Exhibit-10.20
LOAN AGREEMENT
--------------
THIS LOAN AGREEMENT (this "Agreement") is made and entered into as of
the 22nd day of October, 1999, by and among LACLEDE GAS COMPANY, a Missouri
corporation ("Borrower"), and the Banks from time to time party hereto,
including MERCANTILE BANK NATIONAL ASSOCIATION in its capacity as a Bank and
as agent for the Banks under this Agreement (the "Agent"), BANK OF AMERICA,
N.A., in its capacity as a Bank and syndication agent for the Banks and
CREDIT SUISSE FIRST BOSTON in its capacity as a Bank and as documentation
agent for the Banks.
WITNESSETH:
-----------
WHEREAS, Borrower has applied for a revolving credit facility from the
Banks in the aggregate principal amount of up to $120,000,000.00; and
WHEREAS, the Banks are willing to make said revolving credit facility
available to Borrower upon, and subject to, the terms, provisions and
conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Borrower, the Banks and the Agent hereby mutually covenant and
agree as follows:
SECTION 1. DEFINITIONS.
------------------------
1.01 Definitions. In addition to the terms defined elsewhere in this
Agreement or in any Exhibit or Schedule hereto, when used in this Agreement,
the following terms shall have the following meanings (such meanings shall
be equally applicable to the singular and plural forms of the terms used, as
the context requires):
Affected Bank shall have the meaning ascribed thereto in Section 2.19.
Agent shall mean Mercantile Bank National Association in its capacity
as agent for the Banks under this Agreement and certain of the other
Transaction Documents and its successors in such capacity.
Assignee shall have the meaning ascribed thereto in Section 8.10(c).
Bank shall mean each bank from time to time party to this Agreement and
its successors and permitted assigns; and Banks shall mean all of the Banks.
Borrower's Obligations shall mean any and all present and future
indebtedness (principal, interest, fees, collection costs and expenses,
attorneys' fees and other amounts), liabilities and obligations (including,
without limitation, indemnity obligations) of Borrower to the Agent and/or
any Bank evidenced by or arising under or in respect of this Agreement, the
Notes and/or any of the other Transaction Documents.
Default shall mean any event or condition the occurrence of which
would, with the lapse of time or the giving of notice or both, become an
Event of Default.
68
Domestic Business Day shall mean any day except a Saturday, Sunday or
legal holiday observed by the Agent or any Bank.
Eurodollar Business Day shall mean any Domestic Business Day on which
commercial banks are open for international business (including dealings in
dollar deposits) in London.
Event of Default shall have the meaning ascribed thereto in Section 6.
Fed Funds Base Rate shall mean, as of the date of any determination
thereof, the rate per annum (rounded upwards, if necessary, to the next
higher 1/100 of 1%) for overnight Federal Funds transactions which appears
on the Telerate Page 5 as of 9:00 a.m. (St. Louis time) on such date.
Fed Funds Rate shall mean a rate per annum equal to One-Quarter of One
Percent (1/4%) over and above the Fed Funds Base Rate, which Fed Funds Rate
shall fluctuate as and when said Fed Funds Base Rate changes.
Floating Rate shall mean a rate per annum equal to (a) the Fed Funds
Rate if such rate is available or (b) if the Fed Funds Rate is not
available, the Prime Rate. The Floating Rate shall fluctuate as and when the
Fed Funds Rate or the Prime Rate, as applicable, changes.
Floating Rate Loan shall mean any Loan bearing interest based on the
Floating Rate.
GAAP shall mean, at any time, generally accepted accounting principles
at such time in the United States.
Granting Bank shall have the meaning ascribed thereto in Section
8.10(e).
Interest Period shall mean with respect to each LIBOR Loan:
(a) initially, the period commencing on the date of such Loan and
ending 1, 2, 3 or 6 months thereafter (or such other period agreed upon
in writing by Borrower and each Bank), as Borrower may elect in the
applicable Notice of Borrowing; and
(b) thereafter, each period commencing on the last day of the
immediately preceding Interest Period applicable to such Loan and
ending 1, 2, 3 or 6 months thereafter (or such other period agreed upon
in writing by Borrower and each Bank), as Borrower may elect pursuant
to Section 2.04(a);
provided that:
(c) subject to clauses (d) and (e) below, any Interest Period which
would otherwise end on a day which is not a Eurodollar Business Day
shall be extended to the next succeeding Eurodollar Business Day unless
such Eurodollar Business Day falls in another calendar month, in which
case such Interest Period shall end on the immediately preceding
Eurodollar Business Day;
(d) subject to clause (e) below, any Interest Period which begins on
the last Eurodollar Business Day of a calendar month (or on a day for
which there is no numerically corresponding day in the calendar month
at the end of such Interest Period) shall end on the last Eurodollar
Business Day of a calendar month; and
(e) no Interest Period may extend beyond the last day of the
Revolving Credit Period.
69
LIBOR Base Rate shall mean, with respect to the applicable Interest
Period, (a) t he 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 1/100 of 1%) of the
respective rates per annum of interest at which deposits in dollars are
offered to Mercantile in the London interbank market by two (2) Eurodollar
dealers of recognized standing, selected by Mercantile in its sole
discretion, at or about 9:00 a.m. (St. Louis time) on the date two (2)
Eurodollar Business Days before the first day of such Interest Period, for
delivery on the first day of the applicable Interest Period for a number of
days comparable to the number of days in such Interest Period and in an
amount approximately equal to the principal amount of the LIBOR Loan to
which such Interest Period is to apply.
LIBOR Index Rate shall mean, with respect to the applicable Interest
Period, the rate per annum (rounded upwards, if necessary, to the next
higher 1/100 of 1%) for deposits in U.S. Dollars for a period equal to such
Interest Period, which appears on the Telerate Page 3750 as of 9:00 a.m.
(St. Louis time) on the day two (2) Eurodollar Business Days before the
first day of such Interest Period.
LIBOR Loan shall mean any Loan bearing interest based on the LIBOR
Rate.
LIBOR Rate shall mean (a) the quotient of the (i) LIBOR Base Rate
divided by (ii) one minus the applicable LIBOR Reserve Percentage plus (b)
One-Quarter of One Percent (1/4%) per annum. The LIBOR Rate shall be
adjusted automatically on and as of the effective date of any change in the
LIBOR Reserve Percentage.
LIBOR Reserve Percentage shall mean for any day that percentage
(expressed as a decimal) which is in effect on such day, as prescribed by
the Board of Governors of the Federal Reserve System (or any successor), for
determining the maximum reserve requirement for a member bank of the Federal
Reserve System with respect to "Eurocurrency liabilities" (or in respect of
any other category of liabilities which includes deposits by reference to
which the interest rate on LIBOR Loans is determined or any category of
extensions of credit or other assets which include loans by a non-United
States office of any Bank to United States residents). The LIBOR Rate shall
be adjusted automatically on and as of the effective date of any change in
the LIBOR Reserve Percentage.
Loan and Loans shall have the meanings ascribed thereto in Section
2.01(a).
Material Adverse Effect shall mean (a) a material adverse effect on the
properties, assets, liabilities, business, operations, prospects, income or
condition (financial or otherwise) of Borrower and its Subsidiaries taken as
a whole, (b) material impairment of Borrower's ability to perform any of its
obligations under this Agreement, any of the Notes or any of the other
Transaction Documents or (c) material impairment of the enforceability of
the rights of, or benefits available to, the Agent or any of the Banks under
this Agreement, any of the Notes or any of the other Transaction Documents.
Mercantile shall mean Mercantile Bank National Association, a national
banking association, in its individual corporate capacity as a Bank
hereunder and not as the Agent hereunder.
Notes shall have the meaning ascribed thereto in Section 2.03(a).
Notice of Borrowing shall have the meaning ascribed thereto in Section
2.02.
70
Participant shall have the meaning ascribed thereto in Section 8.10(b).
Person shall mean any individual, sole proprietorship, partnership,
joint venture, limited liability company, trust, unincorporated
organization, association, corporation, institution, entity or government
(whether national, Federal, state, county, city, municipal or otherwise,
including, without limitation, any instrumentality, division, agency, body
or department thereof).
Prime Rate shall mean the interest rate announced from time to time by
Mercantile 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 Mercantile or any Bank to its customers.
Pro Rata Share shall mean for the item at issue, with respect to each
Bank, a fraction (expressed as a percentage), the numerator of which is the
portion of such item owned or held by such Bank and the denominator of which
is the total amount of such item owned or held by all of the Banks. For
example, (a) if the amount of the Revolving Credit Commitment of a Bank is
$1,000,000.00 and the total amount of the Revolving Credit Commitments of
all of the Banks is $5,000,000.00, such Bank's Pro Rata Share of the
Revolving Credit Commitments would be Twenty Percent (20%) and (b) if the
original principal amount of a Loan is $5,000,000.00 and the portion of such
Loan made by one Bank is $500,000.00, such Bank's Pro Rata Share of such
Loan would be Ten Percent (10%). As of the date of this Agreement, the Pro
Rata Shares of the Banks with respect to the Revolving Credit Commitments
and the Loans are as follows: (a) Mercantile - Forty-One and
666,666/1,000,000 Percent (41.666666%); (b) Bank of America, N.A. - Twenty-
Nine and 166,667/1,000,000 Percent (29.166667%); and (c) Credit Suisse First
Boston - Twenty-Nine and 166,667/1,000,000 Percent (29.166667%).
Purchasing Bank and Purchasing Banks shall have the respective meanings
ascribed thereto in Section 2.19.
Regulation D shall mean Regulation D of the Board of Governors of the
Federal Reserve System, as amended.
Regulatory Change shall have the meaning ascribed thereto in Section
2.12.
Required Banks shall mean at any time Banks having at least Sixty
Percent (60%) of the aggregate amount of Loans then outstanding or, if no
Loans are then outstanding, at least Sixty Percent (60%) of the total
Revolving Credit Commitments of all of the Banks.
Revolving Credit Commitment shall mean, subject to (a) any reduction of
the Revolving Credit Commitments pursuant to Section 2.01(c), (b)
assignments of the Revolving Credit Commitments by the Banks to the extent
permitted by Section 8.10 and (c) the addition of any new Banks to this
Agreement: (i) with respect to Mercantile, $50,000,000.00; (ii) with respect
to Bank of America, N.A., $35,000,000.00; and (iii) with respect to Credit
Suisse First Boston, $35,000,000.00.
Revolving Credit Period shall mean the period commencing on the date of
this Agreement and ending October 20, 2000.
SPC shall have the meaning ascribed thereto in Section 8.10(e).
71
Subsidiary shall mean any corporation or other entity of which more
than Fifty Percent (50%) of the issued and outstanding capital stock or
other equity interests entitled to vote for the election of directors or
persons performing similar functions (other than by reason of default in the
payment of dividends or other distributions) is at the time owned directly
or indirectly by Borrower or any Subsidiary.
Telerate Page 5 shall mean the display designated as "Page 5" on the
Telerate Service (or such other page as may replace Page 5 on that service
or such other service as may be used by the Agent for the purpose of
determining the rate per annum for overnight Federal Funds transactions).
Telerate Page 3750 shall mean the display designated as "Page 3750" on
the Telerate Service (or such other page as may replace Page 3750 on that
service or such other service as may be nominated by the British Bankers'
Association as the information vendor for the purpose of displaying British
Bankers' Association Interest Settlement Rates for U.S. Dollar Deposits).
Transaction Documents shall mean this Agreement, the Notes and any and
all other agreements, documents and instruments heretofore, now or hereafter
delivered to the Agent or any Bank with respect to or in connection with or
pursuant to this Agreement, any Loans made hereunder or any of the other
Borrower's Obligations, and executed by or on behalf of Borrower, all as the
same may from time to time be amended, modified, extended, renewed or
restated.
SECTION 2. THE LOANS.
----------------------
2.01 Revolving Credit Commitments. (a) Subject to the terms and
conditions set forth in this Agreement and so long as no Default or Event of
Default has occurred and is continuing, during the Revolving Credit Period,
each Bank severally agrees to make such loans to Borrower (individually, a
"Loan" and collectively, the "Loans") as Borrower may from time to time
request pursuant to Section 2.02. Each Loan under this Section 2.01(a)
which is a Floating Rate Loan shall be for an aggregate principal amount of
at least $50,000.00 or any larger multiple of $25,000.00. 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
$1,000,000.00. 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 total Revolving Credit Commitments of all of
the Banks. Each Loan under this Section 2.01 shall be made from the several
Banks ratably in proportion to their respective Pro Rata Shares. Within the
foregoing limits, Borrower may borrow under this Section 2.01(a), prepay
under Section 2.08 and reborrow at any time during the Revolving Credit
Period under this Section 2.01(a). All Loans not paid prior to the last day
of the Revolving Credit Period, together with all accrued and unpaid
interest thereon and all fees and other amounts owing by Borrower to the
Agent and/or any Bank with respect thereto, shall be due and payable on the
last day of the Revolving Credit Period. The failure of any Bank to make
any Loan required under this Agreement shall not release any other Bank from
its obligation to make Loans as provided herein.
(b) If the total Revolving Credit Commitments of all of the Banks on
any date should be less than the aggregate principal amount of Loans
72
outstanding on such date, whether as a result of Borrower's election to
decrease the amount of the Revolving Credit Commitments of the Banks
pursuant to Section 2.01(c) or otherwise, Borrower shall be automatically
required (without demand or notice of any kind by the Agent or any Bank, all
of which are hereby expressly waived by Borrower) to immediately repay the
Loans in an amount sufficient to reduce the aggregate principal amount of
outstanding Loans to an amount equal to or less than the total Revolving
Credit Commitments of all of the Banks.
(c) Borrower may, upon five (5) Domestic Business Days' prior written
notice to the Agent and each Bank, terminate entirely at any time, or
proportionately reduce from time to time on a pro rata basis among the Banks
based on their respective Pro Rata Shares by an aggregate amount of
$10,000,000.00 or any larger multiple of $1,000,000.00 the unused portions
of the Revolving Credit Commitments; provided, however, that (i) at no time
shall the Revolving Credit Commitments be reduced to a figure less than the
aggregate principal amount of outstanding Loans, (ii) at no time shall the
Revolving Credit Commitments be reduced to a figure greater than zero but
less than $50,000,000.00 and (iii) any such termination or reduction shall
be permanent and Borrower shall have no right to thereafter reinstate or
increase, as the case may be, the Revolving Credit Commitment of any Bank.
2.02 Method of Borrowing. (a) Borrower shall give notice (a "Notice
of Borrowing") to the Agent by 10:00 a.m. (St. Louis time) on the Domestic
Business Day of each Floating Rate Loan to be made to Borrower, and by 10:00
a.m. (St. Louis Time) at least three (3) Eurodollar Business Days before
each LIBOR Loan to be made to Borrower, specifying:
(i) the date of such Loan, which shall be a Domestic Business Day in
the case of a Floating Rate Loan and a Eurodollar Business Day in the
case of a LIBOR Loan;
(ii) the aggregate principal amount of such Loan;
(iii) whether such Loan is to be a Floating Rate Loan or a LIBOR Loan;
and
(iv) in the case of a LIBOR Loan, the duration of the initial
Interest Period applicable thereto, subject to the provisions of the
definition of Interest Period.
(b) Upon receipt of a Notice of Borrowing given to it, the Agent shall
notify each Bank by 11:00 a.m. (St. Louis time) on the date of receipt
of such Notice of Borrowing by the Agent (which must be a Domestic
Business Day) of the contents thereof and of such Bank's Pro Rata Share
of such Loan. A Notice of Borrowing shall not be revocable by
Borrower.
(c) Not later than 1:00 p.m. (St. Louis time) on the date of each Loan,
each Bank shall (except as provided in subsection (d) of this Section)
make available its Pro Rata Share of such Loan, in Federal or other
funds immediately available in St. Louis, Missouri, to the Agent at its
address specified in or pursuant to Section 8.05. Unless the Agent
determines that any applicable condition specified in Section 3 has not
been satisfied, the Agent will make the funds so received from the
Banks available to Borrower immediately thereafter at the Agent's
aforesaid address by crediting such funds to a demand deposit account
of Borrower at Mercantile specified by Borrower (or such other account
mutually agreed upon in writing between the Agent and Borrower). The
Agent shall not be required to make any amount available to Borrower
hereunder except to the extent the Agent shall have received such
73
amounts from the Banks as set forth herein, provided, however, that
unless the Agent shall have been notified by a Bank prior to the time a
Loan is to be made hereunder that such Bank does not intend to make its
Pro Rata Share of such Loan available to the Agent, the Agent may
assume that such Bank has made such Pro Rata Share available to the
Agent prior to such time, and the Agent may in reliance upon such
assumption make available to Borrower a corresponding amount. If such
corresponding amount is not in fact made available to the Agent by such
Bank and the Agent has made such amount available to Borrower, the
Agent shall be entitled to receive such amount from such Bank forthwith
upon its demand, together with interest thereon in respect of each day
during the period from and including the date such amount was made
available to Borrower to but excluding the date the Agent recovers such
amount from such Bank at a rate per annum equal to the Fed Funds Base
Rate.
(d) If any Bank makes a new Loan to Borrower under this Agreement on a
day on which Borrower is required to or has elected to repay all or any
part of an outstanding Loan to Borrower from such Bank, such Bank shall
apply the proceeds of its new Loan to make such repayment and only an
amount equal to the difference (if any) between the amount being
borrowed and the amount being repaid shall be made available by such
Bank to the Agent as provided in subsection (c) of this Section, or
remitted by Borrower to the Agent as provided in Section 2.09, as the
case may be.
(e) Borrower hereby irrevocably authorizes the Agent to rely on
telephonic, telegraphic, telecopy, telex or written instructions of any
person identifying himself or herself as one of the individuals listed
on Schedule 2.02 attached hereto (or any other individual from time to
time authorized to act on behalf of Borrower pursuant to a resolution
adopted by the Board of Directors of Borrower and certified by the
Secretary of Borrower and delivered to the Agent) with respect to any
request to make a Loan or a repayment hereunder, and on any signature
which the Agent believes to be genuine, and Borrower shall be bound
thereby in the same manner as if such individual were actually
authorized or such signature were genuine. Borrower also hereby agrees
to defend and indemnify the Agent and each Bank and hold the Agent and
each Bank harmless from and against any and all claims, demands,
damages, liabilities, losses, costs and expenses (including, without
limitation, reasonable attorneys' fees and expenses) relating to or
arising out of or in connection with the acceptance of instructions for
making Loans or repayments under this Agreement.
2.03 Notes. (a) The Loans of each Bank to Borrower shall be evidenced
by a Revolving Credit Note of Borrower payable to the order of such
Bank in a principal amount equal to the amount of such Bank's Revolving
Credit Commitment, each of which Revolving Credit Notes shall be in
substantially the form of Exhibit A attached hereto and incorporated
herein by reference (with appropriate insertions) (collectively, as the
same may from time to time be amended, modified, extended, renewed,
restated or replaced (including, without limitation, any Revolving
Credit Note issued in full or partial replacement of an existing
Revolving Credit Note as a result of an assignment by a Bank), the
"Revolving Credit Notes").
74
(b) Each Bank shall record in its books and records the date, amount,
type and maturity of each Loan made by it to Borrower and the date and
amount of each payment of principal and/or interest made by Borrower
with respect thereto; provided, however, that the obligation of
Borrower to repay each Loan made by a Bank to Borrower under this
Agreement shall be absolute and unconditional, notwithstanding any
failure of such Bank to make any such recordation or any mistake by
such Bank in connection with any such recordation. The books and
records of each Bank showing the account between such Bank and Borrower
shall be conclusive evidence of the items set forth therein in the
absence of manifest error.
2.04 Duration of Interest Periods and Selection of Interest Rates. (a)
The duration of the initial Interest Period for each LIBOR Loan shall
be as specified in the applicable Notice of Borrowing. Borrower shall
elect the duration of each subsequent Interest Period applicable to
such LIBOR Loan and the interest rate to be applicable during such
subsequent Interest Period (and Borrower shall have the option (i) in
the case of any Floating Rate Loan, to elect that such Floating Rate
Loan become a LIBOR Loan and the Interest Period to be applicable
thereto, and (ii) in the case of any LIBOR Loan, to elect that such
LIBOR Loan become a Floating Rate Loan), by giving notice of such
election to the Agent by 10:00 a.m. (St. Louis time) on the Domestic
Business Day of, in the case of the election of the Floating Rate, and
by 10:00 a.m. (St. Louis time) at least three (3) Eurodollar Business
Days before, in the case of the election of the LIBOR Rate, the end of
the immediately preceding Interest Period applicable thereto, if any;
provided, however, that notwithstanding the foregoing, in addition to
and without limiting the rights and remedies of the Agent and the Banks
under Section 6 hereof, so long as any Default or Event of Default
under this Agreement has occurred and is continuing, Borrower shall not
be permitted to renew any LIBOR Loan as a LIBOR Loan or to convert any
Floating Rate Loan into a LIBOR Loan. Upon receipt of any such notice
given by Borrower to the Agent under this Section 2.04, the Agent shall
notify each Bank by 11:00 a.m. (St. Louis time) on the date of receipt
of such notice (which must be a Domestic Business Day) of the contents
thereof. If the Agent does not receive a notice of election for a Loan
pursuant to this Section 2.04(a) within the applicable time limits
specified herein, Borrower shall be deemed to have elected to pay such
Loan in whole pursuant to Section 2.09 on the last day of the current
Interest Period with respect thereto and to reborrow the principal
amount of such Loan on such date as a Floating Rate Loan.
(b) Borrower may not have outstanding and the Banks shall not be
obligated to make more than ten (10) LIBOR Loans at any one time.
2.05 Interest Rates. (a) So long as no Event of Default under this
Agreement has occurred and is continuing, each Floating Rate Loan shall
bear interest on the outstanding principal amount thereof, for each day
from the date such Loan is made until it becomes due, at a rate per
annum equal to the Floating Rate. So long as any Event of Default
under this Agreement has occurred and is continuing, each Floating Rate
Loan shall bear interest on the outstanding principal amount thereof,
for each day from the date such Floating Rate is made until it becomes
due, at a rate per annum equal to Two Percent (2%) over and above the
Floating Rate. Such interest shall be payable monthly in arrears on
the last day of each month commencing on the first such date after such
Floating Rate Loan is made, and at the maturity of the Revolving Credit
Notes (whether by reason of acceleration or otherwise). From and after
the maturity of the Revolving Credit Notes, whether by reason of
75
acceleration or otherwise, each Floating Rate Loan shall bear interest,
payable on demand, for each day until paid at a rate per annum equal to
Two Percent (2%) over and above the Floating Rate.
(b) So long as no Event of Default under this Agreement has occurred
and is continuing, each LIBOR Loan shall bear interest on the
outstanding principal amount thereof for each Interest Period
applicable thereto at a rate per annum equal to the applicable LIBOR
Rate. So long as any Event of Default under this Agreement has
occurred and is continuing, each LIBOR Loan shall bear interest on the
outstanding principal amount thereof for each Interest Period
applicable thereto at a rate per annum equal to Two Percent (2%) over
and above the applicable LIBOR Rate. Interest shall be payable for
each Interest Period on the last day thereof, unless the duration of
such Interest Period exceeds three (3) months, in which case such
interest shall be payable at the end of the first three (3) months of
such Interest Period and on the last day of such Interest Period, and
at the maturity of the Revolving Credit Notes (whether by reason of
acceleration or otherwise). From and after the maturity of the
Revolving Credit Notes, whether by reason of acceleration or otherwise,
each LIBOR Loan shall bear interest, payable on demand, for each day until
paid, at a rate per annum equal to Two Percent (2%) over and above the
higher of (i) the LIBOR Rate for the immediately preceding Interest Period
applicable to such LIBOR Loan or (ii) the Floating Rate.
(c) The Agent shall determine each interest rate applicable to the
Loans hereunder and its determination thereog shall be conclusive in
the absence of manifest error.
2.06 Computation of Interest. Interest on Floating Rate Loans hereunder
shall be computed on the basis of a year of 360 days and paid for the
actual number of days elapsed (including the first day but excluding
the last day). Interest on LIBOR Loans shall be computed on the basis
of a year of 360 days and paid for the actual number of days elapsed,
calculated as to each Interest Period from and including the first day
thereof to but excluding the last day thereof.
2.07 Fees. (a) From and including the date of this Agreement to but
excluding the last day of the Revolving Credit Period, Borrower shall
pay to the Agent for the account of each Bank a nonrefundable
commitment fee on the unused portion of the Revolving Credit Commitment
of such Bank (determined by subtracting the aggregate principal amount
of outstanding Loans made by such Bank to Borrower from such Bank's
Revolving Credit Commitment) at the rate of Five-Hundredths of One
Percent (.05%) per annum. Said commitment fee shall be (i) calculated
on a daily basis, (ii) payable quarterly in arrears on each March 31,
June 30, September 30 and December 31 during the Revolving Credit
Period commencing December 31, 1999, and on the last day of the
Revolving Credit Period and (iii) calculated on an actual day, 360-day
year basis.
(b) Borrower agrees to pay the Agent for its own account certain fees
in the amounts set forth in a letter agreement between Borrower and the
Agent dated October 22, 1999, as the same may from time to time be
amended, modified, extended, renewed or restated.
2.08 Prepayments. (a) Borrower may, upon notice to the Agent
specifying that it is paying the Floating Rate Loans, pay without
penalty or premium the Floating Rate Loans in whole at any time or in
part from time to time, by paying the principal amount to be paid.
76
Each such optional payment shall be applied to pay the Floating Rate
Loans of the several Banks in proportion to their respective Pro Rata
Shares.
(b) Borrower may, upon at least three (3) Eurodollar Business Day's
notice to the Agent specifying that it is paying the LIBOR Loans, pay
the LIBOR Loans to which a given Interest Period applies, in whole, or
in part in amounts aggregating $2,500,000.00 or any larger multiple of
$1,000,000.00, by paying the principal amount to be paid together with
all accrued and unpaid interest thereon to and including the date of
payment and any funding losses and other amounts payable under Section
2.10; provided, however, that in no event may Borrower make a partial
payment of LIBOR Loans which results in the total outstanding LIBOR
Loans with respect to which a given Interest Period applies being
greater than $0.00 but less than $2,500,000.00. Each such optional
payment shall be applied to pay the LIBOR Loans of the several Banks in
proportion to their respective Pro Rata Shares.
(c) Upon receipt of a notice of payment pursuant to this Section, the
Agent shall promptly notify each Bank of the contents thereof and of
such Bank's Pro Rata Share of such payment and such notice shall not
thereafter be revocable by Borrower.
2.09 General Provisions as to Payments. Borrower shall make each
payment of principal of, and interest on, the Loans and of fees and all
other amounts payable by Borrower under this Agreement, not later than
12:00 noon (St.Louis time) on the date when due and payable, without
condition or deduction for any counterclaim, defense, recoupment or
setoff, in Federal or other funds immediately available in St.Louis,
Missouri, to the Agent at its address referred to in Section 8.05. All
payments received by the Agent after 12:00 noon (St. Louis time) shall
be deemed to have been received by the Agent on the next succeeding
Domestic Business Day. The Agent will distribute to each Bank in
immediately available funds its Pro Rata Share of each such payment
received by the Agent for the account of the Banks by 2:00 p.m. (St.
Louis time) on the day of receipt of such payment by the Agent if such
payment is received by the Agent from Borrower by 12:00 noon (St. Louis
time) on such day or by 12:00 noon (St. Louis time) on the next
succeeding Domestic Business Day if such payment is received by the
Agent from Borrower after 12:00 noon (St. Louis time) on such day. Any
such payment owed by the Agent to any Bank which is not paid within the
applicable time period shall bear interest until paid (payable by the Agent)
at the Fed Funds Base Rate. Whenever any payment of principal of, or
interest on, the Loans or of fees shall be due on a day which is not a
Domestic Business Day, the date for payment thereof shall be extended to the
next succeeding Domestic Business Day. If the date for any payment of
principal is extended by operation of law or otherwise, interest thereon, at
the then applicable rate, shall be payable for such extended time.
2.10 Funding Losses. Notwithstanding any provision contained in this
Agreement to the contrary, (a) if Borrower makes any payment of
principal with respect to any LIBOR Loan (pursuant to Sections 2 or 6
or otherwise) on any day other than the last day of the Interest Period
applicable thereto, or if Borrower fails to borrow or pay any LIBOR Loan
after notice has been given by Borrower to the Agent in accordance with
Section 2.02, 2.04, 2.08 or otherwise, Borrower shall reimburse each Bank on
demand for any resulting losses and expenses incurred by it, including,
without limitation, any losses incurred in obtaining, liquidating or
employing deposits from third parties and 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
77
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 dollars (in the applicable amounts) are not being
offered to any Bank in the relevant market for such Interest Period, or
(b) any Bank determines in good faith that the LIBOR Rate as determined
pursuant to the definition thereof will not adequately and fairly reflect
the cost to such Bank of maintaining or funding the LIBOR Loans for such
Interest Period, such Bank shall forthwith give notice thereof to Borrower
which notice shall set forth in detail the basis for such notice, whereupon
until such Bank notifies Borrower that the circumstances giving rise to such
suspension no longer exist, (i) the LIBOR Rate shall not be available to
Borrower as an interest rate option on any Loans made by such Bank and (ii)
all of the then outstanding LIBOR Loans made by such Bank shall
automatically convert to Floating Rate Loans on the last day of the then
current Interest Period applicable to each such LIBOR Loan. Interest accrued
on each such LIBOR Loan prior to any such conversion shall be due and
payable on the date of such conversion.
2.12 Illegality. If, after the date of this Agreement, the adoption of
any applicable law, rule or regulation, or any change therein, or any change
in the interpretation or administration thereof by any 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 Borrower. Upon receipt of such notice,
Borrower shall convert all of its then outstanding LIBOR Loans from such
Bank on either (a)the last day of the then current Interest Period
applicable to such LIBOR Loan if such Bank may lawfully continue to maintain
and fund such LIBOR Loan to such day or (b)immediately if such Bank may not
lawfully continue to fund and maintain such LIBOR Loan to such day, to a
Floating Rate Loan in an equal principal amount. Interest accrued on each
such LIBOR Loan prior to any such conversion shall be due and payable on the
date of such conversion together with any funding losses and other amounts
due under Section 2.10.
2.13 Increased Cost. (a) If (i) Regulation D or (ii) a Regulatory
Change:
(A) shall subject any Bank to any tax, duty or other charge with
respect to its LIBOR Loans, its Note or its obligation to make LIBOR
Loans, or shall change the basis of taxation of payments to any Bank of
the principal of or interest on its LIBOR Loans or any other amounts
due under this Agreement in respect of its LIBOR Loans or its
obligation to make LIBOR Loans (except for taxes on or changes in the
rate of tax on the overall net income of such Bank); or
(B) shall impose, modify or deem applicable any reserve (including,
without limitation, any reserve imposed by the Board of Governors of
the Federal Reserve System), special deposit, capital or similar
requirement against assets of, deposits with or for the account of, or
credit extended or committed to be extended by, any Bank or shall, with
respect to any Bank impose, modify or deem applicable any other
condition affecting such Bank's LIBOR Loans, such Bank's Note or such
Bank's obligation to make LIBOR Loans;
78
and the result of any of the foregoing is to increase the cost to (or
in the case of Regulation D, to impose a cost on or increase the cost
to) such Bank of making or maintaining any LIBOR Loan, or to reduce the
amount of any sum received or receivable by such Bank under this
Agreement or under its Note with respect thereto, by an amount deemed
by such Bank to be material, and if such Bank is not otherwise fully
compensated for such increase in cost or reduction in amount received
or receivable by virtue of the inclusion of the reference to "LIBOR
Reserve Percentage" in the calculation of the LIBOR Rate, then upon
notice by such Bank to 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
Floating Rate Loans in an equal principal amount. Interest accrued on each
such LIBOR Loan prior to any such conversion shall be due and payable on the
date of such conversion together with any funding losses and other amounts
due under Section 2.10 and this Section 2.13.
2.14 Floating Rate Loans Substituted for Affected LIBOR Loans. If
notice has been given by a Bank pursuant to Sections 2.11 or 2.12 or by
Borrower pursuant to Section 2.13 requiring LIBOR Loans of any Bank to be
repaid, then, unless and until such Bank notifies Borrower that the
circumstances giving rise to such repayment no longer apply, all Loans which
would otherwise be made by such Bank to Borrower as LIBOR Loans shall be
made instead as Floating Rate Loans. Such Bank shall promptly notify
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 will entitle such Bank to compensation pursuant
to Sections 2.10, 2.13 and/or 2.15 hereof within one hundred eighty (180)
days after such Bank obtains knowledge of such event, then such Bank shall
not be entitled to any compensation from Borrower for any loss, expense,
increased cost and/or reduction of return arising from such event.
79
2.17 Discretion of Banks as to Manner of Funding. Notwithstanding any
provision contained in this Agreement to the contrary, each Bank shall be
entitled to fund and maintain its funding of all or any part of its LIBOR
Loans in any manner it elects, it being understood, however, that for
purposes of this Agreement all determinations hereunder (including, without
limitation, the determination of each Bank's funding losses and expenses
under Section 2.10) shall be made as if such Bank had actually funded and
maintained each LIBOR Loan through the purchase of deposits having a
maturity corresponding to the maturity of the applicable Interest Period
relating to the applicable LIBOR Loan and bearing an interest rate equal to
the applicable LIBOR Base Rate.
2.18 Sharing of Payments. The Banks agree among themselves that, in
the event that any Bank shall directly or indirectly obtain any payment
(whether voluntary, involuntary, through the exercise of any right of set-
off, banker's lien or counterclaim, through the realization, collection,
sale or liquidation of any collateral or otherwise) on account of or in
respect of any of the Loans or any of the other Borrower's Obligations in
excess of its Pro Rata Share of all such payments, such Banks 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
Agent, to seek a mutually satisfactory substitute bank or banks (which may
be one or more of the Banks) (the "Purchasing Bank" or "Purchasing Banks")
to purchase the Note and assume the Revolving Credit Commitment of such
Affected Bank. The Affected Bank shall be obligated to sell its Note and
assign its Revolving Credit Commitment to such Purchasing Bank or Purchasing
Banks within fifteen (15) days after receiving notice from Borrower
requiring it to do so, at an aggregate price equal to the outstanding
principal amount thereof plus unpaid interest accrued thereon up to but
excluding the date of sale. In connection with any such sale, and as a
condition thereof, Borrower shall pay to the Affected Bank the sum of (a)
all fees accrued for its account under this Agreement to but excluding the
date of such sale, (b) the amount of any compensation which would be due to
the Affected Bank under Section 2.10 if Borrower had prepaid the outstanding
LIBOR Loans of the Affected Bank on the date of such sale and (c) any
additional compensation accrued for its account under Sections 2.13 and/or
2.15 to but excluding said date. Upon such sale, (a) the Purchasing Bank or
80
Purchasing Banks shall assume the Affected Bank's Revolving Credit
Commitment and the Affected Bank shall be released from its obligations
under this Agreement to a corresponding extent and (b) the Affected Bank, as
assignor, such Purchasing Bank, as assignee, Borrower and the Agent shall
enter into an Assignment and Assumption Agreement in accordance with Section
8.10(c), whereupon such Purchasing Bank shall be a Bank party to this
Agreement, shall be deemed to be an Assignee under this Agreement and shall
have all the rights and obligations of a Bank with a Revolving Credit
Commitment equal to its ratable share of the Revolving Credit Commitment of
the Affected Bank. In connection with any assignment pursuant to this
Section, Borrower shall pay to the Agent the administrative fee of $2,500.00
for processing such assignment referred to in Section 8.10(c). Upon the
consummation of any sale pursuant to this Section 2.19, the Affected Bank,
the Agent and the Borrower shall make appropriate arrangements so that, if
required, each Purchasing Bank receives a new Note.
2.20 Taxes.
(a) Any and all payments by Borrower to or for the account of any Bank
or the Agent under any Transaction Document shall be made free and clear of
and without deduction for any and all present or future taxes, duties,
levies, imposts, deductions, charges or withholdings, and all liabilities
with respect thereto, excluding, in the case of each Bank and the Agent,
taxes imposed on or measured by its net income, and franchise taxes imposed
on it, by the jurisdiction under the laws of which such Bank or the Agent
(as the case may be) is organized or any political subdivision thereof (all
such non-excluded taxes, duties, levies, imposts, deductions, charges,
withholdings and liabilities being hereinafter referred to as "Taxes"). If
Borrower shall be required by law to deduct any Taxes from or in respect of
any sum payable under any Transaction Document to any Bank or the Agent, (i)
the sum payable shall be increased as necessary so that after making all
required deductions (including deductions applicable to additional sums
payable under this Section 2.20(a)) such Bank or the Agent (as the case may
be) receives an amount equal to the sum it would have received had no such
deduction of Taxes been made, (ii) Borrower shall make such deductions,
(iii) Borrower shall pay the full amount deducted to the relevant taxation
authority or other authority in accordance with applicable law and (iv)
Borrower shall furnish to the Agent (who shall forward the same to the
applicable Bank), at its address referred to in Section 8.05, the original
or a certified copy of a receipt evidencing payment thereof.
(b) In addition, Borrower agrees to pay any present or future stamp or
documentary taxes and any other excise or property taxes, or charges or
similar levies which arise from any payment made under any of the
Transaction Documents or from the execution or delivery of, or otherwise
with respect to, any of the Transaction Documents (hereinafter referred to
as "Other Taxes").
(c) Borrower agrees to indemnify each Bank and the Agent for the full
amount of Taxes or Other Taxes, respectively (including, without limitation,
any Taxes or Other Taxes imposed or asserted by any jurisdiction on amounts
payable under this Section 2.20), paid by such Bank or the Agent (as the
case may be) and any liability (including penalties, interest and expenses)
arising therefrom or with respect thereto. This indemnification shall be
made within fifteen (15) days from the date such Bank or the Agent (as the
case may be) makes demand therefor, accompanied by a certificate of such
Bank or the Agent (as the case may be) setting forth in reasonable detail
its computation of the amount or amounts to be paid to it hereunder.
(d) The provisions of this Section 2.20 shall survive any expiration or
termination of this Agreement and the payment of the Notes and the other
Borrower's Obligations.
81
SECTION 3. PRECONDITIONS TO LOANS.
-----------------------------------
3.01 Initial Loans. Notwithstanding any provision contained in this
Agreement to the contrary, none of the Banks shall have any obligation to
make the initial Loans under this Agreement unless the Agent shall have
first received:
(a) this Agreement and the Notes, each executed by a duly authorized
officer of Borrower;
(b) a copy of resolutions of the Board of Directors of Borrower,
duly adopted, which authorize the execution, delivery and performance
of this Agreement, the Notes and the other Transaction Documents,
certified by the Secretary of Borrower;
(c) a copy of the Articles of Incorporation of Borrower, including
any amendments thereto, certified by the Secretary of Borrower;
(d) a copy of the By-Laws of Borrower, including any amendments
thereto, certified by the Secretary of Borrower;
(e) an incumbency certificate, executed by the Secretary of Borrower,
which shall identify by name and title and bear the signatures of all
of the officers of Borrower executing any of the Transaction Documents;
(f) a certificate of corporate good standing of Borrower issued by
the Secretary of State of the State of Missouri;
(g) an opinion of the General Counsel of Borrower in form and
substance satisfactory to the Agent and each of the Banks;
(h) the Notice of Borrowing required by Section 2.02; and
(i) such other agreements, documents, instruments and certificates as
the Agent or any Bank may reasonably request.
3.02 All Loans. Notwithstanding any provision contained in this
Agreement to the contrary, none of the Banks shall have any obligation to
make any Loan under this Agreement unless:
(a) the Agent shall have received a Notice of Borrowing for such Loan
as required by Section 2.02;
(b) both immediately before and immediately after giving effect to
such Loan, no Default or Event of Default under this Agreement shall
have occurred and be continuing;
(c) no material adverse change in the properties, assets,
liabilities, business, operations, prospects, income or condition
(financial or otherwise) of Borrower and its Subsidiaries taken as a
whole shall have occurred since the date of this Agreement and be
continuing; and
(d) all of the representations and warranties made by Borrower in
this Agreement and/or in any of the other Transaction Documents shall
be true and correct in all material respects on and as of the date of
such Loan as if made on and as of the date of such Loan (and for
purposes of this Section 3.02(d), the representations and warranties
made by Borrower in Section 4.04 shall be deemed to refer to the most
recent financial statements of Borrower delivered to the Banks pursuant
to Section 5.01(a)).
82
Each request for a Loan by Borrower under this Agreement shall be
deemed to be a representation and warranty by Borrower on the date of such
Loan as to the facts specified in clauses (b), (c) and (d) of this Section
3.02.
SECTION 4. REPRESENTATIONS AND WARRANTIES.
-------------------------------------------
Borrower hereby represents and warrants to the Agent and each Bank that:
4.01 Corporate Existence and Power. Borrower: (a) is duly
incorporated, validly existing and in good standing under the laws of the
State of Missouri; (b) has all requisite corporate powers required to carry
on its business as now conducted; (c) has all requisite governmental and
regulatory licenses, authorizations, consents and approvals required to
carry on its business as now conducted, except such licenses,
authorizations, consents and approvals the failure to have could not
reasonably be expected to have a Material Adverse Effect; and (d) is
qualified to transact business as a foreign corporation in, and is in good
standing under the laws of, all states in which it is required by applicable
law to maintain such qualification and good standing except for those states
in which the failure to qualify or maintain good standing could not
reasonably be expected to have a Material Adverse Effect.
4.02 Corporate Authorization. The execution, delivery and performance
by Borrower of this Agreement, the Notes and the other Transaction Documents
are within the corporate powers of Borrower and have been duly authorized by
all necessary corporate and other action on the part of Borrower.
4.03 Binding Effect. This Agreement, the Notes and the other
Transaction Documents have been duly executed and delivered by Borrower and
constitute the legal, valid and binding obligations of Borrower enforceable
against Borrower in accordance with their respective terms, except as such
enforceability may be limited by bankruptcy, insolvency or other similar
laws affecting creditors' rights generally and by general principles of
equity (regardless of whether such enforceability is considered in a
proceeding in equity or at law).
4.04 Financial Statements. Borrower has furnished the Agent and each
of the Banks with the following financial statements: (a) consolidated and
consolidating balance sheets and statements of income, retained earnings and
cash flows of Borrower and its Subsidiaries as of and for the fiscal year of
Borrower ended December 31, 1998, all certified by Borrower's independent
certified public accountants, which financial statements have been prepared
in accordance with GAAP consistently applied; and (b) unaudited consolidated
and consolidating balance sheets and statements of income, retained earnings
and cash flows of Borrower and its Subsidiaries as of and for the fiscal
quarter of Borrower ended June 30, 1999, certified by the chief financial
officer of Borrower as being true, correct and complete in all material
respects and as being prepared in accordance with GAAP consistently applied.
Borrower further represents and warrants to the Agent and each Bank that (a)
said balance sheets and their accompanying notes (if any) fairly present the
condition of Borrower and its Subsidiaries as of the dates thereof, (b)
there has been no material adverse change in the condition or operation,
financial or otherwise, of Borrower and its Subsidiaries taken as a whole
since June 30, 1999, 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).
83
4.05 Compliance With Other Instruments; None Burdensome. None of the
execution and delivery by Borrower of the Transaction Documents, the
performance by Borrower of its obligations under the Transaction Documents
or the borrowing and/or repayment of Loans by Borrower under this Agreement
will conflict with, or result in a breach of the terms, conditions or
provisions of, or constitute a default under or result in any violation of,
any law, rule, regulation, order, writ, judgment, injunction, decree or
award binding on Borrower, any of the provisions of the Articles of
Incorporation or By-Laws of Borrower or any of the provisions of any
indenture, agreement, document, instrument or undertaking to which Borrower
is a party or subject, or by which Borrower or any property or assets of
Borrower is bound, or result in the creation or imposition of any security
interest, lien or encumbrance on any of the property or assets of Borrower
pursuant to the terms of any such indenture, agreement, document, instrument
or undertaking. No order, consent, approval, license, authorization or
validation of, or filing, recording or registration with, or exemption by,
any governmental, regulatory, administrative or public body,
instrumentality, authority, agency or official, or any subdivision thereof,
or any other Person is required to authorize, or is required in connection
with, (a) the execution, delivery or performance of, or the legality,
validity, binding effect or enforceability of, any of the Transaction
Documents and/or (b) the borrowing and/or repayment of Loans by Borrower
under this Agreement.
4.06 Regulation U. Borrower is not engaged principally, or as one of
its important activities, in the business of extending credit for the
purpose of purchasing or carrying margin stock (within the meaning of
Regulation U of The Board of Governors of the Federal Reserve System, as
amended) and no part of the proceeds of any Loan will be used, whether
directly or indirectly, and whether immediately, incidentally or ultimately
(a) to purchase or carry margin stock or to extend credit to others for the
purpose of purchasing or carrying margin stock, or to refund or repay
indebtedness originally incurred for such purpose or (b) for any purpose
which entails a violation of, or which is inconsistent with, the provisions
of any of the Regulations of The Board of Governors of the Federal Reserve
System, including, without limitation, Regulations U, T or X thereof, as
amended. If requested by the Agent or any Bank, Borrower shall furnish to
the Agent and each Bank a statement in conformity with the requirements of
Federal Reserve Form U-1 referred to in Regulation U.
4.07 Investment Company Act of 1940; Public Utility Holding Company Act
of 1935. Borrower is not an "investment company" as that term is defined
in, and is not otherwise subject to regulation under, the Investment Company
Act of 1940, as amended. Borrower is not a "holding company" as that term
is defined in, and is not otherwise subject to regulation under, the Public
Utility Holding Company Act of 1935, as amended.
4.08 No Default. No Default or Event of Default under this Agreement
has occurred and is continuing. There is no existing default or event of
default under or with respect to any indenture, contract, agreement, lease
or other instrument to which Borrower is a party or by which any property or
assets of Borrower is bound or affected, a default under which could
reasonably be expected to have a Material Adverse Effect. Borrower has and
is in full compliance with and in good standing with respect to all
governmental permits, licenses, certificates, consents and franchises
necessary to continue to conduct its business as previously conducted by it
and to own or lease and operate its properties and assets as now owned or
leased by it, the failure to have or noncompliance with which could
reasonably be expected to have a Material Adverse Effect. Borrower is not
in violation of any applicable statute, law, rule, regulation or ordinance
of the United States of America, of any state, city, town, municipality,
84
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.
4.09 Year 2000. Borrower has (a) initiated a review and assessment of
all material areas within its and each of its Subsidiaries' businesses and
operations (including those affected by customers and vendors) that could be
adversely affected by the "Year 2000 Problem" (that is, the risk that
computer applications and/or devices containing imbedded computer chips used
by Borrower or any of its Subsidiaries (or their respective customers and
vendors) may be unable to recognize and perform properly date-sensitive
functions involving certain dates prior to, on and/or after December 31,
1999), (b) developed a plan and timeline for addressing the Year 2000
Problem on a timely basis and (c) to date, implemented that plan in
accordance with that timetable. Based on the foregoing, Borrower believes
that all computer applications and devices containing imbedded computer
chips (including those of its and its Subsidiaries' customers and vendors)
that are material to its or any of its Subsidiaries businesses and/or
operations are reasonably expected on a timely basis to be able to properly
perform date-sensitive functions for all dates before, on and after January
1, 2000 (that is, be "Year 2000 compliant"), except to the extent that a
failure to do so could not reasonably be expected to have a Material Adverse
Effect.
SECTION 5. COVENANTS.
----------------------
5.01 Covenants of Borrower. Borrower covenants and agrees that, so
long as any Bank has any obligation to make any Loan under this Agreement
and/or any of the Borrower's Obligations remain unpaid:
(a) Information. Borrower will deliver or cause to be delivered to the
Agent with sufficient copies for each Bank:
(i)within one hundred (100) days after the end of each fiscal year
of Borrower: (A) a consolidated balance sheet of Borrower and its
Subsidiaries as of the end of such fiscal year and the related
consolidated statements of income, retained earnings and cash flows for
such fiscal year, setting forth in each case, in comparative form, the
figures for the previous fiscal year, all such financial statements to
be prepared in accordance with GAAP consistently applied and reported
on by and accompanied by the unqualified opinion of independent
certified public accountants selected by Borrower and reasonably
acceptable to the Required Banks; provided, however, that delivery to
the Agent of copies of the Annual Report on Form 10-K of Borrower for
such fiscal year filed with the Securities and Exchange Commission
shall be deemed to satisfy the requirements of this Section 5.01(a)(i);
(ii) within fifty (50) days after the end of the first three (3)
fiscal quarters of each fiscal year of Borrower, a consolidated balance
sheet of Borrower and its Subsidiaries as of the end of such fiscal
quarter and the related consolidated statements of income, retained
earnings and cash flows for such fiscal quarter and for the portion of
Borrower's fiscal year ended at the end of such fiscal quarter, setting
forth in each case in comparative form, the figures for the
corresponding fiscal quarter and the corresponding portion of
Borrower's previous fiscal year, all in reasonable detail and
satisfactory in form to the Required Banks and certified (subject to
normal year-end adjustments and absence of footnote disclosures) as to
fairness of presentation, consistency and compliance with GAAP by the
chief financial officer of Borrower; provided, however, that delivery
to the Agent of copies of the Quarterly Report on Form 10-Q of Borrower
85
for such fiscal quarter filed with the Securities and Exchange
Commission shall be deemed to satisfy the requirements of this Section
5.01(a)(ii);
(iii) simultaneously with the delivery of each set of financial
statements referred to in Sections 5.01(a)(i) and (ii) above, a
certificate of an authorized officer of Borrower in the form attached
hereto as Exhibit B and incorporated herein by reference (A) stating
whether there exists on the date of such certificate any Default or
Event of Default and, if any Default or Event of Default then exists,
setting forth the details thereof and the action which Borrower is
taking or proposes to take with respect thereto and (B) certifying that
all of the representations and warranties made by Borrower in this
Agreement and/or in any other Transaction Document are true and correct
in all material respects on and as of the date of such certificate as
if made on and as of the date of such certificate; and
(iv) with reasonable promptness, such further information regarding
the business, affairs and financial condition of Borrower as the Agent
or any Bank may from time to time reasonably request.
(b) Corporate Existence. Borrower will do all things necessary to (i)
preserve and keep in full force and effect at all times its corporate
existence and all permits, licenses, franchises and other rights material to
its business and (ii) be duly qualified to do business and be in good
standing in all jurisdictions where the nature of its business or its
ownership of property or assets requires such qualification except for those
jurisdictions in which the failure to qualify or be in good standing could
not reasonably be expected to have a Material Adverse Effect.
(c) Compliance with Laws, Regulations, Etc. Borrower will comply with
any and all laws, ordinances and governmental and regulatory rules and
regulations to which Borrower is subject and obtain any and all licenses,
permits, franchises and other governmental and regulatory authorizations
necessary to the ownership of its properties or assets or to the conduct of
its business, which violation or failure to obtain could reasonably be
expected to have a Material Adverse Effect.
(d) Further Assurances. Borrower will execute and deliver to Agent and
each Bank, at any time and from time to time, any and all further
agreements, documents and instruments, and take any and all further actions
which may be required under applicable law, or which the Agent or any Bank
may from time to time reasonably request, in order to effectuate the
transactions contemplated by this Agreement and the other Transaction
Documents.
(e) Consolidation or Merger. Borrower will not directly or indirectly
merge or consolidate with or into any other Person.
5.02 Use of Proceeds. Borrower covenants and agrees that (a) the
proceeds of the Loans will be used solely for the working capital and
general corporate purposes of Borrower, (b) no part of the proceeds of any
Loan will be used in violation of any applicable law, rule or regulation and
(c) no part of the proceeds of any Loan will be used, whether directly or
indirectly, and whether immediately, incidentally or ultimately (i) to
purchase or carry margin stock or to extend credit to others for the purpose
of purchasing or carrying margin stock, or to refund or repay indebtedness
originally incurred for such purpose or (ii) for any purpose which entails a
violation of, or which is inconsistent with, the provisions of any of the
Regulations of The Board of Governors of the Federal Reserve System,
including, without limitation, Regulations U, T or X thereof, as amended.
86
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) or Section 5.02;
6.05 Borrower shall fail to perform or observe any other term, covenant
or provision contained in this Agreement (other than those specified in
Sections 6.01, 6.02 or 6.03 above) and any such failure shall remain
unremedied for thirty (30) days after the earlier of (i) written notice of
default is given to Borrower by the Agent or any Bank or (ii) any officer of
Borrower obtaining actual knowledge of such default;
6.06 This Agreement or any of the other Transaction Documents shall at
any time for any reason (other than termination of this Agreement or such
other Transaction Documents, as the case may be, in accordance with its
terms) cease to be in full force and effect or shall be declared to be null
and void by a court of competent jurisdiction, or if the validity or
enforceability thereof shall be contested or denied by Borrower, or if the
transactions completed hereunder or thereunder shall be contested by
Borrower or if Borrower shall deny that it has any further liability or
obligation hereunder or thereunder;
6.07 Borrower shall (i) voluntarily commence any proceeding or file any
petition seeking relief under Title 11 of the United States Code or any
other Federal, state or foreign bankruptcy, insolvency, receivership,
liquidation or similar law, (ii) consent to the institution of, or fail to
contravene in a timely and appropriate manner, any such proceeding or the
filing of any such petition, (iii) apply for or consent to the appointment
of a receiver, trustee, custodian, sequestrator or similar official of
itself or of a substantial part of its property or assets, (iv) file an
answer admitting the material allegations of a petition filed against itself
in any such proceeding, (v) make a general assignment for the benefit of
creditors, (vi) become unable, admit in writing its inability or fail
generally to pay its debts as they become due or (vii) take any corporate or
other action for the purpose of effecting any of the foregoing;
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
87
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 on, or
pursuant to the terms of, (i) any other present or future obligation to such
Bank, including, without limitation, any other loan, line of credit,
revolving credit, guaranty or letter of credit reimbursement obligation, or
(ii) any other present or future agreement purporting to convey to such Bank
a security interest in, or a lien or encumbrance upon, upon any property or
assets of Borrower;
6.10 The occurrence of any default or event of default under or within
the meaning of any agreement, document or instrument evidencing, securing,
guaranteeing the payment of or otherwise relating to any indebtedness of
Borrower for borrowed money (other than the Borrower's Obligations) having
an aggregate outstanding principal balance in excess of $5,000,000.00 which
is not cured or waived in writing within any applicable cure or grace
period; or
6.11 Borrower shall have a judgment in an amount in excess of
$5,000,000.00 entered against it by a court having jurisdiction in the
premises and such judgment shall not be appealed in good faith (and
execution of such judgment stayed during such appeal) or satisfied by
Borrower within thirty (30) days after the entry of such judgment;
THEN, and in each such event (other than an event described in Sections
6.07 or 6.08), the Agent may, and if requested in writing by the Required
Banks the Agent shall, declare that the obligations of the Banks to make
Loans under this Agreement have terminated, whereupon such obligations of
the Banks shall be immediately and forthwith terminated, and the Agent may
further, and if requested in writing by the Required Banks the Agent shall
further, declare the entire outstanding principal balance of and all accrued
and unpaid interest on the Notes and all of the other Borrower's Obligations
to be forthwith due and payable, whereupon all of the unpaid principal
balance of and all accrued and unpaid interest on the Notes and all of such
other Borrower's Obligations shall become and be immediately due and
payable, without presentment, demand, protest or further notice of any kind,
all of which are hereby expressly waived by Borrower, and the Agent and the
Banks may exercise any and all other rights and remedies which they may have
under any of the other Transaction Documents or under applicable law;
provided, however, that upon the occurrence of any event described in
Sections 6.07 or 6.08, the obligation of the Banks to make Loans under this
Agreement under this Agreement shall automatically terminate and the entire
outstanding principal balance of and all accrued and unpaid interest on the
Notes and all of the other Borrower's Obligations shall automatically become
immediately due and payable, without presentment, demand, protest or further
notice of any kind, all of which are hereby expressly waived by Borrower,
and the Agent and the Banks may exercise any and all other rights and
remedies which they may have under any of the other Transaction Documents or
under applicable law.
SECTION 7. AGENT
-----------------
7.01 Appointment. Mercantile Bank National Association is hereby
appointed by the Banks as Agent under this Agreement, the Notes and the
88
other Transaction Documents. The Agent agrees to act as such upon the
express conditions contained in this Agreement.
7.02 Powers. The Agent shall have and may exercise such powers
hereunder as are specifically delegated to the Agent by the terms of this
Agreement and the other Transaction Documents, together with such powers as
are reasonably incidental thereto. The Agent shall have no implied duties
to the Banks, nor any obligation to the Banks to take any action under this
Agreement or any of the other Transaction Documents, except any action
specifically provided by this Agreement or any of the other Transaction
Documents to be taken by the Agent. Without limiting the generality of the
foregoing, the Agent shall not be required to take any action with respect
to any Default or Event of Default, except as expressly provided in Section
6, Section 7.06 and Section 7.14.
7.03 General Immunity. Neither the Agent nor any of its directors,
officers, employees, agents or advisors shall be liable to any of the Banks
for any action taken or not taken by it in connection with this Agreement or
any of the other Transaction Documents (a) with the consent or at the
request of the Required Banks or (b) in the absence of its own gross
negligence or willful misconduct as determined by a court of competent
jurisdiction in a final, nonappealable order.
7.04 No Responsibility for Loans, Recitals, etc. Neither the Agent nor
any of its directors, officers, employees, agents or advisors shall (a) be
responsible for or have any duty to ascertain, inquire into or verify any
recitals, reports, statements, representations or warranties contained in
this Agreement or any of the other Transaction Documents or furnished
pursuant hereto or thereto, (b) except as set forth in Sections 2.02 and
2.09, be responsible for any Loans hereunder, (c) be bound to ascertain or
inquire as to the performance or observance of any of the terms of this
Agreement or any of the other Transaction Documents, (d) be responsible for
the satisfaction of any condition specified in Section 3, except receipt of
items required to be delivered to the Agent, (e) be responsible for the
validity, effectiveness, genuineness or enforceability of this Agreement or
any of the other Transaction Documents or (f) be responsible for the
creation, attachment, perfection or priority of any security interests or
liens purported to be granted to the Agent or any Bank pursuant to this
Agreement or any of the other Transaction Documents.
7.05 Right to Indemnity. Notwithstanding any other provision contained
in this Agreement to the contrary, to the extent Borrower fails to reimburse
the Agent pursuant to Section 8.03 or Section 8.04, or if any Default or
Event of Default shall occur under this Agreement, the Banks shall ratably
in accordance with their respective Pro Rata Shares of the aggregate
principal amount of outstanding Loans indemnify the Agent and hold it
harmless from and against any and all liabilities, losses (except losses
occasioned solely by failure of Borrower to make any payments or to perform
any obligations required by this Agreement (excepting those described in
Sections 8.03 and 8.04), the Notes or any of the other Transaction
Documents), costs and/or expenses, including, without limitation, any
liabilities, losses, costs and/or expenses arising from the failure of any
Bank to perform its obligations hereunder or in respect of this Agreement,
and also including, without limitation, reasonable attorneys' fees and
expenses, which the Agent may incur, directly or indirectly, in connection
with this Agreement, the Notes or any of the other Transaction Documents, or
any action or transaction related hereto or thereto; provided only that the
Agent shall not be entitled to such indemnification for any losses,
liabilities, costs and/or expenses resulting from its own gross negligence
or willful misconduct as determined by a court of competent jurisdiction in
a final, nonappealable order. This indemnity shall be a continuing
89
indemnity, contemplates all liabilities, losses, costs and expenses related
to the execution, delivery and performance of this Agreement, the Notes and
the other Transaction Documents, and shall survive the satisfaction and
payment of the Borrower's Obligations and the termination of this Agreement.
7.06 Action Upon Instructions of Required Banks. The Agent agrees,
upon the written request of the Required Banks, to take any action of the
type specified in this Agreement or any of the other Transaction Documents
as being within the Agent's rights, duties, powers or discretion.
Notwithstanding the foregoing, the Agent shall be fully justified in failing
or refusing to take any action hereunder, unless it shall first be
indemnified to its satisfaction by the Banks pro rata against any and all
liabilities, losses, costs and expenses (including, without limitation,
reasonable attorneys' fees and expenses) which may be incurred by it by
reason of taking or continuing to take any such action, other than any
liability resulting from the Agent's gross negligence or willful misconduct
as determined by a court of competent jurisdiction in a final, nonappealable
order. The Agent shall in all cases be fully protected in acting, or in
refraining from acting, hereunder in accordance with written instructions
signed by the Required Banks, and such instructions and any action taken or
failure to act pursuant thereto shall be binding on all of the Banks and on
all holders of the Notes. In the absence of a request by the Required
Banks, the Agent shall have authority, in its good faith discretion, to take
or not to take any action, unless this Agreement or any of the other
Transaction Documents specifically requires the consent of the Required
Banks or of all of the Banks.
7.07 Employment of Agents and Counsel. The Agent may execute any of
its duties as Agent hereunder by or through employees, agents and attorneys-
in-fact and shall not be answerable to the Banks, except as to money or
securities received by it or its authorized agents, for the default or
misconduct of any such agents or attorneys-in-fact selected by it in good
faith and with reasonable care. The Agent shall be entitled to advice and
opinion of legal counsel concerning all matters pertaining to the duties of
the agency hereby created.
7.08 Reliance on Documents; Counsel. The Agent shall be entitled to
rely upon any note, notice, consent, certificate, affidavit, letter,
telegram, statement, paper or document believed by it to be genuine and
correct and to have been signed or sent by the proper Person or Persons,
and, in respect to legal matters, upon the opinion of legal counsel selected
by the Agent.
7.09 May Treat Payee as Owner. The Agent may deem and treat the payee
of any Note as the owner thereof for all purposes hereof unless and until a
written notice of the assignment or transfer thereof shall have been filed
with the Agent. Any request, authority or consent of any Person who at the
time of making such request or giving such authority or consent is the
holder of any such Note shall be conclusive and binding on any subsequent
holder, transferee or assignee of such Note or of any Note issued in
exchange therefor.
7.10 Agent's Reimbursement. Each Bank agrees to reimburse the Agent
pro rata in accordance with its Pro Rata Share of the aggregate principal
amount of outstanding Loans for (a) any out-of-pocket costs and expenses not
reimbursed by Borrower for which the Agent is entitled to reimbursement by
the Borrower under this Agreement or any of the other Transaction Documents
and (b) for any other out-of-pocket costs and expenses incurred by the Agent
on behalf of the Banks in connection with the preparation, execution,
delivery, amendment, modification, extension, renewal, administration and/or
enforcement of this Agreement and/or any of the other Transaction Documents.
90
7.11 Rights as a Bank. With respect to its Revolving Credit
Commitment, the Loans made by it and the Note issued to it, the Agent shall
have the same rights and powers hereunder as any Bank and may exercise the
same as though it were not the Agent, and the terms "Bank" and "Banks"
shall, unless the context otherwise indicates, include the Agent in its
individual capacity. The Agent may accept deposits from, lend money to,
issue letters of credit for the account of and generally engage in any kind
of banking or trust business with the Borrower and its Subsidiaries and
affiliates as if it were not the Agent.
7.12 Independent Credit Decision. Each Bank acknowledges that it has,
independently and without reliance upon the Agent or any other Bank and
based on the financial statements referred to in Section 4.04 and such other
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement and the other Transaction
Documents. Each Bank also acknowledges that it will, independently and
without reliance upon the Agent or any other Bank and based on such
documents and information as it shall deem appropriate at the time, continue
to make its own credit decisions in taking or not taking action under this
Agreement and the other Transaction Documents.
7.13 Resignation of Agent. Subject to the appointment of a successor
Agent, the Agent may resign as Agent for the Banks under this Agreement and
the other Transaction Documents at any time by thirty (30) days' notice in
writing to the Banks and Borrower. Such resignation shall take effect upon
appointment of such successor Agent. Subject to the consent of Borrower
(which consent shall not be unreasonably withheld or delayed), the Required
Banks shall have the right to appoint a successor Agent who shall be a Bank
and who shall be entitled to all of the rights of, and vested with the same
powers as, the original Agent under this Agreement and the other Transaction
Documents. In the event a successor Agent shall not have been appointed
within the thirty (30) day period following the giving of notice by the
Agent, subject to the consent of Borrower (which consent shall not be
unreasonably withheld or delayed), the Agent may appoint its own successor.
Resignation by the Agent shall not affect or impair the rights of the Agent
under Sections 7.05 and 7.10 hereof with respect to all matters preceding
such resignation. Any successor Agent must be a national banking
association or a bank chartered in any State of the United States having a
combined capital and surplus of at least $100,000,000.00.
7.14 Delivery of Documents. The Agent agrees to promptly provide each
Bank with copies of (a) this Agreement and the other Transaction Documents
(including any amendments thereto), (b) any default notices sent by the
Agent to Borrower with respect to this Agreement or any of the other
Transaction Documents, (c) any waivers or consents signed by the Agent or
otherwise sent by the Agent to Borrower with respect to this Agreement or
any of the other Transaction Documents, (d) any notices of default sent by
Borrower to the Agent with respect to this Agreement or any of the other
Transaction Documents and (e) any requests for any amendments, waivers or
consents sent to the Agent by Borrower with respect to this Agreement or any
of the other Transaction Documents. The Agent agrees to provide each Bank,
within ten (10) Domestic Business Days after written request by such Bank
and at such Bank's expense, a copy of such other information, reports,
certificates and/or other materials prepared by Borrower or otherwise
required by the Transaction Documents and which are in the possession of the
Agent which are reasonably requested by such Bank in writing.
7.15 Duration of Agency. The agency established by Section 7.01 hereof
shall continue, and Sections 7.01 through and including this Section 7.15
shall remain in full force and effect, until all of the Borrower's
Obligations shall have been paid in full and this Agreement and the Banks'
Revolving Credit Commitments shall have terminated or expired.
91
SECTION 8. GENERAL.
--------------------
8.01 No Waiver. No failure or delay by the Agent or any Bank in
exercising any right, remedy, power or privilege under this Agreement or
under any other Transaction Document shall operate as a waiver thereof; nor
shall any single or partial exercise thereof preclude any other or further
exercise thereof or the exercise of any other right, remedy, power or
privilege. The rights and remedies provided in this Agreement and in the
other Transaction Documents are cumulative and not exclusive of any remedies
provided by law. Nothing herein contained shall in any way affect the right
of the Agent or any Bank to exercise any statutory or common law right of
banker's lien or set-off.
8.02 Right of Set-Off. Upon the occurrence and during the continuance
of any Event of Default, each Bank is hereby authorized at any time and from
time to time, without notice to Borrower (any such notice being expressly
waived by Borrower) and to the fullest extent permitted by law, to set-off
and apply any and all deposits (general or special, time or demand,
provisional or final, but specifically excluding any trust or segregated
accounts) at any time held by such Bank and any and all other indebtedness
at any time owing by such Bank to or for the credit or account of Borrower
against any and all of the Borrower's Obligations irrespective of whether or
not such Bank shall have made any demand under this Agreement or under any
of the other Transaction Documents and although such obligations may be
contingent or unmatured. Each Bank agrees to promptly notify Borrower after
any such set-off and application made by such Bank, provided, however, that
the failure to give such notice shall not affect the validity of such
set-off and application. The rights of the Banks under this Section 8.02
are in addition to any other rights and remedies (including, without
limitation, other rights of set-off) which the Banks may have. Nothing
contained in this Agreement or any other Transaction Document shall impair
the right of any Bank to exercise any right of set-off or counterclaim it
may have against Borrower and to apply the amount subject to such exercise
to the payment of indebtedness of Borrower unrelated to this Agreement or
the other Transaction Documents.
8.03 Cost and Expenses. Borrower agrees, whether or not any Loan is
made under this Agreement, to pay or reimburse the Agent and each Bank upon
demand for (a)all out-of-pocket costs and expenses (including, without
limitation, reasonable attorneys' fees and expenses up to a maximum amount
of $3,000.00) incurred by the Agent in connection with the preparation,
documentation, negotiation and/or execution of this Agreement and/or any of
the other Transaction Documents, (b) all recording, filing and search fees
and expenses incurred by the Agent in connection with this Agreement and/or
any of the other Transaction Documents, (c) all out-of-pocket costs and
expenses (including, without limitation, reasonable attorneys' fees and
expenses) incurred by the Agent in connection with the (i) the preparation,
documentation, negotiation and execution of any amendment, modification,
extension, renewal or restatement of this Agreement and/or any of the other
Transaction Documents or (ii) the preparation of any waiver or consent under
this Agreement or under any of the other Transaction Documents and (d) if an
Event of Default occurs, all out-of-pocket costs and expenses (including,
without limitation, reasonable attorneys' fees and expenses) incurred by the
Agent or any Bank in connection with such Event of Default and collection
and other enforcement proceedings resulting therefrom. Borrower further
agrees to pay or reimburse the Agent and each Bank upon demand for any stamp
or other similar taxes which may be payable with respect to the execution,
delivery, recording and/or filing of this Agreement and/or any of the other
Transaction Documents. All of the obligations of Borrower under this
Section 8.03 shall survive the satisfaction and payment of the Borrower's
Obligations and the termination of this Agreement.
92
8.04 General Indemnity. In addition to the payment of expenses
pursuant to Section 8.03, whether or not the transactions contemplated
hereby shall be consummated, Borrower hereby agrees to defend, indemnify,
pay and hold the Agent and each Bank and any holders of the Notes, and the
officers, directors, employees, agents and affiliates of the Agent and each
Bank and such holders (collectively, the "Indemnitees") harmless from and
against any and all other liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, claims, disbursements, costs and
expenses of any kind or nature whatsoever (including, without limitation,
the reasonable fees and disb ursements 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 delivered by
the Agent or any Bank, the agreement of the Banks to make the Loans under
this Agreement or the use or intended use of the proceeds of any Loan under
this Agreement (collectively, the "indemnified liabilities"); provided that
(a) Borrower shall have no obligation to an Indemnitee hereunder with
respect to indemnified liabilities directly and solely resulting from the
gross negligence or willful misconduct of that Indemnitee as determined by a
court of competent jurisdiction in a final, nonappealable order and (b)
Borrower shall have no obligation to indemnify the Agent or any Bank with
respect to disputes between the Agent and any Bank or with respect to
disputes among the Banks. To the extent that the undertaking to indemnify,
pay and hold harmless set forth in the preceding sentence may be
unenforceable because it is violative of any law or public policy, Borrower
shall contribute the maximum portion that it is permitted to pay and satisfy
under applicable law to the payment and satisfaction of all indemnified
liabilities incurred by the Indemnitees or any of them. The provisions of
the undertakings and indemnification set out in this Section 8.04 shall
survive satisfaction and payment of the Borrower's Obligations and the
termination of this Agreement.
8.05 Notices. Each notice, request, demand, consent, confirmation or
other communication under this Agreement shall be in writing and delivered
in person or sent by facsimile or registered or certified mail, return
receipt requested and postage prepaid, to the applicable party at its
address or facsimile number set forth on the signature pages hereof, or at
such other address or facsimile number as any party hereto may designate as
its address for communications hereunder by notice so given. Such notices
shall be deemed effective on the day on which delivered or sent if delivered
in person or sent by facsimile (with answerback confirmation received), or
on the third (3rd) Domestic Business Day after the day on which mailed, if
sent by registered or certified mail.
8.06 Consent to Jurisdiction; Waiver of Jury Trial. BORROWER
IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF ANY MISSOURI STATE
COURT SITTING IN THE CITY OR COUNTY OF ST. LOUIS, MISSOURI OR ANY UNITED
STATES OF AMERICA COURT SITTING IN THE EASTERN DISTRICT OF MISSOURI, EASTERN
DISTRICT, AS THE AGENT MAY ELECT, IN ANY SUIT, ACTION OR PROCEEDING ARISING
OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER TRANSACTION DOCUMENT.
BORROWER HEREBY IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT TO SUCH SUIT,
ACTION OR PROCEEDING MAY BE HELD AND DETERMINED IN ANY OF SUCH COURTS.
BORROWER IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY
OBJECTION WHICH BORROWER MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF
ANY SUCH SUIT, 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
93
SENT TO BORROWER AT ITS ADDRESS DETERMINED PURSUANT TO SECTION 8.05.
BORROWER, THE AGENT AND EACH BANK HEREBY IRREVOCABLY WAIVE THE RIGHT TO
TRIAL BY JURY WITH RESPECT TO ANY ACTION IN WHICH BORROWER AND THE AGENT OR
ANY BANK ARE PARTIES RELATING TO OR ARISING OUT OF OR IN CONNECTION WITH
THIS AGREEMENT OR ANY OF THE OTHER TRANSACTION DOCUMENTS.
8.07 Governing Law. This Agreement shall be governed by and construed
in accordance with the substantive laws of the State of Missouri (without
reference to conflict of law principles).
8.08 Amendments and Waivers. Any provision of this Agreement, the
Notes or any of the other Transaction Documents to which Borrower is a party
may be amended or waived if, but only if, such amendment or waiver is in
writing and is signed by Borrower, the Required Banks and the Agent;
provided however, that notwithstanding the foregoing, (a) no such amendment
shall increase the Revolving Credit Commitment of a Bank unless such
amendment is signed by such Bank, (b) no such amendment or waiver shall,
unless signed by each Bank, (i) decrease the Revolving Credit Commitment of
any Bank (other than ratable decreases of the Revolving Credit Commitments
of each Bank effected in accordance with Section 2.01(c)), (ii) extend the
term of the Revolving Credit Period, (iii) reduce the principal amount of or
rate of interest on any Loan or any fees hereunder, (iv) postpone the date
fixed for any payment of principal of or interest on any Loan or any fees
hereunder, (v) waive any Event of Default caused by the failure of Borrower
to pay any principal of and/or interest on any Loan or any fees hereunder
when due, (vi) change the percentage of the Revolving Credit Commitments or
of the aggregate principal amount of Loans which shall be required for the
Banks or any of them to take any action or obligations under this Section or
any other provision of this Agreement, (vii) change the definition of
"Required Banks", (viii) amend Section 2.18 or (ix) amend this Section 8.08
and (c) Borrower may, with the consent of the Agent, add additional Banks to
this Agreement so long as the total Revolving Credit Commitments of all of
the Banks does not exceed the sum of $150,000,000.00.
8.09 References; Headings for Convenience. Unless otherwise specified
herein, all references herein to Section numbers refer to Section numbers of
this Agreement, all references herein to Exhibits "A", "B" and "C" refer to
annexed Xxxxxxxx "X", "X" and "C" which are hereby incorporated herein by
reference and all references herein to Schedule 2.02 refers to annexed
Schedule 2.02 which is hereby incorporated herein by reference. The Section
headings are furnished for the convenience of the parties and are not to be
considered in the construction or interpretation of this Agreement.
8.10 Successors and Assigns. (a) Subject to paragraphs (b), (c), (d)
and (e) of this Section 8.10, the provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns. Notwithstanding the foregoing, Borrower
may not assign or otherwise transfer any of its rights or delegate any of
its obligations or duties under this Agreement without the prior written
consent of the Agent and each Bank.
(b) Any Bank may at any time grant to one or more banks or other
financial institutions (each a "Participant") participating interests in its
Revolving Credit Commitment, any or all of its Loans and/or any or all of
its other rights and/or obligations under this Agreement. In the event of
any such grant by a Bank of a participating interest to a Participant,
whether or not upon notice to Borrower and the Agent, such Bank shall remain
responsible for the performance of its obligations under this Agreement, and
Borrower and the Agent shall continue to deal solely and directly with such
Bank in connection with such Bank's rights and obligations under this
Agreement. Any agreement pursuant to which any Bank may grant such a
94
participating interest shall provide that such Bank shall retain the sole
right and responsibility to enforce the obligations of Borrower hereunder
including, without limitation, the right to approve any amendment,
modification or waiver of any provision of this Agreement; provided that
such participation agreement may provide that the applicable Bank will not
agree to any amendment, modification or waiver of this Agreement described
in clauses (b)(ii), (b)(iii) or (b)(iv) of Section 8.08 without the consent
of the Participant. Borrower agrees that each Participant shall, to the
extent provided in its participation agreement, be entitled to the benefits
of Sections 2.10, 2.11, 2.12, 2.13, 2.14, 2.15, 2.16 and 2.17 of this
Agreement with respect to its participating interest, but Borrower's
liability in respect thereof shall not be greater than its liability
thereunder to the Bank granting the applicable participation.
(c) Any Bank may at any time assign to one or more banks or other
financial institutions (each an "Assignee") all, or a proportionate part of
all, of its rights and obligations under this Agreement and its Note, and
such Assignee shall assume such rights and obligations, pursuant to an
Assignment and Assumption Agreement in substantially the form of Exhibit C
attached hereto executed by such Assignee and such transferor Bank, with
(and subject to) the subscribed consent of Borrower and the Agent, which, in
each case, shall not be unreasonably withheld or delayed; provided, however,
that (i) the minimum amount of any such assignment shall be $5,000,000.00,
(ii) in no event may a Bank have a Revolving Credit Commitment of more than
$0.00 but less than $10,000,000.00, (iii) if any Assignee is an affiliate of
such transferor Bank or, immediately prior to such assignment, a Bank, no
consent shall be required and (iv) if any Event of Default under this
Agreement has occurred and is continuing no consent of Borrower to such
assignment shall be required. Upon execution and delivery of such
instrument and payment by such Assignee to such transferor Bank of an amount
equal to the purchase price agreed between such transferor Bank and such
Assignee, such Assignee shall be a Bank party to this Agreement and shall
have all the rights and obligations of a Bank with a Revolving Credit
Commitment as set forth in such instrument of assumption, and the transferor
Bank shall be released from its obligations hereunder to a corresponding
extent, and no further consent or action by any party shall be required.
Upon the consummation of any assignment pursuant to this subsection (c), the
transferor Bank, the Agent and Borrower shall make appropriate arrangements
so that, if required, new Notes are issued to the Assignor and/or the
Assignee, as applicable. In connection with any such assignment, the
transferor Bank shall pay to the Agent an administrative fee for processing
such assignment in the amount of $2,500.00.
(d) Any Bank may at any time assign all or any portion of its rights
under this Agreement and its Notes to secure its obligations to a Federal
Reserve Bank. No such assignment shall release the transferor Bank from any
of its obligations hereunder.
(e) Any Bank (a "Granting Bank") may grant to a special purpose funding
vehicle (an "SPC"), identified as such in writing from time to time by the
Granting Bank to the Agent and Borrower, the option to provide to Borrower
all or any part of any Loan that such Granting Bank would otherwise be
obligated to make to Borrower pursuant to this Agreement; provided that (i)
nothing herein shall constitute a commitment by any SPC to make any Loan,
(ii) if an SPC elects not to exercise such option or otherwise fails to
provide all or any part of such Loan, the Granting Bank shall be obligated
to make such Loan pursuant to the terms of this Agreement, (iii) the SPC
shall fund all of the Loans which it makes to the Granting Bank which shall
forward such funds to the Agent, (iv) the Agent shall send all payments of
principal, interest and other amounts due with respect to Loans made by an
SPC which are received by the Agent to the applicable Granting Bank for the
95
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 Agent and
without paying any processing fee therefor, assign all or a portion of its
interests in any Loans to the Granting Bank or to any financial institutions
(consented to by Borrower and the Agent) providing liquidity and/or credit
support to or for the account of such SPC to support the funding or
maintenance of Loans and (ii) disclose on a confidential basis any non-
public information relating to its Loans to any rating agency, commercial
paper dealer or provider of any surety, guarantee or credit or liquidity
enhancement to such SPC. This Section may not be amended without the
written consent of each SPC having Loans outstanding on the date of such
amendment.
8.11 NO ORAL AGREEMENTS; ENTIRE AGREEMENT. ORAL AGREEMENTS OR
COMMITMENTS TO LOAN MONEY, EXTEND CREDIT OR TO FORBEAR FROM ENFORCING
REPAYMENT OF A DEBT, INCLUDING PROMISES TO EXTEND OR RENEW SUCH DEBT, ARE
NOT ENFORCEABLE. TO PROTECT BORROWER, THE AGENT AND THE BANKS FROM
MISUNDERSTANDING OR DISAPPOINTMENT, ANY AGREEMENTS REACHED BY BORROWER, THE
AGENT AND THE BANKS COVERING SUCH MATTERS ARE CONTAINED IN THIS AGREEMENT
AND THE OTHER TRANSACTION DOCUMENTS, WHICH AGREEMENT AND OTHER TRANSACTION
DOCUMENTS ARE A COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENTS AMONG
BORROWER, THE AGENT AND THE BANKS, EXCEPT AS BORROWER, THE AGENT AND THE
BANKS MAY LATER AGREE IN WRITING TO MODIFY THEM. This Agreement embodies
the entire agreement and understanding between the parties hereto and
supersedes all prior agreements and understandings (oral or written)
relating to the subject matter hereof.
8.12 Severability. In the event any one or more of the provisions
contained in this Agreement should be invalid, illegal or unenforceable in
any respect, the validity, legality and enforceability of the remaining
provisions contained herein shall not in any way be affected or impaired
thereby.
8.13 Counterparts. This Agreement may be executed in any number of
counterparts (including facsimile counterparts), each of which shall be
deemed an original, but all of which together shall constitute one and the
same instrument.
8.14 Confidentiality. Any information received by any Bank from
Borrower (or from the Agent on Borrower's behalf) and clearly marked as
confidential shall be treated as confidential by such Bank in accordance
with its customary practices and procedures. Notwithstanding such
agreement, nothing herein contained shall limit or impair the right or
obligation of any Bank to disclose such information: (a) to its auditors,
96
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.
97
IN WITNESS WHEREOF, Borrower, the Agent and the Banks have executed
this Loan Agreement as of the 22nd day of October, 1999.
LACLEDE GAS COMPANY
By /s/ Xxxxxx X. Xxxxxxxx
Title: Treasurer and Asst. Secretary
Address:
000 Xxxxx Xxxxxx, Xxxxx 0000
Xx. Xxxxx, Xxxxxxxx 00000
Attention: Treasurer
Facsimile No.: (000) 000-0000
MERCANTILE BANK NATIONAL ASSOCIATION
By /s/ Xxxxxxx X. Xxxxxxx
Title: Vice President
Address:
000 Xxxxxx Xxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Attention: Large Corporate Department
Facsimile No.: (000) 000-0000
BANK OF AMERICA, N.A.
By /s/ Xxxxx X. Xxxxx
Title: Managing Director
Address:
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, XX 00000
Attention: Xxxxx Xxxxxx
Facsimile No.: (000) 000-0000
98
CREDIT SUISSE FIRST BOSTON
By /s/ Xxxxxxx X. Xxxxx /s/ Xxxxxxx X. Xxxxx
Title: Vice President Vice President
Address:
Attention:
Facsimile No.: ()
MERCANTILE BANK NATIONAL ASSOCIATION, as Agent
By /s/ Xxxxxxx X. Xxxxxxx
Title: VP
Address:
000 Xxxxxx Xxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Attention: Large Corporate
Facsimile No.: (000) 000-0000
99
