Exhibit 4.12
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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
$50,000,000
State Environmental Improvement and Energy Resources Authority
Environmental Improvement Revenue Refunding Bonds
(Union Electric Company Project)
Series 1998B
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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...........................................................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 September 4, 1998 the Issuer issued its Environmental
Improvement Revenue Refunding Bonds (Union Electric Company Project) Series
1998B (the "Bonds") in the original aggregate principal amount of $50,000,000
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