Commission
File Number
|
Name of Registrant, Address of Principal, Executive Offices and Telephone Number |
State of
Incorporation
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I.R.S. Employer Identification Number |
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1-16681 |
700 Market Street St. Louis 63101 314 -342-0500
|
Missouri |
74-2976504 |
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1-1822 |
Spire Missouri Inc. 700 Market Street St. Louis 63101 314 -342-0500
|
Missouri |
43-0368139 |
☐ |
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
☐ |
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
☐ |
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
☐ |
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Title of each class |
Trading Symbol(s) |
Name of each exchange
on which registered
|
||
Common Stock , par value $1.00 per share |
SR |
New York Stock Exchange LLC |
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Depositary Shares , each representing a 1/1000th interest in a share of 5.90% Series A Cumulative Redeemable Perpetual Preferred Stock, par value $25.00 per share |
SR.PRA |
New York Stock Exchange LLC |
Item
8.01
|
Other Events. |
Item
9.01
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Financial Statements and Exhibits. |
SPIRE INC. |
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Date: August 13, 2024 | ||||||
By: | /s/ Adam W. Woodard |
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Adam W. Woodard | ||||||
Vice President and Treasurer |
SPIRE MISSOURI INC. |
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Date: August 13, 2024 | ||||||
By: | /s/ Adam W. Woodard |
|||||
Adam W. Woodard | ||||||
Vice President, Chief Financial Officer and Treasurer |
Exhibit 1.1
Spire Missouri Inc.
$320,000,000 First Mortgage Bonds, 5.150% Series due 2034
UNDERWRITING AGREEMENT
Dated: August 6, 2024
TABLE OF CONTENTS
Page | ||||||
SECTION 1. |
Representations and Warranties | 2 | ||||
SECTION 2. |
Sale and Delivery to Underwriters; Closing | 14 | ||||
SECTION 3. |
Covenants of the Company | 15 | ||||
SECTION 4. |
Payment of Expenses | 19 | ||||
SECTION 5. |
Conditions of Underwriters’ Obligations | 20 | ||||
SECTION 6. |
Indemnification | 22 | ||||
SECTION 7. |
Contribution | 24 | ||||
SECTION 8. |
Representations, Warranties and Agreements to Survive Delivery | 26 | ||||
SECTION 9. |
Termination of Agreement | 26 | ||||
SECTION 10. |
Default by One or More of the Underwriters | 27 | ||||
SECTION 11. |
Notices | 27 | ||||
SECTION 12. |
Parties | 28 | ||||
SECTION 13. |
GOVERNING LAW AND TIME | 28 | ||||
SECTION 14. |
Effect of Headings; Counterparts | 28 | ||||
SECTION 15. |
Definitions | 28 | ||||
SECTION 16. |
Permitted Free Writing Prospectuses | 31 | ||||
SECTION 17. |
Absence of Fiduciary Relationship | 32 | ||||
SECTION 18. |
Recognition of U.S. Special Resolution | 32 | ||||
SECTION 19. |
Research Analyst Independence | 33 | ||||
SECTION 20. |
Trial By Jury | 33 |
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EXHIBITS | ||||
Exhibit A | – | Underwriters | ||
Exhibit B | – | Form of Pricing Term Sheet | ||
Exhibit C | – | Issuer General Use Free Writing Prospectuses | ||
Exhibit D | – | Form of Opinion of Stinson LLP | ||
Exhibit E | – | Form of Opinion of Matthew J. Aplington |
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Spire Missouri Inc.
$320,000,000 First Mortgage Bonds, 5.150% Series due 2034
UNDERWRITING AGREEMENT
August 6, 2024
BMO Capital Markets Corp. 151 West 42nd Street New York, New York 10036 |
TD Securities (USA) LLC 1 Vanderbilt Avenue, 11th Floor New York, New York 10017 |
|
J.P. Morgan Securities LLC 383 Madison Avenue New York, New York 10179 |
U.S. Bancorp Investments, Inc. 214 North Tryon Street, 26th Floor Charlotte, North Carolina 28202 |
As Representatives of the several Underwriters
Ladies and Gentlemen:
Spire Missouri Inc., a Missouri corporation (the “Company”), confirms its agreement with BMO Capital Markets Corp. (“BMO”), J.P. Morgan Securities LLC (“J.P. Morgan”), TD Securities (USA) LLC (“TD”) and U.S. Bancorp Investments, Inc. (“U.S. Bancorp”) and each of the other Underwriters named in Exhibit A hereto (each, an “Underwriter” and, collectively, the “Underwriters,” which term shall also include any underwriter substituted as hereinafter provided in Section 10 hereof), for whom BMO, J.P. Morgan, TD and U.S. Bancorp are acting as representatives (in such capacity, each, a “Representative” and, collectively, the “Representatives”), with respect to the issue and sale by the Company and the purchase by the Underwriters, acting severally and not jointly, of the respective principal amounts set forth in said Exhibit A hereto of $320,000,000 aggregate principal amount of the Company’s First Mortgage Bonds, 5.150% Series due 2034 (the “Securities”). The Securities are to be issued pursuant to the Company’s Mortgage and Deed of Trust dated as of February 1, 1945, as amended and supplemented and as it will be further amended and supplemented by the Thirty-Ninth Supplemental Indenture relating to the Securities to be dated as of the Closing Date (as defined in Section 2(b) hereof) (such further supplemental indenture, the “Supplemental Indenture”) with Regions Bank (who is now acting, under the terms of such Mortgage and Deed of Trust, in place of Mississippi Valley Trust Company), as trustee (the “Trustee”). Such Mortgage and Deed of Trust, as so amended and supplemented, including by the Supplemental Indenture, is hereinafter referred to as the “Mortgage.” Certain terms used in this Underwriting Agreement (this “Agreement”) are defined in Section 15 hereof.
The Company understands that the Underwriters propose to make a public offering of the Securities as soon as the Representatives deem advisable after this Agreement has been executed and delivered.
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The Company has prepared and previously delivered to you a preliminary prospectus supplement dated August 6, 2024 relating to the Securities and a related prospectus dated May 9, 2022 (the “Base Prospectus”). Such preliminary prospectus supplement and Base Prospectus, including the documents incorporated or deemed to be incorporated by reference therein pursuant to Item 12 of Form S-3 under the 1933 Act, are hereinafter called, collectively, the “Pre-Pricing Prospectus.” Promptly after the execution and delivery of this Agreement, the Company will prepare and file with the Commission a prospectus supplement dated August 6, 2024 (the “Prospectus Supplement”) and will file the Prospectus Supplement and the Base Prospectus with the Commission, all in accordance with the provisions of Rule 430B and Rule 424(b), and the Company has previously advised you of all information (financial and other) that will be set forth therein. The Prospectus Supplement and the Base Prospectus, in the form first furnished to the Underwriters for use in connection with the offering of the Securities (whether to meet the request of purchasers pursuant to Rule 173(d) or otherwise), including the documents incorporated or deemed to be incorporated by reference therein pursuant to Item 12 of Form S-3 under the 1933 Act, are herein called, collectively, the “Prospectus.”
SECTION 1. Representations and Warranties.
(a) Representations and Warranties by the Company. The Company represents and warrants to each Underwriter as of the date hereof, as of the Applicable Time and as of the Closing Date and agrees with each Underwriter, as follows:
(1) Status as a Well-Known Seasoned Issuer. At (A) the respective times the Registration Statement or any amendments thereto were filed with the Commission, (B) the time of the most recent amendment to the Registration Statement for the purposes of complying with Section 10(a)(3) of the 1933 Act (whether such amendment was any post-effective amendment thereto, any report filed pursuant to Section 13 or 15(d) of the 1934 Act and incorporated by reference therein or any form of prospectus), (C) any time the Company or any person acting on its behalf (within the meaning, for this clause (1) only, of paragraph (c) of Rule 163) made any offer relating to the Securities in reliance on the exemption of Rule 163 and (D) the date hereof, the Company was and is a “well-known seasoned issuer” (as defined in Rule 405), including not having been and not being an “ineligible issuer” (as defined in Rule 405, without taking into account any determination made by the Commission pursuant to paragraph (2) of the definition of such term in Rule 405); and without limitation to the foregoing, the Company has at all relevant times met, meets and will at all relevant times meet the requirements of Rule 164 for the use of a free writing prospectus (as defined in Rule 405) in connection with the offering contemplated hereby. The Registration Statement is an “automatic shelf registration statement” (as defined in Rule 405), and the Securities, since their registration on the Registration Statement, have been and remain eligible for registration by the Company on such “automatic shelf registration statement.” The Company has not received from the Commission any notice pursuant to Rule 401(g)(2) objecting to the use of the automatic shelf registration statement form. Any written communication that was an offer relating to the Securities made by the Company or any person acting on its behalf (within the meaning, for this sentence only, of paragraph (c) of Rule 163) prior to the filing of the Registration Statement has been filed with the Commission in accordance with Rule 163 and otherwise complied with the requirements of Rule 163, including the legending requirement, to qualify such offer for the exemption from Section 5(c) of the 1933 Act provided by Rule 163.
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(2) Compliance with Registration Requirements. The Company meets the requirements for use of Form S-3 under the 1933 Act and the Securities have been duly registered under the 1933 Act pursuant to the Registration Statement. The Registration Statement and any post-effective amendment thereto has become effective under the 1933 Act, no stop order suspending the effectiveness of the Registration Statement has been issued under the 1933 Act, no proceedings for that purpose have been instituted or are pending or, to the knowledge of the Company, are contemplated by the Commission, and any request on the part of the Commission for additional information has, to the knowledge of the Company, been complied with. The Registration Statement was filed with the Commission on May 9, 2022.
(3) Registration Statement, Prospectus and Disclosure at Time of Sale. At the respective times that the Registration Statement and any amendments thereto became effective, at the time the Company filed the Annual Report (including any amendments thereto) with the Commission, at each deemed effective date with respect to the Underwriters pursuant to paragraph (f)(2) of Rule 430B, and at the Closing Date, the Registration Statement and any amendments to any of the foregoing complied and will comply in all material respects with the requirements of the 1933 Act, the 1933 Act Regulations and the 1939 Act and did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading.
At the respective times the Prospectus or any amendment or supplement thereto was filed pursuant to Rule 424(b) or issued, at the Closing Date, and at any time when a prospectus is required (or, but for the provisions of Rule 172, would be required) by applicable law to be delivered in connection with sales of Securities (whether to meet the requests of purchasers pursuant to Rule 173(d) or otherwise), neither the Prospectus nor any amendment or supplement thereto included or will include an untrue statement of a material fact or omitted or will omit to state a material fact necessary in order to make the statements therein not misleading.
As of the Applicable Time (except in the case of clause (C) below) and as of each time prior to the Closing Date that an investor agrees (orally or in writing) to purchase or, if applicable, reconfirms (orally or in writing) an agreement to purchase any Securities from the Underwriters, neither (A) the Pricing Term Sheet (as defined in Section 3(l) hereof), any other Issuer General Use Free Writing Prospectuses, if any, issued at or prior to the Applicable Time and the Pre-Pricing Prospectus as of the Applicable Time, considered together (collectively, the “General Disclosure Package”), nor (B) any individual Issuer Limited Use Free Writing Prospectus, when considered together with the General Disclosure Package, nor (C) any Issuer General Use Free Writing Prospectuses issued subsequent to the Applicable Time, when considered together with the General Disclosure Package, included or will include an untrue statement of a material fact or omitted or will omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
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Each preliminary prospectus and the Prospectus and any amendments or supplements to any of the foregoing filed as part of the Registration Statement or any amendment thereto, or filed pursuant to Rule 424(b) under the 1933 Act, or delivered to the Underwriters for use in connection with the offering of the Securities, complied when so filed or when so delivered, as the case may be, in all material respects with the 1933 Act and the 1933 Act Regulations.
The representations and warranties in the preceding paragraphs of this Section 1(a)(3) do not apply to statements in or omissions from the Registration Statement, any preliminary prospectus, the Prospectus, the General Disclosure Package or any Issuer Free Writing Prospectus or any amendment or supplement to any of the foregoing made in reliance upon and in conformity with written information furnished to the Company by any Underwriter through the Representatives expressly for use therein, it being understood and agreed that the only such information furnished by the Underwriters as aforesaid consists of the information described as such in Section 6(b) hereof.
The copies of the Registration Statement and any amendments to any of the foregoing and the copies of each preliminary prospectus, each Issuer Free Writing Prospectus that is required to be filed with the Commission pursuant to Rule 433 and the Prospectus and any amendments or supplements to any of the foregoing, that have been or subsequently are delivered to the Underwriters in connection with the offering of the Securities (whether to meet the request of purchasers pursuant to Rule 173(d) or otherwise) were and will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T of the Commission. For purposes of this Agreement, references to the “delivery” or “furnishing” of any of the foregoing documents to the Underwriters, and any similar terms, include, without limitation, electronic delivery.
Each Issuer Free Writing Prospectus (if any), as of its issue date and at all subsequent times through the completion of the public offering and sale of the Securities did not, does not and will not include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement, any preliminary prospectus or the Prospectus that has not been superseded or modified.
(4) Incorporated Documents. The documents incorporated or deemed to be incorporated by reference in the Registration Statement, any preliminary prospectus and the Prospectus, at the respective times they were or hereafter are filed with the Commission, complied and will comply in all material respects with the requirements of the 1934 Act and the 1934 Act Regulations and did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(5) Independent Accountants. Deloitte & Touche LLP (“D&T”) are independent public accountants with respect to the Company as required by the 1933 Act, the 1933 Act Regulations, the 1934 Act, the 1934 Act Regulations and the PCAOB.
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(6) Financial Statements. The financial statements of the Company included in the Registration Statement, the General Disclosure Package and the Prospectus, together with the related schedules (if any) and notes, present fairly, in all material respects, the financial position of the Company at the dates indicated and the results of operations, changes in stockholders’ equity and cash flows of the Company for the periods specified; and such financial statements have been prepared in conformity with GAAP applied on a consistent basis throughout the periods involved and comply with all applicable accounting requirements under the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations, as applicable. Any supporting schedules included in the Registration Statement present fairly, in all material respects, in accordance with GAAP, the information required to be stated therein. No pro forma financial statements, and no financial statements of any entity or business other than the Company, are required to be included in the Registration Statement, the General Disclosure Package or the Prospectus. All “non-GAAP financial measures” (as defined in the rules and regulations of the Commission), if any, contained in the Registration Statement, the General Disclosure Package and the Prospectus comply with Item 10(e) of Regulation S-K of the Commission, to the extent applicable.
(7) No Material Adverse Change in Business. Since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus (in each case exclusive of any amendments or supplements thereto subsequent to the earlier of (i) the Applicable Time and (ii) the execution and delivery of this Agreement), (A) there has been no material adverse change, or any development that could reasonably be expected to result in a material adverse change, in the condition (financial or other), results of operations, business, properties, management or business prospects of the Company, whether or not arising in the ordinary course of business (a “Material Adverse Effect”), (B) except as otherwise disclosed in the General Disclosure Package and the Prospectus (in each case exclusive of any amendments or supplements thereto subsequent to the earlier of (i) the Applicable Time and (ii) the execution and delivery of this Agreement), the Company has not incurred any liability or obligation or entered into any transaction or agreement that, individually or in the aggregate, is material to the Company, and the Company has not sustained any loss or interference with its business or operations from fire, explosion, flood, earthquake or other natural disaster or calamity, whether or not covered by insurance, or from any labor dispute or disturbance or court or governmental action, order or decree that could reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect and (C) except for regular quarterly cash dividends on its common stock in amounts per share that are consistent with past practice, there has been no dividend or distribution of any kind declared, paid or made by the Company on any class of its capital stock.
(8) Good Standing of the Company; Due Authorization. The Company has been duly organized and is validly existing as a corporation in good standing under the laws of the State of Missouri and has full right, power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus and to execute, deliver and perform its obligations under the Transaction Documents; and the Company is duly qualified as a foreign corporation to transact business and is in good standing in each other jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure to so qualify or to be in good standing would not, individually or in the aggregate, result in a Material Adverse Effect.
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(9) Subsidiaries. The Company has no subsidiaries.
(10) Capitalization. The capitalization of the Company as of June 30, 2024 is as set forth in the column entitled “Actual” and in the corresponding line items under the caption “Capitalization” in the Pre-Pricing Prospectus and the Prospectus and, at the time of the purchase of the Securities by the Underwriters on the Closing Date, the capitalization of the Company will be as set forth in the column entitled “As Adjusted” and in the corresponding line items under such caption (in each case except for issuances, if any, subsequent to June 30, 2024 pursuant to employee or director stock option, stock purchase or other equity incentive plans or any dividend reinvestment plan described in the Pre-Pricing Prospectus and the Prospectus, upon the exercise of options issued pursuant to any such stock option, stock purchase or other equity incentive plans as so described, or upon the exercise of options described in the General Disclosure Package and the Prospectus). The shares of issued and outstanding capital stock of the Company have been duly authorized and validly issued and are fully paid and non-assessable; and none of the outstanding shares of capital stock of the Company was issued in violation of any preemptive rights, rights of first refusal or other similar rights of any securityholder of the Company or any other person or entity.
(11) Authorization of Agreement. This Agreement has been duly authorized, executed and delivered by the Company.
(12) The Mortgage. The Mortgage has been duly authorized by the Company and, on the Closing Date, will have been duly executed and delivered by the Company and, when executed and delivered by the Trustee, will constitute a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms, except as enforcement thereof may be limited by certain laws and judicial decisions of the United States of America and the State of Missouri (where the property covered thereby is located) affecting the remedies for the enforcement of the security provided for therein, which laws do not make inadequate the remedies necessary for the realization of the benefits of such security, and by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting enforcement of creditors’ rights generally or by general principles of equity; and the Mortgage has been duly qualified under the 1939 Act and the Trustee has filed a Form T-1 as an exhibit to the Registration Statement.
(13) The Securities. The Securities have been duly authorized and, at the Closing Date, will have been duly executed by the Company and, when duly authenticated by the Trustee and delivered against payment of the purchase price therefor as provided in this Agreement, will constitute valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or similar laws affecting enforcement of creditors’ rights and remedies generally or by general principles of equity, and will be in the form contemplated by, and entitled to the benefits of, the Mortgage.
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(14) Description of the Securities and the Mortgage. The Securities and the Mortgage conform and will conform in all material respects to the respective statements relating thereto contained in the Registration Statement, the General Disclosure Package and the Prospectus and are and will be in substantially the respective forms filed or incorporated by reference, as the case may be, as exhibits to the Registration Statement.
(15) Absence of Defaults and Conflicts. The Company is not in violation of the Organizational Documents or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any Company Document, except for such defaults that would not, individually or in the aggregate, result in a Material Adverse Effect. The execution and delivery of, and the performance by the Company of its obligations under, the Transaction Documents and the consummation of the transactions contemplated therein and in the Registration Statement, the General Disclosure Package and the Prospectus (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Pre-Pricing Prospectus and the Prospectus under the caption “Use of Proceeds”) and compliance by the Company with its obligations under the Transaction Documents do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default, Termination Event or Repayment Event under, or result in the creation or imposition of any Lien (other than the Lien of the Mortgage) upon any property or assets of the Company pursuant to, any Company Documents, except for such conflicts, breaches, defaults or Liens that would neither, individually or in the aggregate, result in a Material Adverse Effect nor materially and adversely affect the performance by the Company of its obligations under the Transaction Documents, nor will such action result in any violation of (A) the provisions of the Organizational Documents or (B) any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any of its assets, properties or operations, except, in the case of clause (B) above, for such violations that would neither, individually or in the aggregate, result in a Material Adverse Effect nor materially and adversely affect the performance by the Company of its obligations under the Transaction Documents.
(16) Absence of Labor Dispute. No labor dispute with the employees of the Company exists or, to the knowledge of the Company, is imminent, and the Company is not aware of any existing or imminent labor disturbance by the employees of any of the principal suppliers, manufacturers, customers or contractors of the Company that might reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect.
(17) Absence of Proceedings.
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There is no action, suit, proceeding, inquiry or investigation before or brought by any court or governmental agency or body, domestic or foreign, now pending, or, to the knowledge of the Company, threatened, against or affecting the Company that is required to be disclosed in the Registration Statement, the Pre-Pricing Prospectus or the Prospectus (other than as disclosed therein), or that might reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect or to materially and adversely affect the consummation of the transactions contemplated in the Transaction Documents or the performance by the Company of its obligations under the Transaction Documents; and the aggregate of all pending legal or governmental proceedings to which the Company is a party or of which any of its property or assets is the subject that are not described in the Registration Statement, the Pre-Pricing Prospectus and the Prospectus, including ordinary routine litigation incidental to the business, would not reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect.
(18) Accuracy of Descriptions and Exhibits. The information in the Pre-Pricing Prospectus and the Prospectus under the caption “Material United States Federal Income Tax Considerations” and the information in the Annual Report under the captions “Business—Gas Utility—Regulatory Matters,” “Legal Proceedings,” “Management’s Discussion and Analysis of Financial Condition and Results of Operations—Critical Accounting Estimates—Regulatory Accounting” and “Management’s Discussion and Analysis of Financial Condition and Results of Operations—Regulatory Matters” and in Item 13 thereof under the caption “Certain Relationships and Related Transactions, and Director Independence” (as such information has been modified, supplemented or superseded by information included in the General Disclosure Package and the Prospectus or incorporated by reference therein from reports filed by the Company with the Commission subsequent to the date of filing of the Annual Report), in each case to the extent that it constitutes matters of law, summaries of legal matters, summaries of provisions of the Organizational Documents, the Securities, the Mortgage or any other instruments or agreements, summaries of legal proceedings, or legal conclusions is correct in all material respects; all descriptions in the Registration Statement, the General Disclosure Package and the Prospectus of any other Company Documents are accurate in all material respects; and there are no franchises, contracts, indentures, mortgages, deeds of trust, loan or credit agreements, bonds, notes, debentures, evidences of indebtedness, leases or other instruments, agreements or documents required to be described or referred to in the Registration Statement, the Pre-Pricing Prospectus or the Prospectus or the documents incorporated or deemed to be incorporated by reference therein or to be filed as exhibits to the Registration Statement or the documents incorporated or deemed to be incorporated by reference therein that have not been so described and filed as required.
(19) Absence of Further Requirements. (A) The Missouri Public Service Commission of the State of Missouri has issued one or more orders authorizing the issuance and sale of the Securities, which orders are in full force and effect; and no other filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency, domestic or foreign, (B) no authorization, approval, vote or consent of any holder of capital stock or other securities of the Company or creditor of the Company, (C) no authorization, approval, waiver or consent under any Company Document and (D) no authorization, approval, vote or consent of any other person or entity is necessary or required for the authorization, execution, delivery or performance by the Company of its obligations under the Transaction Documents, for the offering, issuance, sale or delivery of the Securities to be sold by the Company pursuant to this Agreement, or for the consummation of any of the other transactions contemplated by this Agreement, in each case on the terms contemplated by the Registration Statement, the General Disclosure Package and the Prospectus, except (i) such as have been obtained or made, (ii) under the 1933 Act, the 1933 Act Regulations, the 1934 Act, the 1934 Act Regulations and the 1939 Act and (iii) that no representation is made as to such as may be required under state or foreign securities laws.
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(20) Possession of Licenses and Permits. The Company possesses such permits, licenses, approvals, consents and other authorizations (collectively, “Governmental Licenses”) issued by the appropriate federal, state, local or foreign regulatory agencies or bodies necessary to conduct the business now operated by it; and, except as would not, individually or in the aggregate, result in a Material Adverse Effect, the Company is in compliance with the terms and conditions of all such Governmental Licenses, all such Governmental Licenses are valid and in full force and effect; and the Company has not received any notice of proceedings relating to the revocation or modification of any such Governmental Licenses that individually or in the aggregate, if the subject of an unfavorable decision, ruling or finding, might reasonably be expected to result in a Material Adverse Effect.
(21) Title to Property. The Company has good and sufficient title to the properties described as owned by it in and as subject to the lien of the Mortgage, subject only to excepted encumbrances as defined in the Mortgage and all other restrictions, exceptions, defects and limitations of title as permitted under the Mortgage to the extent they do not materially impair the Company’s use of its properties in its business (collectively, the “Exceptions”); subject to Section 1(a)(22) hereof, the description of such properties set forth in the Mortgage is adequate to constitute the Mortgage a lien thereon and the Mortgage, subject only to the Exceptions, constitutes a valid, direct and first mortgage lien upon such properties, which include substantially all of the permanent physical properties and Franchises (as defined below) (other than those expressly excepted in the Mortgage); all permanent physical properties and Franchises (other than those expressly excepted in or released from the Mortgage) that have been or hereafter may be acquired by the Company after the date of the Supplemental Indenture have become or, upon such acquisition, will become subject to the lien of the Mortgage, subject, however, to the Exceptions and except as limited by bankruptcy law. As used herein, “Franchises” mean all franchises of the Company in or relating to real estate or the occupancy of lands to the extent the granting of a lien or mortgage thereon is permitted by applicable law.
(22) Status of Lien. Upon the recordation of the Supplemental Indenture in the office of the Secretary of State of the State of Missouri pursuant to Section 443.451 of the Missouri Revised Statutes, the lien created by the Supplemental Indenture will become effective as to and enforceable against third parties; and all permanent physical properties and Franchises (other than those expressly excepted in or released from the Mortgage) presently owned by the Company are subject to the lien of the Mortgage, subject to the Exceptions.
(23) Investment Company Act. The Company is not, and upon the issuance and sale of the Securities as herein contemplated and the receipt and application of the net proceeds therefrom as described in the General Disclosure Package and the Prospectus under the caption “Use Of Proceeds” will not be, an “investment company” or an entity “controlled” by an “investment company” (each as defined in the 1940 Act).
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(24) Environmental Laws. Except as described in the Registration Statement, the General Disclosure Package and the Prospectus and except as would not, individually or in the aggregate, result in a Material Adverse Effect, (A) the Company is not in violation of any federal, state, local or foreign statute, law, rule, regulation, ordinance, code, policy or rule of common law or any judicial or administrative interpretation thereof, including any judicial or administrative order, consent, decree or judgment, relating to pollution or protection of human health, the environment (including ambient air, surface water, groundwater, land surface or subsurface strata) or wildlife, including laws and regulations relating to the release or threatened release of chemicals, pollutants, contaminants, wastes, toxic substances, hazardous substances, petroleum or petroleum products (collectively, “Hazardous Materials”) or to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of Hazardous Materials (collectively, “Environmental Laws”), (B) the Company has all permits, authorizations and approvals required under any applicable Environmental Laws and is in compliance with their requirements, (C) there are no pending or threatened administrative, regulatory or judicial actions, suits, demands, demand letters, claims, Liens, notices of noncompliance or violation, investigation or proceedings relating to any Environmental Law against the Company and (D) there are no events or circumstances that might reasonably be expected to form the basis of an order for clean-up or remediation, or an action, suit or proceeding by any private party or governmental body or agency, against or affecting the Company relating to Hazardous Materials or any Environmental Laws.
(25) Absence of Registration Rights. There are no persons or entities with registration rights or other similar rights to have any securities (debt or equity) (A) registered pursuant to the Registration Statement or included in the offering contemplated by this Agreement or (B) otherwise registered by the Company under the 1933 Act.
(26) FINRA Matters. The Company was, at the time the Registration Statement was initially filed with the Commission, and at all times thereafter has been, eligible to use Form S-3 pursuant to the standards therefor in effect immediately prior to October 21, 1992. The Securities will, at the Closing Date, be “investment grade rated” (as defined in FINRA Rule 5121).
(27) Tax Returns. The Company has filed all federal, state and local tax returns that are required to be filed (or have obtained extensions thereof), except where the failure so to file would not, individually or in the aggregate, result in a Material Adverse Effect, and has paid all taxes (including any estimated taxes) required to be paid and any other assessment, fine or penalty, to the extent that any of the foregoing is due and payable, except for any such tax, assessment, fine or penalty that is currently being contested in good faith by appropriate actions and except for such taxes, assessments, fines or penalties the nonpayment of which would not, individually or in the aggregate, result in a Material Adverse Effect.
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(28) Insurance. The Company is insured by insurers of recognized financial responsibility against such losses and risks and in such amounts as are prudent and customary in the businesses in which they are engaged; all policies of insurance and any fidelity or surety bonds insuring the Company or its business, assets, employees, officers and directors are in full force and effect; the Company is in compliance with the terms of such policies and instruments in all material respects; and the Company has no reason to believe that it will not be able to renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage from similar insurers at a cost that would not, individually or in the aggregate, result in a Material Adverse Effect.
(29) Accounting and Disclosure Controls. The Company maintains and has established and maintained effective “internal control over financial reporting” (as defined in Rule 13a-15 of the 1934 Act Regulations). The Company maintains a system of internal accounting controls sufficient to provide reasonable assurance that (A) transactions are executed in accordance with management’s general or specific authorizations, (B) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain asset accountability, (C) access to assets is permitted only in accordance with management’s general or specific authorization and (D) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. Except as described in the Registration Statement, the General Disclosure Package and the Prospectus, there has not been, at any time during the Company’s three consecutive fiscal years ended with and including the Company’s most recent fiscal year for which audited financial statements are included in the Registration Statement, the General Disclosure Package and the Prospectus or at any time subsequent thereto, any material weakness (as defined in Rule 1-02 of Regulation S-X of the Commission) in the Company’s internal control over financial reporting (whether or not remediated) and, since the end of the Company’s most recent fiscal year for which audited financial statements are included in the Registration Statement, the General Disclosure Package and the Prospectus, there has been no change in the Company’s internal control over financial reporting that has materially affected, or is reasonably likely to materially affect, the Company’s internal control over financial reporting. The Company has established, maintained and periodically evaluates the effectiveness of “disclosure controls and procedures” (as defined in Rules 13a-15 and 15d-15 of the 1934 Act Regulations); such disclosure controls and procedures are designed to ensure that information required to be disclosed by the Company in the reports that it files or submits under the 1934 Act and the interactive data in eXtensible Business Reporting Language incorporated by reference in the Registration Statement are recorded, processed, summarized and reported, within the time periods specified in the Commission’s rules and forms, and is accumulated and communicated to the Company’s management, including its principal executive officer or officers and principal financial officer or officers, as appropriate, to allow timely decisions regarding disclosure.
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The Company’s independent public accountants and the audit committee of the Company’s board of directors have been advised of all material weaknesses, if any, and significant deficiencies (as defined in Rule 1-02 of Regulation S-X of the Commission), if any, in the Company’s internal control over financial reporting and of all fraud, if any, whether or not material, involving management or other employees who have a role in the Company’s internal control over financial reporting, in each case that occurred or existed, or was first detected, at any time during the Company’s five consecutive fiscal years ended with and including the Company’s most recent fiscal year for which audited financial statements are included in the Registration Statement, the General Disclosure Package and the Prospectus or at any time subsequent thereto.
(30) Compliance with the Sarbanes-Oxley Act. There is and has been no failure on the part of the Company or any of the Company’s directors or officers, in their capacities as such, to comply in all material respects with any provision of the Sarbanes-Oxley Act with which any of them is required to comply, including Section 402 thereof related to loans and Sections 302 and 906 thereof related to certifications.
(31) Absence of Manipulation. The Company has not taken and will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in the stabilization or manipulation of the price of any security to facilitate the sale or resale of the Securities.
(32) Statistical and Market-Related Data. Any statistical, demographic, market-related and similar data included in the Registration Statement, the General Disclosure Package or the Prospectus are based on or derived from sources that the Company believes to be reliable and accurate and accurately reflect the materials upon which such data is based or from which it was derived.
(33) Foreign Corrupt Practices Act. Neither the Company nor, to the knowledge of the Company, any director, officer, agent, employee, affiliate or other person or entity acting on behalf of the Company is aware of or has taken any action, directly or indirectly, that has resulted or would result in a violation by any such person or entity of the FCPA, including any offer, payment, promise to pay or authorization of the payment of any money, or other property, gift, promise to give, or authorization of the giving of anything of value to any “foreign official” (as defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in contravention of the FCPA and the Company, and, to the knowledge of the Company, any of its other affiliates have conducted their businesses in compliance with the FCPA and have instituted and maintain policies and procedures designed to ensure, and that are reasonably expected to ensure, continued compliance therewith.
(34) Money Laundering Laws. The operations of the Company are and have been conducted at all times in material compliance with applicable financial recordkeeping and reporting requirements, including those of the Bank Secrecy Act, as amended by Title III of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT Act), the money laundering statutes of all applicable jurisdictions, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively, “Money Laundering Laws”) and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving a violation by the Company with respect to the Money Laundering Laws is pending or, to the knowledge of the Company, threatened.
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(35) OFAC. Neither the Company nor, to the knowledge of the Company, any director, officer, agent, employee, affiliate or other person or entity acting on behalf of the Company is currently subject to any U.S. sanctions administered by OFAC; and the Company will not directly or indirectly use any of the proceeds from the sale of the Securities by the Company in the offering contemplated by this Agreement, or lend, contribute or otherwise make available any such proceeds to any joint venture partner or other person or entity, to engage in, facilitate or finance any activities with or involving any person or entity currently in a manner that would result in a violation of any U.S. sanctions administered by OFAC.
(36) ERISA Compliance. None of the following events has occurred or exists that might reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect: (A) a failure to fulfill the obligations, if any, under the minimum funding standards of Section 302 of ERISA with respect to a Plan (as defined below) determined without regard to any waiver of such obligations or extension of any amortization period; (B) an audit or investigation by the Internal Revenue Service, the U.S. Department of Labor, the Pension Benefit Guaranty Corporation or any other federal, state or foreign governmental or regulatory agency with respect to the employment or compensation of employees by the Company; or (C) any breach of any contractual obligation, or any violation of law or applicable qualification standards, with respect to the employment or compensation of employees by the Company. None of the following events has occurred or is reasonably likely to occur that, individually or in the aggregate, could result in a Material Adverse Effect: (i) a material increase in the aggregate amount of contributions required to be made to all Plans in the current fiscal year of the Company compared to the amount of such contributions made in the Company’s most recently completed fiscal year; (ii) a material increase in the “accumulated post-retirement benefit obligations” (within the meaning of Accounting Standards Codification Topic No. 715) of the Company compared to the amount of such obligations in the Company’s most recently completed fiscal year; (iii) any event or condition giving rise to a liability under Title IV of ERISA; or (iv) the filing of a claim by one or more employees or former employees of the Company related to its or their employment. For purposes of this paragraph and the definition of ERISA, the term “Plan” means a “plan” (within the meaning of Section 3(3) of ERISA) subject to Title IV of ERISA, other than a “multiemployer plan” (as defined in Section 4001(a)(3) of ERISA), with respect to which the Company may have any liability.
(37) Lending and Other Relationship. Except as disclosed in the Registration Statement, the General Disclosure Package and the Prospectus, (A) the Company has no lending or similar relationship with any Underwriter or any bank or other lending institution affiliated with any Underwriter, (B) the Company will not, directly or indirectly, use any of the proceeds from the sale of the Securities by the Company hereunder to reduce or retire the balance of any loan or credit facility extended by any Underwriter or any of its “affiliates” or “associated persons” (as defined in FINRA Rule 5121) or otherwise direct any such proceeds to any Underwriter or any of its “affiliates” or “associated persons” (as so defined) and (C) there are and have been no transactions, arrangements or dealings between the Company, on one hand, and any Underwriter or any of its “affiliates” or “associated persons” (as so defined), on the other hand, that, under FINRA Rule 5110 or 5121, must be disclosed in a submission to FINRA in connection with the offering of the Securities contemplated hereby or disclosed in the Registration Statement, the General Disclosure Package or Prospectus.
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(38) Offering Materials. Without limitation to the provisions of Section 16 hereof, the Company has not distributed and will not distribute, directly or indirectly (other than through the Underwriters), any “written communication” (as defined in Rule 405) or other offering materials in connection with the offering or sale of the Securities, other than the Pre-Pricing Prospectus, the Prospectus, any amendment or supplement to any of the foregoing that are filed with the Commission and any Permitted Free Writing Prospectuses (as defined in Section 16 hereof).
(39) No Restrictions on Dividends. The Company is not a party to or otherwise bound by any instrument or agreement that limits or prohibits or could limit or prohibit, directly or indirectly, the Company from paying any dividends or making other distributions on its capital stock, or from repaying any loans or advances from, or (except for instruments or agreements that by their express terms prohibit the transfer or assignment thereof or of any rights thereunder) transferring any of its properties or assets to, the Company, except as described in the Registration Statement, the General Disclosure Package and the Prospectus.
(40) Brokers. There is not a broker, finder or other party that is entitled to receive from the Company any brokerage or finder’s fee or other fee or commission as a result of any of the transactions contemplated by this Agreement, except for underwriting discounts and commissions in connection with the sale of the Securities to the Underwriters pursuant to this Agreement.
(41) Interactive Data. The interactive data in eXtensible Business Reporting Language incorporated by reference in the Registration Statement fairly presents the information called for in all material respects and has been prepared in accordance with the Commission’s rules and guidelines applicable thereto.
(b) Certificates. Any certificate signed by any officer of the Company (whether signed on behalf of such officer or the Company) and delivered to the Representatives or to counsel for the Underwriters shall be deemed a representation and warranty by the Company to each Underwriter as to the matters covered thereby.
SECTION 2. Sale and Delivery to Underwriters; Closing.
(a) The Securities. On the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, the Company agrees to sell to the Underwriters, severally and not jointly, the aggregate principal amount of Securities set forth in Exhibit A hereto, and each Underwriter, severally and not jointly, agrees to purchase the aggregate principal amount of Securities set forth opposite its name in Exhibit A hereto plus any additional principal amount of Securities that such Underwriter may become obligated to purchase pursuant to the provisions of Section 10 hereof, at a price equal to 99.010% of the principal amount thereof.
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(b) Payment. Payment of the purchase price for, and delivery of, the Securities shall be made at the offices of Bracewell LLP, 31 West 52nd Street, Suite 1900, New York, New York 10019, or at such other place as shall be agreed upon by the Representatives and the Company, at 9:00 A.M. (New York City time) on August 13, 2024 (unless postponed in accordance with the provisions of Section 10 hereof), or such other time not later than five business days after such date as shall be agreed upon by the Representatives and the Company (such time and date of payment and delivery being herein called the “Closing Date”).
Payment shall be made to the Company by wire transfer of immediately available funds to a single bank account designated by the Company, in each case against delivery to the Representatives for the respective accounts of the Underwriters of the Securities to be purchased by them with any transfer taxes payable in connection therewith duly paid by the Company. It is understood that each Underwriter has authorized the Representatives, for its account, to accept delivery of, receipt for, and make payment of the purchase price for the Securities that it has agreed to purchase. Each of the Representatives, individually and not as a Representative, may (but shall not be obligated to) make payment of the purchase price for the Securities to be purchased by any Underwriter whose funds have not been received by the Closing Date, but such payment shall not relieve such Underwriter from its obligations hereunder.
(c) Delivery of Securities. Delivery of the Securities, which will be represented by one or more definitive global securities in book-entry form, shall be made through the facilities of DTC unless the Representatives shall otherwise instruct, against payment on behalf of the Underwriters as described above.
SECTION 3. Covenants of the Company. The Company covenants with each Underwriter as follows:
(a) Compliance with Securities Regulations and Commission Requests. The Company, subject to Section 3(b) hereof, will comply with the requirements of Rule 430B and Rule 433 and will notify the Representatives immediately, and confirm the notice in writing, (i) when the Registration Statement or any post-effective amendment to the Registration Statement shall become effective, or when any preliminary prospectus, the Prospectus or any Issuer Free Writing Prospectus or any amendment or supplement to any of the foregoing shall have been filed, (ii) of the receipt of any comments with respect to any of the foregoing from the Commission (and shall promptly furnish the Representatives with a copy of any comment letters and any transcript of oral comments, and shall furnish the Representatives with copies of any written responses thereto a reasonable amount of time prior to the proposed filing thereof with the Commission and will not file any such response to which any Representative or counsel for the Underwriters shall reasonably object), (iii) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to any preliminary prospectus or the Prospectus, any document incorporated or deemed to be incorporated by reference therein or any Issuer Free Writing Prospectus or for additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any preliminary prospectus, the Prospectus or any Issuer Free Writing Prospectus or any amendment or supplement to any of the foregoing, or any notice from the Commission objecting to the use of the form of the Registration Statement or any post-effective amendment thereto, or of the suspension of the qualification of the Securities for offering or sale in any jurisdiction or of the loss or suspension of any exemption from any such qualification, or of the initiation or threatening of any proceedings for any of such purposes, or of any examination pursuant to Section 8(e) of the 1933 Act concerning the Registration Statement and (v) if the Company becomes the subject of a proceeding under Section 8A of the 1933 Act in connection with the offering of the Securities.
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The Company will make every reasonable effort to prevent the issuance of any stop order and the suspension or loss of any qualification of the Securities for offering or sale and any loss or suspension of any exemption from any such qualification, and if any such stop order is issued, or any such suspension or loss occurs, to obtain the lifting thereof at the earliest possible moment. The Company shall pay the required Commission filing fees relating to the Securities within the time required by Rule 456(b)(1)(i) of the 1933 Act Regulations without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the 1933 Act Regulations, except to the extent such filing fees have been paid prior to the date hereof.
(b) Filing of Amendments. The Company will give the Representatives notice of its intention to file or prepare any amendment to the Registration Statement, any Issuer Free Writing Prospectus or any amendment, supplement or revision to any preliminary prospectus, the Prospectus or any Issuer Free Writing Prospectus, whether pursuant to the 1933 Act or otherwise, and the Company will furnish the Representatives with copies of any such documents within a reasonable amount of time prior to such proposed filing or use, as the case may be, and will not file or use any such document to which any Representative or counsel for the Underwriters shall reasonably object. The Company has given the Representatives notice of any filings made pursuant to the 1934 Act or the 1934 Act Regulations within 48 hours prior to the Applicable Time. The Company will give the Representatives notice of its intention to make any filing pursuant to the 1934 Act or the 1934 Act Regulations from the Applicable Time through the Closing Date (or, if later, through the end of the period during which the Prospectus is required (or, but for the provisions of Rule 172, would be required) to be delivered by applicable law (whether to meet the requests of purchasers pursuant to Rule 173(d) or otherwise)) and will furnish the Representatives with copies of any such documents a reasonable amount of time prior to such proposed filing, as the case may be, and will not file or use any such document to which any Representative or counsel for the Underwriters shall reasonably object.
(c) Delivery of Registration Statements. The Company has furnished or will deliver to the Representatives and counsel for the Underwriters, without charge, copies of the Registration Statement (including any amendments thereto and any exhibits filed therewith or incorporated by reference therein and documents incorporated or deemed to be incorporated by reference therein or otherwise deemed to be a part thereof) and copies of all consents and certificates of experts.
(d) Delivery of Prospectuses. The Company has delivered to each Underwriter, without charge, as many copies of each preliminary prospectus and any amendments or supplements thereto as such Underwriter reasonably requested, and the Company hereby consents to the use of such copies for purposes permitted by the 1933 Act. The Company will furnish to each Underwriter, without charge, during the period when the Prospectus is required (or, but for the provisions of Rule 172, would be required) to be delivered by applicable law (whether to meet the request of purchasers pursuant to Rule 173(d) or otherwise), such number of copies of the Pre-Pricing Prospectus, the Prospectus and any Issuer Free Writing Prospectus and any amendments or supplements to any of the foregoing as such Underwriter may reasonably request.
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(e) Continued Compliance with Securities Laws. The Company will comply with the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations so as to permit the completion of the distribution of the Securities as contemplated by this Agreement, the General Disclosure Package and the Prospectus. If at any time when a prospectus is required (or, but for the provisions of Rule 172, would be required) by applicable law to be delivered in connection with sales of the Securities (whether to meet the request of purchasers pursuant to Rule 173(d) or otherwise), any event shall occur or condition shall exist as a result of which it is necessary (or if any Representative or counsel for the Underwriters shall notify the Company that, in its judgment, it is necessary) to amend the Registration Statement or amend or supplement the General Disclosure Package or the Prospectus so that the Registration Statement, the General Disclosure Package or the Prospectus, as the case may be, will not include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made or then prevailing, not misleading or if it is necessary (or, if any Representative or counsel for the Underwriters shall notify the Company that, in its judgment, it is necessary) to amend the Registration Statement or amend or supplement the General Disclosure Package or the Prospectus in order to comply with the requirements of the 1933 Act, the 1933 Act Regulations, the 1934 Act or the 1934 Act Regulations, the Company will promptly notify the Representatives of such event or condition and of its intention to file such amendment or supplement (or, if any Representative or counsel for the Underwriters shall have notified the Company as aforesaid, the Company will promptly notify the Representatives of its intention to prepare such amendment or supplement) and will promptly prepare and file with the Commission, subject to Section 3(b) hereof, such amendment or supplement as may be necessary to correct such untrue statement or omission or to comply with such requirements, and, in the case of an amendment or post-effective amendment to the Registration Statement, the Company will use its reasonable best efforts to have such amendment become effective as soon as practicable, and the Company will furnish to the Underwriters such number of copies of such amendment or supplement as the Underwriters may reasonably request. If at any time an Issuer Free Writing Prospectus conflicts with the information contained in the Registration Statement or if an event shall occur or condition shall exist as a result of which it is necessary (or, if any Representative or counsel for the Underwriters shall notify the Company that, in its judgment, it is necessary) to amend or supplement such Issuer Free Writing Prospectus so that it will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made or then prevailing, not misleading, or if it is necessary (or, if any Representative or counsel for the Underwriters shall notify the Company that, in its judgment, it is necessary) to amend or supplement such Issuer Free Writing Prospectus in order to comply with the requirements of the 1933 Act or the 1933 Act Regulations, the Company will promptly notify the Representatives of such event or condition and of its intention to file such amendment or supplement (or, if any Representative or counsel for the Underwriters shall have notified the Company as aforesaid, the Company will promptly notify the Representatives of its intention to prepare such amendment or supplement) and will promptly prepare and, if required by the 1933 Act or the 1933 Act Regulations, file with the Commission, subject to Section 3(b) hereof, such amendment or supplement as may be necessary to eliminate or correct such conflict, untrue statement or omission or to comply with such requirements, and the Company will furnish to the Underwriters such number of copies of such amendment or supplement as the Underwriters may reasonably request.
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(f) Blue Sky and Other Qualifications. The Company will use its reasonable best efforts, in cooperation with the Underwriters, to qualify the Securities for offering and sale, or to obtain an exemption for the Securities to be offered and sold, under the applicable securities laws of such states and other jurisdictions (domestic or foreign) as the Representatives may designate and to maintain such qualifications and exemptions in effect for so long as required for the distribution of the Securities (but in no event for a period of not less than one year from the date of this Agreement); provided, however, that the Company shall not be obligated to file any general consent to service of process or to qualify as a foreign corporation or as a dealer in securities in any jurisdiction in which it is not so qualified or to subject itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise so subject. In each jurisdiction in which the Securities have been so qualified or exempt, the Company will file such statements and reports as may be required by the laws of such jurisdiction to continue such qualification or exemption, as the case may be, in effect for so long as required for the distribution of the Securities (but in no event for a period of not less than one year from the date of this Agreement).
(g) Rule 158. The Company will timely file such reports pursuant to the 1934 Act as are necessary in order to make generally available to its securityholders as soon as practicable an earnings statement for the purposes of, and to provide to the Underwriters the benefits contemplated by, the last paragraph of Section 11(a) of the 1933 Act.
(h) Use of Proceeds. The Company will use the net proceeds received by it from the sale of the Securities in the manner specified in the Pre-Pricing Prospectus and the Prospectus under “Use of Proceeds.”
(i) Restriction on Sale of Securities. From and including the date of this Agreement through and including the earlier to occur of (i) Closing Date and (ii) the date of the termination of the fixed price offering restrictions applicable to the Underwriters, the Company will not, without the prior written consent of the Representatives, issue, offer, pledge, assign, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option or right to sell or otherwise transfer or dispose of any debt securities of the Company that are similar to the Securities (other than the Securities issued under this Agreement) or any securities convertible into or exercisable or exchangeable for any debt securities of the Company that are similar to the Securities.
(j) Reporting Requirements. The Company, during the period when the Prospectus is required (or, but for the provisions of Rule 172, would be required) by applicable law to be delivered (whether to meet the request of purchasers pursuant to Rule 173(d) or otherwise), will file all documents required to be filed with the Commission pursuant to the 1934 Act and the 1934 Act Regulations within the time periods required by the 1934 Act and the 1934 Act Regulations.
(k) Preparation of Prospectus. Immediately following the execution and delivery of this Agreement, the Company will, subject to Section 3(b) hereof, prepare the Prospectus, which shall contain the selling terms of the Securities, the plan of distribution thereof and such other information as may be required by the 1933 Act or the 1933 Act Regulations or as the Representatives and the Company may deem appropriate, and will file or transmit for filing the Prospectus with the Commission, in accordance with the provisions of Rule 430B and in the manner and within the time period required by Rule 424(b) (without reliance on Rule 424(b)(8)), the Prospectus.
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(l) Pricing Term Sheet. The Company will (i) prepare a pricing term sheet (the “Pricing Term Sheet”) containing certain final terms of the Securities in substantially the form attached hereto as Exhibit B and otherwise in form and substance satisfactory to the Representatives and (ii) file the Pricing Term Sheet as an “issuer free writing prospectus” pursuant to Rule 433 in the manner and within the time period required by Rule 433; provided that the Company shall furnish the Representatives with copies of the Pricing Term Sheet a reasonable amount of time prior to such proposed filing and will not use or file any such document to which the Representatives or counsel to the Underwriters shall reasonably object.
SECTION 4. Payment of Expenses.
(a) Expenses. The Company will pay all expenses incident to the performance of its obligations, including (i) the preparation, printing and filing of the Registration Statement (including any amendments thereto and, in each case, any exhibits thereto) and any costs associated with electronic delivery of any of the foregoing, (ii) the word processing and delivery to the Underwriters of this Agreement, the Supplemental Indenture and such other documents as may be required in connection with the offering, purchase, sale, issuance or delivery of the Securities, (iii) the preparation, issuance and delivery of the certificates for the Securities and the issuance and delivery of the Securities to be sold by the Company to the Underwriters, including any stock or other transfer taxes and any stamp or other taxes or duties payable in connection with the sale, issuance or delivery of the Securities to the Underwriters, (iv) the fees and disbursements of the counsel, accountants and other advisors to the Company, (v) the qualification or exemption of the Securities under securities laws in accordance with the provisions of Section 3(f) hereof, including filing fees and the reasonable fees and disbursements of counsel for the Underwriters in connection therewith and in connection with the preparation of a blue sky survey and any supplements thereto, (vi) the preparation, printing and delivery to the Underwriters of copies of each preliminary prospectus, any Permitted Free Writing Prospectus and the Prospectus and any amendments or supplements to any of the foregoing and any costs associated with electronic delivery of any of the foregoing, (vii) the preparation, printing and delivery to the Underwriters of copies of a blue sky survey and any Canadian “wrapper” and any supplements thereto and any costs associated with electronic delivery of any of the foregoing, (viii) the fees and expenses (including fees and disbursements of counsel) of the transfer agent and registrar for the Securities or any attorneys-in-fact, custodial agents or securities intermediaries in connection with the offer and sale of the Securities, (ix) the filing fees incident to, and the reasonable fees and disbursements of counsel to the Underwriters in connection with, the review, if any, by FINRA of the terms of the sale of the Securities, (x) all fees charged by any rating agencies for rating the Securities and all expenses and application fees incurred in connection with the approval of the Securities for clearance, settlement and book-entry transfer through DTC and (xi) the costs and expenses of the Company and any of its officers, directors, counsel or other representatives in connection with presentations or meetings undertaken in connection with the offering of the Securities, including expenses associated with the production of road show slides and graphics and the production and hosting of any electronic road shows, fees and expenses of any consultants engaged in connection with road show presentations, and travel, lodging, transportation, and other expenses of the officers, directors, counsel and other representatives of the Company incurred in connection with any such presentations or meetings.
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(b) Termination of Agreement. If this Agreement is terminated by the Representatives in accordance with the provisions of Section 5, Section 9(a)(i), Section 9(a)(iii)(A) or Section 9(a)(v) hereof, the Company shall reimburse the Underwriters for all of their out-of-pocket expenses, including the reasonable fees and disbursements of counsel for the Underwriters.
SECTION 5. Conditions of Underwriters’ Obligations. The obligations of the several Underwriters hereunder are subject to the accuracy of the representations and warranties of the Company contained in this Agreement, or in certificates signed by any officer of the Company (whether signed on behalf of such officer or the Company) delivered to the Representatives or counsel for the Underwriters, to the performance by the Company of its covenants and other obligations hereunder, and to the following further conditions:
(a) Effectiveness of Registration Statement. The Registration Statement shall have become effective, and no stop order suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefor initiated or, to the knowledge of the Company, threatened by the Commission, any request on the part of the Commission for additional information shall have been complied with to the reasonable satisfaction of the Representatives and the Commission shall not have notified the Company of any objection to the use of the form of the Registration Statement. The Prospectus shall have been filed with the Commission in the manner and within the time period required by Rule 424(b) (without reliance upon clause (8) of Rule 424(b)) and each Issuer Free Writing Prospectus required to be filed with the Commission shall have been filed in the manner and within the time period required by Rule 433, and, prior to the Closing Date, the Company shall have provided evidence satisfactory to the Representatives of such timely filings.
(b) Opinion of Counsel for Company. At the Closing Date, the Representatives shall have received the favorable opinion, dated as of the Closing Date, of each of (i) Stinson LLP, counsel for the Company, in form and substance satisfactory to the Representatives, together with signed or reproduced copies of such opinion for each of the other Underwriters, to the effect set forth in Exhibit D hereto and to such further effect as the Representatives may reasonably request and (ii) Matthew J. Aplington, Esq., Vice President, Chief Legal Officer and Assistant Corporate Secretary of Spire Inc., the parent company of the Company, in form and substance satisfactory to the Representatives, together with signed or reproduced copies of such opinion for each of the other Underwriters, to the effect set forth in Exhibit E hereto and to such further effect as the Representatives may reasonably request.
(c) Opinion of Counsel for Underwriters. At the Closing Date, the Representatives shall have received the favorable letter, dated as of the Closing Date, of Bracewell LLP, counsel for the Underwriters (“Underwriters’ Counsel”), together with signed or reproduced copies of such letter for each of the other Underwriters, with respect to the Registration Statement, the General Disclosure Package and the Prospectus and any amendments or supplements thereto and such other matters as the Representatives may reasonably request.
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(d) Officers’ Certificate. At the Closing Date, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus (in each case exclusive of any amendments or supplements thereto subsequent to the earlier of (i) the Applicable Time and (ii) the execution and delivery of this Agreement), any material adverse change or any development that could reasonably be expected to result in a material adverse change in the condition (financial or other), results of operations, business, properties, management or business prospects of the Company, whether or not arising in the ordinary course of business, and, at the Closing Date, the Representatives shall have received a certificate, signed on behalf of the Company by the President, an Executive Vice President or a Senior Vice President of the Company and the Chief Financial Officer or principal accounting officer of the Company, dated as of the Closing Date, to the effect that (A) there has been no such material adverse change, (B) the representations and warranties of the Company in this Agreement are true and correct at and as of the Closing Date with the same force and effect as though expressly made at and as of the Closing Date, (C) the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date under or pursuant to this Agreement and (D) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or, to the knowledge of the Company, are contemplated by the Commission and the Commission has not notified the Company of any objection to the use of the form of the Registration Statement.
(e) Accountant’s Comfort Letter. At the time of the execution and delivery of this Agreement, the Representatives shall have received the letter of D&T dated the date of this Agreement and in form and substance satisfactory to the Representatives and addressed to the Underwriters, together with signed or reproduced copies of such letter for each of the other Underwriters, confirming that they are independent public accountants within the meaning of the 1933 Act with respect to the Company and are in compliance with the applicable requirements relating to the qualifications of accountants under Rule 2-01 of Regulation S-X of the Commission and containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements of the Company and certain financial information included in the Registration Statement, the General Disclosure Package, any Issuer Free Writing Prospectuses (other than any electronic road show) and the Prospectus and any amendments or supplements to any of the foregoing.
(f) Bring-down Comfort Letter. At the Closing Date, the Representatives shall have received the letter of D&T dated as of the Closing Date and in form and substance satisfactory to the Representatives, to the effect that they reaffirm the statements made in their letter furnished pursuant to Section 5(e) hereof, except that the specified date referred to shall be a date not more than three business days prior to the Closing Date.
(g) Additional Documents. At the Closing Date, counsel for the Underwriters shall have been furnished with such documents and opinions as they may reasonably require for the purpose of enabling them to pass upon the issuance and sale of the Securities as herein contemplated, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, contained in this Agreement, or as any Representative or counsel for the Underwriters may otherwise reasonably request; and all proceedings taken by the Company in connection with the issuance and sale of the Securities as herein contemplated and in connection with the other transactions contemplated by this Agreement shall be satisfactory in form and substance to the Representatives.
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(h) Termination of Agreement. If any condition specified in this Section 5 shall not have been fulfilled when and as required to be fulfilled, this Agreement may be terminated by the Representatives by notice to the Company at any time on or prior to the Closing Date and such termination shall be without liability of any party to any other party except as provided in Section 4 hereof and except that, in the case of any such termination of this Agreement, Section 1, Section 6, Section 7, Section 8, Section 11, Section 12, Section 13, Section 14, Section 15, Section 17, Section 18 and Section 19 hereof shall survive such termination of this Agreement and remain in full force and effect.
SECTION 6. Indemnification.
(a) Indemnification by the Company. The Company agrees to indemnify and hold harmless each Underwriter, its affiliates and agents, and its and their officers, directors, employees, partners and members and each person, if any, who controls any Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act (each, a “Company Indemnified Party”) as follows:
(i) against any and all loss, liability, claim, damage and expense whatsoever, to which such Company Indemnified Party may become subject, under the 1933 Act, the 1934 Act, other federal or state statutory law or regulation or otherwise, as incurred, arising out of any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement (or any amendment thereto), or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein not misleading, or arising out of any untrue statement or alleged untrue statement of a material fact included in any preliminary prospectus, any Issuer Free Writing Prospectus, the General Disclosure Package or the Prospectus (or any amendment or supplement to any of the foregoing), or any “issuer information” (as defined in Rule 433), or any “road show” (as defined in Rule 433) that does not constitute an Issuer Free Writing Prospectus, or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense whatsoever, as incurred by such Company Indemnified Party, to the extent of the aggregate amount paid in settlement of any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or of any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission; provided that any such settlement is effected with the written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred (including the fees and disbursements of counsel), reasonably incurred by such Company Indemnified Party in investigating, preparing for or defending against any subpoena or litigation, or any proceeding, subpoena or investigation by any governmental agency or body, whether commenced or threatened, or any loss, claim, damage, liability or action whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under clause (i) or (ii) above, provided, however, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense to the extent arising out of any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with written information furnished to the Company by any Underwriter through the Representatives expressly for use in the Registration Statement (or any amendment thereto) or in any preliminary prospectus, any Issuer Free Writing Prospectus, the General Disclosure Package or the Prospectus (or in any amendment or supplement to any of the foregoing), it being understood and agreed that the only such information furnished by the Underwriters as aforesaid consists of the information described as such in Section 6(b) hereof.
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(b) Indemnification by the Underwriters. Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless the Company, its directors, each of its officers who signed the Registration Statement and each person, if any, who controls the Company within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act (each, an “Underwriter Indemnified Party”) against any and all loss, liability, claim, damage and expense described in the indemnity contained in Section 6(a) hereof, to which such Underwriter Indemnified Party may become subject, under the 1933 Act, the 1934 Act, other federal or state statutory law or regulation or otherwise, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any amendment thereto), or in any preliminary prospectus, any Issuer Free Writing Prospectus, the General Disclosure Package or the Prospectus (or any amendment or supplement to any of the foregoing), in reliance upon and in conformity with written information furnished to the Company by such Underwriter through the Representatives expressly for use therein. The Company hereby acknowledges and agrees that the information furnished to the Company by the Underwriters through the Representatives expressly for use in the Registration Statement (or any amendment thereto), or in any preliminary prospectus, any Issuer Free Writing Prospectus, the General Disclosure Package or the Prospectus (or any amendment or supplement to any of the foregoing), consists exclusively of the following information appearing in the Pre-Pricing Prospectus and the Prospectus: (i) the information regarding the concession and reallowance appearing in the third paragraph under the caption “Underwriting (Conflicts of Interest)” therein, (ii) the information regarding stabilization, syndicate covering transactions and penalty bids appearing in the fourth and fifth paragraphs under the table in the subcaption “Underwriting Discounts and Commissions” under such caption (but only insofar as such information concerns the Underwriters) and (iii) the information regarding market making by the Underwriters appearing in the third paragraph under such table.
(c) Actions Against Parties; Notification. Each Company Indemnified Party or Underwriter Indemnified Party (in any such case, an “Indemnified Party”) shall give notice as promptly as reasonably practicable to each indemnifying party of any action commenced against it, if a claim in respect thereof is to be made against such indemnifying party under Section 6(a) or Section 6(b) hereof, but failure to so notify an indemnifying party shall not relieve such indemnifying party from any liability hereunder except to the extent that it has been materially prejudiced (through the forfeiture or impairment of procedural or substantive rights or defenses) by such failure, provided that the failure to notify such indemnifying party shall not relieve such indemnifying party from any liability that it may have to an Indemnified Party otherwise than under Section 6(a)(i) or Section 6(b) above.
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Counsel for the Indemnified Parties shall be selected as follows: counsel for the Company Indemnified Parties shall be selected by the Representatives and counsel for the Underwriter Indemnified Parties shall be selected by the Company. An indemnifying party may, jointly with any other indemnifying party similarly notified, participate at its own expense in the defense of any such action; provided, however, that counsel for such indemnifying party shall not (except with the consent of an Indemnified Party) also be counsel for such Indemnified Party, and after notice from such indemnifying party to such Indemnified Party of its election so to assume the defense thereof, such indemnifying party will not be liable to such Indemnified Party under this Section 6 for any legal or other expenses subsequently incurred by such Indemnified Party in connection with the defense thereof other than reasonable costs of investigation. In no event shall such indemnifying parties be liable for the fees and expenses of more than one counsel (in addition to any local counsel) separate from their own counsel for the Company Indemnified Parties and the fees and expenses of more than one counsel (in addition to any local counsel) separate from their own counsel for the Underwriter Indemnified Parties, in each case in connection with any one action or separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances. No indemnifying party shall, without the prior written consent of the Indemnified Party, settle or compromise or consent to the entry of any judgment with respect to any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought under this Section 6 or Section 7 hereof (whether or not the Indemnified Parties are actual or potential parties thereto), unless such settlement, compromise or consent (i) includes an unconditional release of each Indemnified Party from all liability arising out of such litigation, investigation, proceeding or claim and (ii) does not include a statement as to, or an admission of, fault, culpability or a failure to act by or on behalf of any Indemnified Party.
(d) Settlement Without Consent if Failure to Reimburse. If at any time an Indemnified Party shall have requested an indemnifying party to reimburse such Indemnified Party for fees and expenses of counsel as contemplated by this Section 6, such indemnifying party agrees that it shall be liable for any settlement of the nature contemplated by Section 6(a)(ii) hereof effected without its written consent if (i) such settlement is entered into more than 45 days after receipt by such indemnifying party of the aforesaid request, (ii) such indemnifying party shall have received notice of the terms of such settlement at least 30 days prior to such settlement being entered into and (iii) such indemnifying party shall not have reimbursed such indemnified party in accordance with such request prior to the date of such settlement.
SECTION 7. Contribution.
If the indemnification provided for in Section 6 hereof is for any reason unavailable to or insufficient to hold harmless an Indemnified Party in respect of any losses, liabilities, claims, damages or expenses referred to therein, then each indemnifying party shall contribute to the amount paid or payable by such Indemnified Party as a result of such losses, liabilities, claims, damages and expenses incurred by such Indemnified Party, as incurred, (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Underwriters on the other hand from the offering of the Securities pursuant to this Agreement or (ii) if the allocation provided by clause (i) is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company on the one hand and of the Underwriters on the other hand in connection with the statements or omissions that resulted in such losses, liabilities, claims, damages or expenses, as well as any other relevant equitable considerations.
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The relative benefits received by the Company on the one hand and the Underwriters on the other hand in connection with the offering of the Securities pursuant to this Agreement shall be deemed to be in the same respective proportions as the total net proceeds from the offering of the Securities pursuant to this Agreement (before deducting expenses) received by the Company and the total underwriting discounts and commissions received by the Underwriters, in each case as set forth on the cover of the Prospectus, bear to the aggregate initial public offering price of the Securities as set forth on such cover.
The relative fault of the Company on the one hand and the Underwriters on the other hand shall be determined by reference to, among other things, whether any such untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Company on the one hand or by the Underwriters on the other hand and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and equitable if contribution pursuant to this Section 7 were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation that does not take account of the equitable considerations referred to above in this Section 7. The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an Indemnified Party and referred to above in this Section 7 shall be deemed to include any legal or other expenses reasonably incurred by such Indemnified Party in investigating, preparing for or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Securities underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages that such Underwriter has otherwise been required to pay by reason of any such untrue or alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the 1933 Act) shall be entitled to contribution from any person or entity who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each affiliate of any Underwriter, each officer, director, employee, partner and member of any Underwriter or any such affiliate, and each person, if any, who controls any Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have the same rights to contribution as such Underwriter, and each director of the Company, each officer of the Company who signed the Registration Statement, and each person, if any, who controls the Company within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have the same rights to contribution as the Company. The Underwriters’ respective obligations to contribute pursuant to this Section 7 are several in proportion to the principal amount of Securities set forth opposite their respective names in Exhibit A hereto and not joint.
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SECTION 8. Representations, Warranties and Agreements to Survive Delivery. All representations, warranties and agreements contained in this Agreement or in certificates signed by any officer of the Company (whether signed on behalf of such officer or the Company) and delivered to the Representatives or counsel for the Underwriters shall remain operative and in full force and effect, regardless of any investigation made by or on behalf of any Underwriter, any officer, director, employee, partner, member or agent of any Underwriter or any person or entity controlling any Underwriter, or by or on behalf of the Company, any officer, director or employee of the Company or any person or entity controlling the Company and shall survive delivery of and payment for the Securities.
SECTION 9. Termination of Agreement.
(a) Termination; General. The Representatives may terminate this Agreement, by notice to the Company, at any time on or prior to the Closing Date (i) if there has been, at any time subsequent to the earlier of (A) the Applicable Time and (B) the execution and delivery of this Agreement or since the respective dates as of which information is given in the General Disclosure Package or the Prospectus (in each case exclusive of any amendments or supplements thereto subsequent to such time), any Material Adverse Effect or any development that could reasonably be expected to result in a Material Adverse Effect, (ii) if there has occurred any material adverse change in the financial markets in the United States or the international financial markets, any declaration of a national emergency or war by the United States, any outbreak of hostilities or escalation thereof or other calamity or crisis or any change or development involving a prospective change in national or international political, financial or economic conditions (including as a result of terrorist activities), in each case the effect of which is such as to make it, in the judgment of the Representatives, impracticable or inadvisable to market the Securities or to enforce contracts for the sale of the Securities, (iii) if (A) trading in any securities of the Company has been suspended or materially limited by the Commission or the NYSE, (B) trading generally on the NYSE, the Nasdaq Stock Market or in the over-the-counter market has been suspended or limited, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices have been required, by the NYSE or the Nasdaq Stock Market or by order of the Commission, FINRA or any other governmental authority, or (C) a material disruption has occurred in commercial banking or securities settlement, or payment or clearance services in the United States or in Europe, (iv) if a banking moratorium has been declared by either federal or New York authorities or (v) if there shall have occurred, at any time subsequent to the earlier of (A) the Applicable Time and (B) the execution and delivery of this Agreement, any downgrading in the rating of any debt securities of the Company by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the 1934 Act) or any public announcement that any such organization has placed its rating on the Company or any such debt securities under surveillance or review or on a so-called “watch list” (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating) or any announcement by any such organization that the Company or any such debt securities has been placed on negative outlook.
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(b) Liabilities. If this Agreement is terminated pursuant to this Section 9, such termination shall be without liability of any party to any other party except as provided in Section 4 hereof and except that Section 1, Section 6, Section 7, Section 8, Section 11, Section 12, Section 13, Section 14, Section 15, Section 17, Section 18, Section 19 and Section 20 hereof shall survive termination and remain in full force and effect.
SECTION 10. Default by One or More of the Underwriters. If one or more of the Underwriters shall fail at the Closing Date to purchase the Securities that it or they are obligated to purchase under this Agreement (the “Defaulted Securities”), the Representatives shall have the right, within 24 hours thereafter, to make arrangements for one or more of the non-defaulting Underwriters, or any other underwriters, to purchase all, but not less than all, of the Defaulted Securities in such amounts as may be agreed upon and upon the terms herein set forth; if, however, the Representatives shall not have completed such arrangements within such 24-hour period, then:
(1) if the aggregate principal amount of Defaulted Securities does not exceed 10% of the aggregate principal amount of Securities to be purchased on such date, each of the non-defaulting Underwriters shall be obligated, severally and not jointly, to purchase the full amount of such Defaulted Securities in the proportions that their respective underwriting obligations hereunder bear to the underwriting obligations of all non-defaulting Underwriters; or
(2) if the aggregate principal amount of Defaulted Securities exceeds 10% of the aggregate principal amount of Securities to be purchased on such date and arrangements satisfactory to the non-defaulting Underwriters and the Company for the purchase of such Defaulted Securities by other persons are not made within 36 hours after such default, this Agreement shall terminate without liability on the part of the Company or any non-defaulting Underwriter, except as provided in Section 4 hereof and except that Section 1, Section 6, Section 7, Section 8, Section 11, Section 12, Section 13, Section 14, Section 15, Section 17, Section 18, Section 19 and Section 20 hereof shall survive termination and remain in full force and effect.
No action taken pursuant to this Section 10 shall relieve any defaulting Underwriter from liability in respect of its default.
In the event of any such default that does not result in a termination of this Agreement, the Representatives shall have the right to postpone the Closing Date for a period not exceeding seven days in order to effect any required changes in the Registration Statement, the General Disclosure Package or Prospectus or in any other documents or arrangements. As used herein, the term “Underwriter” includes any person substituted for an Underwriter under this Section 10.
SECTION 11. Notices. All notices and other communications hereunder shall be in writing, shall be effective only upon receipt and shall be mailed, delivered by hand or overnight courier, or transmitted by electronic mail. Notices to the Underwriters shall be directed to the Representatives c/o TD Securities (USA) LLC, 1 Vanderbilt Avenue, 11th Floor, New York, New York 10017, Attention: DCM – Transaction Advisory, email: ustransactionadvisory@tdsecurities.com, and notices to the Company shall be directed to it at Spire Missouri Inc. 700 Market Street, St. Louis, Missouri, 63101, Attention of Matthew J. Aplington, email: Matt.Aplington@spireenergy.com.
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SECTION 12. Parties. This Agreement shall each inure to the benefit of and be binding upon the Underwriters, the Company and their respective successors. Nothing expressed or mentioned in this Agreement is intended or shall be construed to give any person, firm or corporation, other than the Underwriters, the Company and their respective successors and the other Indemnified Parties and their successors, heirs and legal representatives, any legal or equitable right, remedy or claim under or in respect of this Agreement or any provision herein contained. This Agreement and all conditions and provisions hereof are intended to be for the sole and exclusive benefit of the Underwriters and the Company and their respective successors, and the other Indemnified Parties and their successors, heirs and legal representatives, and for the benefit of no other person or entity. No purchaser of Securities from any Underwriter shall be deemed to be a successor by reason merely of such purchase.
SECTION 13. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH HEREIN, SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME.
SECTION 14. Effect of Headings; Counterparts. The Section and Exhibit headings herein are for convenience only and shall not affect the construction hereof. This Agreement may be executed by any one or more of the parties hereto in any number of counterparts, each of which shall be deemed to be an original, but all such respective counterparts shall together constitute one and the same instrument. Counterparts may be delivered via facsimile, electronic mail (including any electronic signature covered by the U.S. federal ESIGN Act of 2000, Uniform Electronic Transactions Act, the Electronic Signatures and Records Act or other applicable law) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.
SECTION 15. Definitions.
(a) As used in this Agreement, the following terms have the respective meanings set forth below:
“Annual Report” means the Company’s Annual Report on Form 10-K for the fiscal year ended September 30, 2023.
“Applicable Time” means 3:00 p.m. (New York City time) on August 6, 2024 or such other time as agreed by the Company and the Representatives.
“Commission” means the Securities and Exchange Commission.
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“Company Documents” means all other contracts, indentures, mortgages, deeds of trust, loan or credit agreements, bonds, notes, debentures, evidences of indebtedness, swap agreements, hedging agreements, leases or other instruments or agreements to which the Company is a party or by which the Company is bound or to which any of the property or assets of the Company is subject, including the Mortgage and any other instruments, agreements and documents filed or incorporated by reference as exhibits to the Annual Report or any subsequent report filed by the Company under the Exchange Act (including the Quarterly Reports) pursuant to Rule 601(b)(10) of Regulation S-K of the Commission; provided that if any instrument, agreement or other document filed or incorporated by reference as such an exhibit has been redacted or if any portion thereof has been deleted or is otherwise not included as part of such exhibit (whether pursuant to a request for confidential treatment or otherwise), the term “Company Documents” shall nonetheless mean such instrument, agreement or other document, as the case may be, in its entirety, including any portions thereof that shall have been so redacted, deleted or otherwise not filed
“DTC” means The Depository Trust Company.
“EDGAR” means the Commission’s Electronic Data Gathering, Analysis and Retrieval System.
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended, and the regulations and published interpretations thereunder.
“FCPA” means the Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder.
“FINRA” means the Financial Industry Regulatory Authority Inc.
“GAAP” means generally accepted accounting principles in the United States.
“Issuer Free Writing Prospectus” means any “issuer free writing prospectus” (as defined in Rule 433) relating to the offering of the Securities that (i) is required to be filed with the Commission by the Company, (ii) is a “road show” that is a “written communication” (as defined in Rule 433(d)(8)(i)), whether or not required to be filed with the Commission, or (iii) is exempt from filing pursuant to Rule 433(d)(5)(i) because it contains a description of the Securities or of the offering that does not reflect the final terms, and all free writing prospectuses that are listed in Exhibit C hereto, in each case in the form filed or required to be filed with the Commission or, if not required to be filed, in the form retained in the Company’s records pursuant to Rule 433(g).
“Issuer General Use Free Writing Prospectus” means any Issuer Free Writing Prospectus that is intended for general distribution to prospective investors, as evidenced by its being specified in Exhibit C hereto.
“Issuer Limited Use Free Writing Prospectus” means any Issuer Free Writing Prospectus that is not an Issuer General Use Free Writing Prospectus.
“Lien” means any security interest, mortgage, pledge, lien, encumbrance, claim or equity.
“NYSE” means the New York Stock Exchange.
“OFAC” means the Office of Foreign Assets Control of the U.S. Treasury Department.
“Organizational Documents” means the Company’s Restated Articles of Incorporation and Bylaws, in each case as amended and in effect.
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“Pre-Pricing Prospectus” means the preliminary prospectus dated August 6, 2024 relating to the Securities in the form first furnished to the Underwriters for use in connection with the offering of the Securities, including the documents incorporated by reference therein pursuant to Item 12 of Form S-3 under the 1933 Act.
“PCAOB” means the Public Company Accounting Oversight Board (United States).
“preliminary prospectus” means any prospectus together with, if applicable, the accompanying prospectus supplement used in connection with the offering of the Securities that omitted the public offering price of the Securities or that was captioned “Subject to Completion,” together with the documents incorporated or deemed to be incorporated by reference therein pursuant to Item 12 of Form S-3 under the 1933 Act. The term “preliminary prospectus” includes the Pre-Pricing Prospectus.
“Quarterly Reports” means the Company’s Quarterly Reports on Form 10-Q for the quarters ended December 31, 2023, March 31, 2024 and June 30, 2024.
“Registration Statement” means the Company’s registration statement on Form S–3 (Registration No. 333-264799-01) filed on May 9, 2022 and the documents incorporated or deemed to be incorporated by reference therein pursuant to Item 12 of Form S–3 under the 1933 Act and the Rule 430B Information; provided that any Rule 430B Information shall be deemed part of the Registration Statement only from and after the time specified pursuant to Rule 430B.
“Repayment Event” means any event or condition that, either immediately or with notice or passage of time or both, (i) gives the holder of any bond, note, debenture or other evidence of indebtedness (or any person or entity acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, or (ii) gives any counterparty (or any person or entity acting on such counterparty’s behalf) under any swap agreement, hedging agreement or similar agreement or instrument to which the Company is a party the right to liquidate or accelerate the payment obligations, or designate an early termination date under such agreement or instrument, as the case may be.
“Rule 163,” “Rule 164,” “Rule 172,” “Rule 173(d),” “Rule 401(g)(2),” “Rule 405,” “Rule 424(b),” “Rule 430B,” and “Rule 433” refer to such rules under the 1933 Act.
“Rule 430B Information” means the information included in any preliminary prospectus or the Prospectus or any amendment or supplement to any of the foregoing filed pursuant to Rule 424(b)(2), (b)(5) or (b)(7) that was omitted from the Registration Statement at the time it first became effective but is deemed to be part of and included in the Registration Statement pursuant to Rule 430B.
“Sarbanes-Oxley Act” means the Sarbanes-Oxley Act of 2002 and the rules and regulations promulgated thereunder or implementing the provisions thereof.
“Termination Event” means any event or condition that gives any person or entity the right, either immediately or with notice or passage of time or both, to terminate or limit (in whole or in part) any Company Documents or any rights of the Company thereunder, including upon the occurrence of a change of control of the Company or other similar events.
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“Transaction Documents” means this Agreement, the Mortgage and the Securities, collectively.
“1933 Act” means the Securities Act of 1933, as amended.
“1933 Act Regulations” means the rules and regulations of the Commission under the 1933 Act.
“1934 Act” means the Securities Exchange Act of 1934, as amended.
“1934 Act Regulations” means the rules and regulations of the Commission under the 1934 Act.
“1939 Act” means the Trust Indenture Act of 1939, as amended, and the rules and regulations of the Commission thereunder.
“1940 Act” means the Investment Company Act of 1940, as amended, and the rules and regulations of the Commission thereunder.
(b) All references in this Agreement to the Registration Statement, any preliminary prospectus, the Prospectus, any Issuer Free Writing Prospectus or any amendment or supplement to any of the foregoing shall be deemed to include the version thereof filed with the Commission pursuant to EDGAR and all versions thereof delivered (physically or electronically) to the Representatives or the Underwriters.
(c) All references in this Agreement to financial statements and schedules and other information that is “contained,” “included” or “stated” in the Registration Statement, any preliminary prospectus or the Prospectus (and all other references of like import) shall be deemed to mean and include all such financial statements and schedules and other information that is incorporated by reference in or otherwise deemed by 1933 Act Regulations to be a part of or included in the Registration Statement, any preliminary prospectus or the Prospectus, as the case may be; and all references in this Agreement to amendments or supplements to the Registration Statement, any preliminary prospectus or the Prospectus shall be deemed to mean and include the filing of any document under the 1934 Act that is incorporated by reference in or otherwise deemed by 1933 Act Regulations to be a part of or included in the Registration Statement, such preliminary prospectus or the Prospectus, as the case may be.
(d) All references in this Agreement to the words “include” and “including” (and variations thereof) shall not be deemed to be terms of limitation, but rather shall be deemed to be followed by the words “without limitation” or “but not limited to”; and the use of the word “or” shall not be exclusive.
SECTION 16. Permitted Free Writing Prospectuses. The Company represents, warrants and agrees that it has not made and, unless it obtains the prior written consent of the Representatives, it will not make, any offer relating to the Securities that constitutes or would constitute an “issuer free writing prospectus” (as defined in Rule 433) or that otherwise constitutes or would constitute a “free writing prospectus” (as defined in Rule 405) or portion thereof required to be filed with the Commission or required to be retained by the Company pursuant to Rule 433; provided that the prior written consent of the Representatives shall be deemed to have been given in respect of the Issuer General Use Free Writing Prospectuses, if any, listed on Exhibit C hereto and, to any electronic road show in the form previously provided by the Company to and approved by the Representatives.
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Any such free writing prospectus consented to or deemed to have been consented to as aforesaid is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents, warrants and agrees that it has treated and will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus” (as defined in Rule 433) and has complied and will comply with the requirements of Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping. For the purposes of clarity, the parties hereto agree that all free writing prospectuses, if any, listed in Exhibit C hereto are Permitted Free Writing Prospectuses.
SECTION 17. Absence of Fiduciary Relationship. The Company acknowledges and agrees that:
(a) each of the Underwriters is acting solely as an underwriter in connection with the sale of the Securities and no fiduciary, advisory or agency relationship between the Company, on the one hand, and any of the Underwriters, on the other hand, has been created in respect of any of the transactions contemplated by this Agreement, irrespective of whether or not any of the Underwriters has advised or is advising the Company on other matters;
(b) the public offering price of the Securities and the price to be paid by the Underwriters for the Securities set forth in this Agreement were established by the Company following discussions and arms-length negotiations with the Representatives;
(c) it is capable of evaluating and understanding, and understands and accepts, the terms, risks and conditions of the transactions contemplated by this Agreement;
(d) the Underwriters have not provided any legal, accounting, regulatory or tax advice with respect to the offering contemplated hereby and the Company has consulted its own legal, accounting, regulatory and tax advisors to the extent it deemed appropriate;
(e) it is aware that the Underwriters and their respective affiliates are engaged in a broad range of transactions that may involve interests that differ from those of the Company and that none of the Underwriters has any obligation to disclose such interests and transactions to the Company by virtue of any fiduciary, advisory or agency relationship or otherwise; and
(f) it waives, to the fullest extent permitted by law, any claims it may have against any of the Underwriters for breach of fiduciary duty or alleged breach of fiduciary duty and agrees that none of the Underwriters shall have any liability (whether direct or indirect, in contract, tort or otherwise) to it in respect of such a fiduciary duty claim or to any person or entity asserting a fiduciary duty claim on its behalf or in right of it or the Company or any stockholders, employees or creditors of Company.
SECTION 18. Recognition of U.S. Special Resolution. In the event that (a) any Underwriter that is a Covered Entity becomes subject to a proceeding under a U.S.
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Special Resolution Regime, the transfer from such Underwriter of this Agreement, and any interest and obligation in or under this Agreement, will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if this Agreement, and any such interest and obligation, were governed by the laws of the United States or a state of the United States and (b) any Underwriter that is a Covered Entity or a BHC Act Affiliate of such Underwriter becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under this Agreement that may be exercised against such Underwriter are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if this Agreement were governed by the laws of the United States or a state of the United States. For purposes of this Section 18, (i) a “BHC Act Affiliate” has the meaning assigned to the term “affiliate” in, and shall be interpreted in accordance with, 12 U.S.C. Section 1841(k), (ii) “Covered Entity” means (A) a “covered entity” (as defined in, and interpreted in accordance with, 12 C.F.R. Section 252.82(b)), (B) a “covered bank” (as defined in, and interpreted in accordance with, 12 C.F.R. Section 47.3(b)) or (C) a “covered FSI” (as defined in, and interpreted in accordance with, 12 C.F.R. Section 382.2(b)), (iii) “Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. Section 252.81, 47.2 or 382.1, as applicable, and (iv) “U.S. Special Resolution Regime” means each of (A) the Federal Deposit Insurance Act and the regulations thereunder and (B) Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act and the regulations thereunder.
SECTION 19. Research Analyst Independence. The Company acknowledges that the Underwriters’ respective research analysts and research departments are required to be independent from their respective investment banking divisions and are subject to certain regulations and internal policies, and that such Underwriters’ respective research analysts and research departments may hold views and make statements or investment recommendations or publish research reports with respect to the Company or the offering that differ from the views of their respective investment banking divisions. The Company hereby waives and releases, to the fullest extent permitted by applicable law, any claims that the Company may have against the Underwriters with respect to any conflict of interest that may arise from the fact that the views expressed by their respective research analysts and research departments may be different from or inconsistent with the views or advice communicated to the Company by such Underwriters’ respective investment banking divisions. The Company acknowledges that each of the Underwriters is a full service securities firm and as such from time to time, subject to applicable securities laws, may effect transactions for its own account or the account of its customers and hold long or short positions in debt or equity securities of the Company and other entities that may be the subject of the transactions contemplated by this Agreement.
SECTION 20. Trial By Jury. The Company (on its own behalf and, to the extent permitted by applicable law, on behalf of its stockholders and affiliates) and each of the Underwriters hereby irrevocably waives, to the fullest extent permitted by applicable law, any and all right to trial by jury in any legal proceeding arising out of or relating to this Agreement or the transactions contemplated hereby.
[Signature Page Follows]
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If the foregoing is in accordance with your understanding of our agreement, please sign and return to the Company a counterpart hereof, whereupon this instrument, along with all counterparts, will become a binding agreement between the Underwriters and the Company in accordance with its terms.
Very truly yours, | ||
SPIRE MISSOURI INC. | ||
By: | /s/ Adam Woodard |
|
Name: | Adam W. Woodard | |
Title: | Vice President, Chief Financial Officer & Treasurer |
[Signature Page to Underwriting Agreement]
CONFIRMED AND ACCEPTED, | ||
as of the date first above written: | ||
BMO CAPITAL MARKETS CORP. | ||
By: | /s/ Mark Spadaccini |
|
Name: | Mark Spadaccini | |
Title: | Managing Director | |
J.P. MORGAN SECURITIES LLC | ||
By: | /s/ Som Bhattacharyya |
|
Name: | Som Bhattacharyya | |
Title: | Executive Director | |
TD SECURITIES (USA) LLC | ||
By: | /s/ Luiz Lanfredi |
|
Name: | Luiz Lanfredi | |
Title: | Director | |
U.S. BANCORP INVESTMENTS, INC. | ||
By: | /s/ Isabella Swanson |
|
Name: | Isabella Swanson | |
Title: | Vice President |
For themselves and as Representatives of the Underwriters named in Exhibit A hereto.
[Signature Page to Underwriting Agreement]
EXHIBIT A
Name of Underwriter |
Principal Amount of Securities |
|||
BMO Capital Markets Corp. |
$ | 75,200,000 | ||
J.P. Morgan Securities LLC |
$ | 75,200,000 | ||
TD Securities (USA) LLC |
$ | 75,200,000 | ||
U.S. Bancorp Investments, Inc. |
$ | 75,200,000 | ||
Commerce Brokerage Services, Inc. |
$ | 6,400,000 | ||
Huntington Securities, Inc. |
$ | 6,400,000 | ||
Samuel A. Ramirez & Company, Inc. |
$ | 6,400,000 | ||
Total |
$ | 320,000,000 | ||
|
|
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EXHIBIT B
FORM OF PRICING TERM SHEET
Spire Missouri Inc.
Offering of:
$320,000,000 First Mortgage Bonds, 5.150% Series due 2034
Pricing Term Sheet
August 6, 2024
Issuer: | Spire Missouri Inc. | |
Expected Ratings (Moody’s / S&P)*: |
[Intentionally omitted] | |
Expected Ratings Outlooks (Moody’s / S&P)*: | [Intentionally omitted] | |
Security Type: | First Mortgage Bonds | |
Pricing Date: | August 6, 2024 | |
Settlement Date**: | August 13, 2024 (T+5) | |
Maturity Date: | August 15, 2034 | |
Interest Payment Dates: | February 15 and August 15, beginning February 15, 2025 |
|
Principal Amount: | $320,000,000 | |
Benchmark Treasury: | 4.375% due May 15, 2034 | |
Benchmark Treasury Price / Yield: | 103-28 / 3.894% | |
Spread to Benchmark Treasury: | + 130 bps | |
Yield to Maturity: | 5.194% | |
Coupon: | 5.150% | |
Public Offering Price: | 99.660% of the principal amount | |
Optional Redemption: |
Make-Whole Call: | Prior to May 15, 2034 (the date that is three months prior to the maturity date of the First Mortgage Bonds (the “Par Call Date”)), the Issuer may redeem the First Mortgage Bonds at its option, in whole or in part, at any time and from time to time, at a redemption price (expressed as a percentage of principal amount and rounded to three decimal places) equal to the greater of: (i)(a) the sum of the present values of the remaining scheduled payments of principal and interest on the First Mortgage Bonds being redeemed discounted to the redemption date (assuming the First Mortgage Bonds being redeemed matured on the Par Call Date) on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate plus 20 basis points less (b) interest accrued to the redemption date and (ii) 100% of the principal amount of the First Mortgage Bonds to be redeemed, plus, in either case, accrued and unpaid interest thereon to, but excluding, the redemption date. | |
Par Call: | On or after the Par Call Date, the Issuer may redeem the First Mortgage Bonds at its option, in whole or in part, at any time and from time to time, at a redemption price equal to 100% of the principal amount of the First Mortgage Bonds being redeemed, plus accrued and unpaid interest thereon to, but excluding, the redemption date. | |
CUSIP / ISIN: | 84859D AD9 / US84859DAD93 | |
Book-Running Managers: | BMO Capital Markets Corp. J.P. Morgan Securities LLC TD Securities (USA) LLC U.S. Bancorp Investments, Inc. |
|
Co-Managers: | Commerce Brokerage Services, Inc. Huntington Securities, Inc. Samuel A. Ramirez & Company, Inc. |
* | A securities rating is not a recommendation to buy, sell or hold securities and may be subject to revision or withdrawal at any time. |
** | It is expected that delivery of the First Mortgage Bonds will be made against payment for the First Mortgage Bonds on or about August 13, 2024, which is the fifth business day following the date of this pricing term sheet (such settlement cycle being referred to as “T+5”). Under Rule 15(c)6-1 under the Securities Exchange Act of 1934, trades in the secondary market generally are required to settle in one business day unless the parties to any such trade expressly agree otherwise. Accordingly, purchasers who wish to trade the First Mortgage Bonds on the date of this pricing term sheet or the next three succeeding business days will be required, by virtue of the fact that the First Mortgage Bonds initially will settle in T+5, to specify an alternative settlement cycle at the time of any such trade to prevent failed settlement. Purchasers of the First Mortgage Bonds who wish to trade the First Mortgage Bonds on the date of this pricing term sheet or the next three succeeding business days should consult their own advisors. |
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The Issuer has filed a registration statement (including a prospectus), as amended, with the SEC for the offering to which this communication relates (File No. 333-264799-01). Before you invest, you should read the preliminary prospectus supplement and the accompanying prospectus and other documents the Issuer has filed with the SEC for more complete information about the Issuer and the offering. You may get these documents for free by visiting EDGAR on the SEC website at www.sec.gov. Alternatively, the Issuer, any underwriter or any dealer participating in the offering will arrange to send you the prospectus and the accompanying preliminary prospectus supplement if you request them by calling: BMO Capital Markets Corp. toll-free at 1-866-864-7760; J.P. Morgan Securities LLC collect at 1-212-834-4533; TD Securities (USA) LLC toll-free at 1-855-495-9846; or U.S. Bancorp Investments, Inc. toll-free at 1-877-558-2607.
This communication should be read in conjunction with the preliminary prospectus supplement and the accompanying prospectus. The information in this communication supersedes the information in the preliminary prospectus supplement and the accompanying prospectus to the extent inconsistent with the information therein.
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EXHIBIT C
ISSUER GENERAL USE FREE WRITING PROSPECTUSES
1. Pricing Term Sheet containing the terms of the Securities, substantially in the form of Exhibit B hereto.
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EXHIBIT D
FORM OF OPINION OF STINSON LLP
August 13, 2024
BMO Capital Markets Corp. 151 West 42nd Street New York, New York 10036 |
TD Securities (USA) LLC 1 Vanderbilt Avenue, 11th Floor New York, New York 10017 |
|
J.P. Morgan Securities LLC 383 Madison Avenue New York, New York 10179 |
U.S. Bancorp Investments, Inc. 214 North Tryon Street, 26th Floor Charlotte, North Carolina 28202 |
As Representatives of the several Underwriters
Re: | Underwriting Agreement |
Ladies and Gentlemen:
We have acted as special counsel to Spire Missouri Inc., a Missouri corporation (the “Company”), in connection with the issuance and sale by the Company, pursuant to the Underwriting Agreement, dated August 6, 2024 (the “Underwriting Agreement”), by and among the Company and the several underwriters listed on Schedule I thereto (collectively, the “Underwriters”), for whom BMO Capital Markets Corp., J.P. Morgan Securities LLC, TD Securities (USA) LLC and U.S. Bancorp Investments, Inc. are acting as representatives, of $320,000,000 aggregate principal amount of the Company’s First Mortgage Bonds, 5.150% Series due 2034 (the “Securities”). The Securities are to be issued under the Company’s Mortgage and Deed of Trust dated as of February 1, 1945, as amended and supplemented by all supplemental indentures thereto, the latest of which is the Thirty-Ninth Supplemental Indenture relating to the Securities, dated as of the date hereof (the “Supplemental Indenture”), between Regions Bank (successor to Mississippi Valley Trust Company), as trustee (the “Trustee”), and the Company (as so amended and supplemented, the “Mortgage”). This opinion is rendered at the request of the Company pursuant to Section 5(b) of the Underwriting Agreement. All capitalized terms used in this letter, without definition, have the meanings assigned to them in the Underwriting Agreement.
In reaching the conclusions expressed herein, and acting in our capacity as counsel to the Company in connection with the above-referenced transactions, we have examined originals, or copies certified or otherwise identified to our satisfaction, of each of the following documents (collectively, the “Examined Documents”):
(a) the Underwriting Agreement;
(b) the Mortgage;
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(c) the form of the Securities included in the Supplemental Indenture (together with the Underwriting Agreement and the Mortgage, the “Transaction Documents”);
(d) the registration statement on Form S-3 (Registration Number 333-264799-01) of the Company filed on May 9, 2022 with the Securities and Exchange Commission (the “Commission”) (such registration statement, including the documents incorporated therein by reference, the “Registration Statement”);
(e) the prospectus dated May 9, 2022 (together with the documents incorporated therein by reference, the “Base Prospectus”) included in the Registration Statement;
(f) the preliminary prospectus supplement dated August 6, 2024 (such preliminary prospectus supplement, together with the Base Prospectus, the “Pre-Pricing Prospectus”) relating to the Securities, filed with the Commission pursuant to Rule 424(b) of the General Rules and Regulations under the Securities Act of 1933, as amended (the “Securities Act”);
(g) the pricing term sheet reflecting the final terms of the Securities (together with the Pre-Pricing Prospectus, the “General Disclosure Package”);
(h) the Order Approving Finance Authority in Case No. GF-2022-0169, effective March 5, 2022 (the “Order”) entered by the Missouri Public Service Commission (the “MoPSC”); and
(i) the final prospectus supplement dated August 6, 2024 (the “Prospectus Supplement,” and together with the Base Prospectus, the “Prospectus”), relating to the Securities, filed with the Commission pursuant to Rule 424(b) of the General Rules and Regulations under the Securities Act.
In addition, we have examined the following documents (collectively, the “Due Diligence Documents”):
(i) the Officer’s Certificate, dated August 13, 2024, in respect of the Securities (the “Officer’s Certificate”);
(ii) the various certificates and other closing documents delivered in connection with the closing of the transactions contemplated by the Underwriting Agreement; and
(iii) such other documents, agreements and instruments as we have deemed necessary or appropriate as a basis for the opinions hereafter expressed.
We have examined originals or certified copies of such corporate records of the Company and other certificates and documents of officials of the Company, public officials and others as we have deemed appropriate for purposes of this letter, and relied upon them to the extent we deem appropriate, except where a statement is qualified as to knowledge or awareness, in which case we have made limited inquiry, as specified below. As to various questions of fact relevant to the opinions in this letter, we have relied, without independent investigation, upon the Due Diligence Documents, certificates of public officials, certificates of officers of the Company, and representations and warranties of the Company and the Underwriters contained in the Underwriting Agreement and the Due Diligence Documents, all of which we assume to be true, correct and complete.
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In addition, we have made no inquiry of the Company or any other person or entity (including governmental authorities) regarding, and no review of, any judgments, orders, decrees, franchises, licenses, certificates, permits or other public records or agreements to which the Company is a party other than the Examined Documents and the Due Diligence Documents, and our knowledge of any such matters is accordingly limited.
We have assumed the genuineness of all signatures, 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 the conformity of the Securities to the forms thereof that we have reviewed. In our examination of documents, we have also assumed (a) the due organization, valid existence and good standing under the Laws (as defined below) of its jurisdiction of organization of each party to the Transaction Documents, other than the valid existence and good standing of the Company, (b) the legal capacity of natural persons, (c) the corporate or other power and due authorization of each party to the Transaction Documents (other than the Company) to execute, deliver and perform its obligations under the Transaction Documents to which it is a party, and (other than in the case of the Company) to consummate the transactions contemplated therein, (d) the due execution and delivery of the Transaction Documents by all parties thereto (other than the Company) and (e) each Transaction Document constitutes a valid and binding obligation of each party thereto (other than the Company), enforceable against such party (other than the Company) in accordance with its terms.
Based upon the foregoing and subject to the assumptions, exceptions, qualifications and limitations set forth herein, we are of the opinion that:
1. The Company is validly existing as a corporation in good standing under the laws of the State of Missouri, with the corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus and to enter into and perform its obligations under the Transaction Documents.
2. The Company is duly qualified as a foreign corporation to transact business and is in good standing in each other jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure so to qualify or to be in good standing would not, individually or in the aggregate, result in a Material Adverse Effect.
3. The Underwriting Agreement has been duly authorized, executed and delivered by the Company.
4. The Mortgage has been duly and validly authorized by all necessary corporate action of the Company, has been duly and validly executed and delivered by the Company and is a valid and binding instrument enforceable against the Company in accordance with its terms, except as the same may be limited by certain laws and judicial decisions of the United States of America and the State of Missouri (where the property covered thereby is located) affecting the remedies for the enforcement of the security provided for therein, which laws do not, in our opinion, make inadequate the remedies necessary for the realization of the benefits of such security, and subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally, by general equitable principles (whether considered in a proceeding in equity or at law) and by an implied covenant of reasonableness, good faith and fair dealing.
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5. The Securities have been duly authorized and executed by the Company and, when authenticated by the Trustee in accordance with the Mortgage and delivered by the Company against payment therefor by the Underwriters pursuant to the Underwriting Agreement, will constitute valid and legally binding obligations of the Company enforceable against the Company in accordance with their terms and entitled to the benefit and security of the Mortgage equally and ratably (except as set forth in the Securities) with the first mortgage bonds of other series outstanding under the Mortgage.
6. The Registration Statement originally became automatically effective under the Securities Act upon filing on May 9, 2022; the Pre-Pricing Prospectus and the Prospectus and any amendments or supplements thereto have been filed with the Commission pursuant to Rule 424(b) under the Securities Act; and, to our knowledge, no order suspending the effectiveness of the Registration Statement has been issued and no proceeding for that purpose is pending or threatened by the Commission.
7. The statements in the General Disclosure Package and the Prospectus under the heading “Description of First Mortgage Bonds” and “Description of the Bonds,” insofar as such statements purport to summarize legal matters or provisions of documents referred to therein, are accurate in all material respects.
8. The statements in the General Disclosure Package and the Prospectus under the heading “Material United States Federal Income Tax Considerations,” insofar as such statements purport to summarize the U.S. federal tax laws or legal conclusions with respect thereto, are correct in all material respects, subject to the qualifications and assumptions stated therein.
9. To our knowledge, except as otherwise disclosed in the Registration Statement, the General Disclosure Package and the Prospectus, there is no action, suit, proceeding, inquiry or investigation before or brought by any court or governmental agency or body, domestic or foreign, now pending or threatened, against or affecting the Company that is required to be disclosed in the Registration Statement, the General Disclosure Package or the Prospectus, as the case may be, or that would reasonably be expected to materially and adversely affect the consummation of the transactions contemplated in the Underwriting Agreement or the performance by the Company of its obligations thereunder.
10. No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency under any Included Law (other than under the Securities Act or the Securities Exchange Act of 1934, as amended, or in each case the General Rules and Regulations thereunder, which have been made or obtained, or as may be required under state securities or blue sky Laws, as to which we express no opinion), is necessary or required for the authorization, execution or delivery of the Transaction Documents by the Company or for the issuance and sale of the Securities by the Company pursuant to the Transaction Documents.
D-4
11. The execution and delivery by the Company of the Transaction Documents and the performance by the Company of its obligations thereunder (including the issuance and sale of the Securities as contemplated therein) will not violate or result in a breach of or default by the Company under (a) any Included Law, (b) to our knowledge, any order, rule or regulation of any court or governmental authority or regulatory body having jurisdiction over the Company or any of its properties under any Included Law, (c) the Articles or Bylaws, or (d) to our knowledge, any indenture, mortgage, deed of trust or other material agreement or instrument known to us to which the Company is a party or by which it is bound or to which any of the property of the Company is subject; except, with respect to clauses (a), (b) and (d) of this paragraph, such violations, breaches or defaults that would not reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect.
12. The Company is not, and immediately after the closing of the transactions contemplated by the Transaction Documents and the application of the proceeds thereof as described in the General Disclosure Package and the Prospectus, the Company will not be, an “investment company” required to register under the Investment Company Act of 1940, as amended.
13. The Mortgage has been duly qualified under the Trust Indenture Act of 1939, as amended.
14. The Supplemental Indenture has been recorded in the office of the Secretary of State of the State of Missouri pursuant to Section 443.451 of the Missouri Revised Statutes, and the lien created by the Supplemental Indenture has become effective as to and enforceable against third parties.
15. (A) Other than the Order entered by the MoPSC authorizing the issuance and sale by the Company of the Securities, which is, to the best of our knowledge, in full force and effect, no filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency of the State of Missouri (other than as may be required under state securities or blue sky laws, as to which we express no opinion), and (B) no authorization, approval, vote or other consent of any stockholder of the Company, is necessary or required for the authorization, execution or delivery of the Transaction Documents by the Company for the issuance and sale of the Securities by the Company pursuant to the Transaction Documents.
The opinions, negative assurance and other matters in this letter are qualified in their entirety and subject to the following:
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A. We express no opinion as to the laws of any jurisdiction other than the Included Laws. We have made no special investigation or review of any published constitutions, treaties, laws, rules or regulations or judicial or administrative decisions (“Laws”), other than a review of (i) the Laws of the State of Missouri; (ii) the Laws of the State of New York; and (iii) the federal Laws of the United States of America. For purposes of this letter, the term “Included Laws” means the items described in clauses (i), (ii) and (iii) of the preceding sentence that are, in our experience, normally applicable to transactions of the type contemplated in the Underwriting Agreement. The term Included Laws specifically excludes (a) Laws of any counties, cities, towns, municipalities and special political subdivisions and any agencies thereof, (b) zoning, land use, building and construction Laws, (c) Federal Reserve Board margin regulations, (d) any environmental, labor, tax (other than as provided in paragraph 8 above), pension, employee benefit, antiterrorism, money laundering, foreign investment, insurance, commodity, antitrust, intellectual property and state securities or “blue sky” Laws and (e) any Laws that may be applicable to the Company and its subsidiaries by virtue of the particular nature of the businesses conducted by them or any goods or services provided by them or property owned or leased by them.
B. When used in this letter, the phrase “to our knowledge” and similar phrases (i) mean the conscious awareness of facts or other information by any lawyer in our firm actively involved in negotiating and preparing the Examined Documents and any lawyer in our firm who otherwise devotes material substantive attention to matters of the Company on behalf of this firm and could reasonably be expected to have information material to the opinions expressed herein, and (ii) do not require or imply (a) any examination of any other person’s or entity’s files, (b) that any inquiry be made of the client (other than as to the existence of any order referred to in paragraph 10(b) above), any lawyer (other than the lawyers described above), or any other person or entity, or (c) any review or examination of any agreements, documents, certificates, instruments or other papers other than the Examined Documents, the Due Diligence Documents and the corporate records referred to in the fourth paragraph of this letter.
C. This letter and the matters addressed herein are as of the date hereof or such earlier date as is specified herein, and we undertake no, and hereby disclaim any, obligation to advise you or any other person or entity of any change 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 entity, or any other circumstance. This letter is limited to the matters expressly stated herein and no opinions are to be inferred or may be implied beyond the opinions expressly set forth herein.
D. Our opinions in paragraphs 1 and 2 above with respect to the valid existence and good standing of the Company are based solely upon our review of the certificates of good standing each dated on or about August 13, 2024 issued with respect to the Company by the Secretary of State of Missouri and the applicable authority from each other state in which the Company is foreign qualified (the “Good Standing Certificates”), and in that regard, we make no conclusions beyond what are stated in the Good Standing Certificates.
E. With respect to the opinion expressed in paragraph 6 above (a) as to the automatic effectiveness of the Registration Statement, we have assumed the Company has not failed to file any reports required for the Company to constitute a “well-known seasoned issuer” as defined in Rule 405 under the Securities Act and (b) as to the absence of stop orders suspending the effectiveness of the Registration Statement or the initiation or threat of any proceedings thereto, we have relied, without any further inquiry, solely on our review of the information posted prior to [__:__] a.m., New York City time, on the date of this opinion letter on the Commission’s website at https://www.sec.gov/litigation/stoporders.shtml.
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F. We express no opinion with respect to the fairness of the Transaction Documents or any other matter, and in rendering the opinions expressed herein, we have assumed, with your consent, that a court of competent jurisdiction would find all such matters were entirely fair. We assume that no fraud, dishonesty, forgery, coercion, duress or breach of fiduciary duty exists or will exist with respect to any of the matters relevant to the opinions expressed herein.
G. We have assumed that the application of the proceeds from the offering of the Securities is as described in the General Disclosure Package.
H. We express no opinion as to (i) the compliance of the transactions contemplated by the Transaction Documents with any regulations or governmental requirements applicable to any party other than the Company; (ii) the financial condition or solvency of the Company or the Company’s compliance with any financial covenant or similar economic requirement or condition; (iii) the ability (financial or otherwise) of the Company or any other party to meet their respective obligations under the Transaction Documents; (iv) the compliance of the Transaction Documents or the transactions contemplated thereby with, or the effect on any of the opinions expressed herein of, the antifraud provisions of federal and state securities Laws, rules and regulations; (v) the creation, validity, enforceability, attachment, priority or perfection of, or filings or recording required in respect of, any lien or other encumbrance; or (vi) the conformity of the Transaction Documents to any term sheet or commitment letter.
* * *
For purposes of this letter, we have assumed the information in the Prospectus Supplement of the type referred to in Rule 430B(f)(1) of the General Rules and Regulations under the Securities Act was deemed to be a part of and included in the Registration Statement pursuant to such Rule 430B(f)(1) as of the date of the Underwriting Agreement. Our identification of documents and information as part of the General Disclosure Package has been at your request and with your approval. Such identification is for the limited purpose of making the statements set forth in this letter and is not the expression of a view by us as to whether any such information has been or should have been conveyed to investors generally or to any particular investors at any particular time or in any particular manner.
Because the primary purpose of our professional engagement was not to establish or confirm factual matters or financial, accounting or statistical information, and we have not participated in the preparation of the documents incorporated by reference in the Registration Statement, the General Disclosure Package, or the Prospectus and because many determinations involved in the preparation of the Registration Statement, the General Disclosure Package, and the Prospectus are of a wholly or partially non-legal character, except as expressly set forth in paragraph 8 of this letter, we are not passing upon and do not assume any responsibility for the accuracy, completeness or fairness of the statements contained or incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus and we make no representation that we have independently verified the accuracy, completeness or fairness of such statements.
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However, in the course of our acting as counsel to the Company in connection with the preparation of the Registration Statement, the General Disclosure Package and the Prospectus, we have reviewed each such document and have participated in conferences and telephone conversations with representatives of and other counsel for the Company, representatives of the independent public accountants for the Company, representatives of the Underwriters and representatives of the Underwriters’ Counsel, during which conferences and conversations the contents of such documents and related matters were discussed.
Subject to the foregoing, we confirm to you that, on the basis of the information we gained in the course of performing the services referred to above:
(a) Each of the Registration Statement, as of the date of the Underwriting Agreement, and the Prospectus, as of the date of the Prospectus Supplement, appeared on its face to be appropriately responsive in all material respects to the requirements of the Securities Act and the applicable rules and regulations thereunder, except that (i) we express no view as to the financial statements, financial schedules and other financial and accounting data (and statistical data derived therefrom) contained or incorporated by reference therein or omitted therefrom, and the information set forth or omitted under the headings “Description of First Mortgage Bonds,” “Description of Unsecured Debt Securities,” “Description of Preferred Stock” and “Book-Entry Securities” in the Base Prospectus and “Description of the Bonds” in the Prospectus Supplement and (ii) we express no view as to the antifraud provisions of the United States federal securities Laws and the rules and regulations promulgated under such provisions; and
(b) No facts have come to our attention that cause us to believe that (i) the Registration Statement, as of the date of the Underwriting Agreement, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (ii) the General Disclosure Package, considered together as of 3:00 P.M. on August 6, 2024 (which you have informed us is a time prior to the time of the first sale of the Securities by any Underwriter), contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made or then prevailing, not misleading or (iii) the Prospectus, as of the date of the Prospectus Supplement or as of the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made or then prevailing, not misleading, except that in the case of each of clauses (i) through (iii) above, we do not express any view as to the financial statements, financial schedules and other financial and accounting data (and statistical data derived therefrom) contained or incorporated by reference therein or omitted therefrom, and the information set forth or omitted under the headings “Description of First Mortgage Bonds,” “Description of Unsecured Debt Securities,” “Description of Preferred Stock” and “Book-Entry Securities” in the Base Prospectus and “Description of the Bonds” in the Prospectus Supplement.
[Remainder of page intentionally left blank.]
D-8
This letter is solely for your benefit and the benefit of the other Underwriters in connection with the offering of the Securities and no other person or entity shall be entitled to rely upon this letter. Without our prior written consent, this letter may not be quoted in whole or in part or otherwise referred to in any document and may not be furnished or otherwise disclosed to or used by any other person or entity, except for (i) delivery of copies hereof to counsel for any of the Underwriters; (ii) inclusion of copies hereof in a closing file; and (iii) use hereof in any legal proceeding arising out of the transactions contemplated by the Underwriting Agreement filed by an addressee hereof against this law firm or in which any addressee hereof is a defendant.
Very truly yours,
D-9
EXHIBIT E
FORM OF OPINION MATTHEW J. APLINGTON, ESQ.
August 13, 2024
BMO Capital Markets Corp. 151 West 42nd Street New York, New York 10036 |
TD Securities (USA) LLC 1 Vanderbilt Avenue, 11th Floor New York, New York 10017 |
|
J.P. Morgan Securities LLC 383 Madison Avenue New York, New York 10179 |
U.S. Bancorp Investments, Inc. 214 North Tryon Street, 26th Floor Charlotte, North Carolina 28202 |
As Representatives of the several Underwriters
Re: | Underwriting Agreement |
Ladies and Gentlemen:
I am Vice President, Chief Legal Officer and Assistant Corporate Secretary of Spire Inc., a Missouri corporation and the parent company of Spire Missouri Inc., a Missouri corporation (the “Company”). In such capacity, I have represented the Company in connection with the issuance and sale by the Company, pursuant to the Underwriting Agreement, dated as of August 6, 2024 (the “Underwriting Agreement”), by and among the Company and the several underwriters listed on Schedule I thereto (collectively, the “Underwriters”), for whom BMO Capital Markets Corp., J.P. Morgan Securities LLC, TD Securities (USA) LLC and U.S. Bancorp Investments, Inc. are acting as representatives, of $320,000,000 aggregate principal amount of the Company’s First Mortgage Bonds, 5.150% Series due 2034 (the “Securities”) The Securities are to be issued under the Company’s Mortgage and Deed of Trust dated as of February 1, 1945, as amended and supplemented by all supplemental indentures thereto, the latest of which is the Thirty-Ninth Supplemental Indenture relating to the Securities, dated as of the date hereof (the “Supplemental Indenture”), between Regions Bank (successor to Mississippi Valley Trust Company), as trustee (the “Trustee”), and the Company (as so amended and supplemented, the “Mortgage”). All capitalized terms used and not otherwise defined in this opinion letter shall have the respective meanings ascribed to them in the Underwriting Agreement. This letter is delivered to you pursuant to Section 5(b) of the Underwriting Agreement.
As such counsel, I have examined:
(a) the Restated Articles of Incorporation and all amendments thereto of the Company (the “Articles”);
(b) the Bylaws and all amendments thereto of the Company (the “Bylaws”);
(c) all relevant corporate proceedings of the Company; (e) the forms of the Securities included in the Supplemental Indenture;
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(d) the Mortgage;
(f) the Underwriting Agreement;
(g) the registration statement on Form S-3 (Registration Number 333-264799-01) of the Company filed on May 9, 2022 with the Securities and Exchange Commission (the “Commission”) (such registration statement, including the documents incorporated therein by reference, the “Registration Statement”);
(h) the prospectus dated May 9, 2022 (together with the documents incorporated therein by reference, the “Base Prospectus”) included in the Registration Statement;
(i) the preliminary prospectus supplement dated August 6, 2024 (such preliminary prospectus supplement, together with the Base Prospectus, the “Pre-Pricing Prospectus”), relating to the Securities, filed with the Commission pursuant to Rule 424(b) of the General Rules and Regulations under the Securities Act of 1933, as amended (the “Securities Act”);
(j) the pricing term sheet reflecting the final terms of the Securities (together with the Pre-Pricing Prospectus, the “General Disclosure Package”);
(k) the final prospectus supplement dated August 6, 2024 (the “Prospectus Supplement,” and together with the Base Prospectus, the “Prospectus”), relating to the Securities, filed with the Commission pursuant to Rule 424(b) of the General Rules and Regulations under the Securities Act; and
(l) all other related agreements, documents, instruments and certificates executed or delivered to the Underwriters by the Company on or prior to the date hereof in connection with or pursuant to the Underwriting Agreement or any of the other documents comprising the transaction.
The documents referenced in items (d), (e) and (f) above are sometimes hereinafter collectively referred to as the “Transaction Documents.”
I have also examined (a) originals, or copies certified or otherwise identified to my satisfaction, of such agreements, documents, certificates, corporate and official records, affidavits and other instruments and (b) such laws, rules and regulations as I deemed necessary or appropriate for purposes of this opinion. In such examinations, I have assumed (without independent investigation, verification or inquiry) the genuineness of all signatures, the legal capacity of natural persons, the authenticity of all documents submitted to me as originals and the conformity with the originals of all documents submitted to me as copies. I have also assumed (a) the due organization, valid existence and good standing under the laws of its jurisdiction of incorporation of each party (other than the Company) to each Transaction Document, (b) the corporate or other power and due authorization of each person (other than the Company) not a natural person to execute, authenticate and deliver the Transaction Documents and to perform its obligations under each Transaction Document to which it is a party, (c) the due execution and delivery of each Transaction Document by each party thereto (other than the Company) and (d) that each Transaction Document constitutes the valid and binding obligation of each party thereto (other than the Company), enforceable against such party in accordance with its terms.
E-2
As to various questions of fact relevant to the opinions in this letter, I have relied, without independent investigation, upon certificates of public officials, certificates of officers of the Company and representations and warranties of the Company contained in the Underwriting Agreement.
Based upon such review and upon such inquiries and investigations of the Company as I deemed necessary or relevant, I am of the opinion that:
1. The Company has been duly organized under the laws of the State of Missouri.
2. The Company has good and sufficient title to the properties described as owned by it in and as subject to the lien of the Mortgage, subject only to excepted encumbrances as defined in the Mortgage and all other restrictions, exceptions, defects and limitations of title as permitted under the Mortgage to the extent they do not materially impair the Company’s use of its properties in its business (collectively, the “Exceptions”). Subject to paragraph 3 below, the description of such properties set forth in the Mortgage is adequate to constitute the Mortgage a lien thereon and the Mortgage, subject only to the Exceptions, constitutes a valid, direct and first mortgage lien upon such properties, which include substantially all of the permanent physical properties and Franchises (as defined below) (other than those expressly excepted in the Mortgage). All permanent physical properties and Franchises (other than those expressly excepted in or released from the Mortgage) that have been or hereafter may be acquired by the Company after the date of the Supplemental Indenture have become or, upon such acquisition, will become subject to the lien of the Mortgage, subject, however, to the Exceptions and except as limited by bankruptcy law. As used above, “Franchises” means all franchises of the Company in or relating to real estate or the occupancy of lands to the extent the granting of a lien or mortgage thereon is permitted by applicable law.
3. All permanent physical properties and Franchises (other than those expressly excepted or released from the Mortgage) presently owned by the Company are subject to the lien of the Mortgage, subject to the Exceptions.
4. To the best of my knowledge, except as otherwise disclosed in the Registration Statement, the General Disclosure Package and the Prospectus, there is no action, suit, proceeding, inquiry or investigation before or brought by any court or governmental agency or body, domestic or foreign, now pending or threatened, against or affecting the Company that would reasonably be expected to result in a Material Adverse Effect.
5. The information in the Company’s Annual Report on Form 10-K for the fiscal year ended September 30, 2023, under the captions “Legal Proceedings,” “Management’s Discussion and Analysis of Financial Condition and Results of Operations—Critical Accounting Estimates—Regulatory Accounting” and “Management’s Discussion and Analysis of Financial Condition and Results of Operations—Regulatory Matters” and in Item 13 thereof under the caption “Certain Relationships and Related Transactions, and Director Independence,” in each case (A) to the extent that such information constitutes matters of law, summaries of legal matters, summaries of provisions of the Articles or Bylaws or any other material agreement, summaries of legal proceedings, or legal conclusions and (B) as such information has been modified, supplemented or superseded by information included in the General Disclosure Package and the Prospectus or incorporated by reference therein from any periodic or current report under the Securities Exchange Act of 1934, as amended, filed by the Company with the Commission subsequent to the date of filing of such Annual Report on Form 10-K, is accurate in all material respects.
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6. To my knowledge, there are no franchises, contracts, indentures, mortgages, deeds of trust, loan or credit agreements, bonds, notes, debentures, evidences of indebtedness, leases or other instruments or agreements required to be described or referred to in the Registration Statement, the General Disclosure Package or the Prospectus that have not been so described and filed as required.
* * *
For purposes of this letter, I have assumed the information in the Prospectus Supplement of the type referred to in Rule 430B(f)(1) of the General Rules and Regulations under the Securities Act was deemed to be a part of and included in the Registration Statement pursuant to such Rule 430B(f)(1) as of the date of the Underwriting Agreement. My identification of documents and information as part of the General Disclosure Package has been at your request and with your approval. Such identification is for the limited purpose of making the statements set forth in this letter and is not the expression of a view by me as to whether any such information has been or should have been conveyed to investors generally or to any particular investors at any particular time or in any particular manner.
Because many determinations involved in the preparation of the Registration Statement, the General Disclosure Package, and the Prospectus are of a wholly or partially non-legal character, except as expressly set forth in paragraph 5 of this letter, I am not passing upon and do not assume any responsibility for the accuracy, completeness or fairness of the statements contained or incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus and I make no representation that I have independently verified the accuracy, completeness or fairness of such statements.
However, in the course of my acting as counsel for the Company in connection with the preparation of the Registration Statement, the General Disclosure Package and the Prospectus, I have reviewed each such document and have participated in conferences and telephone conversations with other representatives of the Company, representatives of the Company’s outside counsel, representatives of the independent public accountants for the Company, representatives of the Underwriters and representatives of the Underwriters’ Counsel, during which conferences and conversations the contents of such documents and related matters were discussed. In passing upon the form of the Registration Statement and the form of the Prospectus, I necessarily assume the correctness and completeness of the statements made by the Company and information included therein and take no responsibility therefor, except insofar as such statements relate to me.
E-4
Subject to the foregoing, I confirm to you that, on the basis of the information I gained in the course of performing the services referred to above:
(a) Each of the Registration Statement, as of the date of the Underwriting Agreement, and the Prospectus, as of the date of the Prospectus Supplement, appeared on its face to be appropriately responsive in all material respects to the requirements of the Securities Act and the applicable rules and regulations thereunder, except that (i) I express no view as to the financial statements, financial schedules and other financial and accounting data (and statistical data derived therefrom) contained or incorporated by reference therein or omitted therefrom, and the information set forth or omitted under the headings “Description of Unsecured Debt Securities,” “Description of Preferred Stock “ and “Book-Entry Securities” in the Base Prospectus and (ii) I express no view as to the antifraud provisions of the United States federal securities laws and the rules and regulations promulgated under such provisions; and
(b) No facts have come to my attention that cause me to believe that (i) the Registration Statement, as of the date of the Underwriting Agreement, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (ii) the General Disclosure Package, considered together as of 3:00 P.M. on August 6, 2024 (which you have informed me is a time prior to the time of the first sale of the Securities by any Underwriter), contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made or then prevailing, not misleading or (iii) the Prospectus, as of the date of the Prospectus Supplement or as of the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made or then prevailing, not misleading, except that in the case of each of clauses (i) through (iii) above, I do not express any view as to the financial statements, financial schedules and other financial and accounting data (and statistical data derived therefrom) contained or incorporated by reference therein or omitted therefrom, and the information set forth or omitted under the headings “Description of Unsecured Debt Securities,” “Description of Preferred Stock” and “Book-Entry Securities” in the Base Prospectus.
I am a member of the Bar of the State of Missouri and I do not purport to be an expert on, or to express any opinion herein concerning, any matter governed by the laws of any jurisdiction other than the laws of the State of Missouri and the federal laws of the United States of America. Further, I express no opinion with respect to any law, rule, regulation or matter regarding (i) any matters of local law (i.e., laws, rules and regulations of counties, towns, municipalities or special political subdivisions and any agencies thereof); (ii) federal or state antitrust or unfair competition laws; or (iii) laws relating to land use, zoning and building code issues, taxes, antifraud, environmental issues, intellectual property and state “blue sky” laws.
This opinion is furnished only to the Underwriters and their respective successors, assigns and participants, and is solely for their benefit in connection with the transactions contemplated by the Transaction Documents and related documents, amendments and supplements. This opinion is not to be used or otherwise relied upon by any other party or entity or for any other purpose without my prior written consent, except for (i) delivery of copies hereof to counsel for any of the Underwriters; and (ii) inclusion of copies hereof in a closing file.
E-5
This opinion is made as of the date hereof, and I undertake no obligation, and hereby disclaim any obligation, to advise you of any change after the date hereof in any matter set forth herein.
Very truly yours,
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Exhibit 4.1
CONFIDENTIAL |
SPIRE MISSOURI INC.
TO
REGIONS BANK
Trustee
Thirty-Ninth Supplemental Indenture
Dated as of August 13, 2024
First Mortgage Bonds
5.150% Series due August 15, 2034
TABLE OF CONTENTS
Page | ||||||
Parties |
1 | |||||
Recitals |
1 | |||||
Previous Indentures | 1 | |||||
Identity of the Company | 9 | |||||
Identity of Trustee | 10 | |||||
Outstanding Bonds | 10 | |||||
Form of Fully Registered Bond of 2034 Series | 11 | |||||
Form of Trustee’s Certificate of Authentication. | 16 | |||||
Compliance with legal requirements | 17 | |||||
Granting Clause |
17 | |||||
Exception Clause |
17 | |||||
Habendum Clause |
18 | |||||
Exceptions, Reservations, etc. |
18 | |||||
Grant in Trust |
18 | |||||
Covenant Clause |
18 | |||||
ARTICLE I |
|
|||||
DEFINITIONS |
|
|||||
SECTION 1.1 |
Terms Defined by Reference | 18 | ||||
SECTION 1.2 |
Business Day | 19 | ||||
SECTION 1.3 |
Trustee | 19 | ||||
SECTION 1.4 |
Original Indenture | 19 | ||||
SECTION 1.5 |
First Supplemental Indenture | 19 | ||||
SECTION 1.6 |
Second Supplemental Indenture | 19 | ||||
SECTION 1.7 |
Third Supplemental Indenture | 19 | ||||
SECTION 1.8 |
Fourth Supplemental Indenture | 19 | ||||
SECTION 1.9 |
Fifth Supplemental Indenture | 19 | ||||
SECTION 1.10 |
Sixth Supplemental Indenture | 19 | ||||
SECTION 1.11 |
Seventh Supplemental Indenture | 19 | ||||
SECTION 1.12 |
Eighth Supplemental Indenture | 19 | ||||
SECTION 1.13 |
Ninth Supplemental Indenture | 19 | ||||
SECTION 1.14 |
Tenth Supplemental Indenture | 19 | ||||
SECTION 1.15 |
Eleventh Supplemental Indenture | 19 | ||||
SECTION 1.16 |
Twelfth Supplemental Indenture | 19 | ||||
SECTION 1.17 |
Thirteenth Supplemental Indenture | 20 | ||||
SECTION 1.18 |
Fourteenth Supplemental Indenture | 20 | ||||
SECTION 1.19 |
Fifteenth Supplemental Indenture | 20 | ||||
SECTION 1.20 |
Sixteenth Supplemental Indenture | 20 | ||||
SECTION 1.21 |
Seventeenth Supplemental Indenture | 20 | ||||
SECTION 1.22 |
Eighteenth Supplemental Indenture | 20 | ||||
SECTION 1.23 |
Nineteenth Supplemental Indenture | 20 |
i
SECTION 1.24 |
Twentieth Supplemental Indenture |
20 | ||||
SECTION 1.25 |
Twenty-First Supplemental Indenture |
20 | ||||
SECTION 1.26 |
Twenty-Second Supplemental Indenture |
20 | ||||
SECTION 1.27 |
Twenty-Third Supplemental Indenture |
20 | ||||
SECTION 1.28 |
Twenty-Fourth Supplemental Indenture |
20 | ||||
SECTION 1.29 |
Twenty-Fifth Supplemental Indenture |
20 | ||||
SECTION 1.30 |
Twenty-Sixth Supplemental Indenture |
21 | ||||
SECTION 1.31 |
Twenty-Seventh Supplemental Indenture |
21 | ||||
SECTION 1.32 |
Twenty-Eighth Supplemental Indenture |
21 | ||||
SECTION 1.33 |
Twenty-Ninth Supplemental Indenture |
21 | ||||
SECTION 1.34 |
Thirtieth Supplemental Indenture |
21 | ||||
SECTION 1.35 |
Thirty-First Supplemental Indenture |
21 | ||||
SECTION 1.36 |
Thirty-Second Supplemental Indenture |
21 | ||||
SECTION 1.37 |
Thirty-Third Supplemental Indenture |
21 | ||||
SECTION 1.38 |
Thirty-Fourth Supplemental Indenture |
21 | ||||
SECTION 1.39 |
Thirty-Fifth Supplemental Indenture |
21 | ||||
SECTION 1.40 |
Thirty-Sixth Supplemental Indenture |
21 | ||||
SECTION 1.41 |
Thirty-Seventh Supplemental Indenture |
21 | ||||
SECTION 1.42 |
Thirty-Eighth Supplemental Indenture |
22 | ||||
SECTION 1.43 |
Mortgage |
22 | ||||
SECTION 1.44 |
Hereof, Hereunder, etc. |
22 | ||||
SECTION 1.45 |
2034 Series. |
22 | ||||
ARTICLE II |
|
|||||
CREATION, DESCRIPTION, REGISTRATION, TRANSFER AND EXCHANGE OF THE 2034 SERIES OF BONDS |
|
|||||
SECTION 2.1 |
Creation and principal amount of the 2034 Series |
22 | ||||
SECTION 2.2 |
Date of Bonds |
22 | ||||
SECTION 2.3 |
Denominations, etc. |
22 | ||||
SECTION 2.4 |
Exchange of Bonds |
23 | ||||
SECTION 2.5 |
Registration of Bonds |
23 | ||||
SECTION 2.6 |
Temporary Bonds |
23 | ||||
SECTION 2.7 |
Payment of Defaulted Interest |
23 | ||||
SECTION 2.8 |
Transfers or Exchanges of Bonds called for redemption |
23 | ||||
ARTICLE III | ||||||
REDEMPTION OF BONDS OF THE 2034 SERIES | ||||||
SECTION 3.1 |
Circumstances in Which Redeemable |
24 | ||||
SECTION 3.2 |
Additional Circumstances in Which Redeemable |
24 | ||||
SECTION 3.3 |
Notice of Intention to Redeem |
25 | ||||
SECTION 3.4 |
No Other Redemptions |
25 |
ii
ARTICLE IV |
|
|||||
PARTICULAR COVENANTS OF THE COMPANY |
|
|||||
SECTION 4.1 |
Restrictions as to Dividends |
26 | ||||
SECTION 4.2 |
Earnings Requirements for Additional Bonds |
26 | ||||
SECTION 4.3 |
Postponement of Interest |
28 | ||||
ARTICLE V | ||||||
COMPANY’S RESERVATION OF RIGHTS – TRUSTEE PROVISIONS | ||||||
SECTION 5.1 |
Company’s Reservation of Rights |
28 | ||||
SECTION 5.2 |
Bondholder Consent to Amendments; Designation of Company as Proxy |
28 | ||||
ARTICLE VI | ||||||
COMPANY’S RESERVATION OF RIGHTS – PRIOR SUPPLEMENTS | ||||||
SECTION 6.1 |
Company’s Reservation of Rights |
29 | ||||
SECTION 6.2 |
Bondholder Consent to Amendments; Designation of Company as Proxy |
29 | ||||
SECTION 6.3 |
Prior Amendment |
29 | ||||
ARTICLE VII | ||||||
MISCELLANEOUS | ||||||
SECTION 7.1 |
Provisions Required by Trust Indenture Act of 1939 to Control |
29 | ||||
SECTION 7.2 |
Acceptance of Trust |
29 | ||||
SECTION 7.3 |
This Indenture Part of Original Indenture |
29 | ||||
SECTION 7.4 |
Execution in Any Number of Counterparts |
30 | ||||
SECTION 7.5 |
Date of Execution |
30 | ||||
SECTION 7.6 |
WAIVER OF JURY TRIAL |
30 |
Exhibits
Exhibit A | Mortgage Amendment | |
Exhibit B | Explanatory Note to the Mortgage Amendment |
iii
THIRTY-NINTH SUPPLEMENTAL INDENTURE, dated as of the 13th day of August, 2024 between SPIRE MISSOURI INC. (f/k/a Laclede Gas Company), a corporation duly organized and existing under the laws of the State of Missouri, having its principal place of business at 700 Market Street, St. Louis, Missouri 63101, hereinafter sometimes called the “Company,” party of the first part, and REGIONS BANK, a corporation organized under the laws of the State of Alabama, and having a principal corporate trust office at 8182 Maryland Ave., 12th Floor, Clayton, Missouri 63105, hereinafter sometimes called the “Trustee,” party of the second part.
WHEREAS, there have heretofore been duly executed and delivered the following four indentures between the Company and Mississippi Valley Trust Company, to-wit:
(a) An indenture of mortgage and deed of trust, hereinafter sometimes called the “Original Indenture,” dated as of February 1, 1945, which is recorded in the office of the Recorder of Deeds of the City of St. Louis, Missouri, in Book 6324 at Page 93 and in the office of the Recorder of Deeds of St. Louis County, Missouri, in Book 2078 at Page 12 and in the office of the Recorder of Deeds of Boone County, Missouri, in Book 294 at Page 399 and in the office of the Recorder of Deeds of Jefferson County, Missouri, in Book 434 at Page 480 and in the office of the Recorder of Deeds of St. Francois County, Missouri, in Book 551 at Page 593 and in the office of the Recorder of Deeds of Ste. Genevieve County, Missouri, in Book 198 at Page 629 and in the office of the Recorder of Deeds of Madison County, Missouri, in Book 77 at Page 1 and in the office of the Recorder of Deeds of Iron County, Missouri, in Book 224 at Page 451 and in the office of the Recorder of Deeds of Butler County, Missouri, in Book 503 at Page 606 and is filed in the office of the Secretary of State of Missouri under filing number 26,557 and is filed in the office of the Secretary of State of Missouri pursuant to R.S.Mo. 443.451 under filing number 2590088; and
(b) A supplemental indenture, hereinafter sometimes called the “First Supplemental Indenture,” dated as of December 1, 1946, which is recorded in the office of the Recorder of Deeds of the City of St. Louis, Missouri, in Book 6562 at Page 528, and in the office of the Recorder of Deeds of St. Louis County, Missouri, in Book 2268 at Page 273; and
(c) A supplemental indenture, hereinafter sometimes called the “Second Supplemental Indenture,” dated as of March 15, 1948, which is recorded in the office of the Recorder of Deeds of the City of St. Louis, Missouri, in Book 6687 at Page 467, and in the office of the Recorder of Deeds of St. Louis County, Missouri, in Book 2327 at Page 357; and
(d) A supplemental indenture, hereinafter sometimes called the “Third Supplemental Indenture,” dated as of April 1, 1951, which is recorded in the office of the Recorder of Deeds of the City of St. Louis, Missouri, in Book 7079 at Page 125 and in the office of the Recorder of Deeds of St. Louis County, Missouri, in Book 2869 at Page 275; and
WHEREAS, there have been heretofore duly executed and delivered four indentures between the Company and Mercantile Trust Company, to-wit:
(a) A supplemental indenture, hereinafter sometimes called the “Fourth Supplemental Indenture,” dated as of December 1, 1954, which is recorded in the office of the Recorder of Deeds of the City of St. Louis, Missouri, in Book 7458 at Page 400 and in the office of the Recorder of Deeds of St.
1
Louis County, Missouri, in Book 3342 at Page 34 and in the office of the Recorder of Deeds of Boone County, Missouri, in Book 294 at Page 477 and in the office of the Recorder of Deeds of Jefferson County, Missouri, in Book 434 at Page 574 and in the office of the Recorder of Deeds of St. Francois County, Missouri, in Book 552 at Page 1 and in the office of the Recorder of Deeds of Ste. Genevieve County, Missouri, in Book 198 at Page 721 and in the office of the Recorder of Deeds of Madison County, Missouri, in Book 77 at Page 183 and in the office of the Recorder of Deeds of Iron County, Missouri, in Book 224 at Page 632 and in the office of the Recorder of Deeds of Butler County, Missouri, in Book 507 at Page 1 and is filed in the office of the Secretary of State of Missouri under filing number 26,558; and
(b) A supplemental indenture, hereinafter sometimes called the “Fifth Supplemental Indenture,” dated as of May 1, 1957, which is recorded in the office of the Recorder of Deeds of the City of St. Louis, Missouri, in Book 7731 at Page 152 and in the office of the Recorder of Deeds of St. Louis County, Missouri, in Book 3766 at Page 1 and in the office of the Recorder of Deeds of Boone County, Missouri, in Book 294 at Page 494 and in the office of the Recorder of Deeds of Jefferson County, Missouri, in Book 434 at Page 611 and in the office of the Recorder of Deeds of St. Francois County, Missouri, in Book 552 at Page 38 and in the office of the Recorder of Deeds of Ste. Genevieve County, Missouri, in Book 199 at Page 1 and in the office of the Recorder of Deeds of Madison County, Missouri, in Book 77 at Page 220 and in the office of the Recorder of Deeds of Iron County, Missouri, in Book 226 at Page 1 and in the office of the Recorder of Deeds of Butler County, Missouri, in Book 507 at Page 38 and is filed in the office of the Secretary of State of Missouri under filing number 26,559; and
(c) A supplemental indenture, hereinafter sometimes called the “Sixth Supplemental Indenture,” dated as of July 1, 1960, which is recorded in the office of the Recorder of Deeds of the City of St. Louis, Missouri, in Book 8087 at Page 55 and in the office of the Recorder of Deeds of St. Louis County, Missouri, in Book 4348 at Page 1 and in the office of the Recorder of Deeds of Boone County, Missouri, in Book 294 at Page 535 and in the office of the Recorder of Deeds of Jefferson County, Missouri, in Book 434 at Page 651 and in the office of the Recorder of Deeds of St. Francois County, Missouri, in Book 552 at Page 78 and in the office of the Recorder of Deeds of Ste. Genevieve County, Missouri, in Book 199 at Page 22 and in the office of the Recorder of Deeds of Madison County, Missouri, in Book 77 at Page 260 and in the office of the Recorder of Deeds of Iron County, Missouri, in Book 226 at Page 42 and in the office of the Recorder of Deeds of Butler County, Missouri, in Book 507 at Page 62 and is filed in the office of the Secretary of State of Missouri under filing number 26,560; and
(d) A supplemental indenture, hereinafter sometimes called the “Seventh Supplemental Indenture,” dated as of June 1, 1964, which is recorded in the office of the Recorder of Deeds of the City of St. Louis, Missouri, in Book 8506 at Page 215 and in the office of the Recorder of Deeds of St. Louis County, Missouri, in Book 5410 at Page 399 and in the office of the Recorder of Deeds of Boone County, Missouri, in Book 342 at Page 2 and in the office of the Recorder of Deeds of Jefferson County, Missouri, in Book 434 at Page 697 and in the office of the Recorder of Deeds of St. Francois County, Missouri, in Book 552 at Page 124 and in the office of the Recorder of Deeds of Ste. Genevieve County, Missouri, in Book 199 at Page 46 and in the office of the Recorder of Deeds of Madison County, Missouri, in Book 77 at Page 306 and in the office of the Recorder of Deeds of Iron County, Missouri, in Book 226 at Page 89 and in the office of the Recorder of Deeds of Butler County, Missouri, in Book 507 at Page 90 and is filed in the office of the Secretary of State of Missouri under filing number 26,561; and
WHEREAS, there have been heretofore duly executed and delivered eight indentures between the Company and Mercantile Trust Company National Association, to-wit:
2
(a) A supplemental indenture, hereinafter sometimes called the “Eighth Supplemental Indenture,” dated as of April 15, 1966, which is recorded in the office of the Recorder of Deeds of the City of St. Louis, Missouri, in Book 8678 at Page 1 and in the office of the Recorder of Deeds of St. Louis County, Missouri, in Book 5949 at Page 450 and in the office of the Recorder of Deeds of Boone County, Missouri, in Book 361 at Page 148 and in the office of the Recorder of Deeds of Jefferson County, Missouri, in Book 434 at Page 746 and in the office of the Recorder of Deeds of St. Francois County, Missouri, in Book 552 at Page 172 and in the office of the Recorder of Deeds of Ste. Genevieve County, Missouri, in Book 199 at Page 71 and in the office of the Recorder of Deeds of Madison County, Missouri, in Book 77 at Page 354 and in the office of the Recorder of Deeds of Iron County, Missouri, in Book 226 at Page 138 and in the office of the Recorder of Deeds of Butler County, Missouri, in Book 507 at Page 118 and is filed in the office of the Secretary of State of Missouri under filing number 28,645; and
(b) A supplemental indenture, hereinafter sometimes called the “Ninth Supplemental Indenture,” dated as of May 1, 1968, which is recorded in the office of the Recorder of Deeds of the City of St. Louis, Missouri, in Book 8834 at Page 213 and in the office of the Recorder of Deeds of St. Louis County, Missouri, in Book 6323 at Page 1904 and in the office of the Recorder of Deeds of Boone County, Missouri, in Book 389 at Page 888 and in the office of the Recorder of Deeds of St. Charles County, Missouri, in Book 498 at Page 408 and in the office of the Recorder of Deeds of Jefferson County, Missouri, in Book 434 at Page 790 and in the office of the Recorder of Deeds of St. Francois County, Missouri, in Book 552 at Page 216 and in the office of the Recorder of Deeds of Ste. Genevieve County, Missouri, in Book 199 at Page 94 and in the office of the Recorder of Deeds of Madison County, Missouri, in Book 77 at Page 398 and in the office of the Recorder of Deeds of Iron County, Missouri, in Book 226 at Page 183 and in the office of the Recorder of Deeds of Butler County, Missouri, in Book 507 at Page 145 and is filed in the office of the Secretary of State of Missouri under filing number 87,403; and
(c) A supplemental indenture, hereinafter sometimes called the “Tenth Supplemental Indenture,” dated as of May 15, 1970, which is recorded in the office of the Recorder of Deeds of the City of St. Louis, Missouri, in Book 8988 at Page 52 and in the office of the Recorder of Deeds of St. Louis County, Missouri, in Book 6456 at Page 132 and in the office of the Recorder of Deeds of Boone County, Missouri, in Book 396 at Page 560 and in the office of the Recorder of Deeds of St. Charles County, Missouri, in Book 554 at Page 79 and in the office of the Recorder of Deeds of Jefferson County, Missouri, in Book 434 at Page 829 and in the office of the Recorder of Deeds of St. Francois County, Missouri, in Book 552 at Page 255 and in the office of the Recorder of Deeds of Ste. Genevieve County, Missouri, in Book 199 at Page 114 and in the office of the Recorder of Deeds of Madison County, Missouri, in Book 77 at Page 436 and in the office of the Recorder of Deeds of Iron County, Missouri, in Book 226 at Page 223 and in the office of the Recorder of Deeds of Butler County, Missouri, in Book 507 at Page 168 and is filed in the office of the Secretary of State of Missouri under filing number 154,857; and
(d) A supplemental indenture, hereinafter sometimes called the “Eleventh Supplemental Indenture,” dated as of March 15, 1972, which is recorded in the office of the Recorder of Deeds of the City of St. Louis, Missouri, in Book 9133 at Page 4 and in the office of the Recorder of Deeds of St. Louis County, Missouri, in Book 6577 at Page 1993 and in the office of the Recorder of Deeds of Boone County, Missouri, in Book 401 at Page 706 and in the office of the Recorder of Deeds of St. Charles County, Missouri, in Book 620 at Page 157 and in the office of the Recorder of Deeds of Jefferson County, Missouri, in Book 435 at Page 23 and in the office of the Recorder of Deeds of Ste. Genevieve County, Missouri, in Book 199 at Page 210 and in the office of the Recorder of Deeds of St.
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Francois County, Missouri, in Book 552 at Page 640 and in the office of the Recorder of Deeds of Iron County, Missouri, in Book 226 at Page 282 and in the office of the Recorder of Deeds of Madison County, Missouri, in Book 78 at Page 1 and in the office of the Recorder of Deeds of Butler County, Missouri, in Book 507 at Page 265 and is filed in the office of the Secretary of State of Missouri under filing number 234,221; and (e) A supplemental indenture, hereinafter sometimes called the “Twelfth Supplemental Indenture,” dated as of March 15, 1974, which is recorded in the office of the Recorder of Deeds of the City of St. Louis, Missouri, in Book 40M at Page 1 and in the office of the Recorder of Deeds of St. Louis County, Missouri, in Book 6721 at Page 91 and in the office of the Recorder of Deeds of Boone County, Missouri, in Book 407 at Page 888 and in the office of the Recorder of Deeds of St. Charles County, Missouri, in Book 677 at Page 1445 and in the office of the Recorder of Deeds of Jefferson County, Missouri, in Book 465 at Page 976 and in the office of the Recorder of Deeds of Ste. Genevieve County, Missouri, in Book 210 at Page 255 and in the office of the Recorder of Deeds of St. Francois County, Missouri, in Book 598 at Page 683 and in the office of the Recorder of Deeds of Iron County, Missouri, in Book 237 at Page 1 and in the office of the Recorder of Deeds of Madison County, Missouri, in Book 84 at Page 117 and in the office of the Recorder of Deeds of Butler County, Missouri, in Book 535 at Page 540 and in the office of the Recorder of Deeds of Beckham County, Oklahoma, in Book 127 at Page 149 and in the office of the County Clerk of Wheeler County, Texas, in Trust Vol. 58 at Page 731 and is filed in the office of the Secretary of State of Missouri under filing number 333,360; and
(f) A supplemental indenture, hereinafter sometimes called the “Thirteenth Supplemental Indenture,” dated as of June 1, 1975, which is recorded in the office of the Recorder of Deeds of the City of St. Louis, Missouri, in Book 70M at Page 2061 and in the office of the Recorder of Deeds of St. Louis County, Missouri, in Book 6796 at Page 1447 and in the office of the Recorder of Deeds of Boone County, Missouri, in Book 411 at Page 9 and in the office of the Recorder of Deeds of St. Charles County, Missouri, in Book 704 at Page 1739 and in the office of the Recorder of Deeds of Jefferson County, Missouri, in Book 481 at Page 292 and in the office of the Recorder of Deeds of Ste. Genevieve County, Missouri, in Book 124 at Page 225 and in the office of the Recorder of Deeds of St. Francois County, Missouri, in Book 624 at Page 359 and in the office of the Recorder of Deeds of Iron County, Missouri, in Book 242 at Page 234 and in the office of the Recorder of Deeds of Madison County, Missouri, in Book 86 at Pages 483-532 and in the office of the Recorder of Deeds of Butler County, Missouri, in Book 547 at Page 300 and in the office of the Recorder of Deeds of Beckham County, Oklahoma, in Book 130 at Page 416 and in the office of the County Clerk of Wheeler County, Texas, in Trust Vol. 59 at Page 649 and in the office of the Clerk of Court for Sabine Parish, Louisiana, under Registry No. 227328 in Mtg. Book 108 at Page 478 and in the office of the Clerk of Court for DeSoto Parish, Louisiana, under Registry No. 378628 in Mtg. Book 115 at Page 803 and in the office of the Clerk of Court for St. Mary Parish, Louisiana, under Registry No. 124894 in Mtg. Book 343 at Page 293 and in the office of the Clerk of Court for Red River Parish, Louisiana, under Registry No. 128419 in Mtg. Book 75 at Page 546 and is filed in the office of the Secretary of State of Missouri under filing number 397,857; and
(g) A supplemental indenture, hereinafter sometimes called the “Fourteenth Supplemental Indenture,” dated as of October 26, 1976, which is recorded in the office of the Recorder of Deeds of the City of St. Louis, Missouri, in Book 108M at Page 131 and in the office of the Recorder of Deeds of St. Louis County, Missouri, in Book 6907 at Page 1970 and in the office of the Recorder of Deeds of Boone County, Missouri, in Book 416 at Page 192 and in the office of the Recorder of Deeds of St. Charles County, Missouri, in Book 745 at Page 40 and in the office of the Recorder of Deeds of Jefferson County, Missouri, in Book 507 at Page 669 and in the office of the Recorder of Deeds of Ste. Genevieve County, Missouri, in Book 241 at Page 279 and in the office of the Recorder of Deeds of St. Francois County,
4
Missouri, in Book 654 at Page 132 and in the office of the Recorder of Deeds of Iron County, Missouri, in Book 248 at Page 795 and in the office of the Recorder of Deeds of Madison County, Missouri, in Book 89 at Pages 694-700 and in the office of the Recorder of Deeds of Butler County, Missouri, in Book 565 at Page 57 and in the office of the Recorder of Deeds of Beckham County, Oklahoma, in Book 315 at Page 146 and in the office of the County Clerk of Wheeler County, Texas, in the Deed Records Vol. 260 at Page 991 and in the office of the Clerk of Court for Sabine Parish, Louisiana, under Registry No. 233001 in Mtg. Book 114 at Page 208 and in the office of the Clerk of Court for DeSoto Parish, Louisiana, under Registry No. 389929 in Mtg. Book 122 at Page 15 and in the office of the Clerk of Court for St. Mary Parish, Louisiana, under Registry No. 129850 in Mtg. Book 360 at Page 593 and in the office of the Clerk of Court for Red River Parish, Louisiana, under Registry No. 131795 in Mtg. Book 79 at Page 21 and is filed in the office of the Secretary of State of Missouri under filing number 479,397 and is filed in the office of the Secretary of State of Missouri pursuant to R.S.Mo. 443.451 under filing number 2590089; and
(h) A supplemental indenture, hereinafter sometimes called the “Fifteenth Supplemental Indenture,” dated as of July 15, 1979, which is recorded in the office of the Recorder of Deeds of the City of St. Louis, Missouri, in Book 202M at Page 1288 and in the office of the Recorder of Deeds of St. Louis County, Missouri, in Book 7181 at Page 23 and in the office of the Recorder of Deeds of Boone County, Missouri, in Book 430 at Page 273 and in the office of the Recorder of Deeds of St. Charles County, Missouri, in Book 846 at Page 880 and in the office of the Recorder of Deeds of Jefferson County, Missouri, in Book 580 at Page 278 and in the office of the Recorder of Deeds of Ste. Genevieve County, Missouri, in Book 285 at Page 93 and in the office of the Recorder of Deeds of St. Francois County, Missouri, in Book 722 at Page 57 and in the office of the Recorder of Deeds of Iron County, Missouri, in Book 262 at Pages 709-770 and in the office of the Recorder of Deeds of Madison County, Missouri, in Book 98 at Pages 720-781 and in the office of the Recorder of Deeds of Butler County, Missouri, in Book 597 at Page 661 and in the office of the County Clerk of Beckham County, Oklahoma, in Misc. Record Book 385 at Page 230 and in the office of the County Clerk of Roger Mills County, Oklahoma, in Book 273 at Pages 54-116 and in the office of the County Clerk of Blaine County, Oklahoma, in Book 325 Misc. Page 1 and in the office of the County Clerk of Wheeler County, Texas, in Deed of Trust Records, Vol. 64 at Page 707 and in the office of the County Clerk of Lipscomb County, Texas, in the Deed of Trust Records, Vol. 196 at Page 607 and in the office of the County Clerk of Roberts County, Texas, in the Deed of Trust Records, Vol. 30 at Page 45 and in the office of the County Clerk of Hemphill County, Texas, in the Deed of Trust Records, Vol. 59 at Page 428 and in the office of the Clerk of the Court for St. Mary Parish, Louisiana, under Registry No. 141319 in Mtg. Book 402 at Page 2 and in the office of the Clerk of the Court for the DeSoto Parish, Louisiana, under Registry No. 417237 in Mtg. Book 136 at Page 524 and in the office of the Clerk of the Court for Sabine Parish, Louisiana, under Registry No. 246026 in Mtg. Book 128 at Page 86 and in the office of the Clerk of the Court for Red River Parish, Louisiana, under Registry No. 141470 in Mtg. Book 87 at Page 619 and in the office of the Clerk of the Court for Terrebonne Parish, Louisiana, under Registry No. 602396 and is filed in the office of the Secretary of State of Missouri under Document Number 667303; and
WHEREAS, there have been heretofore duly executed and delivered two indentures between the Company and Mercantile Bank National Association, to-wit:
5
(a) A supplemental indenture, hereinafter sometimes called the “Sixteenth Supplemental Indenture,” dated as of May 1, 1986, which is recorded in the office of the Recorder of Deeds of the City of St. Louis, Missouri, in Book M-529 at Page 655 and in the office of the Recorder of Deeds of St. Louis County, Missouri, in Book 7902 at Page 1138 and in the office of the Recorder of Deeds of Boone County, Missouri, in Book 573 at Page 2 and in the office of the Recorder of Deeds of St. Charles County, Missouri, in Book 1080 at Page 1577 and in the office of the Recorder of Deeds of Jefferson County, Missouri, in Book 197 at Page 1 and in the office of the Recorder of Deeds of Ste. Genevieve County, Missouri, in Book 407 at Page 137 and in the office of the Recorder of Deeds of St. Francois County, Missouri, in Book 894 at Page 138 and in the office of the Recorder of Deeds of Iron County, Missouri, in Book 293 at Page 797 and in the office of the Recorder of Deeds of Madison County, Missouri, in Book 116 at Page 589 and in the office of the Recorder of Deeds of Butler County, Missouri, in Book 669 at Page 228 and in the office of the County Clerk of Roger Mills County, Oklahoma, in Book 807 at Page 120 and in the office of the County Clerk of Wheeler County, Texas, in Deed of Trust Records, Vol. 91 at Page 191, and in Deed Records, Vol. 348 at Page 69 and in the office of the Secretary of State of Texas under Document Number 131214 and is filed in the office of the Secretary of State of Missouri under Document Number 1322775; and
(b) A supplemental indenture, hereinafter sometimes called the “Seventeenth Supplemental Indenture,” dated as of May 15, 1988, which is recorded in the office of the Recorder of Deeds of the City of St. Louis, Missouri, in Book M-669 at Page 258 and in the office of the Recorder of Deeds of St. Louis County, Missouri, in Book 8315 at Page 902 and in the office of the Recorder of Deeds of Boone County, Missouri, in Book 676 at Page 449 and in the office of the Recorder of Deeds of St. Charles County, Missouri, in Book 1212 at Page 1948 and in the office of the Recorder of Deeds of Jefferson County, Missouri, in Book 396 at Page 1987 and in the office of the Recorder of Deeds of Ste. Genevieve County, Missouri, in Book 459 at Page 289 and in the office of the Recorder of Deeds of St. Francois County, Missouri, in Book 962 at Page 8 and in the office of the Recorder of Deeds of Iron County, Missouri, in Book 303 at Page 527 and in the office of the Recorder of Deeds of Madison County, Missouri, in Book 123 at Page 243 and in the office of the Recorder of Deeds of Butler County, Missouri, in Book 691 at Page 620 and in the office of the County Clerk of Roger Mills County, Oklahoma, in Book 973 at Page 1 and in the office of the County Clerk of Wheeler County, Texas, in Deed of Trust Records, Vol. 91 at Page 234, and in Deed Records, Vol. 369 at Page 386 and in the office of the Secretary of State of Texas under Document Number 86131214 and is filed in the office of the Secretary of State of Missouri under Document Number 1596374 and is filed in the office of the Secretary of State of Missouri pursuant to R.S.Mo. 443.451 under filing number 2590090; and
WHEREAS, there have been heretofore duly executed and delivered five indentures between the Company and Mercantile Bank of St. Louis National Association, to-wit:
(a) A supplemental indenture, hereinafter sometimes called the “Eighteenth Supplemental Indenture,” dated as of November 15, 1989, which is recorded in the office of the Recorder of Deeds of the City of St. Louis, Missouri, in Book 762M at Page 1126 and in the office of the Recorder of Deeds of St. Louis County, Missouri, in Book 8646 at Page 2196 and in the office of the Recorder of Deeds of Boone County, Missouri, in Book 748 at Page 17 and in the office of the Recorder of Deeds of St. Charles County, Missouri, in Book 1294 at Page 631 and in the office of the Recorder of Deeds of Jefferson County, Missouri, in Book 442 at Page 14 and in the office of the Recorder of Deeds of Ste. Genevieve County, Missouri, in Book 498 at Page 13 and in the office of the Recorder of Deeds of St. Francois County, Missouri, in Book 1012 at Page 36 and in the office of the Recorder of Deeds of Iron County, Missouri, in Book 311 at Page 503 and in the office of the Recorder of Deeds of Madison County, Missouri, in Book 127 at Page 682 and in the office of the Recorder of Deeds of Butler County, Missouri, in Book 709 at Page 78 and in the office of the County Clerk of Roger Mills County, Oklahoma, in Book 1094 at Page 263 and in the office of the County Clerk of Wheeler County, Texas, in Deed of Trust Records, Vol.
6
93 at Page 630 and in the office of the Secretary of State of Texas under Document Number 252980 and is filed in the office of the Secretary of State of Missouri under Document Number 1798065 and is filed in the office of the Secretary of State of Missouri pursuant to R.S.Mo. 443.451 under filing number 2590091; and
(b) A supplemental indenture, hereinafter sometimes called the “Nineteenth Supplemental Indenture,” dated as of May 15, 1991, which is recorded in the office of the Recorder of Deeds of the City of St. Louis, Missouri, in Book 848 at Page 716 and in the office of the Recorder of Deeds of St. Louis County, Missouri, in Book 8983 at Page 1095 and in the office of the Recorder of Deeds of Boone County, Missouri, in Book 821 at Page 79 and in the office of the Recorder of Deeds of St. Charles County, Missouri, in Book 1370 at Page 1846 and in the office of the Recorder of Deeds of Jefferson County, Missouri, in Book 483 at Page 1909 and in the office of the Recorder of Deeds of Ste. Genevieve County, Missouri, in Book 541 at Page 82 and in the office of the Recorder of Deeds of St. Francois County, Missouri, in Book 1060 at Page 253 and in the office of the Recorder of Deeds of Iron County, Missouri, in Book 319 at Page 355 and in the office of the Recorder of Deeds of Madison County, Missouri, in Book 132 at Page 44 and in the office of the Recorder of Deeds of Butler County, Missouri, in Book 725 at Page 442 and in the office of the County Clerk of Roger Mills County, Oklahoma, in Book 1213 at Page 105, UCC Filing No. 135, and in the office of the County Clerk of Oklahoma County, Oklahoma, UCC Filing No. 023021, and in the office of the County Clerk of Wheeler County, Texas, in Deed of Trust Records, Vol. 96 at Page 96 and in Deed Records, Book 399 at Page 254, and in the office of the Secretary of State of Texas under Document Number 088153 and is filed in the office of the Secretary of State of Missouri under Document Number 1999268 and is filed in the office of the Secretary of State of Missouri pursuant to R.S.Mo. 443.451 under filing number 2590092; and
(c) A supplemental indenture, hereinafter sometimes called the “Twentieth Supplemental Indenture,” dated as of November 1, 1992, which is recorded in the office of the Recorder of Deeds of the City of St. Louis, Missouri, in Book M945 at Page 1068 and in the office of the Recorder of Deeds of St. Louis County, Missouri, in Book 9494 at Page 423 and in the office of the Recorder of Deeds of Boone County, Missouri, in Book 937 at Page 144 and in the office of the Recorder of Deeds of St. Charles County, Missouri, in Book 1491 at Page 1289 and in the office of the Recorder of Deeds of Jefferson County, Missouri, in Book 543 at Page 2135 and in the office of the Recorder of Deeds of Ste. Genevieve County, Missouri, in Book 594 at Page 10 and in the office of the Recorder of Deeds of St. Francois County, Missouri, in Book 1121 at Page 458 and in the office of the Recorder of Deeds of Iron County, Missouri, in Book 326 at Page 888 and in the office of the Recorder of Deeds of Madison County, Missouri, in Book 137 at Page 166 and in the office of the Recorder of Deeds of Butler County, Missouri, in Book 747 at Page 72 and in the office of the Recorder of Deeds of Franklin County, Missouri, in Book 712 at Page 889 and in the office of the County Clerk of Roger Mills County, Oklahoma, in Book 1303 at Page 39, UCC Filing No. 296, and in the office of the County Clerk of Oklahoma County, Oklahoma, UCC Filing No. 056514, and in the office of the County Clerk of Wheeler County, Texas, in Deed of Trust Records, Book 98 at Page 88 and in Deed Records, Book 409 at Page 589, and in the office of the Secretary of State of Texas under Document Number 212435 and is filed in the office of the Secretary of State of Missouri under Document Number 2188520 and is filed in the office of the Secretary of State of Missouri pursuant to R.S.Mo.
7
443.451 under filing number 2590093; and (d) A supplemental indenture, hereinafter sometimes called the “Twenty-First Supplemental Indenture,” dated as of May 1, 1993, which is recorded in the office of the Recorder of Deeds of the City of St. Louis, Missouri, in Book M982 at Page 0356 and in the office of the Recorder of Deeds of St. Louis County, Missouri, in Book 9701 at Page 797 and in the office of the Recorder of Deeds of Boone County, Missouri, in Book 979 at Page 722 and in the office of the Recorder of Deeds of St. Charles County, Missouri, in Book 1542 at Page 1449 and in the office of the Recorder of Deeds of Jefferson County, Missouri, in Book 567 at Page 2217 and in the office of the Recorder of Deeds of Ste. Genevieve County, Missouri, in Book 610 at Page 136 and in the office of the Recorder of Deeds of St. Francois County, Missouri, in Book 1142 at Page 84 and in the office of the Recorder of Deeds of Iron County, Missouri, in Book 328 at Page 508 and in the office of the Recorder of Deeds of Madison County, Missouri, in Book 139 at Page 361 and in the office of the Recorder of Deeds of Butler County, Missouri, in Book 753 at Page 328 and in the office of the Recorder of Deeds of Franklin County, Missouri, in Book 743 at Page 638 and in the office of the County Clerk of Roger Mills County, Oklahoma, in Book 1337 at Page 10, UCC Filing No. 109, and in the office of the County Clerk of Oklahoma County, Oklahoma, UCC Filing No. 023874 and in the office of the County Clerk of Wheeler County, Texas, in Deed of Trust Records, Book 98 at Page 804 and in Deed Records, Book 413 at Page 387, and in the office of the Secretary of State of Texas under Document No. 086970 and is filed in the office of the Secretary of State of Missouri under Document No. 2259648 and is filed in the office of the Secretary of State of Missouri pursuant to R.S.Mo. 443.451 under filing number 2590094; and
(e) A supplemental indenture, hereinafter sometimes called the “Twenty-Second Supplemental Indenture,” dated as of November 15, 1995, which is filed in the office of the Secretary of State of Missouri pursuant to R.S.Mo. 443.451 under filing number 2604323; and
WHEREAS, there have been heretofore duly executed and delivered three indentures between the Company and State Street Bank and Trust Company of Missouri, N.A., to-wit:
(a) A supplemental indenture, hereinafter sometimes called the “Twenty-Third Supplemental Indenture,” dated as of October 15, 1997, which is filed in the office of the Secretary of State of Missouri pursuant to R.S.Mo. 443.451 under filing number 2841222; and
(b) A supplemental indenture, hereinafter sometimes called the “Twenty-Fourth Supplemental Indenture,” dated as of June 1, 1999, which is filed in the office of the Secretary of State of Missouri pursuant to R.S.Mo. 443.451 under filing number 3039096; and
(c) A supplemental indenture, hereinafter sometimes called the “Twenty-Fifth Supplemental Indenture,” dated as of September 15, 2000, which is filed in the office of the Secretary of the State of Missouri pursuant to R.S.Mo. 443.451 under filing number 4088953; and
WHEREAS, there have been heretofore duly executed and delivered twelve supplemental indentures between the Company and UMB Bank & Trust, N.A., to-wit:
(a) A supplemental indenture, hereinafter sometimes called the “Twenty-Sixth Supplemental Indenture,” dated as of June 15, 2001, which is filed in the office of the Secretary of State of the State of Missouri pursuant to R.S.Mo. 443.451 under filing number 4178825; and
(b) A supplemental indenture, hereinafter sometimes called the “Twenty-Seventh Supplemental Indenture,” dated as of April 15, 2004, which is filed in the office of the Secretary of State of the State of Missouri pursuant to R.S.Mo. 443.451 under filing number 20040045002J; and (c) A supplemental indenture, hereinafter sometimes called the “Twenty-Eighth Supplemental Indenture,” dated as of April 15, 2004, which is filed in the office of the Secretary of State of the State of Missouri pursuant to R.S.Mo.
8
443.451 under filing number 20040045001H; and
(d) A supplemental indenture, hereinafter sometimes called the “Twenty-Ninth Supplemental Indenture,” dated as of June 1, 2006, which is filed in the office of the Secretary of State of the State of Missouri pursuant to R.S.Mo. 443.451 under filing number 20060063448E; and
(e) A supplemental indenture, hereafter sometimes called the “Thirtieth Supplemental Indenture,” dated as of September 15, 2008, which is filed in the office of the Secretary of State of the State of Missouri pursuant to R.S.Mo. 443.451 under filing number 20080102574M; and
(f) A supplemental indenture, hereafter sometimes called the “Thirty-First Supplemental Indenture,” dated as of March 15, 2013, which is filed in the office of the Secretary of State of the State of Missouri pursuant to R.S.Mo. 443.451 under filing number 1303141991416; and
(g) A supplemental indenture, hereafter sometimes called the “Thirty-Second Supplemental Indenture,” dated as of August 13, 2013, which is filed in the office of the Secretary of State of the State of Missouri pursuant to R.S.Mo. 443.451 under filing number 1308132671740; and
(h) A supplemental indenture, hereafter sometimes called the “Thirty-Third Supplemental Indenture,” dated as of September 15, 2017, which is filed in the office of the Secretary of State of the State of Missouri pursuant to R.S.Mo. 443.451 under filing number 1709159358989; and
(i) A supplemental indenture, hereafter sometimes called the “Thirty-Fourth Supplemental Indenture,” dated as of November 12, 2019, which is filed in the office of the Secretary of State of the State of Missouri pursuant to R.S.Mo. 443.451 under financing statement number 1911123808769; and
(j) A supplemental indenture, hereafter sometimes called the “Thirty-Fifth Supplemental Indenture,” dated as of May 20, 2021, which is filed in the office of the Secretary of State of the State of Missouri pursuant to R S Mo. 443.451 under financing statement number 202105190002863383; and
(k) A supplemental indenture, hereafter sometimes called the “Thirty-Sixth Supplemental Indenture,” dated as of December 7, 2021, which is filed in the office of the Secretary of State of the State of Missouri pursuant to R S Mo. 443.451 under financing statement number 20211206001526230; and
(l) A supplemental indenture, hereafter sometimes called the “Thirty-Seventh Supplemental Indenture,” dated as of May 2, 2022, which is filed in the office of the Secretary of State of the State of Missouri pursuant to R.S.Mo. 443.451 under financing statement number 20220502002248727; and
WHEREAS, there has been heretofore duly executed and delivered one supplemental indenture between the Company and Regions Bank, to-wit:
(a) A supplemental indenture, hereafter sometimes called the “Thirty-Eighth Supplemental Indenture,” dated as of February 13, 2023, which is filed in the office of the Secretary of State of the State of Missouri pursuant to R.S.Mo. 443.451 under financing statement number 20230210001163133.
9
WHEREAS, the Company is the same corporation as is designated in the Original and First and Second Supplemental Indentures as The Laclede Gas Light Company, which was the Company’s corporate name, and the same corporation as is designated in the Third, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth, Eleventh, Twelfth, Thirteenth, Fourteenth, Fifteenth, Sixteenth, Seventeenth, Eighteenth, Nineteenth, Twentieth, Twenty-First, Twenty-Second, Twenty-Third, Twenty-Fourth, Twenty-Fifth, Twenty-Sixth, Twenty-Seventh, Twenty-Eighth, Twenty-Ninth, Thirtieth, Thirty-First, Thirty-Second Supplemental Indentures as the Laclede Gas Company, which was the Company’s corporate name, but before the date of the Thirty-Third Supplemental Indenture, the Company’s corporate name was duly changed to, and now is, Spire Missouri Inc.; and
WHEREAS, Regions Bank, the party of the second part to this Thirty-Ninth Supplemental Indenture, is the present Trustee under the Original Indenture, being the successor to UMB Bank & Trust, N.A., which was the successor to State Street Bank and Trust Company of Missouri, N. A., which was the successor to Mercantile Bank of St. Louis National Association (from which State Street Bank and Trust Company of Missouri, N.A., acquired certain corporate trust assets), which was the successor to Mercantile Bank National Association, which was the successor to Mercantile Trust Company National Association, which was the successor to Mercantile Trust Company (which in turn was the corporation resulting from a consolidation on August 31, 1951, to which Mississippi Valley Trust Company, the original Trustee, was a party); and
WHEREAS, there are now outstanding under the Twenty-Fourth Supplemental Indenture, First Mortgage Bonds of the 7.00% Series due June 1, 2029; under the Twenty-Fifth Supplemental Indenture, First Mortgage Bonds of the 7.90% Series due September 15, 2030; under the Twenty-Eighth Supplemental Indenture, First Mortgage Bonds of the 6.00% Series due May 1, 2034; under the Twenty-Ninth Supplemental Indenture, First Mortgage Bonds of the 6.15% Series due June 1, 2036; under the Thirty-First Supplemental Indenture, First Mortgage Bonds of the 3.40% Series due March 15, 2028; under the Thirty-Second Supplemental Indenture, First Mortgage Bonds of the 4.625% Series due August 15, 2043; under the Thirty-Third Supplemental Indenture, First Mortgage Bonds of the 3.68% Series due September 15, 2032, First Mortgage Bonds of the 4.23% Series due September 15, 2047 and First Mortgage Bonds of the 4.38% Series due September 15, 2057; under the Thirty-Fourth Supplemental Indenture, First Mortgage Bonds of the 2.840% Series due November 15, 2029; under the Thirty-Fifth Supplement Indenture, First Mortgage Bonds of the 3.300% Series due June 1, 2051; under the Thirty-Sixth Supplemental Indenture, First Mortgage Bonds, Floating Rate Series due December 2, 2024; and under the Thirty-Eighth Supplemental Indenture, First Mortgage Bonds of the 4.800% Series due February 15, 2033; but all bonds of the twenty-five series provided for respectively by the First, Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth, Eleventh, Twelfth, Thirteenth, Fifteenth, Sixteenth, Seventeenth, Eighteenth, Nineteenth, Twentieth, Twenty-First, Twenty-Second, Twenty-Third, Twenty-Sixth, Twenty-Seventh and Thirtieth Supplemental Indentures, the First Mortgage Bonds of the 3.0% Series issued under the Thirty-First Supplemental Indenture, the First Mortgage Bonds of the 2.000% Series issued under the Thirty-Second Supplemental Indenture, the First Mortgage Bonds of the 3.400% Series issued under the Thirty-Second Supplemental Indenture, and the First Mortgage Bonds of the 3 1/2% Series issued under the Original Indenture have ceased to be outstanding; and
WHEREAS, the Company desires to create a new series of bonds under the Mortgage to be designated as “First Mortgage Bonds, 5.150% Series due August 15, 2034” (hereinafter sometimes referred to as the “2034 Series”), for an aggregate principal amount of $320,000,000, to be issued as fully registered bonds without coupons, the definitive bonds (certain of the provisions of which may be printed on the reverse side thereof) and the Trustee’s certificate of authentication thereof to be substantially in the following forms, respectively:
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(FORM OF FULLY REGISTERED BOND OF 2034 SERIES)
UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (“DTC”), 55 WATER STREET, NEW YORK, NEW YORK, TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND SUCH SECURITY ISSUED IS REGISTERED IN THE NAME OF CEDE & CO., OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC, ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL, SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
UNLESS IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN DEFINITIVE REGISTERED FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY DTC TO A NOMINEE OF DTC OR BY A NOMINEE OF DTC TO DTC OR ANOTHER NOMINEE OF DTC OR BY DTC OR ANY SUCH NOMINEE TO A SUCCESSOR OF DTC OR A NOMINEE OF SUCH SUCCESSOR.
SPIRE MISSOURI INC.
FIRST MORTGAGE BOND,
5.150% Series due August 15, 2034
No.____________ | $_________________ |
SPIRE MISSOURI INC., a corporation of the State of Missouri (hereinafter called “the Company”), for value received hereby promises to pay to or registered assigns, at the office or agency of the Company in the Borough of Manhattan, The City of New York, or at the option of the registered owner hereof at the office or agency of the Company in the City of St. Louis, State of Missouri, _____________________ Dollars on the fifteenth day of August, 2034 (or upon earlier redemption), by check or draft (or as otherwise provided herein) in such coin or currency of the United States of America as at the time of payment shall be legal tender for public and private debts, and to pay to the registered owner hereof by check or draft (or as otherwise provided herein) interest thereon from and including August 13, 2024 or from the fifteenth day of February or August next preceding the date of this bond to which date interest has been paid or duly provided for (or, if this bond is dated any date after the record date for any interest payment date and on or before such interest payment date, then from such interest payment date), at the rate of 5.150% per annum, in like coin or currency at either of said offices or agencies at the option of the registered owner hereof, on February 15 and August 15 in each year, beginning on February 15, 2025, until the Company’s obligation with respect to the payment of such principal shall have been discharged. If any interest payment date or any date of maturity or redemption of principal of this bond falls on a day that is not a Business Day (as defined below), principal and/or interest payable on such date will be paid on the succeeding Business Day with the same force and effect as if it were paid on the date such payment was due, and no interest will accrue on the amount so payable for the period from and after such date to such succeeding Business Day. “Business Day” means any day other than a Saturday, Sunday, or other day on which commercial banks are authorized or required by law, regulation, or executive order to close in the Borough of Manhattan, The City of New York, or in the City of St. Louis, State of Missouri or on which the corporate trust office of the Trustee is closed for business. The interest so payable on any February 15 and August 15 will, subject to certain exceptions provided in the Mortgage hereinafter mentioned, be paid to the person in whose name this bond is registered at the close of business on the record date for the applicable interest payment date, which will be the close of business on the fifteenth (15th) calendar day next preceding such interest payment date (whether or not a Business Day).
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Notwithstanding the foregoing, so long as the holder of this bond is The Depository Trust Company (“DTC”) or a nominee thereof, such record date shall be the close of business on the Business Day next preceding such interest payment date and otherwise such payments of principal and interest will be made in accordance with the Blanket Issuer Letter of Representations dated May 10, 2021 between DTC and the Company (or such successor arrangement thereto). If a registered owner of an aggregate principal amount in excess of $100,000 of the bonds so requests, payments of principal and interest to that registered owner shall be made by electronic transfer to an account at a commercial bank or savings institution located in the continental United States designated in writing by such registered owner. Any such request must be made in writing to the Company and Regions Bank (hereinafter sometimes referred to as the “Trustee”) at least 10 days in advance of such payment and must specify the name and address of the receiving bank, its ABA routing number, and the account name and number to receive the electronic transfer.
This bond is one of an issue of bonds of the Company, issuable in series, and is one of a series known as its First Mortgage Bonds, 5.150% Series due August 15, 2034 (hereinafter referred to as the “2034 Series”), all bonds of all series issued and to be issued under and equally secured (except in so far as any sinking or other fund established in accordance with the provisions of the Mortgage hereinafter mentioned may afford additional security for the bonds of any particular series) by a Mortgage and Deed of Trust (hereinafter referred to as the “Original Indenture”) dated as of February 1, 1945, executed by the Company to Mississippi Valley Trust Company, which was succeeded through consolidation by Mercantile Trust Company, which was succeeded by Mercantile Trust Company National Association, which was succeeded by Mercantile Bank National Association, which was succeeded by Mercantile Bank of St. Louis National Association, which was succeeded by State Street Bank and Trust Company of Missouri, N.A., which was succeeded by UMB Bank & Trust, N.A., which in turn was succeeded by Regions Bank, as Trustee, and indentures supplemental thereto, including the Thirty-Ninth Supplemental Indenture thereto dated as of August 13, 2024 (hereinafter referred to as the “Thirty-Ninth Supplemental Indenture”), said Mortgage and Deed of Trust as supplemented being herein called the “Mortgage,” to which reference is made for a description of the property mortgaged and pledged, the nature and extent of the security, the rights of the owners of the bonds in respect thereof, the duties and immunities of the Trustee, and the terms and conditions upon which the bonds are secured. Subject to the provisions of the next paragraph, with the consent of the Company and to the extent permitted by and as provided in the Mortgage, the rights and obligations of the Company and/or of the owners of the bonds and/or coupons and/or the terms and provisions of the Mortgage and/or of any instruments supplemental thereto may be modified or altered by the affirmative vote of the owners of at least sixty-six and two-thirds percent (66 2/3%) in principal amount of the bonds affected by such modification or alteration (including the bonds of the 2034 Series, if so affected), then outstanding under the Mortgage (excluding bonds disqualified from voting by reason of the Company’s interest therein as provided in the Mortgage); provided that no such modification or alteration shall permit the extension of the maturity of the principal of this bond or the reduction in the rate of interest hereon or any other modification in the terms of payment of such principal or interest, or the creation of a lien on the mortgaged and pledged property ranking prior to or on a parity with the lien of the Mortgage or the deprivation of the owner hereof of a lien upon such property without the consent of the owner hereof, except that the owners of not less than seventy-five percent (75%) in principal amount of the bonds at any time outstanding under the Mortgage (including a like percent of the principal amount of the bonds of the 2034 Series, if any interest payment on bonds of the 2034 Series is to be affected) may consent on behalf of the owners of all bonds at any time outstanding to the postponement of any interest payment for a period not exceeding three years from its due date.
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Each holder of this bond and every other bond of the 2034 Series, by its acquisition of an interest herein or therein, irrevocably (1) consents to the amendments of the Mortgage set forth in Section 9.1 of Article IX of the Thirty-Second Supplemental Indenture without any other or further action by any holder of such bonds, including without limitation to the amendment to the Mortgage to change the vote required for modifications and alterations of the rights and obligations of the Company and/or of the owners of the bonds and/or coupons and/or the terms and provisions of the Mortgage and/or of any instruments supplemental thereto referenced in the last sentence of the preceding paragraph from the affirmative vote of the owners of at least sixty-six and two-thirds percent (66 2/3%) in principal amount of the bonds affected by such modification or alteration to the affirmative vote of the owners of at least a majority in principal amount of the bonds affected by such modification or alteration; and (2) designates the Company, and its successors, as its proxy with irrevocable instructions to vote and deliver written consents on its behalf in favor of such amendments at any bondholder meeting, in any consent solicitation in lieu of any bondholder meeting or otherwise.
Similarly, each holder of this bond and every other bond of the 2034 Series, by its acquisition of an interest herein or therein, irrevocably (1) consents to the amendments of the Mortgage set forth in Section 5.1 of Article V of the Thirty-Ninth Supplemental Indenture without any other or further action by any holder of such bonds, including without limitation to the amendment to the Mortgage regarding, among other things, various rights and duties of the Trustee, and (2) designates the Company, and its successors, as its proxy with irrevocable instructions to vote and deliver written consents on its behalf in favor of such amendments at any bondholder meeting, in any consent solicitation in lieu of any bondholder meeting or otherwise.
The bonds of the 2034 Series are redeemable, in whole or in part, upon the notice referred to below, and otherwise subject to the provisions of the Mortgage, prior to maturity pursuant to: (i) paragraph (B) of Section 13.06 of the Original Indenture (having reference to the taking of all the mortgaged property by eminent domain and certain comparable contingencies) at 100% of the principal amount thereof, together with accrued interest thereon to the date fixed for redemption; and (ii) Section 3.2 of the Thirty-Ninth Supplemental Indenture, (A) prior to May 15, 2034 (the “Par Call Date”), at any time and from time to time, at a redemption price (expressed as a percentage of principal amount and rounded to three decimal places) equal to the greater of (1)(a) the sum of the present values of the remaining scheduled payments of principal and interest on the bonds of the 2034 Series being redeemed discounted to the redemption date (assuming the bonds of the 2034 Series being redeemed matured on the Par Call Date) on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate (as defined in the Thirty-Ninth Supplemental Indenture) plus 20 basis points, less (b) interest accrued to the redemption date and (2) 100% of the principal amount of the bonds of the 2034 Series to be redeemed, plus, in either case, accrued and unpaid interest thereon to, but excluding, the redemption date, and (B) on or after the Par Call Date, at any time and from time to time, at 100% of the principal amount of the bonds of the 2034 Series to be redeemed on the redemption date, plus accrued and unpaid interest thereon to, but excluding, the redemption date. Notwithstanding the foregoing, (1) interest payable with respect to an interest payment date on any bond of the 2034 Series to be redeemed that falls on or before the redemption date therefor shall be made to the holder thereof on the record date related to such interest payment date, and (2) if any redemption date falls on a day that is not a Business Day, principal and/or interest and premium, if any, payable on such date will be paid on the next succeeding Business Day with the same force and effect as if it were paid on the redemption date and no interest will accrue on the amount so payable for the period from and after the redemption date to the next succeeding Business Day. Except as set forth above, the bonds of the 2034 Series are not redeemable prior to August 15, 2034.
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The notice of redemption of bonds of the 2034 Series shall be given by mailing a copy thereof to each registered owner, directed to his registered address not less than twenty (20) nor more than sixty (60) days prior to the date fixed for redemption, all as provided in, and subject to the applicable provisions of, the Mortgage. The Company shall notify the Trustee at least sixty (60) days prior to giving notice of redemption (or such shorter period as is satisfactory to the Trustee) of the aggregate principal amount of bonds of the 2034 Series to be redeemed and the redemption date.
The principal hereof and the interest accrued hereon may be declared or may become due on the conditions, in the manner, and at the time set forth in the Mortgage, upon the occurrence of a completed default as in the Mortgage provided.
At the option of the registered owner, any bonds of the 2034 Series, upon surrender thereof at the office or agency of the Company in the Borough of Manhattan, The City of New York, or in the City of St. Louis, State of Missouri, together with a written instrument of transfer in form approved by the Company duly executed by the registered owner or his duly authorized attorney, shall, subject to the provisions of Section 2.05 of the Original Indenture, be exchangeable for a like aggregate amount of fully registered bonds of the same series of other authorized denominations.
This bond is transferable as prescribed in the Mortgage by the registered owner hereof in person, or by his duly authorized attorney, at the office or agency of the Company in the Borough of Manhattan, The City of New York, or in the City of St. Louis, upon surrender and cancellation of this bond and upon presentation of a written instrument of transfer, duly executed, with signature guaranteed by a signature guarantor that is a participant in a nationally recognized signature guaranty program, and upon payment, if the Company shall require it, of the transfer charges prescribed in the Mortgage, and thereupon, a new fully registered bond of the same series for a like principal amount will be issued to the transferee in exchange herefor as provided in the Mortgage. The Company and the Trustee may deem and treat the person in whose name this bond is registered as the absolute owner hereof for the purpose of receiving payment and for all other purposes.
No recourse shall be had for the payment of the principal of or of interest on this bond against any incorporator or any past, present or future subscriber to the capital stock, stockholder, officer or director of the Company or of any predecessor or successor corporation, as such, either directly or through the Company or any predecessor or successor corporation, under any rule of law, statute or constitution or by the enforcement of any assessment or otherwise, all such liability of incorporators, subscribers, stockholders, officers and directors, as such, being released by the owner hereof by the acceptance of this bond and being likewise waived and released by the terms of the Mortgage.
This bond shall not become obligatory until Regions Bank, the Trustee under the Mortgage, or its successor thereunder, shall have signed the form of certificate endorsed hereon.
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IN WITNESS WHEREOF, SPIRE MISSOURI INC. has caused this instrument to be signed in its name by its President or one of its Vice-Presidents, by his or her signature or a facsimile thereof, and a facsimile of its corporate seal to be imprinted hereon and attested by its Secretary or one of its Assistant Secretaries, by his or her signature or a facsimile thereof.
Dated | SPIRE MISSOURI INC. | |||||
By |
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President |
ATTEST: |
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Secretary |
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(FORM OF TRUSTEE’S CERTIFICATE)
This bond is one of the bonds, of the Series herein designated, provided for in the within-mentioned Mortgage.
REGIONS BANK | ||
Trustee | ||
By |
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Authorized Signatory | ||
Date: |
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and
WHEREAS, all conditions and requirements necessary to make this Thirty-Ninth Supplemental Indenture a valid, binding and legal instrument have been done, performed and fulfilled, and the execution and delivery hereof have been in all respects duly authorized;
NOW, THEREFORE, THIS THIRTY-NINTH SUPPLEMENTAL INDENTURE WITNESSETH: That Spire Missouri Inc., in consideration of the premises and of one dollar to it duly paid by the Trustee at or before the ensealing and delivery of these presents, the receipt whereof is hereby acknowledged, and in order to secure the payment both of the principal of and interest and premium, if any, on the bonds from time to time issued under the Mortgage, according to their tenor and effect and the performance of all the provisions of the Mortgage and of said bonds, hath granted, bargained and sold, released, conveyed, assigned, transferred, mortgaged, pledged, set over and confirmed, and by these presents doth grant, bargain and sell, release, convey, assign, transfer, mortgage, pledge, set over and confirm unto Regions Bank, as Trustee, and to its successor or successors in said trust and its and their assigns forever, all the following described properties of the Company, that is to say:
All several parcels of real estate more particularly described in the Original Indenture as Parcels Nos.
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1 to 14 inclusive, and in the First Supplemental Indenture as Parcels (a) to (i) inclusive, and the Third Supplemental Indenture as Parcels II to VI inclusive, and in the Fourth Supplemental Indenture in paragraphs II to VII inclusive, beginning on page 13 and extending to page 15 thereof, and in the Fifth Supplemental Indenture in paragraphs II to X inclusive, beginning on page 14 and extending to page 17 thereof, and in the Sixth Supplemental Indenture in paragraphs II to XI inclusive, beginning on page 14 and extending to page 21 thereof, and in the Seventh Supplemental Indenture in paragraphs II to XIII inclusive, beginning on page 16 and extending to page 24 thereof, and in the Eighth Supplemental Indenture in paragraphs II to VIII inclusive, beginning on page 16 and extending to page 19 thereof, and in the Ninth Supplemental Indenture in paragraphs II and III, beginning on page 11 and extending to page 12 thereof, and in the Tenth Supplemental Indenture in paragraphs II to VI inclusive, beginning on page 11 and extending to page 13 thereof, and in the Eleventh Supplemental Indenture in paragraphs II and III, beginning on page 13 and extending to page 16 thereof, and in the Twelfth Supplemental Indenture on page 15 thereof, and in the Thirteenth Supplemental Indenture beginning on page 16 and extending to page 24 thereof, and in the Fifteenth Supplemental Indenture beginning on page 15 and extending to page 39 thereof, and in the Sixteenth Supplemental Indenture beginning on page 16 and extending to page 17 thereof, and in the Seventeenth Supplemental Indenture beginning on page 17 and extending to page 19 thereof, and in the Eighteenth Supplemental Indenture beginning on page 15 and extending to page 16 thereof, and in the Nineteenth Supplemental Indenture beginning on page 16 and extending to page 17 thereof, and in the Twentieth Supplemental Indenture beginning on page 17 and extending to page 19 thereof, and in the Twenty-First Supplemental Indenture beginning on page 17 and extending to page 19 thereof, and in the Twenty-Second Supplemental Indenture beginning on page 10 and extending to page 11 thereof, and in the Twenty-Third Supplemental Indenture beginning on page 10 and extending to page 11 thereof, and in the Twenty-Fourth Supplemental Indenture beginning on page 10 and extending to page 11 thereof, and in the Twenty-Fifth Supplemental Indenture beginning on page 13 and extending to page 14 thereof, and in the Twenty-Sixth Supplemental Indenture beginning on page 13 and extending to page 15 thereof; and in the Twenty-Seventh Supplemental Indenture beginning on page 14 and extending to page 15 thereof, and in the Twenty-Eighth Supplemental Indenture beginning on page 14 and extending to page 15 thereof, and in the Twenty-Ninth Supplemental Indenture beginning on page 14 and extending to page 15 thereof, and in the Thirtieth Supplemental Indenture beginning on page 14 and extending to page 16 thereof, and in the Thirty-First Supplemental Indenture beginning on page 19 and extending to page 21 thereof, and in the Thirty-Second Supplemental Indenture beginning on page 26 and extending to page 28 thereof, and in the Thirty-Third Supplemental Indenture beginning on page 24 and extending to page 26 thereof, and in the Thirty-Fourth Supplemental Indenture beginning on page 16 and extending to page 18 thereof; except any parcel or part of such real estate heretofore released from the lien of the Mortgage, or to which the Company and the Trustee have heretofore disclaimed any right, title, or interest.
TOGETHER WITH all other property, whether real, personal or mixed (except any hereinafter expressly excepted), and whether now owned or hereafter acquired by the Company and wheresoever situated, including (without in anywise limiting or impairing by the enumeration of the same the scope and intent of the foregoing or of any general description contained in this Thirty-Ninth Supplemental Indenture) all real estate, lands, leases, leaseholds (except the last day of the term of any lease or leasehold), easements, licenses, permits, franchises, privileges, rights of way and other rights in or relating to real estate or the occupancy of lands, all rights of way and roads, all gas plants, gas containers, buildings and other structures and all offices, buildings and the contents thereof; all machinery, engines, boilers, gas machines, purifiers, scrubbers, retorts, tanks, pumps, regulators, meters, gas and mechanical appliances, conduits, gas or other pipes, gas mains and pipes, service pipes, fittings, valves and connections, tools, implements, apparatus, supplies, furniture and chattels; all federal, state, municipal and other franchises, privileges and permits; all lines for the distribution of gas for any purpose including pipes, conduits and all apparatus for use in connection therewith; and (except as hereinafter expressly excepted) all the right, title and interest of the Company in and to all other property of any kind or nature appertaining to and/or used and/or occupied and/or enjoyed in connection with any property hereinabove described or referred to;
AND TOGETHER WITH all and singular the tenements, hereditaments and appurtenances belonging or in anywise appertaining to the aforesaid property or any part thereof, with the reversion and reversions, remainder and remainders, and (subject to the provisions of Section 13.01 of the Original Indenture) the tolls, rents, revenues, issues, earnings, income, product and profits thereof, and all the estate, right, title and interest and claim whatsoever, at law as well as in equity, which the Company now has or may hereafter acquire in and to the aforesaid property and franchises and every part and parcel thereof; Provided that all property of the kinds which by the terms of the Original Indenture are expressly excepted from the lien and operation thereof is expressly excepted herefrom with the same effect and to the same extent as in the Original Indenture provided with respect to such property so expressly excepted;
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TO HAVE AND TO HOLD all such properties, real, personal, and mixed, granted, bargained, sold, released, conveyed, assigned, transferred, mortgaged, pledged, set over or confirmed by the Company as aforesaid, or intended so to be, unto the Trustee and its successors and assigns forever;
Subject, however, as to all property embraced herein to all of the restrictions, exceptions and reservations of easements, rights of way or otherwise, contained in any and all deeds and/or other conveyances under or through which the Company acquired or shall acquire and/or claims or shall claim title thereto, and to the restrictions, exceptions, reservations and provisions in the Mortgage specifically set forth; and
Subject further, with respect to the premises, property, franchises and rights owned by the Company at the date of execution hereof, to excepted encumbrances as defined in Section 1.06 of the Original Indenture, and subject, with respect to property acquired after the date of execution of the Original Indenture or hereafter acquired, to all excepted encumbrances, all other defects and limitations of title and to all other encumbrances existing at the time of such acquisition, including any purchase money mortgage or lien upon such property created by the Company at the time of the acquisition of such property.
IN TRUST NEVERTHELESS, upon the terms and trusts in the Original Indenture and this Thirty-Ninth Supplemental Indenture set forth, for the benefit and security of those who shall hold the bonds and coupons issued and to be issued under the Mortgage, or any of them, in accordance with the terms of the Mortgage without preference, priority or distinction as to lien of any of said bonds and coupons over any other thereof by reason of priority in the time of the issue or negotiation thereof or for any other reason whatsoever, subject, however, to the provisions in reference to extended, transferred or pledged coupons and claims for interest in the Original Indenture set forth; it being intended that the lien and security of all of said bonds and coupons of all series issued or to be issued hereunder shall take effect from the execution and delivery of the Mortgage, and that the lien and security of the Mortgage shall take effect from the date of execution and delivery of the Original Indenture as though all of the said bonds of all series were actually authenticated and delivered and issued upon such date.
And the Company, for itself and its successors and assigns, does hereby covenant and agree to and with the Trustee and its successor or successors in such trust, for the benefit of those who shall hold the bonds of the 2034 Series, as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 Terms Defined by Reference. For all purposes of this Thirty-Ninth Supplemental Indenture, except as herein otherwise expressly provided or unless the context otherwise requires, the terms defined in Sections 1.2 to 1.41 hereof shall have the meanings specified in such Sections, and all other terms which are defined in the Original Indenture (including those defined by reference to the Trust Indenture Act of 1939, as amended, or the Securities Act of 1933, as amended) shall have the meanings assigned to them in the Original Indenture.
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SECTION 1.2 Business Day. The term “Business Day” shall mean a day other than a (i) Saturday, (ii) Sunday, or (iii) day on which commercial banks are authorized or required by law, regulation or executive order to close in the City of New York, New York or in the City of St. Louis, State of Missouri. If a payment date is not a Business Day at a place of payment, payment may be made at that place on the next succeeding day that is a Business Day, and no interest shall accrue for the intervening period.
SECTION 1.3 Trustee. The term “the Trustee” shall mean the party of the second part hereto, Regions Bank, and, subject to the provisions of Article XVIII of the Original Indenture, shall also include its successors and assigns.
SECTION 1.4 Original Indenture. The term “Original Indenture” shall mean the indenture of mortgage and deed of trust dated as of February 1, 1945, hereinbefore referred to.
SECTION 1.5 First Supplemental Indenture. The term “First Supplemental Indenture” shall mean the supplemental indenture dated as of December 1, 1946, hereinbefore referred to.
SECTION 1.6 Second Supplemental Indenture. The term “Second Supplemental Indenture” shall mean the supplemental indenture dated as of March 15, 1948, hereinbefore referred to.
SECTION 1.7 Third Supplemental Indenture. The term “Third Supplemental Indenture” shall mean the supplemental indenture dated as of April 1, 1951, hereinbefore referred to.
SECTION 1.8 Fourth Supplemental Indenture. The term “Fourth Supplemental Indenture” shall mean the supplemental indenture dated as of December 1, 1954, hereinbefore referred to.
SECTION 1.9 Fifth Supplemental Indenture. The term “Fifth Supplemental Indenture” shall mean the supplemental indenture dated as of May 1, 1957, hereinbefore referred to.
SECTION 1.10 Sixth Supplemental Indenture. The term “Sixth Supplemental Indenture” shall mean the supplemental indenture dated as of July 1, 1960, hereinbefore referred to.
SECTION 1.11 Seventh Supplemental Indenture. The term “Seventh Supplemental Indenture” shall mean the supplemental indenture dated as of June 1, 1964, hereinbefore referred to.
SECTION 1.12 Eighth Supplemental Indenture. The term “Eighth Supplemental Indenture” shall mean the supplemental indenture dated as of April 15, 1966, hereinbefore referred to.
SECTION 1.13 Ninth Supplemental Indenture. The term “Ninth Supplemental Indenture” shall mean the supplemental indenture dated as of May 1, 1968, hereinbefore referred to.
SECTION 1.14 Tenth Supplemental Indenture. The term “Tenth Supplemental Indenture” shall mean the supplemental indenture dated as of May 15, 1970, hereinbefore referred to.
SECTION 1.15 Eleventh Supplemental Indenture. The term “Eleventh Supplemental Indenture” shall mean the supplemental indenture dated as of March 15, 1972, hereinbefore referred to.
SECTION 1.16 Twelfth Supplemental Indenture. The term “Twelfth Supplemental Indenture” shall mean the supplemental indenture dated as of March 15, 1974, hereinbefore referred to.
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SECTION 1.17 Thirteenth Supplemental Indenture. The term “Thirteenth Supplemental Indenture” shall mean the supplemental indenture dated as of June 1, 1975, hereinbefore referred to.
SECTION 1.18 Fourteenth Supplemental Indenture. The term “Fourteenth Supplemental Indenture” shall mean the supplemental indenture dated as of October 26, 1976, hereinbefore referred to.
SECTION 1.19 Fifteenth Supplemental Indenture. The term “Fifteenth Supplemental Indenture” shall mean the supplemental indenture dated as of July 15, 1979, hereinbefore referred to.
SECTION 1.20 Sixteenth Supplemental Indenture. The term “Sixteenth Supplemental Indenture” shall mean the supplemental indenture dated as of May 1, 1986, hereinbefore referred to.
SECTION 1.21 Seventeenth Supplemental Indenture. The term “Seventeenth Supplemental Indenture” shall mean the supplemental indenture dated as of May 15, 1988, hereinbefore referred to.
SECTION 1.22 Eighteenth Supplemental Indenture. The term “Eighteenth Supplemental Indenture” shall mean the supplemental indenture dated as of November 15, 1989, hereinbefore referred to.
SECTION 1.23 Nineteenth Supplemental Indenture. The term “Nineteenth Supplemental Indenture” shall mean the supplemental indenture dated as of May 15, 1991, hereinbefore referred to.
SECTION 1.24 Twentieth Supplemental Indenture. The term “Twentieth Supplemental Indenture” shall mean the supplemental indenture dated as of November 1, 1992, hereinbefore referred to.
SECTION 1.25 Twenty-First Supplemental Indenture. The term “Twenty-First Supplemental Indenture” shall mean the supplemental indenture dated as of May 1, 1993, hereinbefore referred to.
SECTION 1.26 Twenty-Second Supplemental Indenture. The term “Twenty-Second Supplemental Indenture” shall mean the supplemental indenture dated as of November 15, 1995, hereinbefore referred to.
SECTION 1.27 Twenty-Third Supplemental Indenture. The term “Twenty-Third Supplemental Indenture” shall mean the supplemental indenture dated as of October 15, 1997, hereinbefore referred to.
SECTION 1.28 Twenty-Fourth Supplemental Indenture. The term “Twenty-Fourth Supplemental Indenture” shall mean the supplemental indenture dated as of June 1, 1999 hereinbefore referred to.
SECTION 1.29 Twenty-Fifth Supplemental Indenture. The term “Twenty-Fifth Supplemental Indenture” shall mean the supplemental indenture dated as of September 15, 2000 hereinbefore referred to.
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SECTION 1.30 Twenty-Sixth Supplemental Indenture. The term “Twenty-Sixth Supplemental Indenture” shall mean the supplemental indenture dated as of June 15, 2001 hereinbefore referred to.
SECTION 1.31 Twenty-Seventh Supplemental Indenture. The term “Twenty-Seventh Supplemental Indenture” shall mean the supplemental indenture dated as of April 15, 2004 hereinbefore referred to.
SECTION 1.32 Twenty-Eighth Supplemental Indenture. The term “Twenty-Eighth Supplemental Indenture” shall mean the supplemental indenture dated as of April 15, 2004 hereinbefore referred to.
SECTION 1.33 Twenty-Ninth Supplemental Indenture. The term “Twenty-Ninth Supplemental Indenture” shall mean the supplemental indenture dated as of June 1, 2006 hereinbefore referred to.
SECTION 1.34 Thirtieth Supplemental Indenture. The term “Thirtieth Supplemental Indenture” shall mean the supplemental indenture dated as of September 15, 2008 hereinbefore referred to.
SECTION 1.35 Thirty-First Supplemental Indenture. The term “Thirty-First Supplemental Indenture” shall mean the supplemental indenture dated as of March 15, 2013 hereinbefore referred to.
SECTION 1.36 Thirty-Second Supplemental Indenture. The term “Thirty-Second Supplemental Indenture” shall mean the supplemental indenture dated as of August 13, 2013 hereinbefore referred to.
SECTION 1.37 Thirty-Third Supplemental Indenture. The term “Thirty-Third Supplemental Indenture” shall mean the supplemental indenture dated as of September 15, 2017 hereinbefore referred to.
SECTION 1.38 Thirty-Fourth Supplemental Indenture. The term “Thirty-Fourth Supplemental Indenture” shall mean the supplemental indenture dated as of November 12, 2019 hereinbefore referred to.
SECTION 1.39 Thirty-Fifth Supplemental Indenture. The term “Thirty-Fifth Supplemental Indenture” shall mean the supplemental indenture dated as of May 20, 2021 hereinbefore referred to.
SECTION 1.40 Thirty-Sixth Supplemental Indenture. The term “Thirty-Sixth Supplemental Indenture” shall mean the supplemental indenture dated as of December 7, 2021 hereinbefore referred to.
SECTION 1.41 Thirty-Seventh Supplemental Indenture. The term “Thirty-Seventh Supplemental Indenture” shall mean the supplemental indenture dated as of May 2, 2022 hereinbefore referred to.
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SECTION 1.42 Thirty-Eighth Supplemental Indenture. The term “Thirty-Eighth Supplemental Indenture” shall mean the supplemental indenture dated as of February 13, 2023 hereinbefore referred to.
SECTION 1.43 Mortgage. The term “Mortgage” shall mean the Original Indenture as supplemented by the First, Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth, Eleventh, Twelfth, Thirteenth, Fourteenth, Fifteenth, Sixteenth, Seventeenth, Eighteenth, Nineteenth, Twentieth, Twenty-First, Twenty-Second, Twenty-Third, Twenty-Fourth, Twenty-Fifth, Twenty-Sixth, Twenty-Seventh, Twenty-Eighth, Twenty-Ninth, Thirtieth, Thirty-First, Thirty-Second, Thirty-Third, Thirty-Fourth, Thirty-Fifth, Thirty-Sixth, Thirty-Seventh and Thirty-Eighth Supplemental Indentures and hereby, or as the same may from time to time hereafter be supplemented, modified, altered or amended by any supplemental indenture entered into pursuant to the provisions of the Original Indenture.
SECTION 1.44 Hereof, Hereunder, etc. The term “hereof,” “hereunder,” “hereto,” “hereby,” “hereinbefore,” and the like, refer to this Thirty-Ninth Supplemental Indenture.
SECTION 1.45 2034 Series. The term “2034 Series” shall mean the 5.150% Series due August 15, 2034 of First Mortgage Bonds created by this Thirty-Ninth Supplemental Indenture as in Section 2.1 hereof provided.
ARTICLE II
CREATION, DESCRIPTION, REGISTRATION, TRANSFER AND
EXCHANGE OF THE 2034 SERIES OF BONDS
SECTION 2.1 Creation and principal amount of the 2034 Series. The Company hereby creates a new series of bonds that may be authenticated and delivered, either before or after the filing or recording hereof, under any applicable provisions of the Original Indenture, and may be issued under the Mortgage, and each of which series shall be designated by the title “First Mortgage Bonds, 5.150% Series due August 15, 2034”. The bonds of the 2034 Series shall initially be executed by the Company and authenticated in the aggregate principal amount of Three Hundred Twenty Million Dollars ($320,000,000), except bonds of such series authenticated and delivered pursuant to Section 2.4 or 2.6 hereof or Section 2.09 or Section 12.04 of the Original Indenture. The 2034 Series may be reopened and additional bonds of the 2034 Series may be issued in excess of the amount initially authenticated and delivered, provided that such additional bonds of the 2034 Series will contain the same terms (including the maturity date and interest rate), except for the public offering price, the issue date and, if applicable, the first interest payment date, as the other bonds of the 2034 Series. Any such additional bonds of the 2034 Series, together with the bonds of the 2034 Series initially authenticated, shall constitute a single series for purposes of the Mortgage.
SECTION 2.2 Date of Bonds. All bonds of the 2034 Series shall be dated as provided in Section 2.03 of the Original Indenture.
SECTION 2.3 Denominations, etc. The bonds of the 2034 Series shall be issuable only as fully registered bonds without coupons, in the denomination of $2,000 and integral multiples of $1,000 in excess thereof, and such bonds, and the Trustee’s certificate of authentication, shall, respectively, be substantially of the tenor and purport in this Thirty-Ninth Supplemental Indenture above recited, and they may have such letters, numbers or other marks of identification, and such legends or endorsements, printed, lithographed or engraved thereon as the Company may deem appropriate and as are not inconsistent with the Mortgage, including any legend or legends permitted pursuant to Section 2.04 of the Original Indenture.
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SECTION 2.4 Exchange of Bonds. At the option of the registered owner, any bonds of the 2034 Series, upon surrender thereof at the office or agency of the Company in the Borough of Manhattan, The City of New York, or in the City of St. Louis, State of Missouri, together with a written instrument of transfer in form approved by the Company duly executed by the registered owner or his duly authorized attorney, shall, subject to the provisions of Section 2.05 of the Original Indenture, be exchangeable for a like aggregate amount of fully registered bonds of the same series of other authorized denominations.
SECTION 2.5 Registration of Bonds. The bonds of the 2034 Series are transferable as prescribed in the Mortgage by the registered owner thereof in person, or by his duly authorized attorney, at the office or agency of the Company in the Borough of Manhattan, The City of New York, or in the City of St. Louis, State of Missouri, upon surrender and cancellation of such bonds and upon presentation of a written instrument of transfer, duly executed, with signature guaranteed by a signature guarantor that is a participant in a nationally recognized signature guaranty program, and upon payment, if the Company shall require it, of the transfer charges prescribed in the Mortgage, and thereupon, new fully registered bonds of the same series for a like principal amount will be issued to the transferee in exchange therefor as provided in the Mortgage.
SECTION 2.6 Temporary Bonds. Until bonds of the 2034 Series in definitive form are ready for delivery, there may be authenticated and delivered and issued, in lieu of any definitive bond or bonds of said series, temporary bonds of said series as provided in Section 2.08 of the Original Indenture. Such temporary bonds shall be substantially in the form of the definitive bonds of the 2018 Series, but with such omissions, insertions and variations as may be appropriate for temporary bonds, and may contain such reference to any provisions of the Mortgage as may be appropriate, all as determined by the Board of Directors.
SECTION 2.7 Payment of Defaulted Interest. The person in whose name any bond of the 2034 Series is registered at the close of business on any record date (as hereinbelow defined) with respect to any interest payment date shall be entitled to receive the interest payable on such interest payment date notwithstanding the cancellation of such bond upon any transfer or exchange thereof subsequent to the record date and prior to such interest payment date, except if and to the extent the Company shall default in the payment of the interest due on such interest payment date, in which case such defaulted interest shall be paid to the person in whose name such bond is registered on the date of payment of such defaulted interest. The record date for the applicable interest payment date shall be the fifteenth (15th) calendar day (whether or not a Business Day) next preceding such interest payment date. Notwithstanding the foregoing, so long as the holder of the bonds of the 2034 Series is The Depository Trust Company or a nominee thereof, such record date shall be the close of business on the Business Day next preceding such interest payment date.
SECTION 2.8 Transfers or Exchanges of Bonds called for redemption. Anything in this Thirty-Ninth Supplemental Indenture to the contrary notwithstanding, the Company shall not be required to make transfers or exchanges of bonds of the 2034 Series for a period of fifteen (15) days next preceding any selection of bonds of the 2034 Series to be redeemed, and the Company shall not be required to make transfers or exchanges of the principal amount of any of such bonds called or selected for redemption except in the case of any bond of the 2034 Series to be redeemed in part, the portion thereof not to be so redeemed.
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ARTICLE III
REDEMPTION OF BONDS OF THE 2034 SERIES
SECTION 3.1 Circumstances in Which Redeemable. Bonds of the 2034 Series shall be redeemable, in whole or in part, at 100% of the principal amount thereof, together with accrued interest thereon to the date fixed for redemption at any time before maturity pursuant to the provisions of paragraph (B) of Section 13.06 of the Original Indenture.
SECTION 3.2 Additional Circumstances in Which Redeemable. Bonds of the 2034 Series shall also be redeemable, at the option of the Company, in whole or in part, at any time and from time to time, (i)(a) prior to the Par Call Date (as defined below), at a redemption price (expressed as a percentage of principal amount and rounded to three decimal places) equal to the greater of (x) the sum of the present values of the remaining scheduled payments of principal and interest on the bonds of the 2034 Series being redeemed discounted to the redemption date (assuming the bonds of the 2034 Series being redeemed matured on the Par Call Date) on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate (as defined below) plus 20 basis points, less (b) interest accrued to the redemption date and (y) 100% of the principal amount of the bonds of the 2034 Series to be redeemed, plus, in either case, accrued and unpaid interest thereon to, but excluding, the redemption date, and (ii) on or after the Par Call Date, at a redemption price equal to 100% of the principal amount of the bonds of the 2034 Series to be redeemed on the redemption date plus accrued and unpaid interest thereon, but excluding, the redemption date.
Notwithstanding the foregoing, (1) interest payable with respect to an interest payment date on any bond of the 2034 Series to be redeemed that falls on or before the redemption date therefor shall be made to the holder thereof on the record date related to such interest payment date, and (2) if any redemption date falls on a day that is not a Business Day, principal and/or interest and premium, if any, payable on such date will be paid on the next succeeding Business Day with the same force and effect as if it were paid on the redemption date and no interest will accrue on the amount so payable for the period from and after the redemption date to the next succeeding Business Day.
For purposes of this Section 3.2:
“Par Call Date” means May 15, 2034.
“Treasury Rate” means, with respect to any redemption date, the yield determined by the Company in accordance with the following two paragraphs.
The Treasury Rate shall be determined by the Company after 4:15 p.m., New York City time (or after such time as yields on U.S. government securities are posted daily by the Board of Governors of the Federal Reserve System), on the third Business Day preceding the redemption date based upon the yield or yields for the most recent day that appear after such time on such day in the most recent statistical release published by the Board of Governors of the Federal Reserve System designated as “Selected Interest Rates (Daily)—H.15” (or any successor designation or publication) (“H.15”) under the caption “U.S. government securities—Treasury constant maturities—Nominal” (or any successor caption or heading) (“H.15 TCM”). In determining the Treasury Rate, the Company shall select, as applicable:
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(a) the yield for the Treasury constant maturity on H.15 exactly equal to the period from the redemption date to the Par Call Date (the “Remaining Life”);
(b) if there is no such Treasury constant maturity on H.15 exactly equal to the Remaining Life, the two yields—one yield corresponding to the Treasury constant maturity on H.15 immediately shorter than and one yield corresponding to the Treasury constant maturity on H.15 immediately longer than the Remaining Life—and shall interpolate to the Par Call Date on a straight-line basis (using the actual number of days) using such yields and rounding the result to three decimal places; or
(c) if there is no such Treasury constant maturity on H.15 shorter than or longer than the Remaining Life, the yield for the single Treasury constant maturity on H.15 closest to the Remaining Life (for purposes of this clause, the applicable Treasury constant maturity or maturities on H.15 shall be deemed to have a maturity date equal to the relevant number of months or years, as applicable, of such Treasury constant maturity from the redemption date).
If on the third Business Day preceding the redemption date H.15 TCM is no longer published, the Company shall calculate the Treasury Rate based on the rate per annum equal to the semi-annual equivalent yield to maturity at 11:00 a.m., New York City time, on the second Business Day preceding such redemption date of the United States Treasury security maturing on, or with a maturity that is closest to, the Par Call Date, as applicable. If there is no United States Treasury security maturing on the Par Call Date, but there are two or more United States Treasury securities with a maturity date equally distant from the Par Call Date, one with a maturity date preceding the Par Call Date and one with a maturity date following the Par Call Date, the Company shall select the United States Treasury security with a maturity date preceding the Par Call Date. If there are two or more United States Treasury securities maturing on the Par Call Date, or two or more United States Treasury securities meeting the criteria of the preceding sentence, the Company shall select from among these two or more United States Treasury securities the United States Treasury security that is trading closest to par based upon the average of the bid and asked prices for such United States Treasury securities at 11:00 a.m., New York City time. In determining the Treasury Rate in accordance with the terms of this paragraph, the semi-annual yield to maturity of the applicable United States Treasury security shall be based upon the average of the bid and asked prices (expressed as a percentage of principal amount) at 11:00 a.m., New York City time, of such United States Treasury security and rounded to three decimal places.
SECTION 3.3 Notice of Intention to Redeem. Article XII of the Original Indenture is and shall be applicable to any redemption of bonds of the 2034 Series. The notice of intention to redeem provided for in Section 12.02 of the Original Indenture need not be published with respect to bonds of the 2034 Series but shall be given by mailing a copy thereof to each registered owner thereof, directed to his registered address, not less than twenty (20) nor more than sixty (60) days prior to the date fixed for redemption. The Company shall notify the Trustee at least sixty (60) days prior to giving notice of redemption (or such shorter period as is satisfactory to the Trustee) of the aggregate principal amount of bonds of the 2034 Series to be redeemed and the redemption date.
SECTION 3.4 No Other Redemptions. Except as set forth in Sections 3.1 and 3.2 hereof, the bonds of the 2034 Series are not redeemable prior to August 15, 2034.
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ARTICLE IV
PARTICULAR COVENANTS OF THE COMPANY
SECTION 4.1 Restrictions as to Dividends. So long as any of the bonds of the 2034 Series are outstanding, the Company will not (a) declare any dividends (other than dividends in common stock) on any common stock, or order the making of any distribution on any shares of common stock or to owners of common stock or (b) purchase, redeem or otherwise acquire or retire for value any shares of common stock, if the aggregate net amount of such declarations, distributions so ordered, purchases, redemptions, acquisitions and retirements after September 30, 1953, would exceed the sum of (y) the Net Income Available for Common Stock for the period beginning October 1, 1953, and ending with the last day of the calendar quarter immediately preceding the calendar quarter in which such dividend is declared, distribution ordered, or purchase, redemption, acquisition or retirement made, plus (z) Eight Million Dollars ($8,000,000).
The aggregate net amount of the declarations, distributions ordered, purchases, redemptions, acquisitions and retirements referred to in the first paragraph of this Section 4.1 shall be determined by deducting from the aggregate amount thereof the total amount of cash payments received by the Company after September 30, 1953, for any shares of common stock sold by the Company after September 30, 1953.
Net Income Available for Common Stock, for the purpose of this Section 4.1, for any period, means (1) the net income of the Company for such period computed according to the applicable system of accounts prescribed by the Public Service Commission of Missouri and any applicable orders of said Commission and (to the extent not prescribed by such system of accounts or orders) according to generally accepted accounting principles, less (2) an amount equal to the dividends accrued (whether or not declared or paid) during such period on any and all classes of stock having preference over the common stock as to assets or dividends.
For the purposes of the last preceding paragraph of this Section 4.1, the term “Public Service Commission of Missouri” shall also apply, and be deemed to refer, to any regulatory body which may (A) succeed said Commission with respect to jurisdiction over the accounting of the Company, or (B) supersede said Commission with respect to such jurisdiction, or (C) have such jurisdiction over phases of the Company’s business or parts of its property over which said Commission shall not have jurisdiction.
SECTION 4.2 Earnings Requirements for Additional Bonds. So long as any bonds of the 2034 Series are outstanding, the Company shall not be entitled to have authenticated and delivered any bonds pursuant to Article VI, Article VII or Article VIII of the Original Indenture, except bonds which may be authenticated and delivered under Article VII of the Original Indenture, without the receipt by the Trustee of a net earnings certificate showing the net earnings to be as required by Section 6.05 of the Original Indenture, unless (in addition to all other requirements for the authentication and delivery of such bonds):
(a) net earnings of the Company after provision for depreciation, depletion and amortization of property, for any 12 consecutive calendar months within the 15 calendar months immediately preceding the date on which such additional bonds are to be issued, shall have been not less than 2 1/4 times the amount of the total annual interest charges upon the funded debt of the Company to be outstanding immediately after the issue of such additional bonds; and (b) the Trustee shall have received a certificate made, signed and verified by the same persons (including an independent public accountant where required) as would be required if such certificate were a net earnings certificate under the Original Indenture, showing the net earnings of the Company to be as required by the foregoing clause (a) of this Section 4.2.
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Such certificate shall show the net earnings and total annual interest charges referred to in said clause (a).
For the purposes of this Section 4.2, “funded debt” shall mean all indebtedness created or assumed by the Company maturing one year or more after the date of the creation or assumption thereof.
For the purposes of this Section 4.2, net earnings of the Company after provision for depreciation, depletion and amortization of property shall mean the total operating revenue and other income (net) of the Company less operating expenses (including provision for depreciation, depletion and amortization of property) and less taxes (excluding income and excess profits taxes or other taxes which are imposed on or measured by income). In the determination of net earnings of the Company the following additional requirements shall be applicable:
(i) No profits or losses from the sale or abandonment of capital assets or change in value of securities or other investments shall be taken into account in making such computations;
(ii) In case the Company shall have sold any property for a consideration in excess of $5,000,000, within or after the particular period for which the calculation is made, then, in computing the net earnings of the Company so available, the net earnings or net losses of such property for the whole of such period shall be excluded to the extent practicable on the basis of actual earnings and expenses of such property or on the basis of such estimates of the earnings and expenses of such property as the signers of a Treasurer’s certificate filed with the Trustee shall deem proper;
(iii) In case the Company shall, within or after the particular period for which the calculation is made, have acquired (by purchase, merger, consolidation or otherwise) any property which within six months prior to the date of acquisition thereof by the Company has been used or operated by a person or persons other than the Company in a business similar to that in which it has been or is to be used or operated by the Company, then in computing the net earnings of the Company so available for such purposes there shall be included, to the extent that they may not have been otherwise included, the net earnings or net losses of the property so acquired for the whole of such period to the extent practicable on the basis of actual earnings and expenses of such property or on the basis of such estimates of the earnings and expenses of such property as the signers of a Treasurer’s certificate filed with the Trustee shall deem proper. The net earnings or net losses of such property for the period preceding such acquisition shall in such case be ascertained and computed as provided in this clause (iii) as if such acquired property had been owned by the Company during the whole of such period; and
(iv) The “net earnings of property” referred to in clauses (ii) and (iii) of this Section 4.2 shall mean the net earnings of such property computed in the manner provided in this definition for the computation of net earnings of the Company available for the pertinent purposes.
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All accounting determinations required by this Section 4.2 shall (except to the extent, if any, to which the preceding provisions of this Section 4.2 may conflict with this provision) be made according to the applicable system of accounts prescribed by the Public Service Commission of Missouri and any applicable orders of said Commission and (to the extent not prescribed by such system of accounts or orders) according to generally accepted accounting principles.
For the purposes of this Section 4.2, the term “Public Service Commission of Missouri” shall be applicable as provided in Section 4.1 of this Article IV.
SECTION 4.3 Postponement of Interest. So long as any bonds of the 2034 Series are outstanding, in order that any interest payment on the bonds of any of the 2034 Series may be postponed pursuant to clause (2) of Section 20.07 of the Original Indenture, there shall be required, in addition to all other prerequisites to such postponement provided in the Original Indenture, the consent of the owners of not less than seventy-five percent (75%) in principal amount of bonds of the 2034 Series at the time outstanding, such consent to be given at the same time as and in the same manner as the consent of the owners of other bonds required by said clause (2) of Section 20.07 of the Original Indenture.
ARTICLE V
COMPANY’S RESERVATION OF RIGHTS – TRUSTEE PROVISIONS
SECTION 5.1 Company’s Reservation of Rights.
(a) The Company reserves the right, without any consent, vote or other action by holders of bonds of the 2034 Series, or of any other subsequent series, to amend the Mortgage, as heretofore amended and supplemented, as set forth in Exhibit A attached hereto, including all or such portions of the amendments set forth in Exhibit A as the Company may elect.1
SECTION 5.2 Bondholder Consent to Amendments; Designation of Company as Proxy.
(a) Each holder of bonds of the 2034 Series, or of any other subsequent series, (a) consents to the modification and alterations to the Mortgage set forth in this Article V of this Thirty-Ninth Supplemental Indenture without any other or further action by any such holder of such bonds, (b) designates 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 amendments at any bondholder meeting, in lieu of any bondholder meeting, in any consent solicitation or otherwise and (c) waives all conditions precedent to such modifications and alterations, in Article XX of the Mortgage or otherwise (including but not limited to any requirements as to the holding of a meeting of bondholders and any notice thereof).
1 | Each of the amendments provided above has been set against the relevant text of the Mortgage in Exhibit B hereto for purposes of illustrating the amendments to be made to the Mortgage. Exhibit B is provided for informational purposes only and nothing in Exhibit B shall constitute or be considered part of this Thirty-Ninth Supplemental Indenture or otherwise be binding on the Company, the Trustee or any bondholder under the Mortgage. |
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ARTICLE VI
COMPANY’S RESERVATION OF RIGHTS – PRIOR SUPPLEMENTS
SECTION 6.1 Company’s Reservation of Rights. The Company reserves the right, without any consent, vote or other action by holders of bonds of the 2034 Series, or of any other subsequent series, to amend the Mortgage, as heretofore amended and supplemented, in accordance with and as set forth in Section 9.1 of Article IX of the Thirty-Second Supplemental Indenture, to the extent such amendments have not already been effectuated, which shall apply hereto mutatis mutandis.
SECTION 6.2 Bondholder Consent to Amendments; Designation of Company as Proxy. Each holder of bonds of the 2034 Series, or of any other subsequent series, irrevocably (a) consents to the modification and alterations to the Mortgage set forth in Section 9.1 of Article IX of the Thirty-Second Supplemental Indenture without any other or further action by any such holder of such bonds, (b) designates 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 amendments at any bondholder meeting, in lieu of any bondholder meeting, in any consent solicitation or otherwise and (c) waives all conditions precedent to such modifications and alterations, in Article XX of the Mortgage or otherwise (including but not limited to any requirements as to the holding of a meeting of bondholders and any notice thereof).
SECTION 6.3 Prior Amendment. Without limiting any provision of the Mortgage, including the effectiveness of any prior amendment thereto, the holders of the bonds of the 2034 Series acknowledge and recognize the amendment to the Mortgage described in Article I of the Thirty-Seventh Supplemental Indenture.
ARTICLE VII
MISCELLANEOUS
SECTION 7.1 Provisions Required by Trust Indenture Act of 1939 to Control. If and to the extent that any provision hereof, or any other provision of the Mortgage, limits, qualifies, or conflicts with another provision included in the Mortgage which is required to be included in the Mortgage by any of Sections 310 to 317, inclusive, of the Trust Indenture Act of 1939, as amended by the Trust Indenture Reform Act of 1990, through operation of Section 318(c) thereof, such required provisions shall control.
SECTION 7.2 Acceptance of Trust. The Trustee hereby accepts the trust hereby declared and provided and agrees to perform the same upon the terms and conditions in the Original Indenture and in this Thirty-Ninth Supplemental Indenture set forth. The Trustee makes no representations as to the validity, execution or sufficiency of this Thirty-Ninth Supplemental Indenture other than as to the validity of its execution and delivery by the Trustee. The Trustee assumes no responsibility for the correctness of the recitals contained herein, which shall be taken as a statement of the Company.
SECTION 7.3 This Indenture Part of Original Indenture. This Thirty-Ninth Supplemental Indenture is executed and shall be construed as an indenture supplemental to the Original Indenture and shall form a part thereof. The Mortgage, as modified and amended by this Thirty-Ninth Supplemental Indenture, is hereby ratified and confirmed in all respects.
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SECTION 7.4 Execution in Any Number of Counterparts. This Thirty-Ninth Supplemental Indenture may be simultaneously executed in any number of counterparts, each of which, when so executed, shall be deemed to be an original; such counterparts shall together constitute but one and the same instrument.
SECTION 7.5 Date of Execution. Although this Thirty-Ninth Supplemental Indenture is dated, for convenience and for purposes of reference, as of August 13, 2024, the actual dates of execution by the Company and by the Trustee are as indicated by their respective acknowledgements hereto annexed.
SECTION 7.6 WAIVER OF JURY TRIAL. EACH OF THE TRUSTEE AND THE COMPANY HEREBY WAIVES THE RIGHT TO TRIAL BY JURY WITH RESPECT TO ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS THIRTY-NINTH SUPPLEMENTAL INDENTURE.
[signature page(s) to follow]
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IN WITNESS WHEREOF, Spire Missouri Inc., 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, Chief Financial Officer, a Vice President, or Treasurer and its corporate seal to be attested by its Secretary or an Assistant Secretary, for and in its behalf; and Regions Bank, Trustee, party of the second part, in token of its acceptance of the trust hereby created, has caused its name to be hereunto affixed and this instrument to be signed and sealed by a Vice President or an Assistant Vice President, and its seal to be attested by its Secretary or an Assistant Secretary.
SPIRE MISSOURI INC. | ||
By | /s/ Stephen M. Mills |
|
Stephen M. Mills, President |
ATTEST: |
/s/ Courtney M. Vomund |
(SEAL) |
REGIONS BANK as Trustee |
||
By | /s/ Kerry A. McFarland |
ATTEST: |
/s/ Daniel G. Dwyer |
(SEAL) |
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State of Missouri | ) | |||
) | ss. | |||
City of St. Louis | ) |
On this 8th day of August, 2024 before me appeared Stephen M. Mills, to me personally known, who, being by me duly sworn did say that (s)he is the President of Spire Missouri Inc., 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 Stephen M. Mills 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 10/16/2026.
Wade Fornachon |
Notary Public |
State of Missouri |
(SEAL)
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State of Missouri | ) | |||
) | ss. | |||
County of St. Louis | ) |
On this 9th day of August, 2024 before me appeared Kerry A. McFarland to me personally known, who, being by me duly sworn did say that (s)he is a Vice President of Regions Bank, the banking corporation 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 Daniel G. Dywer 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 4/19/2025.
/s/ Sara Saettele |
Notary Public |
State of Missouri |
(SEAL)
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Exhibit A
A. | To amend Section 18.07 of the Mortgage to add the following clauses: |
(i) | adding the following as subsection (3): |
(3) The Trustee shall not be deemed to have notice of any default or completed default unless a responsible officer of the Trustee has actual knowledge thereof or unless written notice of any event which is in fact such a default is received by the Trustee, and such notice references the bonds and this Indenture;
(ii) | adding the following as subsection (4): |
(4) The permissive right of the Trustee to do things enumerated in this Indenture shall not be construed as a duty;
(iii) | adding the following as subsection (5): |
(5) Nothing in this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties or in the exercise of any of its rights or powers hereunder if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it;
(iv) | adding the following as subsection (6): |
(6) The Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of holders, pursuant to the provisions of this Indenture, unless such holder shall have offered to the Trustee security or indemnity (satisfactory to the Trustee in its sole and absolute discretion) against the costs, expenses and liabilities which may be incurred by it in compliance with such request or direction;
(v) | adding the following as subsection (7): |
(7) In no event shall the Trustee be responsible or liable for any special, indirect, punitive, incidental or consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit), irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action;
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(vi) | adding the following as subsection (8): |
(8) The Trustee may act through attorneys or agents and shall not be responsible for the acts or omissions of any such attorney or agent appointed with due care;
(vii) | adding the following as subsection (9): |
(9) Neither the Trustee nor any of its directors, officers, employees, agents or affiliates shall be responsible for nor have any duty to monitor the performance or any action of the Company or any of its directors, members, officers, agents, affiliates or employees, nor shall it have any liability in connection with the malfeasance or nonfeasance by the Company. The Trustee may assume performance by all such persons of their respective obligations. The Trustee shall have no enforcement or notification obligations relating to breaches of representations or warranties of any other person; and
(viii) | adding the following as subsection (10): |
(10) In no event shall the Trustee be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, any act or provision of any present or future law or regulation or governmental authority, strikes, work stoppages, accidents, labor disputes, acts of war or terrorism, civil or military disturbances, epidemics, pandemics, quarantines, national emergency, earthquakes, fires, floods, riots, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services, malware or ransomware attacks or the unavailability of the Federal Reserve Bank wire or telex or other wire or communication facility; it being understood that the Trustee shall use reasonable efforts which are consistent with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances.
B. | To delete Section 18.11 of the Mortgage in its entirety and replace it with the following: |
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 and its directors, officers, agents and employees harmless against any and all loss, damage, claims, fines, penalties, liabilities, costs or expenses (including attorneys’ fees and expenses) incurred by it in connection with the acceptance or administration of this trust and the performance of its duties hereunder (including the costs and expenses of enforcing this Indenture against the Company (including this Section)) or defending itself against any claim whether asserted by any bondholder, the Company, or any third party, or liability in connection with the acceptance, exercise or performance of any of its powers or duties hereunder incurred without negligence or bad faith as finally adjudicated by a court of competent jurisdiction.
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The obligations of the Company to the Trustee under this Section shall constitute additional indebtedness secured hereby and shall be secured by the lien of this Indenture.
C. | To delete Section 18.14 of the Mortgage in its entirety and replace it with the following: |
SECTION 18.14. (a) No resignation or removal of the Trustee and no appointment of a successor Trustee pursuant to this Article shall become effective until the acceptance of appointment by the successor Trustee.
(b) The Trustee may resign at any time by giving written notice thereof to the Company. If an instrument of acceptance by a successor Trustee shall not have been delivered to the Trustee within thirty (30) days after the giving of such notice of resignation, the resigning Trustee may petition any court of competent jurisdiction for the appointment of a successor Trustee.
(c) The Trustee may be removed at any time by act of the holders of a majority in principal amount of the outstanding bonds, delivered to the Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall cease to be eligible under Section 18.01 hereof and shall fail to resign after written request therefor by the Company or by any such Holder, or
(2) the Trustee shall become incapable of acting or shall be adjudged a bankrupt or insolvent or a receiver of the Trustee or of its property shall be appointed or 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,
then, in any such case, (a) the Company by resolution may remove the Trustee, or (b) any Holder who has been a bona fide holder of a bond 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 Trustee.
(e) If the Trustee shall resign, be removed or become incapable of acting, or if a vacancy shall occur in the office of Trustee for any cause, the Company, by resolution, shall promptly appoint a successor Trustee; provided, however, in no event shall such successor Trustee be an affiliate of the Company. In case all or substantially all of the trust estate shall be in the possession of a receiver or trustee lawfully appointed, such receiver or trustee, by written instrument, may similarly appoint a successor to fill such vacancy until a new Trustee shall be so appointed by the holders.
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If, within one year after such resignation, removal or incapability or the occurrence of such vacancy, a successor Trustee shall be appointed by act of the holders of a majority in principal amount of the outstanding bonds delivered to the Company and the retiring Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance of such appointment, become the successor Trustee and supersede the successor Trustee appointed by the Company or by such receiver or trustee. If no successor Trustee shall have been so appointed by the Company or the holders and accepted appointment in the manner hereinafter provided any holder who has been a bona fide holder of a bond for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the appointment of a successor Trustee.
(f) The Company shall give notice of each resignation and each removal of the Trustee and each appointment of a successor Trustee by mailing written notice of such event by postage prepaid, to the holders of bonds as their names and addresses appear in the bond register. Each notice shall include the name of the successor Trustee and the address of its principal corporate trust office.
D. | To delete Section 18.16 of the Mortgage in its entirety and replace it with the following: |
SECTION 18.16. [Reserved].
E. | To delete Section 18.17 of the Mortgage in its entirety and replace it with the following: |
SECTION 18.17. [Reserved].
F. | To delete Section 18.18 of the Mortgage in its entirety and replace it with the following: |
SECTION 18.18. [Reserved].
G. | To delete Section 20.09 of the Mortgage in its entirety and replace it with the following: |
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 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.
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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. The Trustee will sign any supplemental indenture authorized pursuant to this Section if the supplemental indenture does not adversely affect the rights, duties, liabilities, indemnities or immunities of the Trustee. In executing any supplemental indenture (except in the case of supplemental indentures for the issuance of any series, in which case the Trustee shall receive the documents set forth in Section 6.06, 7.01 or 8.01 hereof, as applicable), the Trustee will be entitled to receive and will be fully protected in relying upon an officer’s certificate and an opinion of counsel stating that the execution of such supplemental indenture is authorized or permitted by this Indenture, and, with respect to such opinion of counsel, that the amendment or supplement constitutes the legal, valid and binding obligation of the Company, enforceable against it in accordance with its terms.
I. | To delete Section 21.04 of the Mortgage in its entirety and replace it with the following: |
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 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. The Trustee will sign any instrument authorized pursuant to this Section if the supplemental indenture does not adversely affect the rights, duties, liabilities, indemnities or immunities of the Trustee. In executing any instrument, the Trustee will be entitled to receive and will be fully protected in relying upon an officer’s certificate and an opinion of counsel stating that the execution of such instrument is authorized or permitted by this Indenture, and, with respect to such opinion of counsel, that the amendment or supplement constitutes the legal, valid and binding obligation of the Company, enforceable against it in accordance with its terms.
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Exhibit B
Explanatory Note: Each of the sections of the Mortgage presented below shows such section as if it were amended and restated in accordance with Section 5.1 of the Thirty-Ninth Supplemental Indenture. Deletions are noted with a and additions are noted with a double underline. This Exhibit B is being provided for informational purposes only and nothing in this Exhibit B shall constitute or be considered part of the Thirty-Ninth Supplemental Indenture or otherwise be binding on the Company, the Trustee or any bondholder under the Mortgage.
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.
(3) The Trustee shall not be deemed to have notice of any default or completed default unless a responsible officer of the Trustee has actual knowledge thereof or unless written notice of any event which is in fact such a default is received by the Trustee, and such notice references the bonds and this Indenture;
(4) The permissive right of the Trustee to do things enumerated in this Indenture shall not be construed as a duty;
(5) Nothing in this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties or in the exercise of any of its rights or powers hereunder if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it;
(6) The Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of holders, pursuant to the provisions of this Indenture, unless such holder shall have offered to the Trustee security or indemnity (satisfactory to the Trustee in its sole and absolute discretion) against the costs, expenses and liabilities which may be incurred by it in compliance with such request or direction;
(7) In no event shall the Trustee be responsible or liable for any special, indirect, punitive, incidental or consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit), irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action;
(8) The Trustee may act through attorneys or agents and shall not be responsible for the acts or omissions of any such attorney or agent appointed with due care;
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(9) Neither the Trustee nor any of its directors, officers, employees, agents or affiliates shall be responsible for nor have any duty to monitor the performance or any action of the Company or any of its directors, members, officers, agents, affiliates or employees, nor shall it have any liability in connection with the malfeasance or nonfeasance by the Company. The Trustee may assume performance by all such persons of their respective obligations. The Trustee shall have no enforcement or notification obligations relating to breaches of representations or warranties of any other person; and
(10) In no event shall the Trustee be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, any act or provision of any present or future law or regulation or governmental authority, strikes, work stoppages, accidents, labor disputes, acts of war or terrorism, civil or military disturbances, epidemics, pandemics, quarantines, national emergency, earthquakes, fires, floods, riots, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services, malware or ransomware attacks or the unavailability of the Federal Reserve Bank wire or telex or other wire or communication facility; it being understood that the Trustee shall use reasonable efforts which are consistent with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances
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 and its directors, officers, agents and employees harmless against any and all loss,damage, claims, fines, penalties, liabilities, costs or expenses (including attorneys’ fees and expenses) incurred by it in connection with the acceptance or administration of this trust and the performance of its duties hereunder (including the costs and expenses of enforcing this Indenture against the Company (including this Section)) or defending itself against any claim whether asserted by any bondholder, the Company, or any third party, or liability in connection with the acceptance, exercise or performance of any of its powers or duties hereunder incurred without negligence or bad faith as finally adjudicated by a court of competent jurisdiction. The obligations of the Company to the Trustee under this Section shall constitute additional indebtedness secured hereby and shall be secured by the lienof this Indenture.
SECTION 18.14. (a) No resignation or removal of the Trustee and no appointment of a successor Trustee pursuant to this Article shall become effective until the acceptance of appointment by the successor Trustee.
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(b) The Trustee may resign at any time by giving written notice thereof to the Company. If an instrument of acceptance by a successor Trustee shall not have been delivered to the Trustee within thirty (30) days after the giving of such notice of resignation, the resigning Trustee may petition any court of competent jurisdiction for the appointment of a successor Trustee.
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(c) The Trustee may be removed at any time by act of the holders of a majority in principal amount of the outstanding bonds, delivered to the Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall cease to be eligible under Section 18.01 hereof and shall fail to resign after written request therefor by the Company or by any such Holder, or
(2) the Trustee shall become incapable of acting or shall be adjudged a bankrupt or insolvent or a receiver of the Trustee or of its property shall be appointed or 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,
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then, in any such case, (a) the Company by resolution may remove the Trustee, or (b) any Holder who has been a bona fide holder of a bond 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 successor Trustee.
(e) If the Trustee shall resign, be removed or become incapable of acting, or if a vacancy shall occur in the office of Trustee for any cause, the Company, by resolution, shall promptly appoint a successor Trustee; provided, however, in no event shall such successor Trustee be an affiliate of the Company. In case all or substantially all of the trust estate shall be in the possession of a receiver or trustee lawfully appointed, such receiver or trustee, by written instrument, may similarly appoint a successor to fill such vacancy until a new Trustee shall be so appointed by the holders. If, within one year after such resignation, removal or incapability or the occurrence of such vacancy, a successor Trustee shall be appointed by act of the holders of a majority in principal amount of the outstanding bonds delivered to the Company and the retiring Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance of such appointment, become the successor Trustee and supersede the successor Trustee appointed by the Company or by such receiver or trustee. If no successor Trustee shall have been so appointed by the Company or the holders and accepted appointment in the manner hereinafter provided any holder who has been a bona fide holder of a bond for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the appointment of a successor Trustee.
(f) The Company shall give notice of each resignation and each removal of the Trustee and each appointment of a successor Trustee by mailing written notice of such event by postage prepaid, to the holders of bonds as their names and addresses appear in the bond register. Each notice shall include the name of the successor Trustee and the address of its principal.
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SECTION 18.16. [Reserved].
SECTION 18.17. [Reserved].
SECTION 18.18. [Reserved].
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 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. The Trustee will sign any supplemental indenture authorized pursuant to this Section if the supplemental indenture does not adversely affect the rights, duties, liabilities, indemnities or immunities of the Trustee. In executing any supplemental indenture (except in the case of supplemental indentures for the issuance of any series, in which case the Trustee shall receive the documents set forth in Section 6.06, 7.01 or 8.01 hereof, as applicable), the Trustee will be entitled to receive and will be fully protected in relying upon an officer’s certificate and an opinion of counsel stating that the execution of such supplemental indenture is authorized or permitted by this Indenture, and, with respect to such opinion of counsel, that the amendment or supplement constitutes the legal, valid and binding obligation of the Company, enforceable against it in accordance with its terms.
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.
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The Trustee is hereby authorized to join with the Company in the execution of any such instrument or instruments. Such instrument, executed and acknowledged as aforesaid, shall be delivered to the Trustee and thereupon if such instrument shall have been signed by the Trustee any modification of the provisions of these presents therein set forth, authorized by this Section, shall be binding upon the parties hereto, their successors and assigns, and the holders of the bonds and coupons hereby secured. Anything 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. The Trustee will sign any instrument authorized pursuant to this Section if the supplemental indenture does not adversely affect the rights, duties, liabilities, indemnities or immunities of the Trustee. In executing any instrument, the Trustee will be entitled to receive and will be fully protected in relying upon an officer’s certificate and an opinion of counsel stating that the execution of such instrument is authorized or permitted by this Indenture, and, with respect to such opinion of counsel, that the amendment or supplement constitutes the legal, valid and binding obligation of the Company, enforceable against it in accordance with its terms.
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Exhibit 5.1
August 13, 2024
Spire Missouri Inc.
700 Market Street
St. Louis, Missouri 63101
Re: | Offering of First Mortgage Bonds, 5.150% Series due 2034 |
Ladies and Gentlemen:
We have acted as counsel to Spire Missouri Inc. (the “Company”) in connection with the offering and sale by the Company of $320,000,000 aggregate principal amount of its First Mortgage Bonds, 5.150% Series due 2034 (the “Bonds”), issued under the Mortgage and Deed of Trust, dated as of February 1, 1945, as previously supplemented by certain supplemental indentures thereto, and as further supplemented by the Thirty-Ninth Supplemental Indenture, dated as of August 13, 2024, relating to the Bonds (as supplemented, the “Mortgage”), by and between the Company and Regions Bank, as successor trustee (the “Trustee”), and sold pursuant to the terms of the Underwriting Agreement, dated August 6, 2024 (the “Underwriting Agreement”), between the Company and the several underwriters listed on Exhibit A thereto (collectively, the “Underwriters”), for whom BMO Capital Markets Corp., J.P. Morgan Securities LLC, TD Securities (USA) LLC, and U.S. Bancorp Investments, Inc. acted as representatives. This opinion is being furnished in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act of 1933, as amended (the “Act”).
We have examined originals or certified copies of (a) the registration statement on Form S-3 (Registration Number 333-264799-01) of the Company filed on May 9, 2022 with the Securities and Exchange Commission (the “Registration Statement”), (b) the Mortgage, (c) the form of the Bonds, (d) the Underwriting Agreement, (e) resolutions adopted by the Board of Directors of the Company and the pricing committee thereof authorizing the issuance and sale of the Bonds, (f) the Order Approving Finance Authority in Case No. GF-2022-0169, effective March 5, 2022, entered by the State of Missouri Public Service Commission, and (g) such corporate records of the Company and other certificates and documents of officials of the Company, 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 and the conformity to authentic original documents of all copies submitted to us as conformed, certified or reproduced copies. 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 the Company, all of which we assume to be true, correct and complete. We have also relied upon a certificate of an officer of the Trustee as to the Trustee’s due authorization, execution and delivery of the Mortgage.
Based upon the foregoing and subject to the assumptions, exceptions, qualifications and limitations set forth herein, we are of the opinion that the Bonds have been duly authorized and legally issued and, when duly authenticated by the Trustee in accordance with the terms of the Mortgage and delivered to and paid for by the Underwriters pursuant to the terms of the Underwriting Agreement, will constitute binding obligations of the Company.
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 Missouri.
B. The matters expressed in this opinion 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; and (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).
1201 Walnut Street, Suite 2900, Kansas City, MO 64106
Spire Missouri Inc.
Page 2
C. This opinion 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 the Company or any other person or any other circumstance.
We hereby consent to the filing of this opinion as an exhibit to a Current Report on Form 8-K filed by the Company with the Commission on or about the date hereof, to the incorporation by reference of this opinion into the Registration Statement and to the use of our name under the caption “Legal Matters” in the Prospectus Supplement, August 6, 2024, thereto relating to the offering of the Bonds, forming a part of the Registration Statement. 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,
Stinson LLP
/s/ Stinson LLP