Exhibit 10.1
LOAN AGREEMENT
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THIS LOAN AGREEMENT (this "Agreement") is made and entered into as
of the 28th day of January, 2002, by and among THE LACLEDE GROUP, INC., a
Missouri corporation ("Borrower"), and U.S. BANK NATIONAL ASSOCIATION,
formerly known as Firstar Bank, N.A., a national banking association (the
"Lender").
WITNESSETH:
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WHEREAS, Borrower has applied for a term loan from the Lender in
the original principal amount of up to $43,000,000.00; and
WHEREAS, Lender is willing to make said term loan 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 and Lender hereby mutually covenant and agree as
follows:
SECTION 1. DEFINITIONS.
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1.01 Definitions. In addition to the terms defined elsewhere in
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this Agreement or in any Exhibit or Schedule hereto, when used in this
Agreement, the following terms shall have the following meanings (such
meanings shall be equally applicable to the singular and plural forms of the
terms used, as the context requires):
Borrower's Obligations shall mean any and all present and future
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indebtedness (principal, interest, fees, collection costs and expenses,
attorneys' fees and other amounts), liabilities and obligations (including,
without limitation, indemnity obligations) of Borrower to Lender evidenced
by or arising under or in respect of this Agreement, the Note and/or any of
the other Transaction Documents.
Business Day shall mean any day except a Saturday, Sunday or legal
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holiday observed by Lender.
Default shall mean any event or condition the occurrence of that
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would, with the lapse of time or the giving of notice or both, become an
Event of Default.
Eurodollar Business Day shall mean any Business Day on which
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commercial banks are open for international business (including dealings in
dollar deposits) in London.
Event of Default shall have the meaning ascribed thereto in Section
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6.
GAAP shall mean, at any time, generally accepted accounting
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principles at such time in the United States.
Guaranty shall mean the Guaranty dated as of January 28, 2002
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executed by SM&P in favor of Lender.
Interest Period shall mean with respect to each LIBOR Loan:
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(a) initially, the period commencing on the date selected
by Borrower in the applicable Interest Rate Selection Notice and
ending 1, 2, 3 or 6 months thereafter as Borrower may elect in the
applicable Interest Rate Selection Notice; and
(b) thereafter, each period commencing on the last day of
the immediately preceding Interest Period applicable to such LIBOR
Loan and ending 1, 2, 3 or 6 months, as Borrower may elect in the
applicable Interest Rate Selection Notice;
provided that:
(c) no Interest Period for a LIBOR Loan shall extend
beyond a date on which Borrower is required to make a scheduled
payment of principal on the Loan unless the sum of (A) the
aggregate principal amount of outstanding Prime Loans plus (B) the
aggregate principal amount of outstanding LIBOR Loans with Interest
Periods expiring on or before the date such scheduled principal
payment is due equals or exceeds the aggregate principal amount to
be paid on the Loan on such principal payment date;
(d) subject to clauses (e) and (f) below, any Interest
Period that would otherwise end on a day that 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;
(e) subject to clause (f) below, any Interest Period that
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
(f) no Interest Period may extend beyond the maturity date
of the Loan.
Interest Rate Selection Notice shall have the meaning ascribed
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thereto in Section 2.02(a).
LIBOR Base Rate shall mean, with respect to the applicable Interest
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Period, (a) the LIBOR Index Rate for such Interest Period, if such rate is
available or (b) if the LIBOR Index Rate is not available, the average
(rounded upward, if necessary, to the next higher 1/10,000 of 1%) of the
respective rates per annum of interest at which deposits in U.S. Dollars are
offered to Lender in the London interbank market by two (2) Eurodollar
dealers of recognized standing, selected by Lender in its sole discretion,
at or about 11:00 a.m. (London time) on the date two (2) Eurodollar Business
Days before the first day of such Interest Period, for delivery on the first
day of the applicable Interest Period for a number of days comparable to the
number of days in such Interest Period and in an amount approximately equal
to the principal amount of the LIBOR Loan to which such Interest Period is
to apply.
LIBOR Index Rate shall mean, with respect to the applicable
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Interest Period, a rate per annum (rounded upwards, if necessary, to the
next higher 1/10,000 of 1%) equal to the British Bankers' Association
interest settlement rates for U.S. Dollar deposits for such Interest Period
as of 11:00 a.m. (London time) on the day two (2) Eurodollar Business Days
before the first day of such Interest Period as published by Bloomberg
Financial Services, Dow Jones Market Service, Telerate, Reuters or any other
service from time to time used by Lender.
LIBOR Loan shall mean any portion of the Loan bearing interest
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based on the LIBOR Rate.
LIBOR Margin shall mean 725/1000 Percent (.725%) per annum.
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LIBOR Rate shall mean (a) the quotient of the (i) LIBOR Base Rate
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divided by (ii) one minus the applicable LIBOR Reserve Percentage plus (b)
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the LIBOR Margin. The LIBOR Rate shall be adjusted automatically on and as
of the effective date of any change in the LIBOR Reserve Percentage and/or
the LIBOR Margin.
LIBOR Reserve Percentage shall mean for any day that percentage
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(expressed as a decimal) which is in effect on such day, as prescribed by
The Board of Governors of the Federal Reserve System (or any successor), for
determining the maximum reserve requirement (including, without limitation,
any basic, supplemental, emergency, special or marginal reserves) with
respect to "Eurocurrency liabilities" as defined in Regulation D or with
respect to any other category of liabilities which includes deposits by
reference to which the interest rate on LIBOR Loans is determined, whether
or not Lender has any Eurocurrency liabilities subject to such reserve
requirement at such time. LIBOR Loans shall be deemed to constitute
Eurocurrency liabilities and as such shall
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be deemed subject to reserve requirements without the benefit of any credits
for proration, exceptions or offsets which may be available from time to
time to Lender. The LIBOR Rate shall be adjusted automatically on and as of
the effective date of any change in the LIBOR Reserve Percentage.
Loan shall have the meaning ascribed thereto in Section 2.01.
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Material Adverse Effect shall mean (a) a material adverse effect on
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the properties, assets, liabilities, business, operations, prospects, income
or condition (financial or otherwise) of Borrower and its Subsidiaries taken
as a whole, (b) material impairment of Borrower's ability to perform any of
its obligations under this Agreement, the Note or any of the other
Transaction Documents or (c) material impairment of the enforceability of
the rights of, or benefits available to, Lender under this Agreement, the
Note or any of the other Transaction Documents.
Moody's shall mean Moody's Investors Service, Inc.
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Note shall have the meaning ascribed thereto in Section 2.01.
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Person shall mean any individual, sole proprietorship, partnership,
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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 Loan shall mean any portion of the Loan bearing interest
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based on the Prime Rate.
Prime Rate shall mean the interest rate announced from time to time
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by Lender as its "prime rate" (which rate shall fluctuate as and when said
prime rate shall change). Borrower acknowledges that such "prime rate" is a
reference rate and does not necessarily represent the lowest or best rate
offered by Lender to its customers.
Regulation D shall mean Regulation D of the Board of Governors of
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the Federal Reserve System, as amended.
Regulatory Change shall have the meaning ascribed thereto in
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Section 2.10.
S&P shall mean Standard & Poor's Ratings Group.
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SM&P shall mean SM&P Utility Resources, Inc., an Indiana corporation.
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Stock Purchase Agreement shall mean the certain Stock Purchase
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Agreement dated as of December 12, 2001, by and between Borrower, as buyer,
and NiSource, Inc. as seller, relating to the sale of all of the outstanding
capital stock of SM&P to Borrower.
Subsidiary shall mean any corporation or other entity of which more
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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.
Transaction Documents shall mean this Agreement, the Note and any
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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.
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SECTION 2. THE LOAN.
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2.01 Loan. Lender agrees to make Borrower a term loan on the date
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of this Agreement in the original principal amount of $42,800,000.00 (the
"Loan"). The Loan shall be evidenced by a Term Loan Promissory Note of
Borrower dated the date hereof and payable to the order of Lender in the
original principal amount of $42,800,000.00 in the form of Exhibit A
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attached hereto and incorporated herein by reference (as the same may from
time to time be amended, modified, extended, renewed, restated or replaced,
the "Note"). The Note shall mature on January 27, 2003 (on which date all
unpaid principal and all accrued and unpaid interest shall become due and
payable). The principal balance of the Note shall be due and payable at the
maturity of the Note whether by reason of acceleration or otherwise.
2.02 Duration of Interest Periods and Selection of Interest Rates
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(a) The Loan shall bear interest on the outstanding principal
amount thereof: (i) based on the Prime Rate on all or any portion of the
Loan in an amount not less than $50,000.00 or any larger multiple of
$10,000.00; or (ii) provided that so long as no Default or Event of Default
under this Agreement has occurred and is continuing, Borrower may from time
to time fix the interest rate on all or any portion of the Loan in an amount
not less than $2,500,000.00 or any larger multiple of $500,000.00 based on
LIBOR Rate for the Interest Period selected by Borrower (subject to the
definition of Interest Period). If Borrower elects to have any portion of
the Loan bear interest based on the LIBOR Rate, Borrower shall give oral or
written notice (an "Interest Rate Selection Notice") to Lender by 10:00 am
(St., Louis time) at least three (3) Eurodollar Business Days before any
date (which must be a Eurodollar Business Day) upon which Borrower desires
to fix the interest rate on any portion of the Loan, which Interest Rate
Selection Notice shall specify the portion of the Loan that is to bear
interest based on the LIBOR Rate and the Initial Interest Period applicable
thereto. Borrower may not revoke or rescind any Interest Rate Selection
Notice. Unless Borrower shall have otherwise notified Lender in accordance
with this Section 2.02(a), upon the expiration of any Interest Period, that
portion of the Loan bearing interest based on the LIBOR Rate during such
Interest Period shall bear interest based on the Prime Rate from and after
the expiration of such Interest Period. The individuals listed on Schedule
2.02 are authorized to act on behalf of Borrower to give any Interest Rate
Selection Notice.
(b) Borrower may not have outstanding and Lender shall not be
obligated to make more than eight (8) LIBOR Loans at any one time.
2.03 Interest Rates and Interest Payments. (a) So long as no Event
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of Default has occurred and is continuing, each Prime Loan shall bear
interest on the outstanding principal amount thereof for each day until paid
at a rate per annum equal to the Prime Rate. So long as any Event of Default
has occurred and is continuing, each Prime Loan shall bear interest on the
outstanding principal amount thereof for each until it is paid, at a rate
per annum equal to Five Percent (5%) over and above the Prime Rate. Such
interest shall be payable monthly in arrears on the last day of each
calendar month commencing February 28, 2002 and at the maturity of the Note
(whether by reason of acceleration or otherwise). From and after the
maturity of the Note, whether by reason of acceleration or otherwise, each
Prime Loan shall bear interest, payable on demand, for each day until paid
at a rate per annum equal to Five Percent (5%) over and above the Prime
Rate.
(b) So long as no Event of Default 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 LIBOR Rate. So long as any Event of Default 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 Five Percent (5%) over and above the LIBOR Rate. Such
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 on the last day of each three (3)
month period during such Interest Period and on the last day of such
Interest Period, and at the maturity of the Note (whether by reason of
acceleration or otherwise). From and after the maturity of the Note, 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
Five Percent (5%) over and above
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the higher of (i) the LIBOR Rate applicable to such LIBOR Loan for the
immediately preceding Interest Period or (ii) the Prime Rate.
(c) Lender shall determine each interest rate applicable to the
Prime Loans and LIBOR Loans hereunder and its determination thereof shall be
conclusive in the absence of manifest error.
2.04 Computation of Interest. Interest on Prime Loans hereunder
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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.
2.05 Fees. Contemporaneously with the execution of this Agreement,
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Borrower shall pay to Lender a nonrefundable facility fee in an amount of
$53,750.00.
2.06 Prepayments. (a) Borrower may, upon notice to Lender
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specifying that it is paying any Prime Rate Loan, pay without penalty or
premium the Prime Loan in whole at any time or in part from time to time, by
paying the principal amount to be paid, provided that partial prepayments
shall be in an aggregate amount of at least $2,000,000.00 or any larger
multiple of $1,000,000.00. Borrower may, upon at least three (3) Eurodollar
Business Day`s irrevocable prior written notice to Lender, prepay all at any
time or any portion from time to time of the unpaid principal balance of any
LIBOR Loan prior to maturity provided that (i) contemporaneously with each
such prepayment Borrower shall pay all accrued and unpaid interest on the
portion of the LIBOR Loan being prepaid to and including the date of
prepayment; (ii) partial prepayments shall be in an aggregate amount of at
least $2,000,000.00 or any larger multiple of $1,000,000.00; (iii) in no
event may Borrower make any prepayment on any LIBOR Loan that results in the
remaining LIBOR Loans with respect to which a given Interest Period applies
being greater than $0.00 but less than $1,000,000.00 and (iv) if Borrower is
making a prepayment of a LIBOR Loan, contemporaneously with such prepayment,
Borrower shall pay Lender the funding losses and other amounts, if any,
required under Section 2.08.
(b) In addition to any voluntary prepayments made by Borrower under
Section 2.06(a) above, until the Loan has been paid in full, Borrower
covenants and agrees to pay to Lender within ten (10) days after receipt
thereof, One Hundred Percent (100%) of the net cash proceeds up to the
amount received by Borrower from Borrower's issuance of any capital stock,
membership interest or other equity interest, from any other debt issuance
or equity issuance (or any hybrid thereof, including the issuance of
trust-preferred securities), or any subordinated debt received subsequent to
the date of this Agreement.
2.07 General Provisions as to Payments. Borrower shall make each
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payment of principal of, and interest on, the Loan 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 in Federal or other funds
immediately available in St. Louis, Missouri, to Lender at its address
referred to in Section 7.05. All payments received by Lender after 12:00
noon (St. Louis time) shall be deemed to have been received by Lender on the
next succeeding Business Day. Whenever any payment of principal of, or
interest on, the Loan or of fees shall be due on a day which is not a
Business Day, the date for payment thereof shall be extended to the next
succeeding Business Day. If the date for any payment of principal is
extended by operation of law or otherwise, interest thereon, at the then
applicable rate, shall be payable for such extended time.
2.08 Funding Losses. Notwithstanding any provision contained in
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this Agreement to the contrary, (a) Borrower shall make any payment of
principal with respect to any LIBOR Loan on any day other than the last day
of the Interest Period applicable thereto, whether as a result of a
scheduled payment, a voluntary prepayment, a mandatory prepayment, maturity,
acceleration or otherwise or (b) any LIBOR Loan is converted to a Prime Loan
pursuant to Section 2.09, Section 2.10 or Section 2.11 on any day other than
the last day of the Interest Period applicable thereto, contemporaneously
with each such payment or conversion Borrower shall reimburse Lender on
demand for any resulting losses and expenses incurred by Lender, including,
without limitation, any losses incurred in obtaining, liquidating, or
employing deposits from third parties provided that Lender shall have
delivered to
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Borrower a certificate as to the amount of such losses and expenses, which
certificate shall be conclusive in the absence of manifest error.
2.09 Basis for Determining Interest Rate Inadequate or Unfair. If
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with respect to any Interest Period:
(a) deposits in U.S. Dollars (in the applicable amounts)
are not being offered to Lender in the relevant market for such
Interest Period, or
(b) Lender determines in good faith that the LIBOR Rate as
determined pursuant to the definition thereof will not adequately
and fairly reflect the cost to Lender of maintaining or funding
the LIBOR Loans for such Interest Period,
Lender shall forthwith give notice thereof to Borrower whereupon until
Lender notifies Borrower that the circumstances giving rise to such
suspension no longer exist, (i) the LIBOR Rate shall not be available to
Borrower as an interest rate option on any portion of the Loan and (ii) all
of the then outstanding LIBOR Loans shall automatically convert to Prime
Loans on the last day of the then current Interest Period applicable to each
such LIBOR Loan. Interest accrued on each such LIBOR Loan prior to any such
conversion shall be due and payable on the date of such conversion together
with any funding losses and other amounts due under Section 2.08.
2.10 Illegality. If, after the date of this Agreement, the adoption
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of any applicable law, rule or regulation, or any change therein, or any
change in the interpretation or administration thereof by any governmental
or regulatory authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by Lender with any
request or directive (whether or not having the force of law) of any such
governmental or regulatory authority, central bank or comparable agency (a
"Regulatory Change") shall make it unlawful or impossible for Lender to
make, maintain or fund its LIBOR Loans to Borrower, Lender shall forthwith
give notice thereof to Borrower. Upon receipt of such notice, Borrower shall
convert all of its then outstanding LIBOR Loans on either (a) the last day
of the then current Interest Period applicable to such LIBOR Loan if Lender
may lawfully continue to maintain and fund such LIBOR Loan to such day or
(b) immediately if Lender may not lawfully continue to fund and maintain
such LIBOR Loan to such day, to a Prime Loan in an equal principal amount.
Interest accrued on each such LIBOR Loan prior to any such conversion shall
be due and payable on the date of such conversion together with any funding
losses and other amounts due under Section 2.08.
2.11 Increased Cost. (a) If (i) Regulation D or (ii) a Regulatory
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Change:
(A) shall subject Lender to any tax, duty or other charge
with respect to the LIBOR Loans, the Note or its obligation to
make LIBOR Loans, or shall change the basis of taxation of
payments to Lender 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 Lender); or
(B) shall impose, modify or deem applicable any reserve
(including, without limitation, any reserve imposed by the Board
of Governors of the Federal Reserve System), special deposit,
capital or similar requirement against assets of, deposits with or
for the account of, or credit extended or committed to be extended
by, Lender or shall, with respect to Lender impose, modify or deem
applicable any other condition affecting Lender's LIBOR Loans, the
Note or Lender's obligation to make LIBOR Loans;
and the result of any of the foregoing is to increase the cost to (or in the
case of Regulation D, to impose a cost on or increase the cost to) Lender of
making or maintaining any LIBOR Loan, or to reduce the amount of any sum
received or receivable by Lender under this Agreement or under its Note with
respect thereto, by an amount deemed by Lender to be material, and if Lender
is not otherwise fully compensated for such increase in cost or reduction in
amount received or receivable by virtue of the inclusion of the reference to
"LIBOR Reserve Percentage" in the calculation of the LIBOR Rate, then upon
notice by Lender to Borrower, which notice shall set forth Lender's
supporting calculations and the details of the Regulatory Change, Borrower
shall pay Lender, as additional interest,
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such additional amount or amounts as will compensate Lender for such
increased cost or reduction. The determination by Lender 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, Lender may use any reasonable averaging and attribution methods.
(b) If Lender demands compensation under Section 2.11(a) above,
Borrower may at any time, upon at least three (3) Eurodollar Business Day's
prior notice to Lender, convert its then outstanding LIBOR Loans to Prime
Loans in an equal principal amount. Interest accrued on each such LIBOR Loan
prior to any such conversion shall be due and payable on the date of such
conversion together with any funding losses and other amounts due under
Section 2.08 and this Section 2.11.
2.12 Prime Loans Substituted for Affected LIBOR Loans. If notice
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has been given by Lender pursuant to Sections 2.09 or 2.10 or by Borrower
pursuant to Section 2.11 requiring LIBOR Loans to be repaid or converted to
Prime Loans, then, unless and until Lender notifies Borrower that the
circumstances giving rise to such repayment or conversion no longer apply,
any portion of the Loans that would otherwise be made by Lender to Borrower
as LIBOR Loans shall be made instead as Prime Loans. Lender shall promptly
notify Borrower if and when the circumstances giving rise to such repayment
no longer apply.
2.13 Capital Adequacy. If, after the date of this Agreement, Lender
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shall have determined in good faith that a Regulatory Change has occurred
which has or will have the effect of reducing the rate of return on Lender's
capital in respect of its obligations hereunder to a level below that which
Lender could have achieved but for such adoption, change or compliance
(taking into consideration Lender's policies with respect to capital
adequacy), then from time to time Borrower shall pay to Lender upon demand
such additional amount or amounts as will compensate Lender for such
reduction. All determinations made in good faith by Lender of the additional
amount or amounts required to compensate it in respect of the foregoing
shall be conclusive in the absence of manifest error. In determining such
amount or amounts, Lender may use any reasonable averaging and attribution
methods.
2.14 Survival of Indemnities. All indemnities and all provisions
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relating to reimbursement to Lender of amounts sufficient to protect the
yield to Lender with respect to the Loan, including, without limitation,
Sections 2.08, 2.11 and 2.13 hereof, shall survive the payment of the Note
and the other Borrower's Obligations and the expiration or termination of
this Agreement. Notwithstanding the foregoing, if Lender fails to notify
Borrower of any event that will entitle Lender to compensation pursuant to
Sections 2.08, 2.11 and/or 2.13 hereof within one hundred eighty (180) days
after Lender obtains knowledge of such event, then Lender shall not be
entitled to any compensation from Borrower for any loss, expense, increased
cost and/or reduction of return arising from such event.
2.15 Discretion of Lender as to Manner of Funding. Notwithstanding
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any provision contained in this Agreement to the contrary, Lender 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 Lender's funding losses and expenses under
Section 2.08) shall be made as if Lender had actually funded and maintained
each LIBOR Loan through the purchase of deposits having a maturity
corresponding to the maturity of the applicable Interest Period relating to
the applicable LIBOR Loan and bearing an interest rate equal to the
applicable LIBOR Base Rate.
SECTION 3. PRECONDITIONS TO LOANS.
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3.01 The Loan. Notwithstanding any provision contained in this
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Agreement to the contrary, Lender shall have no obligation to make the Loan
under this Agreement unless Lender shall have first received:
(a) this Agreement and the Note, each duly executed by
Borrower;
(b) the Guaranty, duly executed by SM&P;
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(c) a copy of resolutions of the Board of Directors of
Borrower, duly adopted, which authorize the execution, delivery
and performance of this Agreement, the Note and the other
Transaction Documents, certified by the Secretary of Borrower;
(d) a copy of resolutions of the Board of Directors of
SM&P, duly adopted, which authorize the execution, delivery and
performance of the Guaranty, certified by the Secretary of SM&P;
(e) a copy of the Articles of Incorporation of Borrower,
including any amendments thereto, certified by the Secretary of
Borrower;
(f) a copy of the Articles of Incorporation of SM&P,
including any amendments thereto, certified by the Secretary of
SM&P;
(g) a copy of the By-Laws of Borrower, including any
amendments thereto, certified by the Secretary of Borrower;
(h) a copy of the By-Laws of SM&P, including any
amendments thereto, certified by the Secretary of SM&P;
(i) 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;
(j) an incumbency certificate, executed by the Secretary
of SM&P, which shall identify by name and title and bear the
signatures of all of the officers of SM&P executing the Guaranty;
(k) a certificate of corporate good standing of Borrower
issued by the Secretary of State of the State of Missouri;
(l) a certificate of corporate good standing of SM&P
issued by the Secretary of State of the State of Indiana;
(m) an opinion of the General Counsel of Borrower and an
opinion of counsel to SM&P, in form and substance satisfactory to
Lender and Lender's counsel;
(n) UCC search results from the Missouri Secretary of
State and the City of St. Louis, Missouri for Borrower and from the
Indiana Secretary of State of for SM&P;
(o) copies of all financial statements and other exhibits
and schedules required by this Agreement and the other Transaction
Documents;
(p) a letter of direction from Borrower with respect to
the disbursement of the proceeds of the Loan under this Agreement;
(q) a copy of the Stock Purchase Agreement, including any
amendments to such agreement;
(r) evidence satisfactory to Lender that Borrower has
consummated the acquisition of the stock of SM&P pursuant to the
Stock Purchase Agreement;
(s) such other agreements, documents, instruments and
certificates as Lender may reasonably request.
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SECTION 4. REPRESENTATIONS AND WARRANTIES.
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Borrower hereby represents and warrants to Lender that:
4.01 Corporate Existence and Power. Borrower: (a) is duly
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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
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performance by Borrower of this Agreement, the Note 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 Note 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 Lender with the
--------------------
following financial statements: consolidated balance sheets and statements
of income, retained earnings and cash flows of Borrower and its Subsidiaries
as of and for the fiscal year of Borrower ended September 30, 2001, all
certified by Borrower's independent certified public accountants, which
financial statements have been prepared in accordance with GAAP consistently
applied. Borrower further represents and warrants to Lender 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 September 30, 2001 except as disclosed in Borrower's filings with the
Securities and Exchange Commission since such date, and (c) neither Borrower
nor any of its Subsidiaries had any direct or contingent liabilities which
were not disclosed on said financial statements or the notes thereto (to the
extent such disclosure is required by GAAP).
4.05 Compliance With Other Instruments; None Burdensome. None of
--------------------------------------------------
the execution and delivery by Borrower of the Transaction Documents, the
performance by Borrower of its obligations under the Transaction Documents
or the borrowing and/or repayment of the Loan 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 the Loan 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
- 9 -
Regulation U of The Board of Governors of the Federal Reserve System, as
amended) and no part of the proceeds of the 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
that 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 Lender, Borrower shall furnish to Lender 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 an exempt holding company pursuant to
15 U.S.C. 79c(a)(1).
4.08 No Default. No Default or Event of Default under this
----------
Agreement has occurred and is continuing. There is no existing default or
event of default under or with respect to any indenture, contract,
agreement, lease or other instrument to which Borrower is a party or by
which any property or assets of Borrower is bound or affected, a default
under which could reasonably be expected to have a Material Adverse Effect.
Borrower has and is in full compliance with and in good standing with
respect to all governmental permits, licenses, certificates, consents and
franchises necessary to continue to conduct its business as previously
conducted by it and to own or lease and operate its properties and assets as
now owned or leased by it, the failure to have or noncompliance with which
could reasonably be expected to have a Material Adverse Effect. Borrower is
not in violation of any applicable statute, law, rule, regulation or
ordinance of the United States of America, of any state, city, town,
municipality, county or of any other jurisdiction, or of any agency thereof,
a violation of which could reasonably be expected to have a Material Adverse
Effect.
SECTION 5. COVENANTS.
- ---------------------
5.01 Covenants of Borrower. Borrower covenants and agrees that, so
---------------------
long as any of the Borrower's Obligations remain unpaid:
(a) Information. Borrower will deliver to Lender:
-----------
(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 Lender; provided, however, that delivery to Lender 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 Lender and
certified (subject to normal year-end adjustments and absence of
footnote disclosures) as to fairness of presentation, consistency
and compliance with GAAP by the chief financial officer of
Borrower; provided, however, that delivery to Lender of copies of
the Quarterly Report on Form 10-Q of Borrower for such fiscal
quarter filed with the Securities and Exchange Commission shall be
deemed to satisfy the requirements of this Section 5.01(a)(ii);
- 10 -
(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 Lender 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
------------------
Lender, 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 Lender may from time to time
reasonably request, in order to effectuate the transactions contemplated by
this Agreement and the other Transaction Documents.
(e) Consolidation or Merger. Borrower will not directly or
-----------------------
indirectly merge or consolidate with or into any other Person.
(f) Debt Ratings. Borrower's utility subsidiary, Laclede Gas
-------------
Company, shall maintain the following minimum debt ratings: Moody's senior
secured- A3, S&P Long Term Issuer- A-.
(g) Stock and Assets of Subsidiaries. Unless the prior written
--------------------------------
consent of Lender is obtained, Borrower will not create, incur or assume or
suffer to be incurred or to exist any lien on any of the common stock of
Laclede Gas Company and SM&P or on any of the assets of SM&P other than
purchase money liens and other than security interests currently granted to
BLC Corporation.
5.02 Use of Proceeds. Borrower covenants and agrees that (a) the
---------------
proceeds of the Loan will be used solely to fund the transactions described
in the Stock Purchase Agreement, (b) no part of the proceeds of the Loan
will be used in violation of any applicable law, rule or regulation and (c)
no part of the proceeds of the 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.
- 11 -
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 interest, fees or other amounts (other than principal due under
the Loan) within five (5) Business Days after the date the same shall first
become due and payable, whether by reason of demand, maturity, acceleration
or otherwise;
6.02 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;
6.03 Borrower shall fail to perform or observe any term, covenant
or provision contained in Section 5.01(f) or Section 5.02;
6.04 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 or 6.02 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 Lender or (ii) any officer of Borrower
obtaining actual knowledge of such default;
6.05 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;
6.06 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;
6.07 An involuntary proceeding shall be commenced or an involuntary
petition shall be filed in a court of competent jurisdiction seeking (i)
relief in respect of Borrower, or of a substantial part of the property or
assets of Borrower, under Title 11 of the United States Code or any other
Federal, state or foreign bankruptcy, insolvency, receivership, liquidation
or similar law, (ii) the appointment of a receiver, trustee, custodian,
sequestrator or similar official of Borrower or of a substantial part of the
property or assets of Borrower or (iii) the winding-up or liquidation of
Borrower, and such proceeding or petition shall continue undismissed for
sixty (60) consecutive days or an order or decree approving or ordering any
of the foregoing shall continue unstayed and in effect for sixty (60)
consecutive days;
6.08 Borrower shall be declared by Lender to be in default under or
in respect of (i) any other present or future obligation to Lender,
including, without limitation, any other loan, line of credit, revolving
credit, guaranty or letter of credit reimbursement obligation, or (ii) any
other present or future agreement purporting to convey to Lender a security
interest in, or a lien or encumbrance upon, upon any property or assets of
Borrower;
- 12 -
6.09 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 that is not cured or waived in writing within any applicable
cure or grace period; or
6.10 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 6.06 or 6.07), Lender may declare the entire outstanding principal
balance of and all accrued and unpaid interest on the Note 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 Note 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 Lender may exercise any and all other rights and remedies which it 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 6.06 or 6.07, the entire outstanding principal balance of and all
accrued and unpaid interest on the Note 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 Lender may exercise any and all
other rights and remedies which it may have under any of the other
Transaction Documents or under applicable law.
SECTION 7. GENERAL.
- -------------------
7.01 No Waiver. No failure or delay by Lender 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 Lender to
exercise any statutory or common law right of banker's lien or set-off.
7.02 Right of Set-Off. Upon the occurrence and during the
----------------
continuance of any Event of Default, Lender 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 Lender and any and all other indebtedness at
any time owing by Lender to or for the credit or account of Borrower against
any and all of the Borrower's Obligations irrespective of whether or not
Lender 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. Lender agrees to promptly notify Borrower after any such
set-off and application made by Lender, provided, however, that the failure
to give such notice shall not affect the validity of such set-off and
application. The rights of Lender under this Section 7.02 are in addition to
any other rights and remedies (including, without limitation, other rights
of set-off) which Lender may have. Nothing contained in this Agreement or
any other Transaction Document shall impair the right of Lender 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.
7.03 Cost and Expenses. Borrower agrees, whether or not any Loan is
-----------------
made under this Agreement, to pay or reimburse Lender 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 $5,000.00)
incurred by Lender 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 Lender in connection with
- 13 -
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 Lender 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 Lender in connection with such Event of Default and collection
and other enforcement proceedings resulting therefrom. Borrower further
agrees to pay or reimburse Lender 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
7.03 shall survive the satisfaction and payment of the Borrower's
Obligations and the termination of this Agreement.
7.04 General Indemnity. In addition to the payment of expenses
-----------------
pursuant to Section 7.03, whether or not the transactions contemplated
hereby shall be consummated, Borrower hereby agrees to defend, indemnify,
pay and hold Lender and any holders of the Note, and the officers,
directors, employees, agents and affiliates of Lender and such holders
(collectively, the "Indemnitees") harmless from and against any and all
other liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, claims, disbursements, costs and expenses of any kind or
nature whatsoever (including, without limitation, the reasonable fees and
disbursements of counsel for such Indemnitees in connection with any
investigative, administrative or judicial proceeding commenced or
threatened, whether or not such Indemnitees shall be designated a party
thereto), that may be imposed on, incurred by or asserted against the
Indemnitees, in any manner relating to or arising out of this Agreement, any
of the other Transaction Documents or any other agreement, document or
instrument executed and delivered by Borrower in connection herewith or
therewith, the statements contained in any commitment letters delivered by
Lender, the agreement of Lender to make the Loan under this Agreement or the
use or intended use of the proceeds of the Loan under this Agreement
(collectively, the "indemnified liabilities"); provided that 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. 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
7.04 shall survive satisfaction and payment of the Borrower's Obligations
and the termination of this Agreement.
7.05 Notices. Each notice, request, demand, consent, confirmation
-------
or other communication under this Agreement shall be in writing and
delivered in person or sent by facsimile or registered or certified mail,
return receipt requested and postage prepaid, to the applicable party at its
address or facsimile number set forth on the signature pages hereof, or at
such other address or facsimile number as any party hereto may designate as
its address for communications hereunder by notice so given. Such notices
shall be deemed effective on the day on which delivered or sent if delivered
in person or sent by facsimile (with answerback confirmation received), or
on the fourth (4th) Business Day after the day on which mailed, if sent by
registered or certified mail.
7.06 Consent to Jurisdiction; Waiver of Jury Trial. BORROWER
---------------------------------------------
IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF ANY MISSOURI STATE
COURT SITTING IN THE COUNTY OF ST. LOUIS, MISSOURI OR ANY UNITED STATES OF
AMERICA COURT SITTING IN THE EASTERN DISTRICT OF MISSOURI, EASTERN DISTRICT,
AS LENDER 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
THAT 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
- 14 -
FORUM. BORROWER AUTHORIZES THE SERVICE OF PROCESS UPON BORROWER BY
REGISTERED MAIL SENT TO BORROWER AT ITS ADDRESS DETERMINED PURSUANT TO
SECTION 7.05. BORROWER, AND LENDER HEREBY IRREVOCABLY WAIVE THE RIGHT TO
TRIAL BY JURY WITH RESPECT TO ANY ACTION IN WHICH BORROWER AND LENDER ARE
PARTIES RELATING TO OR ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT
OR ANY OF THE OTHER TRANSACTION DOCUMENTS.
7.07 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).
7.08 Amendments and Waivers. Any provision of this Agreement, the
----------------------
Note 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 and Lender.
7.09 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" and "B"
--------
refer to annexed Exhibits "A" and "B" that are hereby incorporated herein by
--------
reference and all references herein to Schedule 2.02 refers to annexed
-------------
Schedule 2.02 that 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.
7.10 Successors and Assigns. The provisions of this Agreement shall
----------------------
be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns, except that Borrower may not assign or
otherwise transfer any of its rights or delegate any of its obligations or
duties under this Agreement.
7.11 NOTICE REQUIRED BY SECTION 432.045 R.S.Mo.; 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 YOU (BORROWER), AND US (CREDITOR)
FROM MISUNDERSTANDING OR DISAPPOINTMENT, ANY AGREEMENTS WE REACH COVERING
SUCH MATTERS ARE CONTAINED IN THIS WRITING, WHICH IS THE COMPLETE AND
EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN US, EXCEPT AS WE 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.
7.12 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.
7.13 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.
7.14 Confidentiality. Any information received by Lender from
---------------
Borrower and clearly marked as confidential shall be treated as confidential
by Lender in accordance with its customary practices and procedures.
Notwithstanding such agreement, nothing herein contained shall limit or
impair the right or obligation of Lender to disclose such information: (a)
to its auditors, attorneys, trustees, employees, directors, officers,
advisors, affiliates or agents, (b) when and as required by any law,
ordinance, subpoena or governmental order, rule or regulation, (c) as may be
required, requested or otherwise appropriate in any report, statement or
testimony submitted to any municipal, state, provincial or federal
regulatory body or any self-regulatory body having or claiming to have
jurisdiction over Lender, (d) which is publicly available or readily
ascertainable from public sources, or which is received by Lender from a
third Person which or which is not known by Lender to be bound to keep the
same confidential, (e) in connection with any proceeding, case or matter
pending (or on its face
- 15 -
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 Note or any of
the other Transaction Documents, including, without limitation, the
enforcement of the terms and conditions of this Agreement, the Note and the
other Transaction Documents, or (g) to any entity utilizing such information
to rate the creditworthiness of Lender or to rate or classify the debt or
equity securities of Lender or report to the public concerning the industry
of which such Lender is a part. It is agreed and understood that Lender
shall not be liable to Borrower or any other Person for failure to comply
with the foregoing except in any case involving Lender's gross negligence or
willful misconduct as determined by a court of competent jurisdiction in a
final, nonappealable order.
IN WITNESS WHEREOF, Borrower and Lender have executed this Loan
Agreement as of the 28th day of January, 2002.
THE LACLEDE GROUP, INC.
By /s/ Douglas H. Yaeger
------------------------------------------
Title: Chairman of the Board, President &
Chief Executive Officer
Address:
720 Olive Street, Suite 1525
St. Louis, Missouri 63101
Attention: Treasurer
Facsimile No.: (314) 421-1979
U.S. BANK NATIONAL ASSOCIATION,
formerly known as Firstar Bank, N.A.
By /s/ Eric Hartman
------------------------------------------
Title: Vice President
Print Name: Eric Hartman
Address:
One Firstar Plaza, 12th Floor
St. Louis, Missouri 63101
Attention: Large Corporate Department
Facsimile No.: (314) 418-3571
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SCHEDULE 2.02
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Authorized Individuals
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Douglas H. Yaeger
Gerald T. McNeive, Jr.
Ronald L. Krutzman
Lynn D. Rawlings
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EXHIBIT A
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TERM LOAN PROMISSORY NOTE
$42,800,000.00 St. Louis, Missouri
January 28, 2002
FOR VALUE RECEIVED, THE LACLEDE GROUP, INC., a Missouri corporation
("Borrower"), hereby promises to pay to the order of U.S. Bank National
Association, formerly known as Firstar Bank, N.A. ("Lender"), the principal
sum of Forty-Two Million Eight Hundred Thousand Dollars ($42,800,000.00), on
January 27, 2003. Borrower further promises to pay to the order of Lender
interest on the unpaid principal balance from time to time outstanding under
this Term Loan Promissory Note (this "Note") on the dates and at the rate or
rates provided for in the Loan Agreement.
All payments received by Lender under this Note shall be allocated
among the principal, interest, collection costs and expenses and other
amounts due under this Note in such order and manner as Lender shall elect.
The amount of interest accruing under this Note shall be computed on an
actual day, 360-day year basis.
All payments of principal and interest under this Note shall be
made in lawful currency of the United States in Federal or other immediately
available funds at the office of Lender located at One Firstar Plaza, 12th
Floor, St. Louis, Missouri 63101, or such other place as Lender may from
time to time designate in writing.
This Note is the Note referred to in that certain Loan Agreement
dated as of the date hereof by and between Borrower and Lender, as the same
may from time to time be amended, modified, extended, renewed or restated
(the "Loan Agreement"). The Loan Agreement, among other things, contains
provisions for acceleration of the maturity of this Note upon the occurrence
of certain stated events and also for prepayments on account of principal of
this Note and interest on this Note prior to the maturity of this Note upon
the terms and conditions specified therein. All capitalized terms used and
not otherwise defined in this Note shall have the respective meanings
ascribed to them in the Loan Agreement.
If Borrower shall fail to make any payment of any principal or
interest due under this Note as and when the same shall become due, then the
entire outstanding principal balance of this Note and all accrued and unpaid
interest thereon may be declared to be immediately due and payable in the
manner and with the effect as provided in the Loan Agreement.
In the event that any payment of any principal or interest due
under this Note is not paid when due, whether by reason of maturity,
acceleration or otherwise, and this Note is placed in the hands of an
attorney or attorneys for collection, or if this Note is placed in the hands
of an attorney or attorneys for representation of Lender in connection with
bankruptcy or insolvency proceedings relating to or affecting this Note,
Borrower hereby promises to pay to the order of Lender, in addition to all
other amounts otherwise due on, under or in respect of this Note, the costs
and expenses of such collection and representation, including, without
limitation, reasonable attorneys' fees and expenses (whether or not
litigation shall be commenced in aid thereof). Borrower hereby waives
presentment for payment, demand for payment, protest, notice of protest and
notice of dishonor.
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This Note shall be governed by and construed in accordance with the
substantive laws of the State of Missouri (without reference to conflict of
law principles).
THE LACLEDE GROUP, INC.
By
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Title:
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Print Name:
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EXHIBIT B
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[Date]
U.S. Bank National Association
One Firstar Plaza
12th Floor
St. Louis, Missouri 63101
Attention:
Ladies and Gentlemen:
Reference is hereby made to that certain Loan Agreement dated
January 28, 2002, by and between The Laclede Group, Inc., and U.S. Bank
National Association, as the same may from time to time amended, modified,
extended, renewed or restated (the "Loan Agreement"). All capitalized terms
used and not otherwise defined herein shall have the respective meanings
ascribed to them in the Loan Agreement.
Borrower hereby certifies to Lender that as of the date hereof:
(a) except as set forth below, all of the representations and
warranties made by Borrower in the Loan Agreement and/or in any of the other
Transaction Documents are true and correct in all material respects on and
as of the date of this Certificate as if made on and as of the date of this
Certificate:
Exceptions:
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;
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(b) except as set forth below, no Default or Event of Default under
or within the meaning of the Loan Agreement has occurred and is continuing:
Exceptions:
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; and
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(c) the financial statements of Borrower and its Subsidiaries
delivered to you with this letter are true, correct and complete in all
material respects and have been prepared in accordance with GAAP (subject,
in the case of any interim financial statements, to normal year-end
adjustments and absence of footnote disclosures).
Very truly yours,
THE LACLEDE GROUP, INC.
By
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Title:
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