EXHIBIT 2
LOAN AGREEMENT
BY AND AMONG
LACLEDE GAS COMPANY,
THE BANKS PARTY HERETO
AND
U.S. BANK NATIONAL ASSOCIATION,
AS ADMINISTRATIVE AGENT
SEPTEMBER 16, 2002
TABLE OF CONTENTS
SECTION 1. DEFINITIONS...........................................................................................1
1.01 Definitions.....................................................................................1
SECTION 2. THE LOANS.............................................................................................6
2.01 Revolving Credit Commitments....................................................................6
2.02 Method of Borrowing.............................................................................8
2.03 Notes..........................................................................................10
2.04 Duration of Interest Periods and Selection of Interest Rates...................................10
2.05 Interest Rates.................................................................................10
2.06 Computation of Interest........................................................................11
2.07 Fees...........................................................................................11
2.08 Prepayments....................................................................................12
2.09 General Provisions as to Payments..............................................................12
2.10 Funding Losses.................................................................................12
2.11 Basis for Determining Interest Rate Inadequate or Unfair.......................................12
2.12 Illegality.....................................................................................13
2.13 Increased Cost.................................................................................13
2.14 Prime Loans Substituted for Affected LIBOR Loans...............................................14
2.15 Capital Adequacy...............................................................................14
2.16 Survival of Indemnities........................................................................14
2.17 Discretion of Banks as to Manner of Funding....................................................14
2.18 Sharing of Payments............................................................................14
2.19 Substitution of Bank...........................................................................15
2.20 Taxes..........................................................................................15
SECTION 3. PRECONDITIONS TO LOANS...............................................................................16
3.01 Initial Loans..................................................................................16
3.02 All Loans......................................................................................17
SECTION 4. REPRESENTATIONS AND WARRANTIES.......................................................................17
4.01 Corporate Existence and Power..................................................................17
4.02 Corporate Authorization........................................................................18
4.03 Binding Effect.................................................................................18
4.04 Financial Statements...........................................................................18
4.05 Compliance With Other Instruments; None Burdensome.............................................18
4.06 Regulation U...................................................................................19
4.07 Investment Company Act of 1940; Public Utility Holding Company Act of 1935.....................19
4.08 No Default.....................................................................................19
SECTION 5. COVENANTS............................................................................................19
5.01 Covenants of Borrower..........................................................................19
5.02 Use of Proceeds................................................................................20
SECTION 6. EVENTS OF DEFAULT....................................................................................21
SECTION 7. ADMINISTRATIVE AGENT.................................................................................22
7.01 Appointment....................................................................................22
7.02 Powers.........................................................................................22
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7.03 General Immunity...............................................................................23
7.04 No Responsibility for Loans, Recitals, etc.....................................................23
7.05 Right to Indemnity.............................................................................23
7.06 Action Upon Instructions of Required Banks.....................................................23
7.07 Employment of Agents and Counsel...............................................................24
7.08 Reliance on Documents; Counsel.................................................................24
7.09 May Treat Payee as Owner.......................................................................24
7.10 Administrative Agent's Reimbursement...........................................................24
7.11 Rights as a Bank...............................................................................24
7.12 Independent Credit Decision....................................................................25
7.13 Resignation of Administrative Agent............................................................25
7.14 Delivery of Documents..........................................................................25
7.15 Duration of Agency.............................................................................25
SECTION 8. GENERAL..............................................................................................25
8.01 No Waiver......................................................................................25
8.02 Right of Set-Off...............................................................................26
8.03 Cost and Expenses..............................................................................26
8.04 General Indemnity..............................................................................26
8.05 Notices........................................................................................27
8.06 Consent to Jurisdiction; Waiver of Jury Trial..................................................27
8.07 Governing Law..................................................................................27
8.08 Amendments and Waivers.........................................................................27
8.09 References; Headings for Convenience...........................................................28
8.10 Successors and Assigns.........................................................................28
8.11 NO ORAL AGREEMENTS; ENTIRE AGREEMENT...........................................................29
8.12 Severability...................................................................................30
8.13 Counterparts...................................................................................30
8.14 Confidentiality................................................................................30
8.15 Subsidiary Reference...........................................................................30
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LOAN AGREEMENT
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THIS LOAN AGREEMENT (this "Agreement") is made and entered into as
of the 16th day of September, 2002, by and among LACLEDE GAS COMPANY, a
Missouri corporation ("Borrower"), the Banks from time to time party hereto
and U.S. BANK NATIONAL ASSOCIATION, as Administrative Agent for the Banks.
WITNESSETH:
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WHEREAS, Borrower has applied for a revolving credit facility from
the Banks in the aggregate principal amount of up to $215,000,000.00; 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 Administrative Agent hereby
mutually covenant and agree as follows:
SECTION 1. DEFINITIONS.
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1.01 Definitions. In addition to the terms defined elsewhere in
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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):
Adjusted Prime Rate shall mean the Prime Rate plus the Applicable
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Prime Margin. The Adjusted Prime Rate shall be adjusted automatically on and
as of the effective date of any change in the Prime Rate and/or the
Applicable Prime Margin.
Administrative Agent shall mean U.S. Bank National Association in
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its capacity as administrative agent for the Banks under this Agreement and
certain of the other Transaction Documents and its successors in such
capacity.
Affected Bank shall have the meaning ascribed thereto in Section
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2.19.
Applicable LIBOR Margin shall mean (a) 0.625% per annum for any day
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on which the Usage is equal to or less than 33-1/3% and (b) 0.75% per annum
for any day on which the Usage exceeds 33-1/3%.
Applicable Prime Margin shall mean (a) 0.00% per annum for any day
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on which the Usage is equal to or less than 33-1/3% and (b) 0.125% per annum
for any day on which the Usage exceeds 33-1/3%.
Approving Bank(s) shall have the meaning ascribed thereto in
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Section 2.01(e).
Assignee shall have the meaning ascribed thereto in Section
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8.10(c).
Bank shall mean each bank from time to time party to this Agreement
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and its successors and permitted assigns; and Banks shall mean all of the
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Banks.
Borrower's Obligations shall mean any and all present and future
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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 Administrative
Agent and/or any Bank evidenced by or arising under or in respect of this
Agreement, any Note and/or any other Transaction Document.
Capitalized Lease shall mean any lease of property, whether real
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and/or personal, by a Person as lessee which in accordance with GAAP is
required to be capitalized on the balance sheet of such Person.
Capitalized Lease Obligations of any Person shall mean, as of the
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date of any determination thereof, the amount at which the aggregate rental
obligations due and to become due under all Capitalized Leases under which
such Person is a lessee would be reflected as a liability on a balance sheet
of such Person in accordance with GAAP.
Consolidated Capitalization shall mean, as of the date of any
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determination thereof, the sum of Consolidated Debt as of such day plus
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Consolidated Net Worth as of such day, all determined on a consolidated
basis and in accordance with GAAP.
Consolidated Capitalization Ratio shall mean, as of the date of any
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determination thereof, the ratio (expressed as a percentage) of Consolidated
Debt as of such day to Consolidated Capitalization as of such day, all
determined on a consolidated basis and in accordance with GAAP.
Consolidated Debt shall mean, as of the date of any determination
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thereof, all Debt of Borrower and its Subsidiaries as of such date,
determined on a consolidated basis and in accordance with GAAP.
Consolidated Net Worth shall mean, as of the date of any
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determination thereof, the amount of the capital stock accounts (net of
treasury stock, at cost) of Borrower and its Subsidiaries as of such date
plus (or minus in the case of a deficit) the surplus and retained earnings
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of Borrower and its Subsidiaries as of such date, all determined on a
consolidated basis and in accordance with GAAP.
Debt of any Person shall mean, as of the date of determination
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thereof, the sum of (a) all indebtedness, liabilities and/or obligations of
such Person for borrowed money or which have been incurred in connection
with the purchase or other acquisition of property (other than unsecured
trade accounts payable incurred in the ordinary course of business) plus (b)
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all Capitalized Lease Obligations of such Person plus (c) the aggregate
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undrawn face amount of all letters of credit and/or surety bonds issued for
the account and/or upon the application of such Person together with all
unreimbursed drawings with respect thereto plus (d) all Guarantees by such
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Person of Debt of others.
Default shall mean any event or condition the occurrence of which
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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
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or legal holiday observed by the Administrative Agent or any Bank.
Eurodollar Business Day shall mean any Domestic Business Day on
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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
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6.
Fed Funds Rate shall mean, for any day, the rate per annum (rounded
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upward, if necessary, to the nearest 1/10,000 of 1%) equal to the weighted
average of the rates on overnight Federal funds transactions with members of
the Federal Reserve System arranged by Federal funds brokers on such day, as
published by the Federal Reserve Bank of New York on the Domestic Business
Day next
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succeeding such day; provided that (i) if such day is not a Domestic
Business Day, the Fed Funds Rate for such day shall be such rate on such
transactions on the next preceding Domestic Business Day as so published on
the next succeeding Domestic Business Day and (ii) if no such rate is so
published on such next succeeding Domestic Business Day, the Fed Funds Rate
for such day shall be the average rate quoted to the Administrative Agent on
such day on such transactions as determined in good faith by the
Administrative Agent.
GAAP shall mean, at any time, generally accepted accounting
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principles at such time in the United States.
Granting Bank shall have the meaning ascribed thereto in Section
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8.10(e).
Guarantee by any Person shall mean any obligation (other than
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endorsements of negotiable instruments for deposit or collection in the
ordinary course of business), contingent or otherwise, of such Person
guaranteeing, or in effect guaranteeing, any indebtedness, liability,
dividend or other obligation of any other Person (the "primary obligor") in
any manner, whether directly or indirectly, including, without limitation,
all obligations incurred through an agreement, contingent or otherwise, by
such Person: (a) to purchase such indebtedness or obligation or any property
constituting security therefor, (b) to advance or supply funds (i) for the
purchase or payment of such indebtedness or obligation, (ii) to maintain
working capital or other balance sheet condition or otherwise to advance or
make available funds for the purchase or payment of such indebtedness or
obligation, (iii) to lease property or to purchase securities or other
property or services primarily for the purpose of assuring the owner of such
indebtedness or obligation of the ability of the primary obligor to make
payment of the indebtedness or obligation or (iv) otherwise to assure the
owner of the indebtedness or obligation of the primary obligor against loss
in respect thereof. For the purposes of all computations made under this
Agreement, a Guarantee in respect of any Debt shall be deemed to be Debt
equal to the then outstanding principal amount of such Debt which has been
guaranteed or such lesser amount to which the maximum exposure of the
guarantor shall have been specifically limited. Guarantee when used as a
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verb shall have a correlative meaning.
Interest Period shall mean with respect to each LIBOR Loan:
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(a) initially, the period commencing on the date of such
Loan and ending 7 days or 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 7 days or 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
(other than an Interest Period of 7 days) 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.
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LIBOR Base Rate shall mean, with respect to the applicable Interest
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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 U.S. Bank in the London interbank market by two (2) Eurodollar
dealers of recognized standing, selected by U.S. Bank 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
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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 U.S. Bank.
LIBOR Loan shall mean any Loan bearing interest based on the LIBOR
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Rate.
LIBOR Rate shall mean (a) the quotient of the (i) LIBOR Base Rate
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divided by (ii) one minus the applicable LIBOR Reserve Percentage plus (b)
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the Applicable LIBOR Margin. The LIBOR Rate shall be adjusted automatically
on and as of the effective date of any change in the Applicable LIBOR Margin
and/or the LIBOR Reserve Percentage.
LIBOR Reserve Percentage shall mean for any day that percentage
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(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
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2.01(a).
Material Adverse Effect shall mean (a) a material adverse effect on
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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 Note and/or any other Transaction
Document or (c) material impairment of the enforceability of the rights of,
or benefits available to, the Administrative Agent or any Bank under this
Agreement, any Note and/or any other Transaction Document.
Notes shall have the meaning ascribed thereto in Section 2.03(a).
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Notice of Borrowing shall have the meaning ascribed thereto in
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Section 2.02.
Participant shall have the meaning ascribed thereto in Section
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8.10(b).
Person shall mean any individual, sole proprietorship, partnership,
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joint venture, limited liability company, trust, unincorporated
organization, association, corporation, institution, other entity of any
4
kind or government (whether national, Federal, state, county, city,
municipal or otherwise, including, without limitation, any instrumentality,
division, agency, body or department thereof).
Prime Loan shall mean any Loan bearing interest based on the
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Adjusted Prime Rate.
Prime Rate shall mean the interest rate announced from time to time
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by U.S. Bank 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 U.S. Bank or any Bank to its customers.
Pro Rata Share shall mean for the item at issue, with respect to
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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 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 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 set forth
on Schedule 1.01 attached hereto and incorporated herein by reference.
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Purchasing Bank and Purchasing Banks shall have the respective
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meanings ascribed thereto in Section 2.19.
Regulation D shall mean Regulation D of the Board of Governors of
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the Federal Reserve System, as amended.
Regulatory Change shall have the meaning ascribed thereto in
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Section 2.12.
Required Banks shall mean at any time Banks having at least 51% of
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the aggregate amount of Loans then outstanding or, if no Loans are then
outstanding, at least 51% of the total Revolving Credit Commitments of all
of the Banks.
Revolving Credit Commitment shall mean, subject to (a) any
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reduction of the Revolving Credit Commitments pursuant to Section 2.01(c),
(b) any increase in the Revolving Credit Commitments pursuant to Section
2.01(d) and (c) assignments of the Revolving Credit Commitments by the Banks
to the extent permitted by Section 8.10, with respect to each Bank the
amount set forth opposite such Bank's name on Schedule 1.01 attached hereto
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and incorporated herein by reference.
Revolving Credit Extension Request shall have the meaning ascribed
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thereto in Section 2.01(e).
Revolving Credit Period shall have the meaning ascribed thereto in
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Section 2.01(e).
SPC shall have the meaning ascribed thereto in Section 8.10(e).
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Subsidiary shall mean any corporation or other entity of which more
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than 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 and/or any Subsidiary.
Transaction Documents shall mean this Agreement, the Notes and any
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and all other agreements, documents and instruments heretofore, now or
hereafter delivered to the Administrative 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,
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all as the same may from time to time be amended, modified, extended,
renewed or restated.
U.S. Bank shall mean U.S. Bank National Association, in its
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individual corporate capacity as a Bank hereunder and not as the
Administrative Agent hereunder.
Usage shall mean, for any date, the percentage equivalent of a
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fraction, the numerator of which is the aggregate principal amount of Loans
outstanding on such date and the denominator of which is the aggregate
amount of the Revolving Credit Commitments on such date; provided that if
for any reason any Loans remain outstanding following the termination of the
Revolving Credit Commitments, Usage will be deemed to be more than 33-1/3%.
SECTION 2. THE LOANS.
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2.01 Revolving Credit Commitments.
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(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 Prime 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 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 aggregate principal amount of all outstanding
Loans. 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
Administrative 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 Administrative 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 one (1) Domestic Business Days' prior
written notice to the Administrative 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
6
have no right to thereafter reinstate or increase, as the case may be, the
Revolving Credit Commitment of any Bank.
(d) So long as no Default or Event of Default shall have occurred
and be continuing, Borrower shall have the right from time to time upon not
less than thirty (30) days' prior written notice to the Administrative Agent
to increase the amount of the total Revolving Credit Commitments; provided
that:
(i) no Bank shall have any obligation to increase its
Revolving Credit Commitment;
(ii) Borrower shall only be permitted to request such an
increase on three (3) separate occasions;
(iii) each such requested increase shall be in a minimum
principal amount of $5,000,000.00;
(iv) in no event shall the Revolving Credit Commitments be
increased to an aggregate amount greater than $250,000,000.00;
(v) contemporaneously with requesting each such increase,
Borrower certifies to the Administrative Agent and each Bank in
writing that immediately before and immediately after giving effect
to such increase (A) Borrower is in compliance with all of the
terms, provisions, covenants and conditions contained in this
Agreement and the other Transaction Documents and (B) no Default or
Event of Default has occurred and is continuing;
(vi) any increase in the Revolving Credit Commitments
which is accomplished by increasing the Revolving Credit Commitment
of any Bank or Banks who are at the time of such increase party to
this Agreement (which Bank or Banks shall consent to such increase
in their sole and absolute discretion) shall be accomplished as
follows: (A) this Agreement will be amended by Borrower, the
Administrative Agent and those Bank(s) whose Revolving Credit
Commitment(s) is or are being increased (but without any
requirement that the consent of any other Bank be obtained) to
reflect the revised Revolving Credit Commitments of each Bank, (B)
the Administrative Agent will deliver an updated Schedule 1.01 to
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Borrower and each Bank reflecting the revised Revolving Credit
Commitments and Pro Rata Shares of each Bank, (C) the outstanding
Loans will be reallocated on the effective date of such increase
among the Banks in accordance with their revised Pro Rata Shares
(and the Banks agree to make all payments and adjustments necessary
to effect the reallocation and Borrower shall pay any and all costs
required pursuant to Section 2.10 in connection with such
reallocation as if such reallocation were a repayment) and (D)
Borrower will deliver new Note(s) to the Bank or Banks whose
Revolving Credit Commitment(s) is or are being increased reflecting
the revised Revolving Credit Commitments of such Bank(s);
(vii) any increase in the Revolving Credit Commitments
which is accomplished by addition of a new Bank under this
Agreement shall be accomplished as follows: (A) such new Bank shall
be subject to the consent of the Administrative Agent and Borrower,
which consent shall not be unreasonably withheld, (B) this
Agreement will be amended by Borrower, the Administrative Agent and
such new Bank (but without any requirement that the consent of any
other Bank be obtained) to reflect the addition of such new Bank as
a Bank hereunder, (C) the Administrative Agent will deliver an
updated Schedule 1.01 to Borrower and each Bank reflecting the
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revised Revolving Credit Commitments and Pro Rata Shares of each
Bank, (D) the outstanding Loans will be reallocated on the
effective date of such increase among the Banks in accordance with
their revised Pro Rata Shares (and the Banks agree to make all
payments and adjustments necessary to effect the reallocation and
Borrower shall pay any and all costs required pursuant to Section
2.10 in connection with such reallocation as if such
7
reallocation were a repayment) and (E) Borrower will deliver a Note
to such new Bank; and
(viii) notwithstanding anything to the contrary contained
in this Agreement, upon any termination or reduction of the
Revolving Credit Commitments by Borrower pursuant to Section
2.01(c), Borrower shall no longer have the option to request an
increase in the Revolving Credit Commitments pursuant to this
Section 2.01(d).
(e) The Revolving Credit Period shall mean the period commencing on
the date of this Agreement and ending September 15, 2003; provided, however,
that the Revolving Credit Period may be extended successively as provided in
this Section 2.01(e). Borrower may successively request within each of the
time periods hereinafter set forth a three hundred sixty-four (364) day
extension of the Revolving Credit Period. Borrower shall deliver any such
request (each, a "Revolving Credit Extension Request") to the Administrative
Agent on a date which is not more than sixty (60) days and not less than
forty-five (45) days before the last day of the then current Revolving
Credit Period and the Agent shall promptly forward such request to each
Bank. Each Bank shall have the right, as to its Revolving Credit Commitment,
in its sole and absolute discretion, to approve or disapprove the requested
extension of the Revolving Credit Period. Each Bank shall, no later than the
date which is fifteen (15) days before the last day of the then current
Revolving Credit Period, notify the Administrative Agent in writing whether
such Bank will extend the Revolving Credit Period with respect to its
Revolving Credit Commitment as requested by Borrower in the applicable
Revolving Credit Extension Request and any Bank which fails to notify the
Administrative Agent of its decision within such time period will be deemed
to have elected to not approve such Revolving Credit Extension Request. The
Administrative Agent shall promptly notify Borrower and each Bank of the
responses received by the Administrative Agent from each Bank with respect
to each Revolving Credit Extension Request. In the event that Banks holding
50% or more of the total Revolving Credit Commitments elect not to approve a
Revolving Credit Extension Request, the Revolving Credit Period as to each
Bank (and the Revolving Credit Commitment of each Bank) shall terminate on
the last day of the then current Revolving Credit Period. In the event Banks
holding more than 50% of the total Revolving Credit Commitments elect to
approve a Revolving Credit Extension Request (each Bank so electing to
approve such Revolving Credit Extension Request referred to herein as an
"Approving Bank"), the Revolving Credit Period as to each Approving Bank and
the Revolving Credit Commitment of each Approving Bank shall, effective as
of the last day of the then current Revolving Credit Period and subject to
all of the terms and conditions of this Agreement, be extended to the date
which is three hundred sixty four (364) days after the last day of the then
current Revolving Credit Period. From and after the first day of any such
extension of the Revolving Credit Period, any reference to "Revolving Credit
Commitments" shall refer only to the Revolving Credit Commitments of the
Approving Banks. The Revolving Credit Commitment of any Bank which is not an
Approving Bank shall terminate on the last day of the then current Revolving
Credit Period (without giving effect to any extension thereof not approved
by such Bank) and all Revolving Credit Loans made by such Bank, together
with all accrued and unpaid interest thereon and all fees and other amounts
owing by Borrower to such Bank with respect thereto, shall be due and
payable on the last day of the current Revolving Credit Period (without
giving effect to any extension thereof not approved by such Bank). Any Bank
which does not approve a Revolving Credit Extension Request shall not be
allowed to approve any subsequent Revolving Credit Extension Request.
2.02 Method of Borrowing.
-------------------
(a) Borrower shall give notice (a "Notice of Borrowing") to the
Administrative Agent by 10:00 a.m. (Central time) on the Domestic Business
Day of each Prime Loan to be made to Borrower, and by 10:00 a.m. (Central
time) at least three (3) Eurodollar Business Days before each LIBOR Loan to
be made to Borrower, specifying:
(i) the date of such Loan, which shall be a Domestic
Business Day during the Revolving Credit Period in the case of a
Prime Loan and a Eurodollar Business Day during the Revolving
Credit Period in the case of a LIBOR Loan;
8
(ii) the aggregate principal amount of such Loan;
(iii) whether such Loan is to be a Prime 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
Administrative Agent shall notify each Bank by 11:00 a.m. (Central time) on
the date of receipt of such Notice of Borrowing by the Administrative 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. (Central 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 Administrative Agent at
its address specified in or pursuant to Section 8.05. Unless the
Administrative Agent determines that any applicable condition specified in
Section 3 has not been satisfied, the Administrative Agent will make the
funds so received from the Banks available to Borrower immediately
thereafter at the Administrative Agent's aforesaid address by crediting such
funds to a demand deposit account of Borrower at U.S. Bank specified by
Borrower (or such other account mutually agreed upon in writing between the
Administrative Agent and Borrower). The Administrative Agent shall not be
required to make any amount available to Borrower hereunder except to the
extent the Administrative Agent shall have received such amounts from the
Banks as set forth herein, provided, however, that unless the Administrative
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 Administrative Agent, the Administrative Agent
may assume that such Bank has made such Pro Rata Share available to the
Administrative Agent prior to such time, and the Administrative 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
Administrative Agent by such Bank and the Administrative Agent has made such
amount available to Borrower, the Administrative 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 Administrative Agent recovers such amount from such Bank at a rate
per annum equal to the Fed Funds Rate.
(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
Administrative Agent as provided in subsection (c) of this Section, or
remitted by Borrower to the Administrative Agent as provided in Section
2.09, as the case may be.
(e) Borrower hereby irrevocably authorizes the Administrative 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 Administrative Agent) with respect to any
request to make a Loan or a repayment hereunder, and on any signature which
the Administrative 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 Administrative Agent and each Bank and hold the Administrative
Agent and each Bank harmless from and against any and all claims, demands,
damages, liabilities, losses, costs and expenses
9
(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 Interest Period (if any) 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.
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
Prime Loan, to elect that such Prime 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 Prime Loan), by giving notice
of such election to the Administrative Agent by 10:00 a.m. (Central time) on
the Domestic Business Day of, in the case of the election of the Adjusted
Prime Rate, and by 10:00 a.m. (Central 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 Administrative 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 Prime
Loan into a LIBOR Loan. Upon receipt of any such notice given by Borrower to
the Administrative Agent under this Section 2.04, the Administrative Agent
shall notify each Bank by 11:00 a.m. (Central time) on the date of receipt
of such notice (which must be a Domestic Business Day) of the contents
thereof. If the Administrative 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 Prime 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 Prime Loan shall bear interest on the
outstanding principal amount thereof, for each day from the date such Prime
Loan is made until it becomes due, at a rate per annum equal to the Adjusted
Prime Rate.
10
So long as any Event of Default under this Agreement has occurred and is
continuing, each Prime Loan shall bear interest on the outstanding principal
amount thereof, for each day from the date such Prime Loan is made until it
becomes due, at a rate per annum equal to 2% over and above the Adjusted
Prime Rate. Such interest shall be payable monthly in arrears on the last
day of each month commencing on the first such date after such Prime 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 Prime Loan shall bear interest, payable on
demand, for each day until paid at a rate per annum equal to 2% over and
above the Adjusted Prime Rate.
(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 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 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 Adjusted Prime Rate.
(c) The Administrative 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 Prime 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) From and including the date of this Agreement to but excluding
the last day of the Revolving Credit Period, Borrower shall pay to the
Administrative Agent for the account of each Bank a nonrefundable facility
fee on the Revolving Credit Commitment of such Bank at the rate of 0.125%
per annum. Said facility 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 September 30,
2002, and on the last day of the Revolving Credit Period and (iii)
calculated on an actual day, 360-day year basis.
(b) Borrower hereby agrees to pay the Administrative Agent for the
account of the Banks certain upfront fees in the amounts and on the dates
set forth in a letter from Borrower to the Administrative Agent and the
Banks dated the date of this Agreement, as the same may from time to time be
amended, modified, extended, renewed or restated.
(c) Borrower hereby agrees to pay the Administrative Agent for its
own account certain fees in the amounts and on the dates set forth in a
letter agreement between Borrower and the Administrative Agent dated August
5, 2002, as the same may from time to time be amended, modified, extended,
renewed or restated.
11
2.08 Prepayments.
-----------
(a) Borrower may, upon notice to the Administrative Agent
specifying that it is paying the Prime Loans, pay without penalty or premium
the Prime 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 Prime 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 Administrative 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 Administrative 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 (Central 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
Administrative Agent at its address referred to in Section 8.05. All
payments received by the Administrative Agent after 12:00 noon (Central
time) shall be deemed to have been received by the Administrative Agent on
the next succeeding Domestic Business Day. The Administrative Agent will
distribute to each Bank in immediately available funds its Pro Rata Share of
each such payment received by the Administrative Agent for the account of
the Banks by 2:00 p.m. (Central time) on the day of receipt of such payment
by the Administrative Agent if such payment is received by the
Administrative Agent from Borrower by 12:00 noon (Central time) on such day
or by 12:00 noon (Central time) on the next succeeding Domestic Business Day
if such payment is received by the Administrative Agent from Borrower after
12:00 noon (Central time) on such day. Any such payment owed by the
Administrative Agent to any Bank which is not paid within the applicable
time period shall bear interest until paid (payable by the Administrative
Agent) at the Fed Funds 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 Administrative 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
12
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 Administrative Agent
and Borrower which notice shall set forth in detail the basis for such
notice, whereupon until such Bank notifies the Administrative 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
Prime 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
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
Administrative 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 Prime 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
13
inclusion of the reference to "LIBOR Reserve Percentage" in the calculation
of the LIBOR Rate, then upon notice by such Bank to the Administrative Agent
and Borrower, which notice 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 Prime
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 Prime 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 Administrative 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 Prime Loans. Such Bank shall promptly
notify the Administrative 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
Borrower of any event which would 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
14
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.
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
Administrative 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 of such Note 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 Administrative 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 in an amount equal to the Revolving
Credit Commitment of the Affected Bank. In connection with any assignment
pursuant to this Section, Borrower shall pay to the Administrative 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 Administrative 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 Administrative 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 Administrative Agent, taxes imposed on or measured by its net
income, and franchise taxes imposed
15
on it, by the jurisdiction under the laws of which such Bank or the
Administrative Agent (as the case may be) is organized or any political
subdivision thereof (all such non-excluded taxes, duties, levies, imposts,
deductions, 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 Administrative 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 Administrative 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
Administrative 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 Administrative
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 Administrative 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 Administrative Agent (as the case may be)
makes demand therefor, accompanied by a certificate of such Bank or the
Administrative 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, no Bank shall have any obligation to make
the initial Loan(s) under this Agreement unless the Administrative Agent
shall have first received:
(a) this Agreement and the Notes, each executed by a duly
authorized officer of Borrower;
(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;
16
(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 Administrative Agent and each
Bank;
(h) the Notice of Borrowing required by Section 2.02;
(i) evidence satisfactory to the Administrative Agent that
that certain Loan Agreement dated as of November 30, 2000, by and
among Borrower, the banks party thereto and U.S. Bank National
Association, as agent for such banks, as amended by that certain
First Amendment to Loan Agreement dated as of October 1, 2001 (as
so amended, the "Existing Loan Agreement") has been terminated and
any existing indebtedness of Borrower thereunder has been paid in
full (or will be paid in full with the proceeds of the initial
Loan(s) under this Agreement);
(j) a letter (which must be in form and substance
satisfactory to the Agent and each Bank) executed by Borrower with
respect to the payment of certain upfront fees to the Banks; and
(k) such other agreements, documents, instruments and
certificates as the Administrative Agent or any Bank may reasonably
request.
3.02 All Loans. Notwithstanding any provision contained in this
---------
Agreement to the contrary, no Bank shall have any obligation to make any
Loan under this Agreement unless:
(a) the Administrative 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 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 other Transaction Document
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 Administrative Agent
and each Bank that:
4.01 Corporate Existence and Power. Borrower: (a) is duly
-----------------------------
incorporated, validly existing and
17
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).
4.04 Financial Statements. Borrower has furnished the
--------------------
Administrative Agent and each Bank with the following financial statements:
(a) consolidated 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, 2001, 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 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, 2002, 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 Administrative
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, 2002, 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.
18
4.06 Regulation U. 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
(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 Administrative Agent or any Bank, Borrower
shall furnish to the Administrative 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) a "holding company", or
an "affiliate" or a "subsidiary company" of a registered "holding company",
as those terms are defined in the Public Utility Holding Company Act of
1935, as amended ("PUHCA") or (b) subject to regulation under PUHCA, other
than as a subsidiary of an exempt holding company under PUHCA.
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 Administrative Agent with sufficient copies for each Bank:
(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 Administrative 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);
19
(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 Administrative
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, (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 (C) certifying that Borrower is in
compliance with the financial covenant contained in Section 5.01(f)
of this Agreement; and
(iv) with reasonable promptness, such further information
regarding the business, affairs and financial condition of Borrower
as the Administrative Agent or any Bank may from time to time
reasonably request.
(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 the
------------------
Administrative 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
Administrative 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.
(f) Maximum Consolidated Capitalization Ratio. Borrower will at
-----------------------------------------
all times have a Consolidated Capitalization Ratio of not more than 70%.
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
20
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;
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), Section 5.01(f) 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, 6.03 or 6.04 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 Administrative 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;
21
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 Administrative Agent shall (i) if requested in
writing by the Required Banks, 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 (ii) if
requested in writing by the Required Banks, 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 Administrative 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; 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 Administrative
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. ADMINISTRATIVE AGENT
--------------------------------
7.01 Appointment. U.S. Bank National Association is hereby
-----------
appointed by the Banks as Administrative Agent under this Agreement, the
Notes and the other Transaction Documents. The Administrative Agent agrees
to act as such upon the express conditions contained in this Agreement.
7.02 Powers. The Administrative Agent shall have and may exercise
------
such powers hereunder as are specifically delegated to the Administrative
Agent by the terms of this Agreement and the other Transaction Documents,
together with such powers as are reasonably incidental thereto. The
22
Administrative 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
Administrative Agent. Without limiting the generality of the foregoing, the
Administrative 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 Administrative 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 of all of the Banks to
the extent required by the terms of this Agreement) 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
------------------------------------------
Administrative 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 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 Administrative
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
Administrative 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
timely reimburse the Administrative Agent pursuant to Section 8.03 or
Section 8.04, the Banks shall ratably in accordance with their respective
Pro Rata Shares of the aggregate principal amount of outstanding Loans
indemnify the Administrative 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
Administrative 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
Administrative 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
------------------------------------------
Administrative Agent agrees, upon the written request of the Required Banks
(or of all of the Banks, to the extent required by the terms of this
Agreement), to take any action of the type specified in this Agreement or
any of the other Transaction Documents as being within the Administrative
Agent's rights, duties, powers or discretion. Notwithstanding the foregoing,
the Administrative 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
23
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 Administrative Agent's gross
negligence or willful misconduct as determined by a court of competent
jurisdiction in a final, nonappealable order. The Administrative Agent shall
in all cases be fully protected in acting, or in refraining from acting,
hereunder in accordance with written instructions signed by the Required
Banks (except to the extent any such action requires the consent or approval
of all of the Banks pursuant to the terms of this Agreement), 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 Administrative 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 Administrative Agent
--------------------------------
may execute any of its duties as Administrative 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
Administrative 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 Administrative 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 Administrative Agent.
7.09 May Treat Payee as Owner. The Administrative 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 Administrative 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 Administrative Agent's Reimbursement. Each Bank agrees to
------------------------------------
reimburse the Administrative 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 timely reimbursed by Borrower for which
the Administrative 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 Administrative 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
to the extent not timely reimbursed by Borrower and to the extent not
directly resulting from resulting from the Administrative Agent's gross
negligence or willful misconduct as determined by a court of competent
jurisdiction in a final, nonappealable order.
7.11 Rights as a Bank. With respect to its Revolving Credit
----------------
Commitment, the Loans made by it and the Note issued to it, U.S. Bank
National Association shall have the same rights and powers hereunder as any
Bank and may exercise the same as though it were not the Administrative
Agent, and the terms "Bank" and "Banks" shall, unless the context otherwise
indicates, include U.S. Bank National Association in its individual
capacity. U.S. Bank National Association 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 Administrative Agent.
24
7.12 Independent Credit Decision. Each Bank acknowledges that it
---------------------------
has, independently and without reliance upon the Administrative 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 Administrative 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 Administrative Agent. Subject to the
-----------------------------------
appointment of a successor Administrative Agent, the Administrative Agent
may resign as Administrative 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 Administrative 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
Administrative 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
Administrative Agent under this Agreement and the other Transaction
Documents. In the event a successor Administrative Agent shall not have been
appointed within the thirty (30) day period following the giving of notice
by the Administrative Agent, subject to the consent of Borrower (which
consent shall not be unreasonably withheld or delayed), the Administrative
Agent may appoint its own successor. Resignation by the Administrative Agent
shall not affect or impair the rights of the Administrative Agent under
Sections 7.05 and 7.10 hereof with respect to all matters preceding such
resignation. Any successor Administrative 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 Administrative 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 Administrative Agent to Borrower with respect to this
Agreement or any of the other Transaction Documents, (c) any waivers or
consents signed by the Administrative Agent or otherwise sent by the
Administrative 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 Administrative Agent with respect to this Agreement or any of the
other Transaction Documents and (e) any requests for any amendments, waivers
or consents sent to the Administrative Agent by Borrower with respect to
this Agreement or any of the other Transaction Documents. The Administrative
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 Administrative 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 Administrative 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
25
of the Administrative 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 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 Administrative 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 agreed upon in writing by the Administrative Agent and
Borrower) incurred by the Administrative 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 Administrative 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 Administrative 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 Administrative 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 Administrative 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 Administrative Agent and each Bank and any holders of the
Notes, and the officers, directors, employees, agents and affiliates of the
Administrative 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 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
26
delivered by the Administrative 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 Administrative Agent or any Bank with respect to
disputes between the Administrative 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, recognized overnight courier 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), on the first (1st) Domestic Business Day
after the day on which sent, if sent by recognized overnight courier 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 ADMINISTRATIVE 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 HEARD 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, 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 ADMINISTRATIVE AGENT AND EACH BANK HEREBY
IRREVOCABLY WAIVE THE RIGHT TO TRIAL BY JURY WITH RESPECT TO ANY ACTION IN
WHICH BORROWER AND THE ADMINISTRATIVE 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 Administrative
Agent; provided however, that notwithstanding the foregoing, (a) no such
amendment
27
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) increase the total Revolving Credit
Commitments above the sum of $250,000,000.00, (ii) 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)), (iii) extend the term of the Revolving Credit Period (except as
set forth in Section 2.01(e)), (iv) reduce the principal amount of or rate
of interest on any Loan or any fees hereunder, (v) postpone the date fixed
for any payment of principal of or interest on any Loan or any fees
hereunder, (vi) 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, (vii) 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, (viii) change the definition of
"Required Banks", (ix) amend Section 2.18 or (x) 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 Schedules 1.01 and 2.02
-------------- ----
refers to annexed Schedules 1.01 and 2.02 which are 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.
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 Administrative 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 Administrative Agent, such
Bank shall remain responsible for the performance of its obligations under
this Agreement, and Borrower and the Administrative 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)(iii), (b)(iv) or (b)(v) 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 Administrative
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
28
$10,000,000.00, (iii) if any Assignee is an affiliate of such transferor
Bank or, immediately prior to such assignment, already 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 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
Administrative 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 Administrative 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 Administrative 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 Administrative Agent,
(iv) the Administrative 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 Administrative 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,
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 Administrative
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 Administrative
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
29
NOT ENFORCEABLE. TO PROTECT BORROWER, THE ADMINISTRATIVE AGENT AND THE BANKS
FROM MISUNDERSTANDING OR DISAPPOINTMENT, ANY AGREEMENTS REACHED BY BORROWER,
THE ADMINISTRATIVE 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 ADMINISTRATIVE AGENT AND THE BANKS, EXCEPT AS
BORROWER, THE ADMINISTRATIVE 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 Administrative 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, 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.
8.15 Subsidiary Reference. As of the date of this Agreement,
--------------------
Borrower does not have any Subsidiaries. Any reference in this Agreement to
a Subsidiary of Borrower, and any financial definition, ratio, restriction
or other provision of this Agreement which is stated to be applicable to
Borrower and its Subsidiaries or which is to be determined on a
"consolidated" or "consolidating" basis, shall apply only to the extent
Borrower has any Subsidiaries and, where applicable, to the extent any such
Subsidiaries are consolidated with Borrower for financial reporting purposes
in accordance with GAAP.
30
IN WITNESS WHEREOF, Borrower, the Administrative Agent and the
Banks have executed this Loan Agreement as of the 16th day of September,
2002.
LACLEDE GAS COMPANY
By /s/ Xxxxxx X. Xxxxxxxx
------------------------------------------
Xxxxxx X. Xxxxxxxx, Treasurer and
Assistant Secretary
Address:
000 Xxxxx Xxxxxx, Xxxxx 0000
Xx. Xxxxx, Xxxxxxxx 00000
Attention: Treasurer
Facsimile No.: (000) 000-0000
U.S. BANK NATIONAL ASSOCIATION
By /s/ J. Xxxx Xxxxxxx
------------------------------------------
Title: Vice President
--------------------------------------
Address:
Xxx X.X. Xxxx Xxxxx, 00xx Xxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Attention: Large Corporate Department
Facsimile No.: (000) 000-0000
NATIONAL CITY BANK OF MICHIGAN/ILLINOIS N.A.
By /s/ Xxx Xxxxxxx
------------------------------------------
Title: Senior Vice President
--------------------------------------
Address:
000 X.X. Xxxxx Xxxxxx
--------------------------------------------
Xxxxxx, XX 00000
--------------------------------------------
Attention:
---------------------------------
Facsimile No.: ( )
----------- ---------------
31
FIRST NATIONAL BANK OF ST. LOUIS
By /s/ Xxxxxx X. Xxxxxxxxx
------------------------------------------
Title: Senior Vice President & CFO
--------------------------------------
Address:
0000 Xxxxxxx Xxxx.
--------------------------------------------
Xx. Xxxxx, XX 00000
--------------------------------------------
Attention: Xxxxxx X. Xxxxxxxxx
---------------------------------
Facsimile No.: ( 000 ) 000-0000
----------- ---------------
COMMERCE BANK, NATIONAL ASSOCIATION
By /s/ Xxxxxx Xxxxxx
------------------------------------------
Title: Assistant Vice President
--------------------------------------
Address:
0000 Xxxxxxx Xxxx.
--------------------------------------------
Xxxxxxx, XX 00000
--------------------------------------------
Attention: Xxx Xxxxxx
---------------------------------
Facsimile No.: ( 000 ) 000-0000
----------- ---------------
LASALLE BANK NATIONAL ASSOCIATION
By /s/ Xxxxx X. Xxxxxxxx
------------------------------------------
Title: Senior Vice President
--------------------------------------
Address:
000 Xxxxx XxXxxxx Xx., Xxx. 000
--------------------------------------------
Xxxxxxx, XX 00000
--------------------------------------------
Attention: Xxxxx Xxxxxxxx
---------------------------------
Facsimile No.: ( 000 ) 000-0000
----------- ---------------
COMERICA BANK
By /s/ Xxxxx Xxxxx
------------------------------------------
Title: Vice President
--------------------------------------
Address:
000 Xxxxxxxx Xxx. - MC 3269
--------------------------------------------
Xxxxxxx, XX 00000
--------------------------------------------
Attention: Xxxxx Xxxxx
---------------------------------
Facsimile No.: ( 000 ) 000-0000
----------- --------------
32
BANK HAPOALIM B.M.
By /s/ Xxxxxx X. Heppene &
/s/ Xxxxxxx Xxxxxxx - Xxxxx
------------------------------------------
Title: Vice President & VP - Accounting
--------------------------------------
Address:
000 X. Xxxxxxxx Xxx., Xxx. 000
--------------------------------------------
Xxxxxxx, XX 00000-0000
--------------------------------------------
Attention: Xxxxxxx X. Xxxxx
---------------------------------
Facsimile No.: ( 000 ) 000-0000
----------- ---------------
THE BANK OF NEW YORK
By /s/ Xxxxxx X. Xxxxxx
------------------------------------------
Title: Vice President
--------------------------------------
Address:
One Wall Street, 19th Floor
--------------------------------------------
Xxx Xxxx, XX 00000
--------------------------------------------
Attention: Xxxxxx X. Xxxxxx
---------------------------------
Facsimile No.: ( 000 ) 000-0000
----------- ---------------
FIFTH THIRD BANK
By /s/ Xxxxx X. Xxxxx
------------------------------------------
Title: Vice President
--------------------------------------
Address:
7777 Bonhomme, Ste. 1400
--------------------------------------------
Xxxxxxx, XX 00000
--------------------------------------------
Attention: Xxxxx X. Xxxxx
---------------------------------
Facsimile No.: ( 000 ) 000-0000
----------- ---------------
FIRST BANK
By /s/ Xxxxx X. Xxxxxxx
------------------------------------------
Title: Vice President
--------------------------------------
Address:
000 X. Xxxxxxx Xxx., Xxx. 000
--------------------------------------------
Xxxxxxx, XX 00000
--------------------------------------------
Attention: Xxxxx X. Xxxxxxx
---------------------------------
Facsimile No.: ( 000 ) 000-0000
----------- --------------
33
KBC BANK N.V.
By /s/ Xxxxxx Xxxxxxxx & /s/ Stefano Snozzi
-------------------------------------------
Title: 1st Vice President, 1st Vice President
---------------------------------------
Address:
000 Xxxx 00xx Xxxxxx
---------------------------------------------
Xxx Xxxx, XX 00000
---------------------------------------------
Attention: Loan Administration
----------------------------------
Facsimile No.: ( 000 ) 000-0000
----------- ----------------
UNION PLANTERS BANK, N.A.
By /s/ Xxxx X. Xxxxxxxxx
-------------------------------------------
Title: Vice President
---------------------------------------
Address:
0000 Xxxxxxxx Xxx., Xxx. 000
---------------------------------------------
Xx. Xxxxx, XX 00000
---------------------------------------------
Attention: Xxxx X. Xxxxxxxxx
----------------------------------
Facsimile No.: ( 000 ) 000-0000
----------- ----------------
U.S. BANK NATIONAL ASSOCIATION, as
Administrative Agent
By /s/ J. Xxxx Xxxxxxx
-------------------------------------------
Title: Vice President
---------------------------------------
Address:
Xxx X.X. Xxxx Xxxxx, 00xx Xxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Attention: Large Corporate Department
Facsimile No.: (000) 000-0000
34
SCHEDULE 1.01
-------------
Revolving Credit Commitments and Pro Rata Shares
------------------------------------------------
Bank Revolving Credit Commitment Pro Rata Share
---- --------------------------- --------------
U.S. Bank National Association $37,725,000.00 17.546511627907%
National City Bank of Michigan/Illinois N.A. $18,850,000.00 8.767441860465%
First National Bank of St. Louis $7,550,000.00 3.511627906977%
Commerce Bank, National Association $15,100,000.00 7.023255813953%
LaSalle Bank National Association $18,850,000.00 8.767441860465%
Comerica Bank $18,850,000.00 8.767441860465%
Bank Hapoalim B.M. $26,400,000.00 12.279069767442%
The Bank of New York $18,850,000.00 8.767441860465%
Fifth Third Bank $11,325,000.00 5.267441860465%
First Bank $11,325,000.00 5.267441860465%
KBC Bank N.V. $18,850,000.00 8.767441860465%
Union Planters Bank, N.A. $11,325,000.00 5.267441860465%
TOTAL $215,000,000.00 100%
35
SCHEDULE 2.02
-------------
Authorized Individuals
----------------------
Xxxxxxx X. Xxxxxx
Xxxxxx X. XxXxxxx, Xx.
Xxxxxx X. Xxxxxxxx
36
EXHIBIT A
---------
REVOLVING CREDIT NOTE
$ St. Louis, Missouri
----------------- September 16, 2002
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
------------------------------------
("Bank"), the principal sum of
---------------------------------------
Dollars ($ ), or such lesser sum as may then constitute
-------- ------------
the aggregate unpaid principal amount of all Loans made by Bank to Borrower
pursuant to the Loan Agreement. The aggregate principal amount of Loans which
Bank shall be committed to have outstanding under this Note at any one time
shall not exceed Dollars ($ ),
----------------------------- ---------------
which amount may be borrowed, paid, reborrowed and repaid, in whole or in
part, subject to the terms and conditions of this Note and of the Loan
Agreement. Borrower further promises to pay to the order of Bank interest on
the aggregate unpaid principal amount of such Loans on the dates and at the
rate or rates provided for in the Loan Agreement. All such payments of
principal and interest shall be made in lawful currency of the United States
in Federal or other immediately available funds at the office of U.S. Bank
National Association located at Xxx X.X. Xxxx Xxxxx, 00xx Xxxxx, Xx. Xxxxx,
Xxxxxxxx 00000, or such other place as the Administrative Agent may from
time to time designate in writing.
Bank shall record in its books and records the date, amount, type
and Interest Period (if any) 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 to Borrower under this Note shall be
absolute and unconditional, notwithstanding any failure of Bank to make any
such recordation or any mistake by Bank in connection with any such
recordation. The books and records of Bank showing the account between Bank
and Borrower shall be conclusive evidence of the items set forth therein in
the absence of manifest error.
This Note is one of the Notes referred to in, and is subject to,
that certain Loan Agreement dated as of the date hereof by and among
Borrower, the Banks from time to time party thereto and U.S. Bank National
Association, as administrative agent for the Banks, as the same may from
time to time be amended, modified, extended, renewed or restated (the "Loan
Agreement"; all capitalized terms used and not otherwise defined in this
Note shall have the respective meanings ascribed to them in the Loan
Agreement). The Loan Agreement, among other things, contains provisions for
acceleration of the maturity of this Note upon the occurrence of certain
stated events and also for prepayments on account of principal of this Note
and interest on this Note prior to the maturity of this Note upon the terms
and conditions specified therein.
Upon the occurrence of any Event of Default under the Loan
Agreement, Bank's obligation to make additional Loans under this Note may be
terminated in the manner and with the effect as provided in the Loan
Agreement and the entire outstanding principal balance of this Note and all
accrued and unpaid interest thereon may be declared to be immediately due
and payable in the manner and with the effect as provided in the Loan
Agreement.
In the event that any payment due under this Note shall not be paid
when due, whether by reason of 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 Bank in connection with bankruptcy or insolvency
proceedings relating to or affecting this Note, Borrower hereby promises to
pay to the order of Bank, in addition to all other amounts otherwise due on,
under or in respect of this Note, the costs and expenses of such collection
and representation, including, without limitation, reasonable attorneys'
fees and expenses (whether or not litigation shall be commenced in aid
37
thereof). Borrower hereby waives presentment for payment, demand, protest,
notice of protest and notice of dishonor.
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:
--------------------------------------
38
EXHIBIT B
---------
[Date]
U.S. Bank National Association,
as Administrative Agent
Xxx X.X. Xxxx Xxxxx
00xx Xxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Attention: Large Corporate Department
The Banks Party to the Loan Agreement
(as defined below)
Ladies and Gentlemen:
Reference is hereby made to that certain Loan Agreement dated as of
September 16, 2002, by and among Laclede Gas Company, the Banks from time to
time party thereto and U.S. Bank National Association, as administrative
agent for the Banks, as the same may from time to time be amended, modified,
extended, renewed or restated (the "Loan Agreement"). All capitalized terms
used and not otherwise defined herein shall have the respective meanings
ascribed to them in the Loan Agreement.
Borrower hereby certifies to the Administrative Agent and the Banks
that as of the date hereof:
(a) except as set forth below, all of the representations and
warranties made by Borrower in the Loan Agreement and/or in any of the other
Transaction Documents are true and correct in all material respects on and
as of the date of this Certificate as if made on and as of the date of this
Certificate:
Exceptions:
--------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
--------------------------------------------------------------------------;
(b) except as set forth below, no Default or Event of Default
under or within the meaning of the Loan Agreement has occurred and is
continuing:
Exceptions:
--------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
--------------------------------------------------------------------------;
(c) the financial statements of Borrower and its Subsidiaries
delivered to you with this letter as of and for the fiscal [quarter] [year]
of Borrower ended , 20 , are true, correct and complete in
-------------- --
all material respects and have been prepared in accordance with GAAP
(subject, in the case of any interim financial statements, to normal
year-end adjustments and absence of footnote disclosures); and
39
(d) Borrower had a Consolidated Capitalization Ratio of not more
than 70% at all times during the period commencing , 20 , and
----------- --
ending , 20 .
-------------- --
Very truly yours,
LACLEDE GAS COMPANY
By
-----------------------------------------
Title:
-------------------------------------
40
EXHIBIT C
---------
ASSIGNMENT AND ASSUMPTION AGREEMENT
-----------------------------------
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT (this "Agreement") is made
and entered into as of , 20 , by and among [ASSIGNOR]
----------------- --
(the "Assignor"), [ASSIGNEE] (the "Assignee"), LACLEDE GAS COMPANY, a
Missouri corporation (the "Borrower"), and U.S. BANK NATIONAL ASSOCIATION,
as Administrative Agent for the Banks (in such capacity, the "Administrative
Agent").
WITNESSETH:
-----------
WHEREAS, this Agreement relates to the Loan Agreement dated as of
September 16, 2002, by and among the Borrower, the Assignor and the other
Banks party thereto, as Banks, and the Administrative Agent, as amended (the
"Loan Agreement");
WHEREAS, as provided under the Loan Agreement, the Assignor has a
Revolving Credit Commitment to make Loans to Borrower in an aggregate
principal amount at any one time outstanding not to exceed $ ;
--------
WHEREAS, as of the date hereof, the aggregate outstanding principal
amount of all Loans made by the Assignor to Borrower is $ ; and
----------------
WHEREAS, the Assignor proposes to assign to the Assignee a %
--------
interest in all of the rights and obligations of the Assignor under the Loan
Agreement in respect of its Revolving Credit Commitment and its Loans (the
"Assigned Percentage"), and the Assignee proposes to accept assignment of
such rights and assume the corresponding obligations from the Assignor on
such terms;
NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements contained herein, the parties hereto agree as follows:
SECTION 1. Definitions. All capitalized terms not otherwise defined
-----------
herein shall have the respective meanings set forth in the Loan Agreement.
SECTION 2. Assignment. The Assignor hereby assigns and sells to the
----------
Assignee all of the rights of the Assignor under the Loan Agreement in
respect of its Revolving Credit Commitment and its Loans to the extent of
the Assigned Percentage, and the Assignee hereby accepts such assignment
from the Assignor and assumes all of the obligations of the Assignor under
the Loan Agreement in respect of its Revolving Credit Commitment and its
Loans to the extent of the Assigned Percentage, including the purchase from
the Assignor of the corresponding portion of the principal amount of the
Loans made by the Assignor outstanding at the date hereof. Upon the
execution and delivery hereof by the Assignor, the Assignee, Borrower and
the Administrative Agent and the payment of the amounts specified in Section
3 below required to be paid on the date hereof (i) the Assignee shall, as of
the date hereof, succeed to the rights and be obligated to perform the
obligations of a Bank under the Loan Agreement with a Revolving Credit
Commitment in an amount equal to $ and a Pro Rata Share of %,
----------- -------
(ii) the Revolving Credit Commitment of the Assignor shall, as of the date
hereof, be reduced by a like amount and the Assignor released from its
obligations under the Loan Agreement to the extent such obligations have
been assumed by the Assignee and (ii) the Assignor shall, as of the date
hereof, have a Revolving Credit Commitment in an amount equal to $
-----------
and a Pro Rata Share of %. The assignment provided for herein shall be
-------
without recourse to the Assignor.
SECTION 3. Payments. As consideration for the assignment and sale
--------
contemplated in Section 2 hereof, the Assignee shall pay to the Assignor on
the date hereof in Federal funds the amount
41
heretofore agreed between them. It is understood that commitment and/or
facility fees accrued to but excluding the date hereof with respect to the
Assigned Percentage are for the account of the Assignor and such fees
accruing from and including the date hereof are for the account of the
Assignee. Each of the Assignor and the Assignee hereby agrees that if it
receives any amount under the Loan Agreement which is for the account of the
other party hereto, it shall receive the same for the account of such other
party to the extent of such other party's interest therein and shall
promptly pay the same to such other party.
[SECTION 4. Consent of the Borrower and the Administrative Agent.
----------------------------------------------------
This Agreement is conditioned upon the consent of the Borrower and the
Administrative Agent pursuant to Section 8.10(c) of the Loan Agreement. The
execution of this Agreement by the Borrower and the Administrative Agent is
evidence of this consent. Pursuant to Section 8.10(c) of the Loan Agreement,
the Borrower agrees to execute and deliver new Notes payable to the order of
the Assignor and the Assignee to evidence the assignment and assumption
provided for herein.]
SECTION 5. Non-Reliance on Assignor. The Assignor makes no
------------------------
representation or warranty in connection with, and shall have no
responsibility with respect to, the solvency, financial condition, or
statements of Borrower, or the validity and enforceability of the
obligations of Borrower in respect of the Loan Agreement, any Note or any
other Transaction Document. The Assignee acknowledges that it has,
independently and without reliance on the Assignor, and based on such
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement and will continue to be
responsible for making its own independent appraisal of the business,
affairs and financial condition of Borrower.
SECTION 6. 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).
SECTION 7. Counterparts. This Agreement may be signed in any number
------------
of counterparts (including facsimile counterparts), each of which shall be
an original, with the same effect as if the signatures thereto and hereto
were upon the same instrument.
IN WITNESS WHEREOF, the Assignor, the Assignee, Borrower and the
Administrative Agent have caused this Assignment and Assumption Agreement to
be executed and delivered by their duly authorized officers as of the date
first above written.
[ASSIGNOR]
By
------------------------------------------
Title:
--------------------------------------
[ASSIGNEE]
By
------------------------------------------
Title:
--------------------------------------
42
LACLEDE GAS COMPANY
By
------------------------------------------
Title:
--------------------------------------
U.S. BANK NATIONAL ASSOCIATION, as
Administrative Agent
By
------------------------------------------
Title:
--------------------------------------
43
