Exhibit 4.14
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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 March 1, 2000
$186,500,000
State Environmental Improvement and Energy Resources Authority
Environmental Improvement Revenue Refunding Bonds
(Union Electric Company Project)
$63,500,000 Series 2000A
$63,000,000 Series 2000B
and
$60,000,000 Series 2000C
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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. Amendments to Article IV of the Original Agreement.....................................2
Section 4.07. Credit Facility........................................................................2
Section 2.02. Amendment to Section 5.01 of the Original Agreement....................................6
Section 2.03. Amendment to Article VII of the Original Agreement.....................................6
Section 2.04 Amendment to Section 8.01 of the Original Agreement....................................6
ARTICLE III MISCELLANEOUS..........................................................................7
Section 3.01. Agreement Confirmed....................................................................7
Section 3.02. Severability...........................................................................7
Section 3.03. Counterparts...........................................................................7
Section 3.04. Applicable Provisions of Law...........................................................7
Section 3.05. Effective Date.........................................................................7
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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 March 9, 2000 the Issuer issued its Environmental Improvement
Revenue Refunding Bonds (AmerenUE Project) Series 2000A, Series 2003B and Series
2003C (the "Bonds") in the original aggregate principal amount of $186,500,000
pursuant to a Trust Indenture dated as of March 1, 2000 (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 March 1, 2000 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 Trust Indenture of even date herewith (the "Indenture") in
connection with a Change of Credit Facility, i.e., to secure the Bonds with the
Bond Insurance Policy and the Company's First Mortgage Bonds;
WHEREAS, Section 12.05(j) 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 a Change of Credit Facility, and Section 9.04 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 12.05(j) of the Original Indenture and
Section 9.04 of the Original Agreement, in order to amend the Original Agreement
in connection with a Change of Credit Facility;
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 IV of the Original Agreement. (a) There
is hereby added a new paragraph (c) to the end of Section 4.01 of the Original
Agreement to read as follows:
"(c) 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 4.07 of the Original Agreement is hereby amended to read as
follows:
"Section 4.07. Credit Facility. (a) On the Issue Date, there
was no Credit Facility. The Company may at any time provide for a
Change of Credit Facility, provided that the Company delivers to
the Trustee, the Auction Agent and the Remarketing Agent, not
less than five Business Days prior to the date on which the
Trustee must notify the Owners of the applicable series of the
Bonds of a Change of Credit Facility pursuant to Section 2.18 of
the Indenture and prior to the effective date of any such Change
of Credit Facility, the following:
(1) a notice which (A) states the effective date of the
Change of Credit Facility, (B) describes the terms of
the Change of Credit Facility, and (C) directs the
Trustee to give notice pursuant to Section 2.18(a) of
the Indenture;
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(2) a Favorable Opinion of Bond Counsel with respect to
such Change of Credit Facility and stating, in effect,
that such change of Credit Facility is authorized under
this Agreement;
(3) a certificate of an Authorized Company Representative
as to whether the applicable series of Bonds are then
rated by either Moody's or S&P, or both; and
(4) written evidence from Moody's, if such Bonds are then
rated by Moody's, and from S&P, if such Bonds are then
rated by S&P, in each case to the effect that such
rating agency has reviewed the proposed Change of
Credit Facility and that such Change of Credit Facility
will not, by itself, result in a reduction, suspension
or withdrawal of its rating or ratings of such Bonds.
(b) In lieu of satisfying the requirements of subsection (a)
above, the Company may provide for a Change of Credit Facility at any
time that the applicable series of Bonds are subject to optional
redemption pursuant to Section 4.02(b) of the Indenture, provided that
the Company delivers to the Trustee, the Auction Agent and the
Remarketing Agent not less than 30 days before the effective date of
the Change of Credit Facility:
(1) a notice which (A) states the effective date of the
Change of Credit Facility, (B) describes the terms of
the Change of Credit Facility, (C) directs the Trustee
to give notice pursuant to Section 2.18 of the
Indenture that the Bonds of the applicable series are
subject to mandatory purchase, in whole, on or before
the effective date of the Change of Credit Facility in
accordance with Section 3.02(a)(iii) of the Indenture,
and (D) directs the Trustee to take any other action as
shall be necessary for the Trustee to take to effect
the Change of the Credit Facility; and
(2) on or before the effective date of the Change of Credit
Facility, the Company shall furnish to the Trustee a
Favorable Opinion of Bond Counsel satisfying the
requirements of Section 4.07(a)(2) above.
(c) The Company may provide for one or more extensions of a
Credit Facility for any period commencing after its then-current
expiration date without complying with the foregoing provisions of
this Section.
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(d) The Company may rescind its election to make a Change of
Credit Facility at any time prior to the effective date thereof."
(c) Section 4.09, Section 4.10 and Section 4.11 are hereby added to the
end of Article IV of the Original Agreement to read as follows:
"Section 4.09. 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 4.10. 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
4.01(a). Each series of the Bonds shall be payable from payments
made by the Company to the Trustee of principal and interest on
the corresponding series of First Mortgage Bonds delivered
hereunder. Payments of principal of or premium, if any, or
interest on, each series of the Bonds with moneys held under the
Indenture for such payment shall be deemed to be like payments
with respect to the corresponding series of First Mortgage Bonds.
The obligations of the Company to make payments under the First
Mortgage Bonds shall be absolute and unconditional. Whenever a
series of the Bonds is 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 such Bonds as a prepayment of
principal of and interest due on the applicable series of First
Mortgage Bonds. If the Company prepays any series of the First
Mortgage Bonds, the Company's obligations under Section 4.01 will
be satisfied and there will be a corresponding redemption of the
applicable series of Bonds. Whenever payment or provision
therefor has been made in respect of the principal of or interest
on all or any portion of any series of the Bonds in accordance
with the Indenture (whether at maturity or upon redemption or
acceleration), the applicable series of 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 any series of the Bonds or
any portion thereof are thereby deemed paid in full, First
Mortgage Bonds of the applicable series in a principal amount
equal to the principal
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amount of such 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 Agreement or the
Indenture, all payments shall be in the full amount required
under the First Mortgage Bonds.
If the Company has deposited moneys and/or U.S. Government
Obligations and obtained the release of a series of First
Mortgage Bonds pursuant to Section 8.01 and Section 8.02 of the
Indenture, and thereafter the corresponding series of Bonds
become subject to mandatory redemption upon a determination of
taxability and there are insufficient moneys available under the
Indenture to effect such redemption, the Company covenants and
agrees to pay to the Trustee under the Indenture any such
deficiency amount as is necessary to redeem such Bonds on the
date fixed for redemption.
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."
"Section 4.11. 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 4.04, 4.06(a), 5.03, 5.06, 5.07, 5.08 and 7.05;
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
payments required under the First Mortgage Bonds shall remain
unconditional as provided in Section 4.01.
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
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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 Agreement."
Section 2.02. Amendment to Section 5.01 of the Original Agreement. Clause
(I) Subsection (ii) of Section 5.01 of the Original Agreement is hereby amended
to read as follows:
"(I) such entity is qualified to do business in the State and has
assumed in writing all of the obligations of the Company under
this Agreement, the Tax Agreement, the Mortgage and the First
Mortgage Bonds and"
Section 2.03. Amendment to Article VII of the Original Agreement. (a)
Section 7.01(b) of the Original Agreement is hereby amended by the following
proviso, to be added at the end of Section 7.01(b):
"; and further provided, however, that failure pursuant to
Section 4.10 shall be an automatic Event of Default upon the
expiration of any grace period applicable to the First Mortgage
Bonds under the Mortgage."
(b) There is hereby added a new Section 7.01(e) at the end of Section 7.01
to read as follows:
"(e) the occurrence of an acceleration for any reason of the
maturity of all first mortgage bonds issued under the Mortgage."
(c) The following phrase is hereby added to the end of Section 7.03(a) of
the Original Agreement as follows:
"and 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 the First Mortgage Bonds."
Section 2.04. Amendment to Section 8.01 of the Original Agreement. The
first sentence of Section 8.01 of the Original Agreement is hereby amended to
include the following phrase at the end of such sentence:
", and that a corresponding prepayment has been made or will be
made, by redemption or otherwise, of the First Mortgage Bonds."
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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 March 1, 2000, 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 17, 2004