LOAN AGREEMENT
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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:
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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.
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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.
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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.
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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.
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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).
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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.
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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
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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
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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").
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(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
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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.
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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 a
