FIRST AMENDMENT TO AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
Exhibit
10.8
FIRST AMENDMENT TO AMENDED
AND RESTATED REVOLVING CREDIT AGREEMENT
THIS
FIRST AMENDMENT TO AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT (this “Amendment”) is made
and entered into as of March 31, 2008, by and between THE LACLEDE GROUP, INC., a
Missouri corporation (“Borrower”), and U.S. BANK NATIONAL
ASSOCIATION, formerly known as Firstar Bank, N.A., a national banking
association (“Lender”), and has
reference to the following facts and circumstances (the “Recitals”):
A. Borrower
and Lender executed the Amended and Restated Revolving Credit Agreement dated as
of August 4, 2005 (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), pursuant to which Borrower executed the Revolving Credit Note dated
August 4, 2005, payable to the order of Lender, in the principal amount of up to
$40,000,000 (as amended, the “Note”).
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 the defined terms set forth
therein, are incorporated herein by this reference.
2. Amendment
to Agreement. The Agreement is
amended as follows:
(a) The
definition of “Guaranty” in Section 1.01 of the Agreement is deleted and
substituted with the following:
“Guaranty” or “Guaranties”
shall mean the Guaranty dated as of August 4, 2005, executed by
Laclede
Energy
in favor of Lender, as the same may from time to time be amended, modified,
extended, renewed or
restated.”
(b) The
definition of “SM&P” in Section 1.01 of the Agreement and all references to
SM&P in the Agreement are deleted.
(c) Section
4.07 of the Agreement is deleted and replaced with the following:
4.07
Investment Company Act
of 1940; Public Utility Holding Company Act of 2005. Borrower
is
not an “investment company” as that term is defined in, and is not otherwise
subject to regulation
under,
the Investment Company Act of 1940, as amended. Borrower is a holding company
for which
compliance
with the accounting, record retention and reporting sections of the Public
Utility Holding
Company
Act of 2005 has been waived.
(d) Section
5.01(f) of the Agreement is deleted and replaced with the
following:
“(f) Stock and Assets of
Subsidiaries. Unless the prior written consent of Lender is
obtained,
Borrower will not create, incur or assume or suffer to be incurred or to exist
any lien on any of the common
stock of LGC, Laclede Energy, or any other Subsidiary, or on the inventory or
accounts receivable of LGC.”
3. Release
of Guaranty of SM&P. Lender hereby
releases the Guaranty dated as of August 4, 2005, executed by SM&P in favor
of Lender and acknowledges that as of the effective date of this Agreement,
SM&P shall no longer be a Guarantor of Borrower’s
Obligations.
4. Costs and
Expenses. Borrower hereby
agrees to reimburse Lender 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.
5. References
to Agreement. All references in
the Agreement to “this Agreement” and any other references of similar import
shall henceforth mean the Agreement as amended by this Amendment.
6. Full
Force and Effect. Except to the
extent specifically amended by this Amendment, all of the terms, provisions,
conditions, covenants, representations and warranties contained in the Agreement
and the Note shall be and remain in full force and effect and the same are
hereby ratified and confirmed.
7. Benefit. This Amendment
shall be binding upon and inure to the 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.
8. Representations
and Warranties. Borrower hereby
represents and 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 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.
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9.
Release. Borrower hereby
unconditionally releases, acquits, 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.
10. Inconsistency. In the event of
any inconsistency or conflict between this Amendment, the Agreement, the terms,
provisions and conditions contained in this Amendment shall govern and
control.
11. Missouri
Law. This Amendment
shall be governed by and construed in accordance with the substantive laws of
the State of Missouri (without reference to conflict of law
principles).
12. Notice Required by Section
432.047 R.S. Mo. ORAL AGREEMENTS OR 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.
13. Conditions
Precedent. Notwithstanding
any provision contained in 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 Laclede Energy;
(c) the
following organizational documents of Borrower: (i) a copy of
resolutions of the Board of Directors of Borrower, duly adopted, which authorize
the execution, delivery and performance of this Amendment; (ii) 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; and (iii) 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;
(d) the
following organizational documents of Laclede Energy: (i) a copy of
resolutions of the Board of Directors of Laclede Energy, duly adopted, which
authorize the execution, delivery and performance of the Consent of Guarantor;
(ii) an incumbency certificate, executed by the Secretary of Laclede Energy,
which shall identify by name and title and bear the signatures of all of the
officers of Borrower executing the Consent of Guarantor; and (iii) a certificate
of corporate good standing of Laclede Energy issued by the Secretary of State of
the State of Missouri, or other evidence of good standing satisfactory to
Lender; and
(e) 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
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FIRST AMENDMENT TO AMENDED AND
RESTATED REVOLVING
CREDIT AGREEMENT
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Borrower:
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THE
LACLEDE GROUP, INC.
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By:
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/s/
Xxxx X. Xxxxxxxx
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Name:
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Xxxx
X. Xxxxxxxx
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Title:
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Treasurer
and Assistant Secretary
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Lender:
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U.S.
BANK NATIONAL ASSOCIATION,
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formerly
known as Firstar Bank, N.A.
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By:
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/s/
Xxxxx Xxxxx
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Xxxxx
Xxxxx, Vice President
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