Exhibit 10.4
FIRST AMENDMENT TO REVOLVING CREDIT AGREEMENT
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THIS FIRST AMENDMENT TO REVOLVING CREDIT AGREEMENT (this "Amendment")
is made and entered into as of April 16, 2003, by and between THE LACLEDE
GROUP, INC., a Missouri corporation ("Borrower"), and U.S. BANK NATIONAL
ASSOCIATION, a national banking association ("Lender"), and has reference to
the following facts and circumstances (the "Recitals"):
A. Borrower and Lender previously entered into the Revolving Credit
Agreement dated as of June 13, 2002 (as amended, the "Agreement"; all
capitalized terms used and not otherwise defined in this Amendment shall have
the respective meanings ascribed to them in the Agreement as amended by this
Amendment).
B. Borrower and Lender desire to amend the Agreement in the manner
hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Borrower and Lender hereby agree as follows:
1. RECITALS. The Recitals are true and correct, and, together with
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the defined terms set forth therein, are incorporated herein by this
reference.
2. AMENDMENTS TO AGREEMENT. The Agreement is amended as follows:
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(a) The first "WHEREAS" paragraph on page 1 of the Agreement is
deleted and substituted with the following:
"WHEREAS, Borrower has applied for a revolving credit
facility from Lender consisting of revolving credit loans and
letters of credit in an aggregate principal amount of up to
$20,000,000, including a $5,000,000 letter of credit subfacility;
and"
(b) The following definitions are added to Section 1.01 of the
Agreement:
"Consolidated Capitalization shall mean, as of the date of
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any determination thereof, the sum of Consolidated Debt as of such
date, plus Consolidated Net Worth as of such date, all determined
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on a consolidated basis and in accordance with GAAP."
"Consolidated Capitalization Ratio shall mean, as of the date
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of any determination thereof, the ratio (expressed as a
percentage) of Consolidated Debt as of such date to Consolidated
Capitalization as of such date, all determined on a consolidated
basis and in accordance with GAAP."
"Consolidated Debt shall mean, as of the date of any
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determination thereof, all Debt of LGC and its Subsidiaries as of
such date, determined on a consolidated basis and in accordance
with GAAP."
"Consolidated Net Worth shall mean, as of the date of any
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determination thereof, the amount of the capital stock accounts
(net of treasury stock, at cost) of LGC and its Subsidiaries as of
such date plus (or minus in the case of a deficit) the surplus and
retained earnings of LGC and its Subsidiaries as of such date, all
determined on a consolidated basis and in accordance with GAAP."
"Debt shall mean, as of the date of determination thereof,
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the sum of (a) all indebtedness, liabilities and/or obligations of
LGC or any of its Subsidiaries for borrowed money or that have
been incurred in connection with the purchase or other acquisition
of property (other than unsecured trade accounts payable incurred
in the ordinary course of business), plus (b) all leases of
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property, whether real and/or personal, by LGC or any of its
Subsidiaries as lessee(s), that in accordance with GAAP are
required to be capitalized on the balance sheet of such entity,
plus (c) the aggregate undrawn face amount of all Letters of
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Credit and/or surety bonds issued for the account and/or upon the
application of LGC or any of its Subsidiaries together with all
unreimbursed drawings with respect thereto, plus (d) all
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guarantees by LGC or any of its Subsidiaries of Debt of others."
"Letter of Credit and Letters of Credit shall have the
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meanings ascribed to these terms in Section 2.18(a)."
"Letter of Credit Application shall mean Lender's standard
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form of application and agreement for irrevocable standby letter
of credit, or Lender's standard form of application and agreement
for irrevocable commercial letter of credit, as the case may be,
in either case executed by Borrower, or a Subsidiary of Borrower,
as applicant and account party, and delivered to Lender pursuant
to Section 2.18(a), as the same may from time to time be amended,
modified, extended, renewed or restated."
"LGC shall mean Laclede Gas Company, a Missouri corporation,
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and a Subsidiary of Borrower."
(c) The definition of "Total Revolving Credit Outstandings" in Section
1.01 of the Agreement is deleted and substituted with the following:
"Total Revolving Credit Outstandings shall mean, as of any
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date, the sum of (a) the aggregate principal amount of all Loans
outstanding as of such date, plus (b) the aggregate undrawn face
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amount of all Letters of Credit outstanding as of such date plus
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(c) all unreimbursed drawings with respect to all Letters of
Credit."
(d) The following provision is added to the Agreement as Section 2.18:
"2.18 Letters of Credit. (a) Subject to the terms and
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conditions of this Agreement and so long as no Default or Event of
Default has occurred and is continuing, during the Revolving
Credit Period, Lender agrees to issue irrevocable commercial
and/or standby letters of credit for the account of Borrower
and/or any Subsidiary (individually, a "Letter of Credit", and
collectively, "Letters of Credit") in an amount and for the term
specifically requested by Borrower by notice in writing to Lender
at least three (3) Business Days prior to the requested issuance
thereof; provided, however, that: (i) Borrower shall have executed
and delivered to Lender a Letter of Credit Application with
respect to such Letter of Credit; (ii) the term of any such Letter
of Credit shall not extend beyond the earlier of (A) the date one
(1) year after the date of issuance thereof, or (B) the last day
of the Revolving Credit Period; (iii) any Letter of Credit may
only be utilized to guaranty the payment of obligations of
Borrower or a Subsidiary to third parties; (iv) Total Revolving
Credit Outstandings shall not as of any date exceed Lender's
Revolving Credit Commitment; (v) the sum of the aggregate undrawn
face amount of all outstanding Letters of Credit plus all
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unreimbursed drawings with respect thereto shall not as of any
date exceed Five Million Dollars ($5,000,000.00); and (vi) the
text of any such Letter of Credit is provided to Lender no less
than three (3) Business Days prior to the
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requested issuance date, which text must be acceptable to Lender
in its sole and absolute discretion.
(b) The payment of drafts under each Letter of Credit shall
be made in accordance with the terms thereof and, in that
connection, Lender shall be entitled to honor any drafts and
accept any documents presented to it by the beneficiary of such
Letter of Credit in accordance with the terms of such Letter of
Credit and the related Letter of Credit Application and believed
in good faith by Lender to be genuine. Lender shall not have any
duty to inquire as to the accuracy or authenticity of any draft or
other drawing document that may be presented to it other than the
duties contemplated by the applicable Letter of Credit
Application.
(c) In the event of any payment by Lender of a draft
presented under a Letter of Credit, Borrower agrees to pay to
Lender in immediately available funds at the time of such drawing
an amount equal to the sum of such drawing plus the negotiation,
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processing and other fees related thereto, as may be agreed
between Lender and Borrower from time to time (the initial fee
schedule is attached to the First Amendment to Revolving Credit
Agreement dated as of April __, 2003, as Exhibit A thereto).
Borrower hereby authorizes Lender to charge or cause to be charged
one or more of Borrower's deposit accounts at Lender to the extent
there are balances of immediately available funds therein, in an
aggregate amount equal to the sum of such drawing plus the
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negotiation, processing and other fees related thereto as
described in Exhibit A to the First Amendment to Revolving Credit
Agreement dated as of April __, 2003, as amended, and Borrower
agrees to pay the amount of any such drawing (and/or Lender's
customary negotiation, processing and other fees related thereto)
not so charged prior to the close of business of Lender on the day
of such drawing. In the event any payment under a Letter of Credit
is made by Lender prior to receipt of payment from Borrower, such
payment by Lender shall constitute a request by Borrower for a
Prime Loan under Sections 2.01 and 2.02 above (and Lender will
make such Prime Loan to Borrower regardless of whether any Default
or Event of Default under this Agreement has occurred and is
continuing and regardless of whether such Prime Loan would
otherwise be permitted under the requirements of this Agreement)
and the proceeds of such Prime Loan shall be paid directly to
Lender and applied by Lender to the payment of any amounts owed by
Borrower to Lender under this Section 2.18.
(d) Borrower hereby further agrees to pay to the order of
Lender with respect to each Letter of Credit: (i) a nonrefundable
commitment fee at an annual rate of 725/1000 Percent (.725%)
(calculated on an actual day, 360-day year basis) on the face
amount (taking into account any scheduled increases or decreases
therein during the period in question) of each Letter of Credit,
due and payable quarterly, in arrears, on the first day of each
fiscal quarter; and (ii) a nonrefundable issuance fee, a
nonrefundable negotiation fee and such other fees as may be
charged by Lender from time to time in accordance with Lender's
published schedule of fees in effect from time to time, which fees
shall be due and payable on demand by Lender.
(e) Notwithstanding any provision contained in this Agreement
to the contrary, if any Letters of Credit remain outstanding on
the last day of the Revolving Credit Period, Borrower shall, on or
before 12:00 noon (St. Louis time) on the last day of the Revolving
Credit Period, (i) surrender the originals of the applicable
Letter(s) of Credit to Lender for cancellation, or (ii) provide
Lender with cash collateral (or other collateral acceptable to
Lender in its sole and absolute discretion) in an amount at least
equal to the aggregate undrawn face amount of all outstanding
Letter(s) of Credit plus all unreimbursed drawings with respect
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thereto, and execute and deliver to
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Lender such agreements as Lender may require to grant Lender a
first priority perfected security interest in such cash or other
collateral. Any such cash collateral received by Lender pursuant
to this Section 2.18(e) shall be held by Lender in a separate
account at Lender appropriately designated as a cash collateral
account in relation to this Agreement and the Letters of Credit
and retained by Lender as collateral security for the payment of
Borrower's Obligations. Cash amounts delivered to Lender pursuant
to the foregoing requirements of this Section 2.18(e) shall be
invested, at the request and for the account of Borrower in
investments of a type and nature and with a term acceptable to
Lender. Such amounts, including in the case of cash amounts
invested in the manner set forth above, shall not be used by
Lender to pay any amounts drawn or paid under or pursuant to any
Letter of Credit, but may be applied to reimburse Lender for
drawings or payments under or pursuant to such Letters of Credit
which Lender has paid, or if no such reimbursement is required to
the payment of such of the other Borrower's Obligations as Lender
shall determine. Any amounts remaining in any cash collateral
account established pursuant to this Section 2.18(e) after the
payment in full of all of the Borrower's Obligations and the
expiration or cancellation of all of the Letters of Credit shall
be returned to Borrower (after deduction of Lender's reasonable
expenses, if any)."
(e) Section 5.01(f) of the Agreement is deleted and substituted with
the following:
"(f) Maximum Consolidated Capitalization Ratio. LGC will at
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all times maintain a Consolidated Capitalization Ratio of not more
than Seventy Percent (70%)."
3. COSTS AND EXPENSES. Borrower hereby agrees to reimburse Lender
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upon demand for all out-of-pocket costs and expenses (including, without
limitation, reasonable attorneys' fees and expenses) incurred by Lender in
the preparation, negotiation and execution of this Amendment and any and all
other agreements, documents, instruments and/or certificates relating to the
amendment of Borrower's existing credit facilities with Lender. All of the
obligations of Borrower under this paragraph shall survive the payment of
Borrower's Obligations and the termination of the Agreement.
4. REFERENCES TO THIS AGREEMENT. All references in the Agreement to
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"this Agreement" and any other references of similar import shall henceforth
mean the Agreement as amended by this Amendment.
5. FULL FORCE AND EFFECT. Except to the extent specifically amended
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by this Amendment, all of the terms, provisions, conditions, covenants,
representations and warranties contained in the Agreement shall be and
remain in full force and effect and the same are hereby ratified and
confirmed.
6. BENEFIT. This Amendment shall be binding upon and inure to the
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benefit of Borrower and Lender and their respective successors and assigns,
except that Borrower may not assign, transfer or delegate any of its rights
or obligations under the Agreement as amended by this Amendment.
7. REPRESENTATIONS AND WARRANTIES. Borrower hereby represents and
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warrants to Lender that:
(a) the execution, delivery and performance by Borrower of this
Amendment are within the corporate powers of Borrower, have been duly
authorized by all necessary corporate action and require no action by
or in respect of, consent of or filing or recording with, any
governmental or regulatory body, instrumentality, authority, agency or
official or any other Person;
(b) the execution, delivery and performance by Borrower of this
Amendment do not conflict
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with, or result in a breach of the terms, conditions or provisions of,
or constitute a default under or result in any violation of, the terms
of the Articles of Incorporation or Bylaws of Borrower, any applicable
law, rule, regulation, order, writ, judgment or decree of any court or
governmental or regulatory body, instrumentality authority, agency or
official or any agreement, document or instrument to which Borrower is
a party or by which Borrower or any of its property is bound or to
which Borrower or any of its property is subject;
(c) this Amendment has been duly executed and delivered by
Borrower and constitutes the legal, valid and binding obligation of
Borrower enforceable against Borrower in accordance with its terms,
except as such enforceability may be limited by (i) applicable
bankruptcy, insolvency or similar laws affecting the enforcement of
creditors' rights generally and (ii) general principles of equity
(regardless of whether such enforceability is considered in a
proceeding in equity or at law);
(d) all of the representations and warranties made by Borrower in
the Agreement and/or in any of the other Transaction Documents are true
and correct in all material respects on and as of the date of this
Amendment as if made on and as of the date of this Amendment; and
(e) as of the date of this Amendment, no Default or Event of
Default under or within the meaning of the Agreement has occurred and
is continuing.
8. RELEASE. Borrower hereby unconditionally releases, acquits,
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waives, and forever discharges Lender and its successors, assigns,
directors, officers, agents, employees, representatives and attorneys from
any and all liabilities, claims, causes of action or defenses, if any, and
for any action taken or for any failure to take any action, existing at any
time prior to the execution of this Amendment.
9. INCONSISTENCY. In the event of any inconsistency or conflict
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between this Amendment and the Agreement, the terms, provisions and
conditions contained in this Amendment shall govern and control.
10. MISSOURI LAW. This Amendment shall be governed by and construed in
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accordance with the substantive laws of the State of Missouri (without
reference to conflict of law principles).
11. NOTICE REQUIRED BY SECTION 432.045 R.S. MO. ORAL AGREEMENTS OR
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COMMITMENTS TO LOAN MONEY, EXTEND CREDIT OR TO FORBEAR FROM ENFORCING
REPAYMENT OF A DEBT INCLUDING PROMISES TO EXTEND OR RENEW SUCH DEBT ARE NOT
ENFORCEABLE. TO PROTECT YOU (BORROWER(S)) AND US (CREDITOR) FROM
MISUNDERSTANDING OR DISAPPOINTMENT, ANY AGREEMENTS WE REACH COVERING SUCH
MATTERS ARE CONTAINED IN THIS WRITING WHICH IS THE COMPLETE AND EXCLUSIVE
STATEMENT OF THE AGREEMENT BETWEEN US, EXCEPT AS WE MAY LATER AGREE IN
WRITING TO MODIFY IT.
12. CONDITIONS PRECEDENT. Notwithstanding any provision contained in
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this Amendment to the contrary, this Amendment shall not be effective unless
and until Lender shall have received the following, all in form and
substance acceptable to Lender:
(a) this Amendment, duly executed by Borrower;
(b) a Consent of Guarantor duly executed by SM&P;
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(c) a copy of resolutions of the Board of Directors of Borrower, duly
adopted, which authorize the execution, delivery and performance of
this Amendment;
(d) an incumbency certificate, executed by the Secretary of Borrower,
which shall identify by name and title and bear the signatures of all
of the officers of Borrower executing this Amendment;
(e) a certificate of corporate good standing of Borrower issued by the
Secretary of State of the State of Missouri, or other evidence of good
standing satisfactory to Lender;
(f) a copy of resolutions of the Board of Directors of SM&P, duly
adopted, which authorize the execution, delivery and performance of the
Consent of Guarantor;
(g) an incumbency certificate, executed by the Secretary of SM&P, which
shall identify by name and title and bear the signatures of all of the
officers of Borrower executing the Consent of Guarantor;
(h) a certificate of corporate good standing of SM&P issued by the
Secretary of State of the State of Indiana, or other evidence of good
standing satisfactory to Lender; and
(i) such other documents and information as reasonably requested by
Lender.
IN WITNESS WHEREOF, Borrower and Lender have executed this Amendment as
of the day and year first above written.
(SIGNATURES ON FOLLOWING PAGE)
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SIGNATURE PAGE-
FIRST AMENDMENT TO REVOLVING CREDIT AGREEMENT
Borrower:
THE LACLEDE GROUP, INC.
By:
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Xxxxxx X. Xxxxxxxx,
Treasurer and Assistant Secretary
Lender:
U.S. BANK NATIONAL ASSOCIATION
By:
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Xxxx X. Xxxxxxx, Vice President
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EXHIBIT A
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Fees Applicable to Standby Letters of Credit Issued Pursuant to the First
Amendment to Revolving Credit Agreement dated as of April 16, 2003, between
The Laclede Group, Inc. and U.S. Bank National Association
Issuance (calculated on daily rate/360 day year,
this fee is in addition to any processing or renewal fees) 0.725%
Electronic Processing
Issuance/Renewal (charged per Letter of Credit annually) $50.00
Amendment (monetary terms) $50.00
Amendment (non-monetary terms) $50.00
Manual Processing
Issuance/Renewal (charged per Letter of Credit annually) $50.00
Amendment (monetary terms) $50.00
Amendment (non-monetary terms) $50.00
Rush Surcharge (for issuance in fewer than 3 Business Days;
in addition to issuance fees) $100.00
Auto-reduction $50.00
Exam of Documents (per set of documents/draft for beneficiary account) $200.00
Discrepancy Fee (per set of documents/draft for beneficiary account) $50.00
Other (as may be mutually agreed between Borrower and Lender)
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