Nicor Inc.
Form 10-Q
Exhibit 10.2
Execution Copy
210-DAY
CREDIT AGREEMENT
DATED AS OF
SEPTEMBER 13, 2005
AMONG
NORTHERN ILLINOIS GAS COMPANY,
as Borrower,
THE FINANCIAL INSTITUTIONS PARTY HERETO,
as Lenders,
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent,
ABN AMRO BANK N.V.,
as Syndication Agent,
and
WACHOVIA BANK, N.A., THE BANK OF TOKYO-MITSUBISHI, LTD., CHICAGO
BRANCH and THE BANK OF NEW YORK,
as Documentation Agents
▇.▇. ▇▇▇▇▇▇ SECURITIES INC. and ABN AMRO INCORPORATED,
as Joint Lead-Arrangers and Bookrunners
TABLE OF CONTENTS
-----------------
(This Table of Contents is not part of the Agreement)
PAGE
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SECTION 1. DEFINITIONS; INTERPRETATION...................................1
Section 1.1 Definitions...................................................1
Section 1.2 Interpretation...............................................13
SECTION 2. THE CREDITS..................................................13
Section 2.1 The Revolving Loan Commitment................................13
Section 2.2 Applicable Interest Rates....................................14
Section 2.3 Minimum Borrowing Amounts....................................15
Section 2.4 Manner of Borrowing Loans and Designating Interest Rates
Applicable to Loans..........................................16
Section 2.5 Interest Periods.............................................18
Section 2.6 Maturity of Loans............................................19
Section 2.7 Prepayments..................................................19
Section 2.8 Default Rate.................................................19
Section 2.9 Evidence of Debt.............................................20
Section 2.10 Funding Indemnity............................................21
Section 2.11 Commitments..................................................21
Section 2.12 Increase in the Aggregate Commitments........................22
SECTION 3. FEES AND EXTENSIONS..........................................23
Section 3.1 Fees.........................................................24
Section 3.2 Extensions...................................................24
SECTION 4. PLACE AND APPLICATION OF PAYMENTS............................26
SECTION 5. REPRESENTATIONS AND WARRANTIES...............................26
Section 5.1 Corporate Organization and Authority.........................26
Section 5.2 Subsidiaries.................................................26
Section 5.3 Corporate Authority and Validity of Obligations..............27
Section 5.4 Financial Statements.........................................27
Section 5.5 No Litigation; No Labor Controversies........................28
Section 5.6 Taxes........................................................28
Section 5.7 Approvals....................................................28
Section 5.8 ERISA........................................................28
Section 5.9 Government Regulation........................................28
Section 5.10 Margin Stock; Use of Proceeds................................29
Section 5.11 Environmental Warranties.....................................29
Section 5.12 Ownership of Property; Liens.................................30
Section 5.13 Compliance with Agreements...................................30
Section 5.14 Full Disclosure..............................................30
Section 5.15 Solvency.....................................................31
SECTION 6. CONDITIONS PRECEDENT.........................................31
Section 6.1 Initial Borrowing............................................31
Section 6.2 All Borrowings...............................................32
SECTION 7. COVENANTS....................................................32
Section 7.1 Corporate Existence; Material Subsidiaries...................32
Section 7.2 Maintenance..................................................33
Section 7.3 Taxes........................................................33
Section 7.4 ERISA........................................................33
Section 7.5 Insurance....................................................33
Section 7.6 Financial Reports and Other Information......................33
Section 7.7 Lender Inspection Rights.....................................35
Section 7.8 Conduct of Business..........................................36
Section 7.9 Liens........................................................36
Section 7.10 Use of Proceeds; Regulation U................................37
Section 7.11 Mergers, Consolidations and Sales of Assets..................38
Section 7.12 Environmental Matters........................................38
Section 7.13 Investments, Acquisitions, Loans, Advances and Guaranties....39
Section 7.14 Restrictions on Indebtedness.................................40
Section 7.15 Leverage Ratio...............................................40
Section 7.16 [Intentionally Omitted]......................................40
Section 7.17 Dividends and Other Shareholder Distributions................40
Section 7.18 No Negative Pledges..........................................41
Section 7.19 Transactions with Affiliates.................................41
Section 7.20 Compliance with Laws.........................................41
Section 7.21 Derivative Obligation........................................41
Section 7.22 Sales and Leasebacks.........................................42
Section 7.23 OFAC; BSA....................................................42
SECTION 8. EVENTS OF DEFAULT AND REMEDIES...............................42
Section 8.1 Events of Default............................................42
Section 8.2 Non-Bankruptcy Defaults......................................44
Section 8.3 Bankruptcy Defaults..........................................44
SECTION 9. CHANGE IN CIRCUMSTANCES; TAXES...............................45
Section 9.1 Change of Law................................................45
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Section 9.2 Unavailability of Deposits or Inability to Ascertain, or
Inadequacy of, LIBOR.........................................45
Section 9.3 Increased Cost...............................................45
Section 9.4 Taxes........................................................47
Section 9.5 Mitigation Obligations; Replacement of Lenders...............49
Section 9.6 Discretion of Lender as to Manner of Funding.................50
SECTION 10. THE AGENT....................................................51
Section 10.1 Appointment and Authority....................................51
Section 10.2 Rights as a Lender...........................................51
Section 10.3 Exculpatory Provisions.......................................51
Section 10.4 Reliance by Administrative Agent.............................52
Section 10.5 Delegation of Duties.........................................53
Section 10.6 Resignation of Administrative Agent..........................53
Section 10.7 Non-Reliance on Administrative Agent and Other Lenders.......53
Section 10.8 No Other Duties, etc.........................................54
SECTION 11. MISCELLANEOUS................................................54
Section 11.1 No Waiver of Rights..........................................54
Section 11.2 Non-Business Day.............................................54
Section 11.3 Survival of Representations..................................54
Section 11.4 Survival of Indemnities......................................54
Section 11.5 Set-Off; Sharing of Payments.................................54
Section 11.6 Notices......................................................56
Section 11.7 Counterparts; Integration; Effectiveness; Electronic
Execution....................................................57
Section 11.8 Successors and Assigns.......................................58
Section 11.9 Amendments...................................................61
Section 11.10 Headings.....................................................62
Section 11.11 Expenses; Indemnity; Waiver..................................62
Section 11.12 Entire Agreement.............................................63
Section 11.13 Governing Law; Jurisdiction; Etc.............................63
Section 11.14 WAIVER OF JURY TRIAL.........................................64
Section 11.15 Treatment of Certain Information; Confidentiality............65
Section 11.16 Patriot Act..................................................65
EXHIBITS
A - Form of Note
B - Form of Compliance Certificate
C - Assignment and Assumption
D - Notice of Borrowing
SCHEDULES
iii
SCHEDULE 1 Pricing Grid
SCHEDULE 2 Commitments
SCHEDULE 4 Administrative Agent Notice and Payment Info
SCHEDULE 5.2 Schedule of Existing Subsidiaries
SCHEDULE 7.13 Permitted Investments
SCHEDULE 7.17 Restrictions on Distributions and Existing Negative
Pledges
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210-DAY CREDIT AGREEMENT
210-DAY CREDIT AGREEMENT, dated as of September 13, 2005 among Northern
Illinois Gas Company, an Illinois corporation (the "Borrower"), the financial
institutions from time to time party hereto (each a "Lender," and collectively
the "Lenders"), and JPMorgan Chase Bank, N.A. in its capacity as agent for the
Lenders hereunder (in such capacity, the "Administrative Agent").
WITNESSETH THAT:
WHEREAS, the Borrower desires to obtain the several commitments of the
Lenders to make available a 210 day revolving credit facility for loans as
described herein; and
WHEREAS, the Lenders are willing to extend such commitments subject to all
of the terms and conditions hereof and on the basis of the representations and
warranties hereinafter set forth.
NOW, THEREFORE, in consideration of the recitals set forth above and for
other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the parties hereto hereby agree as follows:
SECTION 1. DEFINITIONS; INTERPRETATION.
Section 1.1 Definitions. The following terms when used herein have the
following meanings:
"Adjusted LIBOR" is defined in Section 2.2(b) hereof.
"Administrative Agent" is defined in the first paragraph of this Agreement
and includes any successor Administrative Agent pursuant to Section 10.6 hereof.
"Administrative Questionnaire" means an administrative questionnaire in a
form supplied by the Administrative Agent.
"Affiliate" means, as to any Person, any other Person which directly or
indirectly controls, or is under common control with, or is controlled by, such
Person. As used in this definition, "control" (including, with their correlative
meanings, "controlled by" and "under common control with") means possession,
directly or indirectly, of power to direct or cause the direction of management
or policies of a Person (whether through ownership of securities or partnership
or other ownership interests, by contract or otherwise).
"Agreement" means this Credit Agreement, including all Exhibits and
Schedules hereto, as it may be amended, supplemented or otherwise modified from
time to time in accordance with the terms hereof.
"Applicable Margin" means, at any time (i) with respect to Base Rate
Loans, the Base Rate Margin and (ii) with respect to Eurodollar Loans, the
Eurodollar Margin.
"Applicable Telerate Page" is defined in Section 2.2(b) hereof.
"Approved Fund" means any Fund that is administered or managed by (a) a
Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an
entity that administers or manages a Lender.
"Assignment and Assumption" means an assignment and assumption entered
into by a Lender and an Eligible Assignee (with the consent of any party whose
consent is required by Section 11.8(b)), and accepted by the Administrative
Agent, in substantially the form of Exhibit C or any other form approved by the
Administrative Agent.
"Authorized Representative" means, which respect to the Borrower, those
persons whose specimen signature is included in the incumbency certificate
provided by the Borrower pursuant to Section 6.1(c) hereof, or any further or
different officer of the Borrower so named by any Authorized Representative of
the Borrower in a written notice to the Administrative Agent.
"Base Rate" is defined in Section 2.2(a) hereof.
"Base Rate Loan" means a Loan bearing interest prior to maturity at a rate
specified in Section 2.2(a) hereof.
"Base Rate Margin" means the percentage set forth in Schedule 1 hereto
beside the then applicable Level.
"Borrower" is defined in the first paragraph of this Agreement.
"Borrowing" means the total of Loans of a single type advanced, continued
for an additional Interest Period, or converted from a different type into such
type by the Lenders on a single date and in the case of Eurodollar Loans for a
single Interest Period. Borrowings of Loans are made by and maintained ratably
for each of the Lenders according to their Percentages. A Borrowing is
"advanced" on the day Lenders advance funds comprising such Borrowing to the
Borrower, is "continued" on the date a new Interest Period for the same type of
Loans commences for such Borrowing and is "converted" when such Borrowing is
changed from one type of Loan to the other, all as requested by the Borrower
pursuant to Section 2.4(a).
"Business Day" means any day other than a Saturday or Sunday on which
Lenders are not authorized or required to close in New York, New York or
Chicago, Illinois and, if the applicable Business Day relates to the borrowing
or payment of a Eurodollar Loan, on which banks are dealing in U.S. Dollars in
the interbank market in London, England.
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"Capital" means, as of any date of determination thereof, without
duplication, the sum of (A) Consolidated Net Worth plus (B) Consolidated
Indebtedness.
"Capital Lease" means at any date any lease of Property which, in
accordance with GAAP, would be required to be capitalized on the balance sheet
of the lessee.
"Capitalized Lease Obligations" means, for any Person, the amount of such
Person's liabilities under Capital Leases determined at any date in accordance
with GAAP.
"CERCLA" means the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended from time to time.
"CERCLIS" means the Comprehensive Environmental Response Compensation
Liability Information System List, as amended from time to time.
"Change in Law" means the occurrence, after the Closing Date, of any of
the following: (a) the adoption or taking effect of any law, rule, regulation or
treaty, (b) any change in any law, rule, regulation or treaty or in the
administration, interpretation or application thereof by any Governmental
Authority or (c) the making or issuance of any guideline or directive (whether
or not having the force of law) by any Governmental Authority.
"Change of Control Event" means one or more of the following events:
(a) less than a majority of the members of the Board of Directors
of the Borrower shall be persons who either (i) were serving as directors
on the Closing Date or (ii) were nominated as directors and approved by
the vote of the majority of the directors who are directors referred to
in clause (i) above or this clause (ii); or
(b) the stockholders of the Borrower shall approve any plan or
proposal for the liquidation or dissolution of the Borrower; or
(c) a Person or group of Persons acting in concert (other than
the direct or indirect beneficial owners of the Voting Stock of the
Borrower as of the Closing Date) shall, as a result of a tender or
exchange offer, open market purchases, privately negotiated purchases
or otherwise, have become the direct or indirect beneficial owner
(within the meaning of Rule 13d-3 under the Securities Exchange Act
of 1934, as amended from time to time) of Voting Stock of the
Borrower representing more than twenty percent (20%) of the combined
voting power of the outstanding Voting Stock or other ownership
interests for the election of directors or shall have the right to
elect a majority of the Board of Directors of the Borrower; or
3
(d) Except as permitted by Section 7.11, Nicor ceases at any time
to own one hundred percent (100%) of the Voting Stock and other equity
interest of the Borrower.
"Closing Date" means September 13, 2005.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commitment" and "Commitments" are defined in Section 2.1 hereof.
"Compliance Certificate" means a certificate in the form of Exhibit B
hereto.
"Consolidated Assets" means all assets which should be listed on the
consolidated balance sheet of the Borrower and its Subsidiaries, as determined
on a consolidated basis in accordance with GAAP.
"Consolidated Indebtedness" means, for any Person, all Indebtedness of a
Person determined on a consolidated basis in accordance with GAAP.
"Consolidated Net Worth" means for any Person, as of any time the same is
to be determined, the total shareholders' equity (including both common and
preferred) reflected on the balance sheet of such Person after deducting
treasury stock determined on a consolidated basis in accordance with GAAP.
"Contractual Obligation" means, as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or undertaking to
which such Person is a party or by which it or any of its Property is bound.
"Controlled Group" means all members of a controlled group of corporations
and all members of a controlled group of trades or businesses (whether or not
incorporated) under common control which, together with the Borrower, are
treated as a single employer under Section 414(b) or 414(c) of the Code or
Section 4001 of ERISA.
"Credit Documents" means this Agreement, the Notes, the Fee Letters and
all other documents executed in connection herewith or therewith.
"Default" means any event or condition described in Section 8.1 the
occurrence of which would, with the passage of time or the giving of notice, or
both, constitute an Event of Default.
"Derivative Arrangement" means any agreement (including any master
agreement and any agreement, whether or not in writing, relating to any single
transaction) that is an interest rate swap agreement, basis swap, forward rate
agreement, commodity swap, commodity option, equity or equity index swap or
option, bond option, interest rate option, forward foreign exchange agreement,
rate cap, collar or floor agreement, future agreement, currency swap agreement,
cross currency rate swap agreement, swaption, currency option, that relates to
fluctuations in raw material prices or utility or energy
4
prices or other costs, or any other similar agreement, including any option to
enter into any of the foregoing, or any combination of any of the foregoing.
"Derivative Arrangements" shall include all such agreements or arrangements
made or entered into at any time, or in effect at any time, whether or not
related to a Loan.
"Derivative Obligations" means, with respect to any Person, all
liabilities of such Person under any Derivative Arrangement (including but not
limited to obligations and liabilities arising in connection with or as a result
of early or premature termination of a Derivative Arrangement, whether or not
occurring as a result of a default thereunder), absolute or contingent, now or
hereafter existing or incurred or due or to become due.
"Eligible Assignee" means (a) a Lender, (b) an Affiliate of a Lender, (c)
an Approved Fund, and (d) any other Person (other than a natural person)
approved by (i) the Administrative Agent, and (ii) unless an Event of Default
has occurred and is continuing, the Borrower (each such approval not to be
unreasonably withheld or delayed); provided that notwithstanding the foregoing,
"Eligible Assignee" shall not include the Borrower or any of the Borrower's
Affiliates or Subsidiaries.
"Environmental Laws" means any and all federal, state, local and foreign
statutes, laws, judicial decisions, regulations, ordinances, rules, judgments,
orders, decrees, plans, injunctions, permits, concessions, grants, franchises,
licenses, agreements and other governmental restrictions relating to (i) the
protection of the environment, (ii) the effect of the environment on human
health, (iii) emissions, discharges or releases of pollutants, contaminants,
hazardous substances or wastes into surface water, ground water or land, or (iv)
the manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of pollutants, contaminants, hazardous substances or
wastes or the clean-up or other remediation thereof.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the regulations issued thereunder.
"Eurodollar Loan" means a Loan bearing interest prior to its maturity at
the rate specified in Section 2.2(b) hereof.
"Eurodollar Margin" means the percentage set forth in Schedule 1 hereto
beside the then applicable Level.
"Eurodollar Reserve Percentage" is defined in Section 2.2(b) hereof.
"Event of Default" means any of the events or circumstances specified in
Section 8.1 hereof.
"Excluded Taxes" means, with respect to the Administrative Agent, any
Lender, or any other recipient of any payment to be made by or on account of any
obligation of the Borrower hereunder, (a) taxes imposed on or measured by its
overall net income (however denominated), and franchise taxes imposed on it (in
lieu of net income taxes), or similar taxes (including alternative minimum
taxes) imposed by a Governmental
5
Authority in jurisdiction (or any political subdivision thereof) as a result of
a connection between the Administrative Agent, Lender or other recipient and
such jurisdiction (or any political subdivision thereof), (b) any branch profits
taxes imposed by the United States of America or any similar tax imposed by any
other jurisdiction in which the Borrower is located and (c) in the case of a
Foreign Lender (other than an assignee pursuant to a request by the Borrower
under Section 9.5), any withholding tax that would be imposed on amounts payable
to such Foreign Lender at the time such Foreign Lender becomes a party hereto
(or designates a new lending office) or is attributable to such Foreign Lender's
failure or inability (other than as a result of a Change in Law) to comply with
Section 9.4, except to the extent that such Foreign Lender (or its assignor, if
any) was entitled, at the time of designation of a new lending office (or
assignment), to receive additional amounts from the Borrower with respect to
such withholding tax pursuant to Section 9.4.
"Existing Agreement" means that certain 210-Day Credit Agreement dated as
of September 2, 2004 among the Borrower, ABN AMRO Bank N.V., as Administrative
Agent and the other parties thereto.
"Facility Fee Rate" means the percentage set forth in Schedule 1 hereto
beside the then applicable Level.
"Federal Funds Rate" means, for any period, a fluctuating interest rate
per annum equal for each day during such period to:
(a) the weighted average of the rates on overnight federal funds
transactions with members of the United States Federal Reserve System
arranged by federal funds brokers, as published for such day (or, if
such day is not a Business Day, for the next preceding Business Day)
by the United States Federal Reserve Bank of New York; or
(b) if such rate is not so published for any day which is a
Business Day, the average of the quotations for such day on such
transactions received by the Administrative Agent from three
federal funds brokers of recognized standing selected by it.
"Fee Letters" means, collectively, (i) that certain letter, dated as of
August 9, 2005 among Wachovia Capital Markets, LLC, Wachovia Bank, National
Association, the Borrower and Nicor, pertaining to fees to be paid by the
Borrower and Nicor, (ii) that certain letter, dated as of August 9, 2005, among
ABN AMRO Bank N.V., ABN AMRO Incorporated, the Borrower and Nicor and (iii) that
certain letter, dated as of August 5, 2005, between ▇.▇. ▇▇▇▇▇▇ Securities Inc.,
the Administrative Agent, the Borrower and Nicor.
"Foreign Lender" means any Lender that is organized under the laws of a
jurisdiction other than that in which the Borrower is incorporated or otherwise
organized
6
for tax purposes. For purposes of this definition, the United States of America,
each State thereof and the District of Columbia shall be deemed to constitute a
single jurisdiction.
"Fund" means any Person (other than a natural person) that is (or will be)
engaged in making, purchasing, holding or otherwise investing in commercial
loans and similar extensions of credit in the ordinary course of its business.
"GAAP" means generally accepted accounting principles as in effect in the
United States from time to time, applied by Nicor and its Subsidiaries on a
basis consistent with the preparation of Borrower's financial statements
furnished to the Lenders as described in Section 5.4 hereof.
"Governmental Authority" means the government of the United States of
America or any other nation, or of any political subdivision thereof, whether
state or local, and any agency, authority, instrumentality, regulatory body,
court, central bank or other entity exercising executive, legislative, judicial,
taxing, regulatory or administrative powers or functions of or pertaining to
government (including any supra-national bodies such as the European Union or
the European Central Bank).
"Granting Bank" has the meaning specified in Section 11.8(g).
"Guarantee" means, in respect of any Person, any obligation, contingent or
otherwise, of such Person directly or indirectly guaranteeing any Indebtedness
or other obligations of another Person, including, without limitation, by means
of an agreement to purchase or pay (or advance or supply funds for the purchase
or payment of) such Indebtedness or to maintain financial covenants, or to
assure the payment of such Indebtedness by an agreement to make payments in
respect of goods or services regardless of whether delivered, or otherwise;
provided, that the term "Guarantee" shall not include endorsements for deposit
or collection in the ordinary course of business; and such term when used as a
verb shall have a correlative meaning.
"Hazardous Material" means:
(a) any "hazardous substance", as defined by CERCLA; or
(b) any pollutant or contaminant or hazardous, dangerous or toxic
chemical, material or substance within the meaning of any other
Environmental Law.
"Immaterial Subsidiary" shall mean, any direct or indirect Subsidiary of
the Borrower (i) whose total assets (as determined in accordance with GAAP) as
of the date of determination do not represent at least ten percent (10%) of the
total assets (as determined in accordance with GAAP) of the Borrower and its
Subsidiaries on a consolidated basis or (ii) whose total revenues for the most
recently completed twelve months (as determined in accordance with GAAP) do not
represent at least ten percent (10%) of the total revenues (as determined in
accordance with GAAP) of the Borrower and its Subsidiaries on a consolidated
basis for such period.
7
"Impermissible Qualification" means, relative to the opinion or
certification of any independent public accountant as to any financial statement
of the Borrower, any qualification or exception to such opinion or certification
(i) which is of a "going concern" or similar nature, (ii) which relates to the
limited scope of examination of matters relevant to such financial statement, or
(iii) which relates to the treatment or classification of any item in such
financial statement and which would require an adjustment to such item the
effect of which would be to cause the Borrower to be in violation of Sections
7.15 or 7.16 hereof.
"Indebtedness" means, as to any Person, without duplication: (i) all
obligations of such Person for borrowed money or evidenced by bonds, debentures,
notes or similar instruments; (ii) all obligations of such Person for the
deferred purchase price of Property or services (other than in respect of trade
accounts payable arising in the ordinary course of business which are not
past-due); (iii) all Capitalized Lease Obligations of such Person; (iv) all
Indebtedness of others secured by a Lien on any Properties, assets or revenues
of such Person to the extent of the lesser of the value of the Property subject
to such Lien or the amount of such Indebtedness; (v) all Guarantees issued by
such Person of Indebtedness of another Person; (vi) all obligations of such
Person, contingent or otherwise, in respect of any letters or credit (whether
commercial or standby) or bankers' acceptances, and (vii) all obligations of
such Person under synthetic (and similar type) lease arrangements; provided that
for purposes of calculating such Person's Indebtedness under such synthetic (or
similar type) lease arrangements, such lease arrangement shall be treated as if
it were a Capitalized Lease.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
"Indemnitee" is defined in Section 11.11(b) hereof.
"Information" is defined in Section 11.15 hereof.
"Interest Period" is defined in Section 2.5 hereof.
"Investments" is defined in Section 7.13.
"Joint Lead-Arrangers" means ▇.▇. ▇▇▇▇▇▇ Securities Inc. and ABN AMRO
Incorporated.
"Lender" and "Lenders" are defined in the first paragraph of this
Agreement.
"Level I Status" means, subject to the provisions of Schedule 1, the
Borrower's S&P Rating is AA or higher and its ▇▇▇▇▇'▇ Rating is Aa2 or higher.
"Level II Status" means Level I Status does not exist, but, subject to the
provisions of Schedule 1, the Borrower's S&P Rating is AA- or higher and its
▇▇▇▇▇'▇ Rating is Aa3 or higher.
8
"Level III Status" means neither Level I Status nor Level II Status
exists, but, subject to the provisions of Schedule 1, the Borrower's S&P Rating
is A+ or higher and its ▇▇▇▇▇'▇ Rating is A1 or higher.
"Level IV Status" means none of Level I Status, Level II Status nor Level
III Status exists, but, subject to the provisions of Schedule 1, the Borrower's
S&P Rating is A or higher and its ▇▇▇▇▇'▇ rating is A2 or higher.
"Level V Status" means none of Level I Status, Level II Status, Level III
Status nor Level IV Status exists, but, subject to the provisions of Schedule 1,
the Borrower's S&P Rating is A- or higher and its ▇▇▇▇▇'▇ rating is A3 or
higher.
"Level VI Status" means none of Level I Status, Level II Status, Level
III Status, Level IV Status nor Level V Status exists, but, subject to the
provisions of Schedule 1, the Borrower's S&P Rating is BBB+ or higher and its
▇▇▇▇▇'▇ rating is Baa1 or higher.
"Level VII Status" means none of Level I Status, Level II Status, Level
III Status, Level IV Status, Level V nor Level VI Status exists.
"LIBOR" is defined in Section 2.2(b) hereof.
"Lien" means any interest in Property securing an obligation owed to, or a
claim by, a Person other than the owner of the Property, whether such interest
is based on the common law, statute or contract, including, but not limited to,
the security interest or lien arising from a mortgage, encumbrance, pledge,
conditional sale, security agreement or trust receipt, or a lease, consignment
or bailment for security purposes. For the purposes of this definition, a Person
shall be deemed to be the owner of any Property which it has acquired or holds
subject to a conditional sale agreement, Capital Lease or other arrangement
pursuant to which title to the Property has been retained by or vested in some
other Person for security purposes, and such retention of title shall constitute
a "Lien."
"Loan" and "Loans" are defined in Section 2.1 hereof and includes a Base
Rate Loan or Eurodollar Loan, each of which is a "type" of Loan hereunder.
"Material Adverse Effect" means any effect, resulting from any event or
circumstance whatsoever, which has a material adverse effect on the financial
condition or results of operations of the Borrower, or on the ability of the
Borrower to perform its payment obligations under this Agreement.
"Material Subsidiaries" means any Subsidiary of the Borrower which is not
an Immaterial Subsidiary.
"▇▇▇▇▇'▇ Rating" means the long term issuer rating assigned by ▇▇▇▇▇'▇
Investors Service, Inc. and any successor thereto that is a nationally
recognized rating agency to the Borrower (or if neither ▇▇▇▇▇'▇ Investors
Service, Inc. nor any such successor shall be in the business of rating
long-term indebtedness, a nationally
9
recognized rating agency in the United States of America as mutually agreed
between the Required Lenders and Borrower). Any reference in this Agreement to
any specific rating is a reference to such rating as currently defined by
▇▇▇▇▇'▇ Investors Service, Inc. (or such a successor) and shall be deemed to
refer to the equivalent rating if such rating system changes.
"Nicor" means Nicor Inc., an Illinois corporation.
"Nicor Gas Indenture" means that certain Indenture, dated as of January
1, 1954, between Commonwealth Edison Company and Continental Illinois National
Bank and Trust Company of Chicago, as supplemented from time to time, and as
last supplemented by a Supplemental Indenture, dated December 1, 2003, between
the Borrower and BNY Midwest Trust Company, as successor trustee under the
Indenture dated as of January 1, 1954, as amended or supplemented from time to
time.
"Note" is defined in Section 2.9(a) hereof.
"Notice of Borrowing" means a notice of borrowing in the form of Exhibit D
hereto.
"Obligations" means all fees payable hereunder, all obligations of the
Borrower to pay principal or interest on Loans, fees, expenses, indemnities, and
all other payment obligations of the Borrower arising under or in relation to
any Credit Document.
"Other Taxes" means all present or future stamp or documentary taxes or
any other excise or Property taxes, charges or similar levies arising from any
payment made hereunder or under any other Credit Document or from the execution,
delivery or enforcement of, or otherwise with respect to, this Agreement or any
other Credit Document.
"Participant" is defined in Section 11.8(d) hereof.
"PBGC" means the Pension Benefit Guaranty Corporation.
"Pension Plan" means a "pension plan", as such term is defined in section
3(2) of ERISA, which is subject to Title IV of ERISA, and to which the Borrower
or any member of the Controlled Group, may have liability, including any
liability by reason of having been a substantial employer within the meaning of
section 4063 of ERISA at any time during the preceding five years, or by reason
of being deemed to be a contributing sponsor under section 4069 of ERISA.
"Percentage" means, for each Lender, the percentage of the Commitments
represented by such Lender's Commitment or, if the Commitments have been
terminated, the percentage held by such Lender of the aggregate principal amount
of all outstanding Obligations.
10
"Permitted Derivative Obligations" means all Derivative Obligations as to
which the Derivative Arrangements giving rise to such Derivative Obligation are
entered into in the ordinary course of business to hedge interest rate risk,
currency risk, commodity price risk or the production of Borrower or its
Subsidiaries (and not for speculative purposes).
"Person" means an individual, partnership, corporation, limited liability
company, association, trust, unincorporated organization or any other entity or
organization, including a government or any agency or political subdivision
thereof.
"Property" means any interest in any kind of property or asset, whether
real, personal or mixed, or tangible or intangible, whether now owned or
hereafter acquired.
"Related Parties" means, subject to the provisions of Section 11.9 with
respect to any Person, such Person's Affiliates and the directors, officers,
employees, agents and advisors of such Person and of such Person's Affiliates.
"Release" means "release", as such term is defined in CERCLA
"Required Lenders" means, as of the date of determination thereof, Lenders
holding in the aggregate at least a majority in interest of the then aggregate
unpaid principal amount of the Loans owing to Lenders, or, if no such principal
amount is then outstanding, Lenders having at least a majority in interest of
the Commitments.
"SEC" means the United States Securities and Exchange Commission.
"SEC Disclosure Documents" means all reports on forms 10K, 10Q, and 8K
filed by Nicor with the SEC prior to the Closing Date.
"Security" has the same meaning as in Section 2(l) of the Securities Act
of 1933, as amended.
"S&P Rating" means the corporate credit rating assigned by Standard &
Poor's Ratings Group, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. and any
successor thereto that is a nationally recognized rating agency to the Borrower
(or, if neither such division nor any successor shall be in the business of
rating long-term indebtedness, a nationally recognized rating agency in the
United States as mutually agreed between the Required Lenders and Borrower). Any
reference in this Agreement to any specific rating is a reference to such rating
as currently defined by Standard & Poor's Ratings Group, a division of The
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. (or such a successor) and shall be deemed to refer
to the equivalent rating if such rating system changes.
"Solvent" means that (a) the fair value of a Person's assets is in excess
of the total amount of such Person's debts, as determined in accordance with the
United States Bankruptcy Code, and (b) the present fair saleable value of a
Person's assets is in excess of the amount that will be required to pay such
Person's debts as they become absolute and matured. As used in this definition,
the term "debts" includes any legal liability,
11
whether matured or unmatured, liquidated or unliquidated, absolute, fixed or
contingent, as determined in accordance with the United States Bankruptcy Code.
"SPC" has the meaning specified in Section 11.8(g).
"Subsidiary" means, as to the Borrower, any corporation or other entity
(i) which is or should be consolidated into the financial statements of the
Borrower in accordance with GAAP or (ii) of which more than fifty percent (50%)
of the outstanding stock or comparable equity interests having ordinary voting
power for the election of the Board of Directors of such corporation or similar
governing body in the case of a non-corporation (irrespective of whether or not,
at the time, stock or other equity interests of any other class or classes of
such corporation or other entity shall have or might have voting power by reason
of the happening of any contingency) is at the time directly or indirectly owned
by the Borrower or by one or more of its Subsidiaries.
"Taxes" means all present or future taxes, levies, imposts, duties,
deductions, withholdings, assessments, fees or other charges imposed by any
Governmental Authority, including any interest, additions to tax or penalties
applicable thereto.
"Telerate Service" means the Moneyline Telerate, Inc.
"Termination Date" means April 11, 2006, as extended from time to time
pursuant to Section 3.2.
"Utilization Fee Rate" means the percentage set forth in Schedule 1 hereto
beside the then applicable Level.
"Unfunded Vested Liabilities" means, with respect to any Plan at any time,
the amount (if any) by which (i) the present value of all vested nonforfeitable
accrued benefits under such Plan exceeds (ii) the fair market value of all Plan
assets allocable to such benefits, all determined as of the then most recent
valuation date for such Plan, but only to the extent that such excess represents
a potential liability of a member of the Controlled Group to the PBGC or the
Plan under Title IV of ERISA.
"U.S. Dollars" and "$" each means the lawful currency of the United States
of America.
"Voting Stock" of any Person means capital stock of any class or classes
or other equity interests (however designated) having ordinary voting power for
the election of directors or similar governing body of such Person.
"Welfare Plan" means a "welfare plan", as such term is defined in section
3(1) of ERISA.
"Wholly-Owned Subsidiary" means a Subsidiary of Borrower of which all of
the issued and outstanding shares of stock or other equity interests (other than
directors'
12
qualifying shares as required by law) shall be owned, directly or indirectly,
by the Borrower.
Section 1.2 Interpretation. The definitions of terms herein shall apply
equally to the singular and plural forms of the terms defined. Whenever the
context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words "include", "includes" and "including" shall
be deemed to be followed by the phrase "without limitation". The word "will"
shall be construed to have the same meaning and effect as the word "shall".
Unless the context requires otherwise (a) any definition of or reference to any
agreement, instrument or other document herein shall be construed as referring
to such agreement, instrument or other document as from time to time amended,
supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein), (b) any reference
herein to any Person shall be construed to include such Person's successors and
assigns, (c) the words "herein", "hereof" and "hereunder", and words of similar
import, shall be construed to refer to this Agreement in its entirety and not to
any particular provision hereof, (d) all references herein to Articles,
Sections, Exhibits and Schedules shall be construed to refer to Articles and
Sections of, and Exhibits and Schedules to, this Agreement and (e) the words
"asset" and "property" shall be construed to have the same meaning and effect
and to refer to any and all tangible and intangible assets and properties,
including cash, securities, accounts and contract rights. All references to
times of day in this Agreement shall be references to New York, New York time
unless otherwise specifically provided. Where the character or amount of any
asset or liability or item of income or expense is required to be determined or
any consolidation or other accounting computation is required to be made for the
purposes of this Agreement, the same shall be done in accordance with GAAP in
effect on the Closing Date, to the extent applicable, except where such
principles are inconsistent with the specific provisions of this Agreement.
SECTION 2. THE CREDITS.
Section 2.1 The Revolving Loan Commitment. Subject to the terms and
conditions hereof (including Sections 6.1 and 6.2), each Lender, by its
acceptance hereof, severally agrees to make a loan or loans (individually a
"Loan" and collectively "Loans") to the Borrower from time to time on a
revolving basis in U.S. Dollars in an aggregate outstanding amount up to the
amount of its commitment set forth on Schedule 2 hereto (such amount, as reduced
pursuant to Section 2.11(a), increased pursuant to Section 2.11(b) or Section
2.12, or changed as a result of one or more assignments under Section 11.8, its
"Commitment" and, cumulatively for all the Lenders, the "Commitments") before
the Termination Date; provided that the aggregate amount of Loans at any time
outstanding shall not exceed the Commitments in effect at such time. On the
Termination Date the Commitments shall terminate. Each Borrowing of Loans shall
be made ratably from the Lenders in proportion to their respective Percentages.
As provided in Section 2.4(a) hereof, the Borrower may elect that each Borrowing
of Loans be either Base Rate Loans or Eurodollar Loans. Loans may be repaid and
the principal amount thereof reborrowed before the Termination Date, subject to
all the terms and conditions
13
hereof. Unless an earlier maturity is provided for
hereunder, all Loans shall mature and be due and payable on the Termination
Date.
Section 2.2 Applicable Interest Rates.
(a) Base Rate Loans. Each Base Rate Loan made or maintained by a Lender
shall bear interest during the period it is outstanding (computed (x) at all
times the Base Rate is based on the rate described in clause (i) of the
definition thereof, on the basis of a year of 365 or 366 days, as applicable,
and actual days elapsed or (y) at all times the Base Rate is based on the rate
described in clause (ii) of the definition thereof, on the basis of a year of
360 days and actual days elapsed) on the unpaid principal amount thereof from
the date such Loan is advanced, continued or created by conversion from a
Eurodollar Loan until maturity (whether by acceleration or otherwise) at a rate
per annum equal to the sum of the Applicable Margin plus the Base Rate from time
to time in effect, payable on the last Business Day of each calendar quarter and
at maturity (whether by acceleration or otherwise).
"Base Rate" means for any day the greater of:
(i) the rate of interest announced by JPMorgan Chase Bank, N.A. from
time to time as its prime rate, or equivalent, for U.S. Dollar loans
within the United States as in effect on such day, with any change in the
Base Rate resulting from a change in said prime rate to be effective as
of the date of the relevant change in said prime rate; and
(ii) the sum of (x) the Federal Funds Rate, plus (y) 1/2 of 1%
(0.50%).
(b) Eurodollar Loans. Each Eurodollar Loan made or maintained by a
Lender shall bear interest during each Interest Period it is outstanding
(computed on the basis of a year of 360 days and actual days elapsed) on the
unpaid principal amount thereof from the date such Loan is advanced, continued,
or created by conversion from a Base Rate Loan until maturity (whether by
acceleration or otherwise) at a rate per annum equal to the sum of the
Applicable Margin plus the Adjusted LIBOR applicable for such Interest Period,
payable on the last day of the Interest Period and at maturity (whether by
acceleration or otherwise), and, if the applicable Interest Period is longer
than three months, on each day occurring every three months after the
commencement of such Interest Period.
"Adjusted LIBOR" means, for any Borrowing of Eurodollar Loans, a rate per
annum determined in accordance with the following formula:
Adjusted LIBOR = LIBOR
------------------------------------
1 - Eurodollar Reserve Percentage
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"LIBOR" means, for an Interest Period for a Borrowing of Eurodollar Loans,
(a) the LIBOR Index Rate for such Interest Period, if such rate is available,
and (b) if the LIBOR Index Rate cannot be determined, the arithmetical average
of the rates of interest per annum (rounded upwards, if necessary, to the
nearest one-sixteenth of one percent) at which deposits in U.S. Dollars, in
immediately available funds are offered to the Administrative Agent at 11:00
a.m. (London, England time) two (2) Business Days before the beginning of such
Interest Period by major banks in the interbank eurodollar market for delivery
on the first day of and for a period equal to such Interest Period in an amount
equal or comparable to the principal amount of the Eurodollar Loan scheduled to
be made by each Lender as part of such Borrowing.
"LIBOR Index Rate" means, for any Interest Period, the rate per annum
(rounded upwards, if necessary, to the next higher one-sixteenth of one percent)
for deposits in U.S. Dollars for delivery on the first day of and for a period
equal to such Interest Period in an amount equal or comparable to the principal
amount of the Eurodollar Loan scheduled to be made by each Lender as part of
such Borrowing, which appears on the Applicable Telerate Page as of 11:00 a.m.
(London, England time) on the day two (2) Business Days before the commencement
of such Interest Period.
"Applicable Telerate Page" means the display page designated as "Page
3750" on the Telerate Service (or such other pages as may replace any such page
on that service or such other service as may be nominated by the British
Bankers' Association as the information vendor for the purpose of displaying
British Bankers' Association Interest Settlement Rates for deposits in U.S.
Dollars).
"Eurodollar Reserve Percentage" means for an Borrowing of Eurodollar Loans
from any Lender, the daily average for the applicable Interest Period of the
actual effective rate, expressed as a decimal, at which reserves (including,
without limitation, any supplemental, marginal and emergency reserves) are
maintained by such Lender during such Interest Period pursuant to Regulation D
of the Board of Governors of the Federal Reserve System (or any successor) on
"eurocurrency liabilities", as defined in such Board's Regulation D (or in
respect of any other category of liabilities that includes deposits by reference
to which the interest rate on Eurodollar Loans is determined or any category of
extensions of credit or other assets that include loans by non-United States
offices of any Lender to United States residents), subject to any amendments of
such reserve requirement by such Board or its successor, taking into account any
transitional adjustments thereto. For purposes of this definition, the
Eurodollar Loans shall be deemed to be "eurocurrency liabilities" as defined in
Regulation D without benefit or credit for any prorations, exemptions or offsets
under Regulation D.
(c) Rate Determinations. The Administrative Agent shall determine each
interest rate applicable to Obligations, and a determination thereof by the
Administrative Agent shall be conclusive and binding except in the case of
manifest error.
Section 2.3 Minimum Borrowing Amounts. Each Borrowing of Base Rate
Loans and Eurodollar Loans shall be in an amount not less than (i) if such
Borrowing is
15
comprised of a Borrowing of Base Rate Loans, $1,000,000 and integral multiples
of $500,000 in excess thereof, and (ii) if such Borrowing is comprised of a
Borrowing of Eurodollar Loans, $2,000,000 and integral multiples of $1,000,000
in excess thereof.
Section 2.4 Manner of Borrowing Loans and Designating Interest Rates
Applicable to Loans.
(a) Notice to the Administrative Agent. The Borrower shall give notice
to the Administrative Agent by no later than 11:00 a.m. (Chicago time) (i) at
least three (3) Business Days before the date on which the Borrower requests the
Lenders to advance a Borrowing of Eurodollar Loans, or (ii) on the date on which
the Borrower requests the Lenders to advance a Borrowing of Base Rate Loans. The
Loans included in each Borrowing shall bear interest initially at the type of
rate specified in such notice of a new Borrowing. Thereafter, the Borrower may
from time to time elect to change or continue the type of interest rate borne by
each Borrowing or, subject to Section 2.3, a portion thereof, as follows: (i) if
such Borrowing is of Eurodollar Loans, on the last day of the Interest Period
applicable thereto, the Borrower may continue part or all of such Borrowing as
Eurodollar Loans for an Interest Period or Interest Periods specified by the
Borrower or convert part or all of such Borrowing into Base Rate Loans, and (ii)
if such Borrowing is of Base Rate Loans, on any Business Day, the Borrower may
convert all or part of such Borrowing into Eurodollar Loans for an Interest
Period or Interest Periods specified by the Borrower. The Borrower shall give
all such notices requesting, the advance, continuation, or conversion of a
Borrowing to the Administrative Agent by telephone, facsimile or electronic
means (which notice shall be irrevocable once given and, if by telephone, shall
be promptly confirmed in writing). Notices of the continuation of a Borrowing of
Eurodollar Loans for an additional Interest Period or of the conversion of part
or all of a Borrowing of Base Rate Loans into Eurodollar Loans must be given by
no later than 12:00 noon (Chicago time) at least three (3) Business Days before
the date of the requested continuation or conversion. Notices of the conversion
of part or all of a Borrowing of Eurodollar Loans into Base Rate Loans must be
given by no later than 11:00 a.m. (Chicago time) on the date of the requested
conversion. All such notices concerning the advance, continuation, or conversion
of a Borrowing shall be irrevocable once given and shall specify the date of the
requested advance, continuation or conversion of a Borrowing (which shall be a
Business Day), the amount of the requested Borrowing to be advanced, continued,
or converted, the type of Loans to comprise such new, continued or converted
Borrowing and, if such Borrowing is to be comprised of Eurodollar Loans, the
Interest Period applicable thereto. All such notices shall be in the form of a
Notice of Borrowing, unless otherwise consented to by the Administrative Agent;
provided that the Borrower agrees that the Administrative Agent may rely on any
telephonic, facsimile or electronic notice given by any person it in good faith
believes is an Authorized Representative without the necessity of independent
investigation, and in the event any such notice by telephone conflicts with any
written confirmation, such telephonic notice shall govern if the Administrative
Agent has acted in reliance thereon. There may be no more than six different
Interest Periods in effect at any one time.
16
(b) Notice to the Lenders. The Administrative Agent shall give prompt
telephonic, facsimile or electronic notice to each Lender of any notice from the
Borrower received pursuant to Section 2.4(a) above. The Administrative Agent
shall give notice to the Borrower and each Lender by like means of the interest
rate applicable to each Borrowing of Eurodollar Loans.
(c) Borrower's Failure to Notify. If the Borrower fails to give notice
pursuant to Section 2.4(a) above of the continuation or conversion of any
outstanding principal amount of a Borrowing of Eurodollar Loans before the last
day of its then current Interest Period within the period required by Section
2.4(a) and has not notified the Administrative Agent within the period required
by Section 2.7(a) that it intends to prepay such Borrowing, such Borrowing shall
automatically be converted into a Borrowing of Base Rate Loans, subject to
Section 6.2 hereof. The Administrative Agent shall promptly notify the Lenders
of the Borrower's failure to so give a notice under Section 2.4(a).
(d) Disbursement of Loans. Not later than 12:00 noon (New York time) on
the date of any requested advance of a new Borrowing of Eurodollar Loans, and
not later than 2:00 p.m. (New York time) on the date of any requested advance of
a new Borrowing of Base Rate Loans, subject to Section 6 hereof, each Lender
shall make available its Loan comprising part of such Borrowing in funds
immediately available at the principal office of the Administrative Agent in
New York, New York. The Administrative Agent shall make Loans available to
Borrower at the Administrative Agent's principal office in New York, New York
or such other office as the Administrative Agent has previously agreed in
writing to with Borrower, in each case in the type of funds received by the
Administrative Agent from the Lenders.
(e) Funding by Lenders; Presumption by Administrative Agent. Unless the
Administrative Agent shall have received notice from a Lender prior to the
proposed date of any Borrowing that such Lender will not make available to the
Administrative Agent such Lender's share of such Borrowing, the Administrative
Agent may assume that such Lender has made such share available on such date in
accordance with Section 2.4(d) and may, in reliance upon such assumption, make
available to the applicable to the Borrower a corresponding amount. In such
event, if a Lender has not in fact made its share of the applicable Borrowing
available to the Administrative Agent, then the applicable Lender and the
Borrower severally agree to pay to the Administrative Agent forthwith on demand
such corresponding amount with interest thereon, for each day from and including
the date such amount is made available to the Borrower to but excluding the date
of payment to the Administrative Agent, at (i) in the case of a payment to be
made by such Lender, the greater of the Federal Funds Rate and a rate determined
by the Administrative Agent in accordance with banking industry rules on
interbank compensation and (ii) in the case of a payment to be made by the
Borrower, the interest rate applicable to such Loans. If the Borrower and such
Lender shall pay such interest to the Administrative Agent for the same or an
overlapping period, the Administrative Agent shall promptly remit to the
Borrower the amount of such interest paid by the Borrower for such period. If
such Lender pays such amount to the Administrative Agent,
17
then such amount shall constitute such Lender's Loan included in such Borrowing.
Any payment by the Borrower shall be without prejudice to any claim the Borrower
may have against a Lender that shall have failed to make such payment to the
Administrative Agent.
(f) Payments by Borrower; Presumptions by Administrative Agent. Unless
the Administrative Agent shall have received notice from the Borrower prior to
the date on which any payment is due to the Administrative Agent for the account
of the Lenders hereunder that the Borrower will not make such payment, the
Administrative Agent may assume that the Borrower has made such payment on such
date in accordance herewith and may, in reliance upon such assumption,
distribute to the Lenders the amount due. In such event, if the Borrower has not
in fact made such payment, then each of the Lenders severally agrees to repay to
the Administrative Agent forthwith on demand the amount so distributed to such
Lender, with interest thereon, for each day from and including the date such
amount is distributed to it to but excluding the date of payment to the
Administrative Agent, at the greater of the Federal Funds Rate and a rate
determined by the Administrative Agent in accordance with banking industry rules
on interbank compensation.
Section 2.5 Interest Periods. As provided in Section 2.4(a) hereof, at
the time of each request of a Borrowing of Eurodollar Loans, the Borrower shall
select an Interest Period applicable to such Loans from among the available
options. The term "Interest Period" means the period commencing on the date a
Borrowing of Eurodollar Loans is advanced, continued, or created by conversion
and ending 1, 2, 3, or 6 months thereafter; provided, however, that:
(a) the Borrower may not select an Interest Period that extends
beyond the Termination Date;
(b) whenever the last day of any Interest Period would otherwise be
a day that is not a Business Day, the last day of such Interest Period
shall be extended to the next succeeding Business Day; provided that, if
such extension would cause the last day of an Interest Period to occur in
the following calendar month, the last day of such Interest Period shall
be the immediately preceding Business Day; and
(c) for purposes of determining an Interest Period, a month means
a period starting on one day in a calendar month and ending on the
numerically corresponding day in the next calendar month; provided,
however, that if there is no numerically corresponding day in the
month in which such an Interest Period is to end or if such an
Interest Period begins on the last Business Day of a calendar month,
then such Interest Period shall end on the last Business Day of the
calendar month in which such Interest Period is to end.
18
Section 2.6 Maturity of Loans. Unless an earlier maturity is provided
for hereunder (whether by acceleration or otherwise), all Obligations (including
principal and interest on all outstanding Loans) shall mature and become due and
payable on the Termination Date. The Borrower hereby promises to pay as and when
due each Obligation owing by it. The Borrower hereby waives demand, presentment,
protest or notice of any kind with respect to each such Obligation.
Section 2.7 Prepayments. (a) Borrower may prepay without premium or
penalty and in whole or in part (but, if in part, then (i) in an amount not less
than $5,000,000 and integral multiples of $1,000,000 in excess thereof, and (ii)
in an amount such that the minimum amount required for a Borrowing pursuant to
Section 2.3 hereof remains outstanding) any Borrowing of Eurodollar Loans upon
three (3) Business Days' prior irrevocable notice to the Administrative Agent
or, in the case of a Borrowing of Base Rate Loans, irrevocable notice delivered
to the Administrative Agent no later than 12:00 noon (Chicago time) on the date
of prepayment, such prepayment to be made by the payment of the principal amount
to be prepaid and accrued interest thereon to the date fixed for prepayment. In
the case of Eurodollar Loans, any amounts owing under Section 2.10 hereof as a
result of such prepayment shall be paid contemporaneously with such prepayment.
The Administrative Agent will promptly advise each Lender of any such prepayment
notice it receives from the Borrower. Any amount paid or prepaid before the
Termination Date may, subject to the terms and conditions of this Agreement, be
borrowed, repaid and borrowed again.
(b) If the aggregate amount of outstanding Loans shall at any time for
any reason exceed the Commitments then in effect, the Borrower shall,
immediately and without notice or demand, pay the amount of such excess to the
Administrative Agent for the ratable benefit of the Lenders as a prepayment of
the Loans and such prepayments shall not be subject to the provisions of Section
2.7(a). Immediately upon determining the need to make any such prepayment
Borrower shall notify the Administrative Agent of such required prepayment. Each
such prepayment shall be accompanied by a payment of all accrued and unpaid
interest on the Loans prepaid and shall be subject to Section 2.10.
Section 2.8 Default Rate. If any Obligation, is not paid when due
(whether by acceleration or otherwise), or upon the occurrence of any Event of
Default and notice from the Administrative Agent to the Borrower referencing
such Event of Default and stating that the additional interest ("Default
Interest") specified in this Section 2.8 shall commence accruing, all
Obligations shall, to the extent permitted by applicable law, bear interest
(computed on the basis of a year of 360 days and actual days elapsed or, if
based on the rate described in clause (i) of the definition of Base Rate, on the
basis of a year of 365 or 366 days, as applicable, and the actual number of days
elapsed) from the date such payment on such Obligations was due or such notice
was delivered, until paid in full or such Event of Default is waived in
accordance with the provisions of this Agreement, payable on demand, at a rate
per annum equal to:
(a) for any Obligation other than a Eurodollar Loan (including
principal and interest relating to Base Rate Loans and interest on
19
Eurodollar Loans), the sum of two percent (2%) plus the Applicable Margin
applicable to Base Rate Loans plus the Base Rate from time to time in
effect; and
(b) for the principal of any Eurodollar Loan, the sum of two percent
(2%) plus the rate of interest in effect thereon at the time of such
default until the end of the Interest Period applicable thereto and,
thereafter, at a rate per annum equal to the sum of two percent (2%) plus
the Applicable Margin applicable to Base Rate Loans plus the Base Rate
from time to time in effect;
provided, however, that following acceleration of the Loans pursuant
to Section 8.3, Default Interest shall accrue and be payable hereunder
whether or not previously required by the Administrative Agent.
Section 2.9 Evidence of Debt. (a) Each Lender shall maintain in
accordance with its usual practice an account or accounts evidencing the
indebtedness of the Borrower to such Lender resulting from each Loan owing to
such Lender from time to time, including the amounts of principal and interest
payable and paid to such Lender from time to time hereunder in respect of Loans.
The Borrower agrees that upon notice by any Lender to the Borrower (with a copy
of such notice to the Administrative Agent) to the effect that a Note is
required or appropriate in order for such Lender to evidence (whether for
purposes of pledge, enforcement or otherwise) the Loans owing to, or to be made
by, such Lender under the Credit Documents, the Borrower shall promptly execute
and deliver to such Lender a promissory note in the form of Exhibit A hereto
(each such promissory note is hereinafter referred to as a "Note" and
collectively such promissory notes are referred to as the "Notes").
(b) The Register maintained by the Administrative Agent pursuant to
Section 11.8(c) shall include a control account, and a subsidiary account for
each Lender, in which accounts (taken together) shall be recorded (i) the date
and amount of each Borrowing made hereunder, the type of Loan comprising such
Borrowing and, if appropriate, the Interest Period applicable thereto, (ii) the
terms of each Assignment and Acceptance delivered to and accepted by it, (iii)
the amount of any principal or interest due and payable or to become due and
payable from the Borrower to each Lender hereunder and (iv) the amount of any
sum received by the Administrative Agent from the Borrower hereunder and each
Lender's share thereof.
(c) Entries made in good faith by the Administrative Agent in the
Register pursuant to subsection (b) above, and by each Lender in its account or
accounts pursuant to subsection (a) above, shall be prima facie evidence of the
amount of principal and interest due and payable or to become due and payable
from the Borrower to, in the case of the Register, each Lender and, in the case
of such account or accounts, such Lender, under this Agreement, absent manifest
error; provided, however, that the failure of the Administrative Agent or such
Lender to make an entry, or any finding that an entry is
20
incorrect, in the Register or such account or accounts shall not limit or
otherwise affect the obligations of the Borrower under this Agreement.
Section 2.10 Funding Indemnity. If any Lender shall incur any loss,
cost or expense (including, without limitation, any loss, cost or expense
(excluding loss of margin) incurred by reason of the liquidation or
re-employment of deposits or other funds acquired by such Lender to fund or
maintain any Eurodollar Loan or the relending or reinvesting of such deposits
or amounts paid or prepaid to such Lender) as a result of:
(a) any payment (whether by acceleration, pursuant to Section 9.5 or
otherwise), prepayment or conversion of a Eurodollar Loan on a date other
than the last day of its Interest Period,
(b) any failure (because of a failure to meet the conditions of
Section 6 or otherwise) by the Borrower to borrow or continue a Eurodollar
Loan, or to convert a Base Rate Loan into a Eurodollar Loan, on the date
specified in a notice given pursuant to Section 2.4(a) or established
pursuant to Section 2.4(c) hereof,
(c) any failure by the Borrower to make any payment or prepayment of
principal on any Eurodollar Loan when due (whether by acceleration or
otherwise), or
(d) any acceleration of the maturity of a Eurodollar Loan as a result
of the occurrence of any Event of Default hereunder,
then, upon the demand of such Lender, the Borrower shall pay to such Lender such
amount as will reimburse such Lender for such loss, cost or expense. If any
Lender makes such a claim for compensation, it shall provide to the Borrower,
with a copy to the Administrative Agent, a certificate executed by an officer of
such Lender setting forth the amount of such loss, cost or expense in reasonable
detail (including an explanation of the basis for and the computation of such
loss, cost or expense) and the amounts shown on such certificate if reasonably
calculated shall be prima facie evidence of the amount of such loss, cost or
expense.
Section 2.11 Commitments. (a) Borrower shall have the right at any time
and from time to time, upon five (5) Business Days' prior written notice to the
Administrative Agent, to reduce or terminate the Commitments without premium or
penalty, in whole or in part, any partial termination or reduction to be (i) in
an amount not less than $5,000,000 and integral multiples of $1,000,000 in
excess thereof, and (ii) allocated ratably among the Lenders in proportion to
their respective Percentages; provided that the Commitments may not be reduced
to an amount less than the amount of the Loans then outstanding. The
Administrative Agent shall give prompt notice to each Lender of any reduction or
termination of Commitments. Any reduction or termination of Commitments pursuant
to this Section 2.11 may not be reinstated.
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(b) The Borrower and the Administrative Agent may from time to time add
additional financial institutions as parties to this Agreement or, with the
written consent of an existing Lender, increase the Commitment of such existing
Lender (any such financial institution or existing Lender which is increasing
its commitment being referred to as an "Added Lender") pursuant to documentation
satisfactory to the Borrower and the Administrative Agent and any such Added
Lender shall for all purposes be considered a Lender for purposes of this
Agreement and the other Credit Documents with a Commitment as set forth in such
documentation. Any such Added Lender shall on the date it is deemed a party to
this Agreement purchase from the other Lenders its Percentage (or the increase
in its Percentage, in the case of an Added Lender which is an existing Lender)
of the Loans outstanding. Notwithstanding anything contained in this Section
2.11(b) to the contrary, but subject to Section 2.12, the aggregate amount of
Commitments may not at any time exceed $400,000,000 without the consent of the
Required Lenders.
Section 2.12 Increase in the Aggregate Commitments (a) The Borrower may,
at any time prior to the Termination Date but in any event not more than twice,
by notice to the Administrative Agent and in accordance with Section 2.12(b),
request that the aggregate amount of the Commitments be increased by an amount
of $25,000,000 or an integral multiple thereof (each a "Commitment Increase") to
be effective as of a date that is at least 90 days prior to the scheduled
Termination Date then in effect (the "Increase Date") as specified in the
related notice to the Administrative Agent; provided, however that (i) in no
event shall the aggregate amount of the Commitments at any time exceed
$500,000,000, (ii) on the date of any request by the Borrower for a Commitment
Increase and on the related Increase Date the applicable conditions set forth in
Sections 3.2 and 6.2 shall be satisfied and (iii) prior to the effectiveness of
any such increase, the Borrower shall deliver a certified copy of their Board of
Directors' resolutions authorizing such increase.
(b) The Administrative Agent shall promptly notify the Lenders of a
request by the Borrower for a Commitment Increase, which notice shall include
(i) the proposed amount of such requested Commitment Increase, (ii) the proposed
Increase Date and (iii) the date by which Lenders wishing to participate in the
Commitment Increase must commit to an increase in the amount of their respective
Commitments (the "Commitment Date"). Each Lender that is willing to participate
in such requested Commitment Increase (each an "Increasing Lender") shall, in
its sole discretion, give written notice to the Administrative Agent on or prior
to the Commitment Date of the amount by which it is willing to increase its
Commitment. Failure of a Lender to provide any such notice shall be considered a
rejection of an offer to increase its commitment. If the Lenders notify the
Administrative Agent that they are willing to increase the amount of their
respective Commitments by an aggregate amount that exceeds the amount of the
requested Commitment Increase, the requested Commitment Increase shall be
allocated among the Lenders willing to participate therein in such amounts as
are agreed between the Borrower and the Administrative Agent.
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(c) Promptly following each Commitment Date, the Administrative Agent
shall notify the Borrower as to the amount, if any, by which the Lenders are
willing to participate in the requested Commitment Increase. If the aggregate
amount by which the Lenders are willing to participate in any requested
Commitment Increase on any such Commitment Date is less than the requested
Commitment Increase, then the Borrower may extend offers to one or more Eligible
Assignees to participate in any portion of the requested Commitment Increase
that has not been committed to by the Lenders as of the applicable Commitment
Date; provided, however, that the Commitment of each such Eligible Assignee
shall be in an amount not less than $5,000,000.
(d) On each Increase Date, each Eligible Assignee that accepts an offer
to participate in a Commitment Increase requested in accordance with Section
2.12(a) (each such Eligible Assignee, an "Assuming Lender") shall become a
Lender party to this Agreement as of such Increase Date and the Commitment of
each Increasing Lender for such requested Commitment Increase shall be increased
by the amount of the Commitment Increase so requested (or by the amount
allocated to such Lender pursuant to the last sentence of Section 2.12(b)) as of
such Increase Date. On each Increase Date, the Administrative Agent shall notify
the Lenders (including, without limitation, each Assuming Lender) and the
Borrower, on or before 11:00 A.M. (Chicago time), by telecopier, of the
occurrence of the Commitment Increase to be effected on such Increase Date and
shall record in the Register the relevant information with respect to each
Increasing Lender and each Assuming Lender on such date. Each Increasing Lender
and each Assuming Lender shall, before 2:00 P.M. (Chicago time) on the Increase
Date, make available for the account of its applicable lending office to the
account of the Administrative Agent, in same day funds, in the case of such
Assuming Lender, an amount equal to such Assuming Lender's ratable portion of
the Borrowings then outstanding (calculated based on its Commitment as a
percentage of the aggregate Commitments outstanding after giving effect to the
relevant Commitment Increase) and, in the case of such Increasing Lender, an
amount equal to the excess of (i) such Increasing Lender's ratable portion of
the Borrowings then outstanding (calculated based on its Commitment as a
percentage of the aggregate Commitments outstanding after giving effect to the
relevant Commitment Increase) over (ii) such Increasing Lender's ratable portion
of the Borrowings then outstanding (calculated based on its Commitment (without
giving effect to the relevant Commitment Increase) as a percentage of the
aggregate Commitments (without giving effect to the relevant Commitment
Increase). After the Administrative Agent's receipt of such funds from each such
Increasing Lender and each such Assuming Lender, the Administrative Agent will
promptly thereafter cause to be distributed like funds to the other Lenders for
the account of their respective applicable lending offices in an amount to each
other Lender such that the aggregate amount of the outstanding Loans owing to
each Lender after giving effect to such distribution equals such Lender's
ratable portion of the Borrowings then outstanding (calculated based on its
Commitment as a percentage of the aggregate Commitments outstanding after giving
effect to the relevant Commitment Increase).
SECTION 3. FEES AND EXTENSIONS.
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Section 3.1 Fees.
(a) Facility Fee. From and after the Closing Date, Borrower shall pay to
the Administrative Agent for the ratable account of the Lenders in accordance
with their Percentages a facility fee accruing at a rate per annum equal to the
Facility Fee Rate on the average daily amount of the Commitments (whether used
or unused), or if the Commitments have expired or terminated, on the principal
amount of Loans then outstanding. Such facility fee is payable in arrears on the
last Business Day of each calendar quarter and on the Termination Date, and if
the Commitments are terminated in whole prior to the Termination Date, the fee
for the period to but not including the date of such termination shall be paid
in whole on the date of such termination.
(b) Utilization Fees. For any day on which the aggregate amount of Loans
then outstanding exceeds fifty percent (50%) of the Commitments then in effect,
or if any Loans remain outstanding after the Commitments have been terminated,
then Borrower shall pay to the Administrative Agent for the ratable account of
the Lenders in accordance with their Percentages a utilization fee accruing at
a rate per annum equal to the Utilization Fee Rate on the aggregate amount of
Loans outstanding on such date. Such utilization fee is payable in arrears on
the last Business Day of each calendar quarter and on the Termination Date, and
if the Commitments are terminated in whole prior to the Termination Date, the
fee for the period to but not including the date of such termination shall be
paid in whole on the date of such termination.
(c) Administrative Agent Fees. The Borrower shall pay to the Joint
Lead-Arrangers and the Administrative Agent for their sole account the fees
agreed to by the Borrower in the Fee Letters or as otherwise agreed among them
in writing.
(d) Fee Calculations. All fees payable under this Agreement shall be
payable in U.S. Dollars and shall be computed on the basis of a year of 360
days, for the actual number of days elapsed. All determinations of the amount of
fees owing hereunder (and the components thereof) shall be made by the
Administrative Agent and shall be prima facie evidence of the amount of such
fee.
Section 3.2 Extensions.
(a) Requests for Extension. The Borrower may, by notice to the
Administrative Agent (which shall promptly notify the Lenders) not earlier than
45 days and not later than 35 days prior to the Termination Date then in effect
hereunder (the "Existing Termination Date"), request that each Lender extend
such Lender's Termination Date for an additional 210 days from the Existing
Termination Date.
(b) Lender Elections to Extend. Each Lender, acting in its sole and
individual discretion, shall, by notice to the Administrative Agent given not
earlier than 30 days prior to the Existing Termination Date and not later than
the date (the "Notice Date") that is 20 days prior to the Existing Termination
Date, advise the Administrative Agent whether or not such Lender agrees to such
extension and each Lender that determines not
24
to so extend its Commitment Termination Date (a "Non-Extending Lender") shall
notify the Administrative Agent of such fact promptly after such determination
(but in any event no later than the Notice Date) and any Lender that does not
so advise the Administrative Agent on or before the Notice Date shall be deemed
to be a Non-Extending Lender. The election of any Lender to agree to such
extension shall not obligate any other Lender to so agree.
(c) Notification by Administrative Agent. The Administrative Agent shall
notify the Borrower of each Lender's determination under this Section no later
than the date 15 days prior to the Existing Termination Date (or, if such date
is not a Business Day, on the next preceding Business Day).
(d) Additional Commitment Lenders. The Borrower shall have the right on
or before the Existing Termination Date to replace each Non-Extending Lender
with, and add as "Lenders" under this Agreement in place thereof, one or more
Eligible Assignees (each, an "Additional Commitment Lender") with the approval
of the Administrative Agent (which approval shall not be unreasonably withheld).
Each Additional Commitment Lender shall enter into an agreement in form and
substance satisfactory to the Borrower and the Administrative Agent pursuant to
which such Additional Commitment Lender shall, effective as of the Existing
Termination Date, undertake a Commitment (and, if any such Additional Commitment
Lender is already a Lender, its Commitment shall be in addition to such Lender's
Commitment hereunder on such date).
(e) Minimum Extension Requirement. If (and only if) the Required Lenders
have agreed to extend their Termination Date, then, effective as of the Existing
Termination Date, the Termination Date of each Extending Lender and of each
Additional Commitment Lender shall be extended to the date falling 210 days
after the Existing Termination Date (except that, if such date is not a Business
Day, such Commitment Date as so extended shall be the next preceding Business
Day) and each Additional Commitment Lender shall thereupon become a "Lender" for
all purposes of this Agreement.
(f) Conditions to Effectiveness of Extensions. Notwithstanding the
foregoing, the extension of the Termination Date pursuant to this Section shall
not be effective with respect to any Lender unless:
(x) no Default or Event of Default shall have occurred and be
continuing on the date of such extension and after giving effect thereto;
(y) the representations and warranties contained in this Agreement
are true and correct on and as of the date of such extension and after
giving effect thereto, as though made on and as of such date (or, if any
such representation or warranty is expressly stated to have been made as
of a specific date, as of such specific date); and
25
(z) on or before the Termination Date of each Non-Extending Lender,
(1) the Borrower shall have paid in full the principal of and interest on
all of the Loans made by such Non-Extending Lender to the Borrower
hereunder and (2) the Borrower shall have paid in full all other
Obligations owing to such Lender hereunder.
SECTION 4. PLACE AND APPLICATION OF PAYMENTS.
All payments of principal of and interest on the Loan, and all other
Obligations payable by the Borrower under the Credit Documents shall be made by
Borrower in U.S. Dollars to the Administrative Agent by no later than 1:00 p.m.
(Chicago time) on the due date thereof at the principal office of the
Administrative Agent in New York, New York pursuant to the payment instructions
set forth on Part A of Schedule 4 hereof (or such other location in the United
States as the Administrative Agent may designate to Borrower) for the benefit of
the Person or Persons entitled thereto. Any payments received after such time
shall be deemed to have been received by the Administrative Agent on the next
Business Day. All such payments shall be made free and clear of, and without
deduction for, any set-off, defense, counterclaim, levy, or any other deduction
of any kind in immediately available funds at the place of payment. The
Administrative Agent, will promptly thereafter cause to be distributed like
funds relating to the payment of principal or interest on Loans or applicable
fees ratably to the Lenders and like funds relating to the payment of any other
amount payable to any Person to such Person, in each case to be applied in
accordance with the terms of this Agreement.
SECTION 5. REPRESENTATIONS AND WARRANTIES.
The Borrower hereby represents and warrants to each Lender as to itself
and, where the following representations and warranties apply to its
Subsidiaries, as to each Subsidiary of the Borrower, as follows:
Section 5.1 Corporate Organization and Authority. The Borrower is (i)
duly organized and existing in good standing under the laws of the State of
Illinois; (ii) has all necessary corporate power to carry on its present
business; and (iii) is duly licensed or qualified and in good standing in each
jurisdiction in which the nature of the business transacted by it or the nature
of the Property owned or leased by it makes such licensing, qualification or
good standing necessary and in which the failure to be so licensed, qualified
or in good standing would have a Material Adverse Effect.
Section 5.2 Subsidiaries. Schedule 5.2 (as updated from time to time
pursuant to Section 7.1) hereto identifies each Material Subsidiary, such
Material Subsidiary's jurisdiction of incorporation or formation, the percentage
of issued and outstanding shares of each class of such Material Subsidiary's
capital stock or other equity interests owned by the Borrower and/or the
Borrower's Subsidiaries and, if such percentage is not one hundred percent
(100%) (excluding directors' qualifying shares as
26
required by law), a description of each class of its authorized capital stock
and the number of shares or equity interests of each class issued and
outstanding. Each Material Subsidiary is duly formed and existing in good
standing under the laws of the jurisdiction of its formation, has all necessary
organizational power to carry on its present business, and is duly licensed or
qualified and in good standing in each jurisdiction in which the nature of the
business transacted by it or the nature of the Property owned or leased by it
makes such licensing or qualification necessary and in which the failure to be
so licensed or qualified would have a Material Adverse Effect. All of the
issued and outstanding shares of capital stock or other equity interests, as
applicable, of each Material Subsidiary owned directly or indirectly by the
Borrower are validly issued and outstanding and fully paid and nonassessable.
All such shares and other equity interests owned by the Borrower are owned
beneficially, and of record, free of any Lien, except as permitted in
Section 7.9.
Section 5.3 Corporate Authority and Validity of Obligations. The
Borrower has all necessary corporate power and authority to execute, deliver
and perform their obligations under this Agreement and the Notes and to
consummate the transactions herein contemplated, and the execution, delivery
and performance, and the consummation of the transactions herein contemplated,
by the Borrower of this Agreement and the Notes have been duly authorized by
all necessary corporate action on their part; and this Agreement has been duly
and validly executed and delivered by the Borrower and constitutes, and the
Notes when executed and delivered for value will constitute, their legal, valid
and binding obligation, enforceable in accordance with their terms, subject to
the effect of any applicable bankruptcy, insolvency, reorganization or
moratorium or similar laws affecting the rights of creditors generally and
subject to general principles of equity (regardless of whether enforcement is
sought in a proceeding at law or in equity).
Section 5.4 Financial Statements. The consolidated balance sheet and
consolidated statement of capitalization of Nicor as of December 31, 2004 and
the notes thereto (the "12/31 Financials") and the related consolidated
statements of operations and cash flows of Nicor for the fiscal year ended on
said date, and the unaudited consolidated balance sheet of Nicor as of June 30,
2005 and the notes thereto (the "6/30 Financials") and the related consolidated
statements of income and cash flows of Nicor for the 6-month period ended on
such date, heretofore furnished to the Lenders, are complete and correct and
fairly present the consolidated financial condition of Nicor as of said dates,
and the results of its operations for the fiscal year and 6-month period ended
on said dates (subject, in the case of the 6/30 Financials to normal year-end
audit adjustments). On said dates the Borrower did not have any material
contingent liabilities, liabilities for taxes, unusual forward or long-term
commitments or unrealized or anticipated losses from any unfavorable
commitments, except as referred to or reflected or provided for in the 12/31
Financials and the 6/30 Financials as of said dates or as previously disclosed
in the SEC Disclosure Documents. From the period commencing December 31, 2004
and ending on the Closing Date, there has been no event or series of events
which has resulted in, or reasonably could be expected to result in, a Material
Adverse Effect.
27
Section 5.5 No Litigation; No Labor Controversies. (a) Except as
previously disclosed in the SEC Disclosure Documents, as of the Closing Date,
there are no legal or arbitral proceedings or any proceedings by or before any
Governmental Authority or agency, now pending or (to the knowledge of the
Borrower) threatened against the Borrower as to which there is a reasonable
possibility of an adverse determination and which, if adversely determined,
could have a Material Adverse Effect during the term of this Agreement.
(b) There are no labor controversies pending or, to the best knowledge
of Borrower, threatened against the Borrower or any Subsidiary of the Borrower
which could (individually or in the aggregate) have a Material Adverse Effect.
Section 5.6 Taxes. The Borrower has filed all United States Federal
income tax returns and all other material tax returns which are required to be
filed by it and has paid all taxes due pursuant to such returns or pursuant to
any assessment received by the Borrower except for any such taxes that are being
contested in good faith and by proper proceedings and against which adequate
reserves are being maintained. The charges, accruals and reserves on the books
of the Borrower in respect of taxes are in conformance with GAAP.
Section 5.7 Approvals. No authorization, consent, approval, license,
exemption, filing or registration with any court or Governmental Authority, nor
any approval or consent of the stockholders of the Borrower or any Subsidiary
of the Borrower or from any other Person, is necessary to the valid execution,
delivery or performance by the Borrower or any Subsidiary of the Borrower of
any Credit Document to which it is a party.
Section 5.8 ERISA. During the twelve consecutive-month period prior to
the date of the execution and delivery of this Agreement and prior to the date
of any Borrowing, no steps have been taken to terminate or completely or
partially withdraw from any Pension Plan, and no contribution failure has
occurred with respect to any Pension Plan sufficient to give rise to a Lien
under section 302 (f) of ERISA. No condition exists or event or transaction has
occurred with respect to any Pension Plan which might result in the incurrence
by the Borrower or any member of the Controlled Group of any material liability,
fine or penalty. Except as previously disclosed in the SEC Disclosure Documents,
the Borrower does not have any contingent liability with respect to any
post-retirement benefit under a Welfare Plan, other than liability for
continuation coverage described in Part 6 of Title I of ERISA.
Section 5.9 Government Regulation. Neither Borrower nor any Subsidiary
of Borrower is an "investment company" within the meaning of the Investment
Company Act of 1940, as amended. All approvals, if any, which the Borrower is
required to obtain as a result of it being subject to the Public Utility Holding
Company Act of 1935, as amended, have been obtained.
28
Section 5.10 Margin Stock; Use of Proceeds. The Borrower is not engaged
in the business of extending credit for the purpose of purchasing or carrying
margin stock, and no proceeds of any borrowings hereunder will be used for a
purpose which violates, or would be inconsistent with, F.R.S. Board Regulation
U or X, or any official rulings on or interpretations of such regulations.
Terms for which meanings are provided in F.R.S. Board Regulation U or X or any
regulations substituted therefor, as from time to time in effect, are used in
this Section 5.10 with such meanings. The proceeds of the Loans will be used
solely to provide back-up for commercial paper, the proceeds of which will be
used or have been used to purchase natural gas and for natural gas purchases.
Section 5.11 Environmental Warranties. Except as previously disclosed
in the SEC Disclosure Documents, as of the Closing Date:
(a) all facilities and Property (including underlying groundwater)
owned, operated or leased by the Borrower are in material compliance with all
Environmental Laws, except for such instances of noncompliance as are unlikely,
singly or in the aggregate, to have a Material Adverse Effect;
(b) there have been no past, and there are no pending or threatened:
(i) claims, complaints, notices or requests for information
received by the Borrower with respect to any alleged violation of any
Environmental Law or,
(ii) complaints, notices or inquiries to the Borrower regarding
potential liability under any Environmental Law;
except as are unlikely, singly or in the aggregate, to have a Material
Adverse Effect;
(c) there have been no Releases of Hazardous Materials at, on or under
any Property now or previously owned, operated or leased by the Borrower that,
singly or in the aggregate, are reasonably likely to have a Material Adverse
Effect;
(d) the Borrower has been issued and is in material compliance with all
permits, certificates, approvals, licenses and other authorizations relating to
environmental matters and necessary for its businesses, except where the failure
to maintain or comply with any of the foregoing is not reasonably likely to have
a Material Adverse Effect during the term of this Agreement;
(e) there are no underground storage tanks, active or abandoned,
including petroleum storage tanks, on or under any Property now or previously
owned, operated or leased by the Borrower, singly or in aggregate, that are
reasonably likely to have a Material Adverse Effect;
29
(f) the Borrower has not directly transported or directly arranged for
the transportation of any Hazardous Material to any location which is listed or
proposed for listing on the National Priorities List pursuant to CERCLA, on the
CERCLIS or on any similar state list or which is the subject of Federal, state
or local enforcement actions or other investigations which may lead to material
claims against the Borrower for any remedial work, damage to natural resources
or personal injury, including claims under CERCLA that, singly or in the
aggregate, are reasonably likely to have a Material Adverse Effect during the
term of this Agreement;
(g) there are no polychlorinated biphenyls or friable asbestos present
at any Property now or previously owned, operated or leased by the Borrower
that, singly or in the aggregate, are reasonably likely to have a Material
Adverse Effect during the term of this Agreement; and
(h) no conditions exist at, on or under any Property now or previously
owned or leased by the Borrower which, with the passage of time, or the giving
of notice or both, would give rise to liability under any Environmental Law,
which would have a Material Adverse Effect during the term of this Agreement.
Section 5.12 Ownership of Property; Liens. The Borrower and each
Subsidiary of the Borrower has good title to or valid leasehold interests in all
its Property, except where the failure to have such title or a valid leasehold
interest is not reasonably likely to have a Material Adverse Effect. None of the
Borrower's or any such Subsidiary's Property is subject to any Lien, except as
permitted in Section 7.9.
Section 5.13 Compliance with Agreements. None of the execution and
delivery of this Agreement and the Notes, the consummation of the transactions
herein contemplated and compliance with the terms and provisions hereof will
conflict with or result in a breach of, or require any consent under, the
charter or by-laws of the Borrower, or any applicable law or regulation, or any
order, writ, injunction or decree of any court or Governmental Authority, or any
Contractual Obligation to which the Borrower is a party or by which it is bound
or to which it is subject, or constitute a default under any such Contractual
Obligation, or result in the creation or imposition of any Lien upon any of the
revenues or assets of the Borrower pursuant to the terms of any such Contractual
Obligation.
Section 5.14 Full Disclosure. All factual information heretofore or
contemporaneously furnished by or on behalf of the Borrower in writing to the
Administrative Agent or the Lenders for purposes of or in connection with this
Agreement or any transaction contemplated hereby is, and all other such factual
information hereafter furnished by or on behalf of the Borrower will be, true
and accurate in every material respect on the date as of which such information
is dated or certified and as of the date of execution and delivery of this
Agreement by the Lenders, and such information is not, or shall not be, as the
case may be, incomplete by omitting to state any material fact necessary to make
such information not misleading.
30
Section 5.15 Solvency. The Borrower and each of its Material
Subsidiaries, individually and on a consolidated basis, is Solvent.
SECTION 6. CONDITIONS PRECEDENT.
The obligation of each Lender to effect a Borrowing shall be subject to
the following conditions precedent:
Section 6.1 Initial Borrowing. Before or concurrently with the initial
Borrowing:
(a) The Administrative Agent shall have received the favorable
written opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel to Borrower;
(b) The Administrative Agent shall have received copies of the
Borrower's (i) Articles of Incorporation, together with all amendments
and (ii) bylaws (or comparable constituent documents) and any amendments
thereto, certified in each instance by its Secretary or an Assistant
Secretary;
(c) The Administrative Agent shall have received copies of
resolutions of the Borrower's Board of Directors authorizing the
execution and delivery of the Credit Documents and the consummation
of the transactions contemplated thereby together with specimen
signatures of the persons authorized to execute such documents on the
Borrower's behalf, all certified in each instance by its Secretary or
Assistant Secretary;
(d) The Administrative Agent shall have received for each Lender
that requests a Note, such Lender's duly executed Note of the Borrower
dated the date hereof and otherwise in compliance with the provisions
of Section 2.9(a) hereof;
(e) The Administrative Agent shall have received a duly executed
counterpart of this Agreement from each of the Lenders and the Borrower;
(f) The Administrative Agent shall have received a duly executed
Compliance Certificate containing financial information as of
June 30, 2005;
(g) Neither the Borrower nor any of its Subsidiaries shall have,
during the period from June 30, 2005 to the Closing Date, issued,
incurred, assumed, created, become liable for, contingently or otherwise,
any material Indebtedness other than the issuance of commercial paper
consistent with past practices;
(h) The Borrower shall have paid to each Lender the applicable fees
for providing its Commitment under this Agreement;
31
(i) The Existing Agreement shall have been terminated and all
obligations owing thereunder shall have been repaid in full. By their
execution hereof, the Borrower and each Lender that is party to the
Existing Agreement hereby agree that such agreement is terminated; and
(j) The Administrative Agent shall have received such other
documents and information as it may reasonably request.
By executing this Agreement, the Administrative Agent and each of the
Lenders agrees that each condition set forth in this Section 6.1 has been
satisfied.
Section 6.2 All Borrowings. As of the time of each Borrowing hereunder
(other than the continuation of a Eurodollar Loan or the conversion of a Base
Rate Loan to a Eurodollar Loan or a Eurodollar Loan to a Base Rate Loan):
(a) The Administrative Agent shall have received the notice required
by Section 2.4 hereof;
(b) Each of the representations and warranties set forth in
Section 5 hereof shall be and remain true and correct in all material
respects as of said time, except that if any such representation or
warranty relates solely to an earlier date it need only remain true as
of such date (including, but not limited to, the representations and
warranties set forth in the last sentence of Section 5.4 and in
Sections 5.5(a) and 5.11, which shall be true and correct in all
material respects as of the Closing Date only); and
(c) No Default or Event of Default shall have occurred and be
continuing or would occur as a result of such Borrowing.
(d) Each request for a Borrowing shall be deemed to be a
representation and warranty by Borrower on the date of such Borrowing
as to the facts specified in paragraphs (b) and (c) of this Section 6.2.
SECTION 7. COVENANTS.
The Borrower covenants and agrees that, so long as any Note or Loan is
outstanding hereunder, or any Commitment is available to or in use by the
Borrower hereunder, except to the extent compliance in any case is waived in
writing by the Required Lenders:
Section 7.1 Corporate Existence; Material Subsidiaries. The Borrower
shall, and shall cause each of its Material Subsidiaries to, preserve and
maintain its corporate existence and all of its material rights, privileges and
franchises if failure to maintain such existence, rights, privileges or
franchises would materially and adversely affect the financial condition or
operations of, or the business taken as a whole, of the Borrower. Together with
any financial statements delivered pursuant to Section 7.6
32
hereof, Borrower shall deliver an updated Schedule 5.2 to reflect any changes
from the existing Schedule 5.2.
Section 7.2 Maintenance. The Borrower will maintain all of its
Properties used or useful in its business in good working order and condition,
ordinary wear and tear excepted, except where the failure to maintain such
Property is not reasonably likely to have a Material Adverse Effect.
Section 7.3 Taxes. The Borrower will pay and discharge all taxes,
assessments and governmental charges or levies imposed on it or on its income or
profits or on any of its Property prior to the date on which penalties attach
thereto, except for any such tax, assessment, charge or levy the payment of
which is being contested in good faith and by proper proceedings and against
which adequate reserves are being maintained.
Section 7.4 ERISA. The Borrower will, and will cause each of its
Subsidiaries to, promptly pay and discharge all obligations and liabilities
arising under ERISA of a character which if unpaid or unperformed is reasonably
likely to result in the imposition of a Lien against any of its Properties.
Section 7.5 Insurance. The Borrower will keep insured by financially
sound and reputable insurers all Property of a character usually insured by
corporations engaged in the same or similar business similarly situated against
loss or damage of the kinds and in the amounts customarily insured against by
such corporations and carry such other insurance as is usually carried by such
corporations. Borrower will, upon request of a Lender, furnish to such Lender a
summary setting forth the nature and extent of the insurance maintained pursuant
to this Section 7.5.
Section 7.6 Financial Reports and Other Information. (a) The Borrower
will maintain a system of accounting in accordance with GAAP and will furnish
to the Lenders and their respective duly authorized representatives such
information respecting the business and financial condition of the Borrower and
its Subsidiaries as any Lender may reasonably request. The Borrower shall
deliver (via email or otherwise) to the Administrative Agent in form and detail
satisfactory to the Administrative Agent, with copies for each Lender in form
and substance satisfactory to them, each of the following:
(i) as soon as available and in any event within 95 days after
the end of each fiscal year of Borrower, consolidated statements of
income, common stockholders' equity, cash flows, and income taxes of
Borrower for such year and the related consolidated balance sheet
and statement of capitalization at the end of such year, setting
forth in each case in comparative form the corresponding figures
for the preceding fiscal year, and accompanied by an opinion thereon
of independent certified public accountants of recognized national
standing, which opinion shall state that said financial statements
fairly present the consolidated financial position and results of
operations and cash flows of
33
Borrower and its consolidated Subsidiaries as at the end of, and for,
such fiscal year, and otherwise be without any Impermissible
Qualification; provided that if Borrower files its annual report on
Form 10-K for the applicable annual period, and such annual report
contains the financial statements and accountants certifications,
opinions and statements described above, Borrower may satisfy the
requirements of this Section 7.6(a)(i) by delivering a copy of such
annual report to each Lender;
(ii) as soon as available and in any event within 50 days after
the end of each of the first three fiscal quarterly periods of each
fiscal year of Borrower, consolidated statements of income of Borrower
for such period and for the period from the beginning of the respective
fiscal year to the end of such period, and consolidated cash flows for
the period from the beginning of the respective fiscal year to the end
of such period, and the related consolidated balance sheet as at the
end of such period, all of the foregoing prepared by Borrower in
reasonable detail in accordance with GAAP and certified by Borrower's
Chief Financial Officer, Vice-President- Controller or Vice-President-
Treasurer as fairly presenting the financial condition as at the dates
thereof and the results of operations for the periods covered thereby
(except for the absence of footnotes and year-end adjustments); provided
that if Borrower files a Form 10-Q for the applicable quarterly period,
and such quarterly report contains the financial statements and
certifications described above, the Borrower may satisfy the
requirements of this Section 7.6(a)(ii) by delivering a copy of such
quarterly report to each Lender.
(b) Each financial statement furnished to the Lenders pursuant to
subsection (i) or (ii) of this Section 7.6 shall be accompanied by a Compliance
Certificate in the form of Exhibit B hereto signed by the Chief Financial
Officer, Vice President - Controller or Vice-President-Treasurer of the
Borrower.
(c) Borrower will promptly (and in any event within five Business Days
after an officer of the Borrower has knowledge thereof) give notice to the
Administrative Agent of (i) any Default or Event of Default of which the
Borrower has knowledge, including in such notice a description of the same
in reasonable detail, and indicating what action is being undertaken with
respect to such Default or Event of Default; and (ii) any event or condition
which in the opinion of the Borrower could reasonably be expected to have a
Material Adverse Effect.
(d) Promptly upon their becoming available, and without duplication of
the other materials required to be delivered pursuant to this Agreement, the
Borrower will deliver (via email or otherwise) to the Administrative Agent,
with copies for each Lender copies of all registration statements, regular
periodic reports, if any, and SEC Disclosure Documents which Nicor or the
Borrower shall have filed with the Securities and Exchange Commission (or any
governmental agency substituted therefor) or any national securities exchange.
34
(e) Promptly upon the mailing thereof to the shareholders of Nicor or
the Borrower generally, and without duplication of the other materials required
to be delivered pursuant to this Agreement, the Borrower will deliver to the
Administrative Agent, with copies for each Lender copies of all financial
statements, reports and proxy statements so mailed.
(f) Immediately upon becoming aware of the institution of any steps by
Nicor, the Borrower, or any other Person to terminate any Pension Plan or the
complete or partial withdrawal from any Pension Plan by Nicor or any member of
its Controlled Group which could result in a liability to Nicor or any of its
Subsidiaries of a liability in excess of $20,000,000, or the failure to make a
required contribution to any Pension Plan if such failure is sufficient to give
rise to a Lien under Section 302(f) of ERISA securing an amount in excess of
$20,000,000, or the taking of any action with respect to a Pension Plan which
could result in the requirement that Nicor or the Borrower furnish a bond or
other security to the PBGC or such Pension Plan in excess of $20,000,000, or
the occurrence of any event with respect to any Pension Plan which could result
in the incurrence by Nicor or the Borrower of any material liability, fine or
penalty, or any material increase in the contingent liability of Nicor or the
Borrower with respect to any post-retirement Welfare Plan benefit, notice
thereof and copies of all documentation relating thereto.
(g) From time to time such other information regarding the business or
financial condition of the Borrower as the Administrative Agent or a Lender may
reasonably request.
Section 7.7 Lender Inspection Rights. For purposes of confirming
compliance with the Credit Documents or after the occurrence and during the
continuance of an Event of Default, upon reasonable notice from the
Administrative Agent or the Required Lenders, Borrower will, permit the Lenders
(and such Persons as any Lender may designate) during normal business hours to
visit and inspect, under Borrower's guidance, any of the Properties of Borrower
or any of its Subsidiaries, to examine all of their books of account, records,
reports and other papers, to make copies and extracts therefrom, and to discuss
their respective affairs, finances and accounts with their respective officers,
employees and with their independent public accountants (and by this provision
Borrower authorizes such accountants to discuss with the Lenders (and such
Persons as any Lender may designate) the finances and affairs of Borrower and
its Subsidiaries) all at such reasonable times and as often as may be reasonably
requested; provided, however, that except upon the occurrence and during the
continuation of any Default or Event of Default, not more than one such visit
and inspection may be conducted in any twelve month period. Prior to the
occurrence of an Event of Default, the Borrower shall only be required to pay
the costs and expenses of professionals retained by the Administrative Agent in
connection with any such visit or inspection. After the occurrence of an Event
of Default, the Borrower shall be obligated to pay all reasonable costs and
expenses incurred by the Administrative Agent and the Lenders in connection with
such visitations and inspections. The Borrower shall receive advance
35
notice of any proposed discussion with such accountants and shall have the right
to participate therein.
Section 7.8 Conduct of Business. The Borrower will not engage in any
material line of business materially unrelated to the lines of business in which
the Borrower and its Subsidiaries are engaged on the Closing Date.
Section 7.9 Liens. Borrower will not, nor will it permit any of its
Subsidiaries to, create, incur, permit to exist any Lien on any Property owned
by the Borrower or any Subsidiary of the Borrower; provided, however, that this
Section 7.9 shall not apply to or operate to prevent:
(a) Liens arising by operation of law in respect of Property of the
Borrower or any of its Subsidiaries which are incurred in the ordinary
course of business which do not in the aggregate materially detract from
the value of such Property or materially impair the use thereof in the
operation of the business of Borrower or any of its Subsidiaries;
(b) Liens for taxes or assessments or other government charges or
levies on the Borrower or any Subsidiary of the Borrower or their
respective Properties which are not past due or which are being contested
in good faith by appropriate proceedings and for which reserves in
conformity with GAAP have been provided on the books of the Borrower;
provided that the aggregate amount of liabilities (including interest and
penalties, if any) of the Borrower and its Subsidiaries secured by such
Liens shall not exceed $20,000,000 at any one time outstanding;
(c) Liens arising out of judgments or awards against the Borrower or
any Subsidiary of the Borrower, or in connection with surety or appeal
bonds in connection with bonding such judgments or awards, the time for
appeal from which or petition for rehearing of which shall not have
expired or with respect to which the Borrower or such Subsidiary shall be
prosecuting an appeal or proceeding for review, and with respect to which
it shall have obtained a stay of execution pending such appeal or
proceeding for review; provided that the aggregate amount of liabilities
(including interest and penalties, if any) of Borrower and its
Subsidiaries secured by such Liens shall not exceed $20,000,000 at any
one time outstanding;
(d) Survey exceptions or encumbrances, easements or reservations, or
rights of others for rights-of-way, utilities and other similar purposes,
or zoning or other restrictions as to the use of real Properties which do
not materially impair their use in the operation of the business of the
Borrower or any Subsidiary of the Borrower;
36
(e) Liens existing on the date hereof and Liens granted pursuant to
the terms of the Nicor Gas Indenture;
(f) Liens securing Indebtedness and other obligations; provided that
such Liens permitted by this paragraph (f) shall only be permitted to the
extent the aggregate amount of Indebtedness and other obligations secured
by all such Liens does not exceed ten percent (10%) of the difference
between (A) Consolidated Assets as reflected on the most recent balance
sheet delivered pursuant to Section 7.6, minus (B) the amount of
Indebtedness then outstanding under the Nicor Gas Indenture;
(g) Liens in favor of carriers, warehousemen, mechanics, materialmen
and landlords granted in the ordinary course of business for amounts not
overdue or being diligently contested in good faith by appropriate
proceedings and for which adequate reserves in accordance with GAAP shall
have been set aside on its books;
(h) Liens incurred or deposits made in the ordinary course of
business in connection with worker's compensation, unemployment insurance
or other forms of governmental insurance or benefits;
(i) Liens with respect to any surplus assets leased by the Borrower
or any of its Subsidiaries.
(j) Any extension, renewal or replacement (or successive extensions,
renewals or replacements) in whole or in part of any Lien referred to in
the foregoing paragraphs (a) through (i), inclusive; provided, however,
that the principal amount of Indebtedness secured thereby shall not
exceed the principal amount of Indebtedness so secured at the time of
such extension, renewal or replacement, and that such extension, renewal
or replacement shall be limited to the Property which was subject to the
Lien so extended, renewed or replaced;
provided, that the foregoing paragraphs shall not be deemed under any
circumstance to permit a Lien to exist on, and Borrower agrees it will not
permit to exist a Lien on, (i) any capital stock or other equity interests of
the Borrower, or (ii) the Borrower's natural gas inventory or any receivables
arising from the sale of such inventory.
Any Lien which when incurred or permitted to exist complies with the
requirements of paragraphs (a) through (j) above may continue to exist, and
shall be permitted hereunder, notwithstanding that such Lien if incurred
thereafter would not comply with such requirement.
Section 7.10 Use of Proceeds; Regulation U. The proceeds of each
Borrowing will be used by the Borrower solely to provide back-up for commercial
paper
37
and for general corporate purposes. The Borrower will not use any part of the
proceeds of any of the Borrowings directly or indirectly to purchase or carry
any margin stock (as defined in Section 5.10 hereof) or to extend credit to
others for the purpose of purchasing or carrying any such margin stock.
Section 7.11 Mergers, Consolidations and Sales of Assets. The Borrower
will not, nor will it permit any of its Material Subsidiaries to, (i)
consolidate with or be a party to merger with any other Person or (ii) sell,
lease or otherwise dispose of all or a "substantial part" of the assets of the
Borrower and its Subsidiaries; provided, however, that (w) the foregoing shall
not prohibit any sale, lease, transfer or disposition to which the Required
Lenders have consented, such consent not to be unreasonably withheld if (A) such
transaction does not result in a downgrade of the Borrower's S&P Rating or
▇▇▇▇▇'▇ Rating, (B) such transaction is for cash consideration (or other
consideration acceptable to the Required Lenders) in an amount not less than
the fair market value of the applicable assets, and (C) such transaction, when
combined with all other such transactions, would not have a Material Adverse
Effect, taken as a whole, (x) any Subsidiary of the Borrower may merge or
consolidate with or into or sell, lease or otherwise convey all or a substantial
part of its assets to the Borrower or any Subsidiary of which the Borrower holds
(directly or indirectly) at least the same percentage equity ownership; provided
that in any such merger or consolidation involving the Borrower, the Borrower
shall be the surviving or continuing corporation, and (y) the Borrower and its
Subsidiaries may sell inventory in the ordinary course of business.
As used in this Section 7.11, a sale, lease, transfer or disposition of
assets during any fiscal year shall be deemed to be of a "substantial part" of
the consolidated assets of the Borrower and its Subsidiaries if the net book
value of such assets, when added to the net book value of all other assets sold,
leased, transferred or disposed of by the Borrower and its Subsidiaries during
such fiscal year (other than obsolete or surplus Property and inventory in the
ordinary course of business) exceeds ten percent (10%) of the total assets of
the Borrower and its Subsidiaries, determined on a consolidated basis as of the
last day of the immediately preceding fiscal year.
Section 7.12 Environmental Matters. The Borrower will:
(a) use and operate all of its facilities and Properties in
compliance with all Environmental Laws except for such noncompliance
which, singly or in the aggregate, will not have a Material Adverse
Effect, keep all necessary permits, approvals, certificates, licenses
and other authorizations relating to environmental matters in effect
and remain in compliance therewith, except where the failure to keep
such permits, approvals, certificates, licenses or other authorizations,
or any noncompliance with the provisions thereof, will not have a
Material Adverse Effect, and handle all Hazardous Materials in
compliance with all applicable Environmental Laws, except for any
noncompliance that will not have a Material Adverse Effect; and
38
(b) promptly notify the Administrative Agent and provide copies
upon receipt of all written inquiries from any Governmental Authority,
claims, complaints or notices relating to the condition of its facilities
and Properties or compliance with Environmental Laws which will have a
Material Adverse Effect.
Section 7.13 Investments, Acquisitions, Loans, Advances and Guaranties.
The Borrower will not, nor will it permit any Subsidiary of the Borrower to,
directly or indirectly, make, retain or have outstanding any investments
(whether through purchase of stock or obligations or otherwise) in, or loans or
advances to, any other Person, or acquire all or any substantial part of the
assets or business of any other Person or division thereof, or be or become
liable as endorser, guarantor, surety or otherwise (such as liability as a
general partner) for any debt, obligation or undertaking of any other Person, or
otherwise agree to provide funds for payment of the obligations of another, or
supply funds thereto or invest therein or otherwise assure a creditor of another
against loss, or apply for or become liable to the issuer of a letter of credit
which supports an obligation of another, or subordinate any claim or demand it
may have to the claim or demand of any other Person (cumulatively, all of the
foregoing "Investments"); provided, however, that the foregoing provisions shall
not apply to nor operate to prevent:
(a) investments permitted by the Borrower's corporate investment
policy attached hereto as Schedule 7.13;
(b) ownership of stock, obligations or securities received in
settlement of debts owing to the Borrower or any Subsidiary;
(c) endorsements of negotiable instruments for collection in the
ordinary course of business;
(d) loans and advances to employees in the ordinary course of
business for travel, relocation, and similar purposes;
(e) Investments (i) in or with respect to Nicor or any Subsidiary of
the Borrower, including intercompany loans, provided that any intercompany
loans to the Borrower must be subordinated to the Obligations on terms
reasonably acceptable to the Administrative Agent, or (ii) existing on the
Closing Date;
(f) Investments constituting (i) accounts receivable arising, (ii)
trade debt granted, or (iii) deposits made in connection with the purchase
price of goods or services, in each case in the ordinary course of
business;
(g) Investments in Persons engaged in substantially the same
lines of business as the Borrower or any of its Subsidiaries so long
as, unless consented to by the Required Lenders, (i) no downgrade in
the S&P Rating or ▇▇▇▇▇'▇ Rating would occur as a result of the
consummation of
39
such Investment, (ii) if such Investment is for the purpose of acquiring
another Person, the Board of Directors (or similar governing body) of
such Person being acquired has approved being so acquired, and (iii) no
Default or Event of Default has occurred and is continuing at the time
of, or would occur as a result of, such Investment;
(h) Guarantees by the Borrower or any of its Subsidiaries of any
Indebtedness (so long as such Indebtedness is permitted pursuant to
Section 7.14) or other obligations of the Borrower or any of its
Subsidiaries; and
(i) other Investments in addition to those set forth above not to
exceed an aggregate amount of $20,000,000 outstanding at any one time.
Any Investment which when made complies with the requirements of
paragraphs (a) through (h) above may continue to be held notwithstanding that
such Investment if made thereafter would not comply with such requirements;
In determining the amount of investments, acquisitions, loans, advances
and guarantees permitted under this Section 7.13, investments and acquisitions
shall always be taken at the original cost thereof (regardless of any subsequent
appreciation or depreciation therein), loans and advances shall be taken at the
principal amount thereof then remaining unpaid, and guarantees shall be taken at
the amount of obligations guaranteed thereby.
Section 7.14 Restrictions on Indebtedness. The Borrower will not, nor
will it permit any of its Subsidiaries to, issue, incur, assume, create, become
liable for, contingently or otherwise, or have outstanding any Indebtedness,
provided that the foregoing provisions shall not restrict nor operate to prevent
the following Indebtedness:
(a) the Obligations;
(b) any other Indebtedness so long as after giving effect to the
incurrence thereof the Borrower shall be in compliance with the Leverage
Ratio set forth in Section 7.15, provided that intercompany loans owing
by the Borrower are permitted only so long as such loans are subordinated
to the Obligations on terms reasonably satisfactory to the Administrative
Agent.
Section 7.15 Leverage Ratio. The Borrower will cause NICOR not to permit
the ratio of NICOR's Consolidated Indebtedness to NICOR's Capital to exceed 0:70
to 1:00 at the end of any fiscal quarter.
Section 7.16 [Intentionally Omitted].
Section 7.17 Dividends and Other Shareholder Distributions. (a) The
Borrower shall not (i) declare or pay any dividends or make a distribution of
any kind
40
(including by redemption or purchase) on or relating to its outstanding capital
stock, or (ii) repay (directly, through sinking fund payments or otherwise) any
Indebtedness or other obligations owing to an Affiliate unless in either
circumstance no Default or Event of Default exists prior to or would result
after giving effect to such action; provided that nothing in this Section shall
prohibit the Borrower from paying a dividend which was declared as otherwise
permitted hereby.
(b) Except as set forth on Schedule 7.17, the Borrower will not permit
any of its Subsidiaries, directly or indirectly, to create or otherwise cause
or suffer to exist or become effective any consensual encumbrance or restriction
of any kind on the ability of any such Subsidiary to: (1) pay dividends or make
any other distribution on any of such Subsidiary's capital stock owned by the
Borrower or any Subsidiary of the Borrower, (2) pay any Indebtedness owed to the
Borrower or any other Subsidiary, (3) make loans or advances to the Borrower or
any other Subsidiary, or (4) transfer any of its Property or assets to the
Borrower or any other Subsidiary; provided, however, in the case of any
consensual Liens that are permitted pursuant to Section 7.9, the Lien holder
may, solely with respect to the assets or property to which such Lien attaches,
contract for and receive a negative pledge and restrictions on transfer with
respect thereto and the proceeds thereof.
Section 7.18 No Negative Pledges. Except as set forth on Schedule 7.17,
the Borrower will not, and will not permit any of its Subsidiaries to enter into
or suffer to exist any agreement (except the Credit Documents) prohibiting the
creation or assumption of any security interest upon its properties or assets,
whether now owned or hereafter acquired by the Borrower; provided, however, in
the case of a consensual Lien on assets or property that is permitted pursuant
to Section 7.9, the Lien holder may, solely with respect of the assets or
property to which such Lien attaches, contract for and receive a negative pledge
with respect thereto and the proceeds thereof.
Section 7.19 Transactions with Affiliates. The Borrower will not, nor
will it permit any of its Subsidiaries to, enter into or be a party to any
material transaction or arrangement with any Affiliate of such Person, including
without limitation, for purchase from, sale to or exchange of Property with, for
merger or consolidation with or into, or the rendering of any service by or for,
any Affiliate, except (i) pursuant to the reasonable requirements of the
Borrower's or such Subsidiary's business and upon terms no less favorable to the
Borrower or such Subsidiary than could be obtained in a similar transaction
involving a third-party or (ii) as otherwise permitted in this Agreement.
Section 7.20 Compliance with Laws. The Borrower will comply with the
requirements of all applicable laws, rules, regulations and orders of any
Governmental Authority if failure to comply with such requirements would result
in a Material Adverse Effect.
Section 7.21 Derivative Obligation. The Borrower will, nor will it
permit any of its Subsidiaries, to enter into any Derivative Obligations other
than Permitted Derivative Obligations.
41
Section 7.22 Sales and Leasebacks. The Borrower will not, nor will it
permit any of its Subsidiaries to, enter into any arrangement with any bank,
insurance company or other lender or investor providing for the leasing by the
Borrower or any Subsidiary of Borrower of any Property theretofore owned by it
and which has been or is to be sold or transferred by such owner to such lender
or investor if the total amount of rent and other obligations of the Borrower
and its Subsidiaries under such lease, when combined with all rent and other
obligations of Borrower and its Subsidiaries under all such leases, would exceed
$50,000,000.
Section 7.23 OFAC; BSA. The Borrower will ensure, and cause each of its
Subsidiaries to ensure, that each person who owns a controlling interest in or
otherwise controls a Borrower (a) is not nor shall it be (i) listed on the
Specially Designated Nationals and Blocked Person List maintained by the Office
of Foreign Assets Control ("OFAC"), Department of the Treasury, and/or any other
similar lists maintained by OFAC pursuant to any authorizing statute, Executive
Order or regulation or (ii) a person designated under Section 1(b), (c) or (d)
of Executive Order No. 13224 (September 23, 2001), any related enabling
legislation or any other similar Executive Orders, and (b) complies with all
applicable Bank Secrecy Act ("BSA") and anti-money laundering laws and
regulations.
SECTION 8. EVENTS OF DEFAULT AND REMEDIES.
Section 8.1 Events of Default. Any one or more of the following shall
constitute an Event of Default:
(a) (i) default in the payment when due of any fees, interest or of
any other Obligation not covered by clause (ii) below and such payment
default continues for three (3) Business Days or (ii) default in the
payment when due of the principal amount of any Loan;
(b) default by the Borrower in the observance or performance of
any covenant set forth in Section 7.1, Section 7.6(c), Sections 7.10,
7.11, Sections 7.13 through 7.17, and Section 7.21 hereof;
(c) default by the Borrower in the observance or performance of
any provision hereof or of any other Credit Document not mentioned in
(a) or (b) above, which is not remedied within thirty (30) days after
notice thereof shall have been given to the Borrower by the
Administrative Agent;
(d) (i) failure to pay when due Indebtedness in an aggregate
principal amount of (x) $20,000,000 or more of the Borrower or any
Material Subsidiary, or (ii) default shall occur under one or more
indentures, agreements or other instruments under which any
Indebtedness of the Borrower or any of its Material Subsidiaries in
an aggregate principal amount of $20,000,000 or more is outstanding
and such default
42
shall continue for a period of time sufficient to permit the holder
or beneficiary of such Indebtedness or a trustee therefor to cause the
acceleration of the maturity of any such Indebtedness or any mandatory
unscheduled prepayment, purchase or funding thereof;
(e) any representation or warranty made herein or in any other
Credit Document by the Borrower, or in any certificate furnished pursuant
to any Credit Document by the Borrower proves untrue in any material
respect as of the date of the issuance or making, or deemed making or
issuance, thereof;
(f) the Borrower or any Material Subsidiary shall (i) fail to pay
its debts generally as they become due or admit in writing its inability
to pay its debts generally as they become due, (ii) make an assignment
for the benefit of creditors, (iii) apply for, seek, consent to, or
acquiesce in, the appointment of a receiver, custodian, trustee,
examiner, liquidator or similar official for it or any substantial
part of its Property, (iv) institute any proceeding seeking to have
entered against it an order for relief under the United States
Bankruptcy Code, as amended, to adjudicate it insolvent, or seeking
dissolution, winding up, liquidation, reorganization, arrangement,
adjustment or composition of it or its debts under any law relating
to bankruptcy, insolvency or reorganization or relief of debtors or
fail to file an answer or other pleading denying the material
allegations of any such proceeding filed against it or any analogous
action is taken under any other applicable law relating to bankruptcy
or insolvency, (v) take any corporate action (such as the passage by
its board of directors of a resolution) in furtherance of any matter
described in parts (i)-(iv) above, or (vi) fail to contest in good
faith any appointment or proceeding described in Section 8.1(g) hereof;
(g) a custodian, receiver, trustee, examiner, liquidator or similar
official shall be appointed for the Borrower or any Material Subsidiary,
or any substantial part of the Property of the Borrower or a Material
Subsidiary, or a proceeding described in Section 8.1(f)(iv) shall be
instituted against the Borrower or any Material Subsidiary, and such
appointment continues undischarged or such proceeding continues
undismissed or unstayed for a period of sixty (60) days;
(h) the Borrower or any Material Subsidiary shall fail within
thirty (30) days to pay, bond or otherwise discharge any judgment or
order for the payment of money in excess of $20,000,000, which is not
stayed on appeal or otherwise being appropriately contested in good
faith in a manner that stays execution thereon;
(i) Nicor, the Borrower, or any other member of the Controlled
Group shall fail to pay to the PBGC or any Pension Plan any amount or
43
amounts aggregating in excess of $20,000,000 when due, which if remain
unpaid could reasonably result in a Lien against Borrower, (ii) a
notice of intent to terminate a Pension Plan or Pension Plans at a
single time having aggregate Unfunded Vested Liabilities in excess
of $20,000,000 (collectively, a "Material Plan") shall be filed by
the sponsor of such Pension Plan and it could reasonably be expected
that the Borrower shall have liability for any Unfunded Vested
Liabilities in excess of $20,000,000 or (iii) the PBGC shall institute
proceedings to terminate or cause a trustee to be appointed to administer
any Material Plan and it reasonably could be expected to result in
liability to the Borrower in excess of $20,000,000;
(j) Nicor, the Borrower or any Subsidiary of the Borrower or any
Person acting on behalf of Nicor, the Borrower, a Subsidiary or any
governmental authority challenges the validity of this Agreement, the
Fee Letters or the Notes or the Borrower's or one of its Subsidiary's
obligations thereunder;
(k) a Change of Control Event shall have occurred; or
(l) the Borrower shall for any reason cease to be wholly liable
for the full amount of the Obligations owing by it.
Section 8.2 Non-Bankruptcy Defaults. When any Event of Default other
than those described in subsections (f) or (g) of Section 8.1 hereof has
occurred and is continuing, the Administrative Agent shall, if so directed by
the Required Lenders, by written notice to Borrower: (a) terminate the remaining
Commitments and all other obligations of the Lenders hereunder on the date
stated in such notice (which may be the date thereof); and (b) declare the
principal of and the accrued interest on all outstanding Loans to be forthwith
due and payable and thereupon all outstanding Loans, including both principal
and interest thereon, and all other Obligations, shall be and become immediately
due and payable together with all other amounts payable under the Credit
Documents without further demand, presentment, protest or notice of any kind,
all of which are hereby waived by the Borrower. The Administrative Agent, after
giving notice to Borrower pursuant to Section 8.1(c) or this Section 8.2, shall
also promptly send a copy of such notice to the other Lenders, but the failure
to do so shall not impair or annul the effect of such notice.
Section 8.3 Bankruptcy Defaults. When any Event of Default described in
subsections (f) or (g) of Section 8.1 hereof has occurred and is continuing,
then all outstanding Loans, including both interest and principal thereon, and
all other Obligations shall immediately become due and payable together with all
other amounts payable under the Credit Documents without presentment, demand,
protest or notice of any kind, the obligation of the Lenders to extend further
credit pursuant to any of the terms hereof shall immediately terminate.
44
SECTION 9. CHANGE IN CIRCUMSTANCES; TAXES.
Section 9.1 Change of Law. Notwithstanding any other provisions of this
Agreement or any Note, if at any time after the date hereof any change in
applicable law or regulation or in the interpretation thereof makes it unlawful
for any Lender to make or continue to maintain Eurodollar Loans or to perform
its obligations as contemplated hereby, such Lender shall promptly give notice
thereof to the Borrower and such Lender's obligations to make or maintain
Eurodollar Loans under this Agreement shall terminate until it is no longer
unlawful for such Lender to make or maintain Eurodollar Loans. The Borrower
shall convert the outstanding principal amount of any such affected Eurodollar
Loans of such Lender into a Base Rate Loan and on the date of such conversion
pay to such Lender all interest accrued thereon at a rate per annum equal to the
interest rate applicable to such Eurodollar Loan. Thereafter, subject to all of
the terms and conditions of this Agreement, the Borrower may then elect to
borrow the principal amount of any Eurodollar Loans from such Lender by means of
Base Rate Loans from such Lender, which Base Rate Loans shall not be made
ratably by the Lenders but only from such affected Lender.
Section 9.2 Unavailability of Deposits or Inability to Ascertain, or
Inadequacy of, LIBOR. If on or prior to the first day of any Interest Period
for any Borrowing of Eurodollar Loans:
(a) the Administrative Agent determines that deposits in U.S. Dollars
(in the applicable amounts) are not being offered to major banks in the
eurodollar interbank market for such Interest Period, or that by reason of
circumstances affecting the interbank eurodollar market adequate and
reasonable means do not exist for ascertaining the applicable LIBOR, or
(b) Lenders having more than 33% percent of the aggregate amount of
the Commitments reasonably determine and so advise the Administrative
Agent that LIBOR as reasonably determined by the Administrative Agent will
not adequately and fairly reflect the cost to such Lenders or Lender of
funding their or its Eurodollar Loans or Loan for such Interest Period,
then the Administrative Agent shall forthwith give notice thereof to the
Borrower and the Lenders, whereupon until the Administrative Agent notifies the
Borrower that the circumstances giving rise to such suspension no longer exist,
the obligations of the Lenders or of the relevant Lender to make Eurodollar
Loans shall be suspended.
Section 9.3 Increased Costs.
(a) Increased Costs Generally. If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special
deposit, compulsory loan, insurance charge or similar requirement against
45
assets of, deposits with or for the account of, or credit extended by,
any Lender (except any reserve requirement reflected in Adjusted LIBOR);
(ii) subject any Lender to any tax of any kind whatsoever with
respect to this Agreement or any Eurodollar Loan made by it, or change
the basis of taxation of payments to such Lender in respect thereof
(except for Indemnified Taxes or Other Taxes covered by Section 9.4 and
any changes relating to any Excluded Tax payable by such Lender); or
(iii) impose on any Lender any other condition, cost or expense
affecting this Agreement or Eurodollar Loans made by such Lender
hereunder;
and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining any Eurodollar Loan (or of maintaining its
obligation to make any such Loan), or to reduce the amount of any sum received
or receivable by such Lender hereunder (whether of principal, interest or any
other amount), then upon request of such Lender the Borrower will pay to such
Lender such additional amount or amounts as will compensate such Lender for such
additional costs incurred or reduction suffered.
(b) Capital Requirements. If any Lender determines that any Change in
Law affecting such Lender or any lending office of such Lender or such Lender's
holding company, if any, regarding capital requirements has or would have the
effect of reducing the rate of return on such Lender's capital or on the capital
of such Lender's holding company, if any, as a consequence of this Agreement,
the Commitments of such Lender or the Loans made by, such Lender to a level
below that which such Lender or such Lender's holding company could have
achieved but for such Change in Law (taking into consideration such Lender's
policies and the policies of such Lender's holding company with respect to
capital adequacy), then from time to time the Borrower will pay to such Lender
such additional amount or amounts as will compensate such Lender or such
Lender's holding company for any such reduction suffered.
(c) Certificates for Reimbursement. A certificate of a Lender setting
forth the amount or amounts necessary to compensate such Lender or its holding
company as specified in paragraph (a) or (b) of this Section and delivered to
the Borrower shall be prima facie evidence of such costs absent manifest error.
The Borrower shall pay such Lender the amount shown as due on any such
certificate within 10 days after receipt thereof.
(d) Delay in Requests. Failure or delay on the part of any Lender to
demand compensation pursuant to this Section 9.3 shall not constitute a waiver
of such Lender's right to demand such compensation; provided that the Borrower
shall not be required to compensate a Lender pursuant to this Section for any
increased costs incurred or reductions suffered more than nine months prior to
the date that such Lender notifies the Borrower of the Change in Law giving rise
to such increased costs or reductions and of such Lender's intention to claim
compensation therefor (except that, if the Change in
46
Law giving rise to such increased costs or reductions is retroactive, then the
nine-month period referred to above shall be extended to include the period of
retroactive effect thereof).
Section 9.4 Taxes.
(a) Payments Free of Taxes. Any and all payments by or on account of any
obligation of the Borrower hereunder or under any other Credit Document shall be
made free and clear of and without reduction or withholding for any Indemnified
Taxes or Other Taxes; provided that if the Borrower shall be required by
applicable law to deduct any Indemnified Taxes (including any Other Taxes) from
such payments, then (i) the sum payable shall be increased as necessary so that
after making all required deductions (including deductions applicable to
additional sums payable under this Section) the Administrative Agent or Lender
receives an amount equal to the sum it would have received had no such
deductions been made, (ii) the Borrower shall make such deductions and (iii) the
Borrower shall timely pay the full amount deducted to the relevant Governmental
Authority in accordance with applicable law.
(b) Payment of Other Taxes by the Borrower. Without limiting the
provisions of paragraph (a) above, the Borrower shall timely pay any Other Taxes
to the relevant Governmental Authority related to its obligations under this
Agreement in accordance with applicable law.
(c) Indemnification by the Borrower. The Borrower severally shall
indemnify the Administrative Agent and each Lender within 10 days after demand
therefor, for the full amount of any Indemnified Taxes or Other Taxes (including
Indemnified Taxes or Other Taxes imposed or asserted on or attributable to
amounts payable under this Section) arising in connection with payments made by
the Borrower hereunder or under any other Loan Document paid by the
Administrative Agent or such Lender and any penalties, interest and reasonable
expenses arising therefrom or with respect thereto except to the extent that
such penalties, interest and expenses are attributable to the gross negligence
or willful misconduct of the Administrative Agent or such Lender. A certificate
as to the amount of such payment or liability delivered to the Borrower by a
Lender (with a copy to the Administrative Agent), or by the Administrative Agent
on its own behalf or on behalf of a Lender, shall be conclusive absent manifest
error.
(d) Evidence of Payments. Upon the request of the Administrative Agent
and as soon as practicable after any payment of Indemnified Taxes or Other Taxes
by the Borrower to a Governmental Authority, the Borrower shall deliver to the
Administrative Agent the original or a certified copy of a receipt issued by
such Governmental Authority evidencing such payment, a copy of the return
reporting such payment or other evidence of such payment reasonably satisfactory
to the Administrative Agent.
(e) Status of Lenders. Any Foreign Lender that is entitled to an
exemption from or reduction of withholding tax with respect to payments under
any Loan Document under the law of the jurisdiction in which the Borrower is
incorporated or otherwise
47
organized or any treaty to which such jurisdiction is a party (in each
case such jurisdiction will include the United States if the Borrower is
incorporated or organized in any state thereof or the District of Columbia),
shall deliver to the Borrower (with a copy to the Administrative Agent), at the
time or times prescribed by applicable law or reasonably requested by the
Borrower or the Administrative Agent, such properly completed and executed
documentation prescribed by applicable law as will permit such payments to be
made without withholding or at a reduced rate of withholding.
Each Lender and Administrative Agent that is a United States person as
defined in Section 7701(a)(30) of the Code (each a "U.S. Lender") shall provide
prior to or on the Closing Date (or on or prior to the date it becomes a party
to this Agreement) to Borrower and, if applicable, the Administrative Agent, a
properly completed and executed IRS Form W-9 (certifying that such U.S. Lender
is entitled to an exemption from United States backup withholding tax) or any
successor form. Solely for purposes of this Section 9.4(e), a U.S. Lender shall
not include a Lender or Administrative Agent that may be treated as an exempt
recipient based on the indicators described in Treasury Regulation Section
1.6049-4(c)(1)(ii). In addition, any Lender, if requested by the Borrower or the
Administrative Agent, shall deliver such other documentation prescribed by
applicable law or reasonably requested by the Borrower or the Administrative
Agent as will enable the Borrower or the Administrative Agent to determine
whether or not such Lender is subject to backup withholding or information
reporting requirements.
Without limiting the generality of the foregoing, in the event that the
Borrower is incorporated or otherwise organized in the United States of America
or any state thereof or the District of Columbia, any Foreign Lender shall
deliver to the Borrower and the Administrative Agent (in such number of copies
as shall be requested by the recipient) on or prior to the date on which such
Foreign Lender becomes a Lender under this Agreement (and from time to time
thereafter upon the request of the Borrower or the Administrative Agent, but
only if such Foreign Lender is legally entitled to do so) the following
documents, as applicable:
(i) duly completed copies of Internal Revenue Service Form W-8BEN
claiming eligibility for benefits of an income tax treaty to which the
United States of America is a party,
(ii) duly completed copies of Internal Revenue Service Form W-8ECI,
(iii) in the case of a Foreign Lender claiming the benefits of the
exemption for portfolio interest under section 881(c) of the Code, (x) a
certificate to the effect that such Foreign Lender is not (A) a "bank"
within the meaning of section 881(c)(3)(A) of the Code, (B) a "10 percent
shareholder" of the Borrower within the meaning of section 881(c)(3)(B)
of the Code, or (C) a "controlled foreign corporation" described in
section 881(c)(3)(C) of the Code and (y) duly completed copies of Internal
Revenue Service Form W-8BEN, or
48
(iv) any other form prescribed by applicable law as a basis for
claiming exemption from or a reduction in United States Federal
withholding tax duly completed together with such supplementary
documentation as may be prescribed by applicable law to permit the
Borrower to determine the withholding or deduction required to be made.
(f) Treatment of Certain Refunds. If the Administrative Agent or a
Lender determines, in its reasonable discretion, that it has received a refund
of any Taxes or Other Taxes as to which it has been indemnified by the Borrower
or with respect to which the Borrower has paid additional amounts pursuant to
this Section 9.4(f), it shall pay to the Borrower an amount equal to such refund
(but only to the extent of indemnity payments made, or additional amounts paid,
by the Borrower under this Section with respect to the Taxes or Other Taxes
giving rise to such refund), net of all out-of-pocket expenses of the
Administrative Agent or such Lender, as the case may be, and without interest
(other than any interest paid by the relevant Governmental Authority with
respect to such refund); provided that the Borrower, upon the request of the
Administrative Agent or such Lender, agrees to repay the amount paid over to
the Borrower (plus any penalties, interest or other charges imposed by the
relevant Governmental Authority) to the Administrative Agent or such Lender in
the event the Administrative Agent or such Lender is required to repay such
refund to such Governmental Authority. This paragraph shall not be construed to
require the Administrative Agent or any Lender to make available its tax returns
(or any other information relating to its taxes which it deems confidential) to
the Borrower or any other Person.
(g) Tax Benefit. If and to the extent that any Lender is able, in its
sole opinion, to apply or otherwise take advantage of any offsetting tax credit
or other similar tax benefit arising out of or in conjunction with any deduction
or withholding which gives rise to an obligation on the Borrower to pay any
Indemnified Taxes or Other Taxes pursuant to this Section 9.4, then such Lender
shall, to the extent that in its sole opinion it can do so without prejudice to
the retention of the amount of such credit or benefit and without any other
adverse tax consequences for such Lender, reimburse to the Borrower at such time
as such tax credit or benefit shall have actually been received by such Lender
such amount as such Lender shall, in its sole opinion, have determined to be
attributable to the relevant deduction or withholding and as will leave such
Lender in no better or worse position than it would have been in if the payment
of such Indemnified Taxes or Other Taxes had not been required. Nothing in this
Section 9.4 shall oblige any Lender to disclose to the Borrower or any other
person any information regarding its tax affairs or tax computations.
Section 9.5 Mitigation Obligations; Replacement of Lenders.
(a) Designation of a Different Lending Office. If any Lender requests
compensation under Section 9.3, or requires the Borrower to pay any additional
amount to any Lender or any Governmental Authority for the account of any Lender
pursuant to Section 9.4, then such Lender shall use reasonable efforts to
designate a different lending office for funding or booking its Loans hereunder
or to assign its rights and obligations
49
hereunder to another of its offices, branches or affiliates, if, in the
reasonable judgment of such Lender, such designation or assignment (i) would
eliminate or reduce amounts payable pursuant to Section 9.3 or 9.4, as the case
may be, in the future and (ii) would not subject such Lender to any unreimbursed
cost or expense and would not otherwise be materially disadvantageous to such
Lender.
(b) Replacement of Lenders. If any Lender requests compensation under
Section 9.3, or if the Borrower is required to pay any additional amount to any
Lender or any Governmental Authority for the account of any Lender pursuant to
Section 9.4, or if any Lender defaults in its obligation to fund Loans
hereunder, then the Borrower may, at its expense and effort or, in the case of
an assignment from a Defaulting Lender, at the expense of such Defaulting
Lender, upon notice to such Lender and the Administrative Agent, require such
Lender to assign and delegate, without recourse (in accordance with and subject
to the restrictions contained in, and consents required by, Section 11.8), all
of its interests, rights and obligations under this Agreement and the related
Credit Documents to an assignee that shall assume such obligations (which
assignee may be another Lender, if a Lender accepts such assignment); provided
that:
(i) the Borrower shall have paid to the Administrative Agent the
assignment fee specified in Section 11.8,
(ii) such Lender shall have received payment of an amount equal to
the outstanding principal of its Loans, accrued interest thereon, accrued
fees and all other amounts payable to it hereunder and under the other
Credit Documents (including any amounts under Section 2.10) from the
assignee (to the extent of such outstanding principal and accrued
interest and fees) or the Borrower (in the case of all other amounts),
(iii) in the case of any such assignment resulting from a claim for
compensation under Section 9.3 or payments required to be made pursuant
to Section 9.4, such assignment will result in a reduction in such
compensation or payments thereafter, and
(iv) such assignment does not conflict with applicable law.
A Lender shall not be required to make any such assignment or delegation if,
prior thereto, as a result of a waiver by such Lender or otherwise, the
circumstances entitling the Borrower to require such assignment and delegation
cease to apply.
Section 9.6 Discretion of Lender as to Manner of Funding.
Notwithstanding any other provision of this Agreement, each Lender shall be
entitled to fund and maintain its funding of all or any part of its Loans in
any manner it sees fit; it being understood, however, that for the purposes of
this Agreement all determinations hereunder shall be made as if each Lender had
actually funded and maintained each Eurodollar Loan through the purchase of
deposits in the eurodollar interbank market
50
having a maturity corresponding to such Loan's Interest Period and bearing an
interest rate equal to LIBOR for such Interest Period.
SECTION 10. THE AGENT.
Section 10.1 Appointment and Authority. Each of the Lenders hereby
irrevocably appoints JPMorgan Chase Bank, N.A. as its agent hereunder and under
the other Credit Documents and authorizes the Administrative Agent to take such
actions on its behalf and to exercise such powers as are delegated to the
Administrative Agent by the terms hereof or thereof, together with such actions
and powers as are reasonably incidental thereto. The provisions of this Section
10 are solely for the benefit of the Administrative Agent and the Lenders, and
the Borrower shall have no rights as a third party beneficiary of any of such
provisions.
Section 10.2 Rights as a Lender. The Person serving as the
Administrative Agent hereunder shall have the same rights and powers in its
capacity as a Lender as any other Lender and may exercise the same as though it
were not the Administrative Agent and the term "Lender" or "Lenders" shall,
unless otherwise expressly indicated or unless the context otherwise requires,
include the Person serving as the Administrative Agent hereunder in its
individual capacity. Such Person and its Affiliates may accept deposits from,
lend money to, act as the financial advisor or in any other advisory capacity
for and generally engage in any kind of business with the Borrower or any
Subsidiary or other Affiliate thereof as if such Person were not the
Administrative Agent hereunder and without any duty to account therefor to the
Lenders.
Section 10.3 Exculpatory Provisions. The Administrative Agent shall not
have any duties or obligations except those expressly set forth herein and in
the other Credit Documents. Without limiting the generality of the foregoing,
the Administrative Agent:
(a) shall not be subject to any fiduciary or other implied duties,
regardless of whether a Default or Event of Default has occurred and is
continuing,
(b) shall not have any duty to take any discretionary action or
exercise any discretionary powers, except discretionary rights and
powers expressly contemplated hereby or by the other Credit Documents
that the Administrative Agent is required to exercise as directed in
writing by the Required Lenders (or such other number or percentage
of the relevant Lenders as shall be expressly provided for under
the circumstances as provided in this Agreement); provided that the
Administrative Agent shall not be required to take any action that,
in its opinion or the opinion of its counsel, may expose the
Administrative Agent to liability or that is contrary to any Credit
Document or applicable law. In all cases in which this Agreement
and the other Credit Documents do not require the Administrative
Agent to take certain actions, the Administrative Agent
51
shall be fully justified in using its reasonable discretion in failing
to take or in taking any action hereunder and thereunder, and
(c) shall not, except as expressly set forth herein and in the other
Credit Documents, have any duty to disclose, and shall not be liable for
the failure to disclose, any information relating to the Borrower or any
of its Affiliates that is communicated to or obtained by the person
serving as the Administrative Agent or any of its Affiliates in any
capacity.
The Administrative Agent shall not be liable for any action taken or not taken
by it with the consent or at the request of the Required Lenders (or such other
number or percentage of the Lenders as shall be expressly provided for under the
circumstances as provided in this Agreement) or in the absence of its own gross
negligence or willful misconduct. The Administrative Agent shall be deemed not
to have knowledge of any Default or Event of Default unless and until notice
thereof is given in writing to the Administrative Agent by the Borrower or a
Lender.
The Administrative Agent shall not be responsible for or have any duty to
ascertain or inquire into (i) any statement, warranty or representation made in
or in connection with this Agreement or any other Credit Document, (ii) the
contents of any certificate, report or other document delivered hereunder or
thereunder or in connection herewith or therewith, (iii) the performance or
observance of any of the covenants, agreements or other terms or conditions set
forth herein or therein or the occurrence of any Default or Event of Default,
(iv) the validity, enforceability, effectiveness or genuineness of this
Agreement, any other Credit Document or any other agreement, instrument or
document or (v) the satisfaction of any condition set forth in this Agreement,
other than to confirm receipt of items expressly required to be delivered to the
Administrative Agent.
Section 10.4 Reliance by Administrative Agent. The Administrative Agent
shall be entitled to rely upon, and shall not incur any liability for relying
upon, any notice, request, certificate, consent, statement, instrument, document
or other writing (including any electronic message, posting or other
distribution) believed by it to be genuine and to have been signed, sent or
otherwise authenticated by the proper Person. The Administrative Agent also may
rely upon any statement made to it orally or by telephone and believed by it to
have been made by the proper Person, and shall not incur any liability for
relying thereon. In determining compliance with any condition hereunder to the
making of a Loan that by its terms must be fulfilled to the satisfaction of a
Lender, the Administrative Agent may presume that such condition is satisfactory
to such Lender unless the Administrative Agent shall have received notice to the
contrary from such Lender prior to the making of such Loan. The Administrative
Agent may consult with legal counsel (who may be counsel for the Borrower),
independent accountants and other experts selected by it, and shall not be
liable for any action taken or not taken by it in accordance with the advice of
any such counsel, accountants or experts.
52
Section 10.5 Delegation of Duties. The Administrative Agent may perform
any and all of its duties and exercise its rights and powers hereunder or under
any other Credit Document by or through any one or more sub-agents appointed by
the Administrative Agent. The Administrative Agent and any such sub-agent may
perform any and all of its duties and exercise its rights and powers by or
through their respective Related Parties. The exculpatory provisions of this
Article shall apply to any such sub-agent and to the Related Parties of the
Administrative Agent and any such sub-agent, and shall apply to their respective
activities in connection with the syndication of the credit facilities provided
for herein as well as activities as Administrative Agent.
Section 10.6 Resignation of Administrative Agent. The Administrative
Agent may at any time give notice of its resignation to the Lenders and the
Borrower. Upon receipt of any such notice of resignation, the Required Lenders
shall have the right, in consultation with the Borrower (and so long as no Event
of Default shall have occurred and be continuing, with the consent of the
Borrower), to appoint a successor, which shall be a bank with an office in
Chicago, Illinois or New York, New York, or an Affiliate of any such bank with
an office in Chicago, Illinois, or New York, New York. If no such successor
shall have been so appointed by the Required Lenders and shall have accepted
such appointment within 30 days after the retiring Administrative Agent gives
notice of its resignation, then the retiring Administrative Agent may on behalf
of the Lenders appoint a successor Administrative Agent meeting the
qualifications set forth above; provided that if the Administrative Agent shall
notify the Borrower and the Lenders that no such successor is willing to accept
such appointment, then such resignation shall nonetheless become effective in
accordance with such notice and (1) the retiring Administrative Agent shall be
discharged from its duties and obligations hereunder and under the other Loan
Documents and (2) all payments, communications and determinations to be made by,
to or through the Administrative Agent shall instead be made by or to each
Lender directly, until such time as the Required Lenders appoint a successor
Administrative Agent as provided for above in this paragraph. Upon the
acceptance of a successor's appointment as Administrative Agent hereunder, such
successor shall succeed to and become vested with all of the rights, powers,
privileges and duties of the retiring (or retired) Administrative Agent, and
the retiring Administrative Agent shall be discharged from all of its duties
and obligations hereunder and under the other Credit Documents (if not already
discharged therefrom as provided above in this paragraph). The fees payable by
the Borrower to a successor Administrative Agent shall be the same as those
payable to its predecessor unless otherwise agreed among the Borrower and such
successor. After the retiring Administrative Agent's resignation hereunder and
under the other Credit Documents, the provisions of this Section 10.6 and
Section 11.11 shall continue in effect for the benefit of such retiring
Administrative Agent, its sub-agents and their respective Related Parties in
respect of any actions taken or omitted to be taken by any of them while the
retiring Administrative Agent was acting as Administrative Agent.
Section 10.7 Non-Reliance on Administrative Agent and Other Lenders.
Each Lender acknowledges that it has, independently and without reliance upon
the Administrative Agent or any other Lender or any of their Related Parties
and based on
53
such documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon the
Administrative Agent or any other Lender or any of their Related Parties and
based on such documents and information as it shall from time to time deem
appropriate, continue to make its own decisions in taking or not taking action
under or based upon this Agreement, any other Loan Document or any related
agreement or any document furnished hereunder or thereunder.
Section 10.8 No Other Duties, etc. Anything herein to the contrary
notwithstanding, no Bookrunner nor Joint Lead-Arranger listed on the cover page
hereof shall have any powers, duties or responsibilities in such capacity under
this Agreement or any of the other Credit Documents.
SECTION 11. MISCELLANEOUS.
Section 11.1 No Waiver of Rights. No delay or failure on the part of the
Administrative Agent or any Lender or on the part of the holder or holders of
any Note in the exercise of any power or right under any Credit Document shall
operate as a waiver thereof, nor as an acquiescence in any default, nor shall
any single or partial exercise thereof preclude any other or further exercise of
any other power or right. The rights and remedies hereunder of the
Administrative Agent, the Lenders and the holder or holders of any Notes are
cumulative to, and not exclusive of, any rights or remedies which any of them
would otherwise have.
Section 11.2 Non-Business Day. If any payment of principal or interest
on any Loan or of any other Obligation shall fall due on a day which is not a
Business Day, interest or fees (as applicable) at the rate, if any, such Loan
or other Obligation bears for the period prior to maturity shall continue to
accrue on such Obligation from the stated due date thereof to and including the
next succeeding Business Day, on which the same shall be payable.
Section 11.3 Survival of Representations. All representations and
warranties made herein or in certificates given pursuant hereto shall survive
the execution and delivery of this Agreement and the other Credit Documents,
and shall continue in full force and effect with respect to the date as of
which they were made as long as any credit is in use or available hereunder.
Section 11.4 Survival of Indemnities. All indemnities and all other
provisions relating to reimbursement of the Lenders of amounts sufficient to
protect the yield of the Lenders with respect to the Loans, including, but not
limited to, Section 2.10, Section 9.3, Section 9.4 and Section 11.11 hereof,
shall survive the termination of this Agreement and the other Credit Documents
and the payment of the Loans and all other Obligations.
Section 11.5 Set-Off; Sharing of Payments. (a) Without limitation of
any other rights of the Lenders, if an Event of Default shall have occurred and
be continuing,
54
each Lender and each of their respective Affiliates is hereby authorized at any
time and from time to time, to the fullest extent permitted by applicable law,
to set off and apply any and all deposits (general or special, time or demand,
provisional or final, in whatever currency) at any time held and other
obligations (in whatever currency) at any time owing by such Lender or any such
Affiliate to or for the credit or the account of the Borrower against any and
all of the obligations of the Borrower now or hereafter existing under this
Agreement or any other Credit Document to such Lender, irrespective of whether
or not such Lender shall have made any demand under this Agreement or any other
Credit Document and although such obligations of the Borrower may be contingent
or unmatured or are owed to a branch or office of such Lender different from the
branch or office holding such deposit or obligated on such indebtedness. The
rights of each Lender and their respective Affiliates under this Section are in
addition to other rights and remedies (including other rights of setoff) which
such Lender or their respective Affiliates may have. Each Lender agrees promptly
to notify the Borrower and the Administrative Agent after any such setoff and
application, provided that the failure to give such notice shall not affect the
validity of such setoff and application.
(b) If any Lender shall, by exercising any right of setoff or
counterclaim or otherwise, obtain payment in respect of any principal of or
interest on any of its Loans or other obligations hereunder resulting in such
Lender's receiving payment of a proportion of the aggregate amount of its Loans
and accrued interest thereon or other such obligations greater than its
Percentage thereof as provided herein, then the Lender receiving such greater
proportion shall notify the Administrative Agent of such fact and purchase (for
cash at face value) participations in the Loans and such other obligations of
the other Lenders, or make such other adjustments as shall be equitable, so
that all such payments shall be shared by the Lenders ratably in accordance
with their Percentages and other amounts owing them; provided that:
(i) if any such participations are purchased and all or any portion
of the payment giving rise thereto is recovered, such participations
shall be rescinded and the purchase price restored to the extent of such
recovery, without interest, and
(ii) the provisions of this paragraph shall not be construed to
apply to (x) any payment made by the Borrower pursuant to and in
accordance with the express terms of this Agreement or (y) any payment
obtained by a Lender as consideration for the assignment of or sale of
a participation in any of its Loans to any assignee or participant,
other than to the Borrower or any Subsidiary thereof (as to which the
provisions of this paragraph shall apply).
The Borrower consents to the foregoing and agrees, to the extent it may
effectively do so under applicable law, that any Lender acquiring a
participation pursuant to the foregoing arrangements may exercise against the
Borrower rights of setoff and counterclaim with respect to such participation as
fully as if such Lender were a direct creditor of the Borrower in the amount of
such participation.
55
Section 11.6 Notices.
(a) Notices Generally. Except in the case of notices and other
communications expressly permitted to be given by telephone or email (and except
as provided in paragraph (b) below), all notices and other communications
provided for herein shall be in writing and shall be delivered by hand or
overnight courier service, mailed by certified or registered mail or sent by
facsimile as follows:
(i) if to the Borrower, to:
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇; ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
Confirm No.: ▇▇▇-▇▇▇-▇▇▇▇ ▇ ▇▇▇▇▇
(ii) if to the Administrative Agent, to the address set forth on
Part B of Schedule 4 hereto
With copies of all such notices to:
JPMorgan Chase Bank, N.A.
JPMorgan Chase Bank, N.A.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
(iii) if to a Lender, to it at its address (or facsimile number)
set forth in its Administrative Questionnaire.
Notices sent by hand or overnight courier service, or mailed by certified or
registered mail, shall be deemed to have been given when received. Notices sent
by facsimile shall be deemed to have been given when sent (except that, if not
given during normal business hours for the recipient, shall be deemed to have
been given at the opening of business on the next business day for the
recipient). Notices delivered through electronic communications to the extent
provided in paragraph (b) below, shall be effective as provided in said
paragraph (b).
(b) Electronic Communications. Notices and other communications to the
Lenders hereunder may be delivered or furnished by electronic communication
(including e-mail and Internet or intranet websites) pursuant to procedures
approved by the Administrative Agent; provided that the foregoing shall not
apply to notices to any Lender pursuant to Section 2.4(b) if such Lender has
notified the Administrative Agent that it is incapable of receiving notices
under Section 2.4(b) by electronic communication. The Administrative Agent or
the Borrower may, in its discretion, agree
56
to accept notices and other communications to it hereunder by electronic
communications pursuant to procedures approved by it; provided that approval of
such procedures may be limited to particular notices or communications.
Unless the Administrative Agent otherwise prescribes, (i) notices and
other communications sent to an e-mail address shall be deemed received upon the
sender's receipt of an acknowledgement from the intended recipient (such as by
the "return receipt requested" function, as available, return e-mail or other
written acknowledgement); provided that if such notice or other communication is
not sent during the normal business hours of the recipient, such notice or
communication shall be deemed to have been sent at the opening of business on
the next Business Day for the recipient, and (ii) notices or communications
posted to an internet or intranet website shall be deemed received upon the
deemed receipt by the intended recipient at its e-mail address as described in
the foregoing clause (i) of notification that such notice or communication is
available and identifying the website address therefor.
(c) Change of Address, Etc. Any party hereto may change its address or
facsimile number for notices and other communications hereunder by notice
to the other parties hereto.
Section 11.7 Counterparts; Integration; Effectiveness; Electronic
Execution.
(a) Counterparts; Integration; Effectiveness. This Agreement may be
executed in counterparts (and by different parties hereto in different
counterparts), each of which shall constitute an original, but all of which
when taken together shall constitute a single contract. This Agreement and any
separate letter agreements with respect to fees payable to the Administrative
Agent constitute the entire contract among the parties relating to the subject
matter hereof and supersede any and all previous agreements and understandings,
oral or written, relating to the subject matter hereof. Except as provided in
Section 6.1, this Agreement shall become effective when it shall have been
executed by the Administrative Agent and when the Administrative Agent shall
have received counterparts hereof which, when taken together, bear the
signatures of each of the other parties hereto, and thereafter shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns. Delivery of an executed counterpart of a signature page
of this Agreement by facsimile or other electronic means shall be effective as
delivery of a manually executed counterpart of this Agreement.
(b) Electronic Execution of Assignments. The words "execution,"
"signed," "signature," and words of like import in any Assignment and Assumption
shall be deemed to include electronic signatures or the keeping of records in
electronic form, each of which shall be of the same legal effect, validity or
enforceability as a manually executed signature or the use of a paper-based
record keeping system, as the case may be, to the extent and as provided for in
any applicable law, including the Federal Electronic Signatures in Global and
National Commerce Act, the New York State Electronic Signatures and Records Act,
or any other similar state laws based on the Uniform Electronic Transactions
Act.
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Section 11.8 Successors and Assigns.
(a) Successors and Assigns Generally. The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns permitted hereby, except that the Borrower
may not assign or otherwise transfer any of its rights or obligations hereunder,
without the prior written consent of each Lender and no Lender may assign or
otherwise transfer any of its rights or obligations hereunder except (i) to an
Eligible Assignee in accordance with the provisions of paragraph (b) of this
Section, (ii) by way of participation in accordance with the provisions of
paragraph (d) of this Section or (iii) by way of pledge or assignment of a
security interest subject to the restrictions of paragraph (f) of this Section
(and any other attempted assignment or transfer by any party hereto shall be
null and void). Nothing in this Agreement, expressed or implied, shall be
construed to confer upon any Person (other than the parties hereto, their
respective successors and assigns permitted hereby, Participants to the extent
provided in paragraph (d) of this Section and, to the extent expressly
contemplated hereby, the Related Parties of each of the Administrative Agent
and the Lenders) any legal or equitable right, remedy or claim under or by
reason of this Agreement.
(b) Assignments by Lenders. Any Lender may at any time assign to one or
more Eligible Assignees all or a portion of its rights and obligations under
this Agreement (including all or a portion of its Commitment and the Loans at
the time owing to it); provided that
(i) except in the case of an assignment of the entire remaining
amount of the assigning Lender's Commitment and the Loans at the time
owing to it or in the case of an assignment to a Lender or an Affiliate
of a Lender or an Approved Fund with respect to a Lender, the aggregate
amount of the Commitment (which for this purpose includes Loans
outstanding thereunder) or, if the applicable Commitment is not then in
effect, the principal outstanding balance of the Loan of the assigning
Lender subject to each such assignment (determined as of the date the
Assignment and Assumption with respect to such assignment is delivered
to the Administrative Agent or, if "Trade Date" is specified in the
Assignment and Assumption, as of the Trade Date) shall not be less than
$5,000,000 (and the remaining aggregate amount of the Commitment of such
assigning Lender shall not be less than $5,000,000 after giving effect
to such assignment), unless each of the Administrative Agent and, so
long as no Default or Event of Default has occurred and is continuing,
the Borrower otherwise consents (each such consent not to be unreasonably
withheld or delayed);
(ii) each partial assignment shall be made as an assignment of a
proportionate part of all the assigning Lender's rights and obligations
under this Agreement with respect to the Loan or the Commitment assigned;
58
(iii) any assignment of a Commitment must be approved by the
Administrative Agent unless the Person that is the proposed assignee is
itself an Eligible Assignee, which approval shall not be unreasonably
withheld; and
(iv) the parties to each assignment shall execute and deliver to
the Administrative Agent an Assignment and Assumption, together with a
processing and recordation fee of $3,500, and the Eligible Assignee, if
it shall not be a Lender, shall deliver to the Administrative Agent an
Administrative Questionnaire.
Subject to acceptance and recording thereof by the Administrative Agent pursuant
to paragraph (c) of this Section, from and after the effective date specified in
each Assignment and Assumption, the Eligible Assignee thereunder shall be a
party to this Agreement and, to the extent of the interest assigned by such
Assignment and Assumption, have the rights and obligations of a Lender under
this Agreement, and the assigning Lender thereunder shall, to the extent of the
interest assigned by such Assignment and Assumption, be released from its
obligations under this Agreement (and, in the case of an Assignment and
Assumption covering all of the assigning Lender's rights and obligations under
this Agreement, such Lender shall cease to be a party hereto) but shall continue
to be entitled to the benefits of Sections 9.3 and 9.4 with respect to facts and
circumstances occurring prior to the effective date of such assignment. Any
assignment or transfer by a Lender of rights or obligations under this Agreement
that does not comply with this paragraph shall be treated for purposes of this
Agreement as a sale by such Lender of a participation in such rights and
obligations in accordance with paragraph (d) of this Section.
(c) Register. The Administrative Agent, acting solely for this purpose
as an agent of the Borrower, shall maintain at one of its offices in Chicago,
Illinois a copy of each Assignment and Assumption delivered to it and a register
for the recordation of the names and addresses of the Lenders, and the
Commitments of, and principal amounts of the Loans owing to, each Lender
pursuant to the terms hereof from time to time (the "Register"). The entries in
the Register shall be conclusive, and the Borrower, the Administrative Agent and
the Lenders may treat each Person whose name is recorded in the Register
pursuant to the terms hereof as a Lender hereunder for all purposes of this
Agreement, notwithstanding notice to the contrary. The Register shall be
available for inspection by the Borrower and any Lender at any reasonable time
upon reasonable prior notice.
(d) Participations. Any Lender may at any time, without the consent of,
or notice to, the Borrower or the Administrative Agent, sell participations to
any Person (other than a natural person or the Borrower or any of the Borrower's
Affiliates or Subsidiaries) (each, a "Participant") in all or a portion of such
Lender's rights and/or obligations under this Agreement (including all or a
portion of its Commitment and/or the Loans owing to it); provided that (i) such
Lender's obligations under this Agreement shall remain unchanged, (ii) such
Lender shall remain solely responsible to the other
59
parties hereto for the performance of such obligations and (iii) the Borrower,
the Administrative Agent and the other Lenders shall continue to deal solely
and directly with such Lender in connection with such Lender's rights and
obligations under this Agreement.
Any agreement or instrument pursuant to which a Lender sells such a
participation shall provide that such Lender shall retain the sole right to
enforce this Agreement and to approve any amendment, modification or waiver of
any provision of this Agreement; provided that such agreement or instrument may
provide that such Lender will not, without the consent of the Participant, agree
to any amendment, modification or waiver of the type described in Section
11.9(i) that affects such Participant. Subject to paragraph (e) of this Section,
the Borrower agrees that each Participant shall be entitled to the benefits of
Sections 9.3 and 9.4 to the same extent as if it were a Lender and had acquired
its interest by assignment pursuant to paragraph (b) of this Section. Each
Lender granting a participation under this Section 11.8(d) shall keep a
register, meeting the requirements of Treasury Regulation Section 5f.103-1(c),
of each participant, specifying such participant's entitlement to payments of
principal and interest with respect to such participation.
(e) Limitations upon Participant Rights. A Participant shall not be
entitled to receive any greater payment under Sections 9.3 and 9.4 than the
applicable Lender would have been entitled to receive with respect to the
participation sold to such Participant, unless the sale of the participation to
such Participant is made with the Borrower's prior written consent. A
Participant that would be a Foreign Lender if it were a Lender shall not be
entitled to the benefits of Section 9.4 unless the Borrower is notified of the
participation sold to such Participant and such Participant agrees, for the
benefit of the Borrower, to comply with Section 9.4 as though it were a Lender.
(f) Certain Pledges. Any Lender may at any time pledge or assign a
security interest in all or any portion of its rights under this Agreement to
secure obligations of such Lender, including without limitation any pledge or
assignment to secure obligations to a Federal Reserve Bank; provided that no
such pledge or assignment shall release such Lender from any of its obligations
hereunder or substitute any such pledgee or assignee for such Lender as a party
hereto.
(g) Certain Funding Arrangements. Notwithstanding anything to the
contrary contained herein, any Lender (a "Granting Bank") may grant to a special
purpose funding vehicle which is an Affiliate of such Bank (a "SPC") and
identified as such in writing by the Granting Bank to the Administrative Agent
and the Borrower, the option to provide to the Borrower all or any part of any
Loan that such Granting Bank would otherwise be obligated to make to the
Borrower pursuant to this Agreement; provided that (i) nothing herein shall
constitute a commitment by any SPC to make any Loan and (ii) if an SPC elects
not to exercise such option or otherwise fails to provide all or any part of
such Loan, the Granting Bank shall be obligated to make such Loan pursuant to
the terms hereof. The making of a Loan by an SPC hereunder shall utilize the
Commitment of the Granting Bank to the same extent, and as if, such Loan were
made by such Granting
60
Bank. Each party hereto hereby agrees that no SPC shall be liable for any
indemnity or similar payment obligation under this Agreement (all liability
for which shall remain with the Granting Bank). In furtherance of the foregoing,
each party hereto hereby agrees (which agreement shall survive the termination
of this Agreement) that, prior to the date that is one year and one day after
the payment in full of all outstanding commercial paper or other senior
indebtedness of any SPC, it will not institute against, or join any other person
in instituting against, such SPC any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings under the laws of the United States or any
State thereof. In addition, notwithstanding anything to the contrary contained
in this Section 11.8(g), any SPC may (i) with notice to, but without the prior
written consent of, the Borrower and the Administrative Agent and without paying
any processing fee therefor, assign all or a portion of its interests in any
Loans to the Granting Bank or to any financial institutions (consented to by the
Borrower and the Administrative Agent) providing liquidity and/or credit support
to or for the account of such SPC to support the funding or maintenance of Loans
and (ii) disclose on a confidential basis any non-public information relating to
its Loans to any rating agency, commercial paper dealer or provider of any
surety, guarantee or credit or liquidity enhancement to such SPC. This section
may not be amended without the written consent of the SPC.
Section 11.9 Amendments. Any provision of the Credit Documents may be
amended or waived if, but only if, such amendment or waiver is in writing and is
signed by (a) the Borrower, (b) the Required Lenders, and (c) if the rights or
duties of the Administrative Agent are affected thereby, the Administrative
Agent; provided that:
(i) no amendment or waiver pursuant to this Section 11.9 shall
(A) increase, decrease or extend any Commitment of any Lender without
the consent of such Lender or (B) reduce the amount of or postpone any
fixed date for payment of any principal of or interest on any Loan or
of any fee or other Obligation payable hereunder without the consent of
each Lender; provided that the Required Lenders may waive any default
interest accruing pursuant to Section 2.8 hereof; and
(ii) no amendment or waiver pursuant to this Section 11.9 shall,
unless signed by each Lender, change this Section 11.9, or the
definition of Required Lenders, or affect the number of Lenders required
to take any action under the Credit Documents.
Anything in this Agreement to the contrary notwithstanding, if at any time
when the conditions precedent set forth in Section 6.2 hereof to any Loan
hereunder are satisfied, any Lender shall fail to fulfill its obligations to
make such Loan (any such Lender, a "Defaulting Lender") then, for so long as
such failure shall continue, the Defaulting Lender shall (unless the Borrower,
the Administrative Agent and the Required Lenders (determined as if the
Defaulting Lender were not a Lender hereunder) shall otherwise consent in
writing) be deemed for all purposes related to amendments, modifications,
waivers or consents under this Agreement (other than amendments or waivers
referred to in clause (i) and (ii) above) to have no Loans or Commitments and
61
shall not be treated as a Lender hereunder when performing the computation of
the Required Lenders. To the extent the Administrative Agent receives any
payments or other amounts for the account of a Defaulting Lender such Defaulting
Lender shall be deemed to have requested that the Administrative Agent use such
payment or other amount to fulfill its obligations to make such Loan.
Section 11.10 Headings. Section headings used in this Agreement are for
reference only and shall not affect the construction of this Agreement.
Section 11.11 Expenses; Indemnity; Waiver.
(a) Costs and Expenses. The Borrower shall pay (i) all reasonable
out-of-pocket expenses incurred by the Administrative Agent and its Affiliates,
including the reasonable fees, charges and disbursements of counsel for the
Administrative Agent (and fees and time charges for attorneys who may be
employees of the Administrative Agent), in connection with the syndication of
the credit facilities provided for herein, the preparation, negotiation,
execution, delivery and administration of this Agreement and the other Credit
Documents or any amendments, modifications or waivers of the provisions hereof
or thereof (whether or not the transactions contemplated hereby or thereby
shall be consummated), and (ii) all out-of-pocket expenses incurred by the
Administrative Agent or any Lender, including the fees, charges and
disbursements of any counsel for the Administrative Agent or any Lender (and
fees and time charges for attorneys who may be employees of the Administrative
Agent or any Lender), in connection with the enforcement or protection of its
rights in connection with this Agreement and the other Credit Documents,
including its rights under this Section 11.11(a), or in connection with the
Loans made hereunder, including all such out-of-pocket expenses incurred during
any workout, restructuring or negotiations in respect of such Loans.
(b) Indemnification by the Borrower. The Borrower shall indemnify the
Administrative Agent (and any sub-agent thereof) and each Lender, and each
Related Party of any of the foregoing Persons (each such Person being called an
"Indemnitee") against, and hold each Indemnitee harmless from, any and all
losses, claims, damages, liabilities and expenses, including the fees, charges
and disbursements of any counsel for any Indemnitee (and fees and time charges
for attorneys who may be employees of the Administrative Agent or any Lender)
incurred by or asserted against any Indemnitee arising out of, in connection
with, or as a result of (i) the execution or delivery of this Agreement, any
other Credit Document or any agreement or instrument contemplated hereby or
thereby, the performance by the parties hereto of their respective obligations
hereunder or the consummation of the transactions contemplated hereby or thereby
(including any relating to a misrepresentation by the Borrower under any Credit
Document), (ii) any Loan or the use of the proceeds therefrom, (iii) any actual
or alleged presence or Release of Hazardous Materials on or from any Property
owned or operated by the Borrower or any of its Subsidiaries, or any
Environmental Liability related in any way to the Borrower or any of its
Subsidiaries, or (iv) any actual or prospective claim, litigation, investigation
or proceeding relating to any of the foregoing, whether based on
62
contract, tort or any other theory and regardless of whether any Indemnitee is
a party thereto; provided that such indemnity shall not, as to any Indemnitee,
be available to the extent that such losses, claims, damages, liabilities or
related expenses are determined by a court of competent jurisdiction by final
and nonappealable judgment to have resulted from the gross negligence or willful
misconduct of such Indemnitee.
(c) Reimbursement by Lenders. To the extent that the Borrower fails for
any reason to pay within the time set forth in paragraph (e) below any amount
required under paragraph (a) or (b) of this Section 11.11 to be paid to the
Administrative Agent (or any sub-agent thereof) or any Related Party of the
Administrative Agent, each Lender severally agrees to pay to the Administrative
Agent (or any such sub-agent) or such Related Party, as the case may be, upon
demand such Lender's Percentage (determined as of the time that the applicable
unreimbursed expense or indemnity payment is sought) of such unpaid amount;
provided that the unreimbursed expense or indemnified loss, claim, damage,
liability or related expense, as the case may be, was incurred by or asserted
against the Administrative Agent (or any such sub-agent) or against any Related
Party of the Administrative Agent acting for the Administrative Agent (or any
such sub-agent) in connection with such capacity.
(d) Waiver of Consequential Damages, Etc. To the fullest extent
permitted by applicable law, Borrower shall not assert, and each hereby waives,
any claim against any Indemnitee, on any theory of liability, for special,
indirect, consequential or punitive damages (as opposed to direct or actual
damages) arising out of, in connection with, or as a result of, this Agreement,
any other Credit Document or any agreement or instrument contemplated hereby,
the transactions contemplated hereby or thereby, any Loan or the use of the
proceeds thereof, except to the extent that any such claim shall be based upon
the gross negligence or willful misconduct of any such Indemnitee. No Indemnitee
referred to in paragraph (b) above shall be liable for any damages arising from
the use by unintended recipients of any information or other materials
distributed by it through telecommunications, electronic or other information
transmission systems in connection with this Agreement or the other Credit
Documents or the transactions contemplated hereby or thereby.
(e) Payments. All amounts due under this Section 11.11 shall be payable
not later than 5 days after demand therefor; provided that with respect to the
Borrower, such amount shall automatically become due to the extent an Event of
Default has arisen under Section 8.1(f) or 8.1(g).
Section 11.12 Entire Agreement. The Credit Documents constitute the
entire understanding of the parties thereto with respect to the subject matter
thereof and any prior or contemporaneous agreements, whether written or oral,
with respect thereto are superseded thereby.
Section 11.13 Governing Law; Jurisdiction; Etc.
63
(a) Governing Law. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of New York.
(b) Submission to Jurisdiction. The Borrower irrevocably and
unconditionally submits itself and its Property to the nonexclusive jurisdiction
of the courts of the State of New York sitting in the Borough of Manhattan and
of the United States District Court of the Southern District of New York, and
any appellate court from any thereof, in any action or proceeding arising out of
or relating to this Agreement or any other Credit Document, or for recognition
or enforcement of any judgment, and each of the parties hereto irrevocably and
unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such New York State court or, to the
fullest extent permitted by applicable law, in such Federal court. Each of the
parties hereto agrees that a final judgment in any such action or proceeding
shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law. Nothing in this Agreement or in
any other Credit Document shall affect any right that the Administrative Agent
or any Lender may otherwise have to bring any action or proceeding relating to
this Agreement or any other Credit Document against the Borrower or its
Properties in the courts of any jurisdiction.
(c) Waiver of Venue. The Borrower irrevocably and unconditionally
waives, to the fullest extent permitted by applicable law, any objection which
it may now or hereafter have to the laying of venue of any action or proceeding
arising out of or relating to this Agreement or any other Credit Document in any
court referred to in paragraph (b) of this Section. Each of the parties hereto
hereby irrevocably waives, to the fullest extent permitted by applicable law,
the defense of an inconvenient forum to the maintenance of such action or
proceeding in any such court.
(d) Service of Process. Each party hereto irrevocably consents to
service of process in the manner provided for notices in Section 11.6. Nothing
in this Agreement will affect the right of any party hereto to serve process in
any other manner permitted by applicable law.
Section 11.14 WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE
TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF
OR RELATING TO THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER
THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR
ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH
OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE
BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER CREDIT DOCUMENTS BY,
64
AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
Section 11.15 Treatment of Certain Information; Confidentiality. Each of
the Administrative Agent and the Lenders agrees to maintain the confidentiality
of the Information (as defined below), except that Information may be disclosed
(a) to it, its Affiliates and their respective partners, directors, officers,
employees, agents, advisors and representatives (it being understood that the
Persons to whom such disclosure is made will be informed of the confidential
nature of such Information and instructed to keep such Information
confidential), (b) to the extent requested by any regulatory authority
(including any self-regulatory authority, such as the National Association of
Insurance Commissioners), (c) to the extent required by applicable laws or
regulations or by any subpoena or similar legal process, (d) to any other party
hereto, (e) in connection with the exercise of any remedies hereunder or under
any other Credit Document or any action or proceeding relating to this Agreement
or any other Credit Document or the enforcement of rights hereunder or
thereunder, (f) subject to an agreement containing provisions substantially the
same as those of this Section 11.15, to any assignee of or Participant in, or
any prospective assignee of or Participant in, any of its rights or obligations
under this Agreement, (g) with the consent of the Borrower or (h) to the extent
such Information (x) becomes publicly available other than as a result of a
breach of this Section 11.15 or (y) becomes available to the Administrative
Agent or any Lender on a non-confidential basis from a source other than the
Borrower.
For purposes of this Section, "Information" means all information received
from the Borrower or any of its Subsidiaries relating to the Borrower or any of
its Subsidiaries or any of their respective businesses, other than any such
information that is available to the Administrative Agent or any Lender on a
non-confidential basis prior to disclosure by the Borrower; provided that, in
the case of information received from the Borrower after the date hereof, such
information is clearly identified at the time of delivery as confidential. Any
Person required to maintain the confidentiality of Information as provided in
this Section 11.15 shall be considered to have complied with its obligation to
do so if such Person has exercised the same degree of care to maintain the
confidentiality of such Information as such Person would accord to its own
confidential information.
Notwithstanding anything herein to the contrary, "Information" shall not
include, and the Administrative Agent and each Lender may disclose to any and
all persons any information with respect to the U.S. federal income tax
treatment and U.S. federal income tax structure of the transactions contemplated
hereby and all materials of any kind (including opinions or other tax analyses)
that are provided to the Administrative Agent or such Lender relating to such
tax treatment and tax structure.
Section 11.16 Patriot Act. As required by federal law or the
Administrative Agent or a Lender's polices and practices, the Administrative
Agent or a Lender may need to collect certain customer identification
information and documentation in connection with opening or maintaining accounts
or establishing or continuing to provide services.
65
- Remainder of Page Intentionally Left Blank -
[Signature Page Follows]
66
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed and delivered as of the day and year first above written.
NORTHERN ILLINOIS GAS COMPANY,
an Illinois corporation
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------
Title: Vice President & Treasurer
----------------------------
SIGNATURE PAGE TO 210-DAY CREDIT AGREEMENT
JPMORGAN CHASE BANK, N. A.,
in its individual capacity as a Lender and as
Administrative Agent
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------
Title: Vice President
-------------------------
BANK SIGNATURE PAGE TO 210-DAY CREDIT AGREEMENT
ABN AMRO BANK N.V.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
-----------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇
---------------------------
Title: Director
--------------------------
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------
Title: Assistant Vice President
--------------------------
BANK SIGNATURE PAGE TO 210-DAY CREDIT AGREEMENT
WACHOVIA BANK, N.A.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
--------------------------
Title: Vice President
-------------------------
BANK SIGNATURE PAGE TO 210-DAY CREDIT AGREEMENT
THE BANK OF TOKYO-MITSUBISHI, LTD., CHICAGO
BRANCH
By: /s/ KAZUYA MATSUSHITA
----------------------------
Name: ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: General Manager
BANK SIGNATURE PAGE TO 210-DAY CREDIT AGREEMENT
THE BANK OF NEW YORK
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------
Title: Managing Director
-------------------------
BANK SIGNATURE PAGE TO 210-DAY CREDIT AGREEMENT
SOCIETE GENERALE
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
--------------------------
Title: Vice President
-------------------------
BANK SIGNATURE PAGE TO 210-DAY CREDIT AGREEMENT
UFJ BANK LIMITED
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------
Title: Vice President
-------------------------
BANK SIGNATURE PAGE TO 210-DAY CREDIT AGREEMENT
MIZUHO CORPORATE BANK, LTD.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------
Title: Senior Vice President
-------------------------
BANK SIGNATURE PAGE TO 210-DAY CREDIT AGREEMENT
BANCO BILBAO VIZCAYA ARGENTARIA S.A.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------
Title: Vice President
Global Corporate Banking
--------------------------
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------
Title: SVP
-------------------------
BANK SIGNATURE PAGE TO 210-DAY CREDIT AGREEMENT
SUNTRUST BANK
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------
Title: Vice President
-------------------------
BANK SIGNATURE PAGE TO 210-DAY CREDIT AGREEMENT
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------
Title: Vice President
-------------------------
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------
Title: Vice President
-------------------------
BANK SIGNATURE PAGE TO 210-DAY CREDIT AGREEMENT
U.S. BANK NATIONAL ASSOCIATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------
Title: Senior Vice President
-------------------------
BANK SIGNATURE PAGE TO 210-DAY CREDIT AGREEMENT
FIFTH THIRD BANK (CHICAGO),
A MICHIGAN BANKING CORPORATION
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Title: Vice President
BANK SIGNATURE PAGE TO 210-DAY CREDIT AGREEMENT
SEAWAY NATIONAL BANK OF CHICAGO
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Senior Vice President
BANK SIGNATURE PAGE TO 210-DAY CREDIT AGREEMENT