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Exhibit 4.5
FIRST AMENDMENT
TO
LOAN AGREEMENT
This First Amendment to Loan agreement is made and entered into as of
the 4th day of November, 1994, by and among Wisconsin Gas Company Employees'
Savings Plans Trust (the "Trust"), WICOR, Inc., (the "Company") and M&I
Marshall & Ilsley Bank, a Wisconsin banking corporation (the"Bank"). All
terms not otherwise defined hereinshall have the meanings assigned to such
terms in the Loan Agreement by and among the Trust, the Company and the Bank
dated as of November 4, 1991 (the Company and the Bank dated as of November
4, 1991 (the "Agreement").
WITNESSETH:
WHEREAS, the maturity of the ESOP Note is November 4, 1994; and
WHEREAS, the Trust has requested that the maturity date of the ESOP
Loan be extended until November 3, 1995 and the Bank has agreed to such
extension;
NOW, THEREFORE, the parties hereto agree as follows:
1. Amendment of Subsection 2.1. Subsection 2.1 of the Agreement
shall be, and it hereby is, amended by deleting the first
sentence thereof in its entirety and, in lieu thereof, inserting
the following:
"Subject to the terms and conditions hereof, the Bank agrees to
lend to the Trust, on the Effective Date, Ten Million Dollars
($10,000,000), which amount shall be payable in seventeen (17)
consecutive installments, consisting of sixteen (16) consecutive
Quarterly installments of Two Hundred Fifty Thousand Dollars
($250,000) each payable on the last Business day of each Quarter
commencing on November 30, 1991, and a final payment in the
amount of the outstanding principal balance on November 3, 1995."
2. Amendment of Subsection 2.2. Subsection 2.2 of the Agreement
shall be, and it hereby is, amended by deleting part (b) thereof
in its entirety and, in lieu thereof, inserting the following:
"(b) be stated to mature on November 3, 1995, and be payable as
provided in subsection 2.1 hereof, and"
3. Effectiveness of Amendment. This Amendment shall become
effective upon receipt by the Bank of (i) a copy of this
Amendment duly executed by the Trust, the Bank and the Company,
(ii) the Consent of Guarantor attached to this Amendment duly
executed by the Company and (iii) the Amended and Restated
Promissory Note substantially in the form attached hereto as
Exhibit A executed by the Trust which Note shall hereinafter
constitute the ESOP Note.
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4. Miscellaneous.
(a) The Trust hereby represents and warrants to the Bank that
all of the representations and warranties made by the Trust
in the Loan Documents are true and correct on the date of
this Amendment and that no Default or Event of Default
under the Agreement has occurred and is continuing as of
the date of this Amendment.
(b) The Company hereby represents and warrants to the Bank that
all of the representations and warranties made by the
Company in the Loan Documents are true and correct on the
date of this Amendment; that no Default or Event of Default
under the Agreement has occurred and is continuing as of
the date of this Amendment; that the making, execution and
delivery of this Amendment, and performance of and
compliance with the terms of the Agreement, as hereby
amended, (i) have been duly authorized by the Boards of
Directors of Wisconsin Gas and of the Company and by all
other actions, (ii) do not and will not conflict with,
contravene or violate ;any provision of, or result in a
breach of or default under, or require the waiver (not
already obtained) of any provision of or the consent (not
already given) of any Person under the terms of, the Trust
Agreement and (iii) will not violate, conflict with, or
constitute a default under any law, regulation, order or
any other requirement of any court, tribunal, arbitrator,
or Governmental Authority; that the Agreement, as amended
hereby and the ESOP Note, as amended and restated by the
Amended and Restated Promissory Note constitute valid and
legally binding obligations of the Trust, and enforceable
in accordance with their respective terms, except as
limited by bankruptcy, insolvency, reorganization,
moratorium or other laws relating to or affecting generally
the enforcement of creditors' rights.
(c) Each reference in the Agreement to "this Agreement" and
each reference in the ESOP Note and the Guaranty to
"Agreement" shall be deemed a reference to the Agreement as
amended by this amendment.
(d) Except as amended by this Amendment, the terms and
conditions of the Agreement shall remain in all other
respects in full force and effect.
(e) The Company acknowledges and agrees that pursuant to
subsection 11.6 of the Guaranty, the Company shall cause
Wisconsin Gas to reimburse the Bank for all of its out of
pocket costs and expenses incurred in connection with this
Amendment, including the fees and disbursements of the
counsel to the Bank for the preparation hereof and expenses
incurred in connection herewith.
(f) This Amendment and the rights and obligations of the
parties hereto shall be governed by the laws of the State
of Wisconsin.
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IN WITNESS WHEREOF, the parties hereto have caused this First Amendment
to Loan Agreement to be executed by their respective officers.
CITIBANK, N.A., AS TRUSTEE OF
THE WISCONSIN GAS COMPANY
EMPLOYEES' SAVINGS PLANS TRUST
By Karen London
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Trust Officer
WICOR, INC.
By Joseph P. Wenzler
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V. P. Treasurer and
Chief Financial Officer
M & I MARSHAL ILSLEY BANK
By Gina A. Peter
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Vice President
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CONSENT OF GUARANTOR
The undersigned hereby (i) acknowledges and agrees that the Guaranty
executed by the undersigned is and remains in full force and effect subject
to no defense, counterclaim or offset of any kind, (ii) acknowledges its
receipt of a copy of the foregoing Amendment, acknowledges that it has
received notice of the extension of the time for payment of the ESOP Loan
pursuant to such Amendment and hereby consents and agrees to the terms of the
foregoing Amendment, all in accordance with Section 7 of the Guaranty and
(iii) acknowledges and agrees that the giving of the undersigned's consent to
the foregoing Amendment shall not in any way be construed to require the
giving of the undersigned's consent to any future amendment.
Dated as of November 4, 1994.
WICOR, INC.
By: JOSEPH P. WENZLER
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Vice President, Treasurer
& Chief Financial Officer
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AMENDED AND RESTATED
PROMISSORY NOTE
$10,000,000.00 November 4, 1991
as amended and restated
as of November 4, 1994
FOR VALUE RECEIVED, the undersigned Wisconsin Gas Company Employees'
Savings Plans Trust (the "Trust"), a trust legally organized under the laws
of the State of Wisconsin, promises to pay to the order of M&I Marshall &
Ilsley Bank (the "Bank") at its main office in the City of Milwaukee,
Wisconsin, the principal sum of Ten Million ($10,000,000.00), payable in
sixteen (16) consecutive quarterly installments of Two Hundred Fifty Thousand
Dollars ($250,000.00) each, commencing on November 30, 1991 and on the last
Business Day of each succeeding Quarter thereafter and a final installment of
principal in the amount of Six Million Dollars ($6,000,000.00) due and
payable in full on November 2, 1995. Capitalized terms used herein and not
otherwise defined shall have the meanings given to such terms in that certain
Loan Agreement by and amount the Trust, WICOR, Inc. (the "Company") and the
Bank dated as of November 4, 1991, as amended by the First Amendment to Loan
Agreement among the Trust, the Company and the Bank dated as of November 4,
1994 (the "Agreement").
The unpaid principal balance hereof shall bear interest at a rate per
annum equal to that interest rate Wisconsin Gas Company elects to have this
loan bear under the Agreement. Interest shall be payable hereunder by the
Trust to the Bank as provided in Section 2 of the Agreement.
The Trust may at any time and from time to time without premium or
penalty (except as otherwise provided in Section 2.3 of the Agreement), make
prepayments in whole or in part of the principal amount hereof. All
prepayments shall be applied to the last maturing principal installments in
the inverse order of their maturities and shall be accompanied by interest
accrued on the amount prepaid through the prepayment date.
No person entitled to payment hereunder shall have any right to any
assets of the Trust other than (a) shares of common stock of the Company
purchased with the proceeds of the loan evidenced by this Note and not
allocated to participants in the Wisconsin Gas Company Employees' Savings
Plan (the "ESOP"), (b) contributions (other than contributions of employer
securities) that are made to the Trust for the account of the ESOP to permit
the Trust to meet its obligations under this Note, and (c) earnings
attributable to such common stock and the investment of such contributions.
This note is evidence of an Acquisition Loan made pursuant to Section
4.07(b) of the Trust, and the proceeds of such loan shall be used in
accordance with such Section.
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Anything herein to the contrary notwithstanding, this Note is intended
to be consistent and in conformity with all laws, rules of law, and
regulations relating to loans made to employee stock ownership trusts
(defined by Section 4975(e) (7) of the Internal Revenue Code of 1988),
including but not limited to Sections 401, 409, and 4975 of the Internal
Revenue Code of 1986 and the regulations thereunder, and Sections 406, 407
and 408 of the Employer Retirement Income Security Act of 1974 and the
regulations thereunder. To the extent that any provision of this Note shall
at any time be found inconsistent with any such laws, rule of law or
regulations, such inconsistent provisions shall be inapplicable and such
provisions found inapplicable shall be deemed amended, revised, as reasonably
required, in order to provide conformity with the laws, rules of law, and
regulations governing loans to employee stock ownership trusts in purchase
qualifying employer securities.
This Note constitutes the ESOP issued pursuant to the Agreement, to
which Agreement reference is hereby made for definitions of certain defined
terms used herein and for a statement of certain terms and conditions under
which the load evidenced hereby was made and is to be repaid. If an event of
Default shall occur, the entire unpaid principal balance of, and all accrued
interest on, this Note shall become automatically and immediately due and
payable or may be declared immediately due and payable as provided in the he
Agreement.
The Trust hereby waives presentment, demand, notice, protest and all
other demands and notices in connection with the delivery, acceptance,
performance, default or enforcement of this Note. This Note shall be
construed and enforced in accordance with the Laws of the State of Wisconsin.
CITIBANK, N.A., as trustee for
WISCONSIN GAS COMPANY EMPLOYEES'
SAVINGS PLANS TRUST
By: Karen London
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Trust Officer