Exhibit 4.10
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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, 1992
$47,500,000
State Environmental Improvement and Energy Resources Authority
Environmental Improvement Revenue Refunding Bonds
(Union Electric Company Project)
Series 1992
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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. Amendment to Article III of the Original Agreement.....................................2
Section 2.02. Amendments to Article V of the Original Agreement......................................2
Section 2.03. Amendments to Article VI of the Original Agreement.....................................5
Section 2.04. Amendment to Section 8.1 of the Original Agreement.....................................7
Section 2.05. Amendments to Article IX of the Original Agreement.....................................7
Section 2.06. Amendments to Article X of the Original Agreement......................................7
ARTICLE III MISCELLANEOUS..........................................................................8
Section 3.01. Agreement Confirmed....................................................................8
Section 3.02. Severability...........................................................................8
Section 3.03. Counterparts...........................................................................8
Section 3.04. Applicable Provisions of Law...........................................................8
Section 3.05. Effective Date.........................................................................8
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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 3, 1992 the Issuer issued its Environmental
Improvement Revenue Refunding Bonds (Union Electric Company Project) Series 1992
(the "Bonds") in the original aggregate principal amount of $47,500,000 pursuant
to an Indenture of Trust dated as of December 1, 1992 (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, 1992
by and between the Issuer and the Company (the "Original Agreement"); and
WHEREAS, the Original Indenture is being amended and restated by 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 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. Amendment to Article III of the Original Agreement. The last
clause of Section 3.5 of the Original Agreement is hereby amended to read as
follows:
", provided that the Trustee and the Bond Insurer receive a
Favorable Opinion of Tax Counsel prior to such abandonment."
Section 2.02. Amendments to Article V of the Original Agreement. (a)
Subsection 5.1(a) of the Original Agreement is hereby amended to read as
follows:
"(a) The Company will repay the loan made to it under
Section 4.1 as follows: Before the close of business (local time
at the principal corporate office of the Registrar) on the day
before each day on which any payment of either principal of or
interest on the Bonds, or both, shall become due (whether at
maturity, or upon redemption or acceleration or otherwise), the
Company will pay, in immediately available funds, an amount
which, together with other moneys held by the Tender Agent or by
the Trustee under the Indenture and available therefor, will
enable the Registrar to make such payment in full in a timely
manner. If such day on which any payment shall become due is not
a Business Day, then the payment required by this Section shall
be made on or before the preceding Business Day. If the Company
defaults in any payment required by this Section, the Company
will pay interest (to the extent allowed by law) on such amount
until paid at the rate provided for in the Bonds."
(b) The last paragraph of Section 5.1 of the Original Agreement
is hereby amended to read as follows:
"All amounts payable under this Section by the Company are
assigned by the Issuer to the Trustee pursuant to the Indenture
for the benefit of the Bondholders and the Bond Insurer. The
Company consents to such assignment. Accordingly, the Company
will pay directly to the Registrar at its principal corporate
trust office all payments payable by the Company pursuant to this
Section."
(c) 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
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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."
(d) A new Subsection 5.2(d) is hereby added to the end of
Section 5.2 of the Original Agreement to read as follows:
"(d) Notwithstanding any provision herein to the
contrary, payment to the Bond Insurer of all amounts due
under the Insurance Agreement pursuant to the terms of the
Insurance Agreement."
(e) Section 5.3 of the Original Agreement is hereby amended to
read as follows:
"Section 5.3. Prepayments. The Company may at any time
prepay to the Registrar all or any part of the amounts
payable under Section 5.1. A prepayment will not relieve the
Company of its obligations under this Loan Agreement until
all the Bonds have been paid or provision for the payment of
all the Bonds has been made in accordance with the Indenture
and all amounts due the Bond Insurer have been paid. In the
event of a mandatory redemption of the Bonds, the Company
will prepay all amounts necessary for such redemption."
(f) Section 5.4 of the Original Agreement is hereby amended to
read as follows:
"Section 5.4. Obligations of Company Unconditional. The
Company agrees that the obligations of the Company to make
the payments required by Sections 5.1 and 5.3 and to perform
its other agreements contained in this Loan Agreement shall
be absolute and unconditional. Until the principal of and
interest on the Bonds shall have been fully paid, or
provision for the payment of the Bonds made in accordance
with the Indenture, and the Bond Insurer is paid in full,
the Company (a) will not suspend or discontinue any payments
provided for in Section 5.1, (b) will perform all its other
agreements in this Loan Agreement and (c) will not terminate
this Loan Agreement for any cause including any acts or
circumstances that may constitute failure of consideration,
destruction of or damage to the Project, commercial
frustration of purpose, any change in the laws of the United
States or of the State or any political subdivision of
either or any failure of the Issuer to perform any of its
agreements, whether express or implied, or any
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duty, liability or obligation arising from or connected with
this Loan Agreement."
(g) 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 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
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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 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 2.03. Amendments to Article VI of the Original Agreement. (a)
Section 6.1 of the Original Agreement is hereby amended to read as follows:
"Section 6.1. Maintenance of Existence. The Company
agrees that during the term of this Loan Agreement and so
long as any Bond is outstanding, it will maintain its
corporate existence, will continue to be a corporation in
good standing under the laws
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of the State, will not dissolve or otherwise dispose of all
or substantially all of its assets and will not consolidate
with or merge into another legal entity or permit one or
more other legal entities (other than one or more
subsidiaries of the Company) to consolidate with or merge
into it, or sell or otherwise transfer to another legal
entity all or substantially all its assets as an entirety
and dissolve, unless the Company's actions shall be
permitted under the terms of the Insurance Agreement and (a)
in the case of any merger or consolidation, the Company is
the surviving corporation, or (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 (ii) no event which constitutes, or
which with the giving of notice or the lapse of time or both
would constitute an Event of Default shall have occurred and
be continuing immediately after such merger, consolidation
or transfer."
(b) The last sentence of Section 6.2 of the Original Agreement is
hereby amended to read as follows:
"A copy of each such report, as well as each of its
quarterly reports to shareholders, will be filed with the
Issuer and the Bond Insurer."
(c) The second paragraph of Section 6.5 of the Original Agreement is
hereby amended to read as follows:
"The Company covenants and agrees to notify promptly
the Trustee, the Issuer and the Bond Insurer of the
occurrence of any event of which the Company has notice and
which event would require the Company to prepay the amounts
due hereunder because of a redemption upon a determination
of taxability."
(d) Section 6.7 of the Original Agreement is hereby deleted.
(e) Section 6.8 is hereby added to the Original Agreement to read as
follows:
"Section 6.8. Purchase of Bonds by the Company. The
Company shall not purchase or otherwise acquire Bonds
without the prior written consent of the Bond Insurer unless
the Company redeems or cancels such Bonds on the day of any
such purchase."
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Section 2.04. Amendment to Section 8.1 of the Original Agreement.
Section 8.1 of the Original Agreement is hereby amended to read as follows:
"The Company may assign its rights and obligations under
this Loan Agreement with the prior written consent of the
Issuer and the Bond Insurer, but no assignment will relieve
the Company from primary liability for any obligations under
this Loan Agreement."
Section 2.05. Amendments to Article IX 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, with the
consent of the Bond Insurer and shall, upon direction of the
Bond Insurer, 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."
(c) Section 9.2 of the Original Agreement is hereby amended to read
as follows:
"Section 9.2. Delay Not Waiver; Remedies. A delay or
omission by the Issuer, the Bond Insurer or the Trustee in
exercising any right or remedy accruing upon an Event of
Default shall not impair the right or remedy or constitute a
waiver of or acquiescence in the Event of Default. No remedy
is exclusive of any other remedy. All available remedies are
cumulative."
Section 2.06. Amendments to Article X of the Original Agreement.
(a) Section 10.4 of the Original Agreement is hereby amended to read as follows:
"After the issuance of the Bonds, this Loan Agreement
may not be effectively amended or terminated without the
written consent of the Trustee, the Bond Insurer and the
Tender Agent and in accordance with the provisions of the
Indenture."
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(b) Section 10.10 is hereby added to the end of Article X of the
Original Agreement to read as follows:
"Section 10.10. Third Party Beneficiary. The Bond
Insurer is a third party beneficiary of this Loan
Agreement."
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, 1992, 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.
UUMB 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