Exhibit 4.1
$200,000,000
AMENDED AND RESTATED
CREDIT AGREEMENT
Dated as of
January 4, 2002
By and Among
NEW JERSEY NATURAL GAS COMPANY
as the Borrower
THE FINANCIAL INSTITUTIONS PARTY HERETO
as the Lenders hereunder
and
PNC BANK, NATIONAL ASSOCIATION
as the Administrative Agent,
FLEET NATIONAL BANK
as the Long Term Syndication Agent,
BANK OF TOKYO-MITSUBISHI TRUST COMPANY
as the Short Term Syndication Agent,
BANK ONE, N.A.
as the Long Term Documentation Agent,
THE BANK OF NOVA SCOTIA
as the Short Term Documentation Agent
and
PNC CAPITAL MARKETS, INC.
as the Sole Arranger
TABLE OF CONTENTS
Page
ARTICLE I. DEFINITIONS ....................................................................................... 1
1.1 Defined Terms ..................................................................................... 1
1.2 GAAP Definitions................................................................................... 15
1.3 Other Definitional Conventions and Rules of Construction .......................................... 16
ARTICLE II. THE LOANS ......................................................................................... 16
2.1 The Revolving Credit............................................................................... 16
2.1a Short Term Revolving Credit Loans......................................................... 16
2.1b Short Term Revolving Credit Commitment of Each Lender..................................... 16
2.1c Long Term Revolving Credit Loans ......................................................... 16
2.1d Long Term Revolving Credit Commitment of Each Lender ..................................... 17
2.1e Revolving Credit Notes.................................................................... 17
2.1f Revolving Credit Loan Request ............................................................ 17
2.1g Making Revolving Credit Loans............................................................. 18
2.1h Temporary Reduction of Available Short Term Revolving Credit Commitment .................. 18
2.1i Temporary Reduction of Available Long Term Revolving Credit Commitment ................... 19
2.2 Bid Rate Loans..................................................................................... 19
2.2a Bid Rate.................................................................................. 19
2.2b Limitations on and Evidence of Bid Rate Loans ............................................ 19
2.2c Bid Rate Loan Procedure................................................................... 19
2.2d Bid Rate Loan Interest.................................................................... 22
2.2e Base Rate Option Borrowing in Event of Cancelled Bid Rate Loan Request.................... 23
2.3 Swing Line Loans................................................................................... 23
2.3a Swing Line Option ........................................................................ 23
2.3b Limitations on and Evidence of Swing Line Loans .......................................... 23
2.3c Swing Line Loan Procedure................................................................. 23
2.3d Swing Line Loan Interest.................................................................. 23
2.3e Risk Participation ....................................................................... 23
2.3f Swing Line Loan Account................................................................... 24
2.4 Interest Rates, Interest Payment and Certain Provisions Relating to Interest and Fees ............. 24
2.4a Payments of Interest...................................................................... 24
2.4b Interest Rate Options .................................................................... 24
2.4c Interest Periods; Limitations on Elections................................................ 25
2.4d Election, Conversion or Renewal of Interest Rate Options ................................. 26
2.4e Notification of Election of an Interest Rate Option ...................................... 26
2.4f Interest After Maturity................................................................... 26
2.5 Yield-Protection, Capital Adequacy and Miscellaneous Provisions Relating to Euro-Rate.............. 27
2.5a Yield Protection ......................................................................... 27
2.5b Capital Adequacy ......................................................................... 28
2.5c Euro-Rate Unascertainable................................................................. 28
2.5d Illegality................................................................................ 29
2.6 Fees .............................................................................................. 29
2.6a Closing Fee .............................................................................. 29
2.6b Short Term Facility Fee................................................................... 29
2.6c Long Term Facility Fee ................................................................... 30
2.6d Agent's Fee .............................................................................. 30
2.6e Arrangement Fee. ......................................................................... 30
2.7 Calculation of Interest and Facility Fee .......................................................... 30
2.8 Extension of Termination Dates..................................................................... 30
2.8a Extension of Termination Date............................................................. 30
2.8b Extension of Long Term Revolving Credit Termination Date ................................. 31
2.9 Substitution or Replacement of a Lender ........................................................... 31
2.10 Loan Repayment..................................................................................... 32
2.11 Additional Payments by the Borrower................................................................ 32
2.12 Voluntary Reduction of Availability................................................................ 33
2.13 Loan Account ...................................................................................... 33
2.14 Payment from Accounts Maintained by Borrower ...................................................... 33
2.15 Time, Place and Manner of Payments................................................................. 33
2.16 Increasing the Short Term Revolving Credit Commitments............................................. 34
ARTICLE III. REPRESENTATIONS AND WARRANTIES..................................................................... 34
3.1 Corporate Existence ............................................................................... 34
3.2 Corporate Authority ............................................................................... 35
3.3 Enforceability..................................................................................... 35
3.4 No Restrictions, No Default........................................................................ 35
3.5 Financial Statements .............................................................................. 35
3.6 Absence of Litigation ............................................................................. 35
3.7 Tax Returns and Payments .......................................................................... 36
3.8 Pension Plans ..................................................................................... 36
3.9 Compliance with Applicable Laws ................................................................... 36
3.10 Environmental Matters ............................................................................. 36
3.11 Governmental Approval.............................................................................. 36
3.12 Regulations T, U and X ............................................................................ 36
3.13 Investment Company Act............................................................................. 37
3.14 Public Utility Holding Company Act................................................................. 37
3.15 Disclosure ........................................................................................ 37
ARTICLE IV. AFFIRMATIVE COVENANTS.............................................................................. 37
4.1 Use of Proceeds ................................................................................... 37
4.2 Furnishing Information............................................................................. 37
4.3 Visitation......................................................................................... 39
4.4 Preservation of Existence; Qualification .......................................................... 39
4.5 Compliance with Laws and Contracts ................................................................ 39
4.6 Payment of Taxes and Other Liabilities ............................................................ 39
4.7 Insurance.......................................................................................... 40
4.8 Maintenance of Properties ......................................................................... 40
4.9 Plans and Benefit Arrangement ..................................................................... 40
4.10 Senior Debt Status ................................................................................ 40
ARTICLE V. NEGATIVE COVENANTS ................................................................................ 40
5.1 Dividends, Etc..................................................................................... 40
5.2 Encumbrances....................................................................................... 41
5.3 Indebtedness....................................................................................... 41
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5.4 Acquisitions ...................................................................................... 42
5.5 Sales of Assets ................................................................................... 42
5.6 Merger ............................................................................................ 42
5.7 Regulation T, U and X Compliance................................................................... 43
5.8 ERISA.............................................................................................. 43
ARTICLE VI. CONDITIONS PRECEDENT TO ALL DISBURSEMENTS ......................................................... 43
6.1 All Disbursements ................................................................................. 43
6.1a No Default................................................................................ 43
6.1b Representations Correct................................................................... 43
6.1c Disbursement Requirements................................................................. 44
6.2 Conditions Precedent to the Initial Disbursement Under the Commitment.............................. 44
ARTICLE VII. DEFAULTS........................................................................................... 45
7.1 Payment Default.................................................................................... 45
7.2 Nonpayment of Other Indebtedness .................................................................. 45
7.3 Insolvency......................................................................................... 46
7.3a Involuntary Proceedings................................................................... 46
7.3b Voluntary Proceedings .................................................................... 46
7.4 Termination of Existence .......................................................................... 46
7.5 Failure to Comply with Covenants .................................................................. 46
7.5a Failure to Comply with Article V Covenants and Certain Article IV Covenants .............. 46
7.5b Failure to Comply with Other Covenants ................................................... 46
7.6 Misrepresentation.................................................................................. 47
7.7 Adverse Judgments, Etc ............................................................................ 47
7.8 Invalidity or Unenforceability..................................................................... 47
7.9 ERISA.............................................................................................. 47
7.10 Change of Control ................................................................................. 47
7.10a Change of Beneficial Ownership ........................................................... 47
7.10b Change of Composition of Board of Directors............................................... 47
7.11 Consequences of an Event of Default ............................................................... 48
7.12 Remedies Upon Default.............................................................................. 48
ARTICLE VIII. AGREEMENT AMONG LENDERS............................................................................ 48
8.1 Appointment and Grant of Authority ................................................................ 48
8.2 Delegation of Duties .............................................................................. 49
8.3 Reliance by Administrative Agent on Lenders for Funding ........................................... 49
8.4 Non-Reliance on Administrative Agent............................................................... 49
8.5 Responsibility of Administrative Agent and Other Matters........................................... 49
8.5a Ministerial Nature of Duties ............................................................. 49
8.5b Limitation of Liability .................................................................. 50
8.5c Reliance ................................................................................. 50
8.6 Actions in Discretion of Administrative Agent; Instructions from the Lenders ...................... 50
8.7 Indemnification ................................................................................... 50
8.8 Administrative Agent's Rights as a Lender ......................................................... 51
8.9 Payment to Lenders................................................................................. 51
8.10 Pro Rata Sharing................................................................................... 51
8.11 Successor Administrative Agent..................................................................... 51
8.11a Resignation of Administrative Agent ...................................................... 52
8.11b Rights of the Former Administrative Agent ................................................ 52
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8.12. Notice of Default.................................................................................. 52
8.13. Notices ........................................................................................... 52
8.14. Holders of Notes................................................................................... 52
8.15. Calculations....................................................................................... 52
8.16. Beneficiaries...................................................................................... 52
ARTICLE IX. GENERAL PROVISIONS................................................................................. 53
9.1 Amendments and Waivers ............................................................................ 53
9.2 Expenses .......................................................................................... 54
9.3 Notices ........................................................................................... 54
9.3a Notice to the Borrower ................................................................... 55
9.3b Notice to the Administrative Agent ....................................................... 55
9.3c Notice to the Lenders .................................................................... 56
9.4 Tax Withholding.................................................................................... 56
9.5 Successors and Assigns ............................................................................ 56
9.6 Assignments and Participations .................................................................... 56
9.6a Assignments .............................................................................. 57
9.6b Assignment Register....................................................................... 58
9.6c Participations............................................................................ 58
9.6d Provisions for Special Purpose Funding Vehicles .......................................... 58
9.7 Severability....................................................................................... 59
9.8 Survival........................................................................................... 59
9.9 Governing Law ..................................................................................... 59
9.10 Non-Business Days ................................................................................. 59
9.11 Integration........................................................................................ 60
9.12 Headings .......................................................................................... 60
9.13 Set-Off............................................................................................ 60
9.14 Consent to Forum .................................................................................. 60
9.15 Waiver of Jury Trial .............................................................................. 60
9.16 Indemnity.......................................................................................... 60
9.17 Counterparts ...................................................................................... 61
9.18 Confidentiality ................................................................................... 61
9.19 Certain Matters Regarding the Existing Credit Agreement............................................ 61
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TABLE OF EXHIBITS
Name of Exhibit
Exhibit A - 1 - Form of Short Term Revolving Credit Note
Exhibit A - 2 - Form of Long Term Revolving Credit Note
Exhibit B - Form of Revolving Credit Loan Request
Exhibit C - Form of Bid Rate Note
Exhibit D - Form of Bid Rate Quote Request
Exhibit E - Form of Bid Rate Quote
Exhibit F - Form of Swing Line Note
Exhibit G - Form of Compliance Certificate
Exhibit H - Form of Opinion of Counsel
Exhibit I - Form of Assignment and Assumption Agreement
Schedules
3.8 Plans
5.2 Existing Encumbrances Securing Indebtedness
5.3 Existing Indebtedness
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AMENDED AND RESTATED CREDIT AGREEMENT
THIS AMENDED AND RESTATED CREDIT AGREEMENT, dated as of January 4,
2002, by and among NEW JERSEY NATURAL GAS COMPANY, a New Jersey corporation (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"), PNC BANK, NATIONAL ASSOCIATION, a national banking
association, as Administrative Agent for the Lenders (in such capacity the
"Administrative Agent"), FLEET NATIONAL BANK, a national banking association, as
Long Term Syndication Agent, BANK OF TOKYO-MITSUBISHI TRUST COMPANY, as Short
Term Syndication Agent, BANK ONE, N.A., a national banking association, as Long
Term Documentation Agent, THE BANK OF NOVA SCOTIA, as the Short Term
Documentation Agent and PNC CAPITAL MARKETS, INC. as the Sole Arranger (the
"Arranger").
WITNESSETH:
WHEREAS, the Borrower desires to obtain a commitment from each of
the Lenders pursuant to which Loans, in a maximum aggregate principal amount at
any one time outstanding not to exceed $200,000,000, consisting of (i) a
three-year revolving credit in the amount of $100,000,000 and (ii) a 364 day
revolving credit in an amount of up to $100,000,000, will be made to the
Borrower from time to time in accordance with the terms set forth below; and
WHEREAS, the Lenders are willing, on the terms and subject to the
conditions hereinafter set forth, to extend such commitments and make such Loans
to the Borrower.
NOW, THEREFORE, in consideration of mutual promises contained herein
and other valuable consideration and with the intent to be legally bound hereby,
the parties hereto agree as follows:
ARTICLE I. DEFINITIONS.
1.1 DEFINED TERMS. As used herein the following terms shall have the
meaning specified unless the context otherwise requires:
"Absolute Rate Auction" means a solicitation of Bid Rate Quotes
setting forth Bid Rate Absolute Rates pursuant to Subsection 2.2c.
"Adjusted Euro-Rate" means the interest rate relating to the
Euro-Rate Option as described in item (ii) of Subsection 2.4b.
"Administrative Agent" has the meaning set forth in the preamble to
this Agreement.
"Agent's Fees" means those certain fees for the sole account of the
Administrative Agent set forth in the Agent's Letter.
"Agent's Letter" has the meaning set forth in Section 2.6d.
"Agreement" means this Credit Agreement together with the exhibits
and schedules hereto and all extensions, renewals, amendments, modifications,
substitutions and replacements hereto and hereof.
"Applicable Euro-Rate Margin" means for each Euro-Rate Portion, a
rate per annum equal to the following annualized rates (stated in terms of basis
points) set forth under the relevant column heading below that correspond to the
ratings established by both S&P and ▇▇▇▇▇'▇ applicable to the Borrower's Senior
Ratings at such date of determination:
APPLICABLE EURO-RATE APPLICABLE EURO-RATE
SENIOR SECURED DEBT MARGIN FOR SHORT TERM MARGIN FOR LONG TERM
RATING REVOLVING CREDIT LOANS REVOLVING CREDIT LOANS
Level 1 36.5 27.5
Greater than or equal to
A+/A1
▇▇▇▇▇ ▇ ▇▇.▇ ▇▇.▇
▇-/▇▇
▇▇▇▇▇ 3 90.0 60.0
BBB/Baa2
Level 4 125.0 80.0
BBB-/Baa3 or less
provided, however, that the Applicable Euro-Rate Margin will be increased by
twelve and one-half (12.5) basis points (.125%) (i) for Short Term Revolving
Credit Loans during the period in which more than 33-1/3% of the Short Term
Revolving Credit Commitments are utilized, and (ii) for Long Term Revolving
Credit Loans during the period in which more than 33-1/3% of the Long Term
Revolving Credit Commitments are utilized. For the purposes hereof, the
Commitments shall be deemed to be utilized by the aggregate amount of Loans then
outstanding under such Commitments.
For purposes of determining the Applicable Euro-Rate Margin: (i) if one or both
of ▇▇▇▇▇'▇ or S&P shall fail to have in effect a Senior Rating for the Borrower,
then such rating agency shall be deemed to have established a Senior Rating in
▇▇▇▇▇ ▇, (▇▇) if the Senior Rating established by ▇▇▇▇▇'▇ and S&P for the
Borrower shall differ, the pricing shall be based on the higher of the two
Senior Ratings unless one of the Senior Ratings is two or more Levels lower than
the other, in which case the pricing shall be determined by reference to the
Level next above that of the lower of the two Senior Ratings; and (iii) if any
Senior Rating established by ▇▇▇▇▇'▇ or S&P for the Borrower shall be changed
(other than as a result of a change in the rating system of either ▇▇▇▇▇'▇ or
S&P), such change shall be effective as of the date on which such change is
first announced by the rating agency making such change.
"Applicable Facility Fee Rate" shall means a rate per annum equal to
the following annualized rates (stated in terms of basis points) set forth under
the relevant column heading below that correspond to the ratings established by
both S&P and ▇▇▇▇▇'▇ applicable to the Borrower's Senior Ratings at such date of
determination:
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SENIOR SECURED DEBT SHORT TERM LONG TERM
RATING FACILITY FEE FACILITY FEE
Level 1 8.5 10.0
Greater than or equal to
A+/A1
▇▇▇▇▇ ▇ ▇▇.▇ ▇▇.▇
▇-/▇▇
▇▇▇▇▇ 3 15.0 15.0
BBB/Baa2
Level 4 20.00 20.0
BBB-/Baa3 or less
For purposes of determining the Applicable Facility Fee Rate: (i) if one or both
of ▇▇▇▇▇'▇ or S&P shall fail to have in effect a Senior Rating for the Borrower,
then such rating agency shall be deemed to have established a Senior Rating in
▇▇▇▇▇ ▇, (▇▇) if the Senior Rating established by ▇▇▇▇▇'▇ and S&P for the
Borrower shall differ, the pricing shall be based on the higher of the two
Senior Ratings unless one of the Senior Ratings is two or more Levels lower than
the other, in which case the pricing shall be determined by reference to the
Level next above that of the lower of the two Senior Ratings; and (iii) if any
Senior Rating established by ▇▇▇▇▇'▇ or S&P for the Borrower shall be changed
(other than as a result of a change in the rating system of either ▇▇▇▇▇'▇ or
S&P), such change shall be effective as of the date on which such change is
first announced by the rating agency making such change.
"Arrangement Fee" means those certain fees for the account of the
Arranger set forth in the Arrangement Letter.
"Arrangement Letter" has the meaning set forth in Section 2.6e.
"Arranger" has the meaning set forth in the preamble to this
Agreement.
"Assignment and Assumption Agreement" means an Assignment and
Assumption Agreement in the form of Exhibit "I" hereto.
"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 and the Lenders shall be entitled to rely
on the incumbency certificate delivered pursuant to Section 6.2 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 each Lender a revised incumbency
certificate.
"Bank Indebtedness" means the liability of the Borrower to pay the
Loans, the Closing Fee, Facility Fee, the Agent's Fees, the Arrangement Fee,
interest thereon, and the other amounts, including, without limitation,
expenses, due hereunder.
"Base Rate" means, for any day, the higher of (i) the sum of (A) the
Federal Funds Effective Rate for such day plus (B) fifty (50) basis points
(.50%) per annum and (ii) the Prime Rate, as of such day.
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"Base Rate Option" means the interest rate option described in item
(i) of Subsection 2.4b.
"Base Rate Portion" means a Revolving Credit Loan or a portion
thereof which bears, or is to bear, interest at the Base Rate.
"Bid Rate" means the rate or rates of interest from time to time in
effect pursuant to agreements reached between the Borrower and any or all of the
Lenders pursuant to Section 2.2.
"Bid Rate Absolute Rate" has the meaning set forth in Subsection
2.2c(iii)(B)(4).
"Bid Rate Interest Period" means any individual period of one (1) to
one hundred eighty (180) days, all determined in accordance with Section 2.2,
commencing on the date of the extension of the relevant Bid Rate Loan; provided,
however, that no Bid Rate Interest Period shall extend beyond the Long Term
Revolving Credit Termination Date.
"Bid Rate Loan" means a Disbursement by any Lender pursuant to
Section 2.2.
"Bid Rate Margin" has the meaning set forth in Subsection
2.2c(iii)(B)(3).
"Bid Rate Notes" means any one or all of the several promissory
notes of the Borrower evidencing Indebtedness of the Borrower under the Bid Rate
Option, which notes are substantially in the form of Exhibit "C" to this
Agreement, together with all extensions, renewals, amendments, modifications,
substitutions and replacements thereto and thereof.
"Bid Rate Option" means the interest rate option that may be agreed
upon between the Borrower and one or more of the Lenders pursuant to Section 2.2
hereof.
"Bid Rate Quote" means each offer by a Lender to make a Bid Rate
Loan which offer is substantially in the form of Exhibit "E".
"Bid Rate Quote Request" means the written request of the Borrower
for a Bid Rate Loan delivered to the Administrative Agent in accordance with the
provisions of Subsection 2.2c, which request shall be substantially in the form
of Exhibit "D" hereto.
"Borrower" has the meaning given it in the preamble to this
Agreement.
"Borrowing Date" means the date on which any Disbursements are to be
made hereunder.
"Business Day" means, any day other than a Saturday or Sunday or a
legal holiday on which commercial banks are authorized or required to be closed
for business in Pittsburgh, Pennsylvania or New York, New York and, if the
applicable Business Day relates to any Disbursement to which the Euro-Rate
Option or the Bid Rate Margin applies, such day must also be a day on which
dealings are carried on in the London interbank market.
"Capital Adequacy Event" shall have the meaning given it in
Subsection 2.5b.
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"Capital Compensation Amount" shall have the meaning given it in
Subsection 2.5b.
"Closing" means the execution and delivery of this Agreement which
execution and delivery shall occur at the offices of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, P.C. in
Pittsburgh, Pennsylvania, at 10:00 A.M. (eastern time) on January 4, 2002, or
such other date and time as is mutually agreeable to the parties hereto.
"Closing Date" means the day on which the Closing occurs.
"Closing Fee" means the fee described in Subsection 2.6a.
"Code" means the Internal Revenue Code of 1986, as amended from time
to time, or any successor legislation thereto, together with all regulations
promulgated and rulings issued thereunder.
"Commitment" means, as to each Lender, the obligation of such Lender
to make Revolving Credit Loans available to the Borrower under such Lender's
Short Term Revolving Credit Commitment and Long Term Revolving Credit Commitment
pursuant to Subsections 2.1a and 2.1c, respectively, in an aggregate principal
amount not to exceed the sum of the amounts set opposite such Lender's name on
the signature pages hereto under the headings "Short Term Revolving Credit
Commitment" and "Long Term Revolving Credit Commitment" (as the same may be
reduced at any time or from time to time pursuant to either Subsection 2.1h,
Subsection 2.1i or Section 2.12 or increased pursuant to Section 2.16) and, as
to all Lenders, the obligation of the Lenders to make Revolving Credit Loans
available to the Borrower in an aggregate amount equal to the Commitments of all
of the Lenders.
"Compliance Certificate" means a Compliance Certificate
substantially in the form of Exhibit "G".
"Consolidated" means the consolidation of the accounts of any two or
more Persons in accordance with GAAP.
"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.
"Disbursement" means each advance of funds to the Borrower hereunder
whether as a Revolving Credit Loan, a Bid Rate Loan or a Swing Line Loan.
"Dollars" or "$" means the legal tender of the United States of
America.
"Encumbrance" means any encumbrance, mortgage, lien, charge, pledge,
security interest, priority payment, conditional sales agreement right, or other
title retention agreement right (including any right under a lease which, in
accordance with GAAP, would be treated as a capitalized item) in, upon or
against any asset of any Person.
"Environmental Law(s)" means any and all statutes, laws,
regulations, ordinances, rules, judgments, orders, decrees, permits,
concessions, grants, franchises, licenses, agreements or other governmental
restrictions of any Federal, state or local
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governmental authority relating to the environment or the release of any
materials into the environment, whether now in existence or hereafter enacted,
agreed to, issued or otherwise becoming effective.
"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 or any Subsidiary is a member,
which, in any event together with the Borrower are treated as of such date as a
single employer under Section 414 of the Code.
"Euro-Rate" means, with respect to portions of the Revolving Credit
Loans or Bid Rate Loans to which the Euro-Rate Option or the Bid Rate Margin
applies for any Interest Period, the interest rate per annum determined by the
Administrative Agent by dividing (the resulting quotient rounded upwards, if
necessary, to the nearest 1/100th of 1% per annum) (i) the rate of interest
determined by the Administrative Agent in accordance with its usual procedures
(which determination shall be conclusive, absent manifest error) to be the
average of the London interbank offered rates for U.S. Dollars quoted by the
British Bankers' Association as set forth on Dow ▇▇▇▇▇ Markets Service (formerly
known as Telerate) display page 3750 (or appropriate successor or, if British
Bankers' Association or its successor ceases to provide such quotes, a
comparable replacement determined by the Administrative Agent), two (2) Business
Days prior to the first day of such Interest Period for an amount comparable to
such Loan and having a borrowing date and a maturity comparable to such Interest
Period by (ii) a number equal to 1.00 minus the Euro-Rate Reserve Percentage.
The Euro-Rate may also be expressed by the following formula:
Average of London interbank offered rates on
Dow ▇▇▇▇▇ Markets Service display page 3750
Euro-Rate = as quoted by BBA or appropriate successor
-----------------------------------------
1.00 - Euro-Rate Reserve Percentage
"Euro-Rate Auction" means a solicitation of Bid Rate Quotes setting
forth Bid Rate Margins pursuant to Subsection 2.2c.
"Euro-Rate Interest Period" means, subject to the provisions of
Subsection 2.4c, any individual period of one (1), two (2), three (3) or six (6)
months selected by the Borrower commencing on the Borrowing Date, conversion
date or renewal date of a Euro-Rate Portion or a Bid Rate Loan to which the Bid
Rate Margin applies, in either case, to which such period shall apply.
"Euro-Rate Option" means the interest rate option described in item
(ii) of Subsection 2.4b.
"Euro-Rate Portion" means a Revolving Credit Loan, or portion
thereof, which bears, or is to bear, interest at the Adjusted Euro-Rate.
"Euro-Rate Reserve Percentage" means the maximum effective
percentage (expressed as a decimal, rounded upward to the nearest 1/100th of
1%), as determined in good
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faith by the Administrative Agent (which determination shall be conclusive),
which is in effect on such day as prescribed by the Board of Governors of the
Federal Reserve System (or any successor) for determining the reserve
requirements (including, without limitation, supplemental, marginal and
emergency reserve requirements) with respect to Eurocurrency funding (currently
referred to as "Eurocurrency liabilities").
"Event of Default" has the meaning given it in Article VII.
"Existing Credit Agreement" means that certain Credit Agreement
dated as of January 5, 2001, as amended, by and among the Borrower, PNC Bank
National Association as the Administrative Agent, and the financial institutions
party thereto.
"Facility Fee" means the Short Term Facility Fee and Long Term
Facility Fee.
"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 Federal Reserve Bank
New York (or any successor) in substantially the same manner as such Federal
Reserve Bank 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 (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.
"Fees" means collectively the Agent's Fees, the Closing Fee, the
Arrangement Fee and the Facility Fees.
"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.
"GAAP" means generally accepted accounting principles which shall
include, but not be limited to, the official interpretations thereof as defined
by the Financial Accounting Standards Board, its predecessors and its
successors.
"Gas Cost Underrecovery Adjustment Assets" means that Underrecovered
Gas Cost Balance to be collected from all sales customers and transportation
customers, through surcharge commencing December 1, 2001 over an amortization
period of three years from that date, with simple interest at 5.5% per annum,
until November 30, 2004.
"Governmental Authority" means the government of the United States
or the government of any state or locality therein, any political subdivision or
any governmental, quasi- governmental, judicial, public or statutory
instrumentality, authority, body or entity, or other regulatory bureau,
authority, body or entity of the United States or any state or locality therein,
including the Federal Deposit Insurance Corporation, the Office of the
Comptroller of the
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Currency and the Board of Governors of the Federal Reserve System, and any
central bank of any other country or any comparable authority.
"Governmental Rule" means any law, statute, rule, regulation,
ordinance, order, judgment, guideline or decision of any Governmental Authority.
"Granting Lender" has the meaning given it in Subsection 9.6d.
"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, (ii) discounts with
recourse, (iii) agreements to pay or perform upon a second Person's failure to
pay or perform, (iv) remaining liable on obligations assumed by a second Person,
(v) agreements to maintain the capital, working capital solvency or general
financial condition of a second Person and (vi) agreements for the purchase or
other acquisition of products, materials, supplies or services, if in any case
payment therefor is to be made regardless of the non-delivery of such products,
materials or supplies or the non-furnishing of such services.
"Hazardous Substances" means any (i) hazardous, toxic or polluting
substances or wastes as defined by any Environmental Law or (ii) petroleum
products.
"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 or currency exchange rates.
"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), direct or contingent,
whether evidenced by a bond, note, debenture or otherwise, and all obligations
and liabilities in the nature of a capitalized lease obligation, deferred
purchase price arrangement, title retention device, letter of credit obligation,
Hedging Obligations, reimbursement agreement, Guaranty, book entry or otherwise.
"Interest Period" means any or all of a Euro-Rate Interest Period, a
Bid Rate Interest Period or a Swing Line Interest Period.
"Invitation for Bid Rate Quotes" means the written solicitation by
the Administrative Agent for Bid Rate Quotes delivered to the Lenders in
accordance with the provisions of Subsection 2.2c.
"Lender" has the meaning given in the preamble to this Agreement.
"Loan" means with respect to any Lender or the Administrative Agent
as of any date, the aggregate amount of all Disbursements then outstanding from
such Lender or the Administrative Agent to the Borrower hereunder as of such
date.
"Loan Account" means the individual loan account maintained by each
Lender as more fully described in Section 2.13.
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"Loan Documents" means collectively this Agreement, the Notes and
any other documents furnished in connection herewith.
"Long Term Facility Fee" means the fee described in Subsection 2.6c.
"Long Term Revolving Credit" has the meaning given it in Subsection
2.1c, as the same may be reduced from time to time pursuant to Section 2.12.
"Long Term Revolving Credit Commitment" means, as to each Lender,
the obligation of such Lender to make Long Term Revolving Credit Loans available
to the Borrower pursuant to Subsection 2.1c in an aggregate principal amount not
to exceed the applicable amount set opposite such Lender's name on the signature
pages hereto (as the same may be reduced at any time or from time to time
pursuant to either Subsection 2.1i or Section 2.12) and, as to all Lenders, the
obligation of the Lenders to make Long Term Revolving Credit Loans available to
the Borrower in an aggregate amount equal to the Long Term Revolving Credit
Commitments of all of the Lenders.
"Long Term Revolving Credit Commitment Percentage" means, as to each
Lender, the percentage of the Long Term Revolving Credit Commitment set forth
opposite such Lender's name on the signature pages hereto as such percentage may
change from time to time in accordance with the terms hereof.
"Long Term Revolving Credit Extension Agreement" has the meaning
given it in Subsection 2.8b.
"Long Term Revolving Credit Extension Date" has the meaning given it
in Subsection 2.8b.
"Long Term Revolving Credit Loans" means Disbursements by a Lender
pursuant to Subsection 2.1c.
"Long Term Revolving Credit Notes" means any one or all of the
several promissory notes of the Borrower evidencing Indebtedness of the Borrower
under the Long Term Revolving Credit Commitment which notes are substantially in
the form of Exhibit "A-2" to the Agreement, together with all extensions,
renewals, amendments, modifications, substitutions and replacements thereto and
thereof.
"Long Term Revolving Credit Termination Date" means January 5, 2004,
or such later date as is determined pursuant to Subsection 2.8b.
"Margin Stock" is defined herein as defined in Regulation U.
"Material Adverse Change" shall mean any set of circumstances or
events which (a) has or could reasonably be expected to have any material
adverse effect upon the validity or enforceability of this Agreement or any of
the other Loan Documents, (b) is or could reasonably be expected to be material
and adverse to the business, properties, assets, financial condition or results
of operations of the Borrower and its Subsidiaries, taken as a whole, (c)
impairs materially or could reasonably be expected to impair materially the
ability of the Borrower and its Subsidiaries taken as a whole to duly and
punctually pay their Indebtedness, or (d) impairs materially or could reasonably
be expected to impair materially the ability of the Administrative
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Agent or any of the Lenders to enforce their legal remedies pursuant to this
Agreement or any other Loan Document.
"Material Adverse Effect" means, with respect to any Person relative
to any occurrence of whatever nature (including, without limitation, any adverse
determination in any litigation, arbitration or governmental investigation or
proceeding), an effect that results in or causes or has a reasonable likelihood
of resulting in or causing a Material Adverse Change.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc. and its successors.
"Mortgage Indenture" means that certain Indenture of Mortgage and
Deed of Trust dated April 1, 1952 from the Borrower to BNY Midwest Trust
Company, as successor to ▇▇▇▇▇▇ Trust and Savings Bank, Trustee, as heretofore
and hereafter amended, modified and supplemented.
"Note" means any one or all of the several Revolving Credit Notes,
Bid Rate Notes or the Swing Line Note.
"Notice of Bid Rate Borrowing" has the meaning set forth in
Subsection 2.2c(v).
"Option" means any one or more of the Base Rate Option, the
Euro-Rate Option, the Bid Rate Option or the Swing Line Option.
"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 Loan.
"PBGC" means the Pension Benefit Guaranty Corporation or any
successor Person.
"Permitted Accounts Receivable Securitization" means the receivables
financing program providing for the sale of Receivables Facility Assets by
Borrower and its Subsidiaries to the Receivables Subsidiary in transactions
purporting to be sales (and treated as sales for GAAP purposes), which
Receivables Subsidiary shall finance the purchase of such Receivables Facility
Assets by the sale, transfer, conveyance, lien or pledge of such Receivables
Facility Assets to one or more limited purpose financing companies, special
purpose entities and/or other financial institutions, in each case, on a limited
recourse basis as to the Borrower and its Subsidiaries; provided that any such
transaction described herein shall be consummated pursuant to documentation in
form and substance reasonably satisfactory to the Agent.
"Permitted Encumbrance" shall mean, as to any Person, any of the
following:
(i) Encumbrances for taxes, assessments, governmental
charges or levies on any of such Person's properties, which taxes,
assessments, governmental charges or levies are at the time not due and
payable or if they can thereafter be paid without penalty or are being
contested in good faith by appropriate proceedings diligently conducted
and with respect to which the affected Person has created adequate
reserves;
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(ii) Pledges or deposits to secure payment of workers'
compensation obligations, unemployment insurance, deposits or indemnities
to secure public or statutory obligations or for similar purposes;
(iii) Encumbrances arising out of judgments or awards against
such Person but only to the extent that the creation of any such
encumbrance shall not be an event or condition which, with or without
notice or lapse of time or both, would cause the Borrower to be in
violation of Section 7.7;
(iv) Mechanics', carriers', workmen's, 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;
(v) Security interests in favor of lessors of personal
property, which property is the subject of a true lease between such
lessor and such Person;
(vi) Encumbrances securing Indebtedness existing on the
Closing Date (and any refinancings of such Indebtedness) without
enlargement or extension of the Indebtedness secured thereby or the assets
encumbered thereby (any such Encumbrance securing Indebtedness in excess
of $5,000,000 on the Closing Date is listed on Schedule 5.2);
(vii) Easements, rights-of-way, restrictions, leases or
subleases to others or other similar Encumbrances created in the ordinary
course of business which Encumbrances do not interfere in any material
respect with the ordinary conduct of the business of the Borrower and its
Subsidiaries;
(viii) Encumbrances securing (i) the non-delinquent
performance of bids, trade contracts (other than for borrowed money),
leases, statutory obligations, (ii) contingent obligations on surety and
appeal bonds, and (iii) 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; and
(ix) Encumbrances securing Indebtedness under the Mortgage
Indenture (and any refinancings of such Indebtedness) and any additional
Indebtedness issued under the Mortgage Indenture, subject to the limits
set forth in Subsection 5.3(iii); and
(x) Encumbrances on Receivables Facility Assets transferred
(a) to the Receivables Subsidiary or (b) by the Receivables Subsidiary to
the purchasers of such receivables (and the filing of financing statements
in connection therewith) created by, and as set forth in, the Receivables
Documents pursuant to the Permitted Accounts Receivable Securitization;
and
(xi) Encumbrances on meter assets created in connection with
capitalized lease transactions and securing Indebtedness in favor of one
or more
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financial institutions incurred in connection with such transactions in an
aggregate principal amount not to exceed $27,000,000.
"Person" means any individual, partnership, corporation, trust,
joint venture, banking association, unincorporated organization 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 either the Base Rate Portion, the Euro-Rate Portion,
or both of the foregoing, 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 the PNC Bank, National Association as its prime rate, which rate may
not be the lowest rate of interest then being charged by the PNC Bank, National
Association to its commercial borrowers.
"Purchasing Lender" has the meaning given it in Subsection 9.6a.
"Ratable Share" shall mean (i) as to amounts due to or from any
Lender (A) with respect to advances from or repayments to the Lenders under the
Short Term Revolving Credit Commitment, each such Lender's Short Term Revolving
Credit Commitment Percentage of such advances or repayments and (B) with respect
to advances from or repayment to the Lenders under the Long Term Revolving
Credit Commitment, each such Lender's Long Term Revolving Credit Commitment
Percentage of such advances or repayments, and (ii) with respect to all Fees or
costs due the Lenders hereunder, an amount equal to each such Lender's (A) Short
Term Revolving Credit Commitment Percentage of the date of determination, or (B)
Long Term Revolving Credit Commitment Percentage at the date of determination as
the case may be.
"Receivables Documents" shall mean all documentation relating to any
Permitted Accounts Receivable Securitization.
"Receivables Facility Assets" shall mean all Gas Cost Underrecovery
Adjustment Assets of Borrower which are transferred to the Receivables
Subsidiary pursuant to a Permitted Accounts Receivable Securitization, and any
assets related thereto, including without limitation (i) all collateral given by
the respective account debtor or on its behalf (but not by Borrower or any of
its Subsidiaries) securing such Gas Cost Underrecovery Adjustment Assets, (ii)
all contracts and all guarantees (but not by Borrower or any of its
Subsidiaries) or other obligations directly related to such Gas Cost
Underrecovery Adjustment Assets, (iii) other related assets including those set
forth in the Receivables Documents, and (iv) proceeds of all of the foregoing.
"Receivables Facility Attributed Indebtedness" at any time shall
mean the aggregate net outstanding amount theretofore paid to the Receivables
Subsidiary in respect of the Receivables Facilities Assets sold, transferred,
financed or pledged by it in connection with a Permitted Accounts Receivable
Securitization (it being the intent of the parties that the amount of
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Receivables Facility Attributed Indebtedness at any time outstanding approximate
as closely as possible the principal amount of Indebtedness which would be
outstanding at such time under the Permitted Accounts Receivable Securitization
if the same were structured as a secured lending agreement rather than a
purchase agreement).
"Receivables Subsidiary" means a special purpose, bankruptcy remote
wholly- owned Subsidiary of Borrower which may be formed for the sole and
exclusive purpose of engaging in activities in connection with the purchase,
sale and financing of Gas Cost Underrecovery Adjustment Assets in connection
with and pursuant to a Permitted Accounts Receivable Securitization.
"Register" has the meaning given it in Subsection 9.6b.
"Regulation D" means Regulation D promulgated by the Board of
Governors of the Federal Reserve System (12 C.F.R. Part 204 et seq.) as such
regulation is now in effect and as may hereafter be amended.
"Regulation T" means Regulation T promulgated by the Board of
Governors of the Federal Reserve System (12 C.F.R. Part 220 et seq.) as such
regulation is now in effect and as may hereafter be amended.
"Regulation U" means Regulation U promulgated by the Board of
Governors of the Federal Reserve System (12 C.F.R. Part 221 et seq.) as such
regulation is now in effect and as may hereafter be amended.
"Regulation X" means Regulation X promulgated by the Board of
Governors of the Federal Reserve System (12 C.F.R. Part 224 et seq.) as such
regulation is now in effect and as may hereafter be amended.
"Reportable Event" means any one or more event, defined in Section
4043(b) of ERISA and in 29 C.F.R. Part 2615, other than an event for which the
requirement for the thirty (30) day notice to the PBGC is waived.
"Required Lenders" means as of a particular date (i) prior to the
termination of the Commitments, the Lenders then holding at least fifty-one
percent (51%) of the aggregate Commitments (whether or not utilized) of all the
Lenders and (ii) after the termination of the Commitments, the Lenders holding
at least fifty-one (51%) of the aggregate principal amount of the Loans at the
particular time outstanding.
"Revolving Credit" means the Short Term Revolving Credit and the
Long Term Revolving Credit.
"Revolving Credit Loan Request" means a written request for
Revolving Credit Loans made in accordance with Section 2.1f hereof which request
shall be substantially in the form of Exhibit "B" hereto.
"Revolving Credit Loans" means Disbursements by a Lender pursuant to
Section 2.1.
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"Revolving Credit Notes" means any one or all of the several
promissory notes of the Borrower evidencing Indebtedness of the Borrower under
the Revolving Credit which notes are substantially in the form of either Exhibit
"A-1" or Exhibit "A-2" to the Agreement, together with all extensions, renewals,
amendments, modifications, substitutions and replacements thereto and thereof.
"S&P" means Standard & Poor's Rating Group, a division of The
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. and its successors.
"Senior Ratings" means, with respect to any Person, if such Person
has a long term senior secured public debt rating, such long term senior secured
public debt ratings in effect from time to time as assigned by Moody's and S&P.
"Short Term Facility Fee" means the fee described in Subsection
2.6b.
"Short Term Revolving Credit" has the meaning given it in Subsection
2.1a, as the same may be reduced from time to time pursuant to Section 2.12 or
increased pursuant to Section 2.16.
"Short Term Revolving Credit Commitment" means, as to each Lender,
the obligation of such Lender to make Short Term Revolving Credit Loans
available to the Borrower pursuant to Subsection 2.1a in an aggregate principal
amount not to exceed the applicable amount set opposite such Lender's name on
the signature pages hereto (as the same may be reduced at any time or from time
to time pursuant to either Subsection 2.1h or Section 2.12 or increased pursuant
to Section 2.16) and, as to all Lenders, the obligation of the Lenders to make
Short Term Revolving Credit Loans available to the Borrower in an aggregate
amount equal to the Short Term Revolving Credit Commitments of all of the
Lenders.
"Short Term Revolving Credit Commitment Percentage" means, as to
each Lender, the percentage of the Short Term Revolving Credit Commitment set
forth opposite such Lender's name on the signature pages hereto as such
percentage may change from time to time in accordance with the terms hereof.
"Short Term Revolving Credit Extension Agreement" has the meaning
given it in Subsection 2.8a.
"Short Term Revolving Credit Extension Date" has the meaning given
it in Subsection 2.8a.
"Short Term Revolving Credit Loans" means Disbursements by a Lender
pursuant to Subsection 2.1a.
"Short Term Revolving Credit Notes" means any one or all of the
several promissory notes of the Borrower evidencing Indebtedness of the Borrower
under the Short Term Revolving Credit Commitment which notes are substantially
in the form of Exhibit "A-1" to the Agreement, together with all extensions,
renewals, amendments, modifications, substitutions and replacements thereto and
thereof.
"Short Term Revolving Credit Termination Date" means January 3,
2003, or such later date as is determined pursuant to Subsection 2.8a.
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"SPC" has the meaning given it in Subsection 9.6d.
"Subsidiary" means, as to any Person, any corporation of which at
least a majority of the outstanding stock having by the terms thereof ordinary
voting power to elect a majority of the Board of Directors of such corporation
is at the time directly or indirectly owned or controlled by such Person and/or
by one or more Subsidiaries of such Person.
"Swing Line Interest Rate" means as to each Swing Line Loan the rate
of interest agreed upon by the Administrative Agent and the Borrower pursuant to
Section 2.3d.
"Swing Line Interest Period" means any individual period of one (1)
to seven (7) days; provided, however, no Swing Line Interest Period will extend
beyond the Short Term Revolving Credit Termination Date.
"Swing Line Loan" shall mean a Disbursement made by the
Administrative Agent to the Borrower pursuant to Section 2.3.
"Swing Line Loan Account" shall mean the sub-account opened and
maintained by the Administrative Agent in the name of the Borrower pursuant to
Section 2.13 and Section 2.3f.
"Swing Line Note" shall mean the promissory note of the Borrower
evidencing Indebtedness of the Borrower under the Swing Line Option which note
is substantially in the form of Exhibit "F" to the Agreement, together with all
extensions, renewals, amendments, modifications, substitutions and replacements
thereto and thereof.
"Swing Line Option" shall mean the loan option between the Borrower
and the Administrative Agent pursuant to Section 2.3.
"Termination Date" means either the Short Term Revolving Credit
Termination Date or the Long Term Revolving Credit Termination Date.
"Termination Proceedings" means any action taken by the PBGC under
ERISA to terminate any plan.
"Transfer Effective Date" has the meaning given it in each
respective Assignment and Assumption Agreement.
"Transferor Lender" has the meaning given it in Subsection 9.6a.
"Underrecovered Gas Cost Balance" means that amount of the
Borrower's Levelized Gas Adjustment Clause not recovered in customer rates for
the period ending October 31, 2001.
1.2 GAAP DEFINITIONS. Accounting terms used herein but not defined
herein shall have the meanings ascribed to them under GAAP in effect at the time
of the execution of this Agreement.
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1.3 OTHER DEFINITIONAL CONVENTIONS AND RULES OF CONSTRUCTION. (i) The
words "hereof", "herein" and "hereunder" and words of similar import when used
in this Agreement shall, unless otherwise expressly specified, refer to this
Agreement as a whole and not to any particular provision of this Agreement, and
Article, Section and Subsection references are to this Agreement unless
otherwise expressly specified.
(ii) All terms defined in this Agreement in the singular shall have
comparable meanings when used in plural, and vice versa, unless otherwise
specified.
(iii) The word "or" as used herein shall mean and connote
nonexclusive alternatives, unless expressly stated or the context clearly
requires otherwise.
(iv) Captions, headings and Articles, Section and Subsection
references used in this Agreement are for convenience only and shall not,
and are not intended to, in any way or manner affect the scope or intent
of this Agreement or of any provisions or subdivisions hereof.
ARTICLE II. THE LOANS
2.1 THE REVOLVING CREDIT
2.1a SHORT TERM REVOLVING CREDIT LOANS. Subject to the terms and
conditions hereof and relying upon the representations and warranties herein set
forth, each Lender severally agrees to make Short Term Revolving Credit Loans to
the Borrower at any time from time to time on or after the date hereof to, but
not including, the Short Term Revolving Credit Termination Date, provided that
the aggregate principal amount of each Lender's Short Term Revolving Credit
Loans outstanding hereunder to the Borrower shall not exceed at any one time an
amount equal to such Lender's Short Term Revolving Credit Commitment Percentage
of the sum of (i) the aggregate amount of Short Term Revolving Credit
Commitments then in effect (the "Short Term Revolving Credit"), minus (ii) the
principal amount of Swing Line Loans then outstanding. Within such limits of
time and amount and subject to the other provisions of this Agreement, the
Borrower may borrow, repay and reborrow pursuant to this Section 2.1a. The
aggregate amount of the Short Term Revolving Credit Commitments on the Closing
Date is $80,000,000. All Short Term Revolving Credit Loans outstanding on the
Short Term Revolving Credit Termination Date shall become due and payable in
full on such date.
2.1b SHORT TERM REVOLVING CREDIT COMMITMENT OF EACH LENDER. Each Lender
agrees, for itself only, and subject to the terms and conditions of this
Agreement, to make Short Term Revolving Credit Loans to the Borrower from time
to time not to exceed an aggregate principal amount at any one time outstanding
equal to the amount of its respective Short Term Revolving Credit Commitment
Percentage of the Short Term Revolving Credit. 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 Short Term Revolving Credit Loans hereunder on
or after the Short Term Revolving Credit Termination Date.
2.1c LONG TERM REVOLVING CREDIT LOANS. Subject to the terms and
conditions hereof and relying upon the representations and warranties herein set
forth, each Lender
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severally agrees to make Long Term Revolving Credit Loans to the Borrower at any
time from time to time on or after the date hereof to, but not including, the
Long Term Revolving Credit Termination Date, provided that the aggregate
principal amount of each Lender's Long Term Revolving Credit Loans outstanding
hereunder to the Borrower shall not exceed at any one time an amount equal to
such Lender's Long Term Revolving Credit Commitment Percentage of the sum of (i)
the aggregate amount of Long Term Revolving Credit Commitments then in effect
(the "Long Term Revolving Credit"), minus (ii) the principal amount of Bid Rate
Loans then outstanding. Within such limits of time and amount and subject to the
other provisions of this Agreement, the Borrower may borrow, repay and reborrow
pursuant to this Section 2.1c. The aggregate amount of the Long Term Revolving
Credit Commitments on the Closing Date is $100,000,000. All Long Term Revolving
Credit Loans outstanding on the Long Term Revolving Credit Termination Date
shall become due and payable in full on such date.
2.1d LONG TERM REVOLVING CREDIT COMMITMENT OF EACH LENDER. Each Lender
agrees, for itself only, and subject to the terms and conditions of this
Agreement, to make Long Term Revolving Credit Loans to the Borrower from time to
time not to exceed an aggregate principal amount at any one time outstanding
equal to the amount of its respective Long Term Revolving Credit Commitment
Percentage of the Long Term Revolving Credit. 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 Long Term Revolving Credit Loans hereunder on
or after the Long Term Revolving Credit Termination Date.
2.1e REVOLVING CREDIT NOTES. The obligation of the Borrower to repay, on
or before the Short Term Revolving Credit Termination Date, the aggregate unpaid
principal amount of all Short Term Revolving Credit Loans shall be evidenced by
the several Short Term Revolving Credit Notes, each substantially in the form of
Exhibit "A-1" hereto, drawn by the Borrower to the order of a Lender in the
maximum amount of such Lender's Short Term Revolving Credit Commitment. The
principal amount actually due and owing to a Lender at any time under its Short
Term Revolving Credit Note shall be the then aggregate unpaid principal amount
of all Short Term Revolving Credit Loans made by such Lender as shown on the
Loan Account established and maintained by such Lender in accordance with
Section 2.13. The obligation of the Borrower to repay, on or before the Long
Term Revolving Credit Termination Date, the aggregate unpaid principal amount of
all Long Term Revolving Credit Loans shall be evidenced by the several Long Term
Revolving Credit Notes, each substantially in the form of Exhibit "A-2" hereto,
drawn by the Borrower to the order of a Lender in the maximum amount of such
Lender's Long Term Revolving Credit Commitment. The principal amount actually
due and owing to a Lender at any time under its Long Term Revolving Credit Note
shall be the then aggregate unpaid principal amount of all Long Term Revolving
Credit Loans made by such Lender as shown on the Loan Account established and
maintained by such Lender in accordance with Section 2.13. Each Revolving Credit
Note shall be dated the date hereof and shall be delivered to the Administrative
Agent on behalf of the Lenders on such date.
2.1f REVOLVING CREDIT LOAN REQUEST. Except as otherwise provided herein,
the Borrower may from time to time prior to the applicable Termination Date
request the Lenders to make Revolving Credit Loans to the Borrower by the
delivery to the Administrative Agent, not later than 11:00 A.M. (eastern time)
(i) three (3) Business Days prior to the proposed Borrowing Date with respect to
the making of Revolving Credit Loans to which the Euro-Rate Option applies for
any Revolving Credit Loans; and (ii) on the Business Day of the proposed
Borrowing
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Date with respect to the making of a Revolving Credit Loan to which the Base
Rate Option applies of a duly completed request therefor substantially in the
form of Exhibit "B" hereto or a request by telephone immediately confirmed in
writing by letter or facsimile in such form (each, a "Revolving Credit 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. Each Revolving Credit Loan Request
shall be irrevocable and shall specify (i) whether the proposed Disbursement is
under the Short Term Revolving Credit or the Long Term Revolving Credit; (ii)
the proposed Borrowing Date; (iii) the aggregate amount of the proposed
Revolving Credit Loans to be made on such Borrowing Date, which amount, as to
Base Rate Portions, shall be in integral multiples of $100,000 and not less than
$1,000,000 and, as to Euro-Rate Portions, shall be in integral multiples of
$1,000,000 and not less than $3,000,000; (iv) whether the Euro-Rate Option or
the Base Rate Option shall apply to the proposed Revolving Credit Loans to be
made on such Borrowing Date; and (v) in the case of Revolving Credit Loans to
which the Euro-Rate Option applies, an appropriate Euro-Rate Interest Period for
each Euro-Rate Portion of the Revolving Credit Loans to be made on such
Borrowing Date.
2.1g MAKING REVOLVING CREDIT LOANS. The Administrative Agent shall,
promptly after receipt by it of a Revolving Credit Loan Request pursuant to
Section 2.1f (but not later than noon (eastern time) on the Borrowing Date for
same day funding and 2:00 P.M. (eastern time) on the third Business Day
preceding any Borrowing Date for which any Portion of the Revolving Credit Loans
to be made on such Borrowing Date bears interest at the Euro-Rate Option),
notify the Lenders of its receipt of such Revolving Credit Loan Request
specifying: (i) whether the proposed Disbursement is under the Short Term
Revolving Credit or the Long Term Revolving Credit; (ii) the proposed Borrowing
Date and the time and method of disbursement of such Revolving Credit Loan;
(iii) the amount and type of such Revolving Credit Loan and the applicable
Euro-Rate Portions and Euro-Rate Interest Periods (if any); and (iv) the
apportionment among the Lenders of the Revolving Credit Loans as determined by
the Administrative Agent in accordance with Section 2.1b or 2.1d hereof, as
applicable. Each Lender shall remit the principal amount of each Revolving
Credit Loan which it is committed to advance 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 Revolving Credit Loan to the Borrower in Dollars and immediately available
funds at the principal office of the Administrative Agent in Pittsburgh,
Pennsylvania prior to 2:00 P.M. (eastern time) on the Borrowing Date, 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 Revolving Credit Loan of such Lender
on the Borrowing Date, subject to the provisions of Section 8.3 below.
2.1h TEMPORARY REDUCTION OF AVAILABLE SHORT TERM REVOLVING CREDIT
COMMITMENT. While each Swing Line Loan advanced pursuant to Section 2.3 is
outstanding, the principal amount available to be borrowed under the aggregate
Short Term Revolving Credit Commitment shall be reduced by an amount equal to
the principal amount of each such Swing Line Loan then outstanding, and the
Short Term Revolving Credit Commitments shall be deemed to be utilized in the
amount of such Swing Line Loans for the purposes of determining the then
Applicable Euro-Rate ▇▇▇▇▇▇ with respect to Short Term Revolving Credit Loans.
The foregoing notwithstanding, each Lender shall remain responsible for funding
its Short Term Revolving Credit Commitment Percentage of the Short Term
Revolving Credit Loans. Such reduction shall not affect the calculation of the
Short Term Facility Fee.
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2.1i TEMPORARY REDUCTION OF AVAILABLE LONG TERM REVOLVING CREDIT
COMMITMENT. While each Bid Rate Loan advanced pursuant to Section 2.2 is
outstanding, the principal amount available to be borrowed under the aggregate
Long Term Revolving Credit Commitment shall be reduced by an amount equal to the
principal amount of each such Bid Rate Loan then outstanding, and the Long Term
Revolving Credit Commitments shall be deemed to be utilized in the amount of
such Bid Rate Loans for the purposes of determining the then Applicable
Euro-Rate Margin with respect to Long Term Revolving Credit Loans. The foregoing
notwithstanding, each Lender shall remain responsible for funding its Long Term
Revolving Credit Commitment Percentage of the Long Term Revolving Credit Loans.
Such reduction shall not affect the calculation of the Long Term Facility Fee.
2.2 BID RATE LOANS.
2.2a BID RATE. Subject to the provisions of this Section 2.2, each Lender
severally agrees that the Borrower may request Bid Rate Loans, in an aggregate
amount at any one time outstanding not to exceed the lesser of (i) $50,000,000
and (ii) the sum of (a) the aggregate Long Term Revolving Credit Commitment
minus (b) the aggregate principal amount of all Long Term Revolving Credit Loans
then outstanding, which shall bear interest at the Bid Rate Option. In
connection with the Bid Rate Option, any Lender with a Long Term Revolving
Credit Commitment may make an advance in excess of such Lender's Long Term
Revolving Credit Commitment.
2.2b LIMITATIONS ON AND EVIDENCE OF BID RATE LOANS. Except as provided
under Subsection 2.2c(vi), each Bid Rate Loan or repayment of a Bid Rate Loan
must be in the minimum principal amount of $5,000,000 or, if in excess of
$5,000,000 in integral multiples of $1,000,000. The obligation of the Borrower
to repay, prior to the Long Term Revolving Credit Termination Date, the
aggregate unpaid principal amount of such Bid Rate Loans advanced by each Lender
shall be evidenced by the Bid Rate Notes substantially in the form of Exhibit
"C" hereto, one made payable to each Lender with a Long Term Revolving Credit
Commitment in a face amount equal to the aggregate Long Term Revolving Credit
Commitments of all of the Lenders, which Bid Rate Notes must be properly
completed and executed by Borrower and delivered to the Administrative Agent on
behalf of each Lender with a Long Term Revolving Credit Commitment prior to the
initial Disbursement of any Bid Rate Loan. The principal amount actually due and
owing each Lender shall be the aggregate unpaid principal amount of all
Disbursements of Bid Rate Loans made by such Lender, all as shown on such
Lender's Loan Account established pursuant to Section 2.13.
2.2c BID RATE LOAN PROCEDURE.
(i) Bid Rate Loan Request. When the Borrower wishes to request
offers to make Bid Rate Loans under this Section, it shall transmit to the
Administrative Agent by telex or facsimile transmission a Bid Rate Quote
Request substantially in the form of Exhibit "D" hereto so as to be
received no later than 11:00 A.M. (eastern time) on (x) the fourth (4th)
Business Day prior to the date of Disbursement proposed therein, in the
case of a Euro-Rate Auction or (y) the Business Day next preceding the
date of Disbursement proposed therein, in the case of an Absolute Rate
Auction (or, in either case, such other time or date as the Borrower and
the Administrative Agent shall have mutually agreed and shall have
informed the Lenders of not later than the date of the Bid Rate Quote
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Request for the first Euro-Rate Auction or Absolute Rate Auction for which
such change is to be effective) specifying:
(A) the proposed date of Disbursement, which shall be a
Business Day,
(B) the aggregate amount of such Disbursement, which shall
be $5,000,000 or a larger multiple of $1,000,000,
(C) the duration of the Interest Period applicable thereto,
subject to the provisions of the definition of Interest Period, and
(D) whether the Bid Rate Quotes requested are to set forth a
Bid Rate Margin or a Bid Rate Absolute Rate.
The Borrower may request offers to make Bid Rate Loans for more than one
Interest Period in a single Bid Rate Quote Request.
(ii) Invitation for Bid Rate Quotes. Promptly upon receipt of a Bid
Rate Quote Request, the Administrative Agent shall send to the Lenders
with a Long Term Revolving Credit Commitment by telex or facsimile
transmission an Invitation for Bid Rate Quotes, which shall constitute an
invitation by the Borrower to each Lender to submit Bid Rate Quotes
offering to make the Bid Rate Loans to which such Bid Rate Quote Request
relates in accordance with this Subsection.
(iii) Submission and Contents of Bid Rate Quotes. (A) Each Lender
with a Long Term Revolving Credit Commitment may submit a Bid Rate Quote
containing an offer or offers to make Bid Rate Loans in response to any
Bid Rate Quote Request. Each Bid Rate Quote must comply with the
requirements of this paragraph (iii) and must be submitted to the
Administrative Agent by telex or facsimile transmission at its offices
specified in or pursuant to Section 9.3 not later than (x) 9:45 A.M.
(eastern time) on the third Business Day prior to the proposed date of
Disbursement, in the case of a Euro- Rate Auction or (y) 9:45 A.M.
(eastern time) on the proposed date of Disbursement, in the case of an
Absolute Rate Auction (or, in either case, such other time or date as the
Borrower and the Administrative Agent shall have mutually agreed and shall
have informed the Lenders of not later than the date of the Bid Rate Quote
Request for the first Euro-Rate Auction or Absolute Rate Auction for which
such change is to be effective); provided that Bid Rate Quotes submitted
by the Administrative Agent (or any affiliate of the Administrative Agent)
in the capacity of a Lender may be submitted, and may only be submitted,
if the Administrative Agent or such affiliate notifies the Borrower of the
terms of the offer or offers contained therein not later than (x) one hour
prior to the deadline for the other Lenders, in the case of a Euro-Rate
Auction or (y) 15 minutes prior to the deadline for the other Lenders, in
the case of an Absolute Rate Auction.
(B) Each Bid Rate Quote shall be in substantially the form
of Exhibit "E" hereto and shall in any case specify:
(1) the proposed date of Disbursement and the Interest
Period therefor,
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(2) the principal amount of the Bid Rate Loan for
which each such offer is being made, which principal amount
(w) may be greater than or less than the Long Term Revolving
Credit Commitment of the quoting Lender, (x) must be
$5,000,000 or a larger multiple of $1,000,000, (y) may not
exceed the principal amount of Bid Rate Loans for which offers
were requested and (z) may be subject to an aggregate
limitation as to the principal amount of Bid Rate Loans for
which offers being made by such quoting Lender may be
accepted,
(3) in the case of a Euro-Rate Auction, the margin
above or below the applicable Euro-Rate (the "Bid Rate
Margin") offered for each such Bid Rate Loan, expressed as a
percentage (specified to the nearest 1/10,000th of 1%) to be
added to or subtracted from such base rate,
(4) in the case of an Absolute Rate Auction, the rate
of interest per annum (specified to the nearest 1/10,000th of
1%) (the "Bid Rate Absolute Rate") offered for each such Bid
Rate Loan, and
(5) the identity of the quoting Lender.
A Bid Rate Quote may set forth up to three separate offers by the quoting Lender
with respect to each Interest Period specified in the related Bid Rate Quote
Request.
(C) Any Bid Rate Quote shall be disregarded if it:
(1) is not substantially in conformity with Exhibit
"E" hereto or does not specify all of the information required
by paragraph (iii)(B) immediately above;
(2) contains qualifying, conditional or similar
language or, in particular, is conditioned on acceptance by
the Borrower of all or some specified minimum principal amount
of the Bid Rate Loan for which such Bid Rate Quote is being
made;
(3) proposes terms other than or in addition to those
set forth in the applicable Bid Rate Quote Request; or
(4) arrives after the time set forth in paragraph
(iii)(A) above.
(iv) Notice to Borrower. The Administrative Agent shall notify the
Borrower promptly, and in the case of an Absolute Rate Auction no later
than 45 minutes after receipt by the Administrative Agent, of the terms
(x) of any Bid Rate Quote submitted by a Lender that is in accordance with
paragraph (iii) above and (y) of any Bid Rate Quote that amends, modifies
or is otherwise inconsistent with a previous Bid Rate Quote submitted by
such Lender with respect to the same Bid Rate Quote Request. Any such
subsequent Bid Rate Quote shall be disregarded by the Administrative Agent
unless such subsequent Bid Rate Quote is submitted solely to correct a
manifest error in such former Bid Rate Quote. The Administrative Agent's
notice to the Borrower shall specify (A) the aggregate principal amount of
Bid Rate Loans for which offers have been received for each Interest
Period specified in the related Bid Rate Quote Request, (B) the
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respective principal amounts and Bid Rate Margins or Bid Rate Absolute
Rates, as the case may be, so offered and (C) if applicable, limitations
on the aggregate principal amount of Bid Rate Loans for which offers in
any single Bid Rate Quote may be accepted.
(v) Acceptance and Notice by Borrower. Not later than 11:00 A.M.
(eastern time) on (x) the third Business Day prior to the proposed date of
Disbursement, in the case of a Euro-Rate Auction or (y) the proposed date
of Disbursement, in the case of an Absolute Rate Auction (or, in either
case, such other time or date as the Borrower and the Administrative Agent
shall have mutually agreed and shall have informed the Lenders of not
later than the date of the Bid Rate Quote Request for the first Euro-Rate
Auction or Absolute Rate Auction for which such change is to be
effective), the Borrower shall notify the Administrative Agent of its
acceptance or non-acceptance of the offers so presented to it pursuant to
Subsection (iv). In the case of acceptance, such notice (a "Notice of Bid
Rate Borrowing") shall specify the aggregate principal amount of offers
for each Interest Period that are accepted. The Borrower may accept any
Bid Rate Quote in whole or in part; provided that:
(A) the aggregate principal amount of each Bid Rate
Disbursement may not exceed the applicable amount set forth in the related
Bid Rate Quote Request,
(B) the principal amount of each Bid Rate borrowing must be
$5,000,000 or a larger multiple of $1,000,000,
(C) acceptance of offers may only be made on the basis of
ascending Bid Rate Margins or Bid Rate Absolute Rates, as the case may be,
and
(D) the Borrower may not accept any offer that is described
in subsection (iii)(C) or that otherwise fails to comply with the
requirements of this Agreement.
(vi) Allocation by Administrative Agent. If offers are made by two
or more Lenders with the same Bid Rate Margins or Bid Rate Absolute Rates,
as the case may be, for a greater aggregate principal amount than the
amount in respect of which such offers are accepted for the related
Interest Period, the principal amount of Bid Rate Loans in respect of
which such offers are accepted shall be allocated by the Administrative
Agent among such Lenders as nearly as possible (in multiples of
$1,000,000, as the Administrative Agent may deem appropriate) in
proportion to the aggregate principal amounts of such offers.
Determinations by the Administrative Agent of the amounts of Bid Rate
Loans shall be conclusive in the absence of manifest error.
(vii) Bid Rate Loan Prepayment. No Bid Rate Loan shall be prepaid
prior to the end of the relevant Bid Rate Interest Period without the
prior consent of the Lender extending such Bid Rate Loan.
2.2d BID RATE LOAN INTEREST. Interest on the Bid Rate Loans shall accrue
at the rate per annum agreed upon between the Lender or Lenders making such Bid
Rate Loans and the Borrower pursuant to the Bid Rate selection procedures set
forth in Subsection 2.2c above.
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2.2e BASE RATE OPTION BORROWING IN EVENT OF CANCELLED BID RATE LOAN
REQUEST. In the event of cancellation by the Borrower of a Bid Rate Loan Request
pursuant to paragraph (v) of Subsection 2.2c, the Borrower may, before 1:00 P.M.
(eastern time) on the day of such cancellation, submit to the Administrative
Agent a request for a Disbursement under the Long Term Revolving Credit to be
made on the day of such cancellation and to bear interest at the Base Rate
Option. The Lenders holding Long Term Revolving Credit Commitments shall use
their best efforts to make their respective pro rata shares of such Disbursement
available at the office of the Borrower prior to 2:00 P.M. (eastern time) on the
date of such Disbursement in accordance with the procedures set forth in
Subsection 2.1g.
2.3 SWING LINE LOANS.
2.3a SWING LINE OPTION. Subject to the provisions of this Section 2.3,
the Administrative Agent agrees that the Borrower may request Swing Line Loans,
in an aggregate amount at any one time outstanding not to exceed the lesser of
(i) $20,000,000 or (ii) an amount which, when added to the aggregate principal
amount of all Short Term Revolving Credit Loans then outstanding does not exceed
the aggregate amount of the Short Term Revolving Credit Commitments. The
Administrative Agent shall have no obligation to make Swing Line Loans hereunder
on or after the Short Term Revolving Credit Termination Date.
2.3b LIMITATIONS ON AND EVIDENCE OF SWING LINE LOANS. Each Swing Line
Loan or repayment of a Swing Line Loan must be in the minimum principal amount
of $250,000 or, if in excess of $250,000, in integral multiples of $100,000.
Swing Line Loans shall be repaid on the date agreed upon by the Borrower and the
Administrative Agent, not more than seven (7) days after the making of the Swing
Line Loan and in no event after the Short Term Revolving Credit Termination
Date. The obligation of the Borrower to repay, prior to the Short Term Revolving
Credit Termination Date, the aggregate unpaid principal amount of such Swing
Line Loans advanced by the Administrative Agent shall be evidenced by the Swing
Line Note substantially in the form of Exhibit "F" hereto. The principal amount
actually due and owing the Administrative Agent shall be the aggregate unpaid
principal amount of all Disbursements of Swing Line Loans made by the
Administrative Agent, all as shown on the Swing Line Loan Account established
pursuant to Section 2.3f.
2.3c SWING LINE LOAN PROCEDURE. The Borrower may from time to time from
the Closing Date to the Business Day immediately prior to the Short Term
Revolving Credit Termination Date request a Swing Line Loan. Such request shall
be made not later than 2:00 P.M. (Pittsburgh, Pennsylvania time) on the date of
the proposed Swing Line Loan. Such request may be made to the Administrative
Agent orally or in writing and if orally confirmed in writing. The
Administrative Agent shall make the Swing Line Loan available to the Borrower
not later than 5:00 P.M. (Pittsburgh, Pennsylvania time) on the same Business
Day such Swing Line Loan is requested.
2.3d SWING LINE LOAN INTEREST. Interest on the Swing Line Loans shall
accrue at a rate of interest per annum as offered by the Administrative Agent in
its sole and absolute discretion for such Swing Line Interest Periods as offered
by the Administrative Agent in its sole and absolute discretion.
2.3e RISK PARTICIPATION. Upon the disbursement of each Swing Line Loan
and without any further action by or on behalf of such Lender, each Lender
hereby agrees to purchase, upon the occurrence of an Event of Default, an
undivided, full risk, nonrecourse participation in such
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Swing Line Loan, in an amount equal to (i) such Lender's Short Term Revolving
Credit Commitment Percentage (ii) multiplied by the outstanding principal amount
of such Swing Line Loan on the date of the Event of Default; provided, however,
no Lender shall participate in any Swing Line Loan made after a notice of an
Event of Default has been delivered pursuant to this Agreement. If and to the
extent the Administrative Agent receives payment of principal or interest on a
participated Swing Line Loan, the Administrative Agent shall deliver to each
Lender such Lender's Short Term Revolving Credit Commitment Percentage of such
payment.
2.3f SWING LINE LOAN ACCOUNT. The Administrative Agent shall maintain on
its books as a sub-account of the Loan Account, a Swing Line Loan Account in the
name of the Borrower with respect to any Swing Line Loans made, repayments and
prepayments of the principal thereof, and the computation and payment of
interest thereon. Upon the request of the Borrower to the Administrative Agent,
the Administrative Agent shall promptly furnish to the Borrower a statement of
the Swing Line Loan Account. The failure to record any such amount shall not
limit or otherwise affect the obligations of the Borrower hereunder or under the
Swing Line Note to repay all amounts owed hereunder and thereunder together with
all interest accrued thereon and all other fees and charges provided herein and
therein. Except in the case of manifest error, the Swing Line Loan Account shall
be conclusive evidence as to the amount at any time due to the Administrative
Agent from the Borrower under the Swing Line Note.
2.4 INTEREST RATES, INTEREST PAYMENT AND CERTAIN PROVISIONS RELATING TO
INTEREST AND FEES.
2.4a PAYMENTS OF INTEREST. The Borrower shall pay interest on the
principal amount of the Loans from time to time outstanding hereunder, from the
date thereof until payment in full, at the rates of interest determined pursuant
to this Section 2.4. 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 Base Rate on the last Business Day of each Fiscal Quarter during
the term thereof; (ii) with respect to each Euro-Rate Portion, at the Adjusted
Euro-Rate on the last day of each Euro-Rate Interest Period as provided for in
Subsection 2.4c (provided, however, if the Euro-Rate Interest Period chosen for
a Euro-Rate Portion exceeds three (3) 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 Euro-Rate Interest Period and (B) the last day of such Euro-Rate Interest
Period); (iii) with respect to each Bid Rate Loan, at the Bid Rate on the last
day of each Bid Rate Interest Period as provided for in Subsection 2.4c
(provided, however, if the Bid Rate Interest Period chosen for a Bid Rate Loan
exceeds ninety (90) days, interest on that Bid Rate Loan shall be due and
payable every ninety (90) days during such Bid Rate Interest Period and on the
last day of such Bid Rate Interest Period); (iv) with respect to each Swing Line
Loan, at the Swing Line Interest Rate on the last Business Day of each month
during which such Swing Line Loans were outstanding; and (v) with respect to all
such Loans, 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.
2.4b INTEREST RATE OPTIONS. The unpaid principal amount of the Revolving
Credit 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 Revolving Credit Loans under each Commitment and may select different
Interest Periods to apply simultaneously to different Portions of the Euro-Rate
Portions of the Revolving Credit Loans under each Commitment.
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(i) Base Rate Option: A rate of interest per annum (computed upon
the basis of a year of 365 or 366 days, as the case may be, and the actual
number of days elapsed) equal to the 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 Base Rate.
(ii) Euro-Rate Option: A rate of interest per annum (computed on
the basis of a year of 360 days and the actual number of days elapsed)
equal to the sum of (A) the Euro-Rate plus (B) the Applicable Euro-Rate
Margin from time to time in effect (the "Adjusted Euro-Rate"). The
Adjusted Euro-Rate for each Euro-Rate Portion then outstanding shall be
adjusted automatically, from time to time, effective upon each change in
the Applicable Euro-Rate Margin resulting from an increase or decrease in
utilization of the Commitments.
2.4c 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 Revolving Credit Loans or select,
convert or renew a Bid Rate Loan to which the Bid Rate Margin applies, 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 Euro-Rate 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 Euro-Rate Interest Period shall end on the next preceding
Business Day; and
(ii) any Euro-Rate 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
Euro-Rate 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:
(i) The Euro-Rate Portions for each Euro-Rate Interest Period
shall be in integral multiples of $1,000,000 and not less than $3,000,000;
(ii) If a Euro-Rate Interest Period is elected with regard to
amounts outstanding under the Revolving Credit and such Interest Period
would end after the applicable Termination Date, such Interest Period
shall end on such Termination Date; and
(iii) (A) At no time may there be more than six (6) Euro-Rate
Interest Periods in effect relating to Short Term Revolving Credit Loans;
provided, however if a Base Rate Portion of Short Term Revolving Credit
Loans is outstanding there shall be not more than five (5) Euro-Rate
Interest Periods in effect relating to Short Term Revolving Credit Loan
and (B) at no time may there be more than six (6) Euro-Rate Interest
Periods in effect relating to Long Term Revolving Credit Loans; provided,
however if a Base Rate Portion of Long Term Revolving Credit Loans is
outstanding there shall be not more than five (5) Euro-Rate Interest
Periods in effect relating to Long Term Revolving Credit Loans.
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2.4d 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. Elections
of Bid Rate Loans shall expire as to each such Bid Rate Loan at the end of the
applicable Bid Rate 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 2.4c) 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 each of
the Lenders as hereinafter provided. Such notice (i) shall be irrevocable; (ii)
shall be given not later than 11:00 A.M. (eastern time) in the case of a
conversion to or renewal of, either in whole or in part, the Euro-Rate Option on
the third Business Day prior to the proposed effective date for the conversion
or renewal; and (iii) shall set forth:
(A) the effective date of such conversion or renewal, which shall
be a Business Day;
(B) the new Euro-Rate 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 Euro-Rate 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.
2.4e 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 Revolving Credit 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 shall be followed
immediately by written confirmation of such Option election executed by an
Authorized Officer.
2.4f INTEREST AFTER MATURITY. After the principal amount of all or any
part of the Base Rate Portions of the Revolving Credit 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 occurrence
of and during the continuance of an Event of Default and whether or not judgment
has been entered against the Borrower on the Revolving Credit Notes, the Bid
Rate Notes and the Swing Line Note, all Euro-Rate Portions, Bid Rate Loans and
Swing Line Loans 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, the Bid Rate
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Option and the Swing Line Interest Rate, as the case may be, and (ii) at the end
of the then current Interest Period, and thereafter at the sum of (A) the Base
Rate plus (B) two hundred (200) basis points (2%) per annum.
2.5 YIELD-PROTECTION, CAPITAL ADEQUACY AND MISCELLANEOUS PROVISIONS
RELATING TO EURO-RATE.
2.5a YIELD PROTECTION. Notwithstanding other provisions of this Section
2.5:
(i) If any Governmental Rule (including, without limitation,
Regulation D), or if any change therein on or after the date hereof, or in
the interpretation thereof by any Governmental Authority charged with the
administration thereof, shall:
(A) subject any Lender to any tax, levy, impost, charge,
fee, duty, deduction or withholding of any kind with respect to payments
of principal or interest or other amounts due hereunder (other than any
tax imposed or based upon the income of a Lender and payable to any
Governmental Authority in the United States of America or any state
thereof); or
(B) change the basis of taxation of any Lender with respect
to payments of principal or interest or other amounts due hereunder (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 the Commitment or Loans made hereunder (other than such
requirements which are included in the determination of the applicable
rate of interest hereunder); or
(D) impose upon any Lender any other obligation or condition
with respect to this Agreement,
and the result of any of the foregoing is to increase the cost to the affected
Lender, reduce the income receivable by the affected Lender, reduce the rate of
return on the affected Lender's capital, or impose any expenses upon the
affected Lender, all with respect to any of the Loans (or any portion thereof)
by an amount which the affected Lender reasonably deems material, and if the
affected Lender is then demanding similar compensation for such occurrences from
other borrowers who are similarly situated and who have a similar relationship
with the affected Lender and from which the affected Lender has the right to
demand such compensation, then and in any such case:
(1) the affected Lender shall promptly notify the
Borrower of the happening of such event;
(2) the Borrower shall pay to the affected Lender,
within thirty (30) days of such Lender's 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
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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 2.11) which are not otherwise provided
for in subparagraph (2) immediately above.
(ii) A certificate as to the increased cost or reduced amount as a
result of any event mentioned in this Subsection 2.5a shall be promptly
submitted by the affected Lender to the Borrower in accordance with the
provisions hereof. Such certificate shall be prima facie evidence as to
the amount of such increased cost or reduced amount.
(iii) Failure or delay on the part of any Lender or the
Administrative Agent to demand compensation pursuant to this Section 2.5
shall not constitute a waiver of such Lender's or the Administrative
Agent's right to demand such compensation; provided that the Borrower
shall not be required to compensate a Lender or the Administrative Agent
pursuant to this Section 2.5 for any increased costs or reduction incurred
more than 180 days prior to the date that such Lender or the
Administrative Agent, as the case may be, notifies the Borrower of the
change in Government Rule (or interpretation thereof) giving rise to such
increased costs or reduction and of such Lender's or the Administrative
Agent's intention to claim compensation therefor; provided further that,
if the change in Government Rule (or interpretation thereof) giving rise
to such increased costs or reductions is retroactive, then the 180-day
period referred to above shall be extended to include the period of
retroactive effect thereof.
2.5b CAPITAL ADEQUACY. If, after the date hereof, (i) any adoption
of or any change in or in the interpretation of any Governmental Rule, or (ii)
compliance with any Governmental Rule of any Governmental Authority exercising
control over banks or financial institutions generally or any court of competent
jurisdiction, requires that the Commitments (including, without limitation,
obligations in respect of any Revolving Credit Loans, Bid Rate Loans or Swing
Line Loans) hereunder be treated as an asset or otherwise be included for
purposes of calculating the appropriate amount of capital to be maintained by
any Lender or any corporation controlling any Lender (a "Capital Adequacy
Event"), the result of which is to reduce the rate of return on a Lender's
capital as a consequence of its Commitments to a level below that which the
affected Lender could have achieved but for such Capital Adequacy Event, taking
into consideration the Lender's policies with respect to capital adequacy, by an
amount which the affected Lender reasonably deems to be material, the affected
Lender shall promptly deliver to the Borrower a statement of the amount
necessary to compensate the affected Lender or the reduction in the rate of
return on its capital attributable to its Commitments (the "Capital Compensation
Amount"). The affected Lender shall determine the Capital Compensation Amount in
good faith, using reasonable attribution and averaging methods. Each affected
Lender shall from time to time notify the Borrower of the amount so determined.
Each such notification shall be prima facie evidence of the amount of the
Capital Compensation Amount set forth therein, and such Capital Compensation
Amount shall be due and payable by the Borrower to the affected Lender thirty
(30) days after such notice is given. As soon as practicable after any Capital
Adequacy Event, the affected Lender shall submit to the Borrower estimates of
the Capital Compensation Amounts that would be payable as a function of the
affected Lender's Commitments hereunder.
2.5c 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
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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.
2.5d ILLEGALITY. If a Lender shall determine in good faith (which
determination shall be final and conclusive) that compliance by such Lender with
any applicable law, treaty or other Governmental Rule, (whether or not having
the force of law), or the interpretation or application thereof by any
Governmental Authority, has made it unlawful for such Lender to make or maintain
the Revolving Credit Loans under the Euro-Rate Option or Bid Rate Loans to which
the Bid Rate Margin applies (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 Revolving Credit 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 or any Bid Rate Loan to which
the Bid Rate Margin applies 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.
2.6 FEES.
2.6a CLOSING FEE. The Borrower agrees to pay to the Lenders holding a
Short Term Revolving Credit Commitment, on or before the Closing Date, a Closing
Fee in the amount set forth in the Agent's Letter.
2.6b SHORT TERM FACILITY FEE. The Borrower agrees to pay to the Lenders
holding a Short Term Revolving Credit Commitment, on a pro rata basis, beginning
on March 31, 2002, and continuing quarterly in arrears thereafter on the last
day of each June, September, December and March during the term hereof to and
including the Short Term Revolving Credit Termination Date, a Short Term
Facility Fee calculated at a rate per annum equal to the Applicable Facility Fee
Rate, on the daily (computed at the opening of business) average amount of the
Short Term Revolving Credit Commitment for the quarter then ending; provided,
however, the first payment under this Subsection 2.6b shall be only for the
actual number of days elapsed between the actual execution of this Agreement and
March 31, 2002 and the last payment under this Subsection 2.6b shall be only for
the actual number of days elapsed between the last quarterly payment date and
the Short Term Revolving Credit Termination Date.
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2.6c LONG TERM FACILITY FEE. The Borrower agrees to pay to the Lenders
holding a Long Term Revolving Credit Commitment, on a pro rata basis, beginning
on March 31, 2002, and continuing quarterly in arrears thereafter on the last
day of each June, September, December and March during the term hereof to and
including the Long Term Revolving Credit Termination Date, a Long Term Facility
Fee calculated at a rate per annum equal to the Applicable Facility Fee Rate, on
the daily (computed at the opening of business) average amount of the Long Term
Revolving Credit Commitment for the quarter then ending; provided, however, the
first payment under this Subsection 2.6c shall be only for the actual number of
days elapsed between the actual execution of this Agreement and March 31, 2002
and the last payment under this Subsection 2.6c shall be only for the actual
number of days elapsed between the last quarterly payment date and the Long Term
Revolving Credit Termination Date.
2.6d AGENT'S FEE. The Borrower agrees to pay to the Administrative Agent
for its own account the non-refundable Agent's Fees for the Administrative
Agent's services hereunder under the terms of that certain letter (the "Agent's
Letter") between the Borrower and Administrative Agent dated November 15, 2001,
as the same may be amended from time to time.
2.6e ARRANGEMENT FEE. The Borrower agrees to pay to the Arranger the non-
refundable Arrangement Fee for the Arranger's services hereunder under the terms
of that certain letter (the "Arrangement Letter") among the Borrower and the
Arranger dated November 15, 2001, as the same may be amended from time to time.
2.7 CALCULATION OF INTEREST AND FACILITY FEE. The calculation of the
amount of interest due and owing to each Lender shall be made by each Lender and
shall be evidenced by such Lender posting the amount of interest due under such
Lender's Revolving Credit Loans and Bid Rate Loans to the Loan Account
established by such Lender pursuant to Section 2.13. The Facility Fees shall be
calculated on the basis of a 360 day year and actual number of days elapsed. The
calculation of the amount of the Facility Fees due and owing to each Lender
shall be made by each Lender and shall be evidenced by posting such amount due
under the Loan Account established by such Lender pursuant to Section 2.13.
2.8 EXTENSION OF TERMINATION DATES.
2.8a EXTENSION OF SHORT TERM REVOLVING CREDIT TERMINATION DATE. The Short
Term Revolving Credit Termination Date may be extended, in the manner set forth
in this Subsection 2.8a, on January 3, 2003 and on each anniversary of such date
(a "Short Term Revolving Credit Extension Date") for an additional 364-day
period. If the Borrower wishes to request an extension of the Short Term
Revolving Credit Termination Date on any Short Term Revolving Credit Extension
Date, it shall give written notice to that effect to the Administrative Agent
not less than forty-five (45) nor more than sixty (60) days prior to such Short
Term Revolving Credit Extension Date. Each Lender with a Short Term Revolving
Credit Commitment will use its best efforts to respond to such request, whether
affirmatively or negatively, within thirty (30) days after receipt of such
notice from the Administrative Agent. If the Borrower shall have received
affirmative responses from all the Lenders holding Short Term Revolving Credit
Commitments, such response to be in the sole and absolute discretion of each
such Lender, then, subject to receipt by the Borrower of counterparts of an
agreement duly completed and signed by the Borrower and each such Lender (a
"Short Term Revolving Credit Extension Agreement"), the Short Term Revolving
Credit Termination Date shall be extended, effective on
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such Short Term Revolving Credit Extension Date, for an additional 364-day
period to the date stated on such Short Term Revolving Credit Extension
Agreement. If the Borrower shall not have received affirmative responses from
all Lenders holding Short Term Revolving Credit Commitments, the Short Term
Revolving Credit Termination Date shall not be extended. For purposes of this
Subsection 2.8a, the failure of any such Lender to respond shall be deemed to be
a negative response from such Lender.
2.8b EXTENSION OF LONG TERM REVOLVING CREDIT TERMINATION DATE. The Long
Term Revolving Credit Termination Date may be extended, in the manner set forth
in this Subsection 2.8b, on January 5, 2002 and on each anniversary of such date
(a "Long Term Revolving Credit Extension Date") for an additional one-year
period. If the Borrower wishes to request an extension of the Long Term
Revolving Credit Termination Date on any Long Term Revolving Credit Extension
Date, it shall give written notice to that effect to the Administrative Agent
not less than forty-five (45) nor more than sixty (60) days prior to such Long
Term Revolving Credit Extension Date. Each Lender with a Long Term Revolving
Credit Commitment will use its best efforts to respond to such request, whether
affirmatively or negatively, within thirty (30) days after receipt of such
notice from the Administrative Agent. If the Borrower shall have received
affirmative responses from all the Lenders holding Long Term Credit Commitments,
such response to be in the sole and absolute discretion of each such Lender,
then, subject to receipt by the Borrower of counterparts of an agreement duly
completed and signed by the Borrower and each such Lender (a "Long Term
Revolving Credit Extension Agreement"), the Long Term Revolving Credit
Termination Date shall be extended, effective on such Long Term Revolving Credit
Extension Date, for an additional one-year period to the date stated in such
Long Term Revolving Credit Extension Agreement. If the Borrower shall not have
received affirmative responses from all Lenders holding Long Term Credit
Commitments the Long Term Revolving Credit Termination Date shall not be
extended. For purposes of this Subsection 2.8b, the failure of any such Lender
to respond shall be deemed to be a negative response from such Lender.
2.9 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 either:
(i) repay, (A) at any time if either no Loans are outstanding or
if Loans bearing interest under the Base Rate Option are the only Loans
outstanding, (B) subject to Section 2.11, upon three (3) days prior notice
if the Loans outstanding include Revolving Credit Loans bearing interest
under the Euro-Rate Option or the Bid Rate Option, the outstanding Loans
of any Lender in whole, together with interest thereon and any other
amount due such Lender pursuant to the terms of this Agreement, and to
terminate the Commitments of such Lender; or
(ii) seek a substitute lending institution or institutions (which
may be one or more of the other Lenders) to purchase the Notes and assume
the Loans, the Commitments 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 2.5a or 2.5b;
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(ii) the obligation of such Lender to make Revolving Credit Loans
which bear or are to bear interest under the Euro-Rate Option has been
suspended pursuant to Subsection 2.5d; or
(iii) such Lender has responded negatively to a request for
extension of any Termination Date pursuant to Section 2.8.
Provided, any proposed substitute lending institution, which is not
a Lender prior to the Borrower's selection thereof, must be acceptable to the
Administrative Agent, whose consent shall not be unreasonably withheld, 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.
2.10 LOAN REPAYMENT. Each repayment of the Revolving Credit Loans and Bid
Rate Loans shall be in the minimum amount of $1,000,000, in the aggregate, or an
integral multiple of $100,000 thereof, or such lesser amount as is actually
outstanding thereunder. The Borrower, upon (i) oral or written notice to
Administrative Agent by 11:00 A.M. (eastern time) on the day of the proposed
repayment, in the case of Revolving Credit Loans bearing interest at the Base
Rate or the Swingline Loans or (ii) three (3) Business Days' prior oral or
written notice to the Administrative Agent, in the case of Revolving Credit
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 interest, fees and other amounts then due and payable on the
amount repaid to the date of such repayment, subject to the payment of any
additional amounts under Section 2.11 below. The Borrower may prepay any Portion
of the Revolving Credit Loans bearing interest at the Base Rate without premium
or penalty.
In the event that principal payments are received on a day on which
principal payments are due on Revolving Credit Loans, Swingline Loans and Bid
Rate Loans the principal payments shall be applied: first, to repay in full
outstanding Swingline Loans, if any; second to repay in full the principal
amount of the Revolving Credit Loans then due and payable, if any; and third, to
repay in full the principal amount of the Bid Rate Loans then due and payable,
if any.
Any repayment of the Loans shall increase, by the amount of that
repayment, the unborrowed balance of the applicable Commitment; it being
contemplated that the Borrower may repay and reborrow from time-to-time under
each Commitment until the applicable Termination Date. All Short Term Revolving
Credit Loans outstanding on the Short Term Revolving Credit Termination Date
shall become due and payable in full on such date. All Long Term Revolving
Credit Loans outstanding on the Long Term Revolving Credit Termination Date
shall become due and payable in full on such date.
2.11 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
Revolving Credit Loans or any Bid Rate Loan 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 2.4d 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 a Disbursement or notice of
conversion or renewal or Notice of Bid Rate Borrowing, and, as a result of any
such action or inaction, a Lender reasonably incurs
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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 thirty (30) days of demand
therefor.
2.12 VOLUNTARY REDUCTION OF AVAILABILITY. At any time and from time to
time upon no less than two (2) Business Days prior written notice to the
Administrative Agent, the Borrower may terminate, in whole or in part, without
penalty, the then unused portion of the Short Term Revolving Credit Commitment
and/or the Long Term Revolving Credit Commitment, thereby causing a
corresponding abatement of the relevant Facility Fee. Each such reduction shall
be in a minimum principal amount of $5,000,000 or in integral multiples thereof.
The relevant Facility Fee shall cease to accrue with respect to any unused
portion of the Short Term Revolving Credit Commitment or the Long Term Revolving
Credit Commitment so terminated on either (i) the date two (2) Business Days
after receipt of such notice or (ii) the date so designated in the written
notice if such written notice sets forth an effective date of such termination
which is more than two (2) Business Days after such notice is given to the
Administrative Agent. Notice of termination once given shall be irrevocable and
the portion of the Short Term Revolving Credit Commitment or the Long Term
Revolving Credit Commitment so terminated shall not be available for borrowing
once such notice has been given under the terms hereof. The Administrative Agent
shall promptly notify each Lender of its pro rata share of such terminated
unused portion and the date of each such termination.
2.13 LOAN ACCOUNT. Each Lender shall open and maintain on its books a
Loan Account in the name of the Borrower with respect to Disbursements made,
repayments, prepayments, the computation and payment of interest and the
Facility Fee and the computation of other amounts due and sums paid and payable
to such Lender pursuant to this Article II. Such Loan Account shall be prima
facie evidence as to the amount at any time due to such Lender from the Borrower
pursuant to this Article II; provided, however, that the failure of a Lender to
make notations, or to make accurate notations, on its Loan Account including
without limitation notations with respect to interest and Facility Fees pursuant
to Section 2.7 shall not limit, expand or otherwise affect any obligations of
the Borrower hereunder.
2.14 PAYMENT FROM ACCOUNTS MAINTAINED BY BORROWER. In the event that any
payment of principal, interest, Facility Fee or any other amount due to the
Lenders or the Administrative Agent under the Agreement, the Notes or the other
Loan Documents is not paid when due, the Administrative Agent is hereby
authorized to effect such payment by debiting any demand deposit account of the
Borrower maintained with the Administrative Agent (excluding however any special
purpose fiduciary accounts, which are designated as such at the time of their
creation, and mandated by applicable statutes, regulations or rules) and
distributing such payment to the party to whom such amounts are due. This right
of debiting accounts of the Borrower is in addition to any right of set-off
accorded the Lenders or the Administrative Agent hereunder or by operation of
law.
2.15 TIME, PLACE AND MANNER OF PAYMENTS. All payments to be made by the
Borrower under the Notes (other than those provided for in Sections 2.5 and 2.11
hereof), and of all fees and any other amounts due hereunder (excepting the
Closing Fee, the Agent's Fees and
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the Arrangement Fee) shall be made at the principal office of the Administrative
Agent for the ratable account of the Lenders. The Administrative Agent will
promptly pay each such payment received to each Lender or its order in
accordance with Section 8.9 hereof. All payments due a Lender by reason of
Sections 2.5 or 2.11 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 1:00 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.
2.16 INCREASING THE SHORT TERM REVOLVING CREDIT COMMITMENTS. On or before
March 5, 2002, the Borrower shall have the right, without the consent of the
Lenders but with the prior approval of the Administrative Agent, not to be
unreasonably withheld, to cause an increase in the aggregate Short Term
Revolving Credit Commitments of the Lenders by adding to this Agreement one or
more additional Lenders or by allowing one or more Lenders to increase their
respective Short Term Revolving Credit Commitments, provided however (i) no
Event or Default or Potential Default shall have occurred hereunder which is
continuing, (ii) no such increase shall result in the aggregate Short Term
Revolving Credit Commitments hereunder to exceed $100,000,000, (iii) no Lender's
Short Term Revolving Credit Commitment shall be increased without such Lender's
consent, and (iv) on the effective date of any such increase, there shall be no
Short Term Revolving Credit Loans bearing interest at the Euro-Rate Option
outstanding hereunder. In the event of any such increase in the aggregate Short
Term Revolving Credit Commitments and in the Short Term Revolving Credit
Commitment of any Lender effected pursuant to the terms of this Section 2.16,
new Short Term Revolving Credit Note(s) shall, to the extent deemed reasonably
necessary or appropriate by the Administrative Agent, be executed and delivered
by the Borrower in exchange for the surrender of the existing Short Term
Revolving Credit Note(s), as the case may be; and the Borrower shall execute and
deliver such additional documentation setting forth the new Short Term Revolving
Credit Commitments and Short Term Revolving Credit Commitment Percentages as the
Administrative Agent shall reasonably request (which documentation may be
executed by the Borrower and the Administrative Agent (as agent for the Lenders)
without further consent or action of the Lenders, such consent being hereby
deemed to be irrevocably given to the Administrative Agent by the Lenders).
ARTICLE III. REPRESENTATIONS AND WARRANTIES.
To induce the Lenders to enter into this Agreement and to make the
Loans herein provided for, the Borrower warrants to the Lenders that:
3.1 CORPORATE EXISTENCE. The Borrower and each of its Subsidiaries is a
corporation duly organized, validly existing and in good standing under the laws
of the State of New Jersey 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 respective 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 materially
affect the Administrative Agent's or the Lenders' ability to enforce this
Agreement, the Notes or the other Loan Documents or will not have a Material
Adverse Effect.
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3.2 CORPORATE AUTHORITY. The Borrower is duly authorized to execute and
deliver this Agreement, the Notes and the other Loan Documents to which it is or
will become a party; all necessary corporate action to authorize the execution
and delivery of this Agreement, the Notes and the other Loan Documents to which
it is or will become a party has been properly taken; and it is and will
continue to be duly authorized to borrow hereunder and to perform all of the
other terms and provisions of this Agreement, the Notes and the other Loan
Documents to which it is or will become a party.
3.3 ENFORCEABILITY. This Agreement and the Notes have each been, and
each other Loan Document to which it will become a party will be, duly and
validly executed and delivered by the Borrower and, assuming the due
authorization, execution and delivery of the Agreement by and the binding effect
of the Agreement on the other parties thereto, each constitutes or will
constitute a valid and legally binding agreement of the Borrower enforceable in
accordance with its terms.
3.4 NO RESTRICTIONS, NO DEFAULT. Neither the execution and delivery of
this Agreement, the Notes and the other Loan Documents to which it is or will
become a party, the consummation of the transactions herein contemplated nor
compliance with the terms and provisions hereof or of the Notes, 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 or of any law or of
any regulation, order, writ, injunction or decree of any court or governmental
agency or of any agreement, indenture or other instrument to which the Borrower
or any Subsidiary is a party or by which any of them is bound or to which it is
subject, or constitute a default thereunder 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 agreement, indenture or
other instrument, except those restrictions which, individually or in the
aggregate, would not have a Material Adverse Effect. No event has occurred and
is continuing and no condition exists or will exist after giving effect to the
borrowings hereunder to be made on the Closing Date which constitutes an Event
of Default or Potential Default.
3.5 FINANCIAL STATEMENTS. The Borrower has furnished to the Lenders and
the Administrative Agent the consolidated balance sheets and the related
consolidated statements of income, shareholders' equity and changes in financial
position of the Borrower and its consolidated Subsidiaries for the Fiscal Year
ending September 30, 2001. All such financial statements, including the related
notes, have been prepared in accordance with GAAP, except as expressly noted
therein, and fairly present the financial position and consolidated financial
positions of the Borrower and its consolidated Subsidiaries as at the dates
thereof and the results and consolidated results of their operations and the
changes in their financial position and in their consolidated financial position
for the periods ended on such dates. There were no material liabilities of the
Borrower and its consolidated Subsidiaries, taken as a whole, contingent or
otherwise, not reflected in such financial statements. Except as has been fully
disclosed in writing to the Lenders and the Administrative Agent prior to the
date hereof there has been no Material Adverse Change in the business, condition
or operations (financial or otherwise) of the Borrower and its consolidated
Subsidiaries from September 30, 2001 to the Closing Date.
3.6 ABSENCE OF LITIGATION. Except as set forth in New Jersey Resources
Corporation's most recently filed Forms 10-K, 10-Q and 8-K, there are no
actions, suits, investigations, litigation or governmental proceedings pending
or, to the Borrower's knowledge, threatened against the Borrower or any
Subsidiary or any of their respective properties, which would have a Material
Adverse Effect.
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3.7 TAX RETURNS AND PAYMENTS. As of the date hereof, the Borrower and
its Subsidiaries have filed all Federal and other material tax returns required
by law to be filed and have paid all material taxes, material assessments and
other material governmental charges levied upon the Borrower and its
Subsidiaries taken as a whole, or any of the respective properties, assets,
income or franchises of the Borrower and its Subsidiaries taken as a whole,
which are due and payable, other than those currently payable or deferrable
without penalty or interest or those which are being contested in good faith and
by appropriate proceedings diligently conducted for which reserves in accord
with GAAP have been provided. As of the date hereof, the charges, accruals and
reserves on the books of the Borrower and its Subsidiaries 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 as otherwise noted on Schedule 3.8, (i) each
Plan has been and will be maintained and funded, in all material 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 and (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.
3.9 COMPLIANCE WITH APPLICABLE LAWS. The Borrower and each Subsidiary
(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 substantially complying with all applicable statutes and regulations
of each Governmental Authority having jurisdiction over its activities; except
for those orders, writs, injunctions, decrees, statutes and regulations,
non-compliance with which would not have a Material Adverse Effect.
3.10 ENVIRONMENTAL MATTERS. Except as set forth in New Jersey Resources
Corporation's most recently filed Forms 10-K, 10-Q and 8-K, the Borrower and its
Subsidiaries are in compliance with all applicable Environmental Laws; except
for matters which do not have a Material Adverse Effect.
3.11 GOVERNMENTAL APPROVAL. No 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
required to authorize, or (other than the filing of this Agreement with the
Securities and Exchange Commission) is required in connection with, (i) the
execution, delivery and performance of this Agreement or the Notes or (ii) the
legality, binding effect or enforceability of this Agreement or the Notes.
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
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any Margin Stock or for any other purpose which would violate or be inconsistent
with Regulations T, U or X.
3.13 INVESTMENT COMPANY ACT. The Borrower is not an "investment
company", or a company "controlled" by an "investment company", within the
meaning of the Investment Company Act of 1940, as amended.
3.14 PUBLIC UTILITY HOLDING COMPANY ACT. The Borrower is not a "holding
company", or a "subsidiary company" of a "holding company", or an "affiliate" of
a "holding company" or of a "subsidiary company" of a "holding company" within
the meaning of the Public Utility Holding Company Act of 1935, as amended.
3.15 DISCLOSURE. Neither this Agreement nor any other document,
certificate or statement furnished to the Lenders or the Administrative Agent by
or on behalf of the Borrower pursuant to this Agreement contains any untrue
statement of a material fact with respect to the Borrower or its Subsidiaries.
There is no fact known to the Borrower which materially and adversely affects or
in the future may (so far as the Borrower now foresees) have a Material Adverse
Effect, which has not been set forth 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; including but not limited to New Jersey Resources
Corporation's most recently filed Forms 10-K, 10-Q and 8-K.
ARTICLE IV. AFFIRMATIVE COVENANTS.
From the date hereof and thereafter until the termination of the
Commitments and until all of the Bank Indebtedness is paid in full, the Borrower
agrees that:
4.1 USE OF PROCEEDS. The proceeds of the Loans will be used by the
Borrower for general corporate purposes and working capital purposes of the
Borrower and to support the issuance by the Borrower of short term notes in the
commercial paper market.
4.2 FURNISHING INFORMATION. The Borrower shall:
(i) deliver to the Administrative Agent (with copies for each
Lender which Administrative Agent shall distribute) within fifty-five (55)
days after the end of each of the first three (3) Fiscal Quarters in each
Fiscal Year of the Borrower, New Jersey Resources Corporation's Form 10-Q
filed with the Securities and Exchange Commission together with (A)
consolidated balance sheet as at the end of such period for the Borrower
and its Subsidiaries, (B) consolidated statements of income for such
period for the Borrower and its Subsidiaries 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 (C)
consolidated statements of cash flow for such period for the Borrower and
its Subsidiaries 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
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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 Administrative Agent shall distribute) within one hundred
(100) days after the end of each Fiscal Year of the Borrower, New Jersey
Resources Corporation's Form 10-K filed with the Securities and Exchange
Commission together with (A) consolidated balance sheets as at the end of
such year for the Borrower and its Subsidiaries, (B) consolidated
statements of income for such year for the Borrower and its Subsidiaries,
(C) consolidated statements of cash flow for such year for the Borrower
and its Subsidiaries, and (D) consolidated statements of shareholders
equity for such year for the Borrower and its Subsidiaries; 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 and its consolidated Subsidiaries, 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 cause each of
the consolidated financial statements described in the foregoing clauses
(A) through (D) to be certified without limitation as to scope or material
qualification by independent certified public accountants acceptable to
the Administrative Agent;
(iii) deliver to the Administrative Agent (with copies for each
Lender which 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 "G" hereto, properly completed and signed by an Authorized Officer
of the Borrower, 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
and its Subsidiaries during the accounting period covered by such
financial statements and that such review has not disclosed the existence
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;
(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 or threat of litigation which arises between the
Borrower, or any of its Subsidiaries, and any other party or parties
(including, without limitation, any Official Body) which claim, litigation
or threat of litigation, individually or in the aggregate, is reasonably
likely to cause a Material Adverse Change, any such notice to be given not
later than five (5) 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 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
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limitation, Form 8-K), if any, filed by the Borrower 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 and any of its Subsidiaries
taken as a whole;
(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 five (5) Business
Days after S&P or ▇▇▇▇▇'▇ announces a change in the Senior Ratings of the
Borrower, or the withdrawal of any such Senior Ratings, notice of such
change or withdrawal, together with a copy of any written notification
which the Borrower received from the applicable rating agencies regarding
such change or withdrawal of Senior Ratings;
(viii) promptly and in any event within thirty (30) days after the
Borrower or the administrator of any Plan knows or has reason to know that
any Reportable Event has occurred which would cause the PBGC to institute
termination proceedings give notice thereof to the Administrative Agent;
(ix) promptly, but not later than five (5) Business Days, after
any officer obtains knowledge of the happening of any event which
constitutes an Event of Default or a Potential Default, give written
notice thereof to the Administrative Agent; and
(x) promptly, deliver to the Lenders such other publicly
available information and data with respect to the Borrower or any of its
Subsidiaries as from time to time may be reasonably requested by any
Lender.
4.3 VISITATION. The Borrower will permit the Lenders and the Lender's
designated employees and agents to have access, from time to time, upon
reasonable notice 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 any Authorized Officer.
4.4 PRESERVATION OF EXISTENCE; QUALIFICATION. At its own cost and
expense, the Borrower will do all things necessary to preserve and keep in full
force and effect its and each of its Subsidiaries' corporate existence and
qualification under the laws of their respective states of incorporation and
each state where, due to the nature of their respective activities or the
ownership of their respective properties, qualification to do business is
required except where (i) the lack of corporate existence of a Subsidiary or
(ii) the failure to be so qualified would not have a Material Adverse Effect or
except as permitted by Sections 5.6 and 7.4.
4.5 COMPLIANCE WITH LAWS AND CONTRACTS. The Borrower shall and shall
cause each Subsidiary to 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 AND OTHER LIABILITIES. The Borrower shall and shall
cause each Subsidiary to promptly pay and discharge all obligations, accounts
and liabilities to which it
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is subject or which are asserted against it and which obligations, accounts and
liabilities are, to the Borrower and the Subsidiaries taken as a whole,
material, including but not limited to all taxes, assessments and governmental
charges and levies upon it or upon any of its income, profits, or property prior
to the date on which penalties attach thereto; provided, however, that for
purposes of this Agreement, neither the Borrower nor the relevant Subsidiary
shall be required to pay any tax, assessment, charge or levy (i) the payment of
which is being contested in good faith by appropriate and lawful proceedings
diligently conducted and (ii) 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, but only to the extent that
failure to discharge any such liabilities would not result in any additional
liability which would have a Material Adverse Effect upon the Borrower and its
Subsidiaries taken as a whole.
4.7 INSURANCE. The Borrower will keep and maintain, and cause each
Subsidiary to keep and maintain, insurance with responsible insurance companies,
satisfactory to the Administrative Agent, on such of their respective
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, all as reasonably satisfactory to the Administrative
Agent. The Borrower will furnish to the Administrative Agent at the Closing and
together with the annual reports delivered pursuant to Subsection 4.2(ii)
hereof, a certificate of an Authorized Officer of the Borrower certifying that
such insurance is in force, is adequate in nature and amount and complies with
the Borrower's and each Subsidiary's obligations under this Section 4.7.
4.8 MAINTENANCE OF PROPERTIES. The Borrower shall and shall cause its
Subsidiaries to maintain, preserve, protect and keep their respective properties
in good repair, working order and condition (ordinary wear and tear excepted),
and make all necessary and proper repairs, renewals and replacements so that
their 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 SENIOR DEBT STATUS. The Bank Indebtedness will rank at least pari
passu in priority of payment with all other Indebtedness of the Borrower, except
Indebtedness of the Borrower which may be secured by Encumbrances permitted
pursuant to Section 5.2.
ARTICLE V. NEGATIVE COVENANTS.
From the date hereof and thereafter until the Commitments are
terminated and until the Bank Indebtedness 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 capital stock of the
Borrower, or purchase, redeem or otherwise acquire for value (or permit any of
its Subsidiaries to do so) any shares of any class of capital stock of
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the Borrower or any warrants, rights or options to acquire any such shares, now
or hereafter outstanding, except that the Borrower may (a) declare and make any
dividend payment or other distribution payable in common stock of the Borrower,
(b) purchase, redeem or otherwise acquire shares of its common stock or
warrants, rights or options to acquire any such shares with the proceeds
received from substantially concurrent issue of new shares of its common stock,
(c) purchase, redeem or otherwise acquire shares of its preferred stock
outstanding on the Closing Date, and (d) declare and make its quarterly dividend
on common stock and scheduled dividend on its preferred stock, so long as no
Event of Default then exists or would result therefrom.
5.2 ENCUMBRANCES. The Borrower will not create or suffer to exist, or
permit any of its Subsidiaries to create or suffer to exist, any Encumbrance or
any other type of preferential arrangement, upon or with respect to any of its
properties, whether now owned or hereafter acquired, or assign, or permit any of
its Subsidiaries to assign, any right to receive income, in each case to secure
or provide for the payment of any Indebtedness of any Person, other than:
(a) purchase money liens or purchase money security interests upon
or in any property acquired or held by the Borrower or any Subsidiary in
the ordinary course of business to secure the purchase price of such
property or to secure indebtedness incurred solely for the purpose of
financing the acquisition of such property, so long as such indebtedness
does not exceed 100% of the purchase price of such property;
(b) Encumbrances existing on such property at the time of the
acquisition of such property or the acquisition of such Subsidiary (other
than any such Encumbrance created as a result of such acquisition);
(c) Permitted Encumbrances; or
(d) Extensions or renewals of any Encumbrance described in clauses
(a) through (c) above, provided, that (i) any such extension or renewal
shall be limited to the property theretofore subject to such Encumbrance
and (ii) the principal amount of the Indebtedness secured by such
Encumbrance shall not be increased;
provided, that the aggregate principal amount of Indebtedness secured by
Encumbrances referred to in clauses (a) and (b) above shall not exceed
$5,000,000 at any time outstanding (it being expressly agreed that any
refinanced Indebtedness shall not by considered new Indebtedness hereunder).
5.3 INDEBTEDNESS. The Borrower shall not and shall not permit any
Subsidiary to create, incur, assume, cause, permit or suffer to exist or remain
outstanding any Indebtedness except for:
(i) The Bank Indebtedness;
(ii) Existing Indebtedness set forth on Schedule 5.3 hereof and any
extensions, renewals or refinancings thereof in outstanding principal
amounts not greater than those shown on Schedule 5.3; provided that such
extensions, renewals or
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refinancings when incurred and when added to the Borrower's then
outstanding Indebtedness would not cause the Borrower to be in violation
of Section 5.2 hereof;
(iii) Additional Indebtedness under the Mortgage Indenture as
permitted pursuant to the terms of the Mortgage Indenture in the form in
effect on the Closing Date;
(iv) Additional Indebtedness in favor of one or more financial
institutions in connection with capitalized leases of meter assets in an
aggregate principal amount not to exceed $27,000,000 at any one time
outstanding;
(v) Receivables Facility Attributed Indebtedness; and
(vi) Additional Indebtedness not otherwise permitted by the
foregoing clauses (i), (ii), (iii), (iv), or (v) in an aggregate principal
amount not to exceed $25,000,000 at any one time outstanding.
In addition, Indebtedness incurred pursuant to item (vi) may not contain
covenants (other than covenants relating to collateral, if any, securing such
Indebtedness as such security interests are permitted hereby) more restrictive
than or in addition to those contained herein.
5.4 ACQUISITIONS. The Borrower will not acquire the assets of any Person
or any shares of capital stock of, or other equity interest in, any Person, or
permit any of its Subsidiaries to do so, except for investments in the
Receivables Subsidiary prior to the occurrence and continuance of any Potential
Default or Event of Default.
5.5 SALES OF ASSETS. The Borrower shall not nor shall it permit any
Subsidiary to enter into any arrangement, direct or indirect, pursuant to which
the Borrower or any such Subsidiary shall sell or otherwise transfer or dispose
of, in a single transaction or a series of transactions, all or any substantial
part of its assets, other than a sale of assets by any such Subsidiary to
another Subsidiary or to the Borrower, and other than (i) a sale, contribution
or other transfer of Receivables Facility Assets to the Receivables Subsidiary
and the Receivables Subsidiary may sell and make other transfers of Receivables
Facility assets, in each case pursuant to the Receivables Documents in
connection with the Permitted Accounts Receivable Securitization" and (ii) in
connection with the capitalized lease transactions permitted under Section
5.3(iv)."
5.6 MERGER. The Borrower shall not merge or consolidate with any other
Person or permit any of its Subsidiaries to do so, except (A) a merger or
consolidation of any Subsidiary with or into any other Subsidiary or the
Borrower, (B) a merger or consolidation of the Borrower with or into New Jersey
Resources Corporation, or (C) a merger or consolidation in which each of the
following conditions is satisfied:
(i) the Borrower is the surviving Person or, if the Borrower is
not the surviving Person, the surviving Person (a) assumes all obligations
of the Borrower hereunder in form and substance satisfactory to
Administrative Agent and (b) is acceptable to each Lender in its
reasonable discretion;
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(ii) no Event of Default or Potential Default occurs as a result of
such a merger or consolidation; and
(iii) the Borrower's Consolidated Shareholder's Equity immediately
after such merger or consolidation is not less than the Borrower's
Consolidated Shareholder's Equity immediately prior to such merger or
consolidation.
5.7 REGULATION T, U AND X COMPLIANCE. The Borrower shall not and shall
not permit any Subsidiary to 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. The Borrower shall not and shall not permit any ERISA
Affiliate to permit any Plan 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", as such term is
defined in Section 302 of ERISA, whether or not waived;
(iii) 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; or
(iv) partially or completely withdraw from any Plan, which
withdrawal shall subject the Borrower or any ERISA Affiliate to
multiemployer withdrawal liability pursuant to Section 4201 of ERISA.
ARTICLE VI. CONDITIONS PRECEDENT TO ALL DISBURSEMENTS
6.1 ALL DISBURSEMENTS. The obligation of the Administrative Agent and
the Lenders to make any Disbursements is subject to the satisfaction of each of
the following conditions precedent:
6.1a NO DEFAULT. The Borrower shall have performed and complied, in all
material respects, with all agreements and conditions herein required to be
performed or complied with by it prior to any Disbursements and, at the time of
such Disbursements, no Potential Default or Event of Default shall exist.
6.1b REPRESENTATIONS CORRECT. The representations and warranties
contained in Article III hereof shall be correct in all material respects (i)
when made and (ii) at the time of each Disbursement except for such
representations and warranties which relate solely to an earlier date (in which
case such representations and warranties shall have been true and correct in all
material respects as of such date); provided, however, that for purposes of
clause (ii) of this Subsection 6.1b, the representations and warranties
contained in Section 3.6 and Section 3.10 shall be deemed updated if, and to the
extent that, an action, suit, investigation, litigation or governmental
investigation or environmental matter, as the case may be, is set forth in any
Form 10-K or 10-Q filed by New Jersey Resources Corporation in respect of any
period subsequent to
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the date hereof or in any Form 8-K filed by New Jersey Resources Corporation
subsequent to the date hereof.
6.1c DISBURSEMENT REQUIREMENTS. The Borrower shall have complied with the
requirements of Section 2.1, Section 2.2 or Section 2.3, as appropriate, with
respect to the requested Disbursements.
Each request for Disbursement shall constitute, as at the time made, a
representation and warranty by the Borrower that the matters set forth in
Subsections 6.1a and 6.1b above are true and correct.
6.2 CONDITIONS PRECEDENT TO THE INITIAL DISBURSEMENT UNDER THE
COMMITMENT. The obligation of the Lenders to make the initial Disbursements is
subject to the satisfaction of each of the following conditions precedent in
addition to the applicable conditions precedent set forth in Section 6.1 above:
(i) Receipt by the Administrative Agent on behalf of each Lender
of a counterpart original of this Agreement executed by the other Lenders
and the Borrower.
(ii) Receipt by the Administrative Agent on behalf of each Lender
of a Short Term Revolving Credit Note, substantially in the form of
Exhibit "A-1" attached hereto, made payable to such Lender in the amount
of such Lender's Short Term Revolving Credit Commitment and otherwise
properly completed and executed by the Borrower.
(iii) Receipt by the Administrative Agent on behalf of each Lender
of a Long Term Revolving Credit Note, substantially in the form of Exhibit
"A-2" attached hereto, made payable to such Lender in the amount of such
Lender's Long Term Revolving Credit Commitment and otherwise properly
completed and executed by the Borrower.
(iv) Receipt by the Administrative Agent on behalf of each Lender
of a Bid Rate Note, substantially in the form of Exhibit "C" attached
hereto, made payable to such Lender in the amount of the aggregate of all
Long Term Revolving Credit Commitments and otherwise properly completed
and executed by the Borrower.
(v) Receipt by the Administrative Agent of the Swing Line Note,
substantially in the form of Exhibit "F" attached hereto, made payable to
the Administrative Agent and otherwise properly completed and executed by
the Borrower.
(vi) Receipt by the Administrative Agent of a copy of a certified
copy (certified by the appropriate governmental official) of the
Borrower's Certificate of Incorporation which certification is dated not
more than thirty (30) days prior to the Closing.
(vii) 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, the Notes, and all documents supplemental
hereto and (C) the names of the officers of the Borrower authorized to
sign this Agreement, the Notes, and all supplemental documentation and
which contains a true signature of each such officer.
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(viii) 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 thirty (30) days prior to the date of
Closing.
(ix) Receipt by the Administrative Agent of the certificate of the
Borrower required pursuant to Section 4.7 of the Agreement.
(x) Receipt by the Administrative Agent of written instructions
addressed to the Administrative Agent and executed by an Authorized
Officer of the Borrower relating to the initial Disbursement.
(xi) Receipt by the Administrative Agent on behalf of each Lender
of a signed favorable opinion of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esquire, counsel to the
Borrower, dated as of the Closing Date and in form and substance
satisfactory to Administrative Agent and its counsel as to the matters set
forth on Exhibit "G" attached hereto.
(xii) The representations and warranties of the Borrower contained
in Article III and in the other Loan Documents executed and delivered by
the Borrower in connection with the Closing shall be true and accurate in
all material respects on and as of the Closing Date with the same effect
as though such representations and warranties had been made on and as of
such date (except representations and warranties which relate solely to an
earlier date or time, which representations and warranties shall be true
and correct on and as of the specific date or times referred to therein),
and the Borrower shall have performed, observed and complied with all
covenants and conditions hereof and contained in the other Loan Documents;
no Event of Default or Potential Default under this Agreement shall have
occurred and be continuing or shall exist; no Material Adverse Change
shall have occurred; and there shall be delivered to the Administrative
Agent, for the benefit of each Lender and the Administrative Agent, a
certificate of the Borrower, dated the Closing Date and signed by an
Authorized Officer of the Borrower, to each such effect.
(xiii) Receipt by the Administrative Agent on its own behalf and on
behalf of the Lenders all Fees due and payable on or prior to the Closing
Date and all reimbursable expenses incurred on or prior to the Closing
Date.
ARTICLE VII. DEFAULTS
Each of the events or occurrences described in Sections 7.1 to and
including 7.10 below shall constitute an "Event of Default" hereunder.
7.1 PAYMENT DEFAULT. Default in the payment of (i) interest on any Loan,
the Facility Fee, or any other amount due hereunder, and continuance of any such
nonpayment of such interest, Facility Fee or other amount for five (5) Business
Days, or (ii) principal of any Loan when due.
7.2 NONPAYMENT OF OTHER INDEBTEDNESS. The Borrower or any Subsidiary
shall fail to pay any Indebtedness of the Borrower or such Subsidiary, as the
case may be, other than the Bank Indebtedness, in an aggregate amount as to the
Borrower and its Subsidiaries collectively of $5,000,000 or more, as and when
the same shall become due, or the occurrence of any
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default under any agreement or instrument (including, without limitation, any
default under any financial covenant set forth in the Mortgage Indenture in the
form in effect on the Closing Date) under or pursuant to which such Indebtedness
is incurred or issued and continuance of such default beyond the period of
grace, if any, allowed with respect thereto, if such default permits or causes
the acceleration of such Indebtedness (whether or not such right shall have been
waived) 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 or a Subsidiary 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, liquidator, trustee, sequestrator
or similar official for the Borrower or any of its Subsidiaries or for a
substantial part of its or their property, or for the winding up or liquidation
of its or their affairs, and the same shall remain undismissed or unstayed and
in effect for a period of sixty (60) days.
7.3b VOLUNTARY PROCEEDINGS. The Borrower or a Subsidiary shall institute
proceedings to be adjudicated a voluntary bankrupt, or any of them 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, trustee, sequestrator or similar official
for the Borrower or any of its Subsidiaries or for a substantial part of its or
their property, or shall make an assignment for the benefit of creditors, or
shall admit in writing its or their inability to pay its or their debts
generally as they become due, or corporate action shall be taken by the Borrower
or any of its Subsidiaries in furtherance of any of the aforesaid purposes.
7.4 TERMINATION OF EXISTENCE. The Borrower shall terminate its existence
or cease to exist or any Subsidiary shall terminate its existence or cease to
exist (i) except by reason of a permitted merger or liquidation into or a
consolidation with the Borrower or a Subsidiary, or (ii) except where a
Subsidiary's termination or cessation of its existence shall have no Material
Adverse Effect on the Borrower and its Subsidiaries, taken as a whole.
7.5 FAILURE TO COMPLY WITH COVENANTS.
7.5a FAILURE TO COMPLY WITH ARTICLE V COVENANTS AND CERTAIN ARTICLE IV
COVENANTS. The Borrower shall default in the observance or performance of
Section 4.3, Section 4.4, Section 4.10 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 and such default shall not be remedied (i) with
respect to any default under Section 4.2(ix) for a period of ten (10) days; and
(ii) with respect to any other such default for a period of thirty (30) days
after such default is known to any officer of the Borrower or notice thereof has
been given to the Borrower by the Administrative Agent (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).
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7.6 MISREPRESENTATION. Any representation or warranty made by the
Borrower herein proves to have been untrue in any material respect as of the
date when made, or any certificate or other document furnished by the Borrower
to the Administrative Agent or any Lender pursuant to the provisions hereof
proves to have been untrue in any material respect on the date as of which the
facts set forth therein are stated or certified.
7.7 ADVERSE JUDGMENTS, ETC. Entry or filing of any one or more
judgments, writs or warrants of attachment or of any similar process in an
aggregate amount, as to the Borrower and its Subsidiaries collectively, of
$1,000,000 or more in excess of any third-party insurance protecting against
such liability against the Borrower and its Subsidiaries or against any of their
respective properties and failure of the Borrower or its Subsidiaries to vacate,
pay, bond, stay or contest in good faith such judgments, writs, warrants of
attachment or other process within a period of thirty (30) days.
7.8 INVALIDITY OR UNENFORCEABILITY. This Agreement, the Notes 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, any Note 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 on
the Borrower and its Subsidiaries, taken as a whole.
7.10 CHANGE OF CONTROL.
7.10a CHANGE OF BENEFICIAL OWNERSHIP. Any Person or group of Persons
(within the meaning of Sections 13(a) or 14(a) of the Securities Exchange Act of
1934), other than New Jersey Resources Corporation or 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 promulgated
by the Securities and Exchange Commission under said Act) fifteen percent (15%)
or more of the voting stock of the Borrower. For purposes of calculating the
acquisition of beneficial ownership, any transfer of voting stock of the
Borrower by any Person or group of Persons to a Permitted Transferee shall be
deemed not to constitute a conveyance and acquisition of such stock. A
"Permitted Transferee" includes any of the following with respect to any then
current officer or director of the Borrower: (i) spouse; (ii) lineal descendants
of all generations and spouses of such lineal descendants; (iii) a charitable
corporation or trust established by such then current officer or director or by
a person described in (i) or (ii) preceding; (iv) a trust (or in the case of a
minor, a custodial account under a Uniform Gifts or Transfers to Minors Act) of
which the beneficiar(ies) are one or more Persons described in (i), (ii) or
(iii) preceding; and (v) an executor or administrator upon the death of such
then current officer or director or any Person described in (i) or (ii)
preceding.
7.10b CHANGE OF COMPOSITION OF BOARD OF DIRECTORS. Within a period of
twelve (12) consecutive calendar months individuals who were directors of the
Borrower on the first day of
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such period shall cease to constitute a majority of the board of directors of
the Borrower unless the individuals who were elected or appointed directors
during such 12 month period were elected or appointed by a majority of the
individuals who were directors of the Borrower on the first day of such period
or their duly appointed or elected successors.
7.11 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 or
7.4, the Commitments shall automatically terminate and the Notes then
outstanding 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 the remaining Sections of this
Article VII, then the Administrative Agent, at the request of the Required
Lenders, and without notice to the Borrower, shall declare the Borrower in
default hereunder, and upon such declaration, shall, at the request of the
Required Lenders, terminate the Commitments and/or declare the Notes then
outstanding immediately due and payable, without necessity of any further
demand, presentation, protest, notice of dishonor or further notice of default,
whereupon such Notes shall be immediately due and payable.
7.12 REMEDIES UPON DEFAULT. Upon the termination of the Commitments and
acceleration of the Notes following the occurrence of an Event of Default, the
Lenders shall, unless such termination and acceleration subsequently have been
rescinded, have the full panoply of rights and remedies granted to them under
this Agreement and all those rights and remedies granted by law to creditors,
and the Administrative Agent, at the direction of the Required Lenders, shall
proceed to protect and enforce the Lenders' rights by an action at law, suit in
equity or other appropriate proceeding, whether for the specific performance of
any agreement contained herein, in the Notes or in any of the other Loan
Documents, or for an injunction against a violation of any of the terms hereof
or thereof, or in aid of the exercise of any power granted hereby or thereby or
by law. No right, power or remedy conferred by this Agreement, in the Notes, or
by any other Loan Document, upon the Administrative 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 and the Lenders
specified herein are for the sole and exclusive benefit, use and protection of
the Administrative Agent and the Lenders, and the Administrative 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 or the Lenders hereunder.
ARTICLE VIII. AGREEMENT AMONG LENDERS.
8.1 APPOINTMENT AND GRANT OF AUTHORITY. Each of the Lenders hereby
appoints PNC Bank, National Association, and PNC Bank, National Association
hereby agrees to act as, the Administrative Agent under this Agreement, the
Notes and the other Loan Documents. As such Administrative Agent, PNC Bank,
National Association shall have and may exercise such powers under this
Agreement and the other Loan Documents as are specifically delegated to the
Administrative Agent, by the terms hereto or thereof, together with such other
powers as are incidental thereto. Without limiting the foregoing, the
Administrative Agent, on behalf of the Lenders, is authorized to execute all of
the Loan Documents (other than this Agreement) and to accept all of the Loan
Documents and all other agreements, documents or instruments reasonably required
to carry out the intent of the parties to this Agreement.
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8.2 DELEGATION OF DUTIES. The Administrative 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 Administrative 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 which it is committed
to advance, 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. 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 Revolving Credit Loan which it is
committed to advance made by the Administrative Agent shall not relieve any
other Lender of the obligation to pay its portion of net disbursements of
Revolving Credit Loans on any Borrowing Date, but no Lender shall be responsible
for the failure of any other Lender to make its net share of Revolving Credit
Loans which it is committed to advance to be made by such other Lender on such
Borrowing Date.
8.4 NON-RELIANCE ON ADMINISTRATIVE AGENT . Each Lender agrees that it
has, independently and without reliance on the Administrative Agent, based on
such documents and information as it has deemed appropriate, made its own credit
analysis and evaluation of the Borrower and its operations and decision to enter
into this Agreement and that it will, independently and without reliance upon
the Administrative Agent, and based on such documents and information as it
shall deem appropriate at the time, continue to make its own analysis and
decisions in taking or not taking action under this Agreement. Except as
otherwise provided herein, the Administrative Agent shall have no duty to keep
the Lenders informed as to the performance or observance by the Borrower of this
Agreement or any other document or instrument referred to or provided for herein
or to inspect the properties or books of the Borrower. The Administrative Agent,
in the absence of gross negligence or willful misconduct, shall not be liable to
any Lender for its failure to relay or furnish to the Lender any information.
8.5 RESPONSIBILITY OF ADMINISTRATIVE AGENT AND OTHER MATTERS.
8.5a MINISTERIAL NATURE OF DUTIES. As among the Lenders and the
Administrative Agent, the Administrative Agent shall have no duties or
responsibilities except those expressly set forth in this Agreement, the Notes
or in the other Loan Documents, and those duties and responsibilities shall be
subject to the limitations and qualifications set forth in this Article VIII.
The duties of the Administrative Agent shall be ministerial and administrative
in nature.
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8.5b LIMITATION OF LIABILITY. As among the Lenders and the Administrative
Agent, neither the Administrative Agent nor any of its directors, officers,
employees or agents shall be liable for any action taken or omitted (whether or
not such action taken or omitted is within or without the Administrative Agent's
responsibilities and duties expressly set forth in this Agreement) under or in
connection with this Agreement or any other instrument or document in connection
herewith except for gross negligence or willful misconduct. Without limiting the
foregoing, neither the Administrative Agent nor any of its directors, officers
or employees shall be responsible for, or have any duty to examine (i) the
genuineness, execution, validity, effectiveness, enforceability, value or
sufficiency of (A) this Agreement, the Notes 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 collectability of any amounts owed by the Borrower
to the Lenders, (iii) the truthfulness of any recitals, statements,
representations or warranties made to the Administrative 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 or business, or creditworthiness of the Borrower.
8.5c RELIANCE. The Administrative Agent shall be entitled to act, and
shall be fully protected in acting upon, any telegram, teletype, facsimile
transmission or any writing, application, notice, report, statement,
certificate, resolution, request, order, consent, letter or other instrument,
paper or communication believed by the Administrative Agent in good faith to be
genuine and correct and to have been signed or sent or made by a proper Person.
The Administrative Agent may consult counsel and shall be entitled to act, and
shall be fully protected in any action taken in good faith, in accordance with
advice given by counsel. The Administrative Agent may employ agents and
attorneys-in-fact and shall not be liable for the default or misconduct of any
such agents or attorneys-in-fact selected by the Administrative Agent with
reasonable care. The Administrative Agent shall not be bound to ascertain or
inquire as to the performance or observance of any of the terms, provisions or
conditions of this Agreement or any of the other Loan Documents on the part of
the Borrower or any other party thereto.
8.6 ACTIONS IN DISCRETION OF ADMINISTRATIVE AGENT; INSTRUCTIONS FROM THE
LENDERS. The Administrative Agent agrees, upon the written request of the
Required Lenders, to take or refrain from taking any action of the type
specified as being within the Administrative Agent's rights, powers or
discretion herein or under any Loan Documents, provided that the Administrative
Agent shall not be required to take any action which exposes the Administrative
Agent to personal liability or which is contrary to this Agreement or any other
Loan Document or applicable Law. In the absence of a request by the Required
Lenders, the Administrative Agent shall have authority, in its sole discretion,
to take or not to take any such action, unless this Agreement specifically
requires the consent of the Required Lenders or all of the Lenders. Any action
taken or failure to act pursuant to such instructions or discretion shall be
binding on the Lenders, subject to Section 8.5b hereof. Subject to the
provisions of Section 8.5b, no Lender shall have any right of action whatsoever
against the Administrative Agent as a result of the Administrative Agent acting
or refraining from acting hereunder in accordance with the instructions of the
Required Lenders.
8.7 INDEMNIFICATION. To the extent the Borrower does not reimburse and
save harmless the Administrative Agent according to the terms hereof for and
from all reasonable costs, expenses and disbursements in connection herewith,
such costs, expenses and
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disbursements shall be borne by the Lenders ratably in accordance with each
Lender's Ratable Share. Each Lender hereby agrees on such basis (i) to reimburse
the Administrative Agent for such Lender's Ratable Share of all such reasonable
costs, expenses and disbursements on request and (ii) to the extent of each such
Lender's pro rata share, to indemnify and save harmless the Administrative 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 the
Administrative Agent, other than as a consequence of gross negligence or willful
misconduct on the part of the Administrative Agent, arising out of or in
connection with (i) this Agreement, the Notes, the other Loan Documents or any
other agreement, instrument or document executed or delivered in connection
herewith or therewith, or (ii) any action 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
Commitments of the Administrative Agent as a Lender hereunder, and any Loans of
the Administrative Agent under this Agreement, the other Loan Documents and any
other agreements, instruments and documents delivered pursuant hereto 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 Notes, 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 Facility Fees owing to the Lenders
or other amounts due under any of the Loan Documents (except for such amounts
which are payable for the sole account of any Lender or the Administrative
Agent), the Administrative Agent shall distribute to each Lender that Lender's
Ratable Share of the funds so received.
8.10 PRO RATA SHARING. Except as otherwise set forth in Section 8.3
hereof, all interest and principal payments on the Revolving Credit Loans of a
particular type are to be divided pro rata among the Lenders in proportion to
the Revolving Credit Loans of such type outstanding from each Lender, and all
Facility Fees are to be divided pro rata among the Lenders in accordance with
their respective Short Term Revolving Credit Commitment Percentages or Long Term
Revolving Credit Commitment Percentages, as applicable. 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 outstanding. 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 ADMINISTRATIVE AGENT.
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8.11a RESIGNATION OF ADMINISTRATIVE AGENT. The Administrative Agent may
resign as Administrative Agent hereunder by giving thirty (30) days' prior
written notice to the Lenders and the Borrower. If such notice shall be given,
the Lenders shall appoint a successor agent for the Lenders, during such thirty
(30) day period, which successor agent shall be reasonably satisfactory to the
Borrower, to serve as agent hereunder and under the several Loan Documents. If
at the end of such thirty (30) day period, the Lenders have not appointed such a
successor, the Administrative Agent shall use reasonable commercial efforts to
procure a successor reasonably satisfactory to the Lenders and the Borrower, to
serve as agent for the Lenders hereunder and under the several Loan Documents.
Any such successor agent shall succeed to the rights, powers and duties of the
Administrative Agent.
8.11b RIGHTS OF THE FORMER ADMINISTRATIVE AGENT. Upon the appointment of
such successor agent or upon the expiration of such thirty (30) day period (or
any longer period to which the Administrative Agent has agreed), the former
Administrative Agent's rights, powers and duties as Administrative Agent shall
be terminated, without any other or further act or deed on the part of such
former Administrative Agent or any of the parties to this Agreement. After any
retiring Administrative Agent's resignation hereunder as Administrative Agent
hereunder, the provisions of this Article VIII shall inure to the benefit of
such retiring Administrative Agent as to any actions taken or omitted to be
taken by it while it was Administrative Agent under this Agreement.
8.12 NOTICE OF DEFAULT. The Administrative Agent shall not be deemed to
have knowledge or notice of the occurrence of an Event of Default unless the
Administrative Agent has received written notice from a Lender or the Borrower
referring to this Agreement, describing such Event of Default and stating that
such notice is a "notice of default".
8.13 NOTICES. The Administrative Agent shall promptly send to each Lender
a copy of all notices received from the Borrower pursuant to the provisions of
this Agreement or the other Loan Documents promptly upon receipt thereof. The
Administrative Agent shall promptly notify the Borrower and the other Lenders of
each change in the Base Rate and the effective date thereof.
8.14 HOLDERS OF NOTES. The Administrative Agent may deem and treat any
payee of any 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 Note shall be conclusive and binding on any subsequent holder,
transferee or assignee of such Note or of any Note or Notes issued in exchange
therefor.
8.15 CALCULATIONS. In the absence of gross negligence or willful
misconduct, the Administrative Agent shall not be liable for any error in
computing the amount payable to any Lender whether in respect of the Loans, Fees
or any other amounts due to the Lenders under this Agreement. In the event an
error in computing any amount payable to any Lender is made, the Administrative
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 at the Federal Funds Effective
Rate.
8.16 BENEFICIARIES. Except as expressly provided herein, the provisions
of this Article IX are solely for the benefit of the Administrative Agent and
the Lenders, and the Borrower shall
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not have any rights to rely on or enforce any of the provisions hereof. In
performing its functions and duties under this Agreement, the Administrative
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, extensions, renewals, modifications,
supplements and replacements to and of this Agreement, the Notes 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 amendment,
renewal, modification, extension, supplement, replacement or waiver of any
provision of the Agreement, the Notes or the other Loan Documents or consent to
any departure therefrom by the Borrower 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 waiver or consent
shall be effective only for the specific instance and for the specific purpose
for which it is given; provided, however, that no amendment, renewal,
modification, waiver or consent, 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) except pursuant to Section 2.16 hereof, increase the
Commitments of any Lender or subject any Lender to any additional
obligations hereunder;
(B) except for changes permitted by Section 2.12 or Section 2.16
hereof or changes made pursuant to an Assignment and Assumption Agreement,
change any Lender's Short Term Revolving Credit Commitment Percentage or
Long Term Revolving Credit Commitment Percentage or the aggregate or
individual unpaid principal amount of the Notes, or forgive the payment of
the principal or interest payable on the Notes;
(C) waive an Event of Default in the payment of principal and/or
interest due hereunder and under any of the Notes;
(D) decrease the interest rate relating to the Revolving Credit
Loans;
(E) postpone any date fixed for any payment of principal of or
interest on the Revolving Credit Loans, any Facility Fee, or any other
obligations of the Borrower set forth in Article II;
(F) reduce any Facility Fee; or
(G) amend the definition of the term "Required Lenders" or amend
or waive the provisions of this Section 9.1.
Any such supplemental agreement shall apply equally to the Borrower and each of
the Lenders and shall be binding upon the Borrower, the Lenders, the
Administrative Agent and all future holders of the Notes. In the case of any
waiver, the Borrower, the Lenders and the Administrative Agent shall be restored
to their former positions and rights, and any Event of
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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
(including without limitation the reasonable fees and disbursements of the
Administrative Agent's special counsel, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, P.C.), 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 reasonable costs and expenses of the Administrative Agent
and the Lenders (including without limitation the reasonable 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 arising pursuant to a breach
by the Borrower of any of the terms, conditions, representations,
warranties or covenants of any Loan Document to which it is a party, and
(B) defending or prosecuting any actions, suits or proceedings relating to
any of the Loan Documents.
All of such costs and expenses shall be payable by the Borrower to the Lenders
or the Administrative Agent, as the case may be, upon demand or as otherwise
agreed upon by the Lenders or the Administrative Agent and the Borrower, and
shall constitute Bank Indebtedness under this Agreement. The Borrower further
agrees to pay, and save the Administrative 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 or the issuance of the
Notes. The Borrower's obligation to pay such costs and expenses shall survive
the termination of this Agreement and the repayment of the Bank Indebtedness.
9.3 NOTICES. Any notice, request, demand, direction or other
communication (for purposes of this Section 9.3 only, a "Notice") to be given to
or made upon any party hereto under any provision of this Agreement or any other
Loan Document shall be given or made by telephone or in writing (which includes
by means of electronic transmission (i.e., "e-mail") or facsimile transmission
or by setting forth such Notice on a site on the World Wide Web (a "Website
Posting") if Notice of such Website Posting (including the information necessary
to access such site) has previously been delivered to the applicable parties
hereto by another means set forth in this Section 9.3) in accordance with this
Section 9.3. Any such Notice must be delivered to the applicable parties hereto
at the addresses and numbers set forth below or in accordance with any
subsequent unrevoked Notice from any such party that is given in accordance with
this Section 9.3. Any Notice shall be effective:
(i) In the case of hand-delivery, when delivered;
(ii) If given by mail, four days after such Notice is deposited
with the United States Postal Service, certified or registered mail
postage prepaid, return receipt requested;
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(iii) In the case of a telephonic Notice, when a party is contacted
by telephone, if delivery of such telephonic Notice is confirmed no later
than the next Business Day by hand delivery, a facsimile or electronic
transmission, a Website Posting or an overnight courier delivery of a
confirmatory Notice (received before the close of business on such next
Business Day);
(iv) In the case of a facsimile transmission, when sent to the
applicable party's facsimile machines telephone number, if the party
sending such Notice receives confirmation of the delivery thereof from its
own facsimile machine;
(v) In the case of electronic transmission, when actually
received;
(vi) In the case of a Website Posting, upon delivery of a Notice of
such posting (including the information necessary to access such site) by
another means set forth in this Section 9.3; and
(vii) If given by any other means (including by overnight courier),
when actually received.
Any Lender giving a Notice to the Borrower shall concurrently send a copy
thereof to the Administrative Agent, and the Administrative Agent shall promptly
notify the other Lenders of its receipt of such Notice.
9.3a NOTICE TO THE BORROWER.
New Jersey Natural Gas Company
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Director of Treasury Services
Treasurer/General Counsel
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
9.3b NOTICE TO THE ADMINISTRATIVE AGENT.
PNC Bank, National Association
Agency Services
One PNC Plaza - 22nd Floor
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Telephone (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
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with a copy to:
PNC Bank, National Association
▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Vice President
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
9.3c NOTICE TO THE LENDERS. All notices required to be delivered to the
Lenders pursuant to this Agreement shall be sent to the addresses set forth on
the signature pages of the Agreement or such Lender's signature page to the
Assignment and Assumption Agreement executed by it as a Purchasing Lender.
9.4 TAX WITHHOLDING. At least five (5) Business Days prior to the first
date on which interest or fees are payable hereunder for the account of each
Lender, each Lender or assignee or participant of a Lender that is not
incorporated under the laws of the United States of America or a state thereof
agrees that it will deliver to the Administrative Agent and the Borrower two (2)
duly completed copies of either (i) IRS Form W-9, 1001 or 4224 or such other
applicable form prescribed by the IRS, certifying in each case that such Lender
or assignee or participant of a Lender is entitled to receive payments under
this Agreement or its Notes without deduction or withholding of United States
federal income taxes, or is subject to such tax at a reduced rate under an
applicable tax treaty or (ii) IRS Form W-8 or such other applicable form
prescribed by the IRS or a certificate of such Lender or assignee or participant
of a Lender indicating that no such exemption or reduced rate of taxation is
allowable with respect to such payments. Each Lender or assignee or participant
of a Lender which delivers an IRS Form W-8, W-9, 4224 or 1001 further undertakes
to deliver to the Administrative Agent and the Borrower two (2) additional
copies of any such form (or any successor form) on or before the date on which
that form expires or becomes obsolete or after the occurrence of any event
requiring a change in the most recent form so delivered by it, and such
amendments thereto or extensions or renewals thereof as may be reasonably
requested by the Borrower or the Administrative Agent, either certifying that
such Lender or assignee or participant of a Lender is entitled to receive
payments under this Agreement or its Notes without deduction or withholding of
any United States federal income taxes or is subject to such tax at a reduced
rate under an applicable tax treaty or stating the date on which that no such
exemption or reduced rate is allowable. The Administrative Agent shall be
entitled to withhold, from each payment hereunder or under the Notes payable to
it, United States federal income taxes at the full withholding rate unless each
Lender referred to in the first sentence of this Section 9.4 establishes an
exemption or at the applicable reduced rate established pursuant to the above
provisions.
9.5 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon the
Borrower, the Administrative Agent and the Lenders and their respective
successors and assigns, and shall inure to the benefit of the Borrower, the
Administrative Agent and the Lender and the successors and assigns of the
Administrative Agent and the Lender; 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.
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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 commercial banking 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 Notes
then held by it, pursuant to an Assignment and Assumption Agreement
substantially in the form of Exhibit "I" executed by the Transferor Lender, such
Purchasing Lender, the Borrower (if Borrower's consent is required for such
transfer as provided below) and the Administrative Agent; subject, however to
the following requirements:
(i) Each such assignment must be in a minimum amount of
$5,000,000, or, if in excess thereof, in integral multiples of $1,000,000,
unless such Lender's Commitment is less than $5,000,000, in which case
such assignment shall be in the full amount of such Lender's Commitment;
(ii) During the first ninety (90) days following the Closing Date,
each assignment made shall become effective only on a date which coincides
with the expiration date of any Euro-Rate Interest Period then in effect,
unless the Administrative Agent agrees to waive this provision;
(iii) The Administrative Agent and the Borrower must each give its
prior consent to any such assignment which consent shall not be
unreasonably withheld; it being agreed that it shall not be deemed
unreasonable for the Borrower to decline to consent to such assignment if
(A) such assignment would result in the occurrence of additional costs to
the Borrower under Article II, or (B) the proposed assignee has not
provided to the Borrower any tax forms received under Section 9.4;
provided, however, no consent is required for the transfer by a Lender to
its Affiliate or to another Lender so long as the conditions in clauses
(A) and (B) immediately above are satisfied;
(iv) Each such assignment (A) with respect to the Short Term
Revolving Credit shall be of a constant, and not a varying, percentage of
the Transferor Lender's Short Term Revolving Credit Commitment,
outstanding Short Term Revolving Credit Loans and all other rights and
obligations under this Agreement and the other Loan Documents with respect
thereto; and (B) with respect to the Long Term Revolving Credit shall be
of a constant, and not a varying, percentage of the Transferor Lender's
Long Term Revolving Credit Commitment, outstanding Long Term Revolving
Credit Loans and all other rights and obligations under this Agreement and
the other Loan Documents with respect thereto.
(v) 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;
provided, however the restrictions set forth in item (i) above shall not apply
(x) in the case of an assignment by a Lender to an Affiliate of such Lender or
(y) in the case of any assignment by any Transferor Lender upon the occurrence
and during the continuation of an Event of Default; and provided further, that
upon the occurrence and during the continuance of an Event of Default the
consent of the Borrower to any assignment is not required.
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
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thereunder shall be a party hereto as a Lender and, to the extent provided in
such Assignment and Assumption Agreement, shall have the rights and obligations
of a Lender hereunder with a Commitment as set forth therein, and (b) the
Transferor Lender thereunder shall, to the extent provided in such Assignment
and Assumption Agreement, be released from its obligations as a Lender under
this Agreement. Such Assignment and Assumption Agreement shall be deemed to
amend this Agreement (without further action) to the extent, and only to the
extent, necessary to reflect the addition of such Purchasing Lender as a Lender
and the resulting adjustment of Ratable Share arising from the purchase by such
Purchasing Lender of all or a portion of the rights and obligations of such
Transferor Lender under this Agreement and its Notes. On or prior to the
Transfer Effective Date, the Borrower shall execute and deliver to the
Administrative Agent, in exchange for the surrendered Notes held by the
Transferor Lender, new Notes to the order of such Purchasing Lender in amounts
equal to the Commitments or the Loans assumed by it and purchased by it pursuant
to such Assignment and Assumption Agreement, and new Notes to the order of the
Transferor Lender in amounts equal to the Commitments or the Loans retained by
it hereunder.
In addition to the assignments permitted above, any Lender may assign and pledge
all or any portion of its Loans and Notes 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. No such assignment 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 9.3b, 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 9.3b for inspection by either Borrower or any Lender at any
reasonable time and from time to time upon reasonable prior notice.
9.6c PARTICIPATIONS. Each Lender, in the ordinary course of its
commercial banking business and in accordance with applicable law, may sell to
one or more Participants a participating interest in any Loan owing to such
Lender, the interest of such Lender in any Notes or the Commitments of such
Lender. In the event of any such sale by a Lender of a participating interest to
a Participant, such Lender's obligations under this Agreement to the other
parties to this Agreement shall remain unchanged, such Lender shall remain
solely responsible for the performance thereof, such Lender shall remain the
holder of its Notes for all purposes under this Agreement and the Borrower, the
other Lenders and the Administrative Agent shall continue to deal solely and
directly with such Lender in connection with such Lender's rights and
obligations under this Agreement or its Notes and the Participants shall have
voting rights only with respect to matters described in items (B), (C), (D), (E)
and (F) of Section 9.1.
9.6d PROVISIONS FOR SPECIAL PURPOSE FUNDING VEHICLES. Notwithstanding
anything to the contrary contained herein, any Lender (a "Granting Lender") may
grant to a special purpose funding vehicle (an "SPC") of such Granting Lender,
identified as such in writing from time to time by the Granting Lender to the
Administrative Agent and the Borrower, the option to provide to the Borrower all
or any part of any Loan that such Granting Lender would otherwise be
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obligated to make to the Borrower provided that (i) nothing herein shall
constitute a commitment to make any Loan by such SPC and (ii) if an SPC elects
not to exercise such option or otherwise fails to provide all or any part of
such Loan, the Granting Lender shall be obligated to make such Loan pursuant to
the terms hereof. The making of a Loan by an SPC hereunder shall utilize the
Commitments of the Granting Lender to the same extent, and as if, such Loan were
made by the Granting Lender. Each party hereto hereby agrees that no SPC shall
be liable for any payment under this Agreement for which a Lender would
otherwise be liable, for so long as, and to the extent, the related Granting
Lender makes such payment. In furtherance of the foregoing, each party hereto
hereby agrees that, prior to the date that is one year and one day after the
later of (i) the payment in full of all outstanding senior indebtedness of such
SPC and (ii) the Termination Date, it will not institute against, or join any
other person in instituting against such SPC any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings or similar proceedings under
the laws of the United States or any State thereof. In addition, notwithstanding
anything to the contrary contained in this Section 9.6d, such SPC may (i) with
prior written consent of the Borrower and the Administrative Agent (such consent
not to be unreasonably withheld) and without paying any processing fee therefor,
assign all or a portion of its interests in any Loans to its Granting Lender or
to any financial institutions providing liquidity and/or credit facilities to or
for the account of such SPC to fund the Loans made by such SPC or to support the
securities (if any) issued by such SPC to fund such Loans and (ii) disclose on a
confidential basis any non-public information relating to its Loans to any
rating agency, commercial paper dealer or provider of a surety, guarantee or
credit or liquidity enhancement to such SPC. In no event shall the Borrower be
obligated to pay an SPC that has made a Loan in a greater amount than the
Borrower would have been obligated to pay under this Agreement if the Granting
Lender had made such Loan. Each Granting Lender shall indemnify and hold
harmless the Borrower and its directors, officers, employees and agents from and
against any and all losses, liabilities, claims, damages and expenses arising
from or attributable to the making of a Loan by an SPC of such Granting Lender.
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 Notes or in the other Loan Documents or
made in writing in connection herewith or therewith shall survive the issuance
of the Notes 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
Notes and the Bank Indebtedness.
9.9 GOVERNING LAW. This Agreement, each Note 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 Jersey 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 Notes is due and payable on a day which is not a Business Day, such payment
may be made on the next succeeding Business Day.
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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 gives to the Lenders a lien and
security interest for the amount of any Bank Indebtedness upon and in any
property, credits, securities or money of the Borrower which may at any time be
delivered to, or be in the possession of, or owed by any Lender in any capacity
whatever, including the balance of any deposit account but excluding any trust
or fiduciary accounts, in each case maintained by the Borrower with such Lender.
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 whatever to satisfy an independent obligation of the
Borrower to the Lender.
9.14 CONSENT TO FORUM. The parties hereto each hereby irrevocably
consents to the nonexclusive jurisdiction of the Court of Common Pleas of
Allegheny County, Pennsylvania, or in the District Court of the United States
for the Western District of Pennsylvania in any action or proceeding arising out
of or relating to this Agreement, the Notes 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 Commonwealth of Pennsylvania. 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 Lenders
and the Borrower hereby knowingly, voluntarily and intentionally waive any
rights they may have to a trial by jury in respect of any litigation based
hereon, or arising out of, under, or in connection with, this Agreement or any
other Loan Document, or any course of conduct, course of dealing, statements
(whether verbal or written) or actions of the Administrative Agent, the Lenders
or the Borrower relating hereto or thereto. 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 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
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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 Agents 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 the
Administrative Agent, or any Lender 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 Administrative Agent's or such
Lender's negligence or willful misconduct, or (ii) any other losses,
liabilities, damages, claims, or costs which arise directly from the
Administrative Agent's, or such Lender's gross negligence or willful misconduct.
All amounts owed pursuant to this Section 9.16 shall be part of the Bank
Indebtedness.
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. Each Lender agrees to maintain in confidence and
not to disclose without the Borrower's consent (other than to its employees,
affiliates, auditors, counsel or other professional advisors, or to another
Lender, each of which shall also be bound by this Section 9.18) any information
concerning the Borrower or its Subsidiaries furnished pursuant to this Agreement
and identified as confidential by the party so furnishing such information;
provided that any Lender may disclose any such information (a) that has become
generally available to the public, (b) if required or appropriate in any report,
statement or testimony submitted to any regulatory body having or claiming to
have jurisdiction over such Lender, (c) if required or appropriate in respect to
any summons or subpoena or in connection with any litigation, (d) in order to
comply with any law, order, regulation or ruling applicable to such Lender, or
(e) to any prospective or actual participant under Section 9.6 hereof in
connection with any contemplated or actual transfer of a participating or other
interest in such Lender's rights or liabilities hereunder; provided, that (i)
such actual or prospective transferee executes an agreement with such Lender
containing provisions substantially identical to those contained in this Section
9.18 and (ii) in the case of any disclosure under subsection (c) above, such
Lender shall (to the extent permitted by applicable law) notify the Borrower of
such disclosure so that the Borrower may seek an appropriate protective order or
waive such Lender's compliance with the provisions of this Section, it being
understood that if the Borrower has no right to obtain such a protective order
or if the Borrower does not commence procedures to obtain such a protective
order within ten (10) Business Days of the receipt of such notice, such Lender's
compliance with this Section shall be deemed to have been waived with respect to
such disclosure.
9.19 CERTAIN MATTERS REGARDING THE EXISTING CREDIT AGREEMENT. This
Agreement is intended to amend, restate and replace the Existing Credit
Agreement except with respect to
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any provisions thereof which by their terms expressly survive the payment of the
Borrower's obligations thereunder.
[THE REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto, intending to be legally
bound hereby, have caused this Amended and Restated Credit Agreement to be
executed by their respective officers thereunto duly authorized as of the date
first written above.
ATTEST: NEW JERSEY NATURAL GAS COMPANY
By: (SEAL) By:
------------------------------ -------------------------------
(SEAL)
------------------
Name: Name:
----------------------------- -----------------------------
Title: Title:
---------------------------- ----------------------------
PNC BANK, NATIONAL ASSOCIATION, in
its capacity as the Administrative
Agent hereunder
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
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IN WITNESS WHEREOF, intending to be legally bound hereby, the
undersigned Lender has caused this Amended and Restated Credit Agreement by and
among NEW JERSEY NATURAL GAS COMPANY, THE LENDERS PARTY HERETO and PNC BANK,
NATIONAL ASSOCIATION, as the Administrative Agent to be executed by its duly
authorized officers as of the date first above written.
Short Term Revolving Credit PNC BANK, NATIONAL ASSOCIATION
Commitment: $14,842,105.26
Short Term Revolving Credit
Commitment Percentage: By:
18.55263158% ----------------------------------
Name:
--------------------------------
Title:
-------------------------------
Long Term Revolving Credit
Commitment: $29,824,561.40
Long Term Revolving Credit
Commitment Percentage:
29.82456140%
Addresses for notice purposes:
If by United States Mail: If by other means:
PNC Bank, National Association PNC Bank, National Association
Agency Services Agency Services
One PNC ▇▇▇▇▇ - ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇ - ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇ Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to: With a copy to:
PNC Bank, National Association PNC Bank, National Association
▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇ Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Vice President Vice President
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Address for Euro-Rate Loan Funding if different from above:
N/A
----------------------------------
Telephone:
------------------------
Telecopier:
-----------------------
Telex:
----------------------------
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IN WITNESS WHEREOF, intending to be legally bound hereby, the
undersigned Lender has caused this Amended and Restated Credit Agreement by and
among NEW JERSEY NATURAL GAS COMPANY, THE LENDERS PARTY HERETO and PNC BANK,
NATIONAL ASSOCIATION, as the Administrative Agent to be executed by its duly
authorized officers as of the date first above written.
Short Term Revolving Credit FLEET NATIONAL BANK
Commitment:
$ 0
Short Term Revolving Credit
Commitment Percentage: By:
----------------------------------
0 % Name:
--------------------------------
Title:
-------------------------------
Long Term Revolving Credit
Commitment:
$21,052,631.58
Long Term Revolving Credit
Commitment Percentage:
21.05263158%
Addresses for notice purposes:
If by United States Mail: If by other means:
Fleet National Bank Fleet National Bank
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Address for Eurodollar Rate Loan Funding if different from above:
N/A
----------------------------------
Telephone:
------------------------
Telecopier:
-----------------------
Telex:
----------------------------
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IN WITNESS WHEREOF, intending to be legally bound hereby, the
undersigned Lender has caused this Amended and Restated Credit Agreement by and
among NEW JERSEY NATURAL GAS COMPANY, THE LENDERS PARTY HERETO and PNC BANK,
NATIONAL ASSOCIATION, as the Administrative Agent to be executed by its duly
authorized officers as of the date first above written.
Short Term Revolving Credit BANK ONE, N.A.
Commitment:
$ 0
Short Term Revolving Credit
Commitment Percentage: By:
----------------------------------
0 % Name:
--------------------------------
Title:
-------------------------------
Long Term Revolving Credit
Commitment:
$14,035,087.72
Long Term Revolving Credit
Commitment Percentage:
14.03508772%
Addresses for notice purposes:
If by United States Mail: If by other means:
Bank One, N.A. Bank One, N.A.
▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇ ▇-▇▇▇▇ 1 Bank ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇ ▇-▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇ Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Address for Eurodollar Rate Loan Funding if different from above:
▇▇▇▇▇▇▇ Driver
Client Service Associate
1 Bank One Plaza Suite IL 1-0634
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telex:
--------------------------
-66-
IN WITNESS WHEREOF, intending to be legally bound hereby, the
undersigned Lender has caused this Amended and Restated Credit Agreement by and
among NEW JERSEY NATURAL GAS COMPANY, THE LENDERS PARTY HERETO and PNC BANK,
NATIONAL ASSOCIATION, as the Administrative Agent to be executed by its duly
authorized officers as of the date first above written.
Short Term Revolving Credit THE BANK OF NEW YORK
Commitment:
$4,385,964.91
Short Term Revolving Credit
Commitment Percentage: By:
----------------------------------
5.48245614% Name:
--------------------------------
Title:
-------------------------------
Long Term Revolving Credit
Commitment:
$8,771,929.82
Long Term Revolving Credit
Commitment Percentage:
8.77192982%
Addresses for notice purposes:
If by United States Mail: If by other means:
The Bank of New York The Bank of New York
One ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ One Wall Street, 19th Floor
New York, New York 10286 ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Address for Eurodollar Rate Loan Funding if different from above:
The Bank of New York
Commercial Loan Servicing Department
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone:
--------------------------
Telecopier:
-------------------------
Telex:
------------------------------
-67-
IN WITNESS WHEREOF, intending to be legally bound hereby, the
undersigned Lender has caused this Amended and Restated Credit Agreement by and
among NEW JERSEY NATURAL GAS COMPANY, THE LENDERS PARTY HERETO and PNC BANK,
NATIONAL ASSOCIATION, as the Administrative Agent to be executed by its duly
authorized officers as of the date first above written.
Short Term Revolving Credit CITIZENS BANK OF MASSACHUSETTS
Commitment:
$4,385,964.91
Short Term Revolving Credit
Commitment Percentage: By:
----------------------------------
5.48245614% Name:
--------------------------------
Title:
-------------------------------
Long Term Revolving Credit
Commitment:
$8,771,929.82
Long Term Revolving Credit
Commitment Percentage:
8.77192982%
Addresses for notice purposes:
If by United States Mail: If by other means:
Citizens Bank of Massachusetts Citizens Bank of Massachusetts
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Address for Eurodollar Rate Loan Funding if different from above:
N/A
--------------------------------
Telephone:
----------------------
Telecopier:
---------------------
Telex:
--------------------------
-68-
IN WITNESS WHEREOF, intending to be legally bound hereby, the
undersigned Lender has caused this Amended and Restated Credit Agreement by and
among NEW JERSEY NATURAL GAS COMPANY, THE LENDERS PARTY HERETO and PNC BANK,
NATIONAL ASSOCIATION, as the Administrative Agent to be executed by its duly
authorized officers as of the date first above written.
Short Term Revolving Credit BANK OF TOKYO-MITSUBISHI TRUST COMPANY
Commitment:
$18,500,000
Short Term Revolving Credit
Commitment Percentage: By:
------------------------------------
23.12500000% Name:
----------------------------------
Title:
---------------------------------
Long Term Revolving Credit
Commitment:
$8,771,929.82
Long Term Revolving Credit
Commitment Percentage:
8.77192982%
Addresses for notice purposes:
If by United States Mail: If by other means:
Bank of Tokyo-Mitsubishi Trust Company Bank of Tokyo-Mitsubishi Trust Company
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ 1251 Avenue of the Americas, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Address for Eurodollar Rate Loan Funding if different from above:
N/A
------------------------------------
Telephone:
--------------------------
Telecopier:
-------------------------
Telex:
------------------------------
-69-
IN WITNESS WHEREOF, intending to be legally bound hereby, the
undersigned Lender has caused this Amended and Restated Credit Agreement by and
among NEW JERSEY NATURAL GAS COMPANY, THE LENDERS PARTY HERETO and PNC BANK,
NATIONAL ASSOCIATION, as the Administrative Agent to be executed by its duly
authorized officers as of the date first above written.
Short Term Revolving Credit JPMORGAN CHASE BANK
Commitment:
$4,385,964.91
Short Term Revolving Credit
Commitment Percentage: By:
----------------------------------
5.48245614% Name:
--------------------------------
Title:
-------------------------------
Long Term Revolving Credit
Commitment:
$8,771,929.82
Long Term Revolving Credit
Commitment Percentage:
8.77192982%
Addresses for notice purposes:
If by United States Mail: If by other means:
JPMorgan Chase Bank ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ Bank
▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇/18
Address for Eurodollar Rate Loan Funding if different from above:
N/A
------------------------------------
Telephone:
--------------------------
Telecopier:
-------------------------
Telex:
------------------------------
-70-
IN WITNESS WHEREOF, intending to be legally bound hereby, the
undersigned Lender has caused this Amended and Restated Credit Agreement by and
among NEW JERSEY NATURAL GAS COMPANY, THE LENDERS PARTY HERETO and PNC BANK,
NATIONAL ASSOCIATION, as the Administrative Agent to be executed by its duly
authorized officers as of the date first above written.
Short Term Revolving Credit SUNTRUST BANK, N.A.
Commitment:
$15,000,000
Short Term Revolving Credit
Commitment Percentage: By:
----------------------------------
18.75000000% Name:
--------------------------------
Title:
-------------------------------
Long Term Revolving Credit
Commitment:
$ 0.00
Long Term Revolving Credit
Commitment Percentage:
0%
Addresses for notice purposes:
If by United States Mail: If by other means:
SunTrust Bank, N.A. SunTrust Bank, N.A.
MC1929, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇ Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Address for Eurodollar Rate Loan Funding if different from above:
N/A
------------------------------------
Telephone:
--------------------------
Telecopier:
-------------------------
Telex:
------------------------------
-71-
IN WITNESS WHEREOF, intending to be legally bound hereby, the
undersigned Lender has caused this Amended and Restated Credit Agreement by and
among NEW JERSEY NATURAL GAS COMPANY, THE LENDERS PARTY HERETO and PNC BANK,
NATIONAL ASSOCIATION, as the Administrative Agent to be executed by its duly
authorized officers as of the date first above written.
Short Term Revolving Credit THE BANK OF NOVA SCOTIA
Commitment:
$18,500,000
Short Term Revolving Credit
Commitment Percentage: By:
----------------------------------
23.12500000% Name:
--------------------------------
Title:
-------------------------------
Long Term Revolving Credit
Commitment:
$ 0.00
Long Term Revolving Credit
Commitment Percentage:
0%
Addresses for notice purposes:
If by United States Mail: If by other means:
The Bank of Nova Scotia The Bank of Nova Scotia
▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Address for Eurodollar Rate Loan Funding if different from above:
N/A
------------------------------------
Telephone:
--------------------------
Telecopier:
-------------------------
Telex:
------------------------------
-72-