AGREEMENT AND AMENDMENT NO. 3 TO CREDIT AGREEMENT
(NUI CORPORATION)
AGREEMENT AND AMENDMENT NO. 3 TO CREDIT AGREEMENT (NUI CORPORATION),
dated as of August 20, 2004 (this "Agreement"), among NUI CORPORATION, a New
Jersey Corporation (the "Borrower"), CREDIT SUISSE FIRST BOSTON, acting through
its Cayman Islands Branch, as administrative agent (in such capacity, the
"Agent") for the several banks and other financial institutions party to the
Credit Agreement referred to below, the Guarantors party hereto and the Lenders
listed in the Annex I hereto.
PRELIMINARY STATEMENT
Reference is made to (i) that certain Credit Agreement dated as of
November 24, 2003 (as amended, supplemented or otherwise modified from time to
time, the "Credit Agreement"), among the Borrower, the financial institutions
from time to time party thereto and the Agent, (ii) that certain Agreement dated
January 26, 2004 by which the Borrower and the Required Lenders (as defined in
the Credit Agreement) agreed to certain extensions, waivers, consents and
amendments under the Credit Agreement including without limitation certain
amendments to Sections 2.2c and 5.16 of the Credit Agreement, (iii) that certain
Agreement dated March 12, 2004 by which the Borrower and the Required Lenders
agreed to certain waivers, deferrals and consents and (iv) that certain
Amendment No. 2 to the Credit Agreement dated as of May 10, 2004 by which the
Borrower and the Required Lenders agreed to certain amendments under the Credit
Agreement.
The Borrower has requested that the Credit Agreement be amended as
provided herein and the Required Lenders have agreed to the requested amendments
on the terms and conditions set forth herein and have directed the Agent to
enter into this Agreement for and on their behalf.
In consideration of the mutual agreements herein contained and other
good and valuable consideration, the sufficiency and receipt of which are hereby
acknowledged, the parties hereto hereby agree as follows:
AGREEMENT
SECTION 1. Definitions; Rules of Construction. Each term capitalized
herein and not otherwise defined herein shall have the meaning ascribed to it in
the Credit Agreement. Rules of construction or interpretation set forth in the
Credit Agreement shall apply to the interpretation of this Agreement.
SECTION 2. Amendments. Subject to Section 5(b) of this Agreement, the
Credit Agreement is hereby amended as follows:
(a) The preamble of the Credit Agreement is hereby deleted in its
entirety and replaced with the following in the place thereof:
"THIS CREDIT AGREEMENT, dated as of November 24, 2003, by and among
NUI CORPORATION, a New Jersey corporation (as further defined below, the
"Borrower"), the financial institutions listed on the signature pages
hereto, the financial institutions listed on Schedule 2.1A 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 Lead Arranger (in such capacity, the "Lead
Arranger") and Bookrunner."
(b) The definitions of "Confidential Information Memorandum",
"Consolidated EBITDA", "Consolidated Interest Expense", "Consolidated Net
Income", "Consolidated Shareholders' Equity", "Consolidated Total
Indebtedness", "Loans", "Term Loans" and "Termination Date" in Section 1.1
are hereby deleted in their entirety and replaced with the following in the
place thereof:
"Confidential Information Memorandum" means that certain Confidential
Information Memorandum dated November 2003 and made available to the
Lenders prior to the Closing Date together with that certain Lender
Presentation dated July 2004 and made available to the Lenders prior to the
Additional Term Loan Closing Date.
"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, (iv) all
fees and expenses associated with the sale of the Borrower or any of its
assets, (v) all fees, expenses and settlement costs (including the NJBPU
Settlement Amount) related to the Focused Audit, Xxxxx Xxxxxxxx, New Jersey
AG Settlement, SEC Inquiry and Florida Settlement, (vi) all severance and
retention expenses in the amount of up to $5,000,000, (vii) all litigation
fees, expenses, settlement costs, judgments and reserve charges related to
shareholder litigation in the aggregate amount of up to $2,000,000, (viii)
expenses in connection with explosions and fires related to gas accidents
that have occurred prior to July 14, 2004 in the aggregate amount of up to
$4,000,000, (ix) all payments related to the Patriot pipeline and Saltville
storage contracts held by NUI Energy Brokers, (x) all fees, expenses and
impairment charges related to the winding down of NUI Energy Brokers and
T.I.C. Enterprises, (xi) all commissions and impairment charges related to
the sub-leasing of excess office space, (xii) all fees, expenses and
prepayment premiums in connection with any
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prepayment of the Medium Term Notes, (xiii) fees and expenses related to
amendments to the Standby Bond Purchase Agreement, and (xiv) all fees and
expenses related to the Additional Term Loans, Amendment No. 3, and all
prior amendments to, and waivers under, this Agreement, the Extension Fee
and the Additional Extension Fee; 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 and its
Subsidiaries, net of cash interest income of the Borrower determined on a
Consolidated basis in accordance with GAAP, for such period on the
aggregate principal amount of their 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 Utilities Credit Agreement, by the Existing Credit Agreement, by the
NUI Utilities Secured Facility or the Existing Credit Agreements (as
defined in the NUI Utilities Credit Agreement), interest payments with
respect to the NUI Utilities Secured Facility and interest payments that
will accrue to the maturity of the Medium Term Notes (to the extent that
the Delayed Draw Term Loans are drawn)).
"Consolidated Net Income" means for any period, net income (or loss)
of the Borrower and its Subsidiaries, 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
Utilities Credit Agreement, by the NUI Utilities Secured Facility, the
Existing Credit Agreement or the Existing Credit Agreements (as defined in
the NUI Utilities Credit Agreement), 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, plus (to the extent deducted in
determining such total and on an after-tax basis) (i) all fees and expenses
associated with the sale of the Borrower or any of its assets, (ii) all
fees, expenses and settlement costs
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(including the NJBPU Settlement Amount) related to the Focused Audit, Xxxxx
Xxxxxxxx, New Jersey AG Settlement, SEC Inquiry and Florida Settlement,
(iii) all severance and retention expenses in the amount of up to
$5,000,000, (iv) all litigation fees, expenses, settlement costs, judgments
and reserve charges related to shareholder litigation in the aggregate
amount of up to $2,000,000, (v) expenses in connection with explosions and
fires related to gas accidents that have occurred prior to July 14, 2004 in
the aggregate amount of up to $4,000,000, (vi) all payments related to the
Patriot pipeline and Saltville storage contracts held by NUI Energy
Brokers, (vii) all fees, expenses and impairment charges related to the
winding down of NUI Energy Brokers and T.I.C. Enterprises, (viii) all
commissions and impairment charges related to the sub-leasing of excess
office space, (ix) all fees, expenses and prepayment premiums in connection
with any prepayment of the Medium Term Notes, (x) fees and expenses related
to amendments to the Standby Bond Purchase Agreement, and (xi) all fees and
expenses related to the Additional Term Loans, Amendment No. 3, and all
prior amendments to, and waivers under, this Agreement, the Extension Fee
and the Additional Extension Fee.
"Consolidated Total Indebtedness" means all Indebtedness of the
Borrower and its Consolidated Subsidiaries, 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, (ii)
Hedging Obligations, and (iii) the outstanding principal amount of the NUI
Utilities Secured Facility and (B) if any portion of the Medium Term Notes
and the Delayed Draw Term Loans are outstanding at such time, 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 of the NUI Utilities Credit Agreement.
"Loans" means the Term Loans and the Additional Term Loans.
"Termination Date" means (a) in the case of the Term Loans, November
21, 2005, as extended pursuant to and subject to the conditions set forth
in Section 2.6, and (b) in the case of the Additional Term Loans, November
21, 2005, unless, in each case, earlier terminated in accordance with the
terms hereof.
"Term Loans" means the term loans made by the Lenders to the Borrower
pursuant to Section 2.1a(i).
(c) The following new definitions are hereby added to Section 1.1
which shall appear in alphabetical order and shall read as follows:
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"Acquisition" means the acquisition of substantially all of the assets
or all of the capital stock of the Borrower by AGL, Cougar Corporation or
any other Affiliate of AGL.
"Acquisition Agreement" means the agreement and plan of merger, dated
as of July 14, 2004 by and among AGL, Cougar Corporation and the Borrower.
"Additional Extension Fee" has the meaning set forth in Section
2.4b(b).
"Additional Term Loans" means the additional term loans made by
certain of the Lenders to the Borrower pursuant to Section 2.1a(ii).
"Additional Term Loan Commitment" means, as to each Lender, the
obligation of such Lender to make Additional Term Loans available to the
Borrower pursuant to Section 2.1a(ii) in an aggregate principal amount at
any one time outstanding not to exceed the amount set opposite such
Lender's name on Schedule 2.1A (as such amount may change from time to time
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 Additional Term Loans available to the
Borrower in an aggregate amount equal to the Additional Term Loan
Commitments of all of the Lenders.
"Additional Term Loan Closing" means extension of the Additional Term
Loans, including by funding the proceeds thereof into the Escrow Account in
accordance with Section 6 of Amendment No. 3, subject to satisfaction or
waiver of all conditions precedent with respect thereto.
"Additional Term Loan Closing Date" means the day on which the
Additional Term Loan Closing occurs; provided that, unless the Lenders
agree otherwise, such date shall not be later than September 30, 2004.
"AGL" means AGL Resources Inc., a Georgia corporation.
"Amendment No. 3" means Agreement and Amendment No. 3 to this
Agreement, dated as of August 20, 2004 among the Borrower, the Agent on
behalf of the Required Lenders, the Guarantors party thereto and the
Lenders listed on Schedule 2.1A hereto.
"Amendment No. 3 to the NUI Utilities Credit Agreement" means
Agreement and Amendment No. 3 to NUI Utilities Credit Agreement, dated as
of August 20, 2004 among NUI Utilities and the Agent thereunder on behalf
of the Required Lenders thereunder.
"Cougar Corporation" means Cougar Corporation, a New Jersey
corporation and a wholly-owned subsidiary of AGL.
"Extension Fee" has the meaning set forth in Section 2.4b(b).
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"Florida Settlement" means the anticipated settlement agreement
between the Borrower and the Florida Public Service Commission, for which
the Borrower has established a pre-tax reserve of approximately $2,600,000,
any fines contemplated thereby, and all actions and negotiations in respect
thereof.
"FPSC" means the Florida Public Service Commission.
"FPSC Approval" has the meaning given it in Section 6.3(xii).
"Loan Request" has the meaning given it in Section 2.1d.
"New Facilities Fee Letter" has the meaning given to it in Section
2.4b(a).
"New Jersey AG Settlement" means the plea agreement and the letter
agreement, each dated June 30, 2004, between NUI Energy Brokers and the New
Jersey Attorney General's office, any fines and community service programs
contemplated by such letters, and all actions and negotiations in respect
thereof.
"NJBPU Approval" has the meaning given to it in Section 3.11.
"NUI Utilities Secured Facility" means a senior secured term loan
facility in an aggregate principal amount of up to $75,000,000 to be made
available to NUI Utilities on the Additional Term Loan Closing Date.
"SEC Inquiry" means the informal inquiry that the Securities and
Exchange Commission in November 2003 advised the Borrower it was conducting
into trading practices at NUI Energy Brokers.
"Standby Bond Purchase Agreement" means the amended and restated
standby bond purchase agreement, dated as of June 12, 2001 among NUI
Utilities, the Participating Banks referred to therein and The Bank of New
York, as purchasing bank.
"Xxxxx Xxxxxxxx" means Xxxxx Xxxxxxxx, L.L.C. and its investigation of
and report on the Borrower and/or the Borrower's Subsidiaries, including
NUI Energy Brokers.
"T.I.C. Enterprises" means T.I.C. Enterprises, L.L.C., a Delaware
limited liability company.
(d) The definition of "Permitted Encumbrances" in Section 1.1 is
hereby amended by deleting the word "and" after clause (ix) thereof and
inserting a new clause (xi) after clause (x) thereof to read as follows:
"; and (xi) security interests in favor of lenders under the NUI
Utilities Secured Facility."
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(e) Section 2.1a is hereby deleted in its entirety and replaced with
the following in the place thereof:
"2.1a Loans. Subject to the terms and conditions hereof and relying
upon the representations and warranties herein set forth, (i) each
Lender (with a commitment therefor) 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 and (ii)
each Lender (with a commitment therefor) severally agrees to make a
term loan to the Borrower on the Additional Term Loan Closing Date
specified in the Loan Request in a principal amount equal to the
amount set forth on Schedule 2.1A opposite its name. Amounts paid or
prepaid in respect of the Loans may not be reborrowed."
(f) The last sentence of Section 2.1b is hereby amended to read as
follows:
"The Lenders shall have no obligations to make Term Loans hereunder
after the Closing Date or Additional Term Loans hereunder after the
Additional Term Loan Closing Date."
(g) New Section 2.1d is hereby added which shall read as follows:
"2.1d Loan Request. Except as otherwise provided herein, the Borrower
may request the Lenders to make the Additional Term Loans to the
Borrower by the delivery to the Administrative Agent, not later than
12:00 Noon (Eastern time) (x) three Business Days prior to the
proposed Additional Term Loan Closing Date with respect to the making
of Additional Term Loans to which the Euro-Rate Option applies and (y)
one Business Day prior to the proposed Additional Term Loan Closing
Date with respect to the making of the Additional Term Loans to which
the Base Rate Option applies of a duly completed request therefor or a
request by telephone immediately confirmed in writing by letter or
facsimile transmission in such form (the "Loan Request"), it being
understood that the Administrative Agent may rely on the authority of
any person making such a telephonic request without the necessity of
receipt of such written confirmation. The Loan Request shall be
irrevocable and shall specify (i) the proposed Additional Term Loan
Closing Date; (ii) the aggregate amount of the Additional Term Loans
to be made on the Additional Term Loan Closing 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 Additional Term Loans to be made on the Additional Term Loan
Closing Date; (iv) in the case of the Additional Term Loans to which
the Euro-Rate Option applies, an appropriate Interest Period for
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each Euro-Rate Portion of the Additional Term Loans to be made on the
Additional Term Loan Closing Date; and (v) the remittance
instructions.
(h) New Section 2.1e is hereby added which shall read as follows:
"2.1e Making Loans. Each Lender shall remit the principal amount of
the Additional Term Loans 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 Additional Term Loans to
the Borrower in Dollars and immediately available funds in an account
specified by the Borrower to the Agent in the Loan Request, prior to
2:00 P.M. (Eastern time) on the Additional Term Loan Closing Date set
forth in the Loan Request, 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 Additional
Term Loans of such Lender on the Additional Term Loan Closing Date,
subject to the provisions of Section 8.3 below."
(i) Section 2.4b(a) is hereby deleted in its entirety and replaced
with the following in the place thereof:
"(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 between the Borrower and CSFB (the "Fee Letter")
dated as of October 31, 2003 and in that certain letter agreement
among the Borrower, the Agent and NUI Utilities (the "New Facilities
Fee Letter") dated as of July 14, 2004, in each case, as the same may
be amended from time to time by the parties thereto, and as and when
payment of such fees is due as set forth therein."
(j) Section 2.4b(b) is hereby deleted in its entirety and replaced
with the following in the place thereof:
"(b) Upon extension of the Termination Date pursuant to Section 2.6,
the Borrower shall pay the Lenders an extension fee prior to or on the
Additional Term Loan Closing Date in an amount equal to 0.50% of the
aggregate amount of Term Loans then outstanding (the "Extension Fee").
On May 22, 2005 the Borrower shall pay the Lenders an additional fee
in an amount equal to 0.50% of the aggregate amount of Term Loans then
outstanding (the "Additional Extension Fee")."
(k) Section 2.6 is hereby deleted in its entirety and replaced with
the following in the place thereof:
"2.6 Extension of Termination Date. The Termination Date is hereby
extended until November 21, 2005 subject to the satisfaction of the
following conditions: (i) the NUI Utilities Credit Agreement is at the
same time extended in accordance with the terms thereof (or refinanced
on
8
terms reasonably acceptable to the Required Lenders), (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), (iii) the Borrower shall
deposit into the Interest Reserve Account an amount sufficient to
cause the amount then on deposit to be equal to interest to accrue on
the then outstanding principal amount of the Term Loans hereunder to
the Termination Date as extended (based upon an assumed interest rate
which, in the reasonable judgment of the Agent, approximates the
average projected interest rate with respect to the Term Loans
hereunder), and (iv) no Event of Default has occurred and is
continuing.".
(l) The references to the "Term Loans" in the second sentence of
Section 2.13 are each hereby amended to read as "Loans".
(m) The phrase "(or in the case of any issuance of Equity Securities
of the Borrower, 50%)" in the first paragraph of Section 2.14 is hereby
deleted in its entirety.
(n) The reference to the "Term Loans" in the first sentence of Section
2.14(b) is hereby amended to read as "Loans".
(o) Section 2.14(c) is hereby deleted in its entirety and replaced
with the following in the place thereof:
"(c) Upon (i) the occurrence of any event described in Section 7.10
hereof with respect to the Borrower or NUI Utilities (including,
without limitation, the consummation of the Acquisition), (ii) the
refinancing in full of loans and commitments under the NUI Utilities
Credit Agreement or the NUI Utilities Secured Facility, in each case
other than with proceeds of Indebtedness the terms of which are
reasonably acceptable to the Required Lenders or (iii) the Borrower
shall default in the observance or performance of any covenant set
forth in clause (ii) of Section 4.11, then the Loans then outstanding
(together with accrued interest thereon) and all other amounts owing
under this Agreement shall become immediately due and payable.".
(p) The last sentence of Section 3.5 is hereby deleted in its entirety
and replaced with the following in the place thereof:
"Except as has otherwise been fully disclosed in the Borrower's Form
10-K filed on December 31, 2002, Form 10-Qs filed on February 14,
2003, May 15, 2003 and August 14, 2003, Current Reports on Form 8-K
filed on July 22, 2003, July 31, 2003, September 26, 2003, October 14,
2003 and
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November 19, 2003, Form 10-K filed on May 13, 2004, Form 10-Qs filed
on May 20, 2004, May 25, 2004 and August 16, 2004, and Form 10-Q/As
filed on June 17, 2004, in each case with the Securities and Exchange
Commission, or the Confidential Information Memorandum, since
September 30, 2003, nothing has occurred that has had a Material
Adverse Effect."
(q) The first sentence of Section 3.6 is hereby deleted in its
entirety and replaced with the following in the place thereof:
"Except as disclosed in the Borrower's Form 10-K filed on December 31,
2003, Form 10-Qs filed on February 14, 2003, May 15, 2003, and August
14, 2003, Current Reports on Form 8-K filed on July 22, 2003, July 31,
2002, September 26, 2003, October 14, 2003 and November 19, 2003, Form
10-K filed on May 13, 2004, Form 10-Qs filed on May 20, 2004, May 25,
2004 and August 16, 2004, and Form 10-Q/As filed on June 17, 2004, in
each case with the Securities and Exchange Commission, 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 Subsidiary or any of their respective properties, which (i) would
have a Material Adverse Effect, or (ii) involve any Loan Document or
the transactions hereunder."
(r) Section 3.10 is hereby deleted in its entirety and replaced with
the following in the place thereof:
"3.10 Environmental Matters. Except to the extent described in the
Borrower's Form 10-K filed on December 31, 2003, Form 10-Qs filed on
February 14, 2003, May 15, 2003, and August 14, 2003, Current Reports
on Form 8-K filed on July 22, 2003, July 31, 2002, September 26, 2003,
October 14, 2003 and November 19, 2003, Form 10-K filed on May 13,
2004, Form 10-Qs filed on May 20, 2004, May 25, 2004 and August 16,
2004, and Form 10-Q/As filed on June 17, 2004, in each case with the
Securities and Exchange Commission, or the Confidential Information
Memorandum, the Borrower and each Subsidiary is in compliance with all
applicable Environmental Laws, except for matters which do not have a
Material Adverse Effect."
(s) The word "No" at the beginning of the first sentence of Section
3.11 is hereby deleted and replaced with the following phrase in the place
thereof:
"Other than approval by the NJBPU (the "NJBPU Approval"), no".
(t) The last sentence of Section 3.19 is hereby deleted in its
entirety and replaced with the following in the place thereof:
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"There are no arbitrations, unfair labor practice charges, complaints,
representation proceedings or grievances pending against or involving
the Borrower or any of its Subsidiaries, nor, to the Borrower's
knowledge, are there any threatened involving the Borrower or any of
its Subsidiaries, 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."
(u) Section 4.1 is hereby deleted in its entirety and replaced with
the following in the place thereof:
"4.1 Use of Proceeds. (a) The proceeds of the Term Loans will be used
by the Borrower on the Closing Date first (i) to fund the Interest
Reserve Account in accordance with the Collateral Account Agreement,
(ii) to repay in full all amounts outstanding under and terminate (a)
the Existing Credit Agreement, (b) the Existing Senior Notes, and (c)
all intercompany indebtedness owing to NUI Utilities, and (iii) to pay
related fees and expenses incurred in connection with the execution
and delivery of the Loan Documents. Thereafter proceeds of the 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.
(b) The proceeds of the Additional Term Loans will be used by the
Borrower on the Additional Term Loan Closing Date first (i) to fund
the Interest Reserve Account pursuant to Section 6.3(v) hereof and in
accordance with the Collateral Account Agreement, and (ii) to pay
related fees and expenses incurred in connection with the execution
and delivery of the Loan Documents with respect to the Additional Term
Loans. Thereafter proceeds of the Additional 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 funding of the Interest
Reserve Account pursuant to Section 2.6(iii)."
(v) The references to "10 days" in Sections 4.2(i) and 4.2(ii) are
each hereby amended to read as "30 days".
(w) The last sentence of Section 4.7 is hereby deleted in its entirety
and replaced with the following in the place thereof:
"The Borrower will certify in the Compliance Certificate delivered
pursuant to Subsection 4.2(iii) hereof 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."
(x) Clause (c) of Section 5.1(iii) is hereby deleted in its entirety
and proviso at the end thereof is hereby deleted in its entirety and
replaced with the following in the place thereof:
"provided, that (x) in the case of the Restricted Payments under
clauses (ii) and (iii) above, prior to or immediately after giving
effect to such proposed Restricted Payments, no Potential Default or
Event of Default shall have existed or would exist and (y) in the case
of all Restricted Payments, no such payment shall violate any
Governmental Rule".
(y) Section 5.3a is hereby deleted in its entirety and replaced with
the following in the place thereof:
"5.3a Leverage Ratio. At no time shall its ratio of Consolidated Total
Indebtedness to its Consolidated Total Capitalization exceed
0.80:1.00; provided that the Borrower shall not be required to comply
with the covenant of this Section 5.3a until the earlier of (x)
December 31, 2004 and (y) the termination, if any, of the Acquisition
Agreement, and such non-compliance shall not constitute an "Event of
Default" hereunder (for the avoidance of doubt, the Borrower shall
have to continue within such period of time to deliver a Compliance
Certificate pursuant to the requirements of Section 4.2(iii) hereof
with the appropriate qualifications)."
(z) Section 5.3b is hereby deleted in its entirety and replaced with
the following in the place thereof:
"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 1.25 to
1.00; provided that the Borrower shall not be required to comply with
the covenant of this Section 5.3b until the earlier of (x) December
31, 2004 and (y) the termination, if any, of the Acquisition
Agreement, and such non-compliance shall not constitute an "Event of
Default" hereunder (for the avoidance of doubt, the Borrower shall
have to continue within such period of time to deliver a Compliance
Certificate pursuant to the requirements of Section 4.2(iii) hereof
with the appropriate qualifications)."
(aa) Section 5.6(i) is hereby amended by inserting the new phrase
after the words "(provided that the Borrower shall be the continuing or
surviving corporation)" at the end of Section 5.6(i) which shall read as
follows:
"(for the avoidance of doubt, the entering by the Borrower into the
Acquisition Agreement shall not be deemed a violation of the
requirements of this Section 5.6(i); provided that the
12
consummation of the Acquisition shall constitute a change of control
for the purpose of Section 7.10 hereof)".
(bb) Section 5.9 is hereby deleted in its entirety and replaced with
the following in the place thereof:
"5.9 Restrictive Agreements. The Borrower shall not permit its
Subsidiaries or divisions (including, without limitation, any
Restricted Subsidiary) to enter into or otherwise be bound by any
agreement not to pay dividends or make distributions to the Borrower,
except for (i) the NUI Utilities Credit Agreement, the NUI Utilities
Secured Facility, the Standby Bond Purchase Agreement and the NUI
Utilities' settlement with the NJBPU relating to the Focused Audit,
and (ii) 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).
(cc) Clause (e) of Section 5.13 is hereby deleted in its entirety and
replaced with the following in the place thereof:
"(e) Indebtedness of NUI Utilities under (i) the NUI Utilities Credit
Agreement, as amended, extended or otherwise modified in accordance
with its terms, and (ii) the NUI Utilities Secured Facility, as
amended, extended or otherwise modified in accordance with its terms
and, in each case without duplication as to the other exceptions under
this Section 5.13, other Indebtedness permitted to be incurred by NUI
Utilities under both the NUI Utilities Credit Agreement and the NUI
Utilities Secured Facility;".
(dd) New clause (m) is hereby added to Section 5.13 which shall read
as follows:
"(m) intercompany Indebtedness incurred in connection with the
provision of services in the ordinary course of business;".
(ee) The word "and" after clause (j) of Section 5.16 is hereby deleted
and new clause (l) and clause (m) are added to Section 5.16 which shall
read as follows:
"(l) intercompany loans and advances in connection with the provision
of services in the ordinary course of business; and
(m) advance payments by NUI Utilities to gas suppliers.".
(ff) Section 5.17 is hereby amended by inserting after the phrase
"Indebtedness under the NUI Utilities Credit Agreement," the new phrase
which shall read as follows:
13
"Indebtedness under the NUI Utilities Secured Facility,".
(gg) Clauses (ii), (iii) and (iv) of Section 5.18 are hereby deleted
in their entirety and replaced with the following clauses (ii) and (iii) in
the place thereof:
"(ii) the repayment of the intercompany receivables owing from the
Borrower to NUI Utilities or from NUI Utilities to the Borrower, or
(iii) the movement of employees between the Borrower and NUI
Utilities, in each case provided at cost (if applicable), shall not be
deemed a breach of this Section 5.18.".
(hh) The words "Potential Default or" are hereby deleted from Section
6.1a.
(ii) Section 6.1c is hereby deleted in its entirety and replaced with
the following in the place thereof:
"6.1c Extension of Credit Requirements. The Borrower shall have
complied with the requirements of Section 2.1d, 2.2c and 2.2e, as
appropriate, with respect to the requested extension of credit.".
(jj) New Section 6.3 is hereby added to Article VI and shall read as
follows:
"6.3. Conditions Precedent to Extension of Credit Under Additional
Term Loan Commitments. The obligation of the Lenders with the
Additional Term Loan Commitments to make the extensions of credit
hereunder (it being understood for the purposes of this Section 6.3
that the release of funds from the Escrow Account in accordance with
Section 6 of Amendment No. 3 shall not be deemed to be an extension of
credit under the Additional Term Loan Commitments) 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 hereof
and Section 5(a) of Amendment No. 3:
(i) Each of Amendment No. 3 and Amendment No. 3 to the NUI
Utilities Credit Agreement shall have become effective in accordance
with the terms thereof
(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 Additional Term Loan Commitment
and otherwise properly completed and executed by the Borrower.
(iii) The conditions precedent to the extension of credits under
the NUI Utilities Secured Facilities shall have been satisfied or
waived in
14
accordance with the terms thereof and the NUI Utilities Secured
Facilities shall have become effective in accordance with the term
thereof.
(iv) Receipt by the Agent of the evidence of deposit by the
Borrower into the Interest Reserve Account an amount equal to interest
to accrue on the principal amount of the Additional Term Loans
hereunder to the Termination Date (based upon an assumed interest rate
which, in the reasonable judgment of the Agent, approximates the
average projected interest rate with respect to the Additional Term
Loans hereunder).
(v) Receipt by the Agent on behalf of each Lender of a signed
opinion of LeBoeuf, Lamb, Xxxxxx & XxxXxx L.L.P., special regulatory
counsel for the Borrower, dated as of the Additional Term Loan Closing
Date and in form and substance reasonably satisfactory to the Agent
(vi) The representations and warranties of the Borrower contained
in Article III and of each Guarantor in the Guaranty Agreement and in
the other Loan Documents executed and delivered by the Borrower in
connection with the Additional Term Loan Closing shall be true and
correct in all material respects on and as of the Additional Term Loan
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),
the Borrower and each Guarantor shall have performed, observed and
complied with all covenants and conditions hereof and contained in the
other Loan Documents to which each is a party; no Event of Default
under this Agreement shall have occurred and be continuing or shall
exist; except as disclosed in the Borrower's Form 10-K filed on
December 31, 2002 , Form 10-Qs filed on February 14, 2003, May 15,
2003, and August 14, 2003, Current Reports on Form 8-K filed on July
22, 2003, July 31, 2002, September 26, 2003, October 14, 2003 and
November 19, 2003, Form 10-K filed on May 13, 2004, Form 10-Qs filed
on May 20, 2004, May 25, 2004 and August 16, 2004, and Form 10-Q/As
filed on June 17, 2004, in each case with the Securities and Exchange
Commission, 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 Additional Term Loan Closing
Date and signed by an Authorized Officer of the Borrower, to each such
effect.
(vii) 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 Additional Term
Loan Closing Date and all invoiced reimbursable expenses incurred on
or prior to the Additional Term Loan Closing Date.
15
(viii) The Medium Term Notes shall have been refinanced or
satisfied and discharged through the incurrence of Delayed Draw Term
Loans.
(ix) The Termination Date of the Term Loans hereunder and the
Termination Date (as such term is defined in the NUI Utilities Credit
Agreement) under the NUI Utilities Credit Agreement shall have been
extended and the Extension Fee payable hereunder and the Extension Fee
(as such term is defined in the NUI Utilities Credit Agreement)
payable under the NUI Utilities Credit Agreement shall have been paid,
in each case prior to or on the Additional Term Loan Closing Date in
accordance with the terms hereof and thereof.
(x) The Acquisition Agreement shall be in full force and effect
on the Additional Term Loan Closing Date.
(xi) All action, orders, authorizations, consents, licenses,
validations or approvals of, or notices to, filings, recordings, or
registration with, or exemptions by, any Governmental Authority,
including, without limitation, the NJBPU Approval, required to
authorize (i) the execution, delivery and performance by the Borrower
or any of its Subsidiaries of the Amendment No. 3 or the other Loan
Documents to which it is a party or the transaction hereunder or
thereunder or (ii) the legality, binding effect or enforceability
against the Borrower or any of its Subsidiaries of the Amendment No. 3
or the other Loan Documents to which it is a party, shall have been
made or obtained and are in full force and effect, all applicable
appeal periods shall have expired (other than with respect to the
NJBPU Approval) and there shall be no litigation, governmental,
administrative or judicial action that could reasonably be expected to
restrain, prevent or impose burdensome conditions on the transactions
contemplated hereby.
(xii) Receipt by the Agent of the satisfactory evidence that
approval by the FPSC in connection with the NUI Secured Facility and
Amendment No. 3 to NUI Utilities Credit Agreement (the "FPSC
Approval") has been obtained in form and substance reasonably
satisfactory to the Agent.
(xiii) The Agent and the Lenders shall have received such other
documents as the Agent, its counsel or any Lender may reasonably
request, other than documents substantially similar to those required
to be delivered pursuant to Section 5(a) of Amendment No. 3.
(kk) The reference to "$2,500,000" in Sections 7.7(i) is hereby
amended to read as "$10,000,000".
16
(ll) Section 7.7(ii) is hereby deleted in its entirety and replaced
with the following in the place thereof:
"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 (other than (x)
in connection with the Focused Audit and (y) any costs related to the
Focused Audit) has been levied, issued, entered or filed against the
Borrower or any of its Subsidiaries or any of their respective
properties in connection with any actual or purported conflict with or
violation or breach by the Borrower or any of its Subsidiaries of any
Governmental Rule (or the Borrower or any of its Subsidiaries 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, as to the Borrower and its
Subsidiaries collectively, of $10,000,000 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 or its Subsidiaries 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 or its Subsidiaries to diligently conduct such contest
thereafter).".
(mm) Section 7.11 is hereby amended by inserting after the phrase "a
final decision" the new phrase which shall read as follows:
"(other than in connection with the Focused Audit)".
(nn) Sections 9.3 is hereby amended by adding after Borrower's address
the new subsection to read as follows:
"with a copy to: Xxxxxx Brazil, Esq.
White & Case LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Telecopier: (000) 000-0000
Telephone: (000) 000-0000".
(oo) Section 9.6a(i) is hereby amended by inserting after the words
"the NUI Utilities Credit Agreement " the new phrase which shall read as
follows:
17
"(except in the case of the assignment of the Additional Term Loans or
the Additional Term Loan Commitments)".
(pp) The references to "the NUI Utilities Credit Agreement" in Section
9.6a(ii) are each hereby amended to read as "the NUI Utilities Credit
Agreement (if applicable)".
(qq) Section 3 of the form of Compliance Certificate attached as
Exhibit F to the Credit Agreement is hereby amended by inserting after the
words "Required Ratio" the footnote which shall read as follows:
"Subject to Sections 5.3a and 5.3b of the Agreement.".
(rr) Schedule 2.1A is hereby added to the Credit Agreement which
Schedule 2.1A shall be in the form as set forth in Annex I hereto.
SECTION 3. Representation and Warranties. The Borrower represents and
warrants as of the date hereof to each of the Agent and the Lenders that after
giving effect to the provisions of this Agreement effective as of the date
hereof:
(a) The Borrower has the corporate power and authority to execute,
deliver and perform this Agreement and has taken all corporate actions
necessary to authorize the execution, delivery and performance of this
Agreement;
(b) This Agreement has been duly executed and delivered on behalf of
the Borrower by a duly authorized officer or attorney-in-fact of the
Borrower;
(c) The execution, delivery and performance of this Agreement will not
violate any requirement of law or any material contractual obligation
binding on the Borrower; and
(d) No consent or authorization of, filing with, notice to or other
act by or in respect of, any Governmental Authority or any other Person is
required in connection with the execution, delivery or performance by the
Borrower of this Agreement, except for such as have been made or obtained
and are in full force and effect (other than the NJBPU Approval (as defined
in Section 2(c) hereof)).
The Borrower acknowledges and agrees that the representations and warranties set
forth above shall survive the execution and delivery hereof and shall be deemed
made in the Credit Agreement for purposes of Section 7.6 of the Credit
Agreement.
SECTION 4. Each Subsidiary of the Borrower listed on the signature
pages hereof (each, a "Guarantor") joins in the execution of this Agreement for
purposes of acknowledging and consenting to the terms of this Agreement and
reaffirming its guaranty obligations under the Guaranty Agreement.
18
SECTION 5. Effectiveness. (a) This Agreement (other than the
provisions of Section 2 hereof) shall become effective subject to the
satisfaction of the following conditions:
(i) Receipt by the Agent of the consents of Lenders constituting the
Required Lenders.
(ii) Receipt by the Agent of the counterparts of this Agreement that,
when taken together, bear the signatures of the Borrower, the Lenders
listed in the Annex I hereto, the Guarantors, and the Agent.
(iii) Receipt by the Agent of a copy of Amendment No. 3 to the NUI
Utilities Credit Agreement (as defined in Section 2(c) hereof) executed by
the agent under the NUI Utilities Credit Agreement on behalf of the
Required Lenders thereunder and NUI Utilities, which Amendment (other than
Section 2 thereof) shall have become effective in accordance with the terms
thereof.
(iv) Receipt by the Agent of all of the Agent's reasonable
out-of-pocket costs and expenses incurred in connection with this Agreement
(including, without limitation, reasonable fees and expenses of its
counsel) for which invoices have been submitted to the Borrower.
(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 date hereof.
(vi) Receipt by the Agent of a certificate, duly certified as of the
date hereof by the secretary or assistant secretary of the Borrower, as to
(A) the By-Laws of the Borrower, in effect as of the date hereof, (B) the
resolutions of the Borrower's Board of Directors authorizing the borrowing
of the Additional Term Loans (as defined in the Section 2(c) hereof) 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 to which the Borrower is a
party and all supplemental documentation, and which contains a true
signature of each such officer.
(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 hereof.
(viii) Receipt by the Agent of a solvency certificate in the form of
Exhibit I to the Credit Agreement.
(ix) Receipt by the Agent on behalf of each Lender of a signed opinion
of (a) Xxxxxx, XxXxxxxxxx & Xxxxxx, P.A., New Jersey counsel to the
Borrower, (b) White & Case LLP, special counsel for the Borrower, and (c)
LeBoeuf, Lamb, Xxxxxx & XxxXxx L.L.P., special regulatory counsel for the
Borrower, in each
19
case, dated as of the date hereof and in form and substance reasonably
satisfactory to the Agent and its counsel.
(x) The Acquisition Agreement shall be in full force and effect on the
date hereof.
(xi) The Agent shall have received documentation and other information
requested by it and required by bank regulatory authorities under
applicable "know your customer" and Anti-Money Laundering rules and
regulations, including, without limitation, the USA Patriot Act, Title III
of Pub. L. 107-56 (signed into law October 26, 2001). Such documentation
shall include, without limitation, evidence satisfactory to the Agent of
(y) the listing of Capital Stock of the Borrower on the New York Stock
Exchange and (z) the Borrower's ownership of all of the outstanding equity
interests of NUI Utilities.
(xii) The Agent and the Lenders shall have received such other
documents as the Agent, its counsel or any Lender may reasonably request.
(b) The provisions of Section 2 hereof shall become effective subject
to the satisfaction of the following conditions: (i) the other provisions of
this Agreement shall have become effective in accordance with the terms thereof,
(ii) the Agent receives on behalf of each Lender consenting to this Agreement at
or prior to 5:00 P.M. (Eastern Standard Time) on Monday, July 26, 2004, an
amendment fee equal to 0.25% of the aggregate principal amount of such Lender's
Term Loans then outstanding (the "Amendment Fee"); provided that the Amendment
Fee shall be payable only if the NJBPU Approval and the FPSC Approval have been
obtained and (iii) the Agent receives the evidence satisfactory to the Agent
that the NJBPU Approval and the FPSC Approval have been obtained, in each case,
in form and substance reasonably satisfactory to the Agent.
SECTION 6. Escrow Arrangement. (a) At any time prior to the obtaining
of the NJBPU Approval and/or the FPSC Approval, the Borrower shall have an
option to request, and the Agent and each Lender hereby agrees, subject to
satisfaction of the conditions of Section 5(a) of this Agreement and Sections
2.6 and 6.3 of the Credit Agreement (determined as if Section 2 hereof had been
given effect)(other than (x) the obtaining of the NJBPU Approval and the FPSC
Approval, (y) the effectiveness of Section 2 hereof and Section 2 of Amendment
No. 3 to the NUI Utilities Credit Agreement and (z) the extension of the
Termination Date under each of the Credit Agreement and the NUI Utilities Credit
Agreement), and receipt by the Agent of at least three Business Days prior
written notice thereof, that each Lender shall make Additional Term Loans
pursuant to Section 2.1; provided that (i) (A) the proceeds of the Additional
Term Loans, (B) the funds to be deposited into the Interest Reserve Account
pursuant to Section 2.6 and Section 6.3(v) of the Credit Agreement (determined
as if Section 2 hereof had been given effect), (C) the Extension Fee under the
Credit Agreement, (D) the Amendment Fee hereunder (but not the costs and
expenses under Section 5(a)(iii) hereof), and (E) the Arrangement Fee (as such
term is defined in the New Facilities Fee Letter) and all other fees then due
and payable on the Additional Term Loans Closing
20
Date pursuant to the New Facilities Fee Letter to be funded into an escrow
account maintained by the Agent at The Bank of New York (the "Escrow Account")
and (ii) all invoiced reimbursable expenses of the Agent incurred on or prior to
the date of such funding (including without limitation the reasonable fees and
disbursements of the Agent's special counsel, Xxxxx Xxxxxxxxxx LLP) shall be
paid by the Borrower prior to or substantially contemporaneously with funding
the proceeds of the Additional Term Loans into the Escrow Account. All of such
funds shall be automatically released on the date when the Agent receives the
evidence satisfactory to the Agent that the NJBPU Approval and the FPSC Approval
have been obtained, in each case, in form and substance reasonably satisfactory
to the Agent and Section 2 of Amendment No. 3 and Section 2 of Amendment No. 3
to the NUI Utilities Credit Agreement shall have become effective (regardless of
whether the other conditions set forth in Sections 6.1 and 6.3 of the Credit
Agreement could be met at such time) to the respective payees as follows: (x)
the Agent shall receive, for the account of each Lender, an amount equal to the
sum of the fees specified in clauses (C) and (D) above, (y) CSFB shall receive,
for its own account, an aggregate amount equal to the Arrangement Fee and all
other fees and expenses then due and payable pursuant hereto or the New
Facilities Fee Letter, and (z) the Borrower shall receive the remainder of the
funds in the Escrow Account. For the avoidance of doubt, (i) the interest on the
Additional Term Loans shall start to accrue and shall be payable to the Lenders
from the date of funding of the proceeds of the Additional Term Loans into the
Escrow Account, and (ii) funds in the Escrow Account shall bear interest from
such date and such interest shall be paid to the Borrower on the date when such
funds are released or returned, as the case may be.
(b) Notwithstanding the foregoing, if funds held in the Escrow Account
are not released on or prior to September 30, 2004 (due to the failure to obtain
the NJBPU Approval or the FPSC Approval), then (i) the provisions of Section 2
hereof shall be null and void, (ii) the Borrower shall then owe a fee (the
"Release Fee") to the Lenders in an aggregate amount equal to the amount of
interest which would have accrued on the Additional Term Loans from the date
escrowed through September 30, 2004, (iii) all funds held in the Escrow Account
shall be distributed on September 30, 2004 as follows: (A) the Agent shall
receive for the account of each Lender an aggregate amount equal to the proceeds
of the Additional Term Loans and the Release Fee, and (B) the Borrower shall
receive the remainder of the funds, if any, in the Escrow Account; provided that
in the event that the funds held in the Escrow Account are not sufficient to
make the distribution set forth in clause (iii)(A) above the Borrower shall pay
to the Agent for the account of each Lender the amount of such deficiency, and
(iv) the compensation, reimbursement and indemnification provisions contained in
the Commitment Letter dated as of July 14, 2004, among the Borrower, NUI
Utilities and CSFB and in the New Facilities Fee Letter shall be reinstated and
in full force and effect on and from the date thereof.
SECTION 7. Miscellaneous. (a) Except as expressly set forth herein,
this Agreement shall not, by implication or otherwise, limit, impair, constitute
a waiver of, or otherwise affect the rights and remedies of the Lenders or the
Agent, under the Credit Agreement or any other Loan Document, and shall not
alter, modify, amend or in any way affect any of the terms, conditions,
obligations, covenants or agreements
21
contained in the Credit Agreement or any other Loan Document, all of which are
ratified and affirmed in all respects and shall continue in full force and
effect. Nothing herein shall be deemed to entitle the Borrower to a consent to,
or a waiver, amendment, modification or other change of, any of the terms,
conditions, obligations, covenants or agreements contained in the Credit
Agreement in similar or different circumstances. This Agreement shall apply and
be effective only with respect to the provisions of the Credit Agreement
specifically referred to herein. Upon this Agreement becoming effective as
provided herein, the term "Loan Document" as defined in the Credit Agreement
shall include, without limitation, this Agreement.
(b) As used in the Credit Agreement, the terms "Agreement," "herein,"
"hereinafter," "hereunder," "hereto," and words of similar import shall mean,
from and after the date this Agreement becomes effective, the Credit Agreement
as amended by this Agreement.
(c) Section headings used herein are for convenience of reference only
and are not to affect the construction of, or to be taken into consideration in
interpreting, this Agreement.
(d) THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED
BY THE LAWS OF THE STATE OF NEW YORK. The parties hereto each hereby consent to
the non-exclusive jurisdiction of the state and federal courts of the State of
New York and irrevocably waive all right to trial by jury in any action,
proceeding or counterclaim arising out of or relating to this Agreement.
(e) This Agreement may be executed in any number of counterparts, each
of which shall be an original but all of which, when taken together, shall
constitute but one instrument. Delivery of an executed counterpart of this
Agreement by fax will be deemed as effective as delivery of an originally
executed counterpart.
22
IN WITNESS WHEREOF, the parties hereto have caused
this Agreement to be duly executed and delivered by their proper and duly
authorized officers as of the date first written above.
NUI CORPORATION
By:/s/ Xxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President, Chief
Financial Officer, General
Counsel and Secretary
NUI CAPITAL CORP.,
as a Guarantor
By:/s/ Xxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
and Secretary
NUI SALTVILLE STORAGE,
INC., as a Guarantor
By:/s/ Xxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
and Secretary
NUI STORAGE, INC.,
as a Guarantor
By:/s/ Xxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
and Secretary
[Signature Page to Amendment No. 3 (NUI Corporation)]
NUI ENERGY BROKERS, INC.,
as a Guarantor
By:/s/ Xxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
Treasurer and Secretary
UTILITY BUSINESS SERVICES, INC.,
as a Guarantor
By:/s/ Xxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
Treasurer and Secretary
NUI SERVICE, INC.,
as a Guarantor
By:/s/ Xxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
and Secretary
NUI RICHTON STORAGE, INC.,
as a Guarantor
By:/s/ Xxxxx X. Xxxxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: President and Treasurer
RICHTON GAS STORAGE
COMPANY L.L.C.
as a Guarantor
By:/s/ Xxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
and Secretary
[Signature Page to Amendment No. 3 (NUI Corporation)]
CREDIT SUISSE FIRST
BOSTON, acting through its
Cayman Islands Branch,
as the Agent and on behalf of the
Required Lenders
By:/s/ Xxxx X. Xxxxx
---------------------------------
Name: Xxxx X. Xxxxx
Title:Managing Director
By:/s/ S. Xxxxxxx Xxx
---------------------------------
Name: S. Xxxxxxx Xxx
Title:Director
CREDIT SUISSE FIRST
BOSTON, acting through its
Cayman Islands Branch,
as the Lender
By:/s/ Xxxx X. Xxxxx
---------------------------------
Name: Xxxx X. Xxxxx
Title:Managing Director
By:/s/ S. Xxxxxxx Xxx
---------------------------------
Name: S. Xxxxxxx Xxx
Title:Director
[Signature Page to Amendment No. 3 (NUI Corporation)]
