Exhibit 4.11
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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 September 1, 1998
$60,000,000
State Environmental Improvement and Energy Resources Authority
Environmental Improvement Revenue Refunding Bonds
(Union Electric Company Project)
Series 1998A
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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............................................................................2
Section 1.01. Definitions of Terms...................................................................2
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.....................................6
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 Section 10.4 of the Original Agreement...................................8
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...........................................................9
Section 3.05. Effective Date.........................................................................9
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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 September 4, 1998 the Issuer issued its Environmental
Improvement Revenue Refunding Bonds (Union Electric Company Project) Series
1998A (the "Bonds") in the original aggregate principal amount of $60,000,000
pursuant to an Indenture of Trust dated as of September 1, 1998 (the "Original
Indenture") by and between the Issuer and UMB Bank & Trust, N.A., successor to
State Street Bank and Trust Company of Missouri, N.A. (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 September 1, 1998
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 add
provisions relating to a bond insurance policy for the Bonds and to permit the
delivery to the Trustee by the Company of its mortgage bonds to further secure
the Bonds; and
WHEREAS, Section 11.01 of the Original Indenture provides that the Issuer
and the Company may, without notice to or the consent of any Bondholder, enter
into an agreement supplemental to the Original Agreement to make changes in
connection with any authorized amendment or supplement to the Indenture, 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 11.01 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
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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 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
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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 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) or of the purchase
price for the Bonds under Section 5.1(b). 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, or the purchase price for, 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
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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 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;
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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 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) A new sentence is hereby added to the end of Section 6.2 of
the Original Agreement to read as follows:
"A copy of each such report furnished to the Trustee
will be filed with 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, 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.
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(e) Section 6.9 of the Original Agreement is hereby amended to
read as follows:
"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."
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."
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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."
(b) Section 10.11 is hereby added to the end of Article X of the Original
Agreement to read as follows:
"Section 10.11. 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 September 1, 1998, 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/ Rebecca A. Dengler
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Its Authorized Officer
Date: February 24, 2004