Exhibit 4.9
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FIRST AMENDMENT TO LOAN AGREEMENT
Dated as of February 1, 2004
Between
STATE ENVIRONMENTAL IMPROVEMENT AND ENERGY RESOURCES AUTHORITY
and
UNION ELECTRIC COMPANY, DBA AMERENUE
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Supplementing and amending that certain
Loan Agreement
dated as of December 1, 1991
$42,585,000
State Environmental Improvement and Energy Resources Authority
Environmental Improvement Revenue Refunding Bonds
(Union Electric Company Project)
Series 1991
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FIRST AMENDMENT TO LOAN AGREEMENT
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TABLE OF CONTENTS
(This Table of Contents is not a part of the First Amendment to Loan Agreement
and is only for convenience of reference.)
SECTION HEADING PAGE
ARTICLE I DEFINITIONS............................................................................1
Section 1.01. Definitions of Terms...................................................................1
ARTICLE II AMENDMENTS TO ORIGINAL AGREEMENT.......................................................2
Section 2.01. Amendments to Article V of the Original Agreement......................................2
Section 2.02. Amendments to Article VI of the Original Agreement.....................................4
Section 2.03. Amendment to Section 9.1 of the Original Agreement.....................................4
ARTICLE III MISCELLANEOUS..........................................................................5
Section 3.01. Agreement Confirmed....................................................................5
Section 3.02. Severability...........................................................................5
Section 3.03. Counterparts...........................................................................5
Section 3.04. Applicable Provisions of Law...........................................................5
Section 3.05. Effective Date.........................................................................5
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FIRST AMENDMENT TO LOAN AGREEMENT
THIS FIRST AMENDMENT TO LOAN AGREEMENT (this "First Amendment") is made and
entered into as of February 1, 2004 between the STATE ENVIRONMENTAL IMPROVEMENT
AND ENERGY RESOURCES AUTHORITY of the State of Missouri, a body corporate and
politic and a governmental instrumentality of the State of Missouri (the
"Issuer"), and UNION ELECTRIC COMPANY, a Missouri corporation doing business as
AMERENUE (the "Company"):
WITNESSETH:
WHEREAS, on December 17, 1991 the Issuer issued its Environmental
Improvement Revenue Refunding Bonds (Union Electric Company Project) Series 1991
(the "Bonds") in the original aggregate principal amount of $42,585,000 pursuant
to an Indenture of Trust dated as of December 1, 1991 (the "Original Indenture")
by and between the Issuer and UMB Bank & Trust, N.A., successor to Mercantile
Bank of St. Louis National Association (the "Trustee"); and
WHEREAS, in connection with the issuance of the Bonds, the Issuer and the
Company executed and delivered the Loan Agreement dated as of December 1, 1991
by and between the Issuer and the Company (the "Original Agreement"); and
WHEREAS, the Original Indenture is being amended and restated as the
Amended and Restated Indenture of Trust of even date herewith in order to secure
the Bonds with additional collateral, i.e., the Bond Insurance Policy and the
Company's First Mortgage Bonds; and
WHEREAS, Section 11.02 of the Original Indenture provides that the Issuer
and the Company may, with the consent of the Bondholders, enter into an
agreement supplemental to the Original Agreement and Section 10.4 of the
Original Agreement provides that such supplemental agreement is subject to the
written consent of the Trustee; and
WHEREAS, the Issuer and the Company desire to enter into this First
Amendment, as permitted by Section 11.02 of the Original Indenture and Section
10.4 of the Original Agreement, in order to amend the Original Agreement to make
certain changes relating to the amendments being made to the Indenture
concurrently herewith;
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants herein set forth, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01. Definitions of Terms. For all purposes of this First
Amendment, in addition to the terms defined above in the WHEREAS clauses, unless
the context clearly requires
otherwise, all terms defined in Article I of the Indenture have the same
meanings in this First Amendment.
ARTICLE II
AMENDMENTS TO ORIGINAL AGREEMENT
Section 2.01. Amendments to Article V of the Original Agreement. (a) There
is hereby added a new paragraph to the end of Section 5.1 of the Original
Agreement to read as follows:
"The Company agrees to make all payments when due on the
First Mortgage Bonds. If for any reason amounts paid to the
Trustee on the First Mortgage Bonds, together with other moneys
held by the Trustee and available for that purpose, would not be
sufficient to make the corresponding payments of principal of,
premium, if any, and interest on the Bonds corresponding to such
First Mortgage Bonds when such payments become due, the Company
will pay the amounts required from time to time to make up any
such deficiency."
(b) Section 5.5, Section 5.6 and Section 5.7 are hereby added to the
end of Article V of the Original Agreement to read as follows:
"Section 5.5. First Mortgage Bonds. The Company shall
execute and deliver to the Trustee, as assignee of the Issuer,
its First Mortgage Bonds. The form of the First Mortgage Bonds
will be substantially as set forth in the Company's Supplemental
Indenture to its Mortgage executed and delivered to the Trustee
on the effective date of this First Amendment."
"Section 5.6. Payment of the Bonds from Payments of the
First Mortgage Bonds and Other Amounts. Payments of principal of,
and premium, if any, and interest on, the First Mortgage Bonds by
the Company to the Trustee, as assignee of the Issuer, shall
constitute payments of such amounts on the loan under Section
5.1(a). The Bonds shall be payable from payments made by the
Company to the Trustee of principal and interest on the First
Mortgage Bonds delivered hereunder. Payments of principal of or
premium, if any, or interest on, the Bonds with moneys held under
the Indenture for such payment shall be deemed to be like
payments with respect to the First Mortgage Bonds. The
obligations of the Company to make payments under the First
Mortgage Bonds shall be absolute and unconditional. Whenever the
Bonds are redeemable in whole or in part, the Issuer will redeem
the same upon the request of the Company, and the
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Company covenants and agrees to pay an amount equal to the
applicable redemption price of the Bonds as a prepayment of
principal of and interest due on the First Mortgage Bonds. If the
Company prepays the First Mortgage Bonds, the Company's
obligations under Section 5.1 will be satisfied and there will be
a corresponding redemption of the Bonds. Whenever payment or
provision therefor has been made in respect of the principal of
or interest on all or any portion of the Bonds in accordance with
the Indenture (whether at maturity or upon redemption or
acceleration), the First Mortgage Bonds shall be deemed paid to
the extent such payment or provision therefor has been made and
is considered to be a payment of principal or interest on the
Bonds. If the Bonds or any portion thereof are thereby deemed
paid in full, First Mortgage Bonds in a principal amount equal to
the principal amount of the Bonds so deemed to be paid shall be
cancelled and returned to the Company. Subject to the foregoing
or unless the Company is entitled to a credit under this Loan
Agreement or the Indenture, all payments shall be in the full
amount required under the First Mortgage Bonds.
The Issuer, by the terms of the Indenture, shall require the
Trustee to notify in writing the Mortgage Trustee of all payments
or credits with respect to the First Mortgage Bonds.
All First Mortgage Bonds shall equally and ratably secure
all outstanding Bonds."
"Section 5.7. Assignment of Issuer's Rights to First
Mortgage Bonds. As security for the payment of its Bonds, the
Issuer hereby pledges and assigns to the Trustee the First
Mortgage Bonds and the right to receive payments thereunder. The
Issuer directs the Company, and the Company agrees, to pay to the
Trustee at its principal corporate trust office all payments on
the First Mortgage Bonds, and other payments due and payable to
the Trustee hereunder. The Company will make payments directly to
the Trustee without defense or set-off by reason of any dispute
between the Company and the Trustee or the Issuer. The Issuer
hereby agrees that the Trustee as assignee may enforce any and
all rights and remedies hereunder, but retains the right to also
proceed in its own name against the Company for the enforcement
of the specific performance of any obligation of the Company
under Sections 5.2, 7.2 and 9.3; provided, that in any such
action seeking specific performance, the Issuer shall have no
rights with respect to the First Mortgage Bonds and in such event
the obligation of the Company to make the payments required to
repay the loan hereunder and the purchase price for the Bonds and
payments
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required under the First Mortgage Bonds shall remain
unconditional as provided in Section 5.4.
The Issuer and the Company covenant and agree that the First
Mortgage Bonds will at all times be (i) in fully registered (both
principal and interest) form; (ii) registered in the name of the
Trustee; (iii) non-transferable except as provided in the
Mortgage; and (iv) appropriately marked to indicate clearly the
restrictions on the transfer thereof imposed by this Loan
Agreement."
Section 2.02. Amendments to Article VI of the Original Agreement. (a)
Clause (b)(i) of Section 6.1 of the Original Agreement is hereby amended to read
as follows:
"(b) (i) the surviving, resulting or transferee legal entity
is organized and existing under the laws of the United States, a
state thereof or the District of Columbia, and (if not the
Company) assumes in writing all the obligations of the Company
under this Loan Agreement, the Mortgage and the First Mortgage
Bonds and"
(b) Section 6.7 of the Original Agreement is hereby deleted.
Section 2.03. Amendment to Section 9.1 of the Original Agreement. (a)
The first paragraph of Section 9.1 of the Original Agreement is hereby amended
to read as follows:
"Whenever any Event of Default under the Indenture has
occurred and is continuing, the Trustee may take whatever action
may appear necessary or desirable to collect the payments then
due and to become due or to enforce performance of any agreement
of the Company in this Loan Agreement or in the First Mortgage
Bonds."
(b) The last paragraph of Section 9.1 of the Original Agreement is
hereby amended to read as follows:
"Except as may otherwise be provided under the Mortgage,
nothing in this Loan Agreement shall be construed to permit the
Issuer, the Trustee, any Bondholder or any receiver in any
proceeding brought under the Indenture to take possession of or
exclude the Company from possession of the Project by reason of
the occurrence of an Event of Default."
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ARTICLE III
MISCELLANEOUS
Section 3.01. Agreement Confirmed. Except as amended by this First
Amendment, all of the provisions of the Original Agreement shall remain in full
force and effect, and from and after the effective date of this First Amendment
shall be deemed to have been amended as herein set forth.
Section 3.02. Severability. If any provision of this First Amendment shall
be held or deemed to be or shall, in fact, be inoperative or unenforceable as
applied in any particular case in any jurisdiction or jurisdictions or in all
jurisdictions, or in all cases because it conflicts with any other provision or
provisions hereof or any constitution or statute or rule of public policy, or
for any other reason, such circumstances shall not have the effect of rendering
the provision in question inoperative or unenforceable in any other case or
circumstance, or of rendering any other provision or provisions herein contained
invalid, inoperative, or unenforceable to any extent whatever.
Section 3.03. Counterparts. This First Amendment may be simultaneously
executed in several counterparts, each of which shall be an original and all of
which shall constitute but one and the same instrument.
Section 3.04. Applicable Provisions of Law. This First Amendment shall be
governed by and construed in accordance with the laws of the State of Missouri.
Section 3.05. Effective Date. This First Amendment shall become effective
on the date the Trustee has received the consent of the Trustee to the execution
hereof.
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IN WITNESS WHEREOF, the Issuer and the Company have caused this First
Amendment to be executed in their respective corporate names, and the Issuer has
caused its seal to be hereunto affixed and attested by its duly authorized
officer, all as of the date first above written.
STATE ENVIRONMENTAL IMPROVEMENT AND
ENERGY RESOURCES AUTHORITY
By: /s/ Charles D. Banks
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Chairman
[SEAL]
ATTEST:
By: /s/ Deron L. Cherry
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Secretary
UNION ELECTRIC COMPANY, DBA AMERENUE
By: /s/ Jerre E. Birdsong
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Title: Vice President and Treasurer
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CONSENT OF THE TRUSTEE
Pursuant to Section 10.4 of the Loan Agreement between the State
Environmental Improvement and Energy Resources Authority of the State of
Missouri (the "Issuer") and Union Electric Company dba AmerenUE (the "Company"),
dated as of December 1, 1991, UMB Bank & Trust, N.A., successor to State Street
Bank and Trust Company of Missouri, N.A., as Trustee, hereby consents to the
execution and delivery of the First Amendment to Loan Agreement dated as of
February 1, 2004 between the Issuer and the Company.
UMB BANK & TRUST, N.A., successor to State
Street Bank and Trust Company of Missouri,
N.A.
By: /s/ R.A. Dengler
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Its Authorized Officer
Date: March 26, 2004