Exhibit 10.01
LOAN AGREEMENT
THIS LOAN AGREEMENT (this "Agreement") is made and entered into as of
the 30th day of November, 2000, by and among LACLEDE GAS COMPANY, a Missouri
corporation ("Borrower"), and the Banks from time to time party hereto,
including FIRSTAR BANK, N.A. in its capacity as a Bank and as agent for the
Banks under this Agreement (the "Agent").
WITNESSETH:
WHEREAS, Borrower has applied for a revolving credit facility from the
Banks in the aggregate principal amount of up to $150,000,000.00; and
WHEREAS, the Banks are willing to make said revolving credit facility
available to Borrower upon, and subject to, the terms, provisions and
conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Borrower, the Banks and the Agent hereby mutually covenant and
agree as follows:
SECTION 1. DEFINITIONS.
1.01 Definitions. In addition to the terms defined elsewhere in this
Agreement or in any Exhibit or Schedule hereto, when used in this Agreement,
the following terms shall have the following meanings (such meanings shall
be equally applicable to the singular and plural forms of the terms used, as
the context requires):
Affected Bank shall have the meaning ascribed thereto in Section 2.19.
Agent shall mean Firstar Bank, N.A. in its capacity as agent for the
Banks under this Agreement and certain of the other Transaction Documents
and its successors in such capacity.
Assignee shall have the meaning ascribed thereto in Section 8.10(c).
Bank shall mean each bank from time to time party to this Agreement and
its successors and permitted assigns; and Banks shall mean all of the Banks.
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Borrower's Obligations shall mean any and all present and future
indebtedness (principal, interest, fees, collection costs and expenses,
attorneys' fees and other amounts), liabilities and obligations (including,
without limitation, indemnity obligations) of Borrower to the Agent and/or
any Bank evidenced by or arising under or in respect of this Agreement, the
Notes and/or any of the other Transaction Documents.
Default shall mean any event or condition the occurrence of which
would, with the lapse of time or the giving of notice or both, become an
Event of Default.
Domestic Business Day shall mean any day except a Saturday, Sunday or
legal holiday observed by the Agent or any Bank.
Eurodollar Business Day shall mean any Domestic Business Day on which
commercial banks are open for international business (including dealings in
dollar deposits) in London.
Event of Default shall have the meaning ascribed thereto in Section 6.
Fed Funds Base Rate shall mean, as of the date of any determination
thereof, the rate per annum (rounded upwards, if necessary, to the next
higher 1/100 of 1%) for overnight Federal Funds transactions which appears
on the Telerate Page 5 as of 9:00 a.m. (St. Louis time) on such date.
Fed Funds Rate shall mean a rate per annum equal to One-Quarter of One
Percent (1/4%) over and above the Fed Funds Base Rate, which Fed Funds Rate
shall fluctuate as and when said Fed Funds Base Rate changes.
Firstar shall mean Firstar Bank, N.A., a national banking association,
in its individual corporate capacity as a Bank hereunder and not as the
Agent hereunder.
Floating Rate shall mean a rate per annum equal to (a) the Fed Funds
Rate if such rate is available or (b) if the Fed Funds Rate is not
available, the Prime Rate. The Floating Rate shall fluctuate as and when the
Fed Funds Rate or the Prime Rate, as applicable, changes.
Floating Rate Loan shall mean any Loan bearing interest based on the
Floating Rate.
GAAP shall mean, at any time, generally accepted accounting principles
at such time in the United States.
Granting Bank shall have the meaning ascribed thereto in Section
8.10(e).
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Interest Period shall mean with respect to each LIBOR Loan:
(a) initially, the period commencing on the date of such Loan
and ending 1, 2, 3 or 6 months thereafter (or such other period
agreed upon in writing by Borrower and each Bank), as Borrower
may elect in the applicable Notice of Borrowing; and
(b) thereafter, each period commencing on the last day of the
immediately preceding Interest Period applicable to such Loan and
ending 1, 2, 3 or 6 months thereafter (or such other period agreed
upon in writing by Borrower and each Bank), as Borrower may
elect pursuant to Section 2.04(a);
provided that:
(c) subject to clauses (d) and (e) below, any Interest Period
which would otherwise end on a day which is not a Eurodollar
Business Day shall be extended to the next succeeding Eurodollar
Business Day unless such Eurodollar Business Day falls in another
calendar month, in which case such Interest Period shall end on the
immediately preceding Eurodollar Business Day;
(d) subject to clause (e) below, any Interest Period which
begins on the last Eurodollar Business Day of a calendar month (or
on a day for which there is no numerically corresponding day in the
calendar month at the end of such Interest Period) shall end on the
last Eurodollar Business Day of a calendar month; and
(e) no Interest Period may extend beyond the last day of the
Revolving Credit Period.
LIBOR Base Rate shall mean, with respect to the applicable Interest
Period, (a) the LIBOR Index Rate for such Interest Period, if such rate is
available or (b) if the LIBOR Index Rate is not available, the average
(rounded upward, if necessary, to the next higher 1/10,000 of 1%) of the
respective rates per annum of interest at which deposits in U.S. Dollars are
offered to Firstar in the London interbank market by two (2) Eurodollar
dealers of recognized standing, selected by Firstar in its sole discretion,
at or about 11:00 a.m. (London time) on the date two (2) Eurodollar Business
Days before the first day of such Interest Period, for delivery on the first
day of the applicable Interest Period for a number of days comparable to the
number of days in such Interest Period and in an amount approximately equal
to the principal amount of the LIBOR Loan to which such Interest Period is
to apply.
LIBOR Index Rate shall mean, with respect to the applicable Interest
Period, a rate per annum (rounded upwards, if necessary, to the next higher
1/10,000 of 1%) equal to the British Bankers' Association interest
settlement rates for U.S. Dollar deposits for such Interest Period as of
11:00 a.m. (London time) on the day two (2) Eurodollar Business Days before
the first day of such Interest Period as
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published by Bloomberg Financial Services, Dow Xxxxx Market Service,
Telerate, Reuters or any other service from time to time used by Firstar.
LIBOR Loan shall mean any Loan bearing interest based on the LIBOR
Rate.
LIBOR Rate shall mean (a) the quotient of the (i) LIBOR Base Rate
divided by (ii) one minus the applicable LIBOR Reserve Percentage plus (b)
One-Quarter of One Percent (1/4%) per annum. The LIBOR Rate shall be
adjusted automatically on and as of the effective date of any change in the
LIBOR Reserve Percentage.
LIBOR Reserve Percentage shall mean for any day that percentage
(expressed as a decimal) which is in effect on such day, as prescribed by
The Board of Governors of the Federal Reserve System (or any successor), for
determining the maximum reserve requirement (including, without limitation,
any basic, supplemental, emergency, special or marginal reserves) with
respect to "Eurocurrency liabilities" as defined in Regulation D or with
respect to any other category of liabilities which includes deposits by
reference to which the interest rate on LIBOR Loans is determined, whether
or not any Bank has any Eurocurrency liabilities subject to such reserve
requirement at such time. LIBOR Loans shall be deemed to constitute
Eurocurrency liabilities and as such shall be deemed subject to reserve
requirements without the benefit of any credits for proration, exceptions or
offsets which may be available from time to time to any Bank. The LIBOR
Rate shall be adjusted automatically on and as of the effective date of any
change in the LIBOR Reserve Percentage.
Loan and Loans shall have the meanings ascribed thereto in Section
2.01(a).
Material Adverse Effect shall mean (a) a material adverse effect on the
properties, assets, liabilities, business, operations, prospects, income or
condition (financial or otherwise) of Borrower and its Subsidiaries taken as
a whole, (b) material impairment of Borrower's ability to perform any of its
obligations under this Agreement, any of the Notes or any of the other
Transaction Documents or (c) material impairment of the enforceability of
the rights of, or benefits available to, the Agent or any of the Banks under
this Agreement, any of the Notes or any of the other Transaction Documents.
Notes shall have the meaning ascribed thereto in Section 2.03(a).
Notice of Borrowing shall have the meaning ascribed thereto in Section
2.02.
Participant shall have the meaning ascribed thereto in Section 8.10(b).
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Person shall mean any individual, sole proprietorship, partnership,
joint venture, limited liability company, trust, unincorporated
organization, association, corporation, institution, entity or government
(whether national, Federal, state, county, city, municipal or otherwise,
including, without limitation, any instrumentality, division, agency, body
or department thereof).
Prime Rate shall mean the interest rate announced from time to time by
Firstar as its "prime rate" (which rate shall fluctuate as and when said
prime rate shall change). Borrower acknowledges that such "prime rate" is a
reference rate and does not necessarily represent the lowest or best rate
offered by Firstar or any Bank to its customers.
Pro Rata Share shall mean for the item at issue, with respect to each
Bank, a fraction (expressed as a percentage), the numerator of which is the
portion of such item owned or held by such Bank and the denominator of which
is the total amount of such item owned or held by all of the Banks. For
example, (a) if the amount of the Revolving Credit Commitment of a Bank is
$1,000,000.00 and the total amount of the Revolving Credit Commitments of
all of the Banks is $5,000,000.00, such Bank's Pro Rata Share of the
Revolving Credit Commitments would be Twenty Percent (20%) and (b) if the
original principal amount of a Loan is $5,000,000.00 and the portion of such
Loan made by one Bank is $500,000.00, such Bank's Pro Rata Share of such
Loan would be Ten Percent (10%). As of the date of this Agreement, the Pro
Rata Shares of the Banks with respect to the Revolving Credit Commitments
and the Loans are as follows: (a) Firstar - Thirty-Three and One-Third
Percent (33-1/3%); (b) Bank One, NA - Sixteen and Two-Thirds Percent (16-
2/3%); (c) The Fuji Bank Limited - Sixteen and Two-Thirds Percent (16-2/3%);
(d) Comerica Bank - Sixteen and Two-Thirds Percent (16-2/3%); and (e) Bank
Hapoalim B.M. - Sixteen and Two-Thirds Percent (16-2/3%).
Purchasing Bank and Purchasing Banks shall have the respective meanings
ascribed thereto in Section 2.19.
Regulation D shall mean Regulation D of the Board of Governors of the
Federal Reserve System, as amended.
Regulatory Change shall have the meaning ascribed thereto in Section
2.12.
Required Banks shall mean at any time Banks having at least Sixty
Percent (60%) of the aggregate amount of Loans then outstanding or, if no
Loans are then outstanding, at least Sixty Percent (60%) of the total
Revolving Credit Commitments of all of the Banks.
Revolving Credit Commitment shall mean, subject to (a) any reduction of
the Revolving Credit Commitments pursuant to Section 2.01(c) and (b)
assignments of the Revolving Credit Commitments by the Banks to the extent
permitted by Section 8.10: (i) with respect to
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Firstar, $50,000,000.00; (ii) with respect to Bank One, NA, $25,000,000.00;
(iii) with respect to The Fuji Bank Limited, $25,000,000.00; (iv) with
respect to Comerica Bank, $25,000,000.00; and (v) with respect to Bank
Hapoalim B.M., $25,000,000.00.
Revolving Credit Period shall mean the period commencing on the date of
this Agreement and ending November 29, 2001.
SPC shall have the meaning ascribed thereto in Section 8.10(e).
Subsidiary shall mean any corporation or other entity of which more
than Fifty Percent (50%) of the issued and outstanding capital stock or
other equity interests entitled to vote for the election of directors or
persons performing similar functions (other than by reason of default in the
payment of dividends or other distributions) is at the time owned directly
or indirectly by Borrower or any Subsidiary.
Telerate Page 5 shall mean the display designated as "Page 5" on the
Telerate Service (or such other page as may replace Page 5 on that service
or such other service as may be used by the Agent for the purpose of
determining the rate per annum for overnight Federal Funds transactions).
Transaction Documents shall mean this Agreement, the Notes and any and
all other agreements, documents and instruments heretofore, now or hereafter
delivered to the Agent or any Bank with respect to or in connection with or
pursuant to this Agreement, any Loans made hereunder or any of the other
Borrower's Obligations, and executed by or on behalf of Borrower, all as the
same may from time to time be amended, modified, extended, renewed or
restated.
SECTION 2. THE LOANS.
2.01 Revolving Credit Commitments. (a) Subject to the terms and
conditions set forth in this Agreement and so long as no Default or Event of
Default has occurred and is continuing, during the Revolving Credit Period,
each Bank severally agrees to make such loans to Borrower (individually, a
"Loan" and collectively, the "Loans") as Borrower may from time to time
request pursuant to Section 2.02. Each Loan under this Section 2.01(a)
which is a Floating Rate Loan shall be for an aggregate principal amount of
at least $50,000.00 or any larger multiple of $10,000.00. Each Loan under
this Section 2.01(a) which is a LIBOR Loan shall be for an aggregate
principal amount of at least $2,500,000.00 or any larger multiple of
$500,000.00. The aggregate principal amount of Loans which each Bank shall
be required to have outstanding under this Agreement as of any date shall
not exceed the amount of such Bank's Revolving Credit Commitment; provided,
however, that in no event shall (i) the aggregate principal amount of all
Loans outstanding as of any date
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exceed the total Revolving Credit Commitments of all of the Banks as of such
date or (ii) the aggregate principal amount of all outstanding Loans made by
any Bank exceed such Bank's Pro Rata Share of the total Revolving Credit
Commitments of all of the Banks. Each Loan under this Section 2.01 shall be
made from the several Banks ratably in proportion to their respective Pro
Rata Shares. Within the foregoing limits, Borrower may borrow under this
Section 2.01(a), prepay under Section 2.08 and reborrow at any time during
the Revolving Credit Period under this Section 2.01(a). All Loans not paid
prior to the last day of the Revolving Credit Period, together with all
accrued and unpaid interest thereon and all fees and other amounts owing by
Borrower to the Agent and/or any Bank with respect thereto, shall be due and
payable on the last day of the Revolving Credit Period. The failure of any
Bank to make any Loan required under this Agreement shall not release any
other Bank from its obligation to make Loans as provided herein.
(b) If the total Revolving Credit Commitments of all of the Banks on
any date should be less than the aggregate principal amount of Loans
outstanding on such date, whether as a result of Borrower's election to
decrease the amount of the Revolving Credit Commitments of the Banks
pursuant to Section 2.01(c) or otherwise, Borrower shall be automatically
required (without demand or notice of any kind by the Agent or any Bank, all
of which are hereby expressly waived by Borrower) to immediately repay the
Loans in an amount sufficient to reduce the aggregate principal amount of
outstanding Loans to an amount equal to or less than the total Revolving
Credit Commitments of all of the Banks.
(c) Borrower may, upon five (5) Domestic Business Days' prior written
notice to the Agent and each Bank, terminate entirely at any time, or
proportionately reduce from time to time on a pro rata basis among the Banks
based on their respective Pro Rata Shares by an aggregate amount of
$5,000,000.00 or any larger multiple of $1,000,000.00 the unused portions of
the Revolving Credit Commitments; provided, however, that (i) at no time
shall the Revolving Credit Commitments be reduced to a figure less than the
aggregate principal amount of outstanding Loans, (ii) at no time shall the
Revolving Credit Commitments be reduced to a figure greater than zero but
less than $50,000,000.00 and (iii) any such termination or reduction shall
be permanent and Borrower shall have no right to thereafter reinstate or
increase, as the case may be, the Revolving Credit Commitment of any Bank.
2.02 Method of Borrowing. (a) Borrower shall give notice (a "Notice
of Borrowing") to the Agent by 10:00 a.m. (St. Louis time) on the Domestic
Business Day of each Floating Rate Loan to be made to Borrower, and by 10:00
a.m. (St. Louis time) at least three (3) Eurodollar Business Days before
each LIBOR Loan to be made to Borrower, specifying:
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(i) the date of such Loan, which shall be a Domestic Business
Day during the Revolving Credit Period in the case of a Floating
Rate Loan and a Eurodollar Business Day during the Revolving
Credit Period in the case of a LIBOR Loan;
(ii) the aggregate principal amount of such Loan;
(iii) whether such Loan is to be a Floating Rate Loan or a LIBOR
Loan; and
(iv) in the case of a LIBOR Loan, the duration of the initial
Interest Period applicable thereto, subject to the provisions of the
definition of Interest Period.
(b) Upon receipt of a Notice of Borrowing given to it, the Agent shall
notify each Bank by 11:00 a.m. (St. Louis time) on the date of receipt of
such Notice of Borrowing by the Agent (which must be a Domestic Business
Day) of the contents thereof and of such Bank's Pro Rata Share of such Loan.
A Notice of Borrowing shall not be revocable by Borrower.
(c) Not later than 1:00 p.m. (St. Louis time) on the date of each
Loan, each Bank shall (except as provided in subsection (d) of this Section)
make available its Pro Rata Share of such Loan, in Federal or other funds
immediately available in St. Louis, Missouri, to the Agent at its address
specified in or pursuant to Section 8.05. Unless the Agent determines that
any applicable condition specified in Section 3 has not been satisfied, the
Agent will make the funds so received from the Banks available to Borrower
immediately thereafter at the Agent's aforesaid address by crediting such
funds to a demand deposit account of Borrower at Firstar specified by
Borrower (or such other account mutually agreed upon in writing between the
Agent and Borrower). The Agent shall not be required to make any amount
available to Borrower hereunder except to the extent the Agent shall have
received such amounts from the Banks as set forth herein, provided, however,
that unless the Agent shall have been notified by a Bank prior to the time a
Loan is to be made hereunder that such Bank does not intend to make its Pro
Rata Share of such Loan available to the Agent, the Agent may assume that
such Bank has made such Pro Rata Share available to the Agent prior to such
time, and the Agent may in reliance upon such assumption make available to
Borrower a corresponding amount. If such corresponding amount is not in
fact made available to the Agent by such Bank and the Agent has made such
amount available to Borrower, the Agent shall be entitled to receive such
amount from such Bank forthwith upon its demand, together with interest
thereon in respect of each day during the period from and including the date
such amount was made available to Borrower to but excluding the date the
Agent recovers such amount from such Bank at a rate per annum equal to the
Fed Funds Base Rate.
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(d) If any Bank makes a new Loan to Borrower under this Agreement on a
day on which Borrower is required to or has elected to repay all or any part
of an outstanding Loan to Borrower from such Bank, such Bank shall apply the
proceeds of its new Loan to make such repayment and only an amount equal to
the difference (if any) between the amount being borrowed and the amount
being repaid shall be made available by such Bank to the Agent as provided
in subsection (c) of this Section, or remitted by Borrower to the Agent as
provided in Section 2.09, as the case may be.
(e) Borrower hereby irrevocably authorizes the Agent to rely on
telephonic, telegraphic, telecopy, telex or written instructions of any
person identifying himself or herself as one of the individuals listed on
Schedule 2.02 attached hereto (or any other individual from time to time
authorized to act on behalf of Borrower pursuant to a resolution adopted by
the Board of Directors of Borrower and certified by the Secretary of
Borrower and delivered to the Agent) with respect to any request to make a
Loan or a repayment hereunder, and on any signature which the Agent believes
to be genuine, and Borrower shall be bound thereby in the same manner as if
such individual were actually authorized or such signature were genuine.
Borrower also hereby agrees to defend and indemnify the Agent and each Bank
and hold the Agent and each Bank harmless from and against any and all
claims, demands, damages, liabilities, losses, costs and expenses
(including, without limitation, reasonable attorneys' fees and expenses)
relating to or arising out of or in connection with the acceptance of
instructions for making Loans or repayments under this Agreement.
2.03 Notes. (a) The Loans of each Bank to Borrower shall be
evidenced by a Revolving Credit Note of Borrower payable to the order of
such Bank in a principal amount equal to the amount of such Bank's Revolving
Credit Commitment, each of which Revolving Credit Notes shall be in
substantially the form of Exhibit A attached hereto and incorporated herein
by reference (with appropriate insertions) (collectively, as the same may
from time to time be amended, modified, extended, renewed, restated or
replaced (including, without limitation, any Revolving Credit Note issued in
full or partial replacement of an existing Revolving Credit Note as a result
of an assignment by a Bank), the "Notes").
(b) Each Bank shall record in its books and records the date, amount,
type and maturity of each Loan made by it to Borrower and the date and
amount of each payment of principal and/or interest made by Borrower with
respect thereto; provided, however, that the obligation of Borrower to repay
each Loan made by a Bank to Borrower under this Agreement shall be absolute
and unconditional, notwithstanding any failure of such Bank to make any such
recordation or any mistake by such Bank in connection with any such
recordation. The books and records of each Bank showing the account between
such Bank and Borrower shall be conclusive evidence of the items set forth
therein in the absence of manifest error.
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2.04 Duration of Interest Periods and Selection of Interest Rates.
(a) The duration of the initial Interest Period for each LIBOR Loan shall be
as specified in the applicable Notice of Borrowing. Borrower shall elect
the duration of each subsequent Interest Period applicable to such LIBOR
Loan and the interest rate to be applicable during such subsequent Interest
Period (and Borrower shall have the option (i) in the case of any Floating
Rate Loan, to elect that such Floating Rate Loan become a LIBOR Loan and the
Interest Period to be applicable thereto, and (ii) in the case of any LIBOR
Loan, to elect that such LIBOR Loan become a Floating Rate Loan), by giving
notice of such election to the Agent by 10:00 a.m. (St. Louis time) on the
Domestic Business Day of, in the case of the election of the Floating Rate,
and by 10:00 a.m. (St. Louis time) at least three (3) Eurodollar Business
Days before, in the case of the election of the LIBOR Rate, the end of the
immediately preceding Interest Period applicable thereto, if any; provided,
however, that notwithstanding the foregoing, in addition to and without
limiting the rights and remedies of the Agent and the Banks under Section 6
hereof, so long as any Default or Event of Default under this Agreement has
occurred and is continuing, Borrower shall not be permitted to renew any
LIBOR Loan as a LIBOR Loan or to convert any Floating Rate Loan into a LIBOR
Loan. Upon receipt of any such notice given by Borrower to the Agent under
this Section 2.04, the Agent shall notify each Bank by 11:00 a.m. (St. Louis
time) on the date of receipt of such notice (which must be a Domestic
Business Day) of the contents thereof. If the Agent does not receive a
notice of election for a Loan pursuant to this Section 2.04(a) within the
applicable time limits specified herein, Borrower shall be deemed to have
elected to pay such Loan in whole pursuant to Section 2.09 on the last day
of the current Interest Period with respect thereto and to reborrow the
principal amount of such Loan on such date as a Floating Rate Loan.
(b) Borrower may not have outstanding and the Banks shall not be
obligated to make more than eight (8) LIBOR Loans at any one time.
2.05 Interest Rates. (a) So long as no Event of Default under this
Agreement has occurred and is continuing, each Floating Rate Loan shall bear
interest on the outstanding principal amount thereof, for each day from the
date such Loan is made until it becomes due, at a rate per annum equal to
the Floating Rate. So long as any Event of Default under this Agreement has
occurred and is continuing, each Floating Rate Loan shall bear interest on
the outstanding principal amount thereof, for each day from the date such
Floating Rate is made until it becomes due, at a rate per annum equal to Two
Percent (2%) over and above the Floating Rate. Such interest shall be
payable monthly in arrears on the last day of each month commencing on the
first such date after such Floating Rate Loan is made, and at the maturity
of the Notes (whether by reason of acceleration or otherwise). From and
after the maturity of the Notes, whether by reason of acceleration or
otherwise, each Floating Rate Loan shall bear interest, payable on demand,
for each day until paid at a rate per annum equal to Two Percent (2%) over
and above the Floating Rate.
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(b) So long as no Event of Default under this Agreement has occurred
and is continuing, each LIBOR Loan shall bear interest on the outstanding
principal amount thereof for each Interest Period applicable thereto at a
rate per annum equal to the applicable LIBOR Rate. So long as any Event of
Default under this Agreement has occurred and is continuing, each LIBOR Loan
shall bear interest on the outstanding principal amount thereof for each
Interest Period applicable thereto at a rate per annum equal to Two Percent
(2%) over and above the applicable LIBOR Rate. Interest shall be payable
for each Interest Period on the last day thereof, unless the duration of
such Interest Period exceeds three (3) months, in which case such interest
shall be payable at the end of the first three (3) months of such Interest
Period and on the last day of such Interest Period, and at the maturity of
the Notes (whether by reason of acceleration or otherwise). From and after
the maturity of the Notes, whether by reason of acceleration or otherwise,
each LIBOR Loan shall bear interest, payable on demand, for each day until
paid, at a rate per annum equal to Two Percent (2%) over and above the
higher of (i) the LIBOR Rate for the immediately preceding Interest Period
applicable to such LIBOR Loan or (ii) the Floating Rate.
(c) The Agent shall determine each interest rate applicable to the
Loans hereunder and its determination thereof shall be conclusive in the
absence of manifest error.
2.06 Computation of Interest. Interest on Floating Rate Loans
hereunder shall be computed on the basis of a year of 360 days and paid for
the actual number of days elapsed (including the first day but excluding the
last day). Interest on LIBOR Loans shall be computed on the basis of a year
of 360 days and paid for the actual number of days elapsed, calculated as to
each Interest Period from and including the first day thereof to but
excluding the last day thereof.
2.07 Fees. (a) Contemporaneously with the execution of this
Agreement, Borrower shall pay to the Agent for the account of each Bank a
nonrefundable upfront fee in an amount equal to .025% of the amount of such
Bank's Revolving Credit Commitment.
(b) From and including the date of this Agreement to but excluding the
last day of the Revolving Credit Period, Borrower shall pay to the Agent for
the account of each Bank a nonrefundable commitment fee on the unused
portion of the Revolving Credit Commitment of such Bank (determined by
subtracting the aggregate principal amount of outstanding Loans made by such
Bank to Borrower from such Bank's Revolving Credit Commitment) at the rate
of One-Eighth of One Percent (1/8%) per annum. Said commitment fee shall be
(i) calculated on a daily basis, (ii) payable quarterly in arrears on each
March 31, June 30, September 30 and December 31 during the Revolving Credit
Period commencing December 31, 2000, and on the last day of the Revolving
Credit Period and (iii) calculated on an actual day, 360-day year basis.
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(c) Borrower agrees to pay the Agent for its own account certain fees
in the amounts set forth in a letter agreement between Borrower and the
Agent dated October 19, 2000, as the same may from time to time be amended,
modified, extended, renewed or restated.
2.08 Prepayments. (a) Borrower may, upon notice to the Agent
specifying that it is paying the Floating Rate Loans, pay without penalty or
premium the Floating Rate Loans in whole at any time or in part from time to
time, by paying the principal amount to be paid. Each such optional payment
shall be applied to pay the Floating Rate Loans of the several Banks in
proportion to their respective Pro Rata Shares.
(b) Borrower may, upon at least three (3) Eurodollar Business Day's
notice to the Agent specifying that it is paying the LIBOR Loans, pay the
LIBOR Loans to which a given Interest Period applies, in whole, or in part
in amounts aggregating $2,500,000.00 or any larger multiple of $500,000.00,
by paying the principal amount to be paid together with all accrued and
unpaid interest thereon to and including the date of payment and any funding
losses and other amounts payable under Section 2.10; provided, however, that
in no event may Borrower make a partial payment of LIBOR Loans which results
in the total outstanding LIBOR Loans with respect to which a given Interest
Period applies being greater than $0.00 but less than $2,500,000.00. Each
such optional payment shall be applied to pay the LIBOR Loans of the several
Banks in proportion to their respective Pro Rata Shares.
(c) Upon receipt of a notice of payment pursuant to this Section, the
Agent shall promptly notify each Bank of the contents thereof and of such
Bank's Pro Rata Share of such payment and such notice shall not thereafter
be revocable by Borrower.
2.09 General Provisions as to Payments. Borrower shall make each
payment of principal of, and interest on, the Loans and of fees and all
other amounts payable by Borrower under this Agreement, not later than 12:00
noon (St. Louis time) on the date when due and payable, without condition or
deduction for any counterclaim, defense, recoupment or setoff, in Federal or
other funds immediately available in St. Louis, Missouri, to the Agent at
its address referred to in Section 8.05. All payments received by the Agent
after 12:00 noon (St. Louis time) shall be deemed to have been received by
the Agent on the next succeeding Domestic Business Day. The Agent will
distribute to each Bank in immediately available funds its Pro Rata Share of
each such payment received by the Agent for the account of the Banks by 2:00
p.m. (St. Louis time) on the day of receipt of such payment by the Agent if
such payment is received by the Agent from Borrower by 12:00 noon (St. Louis
time) on such day or by 12:00 noon (St. Louis time) on the next succeeding
Domestic Business Day if such payment is received by the Agent from Borrower
after 12:00 noon (St. Louis time) on such day. Any such payment owed by the
Agent to any Bank which is not paid within the applicable time period shall
bear
Page 50
interest until paid (payable by the Agent) at the Fed Funds Base Rate.
Whenever any payment of principal of, or interest on, the Loans or of fees
shall be due on a day which is not a Domestic Business Day, the date for
payment thereof shall be extended to the next succeeding Domestic Business
Day. If the date for any payment of principal is extended by operation of
law or otherwise, interest thereon, at the then applicable rate, shall be
payable for such extended time.
2.10 Funding Losses. Notwithstanding any provision contained in this
Agreement to the contrary, (a) if Borrower makes any payment of principal
with respect to any LIBOR Loan (pursuant to Sections 2 or 6 or otherwise) on
any day other than the last day of the Interest Period applicable thereto,
or if Borrower fails to borrow or pay any LIBOR Loan after notice has been
given by Borrower to the Agent in accordance with Section 2.02, 2.04, 2.08
or otherwise, Borrower shall reimburse each Bank on demand for any resulting
losses and expenses incurred by it, including, without limitation, any
losses incurred in obtaining, liquidating or employing deposits from third
parties but excluding any loss of margin for the period after any such
payment, provided that such Bank shall have delivered to Borrower a
certificate setting forth in reasonable detail the calculation of the amount
of such losses and expenses, which calculation shall be conclusive in the
absence of manifest error.
2.11 Basis for Determining Interest Rate Inadequate or Unfair. If
with respect to any Interest Period:
(a) deposits in U.S. Dollars (in the applicable amounts) are not
being offered to any Bank in the relevant market for such Interest
Period, or
(b) any Bank determines in good faith that the LIBOR Rate as
determined pursuant to the definition thereof will not adequately
and fairly reflect the cost to such Bank of maintaining or funding
the LIBOR Loans for such Interest Period,
such Bank shall forthwith give notice thereof to the Agent and Borrower
which notice shall set forth in detail the basis for such notice, whereupon
until such Bank notifies the Agent and Borrower that the circumstances
giving rise to such suspension no longer exist, (i) the LIBOR Rate shall not
be available to Borrower as an interest rate option on any Loans made by
such Bank and (ii) all of the then outstanding LIBOR Loans made by such Bank
shall automatically convert to Floating Rate Loans on the last day of the
then current Interest Period applicable to each such LIBOR Loan. Interest
accrued on each such LIBOR Loan prior to any such conversion shall be due
and payable on the date of such conversion.
2.12 Illegality. If, after the date of this Agreement, the adoption
of any applicable law, rule or regulation, or any change therein, or any
change in the interpretation or administration thereof by any
Page 51
governmental or regulatory authority, central bank or comparable agency
charged with the interpretation or administration thereof, or compliance by
any Bank with any request or directive (whether or not having the force of
law) of any such governmental or regulatory authority, central bank or
comparable agency (a "Regulatory Change") shall make it unlawful or
impossible for any Bank to make, maintain or fund its LIBOR Loans to
Borrower, such Bank shall forthwith give notice thereof to the Agent and
Borrower. Upon receipt of such notice, Borrower shall convert all of its
then outstanding LIBOR Loans from such Bank on either (a) the last day of
the then current Interest
Period applicable to such LIBOR Loan if such Bank may lawfully continue to
maintain and fund such LIBOR Loan to such day or (b) immediately if such
Bank may not lawfully continue to fund and maintain such LIBOR Loan to such
day, to a Floating Rate Loan in an equal principal amount. Interest accrued
on each such LIBOR Loan prior to any such conversion shall be due and
payable on the date of such conversion together with any funding losses and
other amounts due under Section 2.10.
2.13 Increased Cost. (a) If (i) Regulation D or (ii) a Regulatory
Change:
(A) shall subject any Bank to any tax, duty or other charge
with respect to its LIBOR Loans, its Note or its obligation to make
LIBOR Loans, or shall change the basis of taxation of payments to
any Bank of the principal of or interest on its LIBOR Loans or any
other amounts due under this Agreement in respect of its LIBOR
Loans or its obligation to make LIBOR Loans (except for taxes on or
changes in the rate of tax on the overall net income of such Bank); or
(B) shall impose, modify or deem applicable any reserve
(including, without limitation, any reserve imposed by the Board of
Governors of the Federal Reserve System), special deposit, capital
or similar requirement against assets of, deposits with or for the
account of, or credit extended or committed to be extended by,
any Bank or shall, with respect to any Bank impose, modify or
deem applicable any other condition affecting such Bank's LIBOR
Loans, such Bank's Note or such Bank's obligation to make LIBOR
Loans;
and the result of any of the foregoing is to increase the cost to (or in the
case of Regulation D, to impose a cost on or increase the cost to) such Bank
of making or maintaining any LIBOR Loan, or to reduce the amount of any sum
received or receivable by such Bank under this Agreement or under its Note
with respect thereto, by an amount deemed by such Bank to be material, and
if such Bank is not otherwise fully compensated for such increase in cost or
reduction in amount received or receivable by virtue of the inclusion of the
reference to "LIBOR Reserve Percentage" in the calculation of the LIBOR
Rate, then upon notice by such Bank to the Agent and Borrower, which notice
Page 52
shall set forth such Bank's supporting calculations and the details of the
Regulatory Change, Borrower shall pay such Bank, as additional interest,
such additional amount or amounts as will compensate such Bank for such
increased cost or reduction. The determination by any Bank under this
Section of the additional amount or amounts to be paid to it hereunder shall
be conclusive in the absence of manifest error. In determining such amount
or amounts, the Banks may use any reasonable averaging and attribution
methods.
(b) If any Bank demands compensation under Section 2.13(a) above,
Borrower may at any time, upon at least three (3) Eurodollar Business Day's
prior notice to such Bank, convert its then outstanding LIBOR Loans to
Floating Rate Loans in an equal principal amount. Interest accrued on each
such LIBOR Loan prior to any such conversion shall be due and payable on the
date of such conversion together with any funding losses and other amounts
due under Section 2.10 and this Section 2.13.
2.14 Floating Rate Loans Substituted for Affected LIBOR Loans. If
notice has been given by a Bank pursuant to Sections 2.11 or 2.12 or by
Borrower pursuant to Section 2.13 requiring LIBOR Loans of any Bank to be
repaid, then, unless and until such Bank notifies the Agent and Borrower
that the circumstances giving rise to such repayment no longer apply, all
Loans which would otherwise be made by such Bank to Borrower as LIBOR Loans
shall be made instead as Floating Rate Loans. Such Bank shall promptly
notify the Agent and Borrower if and when the circumstances giving rise to
such repayment no longer apply.
2.15 Capital Adequacy. If, after the date of this Agreement, any Bank
shall have determined in good faith that a Regulatory Change has occurred
which has or will have the effect of reducing the rate of return on such
Bank's capital in respect of its obligations hereunder to a level below that
which such Bank could have achieved but for such adoption, change or
compliance (taking into consideration such Bank's policies with respect to
capital adequacy), then from time to time Borrower shall pay to such Bank
upon demand such additional amount or amounts as will compensate such Bank
for such reduction. All determinations made in good faith by such Bank of
the additional amount or amounts required to compensate such Bank in respect
of the foregoing shall be conclusive in the absence of manifest error. In
determining such amount or amounts, such Bank may use any reasonable
averaging and attribution methods.
2.16 Survival of Indemnities. All indemnities and all provisions
relating to reimbursement to the Banks of amounts sufficient to protect the
yield to the Banks with respect to the Loans, including, without limitation,
Sections 2.10, 2.13 and 2.15 hereof, shall survive the payment of the Notes
and the other Borrower's Obligations and the expiration or termination of
this Agreement. Notwithstanding the foregoing, if any Bank fails to notify
Page 53
Borrower of any event which will entitle such Bank to compensation pursuant
to Sections 2.10, 2.13 and/or 2.15 hereof within one hundred eighty (180)
days after such Bank obtains knowledge of such event, then such Bank shall
not be entitled to any compensation from Borrower for any loss, expense,
increased cost and/or reduction of return arising from such event.
2.17 Discretion of Banks as to Manner of Funding. Notwithstanding any
provision contained in this Agreement to the contrary, each Bank shall be
entitled to fund and maintain its funding of all or any part of its LIBOR
Loans in any manner it elects, it being understood, however, that for
purposes of this Agreement all determinations hereunder (including, without
limitation, the determination of each Bank's funding losses and expenses
under Section 2.10) shall be made as if such Bank had actually funded and
maintained each LIBOR Loan through the purchase of deposits having a
maturity corresponding to the maturity of the applicable Interest Period
relating to the applicable LIBOR Loan and bearing an interest rate equal to
the applicable LIBOR Base Rate.
2.18 Sharing of Payments. The Banks agree among themselves that, in
the event that any Bank shall directly or indirectly obtain any payment
(whether voluntary, involuntary, through the exercise of any right of set-
off, banker's lien or counterclaim, through the realization, collection,
sale or liquidation of any collateral or otherwise) on account of or in
respect of any of the Loans or any of the other Borrower's Obligations in
excess of its Pro Rata Share of all such payments, such Bank shall
immediately purchase from the other Banks participations in the Loans or
other Borrower's Obligations owed to such other Banks in such amounts, and
make such other adjustments from time to time, as shall be equitable to the
end that the Banks share such payment ratably in accordance with their
respective Pro Rata Shares of the outstanding Loans and other Borrower's
Obligations. The Banks further agree among themselves that if any such
excess payment to a Bank shall be rescinded or must otherwise be restored,
the other Banks which shall have shared the benefit of such payment shall,
by repurchase of participation theretofore sold, or otherwise, return its
share of that benefit to the Bank whose payment shall have been rescinded or
otherwise restored. Borrower agrees that any Banks so purchasing a
participation in the Loans or other Borrower's Obligations to the other
Banks may exercise all rights of set-off, banker's lien and/or counterclaim
as fully as if such Banks were a holder of such Loan or other Borrower's
Obligations in the amount of such participation. If under any applicable
bankruptcy, insolvency or other similar law any Bank receives a secured
claim in lieu of a set-off to which this Section 2.18 would apply, such
Banks shall, to the extent practicable, exercise their rights in respect of
such secured claim in a manner consistent with the rights of the Banks
entitled under this Section 2.18 to share in the benefits of any recovery of
such secured claim.
Page 54
2.19 Substitution of Bank. If (a) the obligation of any Bank to make
LIBOR Loans has been suspended pursuant to Section 2.11 or (b) any Bank has
demanded compensation under Sections 2.13 and/or 2.15 (in each case, an
"Affected Bank"), Borrower shall have the right, with the assistance of the
Agent, to seek a mutually satisfactory substitute bank or banks (which may
be one or more of the Banks) (the "Purchasing Bank" or "Purchasing Banks")
to purchase the Note and assume the Revolving Credit Commitment of such
Affected Bank. The Affected Bank shall be obligated to sell its Note and
assign its Revolving Credit Commitment to such Purchasing Bank or Purchasing
Banks within fifteen (15) days after receiving notice from Borrower
requiring it to do so, at an aggregate price equal to the outstanding
principal amount thereof plus unpaid interest accrued thereon up to but
excluding the date of sale. In connection with any such sale, and as a
condition thereof, Borrower shall pay to the Affected Bank the sum of (a)
all fees accrued for its account under this Agreement to but excluding the
date of such sale, (b) the amount of any compensation which would be due to
the Affected Bank under Section 2.10 if Borrower had prepaid the outstanding
LIBOR Loans of the Affected Bank on the date of such sale and (c) any
additional compensation accrued for its account under Sections 2.13 and/or
2.15 to but excluding said date. Upon such sale, (a) the Purchasing Bank or
Purchasing Banks shall assume the Affected Bank's Revolving Credit
Commitment and the Affected Bank shall be released from its obligations
under this Agreement to a corresponding extent and (b) the Affected Bank, as
assignor, such Purchasing Bank, as assignee, Borrower and the Agent shall
enter into an Assignment and Assumption Agreement in accordance with Section
8.10(c), whereupon such Purchasing Bank shall be a Bank party to this
Agreement, shall be deemed to be an Assignee under this Agreement and shall
have all the rights and obligations of a Bank with a Revolving Credit
Commitment equal to its ratable share of the Revolving Credit Commitment of
the Affected Bank. In connection with any assignment pursuant to this
Section, Borrower shall pay to the Agent the administrative fee of $3,500.00
for processing such assignment referred to in Section 8.10(c). Upon the
consummation of any sale pursuant to this Section 2.19, the Affected Bank,
the Agent and the Borrower shall make appropriate arrangements so that, if
required, each Purchasing Bank receives a new Note.
2.20 Taxes.
(a) Any and all payments by Borrower to or for the account of any Bank
or the Agent under any Transaction Document shall be made free and clear of
and without deduction for any and all present or future taxes, duties,
levies, imposts, deductions, charges or withholdings, and all liabilities
with respect thereto, excluding, in the case of each Bank and the Agent,
taxes imposed on or measured by its net income, and franchise taxes imposed
on it, by the jurisdiction under the laws of which such Bank or the Agent
(as the case may be) is organized or any political subdivision thereof (all
such non-excluded taxes, duties, levies, imposts, deductions,
Page 55
charges, withholdings and liabilities being hereinafter referred to as
"Taxes"). If Borrower shall be required by law to deduct any Taxes from or
in respect of any sum payable under any Transaction Document to any Bank or
the Agent, (i) the sum payable shall be increased as necessary so that after
making all required deductions (including deductions applicable to
additional sums payable under this Section 2.20(a)) such Bank or the Agent
(as the case may be) receives an amount equal to the sum it would have
received had no such deduction of Taxes been made, (ii) Borrower shall make
such deductions, (iii) Borrower shall pay the full amount deducted to the
relevant taxation authority or other authority in accordance with applicable
law and (iv) Borrower shall furnish to the Agent (who shall forward the same
to the applicable Bank), at its address referred to in Section 8.05, the
original or a certified copy of a receipt evidencing payment thereof.
(b) In addition, Borrower agrees to pay any present or future stamp or
documentary taxes and any other excise or property taxes, or charges or
similar levies which arise from any payment made under any of the
Transaction Documents or from the execution or delivery of, or otherwise
with respect to, any of the Transaction Documents (hereinafter referred to
as "Other Taxes").
(c) Borrower agrees to indemnify each Bank and the Agent for the full
amount of Taxes or Other Taxes, respectively (including, without limitation,
any Taxes or Other Taxes imposed or asserted by any jurisdiction on amounts
payable under this Section 2.20), paid by such Bank or the Agent (as the
case may be) and any liability (including penalties, interest and expenses)
arising therefrom or with respect thereto. This indemnification shall be
made within fifteen (15) days from the date such Bank or the Agent (as the
case may be) makes demand therefor, accompanied by a certificate of such
Bank or the Agent (as the case may be) setting forth in reasonable detail
its computation of the amount or amounts to be paid to it hereunder.
(d) The provisions of this Section 2.20 shall survive any expiration
or termination of this Agreement and the payment of the Notes and the other
Borrower's Obligations.
SECTION 3. PRECONDITIONS TO LOANS.
3.01 Initial Loans. Notwithstanding any provision contained in this
Agreement to the contrary, none of the Banks shall have any obligation to
make the initial Loans under this Agreement unless the Agent shall have
first received:
(a) this Agreement and the Notes, each executed by a duly
authorized officer of Borrower;
Page 56
(b) a copy of resolutions of the Board of Directors of Borrower,
duly adopted, which authorize the execution, delivery and
performance of this Agreement, the Notes and the other
Transaction Documents, certified by the Secretary of Borrower;
(c) a copy of the Articles of Incorporation of Borrower,
including any amendments thereto, certified by the Secretary of
Borrower;
(d) a copy of the By-Laws of Borrower, including any
amendments thereto, certified by the Secretary of Borrower;
(e) an incumbency certificate, executed by the Secretary of
Borrower, which shall identify by name and title and bear the
signatures of all of the officers of Borrower executing any of the
Transaction Documents;
(f) a certificate of corporate good standing of Borrower issued
by the Secretary of State of the State of Missouri;
(g) an opinion of the General Counsel of Borrower in form and
substance satisfactory to the Agent and each of the Banks;
(h) the Notice of Borrowing required by Section 2.02;
(i) evidence satisfactory to the Agent that that certain Loan
Agreement dated as of October 22, 1999, by and among
Borrower, the banks party thereto and Firstar Bank, N.A., as agent
for such banks, as amended by that certain First Amendment to
Loan Agreement dated as of October 20, 2000 (as so amended, the
"Existing Loan Agreement") has been terminated and any existing
indebtedness of Borrower thereunder has been paid in full; and
(j) such other agreements, documents, instruments and
certificates as the Agent or any Bank may reasonably request.
3.02 All Loans. Notwithstanding any provision contained in this
Agreement to the contrary, none of the Banks shall have any obligation to
make any Loan under this Agreement unless:
(a) the Agent shall have received a Notice of Borrowing for
such Loan as required by Section 2.02;
(b) both immediately before and immediately after giving effect
to such Loan, no Default or Event of Default under this Agreement
shall have occurred and be continuing;
(c) no material adverse change in the properties, assets,
liabilities, business, operations, prospects, income or condition
(financial or otherwise) of Borrower and its Subsidiaries taken as a
Page 57
whole shall have occurred since the date of this Agreement and be
continuing; and
(d) all of the representations and warranties made by Borrower
in this Agreement and/or in any of the other Transaction
Documents shall be true and correct in all material respects on and
as of the date of such Loan as if made on and as of the date of
such Loan (and for purposes of this Section 3.02(d), the
representations and warranties made by Borrower in Section 4.04
shall be deemed to refer to the most recent financial statements of
Borrower delivered to the Banks pursuant to Section 5.01(a)).
Each request for a Loan by Borrower under this Agreement shall be
deemed to be a representation and warranty by Borrower on the date of such
Loan as to the facts specified in clauses (b), (c) and (d) of this Section
3.02.
SECTION 4. REPRESENTATIONS AND WARRANTIES.
Borrower hereby represents and warrants to the Agent and each Bank
that:
4.01 Corporate Existence and Power. Borrower: (a) is duly
incorporated, validly existing and in good standing under the laws of the
State of Missouri; (b) has all requisite corporate powers required to carry
on its business as now conducted; (c) has all requisite governmental and
regulatory licenses, authorizations, consents and approvals required to
carry on its business as now conducted, except such licenses,
authorizations, consents and approvals the failure to have could not
reasonably be expected to have a Material Adverse Effect; and (d) is
qualified to transact business as a foreign corporation in, and is in good
standing under the laws of, all states in which it is required by applicable
law to maintain such qualification and good standing except for those states
in which the failure to qualify or maintain good standing could not
reasonably be expected to have a Material Adverse Effect.
4.02 Corporate Authorization. The execution, delivery and performance
by Borrower of this Agreement, the Notes and the other Transaction Documents
are within the corporate powers of Borrower and have been duly authorized by
all necessary corporate and other action on the part of Borrower.
4.03 Binding Effect. This Agreement, the Notes and the other
Transaction Documents have been duly executed and delivered by Borrower and
constitute the legal, valid and binding obligations of Borrower enforceable
against Borrower in accordance with their respective terms, except as such
enforceability may be limited by bankruptcy, insolvency or other similar
laws affecting creditors' rights generally and by general principles of
equity (regardless of whether such enforceability is considered in a
proceeding in equity or at law).
Page 58
4.04 Financial Statements. Borrower has furnished the Agent and each
of the Banks with the following financial statements: (a) consolidated and
consolidating balance sheets and statements of income, retained earnings and
cash flows of Borrower and its Subsidiaries as of and for the fiscal year of
Borrower ended September 30, 1999, all certified by Borrower's independent
certified public accountants, which financial statements have been prepared
in accordance with GAAP consistently applied; and (b) unaudited consolidated
and consolidating balance sheets and statements of income, retained earnings
and cash flows of Borrower and its Subsidiaries as of and for the fiscal
quarter of Borrower ended June 30, 2000, certified by the chief financial
officer of Borrower as being true, correct and complete in all material
respects and as being prepared in accordance with GAAP consistently applied.
Borrower further represents and warrants to the Agent and each Bank that (a)
said balance sheets and their accompanying notes (if any) fairly present the
condition of Borrower and its Subsidiaries as of the dates thereof, (b)
there has been no material adverse change in the condition or operation,
financial or otherwise, of Borrower and its Subsidiaries taken as a whole
since June 30, 2000, and (c) neither Borrower nor any of its Subsidiaries
had any direct or contingent liabilities which were not disclosed on said
financial statements or the notes thereto (to the extent such disclosure is
required by GAAP).
4.05 Compliance With Other Instruments; None Burdensome. None of the
execution and delivery by Borrower of the Transaction Documents, the
performance by Borrower of its obligations under the Transaction Documents
or the borrowing and/or repayment of Loans by Borrower under this Agreement
will conflict with, or result in a breach of the terms, conditions or
provisions of, or constitute a default under or result in any violation of,
any law, rule, regulation, order, writ, judgment, injunction, decree or
award binding on Borrower, any of the provisions of the Articles of
Incorporation or By-Laws of Borrower or any of the provisions of any
indenture, agreement, document, instrument or undertaking to which Borrower
is a party or subject, or by which Borrower or any property or assets of
Borrower is bound, or result in the creation or imposition of any security
interest, lien or encumbrance on any of the property or assets of Borrower
pursuant to the terms of any such indenture, agreement, document, instrument
or undertaking. No order, consent, approval, license, authorization or
validation of, or filing, recording or registration with, or exemption by,
any governmental, regulatory, administrative or public body,
instrumentality, authority, agency or official, or any subdivision thereof,
or any other Person is required to authorize, or is required in connection
with, (a) the execution, delivery or performance of, or the legality,
validity, binding effect or enforceability of, any of the Transaction
Documents and/or (b) the borrowing and/or repayment of Loans by Borrower
under this Agreement.
4.06 Regulation U. Borrower is not engaged principally, or as one of
its important activities, in the business of extending credit for the
Page 59
purpose of purchasing or carrying margin stock (within the meaning of
Regulation U of The Board of Governors of the Federal Reserve System, as
amended) and no part of the proceeds of any Loan will be used, whether
directly or indirectly, and whether immediately, incidentally or ultimately
(a) to purchase or carry margin stock or to extend credit to others for the
purpose of purchasing or carrying margin stock, or to refund or repay
indebtedness originally incurred for such purpose or (b) for any purpose
which entails a violation of, or which is inconsistent with, the provisions
of any of the Regulations of The Board of Governors of the Federal Reserve
System, including, without limitation, Regulations U, T or X thereof, as
amended. If requested by the Agent or any Bank, Borrower shall furnish to
the Agent and each Bank a statement in conformity with the requirements of
Federal Reserve Form U-1 referred to in Regulation U.
4.07 Investment Company Act of 1940; Public Utility Holding Company
Act of 1935. Borrower is not an "investment company" as that term is
defined in, and is not otherwise subject to regulation under, the Investment
Company Act of 1940, as amended. Borrower is not a "holding company" as
that term is defined in, and is not otherwise subject to regulation under,
the Public Utility Holding Company Act of 1935, as amended.
4.08 No Default. No Default or Event of Default under this Agreement
has occurred and is continuing. There is no existing default or event of
default under or with respect to any indenture, contract, agreement, lease
or other instrument to which Borrower is a party or by which any property or
assets of Borrower is bound or affected, a default under which could
reasonably be expected to have a Material Adverse Effect. Borrower has and
is in full compliance with and in good standing with respect to all
governmental permits, licenses, certificates, consents and franchises
necessary to continue to conduct its business as previously conducted by it
and to own or lease and operate its properties and assets as now owned or
leased by it, the failure to have or noncompliance with which could
reasonably be expected to have a Material Adverse Effect. Borrower is not
in violation of any applicable statute, law, rule, regulation or ordinance
of the United States of America, of any state, city, town, municipality,
county or of any other jurisdiction, or of any agency thereof, a violation
of which could reasonably be expected to have a Material Adverse Effect.
SECTION 5. COVENANTS.
5.01 Covenants of Borrower. Borrower covenants and agrees that, so
long as any Bank has any obligation to make any Loan under this Agreement
and/or any of the Borrower's Obligations remain unpaid:
(a) Information. Borrower will deliver or cause to be delivered to
the Agent with sufficient copies for each Bank:
Page 60
(i) within one hundred (100) days after the end of each fiscal
year of Borrower: (A) a consolidated balance sheet of Borrower and
its Subsidiaries as of the end of such fiscal year and the related
consolidated statements of income, retained earnings and cash
flows for such fiscal year, setting forth in each case, in
comparative form, the figures for the previous fiscal year, all such
financial statements to be prepared in accordance with GAAP
consistently applied and reported on by and accompanied by the
unqualified opinion of independent certified public accountants
selected by Borrower and reasonably acceptable to the Required
Banks; provided, however, that delivery to the Agent of copies of
the Annual Report on Form 10-K of Borrower for such fiscal year
filed with the Securities and Exchange Commission shall be
deemed to satisfy the requirements of this Section 5.01(a)(i);
(ii) within fifty (50) days after the end of the first three (3)
fiscal quarters of each fiscal year of Borrower, a consolidated
balance sheet of Borrower and its Subsidiaries as of the end of
such fiscal quarter and the related consolidated statements of
income, retained earnings and cash flows for such fiscal quarter
and for the portion of Borrower's fiscal year ended at the end of
such fiscal quarter, setting forth in each case in comparative form,
the figures for the corresponding fiscal quarter and the
corresponding portion of Borrower's previous fiscal year, all in
reasonable detail and satisfactory in form to the Required Banks
and certified (subject to normal year-end adjustments and absence
of footnote disclosures) as to fairness of presentation, consistency
and compliance with GAAP by the chief financial officer of
Borrower; provided, however, that delivery to the Agent of copies
of the Quarterly Report on Form 10-Q of Borrower for such fiscal
quarter filed with the Securities and Exchange Commission shall be
deemed to satisfy the requirements of this Section 5.01(a)(ii);
(iii) simultaneously with the delivery of each set of financial
statements referred to in Sections 5.01(a)(i) and (ii) above, a
certificate of an authorized officer of Borrower in the form attached
hereto as Exhibit B and incorporated herein by reference (A)stating
whether there exists on the date of such certificate any Default or
Event of Default and, if any Default or Event of Default then exists,
setting forth the details thereof and the action which Borrower is
taking or proposes to take with respect thereto and (B) certifying
that all of the representations and warranties made by Borrower in
this Agreement and/or in any other Transaction Document are true and
correct in all material respects on and as of the date of such
certificate as if made on and as of the date of such certificate; and
(iv) with reasonable promptness, such further information
regarding the business, affairs and financial condition of Borrower
as the Agent or any Bank may from time to time reasonably
request.
Page 61
(b) Corporate Existence. Borrower will do all things necessary to (i)
preserve and keep in full force and effect at all times its corporate
existence and all permits, licenses, franchises and other rights material to
its business and (ii) be duly qualified to do business and be in good
standing in all jurisdictions where the nature of its business or its
ownership of property or assets requires such qualification except for those
jurisdictions in which the failure to qualify or be in good standing could
not reasonably be expected to have a Material Adverse Effect.
(c) Compliance with Laws, Regulations, Etc. Borrower will comply with
any and all laws, ordinances and governmental and regulatory rules and
regulations to which Borrower is subject and obtain any and all licenses,
permits, franchises and other governmental and regulatory authorizations
necessary to the ownership of its properties or assets or to the conduct of
its business, which violation or failure to obtain could reasonably be
expected to have a Material Adverse Effect.
(d) Further Assurances. Borrower will execute and deliver to Agent
and each Bank, at any time and from time to time, any and all further
agreements, documents and instruments, and take any and all further actions
which may be required under applicable law, or which the Agent or any Bank
may from time to time reasonably request, in order to effectuate the
transactions contemplated by this Agreement and the other Transaction
Documents.
(e) Consolidation or Merger. Borrower will not directly or indirectly
merge or consolidate with or into any other Person.
5.02 Use of Proceeds. Borrower covenants and agrees that (a) the
proceeds of the Loans will be used solely for the working capital and
general corporate purposes of Borrower, (b) no part of the proceeds of any
Loan will be used in violation of any applicable law, rule or regulation and
(c) no part of the proceeds of any Loan will be used, whether directly or
indirectly, and whether immediately, incidentally or ultimately (i) to
purchase or carry margin stock or to extend credit to others for the purpose
of purchasing or carrying margin stock, or to refund or repay indebtedness
originally incurred for such purpose or (ii) for any purpose which entails a
violation of, or which is inconsistent with, the provisions of any of the
Regulations of The Board of Governors of the Federal Reserve System,
including, without limitation, Regulations U, T or X thereof, as amended.
SECTION 6. EVENTS OF DEFAULT.
If any of the following (each of the following herein sometimes called
an "Event of Default") shall occur and be continuing:
6.01 Borrower shall fail to pay any of the Borrower's Obligations
constituting principal due under the Loans as and when the same shall become
due and payable, whether by reason of demand, maturity, acceleration or
otherwise;
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6.02 Borrower shall fail to pay any of the Borrower's Obligations
constituting interest, fees or other amounts (other than principal due under
the Loans) within five (5) Domestic Business Days after the date the same
shall first become due and payable, whether by reason of demand, maturity,
acceleration or otherwise;
6.03 Any representation or warranty made by Borrower in this
Agreement, in any other Transaction Document or in any certificate,
agreement, instrument or written statement furnished or made or delivered
pursuant hereto or thereto or in connection herewith or therewith, shall
prove to have been untrue or incorrect in any material respect when made or
effected;
6.04 Borrower shall fail to perform or observe any term, covenant or
provision contained in Section 5.01(e) or Section 5.02;
6.05 Borrower shall fail to perform or observe any other term,
covenant or provision contained in this Agreement (other than those
specified in Sections 6.01, 6.02 or 6.03 above) and any such failure shall
remain unremedied for thirty (30) days after the earlier of (i) written
notice of default is given to Borrower by the Agent or any Bank or (ii) any
officer of Borrower obtaining actual knowledge of such default;
6.06 This Agreement or any of the other Transaction Documents shall at
any time for any reason (other than termination of this Agreement or such
other Transaction Documents, as the case may be, in accordance with its
terms) cease to be in full force and effect or shall be declared to be null
and void by a court of competent jurisdiction, or if the validity or
enforceability thereof shall be contested or denied by Borrower, or if the
transactions completed hereunder or thereunder shall be contested by
Borrower or if Borrower shall deny that it has any further liability or
obligation hereunder or thereunder;
6.07 Borrower shall (i) voluntarily commence any proceeding or file
any petition seeking relief under Title 11 of the United States Code or any
other Federal, state or foreign bankruptcy, insolvency, receivership,
liquidation or similar law, (ii) consent to the institution of, or fail to
contravene in a timely and appropriate manner, any such proceeding or the
filing of any such petition, (iii) apply for or consent to the appointment
of a receiver, trustee, custodian, sequestrator or similar official of
itself or of a substantial part of its property or assets, (iv) file an
answer admitting the material allegations of a petition filed against itself
in any such proceeding, (v) make a general assignment for the benefit of
creditors, (vi) become unable, admit in writing its inability or fail
generally to pay its debts as they become due or (vii) take any corporate or
other action for the purpose of effecting any of the foregoing;
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6.08 An involuntary proceeding shall be commenced or an involuntary
petition shall be filed in a court of competent jurisdiction seeking (i)
relief in respect of Borrower, or of a substantial part of the property or
assets of Borrower, under Title 11 of the United States Code or any other
Federal, state or foreign bankruptcy, insolvency, receivership, liquidation
or similar law, (ii) the appointment of a receiver, trustee, custodian,
sequestrator or similar official of Borrower or of a substantial part of the
property or assets of Borrower or (iii) the winding-up or liquidation of
Borrower, and such proceeding or petition shall continue undismissed for
sixty (60) consecutive days or an order or decree approving or ordering any
of the foregoing shall continue unstayed and in effect for sixty (60)
consecutive days;
6.09 Borrower shall be declared by any Bank to be in default under or
in respect of (i) any other present or future obligation to such Bank,
including, without limitation, any other loan, line of credit, revolving
credit, guaranty or letter of credit reimbursement obligation, or (ii) any
other present or future agreement purporting to convey to such Bank a
security interest in, or a lien or encumbrance upon, upon any property or
assets of Borrower;
6.10 The occurrence of any default or event of default under or within
the meaning of any agreement, document or instrument evidencing, securing,
guaranteeing the payment of or otherwise relating to any indebtedness of
Borrower for borrowed money (other than the Borrower's Obligations) having
an aggregate outstanding principal balance in excess of $5,000,000.00 which
is not cured or waived in writing within any applicable cure or grace
period; or
6.11 Borrower shall have a judgment in an amount in excess of
$5,000,000.00 entered against it by a court having jurisdiction in the
premises and such judgment shall not be appealed in good faith (and
execution of such judgment stayed during such appeal) or satisfied by
Borrower within thirty (30) days after the entry of such judgment;
THEN, and in each such event (other than an event described in Sections
6.07 or 6.08), the Agent may, and if requested in writing by the Required
Banks the Agent shall, declare that the obligations of the Banks to make
Loans under this Agreement have terminated, whereupon such obligations of
the Banks shall be immediately and forthwith terminated, and the Agent may
further, and if requested in writing by the Required Banks the Agent shall
further, declare the entire outstanding principal balance of and all accrued
and unpaid interest on the Notes and all of the other Borrower's Obligations
to be forthwith due and payable, whereupon all of the unpaid principal
balance of and all accrued and unpaid interest on the Notes and all of such
other Borrower's Obligations shall become and be immediately due and
payable, without presentment, demand, protest or further notice of any kind,
all of which are hereby expressly waived by Borrower, and the Agent and the
Banks may exercise any and all other rights and remedies which they may have
under any of the other
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Transaction Documents or under applicable law; provided, however, that upon
the occurrence of any event described in Sections 6.07 or 6.08, the
obligation of the Banks to make Loans under this Agreement under this
Agreement shall automatically terminate and the entire outstanding principal
balance of and all accrued and unpaid interest on the Notes and all of the
other Borrower's Obligations shall automatically become immediately due and
payable, without presentment, demand, protest or further notice of any kind,
all of which are hereby expressly waived by Borrower, and the Agent and the
Banks may exercise any and all other rights and remedies which they may have
under any of the other Transaction Documents or under applicable law.
SECTION 7. AGENT
7.01 Appointment. Firstar Bank, N.A. is hereby appointed by the Banks
as Agent under this Agreement, the Notes and the other Transaction
Documents. The Agent agrees to act as such upon the express conditions
contained in this Agreement.
7.02 Powers. The Agent shall have and may exercise such powers
hereunder as are specifically delegated to the Agent by the terms of this
Agreement and the other Transaction Documents, together with such powers as
are reasonably incidental thereto. The Agent shall have no implied duties
to the Banks, nor any obligation to the Banks to take any action under this
Agreement or any of the other Transaction Documents, except any action
specifically provided by this Agreement or any of the other Transaction
Documents to be taken by the Agent. Without limiting the generality of the
foregoing, the Agent shall not be required to take any action with respect
to any Default or Event of Default, except as expressly provided in Section
6, Section 7.06 and Section 7.14.
7.03 General Immunity. Neither the Agent nor any of its directors,
officers, employees, agents or advisors shall be liable to any of the Banks
for any action taken or not taken by it in connection with this Agreement or
any of the other Transaction Documents (a) with the consent or at the
request of the Required Banks or (b) in the absence of its own gross
negligence or willful misconduct as determined by a court of competent
jurisdiction in a final, nonappealable order.
7.04 No Responsibility for Loans, Recitals, etc. Neither the Agent
nor any of its directors, officers, employees, agents or advisors shall (a)
be responsible for or have any duty to ascertain, inquire into or verify any
recitals, reports, statements, representations or warranties contained in
this Agreement or any of the other Transaction Documents or furnished
pursuant hereto or thereto, (b) except as set forth in Sections 2.02 and
2.09, be responsible for any Loans hereunder, (c) be bound to ascertain or
inquire as to the performance or observance of any of the terms of this
Agreement or any of the
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other Transaction Documents, (d) be responsible for the satisfaction of any
condition specified in Section 3, except receipt of items required to be
delivered to the Agent, (e) be responsible for the validity, effectiveness,
genuineness or enforceability of this Agreement or any of the other
Transaction Documents or (f) be responsible for the creation, attachment,
perfection or priority of any security interests or liens purported to be
granted to the Agent or any Bank pursuant to this Agreement or any of the
other Transaction Documents.
7.05 Right to Indemnity. Notwithstanding any other provision
contained in this Agreement to the contrary, to the extent Borrower fails to
reimburse the Agent pursuant to Section 8.03 or Section 8.04, or if any
Default or Event of Default shall occur under this Agreement, the Banks
shall ratably in accordance with their respective Pro Rata Shares of the
aggregate principal amount of outstanding Loans indemnify the Agent and hold
it harmless from and against any and all liabilities, losses (except losses
occasioned solely by failure of Borrower to make any payments or to perform
any obligations required by this Agreement (excepting those described in
Sections 8.03 and 8.04), the Notes or any of the other Transaction
Documents), costs and/or expenses, including, without limitation, any
liabilities, losses, costs and/or expenses arising from the failure of any
Bank to perform its obligations hereunder or in respect of this Agreement,
and also including, without limitation, reasonable attorneys' fees and
expenses, which the Agent may incur, directly or indirectly, in connection
with this Agreement, the Notes or any of the other Transaction Documents, or
any action or transaction related hereto or thereto; provided only that the
Agent shall not be entitled to such indemnification for any losses,
liabilities, costs and/or expenses resulting from its own gross negligence
or willful misconduct as determined by a court of competent jurisdiction in
a final, nonappealable order. This indemnity shall be a continuing
indemnity, contemplates all liabilities, losses, costs and expenses related
to the execution, delivery and performance of this Agreement, the Notes and
the other Transaction Documents, and shall survive the satisfaction and
payment of the Borrower's Obligations and the termination of this Agreement.
7.06 Action Upon Instructions of Required Banks. The Agent agrees,
upon the written request of the Required Banks, to take any action of the
type specified in this Agreement or any of the other Transaction Documents
as being within the Agent's rights, duties, powers or discretion.
Notwithstanding the foregoing, the Agent shall be fully justified in failing
or refusing to take any action hereunder, unless it shall first be
indemnified to its satisfaction by the Banks pro rata against any and all
liabilities, losses, costs and expenses (including, without limitation,
reasonable attorneys' fees and expenses) which may be incurred by it by
reason of taking or continuing to take any such action, other than any
liability resulting from the Agent's gross negligence or willful misconduct
as determined by a court of competent jurisdiction in a final, nonappealable
order. The Agent shall
Page 66
in all cases be fully protected in acting, or in refraining from acting,
hereunder in accordance with written instructions signed by the Required
Banks, and such instructions and any action taken or failure to act pursuant
thereto shall be binding on all of the Banks and on all holders of the
Notes. In the absence of a request by the Required Banks, the Agent shall
have authority, in its good faith discretion, to take or not to take any
action, unless this Agreement or any of the other Transaction Documents
specifically requires the consent of the Required Banks or of all of the
Banks.
7.07 Employment of Agents and Counsel. The Agent may execute any of
its duties as Agent hereunder by or through employees, agents and attorneys-
in-fact and shall not be answerable to the Banks, except as to money or
securities received by it or its authorized agents, for the default or
misconduct of any such agents or attorneys-in-fact selected by it in good
faith and with reasonable care. The Agent shall be entitled to advice and
opinion of legal counsel concerning all matters pertaining to the duties of
the agency hereby created.
7.08 Reliance on Documents; Counsel. The Agent shall be entitled to
rely upon any note, notice, consent, certificate, affidavit, letter,
telegram, statement, paper or document believed by it to be genuine and
correct and to have been signed or sent by the proper Person or Persons,
and, in respect to legal matters, upon the opinion of legal counsel selected
by the Agent.
7.09 May Treat Payee as Owner. The Agent may deem and treat the payee
of any Note as the owner thereof for all purposes hereof unless and until a
written notice of the assignment or transfer thereof shall have been filed
with the Agent. Any request, authority or consent of any Person who at the
time of making such request or giving such authority or consent is the
holder of any such Note shall be conclusive and binding on any subsequent
holder, transferee or assignee of such Note or of any Note issued in
exchange therefor.
7.10 Agent's Reimbursement. Each Bank agrees to reimburse the Agent
pro rata in accordance with its Pro Rata Share of the aggregate principal
amount of outstanding Loans for (a) any out-of-pocket costs and expenses not
reimbursed by Borrower for which the Agent is entitled to reimbursement by
the Borrower under this Agreement or any of the other Transaction Documents
and (b) for any other out-of-pocket costs and expenses incurred by the Agent
on behalf of the Banks in connection with the preparation, execution,
delivery, amendment, modification, extension, renewal, administration and/or
enforcement of this Agreement and/or any of the other Transaction Documents.
7.11 Rights as a Bank. With respect to its Revolving Credit
Commitment, the Loans made by it and the Note issued to it, Firstar
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Bank, N.A. shall have the same rights and powers hereunder as any Bank and
may exercise the same as though it were not the Agent, and the terms "Bank"
and "Banks" shall, unless the context otherwise indicates, include Firstar
Bank, N.A. in its individual capacity. Firstar Bank, N.A. may accept
deposits from, lend money to, issue letters of credit for the account of and
generally engage in any kind of banking or trust business with the Borrower
and its Subsidiaries and affiliates as if it were not the Agent.
7.12 Independent Credit Decision. Each Bank acknowledges that it has,
independently and without reliance upon the Agent or any other Bank and
based on the financial statements referred to in Section 4.04 and such other
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement and the other Transaction
Documents. Each Bank also acknowledges that it will, independently and
without reliance upon the Agent or any other Bank and based on such
documents and information as it shall deem appropriate at the time, continue
to make its own credit decisions in taking or not taking action under this
Agreement and the other Transaction Documents.
7.13 Resignation of Agent. Subject to the appointment of a successor
Agent, the Agent may resign as Agent for the Banks under this Agreement and
the other Transaction Documents at any time by thirty (30) days' notice in
writing to the Banks and Borrower. Such resignation shall take effect upon
appointment of such successor Agent. Subject to the consent of Borrower
(which consent shall not be unreasonably withheld or delayed), the Required
Banks shall have the right to appoint a successor Agent who shall be a Bank
and who shall be entitled to all of the rights of, and vested with the same
powers as, the original Agent under this Agreement and the other Transaction
Documents. In the event a successor Agent shall not have been appointed
within the thirty (30) day period following the giving of notice by the
Agent, subject to the consent of Borrower (which consent shall not be
unreasonably withheld or delayed), the Agent may appoint its own successor.
Resignation by the Agent shall not affect or impair the rights of the Agent
under Sections 7.05 and 7.10 hereof with respect to all matters preceding
such resignation. Any successor Agent must be a national banking
association or a bank chartered in any State of the United States having a
combined capital and surplus of at least $100,000,000.00.
7.14 Delivery of Documents. The Agent agrees to promptly provide each
Bank with copies of (a) this Agreement and the other Transaction Documents
(including any amendments thereto), (b) any default notices sent by the
Agent to Borrower with respect to this Agreement or any of the other
Transaction Documents, (c) any waivers or consents signed by the Agent or
otherwise sent by the Agent to Borrower with respect to this Agreement or
any of the other Transaction Documents, (d) any notices of default sent by
Borrower to the Agent with respect to this Agreement or any of the other
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Transaction Documents and (e) any requests for any amendments, waivers or
consents sent to the Agent by Borrower with respect to this Agreement or any
of the other Transaction Documents. The Agent agrees to provide each Bank,
within ten (10) Domestic Business Days after written request by such Bank
and at such Bank's expense, a copy of such other information, reports,
certificates and/or other materials prepared by Borrower or otherwise
required by the Transaction Documents and which are in the possession of the
Agent which are reasonably requested by such Bank in writing.
7.15 Duration of Agency. The agency established by Section 7.01
hereof shall continue, and Sections 7.01 through and including this Section
7.15 shall remain in full force and effect, until all of the Borrower's
Obligations shall have been paid in full and this Agreement and the Banks'
Revolving Credit Commitments shall have terminated or expired.
SECTION 8. GENERAL.
8.01 No Waiver. No failure or delay by the Agent or any Bank in
exercising any right, remedy, power or privilege under this Agreement or
under any other Transaction Document shall operate as a waiver thereof; nor
shall any single or partial exercise thereof preclude any other or further
exercise thereof or the exercise of any other right, remedy, power or
privilege. The rights and remedies provided in this Agreement and in the
other Transaction Documents are cumulative and not exclusive of any remedies
provided by law. Nothing herein contained shall in any way affect the right
of the Agent or any Bank to exercise any statutory or common law right of
banker's lien or set-off.
8.02 Right of Set-Off. Upon the occurrence and during the continuance
of any Event of Default, each Bank is hereby authorized at any time and from
time to time, without notice to Borrower (any such notice being expressly
waived by Borrower) and to the fullest extent permitted by law, to set-off
and apply any and all deposits (general or special, time or demand,
provisional or final, but specifically excluding any trust or segregated
accounts) at any time held by such Bank and any and all other indebtedness
at any time owing by such Bank to or for the credit or account of Borrower
against any and all of the Borrower's Obligations irrespective of whether or
not such Bank shall have made any demand under this Agreement or under any
of the other Transaction Documents and although such obligations may be
contingent or unmatured. Each Bank agrees to promptly notify Borrower after
any such set-off and application made by such Bank, provided, however, that
the failure to give such notice shall not affect the validity of such
set-off and application. The rights of the Banks under this Section 8.02
are in addition to any other rights and remedies (including, without
limitation, other rights of set-off) which the Banks may have. Nothing
contained in this Agreement or any other Transaction Document shall impair
the right of any Bank to
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exercise any right of set-off or counterclaim it may have against Borrower
and to apply the amount subject to such exercise to the payment of
indebtedness of Borrower unrelated to this Agreement or the other
Transaction Documents.
8.03 Cost and Expenses. Borrower agrees, whether or not any Loan is
made under this Agreement, to pay or reimburse the Agent and each Bank upon
demand for (a) all out-of-pocket costs and expenses (including, without
limitation, reasonable attorneys' fees and expenses up to a maximum amount
of $3,000.00) incurred by the Agent in connection with the preparation,
documentation, negotiation and/or execution of this Agreement and/or any of
the other Transaction Documents, (b) all recording, filing and search fees
and expenses incurred by the Agent in connection with this Agreement and/or
any of the other Transaction Documents, (c) all out-of-pocket costs and
expenses (including, without limitation, reasonable attorneys' fees and
expenses) incurred by the Agent in connection with the (i) the preparation,
documentation, negotiation and execution of any amendment, modification,
extension, renewal or restatement of this Agreement and/or any of the other
Transaction Documents or (ii) the preparation of any waiver or consent under
this Agreement or under any of the other Transaction Documents and (d) if an
Event of Default occurs, all out-of-pocket costs and expenses (including,
without limitation, reasonable attorneys' fees and expenses) incurred by the
Agent or any Bank in connection with such Event of Default and collection
and other enforcement proceedings resulting therefrom. Borrower further
agrees to pay or reimburse the Agent and each Bank upon demand for any stamp
or other similar taxes which may be payable with respect to the execution,
delivery, recording and/or filing of this Agreement and/or any of the other
Transaction Documents. All of the obligations of Borrower under this
Section 8.03 shall survive the satisfaction and payment of the Borrower's
Obligations and the termination of this Agreement.
8.04 General Indemnity. In addition to the payment of expenses
pursuant to Section 8.03, whether or not the transactions contemplated
hereby shall be consummated, Borrower hereby agrees to defend, indemnify,
pay and hold the Agent and each Bank and any holders of the Notes, and the
officers, directors, employees, agents and affiliates of the Agent and each
Bank and such holders (collectively, the "Indemnitees") harmless from and
against any and all other liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, claims, disbursements, costs and
expenses of any kind or nature whatsoever (including, without limitation,
the reasonable fees and disbursements of counsel for such Indemnitees in
connection with any investigative, administrative or judicial proceeding
commenced or threatened, whether or not such Indemnitees shall be designated
a party thereto), that may be imposed on, incurred by or asserted against
the Indemnitees, in any manner relating to or arising out of this Agreement,
any of the other
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Transaction Documents or any other agreement, document or instrument
executed and delivered by Borrower in connection herewith or therewith, the
statements contained in any commitment letters delivered by the Agent or any
Bank, the agreement of the Banks to make the Loans under this Agreement or
the use or intended use of the proceeds of any Loan under this Agreement
(collectively, the "indemnified liabilities"); provided that (a) Borrower
shall have no obligation to an Indemnitee hereunder with respect to
indemnified liabilities directly and solely resulting from the gross
negligence or willful misconduct of that Indemnitee as determined by a court
of competent jurisdiction in a final, nonappealable order and (b) Borrower
shall have no obligation to indemnify the Agent or any Bank with respect to
disputes between the Agent and any Bank or with respect to disputes among
the Banks. To the extent that the undertaking to indemnify, pay and hold
harmless set forth in the preceding sentence may be unenforceable because it
is violative of any law or public policy, Borrower shall contribute the
maximum portion that it is permitted to pay and satisfy under applicable law
to the payment and satisfaction of all indemnified liabilities incurred by
the Indemnitees or any of them. The provisions of the undertakings and
indemnification set out in this Section 8.04 shall survive satisfaction and
payment of the Borrower's Obligations and the termination of this Agreement.
8.05 Notices. Each notice, request, demand, consent, confirmation or
other communication under this Agreement shall be in writing and delivered
in person or sent by facsimile or registered or certified mail, return
receipt requested and postage prepaid, to the applicable party at its
address or facsimile number set forth on the signature pages hereof, or at
such other address or facsimile number as any party hereto may designate as
its address for communications hereunder by notice so given. Such notices
shall be deemed effective on the day on which delivered or sent if delivered
in person or sent by facsimile (with answerback confirmation received), or
on the fourth (4th) Domestic Business Day after the day on which mailed, if
sent by registered or certified mail.
8.06 Consent to Jurisdiction; Waiver of Jury Trial.
BORROWER IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF ANY
MISSOURI STATE COURT SITTING IN THE CITY OR COUNTY OF ST. LOUIS, MISSOURI OR
ANY UNITED STATES OF AMERICA COURT SITTING IN THE EASTERN DISTRICT OF
MISSOURI, EASTERN DISTRICT, AS THE AGENT MAY ELECT, IN ANY SUIT, ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER
TRANSACTION DOCUMENT. BORROWER HEREBY IRREVOCABLY AGREES THAT ALL CLAIMS IN
RESPECT TO SUCH SUIT, ACTION OR PROCEEDING MAY BE HELD AND DETERMINED IN ANY
OF SUCH COURTS. BORROWER IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY LAW, ANY OBJECTION WHICH BORROWER MAY NOW OR HEREAFTER HAVE TO
THE LAYING OF VENUE OF ANY SUCH SUIT,
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ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT, AND BORROWER FURTHER
IRREVOCABLY WAIVES ANY CLAIM THAT SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN
ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
BORROWER AUTHORIZES THE SERVICE OF PROCESS UPON BORROWER BY REGISTERED MAIL
SENT TO BORROWER AT ITS ADDRESS DETERMINED PURSUANT TO SECTION 8.05.
BORROWER, THE AGENT AND EACH BANK HEREBY IRREVOCABLY WAIVE THE RIGHT TO
TRIAL BY JURY WITH RESPECT TO ANY ACTION IN WHICH BORROWER AND THE AGENT
AND/OR ANY BANK ARE PARTIES RELATING TO OR ARISING OUT OF OR IN CONNECTION
WITH THIS AGREEMENT OR ANY OF THE OTHER TRANSACTION DOCUMENTS.
8.07 Governing Law. This Agreement shall be governed by and construed
in accordance with the substantive laws of the State of Missouri (without
reference to conflict of law principles).
8.08 Amendments and Waivers. Any provision of this Agreement, the
Notes or any of the other Transaction Documents to which Borrower is a party
may be amended or waived if, but only if, such amendment or waiver is in
writing and is signed by Borrower, the Required Banks and the Agent;
provided however, that notwithstanding the foregoing, (a) no such amendment
shall increase the Revolving Credit Commitment of a Bank unless such
amendment is signed by such Bank and (b) no such amendment or waiver shall,
unless signed by each Bank, (i) decrease the Revolving Credit Commitment of
any Bank (other than ratable decreases of the Revolving Credit Commitments
of each Bank effected in accordance with Section 2.01(c)), (ii) extend the
term of the Revolving Credit Period, (iii) reduce the principal amount of or
rate of interest on any Loan or any fees hereunder, (iv) postpone the date
fixed for any payment of principal of or interest on any Loan or any fees
hereunder, (v) waive any Event of Default caused by the failure of Borrower
to pay any principal of and/or interest on any Loan or any fees hereunder
when due, (vi) change the percentage of the Revolving Credit Commitments or
of the aggregate principal amount of Loans which shall be required for the
Banks or any of them to take any action or obligations under this Section or
any other provision of this Agreement, (vii) change the definition of
"Required Banks", (viii) amend Section 2.18 or (ix) amend this Section 8.08.
8.09 References; Headings for Convenience. Unless otherwise specified
herein, all references herein to Section numbers refer to Section numbers of
this Agreement, all references herein to Exhibits "A", "B" and "C" refer to
annexed Xxxxxxxx "X", "X" and "C" which are hereby incorporated herein by
reference and all references herein to Schedule 2.02 refers to annexed
Schedule 2.02 which is hereby incorporated herein by reference. The Section
headings are furnished for the convenience of the parties and are not to be
considered in the construction or interpretation of this Agreement.
Page 72
8.10 Successors and Assigns. (a) Subject to paragraphs (b), (c), (d)
and (e) of this Section 8.10, the provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns. Notwithstanding the foregoing, Borrower
may not assign or otherwise transfer any of its rights or delegate any of
its obligations or duties under this Agreement without the prior written
consent of the Agent and each Bank.
(b) Any Bank may at any time grant to one or more banks or other
financial institutions (each, a "Participant") participating interests in
its Revolving Credit Commitment, any or all of its Loans and/or any or all
of its other rights and/or obligations under this Agreement. In the event
of any such grant by a Bank of a participating interest to a Participant,
whether or not upon notice to Borrower and the Agent, such Bank shall remain
responsible for the performance of its obligations under this Agreement, and
Borrower and the Agent shall continue to deal solely and directly with such
Bank in connection with such Bank's rights and obligations under this
Agreement. Any agreement pursuant to which any Bank may grant such a
participating interest shall provide that such Bank shall retain the sole
right and responsibility to enforce the obligations of Borrower hereunder
including, without limitation, the right to approve any amendment,
modification or waiver of any provision of this Agreement; provided that
such participation agreement may provide that the applicable Bank will not
agree to any amendment, modification or waiver of this Agreement described
in clauses (b)(ii), (b)(iii) or (b)(iv) of Section 8.08 without the consent
of the Participant. Borrower agrees that each Participant shall, to the
extent provided in its participation agreement, be entitled to the benefits
of Sections 2.10, 2.11, 2.12, 2.13, 2.14, 2.15, 2.16 and 2.17 of this
Agreement with respect to its participating interest, but Borrower's
liability in respect thereof shall not be greater than its liability
thereunder to the Bank granting the applicable participation.
(c) Any Bank may at any time assign to one or more banks or other
financial institutions (each, an "Assignee") all, or a proportionate part of
all, of its rights and obligations under this Agreement and its Note, and
such Assignee shall assume such rights and obligations, pursuant to an
Assignment and Assumption Agreement in substantially the form of Exhibit C
attached hereto executed by such Assignee and such transferor Bank, with
(and subject to) the subscribed consent of Borrower and the Agent, which, in
each case, shall not be unreasonably withheld or delayed; provided, however,
that (i) the minimum amount of any such assignment shall be $5,000,000.00,
(ii) in no event may a Bank have a Revolving Credit Commitment of more than
$0.00 but less than $10,000,000.00, (iii) if any Assignee is an affiliate of
such transferor Bank or, immediately prior to such assignment, a Bank, no
consent shall be required and (iv) if any Event of Default under this
Agreement has occurred and is continuing no consent of Borrower to such
assignment shall be required. Upon execution and delivery of such
instrument and payment by such
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Assignee to such transferor Bank of an amount equal to the purchase price
agreed between such transferor Bank and such Assignee, such Assignee shall
be a Bank party to this Agreement and shall have all the rights and
obligations of a Bank with a Revolving Credit Commitment as set forth in
such instrument of assumption, and the transferor Bank shall be released
from its obligations hereunder to a corresponding extent, and no further
consent or action by any party shall be required. Upon the consummation of
any assignment pursuant to this subsection (c), the transferor Bank, the
Agent and Borrower shall make appropriate arrangements so that, if required,
new Notes are issued to the Assignor and/or the Assignee, as applicable. In
connection with any such assignment, the transferor Bank shall pay to the
Agent an administrative fee for processing such assignment in the amount of
$3,500.00.
(d) Any Bank may at any time assign all or any portion of its rights
under this Agreement and its Notes to secure its obligations to a Federal
Reserve Bank. No such assignment shall release the transferor Bank from any
of its obligations hereunder.
(e) Any Bank (a "Granting Bank") may grant to a special purpose
funding vehicle (an "SPC"), identified as such in writing from time to time
by the Granting Bank to the Agent and Borrower, the option to provide to
Borrower all or any part of any Loan that such Granting Bank would otherwise
be obligated to make to Borrower pursuant to this Agreement; provided that
(i) nothing herein shall constitute a commitment by any SPC to make any
Loan, (ii) if an SPC elects not to exercise such option or otherwise fails
to provide all or any part of such Loan, the Granting Bank shall be
obligated to make such Loan pursuant to the terms of this Agreement, (iii)
the SPC shall fund all of the Loans which it makes to the Granting Bank
which shall forward such funds to the Agent, (iv) the Agent shall send all
payments of principal, interest and other amounts due with respect to Loans
made by an SPC which are received by the Agent to the applicable Granting
Bank for the account of such SPC, (iii) no SPC shall be deemed to be a Bank
for purposes of this Agreement, have any voting rights under this Agreement
(all voting rights shall remain with the Granting Bank) or have any right to
any fees payable under this Agreement (all rights to fees shall remain with
the Granting Bank). The making of a Loan by an SPC under this Agreement
shall utilize the Revolving Credit Commitment of the Granting Bank to the
same extent, and as if, such Loan were made by such Granting Bank. Each
party hereto hereby agrees that no SPC shall be liable for any indemnity or
similar payment obligation under this Agreement (all liability for which
shall remain with the Granting Bank). In furtherance of the foregoing, each
party hereto hereby agrees (which agreement shall survive the termination of
this Agreement) that, prior to the date that is one year and one day after
the payment in full of all outstanding commercial paper or other senior
indebtedness of any SPC, it will not institute against, or join any other
Person in instituting against, such SPC any bankruptcy, reorganization,
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arrangement, insolvency or liquidation proceedings under the laws of the
United States or any State thereof. In addition, notwithstanding anything
to the contrary contained in this Section 8.10, any SPC may (i) with notice
to, but without the prior written consent of, Borrower and the Agent and
without paying any processing fee therefor, assign all or a portion of its
interests in any Loans to the Granting Bank or to any financial institutions
(consented to by Borrower and the Agent) providing liquidity and/or credit
support to or for the account of such SPC to support the funding or
maintenance of Loans and (ii) disclose on a confidential basis any non-
public information relating to its Loans to any rating agency, commercial
paper dealer or provider of any surety, guarantee or credit or liquidity
enhancement to such SPC. This Section may not be amended without the
written consent of each SPC having Loans outstanding on the date of such
amendment.
8.11 NO ORAL AGREEMENTS; ENTIRE AGREEMENT. ORAL AGREEMENTS OR
COMMITMENTS TO LOAN MONEY, EXTEND CREDIT OR TO FORBEAR FROM ENFORCING
REPAYMENT OF A DEBT, INCLUDING PROMISES TO EXTEND OR RENEW SUCH DEBT, ARE
NOT ENFORCEABLE. TO PROTECT BORROWER, THE AGENT AND THE BANKS FROM
MISUNDERSTANDING OR DISAPPOINTMENT, ANY AGREEMENTS REACHED BY BORROWER, THE
AGENT AND THE BANKS COVERING SUCH MATTERS ARE CONTAINED IN THIS AGREEMENT
AND THE OTHER TRANSACTION DOCUMENTS, WHICH AGREEMENT AND OTHER TRANSACTION
DOCUMENTS ARE A COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENTS AMONG
BORROWER, THE AGENT AND THE BANKS, EXCEPT AS BORROWER, THE AGENT AND THE
BANKS MAY LATER AGREE IN WRITING TO MODIFY THEM. This Agreement embodies
the entire agreement and understanding between the parties hereto and
supersedes all prior agreements and understandings (oral or written)
relating to the subject matter hereof.
8.12 Severability. In the event any one or more of the provisions
contained in this Agreement should be invalid, illegal or unenforceable in
any respect, the validity, legality and enforceability of the remaining
provisions contained herein shall not in any way be affected or impaired
thereby.
8.13 Counterparts. This Agreement may be executed in any number of
counterparts (including facsimile counterparts), each of which shall be
deemed an original, but all of which together shall constitute one and the
same instrument.
8.14 Confidentiality. Any information received by any Bank from
Borrower (or from the Agent on Borrower's behalf) and clearly marked as
confidential shall be treated as confidential by such Bank in accordance
with its customary practices and procedures. Notwithstanding such
agreement, nothing herein contained shall limit or impair the right or
obligation of any Bank to disclose such information: (a) to its auditors,
attorneys, trustees, employees,
Page 75
directors, officers, advisors, affiliates or agents, (b) when and as
required by any law, ordinance, subpoena or governmental order, rule or
regulation, (c) as may be required, requested or otherwise appropriate in
any report, statement or testimony submitted to any municipal, state,
provincial or federal regulatory body or any self-regulatory body having or
claiming to have jurisdiction over such Bank, (d) which is publicly
available or readily ascertainable from public sources, or which is received
by any Bank from a third Person which or which is not known by such Bank to
be bound to keep the same confidential, (e) in connection with any
proceeding, case or matter pending (or on its face purported to be pending)
before any court, tribunal or any governmental agency, commission,
authority, board or similar entity, (f) in connection with protection of its
interests under this Agreement, the Notes or any of the other Transaction
Documents, including, without limitation, the enforcement of the terms and
conditions of this Agreement, the Notes and the other Transaction Documents,
(g) to any entity utilizing such information to rate the creditworthiness of
such Bank or to rate or classify the debt or equity securities of such Bank
or report to the public concerning the industry of which such Bank is a part
or (h) to any actual or prospective Participant or Assignee (it being
understood and agreed that prior to disclosure of any confidential
information to any actual or prospective Participant or Assignee, such
actual or prospective Participant or Assignee shall have agreed in writing
to be bound by the terms and provisions of this Section 8.14). It is agreed
and understood that no Bank shall be liable to Borrower or any other Person
for failure to comply with the foregoing except in any case involving such
Bank's gross negligence or willful misconduct as determined by a court of
competent jurisdiction in a final, nonappealable order.
Page 76
IN WITNESS WHEREOF, Borrower, the Agent and the Banks have executed
this Loan Agreement as of the 30th day of November, 2000.
LACLEDE GAS COMPANY
By______________________________
Title:__________________________
Address:
000 Xxxxx Xxxxxx, Xxxxx 0000
Xx. Xxxxx, Xxxxxxxx 00000
Attention: Treasurer
Facsimile No.: (000) 000-0000
FIRSTAR BANK, N.A.
By______________________________
Title:__________________________
Address:
Xxx Xxxxxxx Xxxxx, 00xx Xxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Attention: Large Corporate Department
Facsimile No.: (000) 000-0000
BANK ONE, NA
By______________________________
Title:__________________________
Address:
Xxx Xxxx Xxxxx
Xxxxx XX0-0000
Xxxxxxx, Xxxxxxxx 00000
Attention:______________________
Facsimile No.: (_____)__________
Page 77
THE FUJI BANK LIMITED
By_______________________________
Title:___________________________
Address:
000 Xxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention:_______________________
Facsimile No.:(___)______________
COMERICA BANK
By_______________________________
Title:___________________________
Address:
000 Xxxxxxxx Xxxxxx
XX 0000
Xxxxxxx, Xxxxxxxx 00000
Attention:_______________________
Facsimile No.:(___)______________
BANK HAPOALIM B.M.
By_______________________________
Title:___________________________
Address:
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Attention:_______________________
Facsimile No.:(___)______________
Page 78
FIRSTAR BANK, N.A., as Agent
By_______________________________
Title:___________________________
Address:
Xxx Xxxxxxx Xxxxx, 00xx Xxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Attention: Large Corporate Department
Facsimile No.: (000) 000-0000
Page 79
SCHEDULE 2.02
Authorized Individuals
Xxxxxxx X. Xxxxxx
Xxxxxx X. XxXxxxx
Xxxxxx X. Xxxxxxxx
Page 80
