Exhibit 10.1
THIRD AMENDMENT TO REVOLVING CREDIT AGREEMENT
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THIS THIRD AMENDMENT TO REVOLVING CREDIT AGREEMENT (this "Amendment")
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is made and entered into as of June 11, 2004, by and between THE LACLEDE
GROUP, INC., a Missouri corporation ("Borrower"), and U.S. BANK NATIONAL
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ASSOCIATION, formerly known as Firstar Bank, N.A., a national banking
association ("Lender"), and has reference to the following facts and
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circumstances (the "Recitals"):
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A. Borrower and Lender executed the Revolving Credit Agreement dated as
of June 13, 2002, as amended by the First Amendment to Revolving Credit
Agreement dated as of April 16, 2003, and the Second Amendment to Revolving
Credit Agreement and Amendment to Revolving Note dated as of June 12, 2003
(as amended, the "Agreement"; all capitalized terms used and not otherwise
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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 June 13, 2002, payable to
the order of Lender, in the principal amount of up to $20,000,000, as
amended by the Second Amendment to Revolving Credit Agreement and Amendment
to Revolving Note dated as of June 12, 2003 (as amended, the "Note").
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B. 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
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defined terms set forth therein, are incorporated herein by this reference.
2. AMENDMENT TO AGREEMENT. The definition of "Revolving Credit Period"
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in Section 1.01 of the Agreement is deleted and substituted with the
following:
"Revolving Credit Period shall mean the period commencing on the
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date of this Agreement and ending June 30, 2005; 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."
3. COSTS AND EXPENSES. Borrower hereby agrees to reimburse Lender upon
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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 AGREEMENT. All references in the Agreement to "this
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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
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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.
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 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, waives,
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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 between
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this Amendment, 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;
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(b) a Consent of Guarantor duly executed by SM&P;
(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-
THIRD 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,
formerly known as Firstar Bank, N.A.
By:
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Printed Name:
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Title:
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