SECOND AMENDMENT TO AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
Exhibit 10.1
SECOND AMENDMENT TO AMENDED
AND RESTATED REVOLVING CREDIT AGREEMENT
THIS
SECOND AMENDMENT TO AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT (this “Second Amendment”) is
made and entered into as of August 4, 2008, 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 executed the Amended and Restated Revolving Credit Agreement dated as of
August 4, 2005 (the “2005 Agreement”), 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. The 2005
Agreement was previously amended as provided in the First Amendment to Amended
and Restated Revolving Credit Agreement dated as of March 31, 2008
(the 2005 Agreement as amended thereby, hereafter referred to as the “Agreement”; all
capitalized terms used and not otherwise defined in this Second Amendment shall
have the respective meanings ascribed to them in the Agreement).
C. Borrower and
Lender desire to further 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
definitions of “Applicable Commitment Fee Rate”, “Applicable LIBOR Margin”,
“Applicable Prime Margin”, and “Revolving Credit Period” in Section 1.01 of the
Agreement are deleted and replaced with the following:
“Applicable Commitment Fee
Rate shall mean an annual rate equal to 15/100 Percent
(0.15%).”
“Applicable LIBOR
Margin shall mean an annual rate equal to 60/100 Percent
(0.60%).”
“Applicable Prime
Margin shall mean an annual rate equal to Zero Percent
(0%).”
“Revolving Credit Period
shall mean the period commencing on the date of this Agreement and ending
August 3, 2009; provided, however, that the Revolving Credit Period
shall end on the date the Lender’s Revolving Credit Commitment is terminated
pursuant to Section 6 or otherwise.”
(b) The
definition of “Applicable Rating Level” in Section 1.01 of the Agreement is
deleted.
(c) Sub-sections
(a) and (b) in the definition of “Interest Period” in Section 1.01 of the
Agreement are deleted and replaced with the following:
“(a)
initially, the period commencing on the date selected by Borrower in the
applicable Interest Rate Selection Notice and ending seven (7) days, one (1)
month, two (2) months, three (3) months, or six (6) months thereafter, as
Borrower may elect in the applicable Interest Rate Selection Notice; and (b)
thereafter, each period commencing on the last day of the immediately preceding
Interest Period applicable to such LIBOR Loan and ending seven (7) days, one (1)
month, two (2) months, three (3) months, or six (6) months, as Borrower may
elect in the applicable Interest Rate Selection Notice; provided
that:”
3. 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 Second
Amendment and any and all other agreements, documents, instruments and/or
certificates relating to this Second Amendment. All of the
obligations of Borrower under this paragraph shall survive the payment of
Borrower’s Obligations and the termination of the Agreement as amended
hereby.
4. 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.
5. Full
Force and Effect. Except to the
extent specifically amended by this Second 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.
6. Benefit. This Second
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.
7. Representations
and Warranties. Borrower hereby
represents and warrants to Lender that:
(a) the
execution, delivery and performance by Borrower of this Second 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 Second 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 Second
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 Second Amendment as if made on and as of the date
of this Second Amendment; and
(e) as of the
date of this Second 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, waives, and forever discharges Lender and its
successors, assigns, directors, officers, agents, employees, representatives and
attorneys from any
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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 Second Amendment.
9. Inconsistency. In the event of
any inconsistency or conflict between this Second Amendment and the Agreement,
the terms, provisions and conditions contained in this Amendment shall govern
and control.
10. Missouri
Law. This Second
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).
11. 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.
12. Conditions
Precedent. Notwithstanding
any provision contained in this Second Amendment to the contrary, this Second
Amendment shall not be effective unless and until Lender shall have received the
following, all in form and substance acceptable to Lender:
(a) this Second
Amendment, duly executed by Borrower;
(b) the 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 Second Amendment as of
the day and year first above written.
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(SIGNATURES
ON FOLLOWING PAGE)
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SIGNATURE
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SECOND 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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Xxxx
X. Xxxxxxxx, Treasurer and Assistant Secretary
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Lender:
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U.S.
BANK NATIONAL ASSOCIATION,
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By:
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/s/
Xxxxx Xxxxx
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Xxxxx
Xxxxx, Vice President
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