EXECUTION COPY
Nicor Inc.
Form 10-Q
Exhibit 10.2
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364-DAY
CREDIT AGREEMENT
DATED AS OF
SEPTEMBER 9, 2003
AMONG
NORTHERN ILLINOIS GAS COMPANY,
and
NICOR INC.
as Borrowers,
THE FINANCIAL INSTITUTIONS PARTY HERETO,
as Lenders,
ABN AMRO BANK N.V.,
as Administrative Agent,
BANK ONE, NA,
as Syndication Agent
and
KEYBANK NATIONAL ASSOCIATION,
as Documentation Agent
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ABN AMRO INCORPORATED
as Arranger and Bookrunner
TABLE OF CONTENTS
(This Table of Contents is not part of the Agreement)
SECTION 1. DEFINITIONS; INTERPRETATION...................................1
Section 1.1 Definitions...........................................1
Section 1.2 Interpretation.......................................12
SECTION 2. THE CREDITS..................................................13
Section 2.1 The Revolving Loan Commitment........................13
Section 2.2 Applicable Interest Rates............................13
Section 2.3 Minimum Borrowing Amounts............................15
Section 2.4 Manner of Borrowing Loans and Designating Interest
Rates Applicable to Loans............................15
Section 2.5 Interest Periods.....................................17
Section 2.6 Maturity of Loans....................................17
Section 2.7 Prepayments..........................................18
Section 2.8 Default Rate.........................................18
Section 2.9 Evidence of Debt.....................................19
Section 2.10 Funding Indemnity....................................19
Section 2.11 Commitments..........................................20
SECTION 3. FEES AND EXTENSIONS..........................................20
Section 3.1 Fees.................................................20
Section 3.2 Extensions...........................................21
SECTION 4. PLACE AND APPLICATION OF PAYMENTS............................22
SECTION 5. REPRESENTATIONS AND WARRANTIES...............................22
Section 5.1 Corporate Organization and Authority.................22
Section 5.2 Subsidiaries.........................................23
Section 5.3 Corporate Authority and Validity of Obligations......23
Section 5.4 Financial Statements.................................23
Section 5.5 No Litigation; No Labor Controversies................24
Section 5.6 Taxes................................................24
Section 5.7 Approvals............................................24
Section 5.8 ERISA................................................24
Section 5.9 Government Regulation................................24
Section 5.10 Margin Stock; Use of Proceeds........................24
Section 5.11 Environmental Warranties.............................25
Section 5.12 Ownership of Property; Liens.........................26
Section 5.13 Compliance with Agreements...........................26
Section 5.14 Full Disclosure......................................26
Section 5.15 Solvency.............................................26
SECTION 6. CONDITIONS PRECEDENT.........................................26
Section 6.1 Initial Borrowing.....................................26
Section 6.2 All Borrowings........................................27
SECTION 7. COVENANTS....................................................28
Section 7.1 Corporate Existence; Material Subsidiaries...........28
Section 7.2 Maintenance..........................................28
Section 7.3 Taxes................................................28
Section 7.4 ERISA................................................28
Section 7.5 Insurance............................................28
Section 7.6 Financial Reports and Other Information..............28
Section 7.7 Lender Inspection Rights.............................30
Section 7.8 Conduct of Business..................................30
Section 7.9 Liens................................................31
Section 7.10 Use of Proceeds; Regulation U........................32
Section 7.11 Mergers, Consolidations and Sales of Assets..........32
Section 7.12 Environmental Matters................................33
Section 7.13 Investments, Acquisitions, Loans, Advances and
Guaranties...........................................33
Section 7.14 Restrictions on Indebtedness.........................34
Section 7.15 Leverage Ratio.......................................35
Section 7.16 Interest Coverage Ratio..............................35
Section 7.17 Dividends and Other Shareholder Distributions........35
Section 7.18 No Negative Pledges..................................35
Section 7.19 Transactions with Affiliates.........................35
Section 7.20 Compliance with Laws.................................36
Section 7.21 Derivative Obligation................................36
Section 7.22 Sales and Leasebacks.................................36
SECTION 8. EVENTS OF DEFAULT AND REMEDIES...............................36
Section 8.1 Events of Default....................................36
Section 8.2 Non-Bankruptcy Defaults..............................38
Section 8.3 Bankruptcy Defaults..................................38
SECTION 9. CHANGE IN CIRCUMSTANCES; TAXES...............................38
Section 9.1 Change of Law........................................38
Section 9.2 Unavailability of Deposits or Inability to
Ascertain, or Inadequacy of, LIBOR...................38
Section 9.3 Increased Costs......................................39
Section 9.4 Taxes................................................40
Section 9.5 Mitigation Obligations; Replacement of Lenders.......42
Section 9.6 Discretion of Lender as to Manner of Funding.........43
SECTION 10. THE AGENT..................................................43
Section 10.1 Appointment and Authority............................43
Section 10.2 Rights as a Lender...................................44
Section 10.3 Exculpatory Provisions...............................44
Section 10.4 Reliance by Administrative Agent.....................45
Section 10.5 Delegation of Duties.................................45
Section 10.6 Resignation of Administrative Agent..................45
Section 10.7 Non-Reliance on Administrative Agent and
Other Lenders........................................46
Section 10.8 No Other Duties, etc.................................46
SECTION 11. MISCELLANEOUS..............................................46
Section 11.1 No Waiver of Rights..................................46
Section 11.2 Non-Business Day.....................................46
Section 11.3 Survival of Representations..........................46
Section 11.4 Survival of Indemnities..............................47
Section 11.5 Set-Off; Sharing of Payments.........................47
Section 11.6 Notices..............................................48
Section 11.7 Counterparts; Integration; Effectiveness;
Electronic Execution.................................49
Section 11.8 Successors and Assigns...............................50
Section 11.9 Amendments...........................................53
Section 11.10 Headings............................................53
Section 11.11 Expenses; Indemnity; Waiver.........................53
Section 11.12 Entire Agreement....................................55
Section 11.13 Governing Law; Jurisdiction; Etc....................55
Section 11.14 WAIVER OF JURY TRIAL................................55
Section 11.15 Treatment of Certain Information; Confidentiality...56
EXHIBITS
A - Form of Note
B - Form of Compliance Certificate
C - Assignment and Assumption
D - Notice of Borrowing
SCHEDULES
SCHEDULE 1 Pricing Grid
SCHEDULE 2 Commitments
SCHEDULE 4 Administrative Agent Notice and Payment Info
SCHEDULE 5.2 Schedule of Existing Subsidiaries
SCHEDULE 7.13 Permitted Investments
SCHEDULE 7.17 Restrictions on Distributions and Existing Negative
Pledges
364-DAY CREDIT AGREEMENT
364-DAY CREDIT AGREEMENT, dated as of September 9, 2003 among Northern
Illinois Gas Company, an Illinois corporation ("Nicor Gas"), Nicor Inc., an
Illinois corporation ("Nicor"; Nicor Gas and Nicor are each referred to herein
as a "Borrower" and collectively as the "Borrowers"), the financial institutions
from time to time party hereto (each a "Lender," and collectively the
"Lenders"), and ABN AMRO Bank N.V. in its capacity as agent for the Lenders
hereunder (in such capacity, the "Administrative Agent").
WITNESSETH THAT:
WHEREAS, the Borrowers desire to obtain the several commitments of the
Lenders to make available a 364-day revolving credit facility for loans as
described herein; and
WHEREAS, the Lenders are willing to extend such commitments subject to all
of the terms and conditions hereof and on the basis of the representations and
warranties hereinafter set forth.
NOW, THEREFORE, in consideration of the recitals set forth above and for
other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the parties hereto hereby agree as follows:
DEFINITIONS; INTERPRETATION.
Definitions. The following terms when used herein have the following meanings:
"Adjusted LIBOR" is defined in Section 2.2(b) hereof.
"Administrative Agent" is defined in the first paragraph of this Agreement
and includes any successor Administrative Agent pursuant to Section 10.6 hereof.
"Administrative Questionnaire" means an administrative questionnaire in a
form supplied by the Administrative Agent.
"Affiliate" means, as to any Person, any other Person which directly or
indirectly controls, or is under common control with, or is controlled by, such
Person. As used in this definition, "control" (including, with their correlative
meanings, "controlled by" and "under common control with") means possession,
directly or indirectly, of power to direct or cause the direction of management
or policies of a Person (whether through ownership of securities or partnership
or other ownership interests, by contract or otherwise).
"Agreement" means this Credit Agreement, including all Exhibits and
Schedules hereto, as it may be amended, supplemented or otherwise modified from
time to time in accordance with the terms hereof.
"Applicable Margin" means, at any time (i) with respect to Base Rate
Loans, the Base Rate Margin and (ii) with respect to Eurodollar Loans, the
Eurodollar Margin.
"Applicable Telerate Page" is defined in Section 2.2(b) hereof.
"Approved Fund" means any Fund that is administered or managed by (a) a
Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an
entity that administers or manages a Lender.
"Arranger" means ABN AMRO Incorporated.
"Assignment and Assumption" means an assignment and assumption entered
into by a Lender and an Eligible Assignee (with the consent of any party whose
consent is required by Section 11.8(b)), and accepted by the Administrative
Agent, in substantially the form of Exhibit C or any other form approved by the
Administrative Agent.
"Authorized Representative" means, which respect to each Borrower, those
persons whose specimen signature is included in the incumbency certificate
provided by such Borrower pursuant to Section 6.1(c) hereof, or any further or
different officer of such Borrower so named by any Authorized Representative of
such Borrower in a written notice to the Administrative Agent.
"Base Rate" is defined in Section 2.2(a) hereof.
"Base Rate Loan" means a Loan bearing interest prior to maturity at a rate
specified in Section 2.2(a) hereof.
"Base Rate Margin" means the percentage set forth in Schedule 1 hereto
beside the then applicable Level.
"Borrower" and "Borrowers" are defined in the first paragraph of this
Agreement.
"Borrowing" means the total of Loans of a single type advanced, continued
for an additional Interest Period, or converted from a different type into such
type by the Lenders on a single date and in the case of Eurodollar Loans for a
single Interest Period. Borrowings of Loans are made by and maintained ratably
for each of the Lenders according to their Percentages. A Borrowing is
"advanced" on the day Lenders advance funds comprising such Borrowing to a
Borrower, is "continued" on the date a new Interest Period for the same type of
Loans commences for such Borrowing and is "converted" when such Borrowing is
changed from one type of Loan to the other, all as requested by a Borrower
pursuant to Section 2.4(a).
"Business Day" means any day other than a Saturday or Sunday on which
Lenders are not authorized or required to close in New York, New York or
Chicago, Illinois and, if the applicable Business Day relates to the borrowing
or payment of a Eurodollar Loan, on which banks are dealing in U.S. Dollars in
the interbank market in London, England.
"Capital" means, as of any date of determination thereof, without
duplication, the sum of (A) Consolidated Net Worth plus (B) Consolidated
Indebtedness.
"Capital Lease" means at any date any lease of Property which, in
accordance with GAAP, would be required to be capitalized on the balance sheet
of the lessee.
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"Capitalized Lease Obligations" means, for any Person, the amount of such
Person's liabilities under Capital Leases determined at any date in accordance
with GAAP.
"CERCLA" means the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended from time to time.
"CERCLIS" means the Comprehensive Environmental Response Compensation
Liability Information System List, as amended from time to time.
"Change in Law" means the occurrence, after the Closing Date, of any of
the following: (a) the adoption or taking effect of any law, rule, regulation or
treaty, (b) any change in any law, rule, regulation or treaty or in the
administration, interpretation or application thereof by any Governmental
Authority or (c) the making or issuance of any guideline or directive (whether
or not having the force of law) by any Governmental Authority.
"Change of Control Event" means one or more of the following events:
(a) less than a majority of the members of the Board of Directors of
a Borrower shall be persons who either (i) were serving as directors on
the Closing Date or (ii) were nominated as directors and approved by the
vote of the majority of the directors who are directors referred to in
clause (i) above or this clause (ii); or
(b) the stockholders of a Borrower shall approve any plan or proposal
for the liquidation or dissolution of a Borrower; or
(c) a Person or group of Persons acting in concert (other than the
direct or indirect beneficial owners of the Voting Stock of a Borrower as
of the Closing Date) shall, as a result of a tender or exchange offer,
open market purchases, privately negotiated purchases or otherwise, have
become the direct or indirect beneficial owner (within the meaning of Rule
13d-3 under the Securities Exchange Act of 1934, as amended from time to
time) of Voting Stock of a Borrower representing more than twenty percent
(20%) of the combined voting power of the outstanding Voting Stock or
other ownership interests for the election of directors or shall have the
right to elect a majority of the Board of Directors of a Borrower; or
(d) Except as permitted by Section 7.11, Nicor ceases at any time to
own one hundred percent (100%) of the Voting Stock and other equity
interest of Nicor Gas.
"Closing Date" means September 9, 2003.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commitment" and "Commitments" are defined in Section 2.1 hereof.
"Compliance Certificate" means a certificate in the form of Exhibit B
hereto.
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"Consolidated Assets" means all assets which should be listed on the
consolidated balance sheet of Borrower and its Subsidiaries, as determined on a
consolidated basis in accordance with GAAP.
"Consolidated EBITDA" means, for any period, for Nicor, calculated on a
consolidated basis, the sum of the amounts for such period of (1) Consolidated
Net Income, plus, (2) to the extent deducted in arriving at Consolidated Net
Income, (i) net federal, state and local income taxes in respect of such period,
(ii) Consolidated Interest Expense, (iii) the amount charged for the
amortization of intangible assets, (iv) the amount charged for the depreciation
of assets, and (v) extraordinary losses, less (B) to the extent added in
arriving at Consolidated Net Income, gains on sales of assets (excluding sales
in the ordinary course of business) and other extraordinary gains, all as
determined on a consolidated basis in accordance with GAAP.
"Consolidated Indebtedness" means, for any Person, all Indebtedness of a
Person determined on a consolidated basis in accordance with GAAP.
"Consolidated Interest Expense" means for any Person, with reference to
any period, calculated on a consolidated basis in accordance with GAAP, the sum
of (i) all interest charges (including capitalized interest, imputed interest
charges with respect to Capitalized Lease Obligations and all amortization of
debt discount and expense and other deferred financing charges), (ii) all
commitment or other fees payable in respect of the issuance of standby letters
of credit or other credit facilities, and (iii) net costs/expenses incurred
under Derivative Arrangements relating to the hedging of interest rates.
"Consolidated Net Income" means for any Person, for any period, calculated
on a consolidated basis in accordance with GAAP, the amount for such period of
net income (or net loss).
"Consolidated Net Worth" means for any Person, as of any time the same is
to be determined, the total shareholders' equity (including both common and
preferred) reflected on the balance sheet of such Person after deducting
treasury stock determined on a consolidated basis in accordance with GAAP.
"Contractual Obligation" means, as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or undertaking to
which such Person is a party or by which it or any of its Property is bound.
"Controlled Group" means all members of a controlled group of corporations
and all members of a controlled group of trades or businesses (whether or not
incorporated) under common control which, together with Nicor, are treated as a
single employer under Section 414(b) or 414(c) of the Code or Section 4001 of
ERISA.
"Credit Documents" means this Agreement, the Notes, the Fee Letter and all
other documents executed in connection herewith or therewith.
"Default" means any event or condition described in Section 8.1 the
occurrence of which would, with the passage of time or the giving of notice, or
both, constitute an Event of Default.
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"Derivative Arrangement" means any agreement (including any master
agreement and any agreement, whether or not in writing, relating to any single
transaction) that is an interest rate swap agreement, basis swap, forward rate
agreement, commodity swap, commodity option, equity or equity index swap or
option, bond option, interest rate option, forward foreign exchange agreement,
rate cap, collar or floor agreement, future agreement, currency swap agreement,
cross-currency rate swap agreement, swaption, currency option, that relates to
fluctuations in raw material prices or utility or energy prices or other costs,
or any other similar agreement, including any option to enter into any of the
foregoing, or any combination of any of the foregoing. "Derivative Arrangements"
shall include all such agreements or arrangements made or entered into at any
time, or in effect at any time, whether or not related to a Loan.
"Derivative Obligations" means, with respect to any Person, all
liabilities of such Person under any Derivative Arrangement (including but not
limited to obligations and liabilities arising in connection with or as a result
of early or premature termination of a Derivative Arrangement, whether or not
occurring as a result of a default thereunder), absolute or contingent, now or
hereafter existing or incurred or due or to become due.
"Eligible Assignee" means (a) a Lender, (b) an Affiliate of a Lender, (c)
an Approved Fund, and (d) any other Person (other than a natural person)
approved by (i) the Administrative Agent, and (ii) unless an Event of Default
has occurred and is continuing, the Borrowers (each such approval not to be
unreasonably withheld or delayed); provided that notwithstanding the foregoing,
"Eligible Assignee" shall not include a Borrower or any of the Borrowers'
Affiliates or Subsidiaries.
"Environmental Laws" means any and all federal, state, local and foreign
statutes, laws, judicial decisions, regulations, ordinances, rules, judgments,
orders, decrees, plans, injunctions, permits, concessions, grants, franchises,
licenses, agreements and other governmental restrictions relating to (i) the
protection of the environment, (ii) the effect of the environment on human
health, (iii) emissions, discharges or releases of pollutants, contaminants,
hazardous substances or wastes into surface water, ground water or land, or (iv)
the manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of pollutants, contaminants, hazardous substances or
wastes or the clean-up or other remediation thereof.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the regulations issued thereunder.
"Eurodollar Loan" means a Loan bearing interest prior to its maturity at
the rate specified in Section 2.2(b) hereof.
"Eurodollar Margin" means the percentage set forth in Schedule 1 hereto
beside the then applicable Level.
"Eurodollar Reserve Percentage" is defined in Section 2.2(b) hereof.
"Event of Default" means any of the events or circumstances specified in
Section 8.1 hereof.
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"Excluded Taxes" means, with respect to the Administrative Agent, any
Lender, or any other recipient of any payment to be made by or on account of any
obligation of a Borrower hereunder, (a) taxes imposed on or measured by its
overall net income (however denominated), and franchise taxes imposed on it (in
lieu of net income taxes), or similar taxes (including alternative minimum
taxes) imposed by a Governmental Authority in jurisdiction (or any political
subdivision thereof) as a result of a connection between the Administrative
Agent, Lender or other recipient and such jurisdiction (or any political
subdivision thereof), (b) any branch profits taxes imposed by the United States
of America or any similar tax imposed by any other jurisdiction in which a
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 9.5), any
withholding tax that would be imposed on amounts payable to such Foreign Lender
at the time such Foreign Lender becomes a party hereto (or designates a new
lending office) or is attributable to such Foreign Lender's failure or inability
(other than as a result of a Change in Law) to comply with Section 9.4, except
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.
"Existing Bi-Lateral Credit Agreements" means those certain committed line
of credit agreements each among the Borrowers and each of ABN AMRO Bank N.V.,
Societe Generale, Bank One, NA, Seaway National Bank, and The Northern Trust
Company.
"Facility Fee Rate" means the percentage set forth in Schedule 1 hereto
beside the then applicable Level.
"Federal Funds Rate" means, for any period, a fluctuating interest rate
per annum equal for each day during such period to:
(a) the weighted average of the rates on overnight federal funds
transactions with members of the United States Federal Reserve System
arranged by federal funds brokers, as published for such day (or, if such
day is not a Business Day, for the next preceding Business Day) by the
United States Federal Reserve Bank of New York; or
(b) if such rate is not so published for any day which is a Business
Day, the average of the quotations for such day on such transactions
received by the Administrative Agent from three federal funds brokers of
recognized standing selected by it.
"Fee Letter" means that certain letter dated as of June 30, 2003 among the
Arranger and Nicor Gas pertaining to fees to be paid by the Borrowers to the
Administrative Agent for its sole account and benefit.
"Foreign Lender" means any Lender that is organized under the laws of a
jurisdiction other than that in which the Borrowers are incorporated or
otherwise organized for tax purposes. For purposes of this definition, the
United States of America, each State thereof and the District of Columbia shall
be deemed to constitute a single jurisdiction.
6
"Fund" means any Person (other than a natural person) that is (or will be)
engaged in making, purchasing, holding or otherwise investing in commercial
loans and similar extensions of credit in the ordinary course of its business.
"GAAP" means generally accepted accounting principles as in effect in the
United States from time to time, applied by Nicor and its Subsidiaries on a
basis consistent with the preparation of Borrower's financial statements
furnished to the Lenders as described in Section 5.4 hereof.
"Governmental Authority" means the government of the United States of
America or any other nation, or of any political subdivision thereof, whether
state or local, and any agency, authority, instrumentality, regulatory body,
court, central bank or other entity exercising executive, legislative, judicial,
taxing, regulatory or administrative powers or functions of or pertaining to
government (including any supra-national bodies such as the European Union or
the European Central Bank).
"Granting Bank" has the meaning specified in Section 11.8(g).
"Guarantee" means, in respect of any Person, any obligation, contingent or
otherwise, of such Person directly or indirectly guaranteeing any Indebtedness
or other obligations of another Person, including, without limitation, by means
of an agreement to purchase or pay (or advance or supply funds for the purchase
or payment of) such Indebtedness or to maintain financial covenants, or to
assure the payment of such Indebtedness by an agreement to make payments in
respect of goods or services regardless of whether delivered, or otherwise;
provided, that the term "Guarantee" shall not include endorsements for deposit
or collection in the ordinary course of business; and such term when used as a
verb shall have a correlative meaning.
"Hazardous Material" means:
(a) any "hazardous substance", as defined by CERCLA; or
(b) any pollutant or contaminant or hazardous, dangerous or toxic
chemical, material or substance within the meaning of any other
Environmental Law.
"Immaterial Subsidiary" shall mean, any direct or indirect Subsidiary of a
Borrower (i) whose total assets (as determined in accordance with GAAP) as of
the date of determination do not represent at least ten percent (10%) of the
total assets (as determined in accordance with GAAP) of such Borrower and its
Subsidiaries on a consolidated basis or (ii) whose total revenues for the most
recently completed twelve months (as determined in accordance with GAAP) do not
represent at least ten percent (10%) of the total revenues (as determined in
accordance with GAAP) of such Borrower and its Subsidiaries on a consolidated
basis for such period.
"Impermissible Qualification" means, relative to the opinion or
certification of any independent public accountant as to any financial statement
of a Borrower, any qualification or exception to such opinion or certification
(i) which is of a "going concern" or similar nature, (ii) which relates to the
limited scope of examination of matters relevant to such financial statement, or
(iii) which relates to the treatment or classification of any item in such
financial statement and
7
which would require an adjustment to such item the
effect of which would be to cause the Borrowers to be in violation of Sections
7.15 or 7.16 hereof.
"Indebtedness" means, as to any Person, without duplication: (i) all
obligations of such Person for borrowed money or evidenced by bonds, debentures,
notes or similar instruments; (ii) all obligations of such Person for the
deferred purchase price of Property or services (other than in respect of trade
accounts payable arising in the ordinary course of business which are not
past-due); (iii) all Capitalized Lease Obligations of such Person; (iv) all
Indebtedness of others secured by a Lien on any Properties, assets or revenues
of such Person to the extent of the lesser of the value of the Property subject
to such Lien or the amount of such Indebtedness; (v) all Guarantees issued by
such Person of Indebtedness of another Person; (vi) all obligations of such
Person, contingent or otherwise, in respect of any letters or credit (whether
commercial or standby) or bankers' acceptances, and (vii) all obligations of
such Person under synthetic (and similar type) lease arrangements; provided that
for purposes of calculating such Person's Indebtedness under such synthetic (or
similar type) lease arrangements, such lease arrangement shall be treated as if
it were a Capitalized Lease.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
"Indemnitee" is defined in Section 11.11(b) hereof.
"Information" is defined in Section 11.15 hereof.
"Interest Coverage Ratio" means, for any period of four consecutive fiscal
quarters of Nicor ending with the most recently completed such fiscal quarter,
the ratio of (A) its Consolidated EBITDA to (B) its Consolidated Interest
Expense for such period.
"Interest Period" is defined in Section 2.5 hereof.
"Investments" is defined in Section 7.14.
"Lender" and "Lenders" are defined in the first paragraph of this
Agreement.
"Level I Status" means, subject to the provisions of Schedule I, Nicor
Gas' S&P Rating is A+ or higher and its Xxxxx'x Rating is A1 or higher.
"Level II Status" means Level I Status does not exist, but, subject to the
provisions of Schedule I, Nicor Gas' S&P Rating is A or higher and its Xxxxx'x
Rating is A2 or higher.
"Level III Status" means neither Level I Status nor Level II Status
exists, but, subject to the provisions of Schedule I, Nicor Gas' S&P Rating is
A- or higher and its Xxxxx'x Rating is A3 or higher.
"Level IV Status" means none of Level I Status, Level II Status nor Level
III Status exists, but, subject to the provisions of Schedule I, Nicor Gas' S&P
Rating is BBB+ or higher and its Xxxxx'x rating is Baa1 or higher.
8
"Level V Status" means none of Level I Status, Level II Status, Level III
Status nor Level IV Status exists, but, subject to the provisions of Schedule I,
Nicor Gas' S&P Rating is BBB or higher and its Xxxxx'x rating is Baa2 or higher.
"Level VI Status" means none of Level I Status, Level II Status, Level III
Status, Level IV Status nor Level V Status exists.
"LIBOR" is defined in Section 2.2(b) hereof.
"Lien" means any interest in Property securing an obligation owed to, or a
claim by, a Person other than the owner of the Property, whether such interest
is based on the common law, statute or contract, including, but not limited to,
the security interest or lien arising from a mortgage, encumbrance, pledge,
conditional sale, security agreement or trust receipt, or a lease, consignment
or bailment for security purposes. For the purposes of this definition, a Person
shall be deemed to be the owner of any Property which it has acquired or holds
subject to a conditional sale agreement, Capital Lease or other arrangement
pursuant to which title to the Property has been retained by or vested in some
other Person for security purposes, and such retention of title shall constitute
a "Lien."
"Loan" and "Loans" are defined in Section 2.1 hereof and includes a Base
Rate Loan or Eurodollar Loan, each of which is a "type" of Loan hereunder.
"Material Adverse Effect" means any effect, resulting from any event or
circumstance whatsoever, which has a material adverse effect on the financial
condition or results of operations of a Borrower, or on the ability of either
Borrower to perform its payment obligations under this Agreement.
"Material Subsidiaries" means any Subsidiary of a Borrower which is not an
Immaterial Subsidiary.
"Xxxxx'x Rating" means the rating assigned by Xxxxx'x Investors Service,
Inc. and any successor thereto that is a nationally recognized rating agency to
the outstanding senior unsecured non-credit enhanced long-term indebtedness of
Nicor Gas (or if neither Xxxxx'x Investors Service, Inc. nor any such successor
shall be in the business of rating long-term indebtedness, a nationally
recognized rating agency in the United States of America as mutually agreed
between the Required Lenders and Borrowers). Any reference in this Agreement to
any specific rating is a reference to such rating as currently defined by
Xxxxx'x Investors Service, Inc. (or such a successor) and shall be deemed to
refer to the equivalent rating if such rating system changes.
"Nicor" is defined in the first paragraph of this Agreement.
"Nicor Gas" is defined in the first paragraph of this Agreement.
"Nicor Gas Indenture" means that certain Indenture, dated as of January 1,
1954, between Commonwealth Edison Company and Continental Illinois National Bank
and Trust Company of Chicago, as supplemented from time to time, and as last
supplemented by a Supplemental Indenture, dated December 15, 0000, xxxxxxx
Xxxxxxxx Xxxxxxxx Gas Company and
9
BNY Midwest Trust Company, as successor
trustee under the Indenture dated as of January 1, 1954, as amended or
supplemented from time to time.
"Nicor Sub-limit" means $150,000,000, as modified from time to time in
accordance with Section 2.11 hereof.
"Note" is defined in Section 2.9(a) hereof.
"Notice of Borrowing" means a notice of borrowing in the form of Exhibit D
hereto.
"Obligations" means all fees payable hereunder, all obligations of the
Borrowers to pay principal or interest on Loans, fees, expenses, indemnities,
and all other payment obligations of the Borrowers arising under or in relation
to any Credit Document.
"Other Taxes" means 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 under any other Credit Document or from the execution,
delivery or enforcement of, or otherwise with respect to, this Agreement or any
other Credit Document.
"Participant" is defined in Section 11.8(d) hereof.
"PBGC" means the Pension Benefit Guaranty Corporation.
"Pension Plan" means a "pension plan", as such term is defined in section
3(2) of ERISA, which is subject to Title IV of ERISA, and to which Nicor or any
member of the Controlled Group, may have liability, including any liability by
reason of having been a substantial employer within the meaning of section 4063
of ERISA at any time during the preceding five years, or by reason of being
deemed to be a contributing sponsor under section 4069 of ERISA.
"Percentage" means, for each Lender, the percentage of the Commitments
represented by such Lender's Commitment or, if the Commitments have been
terminated, the percentage held by such Lender of the aggregate principal amount
of all outstanding Obligations.
"Permitted Derivative Obligations" means all Derivative Obligations as to
which the Derivative Arrangements giving rise to such Derivative Obligation are
entered into in the ordinary course of business to hedge interest rate risk,
currency risk, commodity price risk or the production of a Borrower or its
Subsidiaries (and not for speculative purposes).
"Person" means an individual, partnership, corporation, limited liability
company, association, trust, unincorporated organization or any other entity or
organization, including a government or any agency or political subdivision
thereof.
"Property" means any interest in any kind of property or asset, whether
real, personal or mixed, or tangible or intangible, whether now owned or
hereafter acquired.
10
"Related Parties" means, subject to the provisions of Section 11.9 with
respect to any Person, such Person's Affiliates and the directors, officers,
employees, agents and advisors of such Person and of such Person's Affiliates.
"Release" means "release", as such term is defined in CERCLA
"Required Lenders" means, as of the date of determination thereof, Lenders
holding in the aggregate sixty-six and two-thirds percent (66 and 2/3%) or more
of the Percentages.
"SEC" means the United States Securities and Exchange Commission.
"SEC Disclosure Documents" means all reports on forms 10K, 10Q, and 8K
filed by Nicor with the SEC prior to the Closing Date.
"Security" has the same meaning as in Section 2(l) of the Securities Act
of 1933, as amended.
"S&P Rating" means the rating assigned by Standard & Poor's Ratings Group,
a division of The XxXxxx-Xxxx Companies, Inc. and any successor thereto that is
a nationally recognized rating agency to the outstanding senior unsecured
non-credit enhanced long-term indebtedness of Nicor Gas (or, if neither such
division nor any successor shall be in the business of rating long-term
indebtedness, a nationally recognized rating agency in the United States as
mutually agreed between the Required Lenders and Borrower). Any reference in
this Agreement to any specific rating is a reference to such rating as currently
defined by Standard & Poor's Ratings Group, a division of The XxXxxx-Xxxx
Companies, Inc. (or such a successor) and shall be deemed to refer to the
equivalent rating if such rating system changes.
"Solvent" means that (a) the fair value of a Person's assets is in excess
of the total amount of such Person's debts, as determined in accordance with the
United States Bankruptcy Code, and (b) the present fair saleable value of a
Person's assets is in excess of the amount that will be required to pay such
Person's debts as they become absolute and matured. As used in this definition,
the term "debts" includes any legal liability, whether matured or unmatured,
liquidated or unliquidated, absolute, fixed or contingent, as determined in
accordance with the United States Bankruptcy Code.
"SPC" has the meaning specified in Section 11.8(g).
"Subsidiary" means, as to a Borrower, any corporation or other entity (i)
which is or should be consolidated into the financial statements of such
Borrower in accordance with GAAP or (ii) of which more than fifty percent (50%)
of the outstanding stock or comparable equity interests having ordinary voting
power for the election of the Board of Directors of such corporation or similar
governing body in the case of a non-corporation (irrespective of whether or not,
at the time, stock or other equity interests of any other class or classes of
such corporation or other entity shall have or might have voting power by reason
of the happening of any contingency) is at the time directly or indirectly owned
by such Borrower or by one or more of its Subsidiaries.
11
"Taxes" means all present or future taxes, levies, imposts, duties,
deductions, withholdings, assessments, fees or other charges imposed by any
Governmental Authority, including any interest, additions to tax or penalties
applicable thereto.
"Telerate Service" means the Moneyline Telerate, Inc.
"Termination Date" means September 8, 2004, as extended from time to time
pursuant to Section 3.2.
"Unfunded Vested Liabilities" means, with respect to any Plan at any time,
the amount (if any) by which (i) the present value of all vested nonforfeitable
accrued benefits under such Plan exceeds (ii) the fair market value of all Plan
assets allocable to such benefits, all determined as of the then most recent
valuation date for such Plan, but only to the extent that such excess represents
a potential liability of a member of the Controlled Group to the PBGC or the
Plan under Title IV of ERISA.
"U.S. Dollars" and "$" each means the lawful currency of the United States
of America.
"Voting Stock" of any Person means capital stock of any class or classes
or other equity interests (however designated) having ordinary voting power for
the election of directors or similar governing body of such Person.
"Welfare Plan" means a "welfare plan", as such term is defined in section
3(1) of ERISA.
"Wholly-Owned Subsidiary" means a Subsidiary of Borrower of which all of
the issued and outstanding shares of stock or other equity interests (other than
directors' qualifying shares as required by law) shall be owned, directly or
indirectly, by a Borrower.
Interpretation. 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". The word "will" shall be
construed to have the same meaning and effect as the word "shall". 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, this Agreement and (e) 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. All references to
times of day in this Agreement shall be references to New York, New York time
unless otherwise specifically provided. Where the character or amount of any
asset or liability or item of income or expense is required to be determined or
any consolidation or other accounting
12
computation is required to be made for the
purposes of this Agreement, the same shall be done in accordance with GAAP in
effect on the Closing Date, to the extent applicable, except where such
principles are inconsistent with the specific provisions of this Agreement.
THE CREDITS.
The Revolving Loan Commitment. Subject to the terms and conditions hereof
(including Sections 6.1 and 6.2), each Lender, by its acceptance hereof,
severally agrees to make a loan or loans (individually a "Loan" and collectively
"Loans") to the Borrowers from time to time on a revolving basis in U.S. Dollars
in an aggregate outstanding amount up to the amount of its commitment set forth
on Schedule 2 hereto (such amount, as reduced pursuant to Section 2.11(a),
increased pursuant to Section 2.11(b), or changed as a result of one or more
assignments under Section 11.8, its "Commitment" and, cumulatively for all the
Lenders, the "Commitments") before the Termination Date; provided that (i) the
aggregate amount of Loans at any time outstanding shall not exceed the
Commitments in effect at such time, and (ii) the aggregate principal amount of
Loans owing by Nicor at any one time may not exceed the Nicor Sub-limit. On the
Termination Date the Commitments shall terminate. Each Borrowing of Loans shall
be made ratably from the Lenders in proportion to their respective Percentages.
As provided in Section 2.4(a) hereof, a Borrower may elect that each Borrowing
of Loans be either Base Rate Loans or Eurodollar Loans. Loans may be repaid and
the principal amount thereof reborrowed before the Termination Date, subject to
all the terms and conditions hereof. Unless an earlier maturity is provided for
hereunder, all Loans shall mature and be due and payable on the Termination
Date. Each Borrower shall be severally and not jointly liable for any Borrowings
made by it.
Applicable Interest Rates.
Base Rate Loans. Each Base Rate Loan made or maintained by a Lender shall bear
interest during the period it is outstanding (computed (x) at all times the Base
Rate is based on the rate described in clause (i) of the definition thereof, on
the basis of a year of 365 or 366 days, as applicable, and actual days elapsed
or (y) at all times the Base Rate is based on the rate described in clause (ii)
of the definition thereof, on the basis of a year of 360 days and actual days
elapsed) on the unpaid principal amount thereof from the date such Loan is
advanced, continued or created by conversion from a Eurodollar Loan until
maturity (whether by acceleration or otherwise) at a rate per annum equal to the
sum of the Applicable Margin plus the Base Rate from time to time in effect,
payable on the last day of each calendar quarter and at maturity (whether by
acceleration or otherwise).
"Base Rate" means for any day the greater of:
(i) the rate of interest announced by ABN AMRO Bank N.V. from time to
time as its prime rate, or equivalent, for U.S. Dollar loans within the
United States as in effect on such day, with any change in the Base Rate
resulting from a change in said prime rate to be effective as of the date
of the relevant change in said prime rate; and
(ii) the sum of (x) the Federal Funds Rate, plus (y) 1/2 of 1%
(0.50%).
13
Eurodollar Loans. Each Eurodollar Loan made or maintained by a Lender shall bear
interest during each Interest Period it is outstanding (computed on the basis of
a year of 360 days and actual days elapsed) on the unpaid principal amount
thereof from the date such Loan is advanced, continued, or created by conversion
from a Base Rate Loan until maturity (whether by acceleration or otherwise) at a
rate per annum equal to the sum of the Applicable Margin plus the Adjusted LIBOR
applicable for such Interest Period, payable on the last day of the Interest
Period and at maturity (whether by acceleration or otherwise), and, if the
applicable Interest Period is longer than three months, on each day occurring
every three months after the commencement of such Interest Period.
"Adjusted LIBOR" means, for any Borrowing of Eurodollar Loans, a rate per
annum determined in accordance with the following formula:
Adjusted LIBOR = LIBOR
---------------------------
1 - Eurodollar Reserve
Percentage
"LIBOR" means, for an Interest Period for a Borrowing of Eurodollar Loans,
(a) the LIBOR Index Rate for such Interest Period, if such rate is available,
and (b) if the LIBOR Index Rate cannot be determined, the arithmetical average
of the rates of interest per annum (rounded upwards, if necessary, to the
nearest one-sixteenth of one percent) at which deposits in U.S. Dollars, in
immediately available funds are offered to the Administrative Agent at 11:00
a.m. (London, England time) two (2) Business Days before the beginning of such
Interest Period by major banks in the interbank eurodollar market for delivery
on the first day of and for a period equal to such Interest Period in an amount
equal or comparable to the principal amount of the Eurodollar Loan scheduled to
be made by each Lender as part of such Borrowing.
"LIBOR Index Rate" means, for any Interest Period, the rate per annum
(rounded upwards, if necessary, to the next higher one-sixteenth of one percent)
for deposits in U.S. Dollars for delivery on the first day of and for a period
equal to such Interest Period in an amount equal or comparable to the principal
amount of the Eurodollar Loan scheduled to be made by each Lender as part of
such Borrowing, which appears on the Applicable Telerate Page as of 11:00 a.m.
(London, England time) on the day two (2) Business Days before the commencement
of such Interest Period.
"Applicable Telerate Page" means the display page designated as "Page
3750" on the Telerate Service (or such other pages as may replace any such page
on that service or such other service as may be nominated by the British
Bankers' Association as the information vendor for the purpose of displaying
British Bankers' Association Interest Settlement Rates for deposits in U.S.
Dollars).
"Eurodollar Reserve Percentage" means for an Borrowing of Eurodollar Loans
from any Lender, the daily average for the applicable Interest Period of the
actual effective rate, expressed as a decimal, at which reserves (including,
without limitation, any supplemental, marginal and emergency reserves) are
maintained by such Lender during such Interest Period pursuant to Regulation D
of the Board of Governors of the Federal Reserve System (or any successor) on
"eurocurrency liabilities", as defined in such Board's Regulation D (or in
respect of any other category of liabilities that includes deposits by reference
to which the interest rate on Eurodollar
14
Loans is determined or any category of
extensions of credit or other assets that include loans by non-United States
offices of any Lender to United States residents), subject to any amendments of
such reserve requirement by such Board or its successor, taking into account any
transitional adjustments thereto. For purposes of this definition, the
Eurodollar Loans shall be deemed to be "eurocurrency liabilities" as defined in
Regulation D without benefit or credit for any prorations, exemptions or offsets
under Regulation D.
Rate Determinations. The Administrative Agent shall determine each interest rate
applicable to Obligations, and a determination thereof by the Administrative
Agent shall be conclusive and binding except in the case of manifest error.
Minimum Borrowing Amounts. Each Borrowing of Base Rate Loans and Eurodollar
Loans shall be in an amount not less than (i) if such Borrowing is comprised of
a Borrowing of Base Rate Loans, $1,000,000 and integral multiples of $500,000 in
excess thereof, and (ii) if such Borrowing is comprised of a Borrowing of
Eurodollar Loans, $2,000,000 and integral multiples of $1,000,000 in excess
thereof.
Manner of Borrowing Loans and Designating Interest Rates
Applicable to Loans.
Notice to the Administrative Agent. A Borrower shall give notice to the
Administrative Agent by no later than 10:00 a.m. (Chicago time) (i) at least
three (3) Business Days before the date on which such Borrower requests the
Lenders to advance a Borrowing of Eurodollar Loans, or (ii) on the date on which
such Borrower requests the Lenders to advance a Borrowing of Base Rate Loans.
The Loans included in each Borrowing shall bear interest initially at the type
of rate specified in such notice of a new Borrowing. Thereafter, such Borrower
may from time to time elect to change or continue the type of interest rate
borne by each Borrowing or, subject to Section 2.3, a portion thereof, as
follows: (i) if such Borrowing is of Eurodollar Loans, on the last day of the
Interest Period applicable thereto, such Borrower may continue part or all of
such Borrowing as Eurodollar Loans for an Interest Period or Interest Periods
specified by such Borrower or convert part or all of such Borrowing into Base
Rate Loans, and (ii) if such Borrowing is of Base Rate Loans, on any Business
Day, such Borrower may convert all or part of such Borrowing into Eurodollar
Loans for an Interest Period or Interest Periods specified by such Borrower. The
Borrowers shall give all such notices requesting, the advance, continuation, or
conversion of a Borrowing to the Administrative Agent by telephone, facsimile or
electronic means (which notice shall be irrevocable once given and, if by
telephone, shall be promptly confirmed in writing). Notices of the continuation
of a Borrowing of Eurodollar Loans for an additional Interest Period or of the
conversion of part or all of a Borrowing of Eurodollar Loans into Base Rate
Loans or of Base Rate Loans into Eurodollar Loans must be given by no later than
12:00 noon (Chicago time) at least three (3) Business Days before the date of
the requested continuation or conversion. All such notices concerning the
advance, continuation, or conversion of a Borrowing shall be irrevocable once
given and shall specify the Borrower who is requesting the advance,
continuation, or conversion of the applicable Borrowing, the date of the
requested advance, continuation or conversion of a Borrowing (which shall be a
Business Day), the amount of the requested Borrowing to be advanced, continued,
or converted, the type of Loans to comprise such new, continued or converted
Borrowing and, if such Borrowing is to be comprised of Eurodollar Loans, the
Interest Period applicable thereto. All such notices shall be in the form of a
Notice of Borrowing, unless otherwise consented to by the Administrative
15
Agent;
provided that the Borrowers agree that the Administrative Agent may rely on any
telephonic, facsimile or electronic notice given by any person it in good faith
believes is an Authorized Representative without the necessity of independent
investigation, and in the event any such notice by telephone conflicts with any
written confirmation, such telephonic notice shall govern if the Administrative
Agent has acted in reliance thereon. There may be no more than six different
Interest Periods in effect at any one time. Any Loans made on the Closing Date
shall be Base Rate Loans.
Notice to the Lenders. The Administrative Agent shall give prompt telephonic,
facsimile or electronic notice to each Lender of any notice from a Borrower
received pursuant to Section 2.4(a) above. The Administrative Agent shall give
notice to such Borrower and each Lender by like means of the interest rate
applicable to each Borrowing of Eurodollar Loans.
Borrower's Failure to Notify. If a Borrower fails to give notice pursuant to
Section 2.4(a) above of the continuation or conversion of any outstanding
principal amount of a Borrowing of Eurodollar Loans before the last day of its
then current Interest Period within the period required by Section 2.4(a) and
has not notified the Administrative Agent within the period required by Section
2.7(a) that it intends to prepay such Borrowing, such Borrowing shall
automatically be converted into a Borrowing of Base Rate Loans, subject to
Section 6.2 hereof. The Administrative Agent shall promptly notify the Lenders
of a Borrower's failure to so give a notice under Section 2.4(a).
Disbursement of Loans. Not later than 12:00 noon (New York time) on the date of
any requested advance of a new Borrowing of Eurodollar Loans, and not later than
2:00 p.m. (New York time) on the date of any requested advance of a new
Borrowing of Base Rate Loans, subject to Section 6 hereof, each Lender shall
make available its Loan comprising part of such Borrowing in funds immediately
available at the principal office of the Administrative Agent in New York, New
York. The Administrative Agent shall make Loans available to Borrower at the
Administrative Agent's principal office in New York, New York or such other
office as the Administrative Agent has previously agreed in writing to with
Borrowers, in each case in the type of funds received by the Administrative
Agent from the Lenders.
Funding by Lenders; Presumption by Administrative Agent. Unless the
Administrative Agent shall have received notice from a Lender prior to the
proposed date of any Borrowing that such Lender will not make available to the
Administrative Agent such Lender's share of such Borrowing, the Administrative
Agent may assume that such Lender has made such share available on such date in
accordance with Section 2.4(d) and may, in reliance upon such assumption, make
available to the applicable to a Borrower a corresponding amount. In such event,
if a Lender has not in fact made its share of the applicable Borrowing available
to the Administrative Agent, then the applicable Lender and applicable Borrower
severally agree to pay to the Administrative Agent forthwith on demand such
corresponding amount with interest thereon, for each day from and including the
date such amount is made available to such Borrower to but excluding the date of
payment to the Administrative Agent, at (i) in the case of a payment to be made
by such Lender, the greater of the Federal Funds Rate and a rate determined by
the Administrative Agent in accordance with banking industry rules on interbank
compensation and (ii) in the case of a payment to be made by a Borrower, the
interest rate applicable to such Loans. If such Borrower and such Lender shall
pay such interest to the
16
Administrative Agent for the same or an overlapping
period, the Administrative Agent shall promptly remit to such Borrower the
amount of such interest paid by such Borrower for such period. If such Lender
pays such amount to the Administrative Agent, then such amount shall constitute
such Lender's Loan included in such Borrowing. Any payment by such Borrower
shall be without prejudice to any claim such Borrower may have against a Lender
that shall have failed to make such payment to the Administrative Agent.
Payments by Borrowers; Presumptions by Administrative Agent. Unless the
Administrative Agent shall have received notice from a Borrower prior to the
date on which any payment is due to the Administrative Agent for the account of
the Lenders hereunder that such Borrower will not make such payment, the
Administrative Agent may assume that such Borrower has made such payment on such
date in accordance herewith and may, in reliance upon such assumption,
distribute to the Lenders the amount due. In such event, if such Borrower has
not in fact made such payment, then each of the Lenders severally agrees to
repay to the Administrative Agent forthwith on demand the amount so distributed
to such Lender, with interest thereon, for each day from and including the date
such amount is distributed to it to but excluding the date of payment to the
Administrative Agent, at the greater of the Federal Funds Rate and a rate
determined by the Administrative Agent in accordance with banking industry rules
on interbank compensation.
Interest Periods. As provided in Section 2.4(a) hereof, at the time of each
request of a Borrowing of Eurodollar Loans, a Borrower shall select an Interest
Period applicable to such Loans from among the available options. The term
"Interest Period" means the period commencing on the date a Borrowing of
Eurodollar Loans is advanced, continued, or created by conversion and ending 1,
2, 3, or 6 months thereafter; provided, however, that:
a Borrower may not select an Interest Period that extends
beyond the Termination Date;
whenever the last day of any Interest Period would otherwise be a day that
is not a Business Day, the last day of such Interest Period shall be
extended to the next succeeding Business Day; provided that, if such
extension would cause the last day of an Interest Period to occur in the
following calendar month, the last day of such Interest Period shall be
the immediately preceding Business Day; and
for purposes of determining an Interest Period, a month means a period
starting on one day in a calendar month and ending on the numerically
corresponding day in the next calendar month; provided, however, that if
there is no numerically corresponding day in the month in which such an
Interest Period is to end or if such an Interest Period begins on the last
Business Day of a calendar month, then such Interest Period shall end on
the last Business Day of the calendar month in which such Interest Period
is to end.
Maturity of Loans. Unless an earlier maturity is provided for hereunder (whether
by acceleration or otherwise), all Obligations (including principal and interest
on all outstanding Loans) shall mature and become due and payable on the
Termination Date. Each Borrower hereby promises to pay as and when due each
Obligation owing by it. Each Borrower hereby waives demand, presentment, protest
or notice of any kind with respect to each such Obligation.
17
Prepayments. (a) Borrowers may prepay without premium or penalty and in whole or
in part (but, if in part, then (i) in an amount not less than $5,000,000 and
integral multiples of $1,000,000 in excess thereof, and (ii) in an amount such
that the minimum amount required for a Borrowing pursuant to Section 2.3 hereof
remains outstanding) any Borrowing of Eurodollar Loans upon three (3) Business
Days' prior irrevocable notice to the Administrative Agent or, in the case of a
Borrowing of Base Rate Loans, irrevocable notice delivered to the Administrative
Agent no later than 12:00 noon (Chicago time) on the date of prepayment, such
prepayment to be made by the payment of the principal amount to be prepaid and
accrued interest thereon to the date fixed for prepayment. In the case of
Eurodollar Loans, any amounts owing under Section 2.10 hereof as a result of
such prepayment shall be paid contemporaneously with such prepayment. The
Administrative Agent will promptly advise each Lender of any such prepayment
notice it receives from a Borrower. Any amount paid or prepaid before the
Termination Date may, subject to the terms and conditions of this Agreement, be
borrowed, repaid and borrowed again.
(b) If the aggregate amount of outstanding Loans shall at any time for any
reason exceed the Commitments then in effect, the Borrowers shall, immediately
and without notice or demand, pay the amount of such excess to the
Administrative Agent for the ratable benefit of the Lenders as a prepayment of
the Loans and such prepayments shall not be subject to the provisions of Section
2.7(a). Immediately upon determining the need to make any such prepayment
Borrowers shall notify the Administrative Agent of such required prepayment.
Each such prepayment shall be accompanied by a payment of all accrued and unpaid
interest on the Loans prepaid and shall be subject to Section 2.10.
Default Rate. If any Obligation, is not paid when due (whether by acceleration
or otherwise), or upon the occurrence of any Event of Default and notice from
the Administrative Agent to the Borrowers referencing such Event of Default and
stating that the additional interest specified in this Section 2.8 shall
commence accruing, all Obligations shall, to the extent permitted by applicable
law, bear interest (computed on the basis of a year of 360 days and actual days
elapsed or, if based on the rate described in clause (i) of the definition of
Base Rate, on the basis of a year of 365 or 366 days, as applicable, and the
actual number of days elapsed) from the date such payment on such Obligations
was due or such notice was delivered, until paid in full or such Event of
Default is waived in accordance with the provisions of this Agreement, payable
on demand, at a rate per annum equal to:
for any Obligation other than a Eurodollar Loan (including principal and
interest relating to Base Rate Loans and interest on Eurodollar Loans),
the sum of two percent (2%) plus the Applicable Margin applicable to Base
Rate Loans plus the Base Rate from time to time in effect; and
for the principal of any Eurodollar Loan, the sum of two percent (2%) plus
the rate of interest in effect thereon at the time of such default until
the end of the Interest Period applicable thereto and, thereafter, at a
rate per annum equal to the sum of two percent (2%) plus the Applicable
Margin applicable to Base Rate Loans plus the Base Rate from time to time
in effect.
18
Evidence of Debt. (a) Each Lender shall maintain in accordance with its usual
practice an account or accounts evidencing the indebtedness of each Borrower to
such Lender resulting from each Loan owing to such Lender from time to time,
including the amounts of principal and interest payable and paid to such Lender
from time to time hereunder in respect of Loans. Each Borrower agrees that upon
notice by any Lender to such Borrower (with a copy of such notice to the
Administrative Agent) to the effect that a Note is required or appropriate in
order for such Lender to evidence (whether for purposes of pledge, enforcement
or otherwise) the Loans owing to, or to be made by, such Lender under the Credit
Documents, such Borrower shall promptly execute and deliver to such Lender a
promissory note in the form of Exhibit A hereto (each such promissory note is
hereinafter referred to as a "Note" and collectively such promissory notes are
referred to as the "Notes").
(b) The Register maintained by the Administrative Agent pursuant to
Section 11.8(c) shall include a control account, and a subsidiary account for
each Lender, in which accounts (taken together) shall be recorded (i) the date
and amount of each Borrowing made hereunder, the applicable Borrower for such
Borrowing, the type of Loan comprising such Borrowing and, if appropriate, the
Interest Period applicable thereto, (ii) the terms of each Assignment and
Acceptance delivered to and accepted by it, (iii) the amount of any principal or
interest due and payable or to become due and payable from each Borrower to each
Lender hereunder and (iv) the amount of any sum received by the Administrative
Agent from a Borrower hereunder and each Lender's share thereof.
(c) Entries made in good faith by the Administrative Agent in the Register
pursuant to subsection (b) above, and by each Lender in its account or accounts
pursuant to subsection (a) above, shall be prima facie evidence of the amount of
principal and interest due and payable or to become due and payable from a
Borrower to, in the case of the Register, each Lender and, in the case of such
account or accounts, such Lender, under this Agreement, absent manifest error;
provided, however, that the failure of the Administrative Agent or such Lender
to make an entry, or any finding that an entry is incorrect, in the Register or
such account or accounts shall not limit or otherwise affect the obligations of
a Borrower under this Agreement.
Funding Indemnity. If any Lender shall incur any loss, cost or expense
(including, without limitation, any loss, cost or expense (excluding loss of
margin) incurred by reason of the liquidation or re-employment of deposits or
other funds acquired by such Lender to fund or maintain any Eurodollar Loan or
the relending or reinvesting of such deposits or amounts paid or prepaid to such
Lender) as a result of:
any payment (whether by acceleration, pursuant to Section 9.5 or
otherwise), prepayment or conversion of a Eurodollar Loan on a date other
than the last day of its Interest Period,
any failure (because of a failure to meet the conditions of Section 6 or
otherwise) by a Borrower to borrow or continue a Eurodollar Loan, or to
convert a Base Rate Loan into a Eurodollar Loan, on the date specified in
a notice given pursuant to Section 2.4(a) or established pursuant to
Section 2.4(c) hereof,
any failure by a Borrower to make any payment or prepayment of principal
on any Eurodollar Loan when due (whether by acceleration or otherwise), or
19
any acceleration of the maturity of a Eurodollar Loan as a
result of the occurrence of any Event of Default hereunder,
then, upon the demand of such Lender, the applicable Borrower shall pay to such
Lender such amount as will reimburse such Lender for such loss, cost or expense.
If any Lender makes such a claim for compensation, it shall provide to such
Borrower, with a copy to the Administrative Agent, a certificate executed by an
officer of such Lender setting forth the amount of such loss, cost or expense in
reasonable detail (including an explanation of the basis for and the computation
of such loss, cost or expense) and the amounts shown on such certificate if
reasonably calculated shall be prima facie evidence of the amount of such loss,
cost or expense.
Commitments. (a) Borrowers shall have the right at any time and from time to
time, upon five (5) Business Days' prior written notice to the Administrative
Agent, to reduce or terminate the Commitments without premium or penalty, in
whole or in part, any partial termination or reduction to be (i) in an amount
not less than $5,000,000 and integral multiples of $1,000,000 in excess thereof,
and (ii) allocated ratably among the Lenders in proportion to their respective
Percentages; provided that the Commitments may not be reduced to an amount less
than the amount of the Loans then outstanding. Any reduction in the Commitments
below $150,000,000 shall result in a ratable reduction of the Nicor Sub-limit.
The Administrative Agent shall give prompt notice to each Lender of any
reduction or termination of Commitments. Any reduction or termination of
Commitments pursuant to this Section 2.11 may not be reinstated.
(b) The Borrowers and the Administrative Agent may from time to time add
additional financial institutions as parties to this Agreement or, with the
written consent of an existing Lender, increase the Commitment of such existing
Lender (any such financial institution or existing Lender which is increasing
its commitment being referred to as an "Added Lender") pursuant to documentation
satisfactory to the Borrowers and the Administrative Agent and any such Added
Lender shall for all purposes be considered a Lender for purposes of this
Agreement and the other Credit Documents with a Commitment as set forth in such
documentation. Any such Added Lender shall on the date it is deemed a party to
this Agreement purchase from the other Lenders its Percentage (or the increase
in its Percentage, in the case of an Added Lender which is an existing Lender)
of the Loans outstanding. Notwithstanding anything contained in this Section
2.11(b) to the contrary, the aggregate amount of Commitments may not at any time
exceed $500,000,000 without the consent of the Required Lenders.
FEES AND EXTENSIONS.
Fees.
Facility Fee. From and after the Closing Date, Borrowers shall pay to the
Administrative Agent for the ratable account of the Lenders in accordance with
their Percentages a facility fee accruing at a rate per annum equal to the
Facility Fee Rate on the average daily amount of the Commitments (whether used
or unused), or if the Commitments have expired or terminated, on the principal
amount of Loans then outstanding. Such facility fee is payable in arrears on the
last Business Day of each calendar quarter and on the Termination Date, and if
the Commitments are terminated in whole prior to the Termination Date, the fee
for the period to but not including the date of such termination shall be paid
in whole on the date of such termination.
20
Administrative Agent Fees. Nicor shall pay to the Administrative Agent for the
sole account of the Administrative Agent the fees agreed to by Nicor in the Fee
Letter or as otherwise agreed among them in writing.
Fee Calculations. All fees payable under this Agreement shall be payable in U.S.
Dollars and shall be computed on the basis of a year of 360 days, for the actual
number of days elapsed. All determinations of the amount of fees owing hereunder
(and the components thereof) shall be made by the Administrative Agent and shall
be prima facie evidence of the amount of such fee.
Extensions.
Requests for Extension. The Borrowers may, by notice to the Administrative Agent
(which shall promptly notify the Lenders) not earlier than 45 days and not later
than 35 days prior to the Termination Date then in effect hereunder (the
"Existing Termination Date"), request that each Lender extend such Lender's
Termination Date for an additional 364 days from the Existing Termination Date.
Lender Elections to Extend. Each Lender, acting in its sole and individual
discretion, shall, by notice to the Administrative Agent given not earlier than
30 days prior to the Existing Termination Date and not later than the date (the
"Notice Date") that is 20 days prior to the Existing Termination Date, advise
the Administrative Agent whether or not such Lender agrees to such extension and
each Lender that determines not to so extend its Commitment Termination Date (a
"Non-Extending Lender") shall notify the Administrative Agent of such fact
promptly after such determination (but in any event no later than the Notice
Date) and any Lender that does not so advise the Administrative Agent on or
before the Notice Date shall be deemed to be a Non-Extending Lender. The
election of any Lender to agree to such extension shall not obligate any other
Lender to so agree.
Notification by Administrative Agent. The Administrative Agent shall notify the
Borrowers of each Lender's determination under this Section no later than the
date 15 days prior to the Existing Termination Date (or, if such date is not a
Business Day, on the next preceding Business Day).
Additional Commitment Lenders. The Borrowers shall have the right on or before
the Existing Termination Date to replace each Non-Extending Lender with, and add
as "Lenders" under this Agreement in place thereof, one or more Eligible
Assignees (each, an "Additional Commitment Lender") with the approval of the
Administrative Agent (which approval shall not be unreasonably withheld). Each
Additional Commitment Lender shall enter into an agreement in form and substance
satisfactory to the Borrowers and the Administrative Agent pursuant to which
such Additional Commitment Lender shall, effective as of the Existing
Termination Date, undertake a Commitment (and, if any such Additional Commitment
Lender is already a Lender, its Commitment shall be in addition to such Lender's
Commitment hereunder on such date).
Minimum Extension Requirement. If (and only if) the total of the Commitments of
the Lenders that have agreed to extend their Termination Date and the additional
Commitments of the Additional Commitment Lenders shall be more than 80% of the
aggregate amount of the Commitments in effect immediately prior to the Existing
Termination Date, then, effective as of the Existing Termination Date, the
Termination Date of each Extending Lender and of each
21
Additional Commitment
Lender shall be extended to the date falling 364 days after the Existing
Termination Date (except that, if such date is not a Business Day, such
Commitment Date as so extended shall be the next preceding Business Day) and
each Additional Commitment Lender shall thereupon become a "Lender" for all
purposes of this Agreement.
Conditions to Effectiveness of Extensions. Notwithstanding the foregoing, the
extension of the Termination Date pursuant to this Section shall not be
effective with respect to any Lender unless:
(x) no Default or Event of Default shall have occurred and be
continuing on the date of such extension and after giving effect thereto;
(y) the representations and warranties contained in this Agreement
are true and correct on and as of the date of such extension and after
giving effect thereto, as though made on and as of such date (or, if any
such representation or warranty is expressly stated to have been made as
of a specific date, as of such specific date); and
(z) on or before the Termination Date of each Non-Extending Lender,
(1) the Borrowers shall have paid in full the principal of and interest on
all of the Loans made by such Non-Extending Lender to the Borrowers
hereunder and (2) the Borrowers shall have paid in full all other
Obligations owing to such Lender hereunder.
PLACE AND APPLICATION OF PAYMENTS.
All payments of principal of and interest on the Loan, and all other
Obligations payable by the Borrowers under the Credit Documents shall be made by
Borrowers in U.S. Dollars to the Administrative Agent by no later than 1:00 p.m.
(Chicago time) on the due date thereof at the principal office of the
Administrative Agent in New York, New York pursuant to the payment instructions
set forth on Part A of Schedule 4 hereof (or such other location in the United
States as the Administrative Agent may designate to Borrowers) for the benefit
of the Person or Persons entitled thereto. Any payments received after such time
shall be deemed to have been received by the Administrative Agent on the next
Business Day. All such payments shall be made free and clear of, and without
deduction for, any set-off, defense, counterclaim, levy, or any other deduction
of any kind in immediately available funds at the place of payment. The
Administrative Agent, will promptly thereafter cause to be distributed like
funds relating to the payment of principal or interest on Loans or applicable
fees ratably to the Lenders and like funds relating to the payment of any other
amount payable to any Person to such Person, in each case to be applied in
accordance with the terms of this Agreement.
REPRESENTATIONS AND WARRANTIES.
Each Borrower hereby represents and warrants to each Lender as to itself
and, where the following representations and warranties apply to its
Subsidiaries, as to each Subsidiary of such Borrower, as follows:
Corporate Organization and Authority. Such Borrower is (i) duly organized and
existing in good standing under the laws of the State of Illinois; (ii) has all
necessary corporate power to carry on its present business; and (iii) is duly
licensed or qualified and in good standing in each
22
jurisdiction in which the
nature of the business transacted by it or the nature of the Property owned or
leased by it makes such licensing, qualification or good standing necessary and
in which the failure to be so licensed, qualified or in good standing would have
a Material Adverse Effect.
Subsidiaries. Schedule 5.2 (as updated from time to time pursuant to Section
7.1) hereto identifies each Material Subsidiary which is not also a Borrower,
such Material Subsidiary's jurisdiction of incorporation or formation, the
percentage of issued and outstanding shares of each class of such Material
Subsidiary's capital stock or other equity interests owned by a Borrower and/or
such Borrower's Subsidiaries and, if such percentage is not one hundred percent
(100%) (excluding directors' qualifying shares as required by law), a
description of each class of its authorized capital stock and the number of
shares or equity interests of each class issued and outstanding. Each Material
Subsidiary is duly formed and existing in good standing under the laws of the
jurisdiction of its formation, has all necessary organizational power to carry
on its present business, and is duly licensed or qualified and in good standing
in each jurisdiction in which the nature of the business transacted by it or the
nature of the Property owned or leased by it makes such licensing or
qualification necessary and in which the failure to be so licensed or qualified
would have a Material Adverse Effect. All of the issued and outstanding shares
of capital stock or other equity interests, as applicable, of each Material
Subsidiary owned directly or indirectly by the Borrowers are validly issued and
outstanding and fully paid and nonassessable. All such shares and other equity
interests owned by a Borrower are owned beneficially, and of record, free of any
Lien, except as permitted in Section 7.9.
Corporate Authority and Validity of Obligations. The Borrowers have all
necessary corporate power and authority to execute, deliver and perform their
obligations under this Agreement and the Notes and to consummate the
transactions herein contemplated, and the execution, delivery and performance,
and the consummation of the transactions herein contemplated, by the Borrowers
of this Agreement and the Notes have been duly authorized by all necessary
corporate action on their part; and this Agreement has been duly and validly
executed and delivered by the Borrowers and constitutes, and the Notes when
executed and delivered for value will constitute, their legal, valid and binding
obligation, enforceable in accordance with their terms, subject to the effect of
any applicable bankruptcy, insolvency, reorganization or moratorium or similar
laws affecting the rights of creditors generally and subject to general
principles of equity (regardless of whether enforcement is sought in a
proceeding at law or in equity).
Financial Statements. The consolidated balance sheet and consolidated statement
of capitalization of Nicor as of December 31, 2002 and the notes thereto (the
"12/31 Financials") and the related consolidated statements of operations and
cash flows of Nicor for the fiscal year ended on said date, and the unaudited
consolidated balance sheet of Nicor as of June 30, 2003 and the notes thereto
(the "6/30 Financials") and the related consolidated statements of income and
cash flows of Nicor for the 6-month period ended on such date, heretofore
furnished to the Lenders, are complete and correct and fairly present the
consolidated financial condition of Nicor as of said dates, and the results of
its operations for the fiscal year and 6-month period ended on said dates
(subject, in the case of the 6/30 Financials to normal year-end audit
adjustments). On said dates the Borrowers did not have any material contingent
liabilities, liabilities for taxes, unusual forward or long-term commitments or
unrealized or anticipated losses from any unfavorable commitments, except as
referred to or reflected or provided for in the 12/31
23
Financials and the 6/30
Financials as of said dates or as previously disclosed in the SEC Disclosure
Documents. From the period commencing December 31, 2002 and ending on the
Closing Date, there has been no event or series of events which has resulted in,
or reasonably could be expected to result in, a Material Adverse Effect.
No Litigation; No Labor Controversies. (a) Except as previously disclosed in the
SEC Disclosure Documents, there are no legal or arbitral proceedings or any
proceedings by or before any Governmental Authority or agency, now pending or
(to the knowledge of the Borrowers) threatened against either of the Borrowers
as to which there is a reasonable possibility of an adverse determination and
which, if adversely determined, could have a Material Adverse Effect during the
term of this Agreement.
(b) There are no labor controversies pending or, to the best knowledge of
Borrowers, threatened against a Borrower or any Subsidiary of a Borrower which
could (individually or in the aggregate) have a Material Adverse Effect.
Taxes. Each of the Borrowers has filed all United States Federal income tax
returns and all other material tax returns which are required to be filed by it
and has paid all taxes due pursuant to such returns or pursuant to any
assessment received by the Borrowers except for any such taxes that are being
contested in good faith and by proper proceedings and against which adequate
reserves are being maintained. The charges, accruals and reserves on the books
of the Borrowers in respect of taxes are in conformance with GAAP.
Approvals. No authorization, consent, approval, license, exemption, filing or
registration with any court or Governmental Authority, nor any approval or
consent of the stockholders of a Borrower or any Subsidiary of a Borrower or
from any other Person, is necessary to the valid execution, delivery or
performance by a Borrower or any Subsidiary of a Borrower of any Credit Document
to which it is a party.
ERISA. During the twelve consecutive-month period prior to the date of the
execution and delivery of this Agreement and prior to the date of any Borrowing,
no steps have been taken to terminate or completely or partially withdraw from
any Pension Plan, and no contribution failure has occurred with respect to any
Pension Plan sufficient to give rise to a Lien under section 302 (f) of ERISA.
No condition exists or event or transaction has occurred with respect to any
Pension Plan which might result in the incurrence by Nicor or any member of the
Controlled Group of any material liability, fine or penalty. Except as
previously disclosed in the SEC Disclosure Documents, the Borrowers do not have
any contingent liability with respect to any post-retirement benefit under a
Welfare Plan, other than liability for continuation coverage described in Part 6
of Title I of ERISA.
Government Regulation. Neither Borrower nor any Subsidiary of Borrower is an
"investment company" within the meaning of the Investment Company Act of 1940,
as amended. All approvals, if any, which a Borrower is required to obtain as a
result of it being subject to the Public Utility Holding Company Act of 1935, as
amended, have been obtained.
Margin Stock; Use of Proceeds. Neither Borrower is engaged in the business of
extending credit for the purpose of purchasing or carrying margin stock, and no
proceeds of any borrowings hereunder will be used for a purpose which violates,
or would be inconsistent with, F.R.S. Board
24
Regulation U or X, or any official
rulings on or interpretations of such regulations. Terms for which meanings are
provided in F.R.S. Board Regulation U or X or any regulations substituted
therefor, as from time to time in effect, are used in this Section 5.10 with
such meanings. The proceeds of the Loans are to be used solely for general
corporate purposes of a Borrower.
Environmental Warranties. Except as previously disclosed in the
SEC Disclosure Documents:
all facilities and Property (including underlying groundwater) owned, operated
or leased by the Borrowers are in material compliance with all Environmental
Laws, except for such instances of noncompliance as are unlikely, singly or in
the aggregate, to have a Material Adverse Effect;
there have been no past, and there are no pending or threatened:
(i) claims, complaints, notices or requests for information received
by the Borrowers with respect to any alleged violation of any
Environmental Law or,
(ii) complaints, notices or inquiries to the Borrowers regarding
potential liability under any Environmental Law;
except as are unlikely, singly or in the aggregate, to have
a Material Adverse Effect;
there have been no Releases of Hazardous Materials at, on or under any Property
now or previously owned, operated or leased by the Borrowers that, singly or in
the aggregate, are reasonably likely to have a Material Adverse Effect;
the Borrowers have been issued and are in material compliance with all permits,
certificates, approvals, licenses and other authorizations relating to
environmental matters and necessary for their businesses, except where the
failure to maintain or comply with any of the foregoing is not reasonably likely
to have a Material Adverse Effect during the term of this Agreement;
there are no underground storage tanks, active or abandoned, including petroleum
storage tanks, on or under any Property now or previously owned, operated or
leased by the Borrowers, singly or in aggregate, that are reasonably likely to
have a Material Adverse Effect;
neither of the Borrowers has directly transported or directly arranged for the
transportation of any Hazardous Material to any location which is listed or
proposed for listing on the National Priorities List pursuant to CERCLA, on the
CERCLIS or on any similar state list or which is the subject of Federal, state
or local enforcement actions or other investigations which may lead to material
claims against either Borrower for any remedial work, damage to natural
resources or personal injury, including claims under CERCLA that, singly or in
the aggregate, are reasonably likely to have a Material Adverse Effect during
the term of this Agreement;
there are no polychlorinated biphenyls or friable asbestos present at any
Property now or previously owned, operated or leased by the Borrowers that,
singly or in the aggregate, are reasonably likely to have a Material Adverse
Effect during the term of this Agreement; and
no conditions exist at, on or under any Property now or previously owned or
leased by either of the Borrowers which, with the passage of time, or the giving
of notice or both, would give rise to
25
liability under any Environmental Law,
which would have a Material Adverse Effect during the term of this Agreement.
Ownership of Property; Liens. Each Borrower and each Subsidiary of such Borrower
has good title to or valid leasehold interests in all its Property, except where
the failure to have such title or a valid leasehold interest is not reasonably
likely to have a Material Adverse Effect. None of a Borrower's or any such
Subsidiary's Property is subject to any Lien, except as permitted in Section
7.9.
Compliance with Agreements. None of the execution and delivery of this Agreement
and the Notes, the consummation of the transactions herein contemplated and
compliance with the terms and provisions hereof will conflict with or result in
a breach of, or require any consent under, the charter or by-laws of either of
the Borrowers, or any applicable law or regulation, or any order, writ,
injunction or decree of any court or Governmental Authority, or any Contractual
Obligation to which either Borrower is a party or by which it is bound or to
which it is subject, or constitute a default under any such Contractual
Obligation, or result in the creation or imposition of any Lien upon any of the
revenues or assets of either of the Borrowers pursuant to the terms of any such
Contractual Obligation.
Full Disclosure. All factual information heretofore or contemporaneously
furnished by or on behalf of the Borrowers in writing to the Administrative
Agent or the Lenders for purposes of or in connection with this Agreement or any
transaction contemplated hereby is, and all other such factual information
hereafter furnished by or on behalf of the Borrowers will be, true and accurate
in every material respect on the date as of which such information is dated or
certified and as of the date of execution and delivery of this Agreement by the
Lenders, and such information is not, or shall not be, as the case may be,
incomplete by omitting to state any material fact necessary to make such
information not misleading.
Solvency. Each Borrower and each of its Material Subsidiaries, individually and
on a consolidated basis, is Solvent.
CONDITIONS PRECEDENT.
The obligation of each Lender to effect a Borrowing shall be subject to
the following conditions precedent:
Initial Borrowing. Before or concurrently with the initial
Borrowing:
The Administrative Agent shall have received the favorable written opinion
of Xxxxxx & Xxxxxxx, counsel to Borrowers;
The Administrative Agent shall have received copies of each Borrower's (i)
Articles of Incorporation, together with all amendments and (ii) bylaws
(or comparable constituent documents) and any amendments thereto,
certified in each instance by its Secretary or an Assistant Secretary;
The Administrative Agent shall have received copies of resolutions of each
Borrower's Board of Directors authorizing the execution and delivery of
the Credit Documents and
26
the consummation of the transactions contemplated
thereby together with specimen signatures of the persons authorized to
execute such documents on such Borrower's behalf, all certified in each
instance by its Secretary or Assistant Secretary;
The Administrative Agent shall have received for each Lender that requests
a Note, such Lender's duly executed Note of each Borrower dated the date
hereof and otherwise in compliance with the provisions of Section 2.9(a)
hereof;
The Administrative Agent shall have received a duly executed counterpart
of this Agreement from each of the Lenders and the Borrowers;
The Administrative Agent shall have received a duly executed Compliance
Certificate containing financial information as of June 30, 2003;
Neither Borrower nor any of their Subsidiaries shall have, during the
period from June 30, 2003 to the Closing Date, issued, incurred, assumed,
created, become liable for, contingently or otherwise, any material
Indebtedness other than the issuance of commercial paper consistent with
past practices;
The Borrower shall have paid to each Lender the applicable fees for
providing its Commitment under this Agreement;
The Existing Bi-Lateral Credit Agreements shall have been terminated and
all obligations owing thereunder shall have been repaid in full. By their
execution hereof, the Borrowers and each Lender that is party to an
Existing Bi-Lateral Credit Agreement (but as to such a Lender only with
respect to the agreement to which such Lender is a party) hereby agree
that such agreement is terminated; and
The Administrative Agent shall have received such other documents and
information as it may reasonably request.
By executing this Agreement, the Administrative Agent and each of the
Lenders agrees that each condition set forth in this Section 6.1 has been
satisfied.
All Borrowings. As of the time of each Borrowing hereunder (other than the
continuation of a Eurodollar Loan or the conversion of a Base Rate Loan to a
Eurodollar Loan or a Eurodollar Loan to a Base Rate Loan):
The Administrative Agent shall have received the notice required by
Section 2.4 hereof;
Each of the representations and warranties set forth in Section 5 hereof
shall be and remain true and correct in all material respects as of said
time, except that if any such representation or warranty relates solely to
an earlier date it need only remain true as of such date; and
No Default or Event of Default shall have occurred and be continuing or
would occur as a result of such Borrowing.
27
Each request for a Borrowing shall be deemed to be a representation and
warranty by Borrower on the date of such Borrowing as to the facts
specified in paragraphs (b) and (c) of this Section 6.2.
COVENANTS.
Each Borrower covenants and agrees that, so long as any Note or Loan is
outstanding hereunder, or any Commitment is available to or in use by a Borrower
hereunder, except to the extent compliance in any case is waived in writing by
the Required Lenders:
Corporate Existence; Material Subsidiaries Each of the Borrowers shall, and
shall cause each of its Material Subsidiaries to, preserve and maintain its
corporate existence and all of its material rights, privileges and franchises if
failure to maintain such existence, rights, privileges or franchises would
materially and adversely affect the financial condition or operations of, or the
business taken as a whole, of the Borrowers. Together with any financial
statements delivered pursuant to Section 7.6 hereof, Borrower shall deliver an
updated Schedule 5.2 to reflect any changes from the existing Schedule 5.2.
Maintenance. Each Borrower will maintain all of its Properties used or useful in
its business in good working order and condition, ordinary wear and tear
excepted, except where the failure to maintain such Property is not reasonably
likely to have a Material Adverse Effect.
Taxes. Each Borrower will pay and discharge all taxes, assessments and
governmental charges or levies imposed on it or on its income or profits or on
any of its Property prior to the date on which penalties attach thereto, except
for any such tax, assessment, charge or levy the payment of which is being
contested in good faith and by proper proceedings and against which adequate
reserves are being maintained.
ERISA. Each Borrower will, and will cause each of its Subsidiaries to, promptly
pay and discharge all obligations and liabilities arising under ERISA of a
character which if unpaid or unperformed is reasonably likely to result in the
imposition of a Lien against any of its Properties.
Insurance. Each Borrower will keep insured by financially sound and reputable
insurers all Property of a character usually insured by corporations engaged in
the same or similar business similarly situated against loss or damage of the
kinds and in the amounts customarily insured against by such corporations and
carry such other insurance as is usually carried by such corporations. Borrowers
will, upon request of a Lender, furnish to such Lender a summary setting forth
the nature and extent of the insurance maintained pursuant to this Section 7.5.
Financial Reports and Other Information. (a) Each Borrower will maintain a
system of accounting in accordance with GAAP and will furnish to the Lenders and
their respective duly authorized representatives such information respecting the
business and financial condition of the Borrowers and their Subsidiaries as any
Lender may reasonably request. The Borrowers shall deliver (via email or
otherwise) to the Administrative Agent in form and detail satisfactory to the
Administrative Agent, with copies for each Lender in form and substance
satisfactory to them, each of the following:
28
(i) as soon as available and in any event within 95 days after the
end of each fiscal year of Nicor, consolidated statements of income,
common stockholders' equity, cash flows, and income taxes of Nicor for
such year and the related consolidated balance sheet and statement of
capitalization at the end of such year, setting forth in each case in
comparative form the corresponding figures for the preceding fiscal year,
and accompanied by an opinion thereon of independent certified public
accountants of recognized national standing, which opinion shall state
that said financial statements fairly present the consolidated financial
position and results of operations and cash flows of Nicor and its
consolidated Subsidiaries as at the end of, and for, such fiscal year, and
otherwise be without any Impermissible Qualification; provided that if
Nicor files its annual report on Form 10-K for the applicable annual
period, and such annual report contains the financial statements and
accountants certifications, opinions and statements described above, Nicor
may satisfy the requirements of this Section 7.6(a)(i) by delivering a
copy of such annual report to each Lender;
(ii) as soon as available and in any event within 50 days after the
end of each of the first three fiscal quarterly periods of each fiscal
year of Nicor, consolidated statements of income of Nicor for such period
and for the period from the beginning of the respective fiscal year to the
end of such period, and consolidated cash flows for the period from the
beginning of the respective fiscal year to the end of such period, and the
related consolidated balance sheet as at the end of such period, all of
the foregoing prepared by Nicor in reasonable detail in accordance with
GAAP and certified by Nicor's chief financial officer or corporate
controller as fairly presenting the financial condition as at the dates
thereof and the results of operations for the periods covered thereby
(except for the absence of footnotes and year-end adjustments); provided
that if Nicor files a Form 10-Q for the applicable quarterly period, and
such quarterly report contains the financial statements and certifications
described above, the Nicor may satisfy the requirements of this Section
7.6(a)(ii) by delivering a copy of such quarterly report to each Lender.
Each financial statement furnished to the Lenders pursuant to subsection (i) or
(ii) of this Section 7.6 shall be accompanied by a Compliance Certificate in the
form of Exhibit B hereto signed by the Chief Financial Officer or Vice President
- Controller of Nicor.
Borrowers will promptly (and in any event within five Business Days after an
officer of a Borrower has knowledge thereof) give notice to the Administrative
Agent of (i) any Default or Event of Default of which either Borrower has
knowledge, including in such notice a description of the same in reasonable
detail, and indicating what action is being undertaken with respect to such
Default or Event of Default; and (ii) any event or condition which in the
opinion of a Borrower could reasonably be expected to have a Material Adverse
Effect.
Promptly upon their becoming available, and without duplication of the other
materials required to be delivered pursuant to this Agreement, Nicor will
deliver (via email or otherwise) to the Administrative Agent, with copies for
each Lender copies of all registration statements, regular periodic reports, if
any, and SEC Disclosure Documents which Nicor shall have filed with the
Securities and Exchange Commission (or any governmental agency substituted
therefor) or any national securities exchange.
29
Promptly upon the mailing thereof to the shareholders of Nicor generally, and
without duplication of the other materials required to be delivered pursuant to
this Agreement, Nicor will deliver to the Administrative Agent, with copies for
each Lender copies of all financial statements, reports and proxy statements so
mailed.
Immediately upon becoming aware of the institution of any steps by Nicor or any
other Person to terminate any Pension Plan or the complete or partial withdrawal
from any Pension Plan by Nicor or any member of its Controlled Group which could
result in a liability to Nicor or any of its Subsidiaries of a liability in
excess of $20,000,000, or the failure to make a required contribution to any
Pension Plan if such failure is sufficient to give rise to a Lien under Section
302(f) of ERISA securing an amount in excess of $20,000,000, or the taking of
any action with respect to a Pension Plan which could result in the requirement
that either Borrower furnish a bond or other security to the PBGC or such
Pension Plan in excess of $20,000,000, or the occurrence of any event with
respect to any Pension Plan which could result in the incurrence by either
Borrower of any material liability, fine or penalty, or any material increase in
the contingent liability of either Borrower with respect to any post-retirement
Welfare Plan benefit, notice thereof and copies of all documentation relating
thereto.
From time to time such other information regarding the business or financial
condition of a Borrower as the Administrative Agent or a Lender may reasonably
request.
Lender Inspection Rights. For purposes of confirming compliance with the Credit
Documents or after the occurrence and during the continuance of an Event of
Default, upon reasonable notice from the Administrative Agent or the Required
Lenders, Borrowers will, permit the Lenders (and such Persons as any Lender may
designate) during normal business hours to visit and inspect, under Borrowers'
guidance, any of the Properties of Borrowers or any of their Subsidiaries, to
examine all of their books of account, records, reports and other papers, to
make copies and extracts therefrom, and to discuss their respective affairs,
finances and accounts with their respective officers, employees and with their
independent public accountants (and by this provision Borrowers authorize such
accountants to discuss with the Lenders (and such Persons as any Lender may
designate) the finances and affairs of Borrowers and their Subsidiaries) all at
such reasonable times and as often as may be reasonably requested; provided,
however, that except upon the occurrence and during the continuation of any
Default or Event of Default, not more than one such visit and inspection may be
conducted in any twelve month period. Prior to the occurrence of an Event of
Default, the Borrowers shall only be required to pay the costs and expenses of
professionals retained by the Administrative Agent in connection with any such
visit or inspection. After the occurrence of an Event of Default, the Borrowers
shall be obligated to pay all reasonable costs and expenses incurred by the
Administrative Agent and the Lenders in connection with such visitations and
inspections. The Borrowers shall receive advance notice of any proposed
discussion with such accountants and shall have the right to participate
therein.
Conduct of Business. Neither Borrower will engage in any material line of
business materially unrelated to the lines of business in which the Borrowers
and their Subsidiaries are engaged on the Closing Date.
30
Liens. Neither Borrower will, nor will it permit any of its Subsidiaries to,
create, incur, permit to exist any Lien on any Property owned by such Borrower
or any Subsidiary of such Borrower; provided, however, that this Section 7.9
shall not apply to or operate to prevent:
Liens arising by operation of law in respect of Property of a Borrower or
any of its Subsidiaries which are incurred in the ordinary course of
business which do not in the aggregate materially detract from the value
of such Property or materially impair the use thereof in the operation of
the business of Borrower or any of its Subsidiaries;
Liens for taxes or assessments or other government charges or levies on a
Borrower or any Subsidiary of a Borrower or their respective Properties
which are not past due or which are being contested in good faith by
appropriate proceedings and for which reserves in conformity with GAAP
have been provided on the books of a Borrower; provided that the aggregate
amount of liabilities (including interest and penalties, if any) of the
Borrowers and their Subsidiaries secured by such Liens shall not exceed
$20,000,000 at any one time outstanding;
Liens arising out of judgments or awards against a Borrower or any
Subsidiary of a Borrower, or in connection with surety or appeal bonds in
connection with bonding such judgments or awards, the time for appeal from
which or petition for rehearing of which shall not have expired or with
respect to which such Borrower or such Subsidiary shall be prosecuting an
appeal or proceeding for review, and with respect to which it shall have
obtained a stay of execution pending such appeal or proceeding for review;
provided that the aggregate amount of liabilities (including interest and
penalties, if any) of Borrower and its Subsidiaries secured by such Liens
shall not exceed $20,000,000 at any one time outstanding;
Survey exceptions or encumbrances, easements or reservations, or rights of
others for rights-of-way, utilities and other similar purposes, or zoning
or other restrictions as to the use of real Properties which do not
materially impair their use in the operation of the business of a Borrower
or any Subsidiary of a Borrower;
Liens existing on the date hereof and Liens granted pursuant to the terms
of the Nicor Gas Indenture;
Liens securing Indebtedness and other obligations; provided that such
Liens permitted by this paragraph (f) shall only be permitted to the
extent the aggregate amount of Indebtedness and other obligations secured
by all such Liens does not exceed five percent (5%) of the difference
between (A) Consolidated Assets as reflected on the most recent balance
sheet delivered by Nicor pursuant to Section 7.6, minus (B) the amount of
Indebtedness then outstanding under the Nicor Gas Indenture;
Liens in favor of carriers, warehousemen, mechanics, materialmen and
landlords granted in the ordinary course of business for amounts not
overdue or being diligently contested in good faith by appropriate
proceedings and for which adequate reserves in accordance with GAAP shall
have been set aside on its books;
31
Liens incurred or deposits made in the ordinary course of business in
connection with worker's compensation, unemployment insurance or other
forms of governmental insurance or benefits;
Liens with respect to any surplus assets leased by either Borrower or any
of its Subsidiaries.
Any extension, renewal or replacement (or successive extensions, renewals
or replacements) in whole or in part of any Lien referred to in the
foregoing paragraphs (a) through (i), inclusive; provided, however, that
the principal amount of Indebtedness secured thereby shall not exceed the
principal amount of Indebtedness so secured at the time of such extension,
renewal or replacement, and that such extension, renewal or replacement
shall be limited to the Property which was subject to the Lien so
extended, renewed or replaced;
provided, that the foregoing paragraphs shall not be deemed under any
circumstance to permit a Lien to exist on (i) any capital stock or other equity
interests of Nicor Gas or (ii) Nicor Gas' natural gas inventory or any
receivables arising from the sale of such inventory.
Any Lien which when incurred or permitted to exist complies with the
requirements of paragraphs (a) through (j) above may continue to exist, and
shall be permitted hereunder, notwithstanding that such Lien if incurred
thereafter would not comply with such requirement.
Use of Proceeds; Regulation U. The proceeds of each Borrowing will be used by a
Borrower solely for general corporate purposes of such Borrower. Neither
Borrower will use any part of the proceeds of any of the Borrowings directly or
indirectly to purchase or carry any margin stock (as defined in Section 5.10
hereof) or to extend credit to others for the purpose of purchasing or carrying
any such margin stock.
Mergers, Consolidations and Sales of Assets. Neither Borrower will, nor will it
permit any of its Material Subsidiaries to, (i) consolidate with or be a party
to merger with any other Person or (ii) sell, lease or otherwise dispose of all
or a "substantial part" of the assets of such Borrower and its Subsidiaries;
provided, however, that (w) the foregoing shall not prohibit any sale, lease,
transfer or disposition to which the Required Lenders have consented, such
consent not to by unreasonably withheld if (A) such transaction does not result
in a downgrade of either Borrower's S&P Rating or Xxxxx'x Rating, (B) such
transaction is for cash consideration (or other consideration acceptable to the
Required Lenders) in an amount not less than the fair market value of the
applicable assets, and (C) such transaction, when combined with all other such
transactions, would not have a Material Adverse Effect, taken as a whole, (x)
any Subsidiary of a Borrower may merge or consolidate with or into or sell,
lease or otherwise convey all or a substantial part of its assets to a Borrower
or any Subsidiary of which a Borrower holds (directly or indirectly) at least
the same percentage equity ownership; provided that in any such merger or
consolidation involving a Borrower, such Borrower shall be the surviving or
continuing corporation, and (y) a Borrower and its Subsidiaries may sell
inventory in the ordinary course of business.
As used in this Section 7.11, a sale, lease, transfer or disposition of
assets during any fiscal year shall be deemed to be of a "substantial part" of
the consolidated assets of a Borrower
32
and its Subsidiaries if the net book value
of such assets, when added to the net book value of all other assets sold,
leased, transferred or disposed of by such Borrower and its Subsidiaries during
such fiscal year (other than obsolete or surplus Property and inventory in the
ordinary course of business) exceeds ten percent (10%) of the total assets of
such Borrower and its Subsidiaries, determined on a consolidated basis as of the
last day of the immediately preceding fiscal year.
Environmental Matters. Each of the Borrowers will:
use and operate all of its facilities and Properties in compliance with
all Environmental Laws except for such noncompliance which, singly or in
the aggregate, will not have a Material Adverse Effect, keep all necessary
permits, approvals, certificates, licenses and other authorizations
relating to environmental matters in effect and remain in compliance
therewith, except where the failure to keep such permits, approvals,
certificates, licenses or other authorizations, or any noncompliance with
the provisions thereof, will not have a Material Adverse Effect, and
handle all Hazardous Materials in compliance with all applicable
Environmental Laws, except for any noncompliance that will not have a
Material Adverse Effect; and
promptly notify the Administrative Agent and provide copies upon receipt
of all written inquiries from any Governmental Authority, claims,
complaints or notices relating to the condition of its facilities and
Properties or compliance with Environmental Laws which will have a
Material Adverse Effect.
Investments, Acquisitions, Loans, Advances and Guaranties. Neither Borrower
will, nor will it permit any Subsidiary of such Borrower to, directly or
indirectly, make, retain or have outstanding any investments (whether through
purchase of stock or obligations or otherwise) in, or loans or advances to, any
other Person, or acquire all or any substantial part of the assets or business
of any other Person or division thereof, or be or become liable as endorser,
guarantor, surety or otherwise (such as liability as a general partner) for any
debt, obligation or undertaking of any other Person, or otherwise agree to
provide funds for payment of the obligations of another, or supply funds thereto
or invest therein or otherwise assure a creditor of another against loss, or
apply for or become liable to the issuer of a letter of credit which supports an
obligation of another, or subordinate any claim or demand it may have to the
claim or demand of any other Person (cumulatively, all of the foregoing
"Investments"); provided, however, that the foregoing provisions shall not apply
to nor operate to prevent:
investments permitted by the Borrowers' corporate investment policy
attached hereto as Schedule 7.13;
ownership of stock, obligations or securities received in
settlement of debts owing to a Borrower or any Subsidiary;
endorsements of negotiable instruments for collection in the
ordinary course of business;
loans and advances to employees in the ordinary course of
business for travel, relocation, and similar purposes;
33
Investments (i) in or with respect to either Borrower or any Subsidiary of
either Borrower, including intercompany loans, provided that any
intercompany loans to a Borrower must be subordinated to the Obligations
on terms reasonably acceptable to the Administrative Agent, or (ii)
existing on the Closing Date;
Investments constituting (i) accounts receivable arising, (ii) trade debt
granted, or (iii) deposits made in connection with the purchase price of
goods or services, in each case in the ordinary course of business;
Investments in Persons engaged in substantially the same lines of business
as the Borrowers or any of their Subsidiaries so long as, unless consented
to by the Required Lenders, (i) no downgrade in the S&P Rating or Xxxxx'x
Rating would occur as a result of the consummation of such Investment,
(ii) if such Investment is for the purpose of acquiring another Person,
the Board of Directors (or similar governing body) of such Person being
acquired has approved being so acquired, and (iii) no Default or Event of
Default has occurred and is continuing at the time of, or would occur as a
result of, such Investment; and
Guarantees by either Borrower or any of their respective Subsidiaries of
any Indebtedness (so long as such Indebtedness is permitted pursuant to
Section 7.14) or other obligations of either Borrower or any of their
respective Subsidiaries;
Investments in Triton Container Investments LLC, a cargo container leasing
business, in an aggregate amount not to exceed $20,000,000; and
other Investments not to exceed an aggregate amount of $10,000,000
outstanding at any one time.
Any Investment which when made complies with the requirements of
paragraphs (a) through (i) above may continue to be held notwithstanding that
such Investment if made thereafter would not comply with such requirements;
In determining the amount of investments, acquisitions, loans, advances
and guarantees permitted under this Section 7.13, investments and acquisitions
shall always be taken at the original cost thereof (regardless of any subsequent
appreciation or depreciation therein), loans and advances shall be taken at the
principal amount thereof then remaining unpaid, and guarantees shall be taken at
the amount of obligations guaranteed thereby.
Restrictions on Indebtedness. Neither Borrower will, nor will it permit any of
its Subsidiaries to, issue, incur, assume, create, become liable for,
contingently or otherwise, or have outstanding any Indebtedness, provided that
the foregoing provisions shall not restrict nor operate to prevent the following
Indebtedness:
the Obligations;
any other Indebtedness so long as after giving effect to the incurrence
thereof the Borrowers shall be in compliance with the Leverage Ratio set
forth in Section 7.15, provided that intercompany loans owing by a
Borrower are permitted only so long as
34
such loans are subordinated to the
Obligations on terms reasonably satisfactory to the Administrative Agent.
Leverage Ratio. Nicor will not at the end of any fiscal quarter permit the ratio
of its Consolidated Indebtedness to its Capital to exceed 0:65 to 1:00; provided
that for the fiscal quarter ending on December 31, 2003, such ratio shall not
exceed 0.70 to 1:00.
Interest Coverage Ratio. Nicor will maintain an Interest Coverage Ratio of not
less than 3.00 to 1.00, as determined at the end of each fiscal quarter (which
most recently ended fiscal quarter shall be included in the four fiscal quarter
period for which compliance is being measured).
Dividends and Other Shareholder Distributions. (a) Neither Borrower shall (i)
declare or pay any dividends or make a distribution of any kind (including by
redemption or purchase) on or relating to its outstanding capital stock, or (ii)
repay (directly, through sinking fund payments or otherwise) any Indebtedness or
other obligations owing to an Affiliate unless in either circumstance no Default
or Event of Default exists prior to or would result after giving effect to such
action; provided that nothing in this Section shall prohibit either Borrower
from paying a dividend which was declared as otherwise permitted hereby.
(b) Except as set forth on Schedule 7.17, neither Borrower will permit any
of its Subsidiaries, directly or indirectly, to create or otherwise cause or
suffer to exist or become effective any consensual encumbrance or restriction of
any kind on the ability of any such Subsidiary to: (1) pay dividends or make any
other distribution on any of such Subsidiary's capital stock owned by a Borrower
or any Subsidiary of a Borrower, (2) pay any Indebtedness owed to a Borrower or
any other Subsidiary, (3) make loans or advances to a Borrower or any other
Subsidiary, or (4) transfer any of its Property or assets to a Borrower or any
other Subsidiary; provided, however, in the case of any consensual Liens that
are permitted pursuant to Section 7.9, the Lien holder may, solely with respect
to the assets or property to which such Lien attaches, contract for and receive
a negative pledge and restrictions on transfer with respect thereto and the
proceeds thereof.
No Negative Pledges. Except as set forth on Schedule 7.17, the Borrowers will
not, and will not permit any of their Subsidiaries to enter into or suffer to
exist any agreement (except the Credit Documents) prohibiting the creation or
assumption of any security interest upon its properties or assets, whether now
owned or hereafter acquired by the Borrowers; provided, however, in the case of
a consensual Lien on assets or property that is permitted pursuant to Section
7.9, the Lien holder may, solely with respect of the assets or property to which
such Lien attaches, contract for and receive a negative pledge with respect
thereto and the proceeds thereof.
Transactions with Affiliates. Neither Borrower will, nor will they permit any of
their Subsidiaries to, enter into or be a party to any material transaction or
arrangement with any Affiliate of such Person, including without limitation, for
purchase from, sale to or exchange of Property with, for merger or consolidation
with or into, or the rendering of any service by or for, any Affiliate, except
(i) pursuant to the reasonable requirements of a Borrower's or such Subsidiary's
business and upon terms no less favorable to a Borrower or such Subsidiary than
could be obtained in a similar transaction involving a third-party or (ii) as
otherwise permitted in this Agreement.
35
Compliance with Laws. Each Borrower will comply with the requirements of all
applicable laws, rules, regulations and orders of any Governmental Authority if
failure to comply with such requirements would result in a Material Adverse
Effect.
Derivative Obligation. Neither Borrower will, nor will it permit any of its
Subsidiaries, to enter into any Derivative Obligations other than Permitted
Derivative Obligations.
Sales and Leasebacks. Neither Borrower will, nor will it permit any of its
Subsidiaries to, enter into any arrangement with any bank, insurance company or
other lender or investor providing for the leasing by a Borrower or any
Subsidiary of Borrower of any Property theretofore owned by it and which has
been or is to be sold or transferred by such owner to such lender or investor if
the total amount of rent and other obligations of the Borrowers and their
Subsidiaries under such lease, when combined with all rent and other obligations
of Borrowers and their Subsidiaries under all such leases, would exceed
$20,000,000.
EVENTS OF DEFAULT AND REMEDIES.
Events of Default. Any one or more of the following shall
constitute an Event of Default:
(i) default in the payment when due of any fees, interest or of any other
Obligation not covered by clause (ii) below and such payment default
continues for three (3) Business Days or (ii) default in the payment when
due of the principal amount of any Loan;
default by a Borrower in the observance or performance of any covenant set
forth in Section 7.1, Section 7.6(c), Sections 7.10, 7.11, Sections
7.13through 7.17, and Section 7.21 hereof;
default by a Borrower in the observance or performance of any provision
hereof or of any other Credit Document not mentioned in (a) or (b) above,
which is not remedied within thirty (30) days after notice thereof shall
have been given to the Borrowers by the Administrative Agent;
(i) failure to pay when due Indebtedness in an aggregate principal amount
of (x) $20,000,000 or more of a Borrower or any Material Subsidiary, or
(ii) default shall occur under one or more indentures, agreements or other
instruments under which any Indebtedness of a Borrower or any of its
Material Subsidiaries in an aggregate principal amount of $20,000,000 or
more is outstanding and such default shall continue for a period of time
sufficient to permit the holder or beneficiary of such Indebtedness or a
trustee therefor to cause the acceleration of the maturity of any such
Indebtedness or any mandatory unscheduled prepayment, purchase or funding
thereof;
any representation or warranty made herein or in any other Credit Document
by a Borrower, or in any certificate furnished pursuant to any Credit
Document by a Borrower proves untrue in any material respect as of the
date of the issuance or making, or deemed making or issuance, thereof;
a Borrower or any Material Subsidiary shall (i) fail to pay its debts
generally as they become due or admit in writing its inability to pay its
debts generally as they become due,
36
(ii) make an assignment for the
benefit of creditors, (iii) apply for, seek, consent to, or acquiesce in,
the appointment of a receiver, custodian, trustee, examiner, liquidator or
similar official for it or any substantial part of its Property, (iv)
institute any proceeding seeking to have entered against it an order for
relief under the United States Bankruptcy Code, as amended, to adjudicate
it insolvent, or seeking dissolution, winding up, liquidation,
reorganization, arrangement, adjustment or composition of it or its debts
under any law relating to bankruptcy, insolvency or reorganization or
relief of debtors or fail to file an answer or other pleading denying the
material allegations of any such proceeding filed against it or any
analogous action is taken under any other applicable law relating to
bankruptcy or insolvency, (v) take any corporate action (such as the
passage by its board of directors of a resolution) in furtherance of any
matter described in parts (i)-(iv) above, or (vi) fail to contest in good
faith any appointment or proceeding described in Section 8.1(g) hereof;
a custodian, receiver, trustee, examiner, liquidator or similar official
shall be appointed for a Borrower or any Material Subsidiary, or any
substantial part of the Property of a Borrower or a Material Subsidiary,
or a proceeding described in Section 8.1(f)(iv) shall be instituted
against a Borrower or any Material Subsidiary, and such appointment
continues undischarged or such proceeding continues undismissed or
unstayed for a period of sixty (60) days;
a Borrower or any Material Subsidiary shall fail within thirty (30) days
to pay, bond or otherwise discharge any judgment or order for the payment
of money in excess of $20,000,000, which is not stayed on appeal or
otherwise being appropriately contested in good faith in a manner that
stays execution thereon;
(i) a Borrower or any other member of the Controlled Group shall fail to
pay to the PBGC or any Pension Plan any amount or amounts aggregating in
excess of $20,000,000 when due, which if remain unpaid could reasonably
result in a Lien against Borrowers, (ii) a notice of intent to terminate a
Pension Plan or Pension Plans at a single time having aggregate Unfunded
Vested Liabilities in excess of $20,000,000 (collectively, a "Material
Plan") shall be filed by the sponsor of such Pension Plan and it could
reasonably be expected that a Borrower shall have liability for any
Unfunded Vested Liabilities in excess of $20,000,000 or (iii) the PBGC
shall institute proceedings to terminate or cause a trustee to be
appointed to administer any Material Plan and it reasonably could be
expected to result in liability to the Borrowers in excess of $20,000,000;
a Borrower or any Subsidiary of a Borrower or any Person acting on behalf
of a Borrower, a Subsidiary or any governmental authority challenges the
validity of this Agreement, the Fee Letter or the Notes or a Borrower's or
one of its Subsidiary's obligations thereunder;
a Change of Control Event shall have occurred; or
a Borrower shall for any reason cease to be wholly liable for the full
amount of the Obligations owing by it.
37
Non-Bankruptcy Defaults. When any Event of Default other than those described in
subsections (f) or (g) of Section 8.1 hereof has occurred and is continuing, the
Administrative Agent shall, if so directed by the Required Lenders, by written
notice to Borrowers: (a) terminate the remaining Commitments and all other
obligations of the Lenders hereunder on the date stated in such notice (which
may be the date thereof); and (b) declare the principal of and the accrued
interest on all outstanding Loans to be forthwith due and payable and thereupon
all outstanding Loans, including both principal and interest thereon, and all
other Obligations, shall be and become immediately due and payable together with
all other amounts payable under the Credit Documents without further demand,
presentment, protest or notice of any kind, all of which are hereby waived by
each Borrower. The Administrative Agent, after giving notice to Borrowers
pursuant to Section 8.1(c) or this Section 8.2, shall also promptly send a copy
of such notice to the other Lenders, but the failure to do so shall not impair
or annul the effect of such notice.
Bankruptcy Defaults. When any Event of Default described in subsections (f) or
(g) of Section 8.1 hereof has occurred and is continuing, then all outstanding
Loans, including both interest and principal thereon, and all other Obligations
shall immediately become due and payable together with all other amounts payable
under the Credit Documents without presentment, demand, protest or notice of any
kind, the obligation of the Lenders to extend further credit pursuant to any of
the terms hereof shall immediately terminate.
CHANGE IN CIRCUMSTANCES; TAXES.
Change of Law. Notwithstanding any other provisions of this Agreement or any
Note, if at any time after the date hereof any change in applicable law or
regulation or in the interpretation thereof makes it unlawful for any Lender to
make or continue to maintain Eurodollar Loans or to perform its obligations as
contemplated hereby, such Lender shall promptly give notice thereof to the
Borrowers and such Lender's obligations to make or maintain Eurodollar Loans
under this Agreement shall terminate until it is no longer unlawful for such
Lender to make or maintain Eurodollar Loans. The applicable Borrower shall
convert the outstanding principal amount of any such affected Eurodollar Loans
of such Lender into a Base Rate Loan and on the date of such conversion pay to
such Lender all interest accrued thereon at a rate per annum equal to the
interest rate applicable to such Eurodollar Loan. Thereafter, subject to all of
the terms and conditions of this Agreement, such Borrower may then elect to
borrow the principal amount of any Eurodollar Loans from such Lender by means of
Base Rate Loans from such Lender, which Base Rate Loans shall not be made
ratably by the Lenders but only from such affected Lender.
Unavailability of Deposits or Inability to Ascertain, or Inadequacy of, LIBOR.
If on or prior to the first day of any Interest Period for any Borrowing of
Eurodollar Loans:
the Administrative Agent determines that deposits in U.S. Dollars (in the
applicable amounts) are not being offered to major banks in the eurodollar
interbank market for such Interest Period, or that by reason of
circumstances affecting the interbank eurodollar market adequate and
reasonable means do not exist for ascertaining the applicable LIBOR, or
Lenders having more than 33% percent of the aggregate amount of the
Commitments reasonably determine and so advise the Administrative Agent
that LIBOR as reasonably
38
determined by the Administrative Agent will not
adequately and fairly reflect the cost to such Lenders or Lender of
funding their or its Eurodollar Loans or Loan for such Interest Period,
then the Administrative Agent shall forthwith give notice thereof to the
Borrowers and the Lenders, whereupon until the Administrative Agent notifies the
Borrowers that the circumstances giving rise to such suspension no longer exist,
the obligations of the Lenders or of the relevant Lender to make Eurodollar
Loans shall be suspended.
Increased Costs.
Increased Costs Generally. If any Change in Law shall:
impose, modify or deem applicable any reserve, special deposit, compulsory loan,
insurance charge or similar requirement against assets of, deposits with or for
the account of, or credit extended by, any Lender (except any reserve
requirement reflected in Adjusted LIBOR);
subject any Lender to any tax of any kind whatsoever with respect to this
Agreement or any Eurodollar Loan made by it, or change the basis of taxation of
payments to such Lender in respect thereof (except for Indemnified Taxes or
Other Taxes covered by Section 9.4 and any changes relating to any Excluded Tax
payable by such Lender); or
impose on any Lender any other condition, cost or expense affecting this
Agreement or Eurodollar Loans made by such Lender hereunder;
and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining any Eurodollar Loan (or of maintaining its
obligation to make any such Loan), or to reduce the amount of any sum received
or receivable by such Lender hereunder (whether of principal, interest or any
other amount), then upon request of such Lender the Borrowers will pay to such
Lender such additional amount or amounts as will compensate such Lender for such
additional costs incurred or reduction suffered.
Capital Requirements. If any Lender determines that any Change in Law affecting
such Lender or any lending office of such Lender or such Lender's holding
company, if any, regarding capital requirements has or would have the effect of
reducing the rate of return on such Lender's capital or on the capital of such
Lender's holding company, if any, as a consequence of this Agreement, the
Commitments of such Lender or the Loans made by, such Lender to a level below
that which such Lender or such Lender's holding company could have achieved but
for such Change in Law (taking into consideration such Lender's policies and the
policies of such Lender's holding company with respect to capital adequacy),
then from time to time the Borrowers will pay to such Lender such additional
amount or amounts as will compensate such Lender or such Lender's holding
company for any such reduction suffered.
Certificates for Reimbursement. A certificate of a Lender setting forth the
amount or amounts necessary to compensate such Lender or its holding company as
specified in paragraph (a) or (b) of this Section and delivered to the Borrowers
shall be prima facie evidence of such costs absent manifest error. The Borrowers
shall pay such Lender the amount shown as due on any such certificate within 10
days after receipt thereof.
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Delay in Requests. Failure or delay on the part of any Lender to demand
compensation pursuant to this Section 9.3 shall not constitute a waiver of such
Lender's right to demand such compensation; provided that the Borrowers shall
not be required to compensate a Lender pursuant to this Section for any
increased costs incurred or reductions suffered more than nine months prior to
the date that such Lender notifies the Borrower of the Change in Law giving rise
to such increased costs or reductions and of such Lender's intention to claim
compensation therefor (except that, if the Change in Law giving rise to such
increased costs or reductions is retroactive, then the nine-month period
referred to above shall be extended to include the period of retroactive effect
thereof).
Taxes.
Payments Free of Taxes. Any and all payments by or on account of any obligation
of the Borrowers hereunder or under any other Credit Document shall be made free
and clear of and without reduction or withholding for any Indemnified Taxes or
Other Taxes; provided that if a Borrower shall be required by applicable law to
deduct any Indemnified Taxes (including any 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) the Administrative Agent or Lender receives an
amount equal to the sum it would have received had no such deductions been made,
(ii) such Borrower shall make such deductions and (iii) such Borrower shall
timely pay the full amount deducted to the relevant Governmental Authority in
accordance with applicable law.
Payment of Other Taxes by the Borrowers. Without limiting the provisions of
paragraph (a) above, the applicable Borrower shall timely pay any Other Taxes to
the relevant Governmental Authority related to its obligations under this
Agreement in accordance with applicable law.
Indemnification by the Borrowers. Each Borrower severally shall indemnify the
Administrative Agent and each Lender within 10 days after demand therefor, for
the full amount of any Indemnified Taxes or Other Taxes (including Indemnified
Taxes or Other Taxes imposed or asserted on or attributable to amounts payable
under this Section) arising in connection with payments made by such Borrower
hereunder or under any other Loan Document paid by the Administrative Agent or
such Lender and any penalties, interest and reasonable expenses arising
therefrom or with respect thereto except to the extent that such penalties,
interest and expenses are attributable to the gross negligence or willful
misconduct of the Administrative Agent or such Lender. A certificate as to the
amount of such payment or liability delivered to the applicable Borrower by a
Lender (with a copy to the Administrative Agent), or by the Administrative Agent
on its own behalf or on behalf of a Lender, shall be conclusive absent manifest
error.
Evidence of Payments. Upon the request of the Administrative Agent and as soon
as practicable after any payment of Indemnified Taxes or Other Taxes by a
Borrower to a Governmental Authority, such Borrower shall deliver to the
Administrative Agent the original or a certified copy 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 Administrative Agent.
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Status of Lenders. Any Foreign Lender that is entitled to an exemption from or
reduction of withholding tax with respect to payments under any Loan Document
under the law of the jurisdiction in which a Borrower is incorporated or
otherwise organized or any treaty to which such jurisdiction is a party (in each
case such jurisdiction will include the United States if a Borrower is
incorporated or organized in any state thereof or the District of Columbia),
shall deliver to the Borrowers (with a copy to the Administrative Agent), at the
time or times prescribed by applicable law or reasonably requested by a Borrower
or the Administrative Agent, such properly completed and executed documentation
prescribed by applicable law as will permit such payments to be made without
withholding or at a reduced rate of withholding.
Each Lender and Administrative Agent that is a United States person as
defined in Section 7701(a)(30) of the Code (each a "U.S. Lender") shall provide
prior to or on the Closing Date (or on or prior to the date it becomes a party
to this Agreement) to Borrower and, if applicable, the Administrative Agent, a
properly completed and executed IRS Form W-9 (certifying that such U.S. Lender
is entitled to an exemption from United States backup withholding tax) or any
successor form. Solely for purposes of this Section 9.4(e), a U.S. Lender shall
not include a Lender or Administrative Agent that may be treated as an exempt
recipient based on the indicators described in Treasury Regulation Section
1.6049-4(c)(1)(ii). In addition, any Lender, if requested by a Borrower or the
Administrative Agent, shall deliver such other documentation prescribed by
applicable law or reasonably requested by a Borrower or the Administrative Agent
as will enable such Borrower or the Administrative Agent to determine whether or
not such Lender is subject to backup withholding or information reporting
requirements.
Without limiting the generality of the foregoing, in the event that a
Borrower is incorporated or otherwise organized in the United States of America
or any state thereof or the District of Columbia, any Foreign Lender shall
deliver to such Borrower and the Administrative Agent (in such number of copies
as shall be requested by the recipient) on or prior to the date on which such
Foreign Lender becomes a Lender under this Agreement (and from time to time
thereafter upon the request of a Borrower or the Administrative Agent, but only
if such Foreign Lender is legally entitled to do so) the following documents, as
applicable:
(i) duly completed copies of Internal Revenue Service Form W-8BEN
claiming eligibility for benefits of an income tax treaty to which the
United States of America is a party,
(ii) duly completed copies of Internal Revenue Service Form W-8ECI,
(iii)in the case of a Foreign Lender claiming the benefits of the
exemption for portfolio interest under section 881(c) of the Code, (x) a
certificate to the effect that such Foreign Lender is not (A) a "bank"
within the meaning of section 881(c)(3)(A) of the Code, (B) a "10 percent
shareholder" of any Borrower within the meaning of section 881(c)(3)(B) of
the Code, or (C) a "controlled foreign corporation" described in section
881(c)(3)(C) of the Code and (y) duly completed copies of Internal Revenue
Service Form W-8BEN, or
41
(iv) any other form prescribed by applicable law as a basis for
claiming exemption from or a reduction in United States Federal
withholding tax duly completed together with such supplementary
documentation as may be prescribed by applicable law to permit the
Borrowers to determine the withholding or deduction required to be made.
Treatment of Certain Refunds. If the Administrative Agent or a Lender
determines, in its reasonable discretion, that it has received a refund of any
Taxes or Other Taxes as to which it has been indemnified by a Borrower or with
respect to which a Borrower has paid additional amounts pursuant to this Section
9.4(f), it shall pay to such Borrower an amount equal to such refund (but only
to the extent of indemnity payments made, or additional amounts paid, by a
Borrower under this Section with respect to the Taxes or Other Taxes giving rise
to such refund), net of all out-of-pocket expenses of the Administrative Agent
or such Lender, as the case may be, and without interest (other than any
interest paid by the relevant Governmental Authority with respect to such
refund); provided that a Borrower, upon the request of the Administrative Agent
or such Lender, agrees to repay the amount paid over to such Borrower (plus any
penalties, interest or other charges imposed by the relevant Governmental
Authority) to the Administrative Agent or such Lender in the event the
Administrative Agent or such Lender is required to repay such refund to such
Governmental Authority. This paragraph shall not be construed to require the
Administrative Agent or any Lender to make available its tax returns (or any
other information relating to its taxes which it deems confidential) to a
Borrower or any other Person.
Tax Benefit. If and to the extent that any Lender is able, in its sole opinion,
to apply or otherwise take advantage of any offsetting tax credit or other
similar tax benefit arising out of or in conjunction with any deduction or
withholding which gives rise to an obligation on the Borrower to pay any
Indemnified Taxes or Other Taxes pursuant to this Section 9.4, then such Lender
shall, to the extent that in its sole opinion it can do so without prejudice to
the retention of the amount of such credit or benefit and without any other
adverse tax consequences for such Lender, reimburse to the Borrower at such time
as such tax credit or benefit shall have actually been received by such Lender
such amount as such Lender shall, in its sole opinion, have determined to be
attributable to the relevant deduction or withholding and as will leave such
Lender in no better or worse position than it would have been in if the payment
of such Indemnified Taxes or Other Taxes had not been required. Nothing in this
Section 9.4 shall oblige any Lender to disclose to the Borrower or any other
person any information regarding its tax affairs or tax computations.
Mitigation Obligations; Replacement of Lenders.
Designation of a Different Lending Office. If any Lender requests compensation
under Section 9.3, or requires a Borrower to pay any additional amount to any
Lender or any Governmental Authority for the account of any Lender pursuant to
Section 9.4, then such Lender shall use reasonable efforts to designate a
different lending office for funding or booking its Loans hereunder or to assign
its rights and obligations hereunder to another of its offices, branches or
affiliates, if, in the reasonable judgment of such Lender, such designation or
assignment (i) would eliminate or reduce amounts payable pursuant to Section 9.3
or 9.4, as the case may be, in the future and (ii) would not subject such Lender
to any unreimbursed cost or expense and would not otherwise be materially
disadvantageous to such Lender.
42
Replacement of Lenders. If any Lender requests compensation under Section 9.3,
or if a Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 9.4, or
if any Lender defaults in its obligation to fund Loans hereunder, then the
Borrowers may, at their expense and effort or, in the case of an assignment from
a Defaulting Lender, at the expense of such Defaulting Lender, upon notice to
such Lender and the Administrative Agent, require such Lender to assign and
delegate, without recourse (in accordance with and subject to the restrictions
contained in, and consents required by, Section 11.8), all of its interests,
rights and obligations under this Agreement and the related Credit Documents to
an assignee that shall assume such obligations (which assignee may be another
Lender, if a Lender accepts such assignment); provided that:
the Borrowers shall have paid to the Administrative Agent the
assignment fee specified in Section 11.8,
such Lender shall have received payment of an amount equal to the outstanding
principal of its Loans, accrued interest thereon, accrued fees and all other
amounts payable to it hereunder and under the other Credit Documents (including
any amounts under Section 2.10) from the assignee (to the extent of such
outstanding principal and accrued interest and fees) or the Borrower (in the
case of all other amounts),
in the case of any such assignment resulting from a claim for compensation under
Section 9.3 or payments required to be made pursuant to Section 9.4, such
assignment will result in a reduction in such compensation or payments
thereafter, and
such assignment does not conflict with applicable law.
A Lender shall not be required to make any such assignment or delegation if,
prior thereto, as a result of a waiver by such Lender or otherwise, the
circumstances entitling the Borrowers to require such assignment and delegation
cease to apply.
Discretion of Lender as to Manner of Funding. Notwithstanding any other
provision of this Agreement, each Lender shall be entitled to fund and maintain
its funding of all or any part of its Loans in any manner it sees fit; it being
understood, however, that for the purposes of this Agreement all determinations
hereunder shall be made as if each Lender had actually funded and maintained
each Eurodollar Loan through the purchase of deposits in the eurodollar
interbank market having a maturity corresponding to such Loan's Interest Period
and bearing an interest rate equal to LIBOR for such Interest Period.
THE AGENT.
Appointment and Authority. Each of the Lenders hereby irrevocably appoints ABN
AMRO Bank N.V. as its agent hereunder and under the other Credit Documents and
authorizes the Administrative Agent to take such actions on its behalf and to
exercise such powers as are delegated to the Administrative Agent by the terms
hereof or thereof, together with such actions and powers as are reasonably
incidental thereto. The provisions of this Section 10 are solely for the benefit
of the Administrative Agent and the Lenders, and neither Borrower shall have
rights as a third party beneficiary of any of such provisions.
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Rights as a Lender. The Person serving as the Administrative Agent hereunder
shall have the same rights and powers in its capacity as a Lender as any other
Lender and may exercise the same as though it were not the Administrative Agent
and the term "Lender" or "Lenders" shall, unless otherwise expressly indicated
or unless the context otherwise requires, include the Person serving as the
Administrative Agent hereunder in its individual capacity. Such Person and its
Affiliates may accept deposits from, lend money to, act as the financial advisor
or in any other advisory capacity for and generally engage in any kind of
business with the Borrowers or any Subsidiary or other Affiliate thereof as if
such Person were not the Administrative Agent hereunder and without any duty to
account therefor to the Lenders.
Exculpatory Provisions. The Administrative Agent shall not have any duties or
obligations except those expressly set forth herein and in the other Credit
Documents. Without limiting the generality of the foregoing, the Administrative
Agent:
shall not be subject to any fiduciary or other implied duties, regardless
of whether a Default or Event of Default has occurred and is continuing,
shall not have any duty to take any discretionary action or exercise any
discretionary powers, except discretionary rights and powers expressly
contemplated hereby or by the other Credit Documents that the
Administrative Agent is required to exercise as directed in writing by the
Required Lenders (or such other number or percentage of the relevant
Lenders as shall be expressly provided for under the circumstances as
provided in this Agreement); provided that the Administrative Agent shall
not be required to take any action that, in its opinion or the opinion of
its counsel, may expose the Administrative Agent to liability or that is
contrary to any Credit Document or applicable law. In all cases in which
this Agreement and the other Credit Documents do not require the
Administrative Agent to take certain actions, the Administrative Agent
shall be fully justified in using its reasonable discretion in failing to
take or in taking any action hereunder and thereunder, and
shall not, except as expressly set forth herein and in the other Credit
Documents, have any duty to disclose, and shall not be liable for the
failure to disclose, any information relating to either Borrower or any of
its Affiliates that is communicated to or obtained by the person serving
as the Administrative Agent or any of its Affiliates in any capacity.
The Administrative Agent shall not be liable for any action taken or not taken
by it with the consent or at the request of the Required Lenders (or such other
number or percentage of the Lenders as shall be expressly provided for under the
circumstances as provided in this Agreement) or in the absence of its own gross
negligence or willful misconduct. The Administrative Agent shall be deemed not
to have knowledge of any Default or Event of Default unless and until notice
thereof is given in writing to the Administrative Agent by a Borrower or a
Lender.
The Administrative Agent shall not be responsible for or have any duty to
ascertain or inquire into (i) any statement, warranty or representation made in
or in connection with this Agreement or any other Credit Document, (ii) the
contents of any certificate, report or other document delivered hereunder or
thereunder or in connection herewith or therewith, (iii) the
44
performance or
observance of any of the covenants, agreements or other terms or conditions set
forth herein or therein or the occurrence of any Default or Event of Default,
(iv) the validity, enforceability, effectiveness or genuineness of this
Agreement, any other Credit Document or any other agreement, instrument or
document or (v) the satisfaction of any condition set forth in this Agreement,
other than to confirm receipt of items expressly required to be delivered to the
Administrative Agent.
Reliance by Administrative Agent. The Administrative Agent shall be entitled to
rely upon, and shall not incur any liability for relying upon, any notice,
request, certificate, consent, statement, instrument, document or other writing
(including any electronic message, posting or other distribution) believed by it
to be genuine and to have been signed, sent or otherwise authenticated by the
proper Person. The Administrative Agent also may rely upon any statement made to
it orally or by telephone and believed by it to have been made by the proper
Person, and shall not incur any liability for relying thereon. In determining
compliance with any condition hereunder to the making of a Loan that by its
terms must be fulfilled to the satisfaction of a Lender, the Administrative
Agent may presume that such condition is satisfactory to such Lender unless the
Administrative Agent shall have received notice to the contrary from such Lender
prior to the making of such Loan. The Administrative Agent may consult with
legal counsel (who may be counsel for the Borrowers), independent accountants
and other experts selected by it, and shall not be liable for any action taken
or not taken by it in accordance with the advice of any such counsel,
accountants or experts.
Delegation of Duties. The Administrative Agent may perform any and all of its
duties and exercise its rights and powers hereunder or under any other Credit
Document by or through any one or more sub-agents appointed by the
Administrative Agent. The Administrative Agent and any such sub-agent may
perform any and all of its duties and exercise its rights and powers by or
through their respective Related Parties. The exculpatory provisions of this
Article shall apply to any such sub-agent and to the Related Parties of the
Administrative Agent and any such sub-agent, and shall apply to their respective
activities in connection with the syndication of the credit facilities provided
for herein as well as activities as Administrative Agent.
Resignation of Administrative Agent. The Administrative Agent may at any time
give notice of its resignation to the Lenders and the Borrowers. Upon receipt of
any such notice of resignation, the Required Lenders shall have the right, in
consultation with the Borrowers (and so long as no Event of Default shall have
occurred and be continuing, with the consent of the Borrower), to appoint a
successor, which shall be a bank with an office in Chicago, Illinois or New
York, New York, or an Affiliate of any such bank with an office in Chicago,
Illinois, or New York, New York. If no such successor shall have been so
appointed by the Required Lenders and shall have accepted such appointment
within 30 days after the retiring Administrative Agent gives notice of its
resignation, then the retiring Administrative Agent may on behalf of the Lenders
appoint a successor Administrative Agent meeting the qualifications set forth
above; provided that if the Administrative Agent shall notify the Borrowers and
the Lenders that no such successor is willing to accept such appointment, then
such resignation shall nonetheless become effective in accordance with such
notice and (1) the retiring Administrative Agent shall be discharged from its
duties and obligations hereunder and under the other Loan Documents and (2) all
payments, communications and determinations to be made by, to or through the
Administrative Agent shall instead be made by or to each Lender directly, until
such time as the Required Lenders appoint a
45
successor Administrative Agent as
provided for above in this paragraph. Upon the acceptance of a successor's
appointment as Administrative Agent hereunder, such successor shall succeed to
and become vested with all of the rights, powers, privileges and duties of the
retiring (or retired) Administrative Agent, and the retiring Administrative
Agent shall be discharged from all of its duties and obligations hereunder and
under the other Credit Documents (if not already discharged therefrom as
provided above in this paragraph). The fees payable by the Borrowers to a
successor Administrative Agent shall be the same as those payable to its
predecessor unless otherwise agreed among the Borrowers and such successor.
After the retiring Administrative Agent's resignation hereunder and under the
other Credit Documents, the provisions of this Section 10.6 and Section 11.11
shall continue in effect for the benefit of such retiring Administrative Agent,
its sub-agents and their respective Related Parties in respect of any actions
taken or omitted to be taken by any of them while the retiring Administrative
Agent was acting as Administrative Agent.
Non-Reliance on Administrative Agent and Other Lenders. Each Lender acknowledges
that it has, independently and without reliance upon the Administrative Agent or
any other Lender or any of their Related Parties and based on such documents and
information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. Each Lender also acknowledges that it
will, independently and without reliance upon the Administrative Agent or any
other Lender or any of their Related Parties and based on such documents and
information as it shall from time to time deem appropriate, continue to make its
own decisions in taking or not taking action under or based upon this Agreement,
any other Loan Document or any related agreement or any document furnished
hereunder or thereunder.
No Other Duties, etc. Anything herein to the contrary notwithstanding, neither
the Bookrunner nor Arranger listed on the cover page hereof shall have any
powers, duties or responsibilities in such capacity under this Agreement or any
of the other Credit Documents.
MISCELLANEOUS.
No Waiver of Rights. No delay or failure on the part of the Administrative Agent
or any Lender or on the part of the holder or holders of any Note in the
exercise of any power or right under any Credit Document shall operate as a
waiver thereof, nor as an acquiescence in any default, nor shall any single or
partial exercise thereof preclude any other or further exercise of any other
power or right. The rights and remedies hereunder of the Administrative Agent,
the Lenders and the holder or holders of any Notes are cumulative to, and not
exclusive of, any rights or remedies which any of them would otherwise have.
Non-Business Day. If any payment of principal or interest on any Loan or of any
other Obligation shall fall due on a day which is not a Business Day, interest
or fees (as applicable) at the rate, if any, such Loan or other Obligation bears
for the period prior to maturity shall continue to accrue on such Obligation
from the stated due date thereof to and including the next succeeding Business
Day, on which the same shall be payable.
Survival of Representations. All representations and warranties made herein or
in certificates given pursuant hereto shall survive the execution and delivery
of this Agreement and the other
46
Credit Documents, and shall continue in full
force and effect with respect to the date as of which they were made as long as
any credit is in use or available hereunder.
Survival of Indemnities. All indemnities and all other provisions relating to
reimbursement of the Lenders of amounts sufficient to protect the yield of the
Lenders with respect to the Loans, including, but not limited to, Section 2.10,
Section 9.3, Section 9.4 and Section 11.11 hereof, shall survive the termination
of this Agreement and the other Credit Documents and the payment of the Loans
and all other Obligations.
Set-Off; Sharing of Payments. (a) Without limitation of any other rights of the
Lenders, if an Event of Default shall have occurred and be continuing, each
Lender and each of their respective Affiliates is hereby authorized at any time
and from time to time, to the fullest extent permitted by applicable law, to set
off and apply any and all deposits (general or special, time or demand,
provisional or final, in whatever currency) at any time held and other
obligations (in whatever currency) at any time owing by such Lender or any such
Affiliate to or for the credit or the account of a Borrower against any and all
of the obligations of the Borrowers now or hereafter existing under this
Agreement or any other Credit Document to such Lender, irrespective of whether
or not such Lender shall have made any demand under this Agreement or any other
Credit Document and although such obligations of a Borrower may be contingent or
unmatured or are owed to a branch or office of such Lender different from the
branch or office holding such deposit or obligated on such indebtedness. The
rights of each Lender and their respective Affiliates under this Section are in
addition to other rights and remedies (including other rights of setoff) which
such Lender or their respective Affiliates may have. Each Lender agrees promptly
to notify the Borrowers and the Administrative Agent after any such setoff and
application, provided that the failure to give such notice shall not affect the
validity of such setoff and application.
(b) If any Lender shall, by exercising any right of setoff or counterclaim
or otherwise, obtain payment in respect of any principal of or interest on any
of its Loans or other obligations hereunder resulting in such Lender's receiving
payment of a proportion of the aggregate amount of its Loans and accrued
interest thereon or other such obligations greater than its Percentage thereof
as provided herein, then the Lender receiving such greater proportion shall
notify the Administrative Agent of such fact and purchase (for cash at face
value) participations in the Loans and such other obligations of the other
Lenders, or make such other adjustments as shall be equitable, so that all such
payments shall be shared by the Lenders ratably in accordance with their
Percentages and other amounts owing them; provided that:
if any such participations are purchased and all or any portion of the payment
giving rise thereto is recovered, such participations shall be rescinded and the
purchase price restored to the extent of such recovery, without interest, and
the provisions of this paragraph shall not be construed to apply to (x) any
payment made by a Borrower pursuant to and in accordance with the express terms
of this Agreement or (y) any payment obtained by a Lender as consideration for
the assignment of or sale of a participation in any of its Loans to any assignee
or participant, other than to a Borrower or any Subsidiary thereof (as to which
the provisions of this paragraph shall apply).
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Each Borrower consents to the foregoing and agrees, to the extent it may
effectively do so under applicable law, that any Lender acquiring a
participation pursuant to the foregoing arrangements may exercise against such
Borrower rights of setoff and counterclaim with respect to such participation as
fully as if such Lender were a direct creditor of such Borrower in the amount of
such participation.
Notices.
Notices Generally. Except in the case of notices and other communications
expressly permitted to be given by telephone or email (and except as provided in
paragraph (b) below), all notices and other communications provided for herein
shall be in writing and shall be delivered by hand or overnight courier service,
mailed by certified or registered mail or sent by facsimile as follows:
if to either Borrower, to:
0000 Xxxxx Xxxx; Xxxxxxxxxx, XX 00000
Attention: Xxxxx Xxxxx
Fax: 000-000-0000
Confirm No.: 000-000-0000 x0000
if to the Administrative Agent, to the address set
forth on Part B of Schedule 4 hereto
With copies of all such notices to:
ABN AMRO Bank N.V.
000 Xxxxx XxXxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxx Xxxxx/Ece Xxxxxxx
Telephone: 000.000.0000 (Xx. Xxxxx)
312.904.0191 (Xxx. Xxxxxxx)
Facsimile: 312.904.1466
if to a Lender, to it at its address (or facsimile
number) set forth in its Administrative
Questionnaire.
Notices sent by hand or overnight courier service, or mailed by certified or
registered mail, shall be deemed to have been given when received. Notices sent
by facsimile shall be deemed to have been given when sent (except that, if not
given during normal business hours for the recipient, shall be deemed to have
been given at the opening of business on the next business day for the
recipient). Notices delivered through electronic communications to the extent
provided in paragraph (b) below, shall be effective as provided in said
paragraph (b).
Electronic Communications. Notices and other communications to the Lenders
hereunder may be delivered or furnished by electronic communication (including
e-mail and Internet or intranet
48
websites) pursuant to procedures approved by the
Administrative Agent; provided that the foregoing shall not apply to notices to
any Lender pursuant to Section 2.4(b) if such Lender has notified the
Administrative Agent that it is incapable of receiving notices under Section
2.4(b) by electronic communication. The Administrative Agent or the Borrowers
may, in its discretion, agree to accept notices and other communications to it
hereunder by electronic communications pursuant to procedures approved by it;
provided that approval of such procedures may be limited to particular notices
or communications.
Unless the Administrative Agent otherwise prescribes, (i) notices and
other communications sent to an e-mail address shall be deemed received upon the
sender's receipt of an acknowledgement from the intended recipient (such as by
the "return receipt requested" function, as available, return e-mail or other
written acknowledgement); provided that if such notice or other communication is
not sent during the normal business hours of the recipient, such notice or
communication shall be deemed to have been sent at the opening of business on
the next Business Day for the recipient, and (ii) notices or communications
posted to an internet or intranet website shall be deemed received upon the
deemed receipt by the intended recipient at its e-mail address as described in
the foregoing clause (i) of notification that such notice or communication is
available and identifying the website address therefor.
Change of Address, Etc. Any party hereto may change its address or facsimile
number for notices and other communications hereunder by notice to the other
parties hereto.
Counterparts; Integration; Effectiveness; Electronic Execution.
Counterparts; Integration; Effectiveness. This Agreement may be executed in
counterparts (and by different parties hereto in different counterparts), each
of which shall constitute an original, but all of which when taken together
shall constitute a single contract. This Agreement and any separate letter
agreements with respect to fees payable to the Administrative Agent constitute
the entire contract among the parties relating to the subject matter hereof and
supersede any and all previous agreements and understandings, oral or written,
relating to the subject matter hereof. Except as provided in Section 6.1, this
Agreement shall become effective when it shall have been executed by the
Administrative Agent and when the Administrative Agent shall have received
counterparts hereof which, when taken together, bear the signatures of each of
the other parties hereto, and thereafter shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns.
Delivery of an executed counterpart of a signature page of this Agreement by
facsimile or other electronic means shall be effective as delivery of a manually
executed counterpart of this Agreement.
Electronic Execution of Assignments. The words "execution," "signed,"
"signature," and words of like import in any Assignment and Assumption shall be
deemed to include electronic signatures or the keeping of records in electronic
form, each of which shall be of the same legal effect, validity or
enforceability as a manually executed signature or the use of a paper-based
record keeping system, as the case may be, to the extent and as provided for in
any applicable law, including the Federal Electronic Signatures in Global and
National Commerce Act, the New York State Electronic Signatures and Records Act,
or any other similar state laws based on the Uniform Electronic Transactions
Act.
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Successors and Assigns.
Successors and Assigns Generally. The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns permitted hereby, except that neither Borrower may assign
or otherwise transfer any of its rights or obligations hereunder without the
prior written consent of each Lender and no Lender may assign or otherwise
transfer any of its rights or obligations hereunder except (i) to an Eligible
Assignee in accordance with the provisions of paragraph (b) of this Section,
(ii) by way of participation in accordance with the provisions of paragraph (d)
of this Section or (iii) by way of pledge or assignment of a security interest
subject to the restrictions of paragraph (f) of this Section (and any other
attempted assignment or transfer by any party hereto shall be null and void).
Nothing in this Agreement, expressed or implied, shall be construed to confer
upon any Person (other than the parties hereto, their respective successors and
assigns permitted hereby, Participants to the extent provided in paragraph (d)
of this Section and, to the extent expressly contemplated hereby, the Related
Parties of each of the Administrative Agent and the Lenders) any legal or
equitable right, remedy or claim under or by reason of this Agreement.
Assignments by Lenders. Any Lender may at any time assign to one or more
Eligible Assignees all or a portion of its rights and obligations under this
Agreement (including all or a portion of its Commitment and the Loans at the
time owing to it); provided that
except in the case of an assignment of the entire remaining amount of the
assigning Lender's Commitment and the Loans at the time owing to it or in the
case of an assignment to a Lender or an Affiliate of a Lender or an Approved
Fund with respect to a Lender, the aggregate amount of the Commitment (which for
this purpose includes Loans outstanding thereunder) or, if the applicable
Commitment is not then in effect, the principal outstanding balance of the Loan
of the assigning Lender subject to each such assignment (determined as of the
date the Assignment and Assumption with respect to such assignment is delivered
to the Administrative Agent or, if "Trade Date" is specified in the Assignment
and Assumption, as of the Trade Date) shall not be less than $5,000,000 (and the
remaining aggregate amount of the Commitment of such assigning Lender shall not
be less than $5,000,000 after giving effect to such assignment), unless each of
the Administrative Agent and, so long as no Event of Default has occurred and is
continuing, the Borrowers otherwise consent (each such consent not to be
unreasonably withheld or delayed);
each partial assignment shall be made as an assignment of a proportionate part
of all the assigning Lender's rights and obligations under this Agreement with
respect to the Loan or the Commitment assigned;
any assignment of a Commitment must be approved by the Administrative Agent
unless the Person that is the proposed assignee is itself an Eligible Assignee,
which approval shall not be unreasonably withheld; and
the parties to each assignment shall execute and deliver to the Administrative
Agent an Assignment and Assumption, together with a processing and recordation
fee of $3,500, and the Eligible Assignee, if it shall not be a Lender, shall
deliver to the Administrative Agent an Administrative Questionnaire.
50
Subject to acceptance and recording thereof by the Administrative Agent pursuant
to paragraph (c) of this Section, from and after the effective date specified in
each Assignment and Assumption, the Eligible Assignee thereunder shall be a
party to this Agreement and, to the extent of the interest assigned by such
Assignment and Assumption, have the rights and obligations of a Lender under
this Agreement, and the assigning Lender thereunder shall, to the extent of the
interest assigned by such Assignment and Assumption, be released from its
obligations under this Agreement (and, in the case of an Assignment and
Assumption covering all of the assigning Lender's rights and obligations under
this Agreement, such Lender shall cease to be a party hereto) but shall continue
to be entitled to the benefits of Sections 9.3 and 9.4 with respect to facts and
circumstances occurring prior to the effective date of such assignment. Any
assignment or transfer by a Lender of rights or obligations under this Agreement
that does not comply with this paragraph shall be treated for purposes of this
Agreement as a sale by such Lender of a participation in such rights and
obligations in accordance with paragraph (d) of this Section.
Register. The Administrative Agent, acting solely for this purpose as an agent
of the Borrowers, shall maintain at one of its offices in Chicago, Illinois a
copy of each Assignment and Assumption delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitments of,
and principal amounts of the Loans owing to, each Lender pursuant to the terms
hereof from time to time (the "Register"). The entries in the Register shall be
conclusive, and the Borrowers, the Administrative Agent and the Lenders may
treat each Person whose name is recorded in the Register pursuant to the terms
hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding
notice to the contrary. The Register shall be available for inspection by the
Borrowers and any Lender at any reasonable time upon reasonable prior notice.
Participations. Any Lender may at any time, without the consent of, or notice
to, the Borrowers or the Administrative Agent, sell participations to any Person
(other than a natural person or a Borrower or any of the Borrowers' Affiliates
or Subsidiaries) (each, a "Participant") in all or a portion of such Lender's
rights and/or obligations under this Agreement (including all or a portion of
its Commitment and/or the Loans owing to it); provided that (i) such Lender's
obligations under this Agreement shall remain unchanged, (ii) such Lender shall
remain solely responsible to the other parties hereto for the performance of
such obligations and (iii) the Borrowers, the Administrative Agent and the other
Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this Agreement.
Any agreement or instrument pursuant to which a Lender sells such a
participation shall provide that such Lender shall retain the sole right to
enforce this Agreement and to approve any amendment, modification or waiver of
any provision of this Agreement; provided that such agreement or instrument may
provide that such Lender will not, without the consent of the Participant, agree
to any amendment, modification or waiver of the type described in Section
11.9(i) that affects such Participant. Subject to paragraph (e) of this Section,
the Borrowers agree that each Participant shall be entitled to the benefits of
Sections 9.3 and 9.4 to the same extent as if it were a Lender and had acquired
its interest by assignment pursuant to paragraph (b) of this Section. Each
Lender granting a participation under this Section 11.8(d) shall keep a
register, meeting the requirements of Treasury Regulation Section 5f.103-1(c),
of
51
each participant, specifying such participant's entitlement to payments of
principal and interest with respect to such participation.
Limitations upon Participant Rights. A Participant shall not be entitled to
receive any greater payment under Sections 9.3 and 9.4 than the applicable
Lender would have been entitled to receive with respect to the participation
sold to such Participant, unless the sale of the participation to such
Participant is made with the Borrowers' prior written consent. A Participant
that would be a Foreign Lender if it were a Lender shall not be entitled to the
benefits of Section 9.4 unless the Borrowers are notified of the participation
sold to such Participant and such Participant agrees, for the benefit of the
Borrowers, to comply with Section 9.4 as though it were a Lender.
Certain Pledges. Any Lender may at any time pledge or assign a security interest
in all or any portion of its rights under this Agreement to secure obligations
of such Lender, including without limitation any pledge or assignment to secure
obligations to a Federal Reserve Bank; provided that no such pledge or
assignment shall release such Lender from any of its obligations hereunder or
substitute any such pledgee or assignee for such Lender as a party hereto.
Certain Funding Arrangements. Notwithstanding anything to the contrary contained
herein, any Lender (a "Granting Bank") may grant to a special purpose funding
vehicle which is an Affiliate of such Bank (a "SPC") and identified as such in
writing by the Granting Bank to the Administrative Agent and the Borrowers, the
option to provide to the Borrowers all or any part of any Loan that such
Granting Bank would otherwise be obligated to make to the Borrowers pursuant to
this Agreement; provided that (i) nothing herein shall constitute a commitment
by any SPC to make any Loan and (ii) if an SPC elects not to exercise such
option or otherwise fails to provide all or any part of such Loan, the Granting
Bank shall be obligated to make such Loan pursuant to the terms hereof. The
making of a Loan by an SPC hereunder shall utilize the Commitment of the
Granting Bank to the same extent, and as if, such 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 11.8(g), any SPC may (i) with notice to, but without the prior
written consent of, the Borrowers and the Administrative Agent and without
paying any processing fee therefor, assign all or a portion of its interests in
any Loans to the Granting Bank or to any financial institutions (consented to by
the Borrowers and the Administrative Agent) providing liquidity and/or credit
support to or for the account of such SPC to support the funding or maintenance
of Loans and (ii) disclose on a confidential basis any non-public information
relating to its 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.
52
Amendments. Any provision of the Credit Documents may be amended or waived if,
but only if, such amendment or waiver is in writing and is signed by (a) the
Borrowers, (b) the Required Lenders, and (c) if the rights or duties of the
Administrative Agent are affected thereby, the Administrative Agent; provided
that:
no amendment or waiver pursuant to this Section 11.9 shall (A) increase,
decrease or extend any Commitment of any Lender without the consent of such
Lender or (B) reduce the amount of or postpone any fixed date for payment of any
principal of or interest on any Loan or of any fee or other Obligation payable
hereunder without the consent of each Lender; provided that the Required Lenders
may waive any default interest accruing pursuant to Section 2.8 hereof; and
no amendment or waiver pursuant to this Section 11.9 shall, unless signed by
each Lender, change this Section 11.9, or the definition of Required Lenders, or
affect the number of Lenders required to take any action under the Credit
Documents.
Anything in this Agreement to the contrary notwithstanding, if at any time
when the conditions precedent set forth in Section 6.2 hereof to any Loan
hereunder are satisfied, any Lender shall fail to fulfill its obligations to
make such Loan (any such Lender, a "Defaulting Lender") then, for so long as
such failure shall continue, the Defaulting Lender shall (unless the Borrowers,
the Administrative Agent and the Required Lenders (determined as if the
Defaulting Lender were not a Lender hereunder) shall otherwise consent in
writing) be deemed for all purposes related to amendments, modifications,
waivers or consents under this Agreement (other than amendments or waivers
referred to in clause (i) and (ii) above) to have no Loans or Commitments and
shall not be treated as a Lender hereunder when performing the computation of
the Required Lenders. To the extent the Administrative Agent receives any
payments or other amounts for the account of a Defaulting Lender such Defaulting
Lender shall be deemed to have requested that the Administrative Agent use such
payment or other amount to fulfill its obligations to make such Loan.
Headings. Section headings used in this Agreement are for reference only and
shall not affect the construction of this Agreement.
Expenses; Indemnity; Waiver.
Costs and Expenses. The Borrowers shall pay (i) all reasonable out-of-pocket
expenses incurred by the Administrative Agent and its Affiliates, including the
reasonable fees, charges and disbursements of counsel for the Administrative
Agent (and fees and time charges for attorneys who may be employees of the
Administrative Agent), in connection with the syndication of the credit
facilities provided for herein, the preparation, negotiation, execution,
delivery and administration of this Agreement and the other Credit Documents or
any amendments, modifications or waivers of the provisions hereof or thereof
(whether or not the transactions contemplated hereby or thereby shall be
consummated), and (ii) all out-of-pocket expenses incurred by the Administrative
Agent or any Lender, including the fees, charges and disbursements of any
counsel for the Administrative Agent or any Lender (and fees and time charges
for attorneys who may be employees of the Administrative Agent or any Lender),
in connection with the enforcement or protection of its rights in connection
with this Agreement and the other Credit Documents, including its rights under
this Section 11.11(a), or in connection
53
with the Loans made hereunder, including
all such out-of-pocket expenses incurred during any workout, restructuring or
negotiations in respect of such Loans.
Indemnification by Nicor. Nicor shall indemnify the Administrative Agent (and
any sub-agent thereof) and each Lender, and each Related Party of any of the
foregoing Persons (each such Person being called an "Indemnitee") against, and
hold each Indemnitee harmless from, any and all losses, claims, damages,
liabilities and expenses, including the fees, charges and disbursements of any
counsel for any Indemnitee (and fees and time charges for attorneys who may be
employees of the Administrative Agent or any Lender) incurred by or asserted
against any Indemnitee arising out of, in connection with, or as a result of (i)
the execution or delivery of this Agreement, any other Credit Document or any
agreement or instrument contemplated hereby or thereby, the performance by the
parties hereto of their respective obligations hereunder or the consummation of
the transactions contemplated hereby or thereby (including any relating to a
misrepresentation by a Borrower under any Credit Document), (ii) any Loan or the
use of the proceeds therefrom, (iii) any actual or alleged presence or Release
of Hazardous Materials on or from any Property owned or operated by Nicor or any
of its Subsidiaries, or any Environmental Liability related in any way to Nicor
or any of its Subsidiaries, or (iv) any actual or prospective claim, litigation,
investigation or proceeding relating to any of the foregoing, whether based on
contract, tort or any other theory and regardless of whether any Indemnitee is a
party thereto; provided that such indemnity shall not, as to any Indemnitee, be
available to the extent that such losses, claims, damages, liabilities or
related expenses are determined by a court of competent jurisdiction by final
and nonappealable judgment to have resulted from the gross negligence or willful
misconduct of such Indemnitee.
Reimbursement by Lenders. To the extent that the Borrowers fails for any reason
to pay within the time set forth in paragraph (e) below any amount required
under paragraph (a) or (b) of this Section 11.11 to be paid to the
Administrative Agent (or any sub-agent thereof) or any Related Party of the
Administrative Agent, each Lender severally agrees to pay to the Administrative
Agent (or any such sub-agent) or such Related Party, as the case may be, upon
demand such Lender's Percentage (determined as of the time that the applicable
unreimbursed expense or indemnity payment is sought) of such unpaid amount;
provided that the unreimbursed expense or indemnified loss, claim, damage,
liability or related expense, as the case may be, was incurred by or asserted
against the Administrative Agent (or any such sub-agent) or against any Related
Party of the Administrative Agent acting for the Administrative Agent (or any
such sub-agent) in connection with such capacity.
Waiver of Consequential Damages, Etc. To the fullest extent permitted by
applicable law, neither Borrower shall assert, and each hereby waives, any claim
against any Indemnitee, on any theory of liability, for special, indirect,
consequential or punitive damages (as opposed to direct or actual damages)
arising out of, in connection with, or as a result of, this Agreement, any other
Credit Document or any agreement or instrument contemplated hereby, the
transactions contemplated hereby or thereby, any Loan or the use of the proceeds
thereof, except to the extent that any such claim shall be based upon the gross
negligence or willful misconduct of any such Indemnitee. No Indemnitee referred
to in paragraph (b) above shall be liable for any damages arising from the use
by unintended recipients of any information or other materials distributed by it
through telecommunications, electronic or other information transmission systems
in
54
connection with this Agreement or the other Credit Documents or the
transactions contemplated hereby or thereby.
Payments. All amounts due under this Section 11.11 shall be payable not later
than 5 days after demand therefor; provided that with respect to a Borrower,
such amount shall automatically become due to the extent an Event of Default has
arisen under Section 8.1(f) or 8.1(g).
Entire Agreement. The Credit Documents constitute the entire understanding of
the parties thereto with respect to the subject matter thereof and any prior or
contemporaneous agreements, whether written or oral, with respect thereto are
superseded thereby.
Governing Law; Jurisdiction; Etc.
Governing Law. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of New York.
Submission to Jurisdiction. Each Borrower irrevocably and unconditionally
submits itself and its Property to the nonexclusive jurisdiction of the courts
of the State of New York sitting in the Borough of Manhattan and of the United
States District Court of the Southern District of New York, and any appellate
court from any thereof, in any action or proceeding arising out of or relating
to this Agreement or any other Credit Document, or for recognition or
enforcement of any judgment, and each of the parties hereto irrevocably and
unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such New York State court or, to the
fullest extent permitted by applicable law, in such Federal court. Each of the
parties hereto agrees that a final judgment in any such action or proceeding
shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law. Nothing in this Agreement or in
any other Credit Document shall affect any right that the Administrative Agent
or any Lender may otherwise have to bring any action or proceeding relating to
this Agreement or any other Credit Document against a Borrower or its Properties
in the courts of any jurisdiction.
Waiver of Venue. Each Borrower irrevocably and unconditionally waives, to the
fullest extent permitted by applicable law, any objection which it may now or
hereafter have to the laying of venue of any action or proceeding arising out of
or relating to this Agreement or any other Credit Document in any court referred
to in paragraph (b) of this Section. Each of the parties hereto hereby
irrevocably waives, to the fullest extent permitted by applicable law, the
defense of an inconvenient forum to the maintenance of such action or proceeding
in any such court.
Service of Process. Each party hereto irrevocably consents to service of process
in the manner provided for notices in Section 11.6. Nothing in this Agreement
will affect the right of any party hereto to serve process in any other manner
permitted by applicable law.
WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY
JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING
TO THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY).
55
EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON
WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND
(B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER
INTO THIS AGREEMENT AND THE OTHER CREDIT DOCUMENTS BY, AMONG OTHER THINGS, THE
MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
Treatment of Certain Information; Confidentiality. Each of the Administrative
Agent and the Lenders agrees to maintain the confidentiality of the Information
(as defined below), except that Information may be disclosed (a) to it, its
Affiliates and their respective partners, directors, officers, employees,
agents, advisors and representatives (it being understood that the Persons to
whom such disclosure is made will be informed of the confidential nature of such
Information and instructed to keep such Information confidential), (b) to the
extent requested by any regulatory authority (including any self-regulatory
authority, such as the National Association of Insurance Commissioners), (c) to
the extent required by applicable laws or regulations or by any subpoena or
similar legal process, (d) to any other party hereto, (e) in connection with the
exercise of any remedies hereunder or under any other Credit Document or any
action or proceeding relating to this Agreement or any other Credit Document or
the enforcement of rights hereunder or thereunder, (f) subject to an agreement
containing provisions substantially the same as those of this Section 11.15, to
any assignee of or Participant in, or any prospective assignee of or Participant
in, any of its rights or obligations under this Agreement, (g) with the consent
of a Borrower or (h) to the extent such Information (x) becomes publicly
available other than as a result of a breach of this Section 11.15 or (y)
becomes available to the Administrative Agent or any Lender on a
non-confidential basis from a source other than the Borrowers.
For purposes of this Section, "Information" means all information received
from a Borrower or any of its Subsidiaries relating to a Borrower or any of its
Subsidiaries or any of their respective businesses, other than any such
information that is available to the Administrative Agent or any Lender on a
non-confidential basis prior to disclosure by a Borrower; provided that, in the
case of information received from a Borrower after the date hereof, such
information is clearly identified at the time of delivery as confidential. Any
Person required to maintain the confidentiality of Information as provided in
this Section 11.15 shall be considered to have complied with its obligation to
do so if such Person has exercised the same degree of care to maintain the
confidentiality of such Information as such Person would accord to its own
confidential information.
Notwithstanding anything herein to the contrary, "Information" shall not
include, and the Administrative Agent and each Lender may disclose to any and
all persons any information with respect to the U.S. federal income tax
treatment and U.S. federal income tax structure of the transactions contemplated
hereby and all materials of any kind (including opinions or other tax analyses)
that are provided to the Administrative Agent or such Lender relating to such
tax treatment and tax structure.
- Remainder of Page Intentionally Left Blank -
[Signature Page Follows]
56
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered as of the day and year first above written.
NICOR INC., an Illinois corporation
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President Administration and
Treasurer
NORTHERN ILLINOIS GAS COMPANY, an
Illinois corporation
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President Administration and
Treasurer
S-1
ABN AMRO BANK N.V., in its individual
capacity as a Lender and as
Administrative Agent
By: /s/ Xxxx Xxxxx
----------------------------
Name: Xxxx Xxxxx
Title: Senior Vice President &
Managing Director
By: /s/ Xxxx X. Xxxxxxxxx
----------------------------
Name: Xxxx Xxxxxxxxx
Title: Senior Vice President & Managing
Director
S-2
BANK ONE, NA
By: /s/ Xxxx Xxx
----------------------------
Name: Xxxx Xxx
Its: Director
KEYBANK NATIONAL ASSOCIATION
By:/s/ Xxxxxxx X. Xxxxxx
-------------------------
Name: Xxxxxxx X. Xxxxxx
Its: Vice President
COMMERZBANK AG, NEW YORK AND GRAND CAYMAN
BRANCHES
By:/s/ Xxxxxxx X. Xxxxx
-------------------------
Name: Xxxxxxx X. Xxxxx
Its: Senior Vice President
By:/s/ Xxxxxxx X. Xxxxxx
-------------------------
Name: Xxxxxxx X. Xxxxxx
Its: Assistant Vice President
SOCIETE GENERALE
By:/s/ G. Xxxxx Xxxxxx
-------------------------
Name: G. Xxxxx Xxxxxx
Its: Vice President
MIZUHO CORPORATE BANK, LTD.
By:/s/ Jun Shimmachi
-------------------------
Name: Jun Shimmachi
Its: Vice President
WACHOVIA BANK, NATIONAL ASSOCIATION
By:/s/ Xxxxxxx X. Xxxxxxxxxx
----------------------------
Xxxxxxx X. Xxxxxxxxxx
Director
The Royal Bank of Scotland plc
By:/s/ Xxxxxxx X. Main
-------------------------
Name: Xxxxxxx X. Main
Its: Senior Vice President
LANDESBANK SACHSEN
GIROZENTRALE
By:/s/ X. Xxxxxx
-------------------------
Name: X. Xxxxxx
Its: Sachsen LB
International Department
By:/s/ Xxxxxxxx
-------------------------
Name: Xxxxxxxx
Its: Sachsen LB
International Department
BANK OF NEW YORK
By:/s/ Xxxxxxx X. Xxxxxxx
-------------------------
Name: Xxxxxxx X. Xxxxxxx
Its: Vice President
THE NORTHERN TRUST COMPANY
By:/s/ Xxxxx Xxxxx
-------------------------
Name: Xxxxx Xxxxx
Its: Vice President
LANDESBANK BADEN-WUERTTEMBERG
NEW YORK BRANCH / AND OR
CAYMAN ISLANDS BRANCH
By:/s/ Xxxxx Xxxxxxx
-------------------------
Name: Xxxxx Xxxxxxx
Its: Vice President
By:/s/ Xxxxx Xxxxxxx
-------------------------
Name: Xxxxx Xxxxxxx
Its: Senior Credit Officer
UFJ BANK LIMITED
By:/s/ Xxxxxxx Xxxxxx
-------------------------
Name: Xxxxxxx Xxxxxx
Its: Vice President
BAYERISCHE HYPO-UND
VEREINSBANK AG, NEW YORK
BRANCH
By:/s/ Xxxxx X. Xxxxx
-------------------------
Name: XXXXX X. XXXXX
Its: DIRECTOR
BAYERISCHE HYPO-UND VEREINSBANK A.G.
By:/s/ Xxxxxx X. Xxxxxxxx
-------------------------
Name: XXXXXX X. XXXXXXXX
Its: ASSOCIATE DIRECTOR
BAYERISCHE HYPO-UND VEREINSBANK A.G.
ALLIED IRISH BANKS P.L.C.
By:/s/ Xxxxxx Xxxx
-------------------------
Name: Xxxxxx Xxxx
Its: Vice President
By:/s/ Xxxxx Xxxxxxx
-------------------------
Name: Xxxxx Xxxxxxx
Its: Assistant Vice President
THE BANK OF TOKYO-MITSUBISHI, LTD.
CHICAGO BRANCH
By:/s/ Xxxxxxxxxx Xxxxxxxxx
-------------------------
Name: Xxxxxxxxxx Xxxxxxxxx
Its: Deputy General Manager
SUMITOMO MITSUI BANKING
CORPORATION
By:/s/ Xxxxx X. Xxxx
-------------------------
Name: Xxxxx X. Xxxx
Its: Senior Vice President
KBC BANK, NV
By:/s/ Xxxx-Xxxxxx Diels
-------------------------
Name: XXXX-XXXXXX DIELS
Its: First Vice President
By:/s/ Xxxx Xxxxxx
-------------------------
Name: XXXX XXXXXX
Its: VICE PRESIDENT
BANCA DI ROMA - CHICAGO BRANCH
By:/s/ Xxxxx Xxxxxxxxx
-------------------------
Name: Xxxxx Xxxxxxxxx
Its: Vice President
By:/s/ Enrico Verdoscia
-------------------------
Name: Enrico Verdoscia
Its: Sr. Vice President
BANCO BILBAO VIZCAYA ARGENTARIA S.A.
as a Bank,
By:/s/ Xxxxxxxx Xxxxxxxxx
-------------------------
Name: XXXXXXXX XXXXXXXXX
Its: VICE PRESIDENT
GLOBAL CORPORATE BANKING
By:/s/ Xxx Xxxxx
-------------------------
Name: XXX XXXXX
Its: VICE PRESIDENT
GLOBAL CORPORATE BANKING
BANK HAPOALIM B.M.
By:/s/ Xxxxx Xxxxxxxxx
-------------------------
Name: Xxxxx Xxxxxxxxx
Its: Vice President
By:/s/ Xxxxxx Xxxxxxx
-------------------------
Name: Xxxxxx Xxxxxxx
Its: Vice President
BANCA MONTE DEI PASCHI DI SIENA
S.P.A.
By:/s/ Xxxxx X. Xxxxx
-------------------------
Name: Xxxxx X. Xxxxx
Its: Senior Vice President and General
Manager
By:/s/ Xxxxx X. Xxxxx
-------------------------
Name: Xxxxx X. Xxxxx
Its: Vice President
FIFTH THIRD BANK (CHICAGO), A
MICHIGAN BANKING CORPORATION
By:/s/ Xxx Xxxxxxxxxxx
-------------------------
Name: Xxx Xxxxxxxxxxx
Its: Corporate Banking Officer
NORDDEUTSCHE LANDESBANK GIROZENTRALE
NEW YORK AND/OR CAYMAN ISLANDS BRANCH
By:/s/ Xxxxx Xxxx
-------------------------
Name: Xxxxx Xxxx
Its: Vice President
By:/s/ Xxxxxx Xxxxx
-------------------------
Name: Xxxxxx Xxxxx
Its: Assistant Vice President
U.S. BANK, NATIONAL ASSOCIATION
By:/s/ Xxxxx X. Xxxxxxx
-------------------------
Name: Xxxxx X. Xxxxxxx
Its: Assistant Vice President
XXXXX FARGO BANK, NATIONAL
ASSOCIATION
By:/s/ Xxxxxxx X. Xxxx
-------------------------
Name: Xxxxxxx X. Xxxx
Its: Vice President
By:/s/ Xxxxxxx X. Xxxxxxx
-------------------------
Name: Xxxxxxx X. Xxxxxxx
Its: Vice President
MALAYAN BANKING BERHAD
By:/s/ Wan Xxxxxx Xxxxxx
-------------------------
Wan Xxxxxx Xxxxxx
General Manager
STATE BANK OF INDIA, NEW YORK
By:/s/ A.K. Basu
-------------------------
Name: A.K. BASU
Its: SR. VICE PRESIDENT (CREDIT) and
AUTHORIZED SIGNATORY
NATIONAL CITY BANK OF MICHIGAN/ILLINOIS
By:/s/ Xxxx X. Xxxx
-------------------------
Name: Xxxx X. Xxxx
Its: Senior Vice President
SEAWAY NATIONAL BANK
By:/s/ Xxxxxx Xxxxxxxxxx-Xxxxxxxx
-------------------------------
Name: Xxxxxx Xxxxxxxxxx-Xxxxxxxx
Its: Senior Vice President
Amount: $2,000,000.00
---------------------
S-3
EXHIBIT A
PROMISSORY NOTE
September 9, 2003
FOR VALUE RECEIVED, the undersigned, [Nicor, Inc. [or] Northern Illinois
Gas Company], an Illinois corporation ("Borrower"), promises to pay to the order
of [_________________] (the "Lender") on the Termination Date of the Credit
Agreement (as hereinafter defined), at the principal office of ABN AMRO Bank
N.V., in New York, New York, in accordance with Section 4.1 of the Credit
Agreement, the aggregate unpaid principal amount of all Loans made by the Lender
to Borrower pursuant to the Credit Agreement, together with interest on the
principal amount of each Loan from time to time outstanding hereunder at the
rates, and payable in the manner and on the dates, specified in the Credit
Agreement.
This Note is one of the Notes referred to in the 364-Day Credit Agreement
dated as of September 9, 2003, among Nicor Inc., Northern Illinois Gas Company,
ABN AMRO Bank N.V., as Administrative Agent and the other financial institutions
party thereto (the "Credit Agreement"), and this Note and the holder hereof are
entitled to all the benefits provided for thereby or referred to therein, to
which Credit Agreement reference is hereby made for a statement thereof. All
defined terms used in this Note, except terms otherwise defined herein, shall
have the same meaning as in the Credit Agreement. This Note shall be governed by
and construed in accordance with the laws of the State of New York.
The Lender shall record on its books or records or on a schedule attached
to this Note, which is a part hereof, each Loan made by it pursuant to the
Credit Agreement, together with all payments of principal and interest and the
principal balances from time to time outstanding hereon, whether the Loan is a
Base Rate Loan or a Eurodollar Loan, and the interest rate and Interest Period
applicable thereto; provided that prior to the transfer of this Note all such
amounts shall be recorded on a schedule attached to this Note. The record
thereof, whether shown on such books or records or on a schedule to this Note,
shall be prima facie evidence of the same; provided, however, that the failure
of the Lender to record any of the foregoing or any error in any such record
shall not limit or otherwise affect the obligation of Borrower to repay all
Loans made to it pursuant to the Credit Agreement together with accrued interest
thereon.
Prepayments may be made hereon and this Note may be declared due prior to
the expressed maturity hereof, all in the events, on the terms and in the manner
as provided for in the Credit Agreement.
- Remainder of Page Intentionally Left Blank -
[Signature Page Follows]
The Borrower hereby waives demand, presentment, protest or notice of any
kind hereunder.
[NICOR INC. [OR] NORTHERN ILLINOIS
GAS COMPANY], an Illinois
corporation
By:
----------------------------
Name:
--------------------------
Title:
------------------------------
EXHIBIT B
COMPLIANCE CERTIFICATE
This Compliance Certificate is furnished to ABN AMRO Bank N.V., as
Administrative Agent pursuant to the 364-Day Credit Agreement dated as of
September 9, 2003, among Northern Illinois Gas Company, an Illinois corporation
("Nicor Gas"), and Nicor Inc., an Illinois corporation ("Nicor" Nicor Gas and
Nicor are each referred to herein as a "Borrower" and collectively as the
"Borrowers"), ABN AMRO Bank N.V., as Administrative Agent and the financial
institutions party thereto (the "Credit Agreement"). Unless otherwise defined
herein, the terms used in this Compliance Certificate have the meanings ascribed
thereto in the Credit Agreement.
THE UNDERSIGNED HEREBY CERTIFIES THAT:
1. I am the duly elected or appointed ___________________of Nicor;
2. I have reviewed the terms of the Credit Agreement and I have made,
or have caused to be made under my supervision, a detailed review of the
transactions and conditions of Nicor and its Subsidiaries during the
accounting period covered by the attached financial statements;
3. The examinations described in paragraph 2 did not disclose, and I
have no knowledge of, the existence of any condition or event which
constitutes a Default or an Event of Default during or at the end of the
accounting period covered by the attached financial statements or as of
the date of this Certificate, except as set forth below; and
4. Schedule 1 attached hereto sets forth financial data and
computations evidencing compliance with certain covenants of the Credit
Agreement, all of which data and computations are true, complete and
correct. All computations are made in accordance with the terms of the
Credit Agreement.
Described below are the exceptions, if any, to paragraph 3 listing, in
detail, the nature of the condition or event, the period during which it has
existed and the action which the Borrowers have taken, are taking, or propose to
take with respect to each such condition or event:
______________________________________________
______________________________________________
______________________________________________
The foregoing certifications, together with the computations
set forth in Schedule 1 hereto and the financial statements
delivered with this Certificate in support hereof, are made and
delivered this ___________day of __________, 200_.
SCHEDULE 1 TO COMPLIANCE CERTIFICATE
Compliance Calculations for Credit Agreement
CALCULATION AS OF ________ __,200_
--------------------------------------------------------------------
A. Leverage Ratio (Section 7.15)
--------------------------------------------------------------------
1. Consolidated Net Worth $_____________
--------------------------------------------------------------------
2. Consolidated Indebtedness $____________
--------------------------------------------------------------------
3. Capital (Line A1 plus Line A2) $______________
--------------------------------------------------------------------
4. Leverage Ratio ___________:1.00
(ratio of Line A2 to Line
A3 not to exceed
0.65 to 1.00;
provided that for fiscal
quarter ended 12/31/03,
such ratio shall not
exceed 0.70:1.00)
--------------------------------------------------------------------
B. Interest Coverage Ratio (Section 7.16)
--------------------------------------------------------------------
1. Consolidated Net Income for past
four fiscal quarters $__________________
--------------------------------------------------------------------
2. Income taxes for past four fiscal quarters
(to the extent subtracted in
calculating B1) $________________
--------------------------------------------------------------------
3. Consolidated Interest Expense for past
four fiscal quarters (to the
extent subtracted in
calculating B1) $___________________
--------------------------------------------------------------------
4. Amortization expense for
intangible assets for past
four fiscal quarters (to
the extent subtracted in
calculating B1) $___________________
--------------------------------------------------------------------
5. Depreciation expense for past
four fiscal quarters (to the extent
subtracted in calculating B1) $____________________
--------------------------------------------------------------------
6. Extraordinary losses incurred in
past four fiscal quarters (to the
extent subtracted in
calculating B1) $__________________
--------------------------------------------------------------------
7. Gains on sales of assets
(excluding sales in the
ordinary course of
business) and other
extraordinary gains for
past four fiscal quarters
(to the extent added in
calculating B1) $_______________________
--------------------------------------------------------------------
8. Consolidated EBITDA (sum of
Lines B1, B2, B3, B4, B5 and B6
less Line B7) $_____________________
--------------------------------------------------------------------
9. All interest charges
(including capitalized
interest, imputed interest
charges with respect to
Capitalized Lease
Obligations and all
amortization of debt
discount and expense and
other deferred financing
charges) of Nicor
and its Subsidiaries on a
consolidated basis for
such period determined in
accordance with GAAP $______________________
--------------------------------------------------------------------
10. All commitment or other fees
payable in respect of the issuance of
standby letters of credit or other
credit facilities for the account
of Nicor or its Subsidiaries $_________________
--------------------------------------------------------------------
11. Net costs/expenses incurred by
Nicor and its Subsidiaries
under Derivative Arrangements $______________________
--------------------------------------------------------------------
12. Consolidated Interest Expense
(Sum of Lines B9, B10 and B11) $_______________________
--------------------------------------------------------------------
13. Interest Coverage Ratio
(ratio of Lines B8 to (ii)
Line B12) __:1.00 (ratio must not
be less than 3.00
to 1.00)
--------------------------------------------------------------------
EXHIBIT C
ASSIGNMENT AND ASSUMPTION
This Assignment and Assumption (the "Assignment and Assumption") is dated
as of the Effective Date set forth below and is entered into by and between
[Insert name of Assignor] (the "Assignor") and [Insert name of Assignee] (the
"Assignee"). Capitalized terms used but not defined herein shall have the
meanings given to them in the Credit Agreement identified below (as amended, the
"Credit Agreement"), receipt of a copy of which is hereby acknowledged by the
Assignee. Annex 1 attached hereto is hereby agreed to and incorporated herein by
reference and made a part of this Assignment and Assumption as if set forth
herein in full.
For an agreed consideration, the Assignor hereby irrevocably sells and
assigns to the Assignee, and the Assignee hereby irrevocably purchases and
assumes from the Assignor, subject to and in accordance with the Assignment and
Assumption and the Credit Agreement, as of the Effective Date inserted by the
Administrative Agent as contemplated below (i) all of the Assignor's rights and
obligations in its capacity as a Lender under the Credit Agreement and any other
documents or instruments delivered pursuant thereto to the extent related to the
amount and percentage interest identified below of all of such outstanding
rights and obligations of the Assignor under the respective facilities
identified below (including without limitation any letters of credit,
guarantees, and swingline loans included in such facilities) and (ii) to the
extent permitted to be assigned under applicable law, all claims, suits, causes
of action and any other right of the Assignor (in its capacity as a Lender)
against any Person, whether known or unknown, arising under or in connection
with the Credit Agreement, any other documents or instruments delivered pursuant
thereto or the loan transactions governed thereby or in any way based on or
related to any of the foregoing, including, but not limited to, contract claims,
tort claims, malpractice claims, statutory claims and all other claims at law or
in equity related to the rights and obligations sold and assigned pursuant to
clause (i) above (the rights and obligations sold and assigned pursuant to
clauses (i) and (ii) above being referred to herein collectively as, the
"Assigned Interest"). Such sale and assignment is without recourse to the
Assignor and, except as expressly provided in this Assignment and Assumption,
without representation or warranty by the Assignor.
1. Assignor: ______________________________
2. Assignee: ______________________________ [and is an
Affiliate/Approved Fund of [identify
Lender]1]
3. Borrowers: Nicor Inc. and Northern Illinois Gas Company
4. Administrative Agent: ABN AMRO Bank N.V., as the administrative agent
under the Credit Agreement
5. Credit Agreement: The Credit Agreement dated as of September 9, 2003 among
Nicor Inc., Northern Illinois Gas Company, the Lenders parties thereto,
and ABN AMRO Bank N.V., as Administrative Agent.
------------------------
1 Select as applicable.
6. Assigned Interest:
----------------------------------------------------------------------
Amount of Amount of Amount of Amount of Amount of
Commitment/ Commitment/ Commitment/ Commitment/ Commitment/
Loans Loans Loans Loans Loans
of Assignor of Assignee Assigned of Assignor of Assignee
prior to prior to after after
[Effective] [Effective] [Effective] [Effective]
[Trade] Date [Trade] Date [Trade] Date [Trade] Date
----------------------------------------------------------------------
$ $ $ $ $
----------------------------------------------------------------------
[7. Trade Date: ______________]2
Effective Date: _____________ ___, 20___ [TO BE INSERTED BY
ADMINISTRATIVE AGENT AND WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF
TRANSFER IN THE REGISTER THEREFOR.]
The terms set forth in this Assignment and Assumption are hereby agreed to:
ASSIGNOR
--------
[NAME OF ASSIGNOR]
By: _____________________________
Title:
ASSIGNEE
--------
[NAME OF ASSIGNEE]
By: _____________________________
Title:
[Consented to and]3 Accepted:
ABN AMRO BANK N.V., as
Administrative Agent
By: _________________________________________
Title:
____________________________________
2 To be completed if the Assignor and the Assignee intend that the minimum
assignment amount is to be determined as of the Trade Date.
3 To be added only if the consent of the Administrative Agent
is required by the terms of the Credit Agreement.
[Consented to:]4
NICOR INC.
By: __________________________________________
Title:
NORTHERN ILLINOIS GAS COMPANY
By: __________________________________________
Title:
_______________________________________
4 To be added only if the consent of the Borrower is required
by the terms of the Credit Agreement.
ANNEX 1 to Assignment and Assumption
STANDARD TERMS AND CONDITIONS FOR
ASSIGNMENT AND ASSUMPTION
1. Representations and Warranties.
1.1 Assignor. The Assignor (a) represents and warrants that (i) it is the
legal and beneficial owner of the Assigned Interest, (ii) the Assigned Interest
is free and clear of any lien, encumbrance or other adverse claim and (iii) it
has full power and authority, and has taken all action necessary, to execute and
deliver this Assignment and Assumption and to consummate the transactions
contemplated hereby; and (b) assumes no responsibility with respect to (i) any
statements, warranties or representations made in or in connection with the
Credit Agreement or any other Credit Document, (ii) the execution, legality,
validity, enforceability, genuineness, sufficiency or value of the Credit
Documents or any collateral thereunder, (iii) the financial condition of the
Borrower, any of its Subsidiaries or Affiliates or any other Person obligated in
respect of any Credit Document or (iv) the performance or observance by the
Borrower, any of its Subsidiaries or Affiliates or any other Person of any of
their respective obligations under any Credit Document.
1.2 Assignee. The Assignee (a) represents and warrants that (i) it has
full power and authority, and has taken all action necessary, to execute and
deliver this Assignment and Assumption and to consummate the transactions
contemplated hereby and to become a Lender under the Credit Agreement, (ii) it
meets all requirements of an Eligible Assignee under the Credit Agreement
(subject to receipt of such consents as may be required under the Credit
Agreement), (iii) from and after the Effective Date, it shall be bound by the
provisions of the Credit Agreement as a Lender thereunder and, to the extent of
the Assigned Interest, shall have the obligations of a Lender thereunder, (iv)
it has received a copy of the Credit Agreement, together with copies of the most
recent financial statements delivered pursuant to Section 7.6 thereof, as
applicable, and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into this
Assignment and Assumption and to purchase the Assigned Interest on the basis of
which it has made such analysis and decision independently and without reliance
on the Administrative Agent or any other Lender, and (v) if it is a Foreign
Lender, attached to the Assignment and Assumption is any documentation required
to be delivered by it pursuant to the terms of the Credit Agreement, duly
completed and executed by the Assignee; and (b) agrees that (i) it will,
independently and without reliance on the Administrative Agent, the Assignor or
any other Lender, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under the Credit Documents, and (ii) it will perform in
accordance with their terms all of the obligations which by the terms of the
Credit Documents are required to be performed by it as a Lender.
2. Payments. From and after the Effective Date, the Administrative Agent
shall make all payments in respect of the Assigned Interest (including payments
of principal, interest, fees and other amounts) to the Assignee whether such
amounts have accrued prior to, on or after the Effective Date. The Assignor and
the Assignee shall make all appropriate adjustments in payments by the
Administrative Agent for periods prior to the Effective Date or with respect to
the making of this assignment directly between themselves.
3. General Provisions. This Assignment and Assumption shall be binding
upon, and inure to the benefit of, the parties hereto and their respective
successors and assigns. This Assignment and Assumption may be executed in any
number of counterparts, which together shall constitute one instrument. Delivery
of an executed counterpart of a signature page of this Assignment and Assumption
by telecopy shall be effective as delivery of a manually executed counterpart of
this Assignment and Assumption. This Assignment and Assumption shall be governed
by, and construed in accordance with, the law of the State of New York.
EXHIBIT D
FORM OF NOTICE OF
BORROWING
ABN AMRO Bank N.V., as Administrative Agent
for the Lenders parties
to the Credit Agreement
referred to below
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000-0000
[Date]
Attention: Agency Services - Xxxxxx Xxxxxxx
Email: xxxxxx.xxxxxxx@xxxxxxx.xxx
phone: 000-000-0000
fax: 000-000-0000
Ladies and Gentlemen:
The undersigned, [Northern Illinois Gas Company or Nicor Inc.], refers to
the 364-Day Credit Agreement, dated as of September 9, 2003 (as amended, amended
and restated, supplemented or otherwise modified from time to time, the "Credit
Agreement", the terms defined therein being used herein as therein defined),
among the Borrowers, the Lenders parties thereto, and ABN AMRO Bank N.V., as
Administrative Agent for said Lenders, and hereby gives you notice, irrevocably,
pursuant to Section 2.4(a) of the Credit Agreement that the undersigned hereby
requests a Borrowing under the Credit Agreement, and in that connection sets
forth below the information relating to such Borrowing (the "Proposed
Borrowing") as required by Section 2.4(a) of the Credit Agreement:
(i) The Borrower requesting the Proposed Borrowing is [Northern
Illinois Gas Company or Nicor Inc.].
(ii) The Business Day of the Proposed Borrowing is _______________,
200_.
(iii)The Proposed Borrowing is [new advance of Loans] [continuation
of existing Loans] [conversion of existing Loans].
(iv) The type of Loan comprising the Proposed Borrowing is [Base Rate
Loans] [Eurodollar Loans].
(v) The aggregate amount of the Proposed Borrowing is
$________________________.
[(vi)The initial Interest Period for each Eurodollar Loans made as
part of the Proposed Borrowing is _____ month[s].]
The undersigned hereby certifies that the conditions precedent to such
Proposed Borrowing contained in Section 6 have been satisfied.
Very truly yours,
[NORTHERN ILLINOIS GAS COMPANY OR
NICOR INC.]
By
----------------------------
Title:
SCHEDULE 1
PRICING GRID
----------------------------------------------------
If the Level The The The Base
Status Is Facility Eurodollar Rate Margin
Fee Rate Margin is: is:
is:
----------------------------------------------------
----------------------------------------------------
Level I 0.080% 0.545% 0.000%
Status
----------------------------------------------------
----------------------------------------------------
Level II 0.100% 0.650% 0.000%
Status
----------------------------------------------------
----------------------------------------------------
Level III 0.125% 0.750% 0.000%
Status
--------------
----------------------------------------------------
Level IV 0.150% 0.850% 0.000%
Status
----------------------------------------------------
----------------------------------------------------
Level V 0.175% 0.950% 0.125%
Status
----------------------------------------------------
----------------------------------------------------
Level VI 0.250% 1.250% 0.500%
Status
----------------------------------------------------
Each change in a rating shall be effective as of the date it is announced
by the applicable rating agency.
In the event that the Xxxxx'x Rating and the S&P Rating fall in
consecutive Levels, the rating falling in the higher Level (with Level I being
the highest Level and Level VI being the lowest Level) shall govern for purposes
of determining the applicable pricing pursuant to the above pricing grid. In the
event that the Xxxxx'x Rating and the S&P Rating fall in non-consecutive Levels,
the Level immediately below the Level in which the higher rating falls shall
govern for purposes of determining the applicable pricing pursuant to the above
pricing grid. If at any time Nicor Gas has no Xxxxx'x Rating or no S&P Rating,
the remaining rating shall apply unless Nicor Gas has neither a Xxxxx'x Rating
nor a S&P Rating, in which case Level VI shall apply.
SCHEDULE 2
INITIAL COMMITMENTS
Lender Initial Commitment
-----------------------------------------------------
-----------------------------------------------------
ABN AMRO Bank N.V. $75,000,000
-----------------------------------------------------
-----------------------------------------------------
Bank One, N.A. $50,000,000
-----------------------------------------------------
-----------------------------------------------------
KeyBank National Association $37,500,000
-----------------------------------------------------
-----------------------------------------------------
Commerzbank AG, New York $25,000,000
and Grand Cayman Branches
-----------------------------------------------------
-----------------------------------------------------
Societe Generale $25,000,000
-----------------------------------------------------
-----------------------------------------------------
Mizuho Corporate Bank, Ltd. $25,000,000
-----------------------------------------------------
-----------------------------------------------------
Wachovia Bank, National $25,000,000
Association
-----------------------------------------------------
-----------------------------------------------------
The Royal Bank Scotland plc $25,000,000
-----------------------------------------------------
-----------------------------------------------------
Landesbank Sachsen Girozentrale $18,750,000
-----------------------------------------------------
-----------------------------------------------------
Bank of New York $18,750,000
-----------------------------------------------------
-----------------------------------------------------
The Northern Trust Company $18,750,000
-----------------------------------------------------
-----------------------------------------------------
Landesbank Baden-Wuerttemberg
New York Branch and/or Cayman $12,500,000
Islands Branch
-----------------------------------------------------
-----------------------------------------------------
UFJ Bank Limited $12,500,000
-----------------------------------------------------
-----------------------------------------------------
Bayerische Hypo und Vereinsbank
AG, $12,500,000
New York Branch
-----------------------------------------------------
-----------------------------------------------------
Allied Irish Banks P.L.C. $12,500,000
-----------------------------------------------------
-----------------------------------------------------
The Bank of Tokyo-Mitsubishi,
Ltd. $12,500,000
Chicago Branch
-----------------------------------------------------
-----------------------------------------------------
Sumitomo Mitsui Banking $12,500,000
Corporation
-----------------------------------------------------
-----------------------------------------------------
KBC Bank, NV $10,000,000
-----------------------------------------------------
-----------------------------------------------------
Banca di Roma - Chicago Branch $8,750,000
-----------------------------------------------------
-----------------------------------------------------
Banco Bilbao Vizcaya $6,500,000
Argentaria, S.A., as a Bank
-----------------------------------------------------
-----------------------------------------------------
Bank Hapoalim B.M. $6,500,000
-----------------------------------------------------
-----------------------------------------------------
Banca Monte dei Paschi di Siena $6,500,000
S.P.A.
-----------------------------------------------------
-----------------------------------------------------
Fifth Third Bank (Chicago), $6,500,000
a Michigan Banking Corporation
-----------------------------------------------------
-----------------------------------------------------
Norddeutsche Landesbank
Girozentrale,
New York and/or Cayman Islands $6,500,000
Branch
-----------------------------------------------------
-----------------------------------------------------
US Bank, National Association $6,500,000
-----------------------------------------------------
-----------------------------------------------------
Xxxxx Fargo Bank, National $6,500,000
Association
-----------------------------------------------------
-----------------------------------------------------
Malayan Banking Berhad $5,000,000
-----------------------------------------------------
-----------------------------------------------------
State Bank of India, New York $5,000,000
-----------------------------------------------------
-----------------------------------------------------
National City Bank of $5,000,000
Michigan/Illinois
-----------------------------------------------------
-----------------------------------------------------
Seaway National Bank $2,000,000
-----------------------------------------------------
SCHEDULE 4
ADMINISTRATIVE AGENT'S NOTICE AND PAYMENT INFORMATION
Part A - Payments
Loan Repayments, Interest, Fees:
ABN AMRO Bank N.V.
New York, NY
ABA # 000000000
F/O ABN AMRO Bank, N.V.
Chicago Branch CPU
Account # 650-001-1789-41
Reference: Agency Services - Nicor Inc.
Part B - Notices
Notices related to commitments, covenants or extensions of expiry/termination
dates:
ABN AMRO Bank N.V.
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000-0000
Attn: Agency Services
E-Mail: xxxxxx.xxxxx@xxxxxxx.xxx
FAX:(000)-000-0000
ABN AMRO Bank N.V.
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000-0000
Attn: Credit Administration
E-Mail: xxxxxxx.xxxx@xxxxxxx.xxx
FAX: 000-000-0000
ABN AMRO Bank N.V.
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxx Xxxxx
E-Mail: xxxx.xxxxx@xxxxxxx.xxx
FAX: 000.000.0000
Notices related to Loans, Interest, Letters of Credit, Fees and
Financial Information:
ABN AMRO Bank N.V.
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000-0000
Attn: Agency Services
E-Mail: xxxxxx.xxxxx@xxxxxxx.xxx
FAX: 000-000-0000
Address for all Required Executed Documentation:
ABN AMRO Bank N.V.
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000-0000
Attn: Credit Administration
E-Mail: xxxxxxx.xxxx@xxxxxxx.xxx
FAX: 000-000-0000
SCHEDULE 5.2
MATERIAL SUBSIDIARIES
Description of
Subsidiary's
Authorized
Capital Stock,
Subsidiary Name State of Origin Ownership if not wholly owned
-------------------- --------------- --------- -------------------
Northern Illinois Gas Wholly
Company d/b/a Nicor owned by
Gas Company Illinois Nicor Inc.
Wholly
owned by
Xxxxxxxx Inc. Florida Nicor Inc.
SCHEDULE 7.13
PERMITTED INVESTMENTS
Set forth below is a description of the Nicor Inc./Nicor Gas Cash
Management Policy
Nicor Gas
EFFECTIVE: June 1, 2003 POLICY ORDER A-18
SUPERSEDES: August 1, 1999 SUBJECT: Management of
Company Cash
Resources
REFERENCE:
------------------------------------------------------------------------
I. Responsibilities
The Assistant Treasurer of the Company is responsible for the overall day-to-day
management and control of the Company's and its subsidiaries' cash resources.
The Assistant Treasurer is the principal company contact with the related
parties in the financial community such as commercial banks, investment banks
and money management firms as such contact relates to short-term cash management
issues. The Assistant Treasurer shall be responsible for maintaining current
standard practices regarding cash management and a cash management procedures
manual.
II. Temporary Cash Investments
The Assistant Treasurer is responsible for recommending the Company's temporary
cash investment policy, as approved by the Financial Policy Committee (FPC). The
policy should emphasize safety (i.e., preservation of capital), liquidity and
yield of an investment. The current policy is:
A. Diversification
1. No more than $50 million of investments may be held at any
time in a single bank's Certificates of Deposit (CDs)
or issuer's commercial paper, except that this limit
can be raised on a case-by-case basis to $75 million
with the written approval of the Vice President
Administration and Treasurer. The $50 million limit
will apply to the combined holdings of a bank's CDs and
its parent's commercial paper.
2. No more than $50 million of securities may be held under repurchase
agreements with a single dealer or bank, except that this limit may
be raised to $75 million on a case-by-case basis with the written
approval of the Vice President Administration and Treasurer.
3. No more than $50 million of investments may be held at any time in a
single issuer's money market fund, except that this limit can be
raised on a case-by-case basis to $75 million with the written
approval of the Vice President Administration and Treasurer.
B. Credit Standing
1. Investments will be made only in commercial paper rated at least A-1
and P-1. Bank CDs will be subject to the same limitations, except
that an F-1 rating may be used in place of A-1 or P-1 and a minimum
long-term debt rating of double-A or equivalent will suffice where
CDs are not publicly rated.
2. Nicor Gas will deal only with reputable dealers, which are defined as
those banks and dealers on the New York Federal Reserve's primary
government securities dealer list rated at least A-1 and P-1 or their
affiliates (see attached list).
3. Money market fund investments will only be made with fund managers
complying with Securities and Exchange Commission rules and
regulations established under the Investment Company Act of 1940-Rule
2(a)-7. Funds or fund managers must be rated at least double-A or
A-1/P-1 by Standard & Poor's and Xxxxx'x Investors Service.
C. Collateral
1. In the event there is no Hold in Custody Account (safekeeping
arrangement), Nicor Gas will take delivery of securities through the
Depository Trust Company (DTC) at its custodial bank.
2. Collateral received must have a current market value plus accrued
interest equal to or greater than the dollar amount invested.
D. Illinois Commerce Commission
Nicor Gas' investment policies and practices will be in compliance
with applicable Illinois Commerce Commission Orders.
E. Repurchase Agreement Contracts
The Company will enter into formal master repurchase agreement
contracts with the dealers it uses for investment transactions.
III. Short-Term Borrowings
The Assistant Treasurer has responsibility for securing bank lines of credit to
be used for borrowing or backing up commercial paper sold by Nicor Gas. The sale
of Nicor Gas commercial paper shall be done on a competitive basis.
IV. Wire and ACH Transfers
The Assistant Treasurer shall verify that all wire and automated clearinghouse
(ACH) transfers are properly authorized in accordance with Policy Order A-12.
Two authorized Company personnel shall initiate and release all wire and ACH
transfers before they are processed by a financial institution.
V. Security for Computerized Record Keeping
The Company will include adequate security measures such that personnel outside
the Company cannot gain access to computerized cash management files.
VI. Reviewing Performance
It is the responsibility of the FPC to review performance on an as needed basis
related to the management of Company cash resources. The Assistant Treasurer
shall prepare reports and analyses for such review.
/s/ Xxxxxx X. Xxxxxxx
-------------------------------
Xxxxxx X. Xxxxxxx
Vice President Administration and Treasurer
SCHEDULE 7.17
RESTRICTIONS ON DISTRIBUTIONS AND EXISTING NEGATIVE PLEDGES
Refer to Nicor Gas Indenture as defined in Section 1.
