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CREDIT AGREEMENT

Loan Agreement

CREDIT AGREEMENT | Document Parties: LACLEDE GROUP INC | BANK OF AMERICA, N.A. You are currently viewing:
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LACLEDE GROUP INC | BANK OF AMERICA, N.A.

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Title: CREDIT AGREEMENT
Governing Law: Missouri     Date: 11/20/2009
Industry: Natural Gas Utilities     Sector: Utilities

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Exhibit 10.23

 

 

CREDIT AGREEMENT

 

This Credit Agreement (this “ Agreement ”) is dated as of October 2, 2009, and is by and between THE LACLEDE GROUP, INC. , a Missouri corporation (“ Borrower ”), and BANK OF AMERICA, N.A. (“ Lender ”).

 

SECTION 1.    DEFINITIONS .

 

           1.01.    Definitions . In addition to the terms defined elsewhere in this Agreement or in any Exhibit or Schedule hereto, when used in this Agreement, the following terms shall have the following meanings (such meanings shall be equally applicable to the singular and plural forms of the terms used, as the context requires):

 

          Acquisition shall mean any transaction or series of related transactions, consummated on or after the date of this Agreement, by which Borrower or any Subsidiary directly or indirectly (a) acquires all or substantially all of the assets comprising one or more business units of any other Person at a purchase price of $5,000,000 or more, whether through purchase of assets, merger or otherwise or (b) acquires (in one transaction or as the most recent transaction in a series of transactions) at least (i) a majority (in number of votes) of the stock and/or other securities of a corporation having ordinary voting power for the election of directors (other than stock and/or other securities having such power only by reason of the happening of a contingency), (ii) a majority (by percentage of voting power) of the outstanding partnership interests of a partnership, (iii) a majority (by percentage of voting power) of the outstanding membership interests of a limited liability company or (iv) a majority of the ownership interests in any organization or entity other than a corporation, partnership or limited liability company.

 

          Adjusted Base Rate shall mean the Base Rate plus the Applicable Base Margin. The Adjusted Base Rate shall be adjusted automatically on and as of the effective date of any change in the Base Rate and/or the Applicable Base Margin.

 

          Applicable Commitment Fee Rate shall mean an annual rate equal to 25/100 Percent (0.25%).

 

          Applicable LIBOR Margin shall mean an annual rate equal to One and One-Half Percent (1.50%).

 

     Applicable Base Margin shall mean an annual rate equal to One and One-Half Percent (1.50%).

 

          Base Rate shall mean the BBA LIBOR Daily Floating Rate.  The Base Rate shall be adjusted automatically on and as of the effective date of any change in the BBA LIBOR Daily Floating Rate.

 

          Base Rate Loan shall mean any portion of a Loan bearing interest based on the Adjusted Base Rate.

 

          BBA LIBOR shall mean the British Bankers Association LIBOR Rate, as published by Reuters (or other commercially available source providing quotations of BBA LIBOR as selected by Lender from time to time).

 

 

 

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           BBA LIBOR Daily Floating Rate shall mean a fluctuating rate of interest which can change on each Business Day.  The rate will be adjusted on each Business Day to equal the BBA LIBOR for U.S. Dollar deposits for delivery on the date in question for a one month term beginning on that date.  The Bank will use the BBA LIBOR as determined at approximately 11:00 a.m. London time two (2) London Banking Days prior to the date in question, as adjusted from time to time in Lender’s sole discretion for reserve requirements, deposit insurance assessment rates and other regulatory costs.  If such rate is not available at such time for any reason, then the rate will be determined by such alternate method as reasonably selected by Lender.

 

            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 Lender evidenced by or arising under or in respect of this Agreement, the Note and/or any of the other Transaction Documents, including, without limitation, any reimbursement obligations of the Borrower in respect of Letters of Credit, all obligations of Borrower which are owed to Lender or any affiliate   of Lender under any Swap Contract, and all other liabilities and obligations owed by Borrower to Lender from time to time, howsoever created, arising or evidenced, whether direct or indirect, joint or several, absolute or contingent, now or hereafter existing, or due or to become due, together with any and all renewals, extensions, restatements or replacements of any of the foregoing.

 

           Business Day shall mean any day other than a Saturday, Sunday or other day on which commercial banks are authorized to close, or are in fact closed, in the state where Lender’s lending office is located, and, if such day relates to amounts bearing interest at an offshore rate (if any), means any such day on which dealings in dollar deposits are conducted among banks in the offshore dollar interbank market.

 

           Charter Documents shall mean: the articles or certificate of incorporation and bylaws of a corporation; the certificate of limited partnership and partnership agreement of a limited partnership; the partnership agreement of a general partnership; the articles of organization and operating agreement of a limited liability company; or the indenture of a trust.

 

           Consolidated Capitalization shall mean, as of the date of any determination thereof, the sum of Consolidated Debt as of such date, plus Consolidated Net Worth as of such date, all determined on a consolidated basis and in accordance with GAAP.

 

           Consolidated Capitalization Ratio shall mean, as of the date of any determination thereof, the ratio (expressed as a percentage) of Consolidated Debt as of such date to Consolidated Capitalization as of such date, all determined on a consolidated basis and in accordance with GAAP.

 

            Consolidated Debt shall mean, as of the date of any determination thereof, all Debt of Borrower and its Subsidiaries as of such date, determined on a consolidated basis and in accordance with GAAP.

 

           Consolidated Net Worth shall mean, as of the date of any determination thereof, the amount of the capital stock accounts (net of treasury stock, at cost) of Borrower and its Subsidiaries as of such date plus (or minus in the case of a deficit) the surplus and retained earnings of Borrower and its Subsidiaries as of such date, all determined on a consolidated basis and in accordance with GAAP.

 

 

 

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            Contingent Liabilities of a Person shall mean any agreement, undertaking or arrangement by which such Person assumes, guarantees, endorses, or contingently agrees to purchase or provide funds for the payment of, or otherwise becomes liable upon the obligation or liability of any other Person, or agrees to maintain the net worth or working capital or the financial condition of any other Person; but does not include (A) the endorsement by a Person of instruments for deposit or collection in the ordinary course of business, (B) the liability of a general partner of a partnership for obligations of such partnership, (C) the Debt hereunder and the Debt under the UMB Agreement, and (D) guaranties of purchases by Laclede Energy of natural gas in the ordinary course of Laclede Energy’s business.

 

           Debt shall mean, as of the date of determination thereof, the sum of (a) all indebtedness, liabilities and/or obligations of Borrower or any of its Subsidiaries for borrowed money or that have been incurred in connection with the purchase or other acquisition of property (other than unsecured trade accounts payable incurred in the ordinary course of business), plus (b) all leases of property, whether real and/or personal, by Borrower or any of its Subsidiaries as lessee(s), that in accordance with GAAP are required to be capitalized on the balance sheet of such entity, plus (c) the aggregate undrawn face amount of all letters of credit and/or surety bonds issued for the account and/or upon the application of Borrower or any of its Subsidiaries together with all unreimbursed drawings with respect thereto, plus (d) all guarantees by Borrower or any of its Subsidiaries of Debt of other Persons (but not including any guarantees of Debt of Borrower or any of its Subsidiaries).

 

           Default shall mean any event or condition the occurrence of that would, with the lapse of time or the giving of notice or both, become an Event of Default.

 

           Event of Default shall have the meaning ascribed thereto in Section 6.

 

           GAAP shall mean, at any time, generally accepted accounting principles at such time in the United States.

 

           Guarantor shall mean Laclede Energy.

 

           Guaranty shall mean the Guaranty dated as of the date hereof, executed by Laclede Energy in favor of Lender.

 

           Indemnified Liabilities shall have the meaning ascribed thereto in Section 7.04.

 

           Interest Period shall mean with respect to each LIBOR Loan: (a) initially, the period commencing and ending on the dates selected by Borrower in the applicable Interest Rate Selection Notice pursuant to and in accordance with Section 2.04; and (b) thereafter, each period commencing on the last day of the immediately preceding Interest Period applicable to such LIBOR Loan and ending on the date elected by Borrower in the applicable Interest Rate Selection Notice for such period pursuant to and in accordance with Section 2.04.

 

           Interest Rate Selection Notice shall have the meaning ascribed thereto in Section 2.04(e).

 

           Investment shall mean any investment (including, without limitation, any loan or advance) of Borrower or any Subsidiary in or to any Person, whether payment therefor is made in cash or capital stock or other equity interests of Borrower or any Subsidiary, and whether such investment is by acquisition of stock or other equity interests or Debt, or by loan, advance, transfer of property out of the ordinary course of business, capital contribution, equity or profit sharing interest, extension of credit on terms other than those normal in the ordinary course of business or otherwise.

 

 

 

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           Laclede Energy shall mean Laclede Energy Resources, Inc., a Missouri corporation, and a Subsidiary of Borrower.

 

           Lender’s Revolving Credit Commitment shall mean the sum of Forty Million Dollars ($40,000,000).

 

           Letter of Credit and Letters of Credit shall have the meanings ascribed to these terms in Section 2.18(a).

 

           Letter of Credit Application shall mean Lender’s standard form of application and agreement for irrevocable standby letter of credit, or Lender’s standard form of application and agreement for irrevocable commercial letter of credit, as the case may be, in either case executed by Borrower, or a Subsidiary of Borrower, as applicant and account party, and delivered to Lender pursuant to Section 2.18(a), as the same may from time to time be amended, modified, extended, renewed or restated.

 

           LGC shall mean Laclede Gas Company, a Missouri corporation, and a Subsidiary of Borrower.

 

           LIBOR Banking Day shall mean a day other than a Saturday or a Sunday on which banks are open for business in New York and London and dealing in offshore dollars.

 

           LIBOR Loan shall mean any portion of the Loan bearing interest based on the LIBOR Rate.

 

           LIBOR Rate shall mean the interest rate determined by the following formula (all amounts in the calculation will be determined by Lender as of the first day of the Interest Period):

 

LIBOR Rate =    London Inter-Bank Offered Rate     +    Applicable LIBOR Margin

   (1.00 - Reserve Percentage)

 

The LIBOR Rate shall be adjusted automatically on and as of the effective date of any change in the Reserve Percentage and/or the Applicable LIBOR Margin.

 

           Loan and Loans shall have the meaning ascribed thereto in Section 2.01(a).

 

           Loan Party shall mean each of Borrower and each Subsidiary (including, without limitation, Laclede Energy) but excluding LGC.

 

           London Banking Day shall mean a day on which banks in London are open for business and dealing in offshore dollars.

 

           London Inter-Bank Offered Rate shall mean, for any applicable Interest Period, the rate per annum equal to BBA LIBOR at approximately 11:00 a.m. London time two (2) London Banking Days before the commencement of the Interest Period, for U.S. Dollar deposits (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period.  If such rate is not available at such time for any reason, then the rate for that Interest Period will be determined by such alternate method as reasonably selected by Lender.

 

 

 

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           Material Adverse Effect shall mean (a) a material adverse effect on the properties, assets, liabilities, business, operations, 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.

 

           Note shall have the meaning ascribed thereto in Section 2.03(a).

 

           Notice of Borrowing shall have the meaning ascribed thereto in Section 2.02(a).

 

           Other Taxes shall have the meaning ascribed thereto in Section 2.19(b).

 

           Permitted Investment shall mean any Investment or Acquisition, or any expenditure or any incurrence of any liability to make any expenditure for an Investment or Acquisition, other than (a) any Investment or Acquisition the result of which would be to change substantially the nature of the business engaged in by Borrower and its Subsidiaries, (b) any Investment that is in the nature of a hostile or contested Acquisition, and (c) any Investment that would result in a Default or Event of Default; provided, that it is expressly agreed that all Investments under Borrower’s or Subsidiaries’ commodity risk management programs are Permitted Investments.

 

          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).

 

           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.

 

           Reserve Percentage shall mean the total of the maximum reserve percentages for determining the reserves to be maintained by member banks of the Federal Reserve System for Eurocurrency Liabilities, as defined in Federal Reserve Board Regulation D, rounded upward to the nearest 1/100 of one percent.  The percentage will be expressed as a decimal, and will include, but not be limited to, marginal, emergency, supplemental, special, and other reserve percentages.

 

           Revolving Credit Period shall mean the period commencing on the date of this Agreement and ending October 1, 2010; provided, however, that the Revolving Credit Period shall end on the date the Lender’s Revolving Credit Commitment is terminated pursuant to Section 6 or otherwise.

 

           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.

 

           Swap Contract shall mean any interest rate, credit, commodity or equity swap, cap, floor, collar, forward foreign exchange transaction, currency swap, cross currency rate swap, currency option, securities puts, calls, collars, options or forwards or any combination of, or option with respect to, these or similar transactions now or hereafter entered into between Borrower and Lender or an affiliate thereof.

 

 

 

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           Taxes shall have the meaning ascribed thereto in Section 2.19(a).

 

           Total Revolving Credit Outstandings shall mean, as of any date, the sum of (a) the aggregate principal amount of all Loans outstanding as of such date, plus (b) the aggregate undrawn face amount of all Letters of Credit outstanding as of such date plus (c) all unreimbursed drawings with respect to all Letters of Credit.

 

           Transaction Documents shall mean this Agreement, the Note and any and all other agreements, documents and instruments heretofore, now or hereafter delivered to Lender 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.

 

           UMB Agreement shall mean the Credit Agreement by and between Borrower and UMB Bank, National Association, executed on the date hereof or within thirty (30) days following the date hereof, as amended, modified or restated from time to time.

 

SECTION 2.     LOANS .

 

           2.01.     Loans .

 

          (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, Lender 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 Base Rate Loan shall be for an aggregate principal amount of at least $50,000.00 or any larger multiple of $10,000.00. Each Loan under this Section 2.01(a) which is a LIBOR Loan shall be for an aggregate principal amount of at least $500,000.00 or any larger multiple of $250,000.00; provided, that Borrower may not have outstanding and Lender shall not be obligated to make more than six (6)   LIBOR Loans at any one time. The aggregate principal amount of Loans that Lender shall be required to have outstanding under this Agreement as of any date shall not exceed the amount of Lender’s Revolving Credit Commitment as of such date. Within the foregoing limits, Borrower may borrow under this Section 2.01(a), repay according to Section 2.09, 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 Lender with respect thereto, shall be due and payable on the last day of the Revolving Credit Period.

 

          (b)    If the amount of Lender’s Revolving Credit Commitment on any date is less than the Total Revolving Credit Outstandings on such date, whether as a result of Borrower’s election to decrease the amount of Lender’s Revolving Credit Commitment pursuant to Section 2.01(c) or otherwise, Borrower shall be automatically required (without demand or notice of any kind by Lender, all of which are hereby expressly waived by Borrower) to immediately repay the Loans in an amount sufficient to reduce the amount of the Total Revolving Credit Outstandings to an amount equal to or less than the amount of Lender’s Revolving Credit Commitment.

 

          (c)    Borrower may, upon five (5) Business Days’ prior written notice to Lender, terminate entirely at any time, or reduce from time to time by an aggregate amount of $1,000,000 or any larger multiple of $1,000,000 the unused portions of Lender’s Revolving Credit Commitment; provided, however, that (i) at no time shall the amount of Lender’s Revolving Credit Commitment be reduced to a figure less than the Total Revolving Credit Outstanding, (ii) at no time shall the amount of Lender’s Revolving Credit Commitment be reduced to a figure greater than zero (0) but less than $5,000,000 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, Lender’s Revolving Credit Commitment.

 

 

 

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           2.02.   Method of Borrowing .

 

          (a)    Borrower shall give Lender oral or written notice (a “ Notice of Borrowing ”) by 10:00 a.m. (St. Louis time) on the Business Day of each Base Rate Loan to be made to Borrower, and by 10:00 a.m. (St. Louis time) at least three (3) LIBOR Banking Days before each LIBOR Loan to be made to Borrower, specifying: (i) the date of such Loan, which shall be a Business Day during the Revolving Credit Period in the case of a Base Rate Loan and a LIBOR Banking Day during the Revolving Credit Period in the case of a LIBOR Loan, (ii) the aggregate principal amount of such Loan, (iii) whether such Loan is to be a Base 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 Section 2.04.

 

          (b)    A Notice of Borrowing shall not be revocable by Borrower.

 

          (c)    Subject to the terms and conditions of this Agreement, provided that Lender has received the Notice of Borrowing, Lender shall (unless Lender determines that any applicable condition specified in Section 3 has not been satisfied) make the applicable Loan to Borrower by crediting the amount of such Loan to a demand deposit account of Borrower at Lender specified by Borrower (or such other account mutually agreed upon in writing between Lender and Borrower) not later than 2:30 p.m. (St. Louis time) on the Business Day specified in said Notice of Borrowing.

 

          (d)    If Lender makes a new Loan 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, Lender 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 Lender to Borrower.

 

          (e)    Borrower hereby irrevocably authorizes Lender to rely on telephonic, facsimile, or written instructions of any individual 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 document signed by the Chairman of the Board of Borrower and certified by the Secretary of Borrower and delivered to Lender) with respect to any request to make a Loan or a repayment under this Agreement, and on any signature that Lender reasonably 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 Lender and hold Lender harmless from and against any and all claims, demands, damages, liabilities, losses and reasonable 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.   Note .

 

          (a)    The Loans of Lender to Borrower shall be evidenced by the Revolving Note of Borrower payable to the order of Lender in a principal amount equal to the maximum amount of Lender’s Revolving Credit Commitment, which Revolving Note shall be in substantially the form of Exhibit A attached hereto and incorporated herein by reference (with appropriate insertions) (as the same may from time to time be amended, modified, extended, renewed or restated, the “ Note ”).

 

          (b)    Lender shall record in its books and records the date, amount, type and Interest Period (if any) of each Loan made by it to Borrower and the date and amount of each payment of principal and/or interest made by Borrower with respect thereto; provided, however, that the obligation of Borrower to repay each Loan made by Lender to Borrower under this Agreement shall be absolute and unconditional, notwithstanding any failure of Lender to make any such recordation or any mistake by Lender in connection with any such recordation. The books and records of Lender showing the account between Lender and Borrower shall be conclusive in the absence of manifest error.

 

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           2.04.   Duration of Interest Periods and Selection of Interest Rates .

 

          (a)    The Interest Period during which the LIBOR Rate will be in effect for a LIBOR Loan will be one week or one, two, three, or six months.

 

          (b)    The first day of the Interest Period must be a LIBOR Banking Day.  The last day of the Interest Period and the actual number of days during the Interest Period will be determined by Lender using the practices of the London inter-bank market.

 

          (c)    No Interest Period 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 Base Rate 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)    No Interest Period may extend beyond the Revolving Credit Period.

 

           (e)    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 Base Rate Loan, to elect that such 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 Loan become a Base Rate Loan), by giving notice of such election to Lender (an “ Interest Rate Selection Notice ”) by 10:00 a.m. (St. Louis time) on the Business Day of, in the case of the election of the Adjusted Base Rate, and by 10:00 a.m. (St. Louis time) at least three (3) LIBOR Banking 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 Lender under Section 6 of this Agreement, 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 Base Rate Loan into a LIBOR Loan. If Lender does not receive an Interest Rate Selection Notice within the applicable time limits specified herein, Borrower shall be deemed to have elected to pay such Loan in whole pursuant to Section 2.08 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 Base Rate Loan.

 

          (f)    Borrower may not have outstanding and Lender shall not be obligated to make more than six (6)   LIBOR Loans at any one time.

 

           2.05.   Interest Rates and Interest Payments .

 

          (a)    So long as no Event of Default has occurred and is continuing, each Base Rate Loan shall bear interest on the outstanding principal amount thereof for each day until paid at an annual rate equal to the Adjusted Base Rate. So long as any Event of Default has occurred and is continuing, each Base Rate Loan shall bear interest on the outstanding principal amount thereof for each until it is paid, at an annual rate equal to Five Percent (5%) over and above the Adjusted Base Rate. Such interest shall be payable monthly in arrears on the last day of each calendar month commencing October 31, 2009 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 Base Rate Loan shall bear interest, payable on demand, for each day until paid at an annual rate equal to Five Percent (5%) over and above the Adjusted Base Rate.

 

 

 

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          (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 an annual rate 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 an annual rate 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 an annual rate equal to Five Percent (5%) over and above the higher of (i) the LIBOR Rate applicable to such LIBOR Loan for the immediately preceding Interest Period or (ii) the Adjusted Base Rate.

 

          (c)    Lender shall determine each interest rate applicable to the Base Rate Loans and LIBOR Loans hereunder and its determination thereof shall be conclusive in the absence of manifest error.

 

           2.06.     Computation of Interest . Interest on Base 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)    Contemporaneously with the execution of this Agreement, Borrower shall pay Lender a nonrefundable upfront fee in the amount set forth in the fee letter provided by Lender to Borrower.

 

          (b)    Borrower shall pay to Lender a utilization fee of 37.5/100 Percent (0.375%) per annum times the Total Revolving Credit Outstandings on each day that the Total Revolving Credit Outstandings exceed Thirty-Three Percent (33%) of the actual daily amount of the Lender’s Revolving Credit Commitment then in effect (or, if terminated, in effect immediately prior to such termination).  The utilization fee shall be due and payable quarterly in arrears on each March 31, June 30, September 30 and December 31, commencing with the first such date to occur after the Closing Date, and on the last day of the Revolving Credit Period (and, if applicable, thereafter on demand).  The utilization fee shall be calculated quarterly in arrears.  The utilization fee shall accrue at all times that the Total Revolving Credit Outstanding exceeds Thirty-Three Percent (33%) of Lender’s Revolving Credit Commitment.

 

          (c)    At all times from and including the date of this Agreement to but excluding the last day of the Revolving Credit Period, Borrower shall pay a nonrefundable commitment fee on the unused portion of Lender’s Revolving Credit Commitment (determined by subtracting the Total Revolving Credit Outstandings from the amount of Lender’s Revolving Credit Commitment) at a percentage rate equal to the Applicable Commitment Fee Rate. Said commitment fee shall be (i) calculated on a daily basis, (ii) payable quarterly in arrears on each June 30, September 30, December 31, and March 31 during the Revolving Credit Period commencing December 31, 2009, and on the last day of the Revolving Credit Period and (iii) calculated on an actual day, 360-day year basis.

 

 

 

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           2.08.   Prepayments .

 

          (a)    Borrower may, upon notice to Lender specifying that it is paying any Base Rate Loan, pay without penalty or premium the Base Rate 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 $1,000,000.00 or any larger multiple of $500,000.00.

 

          (b)    Borrower may, upon at least three (3) LIBOR Banking 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 (A) all accrued and unpaid interest on the portion of the LIBOR Loan being prepaid to and including the date of prepayment and (B) the funding losses and other amounts, if any, required under Section 2.10; (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; and (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.

 

           2.09.   General Provisions as to Payments . Borrower shall make each 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.

 

           2.10.     Funding Losses . Notwithstanding any provision contained in this Agreement to the contrary, if (a) Borrower shall make any payment of principal with respect to any LIBOR Loan on any day other than the last day of the Interest Period applicable thereto, whether as a result of a scheduled payment, a voluntary prepayment, a mandatory prepayment, maturity, acceleration or otherwise or (b) any LIBOR Loan is converted to a Base Rate Loan pursuant to Section 2.04, Section 2.11 or Section 2.12 on any day other than the last day of the Interest Period applicable thereto, then, contemporaneously with each such payment or conversion, Borrower shall reimburse Lender on demand for any for any loss, cost or expense incurred by Lender as a result of the prepayment, including, without limitation, any losses incurred in obtaining, terminating, liquidating, or employing deposits from third parties, but excluding any loss of the Applicable LIBOR Margin for the period after any such prepayment; provided, however, that Lender shall have delivered to Borrower a certificate as to the amount of such losses and expenses, which certificate shall be conclusive in the absence of manifest error.  Borrower shall also pay any customary administrative fees charged by Lender in connection with the foregoing.  For purposes of this paragraph, Lender shall be deemed to have funded each LIBOR Loan by a matching deposit or other borrowing in the applicable interbank market, whether or not such LIBOR Loan was in fact so funded.

 

 

 

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           2.11.   Basis for Determining Interest Rate Inadequate or Unfair . If with respect to any Interest Period: (a) deposits in U.S. Dollars (in the applicable amounts) are not being offered to 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 Base 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 together with any funding losses and other amounts due under Section 2.10.

 

           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 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 Base 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 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 “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, 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.

 

 

 

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          (b)    If Lender demands compensation under Section 2.13(a) above, Borrower may at any time, upon at least three (3) LIBOR Banking Day’s prior notice to Lender, convert its then outstanding LIBOR Loans to Base 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.    Base Rate Loans Substituted for Affected LIBOR Loans . If notice has been given by Lender pursuant to Sections 2.11 or 2.12 requiring LIBOR Loans to be repaid or converted to Base Rate 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 Base Rate Loans. Lender 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, Lender shall have determined in good faith that a Regulatory Change has occurred which has or will have the effect of reducing the rate of return on Lender’s capital in respect of its obligations 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.

 

           2.16.   Survival of Indemnities . All indemnities and all provisions relating to reimbursement to Lender of amounts sufficient to protect the yield to Lender with respect to the Loan, including, without limitation, Sections 2.10, 2.13 and 2.15 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 2.10, 2.13 and/or 2.15 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.

 

           2.17.   Discretion of Lender as to Manner of Funding . Notwithstanding 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 2.10) 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.

 

 

 

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           2.18.    Letters of Credit .

 

          (a)    Subject to the terms and conditions of this Agreement and so long as no Default or Event of Default has occurred and is continuing, during the Revolving Credit Period, Lender agrees to issue irrevocable commercial and/or standby letters of credit for the account of Borrower and/or any Subsidiary (individually, a “ Letter of Credit ”, and collectively, “ Letters of Credit ”) in an amount and for the term specifically requested by Borrower by notice in writing to Lender at least three (3) Business Days prior to the requested issuance thereof; provided, however, that: (i) Borrower shall have executed and delivered to Lender a Letter of Credit Application with respect to such Letter of Credit; (ii) the term of any such Letter of Credit shall not extend beyond the date one (1) year after the date of issuance thereof; (iii) any Letter of Credit may only be utilized to guaranty the payment of obligations of Borrower or a Subsidiary to third parties; (iv) Total Revolving Credit Outstandings shall not as of any date exceed Lender’s Revolving Credit Commitment; (v) the sum of the aggregate undrawn face amount of all outstanding Letters of Credit plus all unreimbursed drawings with respect thereto shall not as of any date exceed Forty Million Dollars ($40,000,000.00); and (vi) the text of any such Letter of Credit is provided to Lender no less than three (3)   Business Days prior to the requested issuance date, which text must be acceptable to Lender in its sole and absolute discretion.

 

          (b)    The payment of drafts under each Letter of Credit shall be made in accordance with the terms thereof and, in that connection, Lender shall be entitled to honor any drafts and accept any documents presented to it by the beneficiary of such Letter of Credit in accordance with the terms of such Letter of Credit and the related Letter of Credit Application and believed in good faith by Lender to be genuine. Lender shall not have any duty to inquire as to the accuracy or authenticity of any draft or other drawing document that may be presented to it other than the duties contemplated by the applicable Letter of Credit Application.

 

          (c)    In the event of any payment by Lender of a draft presented under a Letter of Credit, Borrower agrees to pay to Lender in immediately available funds at the time of such drawing an amount equal to the sum of such drawing plus the negotiation, processing and other fees related thereto, as may be agreed between Lender and Borrower from time to time. Borrower hereby authorizes Lender to charge or cause to be charged one or more of Borrower’s deposit accounts at Lender to the extent there are balances of immediately available funds therein, in an aggregate amount equal to the sum of such drawing plus the negotiation, processing and other fees related thereto as may be agreed between Lender and Borrower from time to time, and B


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