UEPEP Union Electric Company (PK)

Exhibit 1.1

 

AMEREN MISSOURI SECURITIZATION FUNDING I, LLC

UNION ELECTRIC COMPANY

$[______] Securitized Utility Tariff Bonds, Series 2024-A

 

UNDERWRITING AGREEMENT

 

[______], 2024

 

To the Underwriters named in Schedule I hereto

 

Ladies and Gentlemen:

 

1.            Introduction. Ameren Missouri Securitization Funding I, LLC, a Delaware limited liability company (the “Issuer”), proposes to issue and sell $[______] aggregate principal amount of its Securitized Utility Tariff Bonds, Series 2024-A (the “Bonds”), identified in Schedule I hereto. The Issuer and Union Electric Company D/B/A Ameren Missouri, a Missouri corporation and the Issuer’s direct parent (“Ameren”), hereby confirm their agreement with the several Underwriters (as defined below) as set forth herein.

 

The term “Underwriters” as used in this Underwriting Agreement (the “Underwriting Agreement”) shall be deemed to mean the entities named in Schedule I hereto.

 

2.            Description of the Bonds. The Bonds will be issued pursuant to an indenture to be dated as of [_____], 2024, as supplemented by a series supplement thereto (as so supplemented, the “Indenture”), between the Issuer and The Bank of New York Mellon Trust Company, N.A., as indenture trustee (the “Indenture Trustee”) and as securities intermediary (the “Securities Intermediary”). The Bonds will be senior secured obligations of the Issuer and will be supported by securitized utility tariff property (as more fully described in the irrevocable amended report and order issued by the Missouri Public Service Commission (the “MPSC”), File No. EF-2024-0021, on August 7, 2024, which became effective on August 17, 2024 (the “Financing Order”) relating to the Bonds, “Securitized Utility Tariff Property”), to be sold to the Issuer by Ameren pursuant to the Securitized Utility Tariff Property Purchase and Sale Agreement, to be dated on or about [_____], 2024, between Ameren and the Issuer (the “Sale Agreement”). The Securitized Utility Tariff Property securing the Bonds will be serviced pursuant to the Securitized Utility Tariff Property Servicing Agreement, to be dated on or about [_____], 2024, between Ameren, as servicer, and the Issuer, as owner of the Securitized Utility Tariff Property sold to it pursuant to the Sale Agreement (the “Servicing Agreement”).

 

 

3.            Representations and Warranties of the Issuer. The Issuer represents and warrants to the several Underwriters that:

 

(a)            The Bonds have been registered on Form SF-1 and the Bonds meet the requirements for the use of Form SF-1 under the Securities Act of 1933, as amended (the “Securities Act”). The Issuer, in its capacity as co-registrant and issuing entity with respect to the Bonds, and Ameren, in its capacity as co-registrant and as sponsor for the Issuer, have prepared and filed with the Securities and Exchange Commission (the “Commission”) a registration statement on such form on October 11, 2024 (Registration No. 333-282616 and 333-282616-01), as amended by Amendment No. 1 thereto filed October 28, 2024 and Amendment No. 2 thereto filed November [__], 2024 including a prospectus (the “Registration Statement”), for registration under the Securities Act of up to $[______] aggregate principal amount of the Bonds. The Registration Statement has been declared effective by the Commission and no stop order suspending such effectiveness has been issued under the Securities Act and no proceedings for that purpose have been instituted or are pending or, to the knowledge of the Issuer, threatened by the Commission. References herein to the term “Registration Statement” shall be deemed to refer to the Registration Statement, including any amendment thereto, and any information in a prospectus as amended or supplemented as of the Effective Date (as defined below), deemed or retroactively deemed to be a part thereof pursuant to Rule 430A under the Securities Act (“Rule 430A”) that has not been superseded or modified. “Registration Statement” without reference to a time means the Registration Statement as of the Applicable Time (as defined below), which the parties agree is the time of the first contract of sale (as used in Rule 159 under the Securities Act) for the Bonds, and shall be considered the “Effective Date” of the Registration Statement relating to the Bonds. Information contained in a form of prospectus (as amended or supplemented as of the Effective Date) that is deemed retroactively to be a part of the Registration Statement pursuant to Rule 430A shall be considered to be included in the Registration Statement as of the time specified in Rule 430A. The final prospectus relating to the Bonds, as filed with the Commission pursuant to Rule 424(b) under the Securities Act, is referred to herein as the “Final Prospectus”; and the most recent preliminary prospectus that omitted information to be included upon pricing in a form of prospectus filed with the Commission pursuant to Rule 424(b) under the Securities Act and that was used after the initial effectiveness of the Registration Statement and prior to the Applicable Time is referred to herein as the “Pricing Prospectus”. The Pricing Prospectus, the Issuer Free Writing Prospectuses (as defined below) identified in Section B of Schedule III, together with the InTex File (as defined below), are referred to herein as the “Pricing Package”.

 

(b)          At the time of filing the Registration Statement, at the earliest time thereafter that the Issuer made a bona fide offer (within the meaning of Rule 164(h)(2)) of the Bonds and at the date hereof, the Issuer was not and is not an “ineligible issuer”, as defined in Rule 405 under the Securities Act.

 

(c)           At the time the Registration Statement initially became effective, at the time of each amendment (whether by post-effective amendment, incorporated report or form of prospectus) and on the Effective Date relating to the Bonds, the Registration Statement fully complied, and the Final Prospectus, both as of its date and at the Closing Date, and the Indenture, at the Closing Date, will fully comply in all material respects with the applicable provisions of the Securities Act and the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”), respectively, and, in each case, the applicable instructions, rules and regulations of the Commission thereunder; the Registration Statement, at each of the aforementioned dates, did not and will not contain an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; the Final Prospectus, both as of its date and at the Closing Date, will not contain an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the foregoing representations and warranties in this paragraph (b) shall not apply to statements or omissions made in reliance upon and in conformity with any Underwriter Information as defined in Section 11(a) below or to any statements in or omissions from any Statements of Eligibility on Form T-1 (or amendments thereto) of the Indenture Trustee under the Indenture filed as exhibits to the Registration Statement or to any statements or omissions made in the Registration Statement or the Final Prospectus relating to The Depository Trust Company’s (“DTC”) Book-Entry System that are based solely on information contained in published reports of the DTC.

 

 

(d)          As of the Applicable Time, as of its date and on the date of its filing, the Pricing Prospectus did not and does not include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (except that the principal amount of the Bonds, the initial principal balance, the scheduled final payment date, the final maturity date, the expected average life and related sensitivity data, proceeds to the Issuer, underwriters’ allocation, selling concession, reallowance, discounts, issuance date, the expected amortization schedule and the expected sinking fund schedule described in the Pricing Prospectus were subject to completion or change based on market conditions and the interest rate, price to the public and underwriting discounts and commissions as well as certain other information dependent on the foregoing and other pricing related information was not included in the Pricing Prospectus). The Pricing Package, at the Applicable Time, did not, and at all subsequent times, through the completion of the offer and the sale of the Bonds on the Closing Date will not include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The two preceding sentences do not apply to statements in or omissions from the Pricing Prospectus, the Pricing Term Sheet (as defined below) or any other Issuer Free Writing Prospectus based upon and in conformity with any Underwriter Information. “Issuer Free Writing Prospectus” means any “issuer free writing prospectus,” as defined in Rule 433(h) under the Securities Act, relating to the Bonds, in the form filed or required to be filed with the Commission or, if not required to be filed, in the form retained in the Issuer’s records pursuant to Rule 433(g) under the Securities Act. References to the term “Free Writing Prospectus” shall mean a free writing prospectus, as defined in Rule 405 under the Securities Act. “InTex File” means the files available at the InTex deal titled [___] concerning the characteristics of the Bonds or Securitized Utility Tariff Property. References to the term “Applicable Time” mean [__] PM, Eastern Time, on the date hereof, except that if, subsequent to such Applicable Time, the Issuer, Ameren and the Underwriters have determined that the information contained in the Pricing Prospectus or any Issuer Free Writing Prospectus issued prior to such Applicable Time included an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading and the Issuer, Ameren and the Underwriters have agreed to terminate the old purchase contracts and have entered into new purchase contracts with purchasers of the Bonds, then “Applicable Time” will refer to the first of such times when such new purchase contracts are entered into. The Issuer represents, warrants and agrees that it has treated and agrees that it will treat each of the free writing prospectuses listed on Schedule III hereto as an Issuer Free Writing Prospectus, and that each such Issuer Free Writing Prospectus has fully complied and will fully comply with the applicable requirements of Rules 164 and 433 under the Securities Act, including timely Commission filing where required, legending and record keeping.

 

 

(e)          Each Issuer Free Writing Prospectus as of its issue date and at all subsequent times through the completion of the offer and sale of the Bonds on the Closing Date or until any earlier date that the Issuer or Ameren notified or notifies the Underwriters as described in the next sentence, did not, does not and will not include any information that conflicted, conflicts or will conflict with the information then contained in the Registration Statement. If at any time following issuance of an Issuer Free Writing Prospectus there occurred or occurs an event or development the result of which is that such Issuer Free Writing Prospectus conflicts or would conflict with the information then contained in the Registration Statement or includes or would include an untrue statement of a material fact or, when considered together with the Pricing Prospectus, omitted or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances prevailing at that subsequent time, not misleading, (i) Ameren or the Issuer has promptly notified or will promptly notify the Underwriters and (ii) Ameren or the Issuer has promptly amended or will promptly amend or supplement such Issuer Free Writing Prospectus to eliminate or correct such conflict, untrue statement or omission. The foregoing two sentences do not apply to statements in or omissions from any Issuer Free Writing Prospectus based upon and in conformity with any Underwriter Information.

 

(f)           The Issuer has been duly formed and is validly existing as a limited liability company in good standing under the Delaware Limited Liability Company Act, as amended, with full limited liability company power and authority to execute, deliver and perform its obligations under this Underwriting Agreement, the Bonds, the Sale Agreement, the Servicing Agreement, the Indenture, the amended and restated limited liability company agreement of the Issuer, dated as of [______], 2024 (the “LLC Agreement”), the administration agreement to be dated the Closing Date between the Issuer and Ameren (the “Administration Agreement”) and the other agreements and instruments contemplated by the Pricing Prospectus (collectively, the “Issuer Documents”) and to own its properties and conduct its business as described in the Registration Statement and the Pricing Prospectus; the Issuer has been duly qualified to do business as a foreign limited liability company and is in good standing under the laws of each jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification, except where failure to so qualify or to be in good standing would not have a material adverse effect on the business, properties or financial condition of the Issuer (an “Issuer Material Adverse Effect”); the Issuer has conducted and will conduct no business in the future that would be inconsistent with the description of the Issuer’s business set forth in the Pricing Prospectus. The Issuer is not a party to or bound by any agreement or instrument other than the Issuer Documents and other agreements or instruments incidental to its formation and the Rating Agency Letters (as defined below). The Issuer has no material liabilities or obligations other than those arising out of the transactions contemplated by the Issuer Documents and as described in the Pricing Prospectus. Ameren is the beneficial owner of all of the limited liability company interests of the Issuer. Based on current law, the Issuer is not classified as an association taxable as a corporation for United States federal income tax purposes.

 

 

(g)          The issuance and sale of the Bonds by the Issuer, the purchase of the Securitized Utility Tariff Property by the Issuer from Ameren and the consummation of the transactions herein contemplated by the Issuer, and the fulfillment of the terms hereof on the part of the Issuer to be fulfilled will not conflict with or result in a violation, or default under (i) the Issuer’s certificate of formation or the LLC Agreement (collectively, the “Issuer Charter Documents”), (ii) any indenture or other agreement, obligation, condition, covenant or instrument to which the Issuer is a party, or (iii) any statute, law, rule, regulation, judgment, order or decree applicable to the Issuer of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Issuer or any of its properties.

 

(h)          This Underwriting Agreement has been duly authorized, executed and delivered by the Issuer, which has the necessary limited liability company power and authority to execute, deliver and perform its obligations under this Underwriting Agreement.

 

(i)            The Issuer (i) is not in violation of the Issuer Charter Documents, (ii) is not in default, and no event has occurred which, with notice or lapse of time or both, would constitute such a default, in the due performance or observance of any term, covenant or condition contained in any indenture, mortgage, deed of trust or other agreement, or instrument to which it is a party or by which it is bound or to which its property is subject or (iii) is not in violation of any statute, law, rule, regulation, judgment, order or decree of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over it or any of its properties, as applicable (except, in the case of clauses (ii) and (iii), for such violations or defaults as would not, individually or in the aggregate, have an Issuer Material Adverse Effect.

 

(j)           The Indenture has been duly authorized by the Issuer, and, on the Closing Date, will have been duly executed and delivered by the Issuer and when executed and delivered by the Indenture Trustee will be a valid and binding instrument, enforceable against the Issuer in accordance with its terms, except as enforcement thereof may be limited (i) by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting bondholders’ and other creditors’ rights generally, (ii) by general equitable principles (whether considered in a proceeding in equity or at law), (iii) by concepts of materiality, reasonableness, good faith and fair dealing and the discretion of the court before which any matter is brought (collectively, the “Enforceability Exceptions”) and (iv) conform in all material respects to the description thereof in the Pricing Prospectus and Final Prospectus.

 

(k)          The Bonds have been duly authorized by the Issuer for issuance and sale to the Underwriters pursuant to this Underwriting Agreement and, when executed by the Issuer and authenticated by the Indenture Trustee in accordance with the Indenture and delivered to the Underwriters against payment therefor in accordance with the terms of this Underwriting Agreement, will constitute valid and binding obligations of the Issuer entitled to the benefits of the Indenture and enforceable against the Issuer in accordance with their terms, except as the enforceability thereof may be limited by the Enforceability Exceptions, and the Bonds conform in all material respects to the description thereof in the Pricing Prospectus and Final Prospectus. The Issuer has all requisite limited liability company power and authority to issue, sell and deliver the Bonds in accordance with and upon the terms and conditions set forth in this Underwriting Agreement and in the Pricing Prospectus and Final Prospectus.

 

 

(l)            There are no legal or governmental proceedings pending to which the Issuer is a party or of which any property of the Issuer is the subject which, if determined adversely to the Issuer, would, individually or in the aggregate, reasonably be expected to have an Issuer Material Adverse Effect; and, to the Issuer’s knowledge, no such proceedings are threatened by governmental authorities or others.

 

(m)          Other than the filing of the issuance advice letter and non-action on the part of the MPSC contemplated by Ordering Paragraph 8 of the Financing Order, no consent, approval, authorization, filing with or order of any court or governmental agency or body is required in connection with the transactions contemplated herein, except such as have been already obtained and other than in connection or in compliance with the provisions of applicable blue sky laws or securities laws of any state, as to which the Issuer makes no representations or warranties), is legally required for the issuance and sale by the Issuer of the Bonds.

 

(n)          The Issuer is not, and after giving effect to the offering and sale of the Bonds and the application of the proceeds thereof as described in the Pricing Prospectus and the Final Prospectus, will not be, an “investment company” within the meaning of the Investment Company Act of 1940, as amended (the “1940 Act”).

 

(o)          Relying on an exclusion or exemption from the definition of “investment company” under the 1940 Act pursuant to Rule 3a-7 under the 1940 Act, although additional exclusions or exemptions may be available, the Issuer is not a “covered fund” for purposes of the regulations adopted to implement Section 619 of the Dodd-Frank Wall Street Reform and Consumer Protection Act.

 

(p)          The nationally recognized accounting firm which has performed certain procedures with respect to certain statistical and structural information contained in the Pricing Prospectus and the Final Prospectus, are independent public accountants.

 

(q)          Each of the Sale Agreement, the Servicing Agreement, the Administration Agreement and LLC Agreement has been duly and validly authorized by the Issuer, and when executed and delivered by the Issuer on or prior to the Closing Date and the other parties thereto will constitute a valid and legally binding obligation of the Issuer, enforceable against the Issuer in accordance with its terms, except as the enforceability thereof may be limited by the Enforceability Exceptions.

 

 

(r)           The Issuer has complied with the written representations, acknowledgements and covenants (the “17g-5 Representations”) relating to compliance with Rule 17g-5 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), set forth in the (i) undertaking letter, dated as of September 18, 2024, by Ameren to Moody’s (as defined below) and (ii) undertaking letter, dated September 26, 2024, from Ameren to S&P (as defined below, and together with Moody’s, the “Rating Agencies”) (collectively, the “Rating Agency Letters”), other than (x) any noncompliance with the 17g-5 Representations that would not have a material adverse effect on the rating of the Bonds or the Bonds or (y) any noncompliance arising from the breach by an Underwriter of the representations and warranties and covenants set forth in Section 13 hereof.

 

(s)           The Issuer will comply, and has complied, in all material respects, with its diligence and disclosure obligations in respect to the Bonds under Rule 193 of the Securities Act and Item 1111(a)(7) of Regulation AB under the Securities Act.

 

(t)           The Bonds are not subject to the risk retention requirements imposed by Section 15G of the Exchange Act.

 

4.            Representations and Warranties of Ameren. Ameren represents and warrants to the several Underwriters that:

 

(a)            Ameren, in its capacity as co-registrant and sponsor with respect to the Bonds, meets the requirements to use Form SF-1 under the Securities Act. Ameren has prepared and filed with the Commission the Registration Statement for registration under the Securities Act of up to $[______] aggregate principal amount of the Bonds. The Registration Statement has been declared effective by the Commission and no stop order suspending such effectiveness has been issued under the Securities Act and no proceedings for that purpose have been instituted or are pending or, to the knowledge of the Issuer, threatened by the Commission.

 

(b)            At the time of filing the Registration Statement, at the earliest time thereafter that Ameren made a bona fide offer (within the meaning of Rule 164(h)(2)) of the Bonds and at the date hereof, Ameren was not and is not an “ineligible issuer”, as defined in Rule 405 under the Securities Act.

 

(c)            At the time the Registration Statement initially became effective, at the time of each amendment (whether by post-effective amendment, incorporated report or form of prospectus) and on the Effective Date relating to the Bonds, the Registration Statement fully complied, and the Final Prospectus, both as of its date and at the Closing Date, and the Indenture, at the Closing Date, will fully comply in all material respects with the applicable provisions of the Securities Act and the Trust Indenture Act, respectively, and, in each case, the applicable instructions, rules and regulations of the Commission thereunder; the Registration Statement, at each of the aforementioned dates, did not and will not contain an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; the Final Prospectus, both as of its date and at the Closing Date, will not contain an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the foregoing representations and warranties in this paragraph (b) shall not apply to statements or omissions made in reliance upon and in conformity with any Underwriter Information as defined in Section 11(a) below or to any statements in or omissions from any Statements of Eligibility on Form T-1 (or amendments thereto) of the Indenture Trustee under the Indenture filed as exhibits to the Registration Statement or to any statements or omissions made in the Registration Statement or the Final Prospectus relating to DTC’s Book-Entry System that are based solely on information contained in published reports of the DTC.

 

 

(d)          As of the Applicable Time and on the date of its filing, if applicable, the Pricing Prospectus, each Issuer Free Writing Prospectus (other than the Pricing Term Sheet) and the InTex File, did and do not include any untrue statement of a material fact or omit (with respect to each Issuer Free Writing Prospectus and the InTex File, when taken together with the Pricing Prospectus) to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (except that the principal amount of the Bonds, the initial principal balance, the scheduled final payment date, the final maturity date, the expected average life and related security data proceeds to the Issuer, underwriters’ allocation, selling concession, reallowance discounts, issuance date, the expected amortization schedule and the expected sinking fund schedule described in the Pricing Prospectus were subject to completion or change based on market conditions, and the interest rate, price to the public and underwriting discounts and commissions as well as certain other information dependent on the foregoing and other pricing related information was not included in the Pricing Prospectus). The Pricing Package, at the Applicable Time, did not, and at all subsequent times through the completion of the offer and the sale of the Bonds on the Closing Date, will not include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The two preceding sentences do not apply to statements in or omissions from the Pricing Prospectus, the Pricing Term Sheet or any other Issuer Free Writing Prospectus based upon and in conformity with any Underwriter Information. Ameren represents, warrants and agrees that it has treated and agrees that it will treat each of the free writing prospectuses listed on Schedule III hereto as an Issuer Free Writing Prospectus, and that each such Issuer Free Writing Prospectus has fully complied and will fully comply with the applicable requirements of Rules 164 and 433 under the Securities Act, including timely Commission filing where required, legending and record keeping.

 

(e)           Each Issuer Free Writing Prospectus, as of its issue date and at all subsequent times through the completion of the offer and sale of the Bonds on the Closing Date or until any earlier date that the Issuer or Ameren notified or notifies the Underwriters as described in the next sentence, did not, does not and will not include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement. If at any time following issuance of an Issuer Free Writing Prospectus there occurred or occurs an event or development the result of which is that such Issuer Free Writing Prospectus conflicts or would conflict with the information then contained in the Registration Statement or includes or would include an untrue statement of a material fact or, when considered together with the Pricing Prospectus, omitted or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances prevailing at that subsequent time, not misleading, (i) Ameren or the Issuer has promptly notified or will promptly notify the Underwriters and (ii) Ameren or the Issuer has promptly amended or will promptly amend or supplement such Issuer Free Writing Prospectus to eliminate or correct such conflict, untrue statement or omission. The foregoing two sentences do not apply to statements in or omissions from any Issuer Free Writing Prospectus based upon and in conformity with any Underwriter Information.

 

 

(f)            Ameren has been duly incorporated and is validly existing as a corporation and is in good standing under the laws of the State of Missouri, with corporate power and authority to own or lease its properties and conduct its business as described in the Registration Statement and the Pricing Prospectus and to execute, deliver and perform Ameren’s obligations under, or as contemplated by, this Underwriting Agreement and to do all and any of the acts necessary in connection with or arising from the transactions contemplated hereby; and Ameren is duly qualified to do business as a foreign corporation and is in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification, except to the extent that the failure to be so qualified or to be in good standing would not, individually or in the aggregate, reasonably be expected to have a material adverse effect on the general affairs, management, financial position, shareholders’ equity or consolidated results of operations of Ameren and its subsidiaries, taken as a whole (an “Ameren Material Adverse Effect”).

 

(g)          Ameren has no significant subsidiaries within the meaning of Rule 1-02(w) of Regulation S-X.

 

(h)           The issuance and sale of the Bonds, the transfer by Ameren of all of its rights and interests under the Financing Order relating to the Bonds to the Issuer, the consummation of any other of the transactions herein contemplated or the fulfillment of the terms hereof on the part of Ameren to be fulfilled, will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, result in the termination, modification or acceleration of, or result in the creation or imposition of any lien, charge or encumbrance upon any property, right or asset of Ameren pursuant to, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which Ameren is a party or by which Ameren is bound or to which any property, right or asset of Ameren is subject, (ii) result in any violation of the provisions of the charter or by-laws or similar organizational documents of Ameren (collectively, the “Ameren Charter Documents”) or (iii) result in the violation of any law or statute or any judgment, order, rule or regulation of any court or arbitrator or governmental or regulatory authority, except, in the case of clauses (i) and (iii) above, for any such conflict, breach, violation, default, lien, charge or encumbrance that would not, individually or in the aggregate, have an Ameren Material Adverse Effect.

 

(i)            This Underwriting Agreement has been duly authorized, executed and delivered by Ameren and constitutes a valid and legally binding agreement of Ameren, enforceable against Ameren in accordance with its terms, except as enforceability may be limited by the Enforceability Exceptions.

 

 

(j)            Ameren is not (i) in violation of any of the Ameren Charter Documents; (ii) in default, and no event has occurred that, with notice or lapse of time or both, would constitute such a default, in the due performance or observance of any term, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which Ameren or any of its subsidiaries or affiliates is a party or by which Ameren or any of its subsidiaries is bound or to which any property or asset of Ameren or any of its subsidiaries is subject; or (iii) in violation of any law or statute or any judgment, order, rule or regulation of any court or arbitrator or governmental or regulatory authority, except, in the case of clauses (ii) and (iii) above, for any such default or violation that would not, individually or in the aggregate, have an Ameren Material Adverse Effect.

 

(k)           There are no legal or governmental or regulatory investigations, actions or proceedings pending to which Ameren is a party or of which any property of Ameren is the subject which, if determined adversely to Ameren, would, individually or in the aggregate, reasonably be expected to have an Ameren Material Adverse Effect; and, to Ameren’s knowledge, no such proceedings are threatened by governmental authorities or others.

 

(l)            Other than the submission of the issuance advice letter and non-action on the part of the MPSC contemplated by Ordering Paragraph 8 of the Financing Order, no consent, approval, authorization, order, registration or qualification of or with any court or arbitrator or governmental or regulatory authority is required for the execution, delivery and performance by Ameren of each of the Issuer Documents to which Ameren is a party, the issuance and sale of the Bonds by the Issuer, and compliance by Ameren with the terms thereof and the consummation of the transactions contemplated by the Financing Order.

 

(m)          Ameren is not, and after giving effect to the offering and sale of the Bonds and the application of the proceeds thereof as described in the Pricing Prospectus, neither Ameren nor the Issuer will be, an “investment company” within the meaning of the 1940 Act.

 

(n)          Relying on an exclusion or exemption from the definition of “investment company” under the 1940 Act pursuant to Rule 3a-7 under the 1940 Act, although additional exclusions or exemptions may be available, the Issuer is not a “covered fund” for purposes of the regulations adopted to implement Section 619 of the Dodd-Frank Wall Street Reform and Consumer Protection Act.

 

(o)            Each of the Sale Agreement, Servicing Agreement and Administration Agreement will have been on or prior to the Closing Date duly and validly authorized by Ameren, and when executed and delivered by Ameren and the other parties thereto will constitute a valid and legally binding obligation of Ameren, enforceable against Ameren in accordance with its terms, except as the enforceability thereof may be limited by the Enforceability Exceptions.

 

(p)            There are no Missouri transfer taxes related to the transfer of the Securitized Utility Tariff Property or the issuance and sale of the Bonds to the Underwriters pursuant to this Underwriting Agreement required to be paid at or prior to the Closing Date by Ameren or the Issuer.

 

 

(q)           The nationally recognized accounting firm referenced in Section 3(o) and 9(w) is a firm of independent public accountants with respect to Ameren as required by the Securities Act and the rules and regulations of the Commission thereunder.

 

(r)            Ameren, in its capacity as sponsor with the respect to the Bonds, has caused the Issuer to comply with the 17g-5 Representations, other than (x) any noncompliance of the 17g-5 Representations that would not have a material adverse effect on the rating of the Bonds or the Bonds or (y) any noncompliance arising from the breach by an Underwriter of the representations and warranties and covenants set forth in Section 13 hereof.

 

(s)           Ameren will comply, and has complied, in all material respects, with its diligence and disclosure obligations in respect to the Bonds under Rule 193 of the Securities Act and Items 1111(a)(7) and 1111(a)(8) of Regulation AB.

 

(t)            Ameren Corporation (parent corporation of Ameren) maintains policies and procedures designed to ensure compliance by, among others, Ameren, Ameren’s subsidiaries and their respective directors, officers, employees and agents with all laws, rules and regulations of any jurisdiction applicable to Ameren or its subsidiaries from time to time concerning or relating to bribery, corruption or money laundering (collectively, “Anti-Corruption Laws”) and applicable economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by the U.S. government, including those administrated by the Office of Foreign Assets Control of the U.S. Department of the Treasury (“OFAC”) or the U.S. Department of State (the “State Department”), or by the United Nations Security Council (the “UNSC”), the European Union (the “EU”) or His Majesty’s Treasury of the United Kingdom (collectively, “Sanctions”), and Ameren and its subsidiaries and, to the knowledge of Ameren, their respective officers, employees, directors and agents, are in compliance with Anti-Corruption Laws and applicable Sanctions; and none of (A) Ameren, any of its subsidiaries, or, to the knowledge of Ameren, any of their respective directors, officers or employees, or (B) to the knowledge of Ameren, any agent of Ameren or any of its subsidiaries that will act in any capacity in connection with, or benefit from, this Agreement, is (i) a person listed in any Sanctions-related list of designated persons maintained by OFAC or the State Department, or by the UNSC, the EU or any EU member state, (ii) a person operating, organized or resident in a country or territory that is itself the subject or target of any Sanctions (as of the date hereof, including, without limitation, Crimea, Cuba, Iran, North Korea, Russia, Syria, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, the non-government controlled areas of Zaporizhzhia and Kherson or any other Covered Region of Ukraine identified pursuant to Executive Order 14065) or (iii) any person 50% or more owned or controlled by any such person or persons.

 

(u)           The Bonds are not subject to the risk retention requirements imposed by Section 15G of the Exchange Act.

 

 

5.            Investor Communications.

 

(a)            Issuer and Ameren represent and agree that, unless they obtain the prior consent of the Underwriters, and each Underwriter represents and agrees that, unless it obtains the prior consent of the Issuer and Ameren and the Underwriters, they have not made and will not make any offer relating to the Bonds that would constitute an Issuer Free Writing Prospectus, or that would otherwise constitute a “free writing prospectus,” required to be filed by the Issuer or Ameren, as applicable, with the Commission or retained by the Issuer or Ameren, as applicable, under Rule 433 under the Securities Act; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Pricing Term Sheet and each other Free Writing Prospectus identified in Schedule III hereto.

 

(b)           Ameren and the Issuer (or the Underwriters at the direction of the Issuer) will prepare a final pricing term sheet relating to the Bonds (the “Pricing Term Sheet”), containing only information that describes the final pricing terms of the Bonds and otherwise in a form consented to by the Underwriters, and will file the Pricing Term Sheet within the period required by Rule 433(d)(5)(ii) under the Securities Act following the date such final pricing terms have been established for all classes of the offering of the Bonds. The Pricing Term Sheet is an Issuer Free Writing Prospectus for purposes of this Underwriting Agreement.

 

(c)           Each Underwriter may provide to investors one or more of the Free Writing Prospectuses, including the Pricing Term Sheet, subject to the following conditions:

 

(i)            An Underwriter shall not convey or deliver any Written Communication (as defined herein) to any person or entity in connection with the initial offering of the Bonds, unless such Written Communication (A) constitutes a prospectus satisfying the requirements of Rule 430A under the Securities Act, or (B)(i) is made in reliance on Rule 134 under the Securities Act, is an Issuer Free Writing Prospectus listed on Schedule III hereto or is an Underwriter Free Writing Prospectus (as defined below) and (ii) such Written Communication is preceded or accompanied by a prospectus satisfying the requirements of Section 10(a) of the Securities Act. “Written Communication” has the same meaning as that term is defined in Rule 405 under the Securities Act.

 

An “Underwriter Free Writing Prospectus” means any free writing prospectus that contains only preliminary or final terms of the Bonds and is not required to be filed by Ameren or the Issuer pursuant to Rule 433 under the Securities Act and that contains information substantially the same as the information contained in the Pricing Prospectus or Pricing Term Sheet (including, without limitation, (i) the class, size, rating, price, CUSIPs, coupon, yield, spread, benchmark, status and/or legal maturity date of the Bonds, the weighted average life, expected first and final scheduled payment dates, trade date, settlement date, transaction parties, credit enhancement, logistical details related to the location and timing of access to the roadshow, ERISA eligibility, legal investment status and payment window of one or more classes of Bonds and (ii) a column or other entry showing the status of the subscriptions for the Bonds, both for the Bonds as a whole and for each Underwriter’s retention, and/or expected pricing parameters of the Bonds).

 

 

(ii)            Each Underwriter shall comply with all applicable laws and regulations in connection with the use of Free Writing Prospectuses and the Pricing Term Sheet, including but not limited to Rules 164 and 433 under the Securities Act.

 

(iii)            All Free Writing Prospectuses provided to investors, whether or not filed with the Commission, shall bear a legend including substantially the following statement:

 

Ameren and the Issuing Entity have filed a registration statement (including a prospectus) with the SEC for the offering to which this communication relates. Before you invest, you should read the prospectus in that registration statement and other documents Ameren and the Issuing Entity have filed with the SEC for more complete information about the Issuing Entity and this offering. You may get these documents for free by visiting EDGAR on the SEC website at www.sec.gov. Alternatively, Ameren, the Issuing Entity, any underwriter or any dealer participating in the offering will arrange to send you the prospectus if you request it by calling Ameren collect at ([ ])[ ], Goldman Sachs & Co. LLC toll-free at 1-866-471-2526 and RBC Capital Markets, LLC toll-free at 1-866-375-6829.

 

The Issuer and the Underwriters shall have the right to require additional specific legends or notations to appear on any Free Writing Prospectus, the right to require changes regarding the use of terminology and the right to determine the types of information appearing therein with the approval of, in the case of the Issuer, Underwriters and, in the case of the Underwriters, the Issuer (which in either case shall not be unreasonably withheld).

 

(iv)            Each Underwriter covenants with the Issuer and Ameren that after the Final Prospectus is available such Underwriter shall not distribute any written information concerning the Bonds to an investor unless such information is preceded or accompanied by the Final Prospectus or by notice to the investor that the Final Prospectus is available for free by visiting EDGAR on the SEC website at www.sec.gov.

 

(v)            Each Underwriter covenants that if an Underwriter shall use an Underwriter Free Writing Prospectus that contains information in addition to (x) “issuer information”, including information with respect to Ameren, as defined in Rule 433(h)(2) under the Securities Act or (y) the information in the Pricing Package, the liability arising from its use of such additional information shall be the sole responsibility of the Underwriter using such Underwriting Free Writing Prospectus unless the Underwriter Free Writing Prospectus (or any information contained therein) was consented to in advance by Ameren; provided, however, that, for the avoidance of doubt, (A) this clause (v) shall not be interpreted as tantamount to the indemnification obligations contained in Section 11(b) hereof and (B) no Underwriter shall be responsible for any errors or omissions in an Underwriter Free Writing Prospectus to the extent that such error or omission related to or was derived from any information provided by the Issuer or Ameren.

 

 

6.            Purchase and Sale. On the basis of the representations and warranties herein contained, and subject to the terms and conditions herein set forth, the Issuer shall sell to each of the Underwriters, and each Underwriter shall purchase from the Issuer, at the time and place herein specified, severally and not jointly, at the purchase price set forth in Schedule I hereto, the principal amount of the Bonds set forth opposite such Underwriter’s name in Schedule II hereto. The Underwriters agree to make a public offering of the Bonds. The Issuer shall pay (in the form of a discount to the principal amount of the offered Bonds) to the Underwriters a commission equal to $[_______].

 

7.            Time and Place of Closing. Delivery of the Bonds against payment of the aggregate purchase price therefor by wire transfer in federal funds shall be made at the place, on the date and at the time specified in Schedule I hereto, or at such other place, time and date as shall be agreed upon in writing by the Issuer and the Underwriters. The hour and date of such delivery and payment are herein called the “Closing Date”. The Bonds shall be delivered to DTC or to The Bank of New York Mellon Trust Company, National Association, as custodian for DTC, in fully registered global form registered in the name of Cede & Co., for the respective accounts specified by the Underwriters not later than the close of business on the business day preceding the Closing Date or such other time as may be agreed upon by the Underwriters. The Issuer agrees to make the Bonds available to the Underwriters for checking purposes not later than 1:00 P.M. New York Time on the last business day preceding the Closing Date at the place specified for delivery of the Bonds in Schedule I hereto, or at such other place as the Issuer may specify.

 

If any Underwriter shall fail or refuse to purchase and pay for the aggregate principal amount of Bonds that such Underwriter has agreed to purchase and pay for hereunder, the Issuer shall immediately give notice to the other Underwriters of the default of such Underwriter, and the other Underwriters shall have the right within 24 hours after the receipt of such notice to determine to purchase, or to procure one or more others, who are members of the Financial Industry Regulatory Authority (“FINRA”) (or, if not members of the FINRA, who are not eligible for membership in the FINRA and who agree (i) to make no sales within the United States, its territories or its possessions or to persons who are citizens thereof or residents therein and (ii) in making sales to comply with the FINRA’s Conduct Rules) and satisfactory to the Issuer, to purchase, upon the terms herein set forth, the aggregate principal amount of Bonds that the defaulting Underwriter had agreed to purchase. If any non-defaulting Underwriter or Underwriters shall determine to exercise such right, such Underwriter or Underwriters shall give written notice to the Issuer of the determination in that regard within 24 hours after receipt of notice of any such default, and thereupon the Closing Date shall be postponed for such period, not exceeding three business days, as the Issuer shall determine. If in the event of such a default no non-defaulting Underwriter shall give such notice, then this Underwriting Agreement may be terminated by the Issuer, upon like notice given to the non-defaulting Underwriters, within a further period of 24 hours. If in such case the Issuer shall not elect to terminate this Underwriting Agreement it shall have the right, irrespective of such default:

 

(a)           to require each non-defaulting Underwriter to purchase and pay for the respective aggregate principal amount of Bonds that it had agreed to purchase hereunder as hereinabove provided and, in addition, the aggregate principal amount of Bonds that the defaulting Underwriter shall have so failed to purchase up to an aggregate principal amount of Bonds equal to one-ninth (1/9) of the aggregate principal amount of Bonds that such non-defaulting Underwriter has otherwise agreed to purchase hereunder, and/or

 

 

(b)            to procure one or more persons, reasonably acceptable to the Underwriters, who are members of the FINRA (or, if not members of the FINRA, who are not eligible for membership in the FINRA and who agree (i) to make no sales within the United States, its territories or its possessions or to persons who are citizens thereof or residents therein and (ii) in making sales to comply with the FINRA’s Conduct Rules), to purchase, upon the terms herein set forth, either all or a part of the aggregate principal amount of Bonds that such defaulting Underwriter had agreed to purchase or that portion thereof that the remaining Underwriters shall not be obligated to purchase pursuant to the foregoing clause (a).

 

In the event the Issuer shall exercise its rights under (a) and/or (b) above, the Issuer shall give written notice thereof to the non-defaulting Underwriters within such further period of 24 hours, and thereupon the Closing Date shall be postponed for such period, not exceeding three business days, as the Issuer shall determine.

 

In the computation of any period of 24 hours referred to in this Section 7, there shall be excluded a period of 24 hours in respect of each Saturday, Sunday or legal holiday that would otherwise be included in such period of time.

 

Any action taken by the Issuer or Ameren under this Section 7 shall not relieve any defaulting Underwriter from liability in respect of any default of such Underwriter under this Underwriting Agreement. Termination of this Underwriting Agreement pursuant to Section 7 shall be without any liability on the part of the Issuer, Ameren or any non-defaulting Underwriter, except as otherwise provided in Sections 8(a)(vi) and 11 hereof.

 

8.            Covenants.

 

(a)          Covenants of the Issuer. The Issuer covenants and agrees with the several Underwriters that:

 

(i)            The Issuer will upon request promptly deliver to the Underwriters and Counsel to the Underwriters a conformed copy of the Registration Statement, certified by an officer of the Issuer to be in the form as originally filed and all amendments thereto.

 

(ii)            The Issuer will deliver to the Underwriters, as soon as practicable after the date hereof, as many copies of the Pricing Prospectus and Final Prospectus as they may reasonably request.

 

(iii)            The Issuer will cause or has caused the Final Prospectus to be filed with the Commission pursuant to Rule 424 under the Securities Act as soon as practicable and will advise the Underwriters of any stop order suspending the effectiveness of the Registration Statement or preventing the use of the Registration Statement, or the institution of any proceeding therefor of which Issuer shall have received notice. The Issuer will use its reasonable best efforts to prevent the issuance of any such stop order and, if issued, to obtain as soon as possible the withdrawal thereof. The Issuer has complied and will comply with Rule 433 and Rule 163B under the Securities Act in connection with the offering of the Bonds.

 

 

(iv)            If, during such period of time (not exceeding nine months) after the Final Prospectus has been filed with the Commission pursuant to Rule 424 under the Securities Act as in the opinion of Counsel for the Underwriters a prospectus covering the Bonds is required by law to be delivered in connection with sales by an Underwriter or dealer (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), any event relating to or affecting the Issuer, the Bonds or the Securitized Utility Tariff Property or of which the Issuer shall be advised in writing by the Underwriters shall occur that in the Issuer’s reasonable judgment after consultation with Counsel for the Underwriters (as defined below) should be set forth in a supplement to, or an amendment of the Pricing Package or the Final Prospectus in order to make the Pricing Package or the Final Prospectus not misleading in the light of the circumstances when it is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), the Issuer will, at its expense, amend or supplement the Pricing Package or the Final Prospectus by either (A) preparing and furnishing to the Underwriters at the Issuer’s expense a reasonable number of copies of a supplement or supplements or an amendment or amendments to the Pricing Package or the Final Prospectus or (B) making an appropriate filing pursuant to Section 13 or Section 15 of the Exchange Act, which will supplement or amend the Pricing Package or the Final Prospectus so that, as supplemented or amended, it will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances when the Pricing Package or the Final Prospectus is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), not misleading; provided that should such event relate solely to the activities of any of the Underwriters, then such Underwriters shall assume the expense of preparing and furnishing any such amendment or supplement. The Issuer will also fulfill its obligations set out in Section 3(d) above. The Issuer will advise the Underwriters promptly in writing when any supplement to the Pricing Package, the Final Prospectus or any amendment to the Final Prospectus has been filed or distributed.

 

(v)            The Issuer will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying the Bonds for offer and sale under the blue-sky laws of the states of the United States as the Underwriters may designate; provided that the Issuer shall not be required to qualify as a foreign limited liability company or dealer in securities, to file any consents to service of process under the laws of any jurisdiction, or meet any other requirements deemed by the Issuer to be unduly burdensome.

 

 

(vi)            The Issuer or Ameren will, except as herein provided, pay or cause to be paid all expenses and taxes (except transfer taxes) in connection with (i) the preparation and filing by it of the Registration Statement, Pricing Prospectus and Final Prospectus (including any amendments and supplements thereto) and any Issuer Free Writing Prospectuses, (ii) the issuance and delivery of the Bonds as provided in Section 7 hereof (including, without limitation, reasonable fees and disbursements of Counsel for the Underwriters and all trustee, rating agency and MPSC advisor fees), (iii) the qualification of the Bonds under blue-sky laws (including counsel fees not to exceed $10,000.00), (iv) the printing and delivery to the Underwriters of reasonable quantities of the Registration Statement and, except as provided in Section 8(a)(iv) hereof, of the Pricing Package and Final Prospectus. If the obligation of the Underwriters to purchase the Bonds terminates in accordance with the provisions of Sections 7 (but excluding terminations arising thereunder out of an Underwriter default), 9, 10 or 12 hereof, the Issuer or Ameren (i) will reimburse the Underwriters for the reasonable fees and disbursements of Counsel for the Underwriters, and (ii) will reimburse the Underwriters for their reasonable out-of-pocket expenses, such out-of-pocket expenses in an aggregate amount not exceeding $200,000, incurred in contemplation of the performance of this Underwriting Agreement. The Issuer shall not in any event be liable to any of the several Underwriters for damages on account of loss of anticipated profits.

 

(vii)            During the period from the date of this Underwriting Agreement to the date that is five days after the Closing Date, the Issuer will not, without the prior written consent of the Underwriters, offer, sell or contract to sell, or otherwise dispose of, directly or indirectly, or announce the offering of, any asset-backed securities (other than the Bonds).

 

(viii)            To the extent, if any, that any rating necessary to satisfy the condition set forth in Section 9(y) of this Underwriting Agreement is conditioned upon the furnishing of documents or the taking of other actions by the Issuer on or after the Closing Date, the Issuer shall furnish such documents and take such other actions.

 

(ix)            For a period from the date of this Underwriting Agreement until the retirement of the Bonds or until such time as the Underwriters shall cease to maintain a secondary market in the Bonds, whichever occurs first, the Issuer shall file with the Commission, and to the extent permitted by and consistent with the Issuer’s obligations under applicable law, make available on the website associated with the Issuer’s parent, such periodic reports, if any, as are required (without regard to the number of holders of Bonds to the extent permitted by and consistent with the Issuer’s obligations under applicable law) from time to time under Section 13 or Section 15(d) of the Exchange Act; provided that the Issuer shall not voluntarily suspend or terminate its filing obligations with the Commission unless permitted under applicable law and the terms of the Basic Documents. The Issuer shall also, to the extent permitted by and consistent with the Issuer’s obligations under applicable law, include in the periodic and other reports to be filed with the Commission as provided above or posted on the website associated with the Issuer’s parent, such information as required by Section 3.07(g) of the Indenture with respect to the Bonds. To the extent that the Issuer’s obligations are terminated or limited by an amendment to Section 3.07(g) of the Indenture, or otherwise, such obligations shall be correspondingly terminated or limited hereunder.

 

 

(x)            The Issuer and Ameren will not file any amendment to the Registration Statement or amendment or supplement to the Final Prospectus or amendment or supplement to the Pricing Package during the period when a prospectus relating to the Bonds is required to be delivered under the Securities Act, without prior notice to the Underwriters, or to which Norton Rose Fulbright US LLP, who are acting as counsel for the Underwriters (“Counsel for the Underwriters”), shall reasonably object by written notice to Ameren and the Issuer.

 

(xi)            So long as any of the Bonds are outstanding, the Issuer will furnish to the Underwriters, if and to the extent not posted on EDGAR or the Issuer or its affiliate’s website, (A) as soon as available, a copy of each report of the Issuer filed with the Commission under the Exchange Act or mailed to the Bondholders (to the extent such reports are not publicly available on the Commission’s website), (B) upon request, a copy of any filings with the MPSC pursuant to the Financing Order including, but not limited to, any issuance advice letter or any routine or non-routine True-Up Adjustment filings, and (C) from time to time, any information concerning the Issuer as the Underwriters may reasonably request.

 

(xii)            So long as the Bonds are rated by any Rating Agency, the Issuer will comply with the 17g-5 Representations, other than (x) any noncompliance of the 17g-5 Representations that would not have a material adverse effect on the rating of the Bonds or the Bonds or (y) any noncompliance arising from the breach by an Underwriter of the representations and warranties and covenants set forth in Section 13 hereof.

 

(b)            Covenants of Ameren. Ameren covenants and agrees with the several Underwriters that, to the extent that the Issuer has not already performed such act pursuant to Section 8(a):

 

(i)            To the extent permitted by applicable law and the agreements and instruments that bind Ameren, Ameren will use its reasonable best efforts to cause the Issuer to comply with the covenants set forth in Section 8(a) hereof.

 

(ii)            Ameren will use its reasonable best efforts to prevent the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or preventing the use of the Registration Statement, and, if issued, to obtain as soon as possible the withdrawal thereof.

 

 

(iii)            If, during such period of time (not exceeding nine months) after the Final Prospectus has been filed with the Commission pursuant to Rule 424 under the Securities Act as in the opinion of Counsel for the Underwriters a prospectus covering the Bonds is required by law to be delivered in connection with sales by an Underwriter or dealer (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), any event relating to or affecting Ameren, the Bonds or the Securitized Utility Tariff Property or of which Ameren shall be advised in writing by the Underwriters shall occur that in Ameren’s reasonable judgment after consultation with Counsel for the Underwriters should be set forth in a supplement to, or an amendment of, the Pricing Package or the Final Prospectus in order to make the Pricing Package or the Final Prospectus not misleading in the light of the circumstances when it is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), Ameren will cause the Issuer, at Ameren’s or the Issuer’s expense, to amend or supplement the Pricing Package or the Final Prospectus by either (A) preparing and furnishing to the Underwriters at Ameren’s or the Issuer’s expense a reasonable number of copies of a supplement or supplements or an amendment or amendments to the Pricing Package or the Final Prospectus or (B) causing the Issuer to make an appropriate filing pursuant to Section 13 or Section 15 of the Exchange Act, which will supplement or amend the Pricing Package or the Final Prospectus so that, as supplemented or amended, it will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances when the Pricing Package or the Final Prospectus is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), not misleading; provided that should such event relate solely to the activities of any of the Underwriters, then such Underwriters shall assume the expense of preparing and furnishing any such amendment or supplement. Ameren will also fulfill its obligations set out in Section 4(d). Ameren will cause Issuer to advise the Underwriters promptly in writing when any supplement to the Pricing Package, the Final Prospectus, or any amendment to the Final Prospectus has been filed or distributed.

 

(iv)            During the period from the date of this Underwriting Agreement to the date that is five days after the Closing Date, Ameren will not, without the prior written consent of the Underwriters, offer, sell or contract to sell, or otherwise dispose of, directly or indirectly, or announce the offering of, any asset-backed securities (other than the Bonds).

 

(v)            Ameren will cause the proceeds for the issuance and sale of the Bonds to be applied for the purposes described in the Pricing Prospectus.

 

(vi)            As soon as practicable, but not later than 16 months, after the date hereof, the Ameren will make generally available (by posting on its website or otherwise) to its security holders, an earnings statement (which need not be audited) that will satisfy the provisions of Section 11(a) of the Securities Act.

 

(vii)            To the extent, if any, that any rating necessary to satisfy the condition set forth in Section 9(y) of this Underwriting Agreement is conditioned upon the furnishing of documents or the taking of other actions by Ameren on or after the Closing Date, Ameren shall furnish such documents and take such other actions.

 

 

(viii)            The initial Securitized Utility Tariff Charge will be calculated in accordance with the Financing Order.

 

(ix)            Ameren will not file any amendment to the Registration Statement or amendment or supplement to the Final Prospectus or amendment or supplement to the Pricing Package during the period when a prospectus relating to the Bonds is required to be delivered under the Securities Act, without prior notice to the Underwriters or to which Counsel for the Underwriters shall reasonably object by written notice to Ameren.

 

(x)            So long as any of the Bonds are outstanding, Ameren, in its capacity as sponsor with respect to the Bonds, will cause the Issuer to furnish to the Underwriters, if and to the extent not posted on EDGAR or Ameren or its affiliate’s website, (A) upon request, a copy of any filings with the MPSC pursuant to the Financing Order including, but not limited to any issuance advice letter, any routine or non-routine true-up adjustment filings, and (B) from time to time, any public financial information in respect of Ameren, or any material information regarding the Securitized Utility Tariff Property to the extent it is reasonably available (other than confidential or proprietary information) concerning the Issuer as the Underwriters may reasonably request.

 

(xi)            So long as the Bonds are rated by a Rating Agency, Ameren, in its capacity as sponsor with respect to the Bonds, will cause the Issuer to comply with the 17g-5 Representations, other than (x) any noncompliance of the 17g-5 Representations that would not have a material adverse effect on the rating of the Bonds or the Bonds or (y) any noncompliance arising from the breach by an Underwriter of the representations and warranties and covenants set forth in Section 13 hereof.

 

9.            Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Bonds shall be subject to the accuracy of the representations and warranties on the part of the Issuer and Ameren contained in this Underwriting Agreement, on the part of Ameren contained in Article III of the Sale Agreement, and on the part of Ameren contained in Section 6.01 of the Servicing Agreement as of the Closing Date, to the accuracy of the statements of the Issuer and Ameren made in any certificates pursuant to the provisions hereof, to the performance by the Issuer and Ameren of their obligations hereunder, and to the following additional conditions:

 

(a)           The Final Prospectus shall have been filed with the Commission pursuant to Rule 424 under the Securities Act prior to 5:30 P.M., New York time, on the second business day after the date of this Underwriting Agreement. In addition, all material required to be filed by the Issuer or Ameren pursuant to Rule 433(d) under the Securities Act that was prepared by either of them or that was prepared by any Underwriter and timely provided to the Issuer or Ameren shall have been filed with the Commission within the applicable time period prescribed for such filing by such Rule 433(d) under the Securities Act.

 

 

(b)            No stop order suspending the effectiveness of the Registration Statement shall be in effect, and no proceedings for that purpose shall be pending before, or threatened by, the Commission on the Closing Date; and the Underwriters shall have received one or more certificates, dated the Closing Date and signed by an officer of Ameren and the Issuer, as appropriate, to the effect that no such stop order is in effect and that no proceedings for such purpose are pending before, or to the knowledge of Ameren or the Issuer, as the case may be, threatened by, the Commission.

 

(c)            Norton Rose Fulbright US LLP, counsel for the Underwriters, shall have furnished to the Underwriters their written opinion, dated the Closing Date, with respect to the issuance and sale of the Bonds, the Indenture, the other Issuer Documents, the Registration Statement and other related matters; and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters.

 

(d)            Hunton Andrews Kurth LLP, counsel for the Issuer and Ameren, shall have furnished to the Underwriters their written opinion, dated the Closing Date, in form and substance reasonably satisfactory to the Underwriters, regarding certain aspects of the transactions contemplated by the Issuer Documents, including the Indenture and the Trustee’s security interest under the Uniform Commercial Code, certain New York Uniform Commercial Code matters, enforceability and certain New York perfection and priority issues.

 

(e)            Hunton Andrews Kurth LLP, counsel for the Issuer and Ameren, shall have furnished to the Underwriters their written opinion, dated the Closing Date, in form and substance reasonably satisfactory to the Underwriters, regarding corporate matters.

 

(f)            Hunton Andrews Kurth LLP, counsel for the Issuer and Ameren, shall have furnished to the Underwriters their written opinion, dated the Closing Date, in form and substance reasonably satisfactory to the Underwriters, regarding certain corporate matters related to Ameren’s affiliates and the sale of the Securitized Utility Tariff Property.

 

(g)            Hunton Andrews Kurth LLP, counsel for the Issuer and Ameren, shall have furnished to the Underwriters their written opinion, dated the Closing Date, in form and substance reasonably satisfactory to the Underwriters, (i) to the effect that a court sitting in bankruptcy would not order the substantive consolidation of the assets and liabilities of the Issuer with those of Ameren in connection with a bankruptcy, reorganization or other insolvency proceeding involving Ameren, (ii) that if Ameren were to become a debtor in such insolvency proceeding, such court would hold that the Securitized Utility Tariff Property is not property of the estate of Ameren, (iii) regarding bankruptcy and corporate governance matters and (iv) with respect to the characterization of the transfer of the Securitized Utility Tariff Property by Ameren to the Issuer as a “true sale” for Missouri law purposes.

 

 

(h)            Hunton Andrews Kurth LLP, counsel for the Issuer and Ameren, shall have furnished to the Underwriters their written opinion, dated the Closing Date, in form and substance reasonably satisfactory to the Underwriters, regarding certain federal constitutional matters relating to the Securitized Utility Tariff Property.

 

(i)            Hunton Andrews Kurth LLP, counsel for the Issuer and Ameren, shall have furnished to the Underwriters their written opinion, dated the Closing Date, in form and substance reasonably satisfactory to the Underwriters, regarding certain federal tax matters.

 

(j)            Hunton Andrews Kurth LLP, counsel for the Issuer and Ameren, shall have furnished to the Underwriters their written letter, dated the Closing Date, in form and substance reasonably satisfactory to the Underwriters, regarding negative assurances.

 

(k)            Emmet, Marvin & Martin, LLP, counsel for the Indenture Trustee, shall have furnished to the Underwriters their written opinion, dated the Closing Date, in form and substance reasonably satisfactory to the Underwriters, regarding certain matters relating to the Indenture Trustee and the Securities Intermediary.

 

(l)            Richards, Layton & Finger, P.A., special Delaware counsel for the Issuer and Ameren, shall have furnished to the Underwriters their written opinion, dated the Closing Date, in form and substance reasonably satisfactory to the Underwriters, regarding certain Delaware Uniform Commercial Code matters.

 

(m)            Richards, Layton & Finger, P.A., special Delaware counsel for the Issuer and Ameren, shall have furnished to the Underwriters their written opinion, dated the Closing Date, in form and substance reasonably satisfactory to the Underwriters, regarding certain matters of Delaware law.

 

(n)            Richards, Layton & Finger, P.A., special Delaware counsel for the Issuer and Ameren, shall have furnished to the Underwriters their written opinion, dated the Closing Date, in form and substance reasonably satisfactory to the Underwriters, regarding the filing of a voluntary bankruptcy petition.

 

(o)            Dentons US LLP, Missouri counsel for the Issuer and Ameren, shall have furnished to the Underwriters their written opinion, dated the Closing Date, in form and substance reasonably satisfactory to the Underwriters, regarding enforceability, certain Missouri regulatory issues, and additional corporate matters, certain Missouri and fair summary matters, the security interests in the Securitized Utility Tariff Property, and the characterization of the transfer of Securitized Utility Tariff Property by Ameren to the Issuer as a “true sale” for Missouri law purposes.

 

(p)            Dentons US LLP, Missouri counsel for the Issuer and Ameren, shall have furnished to the Underwriters their written opinion, dated the Closing Date, in form and substance reasonably satisfactory to the Underwriters, regarding certain Missouri constitutional matters relating to the Securitized Utility Tariff Property.

 

(q)            Dentons US LLP, Missouri counsel for the Issuer and Ameren, shall have furnished to the Underwriters their written opinion, dated the Closing Date, in form and substance reasonably satisfactory to the Underwriters, regarding certain Missouri regulatory law matters.

 

 

(r)            Dentons US LLP, Missouri counsel for the Issuer and Ameren, shall have furnished to the Underwriters their written opinion, dated the Closing Date, in form and substance reasonably satisfactory to the Underwriters, regarding certain Missouri tax matters.

 

(s)            The general counsel to Ameren shall have furnished to the Underwriters the written opinion of such general counsel, dated the Closing Date, in form and substance reasonably satisfactory to the Underwriters, regarding Ameren’s mortgage indenture.

 

(t)            The general counsel to Ameren shall have furnished to the Underwriters the written opinion of such general counsel, dated the Closing Date, in form and substance reasonably satisfactory to the Underwriters, regarding certain Missouri law matters and fair summary matters related to Ameren.

 

(u)            On or before the date of this Underwriting Agreement and on or before the Closing Date, a nationally recognized accounting firm reasonably acceptable to the Underwriters shall have furnished to the Underwriters one or more reports regarding certain calculations and computations relating to the Bonds, in form or substance reasonably satisfactory to the Underwriters, in each case in respect of which the Underwriters shall have made specific requests therefor and shall have provided acknowledgment or similar letters to such firm reasonably necessary in order for such firm to issue such reports.

 

(v)            Subsequent to the respective dates as of which information is given in each of the Registration Statement, the Pricing Prospectus and the Final Prospectus, there shall not have been any change specified in the letters required by Section 9(u) which is, in the judgment of the Underwriters, so material and adverse as to make it impracticable or inadvisable to proceed with the offering or the delivery of the Bonds as contemplated by the Registration Statement and the Final Prospectus.

 

(w)            The LLC Agreement, the Administration Agreement, the Sale Agreement, the Servicing Agreement and the Indenture and any amendment or supplement to any of the foregoing shall have been duly authorized, executed and delivered.

 

(x)            Since the respective dates as of which information is given in each of the Registration Statement and in the Pricing Prospectus and as of the Closing Date there shall have been no (i) material adverse change in the business, property or financial condition of Ameren and its subsidiaries, taken as a whole, whether or not in the ordinary course of business, or of the Issuer or (ii) adverse development concerning the business or assets of Ameren and its subsidiaries, taken as a whole, or of the Issuer which would be reasonably likely to result in a material adverse change in the prospective business, property or financial condition of Ameren and its subsidiaries, taken as a whole, whether or not in the ordinary course of business, or of the Issuer or (iii) development which would be reasonably likely to result in a material adverse change, in the Securitized Utility Tariff Property, the Bonds or the Financing Order.

 

 

(y)            At the Closing Date, (i) the Bonds shall be rated at least the ratings set forth in the Pricing Term Sheet by Moody’s Investors Service, Inc. (“Moody’s”) and S&P Global Ratings, a division of S&P Global Inc. (“S&P”), respectively, and the Issuer shall have delivered to the Underwriters a letter from each such rating agency, or other evidence satisfactory to the Underwriters, confirming that the Bonds have such ratings, and (ii) none of Moody’s and S&P shall have, since the date of this Underwriting Agreement, downgraded or publicly announced that it has under surveillance or review, with possible negative implications, its ratings of the Bonds.

 

(z)            The Issuer and Ameren shall have furnished or caused to be furnished to the Underwriters at the Closing Date certificates of officers of Ameren and the Issuer, reasonably satisfactory to the Underwriters, as to the accuracy of the representations and warranties of the Issuer and Ameren herein, in the Sale Agreement, Servicing Agreement and the Indenture at and as of the Closing Date, as to the performance by the Issuer and Ameren of all of their obligations hereunder to be performed at or prior to such Closing Date, as to the matters set forth in subsections (b) and (s) of this Section and as to such other matters as the Underwriters may reasonably request.

 

(aa)          An issuance advice letter, in a form consistent with the provisions of the Financing Order, shall have been filed with the MPSC and shall have become effective.

 

(bb)          On or prior to the Closing Date, the Issuer shall have delivered to the Underwriters evidence, in form and substance reasonably satisfactory to the Underwriters, that appropriate filings have been or are being made in accordance with Section 393.1700.5.(2) of the Revised Statutes of Missouri, the Financing Order and other applicable law reflecting the grant of a security interest by the Issuer in the collateral relating to the Bonds to the Indenture Trustee, including the filing of the requisite notices in the office of the Secretary of State of the State of Missouri.

 

(cc)          On or prior to the Closing Date, Ameren shall have funded the capital subaccount of the Issuer with cash in an amount equal to $[___].

 

(dd)         The Issuer and Ameren shall have furnished or caused to be furnished or agree to furnish to the Rating Agencies at the Closing Date such opinions and certificates as the Rating Agencies shall have reasonably requested prior to the Closing Date.

 

Any opinion letters delivered on the Closing Date to the Rating Agencies beyond those being delivered to the Underwriters above shall either (x) include the Underwriters as addressees or (y) be accompanied by reliance letters addressed to the Underwriters referencing such letters.

 

If any of the conditions specified in this Section 9 shall not have been fulfilled when and as provided in this Underwriting Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Underwriting Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Underwriters and Counsel for the Underwriters, all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Underwriters. Notice of such cancellation shall be given to the Issuer in writing or by telephone or facsimile confirmed in writing.

 

 

10.            Conditions of Issuer’s Obligations. The obligation of the Issuer to deliver the Bonds shall be subject to the conditions that no stop order suspending the effectiveness of the Registration Statement shall be in effect at the Closing Date and no proceeding for that purpose shall be pending before, or threatened by, the Commission at the Closing Date and the issuance advice letter described in Section 9(aa) shall have become effective. In case these conditions shall not have been fulfilled, this Underwriting Agreement may be terminated by the Issuer upon notice thereof to the Underwriters. Any such termination shall be without liability of any party to any other party except as otherwise provided in Sections 8(a)(vi) and 11 hereof.

 

11.            Indemnification and Contribution.

 

(a)            Ameren and the Issuer, jointly and severally, will indemnify and hold harmless each Underwriter, the directors, managers, officers, employees and affiliates of each Underwriter and each person who controls any Underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each an “Indemnified Person”) against any losses, claims, damages or liabilities, joint or several, to which such Underwriter may become subject, under the Securities Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon (i) an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, or any amendment or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, or (ii) any untrue statement or alleged untrue statement of a material fact contained in the Pricing Prospectus, the Pricing Package, the Final Prospectus, any Issuer Free Writing Prospectus, or in any amendment thereof or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and will reimburse each Indemnified Person for any legal or other expenses reasonably incurred by such Indemnified Person in connection with investigating or defending any such action or claim as such expenses are incurred; provided, however, that Ameren shall not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in the Registration Statement (or any amendment or supplement thereto), the Pricing Prospectus, the Pricing Package, the Final Prospectus, or any Issuer Free Writing Prospectus, or any such amendment or supplement of or to the foregoing, in reliance upon and in conformity with written information furnished to Ameren by any Underwriter through the Representatives expressly for use in any such document, which information, for the avoidance of any ambiguity, is solely the information set forth in Schedule IV hereto (the “Underwriter Information”) hereof.

 

 

(b)            Each Underwriter severally and not jointly will indemnify and hold harmless Ameren and the Issuer, each of Ameren’s and the Issuer’s respective directors, managers, officers, employees, affiliates and each person who controls Ameren or the Issuer within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act against any losses, claims, damages or liabilities to which such indemnified party may become subject, under the Securities Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon (i) an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, or any amendment or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, or (ii) any untrue statement or alleged untrue statement of a material fact contained in the Pricing Prospectus, the Pricing Package, the Final Prospectus, or any Issuer Free Writing Prospectus, or arise out of or are based upon the omission or alleged omission to state therein a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in the Registration Statement (or any amendment or supplement thereto), the Pricing Prospectus, the Pricing Package, the Final Prospectus, or any Issuer Free Writing Prospectus as amended or supplemented, in reliance upon and in conformity with written information furnished to Ameren by such Underwriter through the Representatives expressly for use in any such document, it being understood and agreed, to avoid any ambiguity, that the only such information described in this paragraph is the Underwriter Information.

 

(c)            Promptly after receipt by an indemnified party under Section 11(a) or Section 11(b) hereof of notice of the commencement of any action, such indemnified party shall, if a claim in respect thereof is to be made against the indemnifying party under Section 11(a) or Section 11(b) hereof, notify the indemnifying party in writing of the commencement thereof; but the omission so to notify the indemnifying party shall not relieve it from any liability except to the extent that it has been materially prejudiced by such failure or from any liability which it may have to any indemnified party other than under Section 11(a) or Section 11(b) hereof. In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and, after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party under Section 11(a) or Section 11(b) hereof for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the indemnifying party’s election to appoint counsel to represent the indemnified party in any such action, the indemnified party shall have the right to employ separate counsel (including local counsel), and the indemnifying party shall bear the reasonable fees, costs and expenses of such separate counsel if (i) the use of counsel chosen by the indemnifying party to represent the indemnified party would present such counsel with a conflict of interest; (ii) the actual or potential defendants in, or targets of, any such action include both the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded that there may be legal defenses available to it or other indemnified parties that are different from or additional to those available to the indemnifying party; (iii) the indemnifying party shall not have employed counsel satisfactory to the indemnified party to represent the indemnified party within a reasonable time after notice of the institution of any such action; or (iv) the indemnifying party shall authorize the indemnified party to employ separate counsel at the expense of the indemnifying party. No indemnifying party shall, without the written consent of the indemnified party, effect the settlement or compromise of, or consent to the entry of any judgment with respect to, any pending or threatened action or claim in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified party is an actual or potential party to such action or claim) unless such settlement, compromise or judgment (i) includes an unconditional release of the indemnified party from all liability arising out of such action or claim and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act, by or on behalf of any indemnified party.

 

 

(d)            If the indemnification provided for in this Section 11 is unavailable to or insufficient to hold harmless an indemnified party under Section 11(a) or Section 11(b) hereof in respect of any losses, claims, damages or liabilities (or actions in respect thereof) referred to therein, then each indemnifying party shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages or liabilities (or actions in respect thereof) in such proportion as is appropriate to reflect the relative benefits received by Ameren and the Issuer on the one hand and the Underwriters on the other hand from the offering of the Bonds to which such loss, claim, damage or liability (or action in respect thereof) relates. If, however, the allocation provided by the immediately preceding sentence is not permitted by applicable law or if the indemnified party failed to give the notice required under Section 11(c) hereof, then each indemnifying party shall contribute to such amount paid or payable by such indemnified party in such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of Ameren or the Issuer on the one hand and the Underwriters on the other hand in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions in respect thereof), as well as any other relevant equitable considerations. The relative benefits received by the Ameren or the Issuer on the one hand and such Underwriters on the other hand shall be deemed to be in the same proportion as the total net proceeds from such offering (before deducting expenses) received by Ameren or the Issuer bear to the total underwriting discounts and commissions received by such Underwriters. The relative fault of Ameren or the Issuer on the one hand and such Underwriters on the other hand shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by Ameren or the Issuer on the one hand or such Underwriters on the other hand and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. Ameren, the Issuer and the Underwriters agree that it would not be just and equitable if contribution pursuant to this Section 11(d) were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 11(d). The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this Section 11(d) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 11(d), no Underwriter shall be required to contribute any amount in excess of the amount by which the total discounts and commissions received by such Underwriter with respect to the offering of the Bonds exceeds the amount of any damages which such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The obligations of the Underwriters in this Section 11(d) to contribute are several in proportion to their respective underwriting obligations with respect to such Bonds and not joint.

 

 

(e)             The obligations of Ameren and the Issuer under this Section 11 shall be in addition to any liability which Ameren or the Issuer may otherwise have and shall extend, upon the same terms and conditions, to each person, if any, who controls any Underwriter within the meaning of the Securities Act; and the obligations of the Underwriters under this Section 11 shall be in addition to any liability which the respective Underwriters may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of Ameren or the Issuer and to each person, if any, who controls Ameren or the Issuer within the meaning of the Securities Act .

 

12.            Termination. This Underwriting Agreement may be terminated, at any time prior to the Closing Date with respect to the Bonds by the Underwriters by written notice to the Issuer if after the date hereof and at or prior to the Closing Date (a) there shall have occurred any general suspension of trading in securities on the New York Stock Exchange (“NYSE”) or there shall have been established by the NYSE, or by the Commission any general limitation on prices for such trading or any general restrictions on the distribution of securities, or a general banking moratorium declared by federal, Missouri or New York state authorities or (b) there shall have occurred any (i) material outbreak or escalation of hostilities (including, without limitation, an act of terrorism) or (ii) declaration by the United States of war or national or international calamity or crisis, including, but not limited to, a material escalation of hostilities or a calamity that existed prior to the date of this Underwriting Agreement or (iii) material adverse change in the financial markets in the United States, and the effect of any such event specified in clause (a) or (b) above on the financial markets of the United States shall be such as to materially and adversely affect, in the reasonable judgment of the Underwriters, their ability to proceed with the public offering or the delivery of the Bonds on the terms and in the manner contemplated by the Final Prospectus. Any termination hereof pursuant to this Section 12 shall be without liability of any party to any other party except as otherwise provided in Sections 8(a)(vi) and 11 hereof.

 

13.            Representations, Warranties and Covenants of the Underwriters. The Underwriters, severally and not jointly, represent, warrant and agree with the Issuer and Ameren that, unless the Underwriters obtained, or will obtain, the prior written consent of the Issuer or Ameren, the Underwriters (x) have not delivered, and will not deliver, any Rating Information (as defined below) to any Rating Agency until and unless the Issuer or Ameren advises the Underwriters that such Rating Information is posted to password-protected website maintained by the Servicer pursuant to paragraph (a)(3)(iii)(B) of Rule 17g-5 under the Exchange Act in the same form as it will be provided to such Rating Agency, and (y) have not participated, and will not participate, with any Rating Agency in any oral communication of any Rating Information without the participation of a representative of the Issuer or Ameren. For purposes of this Section 13, “Rating Information” means any information provided to a Rating Agency for the purpose of determining an initial credit rating on the Bonds.

 

 

14.            Absence of Fiduciary Relationship. Each of the Issuer and Ameren acknowledges and agrees that the Underwriters are acting solely in the capacity of an arm’s length contractual counterparty to the Issuer and Ameren with respect to the offering of the Bonds contemplated hereby (including in connection with determining the terms of the offering) and not as a financial advisor or a fiduciary to, or an agent of, the Issuer or Ameren. Additionally, none of the Underwriters is advising the Issuer or Ameren as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Issuer and Ameren shall consult with their own advisors concerning such matters and shall be responsible for making their own independent investigation and appraisal of the transactions contemplated hereby, and the Underwriters shall have no responsibility or liability to the Issuer or Ameren with respect thereto. Any review by the Underwriters of the Issuer or Ameren, the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Underwriters and shall not be on behalf of the Issuer or Ameren.

 

15.            Notices. All communications hereunder will be in writing and may be given by United States mail, courier service, telecopy, telefax or facsimile (confirmed by telephone or in writing in the case of notice by telecopy, telefax or facsimile) or any other customary means of communication, and any such communication shall be effective when delivered, or if mailed, three days after deposit in the United States mail with proper postage for ordinary mail prepaid, and if sent to the Underwriters, to it at the address specified in Schedule I hereto; and if sent to Ameren, to it at Union Electric Company d/b/a Ameren Missouri, 1901 Chouteau Avenue, St. Louis, Missouri 63103 Attention: Darryl T. Sagel, Vice President and Treasurer, Telephone: (314) 554-4108;and if sent to the Issuer, to it at Darryl T. Sagel, President and Treasurer, Attention: Ameren Missouri Securitization Funding I, LLC, 1901 Chouteau Avenue, St. Louis, Missouri 63103, Telephone: (314) 554-4108. The parties hereto, by notice to the others, may designate additional or different addresses for subsequent communications.

 

16.            Successors. This Underwriting Agreement will inure to the benefit of and be binding upon the parties hereto and their respective successors and the officers and directors and controlling persons referred to in Section 11 hereof, and no other person will have any legal or equitable right, remedy or claim under or with respect to this Underwriting Agreement or any provision herein contained.

 

17.            Applicable Law. This Underwriting Agreement will be governed by and construed in accordance with the laws of the State of New York.

 

 

THIS UNDERWRITING AGREEMENT AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS AGREEMENT, THE RELATIONSHIPS OF THE PARTIES AND/OR THE INTERPRETATIONS AND ENFORCEMENT OF THE RIGHTS AND DUTIES OF THE PARTIES SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO ITS CONFLICT OF LAW PROVISIONS (OTHER THAN SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW). EACH OF THE PARTIES HERETO HEREBY AGREES TO THE EXCLUSIVE JURISDICTION OF ANY STATE OR FEDERAL COURT LOCATED WITHIN THE STATE OF NEW YORK. EACH OF THE PARTIES HERETO HEREBY WAIVES ANY OBJECTION BASED ON FORUM NON CONVENIENS, AND ANY OBJECTION TO VENUE OF ANY ACTION INSTITUTED HEREUNDER IN ANY OF THE AFOREMENTIONED COURTS AND CONSENTS TO THE GRANTING OF SUCH LEGAL OR EQUITABLE RELIEF AS IS DEEMED APPROPRIATE BY SUCH COURT.

 

TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE PARTIES HERETO WAIVES ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE BETWEEN THE PARTIES HERETO ARISING OUT OF, CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP BETWEEN ANY OF THEM IN CONNECTION WITH THIS UNDERWRITING AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. INSTEAD, ANY SUCH DISPUTE RESOLVED IN COURT WILL BE RESOLVED IN A BENCH TRIAL WITHOUT A JURY.

 

18.            Counterparts. This Underwriting Agreement may be signed in any number of counterparts, each of which shall be deemed an original, which taken together shall constitute one and the same instrument. The words “execution,” “signed,” “signature,” “delivery,” and words of like import in or relating to this Underwriting Agreement or any document to be signed in connection with this Underwriting Agreement shall be deemed to include electronic signatures, deliveries or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature, physical delivery thereof or the use of a paper-based recordkeeping system, as the case may be, and the parties hereto consent to conduct the transactions contemplated hereunder by electronic means.

 

19.            Integration. This Agreement supersedes all prior agreements and understandings (whether written or oral) among the Issuer, Ameren and the Underwriters, or any of them, with respect to the subject matter hereof.

 

20.            Recognition of the U.S. Special Resolution Regimes

 

(a)            In the event that any Underwriter that is a Covered Entity becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer from such Underwriter of this Agreement, and any interest and obligation in or under this Underwriting Agreement, will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if this Underwriting Agreement, and any such interest and obligation, were governed by the laws of the United States or a state of the United States.

 

(b)            In the event that any Underwriter that is a Covered Entity or a BHC Act Affiliate of such Underwriter becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under this Underwriting Agreement that may be exercised against such Underwriter are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if this Underwriting Agreement were governed by the laws of the United States or a state of the United States.

 

 

“BHC Act Affiliate” has the meaning assigned to the term “affiliate” in, and shall be interpreted in accordance with, 12 U.S.C. § 1841(k).

 

“Covered Entity” means any of the following:

 

(i)

a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b);

 

(ii)

a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or

 

(iii)

a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).

 

“Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.

 

“U.S. Special Resolution Regime” means each of (i) the Federal Deposit Insurance Act and the regulations promulgated thereunder and (ii) Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act and the regulations promulgated thereunder.

 

 

If the foregoing is in accordance with your understanding of our agreement, please sign and return to us the enclosed duplicate hereof, whereupon this letter and your acceptance shall represent a binding agreement among Ameren, the Issuer and the Underwriters.

 

	Very truly yours,
	UNION ELECTRIC COMPANY D/B/A AMEREN MISSOURI
	By:
	Name:
	Title:
	AMEREN MISSOURI SECURITIZATION FUNDING I, LLC
	By:
	Name:
	Title:

 

 

The foregoing Underwriting Agreement is hereby confirmed and accepted by the Underwriters as of the date specified in Schedule I hereto.

 

	GOLDMAN SACHS & CO. LLC
	By:
	Name:
	Title:
	RBC CAPITAL MARKETS, LLC
	By:
	Name:
	Title:

 

 

SCHEDULE I

 

Underwriting Agreement dated [______]

 

Registration Statement Nos. 333-282616 and 333-282616-01

 

Underwriters: Goldman Sachs & Co. LLC and RBC Capital Markets, LLC

 

	c/o Goldman Sachs & Co. LLC
	Address:	200 West Street, 7th Floor
		New York, New York 10282
	Attention:

 

	c/o RBC Capital Markets, LLC
	Address:	Brookfield Place
		200 Vesey Street, 8th Floor
		New York, New York 10281
	Attention:

 

Title, Purchase Price and Description of Bonds:

 

Title:

Ameren Missouri Securitization Funding I, LLC Securitized Utility Tariff Bonds, Series 2024-A

 

		Total Principal Amount of Tranche		Bond Rate		Price to Public		Underwriting Discounts and Commissions		Proceeds to Issuer (Before Expenses)
Tranche A-1
Total		$[______]								$

 

Original Issue Discount (if any): $[_______] 

Redemption provisions:      None 

Other provisions:      None 

Closing Date, Time and Location:

[_____], 2024, 10:00 a.m.; offices of Hunton Andrews Kurth LLP, 200 Park Avenue, New York, New York 10166 and simultaneously in the offices of Norton Rose Fulbright US LLP; 555 California Street, Suite 3300, San Francisco, California 94104

 

 

SCHEDULE II

 

Principal Amount of Bonds to be Purchased

 

	Underwriter		Tranche A-1
	Goldman Sachs & Co. LLC
	RBC Capital Markets, LLC
	Total

 

 

SCHEDULE III

 

Schedule of Issuer Free Writing Prospectuses

 

A.            Free Writing Prospectuses not required to be filed

 

Electronic Road Show, [_____], 2024 through [_______], 2024

 

B.            Free Writing Prospectuses required to be filed pursuant to Rule 433

 

Preliminary Term Sheet, dated [______]

 

Pricing Term Sheet, dated [_________]

 

 

SCHEDULE IV

 

Descriptive List of Underwriter Provided Information

 

A.            Pricing Prospectus

 

(a) under the heading “PLAN OF DISTRIBUTION” in the Pricing Prospectus: (i) the paragraph immediately under “The Underwriters’ Sales Price for the Securitized Utility Tariff Bonds”; (ii) the third sentence under the caption “No Assurance as to Resale Price or Resale Liquidity for the Securitized Utility Tariff Bonds”; (iii) the entire first full paragraph under the caption “Various Types of Underwriter Transactions that May Affect the Price of the Securitized Utility Tariff Bonds” (except the last sentence thereof); and (iv) the second sentence of the second full paragraph and the last sentence of the fifth full paragraph under the caption “Various Types of Underwriter Transactions that May Affect the Price of the Securitized Utility Tariff Bonds”; and (b) under the heading “OTHER RISKS ASSOCIATED WITH AN INVESTMENT IN THE SECURITIZED UTILITY TARIFF BONDS” in the Pricing Prospectus, the first sentence under the caption “The absence of a secondary market for the securitized utility tariff bonds might limit your ability to resell your securitized utility tariff bonds”.

 

B.            Final Prospectus

 

under the heading “PLAN OF DISTRIBUTION” in the Final Prospectus: (i) the paragraph immediately under “The Underwriters’ Sales Price for the Securitized Utility Tariff Bonds”; (ii) the third sentence under the caption “No Assurance as to Resale Price or Resale Liquidity for the Securitized Utility Tariff Bonds”; (iii) the entire first full paragraph under the caption “Various Types of Underwriter Transactions that May Affect the Price of the Securitized Utility Tariff Bonds” (except the last sentence thereof) and (iv) the second sentence of the second full paragraph and the last sentence of the fifth full paragraph under the caption “Various Types of Underwriter Transactions Which May Affect the Price of the Securitized Utility Tariff Bonds”; and (c) under the heading “OTHER RISKS ASSOCIATED WITH AN INVESTMENT IN THE SECURITIZED UTILITY TARIFF BONDS” in the Final Prospectus, the first sentence under the caption “The absence of a secondary market for the securitized utility tariff bonds might limit your ability to resell your securitized utility tariff bonds”.

 

 

 

Exhibit 5.1

 

FILE NO: 059192.0000010

 

November 15, 2024

 

Union Electric Company d/b/a Ameren Missouri

1901 Chouteau Avenue

St. Louis, Missouri 63103

 

Ameren Missouri Securitization Funding I, LLC

1901 Chouteau Avenue

St. Louis, Missouri 63103

 

Re:           Union Electric Company d/b/a Ameren Missouri

Registration Statement on Form SF-1

 

To the Addressees:

 

We have acted as counsel to Union Electric Company d/b/a Ameren Missouri, a Missouri corporation (“Ameren Missouri”), and Ameren Missouri Securitization Funding I, LLC, a Delaware limited liability company (the “Company”), in connection with the preparation of the Registration Statement filed on Form SF-1 (Registration Nos. 333-282616 and 333-282616-01) filed on October 11, 2024 and as amended by Amendment No. 1 filed on October 28, 2024 and as amended by Amendment No. 2 filed on November 15. 2024 (collectively, the “Registration Statement”) with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Securities Act”), relating to the proposed issuance of up to $476,121,000 of Securitized Utility Tariff Bonds, Series 2024-A (the “Bonds”) of the Company to be offered in such manner as described in the prospectus (the “Prospectus”) included as part of the Registration Statement. The Bonds are to be issued under an Indenture (the “Base Indenture”) to be entered into among the Company, The Bank of New York Mellon Trust Company, National Association, as indenture trustee (the “Indenture Trustee”) and as securities intermediary and account bank, as to be supplemented by a Series Supplement establishing the form(s), terms and other provisions of the Bonds (the “Series Supplement” and, together with the Base Indenture, the “Indenture”) between the Company and the Indenture Trustee, the form of each of which has been filed as an exhibit to the Registration Statement.

 

This opinion letter is being delivered in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act.

 

We are familiar with the proceedings taken and proposed to be taken by the Company in connection with the proposed authorization, issuance and sale of the Bonds. In rendering the opinions expressed below, we have examined and relied upon copies of the Registration Statement and the exhibits filed therewith, and the form of Indenture. We have also examined originals, or copies of originals certified to our satisfaction, of such agreements, documents, certificates and statements of government officials and other instruments, and have examined such questions of law and have satisfied ourselves as to such matters of fact, as we have considered relevant and necessary as a basis for the opinions expressed below. We have assumed (i) the genuineness of all signatures, (ii) the authenticity of all documents submitted to us as originals and (iii) the conformity to original documents of all documents submitted to us as certified or photostatic copies and the authenticity of the originals of such latter documents. In delivering the opinions expressed below, we have relied without independent verification, as to factual matters, on certifications and other written or oral statements of governmental and other public officials and of officers and representatives of the Company and Ameren Missouri. We have also assumed that the Indenture will be the valid and legally binding obligation of the Indenture Trustee without independent verification.

 

ATLANTA AUSTIN BANGKOK BEIJING BOSTON BRUSSELS CHARLOTTE DALLAS DUBAI HOUSTON

LONDON LOS ANGELES MIAMI NEW YORK RICHMOND SAN FRANCISCO TOKYO TYSONS WASHINGTON, DC

www.HuntonAK.com

 

 

November 15, 2024

Page 2

 

Based on the foregoing, and subject to the qualifications and limitations hereinafter set forth, we are of the opinion that:

 

1. The Company is a limited liability company validly existing and in good standing under the laws of the State of Delaware;

 

2. The Company has limited liability company power and authority to execute and deliver the Indenture, to authorize and issue the Bonds and to perform its obligations under the Indenture and the Bonds; and

 

3. The Bonds will be validly issued and binding obligations of the Company when (i) the Registration Statement, as finally amended (including any post-effective amendments), shall have become effective under the Securities Act; (ii) the member or managers of the Company have taken all necessary limited liability company action to approve the issuance and establish the terms of the Bonds, the terms of the offering of the Bonds and related matters; (iii) the Indenture shall have been qualified under the Trust Indenture Act of 1939, as amended, and duly executed and delivered by the Company and the Indenture Trustee; and (iv) the Bonds shall have been duly executed and authenticated in accordance with the provisions of the Indenture and shall have been duly delivered to the purchasers thereof against payment of the agreed consideration therefor.

 

Our opinion in paragraph 3 above is subject to bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance, fraudulent transfer and other similar laws relating to or affecting creditors’ rights generally and to general equitable principles (regardless of whether considered in a proceeding in equity or at law), including concepts of commercial reasonableness, good faith and fair dealing and the possible unavailability of specific performance or injunctive relief.

 

We express no opinion herein as to the law of any jurisdiction other than the law of the State of New York and the Limited Liability Company Act of the State of Delaware.

 

 

November 15, 2024

Page 3

 

We hereby consent to (i) the filing of this opinion letter as an exhibit to the Registration Statement and to all references to us included in or made a part of the Registration Statement and (ii) the posting of a copy of this opinion letter to an internet website required under Rule 17g-5 under the Securities Exchange Act of 1934 and maintained by Ameren Missouri for the purpose of complying with such rule. In giving the foregoing consent, we do not hereby admit that we come within the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission thereunder. This opinion letter is limited to the matters stated herein, and no opinion may be implied or inferred beyond the matters expressly stated in this opinion letter. This opinion letter is given as of the date hereof, and we assume no obligation to advise you after the date hereof of facts or circumstances that come to our attention or changes in the law, including judicial or administrative interpretations thereof, that occur which could affect the opinions contained herein.

 

Very truly yours,

 

/s/ Hunton Andrews Kurth LLP

 

 

Exhibit 8.1

 

	Hunton AnDREWS KURTH LLP fILE NO.: 059192.0000010
November 15, 2024

 

Union Electric Company d/b/a Ameren Missouri 

1901 Chouteau Avenue 

St. Louis, Missouri 63103

 

Ameren Missouri Securitization Funding I, LLC 

1901 Chouteau Avenue 

St. Louis, Missouri 63103

 

Union Electric Company d/b/a Ameren Missouri
SECURITIZED UTILITY TARIFF BONDS

 

Ladies and Gentlemen:

 

We have acted as United States federal income tax counsel to Union Electric Company d/b/a Ameren Missouri, a Missouri corporation (“Ameren Missouri”), and Ameren Missouri’s wholly owned subsidiary, Ameren Missouri Securitization Funding I, LLC (the “Issuer”), in connection with the Registration Statement on Form SF-1 (File Nos. 333-282616 and 333-282616-01) (the “Registration Statement”) filed on October 11, 2024, and as amended by Amendment No. 1 filed on October 28, 2024, and Amendment No. 2 filed on November 15, 2024, with the Securities and Exchange Commission pursuant to the Securities Act of 1933, including the prospectus therein (the “Prospectus”) included as part of the Registration Statement, relating to the registration thereunder of the Issuer’s one tranche of Securitized Utility Tariff Bonds, Series 2024-A (the “Bonds”). The Issuer intends to issue the Bonds in an aggregate amount of $476,121,000, pursuant to an Indenture among the Issuer, as issuer, and The Bank of New York Mellon Trust Company, N.A. (“BNY”), as indenture trustee, securities intermediary and account bank, together with a Series Supplement between the Issuer and BNY establishing the form and terms of such Bonds (collectively the “Indenture”). Capitalized terms used and not defined herein have the respective meanings ascribed to them in the Prospectus. You have requested our opinion regarding certain U.S. federal income tax matters.

 

We have reviewed the Registration Statement, including the Prospectus, as part of the Registration Statement (collectively, the “Offering Documents”), relating to the Bonds, and the basic documents (as defined in the Prospectus, and together with the Offering Documents, the “Transaction Documents”).

 

ATLANTA AUSTIN BANGKOK BEIJING BOSTON BRUSSELS CHARLOTTE DALLAS DUBAI HOUSTON LONDON 

LOS ANGELES MIAMI NEW YORK RICHMOND SAN FRANCISCO TOKYO TYSONS WASHINGTON, DC 

www.huntonak.com

 

 

 

 

Union Electric Company d/b/a Ameren Missouri 

November 15, 2024 

Page 2

 

We are familiar with the proceedings taken by Ameren Missouri and the Issuer in connection with the authorization, issuance and sale of the Bonds. As to any facts material to the opinions expressed herein, we have relied, without independent verification, upon certificates and statements and representations and warranties of officers and other representatives and agents of Ameren Missouri, the Issuer, BNY and other parties and signatories to the Transaction Documents and their related exhibits and of public officials.

 

In rendering this opinion letter, except for the matters that are specifically addressed in the opinions expressed below, with your permission we have assumed, and are relying thereon without independent investigation, (i) the authenticity of all Transaction Documents submitted to us as originals or as copies thereof, and the conformity to the originals of all Transaction Documents submitted to us as copies, (ii) the genuineness of signatures, (iii) the legal capacity of natural persons signing the basic documents, (iv) the necessary entity formation and continuing existence in the jurisdiction of formation, and the necessary licensing and qualification in all jurisdictions, of the parties to all basic documents, (v) the necessary entity authorization, execution, delivery and enforceability (as limited by bankruptcy and other insolvency laws) of the basic documents, and the necessary entity power and authority with respect thereto, (vi) that each of the parties and signatories to the basic documents have complied and will comply (without waiver) with all of the provisions and representations and certifications of such basic documents, (vii) that the Issuer and the other parties and signatories to the basic documents have conducted and will conduct their activities only as provided in the Transaction Documents, (viii) that there has been no mutual mistake of fact or misunderstanding, fraud, duress or undue influence in connection with any Transaction Document and (ix) that there is not any other agreement that modifies or supplements the agreements expressed in any Transaction Document to which this opinion letter relates and that renders any of the opinions expressed below inconsistent with such Transaction Document as so modified or supplemented. Finally, we have assumed that the Securitization Law (as defined in the Prospectus) is valid and that the financing order (as defined in the Prospectus) issued by the Missouri Public Service Commission (“MoPSC”) on August 7, 2024, which became effective on August 17, 2024, is valid, complies with Missouri law, is in full force and effect, and is final and non-appealable.

 

In rendering this opinion letter, except for the matters that are specifically addressed in the opinions expressed below, we have made no inquiry, have conducted no investigation and assume no responsibility with respect to (a) the accuracy of and compliance by the parties thereto with the representations, financial calculations, warranties, covenants, certifications and assumptions as to factual matters contained in any Transaction Document or otherwise provided to us or (b) the conformity of the underlying assets and related documents to the requirements of any agreement to which this opinion letter relates.

 

 

 

 

Union Electric Company d/b/a Ameren Missouri 

November 15, 2024 

Page 3

 

Based upon the foregoing and based upon, in particular, Revenue Procedure 2005-62, 2005-2 C.B. 507 (the “Revenue Procedure”), and subject to the qualifications, representations, warranties, covenants, certifications, financial calculations and assumptions stated herein and in the Transaction Documents, we are of the opinion that if (i) all of the parties and signatories to the Transaction Documents comply (without waiver) with all of the provisions of the Indenture and the other Transaction Documents prepared and executed in connection with such transaction and (ii) the Bonds are issued as described in the Transaction Documents and not as part of another transaction or series of transactions that would require the Issuer, Ameren Missouri, any investor or any other participant to treat such transaction or transactions as subject to the disclosure, registration or list maintenance requirements of section 6011, 6111 or 6112 of the Internal Revenue Code, as amended (the “Code”), then, in each case below, solely for United States federal income tax purposes:

 

1.            the issuance of the Bonds will be a “qualifying securitization” within the meaning of the Revenue Procedure;

 

2.          the Bonds will be characterized as obligations of Ameren Missouri as expressly set forth in section 6.02 of the Revenue Procedure;

 

3.            the Issuer will not be treated as a taxable entity separate and apart from Ameren Missouri (the Issuer’s sole member); and

 

4.            Ameren Missouri will not be treated as recognizing gross income upon the issuance of the Bonds.

 

You should be aware that the above opinions represent our conclusions as to the application of existing law to the transaction described above. There can be no assurance, however, that contrary positions will not be taken by the Internal Revenue Service or that existing law, regulations, administrative rules and practice will not change. Any such change might be retroactive and might affect the opinions set forth above. We also caution you that our opinions depend upon the facts, qualifications, representations, warranties, covenants, certifications, financial calculations, assumptions and Transaction Documents to which this letter refers, which are subject to change, reinterpretation and misunderstanding. Our conclusion could differ if these items on which we have relied are, become or are found to be, different. No opinion has been sought, and none has been given, concerning the tax consequences of the transaction described herein or of the acquisition, ownership, or disposition of the Bonds under the laws of any state, locality or foreign jurisdiction.

 

 

 

 

Union Electric Company d/b/a Ameren Missouri 

November 15, 2024 

Page 4

 

These opinions are rendered as of the date hereof, speak only as of the date hereof and are based on the current provisions of the Code and the Treasury Regulations issued or proposed thereunder, revenue rulings, revenue procedures and other published releases of the Internal Revenue Service and current case law, any of which can change at any time. We undertake no obligation to update this opinion letter after the date hereof or advise you of changes in the event there is any change in legal authorities, facts, qualifications, representations, warranties, covenants, certifications, financial calculations, assumptions or Transaction Documents on which this opinion letter is based (including the taking of any action by any party or signatory to the basic documents or any amendments to any basic document pursuant to any opinion of counsel or a waiver), or any inaccuracy in any of these items upon which we have relied in rendering this opinion letter, unless we are specifically engaged to do so.

 

In rendering this opinion letter, other than as expressly stated above, we do not express any opinion concerning any law other than the federal income tax laws of the United States, including without limitation the Code, Treasury Regulations promulgated thereunder and administrative and judicial interpretations thereof, all of which are subject to change. We do not express any opinion herein with respect to any matter not specifically addressed in the opinions expressed above, including without limitation, (i) any statute, regulation or provision of law of any state, county, municipality or other political subdivision or any agency or instrumentality thereof, (ii) the securities laws of any jurisdiction or (iii) the tax laws of any jurisdiction (other than the federal income tax laws of the United States and only as specifically described in the opinions above). Additional issues may exist that could affect the United States federal tax treatment of the transaction that is the subject of this opinion letter, and this opinion letter does not consider or provide a conclusion with respect to any such additional issues.

 

We are furnishing this opinion letter to you and this opinion letter is not to be relied on, circulated, quoted or otherwise referred to for any other purpose. We hereby consent, however, to (a) the posting of a copy of this opinion letter to an internet website required under Rule 17g-5 under the Securities Exchange Act of 1934, as amended, and maintained by Ameren Missouri solely for the purpose of complying with such rule and (b) the filing of this opinion letter as Exhibit 8.1 to the Registration Statement and the incorporation thereof in the Registration Statement and the use of our name under the captions “Material U.S. Federal Income Tax Consequences” and “Legal Matters” in the Prospectus. In giving this consent, we do not admit that we are in the category of persons whose consent is required by Section 7 of the Securities Act of 1933, as amended, or the rules and regulations promulgated thereunder by the Securities and Exchange Commission.

 

	Very truly yours,
	/s/ Hunton Andrews Kurth

 

 

 

Exhibit 10.2

 

SECURITIZED UTILITY TARIFF PROPERTY PURCHASE AND SALE AGREEMENT

 

by and between

 

AMeren missouri securitization funding i, llc,

 

as Issuer

 

and

 

union electric company d/b/a ameren missouri,

 

as Seller

 

Dated as of [Closing Date], 2024

 

 

TABLE OF CONTENTS
		Page

 

ARTICLE I DEFINITIONS

1

SECTION 1.01.	Definitions	1
SECTION 1.02.	Other Definitional Provisions	2

 

ARTICLE II CONVEYANCE OF SECURITIZED UTILITY TARIFF PROPERTY

2

SECTION 2.01.	Conveyance of Securitized Utility Tariff Property	2
SECTION 2.02.	Conditions to Sale of Securitized Utility Tariff Property	3

 

ARTICLE III REPRESENTATIONS AND WARRANTIES OF SELLER

4

SECTION 3.01.	Organization and Good Standing	4
SECTION 3.02.	Due Qualification	5
SECTION 3.03.	Reserved	5
SECTION 3.04.	Binding Obligation	5
SECTION 3.05.	No Violation	5
SECTION 3.06.	No Proceedings	5
SECTION 3.07.	Consents and Approvals	6
SECTION 3.08.	The Securitized Utility Tariff Property	6
SECTION 3.09.	Change in Law	9
SECTION 3.10.	Limitations on Representations and Warranties	9

 

ARTICLE IV COVENANTS OF THE SELLER

9

SECTION 4.01.	Existence	9
SECTION 4.02.	No Liens	10
SECTION 4.03.	Delivery of Collections; Sale of Certain Assets	10
SECTION 4.04.	Notice of Liens	10
SECTION 4.05.	Compliance with Law	11
SECTION 4.06.	Covenants Related to Securitized Utility Tariff Bonds and Securitized Utility Tariff Property	11
SECTION 4.07.	Protection of Title	12
SECTION 4.08.	Nonpetition Covenants	13
SECTION 4.09.	Taxes	13
SECTION 4.10.	Notice of Breach to Rating Agencies, Etc.	13
SECTION 4.11.	Use of Proceeds	13
SECTION 4.12.	Further Assurances	14

 

ARTICLE V THE SELLER

14

SECTION 5.01.	Liability of Seller; Indemnities	14
SECTION 5.02.	Merger, Conversion or Consolidation of, or Assumption of the Obligations of, Seller	15
SECTION 5.03.	Limitation on Liability of Seller and Others	15

 

 

ARTICLE VI MISCELLANEOUS PROVISIONS

15

SECTION 6.01.	Amendment	15
SECTION 6.02.	Notices	16
SECTION 6.03.	Assignment	17
SECTION 6.04.	Limitations on Rights of Third Parties	17
SECTION 6.05.	Severability	17
SECTION 6.06.	Separate Counterparts	17
SECTION 6.07.	Headings	18
SECTION 6.08.	Governing Law	18
SECTION 6.09.	Assignment to Indenture Trustee	18
SECTION 6.10.	Limitation of Liability	18
SECTION 6.11.	Waivers	18
EXHIBIT A	Form of Intercreditor Agreement

 

 

This SECURITIZED UTILITY TARIFF PROPERTY PURCHASE AND SALE AGREEMENT, dated as of [Closing Date], 2024 (this “Agreement”), is between Ameren Missouri Securitization Funding I, LLC, a Delaware limited liability company (the “Issuer”), and Union Electric Company d/b/a Ameren Missouri, a Missouri corporation (together with its successors in interest to the extent permitted hereunder, the “Seller” or “Ameren Missouri”).

 

RECITALS

 

WHEREAS, the Issuer desires to purchase the Securitized Utility Tariff Property created pursuant to the Securitization Law and the Financing Order and as further described in the Issuance Advice Letter;

 

WHEREAS, the Seller is willing to sell its rights and interests in and to the Securitized Utility Tariff Property to the Issuer whereupon such rights and interests will become the Securitized Utility Tariff Property;

 

WHEREAS, the Issuer, in order to finance the purchase of the Securitized Utility Tariff Property, will enter into that certain Indenture, dated as of the date hereof (as amended, restated, supplemented or otherwise modified from time to time, the “Indenture”) between the Issuer and The Bank of New York Mellon Trust Company, N.A., a national banking association, in its capacity as Indenture Trustee (the “Indenture Trustee”) and in its separate capacity as a securities intermediary (the “Securities Intermediary”), and issue the Securitized Utility Tariff Bonds thereunder and under the Series Supplement (as defined in the Indenture); and

 

WHEREAS, the Issuer, to secure its obligations under the Securitized Utility Tariff Bonds and the Indenture, will pledge, among other things, all right, title and interest of the Issuer in and to the Securitized Utility Tariff Property and this Agreement to the Indenture Trustee for the benefit of the Secured Parties.

 

AGREEMENT

 

NOW, THEREFORE, in consideration of the premises and the mutual covenants herein contained and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

 

ARTICLE I

DEFINITIONS

 

SECTION 1.01.         Definitions.

 

(a)            Unless otherwise defined herein, capitalized terms used herein shall have the meanings specified in the Indenture (including Appendix A attached thereto).

 

(b)            Whenever used in this Agreement, the following words and phrases shall have the following meanings:

 

 

“Securitized Utility Tariff Charge Rider SUR” means that rate tariff filed with the MoPSC as the Issuance Advice Letter delivered pursuant to the Financing Order to evidence the Securitized Utility Tariff Charges, as amended.

 

SECTION 1.02.         Other Definitional Provisions.

 

(a)            All terms defined in this Agreement shall have the defined meanings when used in any certificate or other document made or delivered pursuant hereto unless otherwise defined therein.

 

(b)            The words “hereof,” “herein,” “hereunder” and words of similar import, when used in this Agreement, shall refer to this Agreement as a whole and not to any particular provision of this Agreement; Section, Schedule and Exhibit references contained in this Agreement are references to Sections, Schedules and Exhibits in or to this Agreement unless otherwise specified; and the term “including” shall mean “including without limitation”.

 

(c)            The definitions contained in this Agreement are applicable to the singular as well as the plural forms of such terms.

 

ARTICLE II
CONVEYANCE OF SECURITIZED UTILITY TARIFF PROPERTY

 

SECTION 2.01.         Conveyance of Securitized Utility Tariff Property.

 

(a)            In consideration of the Issuer’s payment to the Seller of $[ ], subject to the conditions specified in Section 2.02, the Seller does hereby irrevocably sell, transfer, assign, set over and otherwise convey to the Issuer, without recourse except as otherwise set forth herein, all rights and interests of the Seller in and to the Securitized Utility Tariff Property (such sale, transfer, assignment, set over and conveyance of the Securitized Utility Tariff Property includes, to the fullest extent permitted by the Securitization Law, the assignment of all revenues, collections, claims, rights to payments, payments, money, or proceeds of or arising from the Securitized Utility Tariff Charges and the Securitized Utility Tariff Charge Rider SUR. Such sale, transfer, assignment, set over and conveyance is hereby expressly stated to be a sale and, pursuant to Sections 393.1700.5.(3)(a) and (b) of the Securitization Law, shall be treated as an absolute transfer of all of the Seller’s rights and interests (as in a true sale) and not as a pledge or other financing, of the Securitized Utility Tariff Property. This is the statement referred to in Sections 393.1700.5.(3)(a) and (b) of the Securitization Law. If such sale, transfer, assignment, set over and conveyance is held not to be a true sale as contemplated by Sections 393.1700.5.(3)(a) and (b) of the Securitization Law, then such sale, transfer, assignment, set over and conveyance shall be treated as the grant of a security interest in the Securitized Utility Tariff Property and the Seller hereby grants to the Issuer a security interest in the Securitized Utility Tariff Property and the proceeds thereof to secure its obligations hereunder.

 

(b)            Subject to Section 2.02, the Issuer does hereby purchase the Securitized Utility Tariff Property from the Seller for the consideration set forth in Section 2.01(a).

 

 

SECTION 2.02.         Conditions to Sale of Securitized Utility Tariff Property.

 

The obligation of the Issuer to purchase Securitized Utility Tariff Property on the Closing Date shall be subject to the satisfaction of each of the following conditions:

 

(i)            on or prior to the Closing Date, the Seller must duly execute and deliver this Agreement to the Issuer;

 

(ii)           on or prior to the Closing Date, the Seller shall have received the Financing Order authorizing the creation of the Securitized Utility Tariff Property;

 

(iii)          on or prior to the Closing Date, the Seller must have provided the Issuance Advice Letter to the MoPSC, and the MoPSC shall not have issued a disapproval letter directing the Bonds not be issued;

 

(iv)          as of the Closing Date, the Seller is not insolvent and will not have been made insolvent by such sale and the Seller is not aware of any pending insolvency with respect to itself;

 

(v)           as of the Closing Date, the representations and warranties of the Seller set forth in this Agreement shall be true and correct with the same force and effect as if made on the Closing Date (except to the extent that they relate to an earlier date); on and as of the Closing Date no breach of any covenant or agreement of the Seller contained in this Agreement has occurred and is continuing; and no Servicer Default shall have occurred and be continuing;

 

(vi)          as of the Closing Date, (A) the Issuer shall have sufficient funds available to pay the purchase price for the Securitized Utility Tariff Property to be conveyed on such date and (B) all conditions to the issuance of the Securitized Utility Tariff Bonds intended to provide such funds set forth in the Indenture shall have been satisfied or waived;

 

(vii)         on or prior to the Closing Date, the Seller shall have taken all action required to transfer to the Issuer ownership of the Securitized Utility Tariff Property to be conveyed on such date, free and clear of all Liens other than Liens created by the Issuer pursuant to the Basic Documents and to perfect such transfer, including, without limitation, filing any statements or filings under the Securitization Law or the UCC; and the Issuer or the Servicer, on behalf of the Issuer, shall have taken any action required for the Issuer to grant the Indenture Trustee a Lien and a first priority perfected security interest in the Securitized Utility Tariff Bond Collateral and maintain such security interest as of such date;

 

(viii)        the Seller shall have received and delivered to the Issuer and the Indenture Trustee an opinion or opinions of outside tax counsel (as selected by the Seller, and in form and substance reasonably satisfactory to the Issuer) to the effect that (A) the Issuer will not be subject to United States federal income tax as an entity separate from its sole owner and that the Securitized Utility Tariff Bonds will be treated as debt of the Issuer’s sole owner for United States federal income tax purposes, and (B) for U.S. federal income tax purposes, the issuance of the Securitized Utility Tariff Bonds will not result in gross income to the Seller. The opinion of outside tax counsel described above may, if the Seller so chooses, be conditioned on the receipt by the Seller of one or more letter rulings from the Internal Revenue Service (unless the Internal Revenue Service has announced that it will not rule on the issues described in this paragraph) and in rendering such opinion outside tax counsel shall be entitled to rely on the rulings contained in such ruling letters and to rely on the representations made, and information supplied, to the Internal Revenue Service in connection with such letter rulings;

 

 

(ix)           on and as of the Closing Date, each of the LLC Agreement, the Servicing Agreement, this Agreement, the Indenture, the Financing Order, the Securitized Utility Tariff Charge Rider SUR and the Securitization Law shall be in full force and effect; and

 

(x)            the Seller shall have delivered to the Indenture Trustee and the Issuer an Officers’ Certificate confirming the satisfaction of each condition precedent specified in this Section 2.02.

 

ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SELLER

 

Subject to Sections 3.10, the Seller makes the following representations and warranties, as of the Closing Date, and the Seller acknowledges that the Issuer has relied thereon in acquiring the Securitized Utility Tariff Property. The representations and warranties shall survive the sale and transfer of Securitized Utility Tariff Property to the Issuer and the pledge thereof to the Indenture Trustee pursuant to the Indenture. The Seller agrees that (i) the Issuer may assign the right to enforce the following representations and warranties to the Indenture Trustee and (ii) the representations and warranties inure to the benefit of the Issuer and the Indenture Trustee.

 

SECTION 3.01.         Organization and Good Standing.

 

(a)            The Seller is a corporation duly organized and validly existing and in good standing under the laws of the State of Missouri, with requisite corporate power and authority (i) to own its properties as owned on the Closing Date and to conduct its business as conducted by it on the Closing Date, (ii) to obtain the Financing Order and to own, sell and transfer Securitized Utility Tariff Property and (iii) to execute, deliver and perform the terms of this Agreement and the execution, delivery and performance of this Agreement have been duly authorized by all necessary action on the part of the Seller under its organizational or governing documents and laws.

 

(b)            After giving effect to the sale of the Securitized Utility Tariff Property under this Agreement, the Seller: (i) is solvent and expects to remain solvent, (ii) is adequately capitalized to conduct its business and affairs considering its size and the nature of its business and intended purposes, (iii) is not engaged and does not expect to engage in a business for which its remaining property represents an unreasonably small portion of its capital, (iv) reasonably believes that it will be able to pay its debts as they become due and (v) is able to pay its debts as they mature and does not intend to incur, nor does it believe that it will incur, indebtedness that it will not be able to repay at its maturity.

 

 

SECTION 3.02.         Due Qualification.

 

The Seller is duly qualified to do business in Missouri and is in good standing, and has obtained all necessary licenses and approvals, in all jurisdictions in which the ownership or lease of property or the conduct of its business shall require such qualifications, licenses or approvals (except where the failure to so qualify or obtain such licenses and approvals would not be reasonably likely to have a material adverse effect on the Seller’s business, operations, assets, revenues or properties).

 

SECTION 3.03.         Reserved.

 

SECTION 3.04.         Binding Obligation.

 

This Agreement constitutes a legal, valid and binding obligation of the Seller enforceable against it in accordance with its terms, subject to applicable insolvency, reorganization, moratorium, fraudulent transfer and other laws relating to or affecting creditors’ or secured parties’ rights generally from time to time in effect and to general principles of equity (including concepts of materiality, reasonableness, good faith and fair dealing), regardless of whether considered in a proceeding in equity or at law.

 

SECTION 3.05.         No Violation.

 

The consummation by the Seller of the transactions contemplated by this Agreement and the fulfillment of the terms of this Agreement (a) do not conflict with the organizational documents of the Seller or any indenture or other agreement or instrument to which the Seller is a party or by which it or any of its property is bound, nor will consummation by the Seller of the transactions contemplated hereunder result in the creation or imposition of any Lien upon its properties pursuant to the terms of such indenture, agreement or other instrument (other than any that may be granted under the Basic Documents or the Lien arising under Section 393.1700.5.(2)(b) of the Securitization Law, the Financing Order and the Issuance Advice Letter) or violate any existing law or any existing order, rule or regulation applicable to the Seller and (b) is consistent with the Securitization Law and the Financing Order.

 

SECTION 3.06.         No Proceedings.

 

(a)            There are no proceedings pending and, to the Seller’s knowledge, there are no proceedings threatened and, to the Seller’s knowledge, there are no investigations pending or threatened, before any Governmental Authority having jurisdiction over the Seller or its properties involving or relating to the Seller or the Issuer or, to the Seller’s knowledge, any other Person: (i) asserting the invalidity of the Securitization Law, the Financing Order, the Issuance Advice Letter, this Agreement, any of the other Basic Documents or the Securitized Utility Tariff Bonds, (ii) seeking to prevent the issuance of the Securitized Utility Tariff Bonds or the consummation of any of the transactions contemplated by this Agreement or any of the other Basic Documents, (iii) seeking any determination or ruling that could reasonably be expected to materially and adversely affect the performance by the Seller of its obligations under, or the validity or enforceability of the Securitization Law, the Financing Order, the Issuance Advice Letter, this Agreement, any of the other Basic Documents or the Securitized Utility Tariff Bonds or (iv) seeking to adversely affect the federal income tax or state income or franchise tax classification of the Securitized Utility Tariff Bonds as debt.

 

 

(b)            There is no order by any court or regulatory agency providing for the revocation, alteration, limitation or other impairment of the Securitization Law, the Financing Order, the Issuance Advice Letter, the Securitized Utility Tariff Property or the Securitized Utility Tariff Charges or any rights arising under any of them or that seeks to enjoin the performance of any obligations under the Financing Order.

 

SECTION 3.07.         Consents and Approvals.

 

Except for financing statements under the Securitization Law, no governmental approvals, authorizations, consents, orders or other actions or filings, other than filings under the Securitization Law, are required for the Seller to execute, deliver and perform its obligations under this Agreement except those which have been obtained or made or are required to be made by the Seller in the future pursuant to this Agreement.

 

SECTION 3.08.         The Securitized Utility Tariff Property.

 

(a)            Information. Subject to subsection (f) below, at the Closing Date, all written information, as amended or supplemented from time to time, provided by the Seller to the Issuer with respect to the Securitized Utility Tariff Property (including the Expected Sinking Fund Schedule, the Financing Order and the Issuance Advice Letter relating to the Securitized Utility Tariff Property) is true and correct in all material respects.

 

(b)            Title. It is the intention of the parties hereto that (other than for federal income tax purposes and, to the extent consistent with applicable state tax law, state income and franchise tax purposes) the transfers and assignments herein contemplated each constitute a sale and absolute transfer of the Securitized Utility Tariff Property from the Seller to the Issuer and that no interest in, or right or title to, the Securitized Utility Tariff Property shall be part of the Seller’s estate in the event of the filing of a bankruptcy petition by or against the Seller under any bankruptcy law. No portion of the Securitized Utility Tariff Property has been sold, transferred, assigned or pledged or otherwise conveyed by the Seller to any Person other than the Issuer, and no security agreement, financing statement or equivalent security or lien instrument listing the Seller as debtor covering all or any part of the Securitized Utility Tariff Property is on file or of record in any jurisdiction, except such as may have been filed, recorded or made in favor of the Issuer or the Indenture Trustee in connection with the Basic Documents. The Seller has not authorized the filing of and is not aware (after due inquiry) of any financing statement against it that includes a description of collateral including the Securitized Utility Tariff Property other than any financing statement filed, recorded or made in favor of the Issuer or the Indenture Trustee in connection with the Basic Documents. The Seller is not aware (after due inquiry) of any judgment or tax lien filings against either the Seller or the Issuer. At the Closing Date, immediately prior to the sale of the Securitized Utility Tariff Property hereunder, the Seller is the original and the sole owner of the Securitized Utility Tariff Property free and clear of all Liens and rights of any other Person, and no offsets, defenses or counterclaims exist or have been asserted with respect thereto.

 

(c)            Transfer Filings. On the Closing Date, immediately upon the sale under this Agreement, the Securitized Utility Tariff Property transferred on the Closing Date shall be validly transferred and sold to the Issuer, the Issuer shall own all such Securitized Utility Tariff Property, free and clear of all Liens, except for the Lien arising under Section 393.1700.5.(2)(b) of the Securitization Law, the Financing Order and the Issuance Advice Letter, and all filings and action to be made or taken by the Seller (including filings with the Secretary of State of Missouri under the Securitization Law) necessary in any jurisdiction to give the Issuer a perfected ownership interest (subject to any Lien created by the Issuer or by the Securitization Law in favor of the Holder under the basic documents or the Securitization Law) in the Securitized Utility Tariff Property shall have been made.

 

 

(d)            Financing Order, Issuance Advice Letter and Tariff; Other Approvals. Under the laws of the State of Missouri (including the Securitization Law) and the United States in effect on the Closing Date: (i) the Financing Order and the Issuance Advice Letter pursuant to which the rights and the interests of the Seller in the Securitized Utility Tariff Property have been created, including the right to impose, bill, charge, collect and receive the Securitized Utility Tariff Charges and the interest in and to the Securitized Utility Tariff Property, has become final and non-appealable and is in full force and effect, and the Seller has validly and irrevocably consented to the terms of the Financing Order, (ii) as of the Closing Date, the Securitized Utility Tariff Bonds are entitled to the protection provided under Section 393.1700.11 of the Securitization Law, (iii) the process by which the Financing Order was approved and the Financing Order, the Issuance Advice Letter and the Securitized Utility Tariff Charge Rider SUR comply with all applicable laws and regulations and the Seller has provided the certification to the MoPSC required by the Issuance Advice Letter, (iv) the Issuance Advice Letter and the Securitized Utility Tariff Charge Rider SUR have been provided to the MoPSC in accordance with the Financing Order, (v) no other approval, authorization, consent, order or other action of, or filing with any Governmental Authority is required on the part of the Seller in connection with the creation of the Securitized Utility Tariff Property, except those that have been obtained or made, and (vi) under the “contract clause” of the U.S. Constitution and the “contract clause” of the Missouri Constitution, Holders of the Securitized Utility Tariff Bonds could, absent a demonstration by the State of Missouri that such action is necessary to further a significant and legitimate public purpose, successfully challenge the constitutionality of any legislative action that impairs or reduces the value of the Securitized Utility Tariff Property or the Securitized Utility Tariff Charges so as to impair (a) the terms of the Indenture or the Securitized Utility Tariff Bonds or (b) the rights and remedies of the bondholders determined by such court to limit, alter, impair or reduce the value of the Securitized Utility Tariff Property or the Securitized Utility Tariff Charges prior to the time that the Securitized Utility Tariff Bonds are fully paid and discharged.

 

(e)            State Action. Under the Securitization Law, the State of Missouri and its agencies, including the MoPSC, have pledged for the benefit and protection of the bondholders, the owners of the Securitized Utility Tariff Property , other financing parties and the Issuer, that it will not alter the provisions of the Securitization Law, take or permit any action that would impair the value of the Securitized Utility Tariff Property transferred on such date, or, except as permitted by Section 393.1700.2(3)(c)e of the Securitization Law, reduce, alter or impair the Securitized Utility Tariff Charges relating to the Securitized Utility Tariff Property until any and all principal, interest, premium, financing costs and other fees, expenses, or charges incurred and contracts to be performed in connection with the Securitized Utility Tariff Bonds relating to the Securitized Utility Tariff Property have been paid and performed in full.

 

 

(f)             Assumptions. On the Closing Date, based upon the information available to the Seller on such date, the assumptions used in calculating the Securitized Utility Tariff Charges are reasonable and are made in good faith. Notwithstanding the foregoing, the Seller makes no representation or warranty, express or implied, that amounts actually collected arising from those Securitized Utility Tariff Charges will in fact be sufficient to meet the payment obligations on the related Securitized Utility Tariff Bonds or that the assumptions used in calculating such Securitized Utility Tariff Charges will in fact be realized.

 

(g)            Creation of Securitized Utility Tariff Property. Upon the filing of the Issuance Advice Letter with respect to the Securitized Utility Tariff Property pursuant to the Financing Order: (i) the related rights and interests of the Seller under the Financing Order, including the right to impose, bill, charge, collect and receive the Securitized Utility Tariff Charges established pursuant to the Financing Order, will become Securitized Utility Tariff Property, (ii) the Securitized Utility Tariff Property will constitute an existing present intangible property right vested in the Holders, (iii) the Securitized Utility Tariff Property will include the right, title and interest of the Seller to the Securitized Utility Tariff Charge Rider SUR imposing the Securitized Utility Tariff Charges, and the right to obtain periodic true-up adjustments of the Securitized Utility Tariff Charges and all revenues, collections, claims, rights to payments, payments, money or proceeds of or arising from the rights and interests specified in the Financing Order, (iv) the owner of the Securitized Utility Tariff Property will be legally entitled to bill Securitized Utility Tariff Charges and collect payments in respect of the Securitized Utility Tariff Charges in the aggregate amount sufficient to pay or fund, in accordance with the Indenture, the interest on and principal of the Securitized Utility Tariff Bonds, to pay the fees and expenses of servicing the Securitized Utility Tariff Bonds, and to replenish the Capital Subaccount to the required capital level until the Securitized Utility Tariff Bonds are paid in full, and (v) the Securitized Utility Tariff Property will not be subject to any Lien, except for the lien arising under Section 393.1700.5.(2)(b) of the Securitization Law, the Financing Order and the Issuance Advice Letter.

 

(h)            Nature of Representations and Warranties. The representations and warranties set forth in this Section 3.08, insofar as they involve conclusions of law, are made not on the basis that the Seller purports to be a legal expert or to be rendering legal advice, but rather to reflect the parties’ good faith understanding of the legal basis on which the parties are entering into this Agreement and the other Basic Documents and the basis on which the Holders are purchasing the Securitized Utility Tariff Bonds, and to reflect the parties’ agreement that, if such understanding turns out to be incorrect or inaccurate, the Seller will be obligated to indemnify the Issuer and its permitted assigns (to the extent required by and in accordance with Section 5.01), and that the Issuer and its permitted assigns will be entitled to enforce any rights and remedies under the Basic Documents, on account of such inaccuracy to the same extent as if the Seller had breached any other representations or warranties hereunder.

 

(i)             Taxes. Under existing law as of the Closing Date, Holders will not be responsible for, nor will payments to Holders be reduced by, any sales tax, gross receipts tax, general corporation tax, single business tax, personal property tax, privilege tax, franchise or license tax, or other tax imposed on the Seller or the Issuer as a result of the sale and assignment of the Securitized Utility Tariff Property by the Seller to the Issuer, the acquisition of the Securitized Utility Tariff Property by the Issuer or the issuance and sale by the Issuer of the Securitized Utility Tariff Bonds, other than withholding of taxes applicable to Securitized Utility Tariff Bond payments and any taxes imposed as a result of a failure of the Issuer or the Seller to properly withhold or remit taxes imposed with respect to payments on any Securitized Utility Tariff Bond.

 

 

(j)             Prospectus. As of the date hereof, the information describing the Seller under the caption “The Depositor, Seller, Initial Servicer and Sponsor” in the prospectus dated [Pricing Date], 2024 relating to the Bonds is true and correct in all material respects.

 

(k)            Survival of Representations and Warranties. The representations and warranties set forth in this Section 3.08 shall survive the execution and delivery of this Agreement and may not be waived by any party hereto except pursuant to a written agreement executed in accordance with Article VI and as to which the Rating Agency Condition has been satisfied.

 

SECTION 3.09.         Change in Law.

 

The representations and warranties in this Agreement speak as of the Closing Date. Any change in the law by legislative enactment, constitutional amendment or voter initiative that renders untrue any of the representations or warranties in this Agreement will not constitute a breach under this Agreement.

 

SECTION 3.10.         Limitations on Representations and Warranties.

 

Without prejudice to any of the other rights of the parties, the Seller will not be in breach of any representation or warranty, as a result of a change in law by means of any legislative enactment, constitutional amendment or voter initiative. THE SELLER MAKES NO REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, THAT BILLED SECURITIZED UTILITY TARIFF COLLECTIONS WILL BE ACTUALLY COLLECTED FROM CONSUMERS.

 

ARTICLE IV
COVENANTS OF THE SELLER

 

SECTION 4.01.         Existence.

 

Subject to Section 5.02, so long as any of the Securitized Utility Tariff Bonds are Outstanding, the Seller (a) will keep in full force and effect its existence and remain in good standing under the laws of the jurisdiction of its organization, (b) will obtain and preserve its qualification to do business, in each case to the extent that in each such jurisdiction such existence or qualification is or shall be necessary to protect the validity and enforceability of this Agreement, the other Basic Documents to which the Seller is a party and each other instrument or agreement necessary or appropriate to the proper administration of this Agreement and the transactions contemplated hereby or to the extent necessary for the Seller to perform its obligations hereunder or thereunder and (c) will continue to operate its transmission and distribution system to provide electrical service to its customers.

 

 

SECTION 4.02.         No Liens.

 

Except for the conveyances hereunder or any Lien under or in accordance with arising under Section 393.1700.5.(2)(b) of the Securitization Law for the benefit of the Issuer, Holders or the Indenture Trustee and any Lien that may be granted under the Basic Documents, the Seller will not sell, pledge, assign or transfer, or grant, create, incur, assume or suffer to exist any Lien on, any of the Securitized Utility Tariff Property, or any interest therein, and the Seller shall defend the right, title and interest of the Issuer and the Indenture Trustee, on behalf of the Secured Parties, in, to and under the Securitized Utility Tariff Property against all claims of third parties claiming through or under the Seller. Ameren Missouri, in its capacity as Seller, will not at any time assert any Lien against, or with respect to, any of the Securitized Utility Tariff Property.

 

SECTION 4.03.         Delivery of Collections; Sale of Certain Assets.

 

(a)            In the event that the Seller receives any Securitized Utility Tariff Charge Collections or other payments in respect of the Securitized Utility Tariff Charges or the proceeds thereof other than in its capacity as the Servicer, the Seller agrees to pay to the Servicer, on behalf of the Issuer, all payments received by it in respect thereof as soon as practicable after receipt thereof. Prior to such remittance to the Servicer by the Seller, the Seller agrees that such amounts are held by it in trust for the Issuer and the Indenture Trustee.

 

(b)            The Seller shall not continue as or become a party to any future trade receivables purchase and sale agreement or similar arrangement under which it sells all or any portion of its accounts receivables owing from Customers unless the Rating Agency Condition shall be satisfied with respect to the Securitized Utility Tariff Bonds prior to or coincident with such additional arrangement and the Indenture Trustee, the Seller and the other parties to such additional arrangement shall have entered into an Intercreditor Agreement in a form substantially similar to Exhibit A hereto in connection therewith and the terms of the documentation evidencing such trade receivables purchase and sale arrangement or similar arrangement shall expressly exclude Securitized Utility Tariff Property (including Securitized Utility Tariff Charges) from any receivables or other assets pledged or sold under such arrangement.

 

(c)            If the Seller enters into a sale agreement selling to any Affiliate property or similar property, consisting of nonbypassable charges payable by Customers comparable to those sold by the Seller pursuant to this Agreement, the Rating Agency Condition shall be satisfied with respect to the Securitized Utility Tariff Bonds prior to or coincident with such sale and the Indenture Trustee, the Seller and the other parties to such additional arrangement shall enter into an Intercreditor Agreement in a form substantially similar to Exhibit A hereto with the Issuer, the Indenture Trustee, the issuing entity of any such Additional Securitization Bonds and the trustee for such Additional Securitization Bonds.

 

SECTION 4.04.         Notice of Liens.

 

The Seller shall notify the Issuer and the Indenture Trustee promptly after becoming aware of any Lien on any of the Securitized Utility Tariff Property, other than the conveyances hereunder, any Lien under the Basic Documents or any Lien under or in accordance with Section 393.1700.5.(2)(b) of the Securitization Law or the UCC in favor of the Indenture Trustee for the benefit of the Holders.

 

 

SECTION 4.05.         Compliance with Law.

 

The Seller hereby agrees to comply with its organizational or governing documents and all laws, treaties, rules, regulations and determinations of any Governmental Authority applicable to it, except to the extent that failure to so comply would not materially adversely affect the Issuer’s or the Indenture Trustee’s interests in the Securitized Utility Tariff Property or under any of the other Basic Documents to which the Seller is party or the Seller’s performance of its obligations hereunder or under any of the other Basic Documents to which it is party.

 

SECTION 4.06.         Covenants Related to Securitized Utility Tariff Bonds and Securitized Utility Tariff Property.

 

(a)            So long as any of the Securitized Utility Tariff Bonds are Outstanding, the Seller shall treat the Securitized Utility Tariff Property as the Issuer’s property for all purposes other than financial reporting, state or federal regulatory or tax purposes, and treat the Securitized Utility Tariff Bonds as debt for all purposes and specifically as debt of the Issuer, other than for financial reporting, state or federal regulatory or tax purposes.

 

(b)            Solely for U.S. federal tax purposes and, to the extent consistent with applicable state, local and other tax law, for purposes of state, local and other taxes, so long as any of the Securitized Utility Tariff Bonds are Outstanding, the Seller agrees to treat the Securitized Utility Tariff Bonds as indebtedness of the Seller (as the sole owner of the Issuer) secured by the Securitized Utility Tariff Bond Collateral unless otherwise required by appropriate taxing authorities.

 

(c)            So long as any of the Securitized Utility Tariff Bonds are Outstanding, the Seller shall disclose in its financial statements that the Issuer and not the Seller is the owner of the Securitized Utility Tariff Property and that the assets of the Issuer are not available to pay creditors of the Seller or its Affiliates (other than the Issuer).

 

(d)            So long as any of the Securitized Utility Tariff Bonds are Outstanding, the Seller shall not own or purchase any Securitized Utility Tariff Bonds.

 

(e)            So long as the Securitized Utility Tariff Bonds are Outstanding, the Seller shall disclose the effects of all transactions between the Seller and the Issuer in accordance with generally accepted accounting principles.

 

(f)            The Seller agrees that upon the sale by the Seller of the Securitized Utility Tariff Property to the Issuer pursuant to this Agreement, (i) to the fullest extent permitted by law, the Issuer shall have all of the rights originally held by the Seller with respect to the Securitized Utility Tariff Property, including the right to exercise any and all rights and remedies to collect any amounts payable by any Customer in respect of the Securitized Utility Tariff Property, notwithstanding any objection or direction to the contrary by the Seller and (ii) any payment by any Customer to the Issuer shall discharge such Customer’s obligations in respect of such Securitized Utility Tariff Property to the extent of such payment, notwithstanding any objection or direction to the contrary by the Seller.

 

(g)            So long as any of the Securitized Utility Tariff Bonds are Outstanding, (i) in all proceedings relating directly or indirectly to the Securitized Utility Tariff Property, the Seller shall affirmatively certify and confirm that it has sold all of its rights and interests in and to such property (other than for financial reporting or tax purposes), (ii) the Seller shall not make any statement or reference in respect of the Securitized Utility Tariff Property that is inconsistent with the ownership interest of the Issuer (other than for financial accounting, state or regulatory or tax purposes), (iii) the Seller shall not take any action in respect of the Securitized Utility Tariff Property except solely in its capacity as Servicer pursuant to the Servicing Agreement or as otherwise contemplated by the Basic Documents, (iv) the Seller will not sell Securitized Utility Tariff Property, or property similar to Securitization Utility Tariff Property, under a separate financing order in connection with the issuance of Additional Securitization Bonds or other similar bonds unless the Rating Agency Condition shall have been satisfied; and (v) neither the Seller nor the Issuer shall take any action, file any tax return, or make any election inconsistent with the treatment of the Issuer, for purposes of federal income taxes and, to the extent consistent with applicable state, local and other tax law, for purposes of state, local and other taxes, as a disregarded entity that is not separate from the Seller (or, if relevant, from another sole owner of the Issuer, as the issuer).

 

 

(h)            The Seller agrees not to withdraw the filing of the Issuance Advice Letter with the MoPSC.

 

(i)             The Seller shall make all reasonable efforts to keep each Tariff that relates to the Securitized Utility Tariff Property in full force and effect at all times.

 

(j)             Promptly after obtaining knowledge of any breach in any material respect of its representations and warranties in this Agreement, the Seller shall notify the Issuer, the Indenture Trustee, the MoPSC and the Rating Agencies of the breach.

 

(k)            The Seller shall use the proceeds of the sale of the Securitized Utility Tariff Property in accordance with the Financing Order and the Securitization Law.

 

(l)             Upon the request of the Issuer, the Seller shall execute and deliver such further instruments and do such further acts as may be necessary to carry out the provisions and purposes of this Agreement.

 

SECTION 4.07.         Protection of Title.

 

The Seller shall execute and file the filings required by law to fully preserve, maintain, protect and perfect and continue the perfection of the interests of the Issuer in the Securitized Utility Tariff Property and the Indenture Trustee’s Lien on the Securitized Utility Tariff Property, including all filings required under the Securitization Law and the UCC relating to the transfer of the ownership of the rights and interests related to the Securitized Utility Tariff Bonds under the Financing Order by the Seller to the Issuer and the pledge of the Securitized Utility Tariff Property to the Indenture Trustee. The Seller will institute any action or proceeding necessary to compel performance by the MoPSC, the State of Missouri or any of their respective agents of any of their obligations or duties under the Securitization Law, the Financing Order or the Issuance Advice Letter. The Seller also agrees to take those legal or administrative actions, including defending against or instituting and pursuing legal actions and appearing or testifying at hearings or similar proceedings, in each case, that may be reasonably necessary (i) to protect the Issuer and Secured Parties from claims, state actions or other actions or proceedings of third parties which, if successfully pursued, would result in a breach of any representation or warranty of the Seller set forth in Article III, and the costs of any such actions or proceedings will be paid by the Seller and (ii) to block or overturn any attempts to cause a repeal of, modification of or supplement to the Securitization Law, the Financing Order, the Issuance Advice Letter or the rights of Holders by legislative enactment or constitutional amendment that would be materially adverse to the Issuer or the Secured Parties or which would otherwise cause an impairment of the rights of the Issuer or the Secured Parties. The costs of any such actions or proceedings will be payable by the Seller.

 

 

SECTION 4.08.         Nonpetition Covenants.

 

Notwithstanding any prior termination of this Agreement or the Indenture, the Seller shall not, prior to the date which is one year and one day after the termination of the Indenture and payment in full of the Securitized Utility Tariff Bonds or any other amounts owed under the Indenture, petition or otherwise invoke or cause the Issuer to invoke the process of any Government Authority for the purpose of commencing or sustaining an involuntary case against the Issuer under any federal or state bankruptcy, insolvency or similar law, appointing a receiver, liquidator, assignee, trustee, custodian, sequestrator or other similar official of the Issuer or any substantial part of the property of the Issuer, or ordering the winding up or liquidation of the affairs of the Issuer.

 

SECTION 4.09.         Taxes.

 

So long as any of the Securitized Utility Tariff Bonds are Outstanding, the Seller shall, and shall cause each of its subsidiaries (including the Issuer) to, pay all material taxes, assessments and governmental charges imposed upon it or any of its properties or assets or with respect to any of its franchises, business, income or property before any penalty accrues thereon if the failure to pay any such taxes, assessments and governmental charges would, after any applicable grace periods, notices or other similar requirements, result in a Lien on the Securitized Utility Tariff Property; provided that no such tax need be paid if the Seller or one of its Affiliates is contesting the same in good faith by appropriate proceedings promptly instituted and diligently conducted and if the Seller or such Affiliate has established appropriate reserves as shall be required in conformity with generally accepted accounting principles.

 

SECTION 4.10.         Notice of Breach to Rating Agencies, Etc.

 

Promptly after obtaining knowledge thereof, in the event of a breach in any material respect (without regard to any materiality qualifier contained in such representation, warranty or covenant) of any of the Seller’s representations, warranties or covenants contained herein, the Seller shall promptly notify the Issuer, the Indenture Trustee, the MoPSC and the Rating Agencies of such breach. For the avoidance of doubt, any breach which would adversely affect scheduled payments on the Securitized Utility Tariff Bonds will be deemed to be a material breach for purposes of this Section 4.10.

 

SECTION 4.11.         Use of Proceeds.

 

The Seller shall use the proceeds of the sale of the Securitized Utility Tariff Property in accordance with the Financing Order and the Securitization Law.

 

 

SECTION 4.12.         Further Assurances.

 

Upon the request of the Issuer, the Seller shall execute and deliver such further instruments and do such further acts as may be reasonably necessary to carry out more effectually the provisions and purposes of this Agreement.

 

ARTICLE V
THE SELLER

 

SECTION 5.01.         Liability of Seller; Indemnities.

 

(a)            The Seller shall be liable in accordance herewith only to the extent of the obligations specifically undertaken by the Seller under this Agreement.

 

(b)            The Seller shall indemnify, defend and hold harmless the Issuer and the Indenture Trustee (for itself, for the benefit of the Holders) and each of the Issuer’s and the Indenture Trustee’s respective officers, directors, employees and agents and defend and hold harmless each such person from and against (i) any and all amounts of principal of and interest on the Securitized Utility Tariff Bonds not paid when due or when scheduled to be paid in accordance with their terms, (ii) any other amounts payable to any Person in connection with the Securitized Utility Tariff Bonds or in connection with the Securitized Utility Tariff Property, including but not limited to Indenture Trustee’s fees and expenses, that are not paid when due or when scheduled to be paid pursuant to the Indenture, (iii) the amount of any other deposits to the Collection Account required to have been made in accordance with the terms of the Basic Documents and retained in the Capital Subaccount, or in the Excess Funds Subaccount or released to the Issuer free of the lien of the Indenture, which are not made when so required, (iv) any reasonable costs and expenses incurred by such Person that are not recoverable pursuant to the Indenture and (v) any taxes payable by Holders resulting in a breach of Section 3.08(i), in each case to the extent resulting from the Seller’s breach of any of its representations, warranties or covenants contained in this Agreement, except to the extent of losses either resulting from the willful misconduct, bad faith or gross negligence of such indemnified Persons or resulting from a breach of representation or warranty made by such indemnified Persons in the Indenture or any other document that gives rise to the Seller’s breach. Indemnification under this paragraph shall survive the resignation or removal of the Indenture Trustee.

 

(c)            Notwithstanding Section 5.01(b) above, the Seller shall not be liable for any loss, damages, liability, obligation, claim, action, suit or payment resulting solely from a downgrade in the ratings on the Securitized Utility Tariff Bonds or for any consequential damages, including any loss of market value of the Securitized Utility Tariff Bonds resulting from any default or any downgrade of the ratings of the Securitized Utility Tariff Bonds.

 

(d)            The indemnities described in this Section will survive the termination of this Agreement and include reasonable fees and expenses of investigation and litigation, including reasonable attorneys’ fees and expenses. The Seller shall be liable in accordance herewith only to the extent of the obligations specifically undertaken by the Seller under this Agreement.

 

 

SECTION 5.02.         Merger, Conversion or Consolidation of, or Assumption of the Obligations of, Seller.

 

Any Person (a) into which the Seller may be merged, converted or consolidated and that succeeds to all or substantially all of the electric transmission and distribution business of the Seller, (b) that results from the division of the Seller into two or more Persons and succeeds to all or substantially all of the electric transmission and distribution business of the Seller, (c) that results from any merger or consolidation to which the Seller shall be a party and that succeeds to all or substantially all of the electric transmission and distribution business of the Seller, (d) that succeeds to the properties and assets of the Seller substantially as a whole, or succeeds to all or substantially all of the electric transmission and distribution business of the Seller, or (e) that otherwise succeeds to all or substantially all of the electric transmission and distribution business of the Seller, shall be the successor to the Seller under this Agreement without further act on the part of any of the parties to this Agreement; provided, further, that (i) immediately after giving effect to any transaction referred to above, no representation or warranty made by the Seller pursuant to Article III shall have been breached and, to the extent the Seller is the Servicer, no Servicer Default under the Servicing Agreement, and no event, that after notice or lapse of time, or both, would become a Servicer Default under the Servicing Agreement will have occurred and be continuing, (ii) the successor to the Seller must execute an agreement of assumption to perform every obligation of the Seller under this Agreement, (iii) the Rating Agencies shall have received prior written notice of such transaction, and (iv) the Seller shall have delivered to the Issuer and the Indenture Trustee an Officer’s Certificate and an Opinion of Counsel each stating that such consolidation, merger or succession and such agreement of assumption comply with this Section and that all conditions precedent, if any, provided for in this Agreement relating to such transaction have been complied with.

 

SECTION 5.03.         Limitation on Liability of Seller and Others.

 

The Seller and any director, officer, employee or agent of the Seller may rely in good faith on the advice of counsel or on any document of any kind, prima facie properly executed and submitted by any Person, respecting any matters arising hereunder. Subject to Section 4.07, the Seller shall not be under any obligation to appear in, prosecute or defend any legal action that is not incidental to its obligations under this Agreement, and that in its opinion may involve it in any expense or liability.

 

ARTICLE VI
MISCELLANEOUS PROVISIONS

 

SECTION 6.01.         Amendment.

 

This Agreement may be amended in writing by the Seller and the Issuer with ten (10) Business Days’ prior written notice to the Rating Agencies, but without the consent of any of the Holders (i) to cure any ambiguity, to correct or supplement any provisions in this Agreement or for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions in this Agreement or of modifying in any manner the rights of the Holders; provided, however, that such action shall not, as evidenced by an Officer’s Certificate delivered to the Issuer and the Indenture Trustee, adversely affect in any material respect the interests of any Holder or (ii) to conform the provisions hereof to the description of this Agreement in the Prospectus. Promptly after execution of any such amendment or consent, the Issuer shall furnish copies of such amendment or consent to each of the Rating Agencies.

 

 

In addition, this Agreement may be amended in writing by the Seller and the Issuer with (i) the prior written consent of the Indenture Trustee, (ii) the satisfaction of the Rating Agency Condition, and (iii) if any amendment would adversely affect in any material respect the interest of any Holder of the Securitized Utility Tariff Bonds, the consent of a majority of the Holders of each affected Tranche of Securitized Utility Tariff Bonds. In determining whether a majority of Holders have consented, Securitized Utility Tariff Bonds owned by the Issuer, Seller or any Affiliate of the Issuer or Seller shall be disregarded, except that, in determining whether the Indenture Trustee shall be protected in relying upon any such consent, the Indenture Trustee shall only be required to disregard any Securitized Utility Tariff Bonds it actually knows to be so owned. Promptly after the execution of any such amendment or consent, the Issuer shall furnish copies of such amendment or consent to each of the Rating Agencies.

 

It shall not be necessary for the consent of Holders pursuant to this Section to approve the particular form of any proposed amendment or consent, but it shall be sufficient if such consent shall approve the substance thereof.

 

Prior to the execution of any amendment to this Agreement, the Issuer and the Indenture Trustee shall be entitled to receive and rely upon an Opinion of Counsel from external counsel of the Seller stating that the execution of such amendment is authorized or permitted by this Agreement and that all conditions precedent have been satisfied and the Opinion of Counsel referred to in Section 3.01(c)(i) of the Servicing Agreement. The Issuer and the Indenture Trustee may, but shall not be obligated to, enter into any such amendment which affects the Indenture Trustee’s own rights, duties or immunities under this Agreement or otherwise.

 

SECTION 6.02.         Notices.

 

All demands, notices and communications upon or to the Seller, the Issuer, the Indenture Trustee or the Rating Agencies under this Agreement shall be sufficiently given for all purposes hereunder if in writing, and delivered personally, sent by documented delivery service or, to the extent receipt is confirmed telephonically, sent by electronic transmission:

 

(a)            in the case of the Seller, to Union Electric Company d/b/a Ameren Missouri, at 1901 Chouteau Avenue, St. Louis, Missouri 63103, Attention: Darryl T. Sagel, Telephone: (314) 554-4108;

 

(b)            in the case of the Issuer, to Ameren Missouri Securitization Funding I, LLC, at 1901 Chouteau Avenue, St. Louis, Missouri 63103, Attention: Darryl T. Sagel, Telephone: (314) 554-4108;

 

(c)            in the case of the Indenture Trustee, to the Corporate Trust Office;

 

 

(d)            in the case of Moody’s, to Moody’s Investors Service, Inc., ABS/RMBS Monitoring Department, 24^th Floor, 7 World Trade Center, 250 Greenwich Street, New York, New York 10007, Email: ServicerReports@moodys.com (for servicer reports and other reports) and ABSCORMonitoring@moodys.com (for all other notices) (all such notices to be delivered to Moody’s in writing by email);

 

(e)            in the case of S&P, to S&P Global Ratings, a division of S&P Global Inc., Structured Credit Surveillance, 55 Water Street, New York, New York 10041, Telephone: (212) 438-8991, Email: servicer_reports@spglobal.com (all such notices to be delivered to S&P in writing by email); and

 

(f)             as to each of the foregoing, at such other address as shall be designated by written notice to the other parties.

 

SECTION 6.03.         Assignment.

 

Notwithstanding anything to the contrary contained herein, except as provided in Section 5.02, this Agreement may not be assigned by the Seller.

 

SECTION 6.04.         Limitations on Rights of Third Parties.

 

The provisions of this Agreement are solely for the benefit of the Seller, the Issuer, the Indenture Trustee (for the benefit of the Secured Parties) and the other Persons expressly referred to herein, and such Persons shall have the right to enforce the relevant provisions of this Agreement. Nothing in this Agreement, whether express or implied, shall be construed to give to any other Person any legal or equitable right, remedy or claim in the Securitized Utility Tariff Property or under or in respect of this Agreement or any covenants, conditions or provisions contained herein.

 

SECTION 6.05.         Severability.

 

Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remainder of such provision (if any) or the remaining provisions hereof (unless such construction shall be unreasonable), and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.

 

SECTION 6.06.         Separate Counterparts.

 

This Agreement may be executed by the parties hereto in separate counterparts, each of which when so executed and delivered shall be an original, but all such counterparts shall together constitute but one and the same instrument. The words “execution,” “signed,” “delivery,” and words of like import in or relating to this Agreement or any document to be signed in connection with this Agreement shall be deemed to include electronic signatures, deliveries or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature, physical delivery thereof or the use of a paper-based recordkeeping system, as the case may be, and the parties hereto consent to conduct the transactions contemplated hereunder by electronic means.

 

 

SECTION 6.07.         Headings.

 

The headings of the various Articles and Sections herein are for convenience of reference only and shall not define or limit any of the terms or provisions hereof.

 

SECTION 6.08.         Governing Law.

 

THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF MISSOURI, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.

 

SECTION 6.09.         Assignment to Indenture Trustee.

 

The Seller hereby acknowledges and consents to any mortgage, pledge, assignment and grant of a security interest by the Issuer to the Indenture Trustee pursuant to the Indenture for the benefit of the Secured Parties of all right, title and interest of the Issuer in, to and under this Agreement, the Securitized Utility Tariff Property and the proceeds thereof and the assignment of any or all of the Issuer’s rights hereunder to the Indenture Trustee for the benefit of the Secured Parties. For the avoidance of doubt, the Indenture Trustee is a third-party beneficiary of this Agreement and is entitled to the rights and benefits hereunder and may enforce the provisions hereof as if it were a party hereto.

 

SECTION 6.10.         Limitation of Liability.

 

It is expressly understood and agreed by the parties hereto that this Agreement is executed and delivered by the Indenture Trustee, not individually or personally but solely as Indenture Trustee on behalf of the Secured Parties, in the exercise of the powers and authority conferred and vested in it. The Indenture Trustee in acting hereunder is entitled to all rights, benefits, protections, immunities and indemnities accorded to it under the Indenture.

 

SECTION 6.11.         Waivers.

 

Any term or provision of this Agreement may be waived, or the time for its performance may be extended, by the party or parties entitled to the benefit thereof; provided, however, that no such waiver delivered by the Issuer shall be effective unless the Indenture Trustee (acting at the written direction of the Holders of a majority of the Securitized Utility Tariff Bonds) has given its prior written consent thereto. Any such waiver shall be validly and sufficiently authorized for the purposes of this Agreement if, as to any party, it is authorized in writing by an authorized representative of such party. The failure of any party hereto to enforce at any time any provision of this Agreement shall not be construed to be a waiver of such provision, nor in any way to affect the validity of this Agreement or any part hereof or the right of any party thereafter to enforce each and every such provision. No waiver of any breach of this Agreement shall be held to constitute a waiver of any other or subsequent breach.

 

[Signature Page Follows]

 

 

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective officers as of the day and year first above written.

 

	AMEREN MISSOURI Securitization funding i, llc,
	a Delaware limited liability Company
	By:
		Name: [ ]
		Title: Manager and President
	UNION ELECTRIC COMPANY D/B/A AMEREN MISSOURI,
	a Missouri Corporation
	By:
		Name: [ ]
		Title: [ ]

 

ACKNOWLEDGED AND ACCEPTED:

 

THE BANK OF NEW YORK MELLON

TRUST COMPANY, N.A.,

as Indenture Trustee

 

By:
	Name:
	Title:

 

Signature Page to

Securitized Utility Tariff Property Purchase and Sale Agreement

 

 

EXHIBIT A

 

FORM OF INTERCREDITOR AGREEMENT

 

This INTERCREDITOR AGREEMENT (this “Agreement”) is made as of [date], by and among:

 

(a)            Union Electric Company d/b/a Ameren Missouri (in its individual capacity, the “Company”);

 

(b)           [Union Electric Company d/b/a Ameren Missouri, in its separate capacity as the Receivables Servicer (as defined below);] ¹

 

(c)            Union Electric Company d/b/a Ameren Missouri, in its separate capacity as the initial servicer of, and collection agent with respect to, the Initial Securitized Utility Tariff Property (as defined below) (including any successor in such capacity, the “Initial Securitized Utility Tariff Property Servicer”);

 

(d)           [Union Electric Company d/b/a Ameren Missouri, in its separate capacity as the initial servicer of, and collection agent with respect to, the Additional Securitization Property (as defined below) (including any successor in such capacity, the “Additional Securitization Property Servicer”);] ²

 

(e)            Union Electric Company d/b/a Ameren Missouri, in its separate capacity as the initial servicer of, and collection agent with respect to, any Joining Transaction Securitization Property (as defined below) (including any successor in such capacity, a “Joining Transaction Property Servicer”)

 

(f)            [Ameren Missouri SPE], a Delaware limited liability company (the “Initial Bond Issuer”);

 

(g)           The Bank of New York Mellon Trust Company, N.A., not in its individual capacity, but solely in its capacity as indenture trustee (including any successor in such capacity, the “Initial Bond Trustee”) under the Initial Indenture (as defined below);

 

(h)           [[insert name of affiliated purchaser of Receivables] (“Buyer”), a [          ] corporation;]¹

 

(i)            [[insert name of agent or collateral agent or collateral trustee acting as representative of third-party receivables purchasers or lenders], as [Administrative Agent][Collateral Agent][Collateral Trustee] (in such capacity, and including any successor agent, the “Administrative Agent”) for the [Receivables Purchasers][Lenders] referred to below;]¹

 

(j)             [[SPE II], a [_____________] (the “Additional Bond Issuer”);]²

 

(k)            [[TRUSTEE], not in its individual capacity, but solely in its capacity as indenture trustee (including any successor in such capacity, the “Additional Bond Trustee”) under the Additional Indenture (as defined below); and]²

 

 

¹ To be included if Ameren Missouri becomes a party to a receivables securitization program other than an additional issuance of securitized utility tariff bonds or similar bonds.

² To be included if Ameren Missouri becomes a party to an additional issuance of securitized utility tariff bonds or similar bonds.

 

 

(l)             each Joining Transaction Issuer (as defined below) joined hereto by execution of a Joinder Agreement; and

 

(m)           each trustee, indenture trustee, lender, administrative agent, collateral agent, purchaser or other party (excluding any Joining Transaction Issuer) joined hereto by execution of a joinder agreement substantially in the form attached hereto as Exhibit A (each such party, a “Joining Transaction Trustee” and each such joinder agreement, a “Joinder Agreement”)

 

[WHEREAS, pursuant to the terms of that certain [describe purchase agreement whereby Buyer acquires Receivables from Company] (as it may hereafter from time to time be further amended, restated or modified and as supplemented from time to time, the “Purchase Agreement”), between Buyer and the Company, the Company has sold and may hereafter sell to Buyer all of the Company’s right, title and interest in and to certain [Outstanding Receivables] and [Collections] (as such terms are defined in the Purchase Agreement, which terms do not include Initial Securitization Utility Tariff Charges [or the Additional Securitization Charges, each] as defined below, or collections thereof; and the Outstanding Receivables, Collections thereof, related property and all proceeds of the foregoing are collectively referred to herein as the “Receivables”);] ³

 

[WHEREAS, pursuant to that certain [describe agreement whereby Receivables Purchasers acquire security and/or ownership interests in the Receivables from the Buyer] (as it may hereafter from time to time be further amended, restated or modified and as supplemented from time to time, the “[Receivables Purchase Agreement] ⁴”), by and among the Buyer, the Receivables Servicer, the Administrative Agent and the financial institutions and other entities party thereto as [purchasers][lenders] (such [purchasers][lenders] and the Administrative Agent being collectively referred to as the “[Receivables Purchasers] ⁵”), Buyer has [sold and may hereafter sell undivided interests in][granted a security interest in] the Receivables to the Administrative Agent for the benefit of the Receivables Purchasers;] ³

 

[WHEREAS, pursuant to the terms of the Purchase Agreement, the Receivables Purchase Agreement and that certain [describe any agency or similar agreement comprising part of the receivables purchase documents] (as it may hereafter from time to time be further amended, restated or modified and as supplemented from time to time, the “Agency Agreement”, and together with the Purchase Agreement and the Receivables Purchase Agreement, collectively, the “Receivables Agreements”), the Company has been appointed as a servicer (the “Receivables Servicer”) and collection agent and has agreed to provide certain servicing and collection functions with respect to the Receivables;] ³

 

 

³ This paragraph, and all provisions of this form relating to such a program, to be included only if Ameren Missouri becomes a party to a receivables securitization program other than an additional issuance of securitized utility tariff bonds or similar bonds.

⁴ If additional financing takes the form of a loan and a grant of a security interest, the term “Receivables Purchase Agreement” may be changed throughout to “Receivables Financing Agreement” or another appropriate term.

⁵ If additional financing takes the form of a loan and a grant of a security interest, the term “Receivables Purchasers” may be changed throughout to “Receivables Lenders” or another appropriate term.

 

 

WHEREAS, pursuant to the terms of that certain Securitized Utility Tariff Property Purchase and Sale Agreement, dated as of [___________], 2024 (as it may hereafter from time to time be amended, restated or modified, the “Initial Sale Agreement”), between the Initial Bond Issuer and the Company in its capacity as seller, the Company has sold to the Initial Bond Issuer certain assets known as “Securitized Utility Tariff Property” which includes the right to impose, charge and collect “Securitized Utility Tariff Charges” as each such term is defined or as otherwise used in Section 393.1700 of the Revised Statutes of Missouri (the “Statute”) and the financing order issued under the Statute by the MoPSC to Union Electric Company d/b/a Ameren Missouri on August 7, 2024, File No. EF-2024-0021, authorizing the creation of the Securitized Utility Tariff Property, (such Securitized Utility Tariff Property, the “Initial Securitized Utility Tariff Property” and such Securitized Utility Tariff Charges, the “Initial Securitized Utility Tariff Charges”);

 

WHEREAS, pursuant to the terms of that certain Indenture dated as of [________], 2024 (as it may hereafter from time to time be amended, restated or modified and as supplemented by the Series Supplement and any other supplemental indenture, the Series Supplement and Indenture, as supplemented, being collectively referred to herein as the “Initial Indenture”), between the Initial Bond Issuer and the Initial Bond Trustee, the Initial Bond Issuer, among other things, has granted to the Initial Bond Trustee a security interest in certain of its assets, including the Initial Securitized Utility Tariff Property, to secure, among other things, the notes issued pursuant to the Initial Indenture (the “Initial Securitized Utility Tariff Bonds”);

 

WHEREAS, pursuant to the terms of that certain Servicing Agreement dated as of [_________], 2024 (as it may hereafter from time to time be amended, restated or modified, the “Initial Servicing Agreement,” and the Initial Servicing Agreement, together with the Initial Sale Agreement and the Initial Indenture, the “Initial Bond Agreements”), between the Initial Bond Issuer and the Initial Securitized Utility Tariff Property Servicer, the Initial Securitized Utility Tariff Property Servicer has agreed to provide for the benefit of the Initial Bond Issuer certain servicing and collection functions with respect to the Initial Securitized Utility Tariff Charges;

 

[WHEREAS, pursuant to the terms of that certain Securitized Utility Tariff Property Purchase and Sale Agreement, dated as of [___________], 20[__] (as it may hereafter from time to time be amended, restated or modified, the “Additional Sale Agreement”), between the Additional Bond Issuer and the Company in its capacity as seller, the Company has sold to the Additional Bond Issuer certain assets known as “Securitized Utility Tariff Property” which includes the right to impose, charge and collect “Securitized Utility Tariff Charges” as each such term is defined or as otherwise used in Section 393.1700 of the Statute and the financing order issued under the Statute by the MoPSC to Ameren Electric on [•], 20[•], File No. [•], authorizing the creation of the Securitized Utility Tariff Property or other similar property created pursuant to a similar statute (such Securitized Utility Tariff Property, the “Additional Securitization Property” and such Securitized Utility Tariff Charges or other similar charges, the “Additional Securitization Charges”);] ⁶

 

 

⁶ This paragraph, and all provisions of this form relating to additional bonds, to be included only if Ameren Missouri becomes a party to an additional issuance of securitized utility tariff bonds or similar bonds.

 

 

[WHEREAS, pursuant to the terms of that certain Indenture dated as of [________], 20[__] (as it may hereafter from time to time be amended, restated or modified and as supplemented by the Series Supplement and any other supplemental indenture, the Series Supplement and Indenture, as supplemented, being collectively referred to herein as the “Additional Indenture”), between the Additional Bond Issuer and the Additional Bond Trustee, the Additional Bond Issuer, among other things, has granted to the Additional Bond Trustee a security interest in certain of its assets, including the Additional Securitization Property, to secure, among other things, the notes issued pursuant to the Additional Indenture (the “Additional Securitization Bonds”);]⁶

 

[WHEREAS, pursuant to the terms of that certain Servicing Agreement dated as of [_________], 20[__] (as it may hereafter from time to time be amended, restated or modified, the “Additional Servicing Agreement,” and the Additional Servicing Agreement, together with the Additional Sale Agreement and the Additional Indenture, the “Additional Bond Agreements”), between the Additional Bond Issuer and the Additional Securitization Property Servicer, the Additional Securitization Property Servicer has agreed to provide for the benefit of the Additional Bond Issuer certain servicing and collection functions with respect to the Additional Securitization Charges;]⁶

 

WHEREAS, the Company may from time to time, pursuant to a Purchase Agreement (such Purchase Agreement, a “Joining Transaction Purchase Agreement”), agree to sell to one or more Joining Transaction Trustees or Joining Transaction Issuers, or grant security interests to one or more Joining Transaction Trustees or Joining Transaction Issuers in, charges imposed upon customers of the Company where such charges are created pursuant to a financing order or similar order issued under the Statute or similar law, authorizing the creation of Securitization Utility Tariff Property or other similar property (such Securitized Utility Tariff Property, the “Joining Transaction Securitization Property” and such Securitized Utility Tariff Charges or other similar charges, the “Joining Transaction Securitization Charges”);

 

WHEREAS, pursuant to an Indenture (each such Indenture, a “Joining Transaction Indenture”), between a Joining Transaction Issuer and a Joining Transaction Trustee, such Joining Transaction Issuer, among other things, will grant to such Joining Transaction Trustee a security interest in certain of its assets, including such Joined Securitization Property, to secure, among other things, the notes issued pursuant to such Joined Transaction Indenture (the “Joining Transaction Securitization Bonds”);

 

WHEREAS, pursuant to the terms of a Servicing Agreement (such Servicing Agreement, a “Joining Transaction Servicing Agreement,” and together with the Joining Transaction Purchase Agreement and the Joining Transaction Indenture, the “Joining Transaction Bond Agreements”), between a Joining Transaction Issuer and a Joining Transaction Property Servicer, such Joining Transaction Property Servicer will provide for the benefit of such Joining Transaction Issuer certain servicing and collection functions with respect to the Joining Transaction Securitization Charges;

 

 

WHEREAS, [the Receivables,] the Initial Securitized Utility Tariff Charges, [the Additional Securitization Charges] and [each of the Joining Transaction Securitization Charges] will be invoiced collectively on the bills sent to the Company’s retail electric distribution customers (the “Customers”), which Customers are obligated to pay [the Receivables,] the Initial Securitized Utility Tariff Charges, [the Additional Securitization Charges] and the Joining Transaction Securitization Charges, and the parties hereto wish to agree upon their respective rights relating to the Receivables, the Initial Securitized Utility Tariff Property, the Additional Securitization Property and the Joining Transaction Securitization Property and any bank accounts into which collections of the foregoing may be deposited, as well as other matters of common interest to them which arise under or result from the coexistence of the Initial Bond Agreements, [the Additional Bond Agreements,] the Joining Transaction Bond Agreements and [the Receivables Agreements];

 

NOW, THEREFORE, in consideration of the premises and the mutual covenants herein contained, the parties hereto agree as follows:

 

SECTION 1.      Acknowledgment of Ownership Interests and Security Interests.

 

(a)            Each of the parties hereto hereby acknowledges the ownership interest of the Initial Bond Issuer in the Initial Securitized Utility Tariff Property, including the Initial Securitized Utility Tariff Charges and the revenues, collections, claims, rights, payments, money and proceeds arising therefrom, and the security interests granted therein in favor of the Initial Bond Trustee for the benefit of itself and the Holders of the Initial Securitized Utility Tariff Bonds.

 

[Each of the parties hereto hereby acknowledges the ownership interest of the Additional Bond Issuer in the Additional Securitization Property, including the Additional Securitization Charges and the revenues, collections, claims, rights, payments, money and proceeds arising therefrom, and the security interests granted therein in favor of the Additional Bond Trustee for the benefit of itself and the Holders of the Additional Securitization Bonds.]

 

[Each of the parties hereto hereby acknowledges the ownership interest of each of the Joining Transaction Issuers in the related Joining Transaction Securitization Property, including such Joining Transaction Securitization Charges and the revenues, collections, claims, rights, payments, money and proceeds arising therefrom, and the security interests granted therein in favor of each Joining Transaction Trustee for the benefit of itself and the Holders of such Joining Transaction Securitization Bonds.]

 

[Each of the parties hereto hereby acknowledges the ownership interest and security interests of the Buyer and the Receivables Purchasers in the Receivables and the revenues, collections, claims, rights, payments, money and proceeds arising therefrom.  ]

 

[The parties hereto agree that the Initial Securitized Utility Tariff Property, [the Additional Securitization Property,] the Joining Transaction Securitization Property and [the Receivables] each shall constitute separate property rights notwithstanding that they may be evidenced by a single bill.  The Company further agrees that it will not include the Initial Securitized Utility Tariff Property[, [the Additional Securitization Property] or any Joining Transaction Securitization Property in calculating the amount of the Receivables sold or to be sold under the Receivables Agreements. ]

 

 

[The Receivables Purchasers and the Receivables Servicer, the Additional Bond Trustee, the Additional Bond Issuer and the Additional Securitization Property Servicer,] each Joining Transaction Issuer, each Joining Transaction Trustee and each Joining Transaction Property Servicer each acknowledge that, notwithstanding anything in [the Receivables Agreements, the Additional Bond Agreements] or the Joining Transaction Bond Agreements to the contrary, none of such parties has any interest in the Initial Securitized Utility Tariff Property. [The Initial Bond Trustee, the Initial Bond Issuer and the Initial Securitized Utility Tariff Property Servicer, [the Receivables Purchasers and the Receivables Servicer] and each Joining Transaction Issuer, each Joining Transaction Trustee and each Joining Transaction Property Servicer each acknowledge that, notwithstanding anything in the Initial Bond Agreements, [the Receivables Agreements] or the Joining Transaction Bond Agreements to the contrary, none of such parties has any interest in the Additional Securitization Property.] The Initial Bond Trustee, the Initial Bond Issuer. the Initial Securitized Utility Tariff Property Servicer, [the Receivables Purchasers and the Receivables Servicer, the Additional Bond Trustee, the Additional Bond Issuer and the Additional Securitization Property Servicer], each Joining Transaction Issuer (excluding the Joining Transaction Issuer party to the applicable Joining Transaction Bond Agreement), each Joining Transaction Trustee (excluding the Joining Transaction Trustee party to the applicable Joining Transaction Bond Agreement) and each Joining Transaction Property Servicer (excluding the Joining Transaction Property Servicer party to the applicable Joining Transaction Bond Agreement) each acknowledge that, notwithstanding anything in the Initial Bond Agreements, [the Receivables Agreements, the Additional Bond Agreements] or the Joining Transaction Bond Agreements (excluding the applicable Joining Transaction Bond Agreement), none of such parties has any interest in any Joining Transaction Securitization Property. [The Initial Bond Trustee, the Initial Bond Issuer and the Initial Securitized Utility Tariff Property Servicer, [the Additional Bond Trust, the Additional Bond Issuer and the Additional Securitization Property Servicer,] and each Joining Transaction Issuer, each Joining Transaction Trustee and each Joining Transaction Property Servicer each further acknowledge that, notwithstanding anything in the Initial Bond Agreements, [the Additional Bond Agreements] or any Joining Transaction Bond Agreements to the contrary, none of such parties has any interest in the Receivables].

 

(b)            Each of [the Administrative Agent and the Buyer, the Additional Bond Issuer and the Additional Bond Trustee] and each Joining Transaction Issuer and each Joining Transaction Trustee hereby releases all liens and security interests of any kind whatsoever which the [Administrative Agent or Buyer, the Additional Bond Issuer or Additional Bond Trustee] or each Joining Transaction Issuer or each Joining Transaction Trustee may hold or obtain in the Initial Securitized Utility Tariff Property. Each of [the Administrative Agent and Buyer, the Additional Bond Issuer and the Additional Bond Trustee[ and each Joining Transaction Issuer and each Joining Transaction Trustee agrees, upon the reasonable request of the Company or the Initial Bond Trustee (acting as the written direction of a majority aggregate outstanding principal amount of Holders of the Initial Securitized Utility Tariff Bonds (the “Majority Holders”)), to execute and deliver to the Initial Bond Trustee such UCC partial release statements and other documents and instruments, and to do such other acts and things, as the Company or the Initial Bond Trustee (acting at the written direction of Majority Holders) may reasonably request in order to evidence the release provided for in this Section 1(b) and/or to execute and deliver to the Initial Bond Trustee UCC financing statement amendments to exclude the Initial Securitized Utility Tariff Property from the assets covered by any existing UCC financing statements relating to [the Receivables, the Additional Securitization Property] or the Joining Transaction Securitization Property; provided, however, that failure to execute and deliver any such partial release statements, financing statement amendments, documents or instruments, or to do such acts and things, shall not affect or impair the release provided for in this Section 1(b).

 

 

(c)            [Each of the Initial Bond Issuer and the Initial Bond Trustee, [the Administrative Agent and the Buyer] and each Joining Transaction Issuer and each Joining Transaction Trustee hereby releases all liens and security interests of any kind whatsoever which the Initial Bond Issuer or the Initial Bond Trustee, [the Administrative Agent or Buyer] or each Joining Transaction Issuer or each Joining Transaction Trustee may hold or obtain in the Additional Securitization Property. Each of the Initial Bond Issuer and the Initial Bond Trustee, [the Administrative Agent and Buyer] and each Joining Transaction Issuer and each Joining Transaction Trustee agrees, upon the reasonable written request of the Company or the Additional Bond Trustee, to execute and deliver to the Additional Bond Trustee such UCC partial release statements and other documents and instruments, and to do such other acts and things, as the Company or the Additional Bond Trustee may reasonably request in order to evidence the release provided for in this Section 1(c) and/or to execute and deliver to the Additional Bond Trustee UCC financing statement amendments to exclude the Additional Securitization Property from the assets covered by any existing UCC financing statements relating to Initial Securitized Utility Tariff Property[, the Receivables] or Joining Transaction Securitization Property; provided, however, that failure to execute and deliver any such partial release statements, financing statement amendments, documents or instruments, or to do such acts and things, shall not affect or impair the release provided for in this Section 1(c).]

 

(d)            [Each of the Initial Bond Issuer and the Initial Bond Trustee, [the Additional Bond Issuer and the Additional Bond Trustee] and each Joining Transaction Issuer and each Joining Transaction Trustee hereby releases all liens and security interests of any kind whatsoever which either of them may hold or obtain in the Receivables. Each of the Initial Bond Issuer and the Initial Bond Trustee, [the Additional Bond Issuer and the Additional Bond Trustee] and each Joining Transaction Issuer and each Joining Transaction Trustee agrees, upon the reasonable request of the Administrative Agent or Buyer, to execute and deliver to the Administrative Agent or Buyer, as applicable, such UCC partial release statements and other documents and instruments, and to do such other acts and things, as the Administrative Agent or Buyer may reasonably request in order to evidence the release provided for in this Section 1(d) and/or to execute and deliver to the Administrative Agent or Buyer, as applicable, UCC financing statement amendments to exclude such Receivables from the assets covered by any existing UCC financing statements relating to the Initial Securitized Utility Tariff Property, [the Additional Securitization Property] or the Joining Transaction Securitization Property; provided, however, that failure to execute and deliver any such partial release statements, financing statement amendments, documents or instruments, or to do such acts and things, shall not affect or impair the release provided for in this Section 1(d).]

 

 

(e)            Each of [the Administrative Agent and the Buyer,] Initial Bond Issuer and the Initial Bond Trustee, [the Additional Bond Issuer and the Additional Bond Trustee] and each other Joining Transaction Issuer and each other Joining Transaction Trustee hereby releases all liens and security interests of any kind whatsoever which either of them may hold or obtain in any Joining Transaction Securitization Property. Each of [the Administrative Agent and the Buyer,] Initial Bond Issuer and the Initial Bond Trustee, [the Additional Bond Issuer and the Additional Bond Trustee] and each other Joining Transaction Issuer and each other Joining Transaction Trustee agrees, upon the reasonable request of a Joining Transaction Issuer or Joining Transaction Trustee, to execute and deliver to such Joining Transaction Issuer or Joining Transaction Trustee, as applicable, such UCC partial release statements and other documents and instruments, and to do such other acts and things, as such Joining Transaction Issuer or Joining Transaction Trustee may reasonably request in order to evidence the release provided for in this Section 1(d) and/or to execute and deliver to such Joining Transaction Issuer or Joining Transaction Trustee, as applicable, UCC financing statement amendments to exclude such Joining Transaction Securitization Property from the assets covered by any existing UCC financing statements relating to [the Receivables,] Initial Securitized Utility Tariff Property[, Additional Securitization Property] or any other Joining Transaction Securitization Property; provided, however, that failure to execute and deliver any such partial release statements, financing statement amendments, documents or instruments, or to do such acts and things, shall not affect or impair the release provided for in this Section 1(d).

 

SECTION 2.      Deposit Accounts.

 

(a)            The parties hereto each acknowledge that collections with respect to the Initial Securitized Utility Tariff Property, [the Additional Securitization Property, the Receivables] and each Joining Transaction Securitization Property may from time to time be deposited into one or more designated accounts of the Company [or the Buyer] (the “Deposit Accounts”) and that such Deposit Accounts may be subject to a security interest of [the Administrative Agent] and account control agreements among the Company, [the Buyer, the Administrative Agent] and the applicable account bank.  Subject to Section 4, the Company, in its capacity as a collection agent with respect to each of the Initial Securitized Utility Tariff Property, [the Additional Securitization Property, the Receivables and each Joining Transaction Securitization Property, agrees to:

 

(i)            maintain the collections in the Deposit Accounts for the benefit of the Initial Securitized Utility Tariff Property Servicer, the Initial Bond Trustee, the Initial Bond Issuer, [the Additional Securitization Property Servicer, the Additional Bond Trustee, the Additional Bond Issuer, the Receivables Servicer, the Buyer, the Administrative Agent, the Receivables Purchasers,] each Joining Transaction Property Servicer, each Joining Transaction Trustee and each Joining Transaction Issuer, as their respective interests may appear;

 

(ii)            allocate and remit funds from the Deposit Accounts, whether or not commingled, (w) in the case of collections relating to the Initial Securitized Utility Tariff Property, at the times and in the manner specified in the Initial Bond Agreements to the Initial Bond Trustee; [(x) in the case of collection relating to the Additional Securitization Property, at the times and in the manner specified in the Additional Bond Agreements to the Additional Bond Trustee; (y) in the case of collections relating to the Receivables, allocate and remit funds to the Receivables Purchasers and the Buyer at the times and in the manner specified in the Receivables Agreements;] and (z) in the case of collections relating to Joining Transaction Securitization Property, at the times and in the manner specified in each such Joining Transaction Bond Agreements to such Joining Transaction Trustee; provided, that:

 

 

(A)            to the extent the combined amounts of remittance are insufficient to satisfy amounts owed in respect of the Initial Securitized Utility Tariff Charges[, the Additional Securitization Charges, the Receivables] and Joining Transaction Securitization Charges, the first dollars collected shall be attributed to past due balances (if there is a deficiency, on a pro rata basis), and then such allocation and remittances shall be made on a pro rata basis as among the Initial Securitized Utility Tariff Charges[, the Additional Securitization Charges, the Receivables] and Joining Transaction Securitization Charges based on the respective amounts of such Initial Securitized Utility Tariff Charges, [Additional Securitization Charges, Receivables] and such Joining Transaction Securitization Charges then due and owing or as otherwise required by the Missouri Public Service Commission; and

 

(B)            to the extent [the Administrative Agent] has exercised exclusive control over any Deposit Account, it shall allocate the funds on deposit therein related to the Initial Securitized Utility Tariff Property[, the Additional Securitization Property] and Joining Transaction Securitization Property in accordance with the information provided to it by the Company and consistent with this Section 2, and shall remit such collections related to the Initial Securitized Utility Tariff Property at the direction of the Initial Bond Trustee (acting at the written direction of Majority Holders), [such collections related to the Additional Securitization Property at the direction of the Additional Bond Trustee] and such collections related to Joining Transaction Securitization Property at the direction of each such Joining Transaction Trustee; and

 

(iii)            maintain records as to the amounts deposited into the Deposit Accounts, the amounts remitted therefrom and the allocation as provided above in this subsection (a).]

 

(b)            The Initial Bond Trustee, the Initial Bond Issuer, [the Additional Bond Trustee, the Additional Bond Issuer, the Buyer, the Receivables Purchasers,] each Joining Transaction Trustee and each Joining Transaction Issuer shall each have the right to require an accounting from time to time of collections, deposits, allocations and remittances by the Company relating to the Deposit Accounts.  Because of difficulties inherent in allocating collections on a daily basis, (i) the Initial Securitized Utility Tariff Property Servicer may implement  estimates for the purposes of determining the amount of collections which are allocable to the Initial Securitized Utility Tariff Property, which allocations will be subject to annual reconciliations in accordance with the terms of the Initial Bond Agreements but will otherwise be deemed conclusive, subject to reconciliation as provided in the following sentences, (ii) [the Additional Securitization Property Servicer may implement  estimates for the purposes of determining the amount of collections which are allocable to the Additional Securitization Property, which allocations will be subject to annual reconciliations in accordance with the terms of the Additional Bond Agreements but will otherwise be deemed conclusive, subject to reconciliation as provided in the following sentences] and (iii) each Joining Transaction Property Servicer may implement  estimates for the purposes of determining the amount of collections which are allocable to such Joining Transaction Securitization Property, which allocations will be subject to annual reconciliations in accordance with the terms of each such Joining Transaction Bond Agreements but will otherwise be deemed conclusive, subject to reconciliation as provided in the following sentences; provided that unless an Event of Default (as defined in the Initial Indenture[, the Additional Indenture] or each Joining Transaction Indenture [and any corresponding term in the Receivables Purchase Agreement]) has occurred and is continuing, the Company shall only be required to prepare one such accounting during any fiscal year.

 

 

In the event that the estimated remittances to the Initial Bond Issuer for any calendar year are less than the actual amounts of Initial Customer Charge collections, the Initial Bond Issuer shall look to the Initial Securitized Utility Tariff Property Servicer for any such shortfall and shall have no claims against [the Receivables Purchasers, the Additional Bond Issuer] or any Joining Transaction Issuer for such amounts. In the event that the estimated remittances to the Initial Bond Issuer are greater than the actual amounts of Initial Customer Charge collections, the Initial Securitized Utility Tariff Property Servicer shall have the right, in accordance with the terms of the Initial Bond Agreements, to net an amount equal to such excess collections out of monies otherwise to be paid to the Initial Bond Issuer[, and the Receivables Purchasers] acknowledge that they shall look solely to the Initial Securitized Utility Tariff Property Servicer for such excess collections and shall have no claims against the Initial Bond Issuer for such funds. [In the event that the estimated remittances to the Additional Bond Issuer for any calendar year are less than the actual amounts of Additional Customer Charge collections, the Additional Bond Issuer shall look to the Additional Securitization Property Servicer for any such shortfall and shall have no claims against the Initial Bond Issuer[, the Receivables Purchasers] or any Joining Transaction Issuer for such amounts.] [In the event that the estimated remittances to the Additional Bond Issuer are greater than the actual amounts of Additional Customer Charge collections, the Additional Securitization Property Servicer shall have the right, in accordance with the terms of the Additional Bond Agreements, to net an amount equal to such excess collections out of monies otherwise to be paid to the Additional Bond Issuer[, and the Receivables Purchasers] acknowledge that they shall look solely to the Additional Securitization Property Servicer for such excess collections and shall have no claims against the Additional Bond Issuer for such funds.]  In the event that the estimated remittances to any Joining Transaction Issuer are greater than the actual amounts of such Joining Transaction Securitization Charge collections, the Joining Transaction Property Servicer shall have the right, in accordance with the terms of such Joining Transaction Bond Agreements, to net an amount equal to such excess collections out of monies otherwise to be paid to such Joining Transaction Issuer, [and the Receivables Purchasers] acknowledge that they shall look solely to such Joining Transaction Property Servicer for such excess collections and shall have no claims against such Joining Transaction Issuer for such funds. Notwithstanding the foregoing, nothing in this paragraph shall prohibit any party from netting any such reconciliation payments owing by such party (the “remitting party”) to another party (the “receiving party”) against the amounts to be paid hereunder to the remitting party by such receiving party.

 

 

(c)            [The Initial Bond Trustee, the Initial Bond Issuer, [the Additional Bond Trustee, the Additional Bond Issuer,] each Joining Transaction Trustee and each Joining Transaction Issuer waive any interest in deposits to the Deposit Accounts to the extent that they are properly allocable to Collections with respect to Receivables.] The Administrative Agent and Buyer, [the Additional Bond Trustee and the Additional Bond Issuer,] and each Joining Transaction Trustee and each Joining Transaction Issuer waive any interest in deposits to the Deposit Accounts to the extent that they are properly allocable to Initial Securitized Utility Tariff Charges. [The Administrative Agent and Buyer, the Initial Bond Trustee and the Initial Bond Issuer, and each Joining Transaction Issuer and each Joining Transaction Trustee waive any interest in deposits to the Deposit Accounts to the extent they are properly allocable to the Additional Securitization Charges.] The Administrative Agent and Buyer, the Initial Bond Trustee and the Initial Bond Holder, the Additional Bond Trustee and the Additional Bond Issuer and each other Joining Transaction Trustee and each other Joining Transaction Issuer waive any interest in deposits to the Deposit Accounts to the extent that they are properly allocable to such Joining Transaction Securitization Charges. Each of the parties hereto acknowledges the respective ownership and security interests of the others in amounts on deposit in the Deposit Accounts to the extent of their respective interests as described in this Agreement. ]

 

(d)            In no event may the Initial Bond Trustee take any action with respect to the Initial Securitized Utility Tariff Charges in a manner that would result in the Initial Bond Trustee obtaining possession of, or any control over, [collections of Additional Securitization Charges], Joining Transaction Securitization Charges, [Collections of Receivables] or any Deposit Account.  [In the event that the Initial Bond Trustee obtains possession of any Collections related to the Receivables, the Initial Bond Trustee shall notify the Administrative Agent of such fact, shall hold such Collections in trust and shall promptly deliver them to the Administrative Agent upon request.]  [In the event that the Initial Bond Trustee obtains possession of any collections of Additional Securitization Charges, the Initial Bond Trustee shall notify the Additional Bond Trustee of such fact, shall hold such collections in trust and shall promptly deliver them to the Additional Bond Trustee upon request.] In the event that the Initial Bond Trustee obtains possession of any collections of Joining Transaction Securitization Charges, the Initial Bond Trustee shall notify such Joining Transaction Trustee of such fact, shall hold such collections in trust and shall promptly deliver them to the Joined upon request.

 

[In no event may the Additional Bond Trustee take any action with respect to the Additional Securitization Charges in a manner that would result in the Additional Bond Trustee obtaining possession of, or any control over, collections of Initial Securitized Utility Tariff Charges, Joining Transaction Securitization Charges, [Collections of Receivables] or any Deposit Account.]  [In the event that the Additional Bond Trustee obtains possession of any Collections related to the Receivables, the Additional Bond Trustee shall notify the Administrative Agent of such fact, shall hold such Collections in trust and shall promptly deliver them to the Administrative Agent upon request.]  In the event that the Additional Bond Trustee obtains possession of any collections of Initial Securitized Utility Tariff Charges, the Additional Bond Trustee shall notify the Initial Bond Trustee of such fact, shall hold such collections in trust and shall promptly deliver them to the Initial Bond Trustee upon request. In the event that the Additional Bond Trustee obtains possession of any collections of Joining Transaction Securitization Charges, the Additional Bond Trustee shall notify such Joining Transaction Trustee of such fact, shall hold such collections in trust and shall promptly deliver them to such Joining Transaction Trustee upon request. ]

 

 

In no event may a Joining Transaction Trustee take any action with respect to such Joining Transaction Securitization Charges in a manner that would result in such Joining Transaction Trustee obtaining possession of, or any control over, collections of Initial Securitized Utility Tariff Charges, [Additional Securitization Charges, Collections of Receivables,] any other Joining Transaction Securitization Charges or any Deposit Account.  [In the event that a Joining Transaction Trustee obtains possession of any Collections related to the Receivables, such Joining Transaction Trustee shall notify the Administrative Agent of such fact, shall hold such Collections in trust and shall promptly deliver them to the Administrative Agent upon request.]  In the event that a Joining Transaction Trustee obtains possession of any collections of Initial Securitized Utility Tariff Charges, such Joining Transaction Trustee shall notify the Initial Bond Trustee of such fact, shall hold such collections in trust and shall promptly deliver them to the Initial Bond Trustee upon request. [In the event that a Joining Transaction Trustee obtains possession of any collections of Additional Securitization Charges, such Joining Transaction Trustee shall notify the Additional Bond Trustee of such fact, shall hold such collections in trust and shall promptly deliver them to the Additional Bond Trustee upon request.] In the event that a Joining Transaction Trustee obtains possession of any collections of any other Joining Transaction Securitization Charges, such Joining Transaction Trustee shall notify such other Joining Transaction Issuer of such fact, shall hold such collections in trust and shall promptly deliver them to such other Joining Transaction Issuer upon request.

 

[Except as contemplated by this Section 2 with respect to the Administrative Agent’s exercise of control over the Deposit Accounts, in no event may the Administrative Agent or Buyer take any action with respect to the collection of Receivables in a manner that would result in the Administrative Agent or Buyer, as applicable, obtaining possession of, or any control over, collections of Initial Securitized Utility Tariff Charges[, collections of Additional Securitization Charges] or collections of Joining Transaction Securitization Charges. In the event that the Administrative Agent or Buyer obtains possession of any collections of Initial Securitized Utility Tariff Charges, the Administrative Agent or Buyer, as applicable, shall notify the Initial Bond Trustee of such fact, shall hold such collections in trust and shall promptly deliver them to the Initial Bond Trustee upon request. [In the event that the Administrative Agent or Buyer obtains possession of any collections of Additional Securitization Charges, the Administrative Agent or Buyer, as applicable, shall notify the Additional Bond Trustee of such fact, shall hold such collections in trust and shall promptly deliver them to the Additional Bond Trustee upon request.] In the event that the Administrative Agent or Buyer obtains possession of any collections of Joining Transaction Securitization Charges, the Administrative Agent or Buyer, as applicable, shall notify such Joining Transaction Trustee of such fact, shall hold such collections in trust and shall promptly deliver them to the Joining Transaction Trustee upon request.]

 

SECTION 3.      Time or Order of Attachment.  The acknowledgments contained in Sections 1 and 2 are applicable irrespective of the time or order of attachment or perfection of security or ownership interests or the time or order of filing or recording of financing statements or mortgages or filings under applicable law.

 

 

SECTION 4.      Servicing.

 

(a)            Pursuant to Section 2, the Company, in its role as collection agent hereunder, shall allocate and remit funds received from Customers for the benefit of the Initial Bond Issuer, the Initial Bond Trustee[, the Additional Bond Issuer, the Additional Bond Trustee,] each Joining Transaction Issuer, each Joining Transaction Trustee, [the Buyer and the Receivables Purchasers,] respectively, and shall control the movement of such funds out of the Deposit Accounts in accordance with the terms of this Agreement.  To the extent permitted under the Initial Indenture, [the Additional Indenture,] each Joining Transaction Indenture [or the Receivables Purchase Agreement,] the Company may appoint a successor servicer or sub-servicer to act in any of its respective capacities under this Agreement so long as such successor servicer or sub-servicer has executed joinder documentation agreeing to act in such capacity and to be bound by the terms of this Agreement.

 

(b)            In the event that the Initial Bond Trustee is entitled to and desires to exercise its right, pursuant to the Initial Bond Agreements, to replace the Company as Initial Securitized Utility Tariff Property Servicer, [in the event that the Additional Bond Trustee is entitled to and desires to exercise its right, pursuant to the Additional Bond Agreements, to replace the Company as Additional Securitization Property Servicer,] in the event that a Joining Transaction Trustee is entitled to and desires to exercise its right, pursuant to the such Joining Transaction Bond Agreements, to replace the Company as Joining Transaction Property Servicer [or in the event that the Receivables Purchasers are entitled to and desire to exercise their right to replace the Company as Receivables Servicer,] and therefore to terminate the role of the Company as the Initial Securitized Utility Tariff Property Servicer, [as the Additional Securitization Property Servicer,] such Joining Transaction Securitization Property Servicer [or as Receivables Servicer], as applicable, hereunder, the party desiring to exercise such right shall promptly give written notice to the other parties hereto (the “Servicer Notice”) in accordance with the notice provisions of this Agreement and consult with the other parties with respect to the Person who would replace the Company in its capacity as Initial Securitized Utility Tariff Property Servicer, [as Additional Securitization Property Servicer,] as Joining Transaction Securitization Property Servicer [or as Receivables Servicer].  Any successor to the Company in any of such capacities shall be agreed to by the Initial Bond Trustee (acting at the written direction of the Majority Holders), [the Additional Bond Trustee,] each Joining Transaction Trustee [and the Administrative Agent] within ten (10) Business Days of the date of the Servicer Notice, and such successor shall be subject to satisfaction of the Initial Bonds Rating Agency Condition (as defined below) [and the Additional Bonds Rating Agency Condition (as defined below)] and otherwise satisfy the provisions of the Initial Servicing Agreement, [the Additional Servicing Agreement,] each Joining Transaction Servicing Agreement [and the Receivables Agreements].  For the avoidance of doubt, (i) the removal of the Company as the Initial Securitized Utility Tariff Property Servicer shall not automatically cause the removal of the Company [as the Additional Securitization Property Servicer,] as a Joining Transaction Securitization Property Servicer [or as the Receivables Servicer[, [(ii) the removal of the Company as the Additional Securitization Property Servicer shall not automatically cause the removal of the Company as the Initial Securitized Utility Tariff Property Servicer, as a Joining Transaction Securitization Property Servicer [or as the Receivables Servicer],] (iii) the removal of the Company as any Joining Transaction Property Servicer shall not automatically cause the removal of the Company as the Initial Securitized Utility Tariff Property Servicer, [as the Additional Securitization Property Servicer,] as any other Joining Transaction Property Servicer [or as the Receivables Servicer], [(iv) the removal of the Company as the Receivables Servicer shall not automatically cause the removal of the Company as the Initial Securitized Utility Tariff Property Servicer[, as the Additional Securitization Property Servicer] or as a Joining Transaction Property Servicer,] and (v) the roles of Initial Securitized Utility Tariff Property Servicer, [Additional Securitization Property Servicer,] each Joining Transaction Property Servicer [and Receivables Servicer] may be held by different Persons so long as each such Person has agreed to be bound by the provisions of this Agreement. “Business Day” means any day other than a Saturday, Sunday, or any holiday for national banks or any New York banking corporation in St. Louis, Missouri, New York, New York or the city in which the Corporate Trust Office (as defined in the Initial Indenture and the Additional Indenture) is located. Any Person named as replacement collection agent in accordance with this Section 4 is referred to herein as a “Replacement Collection Agent.”  The parties hereto agree that any entity succeeding to the rights of the Company in its capacity as Initial Securitized Utility Tariff Property Servicer, [Additional Securitization Property Servicer,] a Joining Transaction Property Servicer [or as Receivables Servicer] hereunder shall execute customary joinder documentation agreeing to act in such capacity and to be bound by the terms of this Agreement.

 

 

(c)            Anything in this Agreement to the contrary notwithstanding, any action taken by the Initial Bond Trustee, [the Additional Bond Trustee,] a Joining Transaction Trustee [or the Administrative Agent] to appoint a Replacement Collection Agent pursuant to this Section 4 shall be subject to the Initial Bonds Rating Agency Condition [and the Additional Bonds Rating Agency Condition].  For the purposes of this Agreement, (i) the “Initial Bonds Rating Agency Condition” means the “Rating Agency Condition” as such term is defined in the Initial Indenture, and (ii) the [“Additional Bonds Rating Agency Condition” means the “Rating Agency Condition” as such term is defined in the Additional Indenture.] The parties hereto acknowledge and agree that the approval or the consent of the rating agencies which is required in order to satisfy the Initial Bonds Rating Agency Condition [or the Additional Bonds Rating Agency Condition] is not subject to any standard of commercial reasonableness, and the parties are bound to satisfy this condition whether or not the rating agencies are unreasonable or arbitrary.

 

SECTION 5.      Sharing of Information. The parties hereto agree to cooperate with each other and make available to each other or any Replacement Collection Agent any and all records and other data relevant to the Initial Securitized Utility Tariff Property, [the Additional Securitization Property,] the Joining Transaction Securitization Property [and the Receivables] which they may from time to time possess or receive from the Company, the Initial Securitized Utility Tariff Property Servicer, [the Additional Securitization Property Servicer,] any Joining Transaction Property Servicer or [the Receivables Servicer] or any successor hereto or thereto, including, without limitation, any and all computer programs, data files, documents, instruments, files and records and any receptacles and cabinets containing the same.  The Company hereby consents to the release of information regarding the Company pursuant to this Section 5.

 

SECTION 6.      No Joint Venture; No Fiduciary Obligations; Etc..

 

(a)            Nothing herein contained shall be deemed as effecting a joint venture among any of the Company, the Initial Bond Issuer, the Initial Bond Trustee, the Initial Securitized Utility Tariff Property Servicer, [the Additional Bond Issuer, the Additional Bond Trustee, the Additional Securitization Property Servicer,] each Joining Transaction Issuer, each Joining Transaction Trustee, [the Administrative Agent, the Receivables Servicer and the Buyer].

 

 

(b)            [Neither Buyer nor the Administrative Agent is the agent of, or owes any fiduciary obligation to, the Initial Bond Trustee, the Initial Bond Issuer, [the Additional Bond Trustee, the Additional Bond Issuer,] any Joining Transaction Issuer, any Joining Transaction Trustee, the Holders or any other party under this Agreement.  Each of the Initial Bond Trustee (on behalf of itself and the Holders), the Initial Bond Issuer, [the Additional Bond Trustee (on behalf of itself and the Holders), the Additional Bond Issuer,] each Joining Transaction Trustee (on behalf of itself and each of the Holders), each Joining Transaction Issuer and the Company hereby waives any right that it may now have or hereafter acquire to make any claim against Buyer or the Administrative Agent, in their respective capacities as such, on the basis of any such fiduciary obligation hereunder.  None of the Initial Bond Trustee, the Initial Bond Issuer, [the Additional Bond Trustee, the Additional Bond Issuer,] any Joining Transaction Issuer or any Joining Transaction Trustee is the agent of, or owes any fiduciary obligation to, Buyer or the Administrative Agent or any other party under this Agreement.  Each of the Administrative Agent, the Company and Buyer hereby waives any right that it may now have or hereafter acquire to make any claim against the Initial Bond Trustee, the Initial Bond Issuer, [the Additional Bond Trustee, the Additional Bond Issuer,] any Joining Transaction Trustee or any Joining Transaction Issuer on the basis of any such fiduciary obligation hereunder.]

 

(c)            Notwithstanding anything herein to the contrary, none of[ Buyer, the Administrative Agent,] the Initial Bond Trustee, the Initial Bond Issuer, [the Additional Bond Trustee, the Additional Bond Issuer,] any Joining Transaction Trustee or any Joining Transaction Issuer shall be required to take any action that exposes it to personal liability or that is contrary to the Initial Indenture, [the Additional Indenture,] each applicable Joining Transaction Indenture, the Servicing Agreement[, any Receivables Agreement] or applicable law.

 

(d)            None of [Buyer, the Administrative Agent,] the Initial Bond Trustee, the Initial Bond Issuer, [the Additional Bond Trustee, the Additional Bond Issuer,] any Joining Transaction Trustee, any Joining Transaction Issuer nor any of their respective directors, officers, agents or employees shall be liable for any action taken or omitted to be taken by it or them under or in connection with this Agreement, except for its or their own negligence, bad faith or willful misconduct.  Without limiting the foregoing, each of [Buyer, the Administrative Agent,] the Initial Bond Trustee, the Initial Bond Issuer, [the Additional Bond Trustee, the Additional Bond Issuer,] each Joining Transaction Trustee and each Joining Transaction Issuer: (i) may consult with legal counsel, independent public accountants and other experts selected by it and shall not be liable for any action taken or omitted to be taken in good faith by it in accordance with the advice of such counsel, accountants or experts; (ii) makes no warranty or representation to any party and shall not be responsible to any party for any statements, warranties or representations made by any other party in connection with this Agreement or any other agreement; (iii) shall not have any duty to ascertain or to inquire as to the performance or observance of any of the terms, covenants or conditions of this Agreement or any other agreement on the part of any other party; and (iv) shall incur no liability under or in respect of this Agreement by acting upon any writing (which may be by electronic transmission) believed by it in good faith to be genuine and signed or sent by the proper party or parties.

 

 

SECTION 7.      Method of Adjustment and Allocation.  Each of the parties hereto acknowledges that (i) the Initial Securitized Utility Tariff Property Servicer will adjust, calculate and allocate payments of Initial Securitized Utility Tariff Charges in accordance with Section 4.01 of the Initial Servicing Agreement and Section 6 of Annex 1 of the Initial Servicing Agreement in the form attached thereto, [(ii) the Additional Securitization Property Servicer will adjust, calculate and allocate payments of Additional Securitization Charges in accordance with Section [__] of the Additional Servicing Agreement and [Section [__] of Annex [__]] of the Additional Servicing Agreement in the form attached thereto] and (iii) each Joining Transaction Property Servicer will adjust, calculate and allocate payments of such Joining Transaction Securitization Charges in accordance with the applicable sections of the applicable Joining Transaction Servicing Agreement. Each of the parties hereto hereby acknowledges that (a) none of the [Administrative Agent, the Receivables Purchasers, the Additional Bond Issuer, the Additional Bond Trustee,] any Joining Transaction Issuer or any Joining Transaction Trustee shall be deemed or required under this Agreement to have any knowledge of or responsibility for the terms of the Initial Servicing Agreement and Annex 1 thereto, or any adjustment, calculation and allocation thereunder, [(b) none of [the Administrative Agent, the Receivables Purchasers,] the Initial Bond Issuer, the Initial Bond Trustee, any Joining Transaction Issuer or any Joining Transaction Trustee shall be deemed or required under this Agreement to have any knowledge of or responsibility for the terms of the Additional Servicing Agreement and [Annex [__] thereto], or any adjustment, calculation and allocation thereunder] and (c) none of the [Administrative Agent, the Receivables Purchasers,] the Initial Bond Issuer or the Initial Bond Trustee, [the Additional Bond Issuer or the Additional Bond Trustee], any Joining Transaction Issuer (excluding the Joining Transaction Issuer party to the applicable Joining Transaction Servicing Agreement) or any Joining Transaction Trustee (excluding the Joining Transaction Trustee party to the applicable Joining Transaction Servicing Agreement) shall be deemed or required under this Agreement to have any knowledge of or responsibility for the terms of such Joining Transaction Servicing Agreement and the relevant provisions thereto, or any adjustment, calculation and allocation thereunder. Accordingly, (A) each of [the Administrative Agent, the Receivables Purchasers, the Additional Bond Issuer, the Additional Bond Trustee,] each Joining Transaction Issuer and each Joining Transaction Trustee may, solely for the purposes of this Agreement, conclusively rely on the accuracy of the calculations of the Initial Securitized Utility Tariff Property Servicer in making adjustments, calculations and allocations under the Initial Servicing Agreement and Annex 1 thereto, [(B) each of [the Administrative Agent, the Receivables Purchasers,] the Initial Bond Issuer, the Initial Bond Trustee, each Joining Transaction Issuer and each Joining Transaction Trustee may, solely for the purposes of this Agreement, conclusively rely on the accuracy of the calculations of the Additional Securitization Property Servicer in making adjustments, calculations and allocations under the Additional Servicing Agreement and [Annex [__] thereto]] and (C) each of the [Administrative Agent, the Receivables Purchasers,] the Initial Bond Issuer, the Initial Bond Trustee, [the Additional Bond Issuer, the Additional Bond Trustee,] any Joining Transaction Issuer (excluding the Joining Transaction Issuer party to the applicable Joining Transaction Servicing Agreement) or any Joining Transaction Trustee (excluding the Joining Transaction Trustee party to the applicable Joining Transaction Servicing Agreement), solely for the purposes of this Agreement, conclusively rely on the accuracy of the calculations of the Joining Transaction Property Servicer in making adjustments, calculations and allocations under the Joining Transaction Servicing Agreement and the relevant provisions thereto.  Such acknowledgement shall not relieve [the Receivables Servicer of any of its obligations to make payments in accordance with the terms of the Receivables Agreements, nor shall it relieve] the Initial Securitized Utility Tariff Property Servicer of its obligations under the Initial Servicing Agreement, [the Additional Securitization Property Servicer of its obligations under the Additional Servicing Agreement] or each Joining Transaction Servicer of its obligations under the Joining Transaction Servicing Agreement.

 

SECTION 8.      Termination.  This Agreement shall terminate upon such time that at least two of the following have occurred: (a) the payment in full of the Initial Securitized Utility Tariff Bonds, [(b) the payment in full of the Additional Securitization Bonds,] (c) the payment in full of each of the Joining Transaction Securitization Bonds [and (d) the termination of the Receivables Agreements as to the Company] and the release of the Company from all further obligations thereunder, except that the understandings and acknowledgements contained in Sections 1, 2, 3 and 15 shall survive the termination of this Agreement. In addition, this Agreement shall terminate and be of no further force and effect: (i) with respect to the Initial Bond Issuer, the Initial Bond Trustee and the Initial Bond Servicer, upon the payment in full of the Initial Securitized Utility Tariff Bonds,[ (ii) with respect to the Additional Bond Issuer, the Additional Bond Trustee and the Additional Bond Servicer, upon the payment in full of the Additional Securitization Bonds,] (iii) with respect to each Joining Transaction Bond Issuer, such Joining Transaction Trustee and such Joining Transaction Bond Servicer, upon the payment in full of such Joining Transaction Securitization Bonds, and [(iv) with respect to the Administrative Agent, the Buyer, the Receivables Purchasers and the Receivables Servicer, the termination of the Receivables Agreements as to the Company] and the release of the Company from all further obligations thereunder.

 

 

SECTION 9.      Governing Law; Jurisdiction; Waiver of Jury Trial.

 

(a)            THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS (INCLUDING, WITHOUT LIMITATION, SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF NEW YORK, BUT OTHERWISE WITHOUT REGARD TO THE LAW OF CONFLICTS) OF THE STATE OF NEW YORK.

 

(b)            Each of the parties hereto hereby irrevocably submits to the non-exclusive jurisdiction of any New York state court sitting in the Borough of Manhattan in The City of New York or any U.S. federal court sitting in the Borough of Manhattan in The City of New York in respect of any suit, action or proceeding arising out of or relating to this Agreement and irrevocably accepts for itself and in respect of its respective property, generally and unconditionally, jurisdiction of the aforesaid courts; and each party hereto agrees to, and irrevocably waives any objection based on forum non conveniens or venue not to, appear in such state or U.S. federal court located in the Borough of Manhattan.

 

(c)            EACH OF THE PARTIES HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT AND FOR ANY COUNTERCLAIM THEREIN.

 

SECTION 10.      Further Assurances.  Each of the parties hereto agrees to execute any and all agreements, instruments, financing statements, releases and any and all other documents reasonably requested by any of the other parties hereto in order to effectuate the intent of this Agreement.  In each case where a release is to be given pursuant to this Agreement, the term release shall include any documents or instruments necessary to effect a release, as contemplated by this Agreement.  All releases, subordinations and other instruments submitted to the executing party are to be prepared at the expense of the Company.  Notwithstanding anything herein to the contrary, (i) the Initial Bond Trustee shall not be required to execute any such agreements, instruments, releases or other documents unless directed to do so by an “Issuer Order,” as such term is defined in the Initial Indenture, [(ii) the Additional Bond Trustee shall not be required to execute any such agreements, instruments, releases or other documents unless directed do so by an “Issuer Order,” as such term is defined in the Additional Indenture and] (iii) no Joining Transaction Issuer shall be required to execute any such agreements, instruments, releases or other documents unless directed do so by an “Issuer Order,” as such term is defined in such Joining Transaction Indenture.

 

 

SECTION 11.      Limitation on Rights of Others.  This Agreement is solely for the benefit of the parties hereto, the Holders of the Initial Securitized Utility Tariff Bonds, [the Holders of the Additional Securitization Bonds,] the Holders of each of the Joining Transaction Securitization Bonds [and the Receivables Purchasers], and no other person or entity shall have any rights, benefits, priority or interest under or because of the existence of this Agreement.

 

SECTION 12.      Amendments. Except for any Joinder Agreement, no amendment or modification of this Agreement or waiver of any right hereunder shall be binding on any party hereto unless it is in writing and signed by all of the parties hereto; provided that no such amendment shall be effective unless the Initial Bonds Rating Agency Condition [and the Additional Bonds Rating Agency Condition] shall have been satisfied with respect thereto and provided, further, that no party hereto shall be required to execute any such amended agreement on terms which are materially more disadvantageous to it or to the Holders of the Initial Securitized Utility Tariff Bonds (in the case of the Initial Bond Trustee), [to the Holders of the Additional Securitization Bonds (in the case of the Additional Bond Trustee)], to the Holders of each of the Joining Transaction Securitization Bonds (in the case of each such Joining Transaction Trustee) [or to the Receivables Purchasers (in the case of the Administrative Agent)] than the terms contained herein.  In addition, (i) the Initial Bond Trustee shall not be required to execute any such amendment unless directed to do so by an “Issuer Order,” as such term is defined in the Initial Indenture, [(ii) the Additional Bond Trustee shall not be required to execute any such amendment unless directed to do so by an “Issuer Order,” as such term is defined in the Additional Indenture and] (iii) no Joining Transaction Trustee shall be required to execute any such amendment unless directed to do so by an “Issuer Order,” as such term is defined in such Joining Transaction Indenture.

 

SECTION 13.      Severability.  The provisions of this Agreement shall be deemed severable and the invalidity or unenforceability of any provision shall not affect the validity or enforceability of the other provisions hereof.  If any provision of this Agreement, or the application thereof to any Person or any circumstance, is invalid or unenforceable, (i) a suitable and equitable provision shall be substituted therefor in order to carry out, so far as may be valid and enforceable, the intent and purpose of such invalid or unenforceable provision and (ii) the remainder of this Agreement and the application of such provision to other Persons, or circumstances shall not be affected by such invalidity or unenforceability, nor shall such invalidity or unenforceability affect the validity or enforceability of such provision, or the application thereof, in any other jurisdiction.

 

 

SECTION 14.      Counterparts.  This Agreement may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed and delivered shall be deemed to be an original and all of which taken together shall constitute but one and the same instrument.  The parties hereto agree that this Agreement may be electronically signed, that any digital or electronic signatures (including pdf or electronically imaged signatures provided by DocuSign or any other digital signature provider as specified in writing to the Indenture Trustee) appearing on this Agreement are the same as handwritten signatures for the purposes of validity, enforceability and admissibility, and that delivery of any such electronic signature to, or a signed copy of, this Agreement may be made by email or other electronic transmission. The Issuer agrees to assume all risks arising out of the use of digital signatures and electronic methods of submitting such signatures to the Indenture Trustee, including without limitation the risk of the Indenture Trustee acting upon documents with unauthorized signatures and the risk of interception and misuse by third parties.

 

SECTION 15.      Nonpetition Covenant.

 

(a)            Notwithstanding any prior termination of this Agreement, the Initial Indenture[, the Additional Indenture], or any Joining Transaction Indenture, each of the parties covenants that it shall not, prior to the date which is one year and one day after payment in full of the Initial Securitized Utility Tariff Bonds[, the Additional Securitization Bonds] and each of the Joining Transaction Securitization Bonds, acquiesce, petition or otherwise invoke or cause the Initial Bond Issuer[, the Additional Bond Issuer] or any Joining Transaction Issuer to invoke the process of any court or government authority for the purpose of commencing or sustaining a case against the Initial Bond Issuer[, the Additional Bond Issuer] or any Joining Transaction Issuer under any federal or state bankruptcy, insolvency or similar law or appointing a receiver, liquidator, assignee, trustee, custodian, sequestrator or other similar official of the Initial Bond Issuer or any substantial part of its property[, the Additional Bond Issuer or any substantial part of its property], or any Joining Transaction Issuer or any substantial part of its property, or ordering the winding up or liquidation of the affairs of the Initial Bond Issuer[, the Additional Bond Issuer] or any Joining Transaction Issuer. Nothing in this Section 15 shall preclude, or be deemed to estop, any party hereto (a) from taking or omitting to take any action prior to such date in (i)(A) any case or proceeding voluntarily filed or commenced by or on behalf of the Initial Bond Issuer under or pursuant to any such law or (B) any involuntary case or proceeding pertaining to the Initial Bond Issuer that is filed or commenced by or on behalf of a Person other than the Initial Bond Trustee, as the case may be, and is not joined in by the Initial Bond Trustee, as the case may be, under or pursuant to any such law, (ii)[(A) any case or proceeding voluntarily filed or commenced by or on behalf of the Additional Bond Issuer under or pursuant to any such law or (B) any involuntary case or proceeding pertaining to the Additional Bond Issuer that is filed or commenced by or on behalf of a Person other than the Additional Bond Trustee, as the case may be, and is not joined in by the Additional Bond Trustee, as the case may be, under or pursuant to any such law, (iii)](A) any case or proceeding voluntarily filed or commenced by or on behalf of a Joining Transaction Issuer under or pursuant to any such law or (B) any involuntary case or proceeding pertaining to such Joining Transaction Issuer that is filed or commenced by or on behalf of a Person other than the relevant Joining Transaction Trustee, as the case may be, and is not joined in by the relevant Joining Transaction Trustee, as the case may be, under or pursuant to any such law, or (b) from commencing or prosecuting any legal action that is not an involuntary case or proceeding under or pursuant to any such law against the Initial Bond Issuer[, the Additional Bond Issuer], any other Joining Transaction Issuer or any of its properties.

 

 

(b)            [Notwithstanding any prior termination of this Agreement or the Receivables Purchase Agreement, each of the parties hereto other than the Administrative Agent hereby covenants and agrees that it shall not, prior to the date which is one year and one day after the [termination of the Receivables Purchase Agreement and the payment in full of all amounts owing by Buyer thereunder, acquiesce, petition or otherwise invoke or cause Buyer to invoke the process of any court or government authority for the purpose of commencing or sustaining a case against Buyer under any federal or state bankruptcy, insolvency or similar law or appointing a receiver, liquidator, assignee, trustee, custodian, sequestrator or other similar official of Buyer or any substantial part of the property of Buyer, or ordering the winding up or liquidation of the affairs of Buyer.]

 

SECTION 16.      Trustees.  The Bank of New York Mellon Trust Company, N.A., as Initial Bond Trustee, in acting hereunder, is entitled to all rights, benefits, protections, immunities and indemnities accorded to it under the Initial Indenture. [[_____________], as Additional Bond Trustee, in acting hereunder, is entitled to all rights, benefits, protections, immunities and indemnities accorded to it under the Additional Indenture.] Each Joining Transaction Trustee, as defined in the applicable Joinder Agreement, is entitled to all rights, benefits, protections, immunities and indemnities accorded to it under the applicable Joining Transaction Indenture.

 

SECTION 17.      Notices, Etc..  Any notice provided or permitted by this Agreement to be made upon, given or furnished to or filed with any party hereto shall be sufficient for every purpose hereunder if made, given, furnished or filed in writing by electronic transmission (including email), first-class mail or overnight delivery service to the applicable party at its address set forth on Exhibit B hereto or, as to any party, at such other address as shall be designated by such party by written notice to the other parties hereto.

 

SECTION 18.      Joinder of New Parties.  In the event that any Joining Transaction Issuer enters into any new receivables program in order to sell Joining Transaction Securitization Property and the collections from such Joining Transaction Securitization Property are to be directed to the Deposit Accounts, then the Company shall, as a condition to entering into any such program, cause such new Joining Transaction Issuer, new Joining Transaction Trustee and new Joining Transaction Property Servicer to become parties to this Agreement by executing and delivering to the Company, a Joinder Agreement in the form of Exhibit A attached hereto, appropriately completed, which Joinder Agreement shall become effective when such Joinder Agreement is executed by the new Joining Transaction Issuer, new Joining Transaction Trustee and new Joining Transaction Property Servicer[, the Administrative Agent] and the Company, and delivered to each other party hereto; provided, however, that if any default, event of default or event of termination has occurred and is continuing under any new Joining Transaction Bond Agreement, then the consent of the parties hereto shall be required.

 

 

[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]

 

 

IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their respective officers thereunto duly authorized, as of the date first above written.

 

	UNION ELECTRIC COMPANY D/B/A AMEREN MISSOURI, as Company, as Initial Securitized Utility Tariff Property Servicer, as Additional Securitization Property Servicer, as Receivables Servicer and as a collection agent
	By:
		Name:
		Title:
	AMEREN MISSOURI SECURITIZATION FUNDING I, LLC
	By:
		Name:
		Title:
	[NAME], as Buyer
	By:
		Name:
		Title:
	THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., not in its individual capacity, but solely as Initial Bond Trustee
	By:
		Name:
		Title:

 

Signature Page to

Intercreditor Agreement

 

 

	[Insert Admin Agent name], as Administrative Agent
	By:
		Name:
		Title:
	[SPE II]
	By:
		Name:
		Title:
	[________], not in its individual capacity, but solely as Additional Bond Trustee
	By:
		Name:
		Title:

 

Signature Page to

Intercreditor Agreement

 

 

EXHIBIT A

 

FORM OF JOINDER AGREEMENT

 

This Joinder Agreement, dated as of [____] [__], 20[__] (this “Joinder Agreement”) is entered into by and among Union Electric Company d/b/a Ameren Missouri (the “Company”), [ ], in its role as Administrative Agent under the Agreement (as defined below) and [__], as a Joining Transaction Trustee (the “Joining Transaction Trustee”) and [__] as a Joining Transaction Issuer (the “Joining Transaction Issuer”) in connection with, and pursuant to, the Intercreditor Agreement, dated as of [ ], 20[ ] (such agreement as amended, restated, supplemented or otherwise modified from time to time, the “Agreement”), by and among the Company, [ ], each trustee, indenture trustee, lender, administrative agent, collateral agent, purchaser or other party (excluding any Joining Transaction Issuer) joined by execution of the Joinder Agreement, each Joining Transaction Issuer joined by execution of a Joinder Agreement and Union Electric Company d/b/a Ameren Missouri, not in its individual capacity but solely as agent (the “Administrative Agent”). Capitalized terms used but not defined herein shall have the meanings given them in the Agreement.

 

WHEREAS, the each of the Joining Transaction Trustee, Joining Transaction Issuer and Joining Transaction Property Servicer (collectively, the “Joining Parties,” and each, a “Joining Party”) wish to obtain the benefits and assume the burdens of being a Joining Transaction Trustee, Joining Transaction Issuer and Joining Transaction Property Servicer, as applicable, under the Agreement;

 

NOW, THEREFORE, the Joining Parties, by their execution and delivery of this Agreement, agree to the terms and conditions of the Agreement and to be bound thereby as a Joining Transaction Trustee, Joining Transaction Issuer and Joining Transaction Property Servicer, as applicable. The Company and the Joining Parties agree that the obligations of the Company under the Joining Transaction Bond Agreements (as defined in the Agreement) entitled to the benefits of Agreement and the other terms and conditions of the Agreement.

 

Notices to the undersigned to be delivered pursuant to Section 17 of the Agreement may be delivered at the following address:

 

	[________________________]
	[________________________]
	[________________________]
	[________________________]

 

THIS JOINDER AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS JOINDER AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.

 

This Joinder Agreement may be executed by one or more of the parties to this Joinder Agreement on any number of separate counterparts, and all of said counterparts taken together shall be deemed to constitute one and the same instrument. Delivery of an executed signature page of this Joinder Agreement by emailed pdf. or any other electronic means that reproduces an image of the actual executed signature page shall be effective as delivery of an original executed counterpart hereof or any other electronic means as provided in the immediately following sentence. The words “execution,” “signed,” “signature,” “delivery,” and words of like import in or relating to any document to be signed in connection with this Joinder Agreement and the transactions contemplated hereby shall be deemed to include an electronic sound, symbol, or process attached to, or associated with, a contract or other record and adopted by a Person with the intent to sign, authenticate or accept such contract or record, deliveries or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature, physical delivery thereof or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act.

 

[signatures appear on the following page]

 

 

IN WITNESS WHEREOF, the parties have caused this Joinder Agreement to be executed by their respective officers thereunto duly authorized, as of the date first above written.

 

	UNION ELECTRIC COMPANY D/B/A AMEREN MISSOURI, as Company and Joining Transaction Property Servicer
	By:
		Name:
		Title:
	[______________], as Administrative Agent
	By:
		Name:
		Title:
	[_______________], not in its individual capacity, but solely as Joining Transaction Trustee
	By:
		Name:
		Title:
	[______________], as Joining Transaction Issuer
	By:
		Name:
		Title:

 

 

EXHIBIT B

 

NOTICE ADDRESSES

 

Union Electric Company d/b/a Ameren Missouri

1901 Chouteau Avenue

St. Louis, Missouri 63103
Telephone:

Email:

 

Ameren Missouri Securitization Funding I, LLC

1901 Chouteau Avenue

St. Louis, Missouri 63103
Telephone:

Email:

 

[Buyer]

[Address]

Attention:

Telephone:

Facsimile:

Email:

 

[Administrative Agent]

[Address]

Attention:

Telephone:

Facsimile:

Email:

 

The Bank of New York Mellon Trust Company, N.A.

601 Travis Street, 16^th Floor

Houston, Texas 77002

Attention: Corporate Trust Administration

Telephone: Email:

 

[SPE II]
1901 Chouteau Avenue

St. Louis, Missouri 63103
Telephone:

Email:

 

[Additional Trustee]

 

[Address]

 Attention:

 Telephone:

 Facsimile:

 Email:

 

 

IN WITNESS WHEREOF, the parties have caused this Administration Agreement to be duly executed and delivered as of the day and year first above written.

  

	UNION ELECTRIC COMPANY D/B/A AMEREN MISSOURI,
	a Delaware corporation
	By:
		Name: [ ]
		Title:   [ ]
	AMEREN MISSOURI Securitization funding i, llc,
	a Delaware limited liability company
	By:
		Name: [ ]
		Title:   [ ]

 

Signature Page to
Administration Agreement

 

 

 

Exhibit 99.2

 

 

[date], 2024

 

To the Persons Listed on the Attached Schedule I

 

Re: Federal Constitutional Issues related to Union Electric Company d/b/a Ameren Missouri Securitized Utility Tariff Bonds

 

Opinion Recipients:

 

We have served as counsel to Union Electric Company d/b/a Ameren Missouri, a Missouri corporation (“Ameren Missouri”), in connection with the issuance and sale on the date hereof by Ameren Missouri Securitization Funding I, LLC, a Delaware limited liability company (the “Issuer”), of $476,121,000 aggregate principal amount of the Issuer’s Securitized Utility Tariff Bonds, Series 2024-A (the “Bonds”), which are more fully described in the Registration Statement on Form SF-1 (File Nos. 333-282616 and 333-282616-01) filed on October 11, 2024, as amended by Amendment No. 1 filed on October 28, 2024 and by Amendment No. 2 filed on November 15, 2024, with the Securities and Exchange Commission pursuant to the Securities Act of 1933, and the preliminary prospectus (the “Prospectus”) included as part of the Registration Statement. The Bonds are being sold pursuant to the provisions of the Underwriting Agreement [date], 2024 (the “Underwriting Agreement”) between Ameren Missouri, the Issuer, and underwriters named in Schedule I to the Underwriting Agreement. The Bonds are being issued under the provisions of the Indenture dated as of the date hereof (the “Indenture”) between the Issuer and The Bank of New York Mellon Trust Company, N.A., a national banking association, as indenture trustee (the “Indenture Trustee”) and account bank and securities intermediary. According to the Indenture, the Indenture Trustee holds the securitized utility tariff property described below (the “Securitized Utility Tariff Property”) as collateral security for the payment of the Bonds.

 

In August 2021, Missouri House Bill 734 became effective, thereby adding Section 393.1700 to the Revised Statutes of Missouri, and thereby establishing a process to obtain a financing order under which the Missouri Public Service Commission (“MoPSC”) is allowed to authorize an electrical corporation (or its successors) to impose on its customers an irrevocable, nonbypassable, securitized utility tariff charge to recover qualified extraordinary costs. Section 393.1700 of the Revised Statutes of Missouri is referred to herein as the “Securitization Law.” The amount and terms for collections of these securitized utility tariff charges are governed by the financing order¹ issued to an electrical corporation² by the MoPSC. The Securitization Law permits an electrical corporation to transfer its rights and interests under a financing order, including the right to impose, bill, charge, collect and receive securitized utility tariff charges, to a special purpose entity formed by the electrical corporation to issue securitized utility tariff bonds secured by the right to receive revenues arising from the securitized utility tariff charges. The electrical corporation’s right to impose, bill, charge collect, receive and adjust the securitized utility tariff charges, and all revenue, collections, payments, money and proceeds arising out of the rights and interests created under the financing order, upon transfer to the issuing entity, constitute securitized utility tariff property.

 

¹ Mo. Rev. Stat. § 393.1700(1)(9) defines “financing order” as “an order from the [MoPSC] that authorizes the issuance of securitized utility tariff bonds; the imposition, collection, and periodic adjustments of a securitized utility tariff charge; the creation of securitized utility tariff property; and the sale, assignment, or transfer of securitized utility tariff property to an assignee.”

 

² As defined in Mo. Rev. Stat. § 393.1700(1)(6).

 

 

The term “securitized utility tariff property” is defined in the Securitization Law as:

 

(a) All rights and interests of an electrical corporation or successor or assignee of the electrical corporation under a financing order, including the right to impose, bill, charge, collect, and receive securitized utility tariff charges³ authorized under the financing order and to obtain periodic adjustments to such charges as provided in the financing order;

 

(b) All revenues, collections, claims, rights to payments, payments, money, or proceeds arising from the rights and interests specified in the financing order, regardless of whether such revenues, collections, claims, rights to payment, payments, money, or proceeds are imposed, billed, received, collected, or maintained together with or commingled with other revenues, collections, rights to payment, payments, money, or proceeds.⁴

 

Moreover, Section 11 of the Securitization Law—referred to herein as the “State Pledge”—reads, in relevant part:

 

(1)  The state and its agencies, including the [MoPSC], pledge and agree with bondholders, the owners of the securitized utility tariff property, and other financing parties that the state and its agencies will not take any action listed in this subdivision. This subdivision does not preclude limitation or alteration if full compensation is made by law for the full protection of the securitized utility tariff charges collected pursuant to a financing order and of the bondholders and any assignee or financing party entering into a contract with the electrical corporation. The prohibited actions are as follows:

 

(a)  Alter the provisions of this section, which authorize the [MoPSC] to create an irrevocable contract right or chose in action by the issuance of a financing order, to create securitized utility tariff property, and make the securitized utility tariff charges imposed by a financing order irrevocable, binding, or nonbypassable charges for all existing and future retail customers of the electrical corporation except its existing special contract customers;

 

 ³ Mo. Rev. Stat. § 393.1700(1)(16) defines “securitized utility tariff charges” as “the amounts authorized by the [MoPSC] to repay, finance, or refinance securitized utility tariff costs and financing costs and that are, except as otherwise provided for in [the Securitization Law], nonbypassable charges imposed on and part of all retail customer bills, collected by an electrical corporation or its successors or assignees, or a collection agent, in full, separate and apart from the electrical corporation’s base rates, and paid by all existing or future retail customers receiving electrical service from the electrical corporation or its successors or assignees under [MoPSC]-approved rate schedules, except for customers receiving electrical service under special contracts as of August 28, 2021, even if a retail customer elects to purchase electricity from an alternative electricity supplier following a fundamental change in regulation of public utilities in [Missouri].”

 

⁴ Id. § 393.1700(1)(18).

 

 

(b)  Take or permit any action that impairs or would impair the value of securitized utility tariff property or the security for the securitized utility tariff bonds or revises the securitized utility tariff costs for which recovery is authorized;

 

(c)  In any way impair the rights and remedies of the bondholders, assignees, and other financing parties;

 

(d)  Except for changes made pursuant to the formula-based true-up mechanism authorized under this section, reduce, alter, or impair securitized utility tariff charges that are to be imposed, billed, charged, collected, and remitted for the benefit of the bondholders, any assignee, and any other financing parties until any and all principal, interest, premium, financing costs and other fees, expenses, or charges incurred, and any contracts to be performed, in connection with the related securitized utility tariff bonds have been paid and performed in full.

 

(2)  Any person or entity that issues securitized utility tariff bonds may include the language specified in this subsection in the securitized utility tariff bonds and related documentation.⁵

 

On November 21, 2023, in File No. EF-2024-0021, Ameren Missouri submitted a petition for a financing order to the MoPSC, seeking authority to recover approximately $513 million of energy transition costs incurred by Ameren Missouri due to the retirement of its Rush Island coal-fired electric generating plant. Ameren Missouri filed that petition under the Securitization Law. On August 7, 2024, the MoPSC issued its amended financing order (the “Financing Order”), to be effective August 17, 2024, authorizing Ameren Missouri to issue a series of securitized utility tariff bonds (the “Securitized Utility Tariff Bonds”) to recover approximately $461 million of energy transition costs, plus carrying costs, plus upfront financing costs (the “Securitized Utility Tariff Charges”). The Financing Order became final and non-appealable on September 21.

 

On the date hereof and simultaneous with the issuance of the Bonds, the Securitized Utility Tariff Property was sold and assigned to the Issuer in accordance with the provisions of the Securitized Utility Tariff Property Purchase and Sale Agreement dated as of [date], 2024 between Ameren Missouri and the Issuer in consideration for the payment by the Issuer to Ameren Missouri of the proceeds of the sale of the Bonds, net of various issuance costs.

 

⁵ Mo. Rev. Stat. § 393.1700(11).

 

 

QUESTIONS PRESENTED

 

You have requested our reasoned opinion with respect to the following questions presented under the Federal Constitution:

 

(A)(i) Whether the holders of the Bonds (the “Bondholders”), by virtue of the State Pledge, could successfully challenge under Article I, Section 10 of the United States Constitution (the “Federal Contract Clause”), the constitutionality of any legislative action of the State of Missouri (the “State”), whether by legislation or voter initiative (either statutory or constitutional), that becomes law (“Legislative Action”) that alters, impairs, or reduces the value of the Securitized Utility Tariff Property or the Securitized Utility Tariff Charges so as to impair (a) the terms of the Indenture or the Bonds or (b) the rights and remedies of the Bondholders (or the Indenture Trustee acting on their behalf) before the Bonds are fully paid and discharged;⁶

 

(ii) Whether preliminary injunctive relief would be available under federal law to delay implementation of Legislative Action that results in an Impairment pending final adjudication of a claim challenging such Legislative Action in federal court and, assuming a favorable final adjudication of such claim, whether permanent injunctive relief would be available to enjoin the implementation of the challenged Legislative Action.

 

(B) Whether, under the Takings Clause of the Fifth Amendment to the United States Constitution (the “Federal Takings Clause”), the State could repeal or amend the Securitization Law or take any other action in contravention of the State Pledge without paying just compensation to the Bondholders, as determined by a court of competent jurisdiction, if taking such an action in contravention of the State Pledge (a) constituted a permanent appropriation of a substantial property interest of the Bondholders in the Securitized Utility Tariff Property or denied all economically productive use of the Securitized Utility Tariff Property; (b) destroyed the Securitized Utility Tariff Property other than in response to emergency conditions; or (c) substantially reduced, altered, or impaired the value of the Securitized Utility Tariff Property so as to unduly interfere with the reasonable expectations of the Bondholders arising from their investments in the Bonds (a “Taking”).

 

⁶ Any impairment described in clause (a) or (b) is referred to herein as an “Impairment.”

 

 

OPINIONS

 

Based on our review of the facts and the relevant judicial authorities, and subject to the qualifications, limitations, and assumptions set forth in this letter (including the assumption that any Impairment would be “substantial”), it is our opinion that a reviewing court of competent jurisdiction, in a properly prepared and presented case:

 

(1)

would conclude, with respect to the question presented above in (A)(i), that the State Pledge constitutes a contractual relationship between the Bondholders and the State and that, absent a demonstration by the State that an Impairment is necessary to further a significant and legitimate public purpose, and upon a finding by the court that an evident and more moderate course would serve the State’s purposes equally well, the Bondholders (or the Indenture Trustee acting on their behalf) could successfully challenge under the Federal Contract Clause the constitutionality of any Legislative Action determined by such court to cause an Impairment before the Bonds are fully paid and discharged;

 

(2)

would conclude, with respect to the question presented above in (A)(ii), that sound and substantial arguments support the granting of preliminary injunctive relief and that permanent injunctive relief is available under federal law to prevent implementation of Legislative Action hereafter taken and determined by such court to cause an Impairment in violation of the Federal Contract Clause; and

 

(3)

would conclude, with respect to the question presented above in (B), that under the Federal Takings Clause, the State is required to pay just compensation to the Bondholders if the State’s repeal or amendment of the Securitization Law or taking of any other action in contravention of the State Pledge constituted a Taking.

 

We note that this letter is limited to the laws of the United States of America. Our opinions are based on our evaluation of the facts and circumstances described herein and the existing precedent and arguments relevant to the factual circumstances likely to exist at the time of a challenge to Legislative Action (or other State action) based on the Federal Contract Clause or Takings Clause. Such precedent and such circumstances could change materially from those discussed below. Accordingly, the opinions herein are intended to express our belief as to the result that should be obtainable through the proper application of existing judicial decisions in a properly prepared and presented case. None of the foregoing opinions is intended to be a guaranty as to what a particular court would hold; rather, each such opinion is an expression as to the decision a court ought to reach if the issue were properly prepared and presented and the court followed what we believe to be the applicable legal principles under existing precedent.

 

In addition, we are not aware of any reported controlling precedent that is directly on point with respect to the questions presented above. Thus, our analysis is a reasoned application of judicial decisions involving similar or analogous circumstances. Moreover, the application of equitable principles (including the issuance of injunctive relief) is subject to the discretion of the court asked to apply them. We cannot predict the facts and circumstances that will be present in the future and may be relevant to the exercise of such discretion. As a result, there can be no assurance that a court will follow our reasoning or reach the conclusions that we believe are supported by current precedent. The recipients of this letter should assess these considerations in analyzing the risks associated with the subject transaction.

 

 

DISCUSSION

 

I.

THE FEDERAL CONTRACT CLAUSE

 

The Federal Contract Clause provides that “[n]o State shall . . . pass any . . . Law impairing the Obligation of Contracts.”⁷ According to the United States Supreme Court, this language serves “to encourage trade and credit by promoting confidence in the stability of contractual obligations.”⁸ Accordingly, “the [Federal] Contract Clause limits the power of the States to modify their own contracts as well as to regulate those between private parties.”⁹ While on its face the Federal Contract Clause appears to proscribe any law impairing the obligation of contracts, the Supreme Court has made clear that the Clause’s proscription “is not an absolute one and is not to be read with literal exactness like a mathematical formula.”¹⁰

 

Instead, the Supreme Court applies a three-part test to determine whether a legislative action violates the Federal Contract Clause:

 

(1)

whether the legislative action operates as a substantial impairment of a contractual relationship;

 

(2)

assuming such an impairment, whether the legislative action is justified by a significant and legitimate public purpose; and

 

(3)

whether the adjustment of the rights and responsibilities of the contracting parties is reasonable and appropriate given the public purpose behind the legislative action.11

 

⁷ U.S. Const. art. I, § 10.

 

⁸ U.S. Trust Co. v. New Jersey, 431 U.S. 1, 15 (1977).

 

⁹ Id. at 17.

 

¹⁰ Id. at 21 (internal quotation marks omitted); see also Energy Reserves Grp., Inc. v. Kan. Power & Light Co., 459 U.S. 400, 410 (1983) (“Although the language of the [Federal] Contract Clause is facially absolute, its prohibition must be accommodated to the inherent police power of the State ‘to safeguard the vital interests of its people.’”) (quoting Home Bldg. & Loan Ass’n v. Blaisdell, 290 U.S. 398, 434 (1934)).

 

¹¹ Energy Reserves, 459 U.S. at 411–13; Equip. Mfrs. Ins. v. Janklow, 300 F.3d 842, 850 (8th Cir. 2002). The Supreme Court has sometimes indicated that Contract Clause challenges should be reviewed in three steps and sometimes in two. Compare Energy Reserves, 459 U.S. at 411-12 (identifying three-part test: (1) “substantial impairment,” (2) “significant and legitimate public purpose,” and (3) “reasonable” and “appropriate” means), with Sveen v. Melin, –– U.S. ––, 138 S. Ct. 1815, 1821-22 (2018) (referencing two-part test: (1) “substantial impairment,” and (2) “whether the state law is drawn in an appropriate and reasonable way to advance a significant and legitimate public purpose” (internal quotation marks omitted)). Whether articulated as a three-part or two-part test, however, the substance of the inquiry is the same. Melendez v. City of New York, 16 F.4th 992, 1031 (2d Cir. 2021). See also Heights Apartments, LLC v. Walz, 30 F.4th 720, 728 (8th Cir. 2022) (explaining that the Eighth Circuit applies a “two-prong test to determine whether a state has impermissibly interfered with a contract: (1) whether the state law substantially impairs a contractual relationship, which takes into consideration the extent to which the law undermines the contractual bargain, interferes with a party's reasonable expectations, and prevents the party from safeguarding or reinstating his rights and (2) if the first prong is met, whether the state law is drawn in an ‘appropriate’ and ‘reasonable’ way to advance ‘a significant and legitimate public purpose.”).

 

 

In addition, in cases involving a contract with a state, there is an additional step known as the “reserved powers doctrine.” That doctrine requires a reviewing court to ask whether a state has “surrender[ed] an essential attribute of its sovereignty,” which the state is not permitted to do.¹²

 

The following subparts address: (1) whether a contract exists between the State and the Bondholders; (2) if so, whether that contract violates the “reserved powers” doctrine; and (3) the State’s burden in justifying an Impairment. The determination of whether a Legislative Action constitutes a substantial impairment of a particular contract is a fact-specific analysis, and nothing in this letter expresses an opinion as to how a court of competent jurisdiction would resolve that issue with respect to the Financing Order, the Securitized Utility Tariff Property, or the Bonds. Therefore, we assume for purposes of this letter that any Impairment resulting from a challenged Legislative Action would be substantial under the Federal Contract Clause.

 

A.

The Existence of a Contractual Relationship

 

The law is clear that a contractual relationship may, in certain circumstances, arise from a legislative enactment. Courts have recognized, however, a general presumption that “absent some clear indication that [a] legislature intends to bind itself contractually, . . . ‘a law is not intended to create private contractual or vested rights but merely declares a policy to be pursued until the legislature shall ordain otherwise.’”¹³ That presumption arises from the principle that a legislature’s primary function “is not to make contracts, but to make laws that establish the policy of the state.”¹⁴

 

The general presumption against a contractual relationship may be overcome where the language of the statute at issue indicates an intent to create contractual rights. To determine whether a contract has been created by a statute, courts have explained, “it is of first importance to examine the language of the statute.”¹⁵ On this score, the United States Supreme Court has held that a statute creates a contractual relationship between a state and private parties if the statute contains adequate language of contractual undertaking.¹⁶ According to the Court, a statutory contract is created “when the language and circumstances evince a legislative intent to create private rights of a contractual nature enforceable against the State.”¹⁷

 

¹² U.S. Trust, 431 U.S. at 23.

 

¹³ Nat’l R.R. Passenger Corp. v. Atchison, Topeka & Santa Fe Ry. Co., 470 U.S. 451, 465–66 (1985) (quoting Dodge v. Bd. of Education, 302 U.S. 74, 79 (1937)).

 

¹⁴ Id. at 466 (citing Ind. ex. Rel. Anderson v. Brand, 303 U.S. 95, 104–05 (1938)).

 

¹⁵ Dodge, 302 U.S. at 78.

 

¹⁶ See Brand, 303 U.S. at 104–05 (noting that “the cardinal inquiry is as to the terms of the statute supposed to create such a contract”); U.S. Trust, 431 U.S. at 17–18, 18 n.14.

 

¹⁷ U.S. Trust, 431 U.S. at 18 n.14; Honeywell, Inc. v. Minnesota Life and Health Ins. Guar. Ass’n, 110 F.3d 547, 552 (8th Cir. 1997).

 

 

Several Supreme Court decisions support the conclusion that the State Pledge creates a contractual relationship between the State and the Bondholders. For example, in U.S. Trust, the Supreme Court affirmed the trial court’s uncontested finding that a statutory covenant between two states that benefitted the holders of certain bonds gave rise to a contractual obligation between the states and those bondholders.¹⁸ The covenant at issue limited the ability of the Port Authority of New York and New Jersey to subsidize rail-passenger transportation with revenues and reserves pledged as security for various bonds. In finding the presence of a contract between the states and the bondholders, the Court emphasized that “[t]he intent to make a contract is clear from the statutory language: ‘The 2 States covenant and agree with each other and with the holders of any affected bonds.’”¹⁹

 

Similarly, in Brand, the Supreme Court held that the Indiana Teachers’ Tenure Act formed a contract between the state and specified teachers because the statutory language showed a clear contractual intent. Specifically, the Court based its decision on the legislature’s repeated and intentional use of the word “contract” throughout the statute to describe the legal relationship between the state and the impacted teachers.²⁰ “The title of the act,” too, was “couched in terms of contract,” and “[t]he tenor of the act indicate[d] that the word ‘contract’ was not used inadvertently or in other than its usual legal meaning.”²¹

 

Like the language of the covenants considered in U.S. Trust and Brand, the language of the State Pledge manifests the Missouri legislature’s intent to bind the State. In particular, the State Pledge provides, in pertinent part, that “[t]he state and its agencies, including the [MoPSC], pledge and agree with bondholders, the owners of the securitized utility tariff property, and other financing parties that the state and its agencies will not . . . [t]ake or permit any action that impairs or would impair the value of securitized utility tariff property,” “[i]n any way impair the rights and remedies of the bondholders, assignees, and other financing parties,” and “[e]xcept for changes made pursuant to the formula-based true-up mechanism authorized under [the Securitization Law], reduce, alter, or impair securitized utility tariff charges that are to be imposed, billed, charged, collected, and remitted for the benefit of the bondholders, any assignee, and any other financing parties until any and all principal, interest, premium, financing costs and other fees, expenses, or charges incurred, and any contracts to be performed, in connection with the related securitized utility tariff bonds have been paid and performed in full.”²² Similar to the terms “covenant” and “agree” quoted in U.S. Trust, and the word “contract” in Brand, the terms “pledge” and “agree” evince a desire to create private rights of a contractual nature enforceable against the State. And “[t]he tenor” of the State Pledge, as in Brand, indicates that those words were “not used inadvertently or in other than [their] usual legal meaning.” Also consistent with the language at issue in U.S. Trust, the State Pledge names the beneficiaries of the State’s pledge and agreement. Finally, it bears mention that the State authorized an issuer of securitized utility tariff bonds to include the State Pledge in contracts with the holders of securitized utility tariff bonds (such as the Bondholders).²³ On this record, there is ample evidence to overcome the general presumption against statutory contracts and to conclude that the State Pledge creates a contractual relationship between the State and the Bondholders under the Federal Contract Clause. Perhaps equally important, we are unaware of any circumstances surrounding the enactment of the Securitization Law suggesting that the Missouri legislature did not intend to bind contractually the State through the State Pledge.

 

¹⁸ Id. at 17–18.

 

¹⁹ Id. at 18 (quoting 1962 N.J. LAWS, c. 8, § 6; 1962 N.Y. LAWS, c. 209, § 6).

 

²⁰ Brand, 303 U.S. at 105. That said, the mere use of the word “contract,” without more, will not necessarily establish the requisite contractual intent. See Nat’l R.R., 470 U.S. at 470. Indeed, in National Railroad, the Court found that the use of the word “contract” in the Rail Passenger Service Act defined only the relationship between the newly created nongovernmental corporation Amtrak and the railroads, not a contractual relationship between the United States and the railroads. The Court made clear that “[l]egislation outlining the terms on which private parties may execute contracts does not on its own constitute a statutory contract.” Id. at 467.

 

²¹ Brand, 303 U.S. at 105.

 

²² Mo. Rev. Stat. § 393.1700(11)(1).

 

²³ Id. § 393.1700(11)(2) (“Any person or entity that issues securitized utility tariff bonds may include the language specified in this subsection in the securitized utility tariff bonds and related documentation.”).

 

 

B.

The Reserved Powers Doctrine

 

As noted, the reserved powers doctrine limits the State’s ability to contract away an essential attribute of its sovereignty.²⁴ According to this doctrine, if a contract purports to capitulate a state’s “reserved powers,” such a contract is void as a matter of law. Although the scope of the reserved powers doctrine has not been precisely defined by courts, Supreme Court case law has established that a state cannot enter into contracts that forbid the exercise of the state’s police powers or the state’s power of eminent domain.²⁵ On the other hand, the Court has made clear that a state’s “power to enter into effective financial contracts cannot be questioned,” and promises that are “purely financial” do not necessarily compromise a state’s reserved powers.²⁶

 

In our view, the State Pledge does not purport to surrender any reserved powers of the State. Although the State’s commitment not to “[t]ake or permit any action that impairs or would impair the value of securitized utility tariff property or the security for the securitized utility tariff bonds or revises the securitized utility tariff costs for which recovery is authorized”²⁷ is arguably broader than the commitment in U.S. Trust that revenues and reserves securing bonds would not be depleted beyond a certain level,²⁸ the State Pledge does not purport to contract away or forbid the future exercise of the State’s power of eminent domain or police power to protect public health and safety. Through “financing order[s]” (like the Financing Order), the State will authorize electric utilities to issue “securitized utility tariff bonds” (such as the Bonds) and pledges not to impair the value of the “security” (i.e., the Securitized Utility Tariff Property) securing such instruments. In other words, the State Pledge constitutes an agreement made by the State not to impair the financial security for securitized utility tariff bonds to foster the capital markets’ acceptance of such bonds, which are expressly authorized and will be issued to facilitate the recovery of the costs of “anomalous weather events.”²⁹ As such, we believe that the State Pledge is akin to the “financial contract” involved in U.S. Trust, and therefore would not be viewed as an impermissible surrender of an essential attribute of state sovereignty.

 

²⁴ U.S. Trust, 431 U.S. at 23.

 

²⁵ Id. at 23–24, 24 nn.20–21 (citing Stone v. Mississippi, 101 U.S. 814, 817 (1880); W. River Bridge Co. v. Dix, 47 U.S. 507, 525–26 (1848)).

 

²⁶ Id. at 24–25.

 

²⁷ Mo. Rev. Stat. § 393.1700(11)(1)(b).

 

²⁸ U.S. Trust, 431 U.S. at 25.

 

²⁹ Mo. Rev. Stat. § 393.1700(1)(13) (defining “Qualified extraordinary costs” as “costs incurred prudently before, on, or after August 28, 2021, of an extraordinary nature which would cause extreme customer rate impacts if reflected in retail customer rates recovered through customary ratemaking, such as but not limited to those related to purchases of fuel or power, inclusive of carrying charges, during anomalous weather events”).

 

 

C.

The State’s Burden to Justify an Impairment

 

To survive scrutiny under the Federal Contract Clause, a substantial impairment by a state of a statutory contract can be justified only with “a significant and legitimate public purpose . . . such as the remedying of a broad and general social or economic problem.”³⁰ In addition, the state must show that its action causing a substantial impairment is “reasonable and necessary to serve” such a public purpose. Admittedly, this analysis is case- and fact-specific, but the contours of the analysis are illustrated by several decisions of the United States Supreme Court.

 

For instance, in Home Building & Loan Association v. Blaisdell—“the leading case in the modern era of [Federal] Contract Clause interpretation”³¹—the Court assessed a challenge to a Minnesota law that, in response to economic conditions caused by the Great Depression: (1) authorized county courts to extend the period of redemption from foreclosure sales on mortgages “for such additional time as the court may deem just and equitable,” subject to certain limitations; and (2) regulated actions for deficiency judgments.³² In upholding the Minnesota law, the Court relied on the following factors: (1) an economic emergency threatened the loss of homes and land that provided state residents with necessary shelter and means of subsistence; (2) the law was not enacted for the benefit of specific individuals but for the protection of a broad interest of society; (3) the relief provided by the law was appropriately tailored to the emergency and could only be granted in reasonable conditions; (4) the conditions on which the law extended the period of redemption were not unreasonable; and (5) the law was temporary in operation and limited to the emergency on which it was based.

 

³⁰ Energy Reserves, 459 U.S. at 411–12 (citation omitted). We are aware of no authority supporting the proposition that the will of the people, in and of itself, constitutes a broad and significant public purpose sufficient for a substantial impairment by a state of a statutory contract to survive a challenge under the Federal Contract Clause.

 

³¹ U.S. Trust, 431 U.S. at 15.

 

³² 290 U.S. 398, 415–18 (1934).

 

 

During the same term, the Supreme Court qualified its decision in Blaisdell, emphasizing the importance of the last factor analyzed—i.e., “the temporary and conditional relief which the legislation granted.”³³ In W.B. Worthen Co. v. Thomas, the Court addressed a challenge to an Arkansas law providing that money paid to any Arkansas resident as the insured or beneficiary designated under an insurance policy would be exempt from liability or seizure under judicial process.³⁴ The Court struck down the Arkansas law under the Federal Contract Clause, and in so doing noted that the Arkansas law was not a temporary emergency measure like the Minnesota law at issue in Blaisdell. Two other contemporaneous opinions issued by the Supreme Court vacated laws passed in response to the economic emergency created by the Great Depression, thereby reinforcing the notion that, to be justified, an impairment must be the result of a reasonable, necessary, and tailored response to a broad and significant public concern.³⁵

 

Relatedly, the deference that courts give to a legislature’s determination of the need for an impairment has turned on whether the contract at issue is a private one or whether the state is a contracting party. In fact, any deference, the Supreme Court has instructed, to legislative judgment as to the necessity and reasonableness of a particular action, “is not appropriate” when the state is a party to the contract at issue.³⁶ In that circumstance, a “stricter standard” should apply, for as the Court in Energy Reserves pointed out, “[i]n almost every case, the Court has held a governmental unit to its contractual obligations when it enters financial or other markets.”³⁷

 

The leading case involving the impairment of contracts to which the state is a party is U.S. Trust. There, two states agreed not to deplete the revenues and reserves securing certain bonds below a specified level. The states thereafter repealed that promise, justifying the repeal with the purported need to finance new mass transit projects in order to promote and encourage additional use of public transportation in light of energy shortages and environmental concerns.³⁸ The Court ruled that the states’ action was invalid under the Federal Contract Clause because repeal of the covenant was “neither necessary to achievement of the plan nor reasonable in light of the circumstances.”³⁹ The Court further stated that a modification less drastic than total repeal would have permitted the states to achieve their plan to improve commuter rail service, and, in fact, the states could have achieved that goal without modifying the covenant at all. For example, the states could have “discourage[d] automobile use through taxes on gasoline or parking, [ ] and use[d] the revenues to subsidize mass transit projects.”⁴⁰

 

³³ W.B. Worthen Co. v. Thomas, 292 U.S. 426, 434 (1934).

 

³⁴ Id. at 429–30.

 

³⁵ See Treigle v. Acme Homestead Ass’n, 297 U.S. 189 (1936); W.B. Worthen Co. v. Kavanaugh, 295 U.S. 56 (1935).

 

³⁶ U.S. Trust, 431 U.S. at 25–26.

 

³⁷ 459 U.S. at 412–13 n.14; see also Ass’n of Equip. Mfrs. v. Burgum, 932 F.3d 727, 730 (8th Cir. 2019) (“If the State shows a significant public purpose and is not a contracting party, then ‘courts properly defer to legislative judgment as to the necessity and reasonableness of a particular measure.’”) (emphasis added) (quoting Energy Reserves, 459 U.S. at 412-13); Apartment Ass’n of Los Angeles Cnty v. City of Los Angeles, 10 F.4th 905, 913 (9th Cir. 2021) (“A heightened level of judicial scrutiny is appropriate when the government is a contracting party. . . . But when the government is not party to the contract being impaired, courts properly defer to legislative judgment as to the necessity and reasonableness of a particular measure.”); Buffalo Tchrs. Fed'n v. Tobe, 464 F.3d 362, 370 (2d Cir. 2006) (extending the rationale for applying a less-deferential level of scrutiny to legislation that impairs a contract to which the State is not a direct party but is nonetheless “self-serving” to the State in that it “welches on [the State’s] obligations as a matter of political expediency”).

 

³⁸ 431 U.S. at 28–29.

 

³⁹ Id. at 29.

 

⁴⁰ Id. at 30 n.29.

 

 

Moreover, the Court contrasted the legislation under consideration with the statute challenged in City of El Paso v. Simmons, which limited to five years the reinstatement rights of defaulting purchasers of land from the state.⁴¹ For many years prior to the enactment of that statute, defaulting purchasers were allowed to reinstate their claims upon written request and payment of delinquent interest unless the rights of third parties had intervened. In U.S. Trust, the Court opined that this older statute “had effects that were unforeseen and unintended by the legislature when originally adopted” in that “speculators were placed in a position to obtain windfall benefits.”⁴² Thus, according to the Court, the state’s adoption of a statute of limitations was reasonable to restrict parties to gains expected from the contract when the original statute was adopted. By comparison, the need for mass transportation in New York and New Jersey was not a new development and the likelihood that publicly owned commuter railroads would produce substantial deficits was well known when the states adopted the covenant.⁴³

 

The U.S. Trust Court also distinguished its prior holding in Faitoute Iron & Steel Co. v. City of Asbury Park,⁴⁴ which was, at that point, the “only time in th[e 20th] century that alteration of a municipal bond contract ha[d] been sustained.”⁴⁵ Faitoute involved a state municipal reorganization act under which bankrupt local governments could be placed in receivership by a state agency. The holders of certain municipal revenue bonds received new securities bearing lower interest rates and later maturities. As recounted in U.S. Trust, the Faitoute Court rejected the bondholders’ Federal Contract Clause claims on the ground that the “old bonds represented only theoretical rights; as a practical matter the city could not raise its taxes enough to pay off its creditors under the old contract terms,” and thus the plan “enabled the city to meet its financial obligations more effectively.”⁴⁶ U.S. Trust explained that the obligation in Faitoute was “discharged, not impaired” by the plan.⁴⁷

 

⁴¹ 379 U.S. 497 (1965).

 

⁴² U.S. Trust, 431 U.S. at 31.

 

⁴³ Id. at 31–32.

 

⁴⁴ 316 U.S. 502 (1942).

 

⁴⁵ U.S. Trust, 431 U.S. at 27.

 

⁴⁶ Id. at 28.

 

⁴⁷ Id.

 

 

The case law demonstrates that the State bears a substantial burden in attempting to justify a significant impairment of a contract to which it is a party. As the Supreme Court put it, “[i]n almost every case, the Court has held a governmental unit to its contractual obligations when it enters financial or other markets.”⁴⁸ That is because a state action that impairs contracts to which it is a party must further a significant, legitimate, and broad public purpose. And that public purpose must be served by a reasonable, necessary, and carefully tailored measure, since “a State is not free to impose a drastic impairment when an evident and more moderate course would serve its purposes equally well.”⁴⁹

 

Subject to the qualifications, limitations, and assumptions set forth in this letter, it is our opinion that a reviewing court of competent jurisdiction, in a properly prepared and presented case, would conclude that the State Pledge constitutes a contractual relationship between the Bondholders and the State under the Federal Contract Clause. We are also of the view that, absent a demonstration by the State that an Impairment is necessary to further a significant and legitimate public purpose, and upon a finding by the court that an evident and more moderate course would serve the State’s purposes equally well, the Bondholders (or the Indenture Trustee acting on their behalf) could successfully challenge under the Federal Contract Clause the constitutionality of any Legislative Action determined by such court to alter, impair, or reduce the value of the Securitized Utility Tariff Property or the Securitized Utility Tariff Charges so as to cause an Impairment before the Bonds are fully paid and discharged.

 

II.

INJUNCTIVE RELIEF

 

In a challenge to Legislative Action under the Federal Contract Clause, we expect that a plaintiff would seek, among other potential remedies, an injunction preventing state officials from enforcing the provisions of such Legislative Action.⁵⁰ A preliminary injunction would serve to delay the implementation of the Legislative Action pending the final resolution of the Contract Clause challenge, whereas a permanent injunction would prevent any future implementation of the Legislative Action once the court has resolved the merits of the litigation.

 

⁴⁸ Energy Reserves, 459 U.S. at 412 n.14 (citing U.S. Trust, 431 U.S. at 25–28); see also, e.g., Kavanaugh, 295 U.S. 56; Murray v. Charleston, 96 U.S. 432 (1877).

 

⁴⁹ U.S. Trust, 431 U.S. at 31.

 

⁵⁰ Notably, if a plaintiff also sought money damages in federal court, the state defendant(s) could claim immunity. The Eleventh Amendment generally bars federal courts from granting money damages against the State, see Dover Elevator Co. v. Arkansas State Univ., 64 F.3d 442, 446 (8th Cir. 1995), unless the State waived that immunity, see Skelton v. Henry, 390 F.3d 614, 618 (8th Cir. 2004).

 

 

A.

The Availability of Preliminary Injunctive Relief in Federal Court

 

A federal court balances the following equitable factors in deciding whether to grant preliminary injunctive relief: (1) whether the party seeking an injunction is likely to succeed on the merits; (2) whether the party is likely to suffer irreparable harm in the absence of injunctive relief; (3) whether the balance of equities tips in favor of the party seeking the injunction; and (4) whether an injunction is in the public interest.⁵¹ The decision to grant or deny a preliminary injunction is committed to the sound discretion of a federal district court, and the court’s exercise of that discretion is reviewed on appeal under the deferential “abuse of discretion” standard.⁵²

 

Success on the Merits. For purposes of this opinion, and consistent with the assumptions above, we assume that a reviewing court would find a strong likelihood of success on the merits, i.e., that the Legislative Action is likely an Impairment. Thus, we examine only the three remaining elements of the standard for a preliminary injunction.

 

Irreparable Harm. In evaluating the irreparable harm prong on a request for a preliminary injunction, courts in the Eighth Circuit evaluate whether (1) there is a sufficient causal connection between the alleged injury and the conduct sought to be enjoined;⁵³ (2) irreparable injury is likely in the absence of an injunction;⁵⁴ (3) the threat of harm to the plaintiff is immediate;⁵⁵ and (4) litigation can offer monetary compensation instead, i.e., an availability of an alternative remedy.⁵⁶

 

⁵¹ See, e.g., Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008); Dataphase Sys., Inc. v. C L Sys., Inc., 640 F.2d 109, 112 (8th Cir. 1981) (en banc.). There is, in the Eighth Circuit, an alternative formulation of the test indicating that the greater the relative hardship to the party seeking the preliminary injunction, the less probability of success must be shown. In particular, under this “flexible” approach the trial court can “balance[]” the requirements for a preliminary injunction so that a stronger showing of irreparable harm to the plaintiff may offset a lesser showing of likelihood of success on the merits. Adventist Health Sys./SunBelt, Inc. v. United States Dep’t of Health & Hum. Servs., 17 F.4th 793, 801 (8th Cir. 2021) (“The district court flexibly balances the ‘particular circumstances’ in each case to determine whether the movant is entitled to injunctive relief . . . . In determining whether the court abused its discretion in denying an injunction, we examine whether the court based its balancing of the Dataphase factors on clearly erroneous factual findings or on an erroneous legal conclusion.”); Richland/Wilkin Joint Powers Auth. v. United States Army Corps of Eng’rs., 826 F.3d 1030, 1036 (8th Cir. 2016) (“A district court’s decision to issue a preliminary injunction depends upon a flexible consideration of (1) the threat of irreparable harm to the moving party; (2) balancing this harm with any injury an injunction would inflict on other interested parties; (3) the probability that the moving party would succeed on the merits; and (4) the effect on the public interest.”) (internal citation and quotation marks omitted). But even under this flexible approach, the mere possibility of irreparable injury to plaintiffs does not permit injunctive relief, since such relief still requires some proof of a likelihood of irreparable injury. Ng v. Bd. of Regents of Univ. of Minnesota, 64 F.4th 992, 997 (8th Cir. 2023) (“To establish the need for a preliminary injunction, the movant must show more than the mere possibility that irreparable harm will occur. A movant must show he is likely to suffer irreparable harm in the absence of preliminary relief.”) (internal citations and quotation marks omitted).

 

⁵² St. Louis Effort for AIDS v. Huff, 782 F.3d 1016, 1021 (8th Cir. 2015).

 

⁵³ Adventist Health Sys./Sunbelt, Inc., 17 F.4th at 801 (“The threshold inquiry [for preliminary injunctive relief] is whether the movant has shown the threat of irreparable injury.”) (quoting Gelco Corp. v. Coniston Partners, 811 F.2d 414, 418 (8th Cir. 1987)).

 

⁵⁴ See Winter, 555 U.S. at 22.

 

⁵⁵ Watkins Inc. v. Lewis, 346 F.3d at 844.

 

⁵⁶ See Sampson v. Murray, 415 U.S. 61, 90 (1974); DISH Network Serv. L.L.C. v. Laducer, 725 F.3d 877, 882 (8th Cir. 2013) (“Economic loss, on its own, is not an irreparable injury so long as the losses can be recovered.”) (citation omitted).

 

 

Causation. To obtain a preliminary injunction, Bondholders would have to prove that enforcement of the Legislative Action caused harm to them, such as loss of expected payments or loss of bond value. Because an Impairment, by definition, is Legislative Action that operates to the detriment of Bondholders, we believe that Bondholders would be able to show causation.

 

Likelihood of Injury. Bondholders would also have to prove that their harm is likely in the absence of an injunction. Again, however, the presence of likely harm is what makes the Legislative Action an Impairment in the first place. Thus, we assume here that Bondholders could prove likely harm without an injunction. As noted below, with respect to alternative remedies, where a constitutional violation is established, the irreparable injury element is satisfied. See infra n.58 and accompanying text.

 

Immediacy. If scheduled payments are disrupted or bond values are depressed by Legislative Action before a trial on the merits, then the Bondholders can prove immediate harm. If, however, a trial on the merits could take place before such harm occurs, then the harm may not be immediate enough to support a preliminary injunction.⁵⁷

 

Alternative Remedies. Unless the State waives immunity, the Eleventh Amendment bars federal courts from granting money damages against the State. Thus, absent such a waiver, money damages would be unavailable to redress the harm to the Bondholders from the Legislative Action. Moreover, where a “constitutional violation is established,” for instance a violation of the Federal Contract Clause, “usually no further showing of irreparable injury is necessary” to obtain a preliminary injunction.⁵⁸

 

⁵⁷ See, e.g., Roland Mach. Co. v. Dresser Indus., Inc., 749 F.2d 380, 386 (7th Cir. 1984).

 

⁵⁸ 11A Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 2944, at 94 (2d ed. 1995) (citing cases); Morehouse Enters., LLC v. Bureau of Alcohol, Tobacco, Firearms & Explosives, 78 F.4th 1011, 1017 (8th Cir. 2023) (“In most instances, constitutional violations constitute irreparable harm.”).

 

 

Balance of Equities. In deciding whether to grant a preliminary injunction, courts typically identify the harm that a preliminary injunction might cause the defendant, and weigh that harm against the plaintiff’s threatened injury.⁵⁹ Here, a court will likely consider the balance of harm in the “public interest” step of the analysis because the balance of equities and the public interest often merge when the government is the party opposing the request for a preliminary injunction.⁶⁰

 

Public Interest. In assessing the last element of a preliminary injunction request, courts “pay particular regard for the public consequences in employing the extraordinary remedy of injunction.”⁶¹ In fact, “[a]ny time a State is enjoined by a court from effectuating statutes enacted by representatives of its people, it suffers a form of irreparable injury.”⁶² But the law is also clear that although the standard is “more rigorous” when a party seeks to enjoin a statute, there is no blanket presumption in favor of the government in all preliminary injunction cases.⁶³ And importantly, the government has no interest in enforcing unconstitutional laws,⁶⁴ and courts have instructed that financial concerns are not a paramount public interest, except where the public is forced to bear unnecessary costs.⁶⁵ Thus, if a court determines that the Bondholders have established a substantial likelihood that a Legislative Action is unconstitutional under the Contract Clause—and, for the reasons explained above, we believe they can—then the “public interest” factor will counsel in favor of an injunction.

 

⁵⁹ See Winter, 555 U.S. at 24; General Motors Corp. v. Harry Brown’s, LLC, 563 F.3d 312, 320 (8th Cir. 2009) (“[T]he district court should consider the injury that granting the injunction will inflict on other parties litigant.”) (citation and quotation marks omitted); Dataphase Sys., Inc., 640 F.2d at 113 (“If the chance of irreparable injury to the movant should relief be denied is outweighed by the likely injury to other parties litigant should the injunction be granted, the moving party faces a heavy burden of demonstrating that he is likely to prevail on the merits.”).

 

⁶⁰ See Nken v. Holder, 556 U.S. 418, 435 (2009); Eggers v. Evnen, 48 F.4th 561, 564-65 (8th Cir. 2022).

 

⁶¹ Winter, 555 U.S. at 24; see also Salazar v. Buono, 559 U.S. 700, 714 (2010); D.M. by Bao Xiong v. Minnesota State High Sch. League, 917 F.3d 994, 1004 (8th Cir. 2019).

 

⁶² Maryland v. King, 567 U.S. 1301, 1303 (2012) (internal quotation marks omitted).

 

⁶³ Planned Parenthood Minnesota, N. Dakota, S. Dakota v. Rounds, 530 F.3d 724, 732 (8th Cir. 2008) (en banc) (explaining that the “more rigorous standard” applied when a party seeks to enjoin a statute “reflects the idea that governmental policies implemented through legislation or regulations developed through presumptively reasoned democratic processes are entitled to a higher degree of deference and should not be enjoined lightly,” but “[i]f the party with the burden of proof makes a threshold showing that it is likely to prevail on the merits, the district court should then proceed to weigh” the other factors).

 

⁶⁴ See, e.g., Little Rock Fam. Plan. Servs. v. Rutledge, 397 F. Supp. 3d 1213, 1322 (E.D. Ark. 2019) (finding that enjoining certain regulations would not irreparably harm the state because “the State has no interest in enforcing laws that are unconstitutional”), aff’d in relevant part, 984 F.3d 682 (8th Cir. 2021); Toigo v. Dep’t of Health & Senior Servs., 549 F. Supp. 3d 985, 995 (W.D. Mo. 2021); N. Y. Progress & Prot. PAC v. Walsh, 733 F.3d 483, 488 (2nd Cir. 2013); KH Outdoor, LLC v. City of Trussville, 458 F.3d 1261, 1272 (11th Cir. 2006); Cf. Minnesota State High Sch. League, 917 F.3d at 1004 (“[T]he public is served by the preservation of constitutional rights.”) (internal citation and quotation marks omitted).

 

⁶⁵ Baker Elec. Co-op., Inc. v. Chaske, 28 F.3d 1466, 1474 (8th Cir. 1994) (“The public’s interest in minimizing unnecessary cost weighs in favor of reinstatement of the preliminary injunction.”). But see, e.g., Indep. Living Ctr. of S. Cal., Inc. v. Maxwell-Jolly, 572 F.3d 644, 659 (9th Cir. 2009) (“State budgetary considerations do not . . . in social welfare cases, constitute a critical public interest that would be injured by the grant of preliminary relief.”), vacated and remanded on other grounds sub nom Douglas v. Indep. Living Ctr. of S. Cal., Inc, 565 U.S. 606 (2012); Pashby v. Delia, 709 F.3d 307, 331 (4th Cir. 2013) (“[T]he public interest in this case lies with safeguarding public health rather than with assuaging North Carolina’s budgetary woes.”) (finding that public interest weighed in favor of preliminary injunction enjoining state from implementing new Medicaid eligibility policy).

 

 

Based on the foregoing, the Bondholders likely could satisfy the standards for preliminary injunctive relief to prevent an unconstitutional Impairment, although much will depend on the particulars of the Legislative Action.

 

B.

The Availability of Permanent Injunctive Relief in Federal Court

 

The requirements for a permanent injunction are much the same as those for a preliminary injunction. As noted above, the only meaningful difference is that, to obtain a permanent injunction, the Bondholders must show actual success on the merits, i.e., prevailing at trial.⁶⁶ Because we expect that the Bondholders could obtain a preliminary injunction (subject to the caveats described above), we also expect that they could obtain a permanent injunction after succeeding at trial.

 

III.

THE FEDERAL TAKINGS CLAUSE

 

The Federal Takings Clause provides that private property shall not “be taken for public use, without just compensation.”⁶⁷ The Federal Takings Clause is applicable to state action via the Fourteenth Amendment,⁶⁸ and the Clause covers both tangible and intangible property.⁶⁹ Rights under contracts can be property for purposes of the Federal Takings Clause,⁷⁰ but legislation that “disregards or destroys” contract rights does not always constitute a taking.⁷¹ Where intangible property is at issue, state law will determine whether a property right exists. And if a court determines that an intangible asset is property, the court will then consider whether the owner of that property interest had a “reasonable investment-backed expectation[]” that the property right would be protected.⁷²

 

⁶⁶ See S.J.W. ex rel. Wilson v. Lee’s Summit R-7 School Dist., 696 F.3d 771, 781 (8th Cir. 2012) (“[A] movant must show ‘actual success on the merits’ to obtain a permanent injunction.”) (quoting Cmty. Of Christ Copyright Corp. v. Devon Park Restoration Branch of Jesus Christ’s Church, 634 F.3d 1005, 1012 (8th Cir. 2011)); Oglala Sioux Tribe v. C & W Enters., Inc., 542 F.3d 224, 230 (8th Cir. 2008) (“The standard for issuing a preliminary or permanent injunction is essentially the same, excepting one key difference. A permanent injunction requires the moving party to show actual success on the merits, rather than the fair chance of prevailing on the merits required for a standard preliminary injunction.”).

 

⁶⁷ U.S. Const. amend. V.

 

⁶⁸ See Webb’s Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S. 155, 160 (1980).

 

⁶⁹ See Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1003 (1984).

 

⁷⁰ See Lynch v. United States, 292 U.S. 571, 577 (1934).

 

⁷¹ See Connolly v. Pension Benefit Guar. Corp., 475 U.S. 211, 224 (1986).

 

⁷² PruneYard Shopping Ctr. v. Robins, 447 U.S. 74, 83 (1980); see also 2 Ronald D. Rotunda & John E. Nowak, Treatise on Constitutional Law: Substance and Procedure § 15.12(a)(iii), at 971 (5th ed. 2012).

 

 

The United States Supreme Court has suggested that the Federal Takings Clause may be implicated by a diverse range of government actions, including when the government (1) permanently appropriates or denies all economically productive use of property;⁷³ (2) destroys property other than in response to emergency conditions;⁷⁴ and (3) reduces, alters, or impairs the value of property so as to unduly interfere with reasonable investment-backed expectations.⁷⁵ To decide whether a particular interference is “undue,” courts have considered the nature of the governmental action and weighed the public purpose served by the action against the degree to which it interferes with legitimate property interests and/or investment-backed expectations.⁷⁶

 

The Supreme Court has identified two categories of regulatory action that constitute per se takings: (1) regulations that require a property owner to suffer a permanent physical invasion of property, and (2) regulations that deprive the owner of all economically beneficial use of the property.⁷⁷ Beyond these two narrow categories, challenges to regulations that interfere with protected property interests are governed by the three-part test set forth in Penn Central Transportation Co. v. City of New York.⁷⁸ Under that test, a regulation constitutes a taking if it denies a property owner “economically viable” use of that property, which is, in turn, determined by three factors: (1) the character of the governmental action; (2) the economic impact of the regulation on the claimant; and (3) the extent to which the regulation has interfered with distinct investment-backed expectations.⁷⁹

 

⁷³ See, e.g., Connolly, 475 U.S. at 225; Palazzolo v. Rhode Island, 533 U.S. 606, 617 (2001); Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1027–28 (1992); United States v. Sec. Indus. Bank, 459 U.S. 70, 77 (1982).

 

⁷⁴ The emergency exception to the just compensation requirement of the Federal Takings Clause often arises in cases involving the government’s activities during military hostilities. See, e.g., Nat’l Bd. of Young Men’s Christian Ass’ns v. United States, 395 U.S. 85 (1969); United States v. Cent. Eureka Mining Co., 357 U.S. 155 (1958). Of note, though, the exception is not limited to wartime activities. See Miller v. Schoene, 276 U.S. 272 (1928).

 

⁷⁵ See Connolly, 475 U.S. at 224–25; Cent. Eureka Mining, 357 U.S. 155.

 

⁷⁶ See, e.g., Keystone Bituminous Coal Ass’n v. DeBenedictis, 480 U.S. 470, 485 (1987).

 

⁷⁷ Lingle v. Chevron USA, Inc., 544 U.S. 528, 538 (2005).

 

⁷⁸ 438 U.S. 104 (1978).

 

⁷⁹ Id. at 124, 138 n.36.

 

 

The first Penn Central factor requires the Court to examine “the purpose and importance of the public interest underlying a regulatory imposition” with an “inquir[y] into the degree of harm created by the claimant’s prohibited activity, its social value and location, and the ease with which any harm stemming from it could be prevented.”⁸⁰

 

The second Penn Central factor incorporates the principle enunciated by Justice Holmes many years ago: “Government hardly could go on if to some extent values incident to property could not be diminished without paying for every such change in the general law.”⁸¹ Thus, “not every destruction or injury to property by governmental action has been held to be a ‘taking’ in the constitutional sense.”⁸² Diminution in property value alone, for example, does not constitute a taking unless accompanied by serious economic harm.

 

The third and final Penn Central factor is “a way of limiting takings recoveries to owners who could demonstrate that they bought their property in reliance on a state of affairs that did not include the challenged regulatory regime.”⁸³ The burden under this factor of showing interference with reasonable, investment-backed expectations is a heavy one.⁸⁴ Indeed, a reasonable, investment-backed expectation “must be more than a ‘unilateral expectation or an abstract need,’”⁸⁵ and “legislation readjusting rights and burdens is not unlawful solely because it upsets otherwise settled expectations.”⁸⁶ To sustain a claim under the Federal Takings Clause, the challenging party must show that it had a “reasonable expectation” at the time the contract was entered that the party “would proceed without possible hindrance” arising from changes in government policy.⁸⁷

 

⁸⁰ Maritrans Inc. v. United States, 342 F.3d 1344, 1356 (Fed. Cir. 2003) (internal citation and quotation marks omitted).

 

⁸¹ Penn. Coal Co. v. Mahon, 260 U.S. 393, 413 (1922).

 

⁸² Armstrong v. United States, 364 U.S. 40, 48 (1960).

 

⁸³ Loveladies Harbor, Inc. v. United States, 28 F.3d 1171, 1176 (Fed. Cir. 1994).

 

⁸⁴ DeBenedictis, 480 U.S. at 493.

 

⁸⁵ Monsanto, 467 U.S. at 1005–06 (quoting Webb’s Fabulous Pharmacies, 449 U.S. at 161).

 

⁸⁶ Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 16 (1976).

 

⁸⁷ Chang v. United States, 859 F.2d 893, 897 (Fed. Cir. 1988).

 

 

We are not aware of any federal case law that addresses the applicability of the Federal Takings Clause in the context of a purported exercise by a state of its police power to abrogate or impair contracts otherwise binding on the state. The outcome, thus, of any claim that interference by the State with the value of the Securitized Utility Tariff Property without compensation is unconstitutional would likely depend on factors such as the State interest furthered by that interference and the extent of financial loss to the Bondholders caused by that interference. Also relevant to a court’s inquiry would be the extent to which the Bondholders had a reasonable expectation that changes in government policy and regulation would not interfere with their investment. With respect to the last factor, we note that the Securitization Law expressly provides for the creation of the Securitized Utility Tariff Property in connection with the issuance of the Bonds,⁸⁸ and further provides that the Financing Order, once final, is irrevocable.⁸⁹ Moreover, through the State Pledge, the State has “pledge[d] and agree[d] with [the] bondholders, the owners of the securitized utility tariff property, and other financing parties that the state and its agencies will not take any action” that “impairs or would impair the value of securitized utility tariff property or the security for the securitized utility tariff bonds or revises the securitized utility tariff costs for which recovery is authorized,” nor “[i]n any way impair the rights and remedies of the bondholders, assignees, and other financing parties,” and “[e]xcept for changes made pursuant to the formula-based true-up mechanism authorized under [the Securitization Law],” that it will not “reduce, alter, or impair securitized utility tariff charges that are to be imposed, billed, charged, collected, and remitted for the benefit of the bondholders, any assignee, and any other financing parties until any and all principal, interest, premium, financing costs and other fees, expenses, or charges incurred, and any contracts to be performed, in connection with the related securitized utility tariff bonds have been paid and performed in full.”⁹⁰ Given the foregoing, we believe that Bondholders very likely have reasonable investment-backed expectations in their investments in the Bonds.

 

Based on our analysis of relevant judicial authority, it is our opinion, as set forth above and subject to the qualifications, limitations, and assumptions in this letter, that under the Federal Takings Clause, a reviewing court of competent jurisdiction would hold that the State is required to pay just compensation to the Bondholders if the State’s repeal or amendment of the Securitization Law or any other action by the State in contravention of the State Pledge constituted a Taking. As noted earlier, in determining whether there is an undue interference, a court would consider the nature of the governmental action and weigh the public purpose served by that action against the degree to which the action interferes with the legitimate property interests and distinct investment-backed expectations of the Bondholders. There can be no assurance, however, that any such award of just compensation would be sufficient to pay the full amount of principal of and interest on the Bonds.⁹¹

 

*      *      *      *      *      *      *

 

⁸⁸ Mo. Rev. Stat. § 393.1700(1)(9).

 

⁸⁹ Id. §§ 393.1700(2)(3)(f), (11)(1)(a).

 

⁹⁰ Id. § 393.1700(11)(1).

 

⁹¹ The State Pledge provides that “[t]his subdivision does not preclude limitation or alteration if full compensation is made by law for the full protection of the securitized utility tariff charges collected pursuant to a financing order and of the bondholders and any assignee or financing party entering into a contract with the electrical corporation.”” Id § 393.1700(11)(1). Federal Takings Clause jurisprudence requires “adequate provision” of a procedure to seek “just compensation,” and where a state has made an “adequate provision” for a party to seek such “just compensation,” a party will be unable to enjoin the government’s action. Knick v. Twp. of Scott, 139 S. Ct. 2162, 2176-77 (2019). But, under present law, to the extent that there is a Taking and the State’s procedures for seeking just compensation are inadequate, Bondholders (or the Indenture Trustee on their behalf) or the Issuer could seek to enjoin enforcement of the State action by suing individual state officers under Ex Parte Young, 209 U.S. 123, 155–56 (1908) and 42 U.S.C. § 1983.

 

 

This opinion letter may not be relied on in any manner or for any purpose by any person other than the addressees listed on Schedule I hereto. Nor may you rely on this opinion letter for any purpose other than the transactions described herein. This opinion letter may not be quoted, published, communicated, or otherwise made available in whole or in part to any person (including, without limitation, any person who acquires a Bond or any interest therein from an Underwriter), other than the addressees listed on Schedule I hereto, without our specific prior written consent, except that each of the Underwriters may furnish copies of this letter (1) to any of its accountants or attorneys, (2) to comply with any subpoena, order, regulation, ruling, or request of any judicial, administrative, governmental, supervisory, or legislative body or committee or any self-regulatory body (including any securities or commodities exchange or the Financial Industry Regulatory Authority, Inc.), (3) to any other person for the purpose of substantiating an Underwriter’s due diligence defense, and (4) as otherwise required by law. Provided, however, that none of the foregoing persons is entitled to rely hereon unless an addressee hereof. While a copy of this opinion letter may be posted by or at the direction of Ameren Missouri or the Issuer to an internet website required under Rule 17g-5 promulgated under the Securities Exchange Act of 1934, as amended, and maintained in connection with the ratings on the Bonds solely for the purpose of compliance with such rule or undertakings pursuant thereto made by Ameren Missouri or the Issuer, such permission to post a copy of this letter to such website shall not be construed to entitle any person, including any credit rating agency, who is not an addressee hereof to rely on this opinion letter.

 

We hereby consent to the filing of this letter as an exhibit to the Registration Statement, and to all references to our firm included in or made a part of the Registration Statement. In giving the foregoing consents, we do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act of 1933, as amended, or the related rules and regulations of the U.S. Securities & Exchange Commission.

 

This opinion letter is being issued as of the date hereof, and we assume no obligation to update or supplement this opinion letter to reflect any facts or circumstances which may hereafter come to our attention with respect to the matters discussed herein, including any changes in applicable law which may hereafter occur.

 

Very truly yours,

 

 

Schedule I

 

Goldman Sachs & Co. LLC

200 West Street

New York, New York 10282

 

RBC Capital Markets, LLC

Brookfield Place

200 Vesey Street, 9^th Floor

New York, New York 10281

 

As Representatives of the several Underwriters

 

Union Electric Company d/b/a Ameren Missouri

1901 Chouteau Avenue

St. Louis, Missouri 63103

 

Ameren Missouri Securitization Funding I, LLC

1901 Chouteau Avenue

St. Louis, Missouri 63103

 

The Bank of New York Mellon Trust Company, N.A.

601 Travis Street, 16^th Floor

Houston, Texas 77002

Attention: Corporate Trust Administration

 

Moody’s Investors Service, Inc.

7 World Trade Center at

250 Greenwich Street, 24th Floor

New York, New York 10007

Attention: ABS/RMBS Monitoring Department

 

S&P Global Ratings, a division of S&P Global Inc.

55 Water Street, 40th Floor

New York, New York 10041

Attention: Structured Credit Surveillance

 

 

 

Exhibit 99.3

 

Dentons US LLP 4520 Main Street Suite 1100 Kansas City, MO 64111-7700 United States   dentons.com

 

December ____, 2024

 

To Each of the Parties Listed

on the Attached __________

 

Opinion: Missouri Constitutional Law

Ameren Missouri Securitization Funding I, LLC

 

Greetings:

 

We have acted as Missouri counsel to Union Electric Company d/b/a/ Ameren Missouri, a Missouri corporation, (the “Sponsor”) and Ameren Missouri Securitization Funding I, LLC, a Delaware limited liability company, (the “Issuer”) in connection with the issuance of the Issuer’s Securitized Utility Tariff Bonds, Series __________, under the terms of the Indenture, dated as of __________, 2024 (the “Indenture”), between the Issuer and The Bank of New York Mellon Trust Company, N.A., a national banking association, as indenture trustee (in such capacity, the “Indenture Trustee”) and as securities intermediary (in such capacity, the “Securities Intermediary”). We have not represented the Sponsor or the Issuer in connection with the negotiations and preparation of the Transaction Documents (defined below).

 

Capitalized terms not defined herein have the meanings assigned to them in Appendix A to the Indenture. Under the Indenture, the Indenture Trustee holds, among other things, Securitized Utility Tariff Property (as defined below) as collateral security for the payment of the Securitized Utility Tariff Bonds (“Bonds”).

 

On May 13, 2021, the Missouri General Assembly enacted House Bill (H.B.) No. 734 by amending Chapter 393 of the Missouri Revised Statutes to add Section 393.1700¹ (the “Securitization Law”).

 

Securitized Utility Tariff Property is defined in Section 393.1700.1(18) of the Securitization Law. Securitized Utility Tariff Property was created in favor of the Sponsor pursuant to a Financing Order (the “Financing Order”) issued by the Missouri Public Service Commission (“MPSC”) in an Amended Report and Order on August 7, 2024, which became effective August 17, 2024. The Financing Order became final and non-appealable on September 21, 2024.

 

The Securitized Utility Tariff Property (the “Securitized Property”) was sold to the Issuer pursuant to the terms of a Securitized Utility Tariff Property Purchase and Sale Agreement, dated as of [CLOSING DATE], by and between the Sponsor and the Issuer in consideration for the payment by the Issuer to the Sponsor of the proceeds of the sale of the Securitized Utility Tariff Bonds.

 

¹ All statutory references are to the Missouri Revised Statutes (2016), as amended, unless otherwise noted.

 

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The Securitized Utility Tariff Property includes the right to impose and receive certain “nonbypassable” charges described in the Financing Order.

 

Pursuant to Section 393.1700.1(16) of the Securitization Law, “securitized utility tariff charge” means “nonbypassable charges imposed on and part of all retail customer bills, collected by an electrical corporation or its successors or assignees, or a collection agent, in full, separate and apart from the electrical corporation’s base rates, and paid by all existing or future retail customers receiving electrical service from the electrical corporation or its successors or assignees under MPSC-approved rate schedules, except for customers receiving electrical service under special contracts as of August 28, 2021, even if a retail customer elects to purchase electricity from an alternative electricity supplier following a fundamental change in regulation of public utilities” in Missouri.

 

Section 393.1700.9 of the Securitization Law provides inter alia that “[n]either the state nor its political subdivisions are liable on any securitized utility tariff bonds, and the bonds are not a debt or a general obligation of the state or any of its political subdivisions, agencies, or instrumentalities, nor are they special obligations or indebtedness of the state or any agency or political subdivision.”

 

Section 393.1700.11(1) (the “State Pledge”) of the Securitization Law also provides:

 

“The state and its agencies, including the commission, pledge and agree with bondholders, the owners of the securitized utility tariff property, and other financing parties that the state and its agencies will not take any action listed in this subdivision. This subdivision does not preclude limitation or alteration if full compensation is made by law for the full protection of the securitized utility tariff charges collected pursuant to a financing order and of the bondholders and any assignee or financing party entering into a contract with the electrical corporation. The prohibited actions are as follows:

 

(a)  Alter the provisions of this section, which authorize the commission to create an irrevocable contract right or chose in action by the issuance of a financing order, to create securitized utility tariff property, and make the securitized utility tariff charges imposed by a financing order irrevocable, binding, or nonbypassable charges for all existing and future retail customers of the electrical corporation except its existing special contract customers;

 

(b)  Take or permit any action that impairs or would impair the value of securitized utility tariff property or the security for the securitized utility tariff bonds or revises the securitized utility tariff costs for which recovery is authorized;

 

(c)  In any way impair the rights and remedies of the bondholders, assignees, and other financing parties;

 

 

(d)  Except for changes made pursuant to the formula-based true-up mechanism authorized under this section, reduce, alter, or impair securitized utility tariff charges that are to be imposed, billed, charged, collected, and remitted for the benefit of the bondholders, any assignee, and any other financing parties until any and all principal, interest, premium, financing costs and other fees, expenses, or charges incurred, and any contracts to be performed, in connection with the related securitized utility tariff bonds have been paid and performed in full.”

 

The foregoing language is included in the Issuer’s Securitized Utility Tariff Bonds in the subject transaction and in the bond indenture, as permitted by Section 393.1700.11(2).

 

In rendering this opinion letter, as to relevant factual matters we have examined the Indenture, the Sale Agreement, the Servicing Agreement, the Administration Agreement, the Underwriting Agreement, the LLC Agreement, and the Intercreditor Agreement (the “Transaction Documents”). We also have reviewed other documents as necessary including, where appropriate, representations or certifications of officers of parties thereto or public officials, and we have assumed that there has been no relevant change or development between the dates as of which such documents were provided and the date hereof.

 

In rendering this opinion letter, unless expressly noted otherwise, we have assumed (i) the authenticity of all documents submitted to us as originals or as copies thereof, the conformity to the originals of all documents submitted to us as copies, the genuineness of all signatures and the legal capacity of natural persons, and (ii) the necessary entity formation and continuing existence in the jurisdiction of formation, and the necessary licensing and qualification in all jurisdictions, of all parties to all documents.

 

Each assumption in this document is made and relied upon with your permission and without independent investigation. With respect to the enforceability of any right or obligation, these assumptions are subject to (i) general principles of equity, including concepts of materiality, reasonableness, good faith and fair dealing and the possible unavailability of specific performance and injunctive relief, regardless of whether considered in a proceeding in equity or at law, and (ii) bankruptcy, insolvency, receivership, reorganization, liquidation, voidable preference, fraudulent conveyance and transfer, moratorium and other similar laws affecting the rights of creditors or secured parties.

 

We have conducted no independent investigation of the facts contained in the documents on which we have relied in rendering this opinion letter. Nor do the attorneys in this firm who are involved in the representation of parties to the transactions to which this opinion letter relates have any actual present knowledge of any fact asserted or relied upon in rendering this opinion letter.

 

In rendering this opinion letter, we do not express any opinion concerning any law other than the Constitution of the State of Missouri, the Securitization Law, other Missouri statutes, regulations, and case law typically applicable to the type of transactions contemplated by the Securitization Law.

 

 

We do not express any opinion with respect to any matter not specifically addressed below, including without limitation (i) any statute, regulation or provision of law of any state, county, municipality or other political subdivision or any agency or instrumentality thereof or (ii) the securities or tax laws of any jurisdiction.

 

Based upon and subject to the foregoing and the qualifications, assumptions, and further discussion set forth below (there is no precedent directly on point), it is our opinion that:

 

1.	A Missouri court would conclude:

 

(a)            That the State Pledge constitutes a contractual relationship between the Bondholders and the State of Missouri; and

 

(b)            That, under applicable Missouri constitutional principles relating to the impairment of contracts, absent a demonstration by the State of Missouri that a legislative enactment by the Missouri legislature (including a Missouri citizen initiative law) that (1) repealed or amended the State Pledge; (2) repealed or amended the Securitization Law; (3) limited or altered the Securitized Utility Tariff Property; or (4) limited or altered the Securitized Utility Tariff Charges so as to impair (i) the terms of the Indenture or the Bonds or (ii) the rights and remedies of the Bondholders (or the Indenture Trustee acting on their behalf) is necessary to protect the public health or safety, a Missouri state court would find that such legislative enactment violates the Missouri Contracts Clause if such repeal, amendment or other action would prevent the payment of the Bonds or would substantially affect the security for the Bonds;

 

2.            A Missouri court would conclude that the State of Missouri would be required to pay just compensation to the Bondholders if the State of Missouri, including through the exercise of its legislative powers (including through an enacted Missouri citizen initiative law), undertook any action in contravention of the State Pledge that: (a) constituted a permanent appropriation of a substantial property interest of the Bondholders in the Securitized Utility Tariff Property or denied the economically beneficial or productive use of the Securitized Utility Tariff Property; (b) destroyed the Securitized Utility Tariff Property, other than in response to emergency conditions; or (c) altered or impaired the Securitized Utility Tariff Charges, the Securitized Utility Tariff Property, the Financing Order, or any rights thereunder, so as to constitute a Taking under the Missouri Takings Clause;

 

3.            The Securitization Law has been duly enacted by the Missouri legislature in accordance with all applicable laws and is in full force and effect. The effectiveness or constitutionality of the Securitization Law under the Constitution of the State of Missouri, insofar as it relates to the Bonds and to the Transaction, was to the best of our knowledge as of __________, 2024 not the subject of any pending appeal or litigation (although we cannot assure you that a lawsuit challenging the validity of the Securitization Law will not be filed in the future or that, if filed, will not be successful). If the constitutionality of the Securitization Law were challenged, a Missouri court applying Missouri substantive law would conclude under applicable Missouri constitutional principles that the Securitization Law is constitutional. If the arguments are properly briefed and presented, a Missouri court would hold that the Securitization Law complies with the Missouri Constitution in all respects that otherwise might have a material adverse effect upon the creation or transfer of the Securitized Utility Tariff Property or the collection of the nonbypassable Securitized Utility Tariff Charges so as to impair the Issuer’s obligations on the Bonds; and

 

 

4.            Any attempt by the State of Missouri or any agency or instrumentality of the State of Missouri to repeal or amend the Securitization Law or the Financing Order, or to take other action in a manner that alters or impairs the rights of the Bondholders would be preliminarily enjoined if a Missouri court that is hearing a request for a preliminary injunction finds (a) that the party requesting such injunctive relief has a probability of success on the merits, (b) that such party will suffer irreparable harm if the preliminary injunctive relief is not granted, (c) that the threat of irreparable harm to the moving party outweighs any injury that the injunction would inflict on other interested parties, and (d) that the issuance of such injunctive relief would not adversely affect the public interest. Further, upon final adjudication of the challenged repeal, amendment, or other action, the alleged wrongful conduct would be subject to a permanent injunction if the petitioning party shows irreparable harm and the lack of an adequate remedy at law.

 

FURTHER DISCUSSION

 

In connection with Opinion Paragraphs 1, 2 and 3, we note that Missouri courts apply the presumption of constitutionality to any act of the Legislature. See Ocello v. Koster, 354 S.W.3d 187, 197 (Mo. en banc 2011); Hammerschmidt v. Boone County, 877 S.W.2d 98, 102 (Mo. en banc 1994); Westin Crown Plaza Hotel Co. v. King, 664 S.W.2d 2, 5 (Mo. en banc 1984).

 

I.	Missouri Contracts Clause

 

Article I, Section 13 of the Missouri Constitution states that “no ex post facto law, nor law impairing the obligations of contracts, or retrospective in its operation, or making any irrevocable grant of special privileges or immunities, can be enacted” (the “Missouri Contracts Clause”). The Missouri Contracts Clause is an important part of the Missouri Constitution because “its operation has been a part of the Missouri [C]onstitution from its 1820 beginning.”² It grants salient constitutional protections to both individuals and entities against actions by the State of Missouri (“the State”).

 

Importantly, the Missouri Contracts Clause’s protections are broader than the Federal Contract Clause’s protection because its operative language is more expansive. The Missouri Contracts Clause “does not simply prohibit laws which impair obligations of contracts, it also prohibits laws which are retrospective in their operation.”³ A law operates retrospectively when “it looks or acts backward from its effective date.”⁴

 

² F.R. v. St. Charles County Sheriff’s Dep’t., 301 S.W.3d 56, 61 (Mo. en banc 2010).

³ Hoyne v. Prudential Sav. & Loan Assoc., 711 S.W.2d 899, 902 (Mo. Ct. App. E.D. 1986) (internal citations and brackets omitted).

⁴ State ex rel. Breshears v. Missouri State Employees’ Ret. Sys., 362 S.W.2d 571, 576 (Mo. en banc 1962).

 

 

Missouri courts interpret the Missouri Contracts Clause contractual impairment provision consistently with the Federal Contract Clause.⁵ Thus, any rights Bondholders would have to challenge impairing legislation under the Federal Contract Clause could also apply to any challenge under the Missouri Contracts Clause. This means that the discussion of the Federal Contract Clause in the opinion of Hunton Andrews Kurth of the same date herewith regarding the applicability of the Federal Contract Clause (the “Hunton Opinion”) likely is generally applicable to the Missouri Contracts Clause’s contractual impairment provision. But, as mentioned above, the retroactive law provision in the Missouri Constitution may place even greater limitations on the State than its federal counterpart.

 

In addition to relying on Federal Contract Clause cases, Missouri courts have conducted their own analyses of the Missouri Contracts Clause. That case law is limited, however. The clearest application of the Missouri Contracts Clause framework is found in Hoyne v. Prudential Savings & Loan Association.⁶ In Hoyne the plaintiffs represented a class of persons borrowing money from a defendant bank. When the plaintiffs and defendant entered into their financial arrangement, the contract imposed a prepayment penalty if the loans were paid prior to maturity. The Missouri legislature, however, later passed a law prohibiting prepayment penalties. The plaintiffs sought a declaratory judgment seeking to apply retroactively the prepayment prohibition law to their contracts.⁷

 

The Court of Appeals in Hoyne began with the Missouri Contracts Clause’s overlapping prohibitions: the State Constitution “prohibits the enactment of any law impairing the obligation of contracts” and, more importantly, “laws which are retroactive in their operation.”⁸ The Hoyne Court then applied the presumption that statutes operate prospectively unless “the legislative intent that they be given retroactive application clearly appears from the express language of the act or by necessary or unavoidable implication.”⁹ Because neither exception applied, the Hoyne Court applied the statute prospectively. The court observed that retrospective application of the statute would have violated both the contractual impairment and retroactive law provisions of the Missouri Constitution because it would have allowed the legislature to change the parties’ contracts by eliminating the plaintiffs’ contractual duties and altering the banks’ contractual rights.¹⁰

 

The plaintiffs also sought to have the law applied retroactively under the State’s police powers. Because the law was enacted during an emergency legislative session, the plaintiffs argued this demonstrated legislative intent for the statute to apply retroactively.¹¹ The Hoyne Court noted that the police power exception could only be applied where it was “necessary” to achieve the State’s objectives. In Hoyne the statute’s purpose was to promote the residential construction industry. The court held that retroactive application of the statute that would impair the obligation of contracts was not necessary to achieve that purpose. Therefore, the police power exception did not apply.¹² The Hoyne Court affirmed the denial of plaintiffs’ declaratory judgment because to hold otherwise would violate the Missouri Contracts Clause. The police power exception is discussed more fully in Section I(C) below.

 

⁵ Am. Fed’n of State, Cnty. & Mun. Emps. v. Missouri, 653 S.W.3d 111, 127 (Mo. en banc. 2022) (“Missouri courts interpret the state impairment of contract provision in the same manner as the federal contract provision.”).

⁶ Hoyne, 711 S.W.2d 899 (Mo. Ct. App. E.D. 1986).

⁷ Id. at 900-01.

⁸ Id. at 901-03 (internal quotation marks and brackets omitted).

⁹ Id. at 901-02.

¹⁰ Id.

¹¹ Id. at 903-04.

¹² Id. at 904.

 

 

The Missouri Contracts Clause’s prohibitions against contract impairment and retrospective laws are “analogous and certainly overlap.”¹³ But a law can be challenged under either provision because they contain materially different language. A law impairing the Bonds’ value likely could be successfully challenged under both the contractual impairment and the retrospective law provisions of the Missouri Contracts Clause.

 

A.            Contractual Impairment and the State Pledge

 

As the Federal Contract Clause analysis in the Hunton Opinion recognizes, a reviewing court of competent jurisdiction, in a properly prepared and presented case, would conclude that the State Pledge creates a contract between the State and the Bondholders under the Federal Contract Clause. Additionally, Missouri courts will recognize a contract when parties have “certain vested rights and . . . certain obligations.”¹⁴ The Missouri Supreme Court has even referred to state and county bond issues as contracts for contractual impairment purposes.¹⁵ When a law changes the substances of those contractual rights and obligations, it has impaired a contract under the Missouri Contracts Clause.¹⁶

 

A law affecting the value of the Bondholders’ Securitized Bonds would likely change the Bondholder’s rights and the State’s obligations. Under the Missouri Contracts Clause, a contract is “legally effective according to its terms.”¹⁷ Additionally, the “question is not whether the legislative alteration of the contract injures [a party] seriously or only slightly” because “the legislature cannot change its substance.”¹⁸ For example, contractual obligations are clearly “impaired by a law which extinguishes them.”¹⁹

 

As the State Pledge recognizes, the Bondholders have “an irrevocable contract right” under Section 393.1700.11(1)(a) when the Bonds are issued. Since the State Pledge creates a contract between the State and the Bondholders, the Bondholders have a right to the contract they entered which prohibits the State from reducing, altering, or impairing the Bonds’ value. Thus, whether a State law affects the Bonds’ value slightly or substantially, such an impairment would violate the Bondholders’ rights.

 

¹³ Id. at 902, citing State ex rel. Jones v. Nolte, 165 S.W.2d 632, 638 (Mo. en banc 1942) (internal quotation marks omitted).

¹⁴ Breshears v. Missouri State Employees’ Retirement Sys., 362 S.W.2d 571, 575 (Mo. en banc 1962).

¹⁵ State ex rel. Gibson v. St. Louis, Keokuk & Northwestern R.R., 32 S.W. 664, 665-66 (Mo. 1895).

¹⁶ Hoyne, 711 S.W.2d at 903.

¹⁷ Id. at 902, citing Arthur Corbin, Contracts 582-83 (1952). See F.R. v. St. Charles County Sheriff’s Dep’t, 301 S.W.3d 56, 62 (Mo. en banc 2010) (“The constitutional language does not limit its application to vested rights.”).

¹⁸ Hoyne, 711 S.W.2d at 903.

¹⁹ Id. at 901.

 

 

Under the State Pledge, the State has significant obligations which include not taking the following actions:

 

“(a) Alter[ing] the provision of this section, which authorized the commission to create an irrevocable contract right . . .

 

(b) Tak[ing] or permit[ing] any action that impairs or would impair the value of the securitized tariff property . . .

 

(c) In any way impair[ing] the rights and remedies of the bondholders, assignees, or other financing parties;

 

(d) . . . reduc[ing], alter[ing], or impair[ing] securitized tariff utility charges . . . until any and all principal, interest, premium, financing costs, and other fees, expenses, or charges incurred, and any contracts to be performed . . . have been paid in full.”

 

Section 393.1700.11(1). Any State law that changes the State’s obligations as expressed in these provisions would alter or extinguish the State’s contractual duties under the State Pledge. This would explicitly include a law that reduced, altered, or impaired the value of the Bonds. Any such law would violate the Missouri Contracts Clause unless it falls within the police power exception, as discussed in Section 1.C, below.

 

As noted previously, Missouri courts look to cases analyzing the Federal Contract Clause for guidance, particularly in the absence of Missouri case law. We are aware of only one Missouri state court case addressing an attempt by the State to impair a contract to which it was a party, although it provides little guidance here.²⁰ However, the U.S. Supreme Court has dealt with this situation. In United States Trust Co. v. New Jersey,²¹ the Court explained that complete deference to legislative judgment as to the necessity and reasonableness of a particular action “is not appropriate” when the state is a party to the contract.²² Lower courts and scholars agree that the U.S. Trust decision placed a greater burden on a state impairing a contract to which it is a party.²³ Therefore, in the absence of Missouri case law, a reviewing court would likely look to the U.S. Trust case and place a higher burden on the State if it attempted to impair the State Pledge.

 

²⁰ In American Federation of State, County and Municipal Employees v. Missouri, 653 S.W.3d 111 (Mo. banc. 2022), the State successfully survived a Missouri Contracts Clause challenged and altered its collective bargain agreements with a state employee union. Importantly, the collective bargaining agreement explicitly “contain[ed] a savings clause that expressly recognize[d] the agreement [was] subject to modification upon a change in the law.” Id. at 127. Following federal case law as guidance, the Missouri Supreme Court held “when a contract expressly provides that its terms are subject to relevant changes in law, such a provision could be interpreted to incorporate all future state regulations; thus, disposing of an article I, section 13 claim.” Id. (citing Energy Reserves Grp., Inc. v. Kan. Power & Light Co., 459 U.S. 400, 416 (1983)). Here, the Securitization Law contains no “savings clause” subjecting it potential alteration due to a change in law; in fact, the State Pledge explicitly prohibits that kind of alteration.

²¹ See United States Trust Co. v. New Jersey, 431 U.S. 1, 21-23 (1977).

²² Id. at 25-26.

²³ E.C. v. Sherman, No. 05-0726-CV-C-SOW, 2006 WL 6358376 at *41 (E.D. Mo. 2006), citing Allied Structural Steel Co. v. Spannaus, 438 U.S. 234, 244 n. 15 (1978) (“… impairments of a State’s own contracts face more stringent examination under the Contract Clause than would laws regulating contractual relations between private parties ….”). See Energy Reserves Grp., Inc. v. Kansas Power and Light Co., 459 U.S. 400, 412 n.14 (1983) (“In almost every case, the Court has held a governmental unit to its contractual obligations when it enters financial or other markets.”) (citing U.S. Trust, 431 U.S. at 25-28). See generally Brenner M. Fissell, The Dual Standard of Review in Contracts Clause Jurisprudence, 101 Georgetown L.J. 1089, 1092-93 (2013) (describing the dual standard of review that places a higher burden on the state if it is a contractual party for Contracts Clause claims).

 

 

B.            Retrospective Law

 

The Missouri Contract Clause’s retrospective law provision prohibits laws that are “retrospective in operation.” The retroactive law provision is broader than the contractual impairment provision because it restricts any law that “creates a new obligation, imposes a new duty, or attaches a new disability with respect to transactions or considerations already past.”²⁴ More simply, “[a] law is retrospective if it has the same effect as to past transactions as to future ones.”²⁵

 

As mentioned earlier, the Missouri Contracts Clause’s contractual impairment and retrospective law provisions “certainly overlap.”²⁶ But the retroactive law provision provides even broader protections because of its more expansive language. Any State law reducing, altering, or impairing either the Bondholders’ right or the State’s obligations (or both) would be considered a retrospective law because it would affect past, agreed upon obligations.

 

Additionally, there is a constitutional presumption against interpreting laws retrospectively. Missouri courts presume that laws “operate prospectively only, unless legislative intent that they be given retroactive operation clearly appears from the express language of the act or by necessary or unavoidable implication.”²⁷ Missouri courts are therefore “mandated to construe [a law] in a reasonable way to support its constitutionality.”²⁸ If there were any doubt that a law violated the Bondholders’ rights under the Missouri Contracts Clause, the law would be interpreted in favor of the Bondholders.

 

C.            Police Power Exception

 

Missouri courts have recognized an exception to the Missouri Contracts Clause’s prohibitions where it is “necessary to achieve the objective for which the power is being exercised.”²⁹ The State’s police power is “the exercise of the sovereign right of a government to promote order, safety, health, morals, and the general welfare of society, within constitutional limits.”³⁰ But where the State’s police power is not necessary, then it cannot be used to override the protections of the Missouri Contracts Clause. In State ex rel. Kansas City v. Public Service Commission, the Missouri Supreme Court declared:

 

“We hold that when the state appropriately directs that work be done in order to protect the public health or safety, the police power of the state includes the right to direct payment for the work ordered to the extent necessary to the achievement of the objectives for which the police power is being exercised, even if the result is to infringe on existing contractual rights, but that beyond that necessity, allocation of such costs is not an inseparable part of the police power.”³¹

 

²⁴ Rentschler v. Nixon, 311 S.W.3d 783, 788 (Mo. en banc 2010).

²⁵ Good Hope Missionary Baptist Church v. St. Louis Alarm Monitoring Co., Inc., 358 S.W.3d 528, 532 (Mo. Ct. App. E.D. 2012).

²⁶ Hoyne, 711 S.W.2d at 901-02.

²⁷ Id. at 901-02, citing Lincoln Credit Co. v. Peach, 636 S.W.2d 31, 34 (Mo. en banc 1982).

²⁸ Id., citing St. Louis Bd. of Educ. v. Shannon, 640 S.W.2d 121, 122 (Mo. en banc 1982).

²⁹ State ex rel. Kansas City v. Public Serv. Comm’n, 524 S.W.2d 855, 864 (Mo. en banc 1975).

³⁰ Marshall v. Kansas City, 355 S.W.2d 877, 883 (Mo. 1962).

³¹ State ex rel. Kansas City v. Public Serv. Comm’n, 524 S.W.2d at 864.

 

 

Missouri courts recognize the police power exception based on the principle that “neither the police power nor constitutional limitations can be absolute; they are necessarily relative and dependent in the complexities of modern life.”³²

 

When faced with a Contracts Clause claim, a Missouri court’s analysis of whether the State’s police power was necessary depends on the particular facts involved. While it is not possible to anticipate what the State’s purpose would be in this situation, it is likely that a reviewing court would be skeptical of any State legislative effort to repeal its own financial promises and then characterize those efforts as “necessary” to achieve its objectives.

 

D.            Summary

 

While Missouri case law discussing the Missouri Contracts Clause is limited, Missouri courts would find that a State law reducing, altering, or impairing the value of the Bonds is a violation of the impairment of contracts and/or prohibition on retrospective legislation provisions of the Missouri Constitution. Only if the State demonstrates that such a law was a “necessary” exercise of its police powers could the State possibly override these constitutional protections. That seems unlikely if the State alters the promises it made in the State Pledge, whether by legislative change or a citizen initiative petition.

 

II.            Missouri Takings Clause

 

Article I, Section 26 of the Missouri Constitution states “private property shall not be taken or damaged for public use without just compensation” (the “Missouri Takings Clause”).³³ The State’s power to take private property for public use stems from “the inherent police power of the sovereign state.”³⁴ Missouri courts treat the Missouri Takings Clause similarly to the Federal Takings Clause.³⁵ But the Missouri Takings Clause’s operative language is actually two clauses, one of which is more expansive than its federal counterpart. The Missouri Takings Clause also prohibits private property from being “damaged” by the State without just compensation. On its face, the word “damaged” implicates different, broader protections than the “taken” language.³⁶ However, that is not how Missouri courts have interpreted “damaged.”

 

³² Marshall v. Kansas City, 355 S.W.2d at 883, citing 5 McQuilliin, Municipal Corporations 531; Ex parte Smith, 132 S.W. 607, 609 (Mo. 1910).

³³ Article I, Section 26 deals with private property being taken for public use. Missouri’s Constitution, however, also contains a provision dealing with private property being taken for private use. See Mo. Const. art. I, § 28 (“private property shall not be taken for private use with or without compensation, unless by consent of the owner”).

³⁴ State ex rel. Oliver Cadillac Co. v. Christopher, 298 S.W. 720, 724 (Mo. en banc 1927), quoting State ex rel. Penrose Inv. Co. v. McKelvey, 256 S.W. 474, 478 (Mo. en banc 1923) (Graves, J., concurring).

³⁵ See, e.g., Felling v. Wire Rope Corp. of America, Inc., 854 S.W.2d 458, 462 (Mo. Ct. App. W.D. 1993) (noting that the Federal Takings Clause “is paralleled in essential parts by the provisions of the Missouri Constitution”); Reagan v. Cnty. of St. Louis, 211 S.W.3d 104, 108 (Mo. Ct. App. E.D. 2006) (looking to U.S. Supreme Court decisions for guidance in interpreting the Missouri Takings Clause).

³⁶ See Maureen E. Brady, The Damagings Clauses, 104 Va. L. Rev. 341 (2018).

 

 

Missouri courts interpret “damaged” as prohibiting essentially the same actions as the “taken” language. Prior to the addition of “damaged” to the Missouri Constitution in 1875, Missouri courts interpreted the Missouri Takings Clause quite narrowly.³⁷ Under this narrow interpretation, property owners could not bring a takings action against the State when “rights directly annexed to his property were injured.”³⁸ For example, property holders could bring a nuisance suit against a private party but had no remedy if it was the State.³⁹ The “damaged” language therefore did not broaden the Missouri Takings Clause’s scope but “operated to correct an error of construction.”⁴⁰

 

The Missouri Supreme Court recently questioned interpretations of the Takings Clause that use materially different language than its federal counterpart.⁴¹ As a result, Missouri courts now apply U.S. Supreme Court case law as persuasive authority when interpreting the Missouri Takings Clause in the absence of Missouri case law.⁴²

 

To establish a takings claims under the Missouri Takings Clause, a plaintiff must satisfy three requirements:

 

(1) There must be a protected property interest;

 

(2) The challenged state action must be a constitutional Taking; and

 

(3) The taking must have been for a public use.⁴³

 

³⁷ State ex rel. Oliver Cadillac, 298 S.W. at 723.

³⁸ Id.

³⁹ Id. It is important to note that when the Missouri added the “damaged” language to its Constitution most states had not waived state sovereign immunity for torts claims.

⁴⁰ Id. See also Robert Keith Johnston, Federal Regulatory Takings Jurisprudence and Missouri Inverse Condemnation Proceedings, 58 UMKC L. Rev. 421, 434 (1990).

⁴¹ State ex rel. Jackson v. Dolan, 398 S.W.3d 472, 478 (Mo. en banc 2013), citing Doe v. Phillips, 194 S.W.3d 833, 841 (Mo. en banc 2006) (“While provisions of our state constitution may be construed to provide more expansive protections than comparable federal constitutional provisions, analysis of a section of the federal constitution is strongly persuasive in construing the like section of our state constitution.”).

⁴² State ex rel. Jackson v. Dolan, 398 S.W.3d 472, 478 (Mo. en banc 2013).

⁴³ Felling v. Wire Rope Corp. of America, 854 S.W.2d 458, 462 (Mo. Ct. App. W.D. 1993).

 

 

A.            Property Interest

 

The first requirement of a Missouri Takings Clause claim requires proof of a protected property interest. As the Federal Takings Clause opinion observes, property rights are creatures of state law. Under Missouri law, property interests “are created and their dimensions defined by existing rules of understandings that stem from an independent source such as state law.”⁴⁴

 

To evaluate the property interest here, a court would need to examine whether the State Pledge, the Financing Order, and the Indenture give the Bondholders protected property rights. It is our opinion that there is such a property right under Missouri law.

 

The Securitization Law creates an intangible property right in the Securitized Property. Section 393.1700.5(1)(a) of the Securitization Law states in relevant part:

 

“All securitized tariff property that is specified in a financing order constitutes an existing, present intangible property right or interest therein, notwithstanding that the imposition and collection of securitized utility tariff charges depends on the electrical corporation, to which the financing order is issued, performing its servicing functions relating to the collection of securitized utility tariff charges and on future electricity consumption. The property exists:

 

a. Regardless of whether or not the revenues or proceeds arising from the property have been billed, have accrued, or have been collected; and

 

b. Notwithstanding the fact that the value or amount of the property is dependent on the future provision of service to customers by the electrical corporation or its successors or assignees and the future consumption of electricity by customers.”⁴⁵

 

Because the Financing Order explicitly recognizes that the Bondholders have an intangible property right that is based solidly in Missouri law, the Bondholders likely have a protected property interest in the Securitized Property.

 

B.            Constitutional Taking

 

The second requirement is that there have been an actual Taking. “There is no litmus test for determining whether there has been a taking” under the Missouri Takings Clause.⁴⁶ Generally, this is a case specific, factual determination.⁴⁷ There are two situations where a landowner is entitled to compensation for a “per se” taking: (1) when a regulation causes “an actual physical invasion” of the property, and (2) when a regulation denies “all economically beneficial or productive use” of the land.”⁴⁸ Where no per se taking has occurred, Missouri follows federal law by applying the U.S. Supreme Court’s Penn Central balancing test that inquires into factors including the economic impact of the regulation, its interference with reasonable investment-backed expectations, and the character of the governmental action. In other words, the courts consider whether, under the circumstances, the regulation “goes too far” and constitutes a Taking.⁴⁹

 

⁴⁴ Id.

⁴⁵ § 393.1700.5(1) (emphasis added).

⁴⁶ Harris v. Missouri Dep’t of Conservation, 755 S.W.2d 726, 730 (Mo. Ct. App. W.D. 1988).

⁴⁷ Id.

⁴⁸ Reagan v. County of St. Louis, 211 S.W.3d 104, 107-09 (Mo. Ct. App. E.D. 2006)

⁴⁹ Id. at 107-08, citing Penn Central Transp. Co. v. City of New York, 438 U.S. 104, 124 (1978). See Harris v. Missouri Dep’t of Conservation, 755 S.W.2d at 730.

 

 

In this regard, the Missouri Takings Clause and the Federal Takings Clause are essentially the same—especially because Missouri courts do not recognize that the “damaged” language provides broader protections despite materially different language. The Federal Takings Clause analysis therefore applies to the Missouri Takings Clause in equal force.

 

If the Missouri legislature or a citizen initiative petition were to pass a law adversely affecting the Bondholders’ financial interests that constituted a “regulatory taking” under the Penn Central balancing test, that law would likely be considered a Taking of the Bondholders’ protected property interest, although it would be analyzed on a specific factual basis.

 

C.            Public Use

 

The third requirement is that the taking is for a public use. Similar to the Federal Takings Clause, the term “public use” is interpreted broadly under the Missouri Takings Clause. Missouri courts do not require “actual use or occupation by the public.”⁵⁰ In In re Kansas City Ordinance No. 39916, the Missouri Supreme Court held:

 

“In order to constitute public use, it is not necessary that the whole community or any large part of it should actually use or be benefited by a contemplated improvement. Benefit to any considerable number is sufficient. Nor does the mere fact that the advantage of a public improvement also inures to a particular individual or group of individuals deprive it of its public character.⁵¹

 

Because “public use” is found in both the Missouri Takings Clause and Federal Takings Clause, the Missouri Supreme Court “sees no reason at this point to deviate from the holdings of the [U.S.] Supreme Court” when interpreting that language.⁵² There is one notable exception, however. In response to the U.S. Supreme Court’s decision in Kelo v. City of New London⁵³—which interpreted “public use” to encompass private economic development—the Missouri legislature passed a law limiting the State’s ability to use economic development as a justification.

 

⁵⁰ State ex rel. Jackson v. Dolan, 398 S.W.3d 472, 478 (Mo. en banc 2013).

⁵¹ 252 S.W. 404, 408 (Mo. en banc 1923) (citations omitted). See In re Coleman Highlands, 401 S.W.2d 385, 388 (Mo. 1966) (noting that “[t]his Court adopted what it described as a liberal and flexible interpretation of ‘public use’ which it said was synonymous with ‘public advantage’ or ‘public benefit’”).

⁵² Dolan, 398 S.W.3d at 478.

⁵³ See generally Kelo v. City of New London, 545 U.S. 469 (2005).

 

 

In relevant part, Section 523.271 of the Missouri Revised Statutes provides:

 

“(1) No condemning authority shall acquire private property through the process of eminent domain for solely economic development purposes.

 

(2) For purposes of this section, “economic development” shall mean a use of a specific piece of property or properties which would provide an increase in the tax base, tax revenues, employment, and general economic health.”

 

The Missouri Supreme Court has restricted this statute in two important ways. First, “§ 528.271 only prohibits a taking if the sole purpose for the taking is economic development and no other purpose supports the taking.”⁵⁴ If another public purpose supports the taking, then the taking is still valid even if one purpose is economic development.⁵⁵ Furthermore, an “economic development” purpose can only be found if there is an increase in each of the following four factors: (1) tax base; (2) tax revenue; (3) employment; and (4) general economic health.⁵⁶ Without an increase in all four, a law or government action is not considered to serve an “economic development” purpose.

 

When faced with a takings claim, a Missouri court’s analysis of “public use” would depend on the particular facts involved. While it is not possible to anticipate in advance what the State might advance for its purposes in enacting legislation that might adversely affect the Bondholders; interests, it is conceivable the State might claim, for example, that it was acting to provide relief to utility ratepayers. Accepting such a justification at face value, and recognizing the broad definition of “public use,” that situation likely would fall within the realm of a taking for “public use.” However, that means the third requirement also would be satisfied and the Bondholders would have demonstrated a valid takings claim.

 

Based on the probable nature of State’s taking, including the likelihood that it would purport to protect electric ratepayers, it is our opinion that a reviewing Missouri court would be deferential to the State’s assertion of public use and likely find this requirement satisfied.

 

D.            Summary

 

Based on the above, we are of the opinion that a Missouri court would find a compensable taking under the Missouri Taking Clause if the State alters the State Pledge in a way that (a) constituted a permanent appropriation of a substantial property interest of the Bondholders in the Securitized Utility Tariff Property or denied the economically beneficial or productive use of the Securitized Utility Tariff Property; (b) destroyed the Securitized Utility Tariff Property, other than in response to emergency conditions; or (c) altered or impaired the Securitized Utility Tariff Charges, the Securitized Utility Tariff Property, the Financing Order, or any rights thereunder. There can be no assurance, however, that any such award of just compensation would be sufficient to pay the full amount of principal of and interest on the Bonds.

 

⁵⁴ Dolan, 398 S.W.3d at 479.

⁵⁵ Id. at 479-80.

⁵⁶ Id. at 479.

 

 

III.            Citizen Initiative Petition

 

Article III, Section 49 of the Missouri Constitution allows the State electorate “to propose and enact or reject laws and amendments to the constitution by the initiative, independent of the general assembly.” While there is no direct Missouri case law on the subject, there is no reason or legal basis to believe that a citizen initiative that altered or undermined the Bondholders’ rights under the State Pledge would be treated any differently than an enactment of the State legislature or orders of the Public Service Commission that had the same effect. State law is state law, irrespective of its source. All such laws can violate the Missouri Constitution.

 

The U.S. Supreme Court has held that state constitutional provisions providing for citizen initiative laws place the state electorate and representative legislative bodies on “equal footing.”⁵⁷ Because the state electorate and state legislatures are on equal footing, an unconstitutional citizen initiative-based law would be considered unconstitutional state action. That Court also articulated this principle in Schuette v. Coalition to Defend Affirmative Action by giving legal effect to a successful citizen initiative law in a case involving a 14th Amendment claim.⁵⁸ Throughout that opinion the Court recognized to citizen initiative laws as “state action” capable of violating the Constitution.⁵⁹

 

While less frequently litigated, citizen initiative laws have been held to violate the Federal Contract Clause.⁶⁰ State supreme courts have struck down citizen initiative laws as violating their respective state constitutional contracts clauses as well.⁶¹ While these cases deal with federal and state contracts clauses, there is no constitutional, legal, or logical reason that a different analysis would apply to a takings clause claim.

 

Based on the above, we are of the opinion that a Missouri citizen initiative law which alters or impairs the Bondholders’ rights could be challenged under the Missouri Constitution in the same fashion and using the same analyses as enactments of the Missouri legislature or orders of the Public Service Commission.

 

IV.            Injunctions Under Missouri Law

 

Regarding Opinion Paragraph 4, the Bondholders could likely challenge contested legislation or regulations by seeking a preliminary or permanent injunction under Missouri law. Missouri state court standards for both preliminary and permanent injunctions are similar to federal court standards.⁶² Much of the analysis interpreting injunctions under federal law would therefore likely apply to Missouri law as well, especially because Missouri courts are willing to look to federal law in the absence of Missouri case law.⁶³ The purpose of seeking an injunction would be “to prevent actual or threatened acts that constitute real injury.”⁶⁴

 

⁵⁷ See Arizona State Legislature v. Arizona Indep. Redistricting Comm’n, 576 U.S. 787, 796-97 (2015).

⁵⁸ Schuette v. Coalition to Defend Affirmative Action, 572 U.S. 291 (2014).

⁵⁹ Id. at 305, citing Washington v. Seattle School Dist., 458 U.S. 457, 470 (1982). See Reitman v. Mulkey, 387 U.S. 369 (1967) (striking down a voter initiative-based law based on 14th Amendment violation); Hunter v. Erikson, 393 U.S. 385 (1969) (same).

⁶⁰ See Continental Ill. Nat’l Bank & Trust Co. v. Washington, 696 F.2d 692 (9th Cir. 1983) (holding that a Washington State voter initiative violated the Federal Contract Clause).

⁶¹ See, e.g., City of Middleton v. Ferguson, 495 N.E.2d 380 (Ohio 1980) (holding voter initiative violated state contracts clause provision); West Haven Sound Dev. Corp. v. City of West Haven, 514 A.2d 734 (Conn. 1986) (same).

⁶² Tumey v. Mycroft AI, Inc., 27 F.4th 657, 664 (8th Cir. 2022) (“A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.”); Jennings v. City of Univ. City, 2022 WL 157495, at *8 (E.D. Mo. 2022) (“If a court finds actual success on the merits, it then considers the following factors in deciding whether to grant a permanent injunction: (1) the threat of irreparable harm to the moving party; (2) the balance of harms with any injury an injunction might inflict on other parties; and (3) the public interest.”) (internal quotation marks omitted).

⁶³ See, e.g., Rebman v. Parson, 576 S.W.3d 605, 612 (Mo. en banc 2019) (looking to U.S. Supreme Court case law for guidance on injunctive relief.).

⁶⁴ State ex rel. Gardner v. Stelzer, 568 S.W.3d 48, 51 (Mo. Ct. App. E.D. 2019).

 

 

A.            Preliminary Injunctive Relief

 

A preliminary injunction preserves the status quo while the court resolves the merits of the underlying dispute.⁶⁵ There is “relatively little Missouri case law concerning the elements required to obtain a preliminary injunction.”⁶⁶ But—similar to most courts—Missouri courts weigh four factors when considering whether to grant a preliminary injunction:

 

(1) the petitioner’s probability of success on the merits, (2) the threat of irreparable harm to the petitioner absent the injunction, (3) the balance between this harm and the injury that the injunction's issuance would inflict on other interested parties, and (4) the public interest.⁶⁷

 

A petitioner must show that the first and second factors “decidedly outweigh” the third and fourth factors before a court grants a preliminary injunction.⁶⁸

 

Of these four factors, a petitioner is required to show a probability of success on the merits before a preliminary injunction will be issued.⁶⁹ A petitioner must make a prima facie case under what has been described as a “probable cause standard.”⁷⁰ Thus, a mere showing of hardship is not sufficient to meet this requirement.⁷¹ Ultimately, however, the decision of whether a petitioner has shown a likelihood of success on the merits lies in the court’s discretion.

 

B.            Permanent Injunctive Relief

 

A permanent injunction restrains or mandates conduct either permanently or until a specific date.⁷² The requirements for a permanent injunction under Missouri law are conceptually similar to federal standards but differ in that “a party seeking a permanent injunction must show only irreparable harm and a lack of adequate remedy at law.”⁷³

 

⁶⁵ Salau v. Photon, 433 S.W.3d 449, 453 (Mo. Ct. App. W.D. 2014).

⁶⁶ State ex rel. Dir. of Rev. v. Gabbert, 925 S.W.2d 838, 839 (Mo. en banc 1996). See Cook v. McElwain, 432 S.W.3d 286, (Mo. Ct. App. W.D. 2014) (noting that a preliminary injunction hearing is not “on the merits” and therefore not appealable).

⁶⁷ Gabbert, 925 S.W.2d at 839.

⁶⁸ Id. at 840.

⁶⁹ Id at 839. See Rebman, 576 S.W.3d at 611.

⁷⁰ Impey v. Clithero, 553 S.W.3d 344, 354 (Mo. Ct. App. W.D. 2018).

⁷¹ Gabbert, 568 S.W.3d at 840.

⁷² Bates v. Webber, 257 S.W.3d 632, 636 (Mo. Ct. App. S.D. 2008).

⁷³ Rebman, 576 S.W.3d at 611. See Suppes v. Curators of Univ. of Mo., 613 S.W.3d 836, 847 (Mo. Ct. App. W.D. 2020).

 

 

Irreparable harm occurs “when pecuniary remedies fail to provide adequate reimbursement for improper behavior.”⁷⁴ For example, Missouri courts have held that being subject to an unconstitutional statute constitutes irreparable harm.⁷⁵ Additionally, a lack of adequate remedy at law means “damages will not adequately compensate the plaintiff for the injury or threatened injury.⁷⁶ This element can be difficult to meet because, for example, “persons affected by unconstitutional statutes often have adequate means of addressing those constitutional violations.”⁷⁷ Missouri courts have held that if a statutory provision provides a petitioner with alternative remedies to address constitutional violations then they are considered to have an adequate remedy at law.⁷⁸

 

C.            Discretionary Nature of Injunctive Relief

 

Whether analyzing a preliminary or a permanent injunction, the analysis applied by a Missouri court cannot be “rigid or wooden” because injunctions are not decided with “mathematical precision.”⁷⁹ An injunction’s “equitable nature . . . mandates that the court’s approach be flexible enough to encompass the particular circumstances of each case.”⁸⁰ Missouri courts will therefore decide whether to grant an injunction on a case-by-case basis. This flexible approach gives Missouri courts “broad discretionary powers to shape and fashion the relief it grants to fit particular facts, circumstances and equities of the case before it.”⁸¹

 

A Missouri court’s determination of the appropriateness of an injunction in this case will depend on the facts and evidence presented to the court. If a court in its discretion finds that the Bondholders have met the standard for either a preliminary or permanent injunction, then any contested legislation or regulation would be equitably restrained from harming the Bondholders.

 

D.            Sovereign Immunity

 

The doctrine of sovereign immunity prevents the government from being sued without its consent.⁸² This doctrine has a “peculiar history” in Missouri.⁸³ The Missouri Supreme Court abrogated common law sovereign immunity in Jones v. State Highway Commission.⁸⁴ In response to Jones, the Missouri legislature codified sovereign immunity as it existed prior to its abrogation.⁸⁵ But, Sections 537.600-.650 (which codified sovereign immunity) apply primarily to tort actions, not injunctive relief.⁸⁶ This principle is evident in Missouri case law because the Missouri Supreme Court has upheld injunctions against the State itself.⁸⁷

 

⁷⁴ City of Kansas City, v. New York-Kansas Bldg. Assoc., L.P., 96 S.W.3d 846, 855 (Mo. Ct. App. W.D. 2003).

⁷⁵ Rebman, 576 S.W.3d at 612 (“[B]eing subject to an unconstitutional statute, for even minimal periods of time, unquestionably constitutes irreparable injury.”) (citing Elrod v. Burns, 427 U.S. 347, 373 (1976) (internal quotation marks omitted).

⁷⁶ Id.

⁷⁷ Id. (citing State ex rel. SLAH, LLC v. City of Woodson Terrace, 378 S.W.3d 357, 362 (Mo. en banc 2012)).

⁷⁸ Id., citing City of Independence v. DeWitt, 550 S.W.2d 840, 845 (Mo. Ct. App. W.D. 1977). See Schaefer v. Koster, 342 S.W.3d 299, 300 (Mo. en banc 2011).

⁷⁹ State ex rel. Dir. of Rev. v. Gabbert, 925 S.W.2d 838, 840 (Mo. en banc 1996)

⁸⁰ Id.

⁸¹ Reproductive Health Servs., Inc. v. Lee, 660 S.W.2d 330, 335 (Mo. Ct. App. E.D. 1983).

⁸² See Jones v. State Highway Comm’n, 557 S.W.2d 225, 227-28 (Mo en banc 1977).

⁸³ State ex rel. Bd. of Trs. of City of Kan. City Mem’l Hosp. v. Russell, 843 S.W.2d 353, 357 (Mo. en banc 1992).

⁸⁴ 557 S.W.2d at 227-28.

⁸⁵ Russell, 843 S.W.2d at 357-58.

⁸⁶ Mo. State Conf. of NAACP v. Missouri, 563 S.W.3d 138, 147 (Mo. Ct. App. W.D. 2018).

⁸⁷ See, e.g., Weinschenk v. Missouri, 203 S.W.3d 201, 205 (Mo. en banc 2006) (affirming judgment enjoining enforcement of now-repealed statute requiring presentation of photo identification in order to vote).

 

 

Therefore, the State itself would be an appropriate defendant in a suit seeking to enjoin state legislation or regulations that violate the Bondholders’ constitutional rights. As the Missouri Contracts Clause and Missouri Takings Clause analysis above suggests, any legislation or regulations violating the State Pledge in Section 393.1700(11) would likely be a constitutional violation. The Bondholders could therefore seek to enjoin the State from enforcing those unconstitutional laws or regulations because sovereign immunity would not apply.

 

Our opinions set forth above are subject to the following qualifications and limitations:

 

(i)            Our opinions are limited in all respects to provisions of Missouri statutes, regulations, and case law typically applicable to transactions of the type contemplated by the Securitization Law, in each case as now in effect, which have been published and are generally available in a format that makes legal research reasonably feasible. We express no opinion with respect to the applicability of the opinions expressed herein, or the effect thereon, of the laws of any other jurisdiction or any other laws of the State of Missouri.

 

(ii)  This opinion letter is rendered for the sole benefit of each addressee of this letter with respect to the matters specifically addressed herein, and no other person or entity is entitled to rely upon this letter. Copies of this opinion letter may not be made available, and this opinion letter may not be quoted or referred to in any other document made available, to any other person or entity except (i) to any applicable rating agency, institution providing credit enhancement or liquidity support or governmental authority, (ii) to any accountant or attorney for any person or entity entitled hereunder to rely hereon or to whom or which this opinion letter may be made available as provided herein, (iii) to any and all persons, without limitation, in connection with the disclosure of the tax treatment and tax structure of the transaction to which this opinion letter relates, (iv) in connection with a due diligence inquiry by or with respect to any addressee that is identified in the first paragraph hereof as a person or entity for which we have acted as counsel in rendering this opinion letter, (v) in order to comply with any subpoena, order, regulation, ruling or request of any judicial, administrative, governmental, supervisory or legislative body or committee or any self-regulatory body (including any securities or commodities exchange or the Financial Industry Regulatory Authority, Inc.) and (vi) as otherwise required by law; provided that none of the foregoing is entitled to rely hereon unless an addressee hereof. In addition, a copy of this opinion letter may be posted by the Sponsor, the Issuer, or the Underwriters on a website if necessary to comply with Rule 17g-5 under the Securities Exchange Act of 1934, as amended. Furthermore, we consent to the filing of this opinion letter as an exhibit to the Registration Statement, and to all references to our firm included in or made a part of the Registration Statement. In giving the foregoing consents, we do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act of 1933, as amended, or the related rules and regulations of the U.S. Securities and Exchange Commission. This opinion letter is being delivered as of the date hereof and we assume no obligation to amend, update, revise, supplement or withdraw this opinion letter, or otherwise inform any addressee hereof or other person or entity, with respect to any change occurring or matter that may come to our attention subsequent to the delivery hereof in any applicable fact or law or any judicial or administrative interpretation thereof, even though such change may affect a legal analysis or conclusion contained herein. In addition, no attorney-client relationship exists or has existed by reason of this opinion letter between our firm and any addressee hereof or other person or entity except for any addressee that is identified in the first paragraph hereof as a person or entity for which we have acted as counsel in rendering this opinion letter. In permitting reliance hereon by any person or entity other than such an addressee for which we have acted as counsel, we are not acting as counsel for such other person or entity and have not assumed and are not assuming any responsibility to advise such other person or entity with respect to the adequacy of this opinion letter for its purposes.

 

Very truly yours,

 

 

 

Exhibit 99.4

 

Consent of Independent Manager Nominee

 

Union Electric Company and Ameren Missouri Securitization Funding I, LLC are filing a Registration Statement on Form SF-1 (the “Registration Statement”) with the Securities and Exchange Commission under the Securities Act of 1933, as amended (the “Securities Act”), in connection with the public offering of securitized utility tariff bonds. In connection therewith, I hereby consent, pursuant to Rule 438 of the Securities Act, to being named as a person about to become a manager of Ameren Missouri Securitization Funding I, LLC in the Registration Statement, as may be amended from time to time. I also consent to the filing of this consent as an exhibit to such Registration Statement and any amendments thereto.

 

	/s/ Lisa M. Pierro
	Name: Lisa M. Pierro

 

 

Exhibit 107.1

 

Calculation of Filing Fee Table

 

Form SF-1

(Form Type)

 

Union Electric Company (Exact name of registrant, sponsor and depositor as specified in its charter)

Ameren Missouri Securitization Funding I, LLC (Exact name of registrant and issuing entity as specified in its charter)

 

Table 1: Newly Registered Securities

 

	Security Type	Security Class Title	Fee Calculation Rule	Amount Registered	Proposed Maximum Offering Price Per Unit	Maximum Aggregate Offering Price (1)	Fee Rate	Amount of Registration Fee (1)
Fees to Be Paid	Asset-Backed Securities	Securitized Utility Tariff Bonds, Series 2024-A	457(o)	$475,121,000	100%	$475,121,000	0.000153100	$72,741.03
Fees Previously Paid	Asset-Backed Securities	Securitized Utility Tariff Bonds, Series 2024-A	457(o)	$1,000,000	100%	$1,000,000	0.000153100	$153.10
Total Offering Amount						$476,121,000		$72,894.13
Total Fees Previously Paid(2)								$153.10
Total Fee Offsets								$0
Net Fee Due								$72,741.03

 

(1)	Estimated solely for the purpose of calculating the registration fee.

 

(2)	$153.10 was previously paid in connection with the initial filing of this Registration Statement where $1,000,000 aggregate principal amount of Securitized Utility Tariff Bonds, Series 2024-A were registered.

 

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