EXECUTION COPY
CREDIT AGREEMENT
Dated as of
November 24, 2003
By and Among
NUI UTILITIES, INC.,
as the Borrower,
THE FINANCIAL INSTITUTIONS PARTY HERETO,
as the Lenders hereunder,
and
CREDIT SUISSE FIRST BOSTON,
as sole Administrative Agent, Lead Arranger and Bookrunner
TABLE OF CONTENTS
-----------------
ARTICLE 1. DEFINITIONS.....................................................1
1.1 Defined Terms.......................................................1
1.2 GAAP Definitions...................................................14
1.3 Other Definitional Conventions and Rules of Construction...........14
ARTICLE II. THE LOANS......................................................15
2.1 Commitments........................................................15
2.1a Loans..............................................................15
2.1b Obligations of Each Lender.........................................15
2.1c Evidence of Debt; Repayment of Loans...............................15
2.1d Loan Request.......................................................16
2.1e Making Loans.......................................................17
2.1f Swingline Loans....................................................18
2.2 Interest Rates, Interest Payment and Certain Provisions
Relating to Interest and Fees.....................................19
2.2a Payments of Interest; Collateralization............................19
2.2b Interest Rate Options..............................................20
2.2c Interest Periods; Limitations on Elections.........................20
2.2d Election, Conversion or Renewal of Interest Rate Options...........20
2.2e Notification of Election of an Interest Rate Option................21
2.2f Default Interest...................................................21
2.3 Yield-Protection, Capital Adequacy and Miscellaneous
Provisions Relating to Euro-Rate..................................22
2.3a Yield Protection...................................................22
2.3b Capital Adequacy...................................................23
2.3c Euro-Rate Unascertainable..........................................23
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2.3d Illegality.........................................................24
2.3e Change of Lending Office...........................................24
2.4 Fees...............................................................24
2.4a Commitment Fee....................................................24
2.4b Certain Other Fees.................................................25
2.5 Calculation of interest and Commitment Fee.........................25
2.6 Extension of Termination Date......................................25
2.7 Substitution or Replacement of a Lender............................26
2.8 Loan Repayment.....................................................26
2.9 Additional Payments by the Borrower................................27
2.10 Voluntary Reduction of Availability................................27
2.11 Intentionally Omitted..............................................27
2.12 Intentionally Omitted..............................................28
2.13 Time, Place and Manner of Payments.................................28
2.14 Mandatory Prepayments..............................................28
ARTICLE III. REPRESENTATIONS AND WARRANTIES................................29
3.1 Corporate Existence................................................29
3.2 Corporate Authority................................................29
3.3 Enforceability.....................................................29
3.4 No Restrictions, No Default........................................29
3.5 Financial Statements...............................................30
3.6 Absence of Litigation..............................................30
3.7 Tax Returns and Payments...........................................31
3.8 Pension Plans......................................................31
3.9 Compliance with Applicable Laws....................................31
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3.10 Environmental Matters..............................................31
3.11 Governmental Approval..............................................32
3.12 Regulations T, U and X.............................................32
3.13 Investment Company Act.............................................32
3.14 Public Utility Holding Company Act.................................32
3.15 Disclosure.........................................................32
3.16 No Subsidiaries....................................................33
3.17 [Intentionally Omitted]............................................33
3.18 Insurance..........................................................33
3.19 Labor Matters......................................................33
ARTICLE IV. AFFIRMATIVE COVENANTS..........................................33
4.1 Use of Proceeds....................................................33
4.2 Furnishing Information.............................................34
4.3 Visitation.........................................................36
4.4 Preservation of Existence; Qualification...........................36
4.5 Compliance with Governmental Rules.................................36
4.6 Payment of Taxes...................................................36
4.7 Insurance..........................................................37
4.8 Maintenance of Properties and Assets...............................37
4.9 Plans and Benefit Arrangement......................................37
4.10 [Intentionally Omitted]............................................37
4.11 Ownership..........................................................37
ARTICLE V. NEGATIVE COVENANTS..............................................37
5.1 Dividends, Etc.....................................................37
5.2 Encumbrances.......................................................38
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5.3a Leverage Ratio.....................................................38
5.3b Interest Coverage Ratio............................................38
5.4 Acquisitions.......................................................38
5.5 Sales of Assets....................................................38
5.6 Merger, Dissolution and Liquidation................................38
5.7 Regulation T, U and X Compliance...................................38
5.8 ERISA..............................................................38
5.9 Restrictive Agreements.............................................39
5.10 Business of the Borrower...........................................39
5.11 Subsidiaries.......................................................39
5.12 Limitation on Capital Expenditures.................................39
5.13 Limitation on Indebtedness.........................................39
5.14 Limitation on Contingent Obligations...............................40
5.15 [Intentionally Omitted]............................................40
5.16 Limitation on Investments, Loans and Advances......................40
5.17 Limitation on Optional Payments and Modifications
of Debt Instruments...............................................41
5.18 Transactions with Affiliates.......................................41
5.19 Sale and Leaseback.................................................41
ARTICLE VI. CONDITIONS PRECEDENT TO ALL EXTENSIONS OF CREDIT...............41
6.1 All Extensions of Credit...........................................42
6.1a No Default.........................................................42
6.1b Representations Correct............................................42
6.1c Extension of Credit Requirements...................................42
6.2 Conditions Precedent to the Initial Extensions of
Credit Under the Commitments......................................42
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ARTICLE VII. DEFAULTS......................................................44
7.1 Payment Default....................................................44
7.2 Nonpayment of Other Indebtedness...................................44
7.3 Insolvency.........................................................44
7.3a Involuntary Proceedings............................................44
7.3b Voluntary Proceedings..............................................45
7.4 Intentionally Omitted..............................................45
7.5 Failure to Comply with Covenants...................................45
7.5a Failure to Comply with Certain Article IV
Covenants and Article V Covenants.................................45
7.5b Failure to Comply with Other Covenants.............................45
7.6 Misrepresentation..................................................45
7.7 Adverse Judgments, Etc.............................................45
7.8 Invalidity or Unenforceability.....................................46
7.9 ERISA..............................................................46
7.10 Change of Control; Change of Beneficial
Ownership or Board................................................46
7.11 Regulatory Decisions...............................................46
7.11 Consequences of an Event of Default................................46
7.12 Remedies Upon Default..............................................47
ARTICLE VIII. AGREEMENT AMONG LENDERS......................................47
8.1 Appointment and Grant of Authority.................................47
8.2 Delegation of Duties...............................................47
8.3 Reliance by Agent on Lenders for Funding...........................48
8.4 Non-Reliance on Agent..............................................48
8.5 Responsibility of Agent and Other Matters..........................48
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8.5a Ministerial Nature of Duties.......................................48
8.5b Limitation of Liability............................................48
8.5c Reliance...........................................................49
8.6 Actions in Discretion of Agent; Instructions
from the Lenders..................................................49
8.7 Indemnification....................................................49
8.8 Agent's Rights as a Lender.........................................50
8.9 Payment to Lenders.................................................50
8.10 Pro Rata Sharing...................................................50
8.11 Successor Agent....................................................51
8.11a Resignation of Agent...............................................51
8.11b Rights of the Former Agent.........................................51
8.12 Notice of Default..................................................51
8.13 Notices............................................................51
8.14 Holders of Loans...................................................51
8.15 Calculations.......................................................51
8.16 Beneficiaries......................................................51
ARTICLE IX. GENERAL PROVISIONS.............................................52
9.1 Amendments and Waivers.............................................52
9.2 Expenses...........................................................53
9.3 Notices............................................................53
9.4 Tax Withholding....................................................54
9.5 Successors and Assigns.............................................56
9.6 Assignments and Participations.....................................56
9.6a Assignments........................................................56
9.6b Assignment Register................................................58
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9.6c Participations.....................................................59
9.7 Severability.......................................................59
9.8 Survival...........................................................59
9.9 Governing Law......................................................59
9.10 Non-Business Days..................................................59
9.11 Integration........................................................59
9.12 Headings...........................................................59
9.13 Set-Off............................................................59
9.14 Consent to Forum...................................................60
9.15 Waiver of Jury Trial...............................................60
9.16 Indemnity..........................................................60
9.17 Counterparts.......................................................61
9.18 Confidentiality....................................................61
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TABLE OF EXHIBITS
-----------------
Name of Exhibit
Exhibit A [Intentionally Omitted]
Exhibit B [Intentionally Omitted]
Exhibit C [Intentionally Omitted]
Exhibit D1 Form of Revolving Loan Request
Exhibit D2 Form of Delayed Draw Term Loan Request
Exhibit E Form of Swingline Loan Request
Exhibit F Form of Compliance Certificate
Exhibit G [Intentionally Omitted]
Exhibit H Form of Assignment and Assumption Agreement
Exhibit I Form of Solvency Certificate
Exhibit J Form of Section 9.4(e)(ii) Certificate
Schedules
2.1 Commitments of Lenders
5.2 Existing Encumbrances Securing Indebtedness
5.13 Indebtedness
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CREDIT AGREEMENT
THIS CREDIT AGREEMENT, dated as of November 24, 2003, by and among NUI
UTILITIES, INC., a New Jersey corporation (as further defined below, the
"Borrower"), the financial institutions listed on the signature pages hereto,
and each other financial institution which, from time to time, becomes a party
hereto in accordance with Subsection 9.6a (individually, a "Lender" and
collectively, the "Lenders"), and CREDIT SUISSE FIRST BOSTON, acting through its
Cayman Islands Branch, as Administrative Agent (in such capacity, the "Agent"),
and as Swingline Lender, Lead Arranger (in such capacity, the "Lead Arranger")
and Bookrunner.
RECITALS:
WHEREAS, the Borrower desires to obtain extensions of credit from each
of the Lenders in the form of (a) a Term Loan (as defined below) made to the
Borrower on the Closing Date (as defined below) and (b) Revolving Credit Loans
(as defined below) made to the Borrower from time to time prior to the
Termination Date (as defined below); and
WHEREAS, the Lenders are willing, on the terms and subject to the
conditions hereinafter set forth, to make such extensions of credit to the
Borrower.
NOW THEREFORE, the parties hereto, intending to be legally bound, and
in consideration of the foregoing and the mutual covenants contained herein,
hereby agree as follows:
ARTICLE 1. DEFINITIONS.
1.1 Defined Terms. As used herein the following terms shall have the
meaning specified unless the context otherwise requires:
"Adjusted Base Rate" means the interest rate relating to the Base Rate
Option as described in item (i) of subsection 2.2b.
"Adjusted Euro-Rate" means the interest rate relating to the Euro-Rate
Option as described in item (ii) of subsection 2.2b.
"Affiliate" means as to any Person, any other Person (other than a
Subsidiary) which, directly or indirectly, is in control of, is controlled by,
or is under common control with, such Person. For purposes of this definition,
"control" of a Person means the power, directly or indirectly, either to vote
10% or more of the securities having ordinary voting power for the election of
directors of such Person or (b) direct use or cause the direction of the
management and the policies of such Person, whether by contract or otherwise.
"Agent" has the meaning set forth in the preamble to this Agreement.
"Agent's Account" means the account of the Agent maintained by the
Agent at The Bank of New York, ABA No. 000000000, Account No. 8900492627, Attn:
CSFB Agency Cayman
Account, Reference: NUI Utilities, Inc. or such other account as the Agent may
designate from time to time by notice to the Borrower and the Lenders.
"Agreement" means this Credit Agreement, together with the exhibits
and schedules hereto and all extensions, renewals, amendments, modifications,
substitutions and replacements hereto and hereof, as amended, supplemented or
modified from time to time.
"Assignment and Assumption Agreement" means an Assignment and
Assumption Agreement in the form of Exhibit H hereto (or such other form as may
be acceptable to the Agent).
"Authorized Officer" means the President, any Vice President, the
Chief Financial Officer, the Treasurer or the principal accounting officer of
the Borrower. The Agent and the Lenders shall be entitled to rely on the
incumbency certificate delivered pursuant to Section 6.2(vi)(C) for the initial
designation of each Authorized Officer. Additions or deletions to the list of
Authorized Officers may be made by the Borrower at any time by delivering to the
Agent for redelivery to each Lender a revised incumbency certificate.
"Bank Indebtedness" means the liability of the Borrower to pay the
Loans, the Commitment Fee, other Fees, interest on any of the foregoing, and the
other amounts, including, without limitation, expenses and indemnities, due
hereunder.
"Base Rate" means, for any day, the highest of (A) the Prime Rate, (B)
the Federal Funds Effective Rate plus fifty (50) basis points (0.50%) and (C)
three percent (3%) per annum.
"Base Rate Option" means the interest rate option described in item
(i) of Subsection 2.2b.
"Base Rate Portion" means a Loan or a portion thereof which bears, or
is to bear, interest at the Adjusted Base Rate.
"Borrower" means NUI Utilities, Inc., a New Jersey corporation and its
successors and permitted assigns.
"Borrowing Date" means the date on which any extensions of credit are
to be made hereunder.
"Business Day" means, any day other than a Saturday or Sunday or a
legal holiday on which commercial banks are authorized or required to be closed
for business in New York, New York and, if the applicable Business Day relates
to any extension of credit to which the Euro-Rate Option applies, such day must
also be a day on which dealings are carried on in the London interbank market.
"Capital Adequacy Event" shall have the meaning given it in Subsection
2.3b.
"Capital Compensation Amount" shall have the meaning given it in
Subsection 2.3b.
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"Closing" means the execution and delivery of this Agreement which
execution and delivery shall occur at the offices of Xxxxx Xxxxxxxxxx LLP in New
York, New York on November 24, 2003, or such other location and date as is
mutually agreeable to the parties hereto.
"Closing Date" means the day on which the Closing occurs.
"Closing Date Term Loan" means the term loans made by the Lenders to
the Borrower pursuant to clause (a) of Section 2.1a.
"Code" means the Internal Revenue Code of 1986, as amended from time
to time, or any successor legislation thereto.
"Collateral" shall have the meaning given it in Subsection 2.2a.
"Collateralization" shall have the meaning given it in Subsection
2.2a.
"Commitments" means, with respect to any Lender, its Revolving Credit
Commitment and Delayed Draw Term Loan Commitment (if any) and, with respect to
the Swingline Lender, its Swingline Credit Commitment.
"Commitment Fee" means the fee described in Subsection 2.4a.
"Commitment Fee Rate" means a rate per annum equal to 0.625%.
"Compliance Certificate" means a Compliance Certificate substantially
in the form of Exhibit F.
"Confidential Information Memorandum" means that certain Confidential
Information Memorandum dated November 2003 and made available to the Lenders
prior to the date hereof.
"Consolidated" means, as to any two or more Persons, the consolidation
of the accounts of such Persons in accordance with GAAP.
"Consolidated EBITDA" for any period means, with respect to the
Borrower, Consolidated Net Income before interest and taxes, plus (to the extent
deducted in determining such Consolidated Net Income) (i) depreciation,
amortization and other similar non-cash expenses (excluding any such non-cash
expense to the extent that it represents an accrual of or reserve for cash
expenses in any future period or amortization of a prepaid cash expense that was
paid in a prior period), (ii) extraordinary losses, losses in connection with
asset sales (other than ordinary course sales including sales of inventory) or
restructuring charges, (iii) non-recurring items of loss and expense relating to
the credit facilities provided hereby to the extent not otherwise reflected in
Consolidated Net Income and (iv) non-reoccurring items of loss and expense of up
to $2,000,000 relating to the Focused Audit; and minus (to the extent included
in determining such Consolidated Net Income) extraordinary gains or gains in
connection with asset sales (other than ordinary course sales including sales of
inventory).
"Consolidated Interest Expense" means for any period the amount of
interest expense, both expensed and capitalized, of the Borrower, net of cash
interest income of the Borrower
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determined on a Consolidated basis in accordance with GAAP, for such period on
the aggregate principal amount of its Indebtedness, determined on a consolidated
basis in accordance with GAAP (excluding, in any event (to the extent otherwise
included), one-time financing fees relating to the credit facilities provided
hereby, by any agreement to refinance or otherwise extend the maturity of the
Medium Term Notes as permitted hereunder, by the NUI Corporation Credit
Agreement or the Existing Credit Agreements).
"Consolidated Lease Expense" means for any period, the aggregate
amount of fixed and contingent rentals payable by the Borrower, determined on a
Consolidated basis in accordance with GAAP, for such period with respect to
leases of real and personal property.
"Consolidated Net Income" means for any period, net income (or loss)
of the Borrower, determined on a Consolidated basis in accordance with GAAP
(plus, in any event (to the extent otherwise deducted therefrom), one-time
financing fees relating to the credit facilities provided hereby or any
agreement to refinance or otherwise extend the maturity of the Medium Term Notes
as permitted hereunder, by the NUI Corporation Credit Agreement or the Existing
Credit Agreements), without giving effect to any non-cash gain, any non-cash
loss or any reversals or adjustments to, or failure to recognize, revenue due to
changes in applicable U.S. accounting rules and regulations, in each case to the
extent reasonably acceptable to the Agent, including without limitation due to
the implementation, effective as of October 25, 2002, of EITF 02-03 ("Issues
Involved in Accounting for Derivative Contracts Held for Trading Purposes and
Contracts Involved in Energy Trading and Risk Management Activities"), the
effects of which EITF implementation are hereby deemed acceptable to the Agent.
"Consolidated Shareholders' Equity" means the total of those items
enumerated under the heading "Common Shareholders' Equity" in the Borrower's
relevant balance sheets determined on a Consolidated basis in accordance with
GAAP, consistently applied.
"Consolidated Total Capitalization" means, as of any date of
determination, the sum of (i) Consolidated Total Indebtedness plus (ii)
Consolidated Shareholders' Equity.
"Consolidated Total Indebtedness" means all Indebtedness of the
Borrower, determined on a Consolidated basis in accordance with GAAP,
consistently applied. Solely for purposes of this definition, (A) the term
"Indebtedness" shall not include (i) letter of credit reimbursement obligations
except with respect to drawings actually made under letters of credit which then
remain unreimbursed and (ii) Hedging Obligations and (B) if the Medium Term
Notes and the Delayed Draw Term Loans are then outstanding, the term
"Indebtedness" shall not include the principal amount of the Medium Term Notes
to the extent that the proceeds of the Delayed Draw Term Loans are held by and
under the control of an agent or trustee on behalf of holders of Medium Term
Notes in a securities or deposit account or as otherwise provided in Section
4.1.
"CSFB" means Credit Suisse First Boston.
"Delayed Draw Term Loan Commitment" means, as to each Lender, the
obligation of such Lender to make Delayed Draw Term Loans available to the
Borrower pursuant to Section 2.1 in an aggregate principal amount at any one
time outstanding not to exceed the amount set opposite such Lender's name on
Schedule 2.1 (as such amount may change from time to time
4
pursuant to the terms hereof, or, in the case of a Purchasing Lender, in its
Assignment and Assumption Agreement) and, as to all Lenders, the obligation of
the Lenders to make Delayed Draw Term Loans available to the Borrower in an
aggregate amount equal to the Delayed Draw Term Loan Commitments of all of the
Lenders.
"Delayed Draw Term Loan" means a term loan made by a Lender to the
Borrower pursuant to clause (b) of Section 2.1a.
"Delayed Draw Term Loan Request" has the meaning given it in Section
2.1d.
"Dollars" or "$" means the legal tender of the United States of
America.
"Encumbrance" means any encumbrance, mortgage, lien, charge, pledge,
security interest, priority payment, conditional sales agreement right, or other
title retention agreement right (including any right under a lease which, in
accordance with GAAP, would be treated as a capitalized item) in, upon or
against any asset of any Person.
"Environmental Law(s)" means any and all statutes, laws, regulations,
ordinances, rules, judgments, orders, decrees, permits, concessions, grants,
franchises, licenses, agreements or other governmental restrictions of any
Federal, state or local governmental authority relating to the environment or
the release of any materials into the environment.
"Equity Interests" means any and all shares, interests, participations
or other equivalents (however designated) of capital stock, partnership
interests, member interests and any and all equivalent ownership interests in a
Person, and any and all warrants, rights or options to purchase any of the
foregoing, other than equity interests or warrants, rights or options issued in
connection with exercise by a present or former employee, officer or director
under a stock incentive plan, stock option plan or other equity-based
compensation plan or arrangement.
"ERISA" means the Employee Retirement Income Security Act of 1974,
together with the regulations thereunder, as now in effect and as hereafter from
time to time amended or any successor statute.
"ERISA Affiliate" means, as of any date, any member of a controlled
group of corporations of which the Borrower is a member, which, in any event
together with the Borrower are treated as of such date as a single employer
under Section 414(b) or (c) of the Code or, solely for purposes of Section 302
of ERISA and Section 412 of the Code, are treated as of such date as a single
employer under Section 414(b), (c), (m) or (o) of the Code.
"Euro Base Rate" means the higher of (i) the rate per annum determined
by the Agent at approximately 11:00 a.m. (London time) on the date which is two
Business Days prior to the beginning of such Interest Period by reference to the
British Bankers' Association Interest Settlement Rates for deposits in Dollars
(as set forth by any service selected by the Agent which has been nominated by
the British Bankers' Association as an authorized information vendor for the
purpose of displaying such rates) for a period equal to such Interest Period;
provided that, to the extent that an interest rate is not ascertainable pursuant
to the foregoing provisions of this definition the "Euro Base Rate" shall be the
interest rate per annum determined by the Agent to be the average of the rates
per annum at which deposits in Dollars are offered for such Interest
5
Period to major banks in the London interbank market in London, England by the
Agent at approximately 11:00 a.m. (London time) on the date which is two
Business Days prior to the beginning of such Interest Period, and (ii) 2% per
annum.
"Euro-Rate" means, with respect to each day during each Interest
Period pertaining to a Loan to which the Euro-Rate Option applies, a rate per
annum determined for such day in accordance with the following formula:
Euro-Rate = Euro Base Rate divided by (1.00 minus the Euro-Rate
Reserve Percentage).
"Euro-Rate Option" means the interest rate option described in item
(ii) of Subsection 2.2b.
"Euro-Rate Portion" means a Loan, or portion thereof, which bears, or
is to bear, interest at the Adjusted Euro-Rate.
"Euro-Rate Reserve Percentage" means the maximum aggregate reserve
requirement (including basic supplemental, marginal and other reserves) which is
imposed on member banks of the Federal Reserve System against Euro currency
Liabilities as defined in Regulation D.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Excluded Taxes" means, with respect to the Agent, any Lender or any
other recipient of any payment to be made by or on account of any obligation of
the Borrower hereunder, (a) income or franchise taxes imposed on (or measured
by) its net income by the United States of America, or by the jurisdiction under
the laws of which such recipient is organized or in which its principal office
is located or, in the case of any Lender, in which its applicable lending office
is located, (b) any branch profits taxes imposed by the United States of America
or any similar tax imposed by any other jurisdiction in which the Borrower is
located and (c) in the case of a Foreign Lender (other than an assignee pursuant
to a request by the Borrower under Section 2.7), any withholding tax that (I) is
imposed on amounts payable to such Foreign Lender at the time such Foreign
Lender becomes a party to this Agreement (or designates a new lending office) or
(II) is attributable to such Foreign Lender's failure to comply with Section
9.4(e), except in the case of clause (c)(I) above to the extent that such
Foreign Lender (or its assignor, if any) was entitled, at the time of
designation of a new lending office (or assignment), to receive additional
amounts from the Borrower with respect to such withholding tax pursuant to
Section 9.4(a).
"Existing Credit Agreements" means (i) the Credit Agreement, dated as
of February 12, 2003, as amended by the First Amendment to the Credit Agreement,
executed as of August 11, 2003, in each case, by and among the Borrower, the
lenders party thereto, and Fleet National Bank, as administrative agent, and
(ii) the Credit Agreement, dated as of October 10, 2003, by and among the
Borrower, the lenders party thereto, and Drawbridge Special Opportunities Fund
LP as agent and lender.
"Event of Default" has the meaning given it in Article VII.
"Federal Funds Effective Rate" means, for any day, the rate per annum
(based on a year of 360 days and the actual days elapsed and rounded upward to
the nearest 1/100th of 1%)
6
announced by the Federal Reserve Bank of New York (or any successor) on such day
as being the weighted average of the rates on overnight federal funds
transactions arranged by federal funds brokers on the previous trading day, as
computed and announced by the Federal Reserve Bank of New York (or any
successor) in substantially the same manner as such Federal Reserve Bank of New
York computes and announces the weighted average it refers to as the "Federal
Funds Effective Rate" as of the date of this Agreement; provided, if such
Federal Reserve Bank of New York (or its successor) does not announce such rate
on any day, the "Federal Funds Effective Rate" for such day shall be the Federal
Funds Effective Rate for the last day for which such rate was announced.
"Fee Letter" has the meaning set forth in Section 2.4b.
"Fees" means collectively the fees referenced in Section 2.4.
"FERC" means the Federal Energy Regulatory Commission of the United
States or any successor or predecessor agency thereto.
"Fiscal Quarter" means the three-month fiscal period of the Borrower
beginning on each October 1, January 1, April 1 and July 1 and ending on the
succeeding December 31, March 31, June 30 and September 30.
"Fiscal Year" means each fiscal period of the Borrower beginning
October 1 and ending on the succeeding September 30.
"Focused Audit" has the meaning given it in Section 3.6.
"Foreign Lender" means any Lender that is organized under the laws of
a jurisdiction other than the United States of America, any State thereof or the
District of Columbia.
"GAAP" means United States generally accepted accounting principles
applied on a consistent basis.
"Gas Revenue Bonds" means the $39,000,000 variable rate revenue bonds
of the Borrower due June 1, 2026, issued pursuant to that certain Indenture
dated as of June 1, 1996, between the New Jersey Economic Development Authority
and the trustee thereunder, and the related Loan Agreement, dated as of June 1,
1996, between the Borrower and the New Jersey Economic Development Authority.
"Governmental Authority" means any federal, state, local or foreign
court or governmental (or quasi-governmental) agency, authority, instrumentality
or regulatory body.
"Governmental Rule" means any law, statute, rule, regulation,
ordinance, order, judgment, guideline or decision of any Governmental Authority.
"Guaranty" or "Guarantee" means any obligation, direct or indirect, by
which a Person undertakes to guaranty, assume or remain liable for the payment
or performance of another Person's obligations, including but not limited to (i)
endorsements of negotiable instruments other than endorsements of instruments
for deposit or collection in the ordinary course of
7
business, (ii) discounts with recourse, (iii) agreements to pay or perform upon
a second Person's failure to pay or perform, (iv) remaining liable on
obligations assumed by a second Person, (v) agreements to maintain the capital,
working capital solvency or general financial condition of a second Person and
(vi) agreements for the purchase or other acquisition of products, materials,
supplies or services, if in any case payment therefor is to be made regardless
of the non-delivery of such products, materials or supplies or the
non-furnishing of such services.
"Hedging Obligations" means, with respect to any Person, all
liabilities of such Person under interest rate swap agreements, interest rate
cap agreements and interest rate collar agreements, and all other agreements or
arrangements designed to protect such Person against fluctuations in interest
rates, currency exchange rates or gas prices.
"Indebtedness" as applied to any Person means, without duplication,
all liabilities of such Person for borrowed money (other than trade accounts
payable arising in the ordinary course of business consistent with past
practices), direct or contingent, whether evidenced by a bond, note, debenture
or otherwise, all preferred equity interests issued by such Person and which by
the terms thereof could be (at the request of the holders thereof or otherwise)
subject to mandatory sinking fund payments, redemption or other acceleration at
any time during the period ending one year after the term of this Agreement, and
all obligations and liabilities in the nature of a capitalized lease obligation,
deferred purchase price arrangement (other than trade accounts payable in the
ordinary course of business consistent with past practices), title retention
device, letter of credit obligation (whether or not the letter of credit has
been drawn), letter of credit reimbursement obligation (whether or not the
letter of credit has been drawn), Hedging Obligation, reimbursement agreement,
Guaranty, obligations relating to securitization transactions, synthetic lease
transactions and sale-leaseback transactions.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
"Interest Period" means, subject to the provisions of Subsection 2.2c,
as to any Loans bearing interest at the Euro-Rate Option, any individual period
of one, two, three or six months selected by the Borrower commencing on the
Borrowing Date, conversion date or renewal date of a Euro-Rate Portion to which
such period shall apply.
"Lead Arranger" has the meaning given in the preamble to this
Agreement.
"Lender" has the meaning given in the preamble to this Agreement.
"Loans" means the Swingline Loans, the Revolving Credit Loans and the
Term Loans.
"Loan Documents" means collectively this Agreement, and each
promissory note held by a Lender pursuant to Subsection 2.1c.
"Loan Request" has the meaning given it in Section 2.1d.
"Mandatory Borrowing" has the meaning given it in Section 2.1f(iii).
"Margin Stock" is defined herein as defined in Regulation U.
8
"Material Adverse Effect" means, with respect to and as a result of
the existence or occurrence of any circumstance or event, (a) any material
adverse effect upon the validity or enforceability of this Agreement or any of
the other Loan Documents has occurred or could reasonably be expect to occur,
(b) any material and adverse effect to the business, assets, results of
operations, condition (financial or otherwise), or prospects of the Borrower has
occurred or could reasonably be expect to occur, or (c) any material impairment
of the ability of the Agent or any of the Lenders to enforce their legal
remedies pursuant to this Agreement or any other Loan Document has occurred or
could reasonably be expected to occur.
"Medium Term Notes" means the $50,000,000 8.35% Medium Term Notes of
the Borrower due February 1, 2005 issued pursuant that certain Indenture, dated
as of February 1, 1995, between the Borrower and the trustee thereunder.
"Moody's" means Xxxxx'x Investors Service, Inc. and its successors.
"Multiemployer Plan" means a multiemployer Plan within the meaning of
Section 3(37) of ERISA which is contributed to by the Borrower or any ERISA
affiliate or with respect to which such entities have an obligation to make
contributions.
"Net Asset Sale Proceeds" means (i) the aggregate cash consideration
received by the Borrower in connection with any Recovery Event less (ii) the
reasonable out-of-pocket expenses incurred by the Borrower or such Subsidiary in
connection with such transaction and the amount of any federal and state taxes
incurred in connection with such transaction, in each case as certified by an
Authorized Officer to the Agent at the time of such transaction, and less (iii)
the amount thereof applied to the repayment of Indebtedness secured by an
Encumbrance expressly permitted hereunder on any asset that is the subject of
such Recovery Event.
"Net Proceeds" means (a) in connection with any Recovery Event, Net
Asset Sale Proceeds therefrom and (b) in connection with any issuance or sale of
equity securities or debt securities or instruments or the incurrence of loans,
the cash proceeds received from such issuance or incurrence, net of reasonable
attorney's fees, investment banking fees, accountant's fees, underwriting
discounts and commissions and other customary fees and expenses actually
incurred in connection therewith.
"NJBPU" has the meaning given it in Section 3.6.
"NUI Corporation" NUI Corporation, a New Jersey corporation.
"NUI Corporation Credit Agreement" means the Credit Agreement, dated
as of the date hereof, among NUI Corporation, each of the lenders specified
therein, and CSFB, as the agent.
"NUI Energy Brokers" means NUI Energy Brokers, Inc., a Delaware
corporation.
"Option" means any one or both of the Base Rate Option or the
Euro-Rate Option.
"Other Taxes" means any and all present or future stamp or documentary
taxes or any other excise or property taxes, charges or similar levies arising
from any payment made hereunder or from the execution, delivery or enforcement
of, or performance of this Agreement.
9
"Participant" means any financial institution or other Person to which
a Lender sells a Participation in its Loan.
"Participation" means the sale by a Lender to any Participant of an
undivided interest in all or any part of such Lender's Loans and Commitments (if
any).
"PBGC" means the Pension Benefit Guaranty Corporation or any successor
Person.
"Permitted Encumbrance" means, as to any Person, any of the followings
(i) Encumbrances for taxes, assessments, governmental charges or
levies on any of such Person's properties, which taxes, assessments,
governmental charges or levies are at the time not due and payable or if
they can thereafter be paid without penalty or are being contested in good
faith by appropriate proceedings diligently conducted and with respect to
which adequate reserves are maintained on the books of such Person in
conformity with GAAP;
(ii) pledges or deposits (other than Encumbrances imposed by ERISA)
incurred or made in the ordinary course of business, to secure payment of
workers' compensation obligations, unemployment insurance, deposits or
indemnities to secure public or statutory obligations or for similar
purposes;
(iii) Encumbrances arising out of judgments or awards against such
Person but only to the extent that such judgment or award does not
constitute an Event of Default under Section 7.7 or Potential Default under
Section 7.7;
(iv) mechanics', carriers', workers', repairmen's and other similar
statutory Encumbrances incurred in the ordinary course of such Person's
business, so long as the obligation secured is not overdue or, if overdue,
is being contested in good faith by appropriate actions or proceedings
diligently conducted and as to which reserves or other appropriate
provision, if any, satisfying the requirements of GAAP have been made;
(v) security interests in favor of lessors of personal property, which
property is the subject of a true lease between such lessor and such
Person;
(vi) Encumbrances listed on Schedule 5.2, securing Indebtedness
permitted by Section 5.13(d)); provided that no such Encumbrance is amended
after the date of this Agreement to cover any additional property or to
secure additional Indebtedness;
(vii) easements, rights-of-way, restrictions, leases or subleases to
others or other similar Encumbrances created in the ordinary course of
business which Encumbrances do not interfere in any material respect with
the ordinary conduct of the business of the Borrower;
(viii) Encumbrances securing (a) the non-delinquent performance of
bids, trade contracts (other than for borrowed money), leases or statutory
obligations, (b) contingent obligations on surety and appeal bonds, and (c)
other non-delinquent obligations of a like nature; in each case, incurred
in the ordinary course of business, provided all such
10
Encumbrances in the aggregate would not (even if enforced) cause a Material
Adverse Effect;
(ix) Encumbrances securing Indebtedness of the Borrower permitted by
Section 5.13(b) incurred to finance the purchase of new fixed or capital
assets (including pursuant to capital leases), provided that (1) such
Encumbrances shall be created substantially simultaneously with the
acquisition of such fixed or capital assets, (2) such Encumbrances do not
at any time encumber any property other than the property financed by such
Indebtedness, and (3) the Encumbrances are not modified to secure other
Indebtedness and the amount of Indebtedness secured thereby is not
increased; and
(x) Deposits of cash or Permitted Investments (1) securing
reimbursement obligations (and related obligations) with respect to letters
of credit issued in accordance with Section 5.13(l) or (2) as provided in
Section 4.1.
"Permitted Investments" means
(a) marketable direct obligations issued or unconditionally guaranteed
by the United States of America or issued by any agency thereof and backed
by the full faith and credit of the United States of America;
(b) marketable general obligations issued by any state of the United
States of America or any political subdivision of any such state or any
public instrumentality thereof and, at the time of acquisition, having one
of the two highest ratings generally obtainable from either S&P or Moody's;
(c) commercial paper, at the time of acquisition, having a rating of
A-1 (or the equivalent) or higher from S&P and P-1 (or the equivalent) or
higher from Moody's; or
(d) mutual funds, the assets of which are primarily invested in items
of the kind described in clauses (a), (b) and (c) of this definition;
provided in each case, that such obligations are payable in Dollars and such
Permitted Investments by the Borrower are in accordance with Governmental Rules.
"Permitted Transferee" has the meaning given it in Section 7.10.
"Person" means any individual, partnership, corporation, trust, joint
venture, banking association, unincorporated organization, limited liability
company or any other entity or enterprise or government or department or agency
thereof.
"Plan" means an employee pension benefit plan (other than a
Multiemployer Plan) which is maintained by the Borrower or any ERISA Affiliate
for employees of the Borrower or any ERISA Affiliate and which is covered by
Title IV of ERISA or subject to the minimum funding standards under Section 302
of ERISA and Section 412 of the Code.
"Portion" means, with respect to any outstanding Loans, either the
Base Rate Portion thereof, the Euro-Rate Portion thereof, or both, as the case
may be.
11
"Potential Default" means an event which, with the passage of time or
the giving of notice or both, shall be an Event of Default.
"Prime Rate" means the interest rate per annum announced from time to
time by CSFB as its prime rate in effect at its principal office in New York
City; each change in the Prime Rate shall be effective from and including the
date such change is announced as being effective.
"PUHCA" has the meaning given it in Section 3.14.
"Purchasing Lender" has the meaning given it in Subsection 9.6a.
"Recovery Event" means any settlement of or payment in respect of any
property or casualty insurance claim or any condemnation proceeding relating to
any asset of the Borrower in excess of $500,000.
"Register" has the meaning given it in Subsection 9.6b.
"Regulation D" means Regulation D promulgated by the Board of
Governors of the Federal Reserve System (12 C.F.R. Part 204 et seq.) as such
regulation is now in effect and as may hereafter be amended.
"Regulation T" means Regulation T promulgated by the Board of
Governors of the Federal Reserve System (12 C.F.R. Part 220 et seq.) as such
regulation is now in effect and as may hereafter be amended.
"Regulation U" means Regulation U promulgated by the Board of
Governors of the Federal Reserve System (12 C.F.R. Part 221 et seq.) as such
regulation is now in effect and as may hereafter be amended.
"Regulation X" means Regulation X promulgated by the Board of
Governors of the Federal Reserve System (12 C.F.R. Part 224 et seq.) as such
regulation is now in effect and as may hereafter be amended.
"Reportable Event" means any one or more events, defined in Section
4043(c) of ERISA, other than an event for which the requirement for the 30 day
notice to the PBGC is waived.
"Required Lenders" means as of a particular date Lenders having
outstanding Loans and unused Revolving Credit Commitments and Delayed Draw Term
Loan Commitments representing more than fifty percent (50%) of the aggregate
principal amount of outstanding Loans and unused Revolving Credit Commitments
and Delayed Draw Term Loan Commitments of all Lenders.
"Restricted Payments" has the meaning given to it in Section 5.1.
"Revolving Credit Commitment" means, as to each Lender, the obligation
of such Lender to make Revolving Credit Loans available to the Borrower pursuant
to Section 2.1 in an aggregate principal amount at any one time outstanding not
to exceed the amount set opposite such Lender's name on Schedule 2.1 (as such
amount may change from time to time pursuant to
12
the terms hereof, or, in the case of a Purchasing Lender, in its Assignment and
Assumption Agreement) and, as to all Lenders, the obligation of the Lenders to
make Revolving Credit Loans available to the Borrower in an aggregate amount
equal to the Revolving Credit Commitments of all of the Lenders.
"Revolving Credit Commitment Percentage" means, as to each Lender, the
percentage its Revolving Credit Commitment bears to the Total Revolving Credit
Commitment, as such Lender's Revolving Credit Commitment and the Total Revolving
Credit Commitment may be adjusted from time to time in accordance with this
Agreement.
"Revolving Credit Loans" means the Revolving Credit Loans made from
time to time by the Lenders to the Borrower pursuant to clause (c) of Section
2.1a.
"Revolving Extensions of Credit" means as to any Lender at any time,
an amount equal to the sum of (a) all Revolving Credit Loans made by such Lender
and (b) its Swingline Exposure.
"S&P" means Standard & Poor's Rating Group, a division of XxXxxx-Xxxx,
Inc. and its successors.
"Senior Ratings" means, with respect to any Person, the long term
senior unsecured public debt ratings in effect from time to time as assigned by
Moody's and S&P, as the case may be.
"Subsidiary" means, as to any Person, any corporation, partnership,
limited liability company or other entity of which at least a majority of the
outstanding stock or other applicable ownership interest having by the terms
thereof ordinary voting power to elect a majority of the Board of Directors or
other managers of such corporation, partnership, limited liability company, or
other entity is at the time directly or indirectly owned or controlled by such
Person and/or by one or more Subsidiaries of such Person.
"Swingline Credit Commitment" means the obligation of the Swingline
Lender to make Swingline Loans available to the Borrower pursuant to Section
2.1f in an aggregate principal amount at any one time outstanding not to exceed
$5,000,000.
"Swingline Exposure" means at any time, in respect of any Lender, an
amount equal to the aggregate principal balance of Swingline Loans at such time
multiplied by such Lender's Revolving Credit Commitment Percentage at such time.
"Swingline Lender" means CSFB, in its capacity as lender of Swingline
Loans hereunder, and its successors in such capacity.
"Swingline Loan" means the Swingline Loans made from time to time by
the Swingline Lender to the Borrower pursuant to Section 2.1f.
"Taxes" means any and all present or future taxes, levies, imposts,
duties, deductions, charges or withholdings imposed by any Governmental
Authority, including interest, penalties and other additions thereto.
13
"Termination Date" means November 22, 2004, unless (i) earlier
terminated in accordance with the terms hereof or (ii) extended in accordance
with the terms hereof.
"Termination Proceedings" means any action taken by the PBGC under
ERISA to terminate any Plan or to have a trustee appointed to administer any
Plan.
"Term Loans" means the Closing Date Term Loan and the Delayed Draw
Term Loan.
"Total Revolving Extensions of Credit" means, at any time, the
aggregate amount of the Revolving Extensions of Credit of the Lenders
outstanding at such time.
"Total Revolving Credit Commitment" means the aggregate amount of the
Revolving Credit Commitments of all Lenders, as in effect from time to time.
"Transfer Effective Date" has the meaning given it in each respective
Assignment and Assumption Agreement.
"Transferor Lender" has the meaning given it in Subsection 9.6a.
1.2 GAAP Definitions. Accounting terms used herein but not defined
herein shall have the meanings ascribed to them under GAAP as in effect from
time to time; provided, however, that, if the Borrower notifies the Agent that
the Borrower requests an amendment to any provision hereof to eliminate the
effect of any change occurring after the date hereof in GAAP or in the
application thereof on the operation of such provision (or if the Agent notifies
the Borrower that the Required Lenders request an amendment to any provision
hereof for such purpose), regardless of whether any such notice is given before
or after such change in GAAP or in the application thereof, then such provision
shall be interpreted on the basis of GAAP as in effect and applied immediately
before such change shall have become effective until such notice shall have been
withdrawn or such provision amended in accordance herewith.
1.3 Other Definitional Conventions and Rules of Construction. The
definitions of terms herein shall apply equally to the singular and plural forms
of the terms defined. Whenever the context may require, any pronoun shall
include the corresponding masculine, feminine and neuter forms. The words
"include", "includes" and "including" shall be deemed to be followed by the
phrase "without limitation". In this Agreement in the computation of periods of
time from a specified date to a later specified date, the word "from" means
"from and including" and the words "to" and "until" each means "to but
excluding". The word "will" shall be construed to have the same meaning and
effect as the word "shall". The word "or" as used herein shall mean and connote
nonexclusive alternatives, unless expressly stated or the context clearly
requires otherwise. Unless the context requires otherwise (a) any definition of
or reference to any agreement, instrument or other document herein shall be
construed as referring to such agreement, instrument or other document as from
time to time amended, supplemented or otherwise modified (subject to any
restrictions on such amendments, supplements or modifications set forth herein),
(b) any reference herein to any Person shall be construed to include such
Person's successors and assigns, (c) the words "herein", "hereof" and
"hereunder", and words of similar import, shall be construed to refer to this
Agreement in its entirety and not to any particular provision hereof, (d) all
references herein to Articles, Sections, Exhibits and Schedules shall be
construed to refer to Articles and Sections of, and Exhibits and Schedules to,
14
this Agreement, (e) any reference to a law, code or statute shall be construed
to include all laws, codes or statutes varying, consolidating or replacing the
same and all regulations, rulings, policies or ordinances issued or otherwise
applicable thereunder and (f) the words "asset" and "property" shall be
construed to have the same meaning and effect and to refer to any and all
tangible and intangible assets and properties, including cash, securities,
accounts and contract rights.
ARTICLE II. THE LOANS
2.1 Commitments
2.1a Loans. Subject to the terms and conditions hereof and relying
upon the representations and warranties herein set forth, (a) each Lender
severally agrees to make a term loan to the Borrower on the Closing Date in a
principal amount equal to the amount set forth on Schedule 2.1 opposite its
name, (b) each Lender having a Delayed Draw Term Loan Commitment severally
agrees to make a term loan to the Borrower once at any time on or after the
Closing Date and prior to November 22, 2004 in a principal amount equal to such
Lender's Delayed Draw Term Loan Commitment, and (c) each Lender having a
Revolving Credit Commitment severally agrees to make Revolving Credit Loans to
the Borrower, at any time and from time to time on or after the Closing Date and
until the earlier of the Termination Date and the termination of the Revolving
Credit Commitment of such Lender in accordance with the terms hereof, provided,
that the aggregate principal amount of each Lender's then outstanding Revolving
Credit Loans together with its then outstanding Swingline Exposure shall not
exceed at any one time such Lender's Revolving Credit Commitment and provided,
further, that no Revolving Credit Loan shall be made if it would cause the Total
Revolving Extensions of Credit then outstanding to exceed the Total Revolving
Credit Commitments. Within such limits of time and amount and subject to the
other provisions of this Agreement, the Borrower may borrow, repay and reborrow
Revolving Credit Loans. Amounts paid or prepaid in respect of Term Loans may not
be reborrowed.
2.1b Obligations of Each Lender. The obligations of each Lender
hereunder are several. The failure of any Lender to perform its obligations
hereunder shall not affect the obligations of the Borrower, or any other Lender,
to any other party nor shall the Borrower, or any other Lender, be liable for
the failure of such Lender to perform its obligations hereunder. The Lenders
shall have no obligation to make Closing Date Term Loans hereunder after the
Closing Date, Delayed Draw Term Loans hereunder on or after November 22, 2004,
nor Revolving Credit Loans hereunder on or after the Termination Date. Unless
previously terminated, the Revolving Credit Commitments and the Swingline Credit
Commitments shall terminate on the Termination Date. Unless previously
terminated, the Delayed Draw Term Loan Commitments shall terminate November 22,
2004.
2.1c Evidence of Debt; Repayment of Loans. (a) The Borrower hereby
unconditionally promises to pay to the Agent for the account of each Lender the
then unpaid principal amount of each Loan on the Termination Date.
(b) Each Lender shall maintain in accordance with its usual practice
an account or accounts evidencing the indebtedness of the Borrower to such
Lender resulting from each Loan
15
made by such Lender from time to time, including the amounts of principal and
interest payable and paid such Lender from time to time under this Agreement.
(c) The Agent shall maintain accounts in which it will record (i) the
amount of each Loan made hereunder, the type thereof and the Interest Period
applicable thereto, (ii) the amount of any principal or interest due and payable
or to become due and payable from the Borrower to each Lender hereunder and
(iii) the amount of any sum received by the Agent hereunder from the Borrower
and each Lender's share thereof.
(d) The entries made in the accounts maintained pursuant to paragraphs
(b) and (c) above shall be prima facie evidence of the existence and amounts of
the obligations therein recorded; provided, however, that the failure of any
Lender or the Agent to maintain such accounts or any error therein shall not in
any manner affect the obligation of the Borrower to repay the Loans in
accordance with their terms.
(e) Notwithstanding any other provision of this Agreement, in the
event any Lender shall request and receive a promissory note (or promissory
notes) in a form reasonably acceptable to the Agent, payable to such Lender and
its registered assigns, the interests represented by such promissory note shall
at all times (including after any assignment of all or part of such interests
pursuant to Section 9.6) be represented by one or more promissory notes payable
to the payee named therein or its registered assigns.
2.1d Loan Request. (a) Except as otherwise provided herein, the
Borrower may from time to time prior to the Termination Date request the Lenders
to make Revolving Credit Loans to the Borrower by the delivery to the Agent, not
later than 12:00 Noon (eastern time) (i) three Business Days prior to the
proposed Borrowing Date with respect to the making of Revolving Credit Loans to
which the Euro-Rate Option applies for any Revolving Credit Loans and (ii) one
Business Day prior to the proposed Borrowing Date with respect to the making of
a Revolving Credit Loan to which the Base Rate Option applies of a duly
completed request therefor substantially in the form of Exhibit D1 hereto or a
request by telephone immediately confirmed in writing by letter or facsimile
transmission in such form (each, a "Loan Request"), it being understood that the
Agent may rely on the authority of any person making such a telephonic request
without the necessity of receipt of such written confirmation. Each Loan Request
shall be irrevocable and shall specify (i) the proposed Borrowing Date; (ii) the
aggregate amount of the proposed Revolving Credit Loans to be made on such
Borrowing Date, which amount, as to Base Rate Portions, shall be in integral
multiples of $100,000 and not less than $500,000 and, as to Euro-Rate Portions,
shall be in integral multiples of $100,000 and not less than $1,000,000; (iii)
whether the Euro-Rate Option or the Base Rate Option shall apply to the proposed
Revolving Credit Loans to be made on such Borrowing Date; (iv) in the case of
Revolving Credit Loans to which the Euro-Rate Option applies, an appropriate
Interest Period for each Euro-Rate Portion of the Revolving Credit Loans to be
made on such Borrowing Date; and (v) the remittance instructions.
(b) Except as otherwise provided herein, the Borrower may, in
connection with a refinancing or termination of the Medium Term Notes, request
the Lenders to make the Delayed Draw Term Loan Loans to the Borrower by the
delivery to the Agent, not later than 12:00 Noon (eastern time) three Business
Days prior to the proposed Borrowing Date of a duly completed
16
request therefor substantially in the form of Exhibit D2 hereto or a request by
telephone immediately confirmed in writing by letter or facsimile transmission
in such form (the "Delayed Draw Term Loan Request"), it being understood that
the Agent may rely on the authority of any person making such a telephonic
request without the necessity of receipt of such written confirmation. The
Delayed Draw Term Loan Request shall be irrevocable and shall specify (i) the
proposed Borrowing Date; (ii) the aggregate amount of the proposed Delayed Draw
Term Loans to be made on such Borrowing Date, which amount, as to Base Rate
Portions, shall be in integral multiples of $100,000 and not less than $500,000
and, as to Euro-Rate Portions, shall be in integral multiples of $100,000 and
not less than $1,000,000; (iii) whether the Euro-Rate Option or the Base Rate
Option shall apply to the proposed Delayed Draw Term Loans to be made on such
Borrowing Date; (iv) in the case of Delayed Draw Term Loans to which the
Euro-Rate Option applies, an appropriate Interest Period for each Euro-Rate
Portion of the Delayed Draw Term Loans to be made on such Borrowing Date; and
(v) the remittance instructions.
2.1e Making Loans. The Agent shall, promptly after receipt by it of a
Loan Request or Delayed Draw Term Loan Request, as the case may be, notify the
Lenders of its receipt of such Loan Request or Delayed Draw Term Loan Request,
as the case may be, specifying: (i) the proposed Borrowing Date and the time and
method of disbursement of such Revolving Credit Loan or Delayed Draw Term Loans,
as the case may be; (ii) the amount and type of such Revolving Credit Loan or
Delayed Draw Term Loans, as the case may be, and the applicable Euro-Rate
Portions and Interest Periods (if any); and (iii) the apportionment among the
Lenders of the Revolving Credit Loans or Delayed Draw Term Loans, as the case
may be, as determined by the Agent in accordance with Section 2.1b hereof. Each
Lender shall remit the principal amount of each Revolving Credit Loan or Delayed
Draw Term Loans, as the case may be, to the Agent such that the Agent is able
to, and the Agent shall, to the extent the Lenders have made funds available to
it for such purpose, fund such Revolving Credit Loan or Delayed Draw Term Loans,
as the case may be, to the Borrower in Dollars and immediately available funds
in an account specified by the Borrower to the Agent in the Loan Request or
Delayed Draw Term Loan Request, as the case may be, prior to 2:00 P.M. (eastern
time) on the Borrowing Date, provided that if any Lender fails to remit such
funds to the Agent in a timely manner, or any Lender fails to advise the Agent
of its intention not to fund, then the Agent may elect in its sole discretion to
fund with its own funds the Revolving Credit Loan or Delayed Draw Term Loans, as
the case may be, of such Lender on the Borrowing Date, subject to the provisions
of Section 8.3 below.
17
2.1f Swingline Loans.
(i) On and after the Closing Date, to but not including the
Termination Date, the Swingline Lender agrees, subject to the terms and
conditions set forth in this Agreement, to lend to the Borrower, at any time and
from time to time on and after the Closing Date and until the earlier of the
Termination Date and the termination of the Swingline Credit Commitment in
accordance with the terms hereof, amounts that will not result in (x) the
aggregate principal amount of outstanding Swingline Loans at any time exceeding
$5,000,000, or (y) the Total Revolving Extensions of Credit at any time
exceeding the Total Revolving Credit Commitments. Within such limits of time and
amount and subject to the other provisions of this Agreement, the Borrower may
borrow, repay and reborrow Swingline Loans. Interest on Swingline Loans shall
accrue at the Adjusted Base Rate only.
(ii) In order to request a Swingline Loan, the Borrower shall notify
the Swingline Lender of such request not later 12:00 noon, New York City time on
the day of a proposed Swingline Loan, specifying the proposed date (which shall
be a Business Day) and amount of the requested Swingline Loan (which shall be in
a minimum amount of not less than $100,000). Such request for a proposed
Swingline Loan shall be made by delivery to the Swingline Lender of a duly
completed request therefore substantially in the form of Exhibit E hereto or a
request by telephone immediately confirmed in writing by letter or facsimile
transmission in such form, it being understood that the Swingline Lender may
rely on the authority of any person making such a telephonic request without the
necessity of receipt of such written confirmation. The Swingline Lender shall
make each Swingline Loan available to the Borrower by means of a credit to a
deposit account as the Borrower shall designate in the request notice by means
of wire transfer of immediately available funds by 3:00 p.m. (eastern time) on
the requested date of such Swingline Loan.
(iii) On any Business Day, the Swingline Lender may, in its sole
discretion, give notice to the Lenders holding Revolving Credit Commitments that
its outstanding Swingline Loans shall be repaid with a borrowing of Revolving
Credit Loans (provided that each such notice shall be deemed to have been
automatically given upon the occurrence of an Event of Default under Section 7.3
or upon the exercise of any of the remedies provided in Section 7.13), in which
case a borrowing of Revolving Credit Loans bearing interest at the Adjusted Base
Rate (each such borrowing, a "Mandatory Borrowing") shall be made on the
immediately succeeding Business Day by all Lenders holding Revolving Credit
Commitments pro rata based on each Lender's Revolving Credit Commitment
Percentage, and the proceeds thereof shall be applied directly to repay the
Swingline Lender for such outstanding Swingline Loans. Each Lender having a
Revolving Credit Commitment hereby irrevocably agrees to make Revolving Credit
Loans bearing interest at the Adjusted Base Rate upon one Business Day's notice
pursuant to each Mandatory Borrowing in the amount and in the manner specified
in the preceding sentence and on the date specified in writing by the Swingline
Lender without any offset, abatement, withholding or reduction whatsoever. Each
Lender holding a Revolving Credit Commitment acknowledges and agrees that is
obligations to extend Mandatory Borrowings (or acquire assignments in Swingline
Loans) pursuant to this paragraph is absolute and unconditional, and shall not
be affected by any circumstance whatsoever, including: (a) the amount of the
Mandatory Borrowing may not comply with the minimum borrowing amount otherwise
required
18
hereunder, (b) whether any conditions specified in Section 6.1 are then
satisfied, (c) whether a Potential Default or an Event of Default has occurred
and is continuing, (d) whether the Revolving Credit Commitments have been
terminated, and (e) the date of such Mandatory Borrowing. In the event that any
Mandatory Borrowing cannot for any reason be made on the date otherwise required
above (including, without limitation, as a result of the commencement of a
proceeding under the Bankruptcy Code in respect of the Borrower), each Lender
having a Revolving Credit Commitment (other than the Swingline Lender) shall
forthwith purchase from the Swingline Lender (without recourse or warranty) such
assignment of the outstanding Swingline Loans as shall be necessary to cause
such Lenders to share in such Swingline Loans ratably based upon their
respective Revolving Credit Commitment Percentages, provided that all interest
payable on the Swingline Loans shall be for the account of the Swingline Lender
until the date the respective assignment is purchased and, to the extent
attributable to the purchased assignment, shall be payable to the Lender
purchasing same from and after such date of purchase.
2.2 Interest Rates, Interest Payment and Certain Provisions Relating
to Interest and Fees.
2.2a Payments of Interest; Collateralization. The Borrower shall pay
interest on the principal amount of the Loans from time to time outstanding
hereunder, from the date of incurrence thereof until payment in full, at the
rates of interest determined pursuant to this Section 2.2 (including Section
2.2f). The Borrower shall pay accrued interest on the unpaid principal balance
of the Loans in arrears: (i) with respect to each Base Rate Portion, at the
Adjusted Base Rate on the last Business Day of each Fiscal Quarter during the
term hereof, (ii) with respect to each Euro-Rate Portion, at the Adjusted
Euro-Rate on the last day of each Interest Period as provided for in Subsection
2.2(b)(ii) (provided, however, if the Interest Period chosen for a Euro-Rate
Portion exceeds three months, interest on that Euro-Rate Portion shall be due
and payable on the day which is (A) three months after the first day of such
Interest Period and (B) the last day of such Interest Period), and (iii) with
respect to all such Portions, at the applicable interest rate (A) when due, at
maturity, whether by acceleration or otherwise, and (B) after maturity, on
demand until paid in full. From and after the date on which each of the
conditions set forth below have been satisfied (the "Collateralization"), the
applicable Adjusted Base Rate and Adjusted Euro-Rate shall be reduced by fifty
base points (0.50%): (i) the Borrower shall grant to a collateral agent
(acceptable to the Agent) on behalf of the Agent and the Lenders a first
priority security interest in collateral acceptable to the Agent (the
"Collateral") (which security interest may also secure other indebtedness of the
Borrower on a pari passu basis so long as such aggregate principal amount of
such other indebtedness is less than the aggregate principal amount of the
Loans), (ii) the fair market sales value of the Collateral shall equal or exceed
120% of the aggregate principal amount of indebtedness secured thereby, (iii)
the Borrower shall deliver to the Agent a "fair market sales value" appraisal of
the Collateral in form and substance reasonably satisfactory to the Agent from
an independent appraiser reasonably acceptable to the Agent demonstrating
compliance with clause (ii), (iv) the Borrower shall execute and deliver to the
Agent a security agreement and such other agreements, documents, certificates,
lien searches, opinions of counsel and other documentation customary or
requested by the Agent in connection with the foregoing (all of which shall be
in form and substance and from counsel or others, as applicable, reasonably
satisfactory to the Agent) and (v) the Borrower shall have reimbursed the Agent
for any and all costs and expenses incurred with respect to the foregoing
(including
19
reasonable fees and expenses of counsel to the Agent). All reasonable fees,
costs and other expenses relating to any of the foregoing (including, without
limitation, fees of the collateral agent and the appraiser) shall be for the
account of the Borrower.
2.2b Interest Rate Options. The unpaid principal amount of the Loans
shall bear interest, for each day until due, at one or more rates of interest
selected by the Borrower from among the Options set forth below; it being
understood that, subject to the provisions of this Agreement, the Borrower may
select different Options to apply simultaneously to different Portions of the
Loans and may select different Interest Periods to apply simultaneously to
different Portions of the Euro-Rate Portions of the Loans; provided that
Swingline Loans shall bear interest at the Adjusted Base Rate only.
(i) Base Rate Option: A rate of interest per annum equal to the Base
Rate plus 4.00% minus, upon a Collateralization (if any), 0.50% (the
"Adjusted Base Rate"). The rate of interest per annum under the Base Rate
Option shall be adjusted automatically, from time to time, upon each change
in the Adjusted Base Rate.
(ii) Euro-Rate Option: A rate of interest per annum equal to the
Euro-Rate plus 5.00% minus, upon a Collateralization (if any), 0.50% (the
"Adjusted Euro-Rate").
2.2c Interest Periods; Limitations on Elections. At any time when the
Borrower shall select, convert to or renew at the Euro-Rate Option with respect
to all or any Portion of the outstanding Loans, it shall fix one or more
Interest Periods during which such Option(s) shall apply. All of the foregoing,
however, is subject to the following:
(i) any Interest Period which would otherwise end on a day which is
not a Business Day shall be extended to the next Business Day unless such
Business Day falls in the succeeding calendar month in which case such
Interest Period shall end on the next preceding Business Day; and
(ii) any Interest Period which begins on the last day of a calendar
month or on a day for which there is no numerically corresponding day in
the subsequent calendar month during which such Interest Period is to end
shall end on the last Business Day of such subsequent month.
In addition, elections by the Borrower of the Euro-Rate Option shall
be subject to the following further limitations:
(iii) If an Interest Period is elected and such Interest Period would
end after the Termination Date, such Interest Period shall end on the
Termination Date; and
(iv) At no time may there be more than ten Interest Periods in effect
relating to Loans.
2.2d Election, Conversion or Renewal of Interest Rate Options.
Elections of or conversions to the Base Rate Option shall continue in effect
until converted to the Euro-Rate Option as hereinafter provided. Elections of,
conversions to or renewals of the Euro-Rate Option shall expire as to each
Euro-Rate Portion at the expiration of the applicable Interest Period.
20
At any time, with respect to any Base Rate Portion, or at the
expiration of the applicable Interest Period, with respect to any Euro-Rate
Portion, the Borrower (subject to Subsection 2.2c) may cause all or any part of
the principal amount of such Portion to be converted to and/or (in the case of a
Euro-Rate Portion) to be renewed under the Euro-Rate Option by notice to the
Agent for notice to each of the Lenders as hereinafter provided. Such notice (i)
shall be irrevocable; (ii) shall be given not later than 12:00 noon (eastern
time) in the case of a conversion to or renewal of, either in whole or in part,
the Euro-Rate Option on the third Business Day prior to the proposed effective
date for the conversion or renewal and (iii) shall set forth:
(A) the effective date of such conversion or renewal, which shall be a
Business Day;
(B) the new Interest Period(s) selected; and
(C) with respect to each such Interest Period, the aggregate principal
amount of the corresponding Euro-Rate Portion.
At the expiration of each Interest Period, any part (including the
whole) of the principal amount of the corresponding Euro-Rate Portion as to
which no notice of conversion or renewal has been received as provided above,
shall automatically be converted to the Base Rate Option, or if no Interest
Period shall be specified in such notice, such Interest Period shall be one
month.
2.2e Notification of Election of an Interest Rate Option. The
Borrower, by an Authorized Officer, shall notify the Agent of (i) each election
or renewal of an Option and each conversion from one Option to another, (ii) the
Portion of the Loans then outstanding to be allocated to each Option and (iii)
where relevant, the Interest Periods applicable to each Option, by communication
as provided for in this Agreement. Any such communication may be oral or written
and if oral, it should be followed immediately by written confirmation of such
Option election executed by an Authorized Officer.
2.2f Default Interest. After the principal amount of all or any part
of the Base Rate Portions of the Loans shall have become due and payable,
whether by acceleration or otherwise and whether or not judgment has been
entered against the Borrower thereon, all Base Rate Portions shall bear interest
at a rate per annum which shall be two hundred (200) basis points (2%) per annum
above the rate otherwise in effect under the Base Rate Option, such interest
rate to change automatically from time to time, effective as of the effective
date of each change in the Base Rate. After the principal amount of all or any
part of the Euro-Rate Portions of the Loans shall have become due and payable,
whether by acceleration or otherwise and whether or not judgment has been
entered against the Borrower thereon, all such Euro-Rate Portions shall bear
interest (i) until the end of the then current Interest Period, at a rate per
annum which shall be two hundred (200) basis points (2%) per annum above the
rate otherwise in effect under the Euro-Rate Option, and (ii) at the end of the
then current Interest Period and thereafter, at a rate per annum which shall be
two hundred (200) basis points (2%) per annum above the rate otherwise in effect
under the Base Rate Option, such interest rate to change automatically from time
to time, effective as of the effective date of each change in the Base Rate.
After any other amount shall have become due and payable, whether or not
judgment has been entered against the Borrower thereon, such amount shall bear
interest at a rate per annum which shall be two
21
hundred (200) basis points (2%) per annum above the rate otherwise in effect
under the Base Rate Option, such interest rate to change automatically from time
to time, effective as of the effective date of each change in the Base Rate.
2.3 Yield-Protection, Capital Adequacy and Miscellaneous Provisions
Relating to Euro-Rate.
2.3a Yield Protection. Notwithstanding other provisions of this
Section 2.3:
(i) If, at any time after the date hereof, the adoption of any
Governmental Rule (including, without limitation, Regulation D), or if any
change therein, or in the interpretation thereof by any Governmental
Authority charged with the administration thereof, shall:
(A) subject any Lender to any tax, levy, impost, charge, fee,
duty, deduction or withholding of any kind with respect to payments of
principal or interest or other amounts due hereunder or pursuant to
any Loan outstanding (other than any tax imposed or based upon the net
income of a Lender and payable to any Governmental Authority (i) in
the United States of America or any state thereof or (ii) the
jurisdiction under the laws of which such Lender is organized or in
which its principal office or its applicable lending office is
located); or
(B) change the basis of taxation of any Lender with respect to
payments of principal or interest or other amounts due hereunder or
pursuant to any Loan outstanding (other than any change which affects,
and only to the extent that it affects, the taxation by the United
States or any state thereof of the total net income of such Lender);
or
(C) impose, modify or deem applicable any reserve, special
deposit or similar requirements against assets held by any Lender
applicable to its Commitments or Loans made hereunder (other than such
requirements which are included in the determination of the applicable
rate of interest hereunder); or
(D) impose upon any Lender any other obligation or condition with
respect to this Agreement, and the result of any of the foregoing is
to increase the cost to the affected Lender, reduce the income
receivable by the affected Lender, reduce the rate of return on the
affected Lender's capital, or impose any expenses upon the affected
Lender, all with respect to any of the Loans (or any portion thereof)
by an amount which the affected Lender reasonably deems material, and
if the affected Lender is then demanding similar compensation for such
occurrences from other borrowers who are similarly situated and who
have a similar relationship with the affected Lender and from which
the affected Lender has the right to demand such compensation, then
and in any such case:
(1) the affected Lender shall promptly notify the Borrower
of the happening of such event;
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(2) the Borrower shall pay to the affected Lender, within 10
days following demand, such amount as will compensate the
affected Lender for such reduction in its rate of return; and
(3) the Borrower may pay the affected portion of the
affected Lender's Loans in full without the payment of any
additional amount, including prepayment penalties, other than
amounts payable on account of the affected Lender's out-of-pocket
losses (including funding loss, if any, as provided in Section
2.9) which are not otherwise provided for in subparagraph (2)
immediately above.
(ii) A certificate (in reasonable detail) as to the increased cost or
reduced amount as a result of any event mentioned in this Subsection 2.3a
shall be promptly submitted by the affected Lender to the Borrower in
accordance with the provisions hereof. Such certificate shall be prima
facie evidence as to the amount of such increased cost or reduced amount.
2.3b Capital Adequacy. If, after the date hereof, (i) any adoption of
or any change in or in the interpretation of any Governmental Rule, or (ii)
compliance with any Governmental Rule of any Governmental Authority exercising
control over banks or financial institutions generally or any court of competent
jurisdiction, requires that a Lender's Commitments (including, without
limitation, obligations in respect of any Swingline Loan, Revolving Credit Loan
or Delayed Draw Term Loan hereunder) be treated as an asset or otherwise be
included for purposes of calculating the appropriate amount of capital to be
maintained by any Lender or any Person controlling any Lender (a "Capital
Adequacy Event"), the result of which is to reduce the rate of return on a
Lender's capital as a consequence of its Commitments to a level below that which
the affected Lender could have achieved but for such Capital Adequacy Event,
taking into consideration the Lender's policies with respect to capital
adequacy, by an amount which the affected Lender reasonably deems to be
material, the affected Lender shall promptly deliver to the Borrower a statement
(in reasonable detail) of the amount necessary to compensate the affected Lender
or the reduction in the rate of return on its capital attributable to its
Commitments (the "Capital Compensation Amount"). The affected Lender shall
determine the Capital Compensation Amount in good faith, using reasonable
attribution and averaging methods. Each affected Lender shall from time to time
notify the Borrower of the amount so determined. Each such notification shall be
prima facie evidence of the amount of the Capital Compensation Amount set forth
therein, and such Capital Compensation Amount shall be due and payable by the
Borrower to the affected Lender 30 days after such notice is given. As soon as
practicable after any Capital Adequacy Event, the affected Lender shall submit
to the Borrower estimates of the Capital Compensation Amounts that would be
payable as a function of the affected Lender's Commitment hereunder.
2.3c Euro-Rate Unascertainable. If, on any date on which the Adjusted
Euro-Rate would otherwise be set, the Agent reasonably shall have determined
(which determination shall be final and conclusive) that by reason of
circumstances affecting the interbank Eurodollar market, adequate and reasonable
means do not exist for ascertaining the Euro-Rate, the Agent shall give prompt
notice of such determination to the Borrower and the Lenders and, until the
Agent notifies the Borrower and the Lenders that the circumstances giving rise
to such
23
determination no longer exist, the right of the Borrower to borrow under,
convert to or renew the Euro-Rate Option shall be suspended. Any notice of
borrowing under, conversion to or renewal of the Euro-Rate Option which was to
become effective during the period of such suspension shall be treated as a
request to borrow under, convert to or renew at the Base Rate Option with
respect to the principal amount therein specified.
2.3d Illegality. If a Lender shall determine in good faith (which
determination shall be final and conclusive) that compliance by such Lender with
any applicable law, treaty or other Governmental Rule (whether or not having the
force of law), or the interpretation or application thereof by any Governmental
Authority, has made it unlawful for such Lender to make or maintain the Loans
under the Euro-Rate Option (including but not limited to acquiring Eurodollar
liabilities to fund such Loans), such Lender shall give notice of such
determination to the Borrower and the other Lenders. Notwithstanding any
provision of this Agreement to the contrary, unless and until the affected
Lender shall have given notice to the Borrower and the other Lenders that the
circumstances giving rise to such determination no longer apply:
(i) with respect to any Interest Periods thereafter commencing,
interest on the Loans bearing interest at the Adjusted Euro-Rate (whichever
one or more have been determined by the affected Lender to be unlawful)
shall, unless the Borrower shall have selected a different Option which is
then available, be computed and payable under the Base Rate Option; and
(ii) on such date, if any, as shall be required by law, any Loans
bearing interest at the Adjusted Euro-Rate then outstanding shall be
automatically converted to the Base Rate Option, and the Borrower shall pay
to the affected Lender the accrued and unpaid interest on such Loans to
(but not including) the date of such conversion at the applicable interest
rate or rates in effect for such Loans prior to such conversion.
2.3e Change of Lending Office. Each Lender agrees that, upon the
occurrence of any event giving rise to the operation of Section 2.3a, 2.3b or
2.3d with respect to such Lender, it will, if requested by the Borrower, use
reasonable efforts (subject to overall policy considerations of such Lender) to
designate another lending office for any Loans affected by such event with the
object of avoiding the consequences of such event; provided, that such
designation is made on terms that, in the sole judgment of such Lender, cause
such Lender and its lending office(s) to suffer no economic, legal or regulatory
disadvantage, and provided, further, that nothing in this Section shall affect
or postpone any of the obligations of the Borrower or the rights of any Lender
pursuant to Section 2.3a, 2.3b or 2.3d. In determining whether designating
another lending office would cause such Lender or its lending office(s) to
suffer economic disadvantage, such Lender may disregard any economic
disadvantage that the Borrower agrees in form and substance satisfactory to such
Lender to indemnify and hold such Lender harmless therefrom.
2.4 Fees.
2.4a Commitment Fee. The Borrower agrees to pay to the Lenders having
Commitments, on a pro rata basis, beginning on December 31, 2003, and continuing
quarterly in arrears thereafter on the last Business Day of each December,
March, June and September during
24
the term hereof to and including the Termination Date, a commitment fee (the
"Commitment Fee") calculated at a rate per annum equal to the Commitment Fee
Rate on the daily average amount of the unused portion of the Commitments (other
than the Swingline Credit Commitment) for the quarter then ending; provided,
however, the first payment under this Subsection 2.4a shall be only for the
actual number of days elapsed between the Closing Date and December 31, 2003,
and the last payment under this Subsection 2.4a shall be only for the actual
number of days elapsed between the last quarterly payment date and the
Termination Date. For purposes of calculating the Commitment Fee only, no
portion of the Revolving Credit Commitments shall be deemed utilized by virtue
of any Swingline Loan being outstanding.
2.4b Certain Other Fees. (a) The Borrower agrees to pay to the Agent
for the account of the Agent, the fees required to be paid by it as set forth in
that certain letter agreement among the Borrower, the Agent, NUI Corporation and
CSFB (the "Fee Letter") dated as of October 31, 2003, as the same may be amended
from time to time, as and when payment of such fees is due as set forth therein.
(b) If the Borrower elects to borrow the Delayed Draw Term Loans, the
Borrower shall pay the Lenders an additional 0.50% on the aggregate principal
amount of the Delayed Draw Term Loan on the funding date thereof.
(c) If the Termination Date is extended pursuant to Section 2.6, the
Borrower shall pay the Lenders an extension fee on the original Termination Date
in an amount equal to 0.50% of the aggregate amount of Term Loans (including the
Delayed Draw Term Loans, if any) and the Revolving Credit Commitments then
outstanding. If the Borrower elects to extend the Termination Date by at least
six months, on the date that is the six month anniversary of the original
Termination Date, the Borrower shall pay the Lenders an additional fee in an
amount equal to 0.50% of the aggregate amount of Term Loans (including the
Delayed Draw Term Loans, if any) and the Revolving Credit Commitments then
outstanding on such sixth month anniversary of the original Termination Date.
2.5 Calculation of Interest and Commitment Fee. Interest computed at
the Prime Rate (or clause (C) of the definition of Base Rate) shall be computed
upon the basis of a year of 365 or 366 days, as the case may be. All other
interest and Commitment Fees shall be computed on the basis of a year of 360
days. In each case, interest and Commitment Fees shall be calculated for the
actual number of days elapsed (including the first day and but excluding the
last day). The applicable Base Rate and Euro-Rate shall be determined by the
Agent, and such determination shall be conclusive absent manifest error.
2.6 Extension of Termination Date. The Termination Date may be
extended, in the manner and subject to the conditions set forth in this Section
2.6, at the option of the Borrower for an additional period of 364 days. The
Borrower may exercise such option to extend the Termination Date if and only if
(i) the Borrower has obtained all governmental and other approvals necessary (if
any) to exercise such extension, (ii) the maturity of the Medium Term Notes has
been extended to a date no earlier than June 30, 2006 (without any scheduled
amortization thereof prior to such date)(either by amendment or refinancing
thereof, on terms reasonably acceptable to the Agent, it being understood that a
refinancing thereof through the incurrence of Delayed Draw Term Loans is
reasonably acceptable to the Agent), and (iii) no
25
Event of Default and no Potential Default has occurred and is continuing. If the
Borrower wishes to extend the Termination Date, it shall give written notice to
that effect to the Agent not less than 10 nor more than 90 days prior to the
original Termination Date (and the Agent shall thereafter deliver a copy of such
notice to the Lenders). Delivery of such notice shall be deemed to be a
representation and warranty by the Borrower as of the date of such notice that
(i) the conditions to exercising such extension have been satisfied and (ii) the
representations and warranties of the Borrower set forth in Article III hereof
shall be correct in all material respects. Upon the Agent receiving such written
notice, and provided that the conditions have been met, the Termination Date
shall be extended, effective on the date of such receipt, to November 21, 2005.
2.7 Substitution or Replacement of a Lender. The Borrower shall have
the right (provided that at such time, no Event of Default and no Potential
Default has occurred and is continuing), in its sole discretion, to seek a
substitute lending institution or institutions (which may be one or more of the
other Lenders) to assume the Loans, the Revolving Credit Commitment, the Delayed
Draw Term Loan Commitment (if any) and the other obligations of such Lender
under this Agreement, if any of the following conditions occur with respect to
such Lender:
(i) such Lender shall have delivered a notice or certificate pursuant
to Section 2.3a or 2.3b;
(ii) the obligation of such Lender to make Loans which bear or are to
bear interest under the Euro-Rate Option has been suspended pursuant to
Subsection 2.3d; or
(iii) such Lender refuses to consent to any amendment, waiver or other
modification of any Loan Document requested by the Borrower that requires
the consent of a greater percentage of the Lenders than the Required
Lenders and such amendment, waiver or other modification is consented to by
the Required Lenders;
and provided, any proposed substitute lending institution, which is
not a Lender prior to the Borrower's selection thereof, must be reasonably
acceptable to the Agent, whose consent shall not be unreasonably withheld or
delayed, and provided, further that all of the provisions of Section 9.6 (with
respect to any Lender) and Section 8.11 (if the affected Lender is the Agent)
must be complied with.
2.8 Loan Repayment. Each repayment of the Loans (other than Swingline
Loans) shall be in the minimum amount of $1,000,000, in the aggregate, or an
integral multiple of $100,000 thereof, or such lesser amount as is actually
outstanding thereunder. The Borrower, upon (i) oral or written notice to Agent
by 12:00 noon (eastern time) on the day of the proposed repayment, in the case
of Swingline Loans, (ii) one Business Days' prior oral or written notice to the
Agent, in the case of Loans bearing interest at the Adjusted Base Rate or (iii)
three Business Days' prior oral or written notice to the Agent, in the case of
Loans bearing interest at the Adjusted Euro-Rate, followed immediately
thereafter by the Borrower's written confirmation to the Agent of any oral
notice, may repay the outstanding amount of the Loans in whole or in part with
accrued and unpaid interest then due and payable (with respect to each Base Rate
Portion, in accordance with Section 2.2a and, with respect to each Euro-Rate
Portion, at the time of such
26
repayment), the amount repaid to the date of such repayment, without premium or
penalty other than, in the case of repayment of Euro-Rate Loans, the payment of
any additional amounts under Section 2.9 below.
Any repayment of the Revolving Credit Loans shall increase, by the
amount of that repayment, the unborrowed balance of the Revolving Credit
Commitments; it being contemplated that the Borrower may repay and reborrow from
time to time under the Revolving Credit Commitments until the Termination Date.
All Loans outstanding on the Termination Date shall become due and payable in
full on such date.
2.9 Additional Payments by the Borrower. If (i) the Borrower shall
fail to make any payment due hereunder on the due date thereof, (ii) the
Borrower shall make a payment, prepayment or conversion of any Euro-Rate Portion
of the Loans on a day other than the last day of the applicable Interest Period,
(iii) the Borrower shall convert any Portion to the Base Rate Option from
another Option pursuant to Subsection 2.2d on a day other than the last day of
the relevant Interest Period, or (iv) the Borrower shall fail on the date
specified therefor to consummate any borrowing, conversion or renewal after
giving a request for an extension of credit or notice of conversion or renewal,
and, as a result of any such action or inaction, a Lender reasonably incurs any
losses and expenses which it would not have incurred but for such action or
inaction, the Borrower shall pay such additional amounts as will compensate the
affected Lender for such losses and expenses, including the cost of reemployment
of any funds prepaid at rates lower than the cost to the affected Lender of such
funds. Such losses and expenses, which the affected Lender shall exercise
reasonable efforts to minimize, shall be specified in writing (setting forth, in
reasonable detail, the basis of calculation) to the Borrower by the affected
Lender, which writing shall be prima facie evidence of the amounts set forth
therein, and such amounts shall be payable within 30 days of demand therefor.
2.10 Voluntary Reduction of Availability. At any time and from time to
time upon no less than two Business Days in the case of Base Rate Portions and
three Business Days in the case of Euro-Rate Portions, prior written notice to
the Agent, the Borrower may terminate, in whole or in part, without penalty, the
then unused portion of the Revolving Credit Commitments or Delayed Draw Term
Loan Commitments, thereby causing a corresponding abatement of the Commitment
Fee with respect to the pro rata share so reduced, provided that no such
termination or reduction of the Revolving Credit Commitments shall be permitted
if, after giving effect thereto and to any prepayments of the Revolving Credit
Loans made on the effective date thereof, the aggregate principal amount of the
Revolving Credit Loans then outstanding would exceed the Revolving Credit
Commitments then in effect. Each such reduction shall be in a minimum principal
amount of $5,000,000 or in integral multiples thereof. The Commitment Fee shall
cease to accrue with respect to any unused portion of the Commitments so
terminated on date of such termination. Notice of termination once given shall
be irrevocable and the portion of the applicable Commitments so terminated shall
not be available for borrowing once such notice has been given under the terms
hereof. The Agent shall promptly notify each applicable Lender of its pro rata
share of such terminated unused portion and the date of each such termination.
2.11 [Intentionally Omitted].
27
2.12 [Intentionally Omitted].
2.13 Time, Place and Manner of Payments. Except to the extent
otherwise provided herein, (a) Loans to be made on any day shall be made by the
Lenders pro rata in accordance with their respective applicable Commitments, (b)
Loans of the Lenders shall be converted and continued pro rata in accordance
with their respective amounts of Loans of the type and, in the case of Euro-Rate
Portions, having the Interest Period being so converted or continued and (c)
each reduction in the applicable Commitments shall be made pro rata in
accordance with the respective amounts thereof. All payments to be made by the
Borrower of principal and interest on the Term Loans (other than those provided
for in Sections 2.3 and 2.9 hereof) shall be made to the Agent (at the Agent's
Account) for the ratable account of the Lenders holding Term Loans. All payments
to be made by the Borrower of principal and interest on the Swingline Loans
(other than those provided for in Sections 2.3 and 2.9 hereof), shall be made to
the Swingline Lender at its account (or after any assignment pursuant to clause
(iii) of Section 2.1f, for the ratable account of the Lenders holding Revolving
Credit Commitments). All payments to be made by the Borrower of principal and
interest on the Revolving Credit Loans (other than those provided for in
Sections 2.3 and 2.9 hereof), shall be made to the Agent (at the Agent's
Account) for the ratable account of the Lenders holding Revolving Credit
Commitments. All payments to be made by the Borrower of the Commitment Fees,
shall be made to the Agent (at the Agent's Account) for the ratable account of
the Lenders holding Commitments (other than the Swingline Credit Commitment).
All other payments to be made by the Borrower hereunder shall be made to the
Agent (at the Agent's Account) for the ratable account of the applicable Lenders
(or, in the case of Fees and other amounts owing to the Agent, for its sole
account). The Agent will promptly pay each such payment received to each
applicable Lender or its order in accordance with Section 8.9 hereof. All
payments due a Lender by reason of Sections 2.3 or 2.9 hereof shall be paid at
the principal office of the Lender which invoices the Borrower for such payment.
All payments to be made by the Borrower under this Agreement shall be paid in
Dollars and in immediately available funds no later than 2:00 P.M. (eastern
time) on the date such payment is due, without presentment, demand, protest or
notice of any kind, all of which are hereby expressly waived by the Borrower,
and without setoff, counterclaim or other deduction of any nature. Any payment
received after such time on any date may, in the discretion of the Agent, be
deemed to have been received on the next succeeding Business Day for purposes of
calculating interest thereon.
2.14 Mandatory Prepayments. (a) Unless the Required Lenders otherwise
agree, if (i) any Equity Interests of the Borrower shall be issued to a Person
other than NUI Corporation, (ii) any Recovery Event shall have occurred (and Net
Asset Sale Proceeds thereof have not been reinvested in the same or similar
property or assets within 364 days of such Recovery Event (with such
reinvestment not to exceed $20,000,000 in the aggregate)), or (iii) any
Indebtedness of the Borrower is incurred (excluding any Indebtedness incurred in
accordance with Section 5.13, the Borrower shall prepay the Loans and reduce the
Commitments in an amount equal to 100% of the Net Proceeds therefrom no later
than the second Business Day following receipt by the Borrower of such Net
Proceeds.
(b) Amounts to be applied in connection with prepayments made
pursuant to this Section 2.14 shall be applied (i) first, to the prepayments of
the Term Loans pro rata, (ii) second, to the permanent reduction of the Delayed
Draw Term Loan Commitments pro rata (if
28
then outstanding), and (iii) third, to the prepayment of Swingline Loans and
then Revolving Credit Loans (if then outstanding) and, in any event, the
Revolving Credit Commitments shall be permanently reduced in an amount equal to
the amount of such Net Proceeds remaining after the prepayment in full of the
Term Loans. The application of any prepayment pursuant to this Section 2.14
shall be made, first, to Base Rate Loans and, second, to Euro-Rate Loans. Each
prepayment of the Loans under this Section 2.14 (except in the case of Revolving
Credit Loans that are Base Rate Loans) shall be accompanied by accrued interest
to the date of such prepayment on the amount prepaid.
(c) Upon (i) the occurrence of any event described in Section 7.10
hereof with respect to the Borrower or NUI Corporation or (ii) the Borrower
shall default in the observance or performance of any covenant set forth in
Section 4.11, then the Commitments hereunder shall immediately terminate and the
Loans then outstanding (together with accrued interest thereon) and all other
amounts owing under this Agreement shall become immediately due and payable.
(d) Nothing in this Section 2.14 shall be construed to derogate any
restriction or limitation contained in any Loan Document imposed on any
transaction of the type described in this Section 2.14, including, without
limitation, Sections 5.5, 5.6 and 5.13 hereof.
ARTICLE III. REPRESENTATIONS AND WARRANTIES.
To induce the Lenders to enter into this Agreement and to make the
Loans herein provided for, the Borrower represents and warrants to the Lenders
that:
3.1 Corporate Existence. The Borrower is a corporation, duly
organized, validly existing and in good standing under the laws of its state of
incorporation and it is duly qualified and in good standing as a foreign
corporation authorized to do business in each jurisdiction where, because of the
nature of its properties or businesses, such qualification is required or, if
not so qualified or in good standing in any state, the lack of such
qualification or good standing will not have a Material Adverse Effect.
3.2 Corporate Authority. The Borrower is duly authorized to execute
and deliver this Agreement and the other Loan Documents to which it is or will
become a party; all necessary corporate action to authorize the execution and
delivery of this Agreement and the other Loan Documents to which it is a party
has been properly taken; and it is duly authorized to borrow hereunder and to
perform all of the other terms and provisions of this Agreement and the other
Loan Documents to which it is or will become a party.
3.3 Enforceability. Each Loan Document to which the Borrower is a
party has been duly and validly executed and delivered by the Borrower and each
constitutes a legal, valid and binding agreement of the Borrower enforceable in
accordance with its terms except to the extent that the enforceability thereof
may be limited by applicable bankruptcy, insolvency, reorganization, moratorium
or other similar laws generally affecting creditors' rights and by equitable
principles (regardless of whether enforcement is sought at equity or at law).
3.4 No Restrictions, No Default. Neither the execution and delivery of
this Agreement and the other Loan Documents to which it is or will become a
party, nor the
29
consummation of the transactions herein contemplated nor compliance with the
terms and provisions hereof or of any other Loan Document, (i) will conflict
with or result in a breach of any of the terms, conditions or provisions of the
certificate of incorporation or the by-laws of the Borrower, (ii) conflict with
or result in a breach of any law, statute, rule or regulation or any, order,
writ, injunction or decree of any Governmental Agency (including FERC and other
applicable Federal and state energy laws and regulations), or (iii) conflict
with, result in a breach or constitute (alone or with notice or lapse of time or
both) a default under, or give rise to any right to accelerate or to require the
prepayment, repurchase or redemption of any obligation under any agreement,
indenture or other instrument to which the Borrower is a party or by which it is
bound or to which it is subject or result in the creation or imposition of any
Encumbrance of any nature whatsoever upon any of the property or assets of the
Borrower pursuant to the terms of any such agreement, indenture or other
instrument, except in the case of clauses (ii) and (iii) above, as would not,
individually or in the aggregate, have a Material Adverse Effect. Except as
would not have a Material Adverse Effect, the Borrower and each Subsidiary has
good record and marketable title in fee simple to, or a valid leasehold interest
in, all its real property, and good title to, or a valid leasehold interest in,
all of its other property, and none of such property is subject to any
Encumbrance except as permitted by Section 5.2. No event has occurred and is
continuing and no condition exists or will exist after giving effect to the
borrowings hereunder to be made on the Closing Date which constitutes an Event
of Default or Potential Default.
3.5 Financial Statements. The Borrower has heretofore furnished to the
Agent and the Lenders the consolidated balance sheet and statements of income,
capitalization, shareholders' equity and cash flows of the Borrower (i) as of
and for the fiscal years ended September 30, 2001 and September 30, 2002,
reported on by PricewaterhouseCoopers LLP, independent public accountants, and
(ii) as of and for the fiscal quarter and the portion of the fiscal year ended
June 30, 2003. Such financial statements present fairly, in all material
respects, the financial position and results of operations and cash flows of the
Borrower as of such dates and for such periods in accordance with GAAP, except
as expressly noted therein, and, subject to year-end audit adjustments and the
absence of footnotes in the case of the statements referred to in clause (ii)
above. Except as has otherwise been fully disclosed in NUI Corporation's Form
10-K filed on December 31, 2002, Form 10-Qs filed on February 14, 2003, May 15,
2003 and August 14, 2003, and Current Reports on Form 8-K filed on July 22,
2003, July 31, 2003, September 26, 2003, October 14, 2003 and November 19, 2003
or the Confidential Information Memorandum, in each case with the Securities and
Exchange Commission, since September 30, 2002, nothing has occurred that has had
a Material Adverse Effect.
3.6 Absence of Litigation. Except as disclosed in NUI Corporation's
Form 10-K filed on December 31, 2002, Form 10-Qs filed on February 14, 2003, May
15, 2003, and August 14, 2003 and Current Reports on Form 8-K filed on July 22,
2003, July 31, 2002, September 26, 2003, October 14, 2003 and November 19, 2003
or the Confidential Information Memorandum, there are no actions, suits,
investigations, litigation or proceedings at law or in equity pending or, to the
Borrower's knowledge, threatened against the Borrower or any of its properties,
which (i) would have a Material Adverse Effect, or (ii) that involve any Loan
Document or the transactions hereunder. It is acknowledged and agreed that
notwithstanding anything contained in this Section 3.6 to the contrary, nothing
in this Section 3.6 shall constitute a representation or warranty by the
Borrower with respect to the focused audit of the Borrower initiated by the New
Jersey Board of Public Utilities (the "NJBPU") as of March 20, 2003 and
conducted by The
30
Liberty Consulting Group (the "Focused Audit"), whether the status of the
Focused Audit, the results (or expected results) of the Focused Audit or
otherwise.
3.7 Tax Returns and Payments. As of the date hereof, the Borrower has
timely filed all Federal and all other material tax returns required by law to
be filed and has paid all material taxes, material assessments and other
material governmental charges which are due and payable by the Borrower, other
than those payable without penalty or interest or those which are being
contested in good faith and by appropriate proceedings diligently conducted for
which reserves in accordance with GAAP have been provided. As of the date
hereof, the charges, accruals and reserves on the books of the Borrower in
respect of Federal, state and local income taxes for all fiscal periods are
adequate, and the Borrower knows of no unpaid assessments for additional
Federal, state or local income taxes for any such fiscal period or any basis
therefor.
3.8 Pension Plans. Except to the extent that a breach of any of the
following representations would not have a Material Adverse Effect, (i) each
Plan has been and will be maintained and funded, in all respects, in accordance
with its terms and with all provisions of ERISA and the Code applicable thereto;
(ii) no Reportable Event has occurred and is continuing with respect to any
Plan; (iii) no liability to PBGC has been incurred with respect to any Plan,
other than for premiums due and payable; (iv) no Plan has been terminated, no
proceedings have been instituted to terminate any Plan, and there exists no
intent to terminate or institute proceedings to terminate any Plan, which has
caused or would cause the Borrower or any ERISA Affiliate to incur any liability
to the PBGC under Title IV of ERISA; (v) no withdrawal, either complete or
partial, has occurred or commenced with respect to any Multiemployer Plan, and
there exists no intent to withdraw either completely or partially from any
Multiemployer Plan, (vi) the Borrower is not subject to any liability for unpaid
penalties or taxes imposed under Section 502(i) of ERISA or Section 4975 of the
Code and has not engaged in a prohibited transaction as defined in Section 406
of ERISA and Section 4975 of the Code, (vii) no conditions have been met for the
imposition of a lien under Section 302(f) of ERISA or Section 412(n) of the Code
or for the provision of security pursuant to Section 307 of ERISA with respect
to any Plan and (viii) with respect to each Plan, the value of all benefit
liabilities under such Plan do not exceed the fair market value of the assets of
such plan, as determined in accordance with the most recent actuarial report for
such Plan.
3.9 Compliance with Applicable Laws. The Borrower (i) is not in
default with respect to any order, writ, injunction or decree of any court or of
any Federal, state, municipal or other Governmental Authority; and (ii) is
complying with all applicable statutes and regulations of each Governmental
Authority having jurisdiction over its activities (including FERC and other
applicable Federal and state energy laws and regulations); except for those
orders, writs, injunctions, decrees, statutes and regulations, non-compliance
with which would not have a Material Adverse Effect. It is acknowledged and
agreed that notwithstanding anything contained in this Section 3.9 to the
contrary, nothing in this Section 3.9 shall constitute a representation or
warranty by the Borrower with respect to the Focused Audit, whether the status
of the Focused Audit, the results (or expected results) of the Focused Audit or
otherwise.
3.10 Environmental Matters. Except to the extent described in NUI
Corporation's Form 10-K filed on December 31, 2002, Form 10-Qs filed on February
14, 2003, May 15, 2003, and August 14, 2003 and Current Reports on Form 8-K
filed on July 22, 2003, July 31, 2002,
31
September 26, 2003, October 14, 2003 and November 19, 2003 or the Confidential
Information Memorandum, the Borrower is in compliance with all applicable
Environmental Laws, except for matters which do not have a Material Adverse
Effect.
3.11 Governmental Approval. No action, order, authorization, consent,
license, validation or approval of, or notice to, filing, recording, or
registration with, any Governmental Authority, or exemption by any Governmental
Authority, is or, under existing Governmental Rules, will be required to
authorize, or is or, under existing Governmental Rules, will be required in
connection with, (i) the execution, delivery and performance by the Borrower of
this Agreement or the other Loan Documents to which it is a party or the
transaction thereunder or (ii) the legality, binding effect or enforceability
against the Borrower of this Agreement or the other Loan Documents to which it
is a party, except for such as have been made or obtained (or may be required to
be obtained prior to the extension of the Termination Date (if any) pursuant to
Section 2.6) and are in full force and effect.
3.12 Regulations T, U and X. The Borrower is not engaged in the
business of purchasing or selling Margin Stock or extending credit to others for
the purpose of purchasing or carrying Margin Stock and no part of the proceeds
of the Loans will be used to purchase or carry any Margin Stock or for any other
purpose which would violate or be inconsistent with Regulations T, U or X.
3.13 Investment Company Act. The Borrower is not an "investment
company", or a company "controlled" by an "investment company", within the
meaning of the Investment Company Act of 1940, as amended.
3.14 Public Utility Holding Company Act. The Borrower is a "gas
utility company" within the meaning of the Public Utility Holding Company Act of
1935, as amended ("PUHCA") and a "subsidiary company" of NUI Corporation, which
is a "holding company" that is exempt from all regulation under PUHCA (except
Section (9)(a)(2) thereof) under Section 3(a)(1) thereof pursuant to Rule 2.
3.15 Disclosure. Neither this Agreement nor any other document,
certificate or written statement furnished to the Lenders or the Agent by or on
behalf of the Borrower pursuant to this Agreement (or provided by or on behalf
of the Borrower for inclusion in the Confidential Information Memorandum)
contains any untrue statement of a material fact or omits to state any material
fact necessary to make the statements therein taken as a whole, in light of the
circumstances under which they were made, not misleading. There is no fact known
to the Borrower which has had or in the future may (so far as the Borrower now
foresees) have a Material Adverse Effect, which has not been set forth (or
referred to) in this Agreement or in the other documents, certificates and
statements (financial or otherwise) furnished to the Lenders or the Agent or
otherwise disclosed in writing to the Lenders or the Agent by or on behalf of
the Borrower prior to or on the date hereof. With respect to projections
regarding the future performance of the Borrower, no representation or warranty
is made other than that such projections have been prepared in good faith and
based on assumptions believed to be reasonable at the time of preparation
thereof; it being recognized that such projections are not to be viewed as facts
and are subject to significant uncertainties and contingencies many of which are
beyond the Borrower's control and that actually results during the period or
periods covered by any such
32
projections may differ from the projected results. It is acknowledged and agreed
that notwithstanding anything contained in this Section 3.15 to the contrary,
nothing in this Section 3.15 shall constitute a representation or warranty by
the Borrower with respect to the Focused Audit, whether the status of the
Focused Audit, the results (or expected results) of the Focused Audit or
otherwise.
3.16 No Subsidiaries. The Borrower has no Subsidiaries.
3.17 [Intentionally Omitted].
3.18 Insurance. All policies of insurance of any kind or nature owned
by or issued to the Borrower are in full force and effect and are of a nature
and provide such coverage as is sufficient and as is customarily carried by
companies of the size and character of such Person (except to the extent the
Borrower is self-insured in compliance with Section 4.7).
3.19 Labor Matters. There are no strikes, work stoppages, slowdowns,
lockouts or other labor disputes pending or threatened against or involving the
Borrower, other than those which in the aggregate have no Material Adverse
Effect. There are no arbitrations, unfair labor practice charges, complaints,
representation proceedings or grievances pending against or involving the
Borrower, nor are there any threatened involving the Borrower, based on, arising
out of, in connection with, or otherwise relating to individual or group
employment, collective bargaining agreements, union organizing or other
activities, or employment or other labor matters, other than those which, in the
aggregate, would have no Material Adverse Effect.
ARTICLE IV. AFFIRMATIVE COVENANTS.
From the date hereof and thereafter until the termination of the
Commitments and until all of the Bank Indebtedness (other than indemnity
obligations which are not then due and payable) is paid in full, the Borrower
agrees that:
4.1 Use of Proceeds. The proceeds of the Loans will be used by the
Borrower on the Closing Date first (i) to repay in full all amounts outstanding
under and terminate the Existing Credit Agreements, and (ii) to pay related fees
and expenses incurred in connection with the execution and delivery of the Loan
Documents. Thereafter proceeds of the Loans (other than Delayed Draw Term Loans)
may be used by the Borrower solely (i) for working capital purposes in the
ordinary course of business of the Borrower, and (ii) for general corporate
purposes of the Borrower, including the payment of dividends. Proceeds of the
Delayed Draw Term Loans will used by the Borrower solely to repay the Medium
Term Notes (and, if such repayment is not made on the date of funding of such
Loans, (i) the Borrower shall on such funding date deposit such proceeds into a
securities or deposit account of, and under the control of, an agent or trustee
(reasonably acceptable to the Agent) on behalf of holders of Medium Term Notes
with irrevocable instructions from the Borrower to apply such proceeds to such
repayment (no later than the maturity date of the Medium Term Notes), (ii) until
such time as such proceeds are applied to the repayment of the Medium Term
Notes, the Borrower agrees (and such agent or trustee shall acknowledge) that
such agent or trustee shall hold such proceeds in escrow on behalf of and for
the ratable benefit of the Lenders holding Delayed Draw Term Loans and (iii) the
Borrower may retain the right to invest such proceeds while so on deposit in
Permitted
33
Investments maturing not later than the maturity date of the Medium Term Notes
and the net return on such investments may be remitted back to the Borrower from
time to time). Such arrangements shall be set forth in an agreement between such
agent or trustee and the Borrower which shall be in form and substance
reasonably satisfactory to the Agent and the Borrower. Notwithstanding the
foregoing, with the prior consent of the Agent (in its sole discretion), the
Borrower may enter into alternative arrangements which have substantially the
same effect as the foregoing.
4.2 Furnishing Information. The Borrower shall:
(i) deliver to the Agent (with copies for each Lender which Agent
shall distribute) within 10 days after the date quarterly financial
statements would be required to be filed by an "Accelerated Filer" as
defined in Rule 12b-2 under the Exchange Act (without giving effect to any
extension) in a periodic report with the Securities and Exchange
Commission, NUI Corporation's Form 10-Q filed with the Securities and
Exchange Commission together with (A) balance sheets as at the end of such
period for the Borrower, and (B) statements of income for such period for
the Borrower and, in the case of the second and third quarterly periods,
for the period from the beginning of the current Fiscal Year to the end of
such quarterly period; and each such statement shall set forth, in
comparative form, corresponding figures for the corresponding period in the
immediately preceding Fiscal Year and all such statements shall be prepared
in reasonable detail in accordance with GAAP and certified, subject to
changes resulting from year-end adjustments, by the chief financial officer
or treasurer of the Borrower;
(ii) deliver to the Agent (with copies for each Lender which Agent
shall distribute) within 10 days after the date annual financial statements
would be required to be filed by an "Accelerated Filer" as defined in Rule
12b-2 under the Exchange Act (without giving effect to any extension) in a
periodic report with the Securities and Exchange Commission, (A) balance
sheets as at the end of such year for the Borrower, and (B) statements of
income for such year for the Borrower; and each such statement shall set
forth, in comparative form, corresponding figures for the immediately
preceding Fiscal Year; and all such financial statements shall present
fairly in all material respects the financial position of the Borrower, as
at the dates indicated and the results of its operations and its cash flow
for the periods indicated, in conformity with GAAP; and the Borrower shall
furnish to the Agent (with copies for each Lender which the Agent shall
distribute) the audited consolidated financial statements of NUI
Corporation (of which the Borrower is a Subsidiary in its consolidated
group) for such Fiscal Year furnished under the NUI Corporation Credit
Agreement;
(iii) deliver to the Agent (with copies for each Lender which Agent
shall distribute), together with each delivery of financial statements
pursuant to items (i) and (ii) above, a Compliance Certificate of the
Borrower substantially in the form of Exhibit F hereto, properly completed
and signed by an Authorized Officer of the Borrower, (A) stating (1) that
such officer has reviewed the terms of the Loan Documents and has made, or
caused to be made under his supervision, a review of the transactions and
condition of the Borrower during the accounting period covered by such
financial statements and that such review has not disclosed any failure by
the Borrower during such period to observe
34
or perform all of its covenants and other agreements, nor any failure to
satisfy every condition contained in this Agreement and the other Loan
Documents to which it is a party during such accounting period, and (2)
that the Borrower does not have knowledge of the existence, as at the date
of such Compliance Certificate, of any condition or event which constitutes
an Event of Default or a Potential Default, or, if any such condition or
event existed or exists, specifying the nature and period of existence
thereof and what action the Borrower has taken or is taking or proposes to
take with respect thereto, and (B) demonstrating in reasonable detail
compliance as at the end of such accounting period with the covenants
contained in Sections 5.3a and 5.3b hereof;
(iv) promptly give written notice to the Agent of any pending or, to
the knowledge of the Borrower, overtly threatened claim in writing,
litigation which arises between the Borrower and any other party or parties
(including, without limitation, any Governmental Authority, which claim,
litigation or threat of litigation, individually or in the aggregate, is
reasonably likely to have a Material Adverse Effect, any such notice to be
given not later than five Business Days after the Borrower becomes aware of
the occurrence of any such claim, litigation or threat of litigation;
(v) deliver to the Agent (with copies for each Lender which Agent
shall distribute) promptly upon their becoming available, copies of all
financial statements, reports, notices and information statements sent or
made available generally by the Borrower to its security holders
(including, without limitation, proxy materials) and copies of all other
regular and periodic reports (including, without limitation, Form 8-K)
filed by NUI Corporation with the Securities and Exchange Commission or any
Governmental Authority succeeding to any of its functions, and of all press
releases and other statements made available generally by the Borrower to
the public concerning material developments in the business of the
Borrower;
(vi) promptly after receipt thereof, by the Borrower or the
administrator of any Plan, deliver to the Lenders a copy of any notice from
the PBGC that the PBGC is instituting Termination Proceedings;
(vii) deliver to the Agent within two Business Days after S&P or
Xxxxx'x announces a change in the Borrower's Senior Ratings, or the
withdrawal of any Senior Ratings, notice of such change or withdrawal,
together with a copy of any written notification which Borrower received
from the applicable rating agencies regarding such change or withdrawal of
Senior Ratings;
(viii) promptly and in any event within 30 days after the Borrower or
the administrator of any Plan knows or has reason to know that any
Reportable Event has occurred that is reasonably expected to have a
Material Adverse Effect give notice thereof to the Agent;
(ix) promptly, but not later than five Business Days, after any
officer of the Borrower obtains knowledge of any development or the
occurrence of any event having a Material Adverse Effect or which
constitutes an Event of Default or a Potential Default, give written notice
thereof to the Agent, specifying, in the case of an Event of Default or
35
a Potential Default, the nature and extent thereof and the corrective
action (if any) taken or proposed to be taken with respect thereto;
(x) promptly, deliver to the Agent such other information and data
with documentation and other information required by bank regulatory
authorities under applicable "know your customer" and Anti-Money Laundering
rules and regulations (including, without limitation, the USA PATRIOT Act),
including, without limitation, evidence satisfactory to the Agent of (y)
the listing of Capital Stock of NUI Corporation on the New York Stock
Exchange and (z) NUI Corporation's ownership of all of the outstanding
equity interests of Borrower as from time to time may be reasonably
requested by the Agent;
(xi) promptly, deliver to the Lenders such other information and data
with respect to the Borrower as from time to time may be reasonably
requested by any Lender through the Agent.
Information required to be delivered pursuant to this Section 4.2
shall be deemed to have been delivered to the Lenders when it has been delivered
to the Agent.
4.3 Visitation. The Borrower will keep and maintain complete and
proper books of record and account in accordance with GAAP and a system of
accounting established and administered in accordance with sound business
practice and adequate to permit the preparation of the financial statements
required to be delivered under Section 4.2, and permit the Agent, and, at their
own expense, the Lenders and each Lender's designated employees and agents to
have access, from time to time, upon reasonable notice (except no such notice
shall be required after the occurrence and during the continuance of an Event of
Default) and during normal business hours at any reasonable time, to visit any
of the properties of the Borrower, to examine and make copies of any of its
books of record and account, and such reports and returns as the Borrower may
file with any Governmental Authority and discuss the Borrower's affairs and
accounts with, and be advised about them, by Authorized Officers and the
Borrower's independent accountant.
4.4 Preservation of Existence; Qualification. At its own cost and
expense, the Borrower will continue to engage in business of the same general
type as now conducted by it and will do all things necessary to preserve and
keep in full force and effect its corporate existence and qualification under
the laws of its state of incorporation and each state where, due to the nature
of its activities or the ownership of its properties, qualification to do
business is required except where the failure to be so qualified would not have
a Material Adverse Effect. It is understood and agreed that the consummation of
transactions permitted by Sections 5.5 and 5.6 shall not cause a violation of
this Section 4.4.
4.5 Compliance with Governmental Rules. The Borrower shall comply with
all applicable Governmental Rules (including, but not limited to, Environmental
Laws), except where failure to comply would not have a Material Adverse Effect.
4.6 Payment of Taxes. The Borrower shall promptly pay and discharge
all material taxes, assessments and governmental charges; provided, however,
that for purposes of this Agreement, the Borrower shall not be required to pay
any item the payment of which is being
36
contested on a timely basis in good faith by appropriate and lawful proceedings
diligently conducted and as to which the Borrower shall have set aside on its
books reserves for such claims as are determined to be adequate pursuant to the
accounting procedures employed by the Borrower.
4.7 Insurance. The Borrower will keep and maintain insurance with
financially sound and reputable insurance companies on each of its properties,
in such amounts and against such risks as is customarily maintained by similar
businesses similarly situated and owning, leasing or operating similar
properties. The Borrower may satisfy the requirements of the preceding sentence
with self insurance and deductibles consistent with customary and prudent
industry standards (if adequate reserves are maintained on its books with
respect thereto in accordance with GAAP or cash deposits have been made with
respect to such self insurance based on historical claim rates and in accordance
with prudent industry practice). The Borrower will furnish to the Agent together
with the annual reports delivered pursuant to Subsection 4.2(ii) hereof, a
certificate of an Authorized Officer of the Borrower certifying that such
insurance is in force, provides coverage consistent with the preceding sentence
and complies with the Borrower's obligations under this Section 4.7.
4.8 Maintenance of Properties and Assets.
The Borrower shall maintain, preserve, protect and keep its properties
in good repair, working order and condition (ordinary wear and tear excepted),
maintain and preserve good and marketable title thereto, and make all necessary
and proper repairs, renewals and replacements so that its business carried on in
connection therewith may be properly and advantageously conducted at all times,
except where the failure to maintain, preserve, protect or keep such properties
would not have a Material Adverse Effect.
4.9 Plans and Benefit Arrangement. The Borrower shall, and shall cause
each ERISA Affiliate to, comply with ERISA, the Code and all other applicable
laws which are applicable to Plans, except where the failure to do so, alone or
in conjunction with any other failure to do so, would not have a Material
Adverse Effect.
4.10 [Intentionally Omitted].
4.11 Ownership. The Borrower shall at all times during the term hereof
be a direct 100% wholly owned Subsidiary of NUI Corporation.
ARTICLE V. NEGATIVE COVENANTS.
From the date hereof and thereafter until the Commitments are
terminated and until the Bank Indebtedness (other than indemnity obligations
which are not then due and payable) is paid in full, the Borrower agrees that:
5.1 Dividends, Etc. The Borrower will not declare or make any dividend
payment or other distribution of assets, properties, cash, rights, obligations
or securities on account of any shares of any class of equity interests of the
Borrower, or purchase, redeem, defease or otherwise acquire for value any shares
of any class of equity interests of the Borrower or any warrants, rights or
options to acquire or retire any such shares, now or hereafter outstanding (such
37
declarations, payments, other distributions, purchases, redemptions, or other
acquisitions being herein called "Restricted Payments"), except that the
Borrower may (a) declare and make any dividend payment or other distribution
payable solely in common equity interests of the Borrower, and (b) declare or
pay cash dividends to NUI Corporation and purchase, redeem or otherwise acquire
shares of its equity interests or warrants, rights or options to acquire for
consideration of any such shares, so long as the aggregate of such Restricted
Payments made, paid or declared since the Closing Date in the aggregate would
not exceed the lesser of $35,000,000 or retained earnings of the Borrower on the
date of such Restricted Payment; provided, that (x) prior to or immediately
after giving effect to any such proposed Restricted Payments, no Potential
Default or Event of Default shall have existed or would exist and (y) no such
payment shall violate any Governmental Rule.
5.2 Encumbrances. The Borrower will not create, incur, assume, permit
or suffer to exist any Encumbrance or any other type of preferential
arrangement, upon or with respect to any of its properties or assets, whether
now owned or hereafter acquired, or assign any right to receive income, in each
case to secure or provide for the payment of any Indebtedness of any Person,
other than Permitted Encumbrances.
5.3a Leverage Ratio. At no time shall its ratio of Consolidated Total
Indebtedness to its Consolidated Total Capitalization exceed .70:1.00.
5.3b Interest Coverage Ratio. At no time shall the Borrower permit,
for any period of four consecutive Fiscal Quarters ending on or after December
31, 2003], the ratio of (i) Consolidated EBITDA to (ii) Consolidated Interest
Expense for such period, to be less than 2.25 to 1.00.
5.4 Acquisitions. The Borrower will not acquire (i) the assets of any
Person, other than acquisitions of inventory, materials and equipment in the
ordinary course of business and capital expenditures permitted under Section
5.12, or (ii) any shares of capital stock of, or other equity interest in, any
Person.
5.5 Sales of Assets. The Borrower shall not sell or otherwise transfer
or dispose of, in a single transaction or a series of transactions, all or any
part of its assets (other than dispositions, in the ordinary course, of
inventory, accounts receivable (in respect of the collection thereof) and
obsolete, uneconomic or worn out materials or other assets, or dispositions in
the ordinary course of business in the form of licenses, sublicenses, operating
leases or operating subleases).
5.6 Merger, Dissolution and Liquidation. (i) The Borrower shall not
merge or consolidate with any other Person.
5.7 Regulation T, U and X Compliance. The Borrower shall not use the
proceeds of a Loan to purchase or carry Margin Stock or otherwise act so as to
cause any Lender, in extending credit hereunder, to be in contravention of
Regulations T, U or X.
5.8 ERISA. Except as would not, either individually or in the
aggregate, have a Material Adverse Effect, the Borrower shall not and shall not
permit any ERISA Affiliate to:
38
(i) engage in any "prohibited transaction", as such term is defined in
Section 406 of ERISA and Section 4975 of the Code;
(ii) incur any "accumulated funding deficiency" with respect to a
Plan, as such term is defined in Section 302 of ERISA, whether or not
waived;
(iii) permit a Plan to be terminated in a manner which could result in
liability to the PBGC under Title IV of ERISA or the imposition of a lien
on the property of the Borrower or any ERISA Affiliate pursuant to Section
4068 of ERISA;
(iv) partially or completely withdraw from any Multiemployer Plan,
which withdrawal shall subject the Borrower or any ERISA Affiliate to
multiemployer withdrawal liability pursuant to Section 4201 of ERISA;
(v) permit a Reportable Event to occur with respect to a Plan; or
(vi) allow the conditions to be met for the imposition of a lien under
Section 302(f) of ERISA or Section 412(n) of the Code, or for the provision
of security pursuant to Section 307 of ERISA, with respect to any Plan.
5.9 Restrictive Agreements. The Borrower shall not enter into or
otherwise be bound by any agreement not to pay dividends or make distributions
to NUI Corporation, except for such agreements existing on the date hereof which
have been fully disclosed in writing to Agent and replacements of such
agreements (provided that copies of such replacement agreements are provided to
the Agent and are no more restrictive in any material respect than those
agreements being replaced).
5.10 Business of the Borrower. The Borrower shall not make any
material change in the nature or conduct of its business as carried on at the
date hereof.
5.11 Subsidiaries. The Borrower shall not create, nor permit to exist,
any Subsidiary.
5.12 Limitation on Capital Expenditures. The Borrower shall not make
or commit to make (by way of the acquisition of securities of a Person or
otherwise) any expenditure in respect of the purchase or other acquisition of
fixed or capital assets, except for expenditures, when added to such
expenditures made by NUI Corporation and its other Subsidiaries, not exceeding
during any of its Fiscal Years ending after the Closing Date, the amount of
$75,000,000.
5.13 Limitation on Indebtedness. The Borrower shall not directly or
indirectly, create, incur, assume or suffer to exist any Indebtedness, except
(without duplication):
(a) Indebtedness in respect of the Loans and the other obligations
under this Agreement and the other Loan Documents;
(b) Indebtedness of the Borrower incurred solely in order to finance
the purchase of new fixed or capital assets (including pursuant to capital
leases) in an aggregate principal amount not exceeding $10,000,000 at any
time outstanding;
39
(c) [Intentionally Omitted];
(d) Indebtedness listed on Schedule 5.13 and renewals, refinancings,
extensions and modifications thereof which do not increase the principal
amount thereof (except that in the case of any refinancing of the Medium
Term Notes or the Gas Revenue Bonds, the principal amount of such
refinancing Indebtedness may be increased by the aggregate amount of
interest accrued on, prepayment premiums paid with respect to such
refinanced Indebtedness or financing costs paid with respect to such
refinaning), nor shorten the maturity thereof;
(e) [Intentionally Omitted];
(f) Indebtedness incurred in connection with Hedging Obligations,
provided that such Hedging Obligations shall be in the ordinary course of
business consistent with past practices to hedge or mitigate risks to which
the Borrower is exposed in the conduct of its business or the management of
its liabilities and not for speculative purposes;
(g) [Intentionally Omitted];
(h) [Intentionally Omitted];
(i) [Intentionally Omitted];
(j) [Intentionally Omitted];
(k) [Intentionally Omitted]; and
(l) Indebtedness with respect to standby letters of credit issued by a
bank for the benefit of the Borrower in an aggregate face amount not to
exceed $10,000,000 at any time outstanding.
5.14 Limitation on Contingent Obligations. The Borrower shall not
create, incur, assume or suffer to exist any Guarantee.
5.15 [Intentionally Omitted].
5.16 Limitation on Investments, Loans and Advances. The Borrower shall
not purchase, hold or acquire beneficially any stock, other securities or
evidences of Indebtedness of, make or permit to exist any loans or advances to,
or make or permit to exist any investment or acquire any interest whatsoever in,
any other Person, except:
(a) extensions of trade credit to customers in the ordinary course of
business and consistent with past practice;
(b) Permitted Investments;
40
(c) loans and advances to employees of the Borrower for travel,
entertainment and relocation expenses in the ordinary course of business
and consistent with past practice;
(d) [Intentionally Omitted];
(e) [Intentionally Omitted];
(f) contributions by NUI Corporation to the Borrower to repay the
intercompany indebtedness owing by the Borrower to NUI Corporation, which
shall be paid in full on the Closing Date.
(g) securities acquired in connection with the bankruptcy of any
supplier or customer in the ordinary course of business and consistent with
past practices or in connection with the settlement of delinquent accounts
of any such supplier or customer.
5.17 Limitation on Optional Payments and Modifications of Debt
Instruments. The Borrower shall not make any optional payment or prepayment on
or redemption, defeasance or purchase of any Indebtedness (other than
Indebtedness under this Agreement, Indebtedness to the extent being refinanced
in accordance with Section 5.13(d)), or amend, modify or change, or consent or
agree to any amendment, modification or change to any of the terms relating to
the payment or prepayment of principal of or interest on, any such Indebtedness,
other than any amendment, modification or change which would extend the maturity
or reduce the amount of any payment of principal thereof or which would reduce
the rate or extend the date for payment of interest thereon.
5.18 Transactions with Affiliates. The Borrower shall not enter into
any transaction, including, without limitation, any purchase, sale, lease or
exchange of property or the rendering of any service, with any Affiliate unless
such transaction (a) is permitted under this Agreement or is in the ordinary
course of the Borrower's business, consistent with past practice, and (b) is
upon fair and reasonable terms no less favorable to the Borrower than it would
obtain in a comparable arm's length transaction with a Person which is not an
Affiliate, it being understood that none of (i) transactions between NUI
Corporation and its Subsidiaries pertaining to administrative services, (ii) the
repayment of the intercompany receivables owing from NUI Corporation to the
Borrower, (iii) the termination of that certain Agency Services Agreement
between NUI Energy Brokers and NUI Utilities or (iv) the movement of employees
from NUI Corporation to the Borrower, in each case provided at cost, shall not
be deemed a breach of this Section 5.18.
5.19 Sale and Leaseback. The Borrower shall not enter into any
arrangement, directly or indirectly, with any Person providing for the leasing
by the Borrower of real or personal property, whether now owned or herein after
acquired, which has been or is to be sold or transferred by the Borrower to such
Person.
ARTICLE VI. CONDITIONS PRECEDENT TO ALL EXTENSIONS OF CREDIT
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6.1 All Extensions of Credit. The obligation of the Lenders to make
any extension of credit (including, without limitation, its initial extension of
credit) is subject to the satisfaction of each of the following conditions
precedent:
6.1a No Default. At the time of and immediately after such extension
of credit, no Potential Default or Event of Default shall exist.
6.1b Representations Correct. The representations and warranties
contained in Article III hereof shall be correct in all material respects (i)
when made and (ii) at the time of each extension of credit except for such
representations and warranties which relate solely to an earlier date or time
(in which case such representations and warranties shall have been true and
correct in all material respects as of such date or time, as the case may be).
6.1c Extension of Credit Requirements. The Borrower shall have
complied with the requirements of Section 2.1 or Section 2.2, as appropriate,
with respect to the requested extension of credit.
Each request for an extension of credit shall constitute, as at the
time made, a representation and warranty by the Borrower that the matters set
forth in Sections 6.1a and 6.1b above are true and correct.
6.2 Conditions Precedent to the Initial Extensions of Credit Under the
Commitments. The effectiveness of this Agreement and the obligation of the
Lenders to make the initial extensions of credit are subject to the satisfaction
of each of the following conditions precedent in addition to the applicable
conditions precedent set forth in Section 6.1 above:
(i) Receipt by the Agent on behalf of each Lender of a counterpart
original of this Agreement executed by the other Lenders and the Borrower,
as applicable.
(ii) Receipt by the Agent on behalf of each requesting Lender of a
promissory note pursuant to Section 2.1c.(e), made payable to such Lender
in the amount of such Lender's Commitment and otherwise properly completed
and executed by the Borrower.
(iii) [Intentionally Omitted].
(iv) [Intentionally Omitted].
(v) Receipt by the Agent of a certified copy (certified by the
appropriate governmental official) of the Borrower's Certificate of
Incorporation which certification is dated not more than 30 days prior to
the Closing.
(vi) Receipt by the Agent of a certificate, duly certified as of the
date of the Closing by the secretary or assistant secretary of the Borrower
as to (A) the By-Laws of the Borrower in effect as of the Closing, (B) the
resolutions of the Borrower's Board of Directors authorizing the borrowings
hereunder and the execution and delivery of this Agreement and all
documents supplemental hereto, and (C) the names of the officers of the
Borrower authorized to sign this Agreement and the other Loan Documents and
all supplemental documentation, and which contains a true signature of each
such officer.
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(vii) Receipt by the Agent of a good standing certificate for the
Borrower from the Secretary of State of the State of New Jersey dated not
more than 30 days prior to the date of Closing.
(viii) Receipt by the Agent of the certificate of the Borrower
required pursuant to Section 4.7 of this Agreement and a solvency
certificate in the form of Exhibit I hereto.
(ix) Receipt by the Agent of written disbursement instructions
addressed to the Agent and executed by an Authorized Officer of the
Borrower relating to the initial extensions of credit.
(x) Receipt by the Agent on behalf of each Lender of a signed
favorable opinion of (a) Xxxxx Xxx Xxxx, general counsel to the Borrower
and (b) White & Case LLP, special counsel for the Borrower, in each case,
dated as of the Closing Date and in form and substance reasonably
satisfactory to Agent and its counsel.
(xi) The representations and warranties of the Borrower contained in
Article III and in the other Loan Documents executed and delivered by the
Borrower in connection with the Closing shall be true and correct in all
material respects on and as of the Closing Date with the same effect as
though such representations and warranties had been made on and as of such
date (except representations and warranties which relate solely to an
earlier date or time, which representations and warranties shall be true
and correct on and as of the specific date or times referred to therein),
and the Borrower shall have performed, observed and complied with all
covenants and conditions hereof and contained in the other Loan Documents;
no Event of Default or Potential Default under this Agreement shall have
occurred and be continuing or shall exist; except as disclosed in NUI
Corporation's Form 10-K filed on December 31, 2002 , Form 10-Qs filed on
February 14, 2003, May 15, 2003, and August 14, 2003 and Current Reports on
Form 8-K filed on July 22, 2003, July 31, 2002, September 26, 2003, October
14, 2003 and November 19, 2003 or the Confidential Information Memorandum,
nothing has occurred that has had a Material Adverse Effect; and there
shall be delivered to the Agent, for the benefit of each Lender and the
Agent, a certificate of the Borrower, dated the Closing Date and signed by
an Authorized Officer of the Borrower, to each such effect.
(xii) Receipt by the Agent on its own behalf and on behalf of the
Lenders of all Fees due and payable on or prior to the Closing Date and all
invoiced reimbursable expenses incurred on or prior to the Closing Date.
(xiii) The NUI Corporation Credit Agreement shall be in full force and
effect, and all amounts owing to the Lenders under the "Existing Credit
Agreement" and "Existing Senior Notes" as defined in the NUI Corporation
Credit Agreement shall have been, or shall be concurrently with the making
of the first loans thereunder, repaid in full and all commitments under
such "Existing Credit Agreement" and "Existing Senior Notes" of NUI
Corporation shall have been terminated.
(xiv) [Intentionally Omitted].
43
(xv) All amounts owing to the lenders under the Existing Credit
Agreements shall have been, or shall be concurrently with the making of the
first loans hereunder, repaid in full, and the Existing Credit Agreements
shall terminate and be of no further force and effect upon such repayment;
in each case pursuant to such payout letters and other documents as the
Agent may require, each of which shall be in form and substance reasonably
satisfactory to the Agent.
(xvi) The Agent shall have received documentation and other
information required by bank regulatory authorities under applicable "know
your customer" and Anti-Money Laundering rules and regulations, including,
without limitation, the USA PATRIOT Act. Such documentation shall include,
without limitation, evidence satisfactory to the Agent of (y) the listing
of Capital Stock of NUI Corporation on the New York Stock Exchange and (z)
NUI Corporation's ownership of all of the outstanding equity interests of
Borrower.
(xvii) [Intentionally Omitted].
(xviii) [Intentionally Omitted].
(xix) The Agent and the Lenders shall have received such other
documents as the Administrative Agent, its counsel or any Lender may
reasonably request.
ARTICLE VII. DEFAULTS
Each of the events or occurrences described in Sections 7.1 to and
including 7.11 below shall constitute an "Event of Default" hereunder.
7.1 Payment Default. Default in the payment of (i) interest on any
Loan, any other Bank Indebtedness, the Commitment Fee, or any other amount due
hereunder, and continuance of any such nonpayment default for five days or (ii)
principal of any Loan when due and payable.
7.2 Nonpayment of Other Indebtedness. The Borrower shall fail to pay
(beyond the applicable grace period, if any) any Indebtedness of the Borrower
other than the Bank Indebtedness, in an aggregate amount of $10,000,000 or more,
as and when the same shall become due, or the occurrence of any default under
any agreement or instrument under or pursuant to which such Indebtedness is
incurred or issued and continuance of such default beyond the period of grace,
if any, allowed with respect thereto, if such default permits or causes the
acceleration of such Indebtedness or the termination of any commitment to lend
with respect thereto.
7.3 Insolvency.
7.3a Involuntary Proceedings. A proceeding shall have been instituted
in a court having jurisdiction seeking a decree or order for relief in respect
of the Borrower in an involuntary case under the Federal bankruptcy laws, or any
other similar applicable Federal or state law, now or hereafter in effect, or
for the appointment of a receiver, custodian, liquidator, trustee, sequestrator
or similar official for the Borrower or for a substantial part of its property
or assets, or for the winding up or liquidation of its affairs, and the same
shall remain undismissed
44
or unstayed and in effect for a period of 60 days or an order or decree
approving or ordering any of the foregoing shall be entered.
7.3b Voluntary Proceedings. The Borrower shall institute proceedings
to be adjudicated a voluntary bankrupt, or shall consent to the filing of a
bankruptcy proceeding against it, or shall file a petition or answer or consent
seeking reorganization under the Federal bankruptcy laws, or any other similar
applicable Federal or state law now or hereinafter in effect, or shall consent
to the filing of any such petition or shall consent to the appointment of a
receiver, liquidator, custodian, trustee, sequestrator or similar official for
the Borrower or for a substantial part of its property, or shall make an
assignment for the benefit of creditors, or shall become unable, admit in
writing its inability, or fail generally, to pay its debts generally as they
become due, or corporate action shall be taken by the Borrower in furtherance of
any of the aforesaid purposes.
7.4 [Intentionally Omitted].
7.5 Failure to Comply with Covenants.
7.5a Failure to Comply with Certain Article IV Covenants and Article V
Covenants. The Borrower shall default in the observance or performance of any
covenant, condition or agreement contained in Xxxxxxx 0.0, Xxxxxxx 0.0(xx),
(xx), (xxx), (xxxx) and (ix), Section 4.4, Section 4.11 or of any covenant
contained in Article V.
7.5b Failure to Comply with Other Covenants. The Borrower shall
default in the due performance or observance of any other covenant, condition or
provision set forth herein (other than those specified in Sections 7.1, 7.2 or
7.5a above) and such default shall not be remedied with respect to any other
such default for a period of 30 days after such default is known to any
executive officer of the Borrower or notice thereof has been given to the
Borrower by the Agent or any Lender (such grace period to be applicable only in
the event such default can be remedied by corrective action of the Borrower as
determined by the Agent in its sole discretion).
7.6 Misrepresentation. Any representation or warranty made by the
Borrower herein proves to have been untrue in any material respect as of the
date when made, or any certificate or other document furnished by the Borrower
to the Agent or any Lender pursuant to the provisions hereof proves to have been
untrue in any material respect on the date as of which the facts set forth
therein are stated or certified.
7.7 Adverse Judgments, Etc. (i) Any one or more orders, judgments,
decrees, awards, writs of execution or attachment, restraining notices or of any
similar process has been levied, issued, entered or filed against the Borrower
or any of its properties, in an aggregate amount of $2,500,000 or more in excess
of any third-party insurance protecting against such liability and failure of
the Borrower to vacate, pay, bond, stay or contest in good faith (by appropriate
and lawful proceedings diligently conducted and as to which the Borrower shall
have set aside on its books reserves for such claims as are determined to be
adequate in accordance with GAAP) such orders, judgments, decrees, awards, writs
of execution or attachment, restraining notices or other process within a period
of 30 days (or, in the case of contesting the
45
same, the failure of the Borrower to diligently conduct such contest
thereafter); or (ii) any one or more fines, penalties, injunctions, charges,
orders, judgments, decrees, awards, writs of execution or attachment,
restraining notices or any similar action or process has been levied, issued,
entered or filed against the Borrower or any of its properties, in connection
with the Focused Audit or any actual or purported conflict with or violation or
breach by the Borrower of any Governmental Rule (or the Borrower enters into any
agreement or makes any payment in connection with any vacating, stay, settlement
or dismissal of any such claim or charge (whether or not such payment by its
terms constitutes an admission of liability)), in an aggregate amount of
$25,000,000 or more (if monetary) or which could reasonably be expected to cause
a Material Adverse Effect in the reasonable judgment of the Required Lenders (if
non-monetary), and failure of the Borrower to vacate, stay or contest in good
faith (by appropriate and lawful proceedings diligently conducted and as to
which the Borrower shall have set aside on its books reserves for such claims as
are determined to be adequate in accordance with GAAP) such fines, penalties,
charges, orders, judgments, decrees, awards, writs of execution or attachment,
restraining notices or other action or process within a period of 30 days (or,
in the case of contesting the same, the failure of the Borrower to diligently
conduct such contest thereafter).
7.8 Invalidity or Unenforceability. This Agreement or any other Loan
Document ceases to be valid and binding on the Borrower or is declared null and
void, or the validity or enforceability thereof is contested by the Borrower or
the Borrower denies it has any or further liability under this Agreement or
under the other Loan Documents to which it is a party.
7.9 ERISA. (i) A trustee shall be appointed by a court of competent
jurisdiction to administer any Plan of the Borrower or any ERISA Affiliate; (ii)
the PBGC shall terminate any Plan of the Borrower or any ERISA Affiliate or
appoint a trustee to administer any such Plan; or (iii) the Borrower or any
ERISA Affiliate shall incur any liability to the PBGC in connection with any
Plan, which, in any such case, likely would have a Material Adverse Effect.
7.10 Change of Control; Change of Beneficial Ownership or Board. Any
Person or group of Persons (within the meaning of Sections 13 or 14 of the
Securities and Exchange Act of 1934), other than the then current officers or
directors of the Borrower or an underwriter which obtains such ownership as a
result of effecting a firm committed underwriting of a secondary offering of the
Borrower's voting stock on behalf of such officers or directors, shall have
acquired beneficial ownership of (within the meaning of Rule 13d-3 and 13d-5
promulgated by the Securities and Exchange Commission under said Act)
twenty-five percent (25%) or more of the voting stock of the Borrower on a fully
diluted basis with respect to which such Persons are entitled to vote on the
election of directors or, during any period of up to 24 consecutive months,
Persons who at the beginning of such 24-month period were directors of the
Borrower (or were appointed, nominated or elected by such Persons) cease for any
reason to constitute a majority of the directors of the Borrowers, then in
office.
7.11 Regulatory Decisions. Any Governmental Authority shall have
issued a final decision that could reasonably be likely to result in a Material
Adverse Effect.
7.12 Consequences of an Event of Default. If one or more of the Events
of Default occur then (a) if such Event of Default is set forth in Sections 7.3
with respect to the Borrower, the Commitments shall automatically terminate and
the Loans then outstanding and all other
46
amounts owing under this Agreement shall become immediately due and payable,
without necessity of demand, presentation, protest, notice of dishonor or notice
of default or (b) if such Event of Default is set forth in any of this Article
VII, other than Sections 7.3 with respect to the Borrower, then the Agent, at
the request of the Required Lenders, and upon notice to the Borrower, shall
declare the Borrower in default hereunder, and upon such declaration, shall, at
the request of the Required Lenders, terminate the Commitments and/or declare
the Loans then outstanding (together with accrued interest thereon) and all
other amounts owing under this Agreement immediately due and payable, without
necessity of any further demand, presentation, protest, notice of dishonor or
further notice of default, whereupon the same shall be immediately due and
payable.
7.13 Remedies Upon Default. Upon the termination of the Commitments
and acceleration of the Loans following the occurrence of an Event of Default,
the Lenders shall, unless such termination and acceleration subsequently have
been rescinded, have the full panoply of rights and remedies granted to them
under this Agreement and all those rights and remedies granted by law to
creditors, and the Agent, at the direction of the Required Lenders, shall
proceed to protect and enforce the Lenders' rights by an action at law, suit in
equity or other appropriate proceeding, whether for the specific performance of
any agreement contained herein or in any of the other Loan Documents, or for an
injunction against a violation of any of the terms hereof or thereof, or in aid
of the exercise of any power granted hereby or thereby or by law. No right,
power or remedy conferred by this Agreement or by any other Loan Document, upon
the Agent or the Lenders shall be exclusive of any other right, power or remedy
referred to herein or therein or now or hereafter available at law, in equity,
by statute or otherwise. No exercise of any one right or remedy shall be deemed
a waiver of other rights or remedies. The rights and remedies of the Agent and
the Lenders specified herein are for the sole and exclusive benefit, use and
protection of the Agent and the Lenders, and the Agent and the Lenders shall be
entitled, but shall have no duty or obligation, to exercise or to refrain from
exercising any right or remedy reserved to the Agent or the Lenders hereunder.
ARTICLE VIII. AGREEMENT AMONG LENDERS.
8.1 Appointment and Grant of Authority. Each of the Lenders hereby
appoints CSFB and CSFB hereby agrees to act as, the Agent under this Agreement,
and the other Loan Documents. As such Agent, CSFB shall have and may exercise
such powers under this Agreement and the other Loan Documents as are
specifically delegated to the Agent, by the terms hereto or thereof, together
with such other powers as are incidental thereto. Without limiting the
foregoing, the Agent, on behalf of the Lenders, is authorized to execute all of
the Loan Documents (other than this Agreement) and to accept all of the Loan
Documents and all other agreements, documents or instruments reasonably required
to carry out the intent of the parties to this Agreement.
8.2 Delegation of Duties. The Agent may perform any of its duties
hereunder by or through agents or employees (provided such delegation does not
constitute a relinquishment of duties as the Agent hereunder) and, subject to
Sections 8.7 and 9.2 hereof, shall be entitled to engage and pay for the advice
or services of any attorneys, accountants, or other experts concerning all
matters pertaining to duties hereunder and to rely upon any advice so obtained.
47
8.3 Reliance by Agent on Lenders for Funding. Unless the Agent shall
have received notice from a Lender prior to any Borrowing Date that such Lender
will not make available to the Agent such Lender's portion of net disbursements
of Loans, the Agent may assume that such Lender has made such portion available
to the Agent and the Agent may, in reliance upon such assumption, make Loans to
the Borrower. If and to the extent that such Lender has not made such portion
available to the Agent on or prior to any Borrowing Date, such Lender and the
Borrower severally agree to repay to the Agent immediately upon demand, in
immediately available funds, such unpaid amount, together with interest thereon
for each day from the applicable Borrowing Date until such amount is repaid to
the Agent, at (i) in the case of the Borrower, at the rate of interest then in
effect for such Loan and (ii) in the case of such Lender, at the Federal Funds
Effective Rate for the first three days and the Adjusted Base Rate thereafter.
If such Lender shall repay to the Agent such corresponding amount, such amount
shall constitute a Loan made by such Lender for purposes of this Agreement. The
failure by any Lender to pay its portion of a Loan made by the Agent shall not
relieve any other Lender of the obligation to pay its portion of net
disbursements of Loans on any Borrowing Date, but no Lender shall be responsible
for the failure of any other Lender to make its net share of Loans to be made by
such other Lender on such Borrowing Date.
8.4 Non-Reliance on Agent. Each Lender agrees that it has,
independently and without reliance on the Agent, based on such documents and
information as it has deemed appropriate, made its own credit analysis and
evaluation of the Borrower and its operations and decision to enter into this
Agreement and that it will, independently and without reliance upon the Agent,
and based on such documents and information as it shall deem appropriate at the
time, continue to make its own analysis and decisions in taking or not taking
action under this Agreement. Except as otherwise provided herein, the Agent
shall have no duty to keep the Lenders informed as to the performance or
observance by the Borrower of this Agreement or any other document or instrument
referred to or provided for herein or to inspect the properties or books of the
Borrower. The Agent, in the absence of gross negligence or willful misconduct,
shall not be liable to any Lender for its failure to relay or furnish to the
Lender any information.
8.5 Responsibility of Agent and Other Matters.
8.5a Ministerial Nature of Duties. As among the Lenders and the Agent,
the Agent shall have no duties or responsibilities except those expressly set
forth in this Agreement or in the other Loan Documents, and those duties and
responsibilities shall be subject to the limitations and qualifications set
forth in this Article VIII. The duties of the Agent shall be ministerial and
administrative in nature.
8.5b Limitation of Liability. As among the Lenders and the Agent,
neither the Agent nor any of its directors, officers, employees or agents shall
be liable for any action taken or omitted (whether or not such action taken or
omitted is within or without the Agent's responsibilities and duties expressly
set forth in this Agreement) under or in connection with this Agreement or any
other instrument or document in connection herewith except for gross negligence
or willful misconduct. Without limiting the foregoing, neither the Agent nor any
of its directors, officers or employees shall be responsible for, or have any
duty to examine (i) the genuineness, execution, validity, effectiveness,
enforceability, value or sufficiency of (A) this Agreement or any of the other
Loan Documents or (B) any other document or instrument
48
furnished pursuant to or in connection with this Agreement, (ii) the
collectibility of any amounts owed by the Borrower to the Lenders, (iii) the
truthfulness of any recitals, statements, representations or warranties made to
the Agent or the Lenders in connection with this Agreement, (iv) any failure of
any party to this Agreement to receive any communication sent, including any
telegram, teletype, facsimile transmission or telephone message or any writing,
application, notice, report, statement, certificate, resolution, request, order,
consent letter or other instrument or paper or communication entrusted to the
mails or to a delivery service, or (v) the assets, liabilities, financial
condition, results of operations, business or prospects, or creditworthiness of
the Borrower.
8.5c Reliance. The Agent shall be entitled to act, and shall be fully
protected in acting upon, any telegram, teletype, facsimile transmission or any
writing, application, notice, report, statement, certificate, resolution,
request, order, consent, letter or other instrument, paper or communication
believed by the Agent in good faith to be genuine and correct and to have been
signed or sent or made by a proper Person. The Agent may consult counsel and
shall be entitled to act, and shall be fully protected in taking or refraining
from taking any action in good faith, in accordance with advice given by
counsel. The Agent may employ agents and attorneys-in-fact and shall not be
liable for the default or misconduct of any such agents or attorneys-in-fact
selected by the Agent with reasonable care. The Agent shall not be bound to
ascertain or inquire as to the performance or observance of any of the terms,
provisions or conditions of this Agreement or any of the other Loan Documents on
the part of the Borrower or any other party thereto.
8.6 Actions in Discretion of Agent; Instructions from the Lenders. The
Agent agrees, upon the written request of the Required Lenders, to take or
refrain from taking any action of the type specified as being within the Agent's
rights, powers or discretion herein or under any Loan Documents, provided that
the Agent shall not be required to take any action which exposes the Agent to
personal liability or which is contrary to this Agreement or any other Loan
Document or applicable law. In the absence of a request by the Required Lenders,
the Agent shall have authority but is under no duty, in its sole discretion, to
take or not to take any such action, unless this Agreement specifically requires
the consent of the Required Lenders or all of the Lenders. Any action taken or
failure to act pursuant to such instructions or discretion shall be binding on
the Lenders, subject to Section 8.5b hereof. Subject to the provisions of
Section 8.5b, no Lender shall have any right of action whatsoever against the
Agent as a result of the Agent acting or refraining from acting hereunder in
accordance with the instructions of the Required Lenders.
8.7 Indemnification. To the extent the Borrower does not reimburse and
save harmless the Agent according to the terms hereof for and from all costs,
expenses and disbursements in connection herewith, such costs, expenses and
disbursements shall be borne by the Lenders ratably in accordance with their
respective Term Loans, the Delayed Draw Term Loans Commitments (if then
outstanding) and Revolving Credit Commitments (or after termination thereof,
Revolving Credit Loans). Each Lender hereby agrees on such basis (i) to
reimburse the Agent for such Lender's pro rata share of all such reasonable
costs, expenses and disbursements on request and (ii) to the extent of each such
Lender's pro rata share, to indemnify and save harmless the Agent against and
from any and all losses, obligations, penalties, actions, judgments and suits
and other costs, expenses and disbursements of any kind or nature
49
whatsoever which may be imposed on, incurred by or asserted against the Agent,
other than as a consequence of gross negligence or willful misconduct on the
part of the Agent, arising out of or in connection with (i) this Agreement, the
other Loan Documents or any other agreement, instrument or document executed or
delivered in connection herewith or therewith, or (ii) any action taken (or not
taken) at the request of the Required Lenders or all of the Lenders hereunder,
as the case may be, including without limitation the reasonable costs, expenses
and disbursements in connection with defending themselves against any claim or
liability, or answering any subpoena or other process related to the exercise or
performance of any of their powers or duties under this Agreement, the other
Loan Documents, or any of the other agreements, instruments or documents
executed or delivered in connection herewith or the taking or refraining from
any action under or in connection with any of the foregoing.
8.8 Agent's Rights as a Lender. With respect to the Commitments of the
Agent as a Lender hereunder, any Loans of the Agent under this Agreement or the
other Loan Documents, and any other amounts due to the Agent under this
Agreement, the Agent shall have the same rights and powers, duties and
obligations under this Agreement, the other Loan Documents or other agreement,
instrument or document as any Lender and may exercise such rights and powers and
shall perform such duties and fulfill such obligations as though it were not the
Agent. The Agent may accept deposits from, lend money to, and generally engage,
and continue to engage, in any kind of business with the Borrower as if it were
not the Agent.
8.9 Payment to Lenders. Except as otherwise set forth in Section 8.3
hereof, promptly after receipt from the Borrower of any principal repayment of
the Loans, interest due on the Loans and any Commitment Fees owing to the
Lenders or other amounts due under any of the Loan Documents (except for such
amounts which are payable for the sole account of any Lender or the Agent), the
Agent shall distribute to each Lender that Lender's share of the funds so
received.
8.10 Pro Rata Sharing. Any sums obtained from the Borrower by any
Lender by reason of the exercise of its rights of set-off, banker's lien or in
collection shall be shared (net of costs) pro rata among the Lenders on the
basis of the principal amount of Loans. Nothing in this Section 8.10 shall be
deemed to require the sharing among the Lenders of collections specifically
relating to, or of the proceeds of any collateral securing, any other
Indebtedness of the Borrower to any Lender.
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8.11 Successor Agent.
8.11a Resignation of Agent. The Agent may resign as Agent hereunder by
giving 30 days' prior written notice to the Lenders and the Borrower. If such
notice shall be given, the Lenders shall appoint a successor agent for the
Lenders, during such 30 day period, which successor agent shall be reasonably
satisfactory to the Borrower, to serve as agent hereunder and under the several
Loan Documents. If at the end of such 30 day period, the Lenders have not
appointed such a successor, the Agent shall use reasonable commercial efforts to
procure a successor reasonably satisfactory to the Lenders and the Borrower, to
serve as agent for the Lenders hereunder and under the several Loan Documents.
Any such successor agent shall succeed to the rights, powers and duties of the
Agent.
8.11b Rights of the Former Agent. Upon the appointment of such
successor agent or upon the expiration of such 30 day period (or any longer
period to which the Agent has agreed), the former Agent's rights, powers and
duties as Agent shall be terminated, without any other or further act or deed on
the part of such former Agent or any of the parties to this Agreement. After any
retiring Agent's resignation hereunder as Agent hereunder, the provisions of
this Article VIII shall inure to the benefit of such retiring Agent as to any
actions taken or omitted to be taken by it while it was Agent under this
Agreement.
8.12 Notice of Default. The Agent shall not be deemed to have
knowledge or notice of the occurrence of an Event of Default unless the Agent
has received written notice from a Lender or the Borrower referring to this
Agreement, describing such Event of Default and stating that such notice is a
"notice of default".
8.13 Notices. The Agent shall promptly send to each Lender notice of
all information or notices received from the Borrower pursuant to the provisions
of this Agreement or the other Loan Documents promptly upon receipt thereof.
8.14 Holders of Loans. The Agent may deem and treat any payee of any
promissory note as the owner thereof for all purposes hereof unless and until
written notice of the assignment or transfer thereof shall have been filed with
the Agent. Any request, authority or consent of any person who at the time of
making such request or giving such authority or consent is the holder of any
promissory note shall be conclusive and binding on any subsequent holder,
transferee or assignee of such promissory note or of any promissory note or
notes issued in exchange therefor.
8.15 Calculations. In the absence of gross negligence or willful
misconduct, the Agent shall not be liable for any error in computing the amount
payable to any Lender whether in respect of the Loans, Fees or any other amounts
due to the Lenders under this Agreement. In the event an error in computing any
amount payable to any Lender is made, the Agent, the Borrower and each affected
Person shall, forthwith upon discovery of such error, make such adjustments as
shall be required to correct such error, and any compensation therefor will be
calculated pursuant to the rules on Interbank Compensation.
8.16 Beneficiaries. Except as expressly provided herein, the
provisions of this Article VIII are solely for the benefit of the Agent and the
Lenders, and the Borrower shall not have any rights to rely on or enforce any of
the provisions hereof. In performing its functions and duties
51
under this Agreement, the Agent shall act solely as agent of the Lenders and
does not assume and shall not be deemed to have assumed any obligation toward or
relationship of agency or trust with or for the Borrower.
ARTICLE IX. GENERAL PROVISIONS
9.1 Amendments and Waivers. Subject to the remaining provisions of
this Section 9.1, the Agent, the Lenders and the Borrower may, from time to
time, enter into amendments or modifications to and of this Agreement or the
other Loan Documents and the Lenders or the Required Lenders, as the case may
be, may, from time to time, waive compliance with a provision thereof. No such
amendment, modification or waiver shall be effective unless it is in writing and
is signed by the Required Lenders (or the Agent with the written consent of the
Required Lenders), and then such amendment, modification or waiver shall be
effective only for the specific instance and for the specific purpose for which
it is given; provided, however, that no such amendment, modification or waiver
shall (i) increase the Revolving Credit Commitment or the Delayed Draw Term Loan
Commitment of any Lender, or extend the date of termination thereof or subject
any Lender to any additional obligations hereunder, (ii) decrease the aggregate
or individual unpaid principal amount of Loans, or forgive the payment of the
principal or interest (other than post-default interest to the extent accruing
at a rate in excess of the Base Rate Option or Euro-Rate Option) payable on
Loans, of any Lender or postpone any date fixed for the payment thereof, (iii)
decrease the interest rate relating to any Loan (other than the post-default
interest rate to the extent in excess of the Base Rate Option or Euro-Rate
Option) or (iv) decrease, or forgive the payment of, any fee payable to any
Lender or postpone any date fixed for the payment thereof, in each case without
the consent of each Lender affected thereby; provided further, however, that no
amendment, modification or waiver, unless in writing and signed by all of the
Lenders (or the Agent with the written consent of all of the Lenders), shall do
any of the following:
(A) amend the definition of the term "Required Lenders";
(B) release the security interest in all or substantially all of the
collateral provided in connection with a Collateralization; or
(C) amend or waive the provisions of this Section 9.1 or the proviso
in Section 9.5;
provided, further that (i) no such amendment, modification or waiver that by its
terms adversely affects the rights of the Lenders in a manner different from its
effect on the other class of Lenders shall become effective unless approved by a
majority in interest of each class of Lenders so adversely affected, (ii) no
such amendment, modification or waiver shall amend, modify or otherwise affect
the rights or duties of the Swingline Lender without the prior written consent
of the Swingline Lender and (iii) no such amendment, modification or waiver
shall amend, modify or otherwise affect the rights or duties of the Agent
hereunder or under any other Loan Document without the prior written consent of
the Agent. Any such amendment, modification or waiver shall apply equally to the
Borrower and each of the Lenders and shall be binding upon the Borrower, the
Lenders, the Agent and all successors and assignees thereof. In the case of any
waiver, the Borrower, the Lenders and the Agent shall be restored to their
former positions and
52
rights, and any Event of Default waived shall be deemed to be cured and not
continuing, but no such waiver shall extend to any subsequent or other Event of
Default, or impair any right consequent thereon.
9.2 Expenses. The Borrower shall pay:
(i) all reasonable costs and expenses of the Agent (including without
limitation the reasonable fees and disbursements of the Agent's special
counsel, Xxxxx Xxxxxxxxxx LLP and any reasonable accounting, consulting,
brokerage or other similar professional fees or expenses, and any
reasonable fees or expenses associated with travel or other costs relating
to any appraisals or examinations conducted in connection with the Loans)
incurred in connection with the preparation, negotiation, execution and
delivery of this Agreement and the other Loan Documents and any and all
other documents and instruments prepared in connection herewith, including
but not limited to all amendments, extensions, modifications, replacements,
waivers, consents and other documents and instruments prepared or entered
into from time to time;
(ii) all costs and expenses of the Agent and the Lenders (including
without limitation the fees and disbursements of the Agent's and the
Lenders' counsels, which may be in house counsel) in connection with (A)
the enforcement of this Agreement and the other Loan Documents (or the
preservation of any rights thereunder) arising pursuant to a breach by the
Borrower of any of the terms, conditions, representations, warranties or
covenants of any Loan Document or otherwise arising after the occurrence of
an Event of Default, and (B) defending or prosecuting any actions, suits or
proceedings relating to any of the Loan Documents.
All of such costs and expenses shall be payable by the Borrower to the Lenders
or the Agent, as the case may be, upon demand or as otherwise agreed upon by the
Lenders or the Agent and the Borrower, and shall constitute Bank Indebtedness
under this Agreement. The Borrower further agrees to pay, and save the Agent and
the Lenders harmless from any and all liability for, any stamp or other taxes
which may be payable with respect to the execution or delivery of this
Agreement. The Borrower's obligation to pay such costs and expenses shall
survive the termination of this Agreement and the repayment of the Bank
Indebtedness.
9.3 Notices. All notices, requests and demands to or upon the
respective parties hereto to be effective shall be in writing (including by
telecopy), and, unless otherwise expressly provided herein, shall be deemed to
have been duly given or made on the earlier of (i) when delivered, or (ii) three
Business Days after being deposited in the mail, postage prepaid, or, in the
case of telecopy notice, when received, addressed as follows in the case of the
Borrower and the Agent, and as set forth in an administrative questionnaire
delivered to the Agent in the case of the Lenders, or to such other address as
may be hereafter notified by the respective parties hereto:
Borrower: NUI Utilities, Inc.
000 Xxxxx 000-000
P. 0. Xxx 000
Xxxxxxxxxx, XX 00000
53
Attention: Treasurer
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
The Agent: Credit Suisse First Boston
00 Xxxxxxx Xxxxxx
XXX-0
Xxx Xxxx, Xxx Xxxx 00000
Attention: Agency Department Manager
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
Electronic mail and intranet websites may be used only to distribute
routine information such as financial statements and other information as
provided in Section 4.2, and to distribute Loan Documents for execution by the
parties thereto, and may not be used for any other purpose, except as agreed to
by the Agent.
9.4 Tax Withholding.
(a) Any and all payments by or on account of any obligation of the
Borrower hereunder shall be made free and clear of and without deduction for any
Indemnified Taxes or Other Taxes; provided that if the Borrower shall be
required to deduct any Indemnified Taxes or Other Taxes from such payments, then
(i) the sum payable shall be increased as necessary so that after making all
required deductions (including deductions applicable to additional sums payable
under this Section 9.4) the Agent or any Lender receives an amount equal to the
sum it would have received had no such deductions been made, (ii) the Borrower
shall make such deductions and (iii) the Borrower shall pay the full amount
deducted to the relevant Governmental Authority in accordance with applicable
law.
(b) In addition, the Borrower shall pay any Other Taxes to the
relevant Governmental Authority in accordance with applicable law.
(c) The Borrower shall indemnify the Agent and each Lender within 10
days after written demand therefor, for the full amount of any Indemnified Taxes
or Other Taxes paid by the Agent or such Lender, as the case may be, on or with
respect to any payment by or on account of any obligation of the Borrower
hereunder (including Indemnified Taxes or Other Taxes imposed or asserted on or
attributable to amounts payable under this Section 9.4) and any penalties,
interest and reasonable expenses arising therefrom or with respect thereto,
whether or not such Indemnified Taxes or Other Taxes were correctly or legally
imposed or asserted by the relevant Governmental Authority. The Agent and each
Lender will, at the Borrower's expense, cooperate in good faith with the
Borrower in any contest with a Governmental Authority as to whether or not such
Indemnified Taxes, Other Taxes, penalties, interest or expenses were correctly
or legally imposed or asserted in the event such Indemnified Taxes, Other Taxes,
penalties, interest or expenses were in the good faith judgment of the Agent or
such Lender, as the case may be, not legal or not correctly asserted. If in
connection with such contest such Indemnified Taxes, Other Taxes, penalties,
interest or expenses are refunded to the Agent or such Lender, the Agent or such
Lender will pay such refund to the Borrower to the extent the
54
Agent or such Lender determines in its sole discretion, but acting in good
faith, that such refund is attributable to any Indemnified Taxes, Other Taxes,
penalties, interest or expenses paid by the Borrower and to the extent the
Borrower has previously indemnified the Agent or such Lender therefor pursuant
to this Section 9.4, net of expenses and without interest except any interest
(net of taxes) included in such refund. The Borrower shall return such refund
(together with any taxes, penalties or other charges) in the event the Agent or
such Lender is required to repay such refund. Notwithstanding the foregoing,
nothing in this Section 9.4 shall be construed to (i) entitle the Borrower or
any other Persons to any information determined by the Agent or any Lender in
each case, in its sole discretion, but acting in good faith, to be confidential
or proprietary information of the Agent or any Lender, to any tax or financial
information of the Agent or any Lender, or to inspect or review any books and
records of the Agent or any Lender or (ii) interfere with the rights of the
Agent or any Lender to conduct its fiscal or tax affairs in such matter as it
deems fit. A certificate as to the amount of any payment or liability provided
for hereunder delivered to the Borrower by a Lender or by the Agent on its own
behalf or on behalf of a Lender, shall be conclusive absent manifest error.
(d) As soon as practicable after any payment of Indemnified Taxes or
Other Taxes by the Borrower to a Governmental Authority, the Borrower shall
deliver to the Agent the original or a certified copy, to the extent reasonably
available, of a receipt issued by such Governmental Authority evidencing such
payment, a copy of the return reporting such payment or other evidence of such
payment reasonably satisfactory to the Agent.
(e) Any Foreign Lender that is entitled to an exemption from or
reduction of withholding tax under the law of the jurisdiction in which the
Borrower is located, or any treaty to which such jurisdiction is a party, with
respect to payments under this Agreement shall deliver to the Borrower (with a
copy to the Agent), at the time or times prescribed by applicable law, such
properly completed and executed documentation prescribed by applicable law or
reasonably requested by the Borrower as will permit such payments to be made
without withholding or at a reduced rate. Each Lender that is not a United
States person (as such term is defined in Section 7701(a)(30) of the Code)
agrees to deliver to the Borrower and the Agent on or prior to the Effective
Date, or in the case of a Lender that is an assignee or transferee of an
interest under this Agreement (unless the respective Lender was already a Lender
hereunder immediately prior to such assignment or transfer), on the date of such
assignment or transfer to such Lender, (i) two accurate and complete original
signed copies of Internal Revenue Service Form W-8ECI or Form W-8BEN (with
respect to a complete exemption under an income tax treaty) (or successor forms)
certifying to such Lender's entitlement as of such date to a complete exemption
from United States withholding tax with respect to payments to be made under
this Agreement and under any Note, or (ii) if the Lender is not a "bank" within
the meaning of Section 881(c)(3)(A) of the Code and cannot deliver either
Internal Revenue Service Form W-8ECI or Form W-8BEN (with respect to a complete
exemption under an income tax treaty) pursuant to clause (i) above, (x) a
certificate substantially in the form of Exhibit J (any such certificate, a
"Section 9.4(e)(ii) Certificate") and (y) two accurate and complete original
signed copies of Internal Revenue Service Form W-8BEN (with respect to the
portfolio interest exemption) (or successor form) certifying to such Lender's
entitlement as of such date to a complete exemption from United States
withholding tax with respect to payments of interest to be made under this
Agreement and under any Note. In addition, each Lender agrees that from time to
time after the Effective Date, when a lapse in time or change in circumstances
renders the previous certification obsolete or
55
inaccurate in any material respect, it will deliver to the Borrower or the Agent
two new accurate and complete original signed copies of Internal Revenue Service
Form W-8ECI, Form W-8BEN (with respect to the benefits of any income tax
treaty), or Form W-8BEN (with respect to the portfolio interest exemption) and a
Section 9.4(e)(ii) Certificate, as the case may be, and such other forms as may
be required in order to confirm or establish the entitlement of such Lender to a
continued exemption from or reduction in United States withholding tax with
respect to payments under this Agreement and any Note, or it shall immediately
notify the Borrower and the Agent of its inability to deliver any such Form or
Certificate, in which case such Lender shall not be required to deliver any such
Form or Certificate pursuant to this Section 9.4(e).
(f) If the Agent or a Lender determines, in its sole discretion, but
acting in good faith, that it has received a refund of any Taxes or Other Taxes
as to which it has been indemnified by the Borrower or with respect to which the
Borrower has paid additional amounts pursuant to this Section 9.4, it shall pay
over such refund to the Borrower (but only to the extent of indemnity payments
made, or additional amounts paid, by the Borrower under this Section 9.4 with
respect to the Taxes or Other Taxes giving rise to such refund), net of all
out-of-pocket expenses of the Agent or such Lender and without interest (other
than any interest paid by the relevant Governmental Authority with respect to
such refund); provided, that the Borrower, upon the request of the Agent or such
Lender, agrees to repay the amount paid over to the Borrower (plus any
penalties, interest or other charges imposed by the relevant Governmental
Authority) to the Agent or such Lender in the event the Agent or such Lender is
required to repay such refund to such Governmental Authority. This Section 9.4
shall not be construed to require the Agent or any Lender to make available its
tax returns (or any other information relating to its taxes which it deems
confidential) to the Borrower or any other Person.
9.5 Successors and Assigns. This Agreement shall be binding upon the
Borrower, the Agent and the Lenders and their respective successors and assigns,
and shall inure to the benefit of the Borrower, the Agent and the Lenders and
the successors and assigns of the Agent and the Lenders; provided, that the
Borrower shall not assign its rights or duties hereunder or under any of the
other Loan Documents without the prior written consent of the Lenders.
9.6 Assignments and Participations.
9.6a Assignments. Subject to the remaining provisions of this
Subsection 9.6a, any Lender (a "Transferor Lender"), at any time, in the
ordinary course of its business and in accordance with applicable law, may sell
to one or more financial institutions (individually a "Purchasing Lender"), a
portion or all of its rights and obligations under this Agreement and the other
Loan Documents then held by it, pursuant to an Assignment and Assumption
Agreement executed by the Transferor Lender, such Purchasing Lender and the
Agent, subject, however to the following requirements:
(i) The Transferor Lender also assigns a pro rata assignment of its
term loans (if any) under the NUI Corporation Credit Agreement;
(ii) each such assignment must be in a minimum amount of $1,000,000 in
the aggregate (under this Agreement and the NUI Corporation Credit
Agreement), unless otherwise consented to by the Agent (in its sole
discretion), or, if in excess thereof, in
56
integral multiples of $1,000,000, unless such assignment shall be in the
full amount of such Commitments and Loans (and loans under the NUI
Corporation Credit Agreement);
(iii) any assignment by a Lender holding a Revolving Credit Commitment
shall only be permitted if such assignment shall be of the full amount of
such Lender's Commitments and Loans (and loans under the NUI Corporation
Credit Agreement) or if, upon completion of such assignment, each of the
Purchasing Lender and the Transferor Lender holds pro rata Closing Date
Term Loans and term loans under the NUI Corporation Credit Agreement in an
aggregate amount not less than $3,000,000, unless otherwise consented to by
the Agent (in its sole discretion);
(iv) any assignment by a Lender holding a Delayed Draw Term Loan
Commitment shall only be permitted if such assignment shall be of the full
amount of such Lender's Commitments and Loans (and loans under the NUI
Corporation Credit Agreement) or if, upon completion of such assignment,
each of the Purchasing Lender and the Transferor Lender holds pro rata
Closing Date Term Loans and term loans under the NUI Corporation Credit
Agreement in an aggregate amount not less than $3,000,000, unless otherwise
consented to by the Agent (in its sole discretion);
(v) the Agent must give its prior consent to any such assignment which
consent shall not be unreasonably withheld; and
(vi) subject to the first sentence of the succeeding paragraph, the
Transferor Lender shall pay to the Agent a $3,500 service fee for each such
transfer at the time of each such transfer, for its acceptance and
recording in the Register.
The parties to each Assignment and Assumption Agreement shall (y)
electronically execute and deliver to the Agent an Assignment and Assumption
Agreement via an electronic settlement system acceptable to the Agent (which
initially shall be ClearPar, LLC) or (z) manually execute and deliver to the
Agent an Assignment and Assumption Agreement; provided that if the parties to
such Assignment and Assumption Agreement use the method provided in clause (y),
the Transferor Lender will not be required to pay the service fee described in
clause (vi) above. Upon the execution, delivery, acceptance and recording of any
such Assignment and Assumption Agreement, from and after the Transfer Effective
Date determined pursuant to such Assignment and Assumption Agreement, all
parties hereto agree that (a) the Purchasing Lender thereunder shall be a party
hereto as a Lender and, to the extent provided in such Assignment and Assumption
Agreement, shall have the rights and obligations of a Lender hereunder with a
Revolving Credit Commitment or a Delayed Draw Term Loan Commitment as set forth
therein, and (b) the Transferor Lender thereunder shall, to the extent provided
in such Assignment and Assumption Agreement, be released from its obligations as
a Lender under this Agreement. Such Assignment and Assumption Agreement shall be
deemed to amend this Agreement (without further action) to the extent, and only
to the extent, necessary to reflect the addition of such Purchasing Lender as a
Lender and the resulting adjustment of Revolving Credit Commitment Percentages
arising from the purchase by such Purchasing Lender of all or a portion of the
rights and obligations of such Transferor Lender under this Agreement and the
other Loan Documents to which it is a party.
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Notwithstanding anything to the contrary contained herein, any Lender
(a "Granting Bank") may grant to a special purpose funding vehicle (a "SPC"),
identified as such in writing from time to time by the Granting Bank to the
Agent and the Borrower, the option to provide to the Borrower all or any part of
any Revolving Credit Loan that such Granting Bank is obligated to make to the
Borrower pursuant to this Agreement; provided that (i) nothing herein shall
constitute a Revolving Credit Commitment by any SPC to make any Revolving Credit
Loan, (ii) if a SPC elects not to exercise such option or otherwise fails to
provide all or any part of such Revolving Credit Loan, the Granting Bank shall
be obligated to make such Revolving Credit Loan pursuant to the terms hereof.
The making of a Revolving Credit Loan by a SPC hereunder shall utilize the
Revolving Credit Commitment of the Granting Bank to the same extent, and as if,
such Revolving Credit Loan were made by such Granting Bank. Each party hereto
hereby agrees that no SPC shall be liable for any indemnity or similar payment
obligation under this Agreement (all liability for which shall remain with the
Granting Bank). In furtherance of the foregoing, each party hereto hereby agrees
(which agreement shall survive the termination of this Agreement) that, prior to
the date that is one year and one day after the payment in full of all
outstanding commercial paper or other senior indebtedness of any SPC, it will
not institute against, or join any other person in instituting against, such SPC
any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings under the laws of the United States or any State thereof. In
addition, notwithstanding anything to the contrary contained in this Section,
any SPC may (i) with notice to, but without the prior written consent of, the
Borrower and the Agent and without paying any processing fee therefor, assign
all or a portion of its interests in any Revolving Credit Loans to the Granting
Bank or to any financial institutions (consented to by the Borrower and Agent)
providing liquidity and/or credit support to or for the account of such SPC to
support the funding or maintenance of Revolving Credit Loans and (ii) disclose
on a confidential basis any non-public information relating to its Revolving
Credit Loans to any rating agency, commercial paper dealer or provider of any
surety, guarantee or credit or liquidity enhancement to such SPC. This section
may not be amended without the written consent of the SPC.
In addition to the assignments permitted above, (i) any Lender may
assign and pledge all or any portion of its Loans to any Federal Reserve Bank as
collateral security pursuant to Regulation A of the Board of Governors of the
Federal Reserve System and any Operating Circular issued by such Federal Reserve
Bank and (ii) any Lender that is a fund may grant a security interest in all or
any portion of its rights under this Agreement to any lender or any trustee for,
or any other representative of, holders of obligations owed or securities issued
by such fund as security for such obligations or securities or any institutional
custodian for such fund or for such lender; provided that, in each case, no such
assignment or grant of security interest shall release the assigning Lender from
its obligations and duties hereunder.
9.6b Assignment Register. The Agent shall maintain, at its address
referred to in Subsection 9.3, a copy of each Assignment and Assumption
Agreement delivered to it and a register (the "Register") for the recordation of
the names and addresses of the Lenders and the amount of the Loans owing to each
Lender from time to time. The entries in the Register shall be conclusive, in
the absence of manifest error, and the Borrower, the Agent and the Lenders may
treat each Person whose name is recorded in the Register as the owner of the
Loans recorded therein for all purposes of this Agreement. The Register shall be
available at the office
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of the Agent set forth in Subsection 9.3 for inspection by either Borrower or
any Lender at any reasonable time and from time to time upon reasonable prior
notice.
9.6c Participations. Each Lender, in the ordinary course of its
business and in accordance with applicable law, may sell to one or more
Participants a participating interest in any Loan owing to such Lender, the
interest of such Lender in any Loans, the Revolving Credit Commitment of such
Lender, or the Delayed Draw Term Loan Commitment of such Lender. In the event of
any such sale by a Lender of a participating interest to a Participant, such
Lender's obligations under this Agreement to the other parties to this Agreement
shall remain unchanged, such Lender shall remain solely responsible for the
performance thereof, such Lender shall remain the issuer of the Loans for all
purposes under this Agreement and the Borrower, the other Lenders and the Agent
shall continue to deal solely and directly with such Lender in connection with
such Lender's rights and obligations under this Agreement and the other Loan
Documents to which it is a party and the Participants shall have voting rights
only with respect to matters described in items (B), (C), (D), (E) and (F) of
Section 9.l.
9.7 Severability. Any provision of this Agreement which is prohibited
or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining portions hereof or affecting the validity or
enforceability of such provision in any other jurisdiction.
9.8 Survival. All representations, warranties, covenants and
agreements of the Borrower contained herein in the Loan Documents or made in
writing in connection herewith or therewith shall survive the execution of such
Loan Documents and shall continue in full force and effect so long as the
Borrower may borrow hereunder and so long thereafter until payment in full of
all the Loans and the Bank Indebtedness.
9.9 Governing Law. This Agreement and each other Loan Document shall
be a contract made under, governed by and construed in accordance with the laws
of the State of New York without reference to the provision thereof regarding
conflicts of law except where such law is superseded by applicable Federal law.
9.10 Non-Business Days. Except as otherwise specifically required
pursuant to the terms of this Agreement, whenever any payment hereunder or under
the Loans is due and payable on a day which is not a Business Day, such payment
may be made on the next succeeding Business Day.
9.11 Integration. This Agreement constitutes the entire agreement
between the parties relating to this financing transaction and it supersedes all
prior understandings and agreements, whether written or oral, between the
parties hereto concerning the subject matter of this Agreement.
9.12 Headings. Article, Section and other headings used in this
Agreement are intended for convenience only and shall not affect the meaning or
construction of this Agreement.
9.13 Set-Off. The Borrower hereby authorizes each Lender in case of an
Event of Default, at such Lender's option, at any time and from time to time, to
apply, at the discretion of
59
such Lender, to the payment of Bank Indebtedness, any and all such property,
credits, securities or money now or hereafter in the hands of such Lender
belonging or owed to the Borrower. Nothing herein shall restrict any Lender's
ability to set off any property, credits, securities or money of the Borrower
which may at any time be delivered to, or be in possession or owed to any Lender
in any capacity whatever to satisfy an independent obligation of the Borrower to
the Lender.
9.14 Consent to Forum. The parties hereto each hereby irrevocably
consents to the nonexclusive jurisdiction of the Courts of the State of New York
or any Federal court sitting therein in any action or proceeding arising out of
or relating to this Agreement or the other Loan Documents, and each party agrees
that a summons and complaint commencing an action or proceeding in either of
such courts shall be properly served and shall confer personal jurisdiction if
served personally or by certified mail to the party at its respective address
set forth in Section 9.3, or as otherwise provided under the laws of the State
of New York. Further, the parties hereby specifically waive and hereby
acknowledge that the parties are estopped from raising any claim that any such
court lacks personal jurisdiction over such party so as to prohibit either such
court from adjudicating any issues raised in a complaint filed with any such
court against the Borrower or the Lenders concerning this Agreement.
9.15 Waiver of Jury Trial. Each of the Agent, the Lenders and the
Borrower hereby knowingly, voluntarily and intentionally waive any rights they
may have to a trial by jury in respect of any litigation based hereon, or
arising out of, under, or in connection with, this Agreement or any other Loan
Document, or any course of conduct, course of dealing, statements (whether
verbal or written) or actions of the Agent, the Lenders or the Borrower relating
hereto or thereto. Except as prohibited by law, the Borrower hereby waives any
right it may have to claim or recover in any litigation any special, exemplary,
punitive or consequential damages or any damages other than, or in addition to,
actual damages. The Borrower acknowledges and agrees that it has received full
and sufficient consideration for this provision (and each other provision of
each other Loan Document to which it is a party) and that this provision is a
material inducement for the Lenders to enter into this Agreement and each such
other Loan Document.
9.16 Indemnity. The Borrower hereby agrees to indemnify the Agent, the
Lenders and each of their respective directors, officers, employees, attorneys,
agents and Affiliates against, and hold each of them harmless from, any loss,
liabilities, damages, claims, and reasonable costs and expenses, joint or
several (including reasonable attorneys' fees and disbursements reasonably
incurred by any such Person in connection with the preparation for or defense of
any pending or threatened claim, action or proceeding), suffered or incurred by
any of them under any applicable federal or state law or otherwise caused by,
arising out of, resulting from or in any manner connected with, the execution,
delivery and performance of each of the Loan Documents, the Loans and any and
all transactions related to or consummated in connection with the Loans. The
indemnity set forth in this Section 9.16 shall be in addition to any other
obligations or liabilities of the Borrower to the Agent or the Lenders, or at
common law or otherwise. The provisions of this Section 9.16 shall survive the
payment of the Bank Indebtedness and the termination of this Agreement. The
foregoing provisions of this Section 9.16 to the contrary notwithstanding, the
Borrower shall not be obligated to indemnify an indemnified Person pursuant to
this Section 9.16 for (i) any losses, liabilities, damages, claims or
60
costs suffered or incurred by any of them in connection with the administrative
transfer of funds in connection with this Agreement and which arise directly
from the such indemnified Person's gross negligence or willful misconduct, or
(ii) any other losses, liabilities, damages, claims, or costs which arise
directly from the such indemnified Person's gross negligence or willful
misconduct. All amounts owed pursuant to this Section 9.16 shall be part of the
Bank Indebtedness.
Notwithstanding any other provision of this Section 9.16, no
indemnified Person shall be liable for any indirect, special, punitive or
consequential damages in connection with the execution, delivery and performance
of each of the Loan Documents, the Loans, the Commitments, any obligations
hereunder or thereunder, or any and all transactions related to or consummated
in connection therewith.
9.17 Counterparts. This Agreement and any amendment, modification,
extension or renewal hereto or hereof may be executed in several counterparts
and by each party on a separate counterpart, each of which, when so executed and
delivered, shall be an original, but all of which together shall constitute but
one and the same instrument. In proving this Agreement or any amendment,
modification, extension or renewal, it shall not be necessary to produce or
account for more than one such counterpart signed by the other party against
whom enforcement is sought.
9.18 Confidentiality. (a) Each of the Lenders agrees that it will not
to disclose without the prior consent of the Borrower (other than to its
directors, employees, auditors, counsel or other professional advisors, to
affiliates or to another Lender if the Lender or such Lender's holding or parent
company in its sole discretion determines that any such party should have access
to such information, provided that such Persons shall be subject to the
provisions of this Section 9.18) any information with respect to the Borrower
which is now or in the future furnished pursuant to this Agreement or any Loan
Document and that it will use such information in accordance with its compliance
policies, contractual obligations and applicable law, including federal
securities laws and state securities laws; provided that any Lender may disclose
any such information (a) as has become generally available to the public, (b) as
may be required or appropriate (x) in any report, statement or testimony
submitted to any municipal, state or Federal regulatory body having or claiming
to have jurisdiction over such Lender or to the Federal Reserve Board or the
Federal Deposit Insurance Corporation or similar organizations (whether in the
United States or elsewhere) or their successors or (y) in connection with any
request or requirement of any such regulatory body, (c) as may be required or
appropriate in response to any summons or subpoena or in connection with any
litigation, provided that such Lender shall give the Borrower prior notice of
such disclosure with an opportunity to object, (d) to comply with any law,
order, regulation or ruling, which is in the opinion of such Lender's counsel,
applicable to such Lender, and (e) to any creditor or any prospective transferee
or participant in connection with any contemplated transfer or participation of
any of the obligations under this agreement or any interest therein by such
Lender; provided that such creditor or prospective transferee or participant
agrees to be bound by this Section 9.18 to the same extent as such Lender.
(b) Notwithstanding anything contained in this Agreement or in any
other document, agreement or understanding relating to the transactions
contemplated by this
61
Agreement, each party (and each employee, representative, or other agent of such
party) is authorized to disclose to any and all persons, beginning immediately
upon commencement of discussions regarding the transactions contemplated by this
Agreement, and without limitation of any kind, the tax treatment and tax
structure of such transactions, and all materials of any kind (including
opinions or other tax analyses) that are provided to such party (or any
employee, representative, or other agent of such party) relating to such tax
treatment and tax structure. For purposes of this authorization, the "tax
treatment" of a transaction means the purported or claimed U.S. federal or state
income tax treatment of the transaction, and the "tax structure" of a
transaction means any fact that may be relevant to understanding the purported
or claimed U.S. federal or state income tax treatment of the transaction. None
of the parties to the transactions contemplated by this Agreement provides U.S.
tax advice, and each party should consult its own advisors regarding its
participation in the transactions contemplated by this Agreement.
62
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound
hereby, have caused this Credit Agreement to be executed by their respective
officers thereunto duly authorized as of the date first written above.
NUI UTILITIES, INC.
By: /s/ Xxxx Xxxxxxxx Xxxxx
--------------------------------------
Name: Xxxx Xxxxxxxx Xxxxx
Title: Vice President & Corporate
Secretary
CREDIT SUISSE FIRST BOSTON,
acting through its Cayman Islands Branch
in its capacity as the Agent hereunder
By: /s/ S. Xxxxxxx Xxx
--------------------------------------
Name: S. XXXXXXX XXX
Title: DIRECTOR
By: /s/ Xxxxx X. Xxxxxxxxx
--------------------------------------
Name: XXXXX X. XXXXXXXXX
Title: VICE PRESIDENT
IN WITNESS WHEREOF, intending to be legally bound hereby, the
undersigned Lender has caused this Credit Agreement by and among NUI UTILITIES,
INC., THE LENDERS PARTY HERETO and CREDIT SUISSE FIRST BOSTON, as Agent, to be
executed by its duly authorized officers as of the date first above written.
CREDIT SUISSE FIRST BOSTON
acting through its Cayman Islands Branch
By: /s/ S. Xxxxxxx Xxx
--------------------------------------
Name: S. XXXXXXX XXX
Title: DIRECTOR
By: /s/ Xxxxx X. Xxxxxxxxx
--------------------------------------
Name: XXXXX X. XXXXXXXXX
Title: VICE PRESIDENT
EXHIBIT A
Intentionally Omitted.
EXHIBIT B
Intentionally Omitted.
EXHIBIT C
Intentionally Omitted.
EXHIBIT J
Form of Section 9.4(e)(ii) Certificate
Reference is hereby made to the Credit Agreement, dated as of November
24, 2003, among NUI Utilities, Inc., the lenders party thereto from time to time
and Credit Suite First Boston acting through its Cayman Islands Branch, as Agent
(as amended, modified or supplemented from time to time, the "Agreement").
Pursuant to provisions of Section 9.4(e)(ii) of the Agreement, the undersigned
hereby certifies that it is not a "bank" as such term is used in Section
881(c)(3)(A) of the Internal Revenue Code of 1986, as amended.
[NAME OF BANK]
By:
-----------------------------------
Name:
Title:
Date:
--------------------------
SCHEDULE 2.1
COMMITMENT SCHEDULE
-------------------
A. Agency Office: Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
B. Lenders (Listed Below)
TOTAL COMMITMENT
LENDERS ALLOCATION (%) AMOUNT
--------------------------------------------------------------------------------
Credit Suisse First Boston 100% $150,000,000
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx Xxxxx
Telecopier: (000) 000-0000
