawn nor funded property released under any of the provisions of this Indenture nor a credit taken under the provisions of Section 2.13 or subdivision (c) of Section 9.07 hereof, upon the basis of any property additions subject to any prior lien unless, previous to or concurrently with the making of the application for the authentication and delivery of bonds, the withdrawal of funded cash, the release of funded property, or a credit under the provisions of Section 2.13 or subdivision (c) of Section 9.07 hereof, cash and/or prior lien bonds have been or are deposited
51
with the trustee or other holder of the prior lien securing such prior lien bonds and/or with the Trustee, in such manner that immediately after such deposit and the granting of such application all prior lien bonds secured by such prior lien outstanding immediately prior to such deposit and the granting of such application will cease to be outstanding under the provisions of Section 1.06 hereof. Prior lien bonds so delivered to the trustee or other holder of the prior lien securing the same shall be surrendered for cancellation, and prior lien bonds so deposited with the Trustee shall be held under the provisions of Article XI hereof.
SECTION 6.05. No bonds shall be authenticated and delivered upon the basis of property additions unless, as shown by a net earnings certificate, the net earnings of the Company for the period referred to in such certificate shall have been in the aggregate at least equivalent to twice the annual interest requirements as shown by such net earnings certificate.
SECTION 6.06. No application by the Company to the Trustee for the authentication and delivery of bonds hereunder upon the basis of property additions shall be granted by the Trustee, until the Trustee shall have received:
(1) a resolution requesting the Trustee to authenticate and deliver bonds, (a) specifying the principal amount of bonds called for, the series thereof and any other matters with respect thereto required by this Indenture, and (b) specifying the officer or officers of the Company to whom, or upon whose written order, such bonds shall be delivered;
(2) a Treasurer’s certificate made and dated as of the date of such application stating that the Company is not, and by the authentication and delivery of such bonds will not be, in default under any of the provisions of this Indenture and that all conditions precedent, specified in this Indenture to the authentication and delivery of the bonds, which are the subject of the application, have been complied with;
52
(3) an engineer’s certificate made and dated not more than ninety (90) days prior to the date of such application, describing the property additions made the basis of the application in reasonable detail; stating that they are property additions as defined in Section 1.04 hereof, that such property additions are desirable for use in the proper conduct of the Company’s business, and that such property additions, to the extent of the cost or fair value thereof to the Company (whichever is less) made the basis of the application, do not consist of funded property; stating, except as to property additions acquired, made or constructed wholly through the delivery of securities, that the amount of cash forming all or part of the cost thereof was equal to or more than an amount to be stated therein; briefly describing with respect to any property additions acquired, made or constructed in whole or in part through the delivery of securities, the securities so delivered and stating the date of such delivery; stating, as to property additions received or to be received by the Company, in whole or in part, as consideration in exchange for property released, or to be released, the cost as determined pursuant to the provisions of Section 13.03; stating, except as to property additions in respect to the fair value to the Company of which a statement is to be made in an independent engineer’s certificate as provided for in subdivision (4) of this Section, that the fair value to the Company of such property additions at the date of such engineer’s certificate is equal to or more than an amount therein to be stated; stating the amounts required to be deducted and added under the provisions of subdivision (II) of Section 1.04 hereof; specifying the nature and extent of any prior liens (and the principal amount of all outstanding prior lien bonds secured thereby) existing upon any of such property additions and whether or not other property additions subject to the same prior liens have theretofore been made the basis under any of the provisions of this Indenture for the authentication and delivery of bonds or the withdrawal of cash or the release of property or the basis of a credit under the provisions of Section 2.13 or subdivision (c) of Section 9.07 hereof, specifying the principal amount
53
of such prior lien bonds and/or cash deposited or to be deposited concurrently with the Trustee or with the trustee or other holder of any prior lien securing such prior lien bonds in compliance with Section 6.04 hereof; and also stating (a) what part, if any, of such property additions includes property which has been used or operated in the public utility business by others than the Company within six months prior to the date of the acquisition thereof by the Company and (b) the fair value to the Company of the property referred to in the foregoing clause (a) if, and only if, in the opinion of the signers such fair value is less than the greater of the two following amounts: (i) Twenty-five thousand Dollars ($25,000); (ii) one per centum (1%) of the aggregate principal amount of bonds at the time outstanding hereunder. If any such property additions have been used or operated in the public utility business by others than the Company, the amount of cash stated to be all or any part of the cost thereof may include the amount of cash forming all or any part of the cost of any rights and intangible property simultaneously acquired with the same for which no separate or distinct consideration shall have been paid or apportioned, and in such case the term property additions as defined herein may include such rights and intangible property;
(4) in case any property additions are shown by the engineer’s certificate provided for in subdivision (3) above to include property which has been used or operated in the public utility business by others than the Company within six months prior to the date of the acquisition thereof by the Company and such engineer’s certificate does not show the fair value of such property to the Company to be less than the greater of the two following amounts: (i) Twenty-five thousand Dollars ($25,000); (ii) one per centum (1%) of the aggregate principal amount of the bonds at the time outstanding hereunder, a further and independent engineer’s certificate stating as to such property additions which have been so used or operated and (at the option of the Company) as to any other property additions included in the engineer’s certificate provided for in subdivision (3) of this Section, that the aggregate fair value thereof to the Company at
54
the date of the engineer’s certificate provided for in subdivision (3) above, in the opinion of the signer, is an amount to be stated therein, together with the signer’s report thereon which shall contain a brief statement of the conditions governing the signer’s determination of such fair value and a brief statement of the condition, serviceability and location of such property additions; in case the independent engineer’s certificate provided for by this subdivision (4) is delivered in connection with the authentication and delivery of bonds hereunder, such independent engineer’s certificate shall also state the fair value (which may be the fair value as of the date that the property was previously certified to the Trustee) to the Company of any other property which (a) has been used or operated in the public utility business by others than the Company within six months prior to the date of the acquisition thereof by the Company, and (b) has been subjected to the lien of this Indenture since the commencement of the then current calendar year as the basis for the authentication and delivery of bonds, the withdrawal of cash or the release of property pursuant to the provisions of this Indenture and (c) as to which a certificate or opinion of an independent engineer has not previously been furnished to the Trustee;
(5) in case any property additions are shown by the engineer’s certificate provided for in subdivision (3) above to have been acquired, made or constructed in whole or in part through the delivery of securities, a written appraisal (containing the statements required by Section 3.01 hereof) of an appraiser or other competent person, firm or corporation to be selected by the Trustee and approved by the Board of Directors of the Company, stating in the opinion of the signer the fair market value in cash of such securities at the time of delivery thereof in payment for or for the acquisition of such property additions. If any such property additions are shown by such engineer’s certificate to include property which has been used or operated in the public utility business by others than the Company, the appraised value of the securities stated to have been delivered in payment therefor or for the acquisition thereof may include the value of any portion of
55
the securities delivered for any rights and intangible property simultaneously acquired with the same, for which no separate or distinct consideration shall have been paid or apportioned, and in such case the term property additions as defined herein may include such rights and intangible property;
(6) a net earnings certificate showing the net earnings of the Company to be as required by Section 6.05 hereof;
(7) an opinion of counsel stating the signer’s opinion to the effect (a) that the Company has, or upon delivery of the instruments of conveyance, transfer or assignment, if any, specified in such opinion, will have good title to the property additions made the basis of such application, free and clear of any lien or encumbrance prior to the lien of this Indenture, except prior liens securing prior lien bonds which have ceased to be outstanding under the provisions of Section 1.06 hereof and excepted encumbrances; and/or (b) if such property additions include easements or rights of way over private property used for pipe line, distribution line or other right of way purposes, that the Company has good title to such rights of way or easements, free and clear of any lien or encumbrance prior to the lien of this Indenture, except prior liens securing prior lien bonds which have ceased to be outstanding under the provisions of Section 1.06 hereof and excepted encumbrances, and that the Company has power under eminent domain or similar statutes to protect its uninterrupted enjoyment of such easements or rights of way against any claim held or asserted under any lien or other encumbrance upon the real estate with respect to which such easements or rights of way are held by the Company; and/or (c) if such property additions include any property additions located, under the terms of a law or a permit or franchise granted by a governmental body, on property not owned by the Company, that such law, permit or franchise is adequate for the operation of such property additions by the Company for the period, if any, specified therein, and that the terms of such law or of such permit or franchise or the law under which such permit or franchise is held do not contain any
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provisions giving to any party authority or right to take over such property additions without the payment of fair consideration therefor; and (d) that this Indenture is, or upon the delivery of the instruments of conveyance, transfer or assignment, if any, specified in such opinion, will be a lien upon all the right, title and interest of the Company in and to all property additions made the basis of such application, free and clear of any lien or encumbrance prior to the lien of this Indenture, except prior liens securing prior lien bonds which have ceased to be outstanding under the provisions of Section 1.06 hereof and excepted encumbrances; (e) that in the signer’s opinion the issue of the bonds, the authentication and delivery of which are being applied for, has been duly authorized by the Company and by any and all governmental authorities the consent of which is requisite to the legal issue of such bonds, specifying any officially authenticated certificates or other documents, by which such consent is or may be evidenced, or that no consent of any governmental authorities is requisite; (f) that the general nature, extent and amount of prior liens, and the principal amount of the then outstanding prior lien bonds secured thereby, if any, mentioned in the accompanying engineer’s certificate, are correctly stated; (g) that the Company has corporate authority and all necessary permission from governmental authorities to own and operate the property additions in respect of which such application is made; and (h) that all conditions precedent, specified in this Indenture, to the authentication and delivery of the bonds, which are the subject of the application, have been complied with;
(8) the instruments of conveyance, assignment and transfer, if any, and the officially authenticated certificates or other documents, if any, specified in the opinion of counsel provided for in subdivision (7) above; and
(9) the prior lien bonds and/or the cash, if any, to be deposited with the Trustee in accordance with the provisions of Section 6.04 hereof, as specified in the engineer’s certificate provided for in subdivision (3) above; and/or a certificate of the
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trustee or other holder of a prior lien as to the principal amount of prior lien bonds and/or cash, if any, deposited with such trustee or other holder in accordance with the provisions of said Section 6.04, as specified in said engineer’s certificate.
SECTION 6.07. Anything in this Indenture to the contrary notwithstanding, if the Company shall acquire as a going concern all or substantially all of the assets of St. Louis County Gas Company, a Missouri corporation, or of any successor thereto, then and in that event, such assets shall be considered property additions as defined herein and bonds of any one or more series shall be authenticated and delivered as provided by this Article VI upon the basis of such property additions so acquired, for a principal amount not exceeding sixty per centum (60%) of the cost or of the fair value thereof to the Company (whichever is less) without making any deductions therefrom or additions thereto which otherwise would be required by subdivision (II) of Section 1.04 hereof, and notwithstanding the fact that at the time such property additions so acquired from St. Louis County Gas Company, or any successor thereto, are certified to the Trustee (or so much thereof as the Company shall desire to use for that purpose) the cost or fair value to the Company, as the case may be, of all funded property previously retired since August 31, 1942 shall exceed the cost or fair value to the Company, as the case may be, of all property additions acquired, made or constructed since that date. The cost of any such property additions so acquired from St. Louis County Gas Company, or any successor thereto, and the fair value thereof to the Company, and the fair market value in cash of any securities delivered in payment therefor shall be determined for the purposes of this Article VI as provided in Section 6.03 hereof and by the appropriate certificates provided for in Section 6.06 hereof subject to the following specific provisions:
(a) with respect to the engineer’s certificate provided for in subdivision (3) of Section 6.06 hereof, the amount of cash stated to be all or any part of the cost of such property additions shall include the amount of cash forming all or any part of the cost of any rights and intangible property simultaneously acquired with
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such property additions for which no separate or distinct consideration shall have been paid or apportioned, and in such case the term property additions as defined herein shall include such rights and intangible property;
(b) with respect to the independent engineer’s certificate provided for in subdivision (4) of Section 6.06 hereof, the fair value of such property additions to be set forth in said certificate shall be determined after consideration has been given by the independent engineer, in so far as deemed reasonable and proper, to all the elements of value of such property additions to the Company, including any such rights and intangible property; and
(c) with respect to the written appraisal of the fair market value in cash of securities provided for in subdivision (5) of Section 6.06 hereof, the appraised value of any securities stated to have been delivered in payment for such property additions shall include the value of any portion of the securities delivered for any rights and intangible property simultaneously acquired with such property additions, for which no separate or distinct consideration shall have been paid or apportioned, and in such case the term property additions as defined herein shall include such rights and intangible property.
Nothing in this Indenture contained shall be deemed to require the Company to comply with or take advantage of the provisions of this Section 6.07 if it shall acquire as a going concern all or substantially all of the assets of St. Louis County Gas Company, the rights afforded by this Section being optional with the Company and not in limitation of its right to deem and treat such property so acquired as any other property additions and without reference to this Section.
ARTICLE VII.
ISSUANCE OF BONDS UPON RETIREMENT OF BONDS PREVIOUSLY OUTSTANDING HEREUNDER.
SECTION 7.01. The Trustee shall from time to time upon the request of the Company authenticate and deliver bonds hereunder
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of a principal amount equal to the principal amount of any bonds theretofore authenticated and delivered under this Indenture that shall have been paid, retired, redeemed or canceled or surrendered to the Trustee for cancellation or for the purchase, retirement, payment or redemption of which moneys in the necessary amount shall have been deposited with or shall then be held by the Trustee, with irrevocable direction so to apply the same, but only after the Trustee shall have received:
(1) a resolution such as is described in subdivision (1) of Section 6.06 hereof;
(2) a Treasurer’s certificate stating (a) that the Company is not to the knowledge of the signers in default under any of the provisions of this Indenture; (b) that bonds theretofore authenticated and delivered under this Indenture of a specified principal amount and series (not less than the principal amount of bonds for which such request for authentication and delivery is made under this Section) have been paid, retired, redeemed or canceled or concurrently with the authentication and delivery of the bonds requested will be surrendered to the Trustee for cancellation (otherwise than upon exchanges or transfers of bonds) and/or that moneys in the necessary amount for the purchase, retirement, payment or redemption thereof are then held by or will be deposited (with irrevocable direction so to apply the same) with the Trustee prior to or concurrently with the authentication and delivery of the bonds so requested, and further stating that no part of such principal amount of bonds has been theretofore made the basis under any provision of this Indenture for the authentication and delivery of bonds or the basis of the right to the authentication and delivery of bonds which right has been waived or the basis of a credit under subdivision (d) of Section 9.07 or deposited under the provisions of Section 2.13 hereof and that none of such bonds has been paid, purchased, redeemed or otherwise retired by the use of funded cash, and further stating the aggregate principal amount of all such bonds canceled or so to be surrendered for cancellation that have not theretofore been issued by the Company and the interest rate borne by each thereof
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not so issued; and (c) that all conditions precedent, specified in this Indenture, to the authentication and delivery of the bonds, which are the subject of the application, have been complied with;
(3) an opinion of counsel stating the signer’s opinion to the effect (a) that the issue of the bonds, the authentication and delivery of which are requested in the resolution provided for under subdivision (1) of this Section, has been duly authorized by the Company and by any and all governmental authorities, the consent of which is requisite to the legal issue of such bonds, specifying any officially authenticated certificates or other documents by which such consent is or may be evidenced, or that no consent of any governmental authorities is requisite; and (b) that all conditions precedent, specified in this Indenture, to the authentication and delivery of the bonds, which are the subject of the application, have been complied with; and
(4) the officially authenticated certificates, or other documents, if any, specified in the opinion of counsel provided for in subdivision (3) of this Section.
In case a net earnings certificate, subsequent to such payment, retirement, redemption, cancellation or surrender for cancellation of such bonds or such deposit of money, shall have been delivered to the Trustee pursuant to any provision of this Indenture, in which the annual interest requirements on such bonds shall not have been included, or in case the interest rate borne by any bonds theretofore authenticated by the Trustee but not issued by the Company (which are being so canceled or surrendered for cancellation) shall have been shown by the Treasurer’s certificate provided for in subdivision (2) of this Section to be less than the interest rate to be borne by the bonds the authentication and delivery of which are applied for, the Trustee shall also receive a net earnings certificate, showing the net earnings of the Company to be as required by Section 6.05 hereof. Bonds issued merely by way of pledge shall not be deemed to have been issued for the purposes of this Section.
Any and all coupon bonds delivered to the Trustee pursuant to
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this Article shall have attached thereto all unmatured coupons appertaining thereto.
ARTICLE VIII.
ISSUANCE OF BONDS UPON DEPOSIT OF CASH WITH TRUSTEE.
SECTION 8.01. The Trustee shall from time to time upon the request of the Company authenticate and deliver bonds upon deposit with the Trustee by the Company of cash equal to the aggregate principal amount of the bonds so requested to be authenticated and delivered but only after the Trustee shall have received:
(1) a resolution such as is described in subdivision (1) of Section 6.06 hereof;
(2) a Treasurer’s certificate stating that the Company is not to the knowledge of the signers in default under any of the provisions of this Indenture, and that all conditions precedent, specified in this Indenture, to the authentication and delivery of the bonds, which are the subject of the application, have been complied with;
(3) a net earnings certificate showing the net earnings of the Company to be as required by Section 6.05 hereof;
(4) an opinion of counsel to the effect (a) that the issue of the bonds, the authentication and delivery of which are requested in such resolution, has been duly authorized by the Company and by any and all governmental authorities the consent of which is requisite to the legal issue of such bonds, specifying any officially authenticated certificates or other documents, by which such consent is or may be evidenced, or that no consent of any governmental authorities is requisite and (b) that all conditions precedent, specified in this Indenture, to the authentication and delivery of the bonds, which are the subject of the application, have been complied with; and
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(5) the officially authenticated certificates, or other documents, if any, specified in the opinion of counsel provided for in subdivision (4) of this Section.
SECTION 8.02. All cash deposited with the Trustee under the provisions of the next preceding Section hereof shall be held by the Trustee as a part of the mortgaged and pledged property, but whenever the Company shall become entitled to the authentication and delivery of bonds under any of the provisions of this Indenture (other than those contained in the next preceding Section) the Trustee, upon the application of the Company evidenced by a resolution, shall pay over to the Company or upon its order, in lieu of each bond or fraction thereof to the authentication and delivery of which the Company shall then be so entitled, a sum in cash equal to the principal amount of each such bond or fraction thereof; provided, however, that for the purpose of withdrawing cash pursuant to the provisions of this Section, it shall in no case be necessary for the Company to. deliver to the Trustee any resolution or document such as are described in subdivisions (1) and (6) of Section 6.06 hereof, or such parts of the opinion of counsel described in subdivision (7) of said Section 6.06 as relate solely to the authorization of the issuance of bonds of the Company by governmental authorities or by the Company or to comply with the provisions of Section 6.05 hereof. The granting of any such application shall operate as a waiver of the right to the authentication and delivery of bonds thereafter on such basis.
SECTION 8.03. If, at any time within three (3) years from the date of deposit thereof with the Trustee, the Company shall so direct, any cash deposited with the Trustee under the provisions of Section 8.01 hereof may be used or applied to the purchase, payment or redemption of bonds in the manner and subject to the conditions provided in subdivisions (2) and (3) of Section 13.05 hereof.
Any cash deposited with the Trustee under the provisions of Section 8.01 hereof, which shall not have been paid out pursuant to Section 8.02 hereof or used or applied pursuant to the foregoing provisions of this Section 8.03 within three (3) years from the date of deposit thereof with the Trustee, shall be used or applied by the Trustee (unless the
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Company is in default in the payment of interest on any bonds then outstanding hereunder or one or more of the completed defaults specified in Section 14.01 hereof shall have occurred and be continuing), as promptly as the Trustee shall deem reasonable or desirable, to the purchase, payment or redemption of bonds in the manner provided in subdivisions (2) and (3) of Section 13.05 hereof, except that (a) the Trustee, in its sole discretion, shall determine whether and at what time or times bonds shall be purchased, paid or redeemed, (b) the request by the Company referred to in said subdivisions (2) and (3) shall not be required, and (c) if more than one series of bonds issued hereunder shall at the time be outstanding, the Trustee, in its sole discretion, shall determine the amount of such cash which shall be so used or applied to the purchase, payment or redemption of the bonds of each such series. The Company hereby authorizes the Trustee on its behalf to give notice of intention to redeem any bonds which are to be redeemed pursuant to the foregoing provisions, in the manner provided by Section 12.02 hereof.
The Company shall pay to the Trustee, on demand, the amount of accrued and unpaid interest, and premiums paid, if any, upon all bonds purchased or redeemed pursuant to this Section.
ARTICLE IX.
PARTICULAR COVENANTS OF THE COMPANY.
The Company hereby covenants as follows:
SECTION 9.01. That it is lawfully possessed of all the aforesaid mortgaged and pledged property; that it will maintain and preserve the lien of this Indenture so long as any of the bonds issued hereunder are outstanding; and that it has good right and lawful authority to mortgage and pledge the mortgaged and pledged property, as provided in and by this Indenture and that the mortgaged and pledged property is at the date of the delivery hereof free and clear of any deed of trust, mortgage, lien, charge or encumbrance thereon or affecting the title thereto prior to this Indenture other than as set forth in the granting clauses hereof and other than excepted encumbrances.
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SECTION 9.02. That it will duly and punctually pay the principal of and interest, and premium, if any, on all the bonds outstanding hereunder, according to the terms thereof. As the coupons appertaining to said bonds are paid they shall be canceled.
SECTION 9.03. That it will keep an office or agency, while any of the bonds issued hereunder are outstanding, at any and all places at which the principal of or interest on any of said bonds shall be payable, where notices, presentations and demands to or upon the Company in respect of such bonds or coupons as may be payable at such places or in respect of this Indenture may be given or made, and for the payment of the principal thereof and interest thereon. The Company will from time to time give the Trustee written notice of the location of such office or offices or agency or agencies, and in case the Company shall fail to maintain such office or offices or agency or agencies or to give the Trustee written notice of the location thereof, any such notice, presentation or demand in respect of said bonds or coupons or of this Indenture may be given or made, unless other provision is expressly made herein, to or upon the Trustee at its principal office in the City of St. Louis, State of Missouri, and the Company hereby authorizes such presentation and demand to be made to and such notice to be served on the Trustee in either of such events and the principal of and interest on said bonds shall in such event be payable at said office of the Trustee.
SECTION 9.04. (a) That, subject to the provisions of subsection (c) of this Section, if the Company shall appoint a paying agent other than the Trustee, it will cause such paying agent to execute and deliver to the Trustee an instrument in which such paying agent shall agree with the Trustee, subject to the provisions of this Section, (1) that such paying agent shall hold in trust for the benefit of the bondholders or the Trustee all sums held by such paying agent for the payment of the principal of or interest on the bonds and premium, if any; and (2) that such paying agent shall give the Trustee notice of any default by the Company or any other obligor on the bonds in the making of any deposit with it for the payment of the principal of or interest on the bonds and
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premium, if any, and of any default by the Company or any other obligor on the bonds in the making of any such payment. Such paying agent shall not be obligated to segregate such sums from other funds of such paying agent except to the extent required by law.
(b) That if the Company acts as its own paying agent it will, on or before each due date of each instalment of principal or interest on the bonds, set aside and segregate and hold in trust for the benefit of the bondholders or the Trustee a sum sufficient to pay such principal or interest so becoming due on the bonds and premium, if any, and will notify the Trustee of such action or of any failure to take such action.
(c) Anything in this Section to the contrary notwithstanding, the Company may at any time, for the purpose of obtaining a release or satisfaction of this Indenture, or for any other reason, pay or cause to be paid to the Trustee all sums held in trust by it or any paying agent as required by this Section, such sums to be held by the Trustee upon the trusts herein contained.
(d) Anything in this Section to the contrary notwithstanding, the agreement to hold sums in trust, as provided in this Section, is subject to the provisions of Section 21.03 hereof.
SECTION 9.05. That it will pay all taxes and assessments lawfully levied or assessed upon the mortgaged and pledged property, or upon any part thereof or upon any income therefrom or upon the interest of the Trustee in the mortgaged and pledged property before the same shall become delinquent, and will duly observe and conform to all valid requirements of any governmental authority relative to any of the mortgaged and pledged property, and all covenants, terms and conditions upon or under which any of the mortgaged and pledged property is held; that it will not suffer any lien to be hereafter created upon the mortgaged and pledged property, or any part thereof, or the income therefrom, prior to the lien of these presents, other than excepted encumbrances, and, in the case of property hereafter acquired, vendors’ liens, purchase money mortgages and any lien thereon at the time of the acquisition thereof, and that within four months after the accruing of any lawful claims or demands for labor, materials, supplies or other objects, which if unpaid might by law be given precedence over
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the lien of this Indenture as a lien or charge upon any of the mortgaged and pledged property or the income thereof, it will pay or cause to be discharged or make adequate provision to satisfy and discharge the same; provided, however, that nothing in this Section or elsewhere in this Indenture contained shall require the Company to observe or conform to any requirement of governmental authority or to cause to be paid or discharged, or to make provision for, any such lien or charge, or to pay any such tax, assessment or governmental charge so long as the validity thereof shall be contested in good faith and by appropriate legal proceedings and the security afforded by this Indenture shall not be endangered by any sale or otherwise on account thereof; and that, save as aforesaid, it will not suffer any matter or thing whereby the lien hereof might or could be impaired.
Anything in this Section 9.05 or elsewhere in this Indenture contained to the contrary notwithstanding, in the event that any judgment is obtained against the Company, and the person holding such judgment shall agree that the amount of such judgment shall be payable over a period of time rather than immediately, then and in that event, irrespective of the fact that such judgment shall be a lien, the Company shall not be in default hereunder if it pays the amount of such judgment at such time or times as may have been agreed upon between the Company and the holder of such judgment.
SECTION 9.06. That it will keep all the mortgaged and pledged property insured against loss by fire, in the manner and to the extent that property of similar character is usually so insured by companies similarly situated and operating like properties, to a reasonable amount, by insurance companies believed by the Company to be financially responsible, any loss, except as to materials and supplies and except any particular loss less than Twenty-five thousand dollars ($25,000), to be made payable to the Trustee as its interest may appear, or to the trustee or other holder of any mortgage or other lien constituting a prior lien or a lien prior hereto, if the terms thereof require losses so to be made payable. There shall be deposited with the Trustee annually a detailed statement signed by the Treasurer or an Assistant Treasurer of the Company of any fire insurance policies then outstanding and in
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force upon the aforesaid property, or any part thereof, including the names of the insurance companies which have issued the policies, and the maturities and amounts thereof. Subject to the provisions of Sections 18.02 and 18.03 hereof, the Trustee shall be entitled to accept such detailed statement as satisfactory evidence of compliance by the Company with the provisions of this Section 9.06.
Any insurance moneys paid in respect of any particular loss of less than $25,000 or for any loss of materials and supplies or for any other reason received by the Company and not by the Trustee shall, subject to the requirements of any mortgage constituting a prior lien or a lien prior hereto, be applied by the Company to the rebuilding or restoring of the property destroyed or damaged or to the acquisition or construction of other property subject to the lien hereof. Any such moneys not so used at the end of twelve months from the receipt thereof shall be paid over to the Trustee.
All moneys paid to the Trustee by the Company in accordance with this Section or received by the Trustee as proceeds of any insurance against loss or damage by fire shall, subject to the requirements of any mortgage constituting a prior lien or a lien prior hereto, be held by the Trustee and, subject as aforesaid, shall be paid by it to the Company to reimburse the Company for an equal amount spent in the rebuilding or restoring of the property destroyed or damaged or to the acquisition or construction of other property subject to the lien hereof, upon receipt by the Trustee of a resolution requesting such reimbursement, a Treasurer’s certificate stating the amount so expended and the nature of such restoring or rebuilding and an engineer’s certificate stating the fair value to the Company of such restoring or rebuilding and of any other property so acquired or constructed. If the property acquired by the Company in the course of such restoring, rebuilding, acquisition or construction shall include property which has been used or operated in the public utility business by others than the Company within six months prior to the date of acquisition thereof by the Company and such engineer’s certificate does not show the fair value of such property to the Company to be less than the greater of the two following amounts: (i) Twenty-five thousand dollars ($25,000); (ii) one per centum (1%) of the aggregate principal amount of the bonds at the
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time outstanding hereunder, a further and independent engineer’s certificate stating as to such property additions which have been so used and operated and (at the option of the Company) as to any other property included in the said engineer’s certificate provided for in the preceding sentence, that the aggregate fair value to the Company at the date of the engineer’s certificate provided for in the preceding sentence, in the opinion of the signer, is an amount to be stated therein, together with the signer’s report thereon which shall contain a brief statement of the conditions governing the signer’s determination of such fair value and a brief statement of the condition, serviceability and location of such property.
Any such moneys not so applied within eighteen (18) months after its receipt by the Trustee, or in respect of which notice in writing of intention to apply the same to the work of rebuilding, restoring or constructing then in progress and uncompleted shall not have been given to the Trustee by the Company within such eighteen (18) months, or which the Company shall at any time notify the Trustee is not to be so applied, shall thereafter be withdrawn, used or applied in the manner, to the extent and for the purposes and subject to the conditions provided in Section 13.05 hereof.
SECTION 9.07. (I) That it will at all times make or cause to be made such expenditures by means of repairs and. maintenance and substitutions, renewals and replacements of property or otherwise as shall be necessary to maintain the mortgaged and pledged property as an operating system or systems in good repair, working order and condition, provided, however, that nothing in this Section 9.07 or elsewhere in this Indenture contained shall be construed to prevent the Company from ceasing to operate or from abandoning any of its plants or any other property, if, in the judgment of the Company, it is advisable not to operate or to, abandon the same and the operation or maintenance thereof shall not be essential to the maintenance and continued operation of the remainder of the mortgaged and pledged property and the security afforded by this Indenture will not be materially impaired by the termination of such operation or by such abandonment.
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In furtherance but not in limitation thereof, the Company covenants that while any bonds of the 1965 Series are outstanding it will, for the period beginning with the date of this Indenture and ending December 31, 1945 and for the calendar year 1946 and for each calendar year thereafter, pay to the Trustee on or before May 1, 1946 and on or before each first day of May thereafter, as and for a Maintenance and Improvement Fund, a sum in cash equal to fifteen per centum (15%) of the gross operating revenue of the Company, as defined in subdivision (II) of this Section 9.07, for said period ending December 31, 1945 or such calendar year, as the case may be, less, however, the cost to the Company of gas purchased, including the cost or demand charge for any standby service (provided, however, that if in any calendar year subsequent to December 31, 1945, the send-out of oven gas in therms from the present by-product coke plant of the Company or from any other coke plant hereafter acquired by the Company, or both, shall constitute less than 5% of the total gas in therms sent out by the Company during such calendar year, then, and in that event, instead of the foregoing percentage of gross operating revenue the Company shall pay to the Trustee as above provided a sum in cash equal to two and three-quarters per centum (23⁄4%) of the average amount of the gross property account of the Company, as defined in Subdivision (III) of this Section 9.07, for such calendar year) and also less, in either case, to the extent that the Company desires to include the same, the following credits against such Fund:
(a) All expenditures of the Company during said period ending December 31, 1945 or such calendar year, as the case may be, for ordinary maintenance and repairs of the mortgaged and pledged property which have not theretofore been made the basis of a credit under this Section;
(b) The amount of all expenditures of the Company subsequent to August 31, 1942 for property of the character of property additions (other than property described in subdivision (7) of Section 1.04 hereof) after deducting therefrom the sum of (1) all amounts theretofore made the basis of a credit under this subdivision (b), (2) an amount equivalent to ten-sixths (10/6ths) of
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the principal amount of all bonds either (i) authenticated and delivered under the provisions of Article VI hereof, or (ii) the right to the authentication and delivery of which has been waived under the provisions of Section 8.02 hereof, and (3) an amount equivalent to ten-sixths (10/6ths) of the amount of any credit taken under Section 2.13 hereof upon the basis of property additions as therein provided; provided, however, that any such expenditures, set forth as a basis of a credit in the Treasurer’s certificate provided for in this Section, shall have been made with respect to property additions constituting part of the mortgaged and pledged property at the date of such Treasurer’s certificate; and provided further, that the aggregate of all amounts then and theretofore made the basis of a credit under this subdivision (b) shall not exceed the aggregate of the costs of all mortgaged and pledged property retired subsequent to August 31, 1942. Such costs shall be determined in the manner provided for the determination of the cost of funded property retired in connection with the deductions required by subdivision (II) of Section 1.04 hereof;
(c) An amount equal to ten-sixths (10/6ths) of the principal amount of each bond or fraction of a bond to the authentication and delivery of which the Company would then be entitled on the basis of property additions by virtue of compliance with all applicable provisions of this Indenture (except as hereinafter in this Section provided) relating to such authentication and delivery but which have not been authenticated and delivered;
(d) The principal amount of any outstanding bonds, with all unmatured coupons, secured hereby, then surrendered to the Trustee, which bonds and coupons shall forthwith be canceled by the Trustee and, upon request of the Company, the Trustee shall cremate the same and deliver to the Company a certificate of such cremation; and
(e) The principal amount of any Debentures issued under Debenture Agreement dated as of March 1, 1945, between the Company and the Manufacturers Trust Company, as
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trustee (or any debenture, note, bond or other evidence of indebtedness issued upon the refunding, replacement, renewal or extension of all or any part of said Debentures or other evidences of indebtedness, all of which are included in the term “Debentures” as used herein) which shall have been purchased, paid, retired or redeemed by the Company, upon certification to the Trustee as hereinafter provided; provided, however, that the amount of the credit which may be taken under this subdivision (e) shall not exceed Two hundred thousand Dollars ($200,000) for the calendar year 1945, and a like amount for each calendar year thereafter, plus, for each such calendar year, the principal amount of any Debentures not made the basis of a credit as permitted by this subdivision (e) in the period ending December 31, 1945, or in any preceding calendar year or years subsequent to December 31, 1945, as the case may be; and provided further that the maximum principal amount of Debentures which may be made the basis of a credit under this subdivision(e) shall be Two million Dollars ($2,000,000) and that credit may not be taken under this subdivision (e) for any calendar year subsequent to the calendar year 1955. Any Debenture made the basis of a credit under this subdivision (e) shall be surrendered by the holder or owner thereof (including the Company in cases where any Debentures shall be acquired by it) to the trustee under said Debenture Agreement or to the trustee under any other instrument pursuant to which such Debentures may be issued (or if there be no such trustee, to the Company) for cancellation and at the time of using any credit under this subdivision (e) the Company shall furnish to the Trustee a certificate of such trustee (or of the Company) evidencing such cancellation and stating the principal amount of the Debentures purchased, paid, retired or redeemed.
On or before May 1, 1946 and on or before each first day of May thereafter, the Company shall file with the Trustee a Treasurer’s certificate which shall state:
(1) The amount which is either (a) 15% of the gross operating revenue of the Company during said period ending
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December 31, 1945 or the preceding calendar year, as the case may be, after deducting from such gross operating revenue the cost to the Company of any gas purchased, including the cost or demand charge for any standby service, or (b) 23⁄4% of the average amount of the gross property account of the Company during such calendar year, as the case may be;
(2) If credit is desired under subdivision (a), the amount of expenditures of the character described in subdivision (a) for which credit is desired and that such amount has not theretofore been made the basis of a credit under this Section;
(3) If credit is desired under subdivision (b), the amount of such credit and how the same has been calculated;
(4) If credit is desired under subdivision (c), a statement showing the amount of such credit together with the certificates, instruments and opinions required to be delivered by this Section in connection with such a credit;
(5) If credit is desired under subdivision (d), the principal amount of bonds being surrendered as the basis of such credit;
(6) If credit is desired under subdivision (e), the principal amount of Debentures or other evidences of indebtedness being certified to the Trustee as the basis of such credit together with the certificate of the trustee (or the Company) evidencing the cancellation thereof and stating the amount thereof paid, retired or redeemed;
(7) The amount, if any, set forth pursuant to clause (9) hereof in the next previous Treasurer’s certificate which shall have been filed by the Company pursuant to the provisions of this Section except to the extent that any credits included in such excess amount may have been made the basis of the withdrawal of cash deposited under this Section 9.07;
(8) The aggregate of the amounts set forth in such Treasurer’s certificate pursuant to the foregoing clauses (2) to (7), inclusive;
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(9) The amount, if any, by which the amount set forth in such Treasurer’s certificate pursuant to the foregoing clause (8) shall be in excess of the amount stated in such Treasurer’s certificate pursuant to the foregoing clause (1);
(10) The amount, if any, by which the amount set forth in such Treasurer’s certificate pursuant to the foregoing clause (8) shall be less than the amount stated in such Treasurer’s certificate pursuant to the foregoing clause (1).
The Company shall pay to the Trustee in cash on or before the said first day of May the amount set forth in such Treasurer’s certificate pursuant to the foregoing clause (10). Any cash so deposited may be withdrawn on the basis of credits of the character set forth in the foregoing subdivisions (a) to (e) inclusive, to the extent that the same would be available as the basis of a credit against the Company’s obligation to deposit cash under this Section, and shall be certified to the Trustee in the same manner as though such credits were being made the basis of a credit against the Company’s obligation to deposit cash under this Section. In any case where cash so deposited is withdrawn the Company shall furnish to the Trustee a Treasurer’s certificate and an opinion of counsel each to the effect that all conditions precedent to such withdrawal, specified in this Indenture, have been complied with. Any credit so made the basis of withdrawal of cash under this Section may not thereafter be made the basis of a credit of any kind under this Section. Any cash so deposited may, in lieu of being withdrawn as aforesaid, be used or applied to the purchase, payment or redemption of bonds in the manner provided for in subdivisions (2) and (3) of Section 13.05 hereof. Any cash not so withdrawn, used or applied within three years from the date of receipt thereof by the Trustee shall be used or applied by the Trustee to the purchase or redemption of bonds outstanding hereunder in the manner provided by subdivision (II) of Section 13.05 hereof.
In case the Company shall, pursuant to the provisions of subdivision (b) of this Section, elect to make expenditures with respect to any property of the character of property additions the basis of a credit, the Company shall deliver to the Trustee an opinion of counsel to the effect that the property additions, with respect to which the
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expenditures so certified were made, constituted at the date of the Treasurer’s certificate part of the mortgaged and pledged property.
In case the Company shall, pursuant to the provisions of subdivision (c) of this Section, elect to avail of a credit based upon the right to the authentication and delivery of bonds on the basis of property additions, the Company shall comply with all applicable provisions of this Indenture relating to such authentication and delivery; provided, however, that in no such case shall the Company be required to deliver to the Trustee any resolution or document such as is described in subdivisions (1), (2) and (6) of Section 6.06 hereof or such parts of the opinion of counsel described in subdivision (7) of said Section 6.06 as relate solely to the authorization of the issuance of bonds of the Company by governmental authorities or by the Company or to comply with the provisions of Section 6.05 hereof; and such election shall operate as a waiver by the Company of the right thereafter to make such property additions the basis for the authentication and delivery of bonds hereunder, and such property additions shall have the status of funded property.
(II) For the purposes of this. Section 9.07, the term “gross operating revenue of the Company” shall be deemed to be the gross operating revenue as shown by the books of the Company (but not including any proceeds of the sale of residuals produced); provided, however, that there shall not be included as gross operating revenue any revenue derived from the operation of the property of a successor corporation resulting from a consolidation, merger, conveyance or transfer permitted by Section 17.01 hereof unless and until such property shall be subjected to the lien of this Indenture; and further provided, that any operating revenue of the Company which is in controversy as a result of any litigation or which has been impounded, shall be included in the gross operating revenue of the Company for the purpose of this computation, but only after, and in the year in which, any such operating revenue in controversy or impounded is recovered or, at the option of the Company, after, and in the year in which, it shall have been finally determined that such operating revenue belongs to the Company.
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(III) For the purposes of this Section 9.07, the term “average amount of the gross property account” for any calendar year subsequent to December 31, 1945 shall be deemed to be the amount obtained by dividing by two the total resulting from adding the amount of the gross property account at the end of such calendar year to the amount thereof at the beginning of such calendar year. For the purposes of this Section 9.07 the term “amount of the gross property account” at any given date shall be deemed to be the sum of $35,655,332.87 plus the cost of property additions from August 31, 1942 to such date (other than property described in Subdivision (7) of Section 1.04 hereof) less the amount of all retirements during said period (other than retirements of property described in Subdivision (7) of Section 1.04 hereof).
SECTION 9.08. That it will, subject to the provisions of Article XVII hereof, at all times maintain its corporate existence and right to carry on business, and, subject to the provisions of this Indenture, will use its best efforts to maintain, preserve and renew all the rights, powers, privileges and franchises owned by it.
SECTION 9.09. That if it shall fail to perform any covenants contained in Sections 9.05, 9.06, 9.07, 9.08 or 9.10 hereof, the Trustee may make advances to perform the same in its behalf and shall make such advances if requested so to do by the holders of not less than a majority in principal amount of the bonds then outstanding hereunder and furnished with funds adequate for the purpose and also adequate to pay any expense incurred in connection with such performance; the Company shall at once repay to the Trustee all sums so advanced with interest at the rate of five per centum (5%) per annum until paid, and all sums so advanced with the interest thereon shall be secured hereby, having the benefit of the lien hereby created in priority to the indebtedness evidenced by the bonds and coupons issued hereunder, but no such advance shall be deemed to relieve the Company from any default hereunder except that, to the extent that any such advances by the Trustee shall be repaid by the Company, such advances shall be deemed to have been payments of the Company as of the date of such repayment.
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SECTION 9.10. That it will cause this Indenture to be promptly recorded and filed in such manner and in such places as may be required by law in order fully to preserve and protect the security of the bondholders and all rights of the Trustee and will furnish to the Trustee:
(1) Promptly after the execution and delivery of this Indenture and of each supplemental indenture, an opinion of counsel either stating that in the opinion of such counsel this Indenture and all indentures supplemental hereto have been properly recorded and filed so as to make effective the lien intended to be created thereby and reciting the details of such action or stating that in the opinion of such counsel no such action is necessary to make such lien effective, and
(2) At least annually after the execution and delivery of this Indenture an opinion of counsel either stating that in the opinion of such counsel such action has been taken with respect to the recording, filing, re-recording and refiling of this Indenture and all indentures supplemental hereto as is necessary to maintain the lien thereof, and reciting the details of such action, or stating that in the opinion of such counsel no such action is necessary to maintain such lien. As used in clause (2) of this Section, the term “annually” shall be deemed to mean once in each calendar year following the calendar year 1945.
It shall be a compliance with clauses (1) and (2) of this Section if (a) the opinion of counsel therein required to be delivered to the Trustee shall state (i) that the indentures which may be the subject matter of any such opinion have been received for recordation or filing or re-recording or refiling in each jurisdiction in which in the opinion of such counsel they are respectively required to be recorded or filed or re-recorded or refiled and (ii) that, in the opinion of such counsel, no further action is necessary to make effective the lien intended to be created by such indentures, and (b) such opinion is delivered to the Trustee within such time, following the date of the execution and delivery of the respective indentures which may be the subject matter of such opinion, as shall be practicable, having due regard to the
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number and distance of the jurisdictions in which the same are required to be recorded or filed or re-recorded or refiled.
SECTION 9.11. That it will execute and deliver such further instruments and do such further acts as may be necessary or proper to carry out more effectually the purposes of this Indenture, and to make subject to the lien hereof, any property hereafter acquired and intended to be subject to the lien hereof, and to transfer to any new trustee or trustees or co-trustee or co-trustees the estate, powers, instruments or funds held in trust hereunder.
SECTION 9.12. That books of record and account will be kept, in which full, true and correct entries will be made, of all dealings or transactions, of, or in relation to, the plants, properties, business and affairs of the Company, and that all books, documents and vouchers relating to the plants, properties, business and affairs of the Company shall at all reasonable times be open to the inspection of such reputable accountant or other agent of recognized standing as the Trustee may from time to time designate, and that the Company will bear all expenses of any such inspection. Except as may be required pursuant to Sections 18.02 and 18.03 hereof, the Trustee shall be under no obligation to cause any such inspection to be made unless requested so to do in writing by the holders of not less than a majority in principal amount of the bonds then outstanding hereunder and furnished with funds sufficient to pay all costs and expenses incurred or to be incurred by it in or in connection with such inspection.
SECTION 9.13. That it will not issue, or permit to be issued, any bonds hereunder in any manner other than in accordance with the provisions of this Indenture and that it will faithfully observe and perform all the conditions, covenants and requirements of this Indenture and of all indentures supplemental hereto and of the bonds issued hereunder.
SECTION 9.14. I. That it will not withdraw or permit the withdrawal of any cash or purchase money obligations representing the
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proceeds of insurance on or the release of or the taking by eminent domain of property subject to the lien of this Indenture which shall have been deposited with the trustee of a prior lien unless
(a) such cash is deposited with the Trustee hereunder to be withdrawn, used or applied in the manner and subject to the conditions provided in Section 13.05 hereof, except that any such cash representing proceeds of insurance shall be applied in accordance with the provisions of Section 9.06 hereof; or
(b) the consent of the Trustee hereunder has been given to such withdrawal, which consent shall be given by the Trustee (1) with respect to any such cash representing proceeds of insurance upon compliance with the provisions of Section 9.06 hereof, or (2) with respect to any other cash upon compliance with the provisions of Section 13.05 hereof. Any cash with respect to the withdrawal of which the Trustee shall have given its consent in accordance with the provisions of this subdivision (b) shall for all purposes of this Indenture be deemed to have been originally deposited hereunder and to have been withdrawn, used or applied under the provisions of Section 9.06 or Section 13.05 hereof as the case may be; or,
(c) such cash is deposited with the trustee of another prior lien, such cash to be subject to the restrictions as to withdrawal hereinabove set forth; or
(d) such purchase money obligations are withdrawn for payment and the cash received thereon is deposited with the trustee of such prior lien, such cash to be subject to the restrictions as to withdrawal hereinabove set forth.
II. That, upon the cancellation and discharge of any prior lien, it will
(a) cause the balance of any cash and purchase money obligations of the character described in paragraph I of this Section which shall have been deposited with the trustee of such
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prior lien and shall not theretofore have been withdrawn or permitted to be withdrawn in accordance with the provisions of said paragraph I to be deposited either (1) with the Trustee to be held and applied in the same manner as though such cash and purchase money obligations had originally been deposited with the Trustee hereunder, or (2) with the trustee of another prior lien, such cash and purchase money obligations to be subject to the restrictions as to withdrawal hereinabove set forth; and
(b) cause any prior lien bonds then held by the trustee of such prior lien to be cancelled.
III. That, so long as any prior lien continues to be a prior lien, the Company will not permit prior lien bonds secured by such prior lien to be increased unless the prior lien bonds representing such increase shall be deposited with the Trustee to be held under the provisions of Article XI hereof.
SECTION 9.15. That, while any of the bonds of the 1965 Series are outstanding, it will not (a) declare or pay any dividends (other than stock dividends) or make any other distribution on any shares of its capital stock or to its stockholders, or (b) purchase, redeem or otherwise acquire or retire for value (otherwise than from the proceeds of new stock financing) any shares of its capital stock, if, after giving effect to such declaration, payment, distribution, purchase, redemption, acquisition or retirement (any such declarations, payments, distributions, purchases, redemptions, acquisitions or retirements being hereinafter referred to as “Restricted Payments”), the aggregate amount of such Restricted Payments made by the Company during the period from the date of this Indenture to and including the effective date (as hereinafter defined in this Section 9.15) of the Restricted Payment in respect of which the determination is being made, shall exceed the amount of the “Net Income” (as hereinafter defined in this Section 9.15) for the period commencing with the date of this Indenture, and running to and including the effective date of such Restricted Payment.
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That within forty-five (45) days after the date of the declaration of any dividend, the making of any other payment or distribution on its capital stock, or the purchase, redemption, acquisition or retirement of any shares of its capital stock (such date being herein referred to as the “effective date”) it will notify the Trustee of such action and will deliver to the Trustee a Treasurer’s certificate showing in reasonable detail the amount of the Net Income for the period to and including the effective date of the Restricted Payment in respect of which the certificate is filed, stating that such Net Income has been determined as provided in this Section 9.15, showing all Restricted Payments previously made, and stating that the making of the Restricted Payment in respect of which the certificate is filed was not in violation of the provisions of this Section.
The term “Net Income” for any period shall mean the amount shown as net income on the books of the Company computed in accordance with the Classification of Accounts of the Missouri Public Service Commission; provided, however, that irrespective of any change in such classification there shall always be deducted as an operating expense, income, excess profits and other taxes based on or measured by income and provision for retirements and/or depreciation; and further provided that the amount of all expenditures and accruals for maintenance, and of provision for retirements and/or depreciation shall in no event be less than the amount of the Maintenance and Improvement Fund requirement (prior to any deductions therefrom or credits thereagainst) specified in Section 9.07 hereof for the period in which the computation is being made; and also provided that in computing such net income no deduction or adjustment shall be made for or in respect of (a) expenses or amortization of expenses incurred in connection with the redemption or retirement of any securities issued by the Company, or by any corporation which may merge or consolidate with or into, or all or substantially all of the operating property of which may be acquired by, the Company, including any amount paid in excess of the principal amount of securities redeemed or retired and, in the event that such redemption or retirement is effected by the use of the proceeds of the sale of other securities of the Company or such other corporation, interest on the securities redeemed or retired from the
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date on which the funds required for such redemption or retirement are deposited in trust for such purpose to the date of redemption or retirement; (b) profits and losses from sales of capital assets of the Company, or of any corporation which may merge or consolidate with or into, or all or substantially all of the operating property of which may be acquired by the Company, or taxes on or in respect of any such profits; (c) any earned surplus adjustment applicable to any period prior to August 31, 1942; (d) amortization of utility plant adjustment or acquisition accounts or other intangibles; or (e) amortization of the book values of gas manufacturing and storage facilities owned by the Company on August 31, 1942 which shall hereafter become no longer used or useful by reason of the substitution of natural gas.
SECTION 9.16. That, while any of the bonds of the 1965 Series are outstanding, it will not make any charges against capital surplus except charges arising out of adjustments to be made in its accounts as a result of orders of the Securities and Exchange Commission or the Public Service Commission of Missouri in connection with the effectuation of the reorganization of the Company in accordance with Section 11 of the Public Utility Holding Company Act of 1935 pursuant to which reorganization this Indenture has been executed, and such other charges as are expressly directed to be made against capital surplus at any time by orders of the Securities and Exchange Commission or the Public Service Commission of Missouri.
ARTICLE X.
BONDHOLDERS’ LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE.
SECTION 10.01. The Company covenants and agrees that it will furnish or cause to be furnished to the Trustee between March 15 and March 31 and between September 15 and September 30 in each year beginning with the period between September 15 and September 30 in the year 1945, and at such other times as the Trustee may request in
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writing, a list in such form as the Trustee may reasonably require containing all the information in the possession or control of the Company or of its paying agents, as to the names and addresses of the holders of bonds obtained since the date as of which the next previous list, if any, was furnished. Any such list may be dated as of a date not more than fifteen days prior to the time such information is furnished or caused to be furnished, and need not include information received after such date.
SECTION 10.02. (a) The Trustee shall preserve in as current a form as is reasonably practicable all information as to the names and addresses of the holders of the bonds outstanding under this Indenture (1) contained in the most recent list furnished to it, as provided in Section 10.01 hereof, (2) received by it in the capacity of paying agent with respect to the principal of and interest on the bonds outstanding under this Indenture, and (3) filed with it within the two (2) preceding years pursuant to the provisions of paragraph (2) of subdivision (c) of Section 10.04 hereof.
The Trustee may (1) destroy any information or portion thereof furnished to it as provided in said Section 10.01 upon receipt of new information so furnished to it in substitution therefor; (2) destroy any information received by it as paying agent upon delivering to itself as Trustee, not earlier than forty-five (45) days after an interest payment date of the bonds, a list containing the names and addresses of the holders of bonds obtained from such information since the delivery of the next previous list, if any; (3) destroy any list delivered to itself as Trustee which was compiled from information received by it as paying agent upon receipt of a new list so delivered; and (4) destroy any information received by it pursuant to the provisions of paragraph (2) of subsection (c) of said Section 10.04 but not until two (2) years after such information has been filed with it.
(b) In case three or more holders of such bonds (hereinafter referred to as “applicants”) apply in writing to the Trustee and furnish to the Trustee reasonable proof that each such applicant has owned a
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bond outstanding under this Indenture for a period of at least six (6) months preceding the date of such application, and such application states that the applicants desire to communicate with other holders of bonds with respect to their rights under this Indenture or under the bonds, and is accompanied by a copy of the form of proxy or other communication which such applicants propose to transmit, then the Trustee shall within five (5) business days after the receipt of such application, at its election, either
(1) afford to such applicants access to the information preserved at the time by the Trustee in accordance with the provisions of subdivision (a) of this Section; or
(2) inform such applicants as to the approximate number of holders of bonds whose names and addresses appear in the information preserved at the time by the Trustee, in accordance with the provisions of subdivision (a) of this Section, and as to the approximate cost of mailing to such bondholders the form of proxy or other communication, if any, specified in such application.
If the Trustee shall elect not to afford such applicants access to such information, the Trustee shall, upon the written request of such applicants, mail to each bondholder whose name and address appears in the information preserved at the time by the Trustee, in accordance with the provisions of subdivision (a) of this Section, a copy of the form of proxy or other communication which is specified in such request, with reasonable promptness after a tender to the Trustee of the material to be mailed and of payment, or provision for the payment of, the reasonable expenses of such mailing, unless within five (5) days after such tender, the Trustee shall mail to such applicants and file with the Securities and Exchange Commission, together with a copy of the material to be mailed, a written statement to the effect that, in the opinion of the Trustee, such mailing would be contrary to the best interests of the holders of bonds or would be in violation of applicable law. Such written statement shall specify the basis of such opinion. If said Commission, after opportunity for a hearing upon objections
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specified in the written statement so filed, shall enter an order refusing to sustain any of such objections, or if, after the entry of an order sustaining one or more of such objections, said Commission shall find, after notice and opportunity for a hearing, that all of the objections so sustained have been met and shall enter an order so declaring, the Trustee shall mail copies of such material to all such bondholders with reasonable promptness after the entry of such order and the renewal of such tender; otherwise, the Trustee shall be relieved of any obligation or duty to such applicants respecting their application.
(c) The Trustee shall not be held accountable by reason of the mailing of any material pursuant to any request made under subdivision (b) of this Section.
SECTION 10.03. The Company covenants and agrees
(1) To file with the Trustee, within fifteen (15) days after the Company is required to file the same with the Securities and Exchange Commission, copies of the annual reports, and of the information, documents and other reports (or copies of such portions of any of the foregoing as such Commission may from time to time by rules and regulations prescribe) which the Company may be required to file with such Commission pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934; or, if the Company is not required to file information, documents or reports, pursuant to either of such Sections, then to file with the Trustee and the Securities and Exchange Commission, in accordance with rules and regulations prescribed from time to time by said Commission, such of the supplementary and periodic information, documents and reports which may be required pursuant to Section 13 of the Securities Exchange Act of 1934 in respect of a security listed and registered on a national securities exchange as may be prescribed from time to time in such rules and regulations;
(2) To file with the Trustee and the Securities and Exchange Commission, in accordance with the rules and regulations prescribed from time to time by said Commission, such additional
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information, documents and reports with respect to compliance by the Company with the conditions and covenants provided for in this Indenture as may be required from time to time by such rules and regulations;
(3) To transmit to the holders of bonds outstanding under this Indenture in the manner and to the extent provided in subdivision (c) of Section 10.04 hereof with respect to reports pursuant to subdivision (a) of said Section, such summaries of any information, documents and reports required to be filed by the Company, pursuant to subdivisions (1) and (2) of this Section, as may be required by the rules and regulations prescribed from time to time by the Securities and Exchange Commission.
SECTION 10.04. (a) The Trustee shall transmit, within sixty (60) days after May 15 in each year, beginning with the year 1946, to the bondholders as hereinafter in this Section provided a brief report dated as of such May 15 with respect to
(1) Its eligibility and its qualifications under Sections 18.01 and 18.14 hereof, or in lieu thereof, if to the best of its knowledge it has continued to be eligible and qualified under such Sections, a written statement to such effect:
(2) The character and amount of any advances (and, if the Trustee elects so to state, the circumstances surrounding the making thereof) made by the Trustee, as such, which remain unpaid on the date of such report and for the reimbursement of which it claims or may claim a lien or charge prior to that of the bonds upon the mortgaged and pledged property, or upon property or funds held or collected by it as Trustee, if such advances so remaining unpaid aggregate more than one-half of one percentum (1⁄2 of 1%) of the aggregate principal amount of bonds outstanding under this Indenture on the date of such report;
(3) The amount, interest rate and maturity date of all other indebtedness owing by the Company, or any other obligor on the
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bonds secured hereby, to the Trustee in its individual capacity on the date of such report, with a brief description of any property held as collateral security therefor, except an indebtedness based upon a creditor relationship arising in any manner described in paragraphs (2), (3), (4) or (6) of subdivision (b) of Section 18.15 hereof;
(4) The property and funds physically in the possession of the Trustee, as such Trustee, or of a depositary for it, on the date of such report;
(5) Any release, or release and substitution, of property subject to the lien of this Indenture (and the consideration therefor, if any) which it has not previously reported; provided, however, that to the extent that the aggregate value as shown by the release papers of any or all of such released properties does not exceed an amount equal to one per centum (1%) of the principal amount of bonds then outstanding, the report need only indicate the number of such releases, the total value of property released as shown by the release papers, the aggregate amount of cash received and the aggregate value of property received in substitution therefor as shown by the release papers;
(6) Any additional issue of bonds issued under this Indenture which it has not previously reported; and
(7) Any action taken by the Trustee in the performance of its duties under this Indenture which it has not previously reported and which, in its opinion, materially affects the bonds outstanding under this Indenture, or materially affects the mortgaged and pledged property, except action in respect of a default, notice of which has been or is to be withheld by it, in accordance with the provisions of Section 14.02.
(b) The Trustee shall transmit to the bondholders as hereinafter provided a brief report with respect to—
(1) the release, or release and substitution, of property subject to the lien of this Indenture (and the consideration therefor,
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if any) unless the fair value of such property, as set forth in the certificate or. opinion required by Sections 13.03 or 13.05 is less than ten per centum (10%) of the principal amount of bonds outstanding at the time of such release, or such release and substitution, such report to be so transmitted within ninety (90) days after such time; and
(2) the character and amount of any advances (and if the Trustee elects so to state, the circumstances surrounding the making thereof) made by the Trustee as such since the date of the last report transmitted pursuant to the provisions of subsection (a) of this Section 10.04 (or if no such report has yet been so transmitted, since the date of execution of this Indenture), for the reimbursement of which it claims or may claim a lien or charge prior to that of the bonds on the mortgaged and pledged property or on property or funds held or collected by it as Trustee, and which it has not previously reported pursuant to this paragraph, if such advances remaining unpaid at any time aggregate more than ten per centum (10%) of the principal amount of bonds outstanding at such time, such report to be transmitted within ninety (90) days after such time.
(c) Reports, pursuant to this Section, shall be transmitted by mail
(1) to all registered holders of bonds outstanding under this Indenture as the names and addresses of such holders appear upon the registration books of the Company;
(2) to such holders of bonds outstanding under this Indenture as have, within the two (2) years preceding such transmission, filed their names and addresses with the Trustee for that purpose; and
(3) except in the case of reports pursuant to subsection (b) of this Section, to each bondholder whose name and address is preserved at the time by the Trustee, as provided in subdivision (a) of Section 10.02.
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(d) A copy of each such report shall, at the time of such transmission to the bondholders, be filed by the Trustee with each Stock Exchange upon which any of the bonds are listed, and also with the Securities and Exchange Commission.
ARTICLE XI.
CONCERNING PRIOR LIEN BONDS DEPOSITED WITH TRUSTEE.
SECTION 11.01. Each prior lien bond in coupon form deposited with the Trustee shall have all unmatured coupons attached when so deposited, or shall be accompanied by evidence satisfactory to the Trustee (which may be a certificate of the mortgagee or trustee under the prior lien securing the same) that the discharge of the mortgage or other lien securing such prior lien bond may be obtained without the production of any coupon or coupons that may be missing; and each prior lien bond so deposited shall be uncanceled. Each prior lien bond deposited hereunder shall be in bearer form or accompanied by appropriate instruments of transfer; and the Trustee may cause any or all registered prior lien bonds to be registered in its name as Trustee, or otherwise, or in the name or names of its nominee or nominees.
SECTION 11.02. All prior lien bonds received by the Trustee for the purposes of this Article XI shall be held by the Trustee, as part of the mortgaged and pledged property and without impairment of the lien thereof, for the protection and further security of the bonds issued hereunder. Except during the continuance of a completed default specified in Section 14.01 of this Indenture, no payment by way of interest or otherwise on any of the prior lien bonds held by the Trustee shall be made or demanded and the coupons thereto appertaining as they mature shall be canceled by the Trustee and delivered so canceled to the Company, unless the Company shall, by an instrument in writing, signed by its President or a Vice-President or its Treasurer or an Assistant Treasurer, and delivered to the Trustee, elect, with respect
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to any of such prior lien bonds, to have such payments made and demanded. In any event, except during the continuance of a completed default as aforesaid, all moneys received by the Trustee on account of the principal of or interest or premium on said prior lien bonds (to the extent that a Treasurer’s certificate delivered to the Trustee shall state that such moneys do not represent the proceeds of insurance on, or of the release of, or of the taking by eminent domain of, mortgaged and pledged property, including the proceeds of and substitutes for any thereof), shall be paid over by the Trustee to or upon the order of the Company signed as aforesaid; provided that if and to the extent that such Treasurer’s certificate shall not state that such moneys do not represent the proceeds of insurance on, or of the release of, or of the taking by eminent domain of, mortgaged and pledged property, including the proceeds of and substitutes for any thereof, the same shall be retained by the Trustee and held as part of the mortgaged and pledged property, to be withdrawn, used or applied, in the manner, to the extent, and for the purposes, and subject to the conditions provided in Section 13.05 hereof.
SECTION 11.03. Except during the continuance of a completed default specified in Section 14.01 hereof, the Trustee, if so directed by an instrument in writing signed by the President or a Vice-President or the Treasurer or an Assistant Treasurer of the Company, shall cause any prior lien bonds held by it to be canceled, and the obligation thereby evidenced to be satisfied and discharged, provided that it shall have received notice from the trustee or other holder of the prior lien securing the same that such trustee or other holder, on receipt of the prior lien bonds held by the Trustee, will cause the prior lien to be satisfied and discharged of record ; provided, however, that the Trustee shall not be required to cause any prior lien bonds so held by it to be canceled or surrendered for cancellation pursuant to the provisions of this Section unless and until the Trustee shall have received an opinion of counsel to the effect that there is no outstanding lien (other than excepted encumbrances) covering any part of the property upon which such prior lien exists junior to such prior lien and senior to the lien of this Indenture; and provided, further, that if all of the
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property subject to the prior lien securing prior lien bonds deposited with the Trustee shall have been released from the lien of this Indenture, such prior lien bonds as shall thereupon cease to be prior lien bonds shall be surrendered forthwith by the Trustee to the Company upon the written order of its President or a Vice-President or its Treasurer or an Assistant Treasurer. In connection with each direction or order under this Section the Trustee shall be furnished with a Treasurer’s certificate and an opinion of counsel each to the effect that all conditions precedent to the action directed or ordered have been complied with.
SECTION 11.04. Upon the occurrence of any completed default specified in Section 14.01 hereof, the Trustee may exercise any and all rights of a bondholder with respect to the prior lien bonds then held by it or may take any other action which shall in its judgment be desirable or necessary to avail of the security created for such prior lien bonds by the prior liens securing the same. The Trustee shall be reimbursed from the trust estate for all expenses by it properly incurred by reason of any such action taken without negligence or bad faith, with interest upon all such expenditures at the rate of five per centum (5%) per annum; and the amount of such expenses and interest shall, until repaid, constitute a lien upon the mortgaged and pledged property prior to the lien of the bonds and coupons issued hereunder.
ARTICLE XII.
REDEMPTION OR PURCHASE OF BONDS.
SECTION 12.01. Such of the bonds of any series issued hereunder as are, by their terms, redeemable before maturity may, at the option of the Company evidenced by a resolution, be redeemed at such times, in such amounts and at such prices as may be specified therein and in accordance with the provisions of the three next succeeding Sections numbered from 12.02 to 12.04, both inclusive.
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SECTION 12.02. In case of a redemption of a part only of any series of said bonds, the particular serial numbers of the coupon bonds so to be redeemed shall be selected by the Trustee by lot, according to such method as it shall deem proper in its discretion. In any selection by lot, each registered bond without coupons shall be represented by the distinguishing numbers of the coupon bonds assigned for exchange for such registered bonds without coupons. Notice of intention to redeem (including in case a part only of the bonds of any particular series are to be redeemed, the numbers of the bonds to be redeemed in whole or in part) shall be given, by or on behalf of the Company, by publication in one daily newspaper printed in the English language and published and of general circulation in the Borough of Manhattan, The City of New York, and in one daily newspaper printed in the English language and published and of general circulation in the City of St. Louis, State of Missouri, and in one daily newspaper printed in the English language and published and of general circulation in each other city (if any) where the interest on or principal of the bonds to be redeemed is payable, for such period of time before the date fixed for redemption as is specified in Section 2.12 hereof as to bonds of the 1965 Series and as to the bonds of any other series for such periods as may be fixed for the bonds of such other series by the supplemental indenture establishing such series of bonds, or. if no such period be fixed, then at least once in each of four (4) successive calendar weeks (on any secular day of such calendar week which need not be the same day in each week) immediately preceding the date fixed for redemption. A copy of such notice shall also be mailed by or on behalf of the Company, not less than twenty (20) days before the date fixed for redemption, to each holder of any fully registered bond or of any coupon bond registered as to principal which is to be redeemed, at his last address, if any, appearing upon the registry books, but such mailing shall not be a condition precedent to such redemption and failure so to mail any such notice shall not affect the validity of the proceedings for the redemption of such bonds.
If the bonds to be redeemed are bonds of a series of which there are outstanding only fully registered bonds or coupon bonds
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registered as to principal, such publication need not be made, but, in lieu thereof, a copy of such notice shall be mailed to each such registered holder directed to his registered address at such time as may be stated in the bonds of such series.
In the event that the Company shall complete the giving of notice of its intention to redeem any bonds so redeemable, the Company shall furnish to the Trustee a Treasurer’s certificate and an opinion of counsel each to the effect that all conditions precedent, as provided in this Section 12.02, have been complied with.
SECTION 12.03. In the event that the Company shall complete the giving of notice of its intention to redeem any bonds so redeemable, the Company shall, and it hereby convenants that it will, on or before the redemption date specified in such notice, deposit with the Trustee a sum of money sufficient to redeem all such bonds so to be redeemed on such date and/or irrevocably direct the Trustee to apply from money held by it available to be used for the redemption of bonds, a sum of money sufficient to redeem such bonds. If the Company shall fail so to deposit or direct the application of the money for the redemption of said bonds and such failure shall continue for a period of ten days after the redemption date, such failure, so continued, shall constitute a completed default under this Indenture and the said bonds so called for redemption shall thereupon immediately become due and payable, and the holders of said bonds shall be entitled to receive and the Company shall be obligated to pay the redemption price of said bonds and thereupon and without the lapse of any period of time all the remedies provided for in Article XIV hereof with respect to a default in the payment of principal of bonds outstanding hereunder shall be available to and enforceable by the Trustee.
SECTION 12.04. All moneys deposited by the Company with the Trustee under the provisions of this Article XII for the redemption of bonds or which the Company directs shall be applied by the Trustee to the redemption of bonds shall, subject to the provisions of Section 21.03 hereof, be held by the Trustee in trust for account of the holders of
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the bonds so to be redeemed, and shall be paid to them respectively, upon presentation and surrender of said bonds in bearer form or if registered, accompanied by a written instrument of transfer in form approved by the Company duly executed by the registered holder or by his duly authorized attorney, with all unmatured coupons, if any, appertaining thereto. Coupons maturing on or prior to the redemption date shall remain payable in accordance with their terms. On and after such redemption date, if the moneys for the redemption of the bonds to be redeemed shall have been deposited or directed to be applied as aforesaid, such bonds shall cease to bear interest and the coupons for interest, if any, maturing subsequent to the redemption date shall be void.
If any serial number shall be drawn by the Trustee at any selection by lot as in Section 12.02 hereof provided for, which is assigned to any fully registered bond of a denomination larger than One thousand dollars ($1,000), such fully registered bond shall be presented properly endorsed for transfer at or after the date fixed for the redemption of said bonds so drawn for redemption, and the payment with respect to said bond shall be made upon surrender of said bond so endorsed; and coupon bonds or fully registered bonds for the unpaid balance, if any, of the principal amount of the fully registered bond so presented and surrendered shall be executed by the Company and authenticated and delivered by the Trustee without charge therefor. On and after the date fixed for such redemption, interest shall be payable only on the portion of said fully registered bond not so called for redemption and only such portion shall continue to be entitled to the benefit of the lien of this Indenture.
SECTION 12.05. At any time, upon the request of the Company, expressed by resolution, the Trustee shall, to the extent that such bonds are available for such purchase, apply all or any part of the cash held by it under any provision of this Indenture (except cash deposited under the provisions of Section 2.13 hereof or under any like devices for the retirement of bonds and except moneys deposited for the payment or redemption of a particular series of bonds) or any cash
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deposited with it by the Company for the purpose, to the purchase of bonds then outstanding hereunder of such series as the Company may designate. Such purchase shall be at public or private sale, as the Trustee may determine, at the lowest prices at which such bonds can be obtained, not exceeding the current redemption price of such bonds as shall be by their terms redeemable before maturity, or at not more than one hundred and five per centum (105%) of the principal of bonds not so redeemable, plus accrued interest. The Company shall have the right to tender bonds for sale by it to the Trustee under the provisions of this Section. Before making any such purchase the Trustee may, and upon request of the Company, shall, by notice published once in each of two (2) successive calendar weeks (on any secular day in the week which need not be the same day in each week) in one daily newspaper printed in the English language and published and of general circulation in the Borough of Manhattan, The City of New York, and in one daily newspaper printed in the English language and published and of general circulation in the City of St. Louis, State of Missouri, advertise for written proposals (to be received by it on or before a specified date) to sell to it on or before a subsequent specified date bonds of the series designated by the Company then outstanding hereunder; and the Trustee, to the extent, as nearly as is possible, of such funds then in its hands and requested by the Company to be so applied, shall purchase the bonds so offered at the price or prices most favorable to the Company, and reasonable notice shall be mailed by the Trustee to the holder or holders of the bonds whose proposals may be accepted. Should there be two or more proposals at the same price aggregating more than the amount which the Trustee has available for investment, after having accepted all proposals at lower prices, the Trustee shall invest the amount so available, by acceptance of proposals so as to acquire the requisite amount of bonds at the lowest cost possible, provided, however, that to the extent consistent with the acquisition of such amount of bonds at the lowest cost possible the Trustee shall (a) in accepting proposals, give preference to such proposals as are subject to acceptance of a portion thereof as against proposals not subject to such acceptance, (b) as between proposals subject to acceptance of a portion thereof, accept the same pro rata, and (c) as between proposals not subject to such acceptance, select by lot, according to such method as
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the Trustee shall deem proper in its discretion, the proposals to be accepted. The Trustee may also in its discretion, and upon request of the Company so to do, shall invite offers of bonds for sale to it in any other usual manner. The Trustee may reject any or all proposals in whole or in part. All offers by holders shall be subject to acceptance of a portion thereof unless otherwise expressed in the offers and all advertisements for written proposals shall so state.
The Company shall pay to the Trustee, on demand, the amount of accrued and unpaid interest upon all bonds purchased pursuant to this Section or redeemed in the manner and as provided in this Article XII.
The term “current redemption price”, as used in this Section with respect to the bonds of any particular series, shall be deemed to be the current redemption price at which bonds of such series are redeemable at the option of the Company other than by the application of cash deposited with the Trustee pursuant to Sections 2.13 or 9.07 hereof or under other similar devices for the retirement of bonds of one or more series issued hereunder or pursuant to the provisions of paragraph B of Section 13.06 hereof.
SECTION 12.06. All bonds issued hereunder paid, retired or redeemed under any of the provisions of this Indenture or purchased by the Trustee as provided in Section 12.05 hereof and all appurtenant coupons, if any, shall forthwith be canceled by the Trustee, and at the request of the Company the Trustee may cremate the same and deliver to the Company a certificate of such cremation.
ARTICLE XIII.
POSSESSION, USE AND RELEASE OF MORTGAGED AND PLEDGED PROPERTY.
SECTION 13.01. Unless the Company is in default in the payment of the interest on any of the bonds then outstanding hereunder or one or more of the completed defaults specified in Section 14.01 hereof shall have occurred and be continuing, the Company shall be suffered and permitted to possess, use and enjoy the mortgaged and pledged
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property (except such cash as is expressly required to be deposited with the Trustee and except, to the extent not herein otherwise provided, such securities as are expressly required to be deposited with the Trustee), and to receive, use and dispose of the tolls, rents, revenues, issues, earnings, income, product and profits thereof, with power in the ordinary course of business freely and without let or hindrance on the part of the Trustee or of the bondholders, to use, consume and dispose of supplies acquired for the purpose and except as herein otherwise expressly provided to the contrary, to exercise any and all rights under choses in action, contracts, franchises and claims and to alter, repair and change the position of any of its buildings, structures, plants, mains, conduits, service pipes or other property whatsoever, except that the position of none of the mortgaged and pledged property may be changed so as to impair the lien of this Indenture thereon.
SECTION 13.02. Unless the Company is in default in the payment of the interest on any of the bonds then outstanding hereunder or one or more of the completed defaults specified in Section 14.01 hereof shall have occurred and be continuing, the Company may at any time and from time to time, without any release or consent by the Trustee, or accountability thereto for any consideration received by the Company:
(1) sell or otherwise dispose of, free from the lien of this Indenture any machinery, equipment, tools, implements or other property, which shall have become old, inadequate, obsolete, worn out or unfit or unadapted for use in the operations of the Company, upon replacing the same by or substituting for the same other property (not then within the term funded property) of at least equal value to that of the property sold or otherwise disposed of and subject to no liens prior hereto except liens to which the property sold or otherwise disposed of was subject;
(2) abandon any property if in the opinion of the Board of Directors the abandonment of such property is desirable in the proper conduct of the business and in the operation of the properties of the Company, or is otherwise in the best interests of the Company;
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(3) cancel or make changes or alterations in or substitutions of any and all contracts, leases, easements and/or right of way grants;
(4) surrender or assent to the modification of any right, power, franchise, license, governmental consent or permit under which it may be operating, provided that such surrender or modification is, in the opinion of the Board of Directors of the Company (such opinion to be stated in a resolution to be filed with the Trustee), desirable in the conduct of the business of the Company and does not impair the security of the bonds outstanding hereunder.
SECTION 13.03. Unless the Company is in default in the payment of the interest on any bonds then outstanding hereunder or one or more of the completed defaults specified in Section 14.01 hereof shall have occurred and be continuing, the Company may obtain the release of any of the mortgaged and pledged property, except cash then held by the Trustee (provided, however, that prior lien bonds deposited with the Trustee shall not be released except as provided in Article XI hereof), and the Trustee shall release the same from the lien hereof upon the application of the Company and receipt by the Trustee of
(1) a resolution describing in reasonable detail the property to be released and requesting such release and stating that the Company has disposed of, exchanged or dedicated, or agreed to dispose of, exchange or dedicate the same;
(2) a Treasurer’s certificate stating that the Company is not in default in the payment of the interest on any bonds then outstanding hereunder, that none of the completed defaults specified in Section 14.01 hereof has occurred and is continuing, and that all conditions precedent, specified in this Indenture, to the granting of such release have been complied with;
(3) if the fair value of the property to be released, as set forth in the certificate required by this subdivision (3), is equal to or more than the greater of (i) Twenty-five thousand Dollars ($25,000) or (ii) one per centum (1%) of the aggregate principal amount of
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the bonds outstanding, and if the fair value of the property to be released and of all other property released since the commencement of the current calendar year, as set forth in the certificates required by this subdivision (3) and by Section 13.04 hereof, is ten per centum (10%) or more of the aggregate principal amount of bonds at the time outstanding, then an independent engineer’s certificate; otherwise an engineer’s certificate; such engineer’s certificate or independent engineer’s certificate, as the case may be, shall be made and dated not more than ninety (90) days prior to the date of such application and shall state: (a) the fair value, in the opinion of the signers, of the property to be released; (b) what portion, if any, of the property to be released is funded property; (c) that such release is in the opinion of the signers desirable in the conduct of the business of the Company; and (d) that such release will not impair the security under this Indenture in contravention of the provisions hereof;
(4) an opinion of counsel to the effect that all conditions precedent, specified in this Indenture, to the granting of such release have been complied with;
(5) an amount in cash, to be held by the Trustee as part of the mortgaged and pledged property, equivalent to the amount if any, by which the then fair value of the property to be released, as specified in the engineer’s certificate or in the independent engineer’s certificate, as the case may be, provided for in subdivision (3) above, exceeds the aggregate (subject to the limitations hereinafter contained in clause (c) of this subdivision with respect to obligations secured by purchase money mortgages upon the property released) of the following items to the extent that the Company desires to include the same:
(a) the principal amount of any obligations secured by purchase money mortgage upon the property released delivered to the Trustee, to be held as part of the mortgaged and pledged property; and
(b) ten sixths (10/6ths) of the principal amount of each bond or fraction of a bond to the authentication and delivery
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of which the Company shall be entitled under any of the provisions of this Indenture (other than those contained in Section 8.01 hereof and except that against bonds authenticable under Section 7.01 hereof, credit may be taken under this subdivision in an amount equal only to one hundred per centum (100%) of the principal amount of such bonds) by virtue of compliance with all applicable provisions of this Indenture (except any earnings requirements or net earnings certificates) relating to such authentication and delivery but which have not been authenticated and delivered; provided, however, that any application for such release of property shall, to the extent, and to the extent only, that the property so to be released is funded property operate as a waiver by the Company of the right to the authentication and delivery of each such bond or fraction thereof on the basis of which right such property is released; and to such extent no such bond or fraction thereof may thereafter be authenticated and delivered hereunder and, to such extent, any property additions which were the basis of such right to the authentication and delivery of bonds so waived shall have the status of funded property; and
(c) the principal amount of any obligations secured by purchase money mortgage upon the property to be released and/or any amount in cash, that is evidenced to the Trustee by a certificate of the trustee or other holder of a prior lien or a lien prior hereto, as the case may be, stating that such trustee or other holder has received and holds the same in accordance with the provisions of such prior lien or lien prior hereto in consideration for the release of such property or any part thereof from such prior lien or lien prior hereto;
provided, however, that for the purposes of this subdivision (5) obligations secured by purchase money mortgages upon the property to be released shall be included in determining such aggregate only to the extent of a sum which shall not exceed sixty per centum (60%) of the fair value of the property released and only if the principal amount of the purchase money obligations so
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included plus the principal amount of all purchase money obligations then held by the Trustee or by the trustee or other holder of a prior lien or lien prior hereto under the provisions of this subdivision (5) and theretofore included in making the computation herein provided for shall not exceed five per centum (5%) of the principal amount of all bonds then outstanding under this Indenture;
(6) in case any obligations secured by purchase money mortgage upon the property to be released are included in the consideration for such release and are delivered to the Trustee or to the trustee or other holder of a prior lien or a lien prior hereto in connection with any release of such property, an opinion of counsel to the effect that in his or their opinion, such obligations are valid obligations, and that any purchase money mortgage securing the same is sufficient to afford a valid purchase money lien upon the property to be released, subject to no lien prior thereto except such liens, if any, as shall have existed thereon just prior to such release as liens prior to the lien of this Indenture.
In case the release of property is in whole or in part, based upon the right to the authentication and delivery of bonds (as permitted under clause (5) (b) of this Section) the Company, except as otherwise in this Section provided, shall comply with all applicable provisions of this Indenture relating to such authentication and delivery; provided, however, that in no such case shall the Company be required to deliver to the Trustee any resolution or document such as is described in subdivisions (1), (2) and (6) of Section 6.06 hereof or such parts of the opinion of counsel described in subdivision (7) of said Section 6.06 as relate solely to the authorization of the issuance of bonds of the Company by governmental authorities or by the Company, or to comply with the provisions of Section 6.05 hereof; and provided further, that if the property to be released is not funded property (i) the Company shall not be required to comply with the provisions of Section 6.04 hereof, (ii) that portion of the opinion of counsel required by clause (d) of subdivision (7) of said Section 6.06 may state that the property additions made the basis of the application for release are subject to prior liens which secure prior lien bonds which have not ceased to be
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outstanding under the provisions of Section 1.06 hereof, and (iii) the principal amount of such prior lien bonds, unless previously deducted, shall be deducted from the principal amount of bonds the waiver of the right to the authentication and delivery of which is being made the basis of such release; and provided further, that if any such application for release on the basis of property additions shall not operate as a waiver by the Company of the right to the authentication and delivery of bonds on the basis of such property additions, then none of the computations set forth in subdivision (II) of Section 1.04 hereof need be made; and provided further that the cost of any property additions received or to be received by the Company in whole or in part, as consideration in exchange for the property to be released shall for all purposes of this Indenture be deemed to be the amount stated in the engineer’s certificate or in the independent engineer’s certificate, as the case may be, provided for in subdivision (3) of this Section to be the fair value of the property to be released (a) plus the amount of any cash or the fair value of any other consideration to be stated in such engineer’s certificate or independent engineer’s certificate, as the case may be, paid and/or delivered or to be paid and/or delivered by the Company in connection with such exchange as additional consideration for such property additions or (b) less the amount of any cash or the fair value of any other consideration, which shall also be stated in such engineer’s certificate or independent engineer’s certificate, as the case may be, received or to be received by the Company in connection with such exchange in addition to such property additions.
Any bonds issued under this Indenture deposited with the Trustee pursuant to the provisions of this Section shall forthwith be canceled by the Trustee and at the request of the Company the Trustee shall cremate the same and deliver a certificate of such cremation to the Company, and any prior lien bonds deposited with the Trustee pursuant to the provisions of this Section shall be held by the Trustee subject to the provisions of Article XI hereof and any moneys and/or purchase money obligations and/or other property and/or the proceeds of any thereof and/or substitutes therefor received by the Trustee under this Section shall be held as part of the mortgaged and pledged property
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and such moneys and/or purchase money obligations shall be paid over, withdrawn, used or applied, in the manner, to the extent, and for the purposes and subject to the conditions provided in Section 13.05 hereof.
SECTION 13.04. Unless the Company is in default in the payment of the interest on any bonds then outstanding hereunder or one or more of the completed defaults specified in Section 14.01 hereof shall have occurred and be continuing, the Trustee shall whenever from time to time requested by the Company (such request to be evidenced by a resolution) and without requiring compliance with any of the provisions of Section 13.03 hereof, release from the lien hereof real estate unimproved for use in the conduct of the business of the Company, and the retention of which is, in the opinion of the Board of Directors of the Company, no longer desirable in the conduct of the business of the Company, provided the aggregate value of such real estate so released without such compliance in any period of five (5) consecutive calendar years shall not exceed the sum of Two hundred-fifty thousand Dollars ($250,000). Prior to the granting of any such release, there shall be delivered to the Trustee (i) an engineer’s certificate (or an independent engineer’s certificate if an independent engineer’s certificate would be required under subdivision (3) of Section 13.03, if the release was being applied for under Section 13.03) which shall state (a) the fair value in the opinion of the signers of the property to be released, (b) what portion, if any, of the property to be released is funded property, and (c) that the release thereof will not impair the security under this Indenture in contravention of the provisions hereof, and (ii) a Treasurer’s certificate and an opinion of counsel each to the effect that all conditions precedent, specified in this Indenture, to the granting of such release have been complied with. The Company covenants that it will deposit with the Trustee, to be dealt with in the manner provided in Section 13.05 hereof, the consideration, if any, received by it upon the sale or other disposition of any such real estate so released (to the extent that the same shall not have been paid or delivered to the trustee or other holder of a mortgage or other instrument constituting a prior lien or constituting a lien prior to the lien of this Indenture in accordance with the provisions thereof and a
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Treasurer’s certificate to that effect shall have been furnished to the Trustee).
SECTION 13.05. (I) Any money received in consideration of any release by the Trustee under this Article XIII, including payment on account of the principal of any obligations secured by purchase money mortgage so received, shall be paid to and held by the Trustee; and, unless the Company is in default in the payment of the interest on any bonds then outstanding hereunder or one or more of the completed defaults specified in Section 14.01 hereof shall have occurred and be continuing, such money, and any other money which by the provisions of this Indenture are to be applied as in this Section provided (subject to the provisions of paragraph B of Section 13.06 hereof),
(1) may be withdrawn from time to time by the Company in an amount equal to ten-sixths (10/6ths) of the principal amount of each bond or fraction of a bond to the authentication and delivery of which the Company shall be entitled under any of the provisions of this Indenture (other than those contained in Section 8.01 hereof and except that against bonds authenticable under Section 7.01 hereof, money may be withdrawn under this subdivision in an amount equal only to one hundred per centum (100%) of the principal amount of such bonds) by virtue of compliance with all applicable provisions of this Indenture (except any earnings requirements or net earnings certificates) relating to such authentication and delivery but which have not been authenticated and delivered; provided, however, that any request for such withdrawal of money shall, to the extent, and to the extent only, that the money to be so withdrawn is funded cash, operate as a waiver by the Company of the right to the authentication and delivery of each such bond or fraction thereof on the basis of which right such funded cash is withdrawn; and to such extent no such bond or fraction thereof may thereafter be authenticated and delivered hereunder and, to such extent, any property additions which were the basis of such right to the authentication and delivery of bonds so waived shall have the status of funded property; or
(2) may, upon the request of the Company, evidenced by a
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resolution delivered to the Trustee, be used by the Trustee for the purchase of bonds issued hereunder in accordance with the provisions of Section 12.05 hereof; or
(3) may, upon the request of the Company, evidenced by a resolution delivered to the Trustee, be applied by the Trustee to the payment at maturity or the redemption of any bonds issued hereunder as are by their terms redeemable before maturity, of such series as may be designated by the Company, such redemption to be in the manner and as provided in Article XII hereof.
Such moneys shall, from time to time, be paid out or used or applied by the Trustee, as aforesaid, upon the request of the Company evidenced by a resolution, and upon receipt by the Trustee of a Treasurer’s certificate stating that the Company is not in default in the payment of the interest on any bonds then outstanding hereunder and that none of the completed defaults specified in Section 14.01 hereof has occurred and is continuing. In case the withdrawal of cash is, in whole or in part, based upon the right to the authentication and delivery of bonds (as permitted under subdivision (1) of this Section) the Company, except as otherwise in this Section provided, shall comply with all applicable provisions of this Indenture relating to such authentication and delivery; provided, however, that in no such case shall the Company be required to deliver to the Trustee any resolution or document such as is described in subdivisions (1), (2) and (6) of Section 6.06 hereof or such parts of the opinion of counsel described in subdivision (7) of said Section 6.06 as relate solely to the authorization of the issuance of bonds of the Company by governmental authorities or by the Company, or to comply with the provisions of Section 6.05 hereof; and provided further, that if the cash to be withdrawn is not funded cash (i) the Company shall not be required to comply with the provisions of Section 6.04 hereof, (ii) that portion of the opinion of counsel required by clause (d) of subdivision (7) of said Section 6.06 may state that the property additions made the basis of the application for the withdrawal are subject to prior liens which secure prior lien bonds which have not ceased to be outstanding under the provisions of Section 1.06 hereof, and (iii) the principal amount of such prior lien bonds, unless previously deducted, shall be deducted from the
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principal amount of bonds the waiver of the right to the authentication and delivery of which is being made the basis of such withdrawal; and provided further, that if any such application for withdrawal of cash on the basis of property additions shall not operate as a waiver by the Company of the right to the authentication and delivery of bonds on the basis of such property additions, then none of the computations set forth in subdivision (II) of Section 1.04 hereof need be made. In any case where cash is withdrawn pursuant to subdivision (I) of this Section or is requested to be used or applied as specified in subdivisions (2) or (3) of said subdivision (I), the Company shall furnish to the Trustee a Treasurer’s certificate and an opinion of counsel each to the effect that all conditions precedent, specified in this Indenture, to such withdrawal or to such request have been complied with.
(II) Any such money which shall not have been withdrawn, used or applied pursuant to the foregoing provisions of this Section within three (3) years from the date of receipt thereof by the Trustee, shall be used or applied by the Trustee (unless the Company is in default in the payment of interest on any bonds then outstanding hereunder or one or more of the completed defaults specified in Section 14.01 hereof shall have occurred and be continuing), as promptly as the Trustee shall deem reasonable or desirable, to the purchase, payment or redemption of bonds in the manner provided in subdivisions (2) and (3) of subdivision (I) of this Section 13.05, except that (a) the Trustee, in its sole discretion, shall determine whether and at what time or times bonds shall be purchased, paid or redeemed, (b) the request by the Company referred to in said subdivisions (2) and (3) shall not be required, and (c) if more than one series of bonds issued hereunder shall at the time be outstanding, the Trustee, in its sole discretion, shall determine the amount of such cash which shall be so used or applied to the purchase, payment or redemption of the bonds of each such series. The Company hereby authorizes the Trustee on its behalf to give notice of intention to redeem any bonds which are to be redeemed pursuant to the foregoing provisions, in the manner provided by Section 12.02 hereof.
Any purchase money mortgage received or to be received by the Trustee under any of the provisions of this Indenture in consideration
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of the release of any property by the Trustee and/or the obligations secured by such purchase money mortgage, may be released upon payment by the Company to the Trustee of the principal of such purchase money mortgage or any unpaid portion thereof and/or of the obligations thereby secured. The Trustee shall be entitled to collect the principal of and interest on any such purchase money mortgage, and/or of the obligations thereby secured, as and when the same shall become payable and the Trustee may take any action which in its judgment may be desirable or necessary to avail of the security of such purchase money mortgage. Unless the Company is in default in the payment of the interest on any of the bonds then outstanding hereunder or one or more of the completed defaults specified in Section 14.01 hereof shall have occurred and be continuing, the interest received by the Trustee on any such purchase money mortgage or on the obligations thereby secured shall be paid over to the Company.
Any property acquired by the Company to take the place of any property released under any provisions of this Article XIII shall forthwith and without further conveyance become subject to the lien of and be covered by this Indenture as a part of the mortgaged and pledged property; but the Company shall, if requested by the Trustee, convey the same, or cause the same to be conveyed, to the Trustee as may be so requested by appropriate instruments of conveyance upon the trusts and for the purposes of this Indenture.
Any bonds issued under this Indenture deposited with the Trustee pursuant to the provisions of this Section shall forthwith be canceled by the Trustee and at the request of the Company the Trustee shall cremate the same and deliver a certificate of such cremation to the Company, and any prior lien bonds deposited with the Trustee pursuant to the provisions of this Section shall be held by the Trustee subject to the provisions of Article XI hereof.
SECTION 13.06. A. Should any of the mortgaged and pledged property be taken by exercise of the power of eminent domain or should any governmental body or agency, at any time, exercise any right which it may have to purchase or designate a purchaser of any part of the mortgaged and pledged property, the Trustee may release the property so
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taken or purchased, upon being furnished with an opinion of counsel to the effect that such property has been taken by exercise of the power of eminent domain, or purchased in the exercise of a right which a governmental body or agent had to purchase or designate a purchaser of the same. The proceeds of all property so taken or purchased shall be paid over to the Trustee (unless the same shall have been paid or delivered to the trustee or other holder of a mortgage or other lien constituting a prior lien or lien prior hereto in accordance with the provisions thereof and a Treasurer’s certificate to that effect shall have been furnished to the Trustee), and, if paid over to the Trustee hereunder, (a) shall be applied in the manner set forth in paragraph B of this Section if the provisions of said paragraph B shall be applicable, or (b) if the provisions of said paragraph B shall not be applicable, shall thereafter be withdrawn, used or applied in the manner, to the extent and for the purposes and subject to the conditions provided in Section 13.05 hereof.
B. Notwithstanding the provisions set forth in Sections 13.03 or 13.05 hereof or in paragraph A of this Section relating to the withdrawal, use or application of moneys or other proceeds paid over to the Trustee, which provisions shall be inapplicable in the events hereinafter stated, should all or substantially all of the mortgaged and pledged property be taken by exercise of the power of eminent domain, or should any governmental body or agency exercise any right which it may have to purchase or designate a purchaser of the same, or should such property be sold to any governmental body or agency, then, and in any of such events, the Company shall have the right to redeem and shall promptly take all steps as shall be necessary to redeem all bonds outstanding under this Indenture at the principal amounts thereof and accrued interest to the date of redemption together with the premiums specified in Section 2.12 hereof with respect to the bonds of the 1965 Series, and with such premiums, if any, as may be provided with respect to any other series of bonds secured hereby, for the redemption ’of bonds pursuant to the provisions of this paragraph B. The Company covenants that in any of such events it will deposit with the Trustee such an amount in cash, if any, as, when added to any moneys then held by the Trustee hereunder, shall be required to redeem all bonds outstanding under this Indenture, and the Trustee
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shall forthwith take such steps as may be necessary to effect such redemption and shall apply and use for such redemption the moneys so deposited with or held by it. If the Company fails to take any steps necessary to effect the prompt redemption of said bonds, the Trustee shall have the power in the name of the Company, or otherwise, to take such steps, but the Trustee shall be under no obligation to take any such steps unless the amount of cash on deposit with the Trustee shall be sufficient to effect such redemption. If in any of the events described in this paragraph B there shall be deposited with the Trustee any moneys or other proceeds which are not required for the redemption of the bonds outstanding hereunder, such cash shall (subject to the Trustee’s lien thereon for its charges, expenses and disbursements) be forthwith paid over by the Trustee to the Company.
SECTION 13.07. In case the mortgaged and pledged property shall be in the possession of a receiver or trustee, lawfully appointed, the powers hereinbefore conferred upon the Company with respect to the sale or other disposition of the mortgaged and pledged property or the withdrawal of cash may be exercised, with the approval of the Trustee, by such receiver or trustee, notwithstanding the fact that the Company may be in default and any request, certificate or appointment made or signed by such receiver or trustee for such purposes shall be as effective as if made by the Company or its Board of Directors or any of its officers or appointees in the manner herein provided; and if the Trustee shall be in possession of the mortgaged and pledged property under any provision of this Indenture, then such powers may be exercised by the Trustee in its discretion notwithstanding the fact that the Company may be in default. Notwithstanding the existence of a default in the payment of interest on any bonds then outstanding hereunder or the existence of a completed default specified in Section 14.01 hereof, the Trustee may release from the lien hereof any part of the mortgaged and pledged property or permit the withdrawal of cash upon compliance with the conditions specified in this Article in respect thereof, if the Trustee in its discretion shall deem such release for the best interest of the bondholders.
SECTION 13.08. No purchaser in good faith of property purporting to have been released hereunder shall be bound to ascertain the authority
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of the Trustee to execute the release, or to inquire as to any facts required by the provisions hereof for the exercise of this authority; nor shall any purchaser or grantee of any property or rights permitted by this Article to be sold, granted, exchanged or otherwise disposed of, be under obligation to ascertain or inquire into the authority of the Company to make any such sale, grant, exchange or other disposition.
ARTICLE XIV.
REMEDIES OF TRUSTEE AND BONDHOLDERS UPON DEFAULT.
SECTION 14.01. Upon the occurrence of any one or more of the following events (herein called “completed defaults”), viz.:
(a) Default in the payment of the principal of any bond hereby secured when the same shall have become due and payable, whether at maturity as therein expressed or by declaration or by virtue of the contingency provided in Section 12.03, or otherwise; or
(b) Default continued for sixty (60) days in the payment of any interest upon any bond hereby secured; or
(c) Default in the payment of any interest upon or principal (whether at maturity as therein expressed or by declaration, or otherwise) of any outstanding prior lien bonds continued beyond the period of grace, if any, specified in the prior lien securing the same if the Company shall not have complied with the provisions of Section 9.14 hereof to the extent that such provisions may be applicable thereto; or
(d) By decree of a court of competent jurisdiction the Company shall be adjudicated a bankrupt, or an order shall be made approving a petition filed by any creditors or stockholders of the Company seeking reorganization or readjustment of the Company under the federal bankruptcy laws or other law or statute of the United States of America or any State thereof, or, by order of a court of competent jurisdiction, a trustee or a receiver or receivers shall be appointed of all or substantially all of the property of the
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Company or of all or any part of the property of the Company subject to the lien of this Indenture, and any such decree or order shall have continued unstayed on appeal or otherwise and in effect for a period of ninety (90) days; or
(e) The Company shall admit in writing its inability to pay its debts generally as they mature or shall file a petition in voluntary bankruptcy or shall make any general assignment for the benefit of creditors or shall consent to the appointment of a receiver or trustee of all or any part of its property, or shall file in any court of competent jurisdiction, a petition or answer seeking reorganization or readjustment under the federal bankruptcy laws or other law or statute of the United States of America or any State thereof, or shall file a petition to take advantage of any debtors’ act; or
(f) Default continued for ninety (90) days after notice to the Company from the Trustee in the performance of any other covenant, agreement or condition contained herein or in any indenture supplemental hereto or in any bond secured hereby;
the Trustee may, and upon written request of the holders of a majority in principal amount of the bonds then outstanding hereunder, shall, by notice in writing delivered to the Company, declare the principal of all bonds hereby secured then outstanding and the interest accrued thereon immediately due and payable, and such principal and interest shall thereupon become and be immediately due and payable; subject, however, to the right of the holders of at least a majority in principal amount of all outstanding bonds, by written notice to the Company and to the Trustee to annul such declaration and destroy its effect at any time before any sale hereunder, if before any such sale all agreements with respect to which default shall have been made shall be fully performed or made good, and all arrears of interest upon all bonds outstanding hereunder and the reasonable expenses and charges of the Trustee, its agents and attorneys, and all other indebtedness secured hereby, except the principal of any bonds not then due by their terms and interest accrued on such bonds since the last interest payment date, shall be paid, or the amount thereof shall be paid to the Trustee for the benefit of those entitled thereto.
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SECTION 14.02. The Trustee shall, within ninety (90) days after the occurrence thereof, give to the bondholders, in the manner and to the extent provided in subsection (c) of Section 10.04 hereof, notice of all defaults known to the Trustee, unless such defaults shall have been cured before the giving of such notice (the term “defaults” for the purposes of this Section being hereby defined to be the events specified in subdivisions (a), (b), (c), (d), (e) and (f) of Section 14.01 hereof not including any periods of grace provided for in said subdivisions); and provided that, except in the case of default in the payment of the principal of or interest on any of the bonds, or in the payment of any sinking or purchase fund instalment, the Trustee shall be protected in withholding such notice if and so long as the board of directors, the executive committee, or a trust committee of directors and/or responsible officers of the Trustee in good faith determine that the withholding of such notice is in the interests of the bondholders.
SECTION 14.03. Upon the occurrence of one or more completed defaults, the Company, upon demand of the Trustee, shall forthwith surrender to the Trustee the actual possession of, and it shall be lawful for the Trustee, by such officer or agent as it may appoint, to take possession of all the mortgaged and pledged property (with the books, papers and accounts of the Company), and to hold, operate and manage the same, and from time to time to make all needful repairs and such extensions, additions and improvements as to the Trustee shall seem wise; and to receive the tolls, rents, revenues, issues, earnings, income, products and profits thereof, and out of the same to pay all proper costs and expenses of so taking, holding and managing the same, including reasonable compensation to the Trustee, its agents and counsel, and any charges of the Trustee hereunder, and any taxes and assessments and other charges prior to the lien of this Indenture which the Trustee may deem it wise to pay, and all expenses of such repairs, extensions, additions and improvements, and to apply the remainder of the moneys so received by the Trustee, subject to the provisions of Section 14.12 hereof with respect to extended, transferred or pledged coupons or claims for interest, first to the payment of the instalments of interest which are due and unpaid, in the order of their maturity, and next, if the principal of any of said bonds is due, to the payment of the
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principal and accrued interest thereon at the same rate as is expressed in the bonds pro rata without any preference or priority whatever, except as aforesaid. Whenever all that is due upon such bonds and instalments of interest and under any of the terms of this Indenture shall have been paid and all defaults made good, the Trustee shall surrender possession to the Company, its successors or assigns; the same right of entry, however, to exist upon any subsequent default.
SECTION 14.04. Upon the occurrence of one or more completed defaults it shall be lawful for the Trustee, by such officer or agent as it may appoint, with or without entry, to sell all the mortgaged and pledged property as an entirety, or in such parcels as the holders of a majority in principal amount of the bonds outstanding hereunder shall in writing request, or in the absence of such request, as the Trustee may determine, at public auction, at some convenient place in St. Louis, Missouri, or such other place or places as may be required by law, having first given notice of such sale by publication in at least one daily newspaper of general circulation, published in St. Louis, Missouri (if there be such a daily newspaper), at least once in each of four (4) successive calendar weeks (on any secular day of each such calendar week) next preceding such sale, and by like publication in at least one daily newspaper published and of general circulation in the Borough of Manhattan, The City of New York, and any other notice which may be required by law, and from time to time to adjourn such sale in its discretion by announcement at the time and place fixed for such sale without further notice, and upon such sale to make and deliver to the purchaser or purchasers a good and sufficient deed or deeds for the same, which sale shall be a perpetual bar, both at law and in equity, against the Company and all persons, firms and corporations lawfully claiming or who may claim by, through or under it.
SECTION 14.05. In case of the breach of any of the covenants or conditions of this Indenture, the Trustee shall have the right and power to take appropriate judicial proceedings for the enforcement of its rights and the rights of the bondholders hereunder. In case of a completed default hereunder, the Trustee may either after entry, or without entry, proceed by suit or suits at law or in equity to enforce
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payment of the bonds then outstanding hereunder and to foreclose this Indenture and to sell the mortgaged and pledged property under the judgment or decree of a court of competent jurisdiction; and it shall be obligatory upon the Trustee to take action either by such proceedings or by the exercise of its powers with respect to entry or sale upon being requested so to do by the holders of a majority in principal amount of the bonds then outstanding hereunder and upon being indemnified, except to the extent that such indemnity is precluded under the provisions of Sections 18.02 and 18.03.
No remedy by the terms of this Indenture conferred upon or reserved to the Trustee is intended to be exclusive of any other remedy, but each and every such remedy shall be cumulative and shall be in addition to any other remedy given hereunder or now or hereafter existing at law or in equity or by statute.
No delay or omission to exercise any right or power accruing upon any default shall impair any such right or power or shall be construed to be a waiver of any such default or acquiescence therein; and every such right and power may be exercised from time to time and as often as may be deemed expedient.
No waiver of any default hereunder shall extend to or shall affect any subsequent default or shall impair any rights or remedies consequent thereon.
SECTION 14.06. Anything in this Indenture to the contrary notwithstanding, the holders of a majority in principal amount of the bonds then outstanding hereunder shall have the right, at any time, by an instrument in writing executed and delivered to the Trustee, to direct the time, method and place of conducting all proceedings to be taken for any sale of the mortgaged and pledged property, or for the foreclosure of this Indenture, or for the appointment of a receiver or any other proceedings hereunder for any remedy available to the Trustee, or for exercising any trust or power conferred upon the Trustee under this Indenture; provided that such direction shall not be otherwise than in accordance with the provisions of law and of this Indenture.
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SECTION 14.07. In case of a completed default hereunder, and upon the filing of a bill in equity, or other commencement of judicial proceedings to enforce the rights of the Trustee and of the bondholders under this Indenture, the Trustee shall be entitled, as a matter of right, to the appointment of a receiver or receivers of the mortgaged and pledged property, and of the tolls, rents, revenues, issues, earnings, income, products and profits thereof, pending and/or during such proceedings, with such powers as the court making such appointment shall confer.
SECTION 14.08. Upon any sale being made either under the power of sale hereby given or under judgment or decree in any judicial proceedings for the foreclosure or otherwise for the enforcement of this Indenture, the principal of all bonds then secured hereby, if not previously due, shall at once become and be immediately due and payable.
SECTION 14.09. Upon any sale made either under the power of sale hereby given or under judgment or decree in any judicial proceedings for foreclosure or otherwise for the enforcement of this Indenture, any bondholder or bondholders may bid for and purchase the mortgaged and pledged property or any part thereof and upon compliance with the terms of sale may hold, retain and possess and dispose of such property in his, their or its own absolute right without further accountability, and any purchasers at any such sale may, in paying the purchase money, turn in any of the bonds and coupons or claims for interest outstanding hereunder in lieu of cash to the amount which shall, upon distribution of the net proceeds of such sale, be payable thereon, subject, however, to the provisions in respect to extended, pledged and transferred coupons and claims for interest contained in Section 14.12 hereof. Said bonds and coupons, in case the amounts so payable thereon shall be less than the amount due thereon, shall be returned to the holders thereof after being appropriately stamped to show partial payment.
SECTION 14.10. Upon any sale made either under the power of sale hereby given or under judgment or decree in any judicial proceedings for the foreclosure or otherwise for the enforcement of this Indenture,
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the receipt of the Trustee or of the officer making such sale shall be a sufficient discharge to the purchaser or purchasers at any sale for his or their purchase money and such purchaser or purchasers, his or their assigns or personal representatives, shall not, after paying such purchase money and receiving such receipt of the Trustee or of such officer therefor, be obliged to see to the application of such purchase money, or be in any wise answerable for any loss, misapplication or nonapplication thereof.
SECTION 14.11. Any sale made either under the power of sale hereby given or under judgment or decree in any judicial proceedings for foreclosure or otherwise for the enforcement of this Indenture, shall operate to divest all right, title, interest, claim and demand whatsoever, either at law or in equity, of the Company, of, in and to the property so sold, and shall be a perpetual bar both at. law and in equity against the Company, its successors and assigns and against any and all persons, firms or corporations claiming or who may claim the property sold or any part thereof, from, through or under the Company, its successors or assigns.
SECTION 14.12. The proceeds of any sale made either under the power of sale hereby given, or under judgment or decree in any judicial proceedings for the foreclosure or otherwise for the enforcement of this Indenture, together with any other amounts of cash which may then be held by the Trustee as part of the mortgaged and pledged property, shall be applied, as follows:
First—To the payment of all taxes, assessments, governmental charges or liens prior to the lien of this Indenture, except those subject to which such sale shall have been made, and of all the costs and expenses of such foreclosure and sale, including reason-able compensation to the Trustee, its agents and attorneys, and of all other sums payable to the Trustee hereunder as compensation for all other services and/or by reason of any expenses or liabilities incurred without negligence or bad faith on the part of the Trustee or advances made in connection with the management or administration of the trusts hereby created;
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Second—To the payment in full of the amounts then due and unpaid for principal and interest upon the bonds then secured hereby; and in case such proceeds shall be insufficient to pay in full the amounts so due and unpaid, then to the payment thereof ratably, with interest on the overdue principal at the rates expressed in the bonds, without preference or priority of principal over interest, or of interest over principal, or of any instalment of interest over any other instalment of interest; provided, however, that if the time for the payment of any coupon or claim for interest upon any of the bonds secured hereby shall have been extended (except pursuant to action taken under Article XX hereof) by or with the consent of the Company, or if any coupon or claim for interest at or after maturity shall have been transferred or pledged separate from the bond to which they relate, such coupons or claims for interest shall not be entitled in case of default hereunder to the benefit or security of this Indenture except after the prior payment in full of the principal of all bonds issued hereunder and then secured hereby and of all coupons and claims for interest on such bonds the payment of which has not been so extended, or not so transferred or pledged; but the foregoing proviso shall not be applicable to any coupon or claim for interest, the time for the payment of which shall have been extended, if such extension be pursuant to a plan proposed by the Company to all holders of any one or more series of bonds then outstanding and accepted by or binding upon the holder of such coupon or claim for interest;
Third—Any surplus thereof remaining to the Company, its successors or assigns or to whosoever may be lawfully entitled to receive the same.
SECTION 14.13. In case of a default on its part, as aforesaid, neither the Company nor any one claiming through or under it shall or will set up, claim, or seek to take advantage of any appraisement, valuation stay, extension or redemption laws now or hereafter in force in any locality where any of the mortgaged and pledged property may be situated, in order to prevent or hinder the enforcement or foreclosure of
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this Indenture, or the absolute sale of the mortgaged and pledged property, or the final and absolute putting into possession thereof, immediately after such sale, of the purchaser or purchasers thereat, but the Company, for itself and all who may claim through or under it, hereby waives the benefit of all such laws and hereby waives all right of appraisement and redemption to which it may be entitled under the laws of the State of Missouri or of any other state where any of the mortgaged and pledged property may be situated. And the Company, for itself and all who may claim through or under it, waives any and all right to have the estates comprised in the security intended to be created hereby marshaled upon any foreclosure of the lien hereof, and agrees that any court having jurisdiction to foreclose such lien may sell the mortgaged and pledged property as an entirety.
SECTION 14.14. The Company covenants that if default shall be made in the payment of the principal of any bonds hereby secured when the same shall become payable, whether by the maturity of said bonds or otherwise, or if default shall be made in the payment of any interest on any bonds hereby secured for a period of sixty (60) days after such interest shall have become due and payable, then upon demand of the Trustee, the Company will pay to the Trustee, for the benefit of the holders of the bonds and coupons then secured hereby the whole amount due and payable on all such bonds and coupons for principal and interest, with interest upon the overdue principal at the same rate borne by the bonds which are overdue; and in case the Company shall fail to pay the same forthwith upon such demand, the Trustee in its own name and as trustee of an express trust shall be entitled to sue for and to recover judgment for the whole amount so due and unpaid.
The Trustee, to the extent permitted by law, shall be entitled to sue and recover judgment either before or after or during the pendency of any proceedings for the enforcement of the lien of this Indenture upon the mortgaged and pledged property, and in case of a sale of any of the mortgaged and pledged property and of the application of the proceeds of sale to the payment of the debt hereby secured, the Trustee in its own name and as trustee of an express trust shall be entitled to enforce payment of and to receive all amounts then remaining due and unpaid
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upon any and all of the bonds and coupons then outstanding hereunder, for the benefit of the holders thereof, and the Trustee shall be entitled to recover judgment for any portion of the debt remaining unpaid, with interest. No recovery of any such judgment by the Trustee and no levy of any execution upon any such judgment upon any of the mortgaged and pledged property or upon any other property shall in any manner or to any extent affect the lien of this Indenture upon the mortgaged and pledged property or any part thereof, or any rights, powers or remedies of the Trustee hereunder, or any lien, rights, powers or remedies of the holders of the said bonds, but such lien, rights, powers and remedies of the Trustee and of the bondholders shall continue unimpaired as before.
Any moneys thus collected or received by the Trustee under this Section shall be applied by it first, to the payment of its expenses, disbursements and compensation and the expenses, disbursements and compensation of its agents and attorneys, and, second, toward payment of the amounts then due and unpaid upon such bonds and coupons in respect of which such moneys shall have been collected, ratably and without preference or priority of any kind (subject to the provisions of Section 14.12 hereof with respect to extended, transferred or pledged coupons and claims for interest) according to the amounts due and payable upon such bonds and coupons, respectively, at the date fixed by the Trustee for the distribution of such moneys, upon presentation of the several bonds and coupons and upon stamping such payment thereon, if partially paid, and upon surrender thereof, if fully paid.
In case of any reorganization, receivership, insolvency or bankruptcy proceedings affecting the Company or its property or any other obligor on the bonds or its property, the Trustee shall have power to intervene and take any action therein that may be permitted by the Court and shall be entitled to file and prove a claim for the entire amount due and payable by the Company or such other obligor under this Indenture at the date of the institution of such proceedings and for any additional amount which may become due and payable by the Company or such other obligor hereunder after such date.
The Trustee is hereby irrevocably appointed (and the successive respective holders of bonds and coupons issued hereunder, by taking
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and holding the same, shall be conclusively deemed to have so appointed the Trustee) the true and lawful attorney-in-fact of the respective holders of the bonds and coupons issued hereunder, with authority to make or file, irrespective of whether the bonds or any of them are in default as to payment of principal or interest, in the respective names of the holders of the bonds or coupons or in behalf of all holders of the bonds or coupons as a class, any proof of debt, amendment to proof of debt, petition or other document, and to do and perform any and all acts and things for and in behalf of the respective holders of the bonds or coupons as a class, as may be necessary or advisable, in the opinion of the Trustee, in order to have the respective claims of the Trustee and of the holders of the bonds or coupons against the Company or any other obligor on the bonds allowed in any equity receivership, insolvency, liquidation, bankruptcy, reorganization or other similar proceedings relative to the Company, or any other obligor on the bonds, its creditors, or its property and to receive payment of or on account of such claims; and any receiver, assignee or trustee in bankruptcy is hereby authorized by each of the bondholders to make such payments to the Trustee, and in the event that the Trustee shall consent to the making of such payments directly to the bondholders, to pay to the Trustee any amount due it for compensation and expenses, including counsel fees, incurred by it up to the date of such distribution. Nothing herein contained shall be construed to authorize the Trustee to accept any composition or plan of reorganization on behalf of bondholders or to surrender any rights of bondholders.
SECTION 14.15. All rights of action (including the right to file proof of claim) under this Indenture or under any of the bonds or coupons, may be enforced by the Trustee without the possession of any of the bonds or coupons or the production thereof on any trial or other proceeding relative thereto and any such suit or proceeding instituted by the Trustee shall be brought in its name as Trustee and any recovery of judgment shall be for the equal benefit of the holders of the outstanding bonds and coupons, subject to the provisions of Section 14.12 hereof with respect to extended, transferred or pledged coupons and claims for interest.
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SECTION 14.16. No holders of any bond or coupon shall have any right to institute any suit, action or proceeding in equity or at law for the foreclosure of this Indenture or for the execution of any trust hereof or for the appointment of a receiver or any other remedy hereunder, unless such holder shall have previously given to the Trustee written notice of a completed default, nor unless also the holders of twenty-five per centum (25%) in principal amount of the bonds then outstanding hereunder shall have made written request to the Trustee and shall have offered it reasonable opportunity either to proceed to exercise the powers hereinbefore granted or to institute such action, suit or proceeding in its own name, nor unless also they shall have offered to the Trustee adequate security and indemnity against the costs, expenses and liabilities to be incurred therein or thereby, and the Trustee for sixty (60) days after its receipt of such notice, request and offer of indemnity, shall have neglected or refused to institute any such action, suit or proceeding; it being understood and intended that no one or more holders of the bonds or coupons shall have any right in any manner whatsoever to affect, disturb or prejudice the lien of this Indenture by his or their action or to enforce any right hereunder except in the manner herein provided, and that all proceedings at law or in equity shall be instituted, had and maintained in the manner herein provided and for the equal benefit of all holders of outstanding bonds and coupons.
Notwithstanding the provisions of Section 14.12 or any other provision of this Indenture or any indenture supplemental hereto, nothing in this Indenture or in any such supplemental indenture contained shall affect or impair the right of any bondholder, which is absolute and unconditional, to enforce the payment of the principal of and interest on his bonds at and after the maturity thereof as therein expressed or the obligation of the Company, which is also absolute and unconditional, to pay the principal of and interest on each of the bonds issued hereunder to the respective holders thereof at the time and place in said bonds and the appurtenant coupons expressed.
SECTION 14.17. Notwithstanding any other provision of this Indenture, all the parties hereto agree, and each holder or owner of any
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bond by his acceptance thereof after the date of the execution hereof shall be deemed to have agreed, that any Court may in its discretion require, in any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any action taken or omitted by it as Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such suit, and that such Court may in its discretion assess reasonable costs, including reasonable attorneys’ fees, against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant; but the provisions of this Section shall not apply to any suit instituted by the Trustee, to any suit instituted by any bondholder or group of bondholders, holding in the aggregate more than ten per centum (10%) in principal amount of the bonds outstanding, or to any suit instituted by any bondholder for the enforcement of the payment of the principal of or interest on any bond, on or after the respective due dates expressed in such bond.
SECTION 14.18. The Company may waive any period of grace provided for in this Article.
In case the Trustee shall have proceeded to enforce any right under this Indenture by foreclosure, entry or otherwise, and such proceedings shall have been discontinued or abandoned for any reason, or shall have been determined adversely to the Trustee, then and in every such case the Company and the Trustee shall be restored to their former positions and rights hereunder with respect to the mortgaged and pledged property, arid all rights, remedies and powers of the Trustee shall continue as if no such proceedings had been taken.
ARTICLE XV.
EVIDENCE OF RIGHTS OF BONDHOLDERS AND OWNERSHIP OF BONDS.
SECTION 15.01. Any request, declaration or other instrument, which this Indenture may require or permit to be signed and executed by the bondholders, may be in any number of concurrent instruments of similar tenor, and shall be signed or executed by such bondholders in person or by attorney appointed in writing. Proof of the execution of any such request or other instrument, or of a writing appointing any such
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attorney, or of the holding by any person of the bonds or coupons appertaining thereto, may be made in the following manner:
(a) The fact and date of the execution by any person of such request or other instrument or writing may be proved by the certificate of any notary public, or other officer authorized to take acknowledgments of deeds to be recorded in the state in which he purports to act, that the person signing such request or other instrument acknowledged to him the execution thereof, or by an affidavit of a witness of such execution;
(b) The amount of bonds transferable by delivery held by any person executing such request or other instrument as a bondholder, and the series and serial numbers thereof, held by such person, and the date of his holding the same, may be proved by a certificate executed by any trust company, bank, banker or other depositary wherever situated, if such certificate shall be deemed by the Trustee to be satisfactory, showing that at the date therein mentioned such person had on deposit with such depositary, the bonds described in such certificate. The Trustee may nevertheless in its discretion require further proof in cases where it deems further proof desirable. The ownership of registered bonds shall be proved by the registry books.
Any request, consent or vote of the owner of any bond shall bind all future owners of the same in respect of anything done or suffered by the Company or the Trustee in pursuance thereof.
SECTION 15.02. The Company and the Trustee may deem and treat the bearer of any temporary or coupon bond outstanding hereunder, which shall not at the time be registered as to principal as hereinbefore authorized, and the bearer of any coupon for interest on any such bond, whether such bond shall be registered or not, as the absolute owner of such bond or coupon, as the case may be, for the purpose of receiving payment thereof or on account thereof and for all other purposes, and neither the Company nor the Trustee shall be affected by any notice to the contrary.
The Company and the Trustee may deem and treat the person in whose name any fully registered bond outstanding hereunder shall be
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registered upon the books of the Company as herein authorized, as the absolute owner of such bond for the purpose of receiving payment of or on account of the principal of and interest on such bond and for all other purposes, and they may deem and treat the person in whose name any coupon bond shall be so registered as to principal as the absolute owner thereof for the purpose of receiving payment of or on account of the principal thereof and for all other purposes, except to receive payment of interest represented by outstanding coupons; and all such payments so made to any such registered holder or upon his order, shall be valid and effectual to satisfy and discharge the liability upon such bond to the extent of the sum or sums so paid, and neither the Company nor the Trustee shall be affected by any notice to the contrary.
Neither the Company nor the Trustee shall be bound to recognize any person as the holder of a bond outstanding under this Indenture unless and until his bond is submitted for inspection, if required, except as may otherwise be provided by regulations made under Section 20.03 hereof, and his title thereto satisfactorily established, if disputed.
ARTICLE XVI.
IMMUNITY OF INCORPORATORS, SUBSCRIBERS TO THE CAPITAL STOCK, STOCKHOLDERS, OFFICERS AND DIRECTORS.
SECTION 16.01. No recourse under or upon any obligation, covenant or agreement contained in this Indenture or in any indenture supplemental hereto, or in any bond or coupon hereby secured, or because of the creation of any indebtedness hereby secured, shall be had 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 by any legal or equitable proceeding or otherwise; it being expressly agreed and understood that this Indenture, any indenture supplemental hereto and the obligations hereby and thereby secured, are solely corporate obligations, and that no personal liability whatever shall attach to, or be incurred by, such incorporators, subscribers to the capital stock, stockholders, officers or directors of the Company or of any
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predecessor or successor corporation, or any of them, as such, because of the incurring of the indebtedness hereby authorized, or under or by reason of any of the obligations, covenants or agreements contained in this Indenture or in any indenture supplemental hereto or in any of the bonds or coupons hereby secured, or implied therefrom, and that any and all such personal liability of any name and nature, and any and all rights and claims against every such incorporator, subscriber to the capital stock, stockholder, officer or director, as such, whether arising at common law or in equity, or created by rule of law, statute, constitution or otherwise, are expressly released and waived as a condition of, and as part of the consideration for, the execution of this Indenture and the issue of the bonds and interest obligations secured hereby; provided, however, that nothing contained in this Indenture or in the bonds is intended or shall be construed to constitute a waiver of compliance with any provision of the Securities Act of 1933, as amended, or of the rules and regulations thereunder.
ARTICLE XVII.
EFFECT OF MERGER, CONSOLIDATION, ETC.
SECTION 17.01. Nothing in this Indenture shall prevent any lawful consolidation of the Company with, or lawful merger of the Company into, any other corporation or any conveyance, transfer or lease, subject to the lien of this Indenture, of all or substantially all the mortgaged and pledged property as an entirety to any corporation lawfully entitled to acquire or lease and operate the same; provided, however, and the Company covenants and agrees, that such consolidation, merger, conveyance, transfer or lease shall be upon such terms as fully to preserve and in no respect to impair the lien or security of this Indenture, or any of the rights or powers of the Trustee or the bondholders hereunder; and provided, further, that any such lease shall be made expressly subject to immediate termination by the Company or by the Trustee at any time during the continuance of a completed default hereunder, and also by the purchaser of the property so leased at any
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sale thereof hereunder, whether such sale be made under the power of sale hereby conferred or under judicial proceedings; and provided further that, upon any such consolidation, merger, conveyance or transfer, or upon any such lease the term of which extends beyond the date of maturity of any of the bonds secured hereby, the due and punctual payment of the principal and interest of all said bonds according to their tenor and the due and punctual performance and observance of all the covenants and conditions of this Indenture to be kept or performed by the Company shall be expressly assumed by an indenture with the Trustee executed and caused to be recorded by the corporation formed by such consolidation or into which such merger shall have been made, or acquiring all or substantially all the mortgaged and pledged property as an entirety, as aforesaid, or by the lessee under any such lease the term of which extends beyond the date of maturity of any of the bonds secured hereby.
SECTION 17.02. In case the Company, as permitted by Section 17.01 hereof, shall be consolidated with or merged into any other corporation, or shall convey or transfer, subject to the lien of this Indenture, all or substantially all the mortgaged and pledged property as an entirety, the successor corporation formed by such consolidation, or into which the Company shall have been merged, or which shall have received a conveyance or transfer as aforesaid—upon executing and causing to be recorded an indenture with the Trustee, satisfactory to the Trustee whereby such successor corporation shall assume and agree to pay, duly and punctually, the principal and interest of the bonds issued hereunder in accordance with the provisions of said bonds and coupons and this Indenture, and shall agree to perform and fulfill all the covenants and conditions of this Indenture to be kept or performed by the Company—shall succeed to and be substituted for the Company, with the same effect as if it had been named herein, and shall have and may exercise under this Indenture the same powers and rights as the Company, and (without in anywise limiting or impairing by the enumeration of the same the scope and intent of the foregoing general powers and rights) such successor corporation thereupon may cause to be executed, authenticated and delivered, either in its own name or in the name of The Laclede Gas Light Company, as its name shall then exist, in respect of
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property of the character defined in Section 1.04 hereof as property additions (including, without limitation, property acquired from St. Louis County Gas Company, or any successor thereto) such bonds as could or might have been executed, issued and delivered by the Company had it acquired such property, of such character by purchase on the date of such consolidation, merger, conveyance or transfer and had such consolidation, merger, conveyance or transfer not occurred, and upon the order of such successor corporation in lieu of the Company, and subject to all the terms, conditions and restrictions in this Indenture prescribed, concerning the authentication and delivery of bonds, the Trustee shall authenticate and deliver any bonds which shall have been previously signed and delivered by the officers of the Company to the Trustee for authentication, and such bonds as the successor corporation shall thereafter, in accordance with the provisions of this Indenture, cause to be executed and delivered to the Trustee for such purpose, and such successor corporation shall also have and may exercise in respect of the property of such character, and subject to all the terms, conditions and restrictions in this Indenture prescribed applicable thereto, whether as to withdrawal of cash, release of property or otherwise, the same powers and rights which the Company might or could exercise had it acquired the property of such character by purchase on the date of such consolidation, merger, conveyance or transfer and had such consolidation, merger, conveyance or transfer not occurred. All the bonds so issued shall in all respects have the same legal right and security as the bonds theretofore issued in accordance with the terms of this Indenture as though all of said bonds had been authenticated and delivered at the date of the execution hereof. As a condition precedent to the execution by such successor corporation and the authentication and delivery by the Trustee of any such additional bonds or the withdrawal of cash or the release of property under any of the provisions of this Indenture or a credit under the provisions of Sections 2.13 or 9.07 hereof, on the basis of property of the character defined in Section 1.04 hereof as property additions acquired, made or constructed by the successor corporation, or by any corporation with which the Company or any successor corporation may be so consolidated or into which the Company or any successor corporation may be so
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merged or to which the Company or any successor corporation may make any such conveyance, the indenture with the Trustee to be executed and caused to be recorded by the successor corporation as in this Article XVII provided or a subsequent indenture shall contain a conveyance or transfer and mortgage in terms sufficient to subject such property to the lien hereof; and provided further that the lien created thereby and the lien thereof shall have similar force, effect and standing as the lien of this Indenture would have if the Company should not be consolidated with or merged into such other corporation or should not convey or transfer, subject to this Indenture, all or substantially all the mortgaged and pledged property as an entirety, as aforesaid, to such successor corporation, and should itself on the date of such consolidation, merger, conveyance or transfer, acquire or construct such property, and request the authentication and delivery of bonds or the withdrawal of cash or the release of property under the provisions of this Indenture in respect thereof or a credit under the provisions of Sections 2.13 or 9.07 hereof.
To the extent permitted by Sections 18.02 and 18.03, the Trustee may receive an opinion of counsel as conclusive evidence that any such assumption and any such lien and any such indenture comply with the foregoing conditions and provisions of this Section.
SECTION 17.03. In case the Company, as permitted by Section 17.01 of this Indenture, shall be consolidated with or merged into any other corporation, or shall convey or transfer, subject to this Indenture, all or substantially all the mortgaged and pledged property as an entirety as aforesaid, neither this Indenture nor the indenture with the Trustee to be executed and caused to be recorded by the successor corporation as in this Article XVII hereof provided, shall, unless such indenture shall otherwise provide, become or be a lien upon any of the property or franchises of the successor corporation except (a) those acquired by it from the Company and appurtenant thereto and property which the successor corporation shall thereafter acquire or construct which shall form an integral part of, and be essential to the use or operation of, any property then or thereafter subject to the lien hereof, (b) the property made and used by the successor corporation as the basis under any of the provisions of this Indenture for the authentication and
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delivery of additional bonds or the withdrawal of cash or the release of property or a credit under the provisions of Sections 2.13 or 9.07 hereof and (c) such franchises, repairs and additional property as may be acquired, made or constructed by the successor corporation (1) to maintain, renew and preserve the franchises covered by this Indenture or to maintain the mortgaged and pledged property as an operating system or systems in good repair, working order and condition, or (2) in pursuance of some covenant or agreement hereof to be kept or performed by the Company. Unless and until the successor corporation shall subject all the properties of the successor corporation to the lien of this Indenture, it shall in case of any merger, consolidation or transfer keep the accounts of the successor corporation so that the earnings of the mortgaged and pledged property may be at all times distinguished, and all covenants herein contained affecting the mortgaged and pledged property be fully performed.
ARTICLE XVIII.
CONCERNING THE TRUSTEE.
SECTION 18.01. The Trustee shall at all times be a bank or trust company having its principal office and place of business in the Borough of Manhattan, The City of New York, or in the City of St. Louis, Missouri, if there be such a bank or trust company willing and able to accept the trust upon reasonable or customary terms, and which shall at all times be a bank or trust company organized as a corporation and doing business under the laws of the United States or of the State of New York or of the State of Missouri, with a capital and surplus of at least $3,000,000 and authorized under such laws to exercise corporate trust powers and subject to supervision or examination by federal or state authority. If the Trustee publishes reports of condition at least annually, pursuant to law or to the requirements of any supervising or examining authority referred to in this Section, then for the purposes of this Section the combined capital and surplus of the Trustee shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published.
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The Company covenants that whenever necessary to avoid or fill a vacancy in the office of Trustee, it will, in the manner provided in Section 18.18 hereof, appoint a Trustee so that there shall at all times be a Trustee eligible under this Section.
SECTION 18.02. The Trustee hereby accepts the trust hereby created. The Trustee undertakes, prior to a completed default, and after the curing of all completed defaults which may have occurred, to perform such duties and only such duties as are specifically set forth in this Indenture, and in case of a completed default (which has not been cured) to exercise such of the rights and powers vested in it by this Indenture, and to use the same degree of care and skill in their exercise, as a prudent man would exercise or use under the circumstances in the conduct of his own affairs.
The Trustee, upon receipt of evidence furnished to it by or on behalf of the Company pursuant to any provision of this Indenture, will examine the same to determine whether or not such evidence conforms to the requirements of this Indenture.
SECTION 18.03. No provision of this Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that
(a) prior to completed default hereunder and after the curing of all completed defaults which may have occurred, the Trustee shall not be liable except for the performance of such duties as are specifically set forth in this Indenture, and no implied covenants or obligations shall be read into this Indenture against the Trustee but the duties and obligations of the Trustee, prior to completed default and after the curing of all completed defaults which may have occurred, shall be determined solely by the express provisions of this Indenture; and
(b) prior to completed default hereunder and after the curing of all completed defaults which may have occurred, and in the absence of bad faith on the part of the Trustee, the Trustee may conclusively rely as to the truth of the statements and the correctness of opinions expressed therein, upon certificates or opinions conforming to the requirements of this Indenture; and
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(c) the Trustee shall not be personally liable for any error of judgment made in good faith by a responsible officer or officers of the Trustee unless it shall be proved that the Trustee was negligent in ascertaining the pertinent facts; and
(d) the Trustee shall not be personally liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the holders of not less than a majority in principal amount of the bonds at the time outstanding (determined as provided in Section 1.02 hereof) relating to the time, method, and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture.
SECTION 18.04. The recitals of fact contained herein and in the bonds (except the Trustee’s authentication certificate) shall be taken as the statements of the Company and the Trustee assumes no responsibility for the correctness of the same. The Trustee makes no representations as to the value of the mortgaged and pledged property or any part thereof, or as to the title of the Company thereto, or as to the validity or adequacy of the security afforded thereby and hereby, or as to the validity of this Indenture or of the bonds or coupons issued hereunder.
SECTION 18.05. Subject to the provisions of Sections 18.02 and 18.03, the Trustee shall not be personally liable in case of entry by it upon the mortgaged and pledged property for debts contracted or liability or damages incurred in the management or operation of said property.
SECTION 18.06. Any notice or demand which by any provision of this Indenture is required or permitted to be given or served by the Trustee on the Company shall be deemed to have been sufficiently given or served, for all purposes, by being deposited postage prepaid in a post-office letter box addressed (until another address is filed by the Company with the Trustee for the purposes of this Section), as follows: The Laclede Gas Light Company, St. Louis, Missouri.
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SECTION 18.07. To the extent permitted by Sections 18.02 and 18.03:
(1) The Trustee may rely and shall be protected in acting upon any resolution, certificate, opinion, notice, request, consent, order, appraisal, report, bond, or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties; and
(2) The Trustee may consult with counsel (who may be of counsel to the Company) and the opinion of such counsel shall be full and complete authorization and protection in respect of any action taken or suffered by it hereunder in good faith and in accordance with the opinion of such counsel.
SECTION 18.08. The Trustee shall not be under any responsibility for the approval or selection of any expert for any of the purposes expressed in this Indenture, except that nothing in this Section contained shall relieve the Trustee of its obligation to exercise reasonable care with respect to the approval or selection of independent experts who may furnish opinions or certificates to the Trustee pursuant to any provision of this Indenture.
Any resolution of the Board of Directors or Executive Committee shall be evidenced to the Trustee by a copy thereof certified by the Secretary or an Assistant Secretary of the Company to have been duly adopted.
Nothing contained in this Section shall be deemed to modify the obligation of the Trustee to exercise after a completed default (which has not been cured) the rights and powers vested in it by this Indenture with the degree of care and skill specified in Section 18.02.
SECTION 18.09. The Trustee, in its individual or any other capacity, may become the owner or pledgee of bonds or coupons secured hereby with the same rights it would have if it were not Trustee.
SECTION 18.10. Subject to the provisions of Section 21.03 hereof, all moneys received by the Trustee whether as Trustee or paying agent shall, until used or applied as herein provided, be held in trust for the purposes for which they were paid, but need not be segregated from
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other funds except to the extent required by law. The Trustee may allow and credit to the Company interest on any moneys received by it hereunder at such rate, if any, as may be agreed upon with the Company from time to time and as may be permitted by law.
SECTION 18.11. The Company covenants and agrees to pay to the Trustee from time to time, and the Trustee shall be entitled to, reasonable compensation for all services rendered by it in the execution of the trusts hereby created and in the exercise and performance of any of the powers and duties hereunder of the Trustee, which compensation shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust, and the Company will reimburse the Trustee with interest for all advances made by the Trustee in accordance with any of the provisions of this Indenture and will pay to the Trustee from time to time its expenses and disbursements (including the reasonable compensation and the expenses and disbursements of its counsel and of all persons not regularly in its employ). The Company also covenants to indemnify the Trustee for, and to hold it harmless against, any loss, liability or expense incurred without negligence or bad faith on the part of the Trustee, arising out of or in connection with the acceptance or administration of this trust, including the costs and expenses of defending against any claim of liability in the premises. The obligations of the Company to the Trustee under this Section shall constitute additional indebtedness secured hereby. Such additional indebtedness shall be secured by a lien prior to that of the bonds upon the trust estate, including all property or funds held or collected by the Trustee as such.
SECTION 18.12. Whenever in the administration of the trusts of this Indenture, prior to a completed default hereunder and after the curing of all completed defaults which may have occurred, the Trustee shall deem it necessary or desirable that a matter be proved or established prior to taking or suffering any action hereunder, such matter (unless other evidence in respect thereof be herein specifically prescribed) may be deemed to be conclusively proved and established by a certificate signed by the President or a Vice-President and the Treasurer or an Assistant Treasurer of the Company and delivered to the
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Trustee, and such certificate shall be full warrant to the Trustee for any action taken or suffered by it under the provisions of this Indenture upon the faith thereof.
SECTION 18.13. Whenever it is provided in this Indenture that the Trustee shall take any action upon the happening of a specified event or upon the fulfillment of any condition or upon the request of the Company or of bondholders, the Trustee taking such action shall have full power to give any and all notices and to do any and all acts and things incidental to such action.
SECTION 18.14. (a) If the Trustee has or acquires any conflicting interest, as defined by subsection (d) of this Section, the Trustee shall within ninety (90) days after ascertaining that it has such conflicting interest, either eliminate such conflicting interest or resign by giving written notice to the Company, but such resignation shall not become effective until the appointment of a successor trustee and such successor’s acceptance of such appointment. The Company covenants to take prompt steps to have a successor appointed in the manner hereinafter provided in Section 18.18. Upon giving such notice of resignation, the resigning Trustee shall publish notice thereof in one daily newspaper printed in the English language and published and of general circulation in the Borough of Manhattan, The City of New York, and in one daily newspaper printed in the English language and published and of general circulation in the City of St. Louis, State of Missouri, once in each of three successive calendar weeks, in each case on any business day of the week, which need not be the same day in each week. If the resigning Trustee fails to publish such notice within ten days after giving written notice of its resignation to the Company, the Company shall publish such notice.
(b) In the event that the Trustee shall fail to comply with the provisions of the preceding subsection (a) of this Section, the Trustee shall within ten (10) days after the expiration of such ninety (90) day period transmit notice of such failure to the bondholders, in the manner and to the extent provided in subsection (c) of Section 10.04 hereof with respect to reports pursuant to subsection (a) of Section 10.04 hereof.
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(c) Subject to the provisions of Section 14.17 hereof any bondholder who has been a bona fide holder of a bond or bonds for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor if the Trustee fails, after written request therefor by such holder, to comply with the provisions of subsection (a) of this Section.
(d) The Trustee shall be deemed to have a conflicting interest if—
(1) the Trustee is trustee under another indenture under which any other securities, or certificates of interest or participation in any other securities, of the Company are outstanding, except as otherwise provided in paragraph (1) of subsection (b) of Section 310 of the Trust Indenture Act of 1939, and provided that there shall be excluded from the operation of this paragraph the Mortgage or Deed of Trust dated April 1, 1904, and Supplemental Indenture thereto dated as of May 15, 1942, by and between the Company and Bankers Trust Company and the Trustee, as trustees, securing the Company’s Refunding and Extension Mortgage Five Per Cent. Gold Bonds, and any other indenture or indentures under which other securities, or certificates of interest or participation in other securities, of an obligor upon the bonds are outstanding, if the issuer shall have sustained the burden of proving, on application to the Securities and Exchange Commission and after opportunity for hearing thereon, that trusteeship under this Indenture and such other indenture is not so likely to involve a material conflict of interest as to make it necessary in the public interest or for the protection of investors to disqualify the Trustee from acting as such under one of such indentures;
(2) the Trustee or any of its directors or executive officers is an obligor upon the bonds or an underwriter for the Company;
(3) the Trustee directly or indirectly controls or is directly or indirectly controlled by or is under direct or indirect common control with the Company or an underwriter for the Company;
(4) the Trustee or any of its directors or executive officers is
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a director, officer, partner, employee, appointee or representative of the Company, or of an underwriter (other than the Trustee itself) for the Company who is currently engaged in the business of underwriting, except that (A) one individual may be a director and/or an executive officer of the Trustee and a director and/or an executive officer of the Company, but may not be at the same time an executive officer of both the Trustee and the Company; (B) if and so long as the number of directors of the Trustee in office is more than nine, one additional individual may be a director and/or an executive officer of the Trustee and a director of the Company; and (C) the Trustee may be designated by the Company or by any underwriter for the Company to act in the capacity of transfer agent, registrar, custodian, paying agent, fiscal agent, escrow agent or depositary or in any other similar capacity or, subject to the provisions of paragraph (1) of this subsection, to act as trustee whether under an indenture or otherwise;
(5) ten per centum (10%) or more of the voting securities of the Trustee is beneficially owned either by the Company or by any director, partner or executive officer thereof, or twenty per centum (20%) or more of such voting securities is beneficially owned, collectively, by any two or more of such persons; or ten per centum (10%) or more of the voting securities of the Trustee is beneficially owned either by an underwriter for the Company or by any director, partner or executive officer thereof, or is beneficially owned, collectively, by any two or more such persons;
(6) the Trustee is the beneficial owner of or holds as collateral security for an obligation which is in default, (A) five per centum (5%) or more of the voting securities or ten per centum (10%) or more of any other class of security of the Company, not including the bonds issued under this Indenture and securities issued under any other indenture under which the Trustee is also trustee, or (B) ten per centum (10%) or more of any class of security of an underwriter for the Company;
(7) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default, five per centum (5%)
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or more of the voting securities of any person who, to the knowledge of the Trustee, owns ten per centum (10%) or more of the voting securities of, or controls directly or indirectly or is under direct or indirect common control with, the Company;
(8) the Trustee is the beneficial owner of or holds as collateral security for an obligation which is in default, ten per centum (10%) or more of any class of security of any person who, to the knowledge of the Trustee, owns fifty per centum (50%) or more of the voting securities of the Company; or
(9) the Trustee owns on May 15th in any calendar year in the capacity of executor, administrator, testamentary or inter vivos trustee, guardian, committee or conservator, or in any other similar capacity, an aggregate of twenty-five per centum (25%) or more of the voting securities or of any class of security, of any person, the beneficial ownership of a specified percentage of which would have constituted a conflicting interest under paragraph (6), (7), or (8) of this subsection. As to any such securities of which the Trustee acquired ownership through becoming executor, administrator or testamentary trustee of an estate which included them, the provisions of the preceding sentence shall not apply for a period of two years from the date of such acquisition, to the extent that such securities included in such estate do not exceed twenty-five per centum (25%) of such voting securities or twenty-five per centum (25%) of any such class of security. Promptly after May 15th, in each calendar year, the Trustee shall make a check of its holdings of such securities in any of the above-mentioned capacities as of May 15th. If the Company fails to make payment in full of principal or interest upon the bonds when and as the same become due and payable, and such failure continues for thirty days thereafter, the Trustee shall make a prompt check of its holdings of such securities in any of the above-mentioned capacities as of the date of the expiration of such thirty-day period and after such date, notwithstanding the foregoing provisions of this paragraph, all such securities so held by the Trustee with sole or joint control over such securities vested in it, shall, but only so long as such failure
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shall continue, be considered as though beneficially owned by the Trustee for the purposes of paragraphs (6), (7), and (8) of this subsection (d).
The specifications of percentages in paragraphs (5) to (9), inclusive, of this subsection shall not be construed as indicating that the ownership of such percentages of the securities of a person is or is not necessary or sufficient to constitute direct or indirect control for the purposes of paragraph (3) or (7) of this subsection.
For the purposes of paragraphs (6), (7), (8) and (9) of this subsection (d) only, (A) the terms “security” and “securities” shall include only such securities as are generally known as corporate securities, but shall not include any note or other evidence of indebtedness issued to evidence an obligation to repay moneys lent to a person by one or more banks, trust companies or banking firms or any certificate of interest or participation in any such note or evidence of indebtedness; (B) an obligation shall be deemed to be in default when a default in payment of principal shall have continued for thirty days or more and shall not have been cured; and (C) the Trustee shall not be deemed to be the owner or holder of (i) any security which it holds as collateral security (as trustee or otherwise) for an obligation which is not in default as above defined, or (ii) any security which it holds as collateral security under this Indenture, irrespective of any default hereunder, or (iii) any security which it holds as agent for collection, or as custodian, escrow agent or depositary, or in any similar representative capacity.
For the purposes of this subsection (d) only, the term “voting security” shall mean any security presently entitling the owner or holder thereof to vote in the direction or management of the affairs of a person, or any security issued under or pursuant to any trust, agreement or arrangement whereby a trustee or trustees or agent or agents for the owner or holder of such security are presently entitled to vote in the direction or management of the affairs of a person.
For the purposes of this subsection (d) only, the term “director” shall mean any director of a corporation or any individual performing
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similar functions with respect to any organization, whether incorporated or unincorporated.
For the purposes of this subsection (d) only, the term “executive officer” shall mean the President, every Vice-President, every Trust Officer, the Cashier, the Secretary and the Treasurer of a corporation, and any individual customarily performing similar functions with respect to any organization, whether incorporated or unincorporated, but shall not include the Chairman of the Board of Directors.
For the purposes of this subsection (d) only, the term “underwriter” when used with reference to the Company means every person who, within three (3) years prior to the time as of which the determination is made, has purchased from the Company with a view to, or has sold for the Company in connection with, the distribution of any security of the Company, or has participated or has had a direct or indirect participation in any such undertaking, or has participated or has had a participation in the direct or indirect underwriting of any such undertaking, but such term shall not include a person whose interest was limited to a commission from an underwriter or dealer not in excess of the usual and customary distributors’ or sellers’ commission.
For the purposes of this subsection (d) only, the term “Company” shall include any obligor on bonds secured hereby.
(e) The percentages of voting securities and other securities specified in subsection (d) of this Section shall be calculated in accordance with the following provisions:
(i) A specified percentage of the voting securities of the Trustee, the Company or any other person referred to in this Section (each of whom is referred to as a “person” in this subsection (e) ) means such amount of the outstanding voting securities of such person as entitles the holder or holders thereof to cast such specified percentage of the aggregate votes which the holders of all the outstanding voting securities of such person are entitled to cast in the direction or management of the affairs of such person.
(ii) A specified percentage of a class of securities of a person
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means such percentage of the aggregate amount of securities of the class outstanding.
(iii) The term “amount”, when used in regard to securities, means the principal amount, if relating to evidences of indebtedness, the number of shares if relating to capital shares, and the number of units if relating to any other kind of security.
(iv) The term “outstanding” means issued and not held by or for the account of the issuer. The following securities shall not be deemed outstanding within the meaning of this definition:
(1) Securities of an issuer held in a sinking fund relating to securities of the issuer of the same class;
(2) Securities of an issuer held in a sinking fund relating to another class of securities of the issuer, if the obligation evidenced by such other class of securities is not in default as to principal or interest or otherwise;
(3) Securities pledged by the issuer thereof as security for an obligation of the issuer not in default as to principal or interest or otherwise;
(4) Securities held in escrow if placed in escrow by the issuer thereof;
provided, however, that any voting securities of an issuer shall be deemed outstanding if any person other than the issuer is entitled to exercise the voting rights thereof.
(v) A security shall be deemed to be of the same class as another security if both securities confer upon the holder or holders thereof substantially the same rights and privileges, provided, however, that, in the case of secured evidences of indebtedness, all of which are issued under a single indenture, differences in the interest rates or maturity dates of various series thereof shall not be deemed sufficient to constitute such series different classes, and provided, further, that, in the case of unsecured evidences of indebtedness, differences in the interest
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rates or maturity dates thereof shall not be deemed sufficient to constitute them securities of different classes, whether or not they are issued under a single indenture.
(f) If a separate or co-trustee is appointed pursuant to Section 18.19, the provisions of this Section which have been made specifically applicable to the Trustee, shall also apply to any separate or co-trustee, except that in case of the resignation of a separate or co-trustee such resignation and the appointment of a successor shall (subject to the provisions of subsection (c) of this Section) be governed by the provisions of paragraph (3) of Section 18.19.
SECTION 18.15. (a) Subject to the provisions of subsection (b) of this Section, if the Trustee shall be or shall become a creditor, directly or indirectly, secured or unsecured, of the Company within four months prior to a default (as defined in the last paragraph of this subsection), or subsequent to such a default, then, unless and until such default shall be cured, the Trustee shall set apart and hold in a special account for the benefit of the Trustee individually, the holders of the bonds, and the holders of other indenture securities (as defined in the last paragraph of this subsection)
(1) an amount equal to any and all reductions in the amount due and owing upon any claim as such creditor in respect of principal or interest effected after the beginning of such four months’ period and valid as against the Company and its other creditors, except any such reduction resulting from the receipt or disposition of any property described in paragraph (2) of this subsection or from the exercise of any right of set-off which the Trustee could have exercised if a petition in bankruptcy had been filed by or against the Company upon the date of such default; and
(2) all property received in respect of any claim as such creditor, either as security therefor, or in satisfaction or composition thereof, or otherwise after the beginning of such four months’ period, or an amount equal to the proceeds of any such property, if disposed of, subject, however, to the rights, if any, of the Company and its other creditors in such property or such proceeds.
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Nothing herein contained, however, shall affect the right of the Trustee
(A) to retain for its own account (i) payments made on account of any such claim by any person (other than the Company) who is liable thereon, and (ii) the proceeds of the bona fide sale of any such claim by the Trustee to a third person, and (iii) distributions made in cash, securities, or other property in respect of claims filed against the Company in bankruptcy or receivership or in proceedings for reorganization pursuant to the Bankruptcy Act or applicable State law;
(B) to realize, for its own account, upon any property held by it as security for any such claim, if such property was so held prior to the beginning of such four months’ period;
(C) to realize, for its own account, but only to the extent of the claim hereinafter mentioned, upon any property held by it as security for any such claim, if such claim was created after the beginning of such four months’ period and such property was received as security therefor simultaneously with the creation thereof, and if the Trustee shall sustain the burden of proving that at the time such property was so received the Trustee had no reasonable cause to believe that a default as defined in the last paragraph of this subsection would occur within four months; or
(D) to receive payment on any claim referred to in paragraph (B) or (C), against the release of any property held as security for such claim as provided in paragraph (B) or (C), as the case may be, to the extent of the fair value of such property.
For the purposes of paragraphs (B), (C), and (D), property substituted after the beginning of such four months’ period for property held as security at the time of such substitution shall, to the extent of the fair value of the property released, have the same status as the property released, and, to the extent that any claim referred to in any of such paragraphs is created in renewal of or in substitution for or for the purpose of repaying or refunding any pre-existing claim of the Trustee as such creditor, such claim shall have the same status as such pre-existing claim.
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If the Trustee shall be required to account, the funds and property held in such special account and the proceeds thereof shall be apportioned between the Trustee, the bondholders, and the holders of other indenture securities in such manner that the Trustee, the bondholders, and the holders of other indenture securities realize, as a result of payments from such special account and payments of dividends on claims filed against the Company in bankruptcy or receivership or in proceedings for reorganization pursuant to the Bankruptcy Act or applicable State law, the same percentage of their respective claims, figured before crediting to the claim of the Trustee anything on account of the receipt by it from the Company of the funds and property in such special account and before crediting to the respective claims of the Trustee, the bondholders, and the holders of other indenture securities dividends on claims filed against the Company in bankruptcy or receivership or in proceedings for reorganization pursuant to the Bankruptcy Act or applicable State law, but after crediting thereon receipts on account of the indebtedness represented by their respective claims from all sources other than from such dividends and from the funds and property so held in such special account. As used in this paragraph, with respect to any claim, the term “dividends” shall include any distribution with respect to such claim, in bankruptcy or receivership or in proceedings for reorganization pursuant to the Bankruptcy Act or applicable State law, whether such distribution is made in cash, securities, or other property, but shall not include any such distribution with respect to the secured portion, if any, of such claim. The court in which such bankruptcy, receivership, or proceeding for reorganization is pending shall have jurisdiction (i) to apportion between the Trustee, the bondholders, and the holders of other indenture securities, in accordance with the provisions of this paragraph, the funds and property held in such special account and the proceeds thereof, or (ii) in lieu of such apportionment, in whole or in part, to give to the provisions of this paragraph due consideration in determining the fairness of the distributions to be made to the Trustee, the bondholders, and the holders of other indenture securities, with respect to their respective claims, in which event it shall not be necessary to liquidate or to appraise the value of any securities or other
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property held in such special account or as security for any such claim, or to make a specific allocation of such distributions as between the secured and unsecured portions of such claims, or otherwise to apply the provisions of this paragraph as a mathematical formula. To the extent that the claim of the Trustee has been reduced in amount or satisfied by the receipt of moneys or property which later have been apportioned to the bondholders and the holders of other indenture securities on an accounting, as hereinabove provided, such claim of the Trustee shall be reinstated in amount.
Any Trustee who has resigned or been removed after the beginning of such four months’ period shall be subject to the provisions of this subsection as though such resignation or removal had not occurred. If any Trustee has resigned or been removed prior to the beginning of such four months’ period, it shall be subject to the provisions of this subsection if and only if the following conditions exist—
(i) the receipt of property or reduction of claim which would have given rise to the obligation to account, if such Trustee had continued as trustee, occurred after the beginning of such four months’ period; and
(ii) such receipt of property or reduction of claim occurred within four months after such resignation or removal.
As used in this Section, the term “default” means any failure to make payment in full of the principal of or interest upon the bonds or upon the other indenture securities when and as such principal or interest becomes due and payable; and the term “other indenture securities” means securities upon which the Company is an obligor (as defined in the Trust Indenture Act of 1939) outstanding under any other indenture (a) under which the Trustee is also trustee, (b) which contains provisions substantially similar to the provisions of this subsection, and (c) under which a default exists at the time of the apportionment of the funds and property held in said special account.
(b) There shall be excluded from the operation of subsection (a) of this Section a creditor relationship arising from—
(1) the ownership or acquisition of securities issued under
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any indenture, or any security or securities having a maturity of one year or more at the time of acquisition by the Trustee; and for the purposes of this paragraph the term “security” shall mean any note, bond, debenture, evidence of indebtedness, certificate of interest or participation in any profit-sharing agreement, collateral-trust certificate, preorganization certificate, certificate of deposit for a security, or, in general, any interest or instrument commonly known as a “security” or any certificate of interest or participation in, temporary or interim certificate for, receipt for, guaranty of, or warrant or right to subscribe to or purchase, any of the foregoing;
(2) advances authorized by a receivership or bankruptcy court of competent jurisdiction or by this Indenture for the purpose of preserving the property subject to the lien of this Indenture or of discharging tax liens or other liens or encumbrances, prior to the lien of this Indenture, on the trust estate, if notice of such advance and of the circumstances surrounding the making thereof is given to the bondholders as provided in subsections (a), (b) and (c) of Section 10.04 hereof with respect to advances by the Trustee as such;
(3) disbursements made in the ordinary course of business in the capacity of trustee under an indenture, transfer agent, registrar, custodian, paying agent, fiscal agent or depositary, or other similar capacity;
(4) an indebtedness created as a result of services rendered or premises rented; or an indebtedness created as a result of goods or securities sold in a cash transaction as defined in the last paragraph of this subsection;
(5) the ownership of stock or of other securities of a corporation organized under the provisions of Section 25 (a) of the Federal Reserve Act, as amended, which is directly or indirectly a creditor of the Company; or
(6) the acquisition, ownership, acceptance or negotiation of any drafts, bills of exchange, acceptances or obligations which fall
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within the classification of self-liquidating paper as defined in the last paragraph of this subsection.
As used in this Section, the term “cash transaction” shall mean any transaction in which full payment for goods or securities sold is made within seven days after delivery of the goods or securities in currency or in checks or other orders drawn upon banks or bankers and payable upon demand; the term “self-liquidating paper” shall mean any draft, bill of exchange, acceptance or obligation which is made, drawn, negotiated or incurred by the Company for the purpose of financing the purchase, processing, manufacture, shipment, storage or sale of goods, wares or merchandise and which is secured by documents evidencing title to, possession of, or a lien upon, the goods, wares or merchandise or the receivables or proceeds arising from the sale of the goods, wares or merchandise previously constituting the security, provided the security is received by the Trustee simultaneously with the creation of the creditor relationship with the obligor arising from the making, drawing, negotiating or incurring of the draft, bill of exchange, acceptance or obligation; the term “Trustee” shall include any separate or co-trustee appointed pursuant to Section 18.19 hereof; and the term “Company” shall include any obligor on bonds secured hereby.
SECTION 18.16. The Trustee may at any time resign and be discharged of the trusts hereby created by giving written notice to the Company specifying the day upon which such resignation shall take effect and thereafter publishing notice thereof, in one daily newspaper printed in the English language and published and of general circulation in the Borough of Manhattan, The City of New York, and in one daily newspaper printed in the English language and published and of general circulation in the City of St. Louis, State of Missouri, once in each of three successive calendar weeks, in each case on any business day of the week, which need not be the same day in each week, and such resignation shall take effect upon the day specified in such notice unless previously a successor trustee shall have been appointed by the bondholders or the Company in the manner hereinafter provided in Section 18.18, and in such event such resignation shall take effect immediately on the appointment of such successor trustee. This Section shall not be applicable to resignations pursuant to Section 18.14.
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SECTION 18.17. The Trustee may be removed at any time by an instrument or concurrent instruments in writing filed with the Trustee and signed arid acknowledged by the holders of a majority in principal amount of the bonds then outstanding (determined as provided in Section 1.02 hereof) or by their attorneys in fact duly authorized.
In case at any time the Trustee shall cease to be eligible in accordance with the provisions of Section 18.01, then the Trustee shall resign immediately in the manner and with the effect specified in Section 18.16, and, in the event that the Trustee does not resign immediately in such case, then it may be removed forthwith by an instrument or concurrent instruments in writing filed with the Trustee and either (a) signed by the President or a Vice-President of the Company with its corporate seal attested by the Secretary or an Assistant Secretary of the Company or (b) signed and acknowledged by the holders of a majority in principal amount of the bonds then outstanding or by their attorneys in fact duly authorized.
SECTION 18.18. In case at any time the Trustee shall resign or shall be removed (unless the Trustee shall be removed as provided in subsection (c) of Section 18.14 in which event the vacancy shall be filled as provided in said subsection) or shall become incapable of acting, or shall be adjudged a bankrupt or insolvent, or if a receiver of the Trustee or of its property shall be appointed, or if any public officer shall take charge or control of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation, a vacancy shall be deemed to exist in the office of Trustee, and a successor or successors may be appointed by the holders of a majority in principal amount of the bonds then outstanding hereunder (determined as provided in Section 1.02 hereof), by an instrument or concurrent instruments in writing signed and acknowledged by such bondholders or by their attorneys in fact duly authorized, and delivered to such new trustee, notification thereof being given to the Company and the retiring trustee; provided, nevertheless, that until a new trustee shall be appointed by the bondholders as aforesaid, the Company, by instrument executed by order of its Board of Directors or Executive Committee and duly acknowledged by its President or a Vice-President,
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may appoint a trustee to fill such vacancy until a new trustee shall be appointed by the bondholders as herein authorized. The Company shall publish notice of any such appointment made by it in the manner provided in Section 18.16. Any new trustee appointed by the Company shall, immediately and without further act, be superseded by a trustee appointed by the bondholders as above provided, if such appointment by the bondholders be made prior to the expiration of one year after the first publication of notice of the appointment of the new trustee by the Company.
If in a proper case no appointment of a successor trustee shall be made pursuant to the foregoing provisions of this Section within six (6) months after a vacancy shall have occurred in the office of trustee, the holder of any bond outstanding hereunder or any retiring trustee may apply to any court of competent jurisdiction to appoint a successor trustee. Said court may thereupon after such notice, if any, as such court may deem proper and prescribe, appoint a successor trustee.
If the Trustee resigns because of a conflict of interest as provided in subsection (a) of Section 18.14 and a successor has not been appointed by the Company or the bondholders or, if appointed, has not accepted the appointment within thirty (30) days after the date of such resignation, the resigning Trustee may apply to any court of competent jurisdiction for the appointment of a successor trustee.
Any trustee appointed under the provisions of this Section in succession to the Trustee shall be a bank or trust company eligible under Section 18.01 and qualified under Section 18.14.
Any trustee which has resigned or been removed shall nevertheless retain the lien upon the mortgaged or pledged property, including all property or funds held or collected by the trustee as such, to secure the amounts due to the trustee as compensation, reimbursement, expenses and indemnity, afforded to it by Section 18.11.
SECTION 18.19. At any time or times, for the purpose of conforming to any legal requirements, restrictions or conditions in any State or jurisdiction in which any part of the mortgaged and pledged property then subject to this Indenture may be located, the Company
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and the Trustee shall have power to appoint, and, upon the request of the Trustee the Company shall for such purpose join with the Trustee in the execution, delivery and performance of, all instruments and agreements necessary or proper to appoint another corporation or one or more persons approved by the Trustee, either to act as separate trustee or trustees, or co-trustee or co-trustees jointly with the Trustee, of all or any of the property subject to the lien hereof. In the event that the Company shall not have joined in such appointment within fifteen (15) days after the receipt by it of a request so to do, the Trustee alone shall have power to make such appointment.
Every separate trustee, every co-trustee and every successor trustee, other than any trustee which may be appointed as successor to Mississippi Valley Trust Company shall, to the extent permitted by law, but to such extent only, be appointed subject to the following provisions and conditions, namely:
(1) The rights, powers, duties and obligations conferred or imposed upon trustees hereunder or any of them shall be conferred or imposed upon and exercised or performed by the Trustee and such separate trustee or separate trustees or co-trustee or co-trustees jointly, as shall be provided in the supplemental indenture appointing such separate trustee or separate trustees or co-trustee or co-trustees, except to the extent that under any law of any jurisdiction in which any particular act or acts are to be performed the Trustee shall be incompetent or unqualified to perform such act or acts, in which event such rights, powers, duties and obligations shall be exercised and performed by such separate trustee or separate trustees or co-trustee or co-trustees;
(2) The bonds secured hereby shall be authenticated and delivered, and all powers, duties, obligations and rights, conferred upon the Trustee in respect of the custody of all bonds and other securities and of all cash pledged or deposited hereunder, shall be exercised solely by Mississippi Valley Trust Company or its successor in the trust hereunder;
(3) The Company and the Trustee, at any time by an instrument in writing executed by them jointly, may accept the
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resignation of or remove any separate trustee or co-trustee appointed under this Section or otherwise, and, upon the request of the Trustee, the Company shall, for such purpose, join with the Trustee in the execution, delivery and performance of all instruments and agreements necessary or proper to make effective such resignation or removal. In the event that the Company shall not have joined in such action within fifteen (15) days after the receipt by it of a request so to do, the Trustee alone shall have power to accept such resignation or to remove any such separate trustee or co-trustee. A successor to a separate trustee or co-trustee so resigned or removed may be appointed in the manner provided in this Section;
(4) No trustee hereunder shall be personally liable by reason of any act or omission of any other trustee hereunder.
Any notice, request or other writing, by or on behalf of the holders of the bonds delivered to Mississippi Valley Trust Company, or its successor in the trust hereunder, shall be deemed to have been delivered to all of the then trustees or co-trustees as effectually as if delivered to each of them. Every instrument appointing any trustee or trustees other than a successor to Mississippi Valley Trust Company shall refer to this Indenture and the conditions in this Article expressed, and upon the acceptance in writing by such trustee or trustees or co-trustee or co-trustees, he, they or it shall be vested with the estates or property specified in such instrument, either jointly with Mississippi Valley Trust Company or its successor, or separately, as may be provided therein, subject to all the trusts, conditions and provisions of this Indenture; and every such instrument shall be filed with Mississippi Valley Trust Company or its successor in the trust hereunder. Any separate trustee or trustees or any co-trustee or co-trustees, may at any time by an instrument in writing constitute Mississippi Valley Trust Company or its successor in the trust hereunder his, their or its agent or attorney-in-fact, with full power and authority, to the extent which may be permitted by law, to do all acts and things and exercise all discretion authorized or permitted by him, them or it, for and in behalf of him, them or it, and in his, their or its name. In case any separate trustee or trustees or co-trustee or co-trustees, or a successor to any of them, shall die, become incapable of acting, resign or be removed, all the estates, property, rights, powers, trusts,
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duties and obligations of said separate trustee or co-trustee, so far as permitted by law, shall be vested in and be exercised by Mississippi Valley Trust Company or its successor in the trust hereunder, without the appointment of a new trustee as successor to such separate trustee or co-trustee.
If a separate or co-trustee is appointed pursuant to this Section 18.19, the provisions of Sections 10.04, 14.02, 18.02 and 18.03 hereof which have been made specifically applicable to the Trustee, shall also apply to any separate or co-trustee, other than any trustee which may be appointed as successor to Mississippi Valley Trust Company.
SECTION 18.20. Any successor trustee appointed hereunder shall execute, acknowledge and deliver to his or its predecessor trustee, and also to the Company, an instrument accepting such appointment hereunder, and thereupon such successor trustee, without any further act, deed or conveyance, shall become fully vested with all the estates, properties, rights, powers, trusts, duties and obligations of his or its predecessor in trust hereunder, with like effect as if originally named as trustee herein; but the trustee ceasing to act shall nevertheless, on the written request of the Company, or of the successor trustee, or of the holders of ten percentum (10%) in principal amount of the bonds then outstanding hereunder, execute, acknowledge and deliver such instruments of conveyance and further assurance and do such other things as may reasonably be required for more fully and certainly vesting and confirming in such successor trustee all the right, title and interest of the trustee to which he or it succeeds, in and to the mortgaged and pledged property and such rights, powers, trusts, duties and obligations, and the trustee ceasing to act shall also, upon like request, pay over, assign and deliver to the successor trustee any money or other property subject to the lien of this Indenture, including any pledged securities, which may then be in his or its possession. Should any deed, conveyance or instrument in writing from the Company be required by the new trustee for more fully and certainly vesting in and confirming to such new trustee such estates, properties, rights, powers, trusts and duties, any and all such deeds, conveyances and instruments in writing shall, on request, be executed, acknowledged and delivered by the Company.
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SECTION 18.21. Any corporation into which the Trustee may be merged or with which it may be consolidated or any corporation resulting from any merger or consolidation to which the Trustee shall be a party or any corporation to which substantially all the business and assets of the Trustee may be transferred, provided such corporation shall be eligible under the provisions of Section 18.01 and qualified under Section 18.14 shall be the successor trustee under this Indenture, without the execution or filing of any paper or the performance of any further act on the part of any other parties hereto, anything herein to the contrary notwithstanding. In case any of the bonds contemplated to be issued hereunder shall have been authenticated but not delivered, any such successor to the Trustee may, subject to the same terms and conditions as though such successor had itself authenticated such bonds, adopt the certificate of authentication of the original Trustee or of any successor to it as trustee hereunder, and deliver the said bonds so authenticated; and in case any of said bonds shall not have been authenticated, any successor to the Trustee may authenticate such bonds either in the name of any predecessor hereunder or in the name of the successor trustee, and in all such cases such certificate shall have the full force which it is anywhere in said bonds or in this Indenture provided that the certificate of the Trustee shall have; provided, however, that the right to authenticate bonds in the name of the Trustee shall apply only to its successor or successors by merger or consolidation or sale as aforesaid.
ARTICLE XIX.
DISCHARGE OF MORTGAGE.
SECTION 19.01. The Trustee (and any trustee or trustees or co-trustee or co-trustees appointed pursuant to Article XVIII hereof) may, and upon request of the Company shall, cancel and discharge the lien of these presents and of all indentures supplemental hereto, and execute and deliver to the Company such deeds and instruments as shall be requisite to satisfy the lien hereof and of all indentures supplemental hereto, and reconvey and transfer to the Company the mortgaged and pledged property, whenever all indebtedness secured hereby shall have been paid, including all proper charges of the Trustee hereunder. Such
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request shall be accompanied by a Treasurer’s certificate and an opinion of counsel each to the effect that all conditions precedent, specified in this Indenture, to the cancellation and discharge of the lien of these presents and of all indentures supplemental hereto have been complied with.
Bonds and interest obligations for the payment of which and bonds for the redemption of which moneys shall have been set apart by or deposited with the Trustee with irrevocable direction so to apply the same, subject to the provisions of Section 21.03 hereof (with or without any additional right given to the holders to surrender their bonds and obtain therefrom payment therefor prior to the redemption date) shall for all purposes of this Article XIX be deemed to have been paid; provided that in case of redemption the notice requisite to the validity of such redemption shall have been given or arrangements shall have been made insuring to the satisfaction of the Trustee that the same will be given.
ARTICLE XX.
MEETINGS OF BONDHOLDERS.
SECTION 20.01. Modifications and alterations of this Indenture and/or of any indenture supplemental hereto and/or of the rights and obligations of the Company and/or of the holders of outstanding bonds and coupons issued hereunder may be made as provided in the nine next succeeding Sections hereof numbered 20.02 to 20.10, both inclusive.
SECTION 20.02. The Trustee may at any time call a meeting of the bondholders affected by the business to be submitted to the meeting and it shall call such a meeting on the written request of the Company, given pursuant to a resolution of its Board of Directors. The holders of fifteen per centum (15%) or more in principal amount of the bonds affected by the business to be submitted to the meeting outstanding hereunder at the time of such request may request the Trustee to call such a meeting. In the event of the Trustee’s failing for ten (10) days to call a meeting after being thereunto requested by the Company or the bondholders as above set forth, holders of outstanding bonds affected
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by the business to be submitted to the meeting to the amount above specified in this Section or the Company, pursuant to resolution of its Board of Directors, may call such meeting. Every such meeting called by and at the instance of the Trustee shall be held at the principal office of the Trustee, or, at the election of the Trustee, at such place in the Borough of Manhattan, The City of New York, as shall be selected by the Trustee or, with the written approval of the Company, at any other place in the United States of America, and written notice thereof, stating the place and time thereof and in general terms the business to be submitted, shall be mailed by the Trustee not less than thirty (30) days before such meeting (a) to each registered holder of bonds affected by the business to be submitted to the meeting then outstanding hereunder addressed to him at his address appearing on the registry books, (b) to each holder of any such bond payable to bearer who shall have filed with the Trustee an address for notices to be addressed to him, (c) to all other bondholders whose names and addresses are preserved at the time by the Trustee, as provided in subdivision (a) of Section 10.02 hereof, and (d) to the Company addressed to it at St. Louis, Missouri (or at such other address as may be designated by the Company from time to time) and shall be published by the Trustee at least once a week for four (4) successive calendar weeks immediately preceding the meeting in one daily newspaper printed in the English language and published and of general circulation in the Borough of Manhattan, The City of New York, and in one daily newspaper printed in the English language and published and of general circulation in the City of St. Louis, State of Missouri ; provided, however, that the mailing of such notice to any bondholders affected by the business submitted to the meeting shall in no case be a condition precedent to the validity of any action taken at such meeting. If such meeting is called by or at the instance either of the Company or the bondholders affected by the business submitted to the meeting, it shall be held at such place in the United States of America as may be specified in the notice calling such meeting and notice thereof shall be sufficient for all purposes hereof if given by newspaper publication as aforesaid stating the place and time of the meeting and in general terms the business to be transacted. Any meeting of bondholders shall be valid without notice if the holders of all bonds affected by the business submitted to the meeting then outstanding
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hereunder are present in person or by proxy and if the Company and the Trustee are present by duly authorized representatives, or if notice is waived in writing before or after the meeting by the Company, the holders of all bonds affected by the business submitted to the meeting outstanding hereunder or by such as are not present in person or by proxy and by the Trustee.
SECTION 20.03. Officers and nominees of the Trustee and of the Company may attend and be heard at such meeting, but as such shall not be entitled to vote thereat. Attendance by bondholders may be in person or by proxy. In order that the holders of bonds payable to bearer and their proxies may attend and vote without producing their bonds, the Trustee, with respect to any such meeting called by the Trustee, may make and from time to time vary such regulations as it shall think fit for deposit of bonds with any banks, bankers or trust companies, and for the issue to the persons depositing the same of certificates by such depositaries entitling the holders thereof to be present and vote at any such meeting and to appoint proxies to represent them and vote for them at any such meeting in the same way as if the persons so present and voting, either personally or by proxy, were the actual bearers of the bonds in respect of which such certificates shall have been issued, and any regulations so made shall be binding and effective. If any such meeting shall have been called by bondholders affected by the business submitted to the meeting or by the Company as aforesaid upon failure of the Trustee to call the same after having been so requested to do under the provisions of Section 20.02 hereof, regulations to like effect for such deposit of bonds with an issue of certificates by any bank or trust company organized under the laws of the United States of America or of any state thereof, having a capital of not less than One hundred thousand Dollars ($100,000), shall be similarly binding and effective for all purposes hereof if adopted or approved by the bondholders calling such meeting or by the Board of Directors of the Company, if such meeting shall have been called by the Company, provided that in either such case copies of such regulations shall be filed with the Trustee.
SECTION 20.04. Subject to the restrictions specified in Section 20.03
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hereof, any registered holder of bonds affected by the business to be submitted at the meeting outstanding hereunder and any holder of a certificate provided for in Section 20.03 hereof, shall be entitled in person or by proxy to attend and vote at such meeting as holder of the bonds registered or certified in the name of such holder without producing such bonds. All others seeking to attend or vote at such meeting in person or by proxy must, if required by any authorized representative of the Trustee or the Company or by any other bondholder affected by the business to be submitted at the meeting, produce the bonds claimed to be owned or represented at such meeting, and every one seeking to attend or vote shall, if required as aforesaid, produce such further proof of bond ownership or personal identity as shall be satisfactory to the authorized representative of the Trustee, or if none be present then to the Inspectors of Votes hereinafter provided for. Proxies shall be acknowledged as required for an instrument to be recorded in the State of Missouri, and all proxies and certificates presented at any meeting shall be delivered to said Inspectors of Votes and filed with the Trustee.
SECTION 20.05. Persons named by the Trustee if represented at the meeting shall act as temporary Chairman and Secretary, respectively, of the meeting, but if the Trustee shall not be represented or shall fail to nominate such persons or if any person so nominated shall not be present, the bondholders and proxies present and entitled to vote shall by a majority vote, irrespective of the amount of their holdings, elect other persons from those present to fill such vacancy or vacancies. A permanent Chairman and a permanent Secretary of such meeting shall be elected from those present by the bondholders and proxies present and entitled to vote by a majority vote irrespective of the amount of their holdings. The Trustee, if represented at the meeting, shall appoint two Inspectors of Votes who shall count’ all votes cast at such meeting, except votes on the election of a Chairman and Secretary, both temporary and permanent, as aforesaid, and who shall make and file with the permanent Secretary of the meeting their verified written report in duplicate of all such votes so cast at said meeting. If the Trustee shall not be represented at the meeting or shall fail to nominate such Inspectors of Votes or if either Inspector of Votes fails’ to attend the
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meeting the vacancy shall be filled by appointment by the permanent Chairman of the meeting.
SECTION 20.06. Subject to the provisions of this Section and of Section 20.10 hereof, the holders of not less than sixty-six and two-thirds per centum (662⁄3%) in principal amount of the bonds outstanding hereunder (computed as provided in Section 1.02 hereof) when such meeting is held must be present at such meeting in person or by proxy in order to constitute a quorum for the transaction of business, less than a quorum, however, having power to adjourn; provided, however, that in case more than one series of bonds shall be outstanding under this Indenture, and any business to be submitted to such meeting shall affect the rights of holders of the bonds of one or more series and shall not affect the rights of holders of the bonds of one or more of the other series, then only holders of the bonds of the series to be affected shall have the right to notice of or to attend or vote at any such meeting or shall be counted for the purpose of a quorum. The determination of the Trustee as to what series of bonds the rights of the holders of which are affected shall be conclusive. If such meeting is adjourned by less than a quorum for more than fourteen (14) days, notice thereof shall forthwith be mailed by the Trustee if such meeting shall have been called by the Trustee (a) to the Company addressed to it at St. Louis, Missouri (or at such other address as may be designated by the Company in writing from time to time), (b) to each registered holder of bonds entitled to notice then outstanding hereunder addressed to him at his address appearing on the registry books, and (c) to each holder of any such bond payable to bearer who shall have filed with the Trustee an address for notices, and (d) to every other bondholder whose name and address is preserved at the time by the Trustee, as. provided in subdivision (a) of Section 10.02 hereof, in each case addressed to him at such address, and shall be published at least once in each fourteen (14) day period of such adjournment in one daily newspaper printed in the English language and published and of general circulation in the Borough of Manhattan, The City of New York, and in one daily newspaper printed in the English language and published and of general circulation in the City of St. Louis, State of Missouri. Failure to mail such notice to any such bondholder as aforesaid shall in no case affect the validity of any
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action taken at any meeting held pursuant to such adjournment. If such meeting shall have been called by bondholders or by the Company after the failure of the Trustee to call the same after being requested so to do in accordance with the provisions of Section 20.02 hereof, notice of such adjournment shall be given by the permanent Chairman and permanent Secretary of the meeting in the newspapers and for the number of times above specified in this Section and shall be sufficient if so given.
SECTION 20.07. Subject to the provisions of Section 20.06 and Section 20.10 hereof, any modification or alteration of this Indenture and/or of any indenture supplemental hereto and/or of the rights and obligations of the Company and/or of the holders of bonds and coupons issued hereunder in any particular may be made at a meeting of bondholders duly convened and held in accordance with the provisions of this Article, but only by resolution duly adopted by the affirmative vote of the holders of sixty-six and two-thirds per centum (662⁄3%) or more in principal amount of the bonds entitled to vote at such meeting outstanding hereunder (computed as provided in Section 1.02 hereof) when such meeting is held, and approved by resolution of the Board of Directors of the Company as hereinafter specified; provided, however, that no such modification or alteration shall, without the consent of the holder of any bond issued hereunder affected thereby, permit (1) the extension of the maturity of the principal of such bond, or (2) the reduction in the rate of interest thereon or any other modification in the terms of payment of such principal or interest except that the holders of not less than seventy-five per centum (75%) in principal amount of the bonds at the time outstanding may consent on behalf of the holders of all bonds at the time outstanding to the postponement of any interest payment for a period not exceeding three years from its due date, or (3) the creation of any lien ranking prior to, or on a parity with, the lien of this Indenture with respect to any of the property mortgaged or pledged hereunder, or (4) the deprivation of any non-assenting bondholder of a lien upon the mortgaged and pledged property for the security of his bonds (subject only to the lien of taxes, assessments or governmental charges not then due and delinquent and to any mortgage or other liens existing upon said property which are
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prior hereto at the date of the calling of any such bondholders’ meeting) or (5) the reduction of the percentage required by the provisions of this Section for the taking of any action under this Section with respect to any bond outstanding hereunder; and provided, further, that notwithstanding the provisions of this Section 20.07 or any other Section of this Article XX the holders of not less than a majority in principal amount of all bonds at the time outstanding may (A) direct the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture, or (B) on behalf of the holders of all such bonds, to consent to the waiver of any past default and its consequences. For all purposes of this Article, the Trustee, subject to the provisions of Sections 18.02 and 18.03, shall be entitled to rely upon an opinion of counsel with respect to the extent, if any, as to which any action taken at such meeting affects the rights under this Indenture or under any indenture supplemental hereto of any holders of bonds then outstanding hereunder.
SECTION 20.08. A record in duplicate of the proceedings of each meeting of bondholders shall be prepared by the permanent Secretary of the meeting and shall have attached thereto the original reports of the Inspectors of Votes, and affidavits by one or more persons having knowledge of the facts showing a copy of the notice of the meeting and a copy of the notice of adjournment thereof, if required under the provisions of Section 20.06 hereof, and showing that said notices were mailed and published as provided in Section 20.02 hereof and, in a proper case, as provided in Section 20.06 hereof. Such record shall be signed and verified by the affidavits of the permanent Chairman and the permanent Secretary of the meeting, and one duplicate thereof shall be delivered to the Company and the other to the Trustee for preservation by the Trustee. Any record so signed and verified shall be proof of the matters therein stated until the contrary is proved, and if such record shall also be signed and verified by the affidavit of a duly authorized representative of the Trustee, such meeting shall be deemed conclusively to have been duly convened and held and such record shall be conclusive, and any resolution or proceeding stated in such record to have been adopted or taken shall be deemed conclusively to have been
159
duly adopted or taken by such meeting. A true copy of any resolution adopted by such meeting shall be mailed by the Trustee to each registered holder of bonds entitled to vote at such meeting outstanding hereunder addressed to him at his address appearing on the registry books and to each holder of any such bond payable to bearer who shall have filed with the Trustee an address for notices, and to every other bondholder whose name and address is preserved at the time by the Trustee, as provided in subdivision (a) of Section 10.02 hereof, in each case addressed to him at such address, and proof of such mailing by the affidavit of some person having knowledge of the fact shall be filed with the Trustee, but failure to mail copies of such resolution as aforesaid shall not affect the validity thereof. No such resolution shall be binding until and unless such resolution is approved by resolution of the Board of Directors of the Company, a copy of which resolution of approval, if any, shall be certified by the Secretary or an Assistant Secretary of the Company and filed by the Company with the Trustee, but if such resolution of the Board of Directors of the Company is adopted and a certified copy thereof is filed with the Trustee, the resolution so adopted shall be deemed conclusively to be binding upon the Company, the Trustee and the holders of all bonds and coupons issued hereunder, at the expiration of sixty (60) days after such filing, except in the event of a final decree of a court of competent jurisdiction setting aside such resolution, or annulling the action taken thereby in a legal action or equitable proceeding for such purposes commenced within such sixty (60) day period, provided, however, that no such resolution of the bondholders, or of the Company, shall in any manner be so construed as to change or modify any of the rights, immunities or obligations of the Trustee without its written assent thereto.
SECTION 20.09. Bonds authenticated and delivered after the date of any bondholders’ meeting may bear a notation in form approved by the Trustee as to the action taken at meetings of bondholders theretofore held, and upon demand of the holder of any bond outstanding at the date of any such meeting and affected thereby and upon presentation of his bond for the purpose at the principal office of the Trustee, the Company shall cause suitable notation to be made on such bond by endorsement or otherwise as to any action taken at any meeting of bondholders
160
theretofore held. If the Company or the Trustee shall so determine, new bonds so modified as in the opinion of the Trustee and the Board of Directors of the Company to conform to such bondholders’ resolution shall be prepared, authenticated and delivered, and upon demand of the holder of any bond then outstanding and affected thereby shall be exchanged without cost to such bondholder for bonds then outstanding hereunder upon surrender of such bonds with all unmatured coupons appertaining thereto. The Company or the Trustee may require bonds outstanding to be presented for notation or exchange as aforesaid if either shall see fit to do so. Instruments supplemental to this Indenture embodying any modification or alteration of this Indenture or of any indenture supplemental hereto made at any bondholders’ meeting and approved by resolution of the Board of Directors of the Company, as aforesaid, may be executed by the Trustee and the Company and upon demand of the Trustee or if so specified in any resolution adopted by any such bondholders’ meeting, shall be executed by the Company and the Trustee.
Any supplemental indenture executed pursuant to the provisions of this Article shall comply with all applicable provisions of the Trust Indenture Act of 1939 as then in force.
SECTION 20.10. Notwithstanding anything in this Article XX contained, the Company may at any time, or from time to time, by resolution of the Board of Directors filed with the Trustee, stipulate that from and after the date of the filing of such resolution with the Trustee none of the provisions of this Article XX shall be of any force and effect whatever either as respects (1) all bonds theretofore authenticated and delivered by the Trustee hereunder and then outstanding and/or (2) as to any bonds and/or all bonds thereafter authenticated and delivered by the Trustee hereunder, and in any such event a supplemental indenture setting out in detail the stipulations contained in such resolution shall be made.
ARTICLE XXI.
MISCELLANEOUS.
SECTION 21.01. Nothing in this Indenture, expressed or implied, is intended or shall be construed, to confer upon, or to give to, any person,
161
firm or corporation, other than the parties hereto and the holders of the bonds and coupons outstanding hereunder, any right, remedy, or claim under or by reason of this Indenture or any covenant, condition, stipulation, promise or agreement hereof, and all the covenants, conditions, stipulations, promises and agreements in this Indenture contained by and on behalf of the Company shall be for the sole and exclusive benefit of the parties hereto, and of the holders of the bonds and of the coupons outstanding hereunder.
SECTION 21.02. Any money which has been deposited with the Trustee (other than money which has been deposited with the Trustee for the purpose of effecting payment or redemption of or payment of interest on any bonds issued hereunder or which the Trustee has been directed to hold and apply for the purpose of such payment or redemption) shall, at the request of the Company evidenced by a resolution, be invested or reinvested by the Trustee in any bonds or other obligations of the United States of America designated by the Company maturing not more than two years from the date of their purchase by the Trustee, and until a completed default specified in Section 14.01 hereof shall have occurred and be continuing, any interest on such bonds and obligations which may be received by the Trustee shall be forthwith paid to the Company. Such bonds and obligations shall be held by the Trustee as a part of the mortgaged and pledged property and subject to the same provisions hereof as the cash used to purchase the same, but upon a like request of the Company, the Trustee shall sell all or any designated part of the same and the proceeds of such sale shall be held by the Trustee subject to the same provisions hereof as the cash used by it to purchase the bonds and obligations so sold. If such sale (or any payment on the maturity of any such obligations so held by the Trustee) shall produce a net sum less than the cost of the bonds or other obligations so sold, the Company covenants that it will pay promptly to the Trustee such amount of cash as with the net proceeds from such sale or such payment will equal the cost of the bonds or other obligations so sold or paid, and if such sale (or any payment on the maturity of any such obligations so held by the Trustee) shall produce a net sum greater than the cost of the bonds or obligations so sold or paid, the Trustee shall promptly pay to the Company an amount in cash equal to such excess.
162
SECTION 21.03. In the event that any bond issued hereunder shall not be presented for payment when the principal thereof becomes due, either at maturity or otherwise, or at the date fixed for the redemption thereof, or in the event that any coupon shall not be presented for payment at the due date thereof, the Company, having deposited with the Trustee, or with a paying agent of the Company appointed herein or as permitted hereunder, for the purpose, or having left with it if previously so deposited, moneys sufficient to pay the principal of such bond (and premium, if any), together with all interest due thereon to the date of the maturity of such bond or to the date fixed for the redemption thereof, or to pay such coupon, as the case may be, for the use and benefit of the holder thereof, the Trustee or paying agent with which such deposit was made shall hold the money so deposited for the benefit of the holder of such bond or overdue coupon, as the case may be. In case the holder of any such bond or coupon shall not, within ten (10) years after such redemption or maturity date, claim the amount deposited as above stated, for the payment thereof, the Trustee and such paying agent shall, on demand pay over to the Company such amount so deposited, if the Company is not at the time in default hereunder; and the Trustee and such paying agent shall thereupon be relieved from all responsibility to the holder thereof.
SECTION 21.04. Any power, privilege or right expressly or impliedly reserved to or in any way conferred upon the Company by any provision of this Indenture, whether such power, privilege or right is in any way restricted or is unrestricted, may be in whole or in part waived or surrendered or subjected to any restriction if at the time unrestricted or to additional restriction if already restricted, and the Company may enter into any further covenants, limitations or restrictions for the benefit of any one or more series of bonds issued hereunder and provide that a breach thereof shall be equivalent to a default under this Indenture or the Company may cure any ambiguity or correct or supplement any defective or inconsistent provisions contained herein or in any supplemental indenture, by an instrument in writing executed and acknowledged by the Company in such manner as would be necessary to entitle a conveyance of real estate to record in all of the states in which any property at the time subject to the lien hereof shall be situated. The Trustee is hereby authorized to join with the Company
163
in the execution of any such instrument or instruments. Such instrument, executed and acknowledged as aforesaid, shall be delivered to the Trustee and thereupon if such instrument shall have been signed by the Trustee any modification of the provisions of these presents therein set forth, authorized by this Section, shall be binding upon the parties hereto, their successors and assigns, and the holders of the bonds and coupons hereby secured. Anything herein to the contrary notwithstanding, this Section shall not be construed to permit any act, waiver, surrender or restriction adversely affecting any bonds then outstanding hereunder.
SECTION 21.05. Subject to the provisions of Articles XVII and XVIII hereof, whenever in this Indenture either of the parties hereto is named or referred to (except in subdivision (1) of Section 1.05 hereof), this shall be deemed to include the successors or assigns of such party, and all the covenants and agreements in this Indenture contained by or on behalf of the Company or by or on behalf of the Trustee shall bind and inure to the benefit of the respective successors and assigns of such parties whether so expressed or not.
SECTION 21.06. The due date of this Indenture shall be the date of maturity of that series of bonds issued or that may at any time hereafter be issued under and secured by this Indenture which, of all the series of bonds issued hereunder, has the latest date of maturity; provided, however, that nothing in this Section shall affect or limit any of the rights or remedies of the Trustee or the bondholders prescribed in Article XIV hereof.
SECTION 21.07. If any provision of this Indenture limits, qualifies or conflicts with another provision of this Indenture which has been included pursuant to any requirements of Sections 310 to 317, inclusive, of the Trust Indenture Act of 1939, such required provisions shall control.
SECTION 21.08. Except where the context specifically requires otherwise, whenever reference is made in this Indenture to the Trust Indenture Act of 1939, reference is made to such Act as approved August 3, 1939.
164
SECTION 21.09. The titles of the several Articles of this Indenture, the marginal notations and the table of contents shall not be deemed to be any part hereof.
SECTION 21.10. This Indenture shall be simultaneously executed in several counterparts, and all such counterparts executed and delivered, each as an original, shall constitute but one and the same instrument.
IN WITNESS WHEREOF, THE LACLEDE GAS LIGHT COMPANY, party hereto of the first part, has caused its corporate name to be hereunto affixed, and this instrument to be signed and sealed by its President or a Vice-President, and its corporate seal to be attested by its Secretary or an Assistant Secretary for and in its behalf, and MISSISSIPPI VALLEY TRUST COMPANY, party hereto of the second part, in token of its acceptance of the trust hereby created, has caused its corporate name to be hereunto affixed, and this instrument to be signed and sealed by a Vice-President and its corporate seal to be attested by its Assistant Secretary.
| THE LACLEDE GAS LIGHT COMPANY, | ||
| By /s/ L.W. Childress | ||
| President | ||
| Attest: |
||
| /s/ M.P. McVey |
||
| Asst. Secretary |
MISSISSIPPI VALLEY TRUST COMPANY, | |
| By /s/ W.J. Hein C.H. | ||
| Vice President | ||
| Attest: /s/ C.M. Walter Assistant Secretary |
||
165
| STATE OF MISSOURI |
} | ss.: | ||
| CITY OF ST. LOUIS |
On this 23rd day of March, in the year 1945, before me appeared L.W. Childress, to me personally known who, being by me duly sworn, did say : that he resides at St. Louis County, MO; that he is the President of THE LACLEDE GAS LIGHT COMPANY, a corporation organized under the laws of Missouri and one of the corporations described in and which executed the foregoing instrument; that he knew the seal of said corporation; that the seal affixed to the foregoing instrument is such corporate seal; that said instrument was signed and scaled on behalf of said corporation by authority of its Board of Directors and said L.W. Childress 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 at my office in the City of St. Louis, Missouri, the day and year first above written.
| My Commission Expires: |
||
| April 16, 1948 |
Lee R. Timehurst | |
| Notary Public |
166
| STATE OF MISSOURI |
} | ss.: | ||
| CITY OF ST. LOUIS |
On this 23 day of March, in the year 1945, before me appeared W.J. Hein, to me personally known who, being by me duly sworn, did say : that he resides at St. Louis County; that he is the Vice-President of MISSISSIPPI VALLEY TRUST COMPANY, a corporation organized under the laws of Missouri and one of the corporations described in and which executed the foregoing instrument; that he knew the seal of said corporation; that the seal affixed to the foregoing instrument is such corporate seal; that said instrument was signed and scaled on behalf of said corporation by authority of its Board of Directors and said 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 at my office in the City of St. Louis, Missouri, the day and year first above written.
| My Commission Expires: |
||
| June 28, 1948 |
E.J. Heigold | |
| Notary Public |
167
Exhibit 4.11
(Conformed)
LACLEDE GAS COMPANY
TO
MERCANTILE TRUST COMPANY
NATIONAL ASSOCIATION
Trustee
Fourteenth Supplemental Indenture
Dated as of October 26, 1976
Amendment of Subparagraph (6) of
Section 1.04(I) of Mortgage and Deed of Trust
dated as of February 1, 1945
FOURTEENTH SUPPLEMENTAL INDENTURE, dated as of the 26th day of October, 1976 between LACLEDE GAS COMPANY, a corporation duly organized and existing under the laws of the State of Missouri, hereinafter sometimes called the “Company”, party of the first part, and MERCANTILE TRUST COMPANY NATIONAL ASSOCIATION, a national banking association organized under the laws of the United States, hereinafter sometimes called the “Trustee”, party of the second part.
WHEREAS, there has heretofore been duly executed and delivered the following indenture between the Company and Mississippi Valley Trust Company, to-wit:
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 St. Charles County, Missouri, in Book 498 at Page 1 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 in the office of the Recorder of Deeds of Parish of Sabine, Louisiana, under Reg. No. 227380 in Mtg. Book 108 at Page 252 and in the office of the Recorder of Deeds of Parish of DeSoto, Louisiana, under Reg. No. 378626 in Mtg. Book 115 at Page 576 and in the office of the Recorder of Deeds in Parish of St. Mary, Louisiana, under Reg. No. 124892 in Mtg. Book 343 at Page 163 and in the office of the Recorder of Deeds of Parish of Red River, Louisiana, under Reg. No. 128417 in Mtg. Book 75 at Page 318-A and is filed in the office of the Secretary of State of the State of Missouri under filing number 26,557; and
WHEREAS, Mercantile Trust Company National Association, the party of the second part to this Fourteenth Supplemental Indenture, is the present Trustee under the Original Indenture, being the successor to Mercantile Trust Company which 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, the Original Indenture has been supplemented upon the issuance of additional bonds thereunder, the most recent supplement, the Thirteenth Supplemental Indenture, having been executed as of June 1, 1975 and recorded as follows:
In the office of the Recorder of Deeds of the City of St. Louis, Missouri, in Book 70M at Page 2061 and in the office of the Recorder of Deeds of St. Louis County, Missouri, in Book 6796 at Page 1447 and in the office of the Recorder of Deeds of Boone County, Missouri, in Book 411 at Page 9 and in the office of the Recorder of Deeds of St. Charles County, Missouri, in Book 704 at Page 1739 and in the office of the Recorder of Deeds of Jefferson County, Missouri, in Book 481 at Page 292 and in the office of the Recorder of
Deeds of Ste. Genevieve County, Missouri, in Book 124 at Page 225 and in the office of the Recorder of Deeds of St. Francois County, Missouri, in Book 624 at Page 359 and in the office of the Recorder of Deeds of Iron County, Missouri, in Book 242 at Page 234 and in the office of the Recorder of Deeds of Madison County, Missouri, in Book 86 at Pages 483-532 and in the office of the Recorder of Deeds of Butler County, Missouri, in Book 547 at Page 300 and in the office of the Recorder of Deeds of Beckham County, Oklahoma, in Book 130 at Page 416 and in the office of the Recorder of Deeds of Wheeler County, Texas, in Trust Vol. 59 at Page 649 and in the office of the Recorder of Deeds of Parish of Sabine, Louisiana, under Reg. No. 227382, Mtg. Book 108 at Page 478 and in the office of the Recorder of Deeds of Parish of DeSoto, Louisiana, under Reg. No. 378628, Mtg. Book 115 at Page 803 and in the office of the Recorder of Deeds in Parish of St. Mary, Louisiana, under Reg. No. 124894, Mtg. Book 343 at Page 293 and in the office of the Recorder of Deeds in Parish of Red River, Louisiana, under Reg. No. 128419, Mtg. Book 75 at Page 546 and is filed in the office of the Secretary of State of the State of Missouri under filing number 397857; and
WHEREAS, the following acts and proceedings have occurred:
(a) By resolution adopted on February 20, 1976 the Company’s Board of Directors requested the Trustee to call a meeting of bondholders pursuant to Article XX of the Original Indenture for the purpose of voting upon a resolution to eliminate the restriction on the location of qualified “property additions” in the states of Missouri or Illinois by deleting the words “states of Missouri or Illinois” and inserting in lieu thereof “continental United States”.
(b) The requested meeting was duly called by the Trustee which has certified to the Company that at the adjourned meeting of the holders of the First Mortgage Bonds issued and secured under the Original Indenture, held on July 30, 1976, the following resolution was duly adopted by the affirmative vote of the holders of more than 66 2/3 percent in principal amount of the Bonds outstanding and entitled to vote:
RESOLVED, that the holders of the First Mortgage Bonds of the Company hereby consent that the Company and Mercantile Trust Company National Association, as Trustee (the “Trustee”), enter into a supplemental Indenture amending Subparagraph (6) of Section 1.04(I) of the Indenture dated as of February 1, 1945, as heretofore amended and supplemented, between the Company and the Trustee, by eliminating the restriction on the location of qualified “property additions” in the states of Missouri or Illinois by deleting the words “states of Missouri or Illinois” and inserting in lieu thereof “continental United States.”
(c) By resolution adopted on August 20, 1976, the Company’s Board of Directors approved the foregoing resolution adopted by the bondholders and authorized the execution of this supplemental indenture, which Board resolution has been duly certified to the Trustee;
NOW, THEREFORE, This Fourteenth Supplemental Indenture Witnesseth:
That Subparagraph (6) of Section 1.04(I) of the Original Indenture be and the same is hereby amended by deleting therefrom the words “states of Missouri or Illinois” and inserting in lieu thereof the words “continental United States” so that, as amended, said Subparagraph (6) will read as follows:
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“(6) any property located outside of the continental United States”
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 or a Vice-President, and its corporate seal to be attested by its Secretary or an Assistant Secretary, for and in its behalf; and Mercantile Trust Company National Association, 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 Secretary or an Assistant Secretary.
| LACLEDE GAS COMPANY | ||
| By | /s/ L.M. Liberman | |
| President | ||
| ATTEST: |
| /s/ |
| Secretary |
| (SEAL) |
| MERCANTILE TRUST COMPANY NATIONAL ASSOCIATION, | ||
| Trustee | ||
| By | /s/ O.A. Johnson, Jr. | |
| Vice-President | ||
| ATTEST: |
| /s/ |
| Ass’t. Secretary |
| (SEAL) |
- 3 -
| State of Missouri | ) | |||||
| City of St. Louis | ) | ss. |
On this 26th day of October, 1976, before me appeared L. M. Liberman, 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 L. M. Liberman 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 September 24, 1979.
| /s/ Dorothy Paffrath |
|
DOROTHY PAFFRATH |
| Notary for the County of St. Louis which adjoins the City of St. Louis |
(SEAL)
- 4 -
| State of Missouri | ) | |||||
| City of St. Louis | ) | ss. |
On this 26th day of October, 1976, before me appeared O. A. Johnson, Jr., to me personally known, who, being by me duly sworn did say that he is a Vice-President of Mercantile Trust Company National Association, 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 O. A. Johnson, Jr., 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 January 24, 1980.
| /s/ Dorothy A. Eberhardt |
|
DOROTHY A. EBERHARDT |
| Notary Public in and for the City of St. Louis, Missouri |
- 5 -
| State of Missouri | ) | |||||
| City of St. Louis | ) | ss. |
I, the undersigned, Recorder of Deeds for said City and State, do hereby certify that the foregoing and annexed instrument of writing was filed for record in my office, on the 27th day of October, A.D., 1976, at 9:49 o’clock A.M., and is truly recorded in Book 108M Page 131.
Witness my hand and official seal on the day and year aforesaid.
| Francis R. Slay |
| Recorder |
(SEAL)
| State of Missouri | ) | |||||
| County of St. Louis | ) | ss. |
I, the undersigned Recorder of Deeds for said County and State, do hereby certify that the foregoing and annexed instrument of writing was filed for record in my office on the 27 day of October AD 1976 at 9:07 o’clock A.M., and is truly recorded in Book 6907 Page 1970.
Witness my hand and official seal on the day and year aforesaid.
| Wm. E. Fauke |
| Recorder of Deeds |
| Frank Beekler |
| Deputy Recorder |
(SEAL)
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| State of Missouri | ) | |||||
| County of Boone | ) | ss. |
I, the undersigned Recorder of Deeds for said County and State do hereby certify that the foregoing instrument of writing was filed for record in my office on the 1st day of November A.D., 1976 at 11 o’clock and 36 minutes A.M., and is truly recorded in Book 416 page 192.
Witness my hand and official seal on the day and year aforesaid.
| Betty Saunders |
| Recorder |
(SEAL)
| State of Missouri | ) | |||||
| County of St. Charles | ) | ss. |
I, the undersigned Recorder of Deeds for said County and State, do hereby certify that the foregoing and annexed instrument of writing was filed for record in my office on the 27th day of October, A.D., 1976, at 1:30 o’clock P.M., and is truly recorded in Book 745, Page 40.
Witness my hand and official seal on the day and year aforesaid.
| Arthur A. Tegethoff |
| Recorder |
(SEAL)
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| State of Missouri | ) | |||||
| County of Jefferson | ) | ss. |
I hereby certify that this instrument was FILED FOR RECORD at the date and time shown hereon and is recorded in Book 507, Page 669.
| RICHARD KING |
| Recorder of Deeds |
| MARCELLA WELSHON |
| Deputy |
FILED FOR RECORD at 3 o’clock 08 min. P.M. Oct. 28, 1976.
| RICHARD KING |
| Recorder |
(SEAL)
| State of Missouri | ) | |||||
| County of Ste. Genevieve | ) | ss. |
I hereby certify that this instrument was FILED FOR RECORD on Oct. 28, 1976 at 3 o’clock 05 min. P.M. and is recorded in Book 241 Page 279.
| VINCENT P. SEXAUER |
| Recorder of Deeds |
| JEANETTE BASLER |
| Deputy |
(SEAL)
- 8 -
| State of Missouri | ) | |||||
| County of St. Francois | ) | ss. |
I hereby certify that this instrument was FILED FOR RECORD at the date and time shown hereon and is recorded in Book 654, Page 132.
| M. C. KENNON |
| Recorder of Deeds |
| VIVIAN THOMAS |
| Deputy |
Filed 10 o’clock 10 minutes A.M. Oct. 28, 1976.
| M. C. KENNON |
| Recorder |
(SEAL)
| State of Missouri | ) | |||||
| County of Iron | ) | ss. | IN THE RECORDER’S OFFICE | |||
I, Roberta Miller, Recorder of said County, do hereby certify that the within instrument of writing was, on the 28th day of October A.D. 1976, at 1 o’clock 30 minutes P.M., duly filed for record in this office, and is recorded in the Records of this office, in Book 248 at Page 795.
In Witness Whereof, I have hereunto set my hand and affixed my official seal, at Ironton, Missouri this 10th day of November A.D. 1976.
| ROBERTA MILLER |
| Recorder |
(SEAL)
- 9 -
| State of Missouri | ) | |||||
| County of Madison | ) | ss. |
I, the undersigned, Recorder of Deeds for Madison County, Missouri hereby, certify that the foregoing instrument of writing was Filed for record in my office on the 28th day of October A.D. 1976 at 1:00 o’clock P.M. and is truly recorded in Book 89 Pages 694-700.
Witness my hand and official seal on 28th day of October 1976.
| DONALD E. PHIPPS |
| Recorder |
(SEAL)
| State of Missouri | ) | |||||
| County of Butler | ) | ss. |
I hereby certify that this instrument was FILED FOR RECORD at the date and time shown hereon and is recorded in Book 565, Page 57.
| ROBERT A. SEIFERT |
| Recorder of Deeds |
Filed for record this 28th of October A.D. 1976 at 2 o’clock 25 minutes P.M.
| ROBERT A. SEIFERT |
| Recorder |
(SEAL)
Fourteenth Supplemental Indenture dated as of October 26, 1976, by Laclede Gas Company to Mercantile Trust Company National Association, filed in the Office of the Secretary of State, State of Missouri under the Uniform Commercial Code at 9:50 o’clock A.M., November 1, 1976 under Filing Number 479397.
- 10 -
| State of Oklahoma | ) | |||||
| County of Beckham | ) | ss. |
This instrument was filed for record on the 15 day of Nov., 1976 at 9 o’clock a.m., and duly recorded in book 315 page 146 of the Mtg. records of this office.
| PAULINE CARTER |
| County Clerk |
| PAULINE CARTER |
| Deputy |
| The State of Texas | ) | |||||
| County of Wheeler | ) | ss. |
I, Mary Wofford, County Clerk, in and for said County, do hereby certify that the foregoing instrument with its certificate of authentication was filed for record in my office the 4 day of November, 1976 at 11:00 o’clock A.M. and duly recorded in the Deed Records of said County in of Trust Vol. 260 on Page 991. Witness my hand and seal of the County Court of said County at office in Wheeler, Texas, the day and year last above written.
| MARY WOFFORD |
| Clerk, County Court, Wheeler County, Texas |
| SALLY LEDBETTER |
| Deputy |
(SEAL)
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| State of Louisiana | ) | |||||
| Parish of Sabine | ) | ss. |
I, Dollie Knippers, Dy. Clerk of Court in and for the Parish and State aforesaid, do hereby certify that the following instrument was filed on October 29, 1976, under the Registry Number indicated and that same has been recorded in the Mortgage Records as set out below, to wit:
Fourteenth Supplemental Indenture dated as of October 26, 1976, from Laclede Gas Company to Mercantile Trust Company National Association, as Trustee:
Reg. No. 233001, Mtg. Book 114, Page 208.
This 29th day of October, 1976.
| DOLLIE KNIPPERS |
| Cy. Clerk of Court in and for the State and Parish first hereinabove stated. |
| State of Louisiana | ) | |||||
| Parish of DeSoto | ) | ss. |
I, Beverly Bolton, Deputy Clerk of Court in and for the Parish and State aforesaid, do hereby certify that the following instrument was filed on October 29, 1976, under the Registry Number indicated and that same has been recorded in the Mortgage Records as set out below, to wit:
Fourteenth Supplemental Indenture dated as of October 26, 1976, from Laclede Gas Company to Mercantile Trust Company National Association, as Trustee:
Reg. No. 389929, Mtg. Book 122, Page 15.
This 29th day of October, 1976.
| BEVERLY BOLTON |
| Cy. Clerk of Court in and for the State and Parish first herein above stated. |
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| State of Louisiana | ) | |||||
| Parish of St. Mary | ) | ss. |
I, Sylvia L. Chauvin, Deputy Clerk of Court in and for the Parish and State aforesaid, do hereby certify that the following instrument was filed on October 29th, 1976, under the Registry Number indicated and that same has been recorded in the Mortgage Records as set out below, to wit:
Fourteenth Supplemental Indenture dated as of October 26, 1976, from Laclede Gas Company to Mercantile Trust Company National Association, as Trustee:
Reg. No. 129,850, Mtg. Book 360, Page 593.
This 29th day of October, 1976.
| SYLVIA CHAUVIN |
| Dy. Clerk of Court in and for the State and Parish first herein above stated. |
| State of Louisiana | ) | |||||
| Parish of Red River | ) | ss. |
I, Judith W. Spruill, Chief Deputy Clerk of Court in and for the Parish and State aforesaid, do hereby certify that the following instrument was filed on October 29, 1976, under the Registry Number indicated and that same has been recorded in the Mortgage Records as set out below, to wit:
Fourteenth Supplemental Indenture dated as of October 26, 1976, from Laclede Gas Company to Mercantile Trust Company National Association, as Trustee:
Reg. No. 131,795, Mtg. Book 79, Page 21.
This 29th day of October, 1976.
| JUDITH W. SPRUILL |
| Chief Deputy Clerk of Court in and for the State and Parish first hereinabove stated. |
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Exhibit 5.1
SPIRE INC.
700 Market Street
St. Louis, MO 63101
Mark C. Darrell
Senior Vice President,
Chief Legal and Compliance Officer
May 9, 2022
Spire Inc.
700 Market Street
St. Louis, Missouri 63101
| Re: | Shelf Registration Statement on Form S-3 |
Ladies and Gentlemen:
I am Senior Vice President, Chief Legal and Compliance Officer of Spire Inc., a Missouri corporation (the “Company”), and in that capacity I am familiar with the preparation of the registration statement on Form S-3, as may be amended from time to time (the “Registration Statement”), filed by the Company and its wholly owned subsidiary, Spire Missouri Inc., a Missouri corporation, with the Securities and Exchange Commission (the “Commission”) pursuant to the Securities Act of 1933, as amended (the “Act”), on the date hereof. The Registration Statement relates to, among other things, the offering and sale from time to time, as set forth in the Registration Statement, the form of prospectus relating to the Company contained therein (the “Prospectus”) and one or more supplements, free writing prospectuses or other offering materials with respect to the Prospectus (each, a “Prospectus Supplement”), by the Company of an unspecified number or amount and aggregate initial offering price of securities (the “Securities”) consisting of (a) senior debt securities, (b) junior subordinated debt securities (together with clause (a), the “Debt Securities”), (c) shares of the Company’s preferred stock, $25.00 par value per share (the “Preferred Stock”), (d) shares of the Company’s common stock, $1.00 par value per share (the “Common Stock”), (e) the Company’s depositary shares representing fractional shares of Preferred Stock (the “Depositary Shares”), (f) stock purchase contracts of the Company for purchase and sale of Preferred Stock or Common Stock (the “Stock Purchase Contracts”) and (g) stock purchase units of the Company consisting of (x) a Stock Purchase Contract and (y) a beneficial interest in Debt Securities or debt obligations of third parties (including U.S. Treasury Securities) (the “Stock Purchase Units”). The Securities may be issued, sold and delivered from time to time under the Registration Statement, the Prospectus and one or more Prospectus Supplements pursuant to Rule 415 under the Act. This opinion is being furnished in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Act.
I have examined originals or certified copies of (a) the Registration Statement, (b) the Indenture (For Unsecured Debt Securities), dated as of August 19, 2014, between the Company and Regions Bank, as successor trustee (the “Senior Debt Trustee”), under which the Senior Debt Securities will be issued (other than Senior Debt Securities to be issued as part of Stock Purchase
Units), filed as Exhibit 4.5 to the Registration Statement (as amended, supplemented or modified from time to time, the “Senior Debt Indenture”), (c) the Indenture (For Unsecured Debt Securities), dated as of February 16, 2021, between the Company and U.S. Bank National Association, as trustee (the “Stock Purchase Units Senior Debt Trustee”), under which the Senior Debt Securities to be issued as part of Stock Purchase Units will be issued, filed as Exhibit 4.29 to the Registration Statement (as amended, supplemented or modified from time to time, the “Stock Purchase Units Senior Debt Indenture”), (d) the Junior Subordinated Debt Indenture, between the Company and U.S. Bank, National Association, as trustee (the “Subordinated Debt Trustee” and together with the Senior Debt Trustee and the Stock Purchase Units Senior Debt Trustee, each a “Trustee”), under which the Junior Subordinated Debt Securities will be issued, filed as Exhibit 4.8 to the Registration Statement (as amended, supplemented or modified from time to time, the “Subordinated Debt Indenture” and together with the Senior Debt Indenture and the Stock Purchase Units Senior Debt Indenture, each an “Indenture”), (e) the Form of Purchase Contract and Pledge Agreement, between the Company and U.S. Bank National Association, as purchase contract agent, collateral agent, custodial agent and securities intermediary, under which the Stock Purchase Contracts and Stock Purchase Units will be issued, filed as Exhibit 4.9 to the Registration Statement (the “Stock Purchase Contract Agreement”) and (f) such corporate records of the Company and other certificates and documents of officials of the Company, public officials and others as I have deemed appropriate for purposes of this letter. I have assumed the genuineness of all signatures, the legal capacity of all natural persons, the authenticity of all documents submitted to me as originals and the conformity to authentic original documents of all copies submitted to me as conformed, certified or reproduced copies. As to various questions of fact relevant to this letter, I have relied, without independent investigation, upon certificates of public officials and certificates of officers of the Company, all of which I assume to be true, correct and complete.
On the basis of the foregoing and assuming that (a) the Registration Statement, and any amendments thereto, will have become effective under the Act and will remain effective and shall not have been terminated or rescinded through any offer and sale of Securities; (b) a Prospectus Supplement describing each class and/or series of Securities offered pursuant to the Registration Statement will have been prepared and filed with the Commission under the Act; (c) the Company will have offered, issued and sold the Securities in the manner contemplated by the Registration Statement and the relevant Prospectus Supplement and otherwise in compliance with all applicable federal and state securities laws, and the terms of any such Securities will not violate any applicable law or any debt securities of the Company or result in a default or breach of any agreement binding upon the Company, and will comply with any requirement or restriction imposed by any court or other governmental body having jurisdiction over it; (d) the Board of Directors of the Company (or any authorized committee thereof (that board or any such committee being the “Board”)) will have taken all corporate action necessary to authorize and approve the execution, authentication, issuance and delivery of those Securities and approve the terms of the offering and sale thereof and the definitive terms of each class and/or series of Securities will have been established in accordance with the authorizing resolutions of the Board, the Company’s Articles of Incorporation and applicable law; (e) any Securities, including Common Stock or Preferred Stock issuable upon conversion, exchange, or exercise of any other security, will have been duly authorized and reserved for issuance from the applicable class of capital stock of the Company, in each case within the limits of such class of capital stock then remaining authorized but unreserved and unissued; (f) with respect to any Depositary Shares, a deposit agreement (the “Deposit Agreement”) relating to such Depositary Shares and the related receipts evidencing such Depositary Shares (“Depositary
2
Receipts”) and not including any provision that is unenforceable against the Company will have been duly authorized, executed and delivered by the Company and a bank or trust company, as depositary (the “Depositary”), to be selected by the Company; (g) with respect to any Debt Securities, (i) the Indenture with respect thereto and the Trustee thereunder will have become qualified under the Trust Indenture Act of 1939, as amended, as applicable, and (ii) the applicable Indenture and any supplemental indenture or officer’s certificate delivered pursuant thereto establishing such Debt Securities will have been, authorized, executed and delivered by the Company and the applicable Trustee; and (h) the applicable Securities have been issued and sold upon the terms specified in such resolutions of the Board and in compliance with applicable federal and state securities laws; I am of the opinion that:
| 1. | The Common Stock will be validly issued, fully paid and nonassessable upon receipt by the Company of the consideration therefor as contemplated by the Prospectus and Registration Statement and approved by the Board. |
| 2. | The Preferred Stock will be validly issued, fully paid and nonassessable when all other necessary corporate action has been taken to fix the terms thereof and to authorize the execution and filing of a Certificate of Designations relating thereto with the Secretary of State of the State of Missouri, such Certificate of Designations having been executed by duly authorized officers of the Company and so filed by the Company, all in accordance with the laws of the State of Missouri, and upon receipt by the Company of the consideration therefor as contemplated by the Prospectus and Registration Statement and approved by the Board. |
| 3. | The Depositary Shares will be duly authorized when all other necessary corporate action has been taken to authorize and approve (i) the terms of the offering thereof and related matters, (ii) the action with respect to the Preferred Stock underlying such Depositary Shares referred to in paragraph 2 above and the deposit of such Preferred Stock with the Depositary under the applicable Deposit Agreement, (iii) the execution and delivery of the applicable Deposit Agreement and (iv) the issuance and delivery of such Depositary Shares, with Depositary Receipts representing such Depositary Shares duly executed, countersigned, registered and delivered in accordance with the terms of the applicable Deposit Agreement and the terms of any applicable definitive purchase, underwriting or similar agreement. |
| 4. | The Debt Securities will be duly authorized and legally issued when forms of such Debt Securities complying with the terms of the applicable Indenture and evidencing such Debt Securities will have been duly executed, authenticated, and delivered in accordance with the provisions of such Indenture, the applicable resolutions of the Board or supplemental indenture or officer’s certificate establishing such Debt Securities and the applicable definitive purchase, underwriting or similar agreement therefore. |
| 5. | The Stock Purchase Contracts will be duly authorized and legally issued and will constitute the binding obligations of the Company in accordance with their terms when all other necessary corporate action has been taken to authorize and approve the execution and delivery of the Stock Purchase Contracts and the applicable Stock |
3
| Purchase Contract Agreement, the Stock Purchase Contracts have been duly executed, authenticated, issued and delivered in accordance with the applicable Stock Purchase Contract Agreement, and the Company shall have received the consideration therefor as contemplated by the Prospectus and Registration Statement and approved by the Board. |
| 6. | The Stock Purchase Units will be duly authorized and legally issued and will constitute the binding obligations of the Company in accordance with their terms when all other necessary corporate action has been taken to authorize and approve (i) the issuance and terms of the Stock Purchase Units, (ii) the execution and delivery of the applicable Stock Purchase Contract Agreement and the Stock Purchase Contracts which are a component of the Stock Purchase Units, or (iii) the issuance and terms of the Debt Securities or the debt obligations of third parties, which may each be a component of the Stock Purchase Units, the terms of the offering thereof and related matters, and the Stock Purchase Units, the Stock Purchase Contracts, the Debt Securities, and debt obligations of third parties, as applicable, shall be duly executed, authenticated, issued and delivered in accordance with the provisions of the applicable Stock Purchase Contract Agreement (in the case of the Stock Purchase Contracts), the applicable Indenture (in the case of Debt Securities), or applicable indenture (in the case of debt obligations of third parties), and in each case the payment of the consideration therefor shall have been received as contemplated by the Prospectus and Registration Statement and approved by the Board. |
The opinions and other matters in this letter are qualified in their entirety and subject to the following:
| A. | I express no opinion as to the laws of any jurisdiction other than the laws of the State of Missouri. |
| B. | This opinion letter is limited to the matters expressly stated herein and no opinion is to be inferred or implied beyond the opinion expressly set forth herein. I undertake no, and hereby disclaim any, obligation to make any inquiry after the date hereof or to advise you of any changes in any matter set forth herein, whether based on a change in the law, a change in any fact relating to the Company or any other person or any other circumstance. |
4
I hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the use of my name in the Prospectus or any Prospectus Supplement forming a part of the Registration Statement under the caption “Legal Matters.” In giving this consent, I do not thereby admit that I am within the category of persons whose consent is required under Section 7 of the Act and the rules and regulations thereunder.
| Very truly yours, |
| /s/ Mark C. Darrell |
| Mark C. Darrell |
5
Exhibit 5.2
SPIRE INC.
700 Market Street
St. Louis, MO 63101
Mark C. Darrell
Senior Vice President,
Chief Legal and Compliance Officer
May 9, 2022
Spire Missouri Inc.
700 Market Street
St. Louis, Missouri 63101
| Re: | Shelf Registration Statement on Form S-3 |
Ladies and Gentlemen:
I am Senior Vice President, Chief Legal and Compliance Officer of Spire Inc., a Missouri corporation and the parent company of Spire Missouri Inc., a Missouri corporation (the “Company”). I am responsible for the legal affairs of the Company and, in that capacity, I am familiar with the preparation of the registration statement on Form S-3, as may be amended from time to time (the “Registration Statement”), filed with the Securities and Exchange Commission (the “Commission”) pursuant to the Securities Act of 1933, as amended (the “Act”), on the date hereof. The Registration Statement relates to, among other things, the offering and sale from time to time, as set forth in the Registration Statement, the form of prospectus relating to the Company contained therein (the “Prospectus”) and one or more supplements, free writing prospectuses or other offering materials with respect to the Prospectus (each, a “Prospectus Supplement”), by the Company of an unspecified number or amount and aggregate initial offering price of securities (the “Securities”) consisting of (a) first mortgage bonds (the “Bonds”), (b) shares of the Company’s preferred stock, $25.00 par value per share (the “Preferred Stock”), (c) the Company’s depositary shares representing fractional shares of Preferred Stock (the “Depositary Shares”) and (d) senior unsecured debt securities (the “Unsecured Debt Securities”). The Securities may be issued, sold and delivered from time to time under the Registration Statement, the Prospectus and one or more Prospectus Supplements pursuant to Rule 415 under the Act. This opinion is being furnished in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Act.
I have examined originals or certified copies of (a) the Registration Statement, (b) the Form of Indenture (For Unsecured Debt Securities), between Spire Missouri Inc. and a trustee to be appointed by Spire Missouri Inc. prior to the issuance of any Debt Securities thereunder (the “Trustee”), under which the Debt Securities will be issued, filed as Exhibit 4.24 to the Registration Statement (as amended, supplemented or modified from time to time, the “Indenture”), (c) the Mortgage and Deed of Trust, dated as of February 1, 1945 (which has been filed as Exhibit 4.10 to the Registration Statement), as previously supplemented by certain supplemental indentures thereto (which have been filed as Exhibits 4.11 through 4.22 to the Registration Statement) (the “Mortgage and Deed of Trust”) and (d) such corporate records of the Company and other
certificates and documents of officials of the Company, public officials and others as I have deemed appropriate for purposes of this letter. I have assumed the genuineness of all signatures, the legal capacity of all natural persons, the authenticity of all documents submitted to me as originals and the conformity to authentic original documents of all copies submitted to me as conformed, certified or reproduced copies. As to various questions of fact relevant to this letter, I have relied, without independent investigation, upon certificates of public officials and certificates of officers of the Company, all of which I assume to be true, correct and complete.
On the basis of the foregoing and assuming that (a) the Registration Statement, and any amendments thereto, will have become effective under the Act and will remain effective and shall not have been terminated or rescinded through any offer and sale of Securities; (b) a Prospectus Supplement describing each class and/or series of Securities offered pursuant to the Registration Statement will have been prepared and filed with the Commission under the Act; (c) the Company will have offered, issued and sold the Securities in the manner contemplated by the Registration Statement and the relevant Prospectus Supplement and otherwise in compliance with all applicable federal and state securities laws, and the terms of any such Securities will not violate any applicable law or any debt securities of the Company or result in a default or breach of any agreement binding upon the Company, and will comply with any requirement or restriction imposed by any court or other governmental body having jurisdiction over it; (d) the Board of Directors of the Company (or any authorized committee thereof (that board or any such committee being the “Board”)) will have taken all corporate action necessary to authorize and approve the execution, authentication, issuance and delivery of those Securities and approve the terms of the offering and sale thereof and the definitive terms of each class and/or series of Securities will have been established in accordance with the authorizing resolutions of the Board, the Company’s Restated Articles of Incorporation and applicable law; (e) any Preferred Stock issuable upon conversion, exchange, or exercise of any other security, will have been duly authorized and reserved for issuance from the Preferred Stock of the Company within the limits of the Preferred Stock then remaining authorized but unreserved and unissued; (f) with respect to any Depositary Shares, a deposit agreement (the “Deposit Agreement”) relating to such Depositary Shares and the related receipts evidencing such Depositary Shares (“Depositary Receipts”) and not including any provision that is unenforceable against the Company will have been duly authorized, executed and delivered by the Company and a bank or trust company, as depositary (the “Depositary”), to be selected by the Company; (g) with respect to any Unsecured Debt Securities, (i) the Indenture and the Trustee thereunder will have become qualified under the Trust Indenture Act of 1939, as amended, as applicable, and (ii) the Indenture and any supplemental indenture or officer’s certificate delivered pursuant thereto establishing such Unsecured Debt Securities will have been, authorized, executed and delivered by the Company and the Trustee; (h) an order of the Missouri Public Service Commission relating to the issuance of the applicable Securities, shall have become and remain effective and the Company shall have complied with the terms and conditions of such order; and (i) the applicable Securities have been issued and sold upon the terms specified in such resolutions of the Board and in any applicable regulatory approvals and in compliance with applicable federal and state securities laws; I am of the opinion that:
| 1. | The Bonds of each series will be duly authorized and legally issued and will constitute the binding obligations of the Company when an appropriate supplemental indenture shall have been duly executed and delivered relating thereto (the form of which has been filed as Exhibit 4.23 to the Registration Statement), the Bonds of such series |
2
| have been duly executed, authenticated, issued, and delivered in accordance with the Mortgage and Deed of Trust, and the supplemental indenture relating thereto, and the Company has received the consideration therefore as contemplated by the Prospectus and the Registration Statement and approved by the Board. |
| 2. | The Preferred Stock will be validly issued, fully paid and nonassessable when all other necessary corporate action has been taken to fix the terms thereof and to authorize the execution and filing of a Certificate of Designations relating thereto with the Secretary of State of the State of Missouri, such Certificate of Designations having been executed by duly authorized officers of the Company and so filed by the Company, all in accordance with the laws of the State of Missouri, and upon receipt by the Company of the consideration therefor as contemplated by the Prospectus and Registration Statement and approved by the Board. |
| 3. | The Depositary Shares will be duly authorized when all other necessary corporate action has been taken to authorize and approve (i) the terms of the offering thereof and related matters, (ii) the action with respect to the Preferred Stock underlying such Depositary Shares referred to in paragraph 2 above and the deposit of such Preferred Stock with the Depositary under the applicable Deposit Agreement, (iii) the execution and delivery of the applicable Deposit Agreement and (iv) the issuance and delivery of such Depositary Shares, with Depositary Receipts representing such Depositary Shares having been duly executed, countersigned, registered and delivered in accordance with the terms of the applicable Deposit Agreement and the terms of any applicable definitive purchase, underwriting or similar agreement. |
| 4. | The Unsecured Debt Securities will be duly authorized and legally issued when forms of such Unsecured Debt Securities complying with the terms of the Indenture and evidencing such Unsecured Debt Securities will have been duly executed, authenticated, issued and delivered in accordance with the provisions of the Indenture, the applicable resolutions of the Board or supplemental indenture or officer’s certificate establishing such Unsecured Debt Securities and the applicable definitive purchase, underwriting or similar agreement therefore. |
The opinions and other matters in this letter are qualified in their entirety and subject to the following:
| A. | I express no opinion as to the laws of any jurisdiction other than the laws of the State of Missouri. |
| B. | This opinion letter is limited to the matters expressly stated herein and no opinion is to be inferred or implied beyond the opinion expressly set forth herein. I undertake no, and hereby disclaim any, obligation to make any inquiry after the date hereof or to advise you of any changes in any matter set forth herein, whether based on a change in the law, a change in any fact relating to the Company or any other person or any other circumstance. |
3
I hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the use of my name in the Prospectus or any Prospectus Supplement forming a part of the Registration Statement under the caption “Legal Matters.” In giving this consent, I do not thereby admit that I am within the category of persons whose consent is required under Section 7 of the Act and the rules and regulations thereunder.
| Very truly yours, |
| /s/ Mark C. Darrell |
| Mark C. Darrell |
4
Exhibit 5.3
May 9, 2022
Spire Inc.
700 Market Street
St. Louis, Missouri 63101
| Re: | Spire Inc. |
Shelf Registration Statement on Form S-3
Ladies and Gentlemen:
We have acted as special counsel to Spire Inc., a Missouri corporation (“Spire”), in connection with the Registration Statement on Form S-3, as may be amended from time to time (the “Registration Statement”), filed by Spire and its wholly owned subsidiary, Spire Missouri Inc., a Missouri corporation, with the Securities and Exchange Commission (the “Commission”) pursuant to the Securities Act of 1933, as amended (the “Act”), on the date hereof. The Registration Statement relates to, among other things, the offering and sale from time to time, as set forth in the Registration Statement, the form of prospectus relating to Spire contained therein (the “Prospectus”) and one or more supplements, free writing prospectuses or other offering materials with respect to the Prospectus (each, a “Prospectus Supplement”), by Spire of an unspecified number or amount and aggregate initial offering price of securities (the “Securities”) consisting of (a) senior debt securities (the “Senior Debt Securities”), (b) junior subordinated debt securities (the “Junior Subordinated Debt Securities” and, together with the Senior Debt Securities, the “Debt Securities”), (c) shares of Spire’s preferred stock, $25.00 par value per share (“Preferred Stock”), (d) shares of Spire’s common stock, $1.00 par value per share (“Common Stock”), (e) Spire’s depositary shares representing fractional shares of Preferred Stock (the “Depositary Shares”), (f) stock purchase contracts of Spire for purchase and sale of Preferred Stock or Common Stock (the “Stock Purchase Contracts”) and (g) stock purchase units of Spire consisting of (x) a Stock Purchase Contract and (y) a beneficial interest in Debt Securities or debt obligations of third parties (including U.S. Treasury Securities) (the “Stock Purchase Units”). The Securities may be issued, sold and delivered from time to time under the Registration Statement, the Prospectus and one or more Prospectus Supplements pursuant to Rule 415 under the Act. This opinion is being furnished in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Act.
We have examined originals or certified copies of (a) the Registration Statement, (b) the Indenture (For Unsecured Debt Securities), dated as of August 19, 2014, between Spire and Regions Bank, as successor trustee (the “Senior Debt Trustee”), under which the Senior Debt Securities will be issued (other than Senior Debt Securities to be issued as part of Stock Purchase
One Bryant Park | New York, New York 10036-6745 | 212.872.1000 | fax: 212.872.1002 | akingump.com
Spire Inc.
May 9, 2022
Page 2
Units), filed as Exhibit 4.5 to the Registration Statement (as amended, supplemented or modified from time to time, the “Senior Debt Indenture”), (c) the Indenture (For Unsecured Debt Securities), dated as of February 16, 2021, between the Company and U.S. Bank National Association, as trustee (the “Stock Purchase Units Senior Debt Trustee”), under which the Senior Debt Securities to be issued as part of Stock Purchase Units will be issued, filed as Exhibit 4.29 to the Registration Statement (as amended, supplemented or modified from time to time, the “Stock Purchase Units Senior Debt Indenture”), (d) the Junior Subordinated Debt Indenture, dated as of June 11, 2014, between Spire and U.S. Bank National Association, as trustee (the “Subordinated Debt Trustee” and together with the Senior Debt Trustee and the Stock Purchase Units Senior Debt Trustee, each a “Trustee”), under which the Junior Subordinated Debt Securities will be issued, filed as Exhibit 4.8 to the Registration Statement (as amended, supplemented or modified from time to time, the “Subordinated Debt Indenture” and together with the Senior Debt Indenture and the Stock Purchase Units Senior Debt Indenture, each an “Indenture”), (e) the Form of Purchase Contract and Pledge Agreement, between Spire and U.S. Bank National Association, as purchase contract agent, collateral agent, custodial agent and securities intermediary (the “Purchase Contract Agent”), under which the Stock Purchase Contracts and Stock Purchase Units will be issued, filed as Exhibit 4.9 to the Registration Statement (the “Stock Purchase Contract Agreement”) and (f) such corporate records of Spire and other certificates and documents of officials of Spire, public officials and others as we have deemed appropriate for purposes of this letter. We have assumed the genuineness of all signatures, the legal capacity of all natural persons, the authenticity of all documents submitted to us as originals, the conformity to authentic original documents of all copies submitted to us as conformed, certified or reproduced copies, and that the Debt Securities will conform to the applicable specimen thereof to be filed as an exhibit to the Registration Statement or otherwise incorporated by reference therein. As to various questions of fact relevant to this letter, we have relied, without independent investigation, upon certificates of public officials and certificates of officers of Spire, all of which we assume to be true, correct and complete.
In addition, this opinion assumes that:
| (a) | the Registration Statement and any amendments thereto (including any post-effective amendments) will have become effective under the Act and will remain effective and shall not have been terminated or rescinded through any offer and sale of Securities; |
| (b) | for each series of Debt Securities or Securities constituting Depositary Shares, Stock Purchase Contracts or Stock Purchase Units that Spire offers by means of a Prospectus, Spire will have prepared and filed with the Commission under the Act a Prospectus Supplement which describes such Securities; |
Spire Inc.
May 9, 2022
Page 3
| (c) | Spire will have offered, issued and sold the Debt Securities or Securities constituting Depositary Shares, Stock Purchase Contracts or Stock Purchase Units in the manner contemplated by the Registration Statement and the relevant Prospectus Supplement and otherwise in compliance with all applicable federal and state securities laws, and the terms of any such Securities will not violate any applicable law or any debt securities of Spire or result in a default or breach of any agreement binding upon Spire, and will comply with any requirement or restriction imposed by any court or other governmental body having jurisdiction over it; |
| (d) | in the case of any series of Debt Securities or Securities constituting Depositary Shares, Stock Purchase Contracts or Stock Purchase Units which Spire issues and sells, the Board of Directors of Spire (or any authorized committee thereof (that board or any such committee being the “Board”)) will have taken all corporate action necessary to authorize and approve the execution, authentication, issuance and delivery of those Securities (including any Debt Securities constituting a component of any Stock Purchase Units) and the terms of the offering and sale thereof; |
| (e) | the terms of the Debt Securities or Securities constituting Depositary Shares, Stock Purchase Contracts or Stock Purchase Units and of their issuance and sale will have been established in conformity with and so as not to violate, or result in a default under or breach of, Spire’s Articles of Incorporation, including any amendments thereto, Spire’s Amended Bylaws, including any amendments thereto, or other organizational documents of Spire or any applicable law or any agreement or instrument binding on Spire and so as to comply with any order, requirement or restriction imposed by any court or governmental or regulatory body having jurisdiction over Spire and in conformity with the applicable resolutions of the Board and any applicable Indenture, supplemental indenture, officer’s certificate, Deposit Agreement (as defined below) or Stock Purchase Contract Agreement relating to such Securities; |
| (f) | Spire and the initial purchasers of any series of Debt Securities or Securities constituting Depositary Shares, Stock Purchase Contracts or Stock Purchase Units will have duly authorized, executed and delivered a definitive purchase, underwriting or similar agreement relating to those Debt Securities or Securities constituting Depositary Shares, Stock Purchase Contracts or Stock Purchase Units, which shall have been duly authorized, executed and delivered by Spire and the other parties thereto; |
| (g) | in the case of any Debt Securities or Securities constituting Depositary Shares, Stock Purchase Contracts or Stock Purchase Units issuable on the conversion, exchange, redemption or exercise of other Securities, those Debt Securities or Securities constituting Depositary Shares, Stock Purchase Contracts or Stock Purchase Units will be available for issuance on that conversion, exchange, redemption or exercise; |
Spire Inc.
May 9, 2022
Page 4
| (h) | at the time of the issuance of the Debt Securities or Securities constituting Depositary Shares, Stock Purchase Contracts or Stock Purchase Units, (i) Spire will be a corporation existing and in good standing under the laws of the State of Missouri and (ii) Spire will have all necessary corporate power and authorization; |
| (i) | at the time of execution, authentication, issuance and delivery of any Debt Securities of any series (including any Debt Securities constituting a component of any Stock Purchase Units), (i) the Board will have designated and established the terms of the series to which those Debt Securities belong in accordance with the applicable Indenture and those Debt Securities will not include any provision that is unenforceable; (ii) the applicable Indenture and the Trustee under such Indenture will have become qualified under the Trust Indenture Act of 1939, as amended, as applicable; (iii) the applicable Indenture and any supplemental indenture to such Indenture or officer’s certificate delivered pursuant to such Indenture establishing such Debt Securities will have been, authorized, executed and delivered by Spire and the applicable Trustee; (iv) forms of Debt Securities complying with the terms of the applicable Indenture and evidencing those Debt Securities will have been executed, authenticated, issued and delivered in accordance with the provisions of such Indenture, the applicable resolutions of the Board, any supplemental indenture or officer’s certificate establishing such Debt Securities and the applicable definitive purchase, underwriting or similar agreement therefor; and (v) the applicable Indenture, including any supplemental indenture or officer’s certificate establishing such Debt Securities, will be a valid and binding obligation of the applicable Trustee, enforceable against such Trustee in accordance with its terms, and shall purport to be governed by the laws of the State of New York; |
| (j) | in the case of Depositary Shares, (i) the Board will have designated and established the terms of such Depositary Shares and the applicable deposit agreement (the “Deposit Agreement”) relating to such Depositary Shares and the related receipts evidencing such Depositary Shares (“Depositary Receipts”) and such Depositary Shares, Deposit Agreement and Depositary Receipts will not include any provision that is unenforceable; (ii) the applicable Deposit Agreement will have been duly authorized, executed and delivered by Spire and a bank or trust company, as depositary (the “Depositary”), to be selected by Spire; (iii) the Board will have designated and established the terms of the Preferred Stock underlying such Depositary Shares and caused a certificate of designations with respect to such Preferred Stock to be prepared and filed with the Secretary of State of the State of Missouri and such Preferred Stock |
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| will have been duly deposited with the Depositary under the applicable Deposit Agreement; (iv) sufficient shares of Preferred Stock will be authorized for issuance under Spire’s Articles of Incorporation that have not otherwise been issued or reserved or committed for issuance; and (v) the applicable Deposit Agreement will be a valid and binding obligation of the Depositary, enforceable against the Depositary in accordance with its terms, and shall purport to be governed by the laws of the State of New York; and |
| (k) | in the case of Stock Purchase Contracts or Stock Purchase Units, (i) the Board will have designated and established the terms of such Stock Purchase Contracts or Stock Purchase Units (including any Debt Securities constituting a component of any Stock Purchase Units) and the applicable Stock Purchase Contract Agreement and such Stock Purchase Contracts or Stock Purchase Units and the applicable Stock Purchase Contract Agreement will not include any provision that is unenforceable; (ii) the applicable Stock Purchase Contract Agreement establishing such Stock Purchase Contracts or Stock Purchase Units will have been, authorized, executed and delivered by Spire and the Purchase Contract Agent; (iii) forms of such Stock Purchase Contracts or Stock Purchase Units complying with the terms of the applicable Stock Purchase Contract Agreement and evidencing those Stock Purchase Contracts or Stock Purchase Units will have been executed and delivered in accordance with the provisions of the applicable Stock Purchase Contract Agreement; and (iv) the applicable Stock Purchase Contract Agreement will be a valid and binding obligation of the Purchase Contract Agent, enforceable against the Purchase Contract Agent in accordance with its terms and shall purport to be governed by the laws of the State of New York. |
Based upon the foregoing and subject to the assumptions, exceptions, qualifications and limitations set forth hereinafter, we are of the opinion that:
| (1) | With respect to Securities constituting Debt Securities, when such Debt Securities have been duly executed, authenticated, issued and delivered and paid for as contemplated by the Registration Statement, the Prospectus and the applicable Prospectus Supplement and in accordance with the terms of the applicable Indenture and any applicable resolutions of the Board, supplemental indenture or officer’s certificate establishing the Debt Securities and any applicable definitive purchase, underwriting or similar agreement, such Debt Securities (including any Debt Securities constituting a component of any Stock Purchase Units or duly issued upon conversion, exchange or exercise of any other Security in accordance with the terms of such Security or the instrument governing such Security providing for such conversion, exchange or exercise as approved by the Board) will be valid and binding obligations of Spire. |
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| (2) | With respect to Securities constituting Stock Purchase Contracts or Stock Purchase Units, when such Stock Purchase Contracts or Stock Purchase Units have been duly executed, countersigned, issued, delivered and paid for as contemplated by the Registration Statement, the Prospectus and the applicable Prospectus Supplement and in accordance with the terms of the applicable Stock Purchase Contract Agreement and any applicable definitive purchase, underwriting or similar agreement, such Stock Purchase Contracts or Stock Purchase Units will be valid and binding obligations of Spire. |
| (3) | With respect to Securities constituting Depositary Shares, when such Depositary Shares have been issued and delivered, with Depositary Receipts representing such Depositary Shares having been duly executed, countersigned, registered and delivered in accordance with the terms of the applicable Deposit Agreement and the terms of any applicable definitive purchase, underwriting or similar agreement, such Depositary Shares will be validly issued and will entitle the holders thereof to the rights specified in the applicable Deposit Agreement. |
The opinions and other matters in this letter are qualified in their entirety and subject to the following:
| A. | We express no opinion as to the laws of any jurisdiction other than the laws of the State of New York. |
| B. | The matters expressed in this letter are subject to and qualified and limited by (i) applicable bankruptcy, insolvency, fraudulent transfer and conveyance, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally; (ii) general principles of equity, including without limitation, concepts of materiality, reasonableness, good faith and fair dealing and the possible unavailability of specific performance or injunctive relief (regardless of whether considered in a proceeding in equity or at law); and (iii) securities laws and public policy underlying such laws with respect to rights to indemnification and contribution. |
| C. | This letter is limited to the matters expressly stated herein and no opinion is to be inferred or implied beyond the opinion expressly set forth herein. We undertake no, and hereby disclaim any, obligation to make any inquiry after the date hereof or to advise you of any changes in any matter set forth herein, whether based on a change in the law, a change in any fact relating to Spire or any other person or any other circumstance. |
Spire Inc.
May 9, 2022
Page 7
We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the use of our name in the Prospectus or any Prospectus Supplement forming a part of the Registration Statement under the caption “Legal Matters.” In giving this consent, we do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the Act and the rules and regulations thereunder.
| Very truly yours, |
| /s/ AKIN, GUMP, STRAUSS, HAUER & FELD, L.L.P. |
| AKIN, GUMP, STRAUSS, HAUER & FELD, L.L.P. |
Exhibit 5.4
May 9, 2022
Spire Missouri Inc.
700 Market Street
St. Louis, Missouri 63101
| Re: | Spire Missouri Inc. |
Shelf Registration Statement on Form S-3
Ladies and Gentlemen:
We have acted as special counsel to Spire Missouri Inc., a Missouri corporation (“Spire Missouri”), in connection with the Registration Statement on Form S-3, as may be amended from time to time (the “Registration Statement”), filed by Spire Missouri and its parent, Spire Inc., a Missouri corporation, with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Act”), on the date hereof. The Registration Statement relates to, among other things, the offering and sale from time to time, as set forth in the Registration Statement, the form of prospectus relating to Spire Missouri contained therein (the “Prospectus”) and one or more supplements, free writing prospectuses or other offering materials with respect to the Prospectus (each, a “Prospectus Supplement”), by Spire Missouri of an unspecified number or amount and aggregate initial offering price of securities (the “Securities”) consisting of (a) first mortgage bonds, (b) shares of Spire Missouri’s preferred stock, $25.00 par value per share (“Preferred Stock”), (c) Spire Missouri’s depositary shares representing fractional shares of Preferred Stock (the “Depositary Shares”) and (d) senior unsecured debt securities of Spire Missouri (the “Debt Securities”). The Securities may be issued, sold and delivered from time to time under the Registration Statement, the Prospectus and one or more Prospectus Supplements pursuant to Rule 415 under the Act. This opinion is being furnished in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Act.
We have examined originals or certified copies of (a) the Registration Statement, (b) the Form of Indenture (For Unsecured Debt Securities), between Spire Missouri and a trustee to be appointed by Spire Missouri prior to the issuance of any Debt Securities thereunder (the “Trustee”), under which the Debt Securities will be issued, filed as Exhibit 4.24 to the Registration Statement (as amended, supplemented or modified from time to time, the “Indenture”), and (c) such corporate records of Spire Missouri and other certificates and documents of officials of Spire Missouri, public officials and others as we have deemed appropriate for purposes of this letter. We have assumed the genuineness of all signatures, the legal capacity of all natural persons, the authenticity of all documents submitted to us as originals, the conformity to authentic original
One Bryant Park | New York, New York 10036-6745 | 212.872.1000 | fax: 212.872.1002 | akingump.com
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documents of all copies submitted to us as conformed, certified or reproduced copies, and that the Debt Securities will conform to the applicable specimen thereof to be filed as an exhibit to the Registration Statement or otherwise incorporated by reference therein. As to various questions of fact relevant to this letter, we have relied, without independent investigation, upon certificates of public officials and certificates of officers of Spire Missouri, all of which we assume to be true, correct and complete.
In addition, this opinion assumes that:
| (a) | the Registration Statement and any amendments thereto (including any post-effective amendments) will have become effective under the Act and will remain effective and shall not have been terminated or rescinded through any offer and sale of Securities; |
| (b) | for each series of Debt Securities or Securities constituting Depositary Shares that Spire Missouri offers by means of a Prospectus, Spire Missouri will have prepared and filed with the Commission under the Act a Prospectus Supplement which describes such Securities; |
| (c) | Spire Missouri will have offered, issued and sold the Debt Securities or Securities constituting Depositary Shares in the manner contemplated by the Registration Statement and the relevant Prospectus Supplement and otherwise in compliance with all applicable federal and state securities laws, and the terms of any such Securities will not violate any applicable law or any debt securities of Spire Missouri or result in a default or breach of any agreement binding upon Spire Missouri, and will comply with any requirement or restriction imposed by any court or other governmental body having jurisdiction over it; |
| (d) | in the case of any series of Debt Securities or Securities constituting Depositary Shares which Spire Missouri issues and sells, the Board of Directors of Spire Missouri (or any authorized committee thereof (that board or any such committee being the “Board”)) will have taken all corporate action necessary to authorize and approve the execution, authentication, issuance and delivery of those Securities and the terms of the offering and sale thereof; |
| (e) | the terms of the Debt Securities or Securities constituting Depositary Shares and of their issuance and sale will have been established in conformity with and so as not to violate, or result in a default under or breach of, Spire Missouri’s Amended Articles of Incorporation, including any amendments thereto, Spire Missouri’s Amended Bylaws, including any amendments thereto, or other organizational documents of Spire |
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| Missouri or any applicable law or any agreement or instrument binding on Spire Missouri and so as to comply with any order, requirement or restriction imposed by any court or governmental or regulatory body having jurisdiction over Spire Missouri (including the Missouri Public Service Commission) and in conformity with the applicable resolutions of the Board, the Indenture, any supplemental indenture, officer’s certificate or Deposit Agreement (as defined below) relating to such Securities; |
| (f) | Spire Missouri and the initial purchasers of any series of Debt Securities or Securities constituting Depositary Shares will have duly authorized, executed and delivered a definitive purchase, underwriting or similar agreement relating to those Debt Securities or Securities constituting Depositary Shares, which shall have been duly authorized, executed and delivered by Spire Missouri and the other parties thereto; |
| (g) | in the case of any Debt Securities or Securities constituting Depositary Shares issuable on the conversion, exchange, redemption or exercise of other Securities, those Debt Securities or Securities constituting Depositary Shares will be available for issuance on that conversion, exchange, redemption or exercise; |
| (h) | at the time of the issuance of the Debt Securities or Securities constituting Depositary Shares, (i) Spire Missouri will be a corporation existing and in good standing under the laws of the State of Missouri and (ii) Spire Missouri will have all necessary corporate power and authorization; |
| (i) | an order of the Missouri Public Service Commission relating to the issuance of the Debt Securities or Securities constituting Depositary Shares shall have become and remain effective and Spire Missouri shall have complied with the terms and conditions of such order; |
| (j) | at the time of execution, authentication, issuance and delivery of any Debt Securities of any series, (i) the Board will have designated and established the terms of the series to which those Debt Securities belong in accordance with the Indenture and those Debt Securities will not include any provision that is unenforceable; (ii) the Indenture and the Trustee under the Indenture will have become qualified under the Trust Indenture Act of 1939, as amended, as applicable; (iii) the Indenture and any supplemental indenture to the Indenture or officer’s certificate delivered pursuant to the Indenture establishing such Debt Securities will have been, authorized, executed and delivered by Spire Missouri and the Trustee; (iv) forms of Debt Securities complying with the terms of the Indenture and evidencing those Debt Securities will have been executed, |
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| authenticated, issued and delivered in accordance with the provisions of the Indenture, the applicable resolutions of the Board, any supplemental indenture or officer’s certificate establishing such Debt Securities and the applicable definitive purchase, underwriting or similar agreement therefor; and (v) the Indenture, including any supplemental indenture or officer’s certificate establishing such Debt Securities, will be a valid and binding obligation of the Trustee, enforceable against the Trustee in accordance with its terms, and shall purport to be governed by the laws of the State of New York; and |
| (k) | in the case of Depositary Shares, (i) the Board will have designated and established the terms of such Depositary Shares and the applicable deposit agreement (the “Deposit Agreement”) relating to such Depositary Shares and the related receipts evidencing such Depositary Shares (“Depositary Receipts”) and such Depositary Shares, Deposit Agreement and Depositary Receipts will not include any provision that is unenforceable; (ii) the applicable Deposit Agreement will have been duly authorized, executed and delivered by Spire Missouri and a bank or trust company, as depositary (the “Depositary”), to be selected by Spire Missouri; (iii) the Board will have designated and established the terms of the Preferred Stock underlying such Depositary Shares and caused a certificate of designations with respect to such Preferred Stock to be prepared and filed with the Secretary of State of the State of Missouri and such Preferred Stock will have been duly deposited with the Depositary under the applicable Deposit Agreement; (iv) sufficient shares of Preferred Stock will be authorized for issuance under Spire Missouri’s Articles of Incorporation that have not otherwise been issued or reserved or committed for issuance; and (v) the applicable Deposit Agreement will be a valid and binding obligation of the Depositary, enforceable against the Depositary in accordance with its terms, and shall purport to be governed by the laws of the State of New York. |
Based upon the foregoing and subject to the assumptions, exceptions, qualifications and limitations set forth hereinafter, we are of the opinion that:
| (1) | With respect to Securities constituting Debt Securities, when any Debt Securities have been duly executed, authenticated, issued and delivered and paid for as contemplated by the Registration Statement, the Prospectus and the applicable Prospectus Supplement and in accordance with the terms of the Indenture and any applicable resolutions of the Board, supplemental indenture or officer’s certificate establishing the Debt Securities and any applicable definitive purchase, underwriting or similar agreement, such Debt Securities (including any Debt Securities duly issued upon conversion, exchange or exercise of any other Security in accordance with the terms of such Security or the instrument governing such Security providing for such conversion, exchange or exercise as approved by the Board) will be valid and binding obligations of Spire Missouri. |
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| (2) | With respect to Securities constituting Depositary Shares, when such Depositary Shares have been issued and delivered, with Depositary Receipts representing such Depositary Shares having been duly executed, countersigned, registered and delivered in accordance with the terms of the applicable Deposit Agreement and the terms of any applicable definitive purchase, underwriting or similar agreement, such Depositary Shares will be validly issued and will entitle the holders thereof to the rights specified in the applicable Deposit Agreement. |
The opinions and other matters in this letter are qualified in their entirety and subject to the following:
| A. | We express no opinion as to the laws of any jurisdiction other than the laws of the State of New York. |
| B. | The matters expressed in this letter are subject to and qualified and limited by (i) applicable bankruptcy, insolvency, fraudulent transfer and conveyance, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally; (ii) general principles of equity, including without limitation, concepts of materiality, reasonableness, good faith and fair dealing and the possible unavailability of specific performance or injunctive relief (regardless of whether considered in a proceeding in equity or at law); and (iii) securities laws and public policy underlying such laws with respect to rights to indemnification and contribution. |
| C. | This letter is limited to the matters expressly stated herein and no opinion is to be inferred or implied beyond the opinion expressly set forth herein. We undertake no, and hereby disclaim any, obligation to make any inquiry after the date hereof or to advise you of any changes in any matter set forth herein, whether based on a change in the law, a change in any fact relating to Spire Missouri or any other person or any other circumstance. |
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May 9, 2022
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We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the use of our name in the Prospectus or any Prospectus Supplement forming a part of the Registration Statement under the caption “Legal Matters.” In giving this consent, we do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the Act and the rules and regulations thereunder.
| Very truly yours, |
| /s/ AKIN, GUMP, STRAUSS, HAUER & FELD, L.L.P. |
| AKIN, GUMP, STRAUSS, HAUER & FELD, L.L.P. |
Exhibit 23.5
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the incorporation by reference in this Registration Statement on Form S-3 of our reports dated November 22, 2021 relating to the financial statements of Spire Inc. and the effectiveness of Spire Inc.’s internal control over financial reporting, appearing in the Annual Report on Form 10-K of Spire Inc. for the year ended September 30, 2021. We also consent to the reference to us under the heading “Experts” in such Registration Statement.
/s/ Deloitte & Touche LLP
St. Louis, Missouri
May 9, 2022
Exhibit 24.1
POWER OF ATTORNEY
Each director and/or officer of Spire Inc. whose signature appears below appoints S. Sitherwood, S. P. Rasche, M. C. Darrell and E. L. Theroff and each of them, severally, his or her true and lawful attorney-in-fact and agent to execute in his or her name, place and stead, in any and all capacities, a registration statement on Form S-3 and any and all amendments (including post-effective amendments) to such registration statement as authorized by the Company’s Board of Directors on April 28, 2022; and to file the same with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully to all intents and purposes, as he or she might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agents or any of them may lawfully do or cause to be done by virtue hereof.
A copy hereof shall have the same force and effect as the original.
IN WITNESS WHEREOF, the undersigned have executed this instrument this 28th day of April, 2022.
| /s/ Mark A. Borer |
/s/ Brenda D. Newberry | |||
| Mark A. Borer | Brenda D. Newberry | |||
| /s/ Maria V. Fogarty |
/s/ Stephen S. Schwartz | |||
| Maria V. Fogarty | Stephen S. Schwartz | |||
| /s/ Edward L. Glotzbach |
/s/ John P. Stupp Jr. | |||
| Edward L. Glotzbach | John P. Stupp Jr. | |||
| /s/ Carrie J. Hightman |
/s/ Mary Ann Van Lokeren | |||
| Carrie J. Hightman | Mary Ann Van Lokeren | |||
| /s/ Rob L. Jones |
/s/ Suzanne Sitherwood | |||
| Rob L. Jones | Suzanne Sitherwood | |||
| /s/ Steven P. Rasche |
||||
| Steven P. Rasche | ||||
Exhibit 24.2
POWER OF ATTORNEY
Each director and/or officer of Spire Missouri Inc. whose signature appears below appoints S. Sitherwood, S. P. Rasche, M. C. Darrell and E. L. Theroff and each of them, severally, his or her true and lawful attorney-in-fact and agent to execute in his or her name, place and stead, in any and all capacities, a registration statement on Form S-3 and any and all amendments (including post-effective amendments) to such registration statement as authorized by the Company’s Board of Directors on April 19, 2022; and to file the same with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully to all intents and purposes, as he or she might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agents or any of them may lawfully do or cause to be done by virtue hereof.
A copy hereof shall have the same force and effect as the original.
IN WITNESS WHEREOF, the undersigned have executed this instrument as of the 28th day of April 2022.
| /s/ Steven L Lindsey |
/s/ Scott B. Carter | |||
| Steven L. Lindsey | Scott B. Carter | |||
| /s/ Steven P. Rasche |
/s/ Suzanne Sitherwood | |||
| Steven P. Rasche | Suzanne Sitherwood | |||
| /s/ Mark C. Darrell |
/s/ Adam W. Woodard | |||
| Mark C. Darrell | Adam W. Woodard | |||
| /s/ Timothy W. Krick |
||||
| Timothy W. Krick | ||||
Exhibit 25.1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
| ☐ | CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO SECTION 305(b) (2) |
REGIONS BANK
(Exact name of trustee as specified in its charter)
| Alabama | 63-0371391 | |
| (Jurisdiction of incorporation or organization if not a U.S. national bank) |
(I.R.S. Employer Identification No.) |
| 1900 Fifth Avenue North | ||
| Birmingham, AL | 35203 | |
| (Address of principal executive offices) | (Zip code) |
Regions Bank
1180 West Peachtree Street
Atlanta, GA 30309
(404) 581-3742
(Name, address and telephone number of agent for service)
Spire Inc.
(Exact name of obligor as specified in its charter)
| Missouri | 74-2976504 | |
| (State or other jurisdiction of incorporation or organization) |
(I.R.S. Employer Identification No.) |
| 700 Market Street | ||
| St. Louis, Missouri | ||
| (314) 342-0500 | 63101 | |
| (Address of principal executive offices) | (Zip code) |
Senior Debt Securities
(Titles of the indenture securities)
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Item 1. General Information. Furnish the following information as to the trustee:
| (a) | Name and address of each examining or supervising authority to which it is subject. |
State of Alabama State Banking Department
PO Box 4600
Montgomery, AL 36103-4600
Federal Deposit Insurance Corporation
Washington, D.C.
Federal Reserve Bank of Atlanta
Atlanta, Georgia 30309
| (b) | Whether it is authorized to exercise corporate trust powers. |
Yes.
Item 2. Affiliations with Obligor. If the obligor is an affiliate of the trustee, describe each such affiliation.
None with respect to the trustee.
| Items 3-15. | No responses are included for Items 3 through 15. Responses to those Items are not required because, as provided in General Instruction B the obligor is not in default on any securities issued under indentures under which Regions Bank is a trustee. |
| Item 16. | List of Exhibits. List below all exhibits filed as a part of this Statement of Eligibility. |
| Exhibit 1. | A copy of the Articles of Incorporation of the trustee now in effect. | |||
| Exhibit 2. | The authority of Regions Bank to commence business was granted under the Articles of Incorporation for Regions Bank, incorporated herein by reference to Exhibit 1 of Form T-1. | |||
| Exhibit 3. | The authorization to exercise corporate trust powers was granted under the Articles of Incorporation for Regions Bank, incorporated herein by reference to Exhibit 1 of Form T-1. | |||
| Exhibit 4. | A copy of the bylaws of the trustee as now in effect. | |||
| Exhibit 5. | Not applicable. | |||
| Exhibit 6. | The consent of the trustee required by Section 321(b) of the Act. | |||
| Exhibit 7. | A copy of the latest report of condition of the trustee published pursuant to law or the requirements of its supervising or examining authority. | |||
| Exhibit 8. | Not applicable. | |||
| Exhibit 9. | Not applicable | |||
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SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as amended, the trustee, Regions Bank, a state chartered bank under the laws of Alabama, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of Atlanta and State of Georgia on May 3, 2022.
| REGIONS BANK |
| /s/ Kerry A. McFarland |
| Kerry A. McFarland |
| Vice President |
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EXHIBIT 1
ARTICLES OF AMENDMENT TO THE
ARTICLES OF INCORPORATION
OF
REGIONS BANK
an Alabama banking corporation
Pursuant to the provisions of Section 10A-1-3.13 and Sections 10A-2-10.01 through 10A-2-10.09 of the Alabama Business and Nonprofit Entities Code, as amended, (the “Law”), the undersigned banking corporation adopts the following Articles of Amendment to its Articles of Incorporation:
FIRST: The name of the banking corporation is Regions Bank (the “Bank”).
SECOND: The Bank is an Alabama banking corporation.
THIRD: The Restated Articles of Incorporation of the Bank were filed with the Office of the Judge of Probate of Jefferson County, Alabama on October 28, 2014. The Alabama Entity ID Number of the Bank is 006-854.
FOURTH: The Second Amended and Restated Certificate of Incorporation, attached hereto as Exhibit A and incorporated herein by this reference, is hereby adopted as the articles of incorporation of the Bank.
FIFTH: The Second Amended and Restated Certificate of Incorporation was adopted and approved by the Board of Directors of the Bank at a meeting duly called and held on July 22, 2020 and by the sole shareholder of the Bank pursuant to an action by written consent dated as of July 22, 2020.
SIXTH: The designation, number of outstanding shares, and number of votes entitled to be cast by the sole shareholder on the Second Amended and Restated Certificate of Incorporation were as follows:
| Shares |
Outstanding | Entitled to Vote | ||||||
| Common Stock, par value $5.00 |
21,546 | 21,546 | ||||||
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SEVENTH: The number of shares entitled to vote on the Second Amended and Restated Certificate of Incorporation that voted FOR the Second Amended and Restated Certificate of Incorporation and the number of shares entitled to vote on the Second Amended and Restated Certificate of Incorporation that voted AGAINST the Second Amended and Restated Certificate of Incorporation were as follows:
| Shares |
Total Voted FOR |
Total Voted AGAINST |
||||||
| Common Stock |
21,546 | 0 | ||||||
EIGHTH: The number of shares that voted FOR the Second Amended and Restated Certificate of Incorporation was sufficient for approval thereof by the sole shareholder of the Bank, as required by the Law and the Articles of Incorporation.
NINTH: The original written approval issued by the Superintendent of the Alabama State Banking Department with respect to the Second Amended and Restated Certificate of Incorporation is attached hereto as Exhibit B and recorded herewith.
IN WITNESS WHEREOF, the Bank has caused these Articles of Amendment to the Articles of Incorporation of the Bank to be executed in its name and on its behalf as of August 6, 2020.
| BANK: | ||
| REGIONS BANK | ||
| an Alabama banking corporation | ||
| By: | /s/ Hope D. Mehlman | |
| Hope D. Mehlman | ||
| Executive Vice President, Corporate | ||
| Secretary, Chief Governance Officer, and Deputy General Counsel | ||
This instrument prepared by:
Andrew S. Nix
Maynard, Cooper & Gale, P.C.
1901 Sixth Avenue North
2400 Regions/Harbert Plaza
Birmingham, AL 35203
(205) 254-1000
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EXHIBIT A
Second Amended and Restated Certificate of Incorporation
(attached)
Internal Use
SECOND AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
REGIONS BANK
| 1. | The name of this corporation shall be Regions Bank. The corporation is a domestic banking corporation. |
| 2. | The principal place of business of the corporation shall be 1900 Fifth Avenue North, Birmingham, Alabama 35203. The general business of Regions Bank (the “Bank”) shall be conducted at its main office and its branches and other facilities. |
| 3. | The Bank shall have the following objects, purposes and powers: |
| a. | To be and serve as an Alabama banking corporation pursuant to the Alabama Banking Code, Section 5-1A-1 et seq. of the Code of Alabama 1975, as amended (together with any act amendatory thereof, supplementary thereto or substituted therefor, hereinafter referred to as the “Banking Code”), with all the power and authority that may be exercised by an Alabama banking corporation. |
| b. | To engage in any lawful business, act or activity for which a banking corporation may be organized under Alabama law, it being the purpose and intent of this section to invest the Bank with the broadest objects, purposes and powers lawfully permitted an Alabama banking corporation. |
| c. | To engage in any lawful business, act or activity for which a corporation may be organized under the Alabama Business Corporation Law of 2019, Section 10A-2A1.01 et seq. of the Code of Alabama 1975, as amended (together with any act amendatory thereof, supplementary thereto or substituted therefor, hereinafter referred to as the “ABCL”), to the extent not inconsistent with the provisions of the Banking Code or any other regulation of a banking corporation in the State of Alabama. |
| d. | Without limiting the scope and generality of the foregoing, the Bank shall have the following specific objects, purposes and powers: |
| i. | To conduct a general banking business through such means and at such places as the Board of Directors may deem proper. |
| ii. | To sue and be sued, complain and defend, in its corporate name. |
| iii. | To have a corporate seal which may be altered at pleasure, and to use the same by causing it, or a facsimile thereof, to be impressed or affixed or in any other manner reproduced. |
| iv. | To purchase, take, receive, lease or otherwise acquire, own, hold, improve, use and otherwise deal in and with, real or personal property, or any interest therein, wherever situated. |
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| v. | To sell, convey, mortgage, pledge, lease, exchange, transfer and otherwise dispose of all or any part of its property and assets, subject to the limitations hereinafter prescribed. |
| vi. | To lend money and use its credit to assist its employees. |
| vii. | To purchase, take, receive, subscribe for or otherwise acquire, own, hold, vote, use, employ, sell, mortgage, lend, pledge or otherwise dispose of, and otherwise use and deal in and with, shares or other interests in, or obligations of, other domestic or foreign corporations, associations, partnerships or individuals, or direct or indirect obligations of the United States or of any other government, state, territory, governmental district or municipality or of any instrumentality thereof as may be permitted by law or appropriate regulations. |
| viii. | To make contracts, guarantees and indemnity agreements and incur liabilities, borrow money at such rates of interest as the corporation may determine, issue its notes, bonds and other obligations, and secure any of its obligations by mortgage, pledge of or creation of security interests in, all or any of its property, franchises or income, or any interest therein. |
| ix. | To lend money for its corporate purposes, invest and reinvest its funds and take and hold real and personal property as security for the payment of funds so loaned or invested. |
| x. | To conduct its business, carry on its operations and have offices and exercise the powers granted by this section, within or without the State of Alabama. |
| xi. | To elect or appoint and remove officers and agents of the Bank, define their duties and fix their compensation. |
| xii. | To make and alter by its board of directors by-laws not inconsistent with its certificate of incorporation or with the laws of the State of Alabama for the administration and regulation of the affairs of the Bank. |
| xiii. | To make donations for the public welfare or for charitable, scientific or educational purposes. |
| xiv. | To transact any lawful business which the board of directors shall find will be in aid of governmental policy. |
| xv. | To pay pensions and establish pension plans, pension trusts, profit sharing plans, stock bonus plans, stock option plans and other incentive plans for any or all of its directors, officers and employees. |
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| xvi. | To be a promoter, incorporator, partner, member, trustee, associate or manager of any domestic or foreign corporation, partnership, joint venture, trust or other enterprise. |
| xvii. | To consolidate or merge, before or after the completion of its works, with any other foreign or domestic corporation or corporations engaged in the business of banking or trust companies doing a banking business. |
| xviii. | To discount bills, notes or other evidences of debt. |
| xix. | To receive and pay out deposits, with or without interest, pay checks and impose charges for any services. |
| xx. | To receive on special deposit money, bullion or foreign coins or bonds or other securities. |
| xxi. | To buy and sell foreign and domestic exchanges, gold and silver bullion or foreign coins, bonds, bills of exchange, notes and other negotiable paper. |
| xxii. | To lend money on personal security or upon pledges of bonds, stocks or other negotiable securities. |
| xxiii. | To take and receive security by mortgage, security or otherwise on property, real and personal. |
| xxiv. | To become trustee for any purpose and be appointed and act as executor, administrator, guardian, receiver or fiduciary. |
| xxv. | To lease real and personal property upon specific request of a customer, provided that it complies with any applicable laws of the State of Alabama regulating leasing real property or improvements thereon to others. |
| xxvi. | To perform computer, management and travel agency services for others. |
| xxvii. | To subscribe to the capital stock and become a member of the Federal Reserve System and comply with rules and regulations thereof |
| xxviii. | To do business and exercise directly or through operating subsidiaries any powers incident to the business of banks. |
| 4. | The duration of the corporation shall be perpetual. |
| 5. | The Board of Directors is expressly authorized from time to time to fix the number of Directors which shall constitute the entire Board, subject to the following: |
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| a. | The number of Directors constituting the entire Board shall be fixed from time to time by vote of a majority of the entire Board; provided, however, that the number of Directors shall not be reduced so as to shorten the term of any Director at the time in office; provided further, that the number of Directors shall not be less than five (5) nor more than twenty-five (25). Each Director shall be the record owner of the requisite number of shares of common stock of the Bank’s parent bank holding company fixed by the appropriate regulatory authorities. |
| b. | Notwithstanding any other provisions of this Second Amended and Restated Certificate of Incorporation or the by-laws of the Bank (and notwithstanding the fact that some lesser percentage may be specified by law, this Second Amended and Restated Certificate of Incorporation or the by-laws of the Bank), any Director or the entire Board of Directors of the Bank may be removed at any time, with or without cause, by the affirmative vote of the holder(s) of ninety percent (90%) or more of the outstanding shares of capital stock of the Bank entitled to vote generally in the election of directors (considered for this purpose as one class) cast at a meeting of stockholders called for that purpose. |
| 6. | The aggregate number of shares of capital stock which the Bank shall have authority to issue is thirty thousand five hundred forty-six (30,546) shares, which shall be common stock, par value five dollars ($5.00) per share (the “Common Stock”). The Bank shall not issue fractional shares of stock, but shall pay in cash the fair value of fractions of a share as of the time when those otherwise entitled to receive such fractions are determined. |
| a. | Stockholders shall not have pre-emptive rights to purchase shares of any class of capital stock of the Bank. The Bank, at any time and from time to time, may authorize and issue debt obligations, whether or not subordinated, without the approval of the stockholders. |
| b. | Authority is hereby expressly granted to the Board of Directors from time to time to issue any authorized but unissued shares of Common Stock for such consideration and on such terms as it may determine. Every share of Common Stock of the Bank shall have one vote at any meeting of stockholders and may be voted by the stockholders of record either in person or by proxy. |
| c. | In the event of any liquidation, dissolution or winding up of the Bank, or upon the distribution of the assets of the Bank, the assets of the Bank remaining after satisfaction of all obligations and liabilities shall be divided and distributed ratably among the holders of the Common Stock. Neither the merger nor the consolidation of the Bank with another corporation, nor the sale or lease of all or substantially all of the assets of the Bank, shall be deemed to be a liquidation, dissolution or winding up of the Bank or a distribution of its assets. |
| 7. | The Chief Executive Officer, Secretary, Board of Directors or holder(s) of at least 90% of the issued and outstanding voting stock of the Bank may call a special meeting of stockholders at any time. The Bank shall notify stockholders of the place, if any, date and |
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| time of each annual and special meeting of stockholders no fewer than ten (10) nor more than sixty (60) days before the meeting date, such notice to be delivered to each stockholder of record at the address as shown upon the stock transfer book of the Bank. Notice of a special meeting of stockholders shall include a description of the purpose or purposes for which the meeting is called. |
| 8. | The Bank reserves the right to amend, alter, change or repeal any provision contained in this Second Amended and Restated Certificate of Incorporation, in the manner now or hereafter provided by law, at any regular or special meeting of stockholders, and all rights conferred upon officers, directors and stockholders of the Bank hereby are granted subject to this reservation. |
| 9. | The Bank shall indemnify its officers, directors, employees and agents in accordance with the indemnification provisions set forth in the by-laws of the Bank, as may be amended from time to time, and in all cases in accordance with applicable laws and regulations. |
| 10. | To the extent not inconsistent with the provisions of the Banking Code or the rules, regulations or orders of the Superintendent of the Alabama State Banking Department, and pursuant to Section 10A-2A-17.01 of the ABCL, the Bank hereby elects to be governed by the provisions of the ABCL, and all references in this Second Amended and Restated Certificate of Incorporation to the ABCL shall mean the Alabama Business Corporation Law of 2019. |
[Signature Page Follows]
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IN WITNESS WHEREOF, the undersigned hereby certifies that, in accordance with applicable law, this Second Amended and Restated Certificate of Incorporation has been adopted by the Bank as of the 6th day of August, 2020.
| By: | /s/ Hope D. Mehlman | |
| Hope D. Mehlman | ||
| Executive Vice President, Corporate Secretary, Chief Governance Officer, and Deputy General Counsel |
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STATE OF ALABAMA
MONTGOMERY COUNTY
I, Mike Hill, as Superintendent of Banks for the State of Alabama, do hereby certify that I have fully and duly examined the foregoing Second Amended and Restated Certificate of Incorporation whereby the shareholder of Regions Bank, a banking corporation located at Birmingham, Alabama, proposes to Amend and Restate the Certificate of Incorporation.
See attached Articles of Amendment which Amend and Restate the Certificate of Incorporation of Regions Bank.
I do hereby certify that said Second Amended and Restated Certificate of Incorporation appear to be in substantial conformity with the requirements of law and they are hereby approved. Upon the filing of the same, together with this Certificate of Approval, with the proper agency as required by law, the Second Amended and Restated Certificate of Incorporation of said bank shall be effective.
Given under my hand and seal of office this the 3rd day of August, 2020.
| By: | /s/ Mike Hill | |
| Mike Hill | ||
| Superintendent of Banks |
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EXHIBIT 4
AMENDED AND RESTATED BY-LAWS OF
REGIONS BANK
Effective July 21, 2021
ARTICLE I. OFFICES
Section 1. Registered Office.
The registered office of Regions Bank (the “Bank”) shall be maintained at the office of the Corporation Service Company, Inc., in the City of Montgomery, in the County of Montgomery, in the State of Alabama, or such other location as may be designated by the Board of Directors. Corporation Service Company, Inc. shall be the registered agent of the Bank unless and until a successor registered agent is appointed by the Board of Directors.
Section 2. Other Offices.
The Bank may have other offices at such places as the Board of Directors may from time to time appoint or the business of the Bank may require.
Section 3. Principal Place of Business.
The principal place of business of the Bank shall be in Birmingham, Alabama.
ARTICLE II. MEETINGS OF STOCKHOLDERS
Section 1. Annual Meeting.
Annual meetings of stockholders for the election of members of the Board of Directors (“Directors”) and for such other business as the Board of Directors may determine, shall be held at such place, time and date as the Board of Directors, by resolution, shall determine.
Section 2. Special Meetings.
The Chief Executive Officer, Secretary, Board of Directors or holder(s) of at least ninety percent (90%) of the issued and outstanding voting stock of the Bank may call a special meeting of stockholders at any time. Special meetings of stockholders may be held at such place, time and date as shall be stated in the notice of the meeting.
Section 3. Voting.
The vote of a majority of the votes cast by the shares entitled to vote on any matter at a meeting of stockholders at which a quorum is present shall be the act of the stockholders on that matter, except as otherwise required by law or by the Certificate of Incorporation of the Bank.
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Section 4. Quorum.
At each meeting of stockholders, except where otherwise provided by applicable law, the Certificate of Incorporation or these By-Laws, the holders of a majority of the outstanding shares of the Bank entitled to vote on a matter at the meeting, represented in person or by proxy, shall constitute a quorum. If less than a majority of the outstanding shares are represented, a majority of the shares so represented may adjourn the meeting from time to time without further notice, but until a quorum is secured no other business may be transacted. The stockholders present at a duly organized meeting may continue to transact business until an adjournment notwithstanding the withdrawal of enough stockholders to leave less than a quorum.
Section 5. Notice of Meeting.
Written or printed notice stating the place, day and time of the meeting and, in case of a special meeting of stockholders, the purpose or purposes of the meeting, shall be delivered not less than ten (10) nor more than sixty (60) days before the date of the meeting to each stockholder of record entitled to vote at such meeting. The notice shall also include the record date for determining the stockholders entitled to vote at the meeting, if that date is different from the record date for determining stockholders entitled to notice of the meeting. Such notice may be communicated in person, by telephone, teletype, telecopier, facsimile transmission or other form of electronic communication, or by mail or private carrier. The notice shall be deemed to have been delivered (i) if mailed postage prepaid and correctly addressed to a stockholder, upon deposit in the United States mail; (ii) if mailed by United States mail postage prepaid and correctly addressed to a recipient other than a stockholder, the earliest of when it is actually received or (A) if sent by registered or certified mail, return receipt requested, the date shown on the return receipt signed by or on behalf of the addressee or (B) five (5) days after it is deposited in the United States mail; or (iii) if an electronic transmission, when (A) it enters an information processing system that the recipient has designated or uses for the purposes of receiving electronic transmissions or information of the type sent, and from which the recipient is able to retrieve the electronic transmission and (B) it is in a form capable of being processed by that system. The attendance of a stockholder at a meeting shall constitute a waiver of lack of notice or defective notice of such meeting, unless the stockholder expresses such objection at the beginning of the meeting, and shall constitute a waiver of any objection to the consideration of a particular matter that is not within the purpose or purposes described in the notice, unless the stockholder objects to considering the matter before action is taken thereon.
Section 6. Informal Action by Stockholders.
Any action required or permitted to be taken at any meeting of stockholders may be taken without a meeting, and without prior notice, if one or more consents in writing setting forth the action so taken are signed by the holders of outstanding stock having not less than the minimum number of votes that would be required to authorize or take the action at a meeting at which all shares of stock entitled to vote on the action were present and voted. The action must be evidenced by one or more written consents describing the action taken, signed by the stockholders approving the action and delivered to the Bank for filing by the Bank with the minutes or corporate records. No written consent shall be effective to take the corporate action referred to therein unless, within sixty (60) days of the earliest date on which a consent is delivered to the Bank as required by this section, written consents signed by sufficient stockholders to take the action have been delivered to the Bank. A written consent may be revoked by a writing to that effect delivered to the Bank before unrevoked written consents sufficient in number to take the corporate action have been delivered to the Bank.
A consent signed pursuant to the provisions of this section has the effect of a vote taken at a meeting and may be described as such in any document. The action taken by written consent shall be effective when written consents signed by sufficient stockholders to take the action have been delivered to the Bank.
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If action is taken by less than unanimous written consent of the stockholders, the Bank shall give its nonconsenting stockholders written notice of the action not more than ten (10) days after written consents sufficient to take the action have been delivered to the Bank. The notice must reasonably describe the action taken and contain or be accompanied by the same material that would have been required to be sent to stockholders in a notice of a meeting at which the action would have been submitted to the stockholders for action.
ARTICLE III. DIRECTORS
Section 1. Number and Term.
The number of Directors that shall constitute the whole Board of Directors shall be fixed, from time to time, by resolutions adopted by the Board of Directors, but shall not be less than five (5) persons or more than twenty-five (25) persons. The number of Directors shall not be reduced so as to shorten the term of any Director in office at the time.
Directors elected at each annual or special meeting or appointed pursuant to Article III, Section 4 of these By-Laws shall hold office until the next annual meeting and until his or her successor shall have been elected and qualified, or until his or her earlier retirement, death, resignation or removal. Directors need not be residents of Alabama.
Section 2. Chair of the Board and Lead Independent Director.
The Board of Directors shall by majority vote designate from time to time from among its members a Chair of the Board of Directors. The Chair of the Board of Directors shall preside at all meetings of the stockholders and of the Board of Directors. He or she shall have and perform such duties as prescribed by these By-Laws and by the Board of Directors. The position of Chair of the Board of Directors is a Board position; provided, however, the position of Chair of the Board of Directors may be held by a person who is also an officer of the Bank.
In the absence of the Chair of the Board of Directors, or in the case he or she is unable to preside, the Lead Independent Director, if at the time a Director of the Bank has been designated by the Board of Directors as such, shall have and exercise all powers and duties of the Chair of the Board of Directors and shall preside at all meetings of the Board of Directors. If at any Board of Directors meeting neither of such persons is present or able to act, the Board of Directors shall select one of its members as acting chair of the meeting or any portion thereof.
Section 3. Resignations.
Any Director may resign at any time. All resignations shall be made in writing, and shall take effect at the time of receipt by the Chair of the Board of Directors, Chief Executive Officer, President or Secretary or at such other time as may be specified therein. The acceptance of a resignation shall not be necessary to make it effective.
Section 4. Vacancies.
If the office of any Director becomes vacant, including by reason of resignation or removal, or the size of the Board of Directors is increased, the remaining Directors in office, even if less than a quorum, by a majority vote, may appoint any qualified person to fill such vacancy or new position, and such person shall hold office for the unexpired term and until his or her successor shall be duly chosen.
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Section 5. Removal.
Any Director may be removed at any time, with or without cause, by the affirmative vote of the holders of ninety percent (90%) or more of the outstanding shares of capital stock of the Bank entitled to vote generally in the election of directors (considered for this purpose as one class) cast at a meeting of stockholders called for that purpose.
Section 6. Powers.
The business and affairs of the Bank shall be managed by or under the direction of the Board of Directors, except as may be otherwise provided by applicable law, the Certificate of Incorporation of the Bank or pursuant to these By-Laws.
Section 7. Meetings.
Regular meetings of the Board of Directors may be held without notice at such places and times as shall be determined from time to time by the Board of Directors; provided, however, that such regular meetings shall be held at intervals in compliance with the Alabama Banking Code, Section 5-1A-1 et seq. of the Code of Alabama 1975, as amended (together with any act amendatory thereof, supplementary thereto or substituted therefor, hereinafter referred to as the “Banking Code”).
Special meetings of the Board of Directors may be called by the Chair of the Board of Directors, Lead Independent Director, Chief Executive Officer or President, or Secretary on the request of any two members of the Board of Directors, on at least two (2) days’ notice to each Director and shall be held at such place or places as may be determined by the Board of Directors, or as shall be stated in the notice of such meeting.
Unless otherwise restricted by the Certificate of Incorporation or these By-Laws, members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting of the Board of Directors, or any committee, by means of conference telephone, video or similar communications equipment by means of which all persons participating in the meeting can hear each other, and such participation in a meeting shall constitute presence in person at the meeting. Notice of any special meeting of the Board of Directors need not be given personally, and may be given by United States mail, postage prepaid or by any form of electronic communication, and shall be deemed to have been given on the date such notice is transmitted by the Bank (which, if notice is mailed, shall be the date when such notice is deposited in the United States mail, postage prepaid, directed to the applicable Director at such Director’s address as it appears on the records of the Bank).
Section 8. Quorum; Vote Required for Action.
A majority of the Directors shall constitute a quorum for the transaction of business. If at any meeting of the Board of Directors there shall be less than a quorum present, a majority of those present may adjourn the meeting from time to time until a quorum is obtained, and no further notice thereof need be given other than by announcement at the meeting which shall be so adjourned. The vote of a majority of the Directors present at a meeting at which a quorum is present shall be the act of the Board of Directors unless the Certificate of Incorporation or these By-Laws shall require a vote of a greater number.
Section 9. Compensation.
Unless otherwise restricted by the Certificate of Incorporation or these By-Laws, the Board of Directors shall have the authority to fix the compensation of Directors. Nothing herein contained shall be construed to preclude any Director from serving the Bank in any other capacity as an officer, agent or otherwise, and receiving compensation therefor.
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Section 10. Action Without Meeting.
Any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting, if prior to such action a written consent thereto is signed by all members of the Board of Directors, or of such committee as the case may be, and such written consent is filed with the minutes of proceedings of the Board of Directors or committee. Action taken under this section is the act of the Board of Directors when one or more consents signed by all of the Directors are delivered to the Bank. The consent may specify a later time as the time at which the action taken is to be effective. A Director’s consent may be withdrawn by a revocation signed by the Director and delivered to the Bank before delivery to the Bank of unrevoked written consents signed by all of the Directors. A consent signed under this section has the effect of action taken at a meeting of the Board of Directors and may be described as such in any document.
Section 11. Committees.
A majority of the Board of Directors shall have the authority to designate one or more committees, each committee to consist of one or more of the Directors of the Bank. The Board of Directors may designate one or more Directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. Any committee of the Board of Directors, to the extent provided in the resolutions of the Board of Directors or in these By-Laws, shall have and may exercise the powers of the Board of Directors in the management of the business and affairs of the Bank and may authorize the seal of the Bank to be affixed to all papers that may require it, in each case to the fullest extent permitted by applicable law. In the absence or disqualification of any member of a committee from voting at any meeting of such committee, the remaining member or members thereof present at such meeting and not disqualified from voting, whether or not the remaining member or members constitute a quorum, may unanimously appoint another member of the Board of Directors to act at such meeting in the place of any such absent or disqualified member.
Section 12. Eligibility.
No person shall be eligible to serve as Director of the Bank unless such person shall be the owner of shares of stock of the parent holding company of the number and held in the manner sufficient to meet the requirements of any applicable law or regulation in effect requiring the ownership of Directors’ qualifying shares.
Section 13. Directors Protected.
In accordance with the Alabama Business Corporation Law, Chapter 2A of Title 10A of the Code of Alabama (1975), or any statute amendatory or supplemental thereof (the “Corporation Law”) and specifically Section 10A-2A-8.30, each Director shall, in the performance of his or her duties, be fully protected in relying in good faith upon information, opinions, reports or statements, including financial statements and other financial data, made to the Directors by the officers or employees of the Bank; legal counsel, public accountants, certified public accountants or other persons as to matters the Director reasonably believes are within the person’s professional or expert competence; or a committee of the Board of Directors of which he or she is not a member if the Director reasonably believes the committee merits confidence, or in relying in good faith upon other records or books of account of the Bank.
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ARTICLE IV. OFFICERS
Section 1. Officers, Elections, Terms.
The officers of the Bank shall be a Chief Executive Officer; a President; one or more vice presidents or directors (referring in this context to service in an officer capacity), who may be designated Senior Executive Vice Presidents, Executive Vice Presidents, Executive Managing Directors, Senior Vice Presidents, Managing Directors, Vice Presidents, Directors, and Assistant Vice Presidents; a Secretary; one or more Assistant Secretaries; a Chief Financial Officer; a Controller; an Auditor; and such other officers as may be deemed appropriate. All of such officers shall be appointed annually by the Board of Directors to serve for a term of one (1) year and until their respective successors are appointed and qualified or until such officer’s earlier death, resignation, retirement or removal, except that the Board of Directors may delegate the authority to appoint officers holding the position of Senior Executive Vice President and below in accordance with procedures established or modified by the Board from time to time. None of the officers of the Bank need be Directors. More than one office may be held by the same person. The conduct of the business and affairs of the Bank by the officers shall be subject to the oversight of the Board of Directors and of any committee of the Board of Directors having authority over the subject matter.
Section 2. Chief Executive Officer.
The Board of Directors shall appoint a Chief Executive Officer of the Bank. The Chief Executive Officer is the most senior executive officer of the Bank, and shall be vested with authority to act for the Bank in all matters and shall have general supervision of the Bank and of its business affairs, including authority over the detailed operations of the Bank and over its personnel, with full power and authority during intervals between sessions of the Board of Directors to do and perform in the name of the Bank all acts and deeds necessary or proper, in his or her opinion, to be done and performed and to execute for and in the name of the Bank all instruments, agreements and deeds that may be authorized to be executed on behalf of the Bank or may be required by law. The Chief Executive Officer may, but need not, also hold the office of President.
Section 3. President.
The President shall have, and may exercise, the authority to act for the Bank in all ordinary matters and perform other such duties as directed by the By-Laws, the Board of Directors or the Chief Executive Officer. Among the officers of the Bank, the President is subordinate to only the Chief Executive Officer and is senior to the other officers of the Bank. The authority of the President shall include authority over the detailed operations of the Bank and over its personnel with full power and authority during intervals between sessions of the Board of Directors to do and perform in the name of the Bank all acts and deeds necessary or proper, in his or her opinion, to be done and performed and to execute for and in the name of the Bank all instruments, agreements and deeds that may be authorized to be executed on behalf of the Bank or may be required by law.
Section 4. Vice Presidents.
The vice presidents or directors, who may be designated as Senior Executive Vice Presidents, Executive Vice Presidents, Executive Managing Directors, Senior Vice Presidents, Managing Directors, Vice Presidents, Directors, and Assistant Vice Presidents, shall, subject to the control of the Chief Executive Officer or the President, have and may exercise the authority vested in them in all proper matters, including authority over the detailed operations of the Bank and over its personnel.
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Section 5. Chief Financial Officer.
The Chief Financial Officer, or his or her designee, shall have and perform such duties as are incident to the office of Chief Financial Officer and such other duties as may from time to time be assigned to him or her by the Board of Directors, the Chief Executive Officer or the President.
Section 6. Secretary and Assistant Secretary.
The Secretary shall keep minutes of all meetings of the stockholders and the Board of Directors unless otherwise directed by either of those bodies. The Secretary, or in his or her absence, any Assistant Secretary, shall attend to the giving and serving of all notices of the Bank. The Secretary shall perform all of the duties incident to the office of Secretary and shall do and perform such other duties as may from time to time be assigned by the Board of Directors, the Chair of the Board of Directors, the Chief Executive Officer or the President.
Section 7. Controller.
The Controller shall, under the direction of the Chief Executive Officer, the President, the Chief Financial Officer or other more senior officer, have general supervision and authority over all reports required of the Bank by law or by any public body or officer or regulatory authority pertaining to the condition of the Bank and its assets and liabilities. The Controller shall have general supervision of the books and accounts of the Bank and its methods and systems of recording and keeping accounts of its business transactions and of its assets and liabilities. The Controller shall be responsible for preparing statements showing the financial condition of the Bank and shall furnish such reports and financial records as may be required of him or her by the Board of Directors or by the Chief Executive Officer, the President, the Chief Financial Officer or other more senior officer.
Section 8. Auditor.
The Auditor’s office may be filled by an employee of the Bank or his or her duties may be performed by an employee or committee of the parent company of the Bank. The Auditor shall have general supervision of the auditing of the books and accounts of the Bank, and shall continuously and from time to time check and verify the Bank’s transactions, its assets and liabilities, and the accounts and doings of the officers, agents and employees of the Bank with respect thereto. The Auditor, whether an employee of the Bank or of its parent, shall be directly accountable to and under the jurisdiction of the Board of Directors and, if applicable, its designated committee, acting independently of all officers, agents and employees of the Bank. The Auditor shall render reports covering matters in his or her charge regularly and upon request to the Board and, if applicable, its designated committee.
Section 9. Other Officers and Agents.
The Board of Directors may appoint such other officers and agents as it may deem advisable, such as General Counsel, who shall exercise such powers and perform such duties as shall be determined from time to time by the Board of Directors. The functions of a cashier of the Bank may be performed by the Controller or any other officer of the Bank whose area of responsibility includes the function to be performed.
Section 10. Management Policymaking Committee.
Pursuant to the By-Laws of Regions Financial Corporation, the Chief Executive Officer shall establish and name (and may rename from time to time) an executive management committee to develop, publish and implement policies and procedures for the operation of Regions Financial Corporation and its subsidiaries and affiliates, including the Bank.
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Section 11. Officer in Charge of Wealth Management.
The officer in charge of Wealth Management shall be designated as such by the Board of Directors and shall exercise general supervision and management over the affairs of Private Wealth Management, Institutional Services and Wealth Management Middle Office, which groups are responsible for exercise of the Bank’s trust powers. Such officer is hereby empowered to appoint all necessary agents or attorneys; also to make, execute and acknowledge all checks, bonds, certificates, deeds, mortgages, notes, releases, leases, agreements, contracts, bills of sale, assignments, transfers, powers of attorney or of substitution, proxies to vote stock, or any other instrument in writing that may be necessary in the purchase, sale, mortgage, lease, assignment, transfer, management or handling, in any way of any property of any description held or controlled by the Bank in any fiduciary capacity. Said officer shall have such other duties and powers as shall be designated by the Board of Directors.
Section 12. Other Officers in Private Wealth Management, Institutional Services and Wealth Management Middle Office.
The officer in charge of Wealth Management shall appoint officers responsible for the activities of Private Wealth Management, Institutional Services and Wealth Management Middle Office. Various other officers as designated by the officers responsible for the activities of Private Wealth Management, Institutional Services and Wealth Management Middle Office are empowered and authorized to make, execute and acknowledge all checks, bonds, certificates, deeds, mortgages, notes, releases, leases, agreements, contracts, bills of sale, assignments, transfers, powers of attorney or substitution, proxies to vote stock or any other instrument in writing that may be necessary to the purchase, sale, mortgage, lease, assignments, transfer, management or handling in any way, of any property of any description held or controlled by the Bank in any fiduciary capacity.
Section 13. Removal and Resignation of Officers.
At its pleasure, the Board of Directors may remove any officer from office at any time by a majority vote of the Board of Directors; provided, however, that the terms of any employment or compensation contract shall be honored according to its terms. An individual’s status as an officer will terminate without the necessity of any other action or ratification immediately upon termination for any reason of the individual’s employment by the Bank. Any officer may resign at any time by delivering notice (whether written or verbal) to the Bank. Such resignation shall be effective immediately unless the notice of resignation specifies a later effective date.
ARTICLE V. MISCELLANEOUS
Section 1. Certificates of Stock.
Certificates of stock of the Bank shall be signed by the President and the Secretary of the Bank, which signatures may be represented by a facsimile signature. The certificate may be sealed with the seal of the Bank or an engraved or printed facsimile thereof. The certificate represents the number of shares of stock registered in certificate form owned by such holder.
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Section 2. Lost Certificates.
In case of the loss or destruction of any certificate of stock, the holder or owner of same shall give notice thereof to the Chief Executive Officer, the President, any Senior Executive Vice President or the Secretary of the Bank and, if such holder or owner shall desire the issue of a new certificate in the place of the one lost or destroyed, he or she shall make an affidavit of such loss or destruction and deliver the same to any one of said officers and accompany the same with a bond with surety satisfactory to the Bank to indemnify the Bank and save it harmless against any loss, cost or damage in case such certificate should thereafter be presented to the Bank, which affidavit and bond shall be, at the discretion of the deciding party listed in this Section 2, unless so ordered by a court having jurisdiction over the matter, approved or rejected by the Board of Directors, the Chief Executive Officer, the President or a Senior Executive Vice President before the issue of any new certificate.
Section 3. Transfer of Shares.
Title to a certificate and to the shares represented thereby can be transferred only by delivery of the certificate endorsed either in blank or to a specified person by the person appearing by the certificate to be the owner of the shares represented thereby, or by delivery of the certificate and a separate document containing a written assignment of the certificate or a power of attorney to sell, assign or transfer the same or the shares represented thereby, signed by the person appearing by the certificate to be the owner of the shares represented thereby. Such assignment or power of attorney may be either in blank or to a specified person.
Section 4. Fractional Shares.
No fractional part of a share of stock shall be issued by the Bank.
Section 5. Stockholders Record Date.
In order that the Bank may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or entitled to receive any rights in respect of any change, conversion or exchange of stock or for any other lawful action, the Board of Directors may fix, in advance, a record date, which shall not be more than sixty (60) nor less than ten (10) days before the date of such meeting, nor more than sixty (60) days prior to any other action. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.
Section 6. Dividends.
Subject to the provisions of the Certificate of Incorporation, at any regular or special meeting the Board of Directors may, out of funds legally available therefor, declare dividends upon the capital stock of the Bank as and when it deems expedient. Before declaring any dividend, there may be set apart out of any fund of the Bank available for dividends, such sum or sums as the Directors, from time to time in their discretion, deem proper for working capital; as a reserve fund to meet contingencies; for equalizing dividends; or for such other purposes as the Directors shall deem conducive to the interests of the Bank. No dividends shall be declared that exceed the amounts authorized by applicable laws and regulations or are otherwise contrary to law.
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Section 7. Seal.
The Bank may have a corporate seal, which shall have the name of the Bank inscribed thereon and shall be in such form as prescribed by the Board of Directors from time to time. The seal may also include appropriate descriptors, such as the words: “An Alabama Banking Corporation.” The Secretary of the Bank shall have custody of the seal and is authorized to affix the same to instruments, documents and papers as required by law or as customary or appropriate in the Secretary’s judgment and discretion. Without limiting the general authority of the Board of Directors of the Bank to name, appoint, remove and define the duties of officers of the Bank, the Secretary is further authorized to cause reproductions of the seal to be made, distributed to and used by officers and employees of the Bank whose duties and responsibilities involve the execution and delivery of instruments, documents and papers bearing the seal of the Bank. In this regard, the Secretary is further authorized to establish, implement, interpret and enforce policies and procedures governing the use of the seal and the authorization by the Secretary of officers and employees of the Bank to have custody of and to use the seal. Such policies and procedures may include (i) the right of the Secretary to appoint any Bank employee as an Assistant Secretary of the Bank, if such appointment would, in the Secretary’s judgment, be convenient with respect to such employee’s custody and use of a seal and/or (ii) the right of the Secretary to authorize Bank employees to have and use seals as delegates of the Secretary without appointing such employees as Assistant Secretaries of the Bank.
Section 8. Fiscal Year.
The fiscal year of the Bank shall be the calendar year.
Section 9. Checks, Drafts, Transfers, Services, etc.
The Chief Executive Officer, the President, any vice president or director, any Assistant Vice President, any Branch Manager, any Financial Relationship Specialist, any Financial Relationship Consultant or any other employee designated by the Board of Directors is authorized and empowered on behalf of the Bank and in its name to sign and endorse checks and warrants; to execute and deliver any and all documents that are necessary or desirable in connection with the opening of customer deposit accounts with the Bank, including, without limitation, documents associated with establishing treasury management services in connection with deposit accounts; documents requested or required by a third party in connection with the opening or rollover of individual retirement accounts to the Bank or otherwise; draw drafts; issue and sign cashier’s checks; guarantee signatures; give receipts for money due and payable to the Bank; and sign such other papers and do such other acts as are necessary in the performance of his or her duties. The authority conveyed to any employee designated by the Board of Directors may be limited by general or specific resolution of the Board of Directors.
Section 10. Notice and Waiver of Notice.
Whenever any notice whatever is required to be given under the provisions of any law or under the provisions of the Certificate of Incorporation of the Bank or these By-Laws, a waiver thereof in writing, signed by the person or persons entitled to notice, whether before or after the time stated therein, shall be deemed equivalent thereto. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of business at the meeting because the meeting is not lawfully called or convened.
Section 11. Right of Indemnity.
To the full extent provided for and in accordance with the Corporation Law, and specifically Section 10A-2A-8.50 et seq., the Bank shall indemnify and hold harmless each Director and each officer now or hereafter serving the Bank against any loss and reasonable expenses actually and necessarily incurred by him
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or her in connection with the defense of any claim, or any action, suit or proceeding against him or her or in which he or she is made a party, by reason of him or her being or having been a Director or officer of the Bank, or who, while a Director or officer of the Bank, is or was serving at the Bank’s request as a director, officer, partner, trustee, employee or agent of another foreign or domestic corporation, partnership, joint venture, trust, employee benefit plan or other enterprise. Such right of indemnity shall not be deemed exclusive of any other rights to which such Director or officer may be entitled under any statute, article of incorporation, rule of law, other bylaw, agreement, vote of stockholders or directors, or otherwise. Nor shall anything herein contained restrict the right of the Bank to indemnify or reimburse any officer or Director in any proper case even though not specifically provided for herein.
Notwithstanding anything to the contrary, the Bank shall not make or agree to make any indemnification payment to a Director or officer or any other institution-affiliated party (as such term is defined in 12 CFR § 359.1) with respect to (i) any civil money penalty or judgment resulting from any administrative or civil action instituted by any federal banking agency, except in full compliance with 12 CFR Part 359, (ii) any assessment, order of restitution, penalty or similar liability imposed under authority of the Banking Code, or (iii) any liability for violation of Section 10A-2A-8.32 of the Corporation Law.
In advance of final disposition, the Bank may, but is not required to, pay for or reimburse the reasonable expenses incurred by a person who may become eligible for indemnification under this Article V, Section 11, provided the conditions set forth in Section 10A-2A-8.53 of the Corporation Law (and, if applicable, 12 CFR § 359.5) shall have been satisfied.
The Bank may purchase and maintain insurance on behalf of said Directors or officers against liability asserted against or incurred by a Director or officer acting in such capacity as described in these By-Laws. Such insurance coverage shall not be used to pay or reimburse a person for the cost of (i) any judgment or civil money penalty assessed against such person in an administrative proceeding or civil action commenced by any federal banking agency or (ii) any assessment or penalty imposed under authority of the Banking Code. Such insurance coverage may be used to pay any legal or professional expenses incurred in connection with such proceeding or action or the amount of any restitution to the Bank. Any insurance coverage of legal or professional expenses will be coordinated with the Bank’s determination whether to advance expenses in advance of final disposition, taking into account the terms and conditions of the coverage and the requirements of Section 10A-2A-8.53 of the Corporation Law.
Section 12. Execution of Instruments and Documents.
The Chief Executive Officer; the President; any Senior Executive Vice President, Executive Vice President, Senior Vice President or Vice President; or any officer holding the title of Executive Managing Director, Managing Director or Director is authorized, in his or her discretion, to do and perform any and all corporate and official acts in carrying on the business of the Bank, including, but not limited to, the authority to make, execute, acknowledge, accept and deliver any and all deeds, mortgages, releases, bills of sale, assignments, transfers, leases (as lessor or lessee), powers of attorney or of substitution, servicing or sub-servicing agreements, vendor agreements, contracts, proxies to vote stock or any other instrument in writing that may be necessary in the purchase, sale, lease, assignment, transfer, discount, management or handling in any way of any property of any description held, controlled or used by Bank or to be held, controlled or used by Bank, either in its own or in its fiduciary capacity and including the authority from time to time to open bank accounts with the Bank or any other institution; to borrow money in such amounts for such lengths of time, at such rates of interest and upon such terms and conditions as any said officer may deem proper and to evidence the indebtedness thereby created by executing and delivering in the name
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of the Bank promissory notes or other appropriate evidences of indebtedness; and to guarantee the obligations of any subsidiary or affiliate of the Bank. The enumeration herein of particular powers shall not restrict in any way the general powers and authority of said officers.
By way of example and not limitation, such officers of the Bank are authorized to execute, accept, deliver and issue, on behalf of the Bank and as binding obligations of the Bank, such agreements and instruments as may be within the officer’s area of responsibility, including, as applicable, agreements and related documents (such as schedules, confirmations, transfers, assignments, acknowledgments and other documents) relating to derivative transactions, loan or letter of credit transactions, syndications, participations, trades, purchase and sale or discount transactions, transfers and assignments, servicing and sub-servicing agreements, vendor agreements, contracts, securitizations and transactions of whatever kind or description arising in the conduct of the Bank’s business.
The authority to execute and deliver documents, instruments and agreements may be limited by resolution of the Board of Directors or a committee of the Board of Directors, by the Chief Executive Officer or by the President, by reference to subject matter, category, amount, geographical location or any other criteria and may be made subject to such policies, procedures and levels of approval as may be adopted or amended from time to time.
Section 13. Voting Bank’s Securities.
Unless otherwise ordered by the Board of Directors, the Chief Executive Officer, the President, any Executive Vice President or Executive Managing Director or above, the Controller, the Bank’s General Counsel and any other officer as may be designated by the Board of Directors shall have full power and authority on behalf of the Bank (i) to attend and to act and vote or (ii) to execute a proxy or proxies empowering others to attend and to act and vote, at any meetings of security holders of any of the corporations, partnerships, limited liability companies or other entities in which the Bank may hold securities and, at such meetings, such officer shall possess and may exercise any and all rights and powers incident to the ownership of such securities which, as the owner thereof, the Bank might have possessed and exercised, if present.
Section 14. Bonds of Officers and Employees.
The Board of Directors shall, pursuant to the Banking Code, designate the officers and employees who shall be required to give bond and fix the amounts thereof.
Section 15. Satisfaction of Loans.
On payment of sums lent, for which security shall have been taken either by way of mortgage or other lien on real or personal property or by the pledge of collateral, whether said loans have been made from funds of the Bank or from funds held in fiduciary capacity, any officer of the Bank shall have the power and authority to sign or execute any and all collateral release documents that may be necessary or desirable for the purpose of releasing property or property rights held by the Bank as collateral for obligations to the Bank that are paid in full or otherwise satisfied or settled and enter the fact of payment or satisfaction on the margin of the record of any such security or in any other legal manner to cancel such indebtedness and to release said security, and the Chief Executive Officer, the President or any Vice President or Director of the Bank shall have power and authority to execute a power of attorney authorizing the cancellation, release or satisfaction of any mortgage or other security given to the Bank in its corporate or fiduciary capacity, by such person as he or she may in his or her discretion appoint.
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ARTICLE VI. AMENDMENTS
Except as otherwise provided herein or in the Certificate of Incorporation of the Bank, these By-Laws may be amended or repealed by the affirmative vote of a majority of the Directors then holding office at any regular or special meeting of the Board of Directors, and the stockholders may make, alter or repeal any By-Laws, whether or not adopted by them.
ARTICLE VII. EMERGENCY BY-LAWS
Section 1. Emergency By-Laws.
This Article VII shall be operative if a quorum of the Bank’s Directors cannot readily be assembled because of some catastrophic event (an “emergency”), notwithstanding any different or conflicting provisions in these By-Laws, the Certificate of Incorporation or the Code of Alabama. To the extent not inconsistent with the provisions of this Article VII, the By-Laws provided in the other Articles of these By-Laws and the provisions of the Certificate of Incorporation shall remain in effect during such emergency, and upon termination of such emergency, the provisions of this Article VII shall cease to be operative.
Section 2. Meetings.
During any emergency, a meeting of the Board of Directors, or any committee thereof, may be called by any member of the Board of Directors, the President, a Senior Executive Vice President, the Secretary or an Assistant Secretary. Notice of the time and place of the meeting shall be given by any available means of communication by the individual calling the meeting to such of the Directors and/or Designated Officers, as defined in Section 3 of this Article VII, as it may be feasible to reach. Such notice shall be given at such time in advance of the meeting as, in the judgment of the individual calling the meeting, circumstances permit. As a result of such emergency, the Board of Directors may determine that a meeting of stockholders not be held at any place, but instead be held solely by means of remote communication in accordance with the Corporation Law.
Section 3. Quorum.
At any meeting of the Board, or any committee thereof, called in accordance with Section 2 of this Article VII, the presence or participation of two Directors or one Director and a Designated Officer shall constitute a quorum for the transaction of business. In the event that no Directors are able to attend the meeting of the Board of Directors, then the Designated Officers in attendance shall serve as directors for the meeting, without any additional quorum requirement and will have full powers to act as directors of the Bank.
The Board of Directors or the committees thereof, as the case may be, shall, from time to time but in any event prior to such time or times as an emergency may have occurred, designate the officers of the Bank in a numbered list (the “Designated Officers”) who shall be deemed, in the order in which they appear on such list, directors of the Bank for purposes of obtaining a quorum during an emergency, if a quorum of Directors cannot otherwise be obtained.
Section 4. By-Laws.
At any meeting called in accordance with Section 2 of this Article VII, the Board of Directors or a committee thereof, as the case may be, may modify, amend or add to the provisions of this Article VII so as to make any provision that may be practical or necessary for the circumstances of the emergency.
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Section 5. Liability.
No officer, Director or employee of the Bank acting in accordance with the provisions of this Article VII shall be liable except for willful misconduct.
Section 6. Repeal or Change.
The provisions of this Article VII shall be subject to repeal or change by further action of the Board of Directors or by action of the stockholders, but no such repeal or change shall modify the provisions of Section 5 of this Article VII with regard to action taken prior to the time of such repeal or change.
Section 7. Continued Operations.
In the event of an emergency declared by the President of the United States or the person performing his or her functions, the officers and employees of the Bank will continue to conduct the affairs of the Bank under such guidance from the Directors as may be available except as to matters which by statute require specific approval of the Board of Directors and subject to conformance with any governmental directives or directives of the Federal Deposit Insurance Corporation during the emergency.
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EXHIBIT 6
CONSENT
In accordance with Section 321 (b) of the Trust Indenture Act of 1939, Regions Bank hereby consents that reports of examination of Regions Bank by Federal, State, Territorial or District regulatory authorities may be furnished by such regulatory authorities to the Securities and Exchange Commission upon request therefor.
Dated: May 3, 2022
| REGIONS BANK |
| /s/ Kerry McFarland |
| Kerry McFarland |
| Vice President |
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EXHIBIT 7
Consolidated Report of Condition for Insured Banks
and Savings Associations
REGIONS BANK
As of the close of business on December 31, 2021:
| ASSETS |
Thousands of Dollars |
|||
| Cash and balances due from depository institutions: |
29,782,000 | |||
| Securities: |
29,647,000 | |||
| Federal funds sold and securities purchased under agreement to resell: |
0 | |||
| Loans and leases held for sale: |
990,000 | |||
| Loans and leases held for investment, net of allowance: |
86,305,000 | |||
| Trading Assets: |
13,000 | |||
| Premises and fixed assets: |
2,263,000 | |||
| Other real estate owned: |
13,000 | |||
| Investments in unconsolidated subsidiaries and associated companies: |
118,000 | |||
| Direct and indirect investments in real estate ventures: |
0 | |||
| Intangible assets: |
5,996,000 | |||
| Other assets: |
7,066,000 | |||
| Total Assets: |
162,193,000 | |||
|
|
|
|||
| LIABILITIES |
Thousands of Dollars |
|||
| Deposits |
141,129,000 | |||
| Federal funds purchased and securities sold under agreements to repurchase |
0 | |||
| Trading liabilities: |
0 | |||
| Other borrowed money: |
2,000 | |||
| Subordinated notes and debentures: |
496,000 | |||
| Other Liabilities: |
2,866,000 | |||
| Total Liabilities |
144,493,000 | |||
|
|
|
|||
| EQUITY CAPITAL |
Thousands of Dollars |
|||
| Common Stock |
0 | |||
| Surplus |
16,399,000 | |||
| Retained Earnings |
1,012,000 | |||
| Accumulated other comprehensive income |
289,000 | |||
| Total Equity Capital |
17,700,000 | |||
| Total Liabilities and Equity Capital |
162,193,000 | |||
|
|
|
|||
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Exhibit 25.2
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY UNDER
THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
| ☐ | Check if an Application to Determine Eligibility of a Trustee Pursuant to Section 305(b)(2) |
U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION
(Exact name of Trustee as specified in its charter)
91-1821036
I.R.S. Employer Identification No.
| 800 Nicollet Mall | ||
| Minneapolis, Minnesota | 55402 | |
| (Address of principal executive offices) | (Zip Code) |
Linda Garcia
U.S. Bank Trust Company, National Association
190 S LaSalle Street
Chicago, IL 60603
(312) 332-6781
(Name, address and telephone number of agent for service)
SPIRE INC.
(Issuer with respect to the Securities)
| Missouri | 74-2976504 | |
| (State or other jurisdiction of incorporation or organization) |
(I.R.S. Employer Identification No.) |
| 700 Market Street | ||
| St. Louis, MO | 63101 | |
| (Address of Principal Executive Offices) | (Zip Code) |
Senior Debt Securities
Junior Subordinated Debt Securities
(Title of the Indenture Securities)
FORM T-1
Item 1. GENERAL INFORMATION. Furnish the following information as to the Trustee.
| a) | Name and address of each examining or supervising authority to which it is subject. |
Comptroller of the Currency
Washington, D.C.
| b) | Whether it is authorized to exercise corporate trust powers. |
Yes
Item 2. AFFILIATIONS WITH THE OBLIGOR. If the obligor is an affiliate of the Trustee, describe each such affiliation.
None
Items 3-15 Items 3-15 are not applicable because to the best of the Trustee’s knowledge, the obligor is not in default under any Indenture for which the Trustee acts as Trustee.
Item 16. LIST OF EXHIBITS: List below all exhibits filed as a part of this statement of eligibility and qualification.
| 1. | A copy of the Articles of Association of the Trustee, attached as Exhibit 1. |
| 2. | A copy of the certificate of authority of the Trustee to commence business, attached as Exhibit 2. |
| 3. | A copy of the certificate of authority of the Trustee to exercise corporate trust powers, attached as Exhibit 3. |
| 4. | A copy of the existing bylaws of the Trustee, attached as Exhibit 4. |
| 5. | A copy of each Indenture referred to in Item 4. Not applicable. |
| 6. | The consent of the Trustee required by Section 321(b) of the Trust Indenture Act of 1939, attached as Exhibit 6. |
| 7. | Report of Condition of the Trustee as of December 31, 2021 published pursuant to law or the requirements of its supervising or examining authority, attached as Exhibit 7. |
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as amended, the Trustee, U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, a national banking association organized and existing under the laws of the United States of America, has duly caused this statement of eligibility and qualification to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of Chicago, State of Illinois on the 29th of April, 2022.
| By: | /s/ Linda Garcia | |
| Linda Garcia | ||
| Vice President |
Exhibit 1
ARTICLES OF ASSOCIATION
OF
U. S. BANK TRUST COMPANY, NATIONAL ASSOCIATION
For the purpose of organizing an association (the “Association) to perform any lawful activities of national banks, the undersigned enter into the following Articles of Association:
FIRST. The title of this Association shall be U. S. Bank Trust Company, National Association.
SECOND. The main office of the Association shall be in the city of Portland, county of Multnomah, state of Oregon. The business of the Association will be limited to fiduciary powers and the support of activities incidental to the exercise of those powers. The Association may not expand or alter its business beyond that stated in this article without the prior approval of the Comptroller of the Currency.
THIRD. The board of directors of the Association shall consist of not less than five nor more than twenty-five persons, the exact number to be fixed and determined from time to time by resolution of a majority of the full board of directors or by resolution of a majority of the shareholders at any annual or special meeting thereof. Each director shall own common or preferred stock of the Association or of a holding company owning the Association, with an aggregate par, fair market, or equity value of not less than $1,000, as of either (i) the date of purchase, (ii) the date the person became a director, or (iii) the date of that person’s most recent election to the board of directors, whichever is more recent. Any combination of common or preferred stock of the Association or holding company may be used.
Any vacancy in the board of directors may be filled by action of a majority of the remaining directors between meetings of shareholders. The board of directors may increase the number of directors up to the maximum permitted by law. Terms of directors, including directors selected to fill vacancies, shall expire at the next regular meeting of shareholders at which directors are elected, unless the directors resign or are removed from office. Despite the expiration of a director’s term, the director shall continue to serve until his or her successor is elected and qualified or until there is a decrease in the number of directors and his or her position is eliminated.
Honorary or advisory members of the board of directors, without voting power or power of final decision in matters concerning the business of the Association, may be appointed by resolution of a majority of the full board of directors, or by resolution of shareholders at any annual or special meeting. Honorary or advisory directors shall not be counted to determined the number of directors of the Association or the presence of a quorum in connection with any board action, and shall not be required to own qualifying shares.
FOURTH. There shall be an annual meeting of the shareholders to elect directors and transact whatever other business may be brought before the meeting. It shall be held at the main office or any other convenient place the board of directors may designate, on the day of each year specified therefor in the Bylaws, or if that day falls on a legal holiday in the state in which the
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Association is located, on the next following banking day. If no election is held on the day fixed or in the event of a legal holiday on the following banking day, an election may be held on any subsequent day within 60 days of the day fixed, to be designated by the board of directors, or, if the directors fail to fix the day, by shareholders representing two-thirds of the shares issued and outstanding. In all cases, at least 10 days’ advance notice of the meeting shall be given to the shareholders by first-class mail.
In all elections of directors, the number of votes each common shareholder may cast will be determined by multiplying the number of shares he or she owns by the number of directors to be elected. Those votes may be cumulated and cast for a single candidate or may be distributed among two or more candidates in the manner selected by the shareholder. On all other questions, each common shareholder shall be entitled to one vote for each share of stock held by him or her.
A director may resign at any time by delivering written notice to the board of directors, its chairperson, or to the Association, which resignation shall be effective when the notice is delivered unless the notice specifies a later effective date.
A director may be removed by the shareholders at a meeting called to remove him or her, when notice of the meeting stating that the purpose or one of the purposes is to remove him or her is provided, if there is a failure to fulfill one of the affirmative requirements for qualification, or for cause; provided, however, that a director may not be removed if the number of votes sufficient to elect him or her under cumulative voting is voted against his or her removal.
FIFTH. The authorized amount of capital stock of the Association shall be 1,000,000 shares of common stock of the par value of ten dollars ($10) each; but said capital stock may be increased or decreased from time to time, according to the provisions of the laws of the United States. The Association shall have only one class of capital stock.
No holder of shares of the capital stock of any class of the Association shall have any preemptive or preferential right of subscription to any shares of any class of stock of the Association, whether now or hereafter authorized, or to any obligations convertible into stock of the Association, issued, or sold, nor any right of subscription to any thereof other than such, if any, as the board of directors, in its discretion, may from time to time determine and at such price as the board of directors may from time to time fix.
Transfers of the Association’s stock are subject to the prior written approval of a federal depository institution regulatory agency. If no other agency approval is required, the approval of the Comptroller of the Currency must be obtained prior to any such transfers.
Unless otherwise specified in the Articles of Association or required by law, (1) all matters requiring shareholder action, including amendments to the Articles of Association must be approved by shareholders owning a majority voting interest in the outstanding voting stock, and (2) each shareholder shall be entitled to one vote per share.
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Unless otherwise specified in the Articles of Association or required by law, all shares of voting stock shall be voted together as a class, on any matters requiring shareholder approval.
Unless otherwise provided in the Bylaws, the record date for determining shareholders entitled to notice of and to vote at any meeting is the close of business on the day before the first notice is mailed or otherwise sent to the shareholders, provided that in no event may a record date be more than 70 days before the meeting.
The Association, at any time and from time to time, may authorize and issue debt obligations, whether subordinated, without the approval of the shareholders. Obligations classified as debt, whether subordinated, which may be issued by the Association without the approval of shareholders, do not carry voting rights on any issue, including an increase or decrease in the aggregate number of the securities, or the exchange or reclassification of all or part of securities into securities of another class or series.
SIXTH. The board of directors shall appoint one of its members president of this Association and one of its members chairperson of the board and shall have the power to appoint one or more vice presidents, a secretary who shall keep minutes of the directors’ and shareholders’ meetings and be responsible for authenticating the records of the Association, and such other officers and employees as may be required to transact the business of this Association. A duly appointed officer may appoint one or more officers or assistant officers if authorized by the board of directors in accordance with the Bylaws.
The board of directors shall have the power to:
| (1) | Define the duties of the officers, employees, and agents of the Association. |
| (2) | Delegate the performance of its duties, but not the responsibility for its duties, to the officers, employees, and agents of the Association. |
| (3) | Fix the compensation and enter employment contracts with its officers and employees upon reasonable terms and conditions consistent with applicable law. |
| (4) | Dismiss officers and employees. |
| (5) | Require bonds from officers and employees and to fix the penalty thereof. |
| (6) | Ratify written policies authorized by the Association’s management or committees of the board. |
| (7) | Regulate the manner any increase or decrease of the capital of the Association shall be made; provided that nothing herein shall restrict the power of shareholders to increase or decrease the capital of the Association in accordance with law, and nothing shall raise or lower from two-thirds the percentage required for shareholder approval to increase or reduce the capital. |
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| (8) | Manage and administer the business and affairs of the Association. |
| (9) | Adopt initial Bylaws, not inconsistent with law or the Articles of Association, for managing the business and regulating the affairs of the Association. |
| (10) | Amend or repeal Bylaws, except to the extent that the Articles of Association reserve this power in whole or in part to the shareholders. |
| (11) | Make contracts. |
| (12) | Generally perform all acts that are legal for a board of directors to perform. |
SEVENTH. The board of directors shall have the power to change the location of the main office to any authorized branch within the limits of the city of Portland, Oregon, without the approval of the shareholders, or with a vote of shareholders owning two-thirds of the stock of the Association for a location outside such limits and upon receipt of a certificate of approval from the Comptroller of the Currency, to any other location within or outside the limits of the city of Portland, Oregon, but not more than thirty miles beyond such limits. The board of directors shall have the power to establish or change the location of any office or offices of the Association to any other location permitted under applicable law, without approval of shareholders, subject to approval by the Comptroller of the Currency.
EIGHTH. The corporate existence of this Association shall continue until termination according to the laws of the United States.
NINTH. The board of directors of the Association, or any shareholder owning, in the aggregate, not less than 25 percent of the stock of the Association, may call a special meeting of shareholders at any time. Unless otherwise provided by the Bylaws or the laws of the United States, or waived by shareholders, a notice of the time, place, and purpose of every annual and special meeting of the shareholders shall be given by first-class mail, postage prepaid, mailed at least 10, and no more than 60, days prior to the date of the meeting to each shareholder of record at his/her address as shown upon the books of the Association. Unless otherwise provided by the Bylaws, any action requiring approval of shareholders must be effected at a duly called annual or special meeting.
TENTH. These Articles of Association may be amended at any regular or special meeting of the shareholders by the affirmative vote of the holders of a majority of the stock of the Association, unless the vote of the holders of a greater amount of stock is required by law, and in that case by the vote of the holders of such greater amount; provided, that the scope of the Association’s activities and services may not be expanded without the prior written approval of the Comptroller of the Currency. The Association’s board of directors may propose one or more amendments to the Articles of Association for submission to the shareholders.
| - 4 - | 80000-383/06fY297/XBBfY2E85 |
In witness whereof, we have hereunto set our hands this 11th of June, 1997.
| /s/ Jeffery T. Grubb |
| Jeffery T. Grubb |
| /s/ Robert D. Sznewajs |
| Robert D. Sznewajs |
| /s/ Dwight V. Board |
| Dwight V. Board |
| /s/ P. K. Chatterjee |
| P. K. Chatterjee |
| /s/ Robert Lane |
| Robert Lane |
Exhibit 2
|
Office of the Comptroller of the Currency | |||
| Washington, DC 20219 |
CERTIFICATE OF CORPORATE EXISTENCE
I, Michael J. Hsu, Acting Comptroller of the Currency, do hereby certify that:
1. The Comptroller of the Currency, pursuant to Revised Statutes 324, et seq, as amended, and 12 USC 1, et seq, as amended, has possession, custody, and control of all records pertaining to the chartering, regulation, and supervision of all national banking associations.
2. “U.S. Bank Trust Company, National Association,” Portland, Oregon (Charter No. 23412), is a national banking association formed under the laws of the United States and is authorized thereunder to transact the business of banking on the date of this certificate.
IN TESTIMONY WHEREOF, today, January 12, 2022, I have hereunto subscribed my name and caused my seal of office to be affixed to these presents at the U.S. Department of the Treasury, in the City of Washington, District of Columbia
2022-00335-C
Exhibit 3
|
|
Office of the Comptroller of the Currency | |||
| Washington, DC 20219 |
CERTIFICATE OF FIDUCIARY POWERS
I, Michael J. Hsu, Acting Comptroller of the Currency, do hereby certify that:
1. The Office of the Comptroller of the Currency, pursuant to Revised Statutes 324, et seq, as amended, and 12 USC 1, et seq, as amended, has possession, custody, and control of all records pertaining to the chartering, regulation, and supervision of all national banking associations.
2. “U.S. Bank Trust Company, National Association,” Portland, Oregon (Charter No. 23412), was granted, under the hand and seal of the Comptroller, the right to act in all fiduciary capacities authorized under the provisions of the Act of Congress approved September 28, 1962, 76 Stat. 668, 12 USC 92a, and that the authority so granted remains in full force and effect on the date of this certificate.
IN TESTIMONY WHEREOF, today, January 19, 2022, I have hereunto subscribed my name and caused my seal of office to be affixed to these presents at the U.S. Department of the Treasury, in the City of Washington, District of Columbia.
2022-00354-C
Exhibit 4
U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION
AMENDED AND RESTATED BYLAWS
ARTICLE I
Meetings of Shareholders
Section 1.1. Annual Meeting. The annual meeting of the shareholders, for the election of directors and the transaction of any other proper business, shall be held at a time and place as the Chairman or President may designate. Notice of such meeting shall be given not less than ten (10) days or more than sixty (60) days prior to the date thereof, to each shareholder of the Association, unless the Office of the Comptroller of the Currency (the “OCC”) determines that an emergency circumstance exists. In accordance with applicable law, the sole shareholder of the Association is permitted to waive notice of the meeting. If, for any reason, an election of directors is not made on the designated day, the election shall be held on some subsequent day, as soon thereafter as practicable, with prior notice thereof. Failure to hold an annual meeting as required by these Bylaws shall not affect the validity of any corporate action or work a forfeiture or dissolution of the Association.
Section 1.2. Special Meetings. Except as otherwise specially provided by law, special meetings of the shareholders may be called for any purpose, at any time by a majority of the board of directors (the “Board”), or by any shareholder or group of shareholders owning at least ten percent of the outstanding stock. Every such special meeting, unless otherwise provided by law, shall be called upon not less than ten (10) days nor more than sixty (60) days prior notice stating the purpose of the meeting.
Section 1.3. Nominations for Directors. Nominations for election to the Board may be made by the Board or by any shareholder.
Section 1.4. Proxies. Shareholders may vote at any meeting of the shareholders by proxies duly authorized in writing. Proxies shall be valid only for one meeting and any adjournments of such meeting and shall be filed with the records of the meeting.
Section 1.5. Record Date. The record date for determining shareholders entitled to notice and to vote at any meeting will be thirty days before the date of such meeting, unless otherwise determined by the Board.
Section 1.6. Quorum and Voting. A majority of the outstanding capital stock, represented in person or by proxy, shall constitute a quorum at any meeting of shareholders, unless otherwise provided by law, but less than a quorum may adjourn any meeting, from time to time, and the meeting may be held as adjourned without further notice. A majority of the votes cast shall decide every question or matter submitted to the shareholders at any meeting, unless otherwise provided by law or by the Articles of Association.
Section 1.7. Inspectors. The Board may, and in the event of its failure so to do, the Chairman of the Board may appoint Inspectors of Election who shall determine the presence of quorum, the validity of proxies, and the results of all elections and all other matters voted upon by shareholders at all annual and special meetings of shareholders.
Section 1.8. Waiver and Consent. The shareholders may act without notice or a meeting by a unanimous written consent by all shareholders.
Section 1.9. Remote Meetings. The Board shall have the right to determine that a shareholder meeting not be held at a place, but instead be held solely by means of remote communication in the manner and to the extent permitted by the General Corporation Law of the State of Delaware.
ARTICLE II
Directors
Section 2.1. Board of Directors. The Board shall have the power to manage and administer the business and affairs of the Association. Except as expressly limited by law, all corporate powers of the Association shall be vested in and may be exercised by the Board.
Section 2.2. Term of Office. The directors of this Association shall hold office for one year and until their successors are duly elected and qualified, or until their earlier resignation or removal.
Section 2.3. Powers. In addition to the foregoing, the Board shall have and may exercise all of the powers granted to or conferred upon it by the Articles of Association, the Bylaws and by law.
Section 2.4. Number. As provided in the Articles of Association, the Board of this Association shall consist of no less than five nor more than twenty-five members, unless the OCC has exempted the Association from the twenty-five-member limit. The Board shall consist of a number of members to be fixed and determined from time to time by resolution of the Board or the shareholders at any meeting thereof, in accordance with the Articles of Association. Between meetings of the shareholders held for the purpose of electing directors, the Board
by a majority vote of the full Board may increase the size of the Board but not to more than a total of twenty-five directors, and fill any vacancy so created in the Board; provided that the Board may increase the number of directors only by up to two directors, when the number of directors last elected by shareholders was fifteen or fewer, and by up to four directors, when the number of directors last elected by shareholders was sixteen or more. Each director shall own a qualifying equity interest in the Association or a company that has control of the Association in each case as required by applicable law. Each director shall own such qualifying equity interest in his or her own right and meet any minimum threshold ownership required by applicable law.
Section 2.5. Organization Meeting. The newly elected Board shall meet for the purpose of organizing the new Board and electing and appointing such officers of the Association as may be appropriate. Such meeting shall be held on the day of the election or as soon thereafter as practicable, and, in any event, within thirty days thereafter, at such time and place as the Chairman or President may designate. If, at the time fixed for such meeting, there shall not be a quorum present, the directors present may adjourn the meeting until a quorum is obtained.
Section 2.6. Regular Meetings. The regular meetings of the Board shall be held, without notice, as the Chairman or President may designate and deem suitable.
Section 2.7. Special Meetings. Special meetings of the Board may be called at any time, at any place and for any purpose by the Chairman of the Board or the President of the Association, or upon the request of a majority of the entire Board. Notice of every special meeting of the Board shall be given to the directors at their usual places of business, or at such other addresses as shall have been furnished by them for the purpose. Such notice shall be given at least twelve hours (three hours if meeting is to be conducted by conference telephone) before the meeting by telephone or by being personally delivered, mailed, or electronically delivered. Such notice need not include a statement of the business to be transacted at, or the purpose of, any such meeting.
Section 2.8. Quorum and Necessary Vote. A majority of the directors shall constitute a quorum at any meeting of the Board, except when otherwise provided by law; but less than a quorum may adjourn any meeting, from time to time, and the meeting may be held as adjourned without further notice. Unless otherwise provided by law or the Articles or Bylaws of this Association, once a quorum is established, any act by a majority of those directors present and voting shall be the act of the Board.
Section 2.9. Written Consent. Except as otherwise required by applicable laws and regulations, the Board may act without a meeting by a unanimous written consent by all directors, to be filed with the Secretary of the Association as part of the corporate records.
Section 2.10. Remote Meetings. Members of the Board, or of any committee thereof, may participate in a meeting of such Board or committee by means of conference telephone, video or similar communications equipment by means of which all persons participating in the meeting can hear each other and such participation shall constitute presence in person at such meeting.
Section 2.11. Vacancies. When any vacancy occurs among the directors, the remaining members of the Board may appoint a director to fill such vacancy at any regular meeting of the Board, or at a special meeting called for that purpose.
ARTICLE III
Committees
Section 3.1. Advisory Board of Directors. The Board may appoint persons, who need not be directors, to serve as advisory directors on an advisory board of directors established with respect to the business affairs of either this Association alone or the business affairs of a group of affiliated organizations of which this Association is one. Advisory directors shall have such powers and duties as may be determined by the Board, provided, that the Board’s responsibility for the business and affairs of this Association shall in no respect be delegated or diminished.
Section 3.2. Trust Audit Committee. At least once during each calendar year, the Association shall arrange for a suitable audit (by internal or external auditors) of all significant fiduciary activities under the direction of its trust audit committee, a function that will be fulfilled by the Audit Committee of the financial holding company that is the ultimate parent of this Association. The Association shall note the results of the audit (including significant actions taken as a result of the audit) in the minutes of the Board. In lieu of annual audits, the Association may adopt a continuous audit system in accordance with 12 C.F.R. § 9.9(b).
The Audit Committee of the financial holding company that is the ultimate parent of this Association, fulfilling the function of the trust audit committee:
(1) Must not include any officers of the Association or an affiliate who participate significantly in the administration of the Association’s fiduciary activities; and
(2) Must consist of a majority of members who are not also members of any committee to which the Board has delegated power to manage and control the fiduciary activities of the Association.
Section 3.3. Executive Committee. The Board may appoint an Executive Committee which shall consist of at least three directors and which shall have, and may exercise, to the extent permitted by applicable law, all the powers of the Board between meetings of the Board or otherwise when the Board is not meeting.
Section 3.4. Trust Management Committee. The Board of this Association shall appoint a Trust Management Committee to provide oversight of the fiduciary activities of the Association. The Trust Management Committee shall determine policies governing fiduciary activities. The Trust Management Committee or such sub-committees, officers or others as may be duly designated by the Trust Management Committee shall oversee the processes related to fiduciary activities to assure conformity with fiduciary policies it establishes, including ratifying the acceptance and the closing out or relinquishment of all trusts. The Trust Management Committee will provide regular reports of its activities to the Board.
Section 3.5. Other Committees. The Board may appoint, from time to time, committees of one or more persons who need not be directors, for such purposes and with such powers as the Board may determine; however, the Board will not delegate to any committee any powers or responsibilities that it is prohibited from delegating under any law or regulation. In addition, either the Chairman or the President may appoint, from time to time, committees of one or more officers, employees, agents or other persons, for such purposes and with such powers as either the Chairman or the President deems appropriate and proper. Whether appointed by the Board, the Chairman, or the President, any such committee shall at all times be subject to the direction and control of the Board.
Section 3.6. Meetings, Minutes and Rules. An advisory board of directors and/or committee shall meet as necessary in consideration of the purpose of the advisory board of directors or committee, and shall maintain minutes in sufficient detail to indicate actions taken or recommendations made; unless required by the members, discussions, votes or other specific details need not be reported. An advisory board of directors or a committee may, in consideration of its purpose, adopt its own rules for the exercise of any of its functions or authority.
ARTICLE IV
Officers
Section 4.1. Chairman of the Board. The Board may appoint one of its members to be Chairman of the Board to serve at the pleasure of the Board. The Chairman shall supervise the carrying out of the policies adopted or approved by the Board; shall have general executive powers, as well as the specific powers conferred by these Bylaws; and shall also have and may exercise such powers and duties as from time to time may be conferred upon or assigned by the Board.
Section 4.2. President. The Board may appoint one of its members to be President of the Association. In the absence of the Chairman, the President shall preside at any meeting of the Board. The President shall have general executive powers, and shall have and may exercise any and all other powers and duties pertaining by law, regulation or practice, to the office of President, or imposed by these Bylaws. The President shall also have and may exercise such powers and duties as from time to time may be conferred or assigned by the Board.
Section 4.3. Vice President. The Board may appoint one or more Vice Presidents who shall have such powers and duties as may be assigned by the Board and to perform the duties of the President on those occasions when the President is absent, including presiding at any meeting of the Board in the absence of both the Chairman and President.
Section 4.4. Secretary. The Board shall appoint a Secretary, or other designated officer who shall be Secretary of the Board and of the Association, and shall keep accurate minutes of all meetings. The Secretary shall attend to the giving of all notices required by these Bylaws to be given; shall be custodian of the corporate seal, records, documents and papers of the Association; shall provide for the keeping of proper records of all transactions of the Association; shall, upon request, authenticate any records of the Association; shall have and may exercise any and all other powers and duties pertaining by law, regulation or practice, to the Secretary, or imposed by these Bylaws; and shall also perform such other duties as may be assigned from time to time by the Board. The Board may appoint one or more Assistant Secretaries with such powers and duties as the Board, the President or the Secretary shall from time to time determine.
Section 4.5. Other Officers. The Board may appoint, and may authorize the Chairman, the President or any other officer to appoint, any officer as from time to time may appear to the Board, the Chairman, the President or such other
officer to be required or desirable to transact the business of the Association. Such officers shall exercise such powers and perform such duties as pertain to their several offices, or as may be conferred upon or assigned to them by these Bylaws, the Board, the Chairman, the President or such other authorized officer. Any person may hold two offices.
Section 4.6. Tenure of Office. The Chairman or the President and all other officers shall hold office until their respective successors are elected and qualified or until their earlier death, resignation, retirement, disqualification or removal from office, subject to the right of the Board or authorized officer to discharge any officer at any time.
ARTICLE V
Stock
Section 5.1. The Board may authorize the issuance of stock either in certificated or in uncertificated form. Certificates for shares of stock shall be in such form as the Board may from time to time prescribe. If the Board issues certificated stock, the certificate shall be signed by the President, Secretary or any other such officer as the Board so determines. Shares of stock shall be transferable on the books of the Association, and a transfer book shall be kept in which all transfers of stock shall be recorded. Every person becoming a shareholder by such transfer shall, in proportion to such person’s shares, succeed to all rights of the prior holder of such shares. Each certificate of stock shall recite on its face that the stock represented thereby is transferable only upon the books of the Association properly endorsed. The Board may impose conditions upon the transfer of the stock reasonably calculated to simplify the work of the Association for stock transfers, voting at shareholder meetings, and related matters, and to protect it against fraudulent transfers.
ARTICLE VI
Corporate Seal
Section 6.1. The Association shall have no corporate seal; provided, however, that if the use of a seal is required by, or is otherwise convenient or advisable pursuant to, the laws or regulations of any jurisdiction, the following seal may be used, and the Chairman, the President, the Secretary and any Assistant Secretary shall have the authority to affix such seal:
ARTICLE VII
Miscellaneous Provisions
Section 7.1. Execution of Instruments. All agreements, checks, drafts, orders, indentures, notes, mortgages, deeds, conveyances, transfers, endorsements, assignments, certificates, declarations, receipts, discharges, releases, satisfactions, settlements, petitions, schedules, accounts, affidavits, bonds, undertakings, guarantees, proxies and other instruments or documents may be signed, countersigned, executed, acknowledged, endorsed, verified, delivered or accepted on behalf of the Association, whether in a fiduciary capacity or otherwise, by any officer of the Association, or such employee or agent as may be designated from time to time by the Board by resolution, or by the Chairman or the President by written instrument, which resolution or instrument shall be certified as in effect by the Secretary or an Assistant Secretary of the Association. The provisions of this section are supplementary to any other provision of the Articles of Association or Bylaws.
Section 7.2. Records. The Articles of Association, the Bylaws as revised or amended from time to time and the proceedings of all meetings of the shareholders, the Board, and standing committees of the Board, shall be recorded in appropriate minute books provided for the purpose. The minutes of each meeting shall be signed by the Secretary, or other officer appointed to act as Secretary of the meeting.
Section 7.3. Trust Files. There shall be maintained in the Association files all fiduciary records necessary to assure that its fiduciary responsibilities have been properly undertaken and discharged.
Section 7.4. Trust Investments. Funds held in a fiduciary capacity shall be invested according to the instrument establishing the fiduciary relationship and according to law. Where such instrument does not specify the character and class of investments to be made and does not vest in the Association a discretion in the matter, funds held pursuant to such instrument shall be invested in investments in which corporate fiduciaries may invest under law.
Section 7.5. Notice. Whenever notice is required by the Articles of Association, the Bylaws or law, such notice shall be by mail, postage prepaid, e-mail, in person, or by any other means by which such notice can reasonably be expected to be received, using the address of the person to receive such notice, or such other personal data, as may appear on the records of the Association.
Except where specified otherwise in these Bylaws, prior notice shall be proper if given not more than 30 days nor less than 10 days prior to the event for which notice is given.
ARTICLE VIII
Indemnification
Section 8.1. The Association shall indemnify such persons for such liabilities in such manner under such circumstances and to such extent as permitted by Section 145 of the Delaware General Corporation Law, as now enacted or hereafter amended. The Board may authorize the purchase and maintenance of insurance and/or the execution of individual agreements for the purpose of such indemnification, and the Association shall advance all reasonable costs and expenses (including attorneys’ fees) incurred in defending any action, suit or proceeding to all persons entitled to indemnification under this Section 8.1. Such insurance shall be consistent with the requirements of 12 C.F.R. § 7.2014 and shall exclude coverage of liability for a formal order assessing civil money penalties against an institution-affiliated party, as defined at 12 U.S.C. § 1813(u).
Section 8.2. Notwithstanding Section 8.1, however, (a) any indemnification payments to an institution-affiliated party, as defined at 12 U.S.C. § 1813(u), for an administrative proceeding or civil action initiated by a federal banking agency, shall be reasonable and consistent with the requirements of 12 U.S.C. § 1828(k) and the implementing regulations thereunder; and (b) any indemnification payments and advancement of costs and expenses to an institution-affiliated party, as defined at 12 U.S.C. § 1813(u), in cases involving an administrative proceeding or civil action not initiated by a federal banking agency, shall be in accordance with Delaware General Corporation Law and consistent with safe and sound banking practices.
ARTICLE IX
Bylaws: Interpretation and Amendment
Section 9.1. These Bylaws shall be interpreted in accordance with and subject to appropriate provisions of law, and may be added to, altered, amended, or repealed, at any regular or special meeting of the Board.
Section 9.2. A copy of the Bylaws and all amendments shall at all times be kept in a convenient place at the principal office of the Association, and shall be open for inspection to all shareholders during Association hours.
ARTICLE X
Miscellaneous Provisions
Section 10.1. Fiscal Year. The fiscal year of the Association shall begin on the first day of January in each year and shall end on the thirty-first day of December following.
Section 10.2. Governing Law. This Association designates the Delaware General Corporation Law, as amended from time to time, as the governing law for its corporate governance procedures, to the extent not inconsistent with Federal banking statutes and regulations or bank safety and soundness.
***
(February 8, 2021)
Exhibit 6
CONSENT
In accordance with Section 321(b) of the Trust Indenture Act of 1939, the undersigned, U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION hereby consents that reports of examination of the undersigned by Federal, State, Territorial or District authorities may be furnished by such authorities to the Securities and Exchange Commission upon its request therefor.
Dated: April 29, 2022
| By: | /s/ Linda Garcia | |
| Linda Garcia | ||
| Vice President |
Exhibit 7
U.S. Bank Trust Company, National Association
Statement of Financial Condition
as of 12/31/2021*
($000’s)
| 12/31/2021 | ||||
| Assets |
||||
| Cash and Balances Due From |
$ | 21,114 | ||
| Depository Institutions |
||||
| Securities |
0 | |||
| Federal Funds |
0 | |||
| Loans & Lease Financing Receivables |
0 | |||
| Fixed Assets |
0 | |||
| Intangible Assets |
0 | |||
| Other Assets |
402 | |||
|
|
|
|||
| Total Assets |
$ | 21,516 | ||
| Liabilities |
||||
| Deposits |
$ | 0 | ||
| Fed Funds |
0 | |||
| Treasury Demand Notes |
0 | |||
| Trading Liabilities |
0 | |||
| Other Borrowed Money |
0 | |||
| Acceptances |
0 | |||
| Subordinated Notes and Debentures |
0 | |||
| Other Liabilities |
43 | |||
|
|
|
|||
| Total Liabilities |
$ | 43 | ||
| Equity |
||||
| Common and Preferred Stock |
200 | |||
| Surplus |
800 | |||
| Undivided Profits |
20,473 | |||
| Minority Interest in Subsidiaries |
0 | |||
|
|
|
|||
| Total Equity Capital |
$ | 21,473 | ||
| Total Liabilities and Equity Capital |
$ | 21,516 | ||
| * | In connection with the transfer of substantially all of the corporate trust business of U.S. Bank National Association (“USBNA”) to U.S. Bank Trust Company, National Association (“USBTC”) in January 2022, USBNA made a cash capital contribution of $600,000,000 to USBTC and a non-cash capital contribution of approximately $570,835,000 to USBTC. These contributions will be reflected in the future statements of financial condition. |
Exhibit 25.3
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE
TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
| Check | if an Application to Determine Eligibility of a Trustee Pursuant to Section 305(b)(2) |
UMB BANK & TRUST, N.A.
(Exact name of trustee as specified in its charter)
| U.S. National Bank | 43-1745664 | |
| (Jurisdiction of incorporation or | (I.R.S. Employer | |
| organization if not a U.S. national bank) | Identification No.) |
2 South Broadway, Suite 600, St. Louis, Missouri 63102
(Address of principal executive offices) (Zip Code)
Richard F. Novosak, Vice President
2 South Broadway, Suite 600, St. Louis, Missouri 63102 (314) 612-8483
(Name, address and telephone number of agent for service)
SPIRE INC.
(Exact name of obligor as specified in its charter)
| MISSOURI | 74-2976504 | |
| (State or other jurisdiction of | (I.R.S. Employer | |
| incorporation or organization) | Identification No.) |
700 Market Street, St. Louis, Missouri 63101
(314) 342-0500
(Address of principal executive offices) (Zip Code)
UNSECURED SENIOR NOTES
___% Series due
(Title of indenture securities)
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
| (a) | Name and address of each examining or supervisory authority to which it is subject. |
Comptroller of the Currency of the United Sates, Washington, D.C.
| (b) | Whether it is authorized to exercise corporate trust powers. |
Trustee is authorized to exercise corporate trust powers.
Item 2. Affiliations with Obligor.
If the Obligor is an affiliate of the trustee, describe each such affiliation.
The obligor is not an affiliate of the trustee or of its parent, UMB Bank, N.A.
Item 3. through Item 15. Not applicable.
Item 16. List of Exhibits.
List below all exhibits filed as part of this statement of eligibility.
1. A copy of the articles of association of the trustee as now in effect.
Articles of Association of the Trustee, as now in effect. (Exhibit 1 to Form T-1 with Registration Statement No. 333-165974).
2. A copy of the certificate of authority of the trustee to commence business, if not contained in the articles of association.
Certificate of Authority from the Comptroller of the Currency evidencing a change of the corporate title of the Association. (Exhibit 2 to Form T-1 with Registration Statement No. 333-165974).
3. A copy of the authorization of the trustee to exercise corporate trust powers, if such authorization is not contained in the documents specified in paragraph (1) or (2), above.
Certificate from the Comptroller of the Currency evidencing authority to exercise corporate trust powers and a letter evidencing a change of the corporate title of the Association. (Exhibit 3 to Form T-1 filed with Registration Statement No. 333-165974).
4. A copy of the existing by-laws of the trustee, or instruments corresponding thereto.
Bylaws, as amended of the Trustee (Exhibit 4 to Form T-1 filed with Registration Statement No. 333-165974).
5. A copy of each indenture referred to in Item 4. if the obligor is in default.
Not applicable.
6. The consents of United States institutional trustees required by Section 321(b) of the Act.
Consent of the Trustee required by Section 321(b) of the Act (Exhibit 6 to Form T-1 filed with Registration Statement No. 333-165974).
7. A copy of the latest report of condition of the trustee published pursuant to law or the requirements of its supervising or examining authority.
Report of the Condition of the Trustee as of December 31, 2021. (Exhibit 1).
1
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as amended, the trustee, UMB Bank & Trust, N.A., a national banking association existing under the laws of the United States of America, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of St. Louis and the State of Missouri, on the 3rd day of May 2021.
| UMB BANK & TRUST, N.A. | ||
| By: | /s/ Brian P. Krippner | |
| NAME: Brian P. Krippner | ||
| TITLE: Senior Vice President | ||
2
EXHIBIT 1
UMB Bank & Trust, N.A.
Consolidated Statement of
Condition As of December 31, 2021
| 12/31/2021 | ||||
| Assets |
||||
| Cash and Due from Bank |
$ | 0 | ||
| Total Investment Securities |
0 | |||
| Total Premises and Equipment |
0 | |||
| Accrued Income Receivable |
0 | |||
| Other Assets |
3,000,000 | |||
| Goodwill Net |
0 | |||
|
|
|
|||
| Total Assets |
$ | 3,000,000 | ||
|
|
|
|||
| Liabilities |
||||
| Accrued Tax and Other |
0 | |||
| Unearned Revenue |
0 | |||
|
|
|
|||
| Total Liabilities |
$ | 0 | ||
|
|
|
|||
| Stockholders Equity |
||||
| Common Stock |
1,000,000 | |||
| Paid In Surplus |
2,000,000 | |||
| Retained Earnings |
0 | |||
|
|
|
|||
| Total Stockholders Equity |
$ | 3,000,000 | ||
|
|
|
|||
| Total Liabilities and Stockholders Equity |
$ | 3,000,000 | ||
|
|
|
|||