EXECUTION COPY
CREDIT AGREEMENT
Dated as of
August 20, 2004
By and Among
NUI UTILITIES, INC.,
as the Borrower,
THE FINANCIAL INSTITUTIONS PARTY HERETO,
as the Lenders hereunder,
and
CREDIT SUISSE FIRST BOSTON,
as sole Administrative Agent, Collateral Agent, Lead Arranger and Bookrunner
TABLE OF CONTENTS
ARTICLE 1. DEFINITIONS........................................................1
1.1 Defined Terms...........................................................1
1.2 GAAP Definitions.......................................................15
1.3 Other Definitional Conventions and Rules of Construction...............15
ARTICLE II. THE LOANS........................................................15
2.1 Commitments............................................................15
2.1a Loans..................................................................15
2.1b Obligations of Each Lender.............................................16
2.1c Evidence of Debt; Repayment of Loans...................................16
2.1d Loan Request...........................................................16
2.1e Making Loans...........................................................17
2.2 Interest Rates, Interest Payment and Certain Provisions
Relating to Interest and Fees..........................................17
2.2a Payments of Interest...................................................17
2.2b Interest Rate Options..................................................17
2.2c Interest Periods; Limitations on Elections.............................18
2.2d Election, Conversion or Renewal of Interest Rate Options...............18
2.2e Notification of Election of an Interest Rate Option....................19
2.2f Default Interest.......................................................19
2.3 Yield-Protection, Capital Adequacy and Miscellaneous
Provisions Relating to Euro-Rate.......................................20
2.3a Yield Protection.......................................................20
2.3c Euro-Rate Unascertainable..............................................21
2.3c Illegality.............................................................21
2.3e Change of Lending Office...............................................22
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2.4 Fees...................................................................22
2.5 Calculation of interest................................................22
2.6 Substitution or Replacement of a Lender................................22
2.7 Loan Repayment.........................................................23
2.8 Additional Payments by the Borrower....................................23
2.9 Time, Place and Manner of Payments.....................................24
2.10 Mandatory Prepayments..................................................24
ARTICLE III. REPRESENTATIONS AND WARRANTIES..................................25
3.1 Corporate Existence....................................................25
3.2 Corporate Authority....................................................25
3.3 Enforceability.........................................................25
3.4 No Restrictions, No Default............................................25
3.5 Financial Statements...................................................26
3.6 Absence of Litigation..................................................26
3.7 Tax Returns and Payments...............................................26
3.8 Pension Plans..........................................................27
3.9 Compliance with Applicable Laws........................................27
3.10 Environmental Matters..................................................27
3.11 Governmental Approval..................................................28
3.12 Regulations T, U and X.................................................28
3.13 Investment Company Act.................................................28
3.14 Public Utility Holding Company Act.....................................28
3.15 Disclosure.............................................................28
3.16 No Subsidiaries........................................................29
3.17 Insurance..............................................................29
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3.18 Labor Matters..........................................................29
ARTICLE IV. AFFIRMATIVE COVENANTS............................................29
4.1 Use of Proceeds........................................................29
4.2 Furnishing Information.................................................29
4.3 Visitation.............................................................32
4.4 Preservation of Existence; Qualification...............................32
4.5 Compliance with Governmental Rules.....................................32
4.6 Payment of Taxes.......................................................32
4.7 Insurance..............................................................33
4.8 Maintenance of Properties and Assets...................................33
4.9 Plans and Benefit Arrangement..........................................33
4.10 Collateral.............................................................33
4.11 Ownership..............................................................33
ARTICLE V. NEGATIVE COVENANTS................................................33
5.1 Dividends, Etc.........................................................34
5.2 Encumbrances...........................................................34
5.3a Leverage Ratio.........................................................34
5.3b Interest Coverage Ratio................................................34
5.4 Acquisitions...........................................................34
5.5 Sales of Assets........................................................35
5.6 Merger, Dissolution and Liquidation....................................35
5.7 Regulation T, U and X Compliance.......................................35
5.8 ERISA..................................................................35
5.9 Restrictive Agreements.................................................35
5.10 Business of the Borrower...............................................36
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5.11 Subsidiaries...........................................................36
5.12 Limitation on Capital Expenditures.....................................36
5.13 Limitation on Indebtedness.............................................36
5.14 Limitation on Contingent Obligations...................................37
5.15 Limitation on Investments, Loans and Advances..........................37
5.16 Limitation on Optional Payments and Modifications of Debt
Instruments............................................................37
5.17 Transactions with Affiliates...........................................37
5.18 Sale and Leaseback.....................................................38
ARTICLE VI. CONDITIONS PRECEDENT TO EXTENSIONS OF CREDIT.....................38
6.1 Conditions Precedent to the Effectiveness of this Agreement............38
6.2 Conditions Precedent to the Extensions of Credit.......................39
6.3 Escrow Arrangement.....................................................41
ARTICLE VII. DEFAULTS........................................................42
7.1 Payment Default........................................................42
7.2 Nonpayment of Other Indebtedness.......................................42
7.3 Insolvency.............................................................43
7.3a Involuntary Proceedings................................................43
7.3b Voluntary Proceedings..................................................43
7.4 Security Failure.......................................................43
7.5 Failure to Comply with Covenants.......................................43
7.5a Failure to Comply with Certain Article IV Covenants and
Article V Covenants....................................................43
7.5b Failure to Comply with Other Covenants.................................43
7.6 Misrepresentation......................................................44
7.7 Adverse Judgments, Etc.................................................44
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7.8 Invalidity or Unenforceability.........................................44
7.9 ERISA..................................................................44
7.10 Change of Control; Change of Beneficial Ownership or Board.............45
7.11 Regulatory Decisions...................................................45
7.12 Consequences of an Event of Default....................................45
7.13 Remedies Upon Default..................................................45
ARTICLE VIII. AGREEMENT AMONG LENDERS........................................46
8.1 Appointment and Grant of Authority.....................................46
8.2 Delegation of Duties...................................................46
8.3 Reliance by Administrative Agent on Lenders for Funding................46
8.4 Non-Reliance on Agents.................................................47
8.5 Responsibility of Agents and Other Matters.............................47
8.5a Ministerial Nature of Duties...........................................47
8.5b Limitation of Liability................................................47
8.5c Reliance...............................................................48
8.6 Actions in Discretion of Agents; Instructions from the Lenders.........48
8.7 Indemnification........................................................48
8.8 Administrative Agent's Rights as a Lender..............................49
8.9 Payment to Lenders.....................................................49
8.10 Pro Rata Sharing.......................................................49
8.11 Successor Agent........................................................49
8.11a Resignation of Agents..................................................49
8.11b Rights of the Former Agents............................................49
8.12 Notice of Default......................................................50
8.13 Notices................................................................50
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8.14 Holders of Loans.......................................................50
8.15 Calculations...........................................................50
8.16 Beneficiaries..........................................................50
ARTICLE IX. GENERAL PROVISIONS...............................................50
9.1 Amendments and Waivers.................................................50
9.2 Expenses...............................................................51
9.3 Notices................................................................52
9.4 Tax Withholding........................................................53
9.5 Successors and Assigns.................................................55
9.6 Assignments and Participations.........................................56
9.6a Assignments............................................................56
9.6b Assignment Register....................................................57
9.6c Participations.........................................................57
9.7 Severability...........................................................57
9.8 Survival...............................................................57
9.9 Governing Law..........................................................57
9.10 Non-Business Days......................................................57
9.11 Integration............................................................58
9.12 Headings...............................................................58
9.13 Set-Off................................................................58
9.14 Consent to Forum.......................................................58
9.15 Waiver of Jury Trial...................................................58
9.16 Indemnity..............................................................59
9.17 Counterparts...........................................................59
9.18 Confidentiality........................................................59
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TABLE OF EXHIBITS
Name of Exhibit
Exhibit A Form of Compliance Certificate
Exhibit B Form of Assignment and Assumption Agreement
Exhibit C Form of Solvency Certificate
Exhibit D Form of Section 9.4(e)(ii) Certificate
Schedules
2.1 Commitments of Lenders
5.2 Existing Encumbrances Securing Indebtedness
5.13 Indebtedness
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CREDIT AGREEMENT
THIS CREDIT AGREEMENT, dated as of August 20, 2004, by and among NUI
UTILITIES, INC., a New Jersey corporation (as further defined below, the
"Borrower"), the financial institutions listed on the signature pages hereto,
and each other financial institution which, from time to time, becomes a party
hereto in accordance with Subsection 9.6a (individually, a "Lender" and
collectively, the "Lenders"), and CREDIT SUISSE FIRST BOSTON, acting through its
Cayman Islands Branch, as Administrative Agent (in such capacity, the
"Administrative Agent"), as Collateral Agent (in such capacity, the "Collateral
Agent"), as Lead Arranger (in such capacity, the "Lead Arranger") and as
Bookrunner.
RECITALS:
WHEREAS, the Borrower desires to obtain extensions of credit from each of
the Lenders in the form of a Loan (as defined below) made to the Borrower; and
WHEREAS, the Lenders are willing, on the terms and subject to the
conditions hereinafter set forth, to make such extensions of credit to the
Borrower.
NOW THEREFORE, the parties hereto, intending to be legally bound, and in
consideration of the foregoing and the mutual covenants contained herein, hereby
agree as follows:
ARTICLE 1. DEFINITIONS.
1.1 Defined Terms. As used herein the following terms shall have the
meaning specified unless the context otherwise requires:
"Acquisition" means the acquisition of substantially all of the assets or
all of the capital stock of NUI Corporation by AGL, Cougar Corporation or any
other Affiliate of AGL.
"Acquisition Agreement" means the agreement and plan of merger, dated as of
July 14, 2004 by and among AGL, Cougar Corporation and NUI Corporation.
"Additional Extension Fee" means "Additional Extension Fee" as defined in
the Existing Credit Agreement.
"Additional Term Loan" means "Additional Term Loan" as defined in the NUI
Corporation Credit Agreement.
"Adjusted Base Rate" means the interest rate relating to the Base Rate
Option as described in item (i) of subsection 2.2b.
"Adjusted Euro-Rate" means the interest rate relating to the Euro-Rate
Option as described in item (ii) of subsection 2.2b.
"Administrative Agent" has the meaning set forth in the preamble to this
Agreement.
"Affiliate" means as to any Person, any other Person (other than a
Subsidiary) which, directly or indirectly, is in control of, is controlled by,
or is under common control with, such Person. For purposes of this definition,
"control" of a Person means the power, directly or indirectly, either to vote
10% or more of the securities having ordinary voting power for the election of
directors of such Person or (b) direct use or cause the direction of the
management and the policies of such Person, whether by contract or otherwise.
"Agents" has the meaning given it in Section 8.1.
"AGL" means AGL Resources Inc., a Georgia corporation.
"Administrative Agent's Account" means the account of the Administrative
Agent maintained by the Administrative Agent at The Bank of New York, ABA No.
000000000, Account No. 8900492627, Attn: CSFB Agency Cayman Account, Reference:
NUI Utilities, Inc. or such other account as the Administrative Agent may
designate from time to time by notice to the Borrower and the Lenders.
"Agreement" means this Credit Agreement, together with the exhibits and
schedules hereto and all extensions, renewals, amendments, modifications,
substitutions and replacements hereto and hereof, as amended, supplemented or
modified from time to time.
"Amendment No. 3 to the Existing Credit Agreement" means Agreement and
Amendment No. 3 to the Existing Credit Agreement, dated as of August 20, 2004
between the Borrower and the agent thereunder on behalf of the required lenders
thereunder.
"Amendment No. 3 to the NUI Corporation Agreement" means Agreement and
Amendment No. 3 to the NUI Corporation Credit Agreement, dated as of August 20,
2004 among NUI Corporation, the agent thereunder on behalf of the required
lenders thereunder, the guarantors party thereto and the lenders listed on
Schedule 2.1A thereto.
"Assignment and Assumption Agreement" means an Assignment and Assumption
Agreement in the form of Exhibit B hereto (or such other form as may be
acceptable to the Administrative Agent).
"Authorized Officer" means the President, any Vice President, the Chief
Financial Officer, the Treasurer or the principal accounting officer of the
Borrower. The Administrative Agent, the Collateral Agent and the Lenders shall
be entitled to rely on the incumbency certificate delivered pursuant to Section
6.1(v)(C) for the initial designation of each Authorized Officer. Additions or
deletions to the list of Authorized Officers may be made by the Borrower at any
time by delivering to the Administrative Agent for redelivery to the Collateral
Agent and each Lender a revised incumbency certificate.
"Bank Indebtedness" means the liability of the Borrower to pay the Loans,
Fees, interest on any of the foregoing, and the other amounts, including,
without limitation, expenses and indemnities, due hereunder.
"Base Rate" means, for any day, the highest of (A) the Prime Rate, (B) the
Federal Funds Effective Rate plus fifty (50) basis points (0.50%) and (C) three
percent (3%) per annum.
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"Base Rate Option" means the interest rate option described in item (i) of
Subsection 2.2b.
"Base Rate Portion" means a Loan or a portion thereof which bears, or is to
bear, interest at the Adjusted Base Rate.
"Borrower" means NUI Utilities, Inc., a New Jersey corporation and its
successors and permitted assigns.
"Borrowing Date" means the date on which extensions of credit (including by
funding the proceeds thereof into the Escrow Account in accordance with Section
6.3) are to be made hereunder; provided that, unless the Lenders agree
otherwise, such date shall not be later than September 30, 2004.
"Business Day" means, any day other than a Saturday or Sunday or a legal
holiday on which commercial banks are authorized or required to be closed for
business in New York, New York and, if the applicable Business Day relates to
any extension of credit to which the Euro-Rate Option applies, such day must
also be a day on which dealings are carried on in the London interbank market.
"Closing" means the execution and delivery of this Agreement which
execution and delivery shall occur at the offices of Xxxxx Xxxxxxxxxx LLP in New
York, New York on August 20, 2004, or such other location and date as is
mutually agreeable to the parties hereto.
"Closing Date" means the day on which the Closing occurs.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time, or any successor legislation thereto.
"Collateral" means "Collateral" as defined in the Security Agreement.
"Collateral Agent" has the meaning set forth in the preamble to this
Agreement.
"Collateral Documents" shall mean, collectively, the Security Agreement and
any other documents executed and delivered in connection with the attachment and
perfection of the Collateral Agent's security interest and liens arising
thereunder, including, without limitation, UCC financing statements filed in
connection therewith.
"Commitment Letter" means that certain letter agreement, dated as of July
14, 2004, among the Borrower, NUI Corporation and CSFB.
"Compliance Certificate" means a Compliance Certificate substantially in
the form of Exhibit A.
"Confidential Information Memorandum" means that certain Confidential
Information Memorandum dated November 2003 and made available to the Lenders
under the Existing Credit Agreement prior to the date thereof.
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"Consolidated" means, as to any two or more Persons, the consolidation of
the accounts of such Persons in accordance with GAAP.
"Consolidated EBITDA" for any period means, with respect to the Borrower
Consolidated Net Income before interest and taxes, plus (to the extent deducted
in determining such Consolidated Net Income) (i) depreciation, amortization and
other similar non-cash expenses (excluding any such non-cash expense to the
extent that it represents an accrual of or reserve for cash expenses in any
future period or amortization of a prepaid cash expense that was paid in a prior
period), (ii) extraordinary losses, losses in connection with asset sales (other
than ordinary course sales including sales of inventory) or restructuring
charges, (iii) non-recurring items of loss and expense relating to the credit
facilities provided under the Existing Credit Agreement to the extent not
otherwise reflected in Consolidated Net Income, (iv) all fees, expenses and
settlement costs (including the NJBPU Settlement Amount) related to the Focused
Audit and Florida Settlement, (v) all severance and retention expenses in the
aggregate amount of up to $5,000,000 for all periods, (vi) expenses in
connection with explosions and fires related to gas accidents that have occurred
prior to July 14, 2004 in the aggregate amount of up to $4,000,000 for all
periods, (vii) all commissions and impairment charges related to the sub-leasing
of excess office space, (viii) all fees, expenses and prepayment premiums in
connection with any prepayment of the Medium Term Notes, (ix) fees and expenses
related to amendments to the Standby Bond Purchase Agreement, and (x) all fees
and expenses related to the credit facilities provided hereby, Amendment No. 3
to the Existing Credit Agreement, and all prior amendments to, and waivers
under, the Existing Credit Agreement, the Extension Fee and the Additional
Extension Fee; minus (to the extent included in determining such Consolidated
Net Income) extraordinary gains or gains in connection with asset sales (other
than ordinary course sales including sales of inventory).
"Consolidated Interest Expense" means for any period the amount of interest
expense, both expensed and capitalized, of the Borrower, net of cash interest
income of the Borrower determined on a Consolidated basis in accordance with
GAAP, for such period on the aggregate principal amount of its Indebtedness,
determined on a consolidated basis in accordance with GAAP (excluding, in any
event (to the extent otherwise included), one-time financing fees relating to
the credit facilities provided hereby, by any agreement to refinance or
otherwise extend the maturity of the Medium Term Notes as permitted hereunder,
by the NUI Corporation Credit Agreement or by the Existing Credit Agreement,
interest payments with respect to the credit facilities provided hereby and
interest payments that will accrue to the maturity of the Medium Term Notes (to
the extent that the Delayed Draw Term Loans are drawn)).
"Consolidated Lease Expense" means for any period, the aggregate amount of
fixed and contingent rentals payable by the Borrower, determined on a
Consolidated basis in accordance with GAAP, for such period with respect to
leases of real and personal property.
"Consolidated Net Income" means for any period, net income (or loss) of the
Borrower, determined on a Consolidated basis in accordance with GAAP (plus, in
any event (to the extent otherwise deducted therefrom), one-time financing fees
relating to the credit facilities provided hereby or any agreement to refinance
or otherwise extend the maturity of the Medium Term Notes as permitted
hereunder, by the Existing Credit Agreement or by the NUI Corporation Credit
Agreement), without giving effect to any non-cash gain, any non-cash loss or any
4
reversals or adjustments to, or failure to recognize, revenue due to changes in
applicable U.S. accounting rules and regulations, in each case to the extent
reasonably acceptable to the Administrative Agent, including without limitation
due to the implementation, effective as of October 25, 2002, of EITF 02-03
("Issues Involved in Accounting for Derivative Contracts Held for Trading
Purposes and Contracts Involved in Energy Trading and Risk Management
Activities"), the effects of which EITF implementation are hereby deemed
acceptable to the Administrative Agent.
"Consolidated Shareholders' Equity" means the total of those items
enumerated under the heading "Common Shareholders' Equity" in the Borrower's
relevant balance sheets determined on a Consolidated basis in accordance with
GAAP, consistently applied, plus (to the extent deducted in determining such
total and on an after-tax basis) (i) all fees, expenses and settlement costs
(including the NJBPU Settlement Amount) related to the Focused Audit and Florida
Settlement, (ii) all severance and retention expenses in the aggregate amount of
up to $5,000,000, (iii) expenses in connection with explosions and fires related
to gas accidents that have occurred prior to July 14, 2004 in the aggregate
amount of up to $4,000,000, (iv) all commissions and impairment charges related
to the sub-leasing of excess office space, (v) all fees, expenses and prepayment
premiums in connection with any prepayment of the Medium Term Notes, (vi) fees
and expenses related to amendments to the Standby Bond Purchase Agreement, and
(vii) all fees and expenses related to the credit facilities provided hereby,
Amendment No. 3 to the Existing Credit Agreement, and all prior amendments to,
and waivers under, the Existing Credit Agreement, the Extension Fee and the
Additional Extension Fee.
"Consolidated Total Capitalization" means, as of any date of determination,
the sum of (i) Consolidated Total Indebtedness plus (ii) Consolidated
Shareholders' Equity.
"Consolidated Total Indebtedness" means all Indebtedness of the Borrower,
determined on a Consolidated basis in accordance with GAAP, consistently
applied. Solely for purposes of this definition, (A) the term "Indebtedness"
shall not include (i) letter of credit reimbursement obligations except with
respect to drawings actually made under letters of credit which then remain
unreimbursed, (ii) Hedging Obligations, and (iii) the outstanding principal
amount of the credit facilities provided hereby and (B) if any portion of the
Medium Term Notes and the Delayed Draw Term Loans are outstanding at such time,
the term "Indebtedness" shall not include the principal amount of the Medium
Term Notes to the extent that the proceeds of the Delayed Draw Term Loans are
held by and under the control of an agent or trustee on behalf of holders of
Medium Term Notes in a securities or deposit account or as otherwise provided in
Section 4.1 of the Existing Credit Agreement.
"Cougar Corporation" means Cougar Corporation, a New Jersey corporation and
a wholly-owned subsidiary of AGL.
"CSFB" means Credit Suisse First Boston.
"Delayed Draw Term Loan" means "Delayed Draw Term Loan" as defined in the
Existing Credit Agreement.
"Dollars" or "$" means the legal tender of the United States of America.
5
"Encumbrance" means any encumbrance, mortgage, lien, charge, pledge,
security interest, priority payment, conditional sales agreement right, or other
title retention agreement right (including any right under a lease which, in
accordance with GAAP, would be treated as a capitalized item) in, upon or
against any asset of any Person.
"Environmental Law(s)" means any and all statutes, laws, regulations,
ordinances, rules, judgments, orders, decrees, permits, concessions, grants,
franchises, licenses, agreements or other governmental restrictions of any
Federal, state or local governmental authority relating to the environment or
the release of any materials into the environment.
"Equity Interests" means any and all shares, interests, participations or
other equivalents (however designated) of capital stock, partnership interests,
member interests and any and all equivalent ownership interests in a Person, and
any and all warrants, rights or options to purchase any of the foregoing, other
than equity interests or warrants, rights or options issued in connection with
exercise by a present or former employee, officer or director under a stock
incentive plan, stock option plan or other equity-based compensation plan or
arrangement.
"ERISA" means the Employee Retirement Income Security Act of 1974, together
with the regulations thereunder, as now in effect and as hereafter from time to
time amended or any successor statute.
"ERISA Affiliate" means, as of any date, any member of a controlled group
of corporations of which the Borrower is a member, which, in any event together
with the Borrower are treated as of such date as a single employer under Section
414(b) or (c) of the Code or, solely for purposes of Section 302 of ERISA and
Section 412 of the Code, are treated as of such date as a single employer under
Section 414(b), (c), (m) or (o) of the Code.
"Escrow Account" has the meaning given it in Section 6.3.
"Euro Base Rate" means the higher of (i) the rate per annum determined by
the Administrative Agent at approximately 11:00 a.m. (London time) on the date
which is two Business Days prior to the beginning of such Interest Period by
reference to the British Bankers' Association Interest Settlement Rates for
deposits in Dollars (as set forth by any service selected by the Administrative
Agent which has been nominated by the British Bankers' Association as an
authorized information vendor for the purpose of displaying such rates) for a
period equal to such Interest Period; provided that, to the extent that an
interest rate is not ascertainable pursuant to the foregoing provisions of this
definition the "Euro Base Rate" shall be the interest rate per annum determined
by the Administrative Agent to be the average of the rates per annum at which
deposits in Dollars are offered for such Interest Period to major banks in the
London interbank market in London, England by the Administrative Agent at
approximately 11:00 a.m. (London time) on the date which is two Business Days
prior to the beginning of such Interest Period, and (ii) 2% per annum.
"Euro-Rate" means, with respect to each day during each Interest Period
pertaining to a Loan to which the Euro-Rate Option applies, a rate per annum
determined for such day in accordance with the following formula:
Euro-Rate = Euro Base Rate divided by (1.00 minus the Euro-Rate Reserve
Percentage).
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"Euro-Rate Option" means the interest rate option described in item (ii) of
Subsection 2.2b.
"Euro-Rate Portion" means a Loan, or portion thereof, which bears, or is to
bear, interest at the Adjusted Euro-Rate.
"Euro-Rate Reserve Percentage" means the maximum aggregate reserve
requirement (including basic supplemental, marginal and other reserves) which is
imposed on member banks of the Federal Reserve System against Euro currency
Liabilities as defined in Regulation D.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Excluded Taxes" means, with respect to the Administrative Agent, the
Collateral Agent, any Lender or any other recipient of any payment to be made by
or on account of any obligation of the Borrower hereunder, (a) income or
franchise taxes imposed on (or measured by) its net income by the United States
of America, or by the jurisdiction under the laws of which such recipient is
organized or in which its principal office is located or, in the case of any
Lender, in which its applicable lending office is located, (b) any branch
profits taxes imposed by the United States of America or any similar tax imposed
by any other jurisdiction in which the Borrower is located and (c) in the case
of a Foreign Lender (other than an assignee pursuant to a request by the
Borrower under Section 2.7), any withholding tax that (I) is imposed on amounts
payable to such Foreign Lender at the time such Foreign Lender becomes a party
to this Agreement (or designates a new lending office) or (II) is attributable
to such Foreign Lender's failure to comply with Section 9.4(e), except in the
case of clause (c)(I) above to the extent that such Foreign Lender (or its
assignor, if any) was entitled, at the time of designation of a new lending
office (or assignment), to receive additional amounts from the Borrower with
respect to such withholding tax pursuant to Section 9.4(a).
"Existing Credit Agreement" means the Credit Agreement, dated as of
November 24, 2003, among the Borrower, each of the lenders specified therein,
and CSFB, as the agent.
"Extension Fee" means "Extension Fee" as defined in the Existing Credit
Agreement.
"Event of Default" has the meaning given it in Article VII.
"Federal Funds Effective Rate" means, for any day, the rate per annum
(based on a year of 360 days and the actual days elapsed and rounded upward to
the nearest 1/100th of 1%) announced by the Federal Reserve Bank of New York (or
any successor) on such day as being the weighted average of the rates on
overnight federal funds transactions arranged by federal funds brokers on the
previous trading day, as computed and announced by the Federal Reserve Bank of
New York (or any successor) in substantially the same manner as such Federal
Reserve Bank of New York computes and announces the weighted average it refers
to as the "Federal Funds Effective Rate" as of the date of this Agreement;
provided, if such Federal Reserve Bank of New York (or its successor) does not
announce such rate on any day, the "Federal Funds Effective Rate" for such day
shall be the Federal Funds Effective Rate for the last day for which such rate
was announced.
"Fee Letter" has the meaning set forth in Section 2.4.
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"Fees" means collectively the fees referenced in Section 2.4.
"FERC" means the Federal Energy Regulatory Commission of the United States
or any successor or predecessor agency thereto.
"Fiscal Quarter" means the three-month fiscal period of the Borrower
beginning on each October 1, January 1, April 1 and July 1 and ending on the
succeeding December 31, March 31, June 30 and September 30.
"Fiscal Year" means each fiscal period of the Borrower beginning October 1
and ending on the succeeding September 30.
"Florida Settlement" means the anticipated settlement agreement between the
Borrower and the Florida Public Service Commission, for which the Borrower has
established a pre-tax reserve of approximately $2,600,000, any fines
contemplated thereby, and all actions and negotiations in respect thereof.
"Focused Audit" has the meaning given it in Section 3.6.
"Foreign Lender" means any Lender that is organized under the laws of a
jurisdiction other than the United States of America, any State thereof or the
District of Columbia.
"FPSC" means the Florida Public Service Commission.
"FPSC Approval" has the meaning given it in Section 3.11.
"GAAP" means United States generally accepted accounting principles applied
on a consistent basis.
"Gas Revenue Bonds" means the $39,000,000 variable rate revenue bonds of
the Borrower due June 1, 2026, issued pursuant to that certain Indenture dated
as of June 1, 1996, between the New Jersey Economic Development Authority and
the trustee thereunder, and the related Loan Agreement, dated as of June 1,
1996, between the Borrower and the New Jersey Economic Development Authority.
"Governmental Authority" means any federal, state, local or foreign court
or governmental (or quasi-governmental) agency, authority, instrumentality or
regulatory body.
"Governmental Rule" means any law, statute, rule, regulation, ordinance,
order, judgment, guideline or decision of any Governmental Authority.
"Guaranty" or "Guarantee" means any obligation, direct or indirect, by
which a Person undertakes to guaranty, assume or remain liable for the payment
or performance of another Person's obligations, including but not limited to (i)
endorsements of negotiable instruments other than endorsements of instruments
for deposit or collection in the ordinary course of business, (ii) discounts
with recourse, (iii) agreements to pay or perform upon a second Person's failure
to pay or perform, (iv) remaining liable on obligations assumed by a second
Person, (v) agreements to maintain the capital, working capital solvency or
general financial condition of a
8
second Person and (vi) agreements for the purchase or other acquisition of
products, materials, supplies or services, if in any case payment therefor is to
be made regardless of the non-delivery of such products, materials or supplies
or the non-furnishing of such services.
"Hedging Obligations" means, with respect to any Person, all liabilities of
such Person under interest rate swap agreements, interest rate cap agreements
and interest rate collar agreements, and all other agreements or arrangements
designed to protect such Person against fluctuations in interest rates, currency
exchange rates or gas prices.
"Indebtedness" as applied to any Person means, without duplication, all
liabilities of such Person for borrowed money (other than trade accounts payable
arising in the ordinary course of business consistent with past practices),
direct or contingent, whether evidenced by a bond, note, debenture or otherwise,
all preferred equity interests issued by such Person and which by the terms
thereof could be (at the request of the holders thereof or otherwise) subject to
mandatory sinking fund payments, redemption or other acceleration at any time
during the period ending one year after the term of this Agreement, and all
obligations and liabilities in the nature of a capitalized lease obligation,
deferred purchase price arrangement (other than trade accounts payable in the
ordinary course of business consistent with past practices), title retention
device, letter of credit obligation (whether or not the letter of credit has
been drawn), letter of credit reimbursement obligation (whether or not the
letter of credit has been drawn), Hedging Obligation, reimbursement agreement,
Guaranty, obligations relating to securitization transactions, synthetic lease
transactions and sale-leaseback transactions.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
"Interest Period" means, subject to the provisions of Subsection 2.2c, as
to any Loans bearing interest at the Euro-Rate Option, any individual period of
one, two, three or six months selected by the Borrower commencing on the
Borrowing Date, conversion date or renewal date of a Euro-Rate Portion to which
such period shall apply.
"Lead Arranger" has the meaning given in the preamble to this Agreement.
"Lender" has the meaning given in the preamble to this Agreement.
"Lender Presentation" means that certain Lender Presentation dated July
2004 and made available to the Lenders prior to the date hereof.
"Loans" means term loans made by the Lenders to the Borrower pursuant to
Section 2.1a.
"Loan Documents" means collectively this Agreement, each promissory note
held by a Lender pursuant to Subsection 2.1c. and the Collateral Documents.
"Loan Request" has the meaning given it in Section 2.1d.
"Margin Stock" is defined herein as defined in Regulation U.
"Material Adverse Effect" means, with respect to and as a result of the
existence or occurrence of any circumstance or event, (a) any material adverse
effect upon the validity or
9
enforceability of this Agreement or any of the other Loan Documents has occurred
or could reasonably be expect to occur, (b) any material and adverse effect to
the business, assets, results of operations, condition (financial or otherwise),
or prospects of the Borrower has occurred or could reasonably be expect to
occur, or (c) any material impairment of the ability of the Administrative
Agent, the Collateral Agent or any of the Lenders to enforce their legal
remedies pursuant to this Agreement, the Security Agreement or any other Loan
Document has occurred or could reasonably be expected to occur.
"Medium Term Notes" means the $50,000,000 8.35% Medium Term Notes of the
Borrower due February 1, 2005 issued pursuant that certain Indenture, dated as
of February 1, 1995, between the Borrower and the trustee thereunder.
"Moody's" means Xxxxx'x Investors Service, Inc. and its successors.
"Multiemployer Plan" means a multiemployer Plan within the meaning of
Section 3(37) of ERISA which is contributed to by the Borrower or any ERISA
affiliate or with respect to which such entities have an obligation to make
contributions.
"Net Asset Sale Proceeds" means (i) the aggregate cash consideration
received by the Borrower in connection with any Recovery Event less (ii) the
reasonable out-of-pocket expenses incurred by the Borrower or such Subsidiary in
connection with such transaction and the amount of any federal and state taxes
incurred in connection with such transaction, in each case as certified by an
Authorized Officer to the Administrative Agent at the time of such transaction,
and less (iii) the amount thereof applied to the repayment of Indebtedness
secured by an Encumbrance expressly permitted hereunder on any asset that is the
subject of such Recovery Event.
"Net Proceeds" means (a) in connection with any Recovery Event, Net Asset
Sale Proceeds therefrom and (b) in connection with any issuance or sale of
equity securities or debt securities or instruments or the incurrence of loans,
the cash proceeds received from such issuance or incurrence, net of reasonable
attorney's fees, investment banking fees, accountant's fees, underwriting
discounts and commissions and other customary fees and expenses actually
incurred in connection therewith.
"NJBPU" has the meaning given it in Section 3.6.
"NJBPU Approval" has the meaning given it in Section 3.11.
"NJBPU Settlement Amount" means an amount equal to $33,000,000 relating to
the settlement of the Focused Audit and other restructuring costs and expenses.
"NUI Corporation" means NUI Corporation, a New Jersey corporation.
"NUI Corporation Credit Agreement" means the Credit Agreement, dated as of
November 24, 2003, among NUI Corporation, each of the lenders specified therein,
and CSFB, as the agent.
"NUI Energy Brokers" means NUI Energy Brokers, Inc., a Delaware
corporation.
10
"Option" means any one or both of the Base Rate Option or the Euro-Rate
Option.
"Other Taxes" means any and all present or future stamp or documentary
taxes or any other excise or property taxes, charges or similar levies arising
from any payment made hereunder or from the execution, delivery or enforcement
of, or performance of this Agreement.
"Participant" means any financial institution or other Person to which a
Lender sells a Participation in its Loan.
"Participation" means the sale by a Lender to any Participant of an
undivided interest in all or any part of such Lender's Loans.
"Patriot Act" means the USA Patriot Act, Title III of Pub. L. 107-56
(signed into law October 26, 2001).
"Penn Acquisition" means the Borrower's purchase from Penn-Jersey Pipeline
Co. of approximately (i) 21,600 feet of eight-inch pipeline for the transport of
natural gas from Forks Township, Pennsylvania to Lopatcong, New Jersey and (ii)
related equipment and facilities for an aggregate purchase price (including
assumption of liabilities or liens) not to exceed $350,000.
"PBGC" means the Pension Benefit Guaranty Corporation or any successor
Person.
"Permitted Encumbrance" means, as to any Person, any of the following:
(i) security interests created by the Collateral Documents in favor of
the Collateral Agent;
(ii) Encumbrances for taxes, assessments, governmental charges or
levies on any of such Person's properties, which taxes, assessments,
governmental charges or levies are at the time not due and payable or if
they can thereafter be paid without penalty or are being contested in good
faith by appropriate proceedings diligently conducted and with respect to
which adequate reserves are maintained on the books of such Person in
conformity with GAAP;
(iii) pledges or deposits (other than Encumbrances imposed by ERISA)
incurred or made in the ordinary course of business, to secure payment of
workers' compensation obligations, unemployment insurance, deposits or
indemnities to secure public or statutory obligations or for similar
purposes;
(iv) Encumbrances arising out of judgments or awards against such
Person but only to the extent that such judgment or award does not
constitute an Event of Default under Section 7.7 or Potential Default under
Section 7.7;
(v) mechanics', carriers', workers', repairmen's and other similar
statutory Encumbrances incurred in the ordinary course of such Person's
business, so long as the obligation secured is not overdue or, if overdue,
is being contested in good faith by appropriate actions or proceedings
diligently conducted and as to which reserves or other appropriate
provision, if any, satisfying the requirements of GAAP have been made;
11
(vi) security interests in favor of lessors of personal property,
which property is the subject of a true lease between such lessor and such
Person;
(vii) Encumbrances listed on Schedule 5.2, securing Indebtedness
permitted by Section 5.13(c)); provided that no such Encumbrance is amended
after the date of this Agreement to cover any additional property or to
secure additional Indebtedness;
(viii) easements, rights-of-way, restrictions, leases or subleases to
others or other similar Encumbrances created in the ordinary course of
business which Encumbrances do not interfere in any material respect with
the ordinary conduct of the business of the Borrower;
(ix) Encumbrances securing (a) the non-delinquent performance of bids,
trade contracts (other than for borrowed money), leases or statutory
obligations, (b) contingent obligations on surety and appeal bonds, and (c)
other non-delinquent obligations of a like nature; in each case, incurred
in the ordinary course of business, provided all such Encumbrances in the
aggregate would not (even if enforced) cause a Material Adverse Effect;
(x) Encumbrances securing Indebtedness of the Borrower permitted by
Section 5.13(b) incurred to finance the purchase of new fixed or capital
assets (including pursuant to capital leases), provided that (1) such
Encumbrances shall be created substantially simultaneously with the
acquisition of such fixed or capital assets, (2) such Encumbrances do not
at any time encumber any property other than the property financed by such
Indebtedness, and (3) the Encumbrances are not modified to secure other
Indebtedness and the amount of Indebtedness secured thereby is not
increased; and
(xi) Deposits of cash or Permitted Investments (1) securing
reimbursement obligations (and related obligations) with respect to letters
of credit issued in accordance with Section 5.13(e) or (2) as provided in
Section 4.1 of the Existing Credit Agreement.
"Permitted Investments" means
(a) marketable direct obligations issued or unconditionally guaranteed
by the United States of America or issued by any agency thereof and backed
by the full faith and credit of the United States of America;
(b) marketable general obligations issued by any state of the United
States of America or any political subdivision of any such state or any
public instrumentality thereof and, at the time of acquisition, having one
of the two highest ratings generally obtainable from either S&P or Moody's;
(c) commercial paper, at the time of acquisition, having a rating of
A-1 (or the equivalent) or higher from S&P and P-1 (or the equivalent) or
higher from Moody's; or
(d) mutual funds, the assets of which are primarily invested in items
of the kind described in clauses (a), (b) and (c) of this definition;
12
provided in each case, that such obligations are payable in Dollars and such
Permitted Investments by the Borrower are in accordance with Governmental Rules.
"Person" means any individual, partnership, corporation, trust, joint
venture, banking association, unincorporated organization, limited liability
company or any other entity or enterprise or government or department or agency
thereof.
"Plan" means an employee pension benefit plan (other than a Multiemployer
Plan) which is maintained by the Borrower or any ERISA Affiliate for employees
of the Borrower or any ERISA Affiliate and which is covered by Title IV of ERISA
or subject to the minimum funding standards under Section 302 of ERISA and
Section 412 of the Code.
"Portion" means, with respect to any outstanding Loans, either the Base
Rate Portion thereof, the Euro-Rate Portion thereof, or both, as the case may
be.
"Potential Default" means an event which, with the passage of time or the
giving of notice or both, shall be an Event of Default.
"Prime Rate" means the interest rate per annum announced from time to time
by CSFB as its prime rate in effect at its principal office in New York City;
each change in the Prime Rate shall be effective from and including the date
such change is announced as being effective.
"PUHCA" has the meaning given it in Section 3.14.
"Purchasing Lender" has the meaning given it in Subsection 9.6a.
"Recovery Event" means any settlement of or payment in respect of any
property or casualty insurance claim or any condemnation proceeding relating to
any asset of the Borrower in excess of $500,000.
"Register" has the meaning given it in Subsection 9.6b.
"Regulation D" means Regulation D promulgated by the Board of Governors of
the Federal Reserve System (12 C.F.R. Part 204 et seq.) as such regulation is
now in effect and as may hereafter be amended.
"Regulation T" means Regulation T promulgated by the Board of Governors of
the Federal Reserve System (12 C.F.R. Part 220 et seq.) as such regulation is
now in effect and as may hereafter be amended.
"Regulation U" means Regulation U promulgated by the Board of Governors of
the Federal Reserve System (12 C.F.R. Part 221 et seq.) as such regulation is
now in effect and as may hereafter be amended.
"Regulation X" means Regulation X promulgated by the Board of Governors of
the Federal Reserve System (12 C.F.R. Part 224 et seq.) as such regulation is
now in effect and as may hereafter be amended.
13
"Release Fee" has the meaning given it in Section 6.3(b).
"Reportable Event" means any one or more events, defined in Section 4043(c)
of ERISA, other than an event for which the requirement for the 30 day notice to
the PBGC is waived.
"Required Lenders" means as of a particular date Lenders having outstanding
Loans representing more than fifty percent (50%) of the aggregate principal
amount of outstanding Loans of all Lenders.
"Restricted Payments" has the meaning given to it in Section 5.1.
"S&P" means Standard & Poor's Rating Group, a division of XxXxxx-Xxxx, Inc.
and its successors.
"Secured Parties" means "Secured Parties" as defined in the Security
Agreement.
"Security Agreement" means a security agreement, dated as of the date
hereof between the Borrower and the Collateral Agent for the benefit of the
Secured Parties in form and substance reasonably satisfactory to the Lenders and
the Collateral Agent.
"Senior Ratings" means, with respect to any Person, the long term senior
unsecured public debt ratings in effect from time to time as assigned by Moody's
and S&P, as the case may be.
"Standby Bond Purchase Agreement" means the amended and restated standby
bond purchase agreement, dated as of June 12, 2001 among the Borrower, the
Participating Banks referred to therein and The Bank of New York, as purchasing
bank.
"Subsidiary" means, as to any Person, any corporation, partnership, limited
liability company or other entity of which at least a majority of the
outstanding stock or other applicable ownership interest having by the terms
thereof ordinary voting power to elect a majority of the Board of Directors or
other managers of such corporation, partnership, limited liability company, or
other entity is at the time directly or indirectly owned or controlled by such
Person and/or by one or more Subsidiaries of such Person.
"Taxes" means any and all present or future taxes, levies, imposts, duties,
deductions, charges or withholdings imposed by any Governmental Authority,
including interest, penalties and other additions thereto.
"Termination Date" means May 15, 2005, unless earlier terminated in
accordance with the terms hereof.
"Termination Proceedings" means any action taken by the PBGC under ERISA to
terminate any Plan or to have a trustee appointed to administer any Plan.
"Transfer Effective Date" has the meaning given it in each respective
Assignment and Assumption Agreement.
14
"Transferor Lender" has the meaning given it in Subsection 9.6a.
1.2 GAAP Definitions. Accounting terms used herein but not defined herein
shall have the meanings ascribed to them under GAAP as in effect from time to
time; provided, however, that, if the Borrower notifies the Administrative Agent
that the Borrower requests an amendment to any provision hereof to eliminate the
effect of any change occurring after the date hereof in GAAP or in the
application thereof on the operation of such provision (or if the Administrative
Agent notifies the Borrower that the Required Lenders request an amendment to
any provision hereof for such purpose), regardless of whether any such notice is
given before or after such change in GAAP or in the application thereof, then
such provision shall be interpreted on the basis of GAAP as in effect and
applied immediately before such change shall have become effective until such
notice shall have been withdrawn or such provision amended in accordance
herewith.
1.3 Other Definitional Conventions and Rules of Construction. The
definitions of terms herein shall apply equally to the singular and plural forms
of the terms defined. Whenever the context may require, any pronoun shall
include the corresponding masculine, feminine and neuter forms. The words
"include", "includes" and "including" shall be deemed to be followed by the
phrase "without limitation". In this Agreement in the computation of periods of
time from a specified date to a later specified date, the word "from" means
"from and including" and the words "to" and "until" each means "to but
excluding". The word "will" shall be construed to have the same meaning and
effect as the word "shall". The word "or" as used herein shall mean and connote
nonexclusive alternatives, unless expressly stated or the context clearly
requires otherwise. Unless the context requires otherwise (a) any definition of
or reference to any agreement, instrument or other document herein shall be
construed as referring to such agreement, instrument or other document as from
time to time amended, supplemented or otherwise modified (subject to any
restrictions on such amendments, supplements or modifications set forth herein),
(b) any reference herein to any Person shall be construed to include such
Person's successors and assigns, (c) the words "herein", "hereof" and
"hereunder", and words of similar import, shall be construed to refer to this
Agreement in its entirety and not to any particular provision hereof, (d) all
references herein to Articles, Sections, Exhibits and Schedules shall be
construed to refer to Articles and Sections of, and Exhibits and Schedules to,
this Agreement, (e) any reference to a law, code or statute shall be construed
to include all laws, codes or statutes varying, consolidating or replacing the
same and all regulations, rulings, policies or ordinances issued or otherwise
applicable thereunder and (f) the words "asset" and "property" shall be
construed to have the same meaning and effect and to refer to any and all
tangible and intangible assets and properties, including cash, securities,
accounts and contract rights.
ARTICLE II. THE LOANS
2.1 Commitments
2.1a Loans. Subject to the terms and conditions hereof and relying upon the
representations and warranties herein set forth, each Lender severally agrees to
make a term loan to the Borrower on the Borrowing Date specified in the Loan
Request in a principal amount
15
equal to the amount set forth on Schedule 2.1 opposite its name. Amounts paid or
prepaid in respect of Loans may not be reborrowed.
2.1b Obligations of Each Lender. The obligations of each Lender hereunder
are several. The failure of any Lender to perform its obligations hereunder
shall not affect the obligations of the Borrower, or any other Lender, to any
other party nor shall the Borrower, or any other Lender, be liable for the
failure of such Lender to perform its obligations hereunder. The Lenders shall
have no obligation to make Loans hereunder after the Borrowing Date.
2.1c Evidence of Debt; Repayment of Loans. (a) The Borrower hereby
unconditionally promises to pay to the Administrative Agent for the account of
each Lender the then unpaid principal amount of each Loan on the Termination
Date.
(b) Each Lender shall maintain in accordance with its usual practice an
account or accounts evidencing the indebtedness of the Borrower to such Lender
resulting from each Loan made by such Lender from time to time, including the
amounts of principal and interest payable and paid such Lender from time to time
under this Agreement.
(c) The Administrative Agent shall maintain accounts in which it will
record (i) the amount of each Loan made hereunder, the type thereof and the
Interest Period applicable thereto, (ii) the amount of any principal or interest
due and payable or to become due and payable from the Borrower to each Lender
hereunder and (iii) the amount of any sum received by the Administrative Agent
hereunder from the Borrower and each Lender's share thereof.
(d) The entries made in the accounts maintained pursuant to paragraphs (b)
and (c) above shall be prima facie evidence of the existence and amounts of the
obligations therein recorded; provided, however, that the failure of any Lender
or the Administrative Agent to maintain such accounts or any error therein shall
not in any manner affect the obligation of the Borrower to repay the Loans in
accordance with their terms.
(e) Notwithstanding any other provision of this Agreement, in the event any
Lender shall request and receive a promissory note (or promissory notes) in a
form reasonably acceptable to the Administrative Agent, payable to such Lender
and its registered assigns, the interests represented by such promissory note
shall at all times (including after any assignment of all or part of such
interests pursuant to Section 9.6) be represented by one or more promissory
notes payable to the payee named therein or its registered assigns.
2.1d Loan Request. Except as otherwise provided herein, the Borrower may
request the Lenders to make the Loans to the Borrower by the delivery to the
Administrative Agent, not later than 12:00 Noon (Eastern time) (x) three
Business Days prior to the proposed Borrowing Date with respect to the making of
Loans to which the Euro-Rate Option applies and (y) one Business Day prior to
the proposed Borrowing Date with respect to the making of Loans to which the
Base Rate Option applies, of a duly completed request therefor or a request by
telephone immediately confirmed in writing by letter or facsimile transmission
in such form (the "Loan Request"), it being understood that the Administrative
Agent may rely on the authority of any person making such a telephonic request
without the necessity of receipt of such written confirmation. The Loan Request
shall be irrevocable and shall specify (i) the proposed
16
Borrowing Date; (ii) the aggregate amount of the Loans to be made on such
Borrowing Date, which amount, as to Base Rate Portions, shall be in integral
multiples of $100,000 and not less than $500,000 and, as to Euro-Rate Portions,
shall be in integral multiples of $100,000 and not less than $1,000,000; (iii)
whether the Euro-Rate Option or the Base Rate Option shall apply to the Loans to
be made on such Borrowing Date; (iv) in the case of the Loans to which the
Euro-Rate Option applies, an appropriate Interest Period for each Euro-Rate
Portion of the Loans to be made on such Borrowing Date; and (v) the remittance
instructions.
2.1e Making Loans. Each Lender shall remit the principal amount of Loans to
the Administrative Agent such that the Administrative Agent is able to, and the
Administrative Agent shall, to the extent the Lenders have made funds available
to it for such purpose, fund such Loans to the Borrower in Dollars and
immediately available funds in an account specified by the Borrower to the
Administrative Agent in the Loan Request, prior to 2:00 P.M. (Eastern time) on
the Borrowing Date set forth in the Loan Request, provided that if any Lender
fails to remit such funds to the Administrative Agent in a timely manner, or any
Lender fails to advise the Administrative Agent of its intention not to fund,
then the Administrative Agent may elect in its sole discretion to fund with its
own funds the Loans of such Lender on the Borrowing Date, subject to the
provisions of Section 8.3 below.
2.2 Interest Rates, Interest Payment and Certain Provisions Relating to
Interest and Fees.
2.2a Payments of Interest. The Borrower shall pay interest on the principal
amount of the Loans from time to time outstanding hereunder, from the date of
incurrence thereof until payment in full, at the rates of interest determined
pursuant to this Section 2.2 (including Section 2.2f). The Borrower shall pay
accrued interest on the unpaid principal balance of the Loans in arrears: (i)
with respect to each Base Rate Portion, at the Adjusted Base Rate on the last
Business Day of each Fiscal Quarter during the term hereof, (ii) with respect to
each Euro-Rate Portion, at the Adjusted Euro-Rate on the last day of each
Interest Period as provided for in Subsection 2.2(b)(ii) (provided, however, if
the Interest Period chosen for a Euro-Rate Portion exceeds three months,
interest on that Euro-Rate Portion shall be due and payable on the day which is
(A) three months after the first day of such Interest Period and (B) the last
day of such Interest Period), and (iii) with respect to all such Portions, at
the applicable interest rate (A) when due, at maturity, whether by acceleration
or otherwise, and (B) after maturity, on demand until paid in full.
2.2b Interest Rate Options. The unpaid principal amount of the Loans shall
bear interest, for each day until due, at one or more rates of interest selected
by the Borrower from among the Options set forth below; it being understood
that, subject to the provisions of this Agreement, the Borrower may select
different Options to apply simultaneously to different Portions of the Loans and
may select different Interest Periods to apply simultaneously to different
Portions of the Euro-Rate Portions of the Loans.
(i) Base Rate Option: A rate of interest per annum equal to the
Base Rate plus 3.75% (the "Adjusted Base Rate"). The rate of interest
per annum under the Base Rate Option shall be adjusted automatically,
from time to time, upon each change in the Adjusted Base Rate.
17
(ii) Euro-Rate Option: A rate of interest per annum equal to the
Euro-Rate plus 4.75% (the "Adjusted Euro-Rate").
2.2c Interest Periods; Limitations on Elections. At any time when the
Borrower shall select, convert to or renew at the Euro-Rate Option with respect
to all or any Portion of the outstanding Loans, it shall fix one or more
Interest Periods during which such Option(s) shall apply. All of the foregoing,
however, is subject to the following:
(i) any Interest Period which would otherwise end on a day which
is not a Business Day shall be extended to the next Business Day
unless such Business Day falls in the succeeding calendar month in
which case such Interest Period shall end on the next preceding
Business Day; and
(ii) any Interest Period which begins on the last day of a
calendar month or on a day for which there is no numerically
corresponding day in the subsequent calendar month during which such
Interest Period is to end shall end on the last Business Day of such
subsequent month.
In addition, elections by the Borrower of the Euro-Rate Option shall be
subject to the following further limitations:
(iii) If an Interest Period is elected and such Interest Period
would end after the Termination Date, such Interest Period shall end
on the Termination Date;
(iv) At no time may there be more than ten Interest Periods in
effect relating to Loans; and
(v) the Borrower may not exercise the Euro-Rate Option (and no
Loan shall be selected, converted into or renewed as an Euro-Rate
Portion) when any Event of Default has occurred and is then
continuing.
2.2d Election, Conversion or Renewal of Interest Rate Options. Elections of
or conversions to the Base Rate Option shall continue in effect until converted
to the Euro-Rate Option as hereinafter provided. Elections of, conversions to or
renewals of the Euro-Rate Option shall expire as to each Euro-Rate Portion at
the expiration of the applicable Interest Period.
At any time, with respect to any Base Rate Portion, or at the expiration of
the applicable Interest Period, with respect to any Euro-Rate Portion, the
Borrower (subject to Subsection 2.2c) may cause all or any part of the principal
amount of such Portion to be converted to and/or (in the case of a Euro-Rate
Portion) to be renewed under the Euro-Rate Option by notice to the
Administrative Agent for notice to each of the Lenders as hereinafter provided.
Such notice (i) shall be irrevocable; (ii) shall be given not later than 12:00
noon (eastern time) in the case of a conversion to or renewal of, either in
whole or in part, the Euro-Rate Option on the third Business Day prior to the
proposed effective date for the conversion or renewal and (iii) shall set forth:
(A) the effective date of such conversion or renewal, which shall be a
Business Day;
18
(B) the new Interest Period(s) selected; and
(C) with respect to each such Interest Period, the aggregate principal
amount of the corresponding Euro-Rate Portion.
At the expiration of each Interest Period, any part (including the whole)
of the principal amount of the corresponding Euro-Rate Portion as to which no
notice of conversion or renewal has been received as provided above, shall
automatically be converted to the Base Rate Option, or if no Interest Period
shall be specified in such notice, such Interest Period shall be one month.
2.2e Notification of Election of an Interest Rate Option. The Borrower, by
an Authorized Officer, shall notify the Administrative Agent of (i) each
election or renewal of an Option and each conversion from one Option to another,
(ii) the Portion of the Loans then outstanding to be allocated to each Option
and (iii) where relevant, the Interest Periods applicable to each Option, by
communication as provided for in this Agreement. Any such communication may be
oral or written and if oral, it should be followed immediately by written
confirmation of such Option election executed by an Authorized Officer.
2.2f Default Interest. After the principal amount of all or any part of the
Base Rate Portions of the Loans shall have become due and payable, whether by
acceleration or otherwise and whether or not judgment has been entered against
the Borrower thereon, all Base Rate Portions shall bear interest at a rate per
annum which shall be two hundred (200) basis points (2%) per annum above the
rate otherwise in effect under the Base Rate Option, such interest rate to
change automatically from time to time, effective as of the effective date of
each change in the Base Rate. After the principal amount of all or any part of
the Euro-Rate Portions of the Loans shall have become due and payable, whether
by acceleration or otherwise and whether or not judgment has been entered
against the Borrower thereon, all such Euro-Rate Portions shall bear interest
(i) until the end of the then current Interest Period, at a rate per annum which
shall be two hundred (200) basis points (2%) per annum above the rate otherwise
in effect under the Euro-Rate Option, and (ii) at the end of the then current
Interest Period and thereafter, at a rate per annum which shall be two hundred
(200) basis points (2%) per annum above the rate otherwise in effect under the
Base Rate Option, such interest rate to change automatically from time to time,
effective as of the effective date of each change in the Base Rate. After any
other amount shall have become due and payable, whether or not judgment has been
entered against the Borrower thereon, such amount shall bear interest at a rate
per annum which shall be two hundred (200) basis points (2%) per annum above the
rate otherwise in effect under the Base Rate Option, such interest rate to
change automatically from time to time, effective as of the effective date of
each change in the Base Rate.
2.3 Yield-Protection and Miscellaneous Provisions Relating to Euro-Rate.
2.3a Yield Protection. Notwithstanding other provisions of this Section
2.3:
(i) If, at any time after the date hereof, the adoption of any
Governmental Rule (including, without limitation, Regulation D), or if
any change therein, or in the interpretation thereof by any
Governmental Authority charged with the administration thereof, shall:
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(A) subject any Lender to any tax, levy, impost, charge,
fee, duty, deduction or withholding of any kind with respect to
payments of principal or interest or other amounts due hereunder
or pursuant to any Loan outstanding (other than any tax imposed
or based upon the net income of a Lender and payable to any
Governmental Authority (i) in the United States of America or any
state thereof or (ii) the jurisdiction under the laws of which
such Lender is organized or in which its principal office or its
applicable lending office is located); or
(B) change the basis of taxation of any Lender with respect
to payments of principal or interest or other amounts due
hereunder or pursuant to any Loan outstanding (other than any
change which affects, and only to the extent that it affects, the
taxation by the United States or any state thereof of the total
net income of such Lender); or
(C) impose, modify or deem applicable any reserve, special
deposit or similar requirements against assets held by any Lender
applicable to its Loans made hereunder (other than such
requirements which are included in the determination of the
applicable rate of interest hereunder); or
(D) impose upon any Lender any other obligation or condition
with respect to this Agreement, and the result of any of the
foregoing is to increase the cost to the affected Lender, reduce
the income receivable by the affected Lender, reduce the rate of
return on the affected Lender's capital, or impose any expenses
upon the affected Lender, all with respect to any of the Loans
(or any portion thereof) by an amount which the affected Lender
reasonably deems material, and if the affected Lender is then
demanding similar compensation for such occurrences from other
borrowers who are similarly situated and who have a similar
relationship with the affected Lender and from which the affected
Lender has the right to demand such compensation, then and in any
such case:
(1) the affected Lender shall promptly notify the
Borrower of the happening of such event;
(2) the Borrower shall pay to the affected Lender,
within 10 days following demand, such amount as will
compensate the affected Lender for such reduction in its
rate of return; and
(3) the Borrower may pay the affected portion of the
affected Lender's Loans in full without the payment of any
additional amount, including prepayment penalties, other
than amounts payable on account of the affected Lender's
out-of-pocket losses (including funding loss, if any, as
provided in Section 2.8) which are not otherwise provided
for in subparagraph (2) immediately above.
(ii) A certificate (in reasonable detail) as to the increased cost or
reduced amount as a result of any event mentioned in this Subsection 2.3a
shall be promptly
20
submitted by the affected Lender to the Borrower in accordance with the
provisions hereof. Such certificate shall be prima facie evidence as to the
amount of such increased cost or reduced amount.
2.3b Euro-Rate Unascertainable. If, on any date on which the Adjusted
Euro-Rate would otherwise be set, the Administrative Agent reasonably shall have
determined (which determination shall be final and conclusive) that by reason of
circumstances affecting the interbank Eurodollar market, adequate and reasonable
means do not exist for ascertaining the Euro-Rate, the Administrative Agent
shall give prompt notice of such determination to the Borrower and the Lenders
and, until the Administrative Agent notifies the Borrower and the Lenders that
the circumstances giving rise to such determination no longer exist, the right
of the Borrower to borrow under, convert to or renew the Euro-Rate Option shall
be suspended. Any notice of borrowing under, conversion to or renewal of the
Euro-Rate Option which was to become effective during the period of such
suspension shall be treated as a request to borrow under, convert to or renew at
the Base Rate Option with respect to the principal amount therein specified.
2.3c Illegality. If a Lender shall determine in good faith (which
determination shall be final and conclusive) that compliance by such Lender with
any applicable law, treaty or other Governmental Rule (whether or not having the
force of law), or the interpretation or application thereof by any Governmental
Authority, has made it unlawful for such Lender to maintain the Loans under the
Euro-Rate Option (including but not limited to acquiring Eurodollar liabilities
to fund such Loans), such Lender shall give notice of such determination to the
Borrower and the other Lenders. Notwithstanding any provision of this Agreement
to the contrary, unless and until the affected Lender shall have given notice to
the Borrower and the other Lenders that the circumstances giving rise to such
determination no longer apply:
(i) with respect to any Interest Periods thereafter commencing,
interest on the Loans bearing interest at the Adjusted Euro-Rate (whichever
one or more have been determined by the affected Lender to be unlawful)
shall, unless the Borrower shall have selected a different Option which is
then available, be computed and payable under the Base Rate Option; and
(ii) on such date, if any, as shall be required by law, any Loans
bearing interest at the Adjusted Euro-Rate then outstanding shall be
automatically converted to the Base Rate Option, and the Borrower shall pay
to the affected Lender the accrued and unpaid interest on such Loans to
(but not including) the date of such conversion at the applicable interest
rate or rates in effect for such Loans prior to such conversion.
2.3e Change of Lending Office. Each Lender agrees that, upon the occurrence
of any event giving rise to the operation of Section 2.3a or 2.3c with respect
to such Lender, it will, if requested by the Borrower, use reasonable efforts
(subject to overall policy considerations of such Lender) to designate another
lending office for any Loans affected by such event with the object of avoiding
the consequences of such event; provided, that such designation is made on terms
that, in the sole judgment of such Lender, cause such Lender and its lending
office(s) to suffer no economic, legal or regulatory disadvantage, and provided,
further, that nothing in this Section shall affect or postpone any of the
obligations of the Borrower or the rights of any
21
Lender pursuant to Section 2.3a, or 2.3c. In determining whether designating
another lending office would cause such Lender or its lending office(s) to
suffer economic disadvantage, such Lender may disregard any economic
disadvantage that the Borrower agrees in form and substance satisfactory to such
Lender to indemnify and hold such Lender harmless therefrom.
2.4 Fees. The Borrower agrees to pay to the Administrative Agent for the
account of the Administrative Agent, the fees required to be paid by it as set
forth in that certain letter agreement among the Borrower, NUI Corporation and
CSFB (the "Fee Letter") dated as of July 14, 2004, as the same may be amended
from time to time by the parties thereto, as and when payment of such fees is
due as set forth therein.
2.5 Calculation of Interest . Interest computed at the Prime Rate (or
clause (C) of the definition of Base Rate) shall be computed upon the basis of a
year of 365 or 366 days, as the case may be. All other interest shall be
computed on the basis of a year of 360 days. In each case, interest shall be
calculated for the actual number of days elapsed (including the first day and
but excluding the last day). The applicable Base Rate and Euro-Rate shall be
determined by the Administrative Agent, and such determination shall be
conclusive absent manifest error.
2.6 Substitution or Replacement of a Lender. The Borrower shall have the
right (provided that at such time, no Event of Default and no Potential Default
has occurred and is continuing), in its sole discretion, to seek a substitute
lending institution or institutions (which may be one or more of the other
Lenders) to assume the Loans and the other obligations of such Lender under this
Agreement, if any of the following conditions occur with respect to such Lender:
(i) such Lender shall have delivered a notice or certificate pursuant
to Section 2.3a;
(ii) the obligation of such Lender to make Loans which bear or are to
bear interest under the Euro-Rate Option has been suspended pursuant to
Subsection 2.3c; or
(iii) such Lender refuses to consent to any amendment, waiver or other
modification of any Loan Document requested by the Borrower that requires
the consent of a greater percentage of the Lenders than the Required
Lenders and such amendment, waiver or other modification is consented to by
the Required Lenders;
and provided, any proposed substitute lending institution, which is not a
Lender prior to the Borrower's selection thereof, must be reasonably acceptable
to the Administrative Agent, whose consent shall not be unreasonably withheld or
delayed, and provided, further that all of the provisions of Section 9.6 (with
respect to any Lender) and Section 8.11 (if the affected Lender is the
Administrative Agent) must be complied with.
2.7 Loan Repayment. Each repayment of the Loans shall be in the minimum
amount of $1,000,000, in the aggregate, or an integral multiple of $100,000
thereof, or such lesser amount as is actually outstanding thereunder. The
Borrower, upon (i) one Business Days' prior oral or written notice to the
Administrative Agent, in the case of Loans bearing interest at the Adjusted Base
Rate or (ii) three Business Days' prior oral or written notice to the
Administrative Agent, in the case of Loans bearing interest at the Adjusted
Euro-Rate, followed immediately thereafter by the Borrower's written
confirmation to the Administrative Agent of any oral notice, may repay the
outstanding amount of the Loans in whole or in part with accrued and unpaid
interest then due and payable (with respect to each Base Rate Portion, in
accordance with Section 2.2a and, with respect to each Euro-Rate Portion, at the
time of such repayment), the amount repaid to the date of such repayment,
without premium or penalty other than, in the case of repayment of Euro-Rate
Loans, the payment of any additional amounts under Section 2.8 below.
All Loans outstanding on the Termination Date shall become due and payable
in full on such date.
2.8 Additional Payments by the Borrower. If (i) the Borrower shall fail to
make any payment due hereunder on the due date thereof, (ii) the Borrower shall
make a payment, prepayment or conversion of any Euro-Rate Portion of the Loans
on a day other than the last day of the applicable Interest Period, (iii) the
Borrower shall convert any Portion to the Base Rate Option from another Option
pursuant to Subsection 2.2d on a day other than the last day of the relevant
Interest Period, or (iv) the Borrower shall fail on the date specified therefor
to consummate any borrowing, conversion or renewal after giving a request for an
extension of credit or notice of conversion or renewal, and, as a result of any
such action or inaction, a Lender reasonably incurs any losses and expenses
which it would not have incurred but for such action or inaction, the Borrower
shall pay such additional amounts as will compensate the affected Lender for
such losses and expenses, including the cost of reemployment of any funds
prepaid at rates lower than the cost to the affected Lender of such funds. Such
losses and expenses, which the affected Lender shall exercise reasonable efforts
to minimize, shall be specified in writing (setting forth, in reasonable detail,
the basis of calculation) to the Borrower by the affected Lender, which writing
shall be prima facie evidence of the amounts set forth therein, and such amounts
shall be payable within 30 days of demand therefor.
2.9 Time, Place and Manner of Payments. Except to the extent otherwise
provided herein, (a) Loans to be made on any day shall be made by the Lenders
pro rata and, (b) Loans of the Lenders shall be converted and continued pro rata
in accordance with their respective amounts of Loans of the type and, in the
case of Euro-Rate Portions, having the Interest Period being so converted or
continued. All payments to be made by the Borrower of principal and interest on
the Loans (other than those provided for in Sections 2.3 and 2.8 hereof) shall
be made to the Administrative Agent (at the Administrative Agent's Account) for
the ratable account of the Lenders holding Loans. All other payments to be made
by the Borrower hereunder shall be made to the Administrative Agent (at the
Administrative Agent's Account) for the ratable account of the applicable
Lenders (or, in the case of Fees and other amounts owing to the Administrative
Agent, for its sole account). The Administrative Agent will promptly pay each
such payment received to each applicable Lender or its order in accordance with
Section 8.9 hereof. All payments due a Lender by reason of Sections 2.3 or 2.8
hereof shall be paid at the principal office of the Lender which invoices the
Borrower for such payment. All payments to be made by the Borrower under this
Agreement shall be paid in Dollars and in immediately available funds no later
than 2:00 P.M. (eastern time) on the date such payment is due, without
presentment, demand, protest or notice of any kind, all of which are hereby
expressly waived by the Borrower, and without setoff, counterclaim or other
deduction of any nature. Any payment received after such time on any date may,
in the discretion of the Administrative Agent, be
23
deemed to have been received on the next succeeding Business Day for purposes of
calculating interest thereon.
2.10 Mandatory Prepayments. (a) Unless the Required Lenders otherwise
agree, if (i) any Equity Interests of the Borrower shall be issued to a Person
other than NUI Corporation, (ii) any Recovery Event shall have occurred (and Net
Asset Sale Proceeds thereof have not been reinvested in the same or similar
property or assets within 364 days of such Recovery Event (with such
reinvestment not to exceed $20,000,000 in the aggregate)), or (iii) any
Indebtedness of the Borrower is incurred (excluding any Indebtedness incurred in
accordance with Section 5.13), the Borrower shall prepay the Loans pro rata with
prepayments of the loans then outstanding under the Existing Credit Agreement in
an amount equal to 100% of the Net Proceeds therefrom no later than the second
Business Day following receipt by the Borrower of such Net Proceeds.
(b) Amounts to be applied in connection with prepayments made pursuant to
this Section 2.10 shall be applied to the prepayments of the Loans pro rata. The
application of any prepayment pursuant to this Section 2.10 shall be made,
first, to Base Rate Loans and, second, to Euro-Rate Loans. Each prepayment of
the Loans under this Section 2.10 that are Base Rate Loans shall be accompanied
by accrued interest to the date of such prepayment on the amount prepaid.
(c) Upon (i) the occurrence of any event described in Section 7.10 hereof
with respect to the Borrower or NUI Corporation (including, without limitation,
the consummation of the Acquisition) or (ii) the Borrower shall default in the
observance or performance of any covenant set forth in Section 4.11, then the
Loans then outstanding (together with accrued interest thereon) and all other
amounts owing under this Agreement shall become immediately due and payable.
(d) Nothing in this Section 2.10 shall be construed to derogate any
restriction or limitation contained in any Loan Document imposed on any
transaction of the type described in this Section 2.10, including, without
limitation, Sections 5.5, 5.6 and 5.13 hereof.
ARTICLE III. REPRESENTATIONS AND WARRANTIES.
To induce the Lenders to enter into this Agreement and to make the Loans
herein provided for, the Borrower represents and warrants to the Lenders, the
Administrative Agent and the Collateral Agent that as of the Borrowing Date:
3.1 Corporate Existence. The Borrower is a corporation, duly organized,
validly existing and in good standing under the laws of its state of
incorporation and it is duly qualified and in good standing as a foreign
corporation authorized to do business in each jurisdiction where, because of the
nature of its properties or businesses, such qualification is required or, if
not so qualified or in good standing in any state, the lack of such
qualification or good standing will not have a Material Adverse Effect.
3.2 Corporate Authority. The Borrower is duly authorized to execute and
deliver this Agreement and the other Loan Documents to which it is or will
become a party; all
24
necessary corporate action to authorize the execution and delivery of this
Agreement and the other Loan Documents to which it is a party has been properly
taken; and it is duly authorized to borrow hereunder and to perform all of the
other terms and provisions of this Agreement and the other Loan Documents to
which it is or will become a party.
3.3 Enforceability. Each Loan Document to which the Borrower is a party has
been duly and validly executed and delivered by the Borrower and each
constitutes a legal, valid and binding agreement of the Borrower enforceable in
accordance with its terms except to the extent that the enforceability thereof
may be limited by applicable bankruptcy, insolvency, reorganization, moratorium
or other similar laws generally affecting creditors' rights and by equitable
principles (regardless of whether enforcement is sought at equity or at law).
3.4 No Restrictions, No Default. Neither the execution and delivery of this
Agreement and the other Loan Documents to which it is or will become a party,
nor the consummation of the transactions herein contemplated nor compliance with
the terms and provisions hereof or of any other Loan Document, (i) will conflict
with or result in a breach of any of the terms, conditions or provisions of the
certificate of incorporation or the by-laws of the Borrower, (ii) conflict with
or result in a breach of any law, statute, rule or regulation or any, order,
writ, injunction or decree of any Governmental Agency (including FERC and other
applicable Federal and state energy laws and regulations), or (iii) conflict
with, result in a breach or constitute (alone or with notice or lapse of time or
both) a default under, or give rise to any right to accelerate or to require the
prepayment, repurchase or redemption of any obligation under any agreement,
indenture or other instrument to which the Borrower is a party or by which it is
bound or to which it is subject or result in the creation or imposition of any
Encumbrance of any nature whatsoever upon any of the property or assets of the
Borrower pursuant to the terms of any such agreement, indenture or other
instrument, except in the case of clauses (ii) and (iii) above, as would not,
individually or in the aggregate, have a Material Adverse Effect. Except as
would not have a Material Adverse Effect, the Borrower and each Subsidiary has
good record and marketable title in fee simple to, or a valid leasehold interest
in, all its real property, and good title to, or a valid leasehold interest in,
all of its other property, including, without limitation, the Collateral and
none of such property is subject to any Encumbrance except as permitted by
Section 5.2. No event has occurred and is continuing and no condition exists or
will exist immediately after giving effect to the borrowings hereunder which
constitutes an Event of Default.
3.5 Financial Statements. The Borrower has heretofore furnished to the
Administrative Agent and the Lenders the consolidated balance sheet and
statements of income, capitalization, shareholders' equity and cash flows of the
Borrower (i) as of and for the fiscal year ended September 30, 2003, reported on
by PricewaterhouseCoopers LLP, independent public accountants, and (ii) as of
and for the fiscal quarter and the portion of the fiscal year ended June 30,
2004. Such financial statements present fairly, in all material respects, the
financial position and results of operations and cash flows of the Borrower as
of such dates and for such periods in accordance with GAAP, except as expressly
noted therein, and, subject to year-end audit adjustments and the absence of
footnotes in the case of the statements referred to in clause (ii) above. Except
as has otherwise been fully disclosed in NUI Corporation's Form 10-K filed on
December 31, 2002, Form 10-Qs filed on February 14, 2003, May 15, 2003 and
August 14, 2003, Current Reports on Form 8-K filed on July 22, 2003, July 31,
2003, September
25
26, 2003, October 14, 2003 and November 19, 2003, Form 10-K filed on May 13,
2004, Form 10-Qs filed on May 20, 2004, May 25, 2004 and August 16, 2004, and
Form 10-Q/As filed on June 17, 2004, in each case with the Securities and
Exchange Commission, the Confidential Information Memorandum or the Lender
Presentation, since September 30, 2003, nothing has occurred that has had a
Material Adverse Effect.
3.6 Absence of Litigation. Except as disclosed in NUI Corporation's Form
10-K filed on December 31, 2002, Form 10-Qs filed on February 14, 2003, May 15,
2003, and August 14, 2003, Current Reports on Form 8-K filed on July 22, 2003,
July 31, 2002, September 26, 2003, October 14, 2003 and November 19, 2003, Form
10-K filed on May 13, 2004, Form 10-Qs filed on May 20, 2004, May 25, 2004 and
August 16, 2004, and Form 10-Q/As filed on June 17, 2004, in each case with the
Securities and Exchange Commission, the Confidential Information Memorandum or
the Lender Presentation, there are no actions, suits, investigations, litigation
or proceedings at law or in equity pending or, to the Borrower's knowledge,
threatened against the Borrower or any of its properties, which (i) would have a
Material Adverse Effect, or (ii) that involve any Loan Document or the
transactions hereunder. It is acknowledged and agreed that notwithstanding
anything contained in this Section 3.6 to the contrary, nothing in this Section
3.6 shall constitute a representation or warranty by the Borrower with respect
to the focused audit of the Borrower initiated by the New Jersey Board of Public
Utilities (the "NJBPU") as of March 20, 2003 and conducted by The Liberty
Consulting Group (the "Focused Audit"), whether the status of the Focused Audit,
the results (or expected results) of the Focused Audit or otherwise.
3.7 Tax Returns and Payments. The Borrower has timely filed all Federal and
all other material tax returns required by law to be filed and has paid all
material taxes, material assessments and other material governmental charges
which are due and payable by the Borrower, other than those payable without
penalty or interest or those which are being contested in good faith and by
appropriate proceedings diligently conducted for which reserves in accordance
with GAAP have been provided. The charges, accruals and reserves on the books of
the Borrower in respect of Federal, state and local income taxes for all fiscal
periods are adequate, and the Borrower knows of no unpaid assessments for
additional Federal, state or local income taxes for any such fiscal period or
any basis therefor.
3.8 Pension Plans. Except to the extent that a breach of any of the
following representations would not have a Material Adverse Effect, (i) each
Plan has been and will be maintained and funded, in all respects, in accordance
with its terms and with all provisions of ERISA and the Code applicable thereto;
(ii) no Reportable Event has occurred and is continuing with respect to any
Plan; (iii) no liability to PBGC has been incurred with respect to any Plan,
other than for premiums due and payable; (iv) no Plan has been terminated, no
proceedings have been instituted to terminate any Plan, and there exists no
intent to terminate or institute proceedings to terminate any Plan, which has
caused or would cause the Borrower or any ERISA Affiliate to incur any liability
to the PBGC under Title IV of ERISA; (v) no withdrawal, either complete or
partial, has occurred or commenced with respect to any Multiemployer Plan, and
there exists no intent to withdraw either completely or partially from any
Multiemployer Plan, (vi) the Borrower is not subject to any liability for unpaid
penalties or taxes imposed under Section 502(i) of ERISA or Section 4975 of the
Code and has not engaged in a prohibited transaction as defined in Section 406
of ERISA and Section 4975 of the Code, (vii) no conditions have been met for the
imposition of a lien under Section 302(f) of ERISA or Section 412(n) of
26
the Code or for the provision of security pursuant to Section 307 of ERISA with
respect to any Plan and (viii) with respect to each Plan, the value of all
benefit liabilities under such Plan do not exceed the fair market value of the
assets of such plan, as determined in accordance with the most recent actuarial
report for such Plan.
3.9 Compliance with Applicable Laws. The Borrower (i) is not in default
with respect to any order, writ, injunction or decree of any court or of any
Federal, state, municipal or other Governmental Authority; and (ii) is complying
with all applicable statutes and regulations of each Governmental Authority
having jurisdiction over its activities (including FERC and other applicable
Federal and state energy laws and regulations); except for those orders, writs,
injunctions, decrees, statutes and regulations, non-compliance with which would
not have a Material Adverse Effect. It is acknowledged and agreed that
notwithstanding anything contained in this Section 3.9 to the contrary, nothing
in this Section 3.9 shall constitute a representation or warranty by the
Borrower with respect to the Focused Audit, whether the status of the Focused
Audit, the results (or expected results) of the Focused Audit or otherwise.
3.10 Environmental Matters. Except to the extent described in NUI
Corporation's Form 10-K filed on December 31, 2002, Form 10-Qs filed on February
14, 2003, May 15, 2003, and August 14, 2003, Current Reports on Form 8-K filed
on July 22, 2003, July 31, 2002, September 26, 2003, October 14, 2003 and
November 19, 2003, Form 10-K filed on May 13, 2004, Form 10-Qs filed on May 20,
2004, May 25, 2004 and August 16, 2004, and Form 10-Q/As filed on June 17, 2004,
in each case with the Securities and Exchange Commission, the Confidential
Information Memorandum or the Lender Presentation, the Borrower is in compliance
with all applicable Environmental Laws, except for matters which do not have a
Material Adverse Effect.
3.11 Governmental Approval. Other than approval by the NJBPU (the "NJBPU
Approval") and approval by the FPSC (the "FPSC Approval"), no action, order,
authorization, consent, license, validation or approval of, or notice to,
filing, recording, or registration with, any Governmental Authority, or
exemption by any Governmental Authority, is or, under existing Governmental
Rules, will be required to authorize, or is or, under existing Governmental
Rules, will be required in connection with, (i) the execution, delivery and
performance by the Borrower of this Agreement or the other Loan Documents to
which it is a party or the transaction thereunder or (ii) the legality, binding
effect or enforceability against the Borrower of this Agreement or the other
Loan Documents to which it is a party, except for such as have been made or
obtained and are in full force and effect.
3.12 Regulations T, U and X. The Borrower is not engaged in the business of
purchasing or selling Margin Stock or extending credit to others for the purpose
of purchasing or carrying Margin Stock and no part of the proceeds of the Loans
will be used to purchase or carry any Margin Stock or for any other purpose
which would violate or be inconsistent with Regulations T, U or X.
3.13 Investment Company Act. The Borrower is not an "investment company",
or a company "controlled" by an "investment company", within the meaning of the
Investment Company Act of 1940, as amended.
27
3.14 Public Utility Holding Company Act. The Borrower is a "gas utility
company" within the meaning of the Public Utility Holding Company Act of 1935,
as amended ("PUHCA") and a "subsidiary company" of NUI Corporation, which is a
"holding company" that is exempt from all regulation under PUHCA (except Section
(9)(a)(2) thereof) under Section 3(a)(1) thereof pursuant to Rule 2.
3.15 Disclosure. Neither this Agreement nor any other document, certificate
or written statement furnished to the Lenders or the Administrative Agent by or
on behalf of the Borrower pursuant to this Agreement (or provided by or on
behalf of the Borrower for inclusion in the Lender Presentation) contains any
untrue statement of a material fact or omits to state any material fact
necessary to make the statements therein taken as a whole, in light of the
circumstances under which they were made, not misleading. There is no fact known
to the Borrower which has had or in the future may (so far as the Borrower now
foresees) have a Material Adverse Effect, which has not been set forth (or
referred to) in this Agreement or in the other documents, certificates and
statements (financial or otherwise) furnished to the Lenders or the
Administrative Agent or otherwise disclosed in writing to the Lenders or the
Administrative Agent by or on behalf of the Borrower prior to or on the date
hereof. With respect to projections regarding the future performance of the
Borrower, no representation or warranty is made other than that such projections
have been prepared in good faith and based on assumptions believed to be
reasonable at the time of preparation thereof; it being recognized that such
projections are not to be viewed as facts and are subject to significant
uncertainties and contingencies many of which are beyond the Borrower's control
and that actual results during the period or periods covered by any such
projections may differ from the projected results and such differences may be
material. It is acknowledged and agreed that notwithstanding anything contained
in this Section 3.15 to the contrary, nothing in this Section 3.15 shall
constitute a representation or warranty by the Borrower with respect to the
Focused Audit, whether the status of the Focused Audit, the results (or expected
results) of the Focused Audit or otherwise.
3.16 No Subsidiaries. The Borrower has no Subsidiaries.
3.17 Insurance. All policies of insurance of any kind or nature owned by or
issued to the Borrower are in full force and effect and are of a nature and
provide such coverage as is sufficient and as is customarily carried by
companies of the size and character of such Person (except to the extent the
Borrower is self-insured in compliance with Section 4.7).
3.18 Labor Matters. There are no strikes, work stoppages, slowdowns,
lockouts or other labor disputes pending or threatened against or involving the
Borrower, other than those which in the aggregate have no Material Adverse
Effect. There are no arbitrations, unfair labor practice charges, complaints,
representation proceedings or grievances pending against or involving the
Borrower, nor, to the knowledge of the Borrower, are there any threatened
involving the Borrower, based on, arising out of, in connection with, or
otherwise relating to individual or group employment, collective bargaining
agreements, union organizing or other activities, or employment or other labor
matters, other than those which, in the aggregate, would have no Material
Adverse Effect.
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ARTICLE IV. AFFIRMATIVE COVENANTS.
From the date hereof and thereafter until all of the Bank Indebtedness
(other than indemnity obligations which are not then due and payable) is paid in
full, the Borrower agrees that:
4.1 Use of Proceeds. The proceeds of the Loans may only be used by the
Borrower (i) to pay related fees and expenses incurred in connection with the
execution and delivery of the Loan Documents, (ii) for advance payments to gas
suppliers, (iii) for working capital purposes in the ordinary course of business
of the Borrower, and (iv) for general corporate purposes of the Borrower,
including the payment of dividends.
4.2 Furnishing Information. The Borrower shall:
(i) deliver to the Administrative Agent (with copies for each Lender
which the Administrative Agent shall distribute) within 30 days after the
date quarterly financial statements would be required to be filed by an
"Accelerated Filer" as defined in Rule 12b-2 under the Exchange Act
(without giving effect to any extension) in a periodic report with the
Securities and Exchange Commission, NUI Corporation's Form 10-Q filed with
the Securities and Exchange Commission together with (A) balance sheets as
at the end of such period for the Borrower, and (B) statements of income
for such period for the Borrower and, in the case of the second and third
quarterly periods, for the period from the beginning of the current Fiscal
Year to the end of such quarterly period; and each such statement shall set
forth, in comparative form, corresponding figures for the corresponding
period in the immediately preceding Fiscal Year and all such statements
shall be prepared in reasonable detail in accordance with GAAP and
certified, subject to changes resulting from year-end adjustments, by the
chief financial officer or treasurer of the Borrower;
(ii) deliver to the Administrative Agent (with copies for each Lender
which the Administrative Agent shall distribute) within 30 days after the
date annual financial statements would be required to be filed by an
"Accelerated Filer" as defined in Rule 12b-2 under the Exchange Act
(without giving effect to any extension) in a periodic report with the
Securities and Exchange Commission, (A) balance sheets as at the end of
such year for the Borrower, and (B) statements of income for such year for
the Borrower; and each such statement shall set forth, in comparative form,
corresponding figures for the immediately preceding Fiscal Year; and all
such financial statements shall present fairly in all material respects the
financial position of the Borrower, as at the dates indicated and the
results of its operations and its cash flow for the periods indicated, in
conformity with GAAP; and the Borrower shall furnish to the Administrative
Agent (with copies for each Lender which the Administrative Agent shall
distribute) the audited consolidated financial statements of NUI
Corporation (of which the Borrower is a Subsidiary in its consolidated
group) for such Fiscal Year furnished under the NUI Corporation Credit
Agreement;
(iii) deliver to the Administrative Agent (with copies for each Lender
which the Administrative Agent shall distribute), together with each
delivery of financial statements pursuant to items (i) and (ii) above, a
Compliance Certificate of the Borrower substantially in the form of Exhibit
A hereto, properly completed and signed by an
29
Authorized Officer of the Borrower, (A) stating (1) that such officer has
reviewed the terms of the Loan Documents and has made, or caused to be made
under his supervision, a review of the transactions and condition of the
Borrower during the accounting period covered by such financial statements
and that such review has not disclosed any failure by the Borrower during
such period to observe or perform all of its covenants and other
agreements, nor any failure to satisfy every condition contained in this
Agreement and the other Loan Documents to which it is a party during such
accounting period, and (2) that the Borrower does not have knowledge of the
existence, as at the date of such Compliance Certificate, of any condition
or event which constitutes an Event of Default or a Potential Default, or,
if any such condition or event existed or exists, specifying the nature and
period of existence thereof and what action the Borrower has taken or is
taking or proposes to take with respect thereto, and (B) demonstrating in
reasonable detail compliance as at the end of such accounting period with
the covenants contained in Sections 5.3a and 5.3b hereof;
(iv) promptly give written notice to the Administrative Agent of any
pending or, to the knowledge of the Borrower, overtly threatened claim in
writing, litigation which arises between the Borrower and any other party
or parties (including, without limitation, any Governmental Authority,
which claim, litigation or threat of litigation, individually or in the
aggregate, is reasonably likely to have a Material Adverse Effect, any such
notice to be given not later than five Business Days after the Borrower
becomes aware of the occurrence of any such claim, litigation or threat of
litigation;
(v) deliver to the Administrative Agent (with copies for each Lender
which the Administrative Agent shall distribute) promptly upon their
becoming available, copies of all financial statements, reports, notices
and information statements sent or made available generally by the Borrower
to its security holders (including, without limitation, proxy materials)
and copies of all other regular and periodic reports (including, without
limitation, Form 8-K) filed by NUI Corporation with the Securities and
Exchange Commission or any Governmental Authority succeeding to any of its
functions, and of all press releases and other statements made available
generally by the Borrower to the public concerning material developments in
the business of the Borrower;
(vi) promptly after receipt thereof, by the Borrower or the
administrator of any Plan, deliver to the Lenders a copy of any notice from
the PBGC that the PBGC is instituting Termination Proceedings;
(vii) deliver to the Administrative Agent within two Business Days
after S&P or Xxxxx'x announces a change in the Borrower's Senior Ratings,
or the withdrawal of any Senior Ratings, notice of such change or
withdrawal, together with a copy of any written notification which Borrower
received from the applicable rating agencies regarding such change or
withdrawal of Senior Ratings;
(viii) promptly and in any event within 30 days after the Borrower or
the administrator of any Plan knows or has reason to know that any
Reportable Event has occurred that is reasonably expected to have a
Material Adverse Effect give notice thereof to the Administrative Agent;
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(ix) promptly, but not later than five Business Days, after any
officer of the Borrower obtains knowledge of any development or the
occurrence of any event having a Material Adverse Effect or which
constitutes an Event of Default or a Potential Default, give written notice
thereof to the Administrative Agent, specifying, in the case of an Event of
Default or a Potential Default, the nature and extent thereof and the
corrective action (if any) taken or proposed to be taken with respect
thereto;
(x) promptly, deliver to the Administrative Agent such other
information and data with documentation and other information required by
bank regulatory authorities under applicable "know your customer" and
Anti-Money Laundering rules and regulations (including, without limitation,
the Patriot Act), including, without limitation, evidence satisfactory to
the Administrative Agent of (y) the listing of Capital Stock of NUI
Corporation on the New York Stock Exchange and (z) NUI Corporation's
ownership of all of the outstanding equity interests of Borrower as from
time to time may be reasonably requested by the Administrative Agent; and
(xi) promptly, deliver to the Lenders such other information and data
with respect to the Borrower as from time to time may be reasonably
requested by any Lender through the Administrative Agent.
Information required to be delivered pursuant to this Section 4.2 shall be
deemed to have been delivered to the Lenders when it has been delivered to the
Administrative Agent.
4.3 Visitation. The Borrower will keep and maintain complete and proper
books of record and account in accordance with GAAP and a system of accounting
established and administered in accordance with sound business practice and
adequate to permit the preparation of the financial statements required to be
delivered under Section 4.2, and permit the Administrative Agent, and, at their
own expense, the Lenders and each Lender's designated employees and agents to
have access, from time to time, upon reasonable notice (except no such notice
shall be required after the occurrence and during the continuance of an Event of
Default) and during normal business hours at any reasonable time, to visit any
of the properties of the Borrower, to examine and make copies of any of its
books of record and account, and such reports and returns as the Borrower may
file with any Governmental Authority and discuss the Borrower's affairs and
accounts with, and be advised about them, by Authorized Officers and the
Borrower's independent accountant.
4.4 Preservation of Existence; Qualification. At its own cost and expense,
the Borrower will continue to engage in business of the same general type as now
conducted by it and will do all things necessary to preserve and keep in full
force and effect its corporate existence and qualification under the laws of its
state of incorporation and each state where, due to the nature of its activities
or the ownership of its properties, qualification to do business is required
except where the failure to be so qualified would not have a Material Adverse
Effect. It is understood and agreed that the consummation of transactions
permitted by Section 5.5 shall not cause a violation of this Section 4.4.
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4.5 Compliance with Governmental Rules. The Borrower shall comply with all
applicable Governmental Rules (including, but not limited to, Environmental
Laws), except where failure to comply would not have a Material Adverse Effect.
4.6 Payment of Taxes. The Borrower shall promptly pay and discharge all
material taxes, assessments and governmental charges; provided, however, that
for purposes of this Agreement, the Borrower shall not be required to pay any
item the payment of which is being contested on a timely basis in good faith by
appropriate and lawful proceedings diligently conducted and as to which the
Borrower shall have set aside on its books reserves for such claims as are
determined to be adequate pursuant to the accounting procedures employed by the
Borrower.
4.7 Insurance. The Borrower will keep and maintain insurance with
financially sound and reputable insurance companies on each of its properties,
in such amounts and against such risks as is customarily maintained by similar
businesses similarly situated and owning, leasing or operating similar
properties. The Borrower may satisfy the requirements of the preceding sentence
with self insurance and deductibles consistent with customary and prudent
industry standards (if adequate reserves are maintained on its books with
respect thereto in accordance with GAAP or cash deposits have been made with
respect to such self insurance based on historical claim rates and in accordance
with prudent industry practice). The Borrower will certify in the Compliance
Certificate delivered pursuant to Subsection 4.2(iii) hereof that such insurance
is in force, provides coverage consistent with the preceding sentence and
complies with the Borrower's obligations under this Section 4.7.
4.8 Maintenance of Properties and Assets.
The Borrower shall maintain, preserve, protect and keep its properties in
good repair, working order and condition (ordinary wear and tear excepted),
maintain and preserve good and marketable title thereto, and make all necessary
and proper repairs, renewals and replacements so that its business carried on in
connection therewith may be properly and advantageously conducted at all times,
except where the failure to maintain, preserve, protect or keep such properties
would not have a Material Adverse Effect.
4.9 Plans and Benefit Arrangement. The Borrower shall, and shall cause each
ERISA Affiliate to, comply with ERISA, the Code and all other applicable laws
which are applicable to Plans, except where the failure to do so, alone or in
conjunction with any other failure to do so, would not have a Material Adverse
Effect.
4.10 Collateral. The Borrower shall (i) maintain good and valid rights and
title to the Collateral (other than accounts receivable disposed of in the
ordinary course (in respect of the collection thereof) in accordance with past
practice), and (ii) at its sole cost and expense, take all actions necessary or
reasonably requested by the Collateral Agent to maintain each Collateral
Document in full force and effect and enforceable in accordance with its terms,
including (A) making filings and recordations, (B) making payments of fees and
other charges, (C) issuing, and if necessary, filing or recording supplemental
documentation, including continuation statements, (D) discharging all claims or
other Encumbrances (other than Permitted Encumbrances)
32
adversely affecting the rights of any Secured Party in the Collateral, and (E)
publishing or otherwise delivering notices to third parties.
4.11 Ownership. The Borrower shall at all times during the term hereof be a
direct 100% wholly owned Subsidiary of NUI Corporation.
ARTICLE V. NEGATIVE COVENANTS.
From the date hereof and thereafter until the Bank Indebtedness (other than
indemnity obligations which are not then due and payable) is paid in full, the
Borrower agrees that:
5.1 Dividends, Etc. The Borrower will not declare or make any dividend
payment or other distribution of assets, properties, cash, rights, obligations
or securities on account of any shares of any class of equity interests of the
Borrower, or purchase, redeem, defease or otherwise acquire for value any shares
of any class of equity interests of the Borrower or any warrants, rights or
options to acquire or retire any such shares, now or hereafter outstanding (such
declarations, payments, other distributions, purchases, redemptions, or other
acquisitions being herein called "Restricted Payments"), except that the
Borrower may (a) declare and make any dividend payment or other distribution
payable solely in common equity interests of the Borrower, and (b) declare or
pay cash dividends to NUI Corporation and purchase, redeem or otherwise acquire
shares of its equity interests or warrants, rights or options to acquire for
consideration of any such shares, so long as the aggregate of such Restricted
Payments made, paid or declared since the Closing Date in the aggregate would
not exceed $35,000,000; provided, that (x) prior to or immediately after giving
effect to any such proposed Restricted Payments, no Potential Default or Event
of Default shall have existed or would exist and (y) no such payment shall
violate any Governmental Rule.
5.2 Encumbrances. The Borrower will not create, incur, assume, permit or
suffer to exist any Encumbrance or any other type of preferential arrangement,
upon or with respect to any of its properties or assets, whether now owned or
hereafter acquired, or assign any right to receive income, in each case to
secure or provide for the payment of any Indebtedness of any Person, other than
Permitted Encumbrances.
5.3a Leverage Ratio. At no time shall its ratio of Consolidated Total
Indebtedness to its Consolidated Total Capitalization exceed 0.70:1.00; provided
that the Borrower shall not be required to comply with the covenant of this
Section 5.3a until the earlier of (x) December 31, 2004 and (y) the termination,
if any, of the Acquisition Agreement, and such non-compliance shall not
constitute an "Event of Default" hereunder (for the avoidance of doubt, the
Borrower shall have to continue within such period of time to deliver a
Compliance Certificate pursuant to the requirements of Section 4.2(iii) hereof
with the appropriate qualifications).
5.3b Interest Coverage Ratio. At no time shall the Borrower permit, for any
period of four consecutive Fiscal Quarters ending on or after September 30,
2004, the ratio of (i) Consolidated EBITDA to (ii) Consolidated Interest Expense
for such period, to be less than 2.25 to 1.00; provided that the Borrower shall
not be required to comply with the covenant of this Section 5.3b until the
earlier of (x) December 31, 2004 and (y) the termination, if any, of the
Acquisition Agreement, and such non-compliance shall not constitute an "Event of
Default"
33
hereunder (for the avoidance of doubt, the Borrower shall have to continue
within such period of time to deliver a Compliance Certificate pursuant to the
requirements of Section 4.2(iii) hereof with the appropriate qualifications).
5.4 Acquisitions. The Borrower will not acquire (i) the assets of any
Person, other than acquisitions of inventory, materials and equipment in the
ordinary course of business and capital expenditures permitted under Section
5.12, or (ii) any shares of capital stock of, or other equity interest in, any
Person. Notwithstanding the foregoing, the Borrower may make the Penn
Acquisition.
5.5 Sales of Assets. The Borrower shall not sell or otherwise transfer or
dispose of, in a single transaction or a series of transactions, all or any part
of its assets (other than dispositions, in the ordinary course, of inventory,
accounts receivable (in respect of the collection thereof) and obsolete,
uneconomic or worn out materials or other assets, or dispositions in the
ordinary course of business in the form of licenses, sublicenses, operating
leases or operating subleases).
5.6 Merger, Dissolution and Liquidation. (i) The Borrower shall not merge
or consolidate with any other Person.
5.7 Regulation T, U and X Compliance. The Borrower shall not use the
proceeds of a Loan to purchase or carry Margin Stock or otherwise act so as to
cause any Lender, in extending credit hereunder, to be in contravention of
Regulations T, U or X.
5.8 ERISA. Except as would not, either individually or in the aggregate,
have a Material Adverse Effect, the Borrower shall not and shall not permit any
ERISA Affiliate to:
(i) engage in any "prohibited transaction", as such term is defined in
Section 406 of ERISA and Section 4975 of the Code;
(ii) incur any "accumulated funding deficiency" with respect to a
Plan, as such term is defined in Section 302 of ERISA, whether or not
waived;
(iii) permit a Plan to be terminated in a manner which could result in
liability to the PBGC under Title IV of ERISA or the imposition of a lien
on the property of the Borrower or any ERISA Affiliate pursuant to Section
4068 of ERISA;
(iv) partially or completely withdraw from any Multiemployer Plan,
which withdrawal shall subject the Borrower or any ERISA Affiliate to
multiemployer withdrawal liability pursuant to Section 4201 of ERISA;
(v) permit a Reportable Event to occur with respect to a Plan; or
(vi) allow the conditions to be met for the imposition of a lien under
Section 302(f) of ERISA or Section 412(n) of the Code, or for the provision
of security pursuant to Section 307 of ERISA, with respect to any Plan.
34
5.9 Restrictive Agreements. The Borrower shall not enter into or otherwise
be bound by any agreement not to pay dividends or make distributions to NUI
Corporation, except for (i) the Existing Credit Agreement, the Standby Bond
Purchase Agreement and the Borrower's settlement with the NJBPU relating to the
Focused Audit and (ii) such agreements existing on the date hereof which have
been fully disclosed in writing to Administrative Agent, and replacements of
such agreements (provided that copies of such replacement agreements are
provided to the Administrative Agent and are no more restrictive in any material
respect than those agreements being replaced).
5.10 Business of the Borrower. The Borrower shall not make any material
change in the nature or conduct of its business as carried on at the date
hereof.
5.11 Subsidiaries. The Borrower shall not create, nor permit to exist, any
Subsidiary.
5.12 Limitation on Capital Expenditures. The Borrower shall not make or
commit to make (by way of the acquisition of securities of a Person or
otherwise) any expenditure in respect of the purchase or other acquisition of
fixed or capital assets, except for expenditures, when added to such
expenditures made by NUI Corporation and its other Subsidiaries, not exceeding
during any of its Fiscal Years ending after the Closing Date, the amount of
$75,000,000.
5.13 Limitation on Indebtedness. The Borrower shall not directly or
indirectly, create, incur, assume or suffer to exist any Indebtedness, except
(without duplication):
(a) Indebtedness in respect of the Loans and the other obligations
under this Agreement and the other Loan Documents;
(b) Indebtedness of the Borrower incurred solely in order to finance
the purchase of new fixed or capital assets (including pursuant to capital
leases) in an aggregate principal amount not exceeding $10,000,000 at any
time outstanding;
(c) Indebtedness listed on Schedule 5.13 and renewals, refinancings,
extensions and modifications thereof which do not increase the principal
amount thereof (except that in the case of any refinancing of the Gas
Revenue Bonds, the principal amount of such refinancing Indebtedness may be
increased by the aggregate amount of interest accrued on, prepayment
premiums paid with respect to such refinanced Indebtedness or financing
costs paid with respect to such refinancing), nor shorten the maturity
thereof;
(d) Indebtedness incurred in connection with Hedging Obligations,
provided that such Hedging Obligations shall be in the ordinary course of
business consistent with past practices to hedge or mitigate risks to which
the Borrower is exposed in the conduct of its business or the management of
its liabilities and not for speculative purposes;
(e) Indebtedness with respect to standby letters of credit issued by a
bank for the benefit of the Borrower in an aggregate face amount not to
exceed $10,000,000 at any time outstanding; and
35
(f) intercompany Indebtedness incurred in connection with the
provision of services in the ordinary course of business.
5.14 Limitation on Contingent Obligations. The Borrower shall not create,
incur, assume or suffer to exist any Guarantee.
5.15 Limitation on Investments, Loans and Advances. The Borrower shall not
purchase, hold or acquire beneficially any stock, other securities or evidences
of Indebtedness of, make or permit to exist any loans or advances to, or make or
permit to exist any investment or acquire any interest whatsoever in, any other
Person, except:
(a) extensions of trade credit to customers in the ordinary course of
business and consistent with past practice;
(b) Permitted Investments;
(c) loans and advances to employees of the Borrower for travel,
entertainment and relocation expenses in the ordinary course of business
and consistent with past practice;
(d) intercompany loans and advances in connection with the provision
of services in the ordinary course of business;
(e) securities acquired in connection with the bankruptcy of any
supplier or customer in the ordinary course of business and consistent with
past practices or in connection with the settlement of delinquent accounts
of any such supplier or customer; and
(f) advance payments to gas suppliers.
5.16 Limitation on Optional Payments and Modifications of Debt Instruments.
The Borrower shall not make any optional payment or prepayment on or redemption,
defeasance or purchase of any Indebtedness (other than Indebtedness under this
Agreement, Indebtedness under the Existing Credit Agreement, Indebtedness to the
extent being refinanced in accordance with Section 5.13(c)), or amend, modify or
change, or consent or agree to any amendment, modification or change to any of
the terms relating to the payment or prepayment of principal of or interest on,
any such Indebtedness, other than any amendment, modification or change which
would extend the maturity or reduce the amount of any payment of principal
thereof or which would reduce the rate or extend the date for payment of
interest thereon.
5.17 Transactions with Affiliates. The Borrower shall not enter into any
transaction, including, without limitation, any purchase, sale, lease or
exchange of property or the rendering of any service, with any Affiliate unless
such transaction (a) is permitted under this Agreement or is in the ordinary
course of the Borrower's business, consistent with past practice, and (b) is
upon fair and reasonable terms no less favorable to the Borrower than it would
obtain in a comparable arm's length transaction with a Person which is not an
Affiliate, it being understood that none of (i) transactions between NUI
Corporation and its Subsidiaries pertaining to administrative services, (ii) the
repayment of the intercompany receivables owing from NUI
36
Corporation to the Borrower or from the Borrower to NUI Corporation, or (iii)
the movement of employees between NUI Corporation and the Borrower, in each case
provided at cost (if applicable), shall not be deemed a breach of this Section
5.17.
5.18 Sale and Leaseback. The Borrower shall not enter into any arrangement,
directly or indirectly, with any Person providing for the leasing by the
Borrower of real or personal property, whether now owned or herein after
acquired, which has been or is to be sold or transferred by the Borrower to such
Person.
ARTICLE VI. CONDITIONS PRECEDENT TO EXTENSIONS OF CREDIT
6.1 Conditions Precedent to the Effectiveness of this Agreement. The
effectiveness of this Agreement is subject to the satisfaction of each of the
following conditions precedent:
(i) Receipt by the Administrative Agent on behalf of each Lender of a
counterpart original of this Agreement executed by the other Lenders and
the Borrower, as applicable.
(ii) Receipt by the Administrative Agent of a copy of Amendment No. 3
to the Existing Credit Agreement and the Amendment No. 3 to the NUI
Corporation Credit Agreement, in each case fully executed by the parties
thereto, and each of Amendment No. 3 to the Existing Credit Agreement
(other than Section 2 thereof) and Amendment No. 3 to the NUI Corporation
Credit Agreement (other than Section 2 thereof) shall have become effective
in accordance with the terms thereof.
(iii) Receipt by the Administrative Agent of copies of the Collateral
Documents, in each case fully executed by the parties thereto, together
with all documentation necessary and appropriate to convey (and confirm) a
valid and, upon the filing of UCC-1 financing statements in the public
offices set forth on Schedule 5(b) to the Security Agreement (to the extent
such security interest may be perfected by the filing of such financing
statements), perfected first-priority security interest in the Collateral
(free and clear of all Encumbrances), to the extent and as more
specifically enumerated in the Collateral Documents;
(iv) Receipt by the Administrative Agent of a certified copy
(certified by the appropriate governmental official) of the Borrower's
Certificate of Incorporation which certification is dated not more than 30
days prior to the Closing Date.
(v) Receipt by the Administrative Agent of a certificate, duly
certified as of the date of the Closing by the secretary or assistant
secretary of the Borrower as to (A) the By-Laws of the Borrower in effect
as of the Closing, (B) the resolutions of the Borrower's Board of Directors
authorizing the borrowings hereunder and the execution and delivery of this
Agreement and all documents supplemental hereto, and (C) the names of the
officers of the Borrower authorized to sign this Agreement and the other
Loan Documents and all supplemental documentation, and which contains a
true signature of each such officer.
37
(vi) Receipt by the Administrative Agent of a good standing
certificate for the Borrower from the Secretary of State of the State of
New Jersey dated not more than 30 days prior to the Closing Date.
(vii) Receipt by the Administrative Agent of the certificate of the
Borrower required pursuant to Section 4.7 of this Agreement and a solvency
certificate in the form of Exhibit C hereto.
(viii) Receipt by the Administrative Agent on behalf of each Lender of
a signed opinion of (a) Xxxxxx, XxXxxxxxxx & Xxxxxx, P.A., New Jersey
counsel to the Borrower, (b) White & Case LLP, special counsel for the
Borrower, and (c) LeBoeuf, Lamb, Xxxxxx & XxxXxx L.L.P., special regulatory
counsel for the Borrower, in each case, dated as of the Closing Date and in
form and substance reasonably satisfactory to the Administrative Agent and
its counsel.
(ix) Receipt by the Administrative Agent on its own behalf and on
behalf of the Lenders of all invoiced reimbursable expenses incurred on or
prior to the Closing Date.
(x) The Acquisition Agreement shall be in full force and effect on the
Closing Date.
(xi) On or prior to the Closing Date, the Administrative Agent shall
have received documentation and other information requested by it and
required by bank regulatory authorities under applicable "know your
customer" and Anti-Money Laundering rules and regulations, including,
without limitation, the Patriot Act). Such documentation shall include,
without limitation, evidence satisfactory to the Administrative Agent of
(y) the listing of Capital Stock of NUI Corporation on the New York Stock
Exchange and (z) NUI Corporation's ownership of all of the outstanding
equity interests of the Borrower.
(xii) The Administrative Agent and the Lenders shall have received
such other documents as the Administrative Agent, its counsel or any Lender
may reasonably request.
6.2 Conditions Precedent to the Extensions of Credit. The obligation of the
Lenders to make extensions of credit hereunder (it being understood for the
purposes of this Section 6.2 that the release of funds from the Escrow Account
in accordance with Section 6.3 shall not be deemed to be an extension of credit)
is subject to the satisfaction of each of the following conditions precedent in
addition to the conditions precedent set forth in Section 6.1 above:
(i) The representations and warranties of the Borrower contained in
Article III and in the other Loan Documents executed and delivered by the
Borrower in connection with the Closing and the extensions of credit
hereunder shall be true and correct in all material respects on and as of
the Borrowing Date with the same effect as though such representations and
warranties had been made on and as of such date (except representations and
warranties which relate solely to an earlier date or time, which
38
representations and warranties shall be true and correct on and as of the
specific date or times referred to therein), and the Borrower shall have
performed, observed and complied with all covenants and conditions hereof
and contained in the other Loan Documents; no Event of Default shall have
occurred and be continuing or shall exist at the time of and immediately
after such extension of credit; except as disclosed in NUI Corporation's
Form 10-K filed on December 31, 2002 , Form 10-Qs filed on February 14,
2003, May 15, 2003, and August 14, 2003, Current Reports on Form 8-K filed
on July 22, 2003, July 31, 2002, September 26, 2003, October 14, 2003 and
November 19, 2003, Form 10-K filed on May 13, 2004, Form 10-Qs filed on May
20, 2004, May 25, 2004 and August 16, 2004], and Form 10-Q/As filed on June
17, 2004, the Confidential Information Memorandum or the Lender
Presentation, nothing has occurred that has had a Material Adverse Effect;
and there shall be delivered to the Agent, for the benefit of each Lender
and the Administrative Agent, a certificate of the Borrower, dated the
Borrowing Date and signed by an Authorized Officer of the Borrower, to each
such effect.
(ii) The Borrower shall have complied with the requirements of Section
2.1d, Section 2.2c or 2.2e, as appropriate, with respect to the requested
extension of credit.
(iii) Receipt by the Administrative Agent on behalf of each requesting
Lender of a promissory note pursuant to Section 2.1c(e), made payable to
such Lender in the amount of such Lender's Commitment and otherwise
properly completed and executed by the Borrower.
(iv) Receipt by the Administrative Agent on behalf of each Lender of a
signed opinion of LeBoeuf, Lamb, Xxxxxx & XxxXxx L.L.P., special regulatory
counsel for the Borrower, dated as of the Borrowing Date and in form and
substance reasonably satisfactory to the Administrative Agent.
(v) Receipt by the Administrative Agent on its own behalf and on
behalf of the Lenders of all Fees due and payable on or prior to the
Borrowing Date, and all invoiced reimbursable expenses incurred on or prior
to the Borrowing Date.
(vi) The NUI Corporation Credit Agreement and the Existing Credit
Agreement shall be in full force and effect and, on or prior to the
Borrowing Date, the conditions precedent to the extension of the Additional
Term Loans under the NUI Corporation Credit Agreement shall have been
satisfied or waived and the Medium Term Notes shall have been refinanced or
satisfied and discharged through the incurrence of Delayed Draw Term Loans.
(vii) The Termination Date (as such term is defined in the NUI
Corporation Credit Agreement) under the NUI Corporation Credit Agreement
and the Termination Date (as such term is defined in the Existing Credit
Agreement) under the NUI Utilities Credit Agreement shall have been
extended and the Extension Fee (as such term is defined in the NUI
Corporation Credit Agreement) payable under the NUI Corporation Credit
Agreement and the Extension Fee payable under the Existing Credit Agreement
shall have been paid, in each case prior to or on the Borrowing Date in
accordance with the terms thereof.
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(viii) The Acquisition Agreement shall be in full force and effect on
the Borrowing Date.
(ix) On or prior to the Borrowing Date, all action, orders,
authorizations, consents, licenses, validations or approvals of, or notices
to, filings, recordings, or registration with, or exemptions by, any
Governmental Authority, including, without limitation, the NJBPU Approval
and the FPSC Approval, required to authorize (i) the execution, delivery
and performance by the Borrower of this Agreement or the other Loan
Documents to which it is a party or the transactions contemplated hereunder
or thereunder, (ii) the legality, binding effect or enforceability against
the Borrower of this Agreement or the other Loan Documents to which it is a
party or (iii) granting of the security interest in the Collateral, shall
have been made or obtained and are in full force and effect, all applicable
appeal periods shall have expired (other than with respect to the NJBPU
Approval and the FPSC Approval) and there shall be no litigation,
governmental, administrative or judicial action that could reasonably be
expected to restrain, prevent or impose burdensome conditions on the
transactions contemplated hereby.
(x) The Administrative Agent and the Lenders shall have received such
other documents as the Administrative Agent, its counsel or any Lender may
reasonably request, other than documents substantially similar to those
required to be delivered in connection with the Closing Date.
6.3 Escrow Arrangement. (a) At any time prior to the obtaining of the NJBPU
Approval and/or the FPSC Approval, the Borrower shall have an option to request,
and the Administrative Agent and each Lender hereby agrees, subject to
satisfaction of the conditions of Sections 6.1 and 6.2 hereof (other than (x)
the obtaining of the NJBPU Approval and the FPSC Approval, (y) the effectiveness
of Section 2 of Amendment No. 3 to the Existing Credit Agreement and Section 2
of Amendment No. 3 to the NUI Corporation Credit Agreement and (z) the extension
of the Termination Date under each of the NUI Corporation Credit Agreement and
the Existing Credit Agreement), and receipt by the Administrative Agent of at
least three Business Days prior written notice thereof, that each Lender shall
make Loans pursuant to Section 2.1; provided that (i) the proceeds of the Loans
and the Arrangement Fee (as such term is defined in the Fee Letter) and all
other fees then due and payable pursuant to the Fee Letter shall be funded into
an escrow account maintained by the Administrative Agent at The Bank of New York
(the "Escrow Account") and (ii) all invoiced reimbursable expenses of the
Administrative Agent and the Collateral Agent incurred on or prior to the date
of such funding (including without limitation the reasonable fees and
disbursements of the Administrative Agent's special counsel, Xxxxx Xxxxxxxxxx
LLP) shall be paid by the Borrower prior to or substantially contemporaneously
with funding the proceeds of the Loans into the Escrow Account. All of such
funds shall be automatically released on the date when the Administrative Agent
receives the evidence satisfactory to the Administrative Agent that the NJBPU
Approval and the FPSC Approval have been obtained, in each case, in form and
substance reasonably satisfactory to the Administrative Agent and Section 2 of
Amendment No. 3 to the Existing Credit Agreement and Section 2 of Amendment No.
3 to the NUI Corporation Credit Agreement shall have become effective
(regardless of whether the other conditions set forth in Sections 6.1 and 6.2
hereof could be met at such time) to the respective payees as follows: (x) CSFB
shall receive, for its
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own account, an amount equal to the Arrangement Fee and all other fees and
expenses then due and payable pursuant hereto or the Fee Letter and (y) the
Borrower shall receive the remainder of the funds in the Escrow Account. For the
avoidance of doubt, (i) the interest on the Loans shall start to accrue and
shall be payable to the Lenders from the date of funding of the proceeds of the
Loans into the Escrow Account, and (ii) funds in the Escrow Account shall bear
interest from such date and such interest shall be paid to the Borrower on the
date when such funds are released or returned, as the case may be.
(b) Notwithstanding the foregoing, if funds held in the Escrow Account are
not released on or prior to September 30, 2004 (due to the failure to obtain the
NJBPU Approval or the FPSC Approval), then (i) the Borrower shall then owe a fee
(the "Release Fee") to the Lenders in an aggregate amount equal to the amount of
interest which would have accrued on the Loans from the date escrowed through
September 30, 2004, (ii) all funds held in the Escrow Account shall be
distributed on September 30, 2004 as follows: (A) the Administrative Agent shall
receive for the account of each Lender an aggregate amount equal to the proceeds
of the Loans and the Release Fee, and (B) the Borrower shall receive the
remainder of the funds, if any, in the Escrow Account; provided that in the
event that the funds held in the Escrow Account are not sufficient to make the
distribution set forth in clause (ii)(A) above the Borrower shall pay to the
Administrative Agent for the account of each Lender the amount of such
deficiency, and (iii) the compensation, reimbursement and indemnification
provisions contained in the Commitment Letter and in the Fee Letter shall be
reinstated and in full force and effect on and from the date thereof.
ARTICLE VII. DEFAULTS
Each of the events or occurrences described in Sections 7.1 to and
including 7.11 below shall constitute an "Event of Default" hereunder.
7.1 Payment Default. Default in the payment of (i) interest on any Loan,
any other Bank Indebtedness, or any other amount due hereunder, and continuance
of any such nonpayment default for five days or (ii) principal of any Loan when
due and payable.
7.2 Nonpayment of Other Indebtedness. The Borrower shall fail to pay
(beyond the applicable grace period, if any) any Indebtedness of the Borrower
other than the Bank Indebtedness, in an aggregate amount of $10,000,000 or more,
as and when the same shall become due, or the occurrence of any default under
any agreement or instrument under or pursuant to which such Indebtedness is
incurred or issued (including, without limitation, the Existing Credit
Agreement) and continuance of such default beyond the period of grace, if any,
allowed with respect thereto, if such default permits or causes the acceleration
of such Indebtedness or the termination of any commitment to lend with respect
thereto.
7.3 Insolvency.
7.3a Involuntary Proceedings. A proceeding shall have been instituted in a
court having jurisdiction seeking a decree or order for relief in respect of the
Borrower in an involuntary case under the Federal bankruptcy laws, or any other
similar applicable Federal or state law, now or hereafter in effect, or for the
appointment of a receiver, custodian, liquidator,
41
trustee, sequestrator or similar official for the Borrower or for a substantial
part of its property or assets, or for the winding up or liquidation of its
affairs, and the same shall remain undismissed or unstayed and in effect for a
period of 60 days or an order or decree approving or ordering any of the
foregoing shall be entered.
7.3b Voluntary Proceedings. The Borrower shall institute proceedings to be
adjudicated a voluntary bankrupt, or shall consent to the filing of a bankruptcy
proceeding against it, or shall file a petition or answer or consent seeking
reorganization under the Federal bankruptcy laws, or any other similar
applicable Federal or state law now or hereinafter in effect, or shall consent
to the filing of any such petition or shall consent to the appointment of a
receiver, liquidator, custodian, trustee, sequestrator or similar official for
the Borrower or for a substantial part of its property, or shall make an
assignment for the benefit of creditors, or shall become unable, admit in
writing its inability, or fail generally, to pay its debts generally as they
become due, or corporate action shall be taken by the Borrower in furtherance of
any of the aforesaid purposes.
7.4 Security Failure. The Collateral Documents collectively shall cease to
create a valid and perfected first priority lien (to the extent purported to be
granted by such documents) on any portion of the Collateral, subject to
Permitted Encumbrances.
7.5 Failure to Comply with Covenants.
7.5a Failure to Comply with Certain Article IV Covenants and Article V
Covenants. The Borrower shall default in the observance or performance of any
covenant, condition or agreement contained in Xxxxxxx 0.0, Xxxxxxx 0.0(xx),
(xx), (xxx), (xxxx) and (ix), Section 4.4, Section 4.11 or of any covenant
contained in Article V.
7.5b Failure to Comply with Other Covenants. The Borrower shall default in
the due performance or observance of any other covenant, condition or provision
set forth herein (other than those specified in Sections 7.1, 7.2 or 7.5a above)
or in any other Loan Document and such default shall not be remedied with
respect to any other such default for a period of 30 days after such default is
known to any executive officer of the Borrower or notice thereof has been given
to the Borrower by the Administrative Agent, the Collateral Agent or any Lender
(such grace period to be applicable only in the event such default can be
remedied by corrective action of the Borrower as determined by the
Administrative Agent in its sole discretion).
7.6 Misrepresentation. Any representation or warranty made by the Borrower
herein or in any other Loan Document proves to have been untrue in any material
respect as of the date when made, or any certificate or other document furnished
by the Borrower to the Administrative Agent, the Collateral Agent or any Lender
pursuant to the provisions hereof or of any other Loan Document proves to have
been untrue in any material respect on the date as of which the facts set forth
therein are stated or certified.
7.7 Adverse Judgments, Etc. (i) Any one or more orders, judgments, decrees,
awards, writs of execution or attachment, restraining notices or of any similar
process has been levied, issued, entered or filed against the Borrower or any of
its properties, in an aggregate amount of $10,000,000 or more in excess of any
third-party insurance protecting against such
42
liability and failure of the Borrower to vacate, pay, bond, stay or contest in
good faith (by appropriate and lawful proceedings diligently conducted and as to
which the Borrower shall have set aside on its books reserves for such claims as
are determined to be adequate in accordance with GAAP) such orders, judgments,
decrees, awards, writs of execution or attachment, restraining notices or other
process within a period of 30 days (or, in the case of contesting the same, the
failure of the Borrower to diligently conduct such contest thereafter); or (ii)
any one or more fines, penalties, injunctions, charges, orders, judgments,
decrees, awards, writs of execution or attachment, restraining notices or any
similar action or process (other than (x) in connection with the Focused Audit
and (y) any costs related to the Focused Audit) has been levied, issued, entered
or filed against the Borrower or any of its properties in connection with any
actual or purported conflict with or violation or breach by the Borrower of any
Governmental Rule (or the Borrower enters into any agreement or makes any
payment in connection with any vacating, stay, settlement or dismissal of any
such claim or charge (whether or not such payment by its terms constitutes an
admission of liability)), in an aggregate amount of $10,000,000 or more (if
monetary) or which could reasonably be expected to cause a Material Adverse
Effect in the reasonable judgment of the Required Lenders (if non-monetary), and
failure of the Borrower to vacate, stay or contest in good faith (by appropriate
and lawful proceedings diligently conducted and as to which the Borrower shall
have set aside on its books reserves for such claims as are determined to be
adequate in accordance with GAAP) such fines, penalties, charges, orders,
judgments, decrees, awards, writs of execution or attachment, restraining
notices or other action or process within a period of 30 days (or, in the case
of contesting the same, the failure of the Borrower to diligently conduct such
contest thereafter).
7.8 Invalidity or Unenforceability. This Agreement, the Security Agreement
or any other Loan Document ceases to be valid and binding on the Borrower or is
declared null and void, or the validity or enforceability thereof is contested
by the Borrower or the Borrower denies it has any or further liability under
this Agreement, the Security Agreement or under the other Loan Documents to
which it is a party.
7.9 ERISA. (i) A trustee shall be appointed by a court of competent
jurisdiction to administer any Plan of the Borrower or any ERISA Affiliate; (ii)
the PBGC shall terminate any Plan of the Borrower or any ERISA Affiliate or
appoint a trustee to administer any such Plan; or (iii) the Borrower or any
ERISA Affiliate shall incur any liability to the PBGC in connection with any
Plan, which, in any such case, likely would have a Material Adverse Effect.
7.10 Change of Control; Change of Beneficial Ownership or Board. Any Person
or group of Persons (within the meaning of Sections 13 or 14 of the Securities
and Exchange Act of 1934), other than the then current officers or directors of
the Borrower or an underwriter which obtains such ownership as a result of
effecting a firm committed underwriting of a secondary offering of the
Borrower's voting stock on behalf of such officers or directors, shall have
acquired beneficial ownership of (within the meaning of Rule 13d-3 and 13d-5
promulgated by the Securities and Exchange Commission under said Act)
twenty-five percent (25%) or more of the voting stock of the Borrower on a fully
diluted basis with respect to which such Persons are entitled to vote on the
election of directors.
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7.11 Regulatory Decisions. Any Governmental Authority shall have issued a
final decision (other than in connection with the Focused Audit) that could
reasonably be likely to result in a Material Adverse Effect.
7.12 Consequences of an Event of Default. If one or more of the Events of
Default occur then (a) if such Event of Default is set forth in Sections 7.3
with respect to the Borrower, the Loans then outstanding and all other amounts
owing under this Agreement shall become immediately due and payable, without
necessity of demand, presentation, protest, notice of dishonor or notice of
default or (b) if such Event of Default is set forth in any of this Article VII,
other than Sections 7.3 with respect to the Borrower, then the Administrative
Agent, at the request of the Required Lenders, and upon notice to the Borrower,
shall declare the Borrower in default hereunder, and upon such declaration,
shall, at the request of the Required Lenders, declare the Loans then
outstanding (together with accrued interest thereon) and all other amounts owing
under this Agreement immediately due and payable, without necessity of any
further demand, presentation, protest, notice of dishonor or further notice of
default, whereupon the same shall be immediately due and payable.
7.13 Remedies Upon Default. Upon acceleration of the Loans following the
occurrence of an Event of Default, the Lenders shall, unless such acceleration
subsequently has been rescinded, have the full panoply of rights and remedies
granted to them under this Agreement and all those rights and remedies granted
by law to creditors, and the Administrative Agent, at the direction of the
Required Lenders, shall (i) proceed to protect and enforce the Lenders' rights
by an action at law, suit in equity or other appropriate proceeding, whether for
the specific performance of any agreement contained herein or in any of the
other Loan Documents, or for an injunction against a violation of any of the
terms hereof or thereof, or in aid of the exercise of any power granted hereby
or thereby or by law and (ii) direct the Collateral Agent to exercise in respect
of the Collateral, in addition to the other rights and remedies provided for
herein and in the Collateral Documents or otherwise available to the
Administrative Agent, the Collateral Agent, or the Lenders, any or all rights
and remedies of a secured party upon default under the Uniform Commercial Code
in effect in the State of New York and in effect in any other jurisdiction in
which Collateral is located at that time. No right, power or remedy conferred by
this Agreement or by any other Loan Document, upon the Administrative Agent, the
Collateral Agent or the Lenders shall be exclusive of any other right, power or
remedy referred to herein or therein or now or hereafter available at law, in
equity, by statute or otherwise. No exercise of any one right or remedy shall be
deemed a waiver of other rights or remedies. The rights and remedies of the
Administrative Agent, the Collateral Agent and the Lenders specified herein are
for the sole and exclusive benefit, use and protection of the Administrative
Agent, the Collateral Agent and the Lenders, and the Administrative Agent, the
Collateral Agent and the Lenders shall be entitled, but shall have no duty or
obligation, to exercise or to refrain from exercising any right or remedy
reserved to the Administrative Agent, the Collateral Agent or the Lenders
hereunder.
ARTICLE VIII. AGREEMENT AMONG LENDERS.
8.1 Appointment and Grant of Authority. Each of the Lenders hereby appoints
CSFB and CSFB hereby agrees to act as the Administrative Agent and as the
Collateral Agent (for purposes of this Article 8, collectively, the "Agents"),
under this Agreement and the other
44
Loan Documents. As each such Agent, CSFB shall have and may exercise such powers
under this Agreement and the other Loan Documents as are specifically delegated
to each such Agent, by the terms hereto or thereof, together with such other
powers as are incidental thereto. Without limiting the foregoing, the Agents, on
behalf of the Lenders, are authorized to execute all of the Loan Documents
(other than this Agreement) and to accept all of the Loan Documents and all
other agreements, documents or instruments reasonably required to carry out the
intent of the parties to this Agreement.
8.2 Delegation of Duties. Each Agent may perform any of its duties
hereunder by or through agents or employees (provided such delegation does not
constitute a relinquishment of duties as the applicable Agent hereunder) and,
subject to Sections 8.7 and 9.2 hereof, shall be entitled to engage and pay for
the advice or services of any attorneys, accountants, or other experts
concerning all matters pertaining to duties hereunder and to rely upon any
advice so obtained.
8.3 Reliance by Administrative Agent on Lenders for Funding. Unless the
Administrative Agent shall have received notice from a Lender prior to any
Borrowing Date that such Lender will not make available to the Administrative
Agent such Lender's portion of net disbursements of Loans, the Administrative
Agent may assume that such Lender has made such portion available to the
Administrative Agent and the Administrative Agent may, in reliance upon such
assumption, make Loans to the Borrower. If and to the extent that such Lender
has not made such portion available to the Administrative Agent on or prior to
any Borrowing Date, such Lender and the Borrower severally agree to repay to the
Administrative Agent immediately upon demand, in immediately available funds,
such unpaid amount, together with interest thereon for each day from the
applicable Borrowing Date until such amount is repaid to the Administrative
Agent, at (i) in the case of the Borrower, at the rate of interest then in
effect for such Loan and (ii) in the case of such Lender, at the Federal Funds
Effective Rate for the first three days and the Adjusted Base Rate thereafter.
If such Lender shall repay to the Administrative Agent such corresponding
amount, such amount shall constitute a Loan made by such Lender for purposes of
this Agreement. The failure by any Lender to pay its portion of a Loan made by
the Administrative Agent shall not relieve any other Lender of the obligation to
pay its portion of net disbursements of Loans on any Borrowing Date, but no
Lender shall be responsible for the failure of any other Lender to make its net
share of Loans to be made by such other Lender on such Borrowing Date.
8.4 Non-Reliance on Agents. Each Lender agrees that it has, independently
and without reliance on either Agent, based on such documents and information as
it has deemed appropriate, made its own credit analysis and evaluation of the
Borrower and its operations and decision to enter into this Agreement and that
it will, independently and without reliance upon either Agent, and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own analysis and decisions in taking or not taking action under this
Agreement. Except as otherwise provided herein, neither Agent shall have any
duty to keep the Lenders informed as to the performance or observance by the
Borrower of this Agreement or any other document or instrument referred to or
provided for herein or to inspect the properties or books of the Borrower.
Neither Agent, in the absence of gross negligence or willful misconduct, shall
be liable to any Lender for its failure to relay or furnish to the Lender any
information.
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8.5 Responsibility of Agents and Other Matters.
8.5a Ministerial Nature of Duties. As among the Lenders and each Agent,
such Agent shall have no duties or responsibilities except those expressly set
forth in this Agreement or in the other Loan Documents, and those duties and
responsibilities shall be subject to the limitations and qualifications set
forth in this Article VIII. The duties of each Agent shall be ministerial and
administrative in nature.
8.5b Limitation of Liability. As among the Lenders and each Agent, neither
Agent nor any of its respective directors, officers, employees or agents shall
be liable for any action taken or omitted (whether or not such action taken or
omitted is within or without such Agent's responsibilities and duties expressly
set forth in this Agreement) under or in connection with this Agreement or any
other instrument or document in connection herewith except for gross negligence
or willful misconduct. Without limiting the foregoing, neither Agent nor any of
its respective directors, officers or employees shall be responsible for, or
have any duty to examine (i) the genuineness, execution, validity,
effectiveness, enforceability, value or sufficiency of (A) this Agreement or any
of the other Loan Documents or (B) any other document or instrument furnished
pursuant to or in connection with this Agreement, (ii) the collectibility of any
amounts owed by the Borrower to the Lenders, (iii) the truthfulness of any
recitals, statements, representations or warranties made to such Agent or the
Lenders in connection with this Agreement, (iv) any failure of any party to this
Agreement to receive any communication sent, including any telegram, teletype,
facsimile transmission or telephone message or any writing, application, notice,
report, statement, certificate, resolution, request, order, consent letter or
other instrument or paper or communication entrusted to the mails or to a
delivery service, or (v) the assets, liabilities, financial condition, results
of operations, business or prospects, or creditworthiness of the Borrower.
8.5c Reliance. Each Agent shall be entitled to act, and shall be fully
protected in acting upon, any telegram, teletype, facsimile transmission or any
writing, application, notice, report, statement, certificate, resolution,
request, order, consent, letter or other instrument, paper or communication
believed by such Agent in good faith to be genuine and correct and to have been
signed or sent or made by a proper Person. Each Agent may consult counsel and
shall be entitled to act, and shall be fully protected in taking or refraining
from taking any action in good faith, in accordance with advice given by
counsel. Each Agent may employ agents and attorneys-in-fact and shall not be
liable for the default or misconduct of any such agents or attorneys-in-fact
selected by such Agent with reasonable care. Neither Agent shall be bound to
ascertain or inquire as to the performance or observance of any of the terms,
provisions or conditions of this Agreement or any of the other Loan Documents on
the part of the Borrower or any other party thereto.
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8.6 Actions in Discretion of Agents; Instructions from the Lenders. Each
Agent agrees, upon the written request of the Required Lenders, to take or
refrain from taking any action of the type specified as being within such
Agent's rights, powers or discretion herein or under any Loan Documents,
provided that neither Agent shall be required to take any action which exposes
such Agent to personal liability or which is contrary to this Agreement or any
other Loan Document or applicable law. In the absence of a request by the
Required Lenders, each Agent shall have authority but is under no duty, in its
sole discretion, to take or not to take any such action, unless this Agreement
specifically requires the consent of the Required Lenders or all of the Lenders.
Any action taken or failure to act pursuant to such instructions or discretion
shall be binding on the Lenders, subject to Section 8.5b hereof. Subject to the
provisions of Section 8.5b, no Lender shall have any right of action whatsoever
against either Agent as a result of such Agent acting or refraining from acting
hereunder in accordance with the instructions of the Required Lenders.
8.7 Indemnification. To the extent the Borrower does not reimburse and save
harmless each Agent according to the terms hereof for and from all costs,
expenses and disbursements in connection herewith, such costs, expenses and
disbursements shall be borne by the Lenders ratably in accordance with their
respective Loans. Each Lender hereby agrees on such basis (i) to reimburse each
Agent for such Lender's pro rata share of all such reasonable costs, expenses
and disbursements on request and (ii) to the extent of each such Lender's pro
rata share, to indemnify and save harmless each Agent against and from any and
all losses, obligations, penalties, actions, judgments and suits and other
costs, expenses and disbursements of any kind or nature whatsoever which may be
imposed on, incurred by or asserted against such Agent, other than as a
consequence of gross negligence or willful misconduct on the part of such Agent,
arising out of or in connection with (i) this Agreement, the other Loan
Documents or any other agreement, instrument or document executed or delivered
in connection herewith or therewith, or (ii) any action taken (or not taken) at
the request of the Required Lenders or all of the Lenders hereunder, as the case
may be, including without limitation the reasonable costs, expenses and
disbursements in connection with defending themselves against any claim or
liability, or answering any subpoena or other process related to the exercise or
performance of any of their powers or duties under this Agreement, the other
Loan Documents, or any of the other agreements, instruments or documents
executed or delivered in connection herewith or the taking or refraining from
any action under or in connection with any of the foregoing.
8.8 Administrative Agent's Rights as a Lender. With respect to the
Administrative Agent as a Lender hereunder, any Loans of the Administrative
Agent under this Agreement or the other Loan Documents, and any other amounts
due to the Administrative Agent under this Agreement, the Administrative Agent
shall have the same rights and powers, duties and obligations under this
Agreement, the other Loan Documents or other agreement, instrument or document
as any Lender and may exercise such rights and powers and shall perform such
duties and fulfill such obligations as though it were not the Administrative
Agent. The Administrative Agent may accept deposits from, lend money to, and
generally engage, and continue to engage, in any kind of business with the
Borrower as if it were not the Administrative Agent.
8.9 Payment to Lenders. Except as otherwise set forth in Section 8.3
hereof, promptly after receipt from the Borrower of any principal repayment of
the Loans, interest due on the Loans and any other amounts due under any of the
Loan Documents (except for such
47
amounts which are payable for the sole account of any Lender or either Agent),
the Agents shall distribute to each Lender that Lender's share of the funds so
received.
8.10 Pro Rata Sharing. Any sums obtained from the Borrower by any Lender by
reason of the exercise of its rights of set-off, banker's lien or in collection
shall be shared (net of costs) pro rata among the Lenders on the basis of the
principal amount of Loans. Nothing in this Section 8.10 shall be deemed to
require the sharing among the Lenders of collections specifically relating to,
or of the proceeds of any collateral securing, any other Indebtedness of the
Borrower to any Lender.
8.11 Successor Agent.
8.11a Resignation of Agents. Either Agent may resign as Agent hereunder by
giving 30 days' prior written notice to the Lenders and the Borrower. If such
notice shall be given, the Required Lenders shall appoint a successor agent for
the Lenders, during such 30 day period, which successor agent shall be
reasonably satisfactory to the Borrower, to serve as agent hereunder and under
the other applicable Loan Documents. If at the end of such 30 day period, the
Lenders have not appointed such a successor, such Agent shall use reasonable
commercial efforts to procure a successor reasonably satisfactory to the Lenders
and the Borrower, to serve as agent for the Lenders hereunder and under the
other applicable Loan Documents. Any such successor agent shall succeed to the
rights, powers and duties of such Agent.
8.11b Rights of the Former Agents. Upon the appointment of such successor
agent or upon the expiration of such 30 day period (or any longer period to
which such Agent has agreed), the rights of such former Agent, its powers and
duties as an Agent shall be terminated, without any other or further act or deed
on the part of such former Agent or any of the parties to this Agreement. After
any retiring Agent's resignation hereunder as an Agent hereunder, the provisions
of this Article VIII shall inure to the benefit of such retiring Agent as to any
actions taken or omitted to be taken by it while it was Agent under this
Agreement.
8.12 Notice of Default. Neither Agent shall be deemed to have knowledge or
notice of the occurrence of an Event of Default unless such Agent has received
written notice from a Lender or the Borrower referring to this Agreement,
describing such Event of Default and stating that such notice is a "notice of
default".
8.13 Notices. Each Agent shall promptly send to each Lender notice of all
information or notices received from the Borrower pursuant to the provisions of
this Agreement or the other Loan Documents promptly upon receipt thereof.
8.14 Holders of Loans. Each Agent may deem and treat any payee of any
promissory note as the owner thereof for all purposes hereof unless and until
written notice of the assignment or transfer thereof shall have been filed with
the Administrative Agent. Any request, authority or consent of any person who at
the time of making such request or giving such authority or consent is the
holder of any promissory note shall be conclusive and binding on any subsequent
holder, transferee or assignee of such promissory note or of any promissory note
or notes issued in exchange therefor.
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8.15 Calculations. In the absence of gross negligence or willful
misconduct, neither Agent shall be liable for any error in computing the amount
payable to any Lender whether in respect of the Loans, Fees or any other amounts
due to the Lenders under this Agreement. In the event an error in computing any
amount payable to any Lender is made, the applicable Agent, the Borrower and
each affected Person shall, forthwith upon discovery of such error, make such
adjustments as shall be required to correct such error, and any compensation
therefor will be calculated pursuant to the rules on Interbank Compensation.
8.16 Beneficiaries. Except as expressly provided herein, the provisions of
this Article VIII are solely for the benefit of each Agent and the Lenders, and
the Borrower shall not have any rights to rely on or enforce any of the
provisions hereof. In performing its functions and duties under this Agreement,
each Agent shall act solely as agent of the Lenders and does not assume and
shall not be deemed to have assumed any obligation toward or relationship of
agency or trust with or for the Borrower.
ARTICLE IX. GENERAL PROVISIONS
9.1 Amendments and Waivers. Subject to the remaining provisions of this
Section 9.1, the Administrative Agent, the Lenders and the Borrower may, from
time to time, enter into amendments or modifications to and of this Agreement or
the other Loan Documents and the Lenders or the Required Lenders, as the case
may be, may, from time to time, waive compliance with a provision thereof. No
such amendment, modification or waiver shall be effective unless it is in
writing and is signed by the Required Lenders (or the Administrative Agent with
the written consent of the Required Lenders), and then such amendment,
modification or waiver shall be effective only for the specific instance and for
the specific purpose for which it is given; provided, however, that no such
amendment, modification or waiver shall (i) subject any Lender to any additional
obligations hereunder, (ii) decrease the aggregate or individual unpaid
principal amount of Loans, or forgive the payment of the principal or interest
(other than post-default interest to the extent accruing at a rate in excess of
the Base Rate Option or Euro-Rate Option) payable on Loans, of any Lender or
postpone any date fixed for the payment thereof, (iii) decrease the interest
rate relating to any Loan (other than the post-default interest rate to the
extent in excess of the Base Rate Option or Euro-Rate Option) or (iv) decrease,
or forgive the payment of, any fee payable to any Lender or postpone any date
fixed for the payment thereof, in each case without the consent of each Lender
affected thereby; provided further, however, that no amendment, modification or
waiver, unless in writing and signed by all of the Lenders (or the
Administrative Agent with the written consent of all of the Lenders), shall do
any of the following:
(A) amend the definition of the term "Required Lenders";
(B) release the security interest in all or substantially all of the
Collateral; or
(C) amend or waive the provisions of this Section 9.1 or the proviso
in Section 9.5;
provided, further that no such amendment, modification or waiver shall amend,
modify or otherwise affect the rights or duties of the Administrative Agent or
the Collateral Agent
49
hereunder or under any other Loan Document without the prior written consent of
the Administrative Agent or the Collateral Agent, as applicable. Any such
amendment, modification or waiver shall apply equally to the Borrower and each
of the Lenders and shall be binding upon the Borrower, the Lenders, the
Administrative Agent, the Collateral Agent and all successors and assignees
thereof. In the case of any waiver, the Borrower, the Lenders, the
Administrative Agent and the Collateral Agent shall be restored to their former
positions and rights, and any Event of Default waived shall be deemed to be
cured and not continuing, but no such waiver shall extend to any subsequent or
other Event of Default, or impair any right consequent thereon.
9.2 Expenses. The Borrower shall pay:
(i) all reasonable costs and expenses of the Administrative Agent, the
Collateral Agent (including without limitation the reasonable fees and
disbursements of the Administrative Agent's special counsel, Xxxxx
Xxxxxxxxxx LLP and any reasonable accounting, consulting, brokerage or
other similar professional fees or expenses, and any reasonable fees or
expenses associated with travel or other costs relating to any appraisals
or examinations conducted in connection with the Loans) incurred in
connection with the preparation, negotiation, execution and delivery of
this Agreement and the other Loan Documents and any and all other documents
and instruments prepared in connection herewith, including but not limited
to all amendments, extensions, modifications, replacements, waivers,
consents and other documents and instruments prepared or entered into from
time to time;
(ii) all costs and expenses of the Administrative Agent, the
Collateral Agent and the Lenders (including without limitation the fees and
disbursements of the Administrative Agent's and the Lenders' counsels,
which may be in house counsel) in connection with (A) the enforcement of
this Agreement and the other Loan Documents (or the preservation of any
rights thereunder) arising pursuant to a breach by the Borrower of any of
the terms, conditions, representations, warranties or covenants of any Loan
Document or otherwise arising after the occurrence of an Event of Default,
and (B) defending or prosecuting any actions, suits or proceedings relating
to any of the Loan Documents.
All of such costs and expenses shall be payable by the Borrower to the Lenders,
the Administrative Agent or the Collateral Agent, as the case may be, upon
demand or as otherwise agreed upon by the Lenders, the Administrative Agent or
the Collateral Agent and the Borrower, and shall constitute Bank Indebtedness
under this Agreement. The Borrower further agrees to pay, and save the
Administrative Agent, the Collateral Agent and the Lenders harmless from any and
all liability for, any stamp or other taxes which may be payable with respect to
the execution or delivery of this Agreement. The Borrower's obligation to pay
such costs and expenses shall survive the termination of this Agreement and the
repayment of all other Bank Indebtedness.
9.3 Notices. All notices, requests and demands to or upon the respective
parties hereto to be effective shall be in writing (including by telecopy), and,
unless otherwise expressly provided herein, shall be deemed to have been duly
given or made on the earlier of (i) when delivered, or (ii) three Business Days
after being deposited in the mail, postage prepaid, or, in the case of telecopy
notice, when received, addressed as follows in the case of the Borrower and the
50
Administrative Agent, and as set forth in an administrative questionnaire
delivered to the Administrative Agent in the case of the Lenders, or to such
other address as may be hereafter notified by the respective parties hereto:
Borrower: NUI Utilities, Inc.
0000 Xxxxxx Xxxxxx
Xxxxx, XX 00000
Attention: Treasurer
Telecopier: (000) 000-0000
Telephone: (000) 000-0000x0000
with a copy to: Xxxxxx Brazil, Esq.
White & Case LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
The Administrative Agent: Credit Suisse First Boston
00 Xxxxxxx Xxxxxx
XXX-0
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxx/Agency Department
Manager
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
Electronic mail and intranet websites may be used only to distribute
routine information such as financial statements and other information as
provided in Section 4.2, and to distribute Loan Documents for execution by the
parties thereto, and may not be used for any other purpose, except as agreed to
by the Administrative Agent and the Borrower.
9.4 Tax Withholding.
(a) Any and all payments by or on account of any obligation of the Borrower
hereunder shall be made free and clear of and without deduction for any
Indemnified Taxes or Other Taxes; provided that if the Borrower shall be
required to deduct any Indemnified Taxes or Other Taxes from such payments, then
(i) the sum payable shall be increased as necessary so that after making all
required deductions (including deductions applicable to additional sums payable
under this Section 9.4) the Administrative Agent, the Collateral Agent or any
Lender receives an amount equal to the sum it would have received had no such
deductions been made, (ii) the Borrower shall make such deductions and (iii) the
Borrower shall pay the full amount deducted to the relevant Governmental
Authority in accordance with applicable law.
(b) In addition, the Borrower shall pay any Other Taxes to the relevant
Governmental Authority in accordance with applicable law.
51
(c) The Borrower shall indemnify the Administrative Agent, the Collateral
Agent and each Lender within 10 days after written demand therefor, for the full
amount of any Indemnified Taxes or Other Taxes paid by the Administrative Agent,
the Collateral Agent or such Lender, as the case may be, on or with respect to
any payment by or on account of any obligation of the Borrower hereunder
(including Indemnified Taxes or Other Taxes imposed or asserted on or
attributable to amounts payable under this Section 9.4) and any penalties,
interest and reasonable expenses arising therefrom or with respect thereto,
whether or not such Indemnified Taxes or Other Taxes were correctly or legally
imposed or asserted by the relevant Governmental Authority. The Administrative
Agent, the Collateral Agent and each Lender will, at the Borrower's expense,
cooperate in good faith with the Borrower in any contest with a Governmental
Authority as to whether or not such Indemnified Taxes, Other Taxes, penalties,
interest or expenses were correctly or legally imposed or asserted in the event
such Indemnified Taxes, Other Taxes, penalties, interest or expenses were in the
good faith judgment of the Administrative Agent, the Collateral Agent or such
Lender, as the case may be, not legal or not correctly asserted. If in
connection with such contest such Indemnified Taxes, Other Taxes, penalties,
interest or expenses are refunded to the Administrative Agent, the Collateral
Agent or such Lender, the Administrative Agent, the Collateral Agent or such
Lender will pay such refund to the Borrower to the extent the Administrative
Agent, the Collateral Agent or such Lender determines in its sole discretion,
but acting in good faith, that such refund is attributable to any Indemnified
Taxes, Other Taxes, penalties, interest or expenses paid by the Borrower and to
the extent the Borrower has previously indemnified the Administrative Agent, the
Collateral Agent or such Lender therefor pursuant to this Section 9.4, net of
expenses and without interest except any interest (net of taxes) included in
such refund. The Borrower shall return such refund (together with any taxes,
penalties or other charges) in the event the Administrative Agent, the
Collateral Agent or such Lender is required to repay such refund.
Notwithstanding the foregoing, nothing in this Section 9.4 shall be construed to
(i) entitle the Borrower or any other Persons to any information determined by
the Administrative Agent, the Collateral Agent or any Lender in each case, in
its sole discretion, but acting in good faith, to be confidential or proprietary
information of the Administrative Agent, the Collateral Agent or any Lender, to
any tax or financial information of the Administrative Agent, the Collateral
Agent or any Lender, or to inspect or review any books and records of the
Administrative Agent, the Collateral Agent or any Lender or (ii) interfere with
the rights of the Administrative Agent, the Collateral Agent or any Lender to
conduct its fiscal or tax affairs in such matter as it deems fit. A certificate
as to the amount of any payment or liability provided for hereunder delivered to
the Borrower by a Lender or by the Administrative Agent or the Collateral Agent
on its own behalf or on behalf of a Lender, shall be conclusive absent manifest
error.
(d) As soon as practicable after any payment of Indemnified Taxes or Other
Taxes by the Borrower to a Governmental Authority, the Borrower shall deliver to
the Administrative Agent the original or a certified copy, to the extent
reasonably available, of a receipt issued by such Governmental Authority
evidencing such payment, a copy of the return reporting such payment or other
evidence of such payment reasonably satisfactory to the Administrative Agent.
(e) Any Foreign Lender that is entitled to an exemption from or reduction
of withholding tax under the law of the jurisdiction in which the Borrower is
located, or any treaty to which such jurisdiction is a party, with respect to
payments under this Agreement shall deliver
52
to the Borrower (with a copy to the Administrative Agent), at the time or times
prescribed by applicable law, such properly completed and executed documentation
prescribed by applicable law or reasonably requested by the Borrower as will
permit such payments to be made without withholding or at a reduced rate. Each
Lender that is not a United States person (as such term is defined in Section
7701(a)(30) of the Code) agrees to deliver to the Borrower and the
Administrative Agent on or prior to the Effective Date, or in the case of a
Lender that is an assignee or transferee of an interest under this Agreement
(unless the respective Lender was already a Lender hereunder immediately prior
to such assignment or transfer), on the date of such assignment or transfer to
such Lender, (i) two accurate and complete original signed copies of Internal
Revenue Service Form W-8ECI or Form W-8BEN (with respect to a complete exemption
under an income tax treaty) (or successor forms) certifying to such Lender's
entitlement as of such date to a complete exemption from United States
withholding tax with respect to payments to be made under this Agreement and
under any Note, or (ii) if the Lender is not a "bank" within the meaning of
Section 881(c)(3)(A) of the Code and cannot deliver either Internal Revenue
Service Form W-8ECI or Form W-8BEN (with respect to a complete exemption under
an income tax treaty) pursuant to clause (i) above, (x) a certificate
substantially in the form of Exhibit D (any such certificate, a "Section
9.4(e)(ii) Certificate") and (y) two accurate and complete original signed
copies of Internal Revenue Service Form W-8BEN (with respect to the portfolio
interest exemption) (or successor form) certifying to such Lender's entitlement
as of such date to a complete exemption from United States withholding tax with
respect to payments of interest to be made under this Agreement and under any
Note. In addition, each Lender agrees that from time to time after the Effective
Date, when a lapse in time or change in circumstances renders the previous
certification obsolete or inaccurate in any material respect, it will deliver to
the Borrower or the Administrative Agent two new accurate and complete original
signed copies of Internal Revenue Service Form W-8ECI, Form W-8BEN (with respect
to the benefits of any income tax treaty), or Form W-8BEN (with respect to the
portfolio interest exemption) and a Section 9.4(e)(ii) Certificate, as the case
may be, and such other forms as may be required in order to confirm or establish
the entitlement of such Lender to a continued exemption from or reduction in
United States withholding tax with respect to payments under this Agreement and
any Note, or it shall immediately notify the Borrower and the Administrative
Agent of its inability to deliver any such Form or Certificate, in which case
such Lender shall not be required to deliver any such Form or Certificate
pursuant to this Section 9.4(e).
(f) If the Administrative Agent, the Collateral Agent or a Lender
determines, in its sole discretion, but acting in good faith, that it has
received a refund of any Taxes or Other Taxes as to which it has been
indemnified by the Borrower or with respect to which the Borrower has paid
additional amounts pursuant to this Section 9.4, it shall pay over such refund
to the Borrower (but only to the extent of indemnity payments made, or
additional amounts paid, by the Borrower under this Section 9.4 with respect to
the Taxes or Other Taxes giving rise to such refund), net of all out-of-pocket
expenses of the Administrative Agent, the Collateral Agent, as applicable, or
such Lender and without interest (other than any interest paid by the relevant
Governmental Authority with respect to such refund); provided, that the
Borrower, upon the request of the Administrative Agent, the Collateral Agent or
such Lender, agrees to repay the amount paid over to the Borrower (plus any
penalties, interest or other charges imposed by the relevant Governmental
Authority) to the Administrative Agent, the Collateral Agent, as applicable, or
such Lender in the event the Administrative Agent, the Collateral Agent or such
53
Lender is required to repay such refund to such Governmental Authority.
This Section 9.4 shall not be construed to require the Administrative Agent, the
Collateral Agent or any Lender to make available its tax returns (or any other
information relating to its taxes which it deems confidential) to the Borrower
or any other Person.
9.5 Successors and Assigns. This Agreement shall be binding upon the
Borrower, the Administrative Agent, the Collateral Agent and the Lenders and
their respective successors and assigns, and shall inure to the benefit of the
Borrower, the Administrative Agent, the Collateral Agent and the Lenders and the
successors and assigns of the Administrative Agent, the Collateral Agent and the
Lenders; provided, that the Borrower shall not assign its rights or duties
hereunder or under any of the other Loan Documents without the prior written
consent of the Lenders.
9.6 Assignments and Participations.
9.6a Assignments. Subject to the remaining provisions of this Subsection
9.6a, any Lender (a "Transferor Lender"), at any time, in the ordinary course of
its business and in accordance with applicable law, may sell to one or more
financial institutions (individually a "Purchasing Lender"), a portion or all of
its rights and obligations under this Agreement and the other Loan Documents
then held by it, pursuant to an Assignment and Assumption Agreement executed by
the Transferor Lender, such Purchasing Lender and the Administrative Agent,
subject, however to the following requirements:
(i) each such assignment must be in a minimum amount of $1,000,000 in
the aggregate, unless otherwise consented to by the Administrative Agent
(in its sole discretion), or, if in excess thereof, in integral multiples
of $1,000,000, unless such assignment shall be in the full amount of such
Loans;
(ii) the Administrative Agent must give its prior consent to any such
assignment which consent shall not be unreasonably withheld; and
(iii) subject to the first sentence of the succeeding paragraph, the
Transferor Lender shall pay to the Administrative Agent a $3,500 service
fee for each such transfer at the time of each such transfer, for its
acceptance and recording in the Register.
The parties to each Assignment and Assumption Agreement shall (y)
electronically execute and deliver to the Administrative Agent an Assignment and
Assumption Agreement via an electronic settlement system acceptable to the
Administrative Agent (which initially shall be ClearPar, LLC) or (z) manually
execute and deliver to the Administrative Agent an Assignment and Assumption
Agreement; provided that if the parties to such Assignment and Assumption
Agreement use the method provided in clause (y), the Transferor Lender will not
be required to pay the service fee described in clause (iii) above. Upon the
execution, delivery, acceptance and recording of any such Assignment and
Assumption Agreement, from and after the Transfer Effective Date determined
pursuant to such Assignment and Assumption Agreement, all parties hereto agree
that (a) the Purchasing Lender thereunder shall be a party hereto as a Lender
and, to the extent provided in such Assignment and Assumption Agreement, shall
have the rights and obligations of a Lender hereunder as set forth therein, and
(b) the Transferor Lender thereunder
54
shall, to the extent provided in such Assignment and Assumption Agreement, be
released from its obligations as a Lender under this Agreement. Such Assignment
and Assumption Agreement shall be deemed to amend this Agreement (without
further action) to the extent, and only to the extent, necessary to reflect the
addition of such Purchasing Lender as a Lender.
In addition to the assignments permitted above, (i) any Lender may assign
and pledge all or any portion of its Loans to any Federal Reserve Bank as
collateral security pursuant to Regulation A of the Board of Governors of the
Federal Reserve System and any Operating Circular issued by such Federal Reserve
Bank and (ii) any Lender that is a fund may grant a security interest in all or
any portion of its rights under this Agreement to any lender or any trustee for,
or any other representative of, holders of obligations owed or securities issued
by such fund as security for such obligations or securities or any institutional
custodian for such fund or for such lender; provided that, in each case, no such
assignment or grant of security interest shall release the assigning Lender from
its obligations and duties hereunder.
9.6b Assignment Register. The Administrative Agent shall maintain, at its
address referred to in Subsection 9.3, a copy of each Assignment and Assumption
Agreement delivered to it and a register (the "Register") for the recordation of
the names and addresses of the Lenders and the amount of the Loans owing to each
Lender from time to time. The entries in the Register shall be conclusive, in
the absence of manifest error, and the Borrower, the Administrative Agent and
the Lenders may treat each Person whose name is recorded in the Register as the
owner of the Loans recorded therein for all purposes of this Agreement. The
Register shall be available at the office of the Administrative Agent set forth
in Subsection 9.3 for inspection by the Borrower or any Lender at any reasonable
time and from time to time upon reasonable prior notice.
9.6c Participations. Each Lender, in the ordinary course of its business
and in accordance with applicable law, may sell to one or more Participants a
participating interest in any Loan owing to such Lender and the interest of such
Lender in any Loans. In the event of any such sale by a Lender of a
participating interest to a Participant, such Lender's obligations under this
Agreement to the other parties to this Agreement shall remain unchanged, such
Lender shall remain solely responsible for the performance thereof, such Lender
shall remain the holder of the Loans for all purposes under this Agreement and
the Borrower, the other Lenders, the Administrative Agent and the Collateral
Agent shall continue to deal solely and directly with such Lender in connection
with such Lender's rights and obligations under this Agreement and the other
Loan Documents to which it is a party and the Participants shall have voting
rights only with respect to matters described in items (B), and (C) of Section
9.l.
9.7 Severability. Any provision of this Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining portions hereof or affecting the validity or enforceability of such
provision in any other jurisdiction.
9.8 Survival. All representations, warranties, covenants and agreements of
the Borrower contained herein in the Loan Documents or made in writing in
connection herewith or therewith shall survive the execution of such Loan
Documents and shall continue in full force and effect so long as the Borrower
may borrow hereunder and so long thereafter until payment in full of all the
Loans and the Bank Indebtedness.
55
9.9 Governing Law. This Agreement and each other Loan Document shall be a
contract made under, governed by and construed in accordance with the laws of
the State of New York without reference to the provision thereof regarding
conflicts of law except where such law is superseded by applicable Federal law.
9.10 Non-Business Days. Except as otherwise specifically required pursuant
to the terms of this Agreement, whenever any payment hereunder or under the
Loans is due and payable on a day which is not a Business Day, such payment may
be made on the next succeeding Business Day.
9.11 Integration. This Agreement constitutes the entire agreement between
the parties relating to this financing transaction and it supersedes all prior
understandings and agreements, whether written or oral, between the parties
hereto concerning the subject matter of this Agreement.
9.12 Headings. Article, Section and other headings used in this Agreement
are intended for convenience only and shall not affect the meaning or
construction of this Agreement.
9.13 Set-Off. The Borrower hereby authorizes each Lender in case of an
Event of Default, at such Lender's option, at any time and from time to time, to
apply, at the discretion of such Lender, to the payment of Bank Indebtedness,
any and all such property, credits, securities or money now or hereafter in the
hands of such Lender belonging or owed to the Borrower. Nothing herein shall
restrict any Lender's ability to set off any property, credits, securities or
money of the Borrower which may at any time be delivered to, or be in possession
or owed to, any Lender in any capacity whatsoever to satisfy an independent
obligation of the Borrower to the Lender.
9.14 Consent to Forum. The parties hereto each hereby irrevocably consents
to the nonexclusive jurisdiction of the Courts of the State of New York or any
Federal court sitting therein in any action or proceeding arising out of or
relating to this Agreement or the other Loan Documents, and each party agrees
that a summons and complaint commencing an action or proceeding in either of
such courts shall be properly served and shall confer personal jurisdiction if
served personally or by certified mail to the party at its respective address
set forth in Section 9.3, or as otherwise provided under the laws of the State
of New York. Further, the parties hereby specifically waive and hereby
acknowledge that the parties are estopped from raising any claim that any such
court lacks personal jurisdiction over such party so as to prohibit either such
court from adjudicating any issues raised in a complaint filed with any such
court against the Borrower or the Lenders concerning this Agreement.
9.15 Waiver of Jury Trial. Each of the Administrative Agent, the Collateral
Agent, the Lenders and the Borrower hereby knowingly, voluntarily and
intentionally waives any rights such party may have to a trial by jury in
respect of any litigation based hereon, or arising out of, under, or in
connection with, this Agreement or any other Loan Document, or any course of
conduct, course of dealing, statements (whether verbal or written) or actions of
the Administrative Agent, the Collateral Agent, the Lenders or the Borrower
relating hereto or thereto. Except as prohibited by law, the Borrower hereby
waives any right it may have to claim
56
or recover in any litigation any special, exemplary, punitive or consequential
damages or any damages other than, or in addition to, actual damages. The
Borrower acknowledges and agrees that it has received full and sufficient
consideration for this provision (and each other provision of each other Loan
Document to which it is a party) and that this provision is a material
inducement for the Lenders to enter into this Agreement and each such other Loan
Document.
9.16 Indemnity. The Borrower hereby agrees to indemnify the Administrative
Agent, the Collateral Agent, the Lenders and each of their respective directors,
officers, employees, attorneys, agents and Affiliates against, and hold each of
them harmless from, any loss, liabilities, damages, claims, and reasonable costs
and expenses, joint or several (including reasonable attorneys' fees and
disbursements reasonably incurred by any such Person in connection with the
preparation for or defense of any pending or threatened claim, action or
proceeding), suffered or incurred by any of them under any applicable federal or
state law or otherwise caused by, arising out of, resulting from or in any
manner connected with, the execution, delivery and performance of each of the
Loan Documents, the Loans and any and all transactions related to or consummated
in connection with the Loans. The indemnity set forth in this Section 9.16 shall
be in addition to any other obligations or liabilities of the Borrower to the
Administrative Agent, the Collateral Agent or the Lenders, or at common law or
otherwise. The provisions of this Section 9.16 shall survive the payment of the
Bank Indebtedness and the termination of this Agreement. The foregoing
provisions of this Section 9.16 to the contrary notwithstanding, the Borrower
shall not be obligated to indemnify an indemnified Person pursuant to this
Section 9.16 for (i) any losses, liabilities, damages, claims or costs suffered
or incurred by any of them in connection with the administrative transfer of
funds in connection with this Agreement and which arise directly from the such
indemnified Person's gross negligence or willful misconduct, or (ii) any other
losses, liabilities, damages, claims, or costs which arise directly from the
such indemnified Person's gross negligence or willful misconduct. All amounts
owed pursuant to this Section 9.16 shall be part of the Bank Indebtedness.
Notwithstanding any other provision of this Section 9.16, no indemnified
Person shall be liable for any indirect, special, punitive or consequential
damages in connection with the execution, delivery and performance of each of
the Loan Documents, the Loans, any obligations hereunder or thereunder, or any
and all transactions related to or consummated in connection therewith.
9.17 Counterparts. This Agreement and any amendment, modification,
extension or renewal hereto or hereof may be executed in several counterparts
and by each party on a separate counterpart, each of which, when so executed and
delivered, shall be an original, but all of which together shall constitute but
one and the same instrument. In proving this Agreement or any amendment,
modification, extension or renewal, it shall not be necessary to produce or
account for more than one such counterpart signed by the other party against
whom enforcement is sought.
9.18 Confidentiality. (a) Each of the Lenders agrees that it will not to
disclose without the prior consent of the Borrower (other than to its directors,
employees, auditors, counsel or other professional advisors, to affiliates or to
another Lender if the Lender or such Lender's holding or parent company in its
sole discretion determines that any such party should have access to such
information, provided that such Persons shall be subject to the provisions of
57
this Section 9.18) any information with respect to the Borrower which is now or
in the future furnished pursuant to this Agreement or any Loan Document and that
it will use such information in accordance with its compliance policies,
contractual obligations and applicable law, including federal securities laws
and state securities laws; provided that any Lender may disclose any such
information (a) as has become generally available to the public, (b) as may be
required or appropriate (x) in any report, statement or testimony submitted to
any municipal, state or Federal regulatory body having or claiming to have
jurisdiction over such Lender or to the Federal Reserve Board or the Federal
Deposit Insurance Corporation or similar organizations (whether in the United
States or elsewhere) or their successors or (y) in connection with any request
or requirement of any such regulatory body, (c) as may be required or
appropriate in response to any summons or subpoena or in connection with any
litigation, provided that such Lender shall give the Borrower prior notice of
such disclosure with an opportunity to object, (d) to comply with any law,
order, regulation or ruling, which is in the opinion of such Lender's counsel,
applicable to such Lender, and (e) to any creditor or any prospective transferee
or participant in connection with any contemplated transfer or participation of
any of the obligations under this agreement or any interest therein by such
Lender; provided that such creditor or prospective transferee or participant
agrees to be bound by this Section 9.18 to the same extent as such Lender.
(b) Notwithstanding anything contained in this Agreement or in any other
document, agreement or understanding relating to the transactions contemplated
by this Agreement, each party (and each employee, representative, or other agent
of such party) is authorized to disclose to any and all persons, beginning
immediately upon commencement of discussions regarding the transactions
contemplated by this Agreement, and without limitation of any kind, the tax
treatment and tax structure of such transactions, and all materials of any kind
(including opinions or other tax analyses) that are provided to such party (or
any employee, representative, or other agent of such party) relating to such tax
treatment and tax structure. For purposes of this authorization, the "tax
treatment" of a transaction means the purported or claimed U.S. federal or state
income tax treatment of the transaction, and the "tax structure" of a
transaction means any fact that may be relevant to understanding the purported
or claimed U.S. federal or state income tax treatment of the transaction. None
of the parties to the transactions contemplated by this Agreement provides U.S.
tax advice, and each party should consult its own advisors regarding its
participation in the transactions contemplated by this Agreement.
58
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound
hereby, have caused this Credit Agreement to be executed by their respective
officers thereunto duly authorized as of the date first written above.
NUI UTILITIES, INC.
By: /s/ Xxxxxx X. Xxxxxxxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxxxxxxx
Title: President
CREDIT SUISSE FIRST BOSTON,
acting through its Cayman Islands Branch
in its capacity as the Administrative
Agent and as the Collateral Agent
hereunder
By: /s/ Xxxx X. Xxxxx
---------------------------------------
Name: Xxxx X. Xxxxx
Title: Managing Director
By:/s/ S. Xxxxxxx Xxx
---------------------------------------
Name: S. Xxxxxxx Xxx
Title: Director
IN WITNESS WHEREOF, intending to be legally bound hereby, the undersigned
Lender has caused this Credit Agreement by and among NUI UTILITIES, INC., THE
LENDERS PARTY HERETO and CREDIT SUISSE FIRST BOSTON, as Administrative Agent and
as Collateral Agent, to be executed by its duly authorized officers as of the
date first above written.
CREDIT SUISSE FIRST BOSTON,
acting through its Cayman Islands Branch
By:/s/ Xxxx X. Xxxxx
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Name: Xxxx X. Xxxxx
Title: Managing Director
By:/s/ S. Xxxxxxx Xxx
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Name: S. Xxxxxxx Xxx
Title: Director
