Exhibit 10.02
REVOLVING CREDIT NOTE
$20,000,000.00 St. Louis, Missouri
November 30, 2000
FOR VALUE RECEIVED, on the last day of the Revolving Credit Period, the
undersigned, LACLEDE GAS COMPANY, a Missouri corporation ("Borrower"),
hereby promises to pay to the order of FIRSTAR BANK, N.A. ("Lender"), the
principal amount of Twenty Million Dollars ($20,000,000.00), or such lesser
principal amount as may then be outstanding under this Note. The aggregate
principal amount which Xxxxxx shall be committed to have outstanding under
this Note at any one time shall not exceed the amount of Lender's Revolving
Credit Commitment, which amount may be borrowed, paid, reborrowed and
repaid, in whole or in part, subject to the terms and conditions of this
Note.
Borrower further promises to pay to the order of Lender interest on
each loan under this Note from the date such loan is made until the maturity
of such loan (whether by reason of acceleration or otherwise) at a rate per
annum equal to such of the following as Borrower, at its option, shall
select: (a) (i) so long as no Event of Default under this Note has occurred
and is continuing, the Floating Rate or (ii) so long as any Event of Default
under this Note has occurred and is continuing, Two (2%) over and above the
Floating Rate, which rate of interest shall fluctuate as and when the
Floating Rate shall change; or (b) (i) so long as no Event of Default under
this Note has occurred and is continuing, the LIBOR Rate or (ii) so long as
any Event of Default under this Note has occurred and is continuing, Two
Percent (2%) over and above the LIBOR Rate. Interest on Floating Rate Loans
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 this Note, whether by reason of acceleration or otherwise.
Interest on LIBOR Loans shall be payable on the last day of each Interest
Period 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 this Note, whether by reason of acceleration
or otherwise. From and after the maturity of this Note, whether by reason of
acceleration or otherwise, interest shall accrue and be payable on demand on
the outstanding principal balance of each loan under this Note at a rate per
annum equal to Two Percent (2%) over and above the greater of (determined
daily as of the opening of business by Lender on each Business Day and
separately with respect to each loan which is accruing interest at a
different interest rate) (i) the interest rate otherwise applicable to such
loan or (ii) the Floating Rate. Interest on
Page 81
each loan (whether based on the Floating Rate, the LIBOR Rate or otherwise)
shall be computed on an actual day, 360-day year basis. All payments
received by Lender under or in respect of this Note shall be allocated among
the principal, interest, fees, collection costs and expenses and other
amounts due under this Note in such order and manner as Lender shall elect.
Borrower may request a loan under this Note by providing Lender with
oral or written notice thereof no later than (a) 10:00 a.m. (St. Louis time)
on the Business Day of each Floating Rate Loan and (b) 10:00 a.m. (St. Louis
time) at least three (3) Eurodollar Business Days before each LIBOR Loan.
Each request that Lender make a loan under this Note (a "Borrowing Notice")
shall specify (a) the date of such loan, which shall be a Business Day in
the case of a Floating Rate Loan and a Eurodollar Business Day in the case
of a LIBOR Loan, (b) the aggregate principal amount of such loan, which must
be at least (i) $50,000.00 or any larger multiple of $10,000.00 if the loan
requested is a Floating Rate Loan or (ii) $2,500,000.00 or any larger
multiple of $500,000.00 if the loan requested is a LIBOR Loan, (c) whether
such loan is to be a Floating Rate Loan or a LIBOR Loan and (d) 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.
Subject to the terms and conditions of this Note, provided that Xxxxxx has
received the Borrowing Notice, Lender shall (unless an Event of Default
under this Note or an event which with the passage of time, the giving of
notice or both would constitute an Event of Default under this Note has
occurred and is continuing) make available to Borrower the loan proceeds in
immediately available funds not later than 2:00 p.m., St. Louis time, on the
Business Day specified in the Borrowing Notice by depositing the amount of
such loan into Borrower's Account No. 1000300663 at Lender. Each request by
Borrower for a loan under this Note shall constitute a representation and
warranty by Borrower that (a) after giving effect to such loan, the
aggregate principal amount of all loans outstanding under this Note shall
not exceed the amount of Lender's Revolving Credit Commitment, (b) no Event
of Default and no event which with the passage of time or the giving of
notice or both would constitute an Event of Default under this Note has
occurred and is continuing or will result from the making of the requested
loan and (c) all of the representations and warranties made by Borrower in
this Note are 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. Borrower
hereby authorizes Xxxxxx 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 A attached hereto and incorporated
herein by reference (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 delivered to Lender), and on any signature which
Xxxxxx in good faith believes to be genuine, and Xxxxxxxx shall be bound
thereby in the same manner
Page 82
as if such person were actually authorized or such signature were genuine.
Xxxxxxxx also hereby agrees to indemnify Lender and hold Xxxxxx 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 Note.
Borrower may not revoke or rescind any request for a LIBOR Loan. In no event
may Borrower have more than five (5) different Interest Periods outstanding
at any one time.
The duration of the initial Interest Period for each LIBOR Loan shall
be as specified in the applicable Borrowing Notice. 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 (a) in the case of any Floating
Rate Loan, to elect that such loan become a LIBOR Loan and the Interest
Period to be applicable thereto and (b) in the case of any LIBOR Loan, to
elect that such loan become a Floating Rate Loan), by giving notice of such
election to Lender by 10:00 a.m. (St. Louis time) on the Business Day of, in
the case of the election of the Floating Rate, or 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 to such loan, if any; provided, however, that
notwithstanding the foregoing, in addition to and without limiting the
rights and remedies of Lender under this Note or at law or in equity, so
long as any Event of Default or any event which with the passage of time or
the giving of notice or both would constitute an Event of Default under this
Note 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. If Xxxxxx does not receive a notice of election for a
LIBOR Loan pursuant to this paragraph within the applicable time limits
specified therein, Borrower shall be deemed to have elected to pay such
LIBOR Loan in whole 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.
Lender shall record in its books and records the date, amount, type and
maturity of each loan made by it to Borrower under this Note 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 Lender to Borrower under this Note shall be absolute
and unconditional, notwithstanding any failure of Lender to make any such
recordation or any mistake by Lender in connection with any such
recordation. The books and records of Xxxxxx showing the account between
Xxxxxx and Xxxxxxxx shall be admissible in evidence in any action or
proceeding and shall constitute prima facie proof of the items therein set
forth.
Page 83
Borrower may prepay all or any portion of any Floating Rate Loan under
this Note at any time prior to maturity without penalty or premium by paying
the principal amount to be prepaid. Borrower may, upon at least three (3)
Eurodollar Business Day's notice to Lender, prepay any LIBOR Loan under this
Note 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 the immediately following paragraph of this
Note; provided, however, that in no event may Borrower make a partial
prepayment of a LIBOR Loan 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.
Notwithstanding any provision contained in this Note to the contrary,
if (a) Borrower shall make any payment of principal with respect to any
LIBOR Loan on any day other than the last day of the Interest Period
applicable thereto, whether as a result of a voluntary prepayment, a
mandatory prepayment, maturity, acceleration or otherwise, (b) Borrower
fails to borrow or pay any LIBOR Loan after notice has been given by
Borrower to Lender in accordance with this Note or (c) any LIBOR Loan is
converted to a Floating Rate Loan pursuant to the requirements of this Note
on any day other than the last day of the Interest Period applicable
thereto, Borrower shall reimburse Lender on demand for any resulting losses
and expenses incurred by Lender, 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 Lender shall have delivered to Borrower a certificate as to
the amount of such losses and expenses, which certificate shall be
conclusive in the absence of manifest error.
If with respect to any Interest Period (a) deposits in U.S. Dollars (in
the applicable amounts) are not being offered to Lender in the relevant
market for such Interest Period or (b) Lender determines in good faith that
the LIBOR Rate as determined pursuant to the definition thereof will not
adequately and fairly reflect the cost to Lender of maintaining or funding
the LIBOR Loans for such Interest Period, Lender shall forthwith give notice
thereof to Borrower, whereupon until Lender notifies Borrower that the
circumstances giving rise to such suspension no longer exist, (a) the LIBOR
Rate shall not be available to Borrower as an interest rate option on any
loans under this Note and (b) all of the then outstanding LIBOR Loans 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.
Page 84
If, after the date of this Note, the adoption of any applicable law,
rule or regulation, or any change therein, or any change in the
interpretation or administration thereof by any governmental or regulatory
authority, central bank or comparable agency charged with the interpretation
or administration thereof, or compliance by Lender 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 (each, a
"Regulatory Change") shall make it unlawful or impossible for Lender to
make, maintain or fund its LIBOR Loans to Borrower, Lender shall forthwith
give notice thereof to Borrower. Upon receipt of such notice, Borrower shall
convert all of the then outstanding LIBOR Loans on either (a) the last day
of the then current Interest Period applicable to such LIBOR Loan if Lender
may lawfully continue to maintain and fund such LIBOR Loan to such day or
(b) immediately if Lender 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 this Note.
If (i) Regulation D or (ii) a Regulatory Change:
(a) shall subject Lender to any tax, duty or other charge with
respect to any LIBOR Loan or its obligation make, maintain or fund
any LIBOR Loan, or shall change the basis of taxation of payments
to Lender of the principal of or interest on any LIBOR Loan or any
other amounts due under this Note in respect of any LIBOR Loan or
its obligation to make, maintain or fund any LIBOR Loan (except for
taxes on or changes in the rate of tax on the overall net income of
Lender); 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,
Lender or shall impose, modify or deem applicable any other
condition affecting any LIBOR Loan or Lender's obligation to make,
maintain or fund any LIBOR Loan;
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) Lender of
making, maintaining or funding any LIBOR Loan, or to reduce the amount of
any sum received or receivable by Lender under this Note with respect
thereto, by an amount deemed by Lender to be material, and if Lender 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, within
fifteen (15) days after notice by Xxxxxx to Borrower together with a copy of
Page 85
the official notice of the applicable change in law (if applicable) and a
work sheet showing how the change in cost or reduction or increase in amount
received or receivable was calculated, Borrower shall pay Lender as
additional interest, such additional amount or amounts as will compensate
Lender for such increased cost or reduction. Lender will promptly notify
Borrower of any event of which it has knowledge, occurring after the date
hereof, which will entitle Lender to compensation pursuant to this
paragraph. The determination by Lender under this paragraph 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,
Lender may use any reasonable averaging and attribution methods.
If notice has been given by Lender or Borrower pursuant to this Note
requiring LIBOR Loans to be repaid, then, unless and until Xxxxxx notifies
Borrower that the circumstances giving rise to such repayment no longer
apply, all loans which would otherwise be made by Lender to Borrower as
LIBOR Loans shall be made instead as Floating Rate Loans. Lender shall
promptly notify Borrower if and when the circumstances giving rise to such
repayment no longer apply.
If, after the date of this Note, Lender 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 Lender's capital in respect of its
obligations under this Note to a level below that which Lender could have
achieved but for such Regulatory Change (taking into consideration Lender's
policies with respect to capital adequacy), then from time to time Borrower
shall pay to Lender upon demand such additional amount or amounts as will
compensate Lender for such reduction. All determinations made in good faith
by Xxxxxx of the additional amount or amounts required to compensate Lender
in respect of the foregoing shall be conclusive in the absence of manifest
error. In determining such amount or amounts, Lender may use any reasonable
averaging and attribution methods.
All indemnities set forth in this Note and all provisions set forth in
this Note relating to reimbursement to Lender of amounts sufficient to
protect the yield to Lender with respect to the loans shall survive the
payment of the loans and the termination of this Note.
Notwithstanding any provision contained in this Note to the contrary,
Lender shall be entitled to fund and maintain its funding of the LIBOR Loans
in any manner it elects, it being understood, however, that for purposes of
this Note all determinations hereunder (including, without limitation, the
determination of Xxxxxx's funding losses and expenses) shall be made as if
Lender 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.
Page 86
From and including the first day of the Revolving Credit Period to but
excluding the last day of the Revolving Credit Period, Borrower shall pay
Lender a nonrefundable commitment fee on the unused portion of Xxxxxx's
Revolving Credit Commitment (determined by subtracting the aggregate
principal amount of outstanding loans made by Lender to Borrower under this
Note from the amount of Lender's Revolving Credit Commitment) at the rate of
One-Eighth of One Percent (1/8%) per annum. Said commitment fee shall be
(a) calculated on a daily basis, (b) payable in arrears on the last day of
the Revolving Credit Period and (c) calculated on an actual day, 360-day
year basis.
Borrower may, upon five (5) Business Days' prior written notice to
Lender, terminate entirely at any time, or reduce from time to time by an
amount of $5,000,000.00 or any larger multiple of $1,000,000.00, the unused
portion of Xxxxxx's Revolving Credit Commitment; provided, however, that (a)
at no time shall the amount of Lender's Revolving Credit Commitment be
reduced to a figure less than the aggregate principal amount of loans then
outstanding under this Note and (b) 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 amount of Lender's Revolving Credit
Commitment.
Borrower shall make each payment of principal of, and interest on, this
Note and all other amounts payable under this Note not later than 12:00 noon
(St. Louis time) on the date when due, in Federal or other immediately
available funds to Lender at One Firstar Plaza, 12th Floor, St. Louis,
Missouri 63101 or such other address as Lender may from time to time specify
in writing. Any such payment received by Lender after 12:00 noon (St. Louis
time) shall be deemed to have been paid on the next succeeding Business Day.
Whenever any payment of principal of, or interest on, this Note shall be due
on a day which is not a Business Day, the date for payment thereof shall be
extended to the next succeeding 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. The
acceptance by Lender of any payment of principal or interest due under this
Note after the date it is due shall not be held to establish a custom or
waive any rights of Lender to enforce prompt payment of any further payments
or otherwise.
Borrower hereby represents and warrants to Lender that (a) all of the
proceeds of each loan evidenced by this Note will be used by Borrower solely
for the working capital and general corporate purposes of Borrower, (b)
Borrower is a corporation duly organized, validly existing and in good
standing under the laws of the State of Missouri, (c) the execution,
delivery and performance by Borrower of this Note (i) are within the
corporate powers of Xxxxxxxx, (ii) have been duly authorized by all
necessary corporate action on the part of Borrower, (iii) require no
consent, approval or authorization of, action by or in
Page 87
respect of or filing or recording with any governmental or regulatory body,
instrumentality, authority, agency or official or any other person or entity
and (iv) do not conflict with, or result in a breach of the terms,
conditions or provisions of, or constitute a default under or result in any
violation of, the terms of the Articles of Incorporation or By-Laws of
Borrower, any applicable law, rule, regulation, order, writ, judgment or
decree of any court or governmental or regulatory body, instrumentality,
authority, agency or official or any agreement, document or instrument to
which Borrower is a party or by which Borrower or any of its property or
assets is bound or to which Borrower or any of its property or assets is
subject, (d) 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, (e) 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, (f) this Note has
been duly executed and delivered by Borrower, constitutes the legal, valid
and binding obligation of Borrower and is enforceable against Borrower in
accordance with its terms, except as such enforceability may be limited by
(i) applicable bankruptcy, insolvency or similar laws affecting the
enforcement of creditors' rights generally and (ii) general principles of
equity (regardless of whether such enforceability is considered in a
proceeding in equity or at law) and (g) Borrower is not engaged principally,
or as one of its important activities, in the business of extending credit
for the 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
(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.
Borrower hereby covenants and agrees to deliver to Xxxxxx:
(a) 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 Xxxxxxxx and reasonably acceptable to Xxxxxx;
provided, however, that delivery to Lender of copies of the Annual
Page 88
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 clause (a);
(b) 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 Lender 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 Lender 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 clause (b);
(c) simultaneously with the delivery of each set of financial
statements referred to in clauses (a) and (b) above, a certificate of
an authorized officer of Borrower in the form attached hereto as
Exhibit A and incorporated herein by reference (i) stating whether
there exists on the date of such certificate any Event of Default or
any event which with the passage of time or the giving of notice or
both would constitute an Event of Default under this Note and, if
any Event of Default or any event which with the passage of time
or the giving of notice or both would constitute an Event of Default
under this Note 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 Note 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
(d) with reasonable promptness, such further information
regarding the business, affairs and financial condition of Borrower
as Lender may from time to time reasonably request.
If any of the following events ("Events of Default") shall occur: (a)
Borrower shall fail to pay any principal of any loan under this Note as and
when the same shall become due and payable, whether by reason of demand,
maturity, acceleration or otherwise; (b) Borrower shall fail to pay any
interest, fees or other amounts (other than the principal of any loan under
this Note) due under this Note within five (5) Business Days after the date
the same shall first become due and payable, whether by reason of demand,
maturity, acceleration or otherwise; (c) any representation or warranty made
by Borrower in this Note or in any certificate, agreement, instrument
Page 89
or written statement furnished or made or delivered pursuant hereto or in
connection herewith, shall prove to have been untrue or incorrect in any
material respect when made or effected; (d) Borrower shall fail to perform
or observe any term, covenant or provision contained in this Note; (e)
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; (f) 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; (g) Borrower shall
be declared by Lender to be in default under or in respect of (i) any other
present or future obligation to Lender, 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 Lender a security interest in, or a lien or
encumbrance upon, upon any property or assets of Borrower; (h) 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 this Note) 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; (i) 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; or (j) any "Event of Default" (as defined therein) shall
occur under or within the meaning of that certain Loan Agreement dated as of
November 30, 2000, by and among Xxxxxxxx, the banks from time to time party
thereto and Firstar Bank, N.A., as agent for such banks, as the
Page 90
same may from time to time be amended, modified, extended, renewed or
restated; then, and in each such event (other than an event described in
clauses (e) or (f) above), Lender may, at its option, declare that its
obligation to make any additional loans under this Note has terminated,
whereupon such obligation of Lender shall be immediately and forthwith
terminated, and Lender may further declare the entire outstanding principal
balance of this Note, all accrued and unpaid interest thereon and all fees
and other amounts owed under this Note to be immediately due and payable,
whereupon all of such outstanding principal balance, accrued and unpaid
interest, fees and other amounts 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 Lender may
exercise any and all other rights and remedies which it may have at law or
in equity; provided, however, that upon the occurrence of any event
described in clauses (e) or (f) above, Lender's obligation to make any
additional loans under this Note shall automatically terminate and the
entire outstanding principal balance of this Note, all accrued and unpaid
interest thereon and all fees and other amounts owed under this Note shall
automatically become immediately due and payable, without presentment,
demand, protest or notice of any kind, all of which are hereby expressly
waived by Borrower, and Lender may exercise any and all other rights and
remedies which it may have under at law or in equity.
In the event that any payment of any principal, interest or other
amount due under this Note is not paid when due, whether by reason of
demand, maturity, acceleration or otherwise, and this Note is placed in the
hands of an attorney or attorneys for collection, or if this Note is placed
in the hands of an attorney or attorneys for representation of Lender in
connection with bankruptcy or insolvency proceedings relating to or
affecting this Note, Borrower hereby promises to pay to the order of Lender,
in addition to all other amounts otherwise due on, under or in respect of
this Note, the costs and expenses of such collection, foreclosure and
representation, including, without limitation, reasonable attorneys' fees
and expenses (whether or not litigation shall be commenced in aid thereof).
Borrower hereby agrees to pay or reimburse Lender upon demand for (a)
all out-of-pocket costs and expenses including, without limitation,
reasonable attorneys' fees and expenses, incurred by Xxxxxx in connection
with the preparation, negotiation, execution, administration and/or
enforcement of this Note and any and all other agreements, documents and
instruments securing, guaranteeing the payment of and/or otherwise relating
to this Note (collectively, the "Loan Documents"), (b) all recording, filing
and search fees, costs and expenses incurred by Lender in connection with
this Note and the other Loan Documents and (c) all out-of-pocket costs and
expenses, including, without limitation, reasonable attorneys' fees and
expenses, incurred by Lender in connection with (i) the preparation of any
waiver or consent under this Note or any of the other Loan Documents, (ii)
Page 91
any amendment, modification, extension, renewal or restatement of this Note
or any of the other Loan Documents or (iii) any default or event of default
under this Note or any of the other Loan Documents. Xxxxxxxx further agrees
to pay or reimburse Lender for any stamp or other taxes which may be payable
with respect to the execution, delivery, recording and/or filing of this
Note or any of the other Loan Documents. All of the obligations of Borrower
under this paragraph shall survive the payment and termination of this Note.
This Note may not be changed, nor may any term, condition or Event of
Default be waived, modified or discharged orally but only by an agreement in
writing, signed by Xxxxxx. No failure or delay by Xxxxxx in exercising any
right, remedy, power or privilege under this Note 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.
Except as otherwise specified in this Note, each notice, request,
demand, consent and/or other communication under this Note shall be in
writing and delivered in person or sent by facsimile, recognized overnight
courier or registered or certified mail, return receipt requested and
postage prepaid, if to Borrower to 000 Xxxxx Xxxxxx, Xxxxx 0000, Xx. Xxxxx,
Xxxxxxxx 00000, Attention: Treasurer, Facsimile No. (000) 000-0000, or if to
Lender at Xxx Xxxxxxx Xxxxx, 00xx Xxxxx, Xx. Xxxxx, Xxxxxxxx 00000,
Attention: Large Corporate Department, Facsimile No.: (000) 000-0000, or at
such other address or facsimile number as either party may from time to time
designate as its address or facsimile number 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), on the first (1st) Business Day after the
day on which sent if sent by recognized overnight courier or on the third
(3rd) Business Day after the day on which mailed, if sent by registered or
certified mail.
All parties hereto expressly waive presentment, demand for payment,
notice of dishonor, protest and notice of protest.
For purposes of this Note, the following terms shall have the following
meanings:
Business Day shall mean any day except a Saturday, Sunday or
legal holiday observed by Lender or by commercial banks in St.
Louis, Missouri.
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.
Page 92
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.
Eurodollar Business Day shall mean any Business Day on which
commercial banks are open for international business (including
dealings in dollar deposits) in London.
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 under this Note bearing
interest based on the Floating Rate.
GAAP shall mean, at any time, generally accepted accounting
principles at such time in the United States.
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 Xxxxxxxx and Lender), as Borrower may
elect in the applicable Borrowing Notice; 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 Xxxxxxxx and Lender), as Borrower may elect
pursuant to the terms of this Note;
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.
Page 93
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 Lender in the London interbank market by two (2) Eurodollar
dealers of recognized standing, selected by Lender 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 published by Bloomberg Financial
Services, Dow Xxxxx Market Service, Telerate, Reuters or any other service
from time to time used by Xxxxxx.
LIBOR Loan shall mean any loan under this Note 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 Lender 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 Lender. The LIBOR Rate
shall be adjusted automatically on and as of the effective date of any
change in the LIBOR Reserve Percentage.
Page 94
Prime Rate shall mean the interest rate announced from time to time by
Lender 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 Lender to its customers.
Regulation D shall mean Regulation D of The Board of Governors of the
Federal Reserve System, as amended.
Revolving Credit Commitment shall mean, subject to any reduction of the
Revolving Credit Commitment by Borrower pursuant to the terms of this Note,
$20,000,000.00.
Revolving Credit Period shall mean the period commencing December 20,
2000, and ending March 31, 2001.
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 Lender for the purpose of
determining the rate per annum for overnight Federal Funds transactions).
BORROWER HEREBY IRREVOCABLY (A) SUBMITS TO THE NON-EXCLUSIVE
JURISDICTION OF ANY MISSOURI STATE COURT OR ANY UNITED STATES OF AMERICA
COURT SITTING IN THE EASTERN DISTRICT OF MISSOURI, EASTERN DIVISION, AS
LENDER MAY ELECT, IN ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO THIS NOTE, (B) AGREES THAT ALL CLAIMS IN RESPECT TO ANY SUCH
SUIT, ACTION OR PROCEEDING MAY BE HELD AND DETERMINED IN ANY OF SUCH COURTS,
(C) 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,
ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT, (D) WAIVES ANY CLAIM THAT
SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT
IN AN INCONVENIENT FORUM AND (E) WAIVES ALL RIGHTS OF ANY OTHER JURISDICTION
WHICH BORROWER MAY NOW OR HEREAFTER HAVE BY REASON OF ITS PRESENT OR
SUBSEQUENT DOMICILES. BORROWER (AND BY ITS ACCEPTANCE HEREOF, XXXXXX)
IRREVOCABLY WAIVE THE RIGHT TO TRIAL BY JURY WITH RESPECT TO ANY ACTION IN
WHICH BORROWER AND LENDER ARE PARTIES RELATING TO OR ARISING OUT OF OR IN
CONNECTION WITH THIS NOTE.
Page 95
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 AND LENDER FROM
MISUNDERSTANDING OR DISAPPOINTMENT, ANY AGREEMENTS BORROWER AND LENDER REACH
COVERING SUCH MATTERS ARE CONTAINED IN THIS NOTE, WHICH NOTE IS THE COMPLETE
AND EXCLUSIVE STATEMENT OF THE AGREEMENTS BETWEEN BORROWER AND XXXXXX,
EXCEPT AS XXXXXXXX AND XXXXXX MAY LATER AGREE IN WRITING TO MODIFY THEM.
This Note shall be governed by and construed in accordance with the
substantive laws of the State of Missouri (without reference to conflict of
law principles).
LACLEDE GAS COMPANY
By_______________________________
Title: Treasurer & Assistant Secretary
Accepted and Agreed to:
Firstar Bank, N.A.
By:_________________________________
Title: _____________________________
Page 96
SCHEDULE A
Authorized Individuals
Xxxxxxx X. Xxxxxx
Xxxxxx X. XxXxxxx
Xxxxxx X. Xxxxxxxx
Page 97
