SECOND AMENDMENT TO THE 5-YEAR CREDIT AGREEMENT
Form
10-Q
Exhibit
10.02
EXECUTION
VERSION
SECOND
AMENDMENT TO THE 5-YEAR CREDIT AGREEMENT
This
amendment (the "Amendment"),
dated
as of October 26, 2006, is entered into by and among
NORTHERN
ILLINOIS GAS COMPANY and
NICOR
INC. (each, a "Borrower"
and
collectively, the "Borrowers"),
JPMORGAN CHASE BANK, N.A., in its capacity as administrative agent (in such
capacity, the "Administrative
Agent"),
and
certain of the lenders constituting the Required Lenders (as defined in the
5-Year Credit Agreement, defined below).
The
Borrowers, the Administrative Agent and, among others, the financial
institutions party thereto (the "Lenders"),
are
parties to the 5 year credit agreement dated as of September 13, 2005 (as
modified and supplemented and in effect from time to time, the "5-Year
Credit Agreement"),
providing, subject to the terms and conditions thereof, several commitments
of
the Lenders to make available a revolving letter of credit facility for loans
to
the Borrowers in an aggregate principal or face amount of
$600,000,000.
The
Borrowers, the Administrative Agent and the Lenders party to the 5-Year Credit
Agreement constituting the Required Lenders, wish now to amend the 5-Year Credit
Agreement in certain respects, and accordingly, the parties hereto hereby agree
as follows:
Section
1. Definitions.
Except
as otherwise defined in this Amendment, terms defined in the 5-Year Credit
Agreement are used herein (and in the introductions and recitals hereto) as
defined therein.
Section
2. Amendments.
Subject
to the satisfaction of the conditions precedent specified in Section
4
below,
but effective as of the date hereof, the 5-Year Credit Agreement shall be
amended as follows:
2.01.
References
Generally.
References in the 5-Year Credit Agreement (including references to the 5-Year
Credit Agreement as amended hereby) to "this Agreement" (and indirect references
such as "hereunder," "hereby," "herein" and "hereof") shall be deemed to be
references to the 5-Year Credit Agreement as amended hereby.
2.02.
Definitions.
Section
1.1
of the
5-Year Credit Agreement shall be amended by amending and restating in their
entirety the following definitions:
"“Applicable
Repayment Date”
means,
with respect to each Loan made hereunder, the earlier of (i) the date occurring
one day prior to the date which is one year from the date the initial Borrowing
of such Loan was advanced, and (ii) the Termination Date. "
"“Impermissible
Qualification”
means,
relative to the opinion or certification of any independent public accountant
as
to any financial statement of a Borrower, any qualification or exception to
such
opinion or certification (i) which is of a “going concern” or similar nature,
(ii) which relates to the limited scope of examination of matters relevant
to
such financial statement, or (iii) which relates to the treatment or
classification of any item in such financial statement and which would require
an adjustment to such item the effect of which would be to cause the Borrowers
to be in violation of Section 7.15 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 the kind referred to in
(i)-(iii) and (v)-(vii) secured by a Lien on such Person's interest in Property,
assets or revenues to the extent of the lesser of the value of such Person's
interest in such Property that is subject to such Lien or the principal amount
of such indebtedness but excluding any such indebtedness secured by a Lien
on
any Property or assets owned by others if (A) such Person holds only a leasehold
interest or an easement, right-of-way, license or similar right of use or
occupancy with respect to such Property or asset and (B) such Person has not
assumed or become liable for the payment 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
of 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."
"“Property”
means
any property or asset, of any nature whatsoever, whether real, personal or
mixed, tangible or intangible, and whether now owned or hereafter
acquired."
"“Related
Parties”
means,
subject to the provisions of Section 11.8 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."
"“SEC
Disclosure Documents”
means
all reports on forms 10K, 10Q, and 8K filed by Nicor or Nicor Gas with the
SEC
prior to the Closing Date."
Section
1.1
of the
5-Year Credit Agreement shall be further amended by adding the following
definitions:
"“Guaranty”
means
the Guaranty dated as of December 22, 2005, as amended or supplemented from
time
to time, among Nicor, as guarantor, in favor of JPMorgan Chase Bank, N.A.,
in
its capacity as agent for the lenders to the 2 Year Term Loan
Agreement."
"“ICC
Permitted Investment”
means
any investment permitted by subsection (a) of Section 340.50 of the rules of
the
Illinois Commerce Commission."
"“ICC
Regulated Transaction”
means
any transaction between Nicor Gas and Nicor or any wholly-owned subsidiary
of
Nicor that does not violate the applicable orders, rules and regulations of
the
Illinois Commerce Commission."
"“2
Year Term Loan Agreement”
means
the 2 Year Term Loan Agreement dated as of December 22, 2005, as amended or
supplemented from time to time, by and among Tropical Shipping and Construction
Company Limited, a Cayman Islands exempt company, as borrower, the financial
institutions from time to time party thereto, and JPMorgan Chase Bank, N.A.,
as
administrative agent."
2
"“210-Day
Facility Agreement”
means
(i) the 210-Day Credit Agreement entered into October 26, 2006, as amended
or
supplemented from time to time, among Nicor Gas, the financial institutions
party thereto, JPMorgan Chase Bank, N.A., as administrative agent, ABN AMRO
Bank
NV, as syndication agent, Wachovia Bank, N.A., The Bank of Tokyo-Mitsubishi
UFJ,
Ltd., Chicago Branch and The Bank of New York, as documentation agents, ▇.▇.
▇▇▇▇▇▇ Securities Inc. and ABN AMRO Incorporated, as joint lead-arrangers and
bookrunners and (ii) any successive agreements to the 210-Day Credit Agreement
referred to in clause (i) above which are on substantially similar terms and
are
for substantially similar purposes as the credit agreement referred to in clause
(i)."
2.03.
Extensions.
Section
3.2
of the
5-Year Credit Agreement shall be amended and restated in its entirety to read
as
follows:
"Section
3.2 Extensions.
(a) Requests
for Extension.
The
Borrowers may, by notice to the Administrative Agent (which shall promptly
notify the Lenders) not earlier than 45 days and not later than 35 days prior
to
each anniversary of the Closing Date (the “Annual
Anniversary”),
request that each Lender extend such Lender’s Termination Date for an additional
year from the Termination Date then in effect hereunder (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 Annual
Anniversary and not later than the date (the “Notice
Date”)
that
is 20 days prior to the Annual Anniversary, advise the Administrative Agent
whether or not such Lender agrees to such extension and each Lender that
determines not to so extend its Commitment Termination Date (a “Non-Extending
Lender”)
shall
notify the Administrative Agent of such fact promptly after such determination
(but in any event no later than the Notice Date) and any Lender that does not
so
advise the Administrative Agent on or before the Notice Date shall be deemed
to
be a Non-Extending Lender. The election of any Lender to agree to such extension
shall not obligate any other Lender to so agree.
(c) Notification
by Administrative Agent.
The
Administrative Agent shall notify the Borrowers of each Lender’s determination
under this Section no later than the date 15 days prior to the Annual
Anniversary (or, if such date is not a Business Day, on the next preceding
Business Day).
(d) Additional
Commitment Lenders.
The
Borrowers shall have the right on or before the Annual Anniversary to replace
each Non-Extending Lender with, and add as “Lenders” under this Agreement in
place thereof, one or more Eligible Assignees (each, an “Additional
Commitment Lender”)
with
the approval of the Administrative Agent (which approval shall not be
unreasonably withheld). Each Additional Commitment Lender shall enter into
an
agreement in form and substance satisfactory to the Borrowers and the
Administrative Agent pursuant to which such Additional Commitment Lender shall,
effective as of the Existing Termination Date, undertake a Commitment (and,
if
any such Additional Commitment Lender is already a Lender, its Commitment shall
be in addition to such Lender’s Commitment hereunder on such date).
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(e) Minimum
Extension Requirement.
If (and
only if) the Required Lenders have agreed to extend their Termination Date,
then, effective as of the Annual Anniversary, the Termination Date of each
Extending Lender and of each Additional Commitment Lender shall be extended
to
the date falling one year 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:
(i) no
Default or Event of Default shall have occurred and be continuing on the date
of
such extension and after giving effect thereto;
(ii) 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);
(iii)
the
Borrowers shall deliver a certified copy of their respective Board of Directors'
resolutions authorizing such extension; and
(iv) on
or
before the Termination Date of each Non-Extending Lender, (1) the Borrowers
shall have paid in full the principal of and interest on all of the Loans made
by such Non-Extending Lender to the Borrowers hereunder and (2) the Borrowers
shall have paid in full all other Obligations owing to such Lender
hereunder."
2.04
Representations
and Warranties.
The
lead-in to Section
5
of the
5-Year Credit Agreement is hereby amended and restated in its entirety to read
as follows:
"Section
5
Each
Borrower hereby represents and warrants to each Lender as to itself and, where
the following representations and warranties apply to its Subsidiaries or
Material Subsidiaries, as to each Subsidiary or Material Subsidiary, as
applicable, of such Borrower, as follows:"
2.05.
Government
Regulation.
Section
5.9
of the
5-Year Credit Agreement is hereby amended and restated in its entirety to read
as follows:
"Section
5.9
Government
Regulation. Neither
Borrower nor any Subsidiary of a Borrower is an “investment
company”
within
the meaning of the Investment Company Act of 1940, as amended."
2.06.
Property
and Liens.
Section
5.12
of the
5-Year Credit Agreement is hereby amended and restated in its entirety to read
as follows:
"Section
5.12
Ownership
of Property; Liens.
Each
Borrower and each Subsidiary of such Borrower owns good title to, or a valid
leasehold interest in, or other enforceable
4
interest
in, its Property to the extent owned or leased by it (except where the failure
to have such title, a valid leasehold interest or other enforceable interest
is
not reasonably likely to have a Material Adverse Effect) free and clear of
all
Liens, except as permitted in Section 7.9."
2.07.
Compliance
with Agreements.
Section
5.13
of the
5-Year Credit Agreement is hereby amended and restated in its entirety to read
as follows:
"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 either of the Borrowers, or any
applicable law or regulation, or any order, writ, injunction or decree of any
court or Governmental Authority, or any Contractual Obligation to which either
Borrower is a party or by which it is bound or to which it is subject, or
constitute a default under any such Contractual Obligation, or result in the
creation or imposition of any Lien upon any of the revenues or assets of either
of the Borrowers pursuant to the terms of any such Contractual Obligation except
as would not have a Material Adverse Effect."
2.08.
ERISA.
Section
7.4
of the
5-Year Credit Agreement is hereby amended and restated in its entirety to read
as follows:
"Section
7.4
ERISA.
Each
Borrower will, and will cause each of its Subsidiaries to, promptly pay and
discharge all obligations and liabilities arising under ERISA of a character
which if unpaid or unperformed is reasonably likely to result in the imposition
of a Lien against any of its Properties, except to the extent the imposition
of
such Lien would not result in a Material Adverse Effect."
2.09.
Financial
Reports and Other Information.
Section
7.6(b)
and
Section
7.6(d)
of the
5-Year Credit Agreement are here by amended and restated in its entirety to
read
as follows:
"Section
7.6(b).
….
(b) Each
financial statement furnished to the Lenders pursuant to subsection (a) 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 Nicor. Information required to
be
delivered pursuant to subsections (a), (d) and (e) of this Section 7.6 shall
be
deemed to have been delivered on the date on which a Borrower provides notice
to
the Administrative Agent (via email or otherwise) that such information has
been
posted on Nicor's website on the Internet at ▇▇▇.▇▇▇▇▇.▇▇▇, at
▇▇▇.▇▇▇.▇▇▇/▇▇▇▇▇/▇▇▇▇▇▇▇▇▇▇▇/▇▇▇▇▇▇▇▇.▇▇▇ or at another website identified
in
such notice and accessible by the Lenders without charge, provided
that (i)
such notice may be included in a Compliance Certificate in the form of Exhibit
B
and (ii) a Borrower shall deliver paper copies of the information required
to be
delivered pursuant to subsections (a), (d) and (e) of this Section 7.6 to any
Lender that requests such delivery."
"Section
7.6(d).
5
….
(d) Promptly
upon their becoming available, and without duplication of the other materials
required to be delivered pursuant to this Agreement, each Borrower will deliver
(via email or otherwise) to the Administrative Agent, with copies for each
Lender copies of all registration statements and regular periodic reports,
if
any, which either Borrower shall have filed with the SEC (or any governmental
agency substituted therefore) or any national securities exchange."
2.10.
Lender
Inspection Rights.
Section
7.7
of the
5-Year Credit Agreement shall be amended and restated in its entirety to read
as
follows:
"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, Borrowers will,
permit the Lenders (and such Persons as any Lender may designate) during normal
business hours to visit and inspect, under Borrowers’ guidance, any of the
Properties of Borrowers or any of their Material Subsidiaries, to examine all
of
their books of account, records, reports and other papers, to make copies and
extracts therefrom, and to discuss their respective affairs, finances and
accounts with their respective officers, employees and with their independent
public accountants (and by this provision Borrowers authorize such accountants
to discuss with the Lenders (and such Persons as any Lender may designate)
the
finances and affairs of Borrowers and their Material Subsidiaries) all at such
reasonable times and as often as may be reasonably requested; provided, however,
that except upon the occurrence and during the continuation of any Default
or
Event of Default, not more than one such visit and inspection may be conducted
in any twelve month period. Prior to the occurrence of an Event of Default,
the
Borrowers shall only be required to pay the costs and expenses of professionals
retained by the Administrative Agent in connection with any such visit or
inspection. After the occurrence of an Event of Default, the Borrowers shall
be
obligated to pay all reasonable costs and expenses incurred by the
Administrative Agent and the Lenders in connection with such visitations and
inspections. The Borrowers shall receive advance notice of any proposed
discussion with such accountants and shall have the right to participate
therein."
2.11.
Liens.
Section
7.9
of the
5-Year Credit Agreement shall be amended and restated in its entirety to read
as
follows:
"Section
7.9 Liens.
Neither
Borrower will, nor will it permit any of its Material Subsidiaries to, create,
incur, permit or suffer to exist any Lien on any of its Property, whether now
owned or hereafter acquired by such Borrower or any Material Subsidiary of
such
Borrower; provided,
however,
that
this Section 7.9 shall not apply to or operate to prevent:
(a) Liens
arising by operation of law which are incurred in the ordinary course of
business which do not in the aggregate materially detract from the value of
the
Property subject thereto or materially impair the use thereof in the operation
of the business of Borrower or any of its Material Subsidiaries;
(b) Liens
for
taxes or assessments or other government charges or levies on a Borrower or
any
Material Subsidiary of a Borrower or their respective Properties which
6
are
not
past due or which are being contested in good faith by appropriate proceedings
and for which reserves in conformity with GAAP have been provided on the
books
of a Borrower; provided
that the
aggregate amount of liabilities (including interest and penalties, if any)
of
the Borrowers and their Material 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 a Borrower or any Material Subsidiary
of a Borrower, or in connection with surety or appeal bonds in connection with
bonding such judgments or awards, the time for appeal from which or petition
for
rehearing of which shall not have expired or with respect to which such Borrower
or such Material 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 Material 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 a Borrower or any Material
Subsidiary of a Borrower;
(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 by Nicor 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 either Borrower or any of its
Material Subsidiaries;
(j) Liens
on
any Properties or assets owned by a Person other than either Borrower or any
Material Subsidiary of either Borrower if such Borrower or a Material Subsidiary
of such Borrower holds only leasehold interests or easements, rights-of-way,
licenses or similar rights of use or occupancy with respect to such Properties
or assets;
(k) 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 (j), inclusive; provided,
however,
that
the principal amount of
7
provided,
that,
except as may be created under the Nicor Gas Indenture, the foregoing paragraphs
shall not be deemed under any circumstance to permit a Lien to exist on (i)
any
capital stock or other equity interests of Nicor Gas or (ii) Nicor Gas’ natural
gas inventory or any receivables arising from the sale of such
inventory.
Any
Lien
which when incurred or permitted to exist complies with the requirements of
paragraphs (a) through (k) above may continue to exist, and shall be permitted
hereunder, notwithstanding that such Lien if incurred thereafter would not
comply with such requirement."
2.12.
Investments,
Acquisitions, Loans, Advances and Guaranties.
Section
7.13
of the
5-Year Credit Agreement shall be amended and restated in its entirety to read
as
follows:
"Section
7.13 Investments,
Acquisitions, Loans, Advances and Guaranties. Neither
Borrower will, nor will it permit any Material Subsidiary of such Borrower
to,
directly or indirectly, make, retain or have outstanding any investments
(whether through purchase of stock or obligations or otherwise) in, or loans
or
advances to, any other Person, or acquire all or any substantial part of the
assets or business of any other Person or division thereof, or be or become
liable as endorser, guarantor, surety or otherwise (such as liability as a
general partner) for any debt, obligation or undertaking of any other Person,
or
otherwise agree to provide funds for payment of the obligations of another,
or
supply funds thereto or invest therein or otherwise assure a creditor of another
against loss, or apply for or become liable to the issuer of a letter of credit
which supports an obligation of another, or subordinate any claim or demand
it
may have to the claim or demand of any other Person (cumulatively, all of the
foregoing “Investments”); provided, however, that the foregoing provisions shall
not apply to nor operate to prevent:
(a) ICC
Permitted Investments;
(b) ownership
of stock, obligations or securities received in settlement of debts owing to
a
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 either Borrower or any Subsidiary of either Borrower,
including intercompany loans, 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;
8
(g) Investments
in Persons engaged in substantially the same lines of business as the Borrowers
or any of their Subsidiaries so long as, unless consented to by the Required
Lenders, (i) no downgrade in the S&P Rating or ▇▇▇▇▇’▇ Rating would occur as
a result of the consummation of such Investment, (ii) if such Investment is
for
the purpose of acquiring another Person, the Board of Directors (or similar
governing body) of such Person being acquired has approved being so acquired,
and (iii) no Default or Event of Default has occurred and is continuing at
the
time of, or would occur as a result of, such Investment; and
(h) Guarantees
by either Borrower or any of their respective Subsidiaries of any Indebtedness
(so long as such Indebtedness is permitted pursuant to Section 7.14) or other
obligations of either Borrower or any of their respective
Subsidiaries;
(i) Investments,
whether directly or indirectly through one or more Subsidiaries, in Triton
Container Investments LLC, a cargo container leasing business, made after the
Closing Date in an aggregate amount not to exceed $20,000,000 in any one year
(with the Closing Date and each anniversary thereof being deemed the first
day
of a year for calculating compliance with this provision); and
(j) other
Investments in addition to those set forth above not to exceed an aggregate
amount of (i) $50,000,000 in any one year (with the Closing Date and each
anniversary thereof being deemed the first day of a year for calculating
compliance with this provision), and (ii) $100,000,000 during the term of this
Agreement.
Any
Investment which when made complies with the requirements of paragraphs (a)
through (i) above may continue to be held notwithstanding that such Investment
if made thereafter would not comply with such requirements.
In
determining the amount of investments, acquisitions, loans, advances and
guarantees permitted under this Section 7.13, investments and acquisitions
shall
always be taken at the original cost thereof (regardless of any subsequent
appreciation or depreciation therein), loans and advances shall be taken at
the
principal amount thereof then remaining unpaid, and guarantees shall be taken
at
the amount of obligations guaranteed thereby."
2.13.
Restrictions
on Indebtedness.
Section
7.14
of the
5-Year Credit Agreement shall be amended and restated in its entirety to read
as
follows:
"Section
7.14 Restrictions
on Indebtedness. Neither
Borrower will, nor will it permit any of its Material 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
Borrowers shall be in compliance with the Leverage Ratio set forth in Section
7.15."
2.14.
Leverage
Ratio.
Section
7.15
of the
5-Year Credit Agreement shall be amended and restated in its entirety to read
as
follows:
9
"Section
7.15 Leverage
Ratio. Nicor
will not at the end of any fiscal quarter permit the ratio of its Consolidated
Indebtedness to its Capital to exceed 0:70 to 1:00.
For
the
purposes of the calculation of the ratio of Nicor's Consolidated Indebtedness
to
Nicor's Capital, (1) any non-cash effects resulting from adoption of the
proposed “Statement of Financial Accounting Standards dated March 31, 2006:
Employers’ Accounting for Defined Pension and other Postretirement Plans, an
amendment of FASB Statements No. 87, 88, 106, and 132(R)" shall be excluded;
(2)
any hybrid equity securities, meaning any securities issued by Nicor and/or
its
Subsidiaries or a financing vehicle of Nicor and/or its Subsidiaries that (i)
are classified as possessing a minimum of “intermediate equity content” by
S&P, Basket C equity credit by ▇▇▇▇▇’▇, and 50% equity credit by Fitch and
(ii) require no repayments or prepayments and no mandatory redemptions or
repurchases, in each case, prior to at least 91 days after the later of the
termination of the Commitments and the repayment in full of the Loans and all
other amounts due hereunder, shall be excluded from Nicor's Consolidated
Indebtedness and (3) any mandatorily convertible securities, meaning any
mandatorily convertible equity-linked securities issued by Nicor and/or its
Subsidiaries, so long as the terms of such securities require no repayments
or
prepayments and no mandatory redemptions or repurchases, in each case prior
to
at least 91 days after the later of the termination of the Commitments and
the
repayment in full of the Loans and all other amounts due hereunder, shall be
excluded from Nicor's Consolidated Indebtedness."
2.15.
Dividends
and Other Shareholder Distributions.
Section
7.17(b)
of the
5-Year Credit Agreement shall be amended and restated in its entirety to read
as
follows:
"Section
7.17 Dividends
and Other Shareholder Distributions.
….
(b) Except
as
set forth on Schedule 7.17, neither Borrower will permit any of its Material
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 Material Subsidiary to: (1) pay dividends or make
any
other distribution on any of such Material Subsidiary’s capital stock owned by a
Borrower or any Material Subsidiary of a Borrower, (2) pay any Indebtedness
owed
to a Borrower or any other Material Subsidiary, (3) make loans or advances
to a
Borrower or any other Material Subsidiary, or (4) transfer any of its Property
or assets to a Borrower or any other Material Subsidiary, except for such
encumbrances or restrictions existing under or by reason of:
(a) customary
non-assignment provisions of any contract and customary provisions restricting
assignment or subletting in any lease governing a leasehold interest of any
Material Subsidiary; and
(b) customary
restrictions contained in any consensual Liens that are permitted pursuant
to
Section 7.9."
2.16.
No
Negative Pledges.
Section
7.18
of the
5-Year Credit Agreement shall be amended and restated in its entirety to read
as
follows:
10
"Section
7.18 No
Negative Pledges. Except
as
set forth on Schedule 7.17, the Borrowers will not, and will not permit any
of
their Material Subsidiaries to enter into or suffer to exist any agreement
(except the Credit Documents) prohibiting the creation or assumption of any
security interest upon its properties or assets, whether now owned or hereafter
acquired by the Borrowers or their Material Subsidiaries, as applicable;
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."
2.17.
Transactions
with Affiliates.
Section
7.19
of the
5-Year Credit Agreement shall be amended and restated in its entirety to read
as
follows:
"Section
7.19
Transactions
with Affiliates. Neither
Borrower will, nor will they permit any of their Subsidiaries to, enter into
or
be a party to any material transaction or arrangement with any Affiliate of
such
Person, including without limitation, for purchase from, sale to or exchange
of
Property with, for merger or consolidation with or into, or the rendering of
any
service by or for, any Affiliate, except (i) pursuant to the reasonable
requirements of a Borrower’s or such Subsidiary’s business and upon terms no
less favorable to a Borrower or such Subsidiary than could be obtained in a
similar transaction involving a third-party, (ii) any ICC Regulated Transaction,
(iii) to the extent such material transaction or arrangement would not result
in
a Material Adverse Effect, or (iv) as otherwise permitted in this
Agreement."
2.18.
Non-Business
Day.
Section
11.2
of the
5-Year Credit Agreement shall be amended and restated in its entirety to read
as
follows:
"Section
11.2
Non-Business
Day.
Except
as otherwise expressly provided in this Agreement, 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.
2.19.
Notices. Section 11.6(a)(i) of the 5-Year Credit Agreement shall be amended
and
restated in its entirety to read as follows:
"Section
11.6(a) Notices
Generally.
….
(i)
▇▇▇▇
▇▇▇▇▇ ▇▇▇▇; ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention:
Treasurer
Fax:
▇▇▇-▇▇▇-▇▇▇▇
Confirm
No.: ▇▇▇-▇▇▇-▇▇▇▇
…."
2.20
Modified
Compliance Certificate.
Exhibit
B
shall be
amended and restated in its entirety as set forth on Schedule 1.
11
2.21.
Amended
Schedule 5.2.
Schedule
5.2 (Material
Subsidiaries) shall
be
amended and restated in its entirety as set forth on Schedule 2.
2.22.
Permitted
Investments.
Schedule
7.13
(Permitted
Investments)
shall
be deleted in its entirety from the 5-Year Credit Agreement.
2.23.
Amended
Schedule 7.17.
Schedule
7.17
(Restrictions
on Distributions and Existing Negative Pledges)
shall
be amended and restated in its entirety as set forth on Schedule 3.
Section
3. Representations
and Warranties.
Each
Borrower represents and warrants to the Lenders and the Administrative Agent
that, after giving effect to this Amendment, (a) the representations and
warranties set forth in Section
5
of the
5-Year Credit Agreement are true and complete on the date hereof as if made
on
and as of the date hereof (or, if any such representation or warranty is
expressly stated to have been made as of a specific date, such representation
or
warranty shall be true and correct as of such specific date), and as if each
reference in said Section
5
to "this
Agreement" included reference to this Amendment and (b) no Default or Event
of
Default has occurred and is continuing.
Section
4. Conditions
Precedent.
The
amendments set forth in Section
2
hereof
shall become effective, as of the date hereof, upon the receipt by the
Administrative Agent of (i) a legal opinion from counsel to the Borrower
addressed to the Administrative Agent and the Lenders and (ii) counterparts
of
this Amendment executed by each Borrower, the Required Lenders and the
Administrative Agent.
Section
5. Waiver.
The
Required Lenders hereby waive all Defaults and Events of Default, if any, which
may have occurred prior to the date of this Amendment resulting from (i) a
failure by either Borrower to deliver documents to the Administrative Agent
or
the Lenders in accordance with Section 7.6 of the 5-Year Credit Agreement as
in
effect prior to this Amendment, (ii) any condition that existed or action or
inaction by either Borrower that was not or may not have been in compliance
with
Sections 7.9, 7.13(e), 7.14(b), 7.17(b) or 7.18 of the 5-Year Credit Agreement
as in effect prior to this Amendment, but would have been in compliance with
the
5-Year Credit Agreement as in effect on or after the date hereof, (iii) any
inaccuracy in any representation or warranty made by either Borrower prior
to
this Amendment as to its compliance with Sections 7.6, 7.9, 7.13(e), 7.14(b),
7.17(b) or 7.18 of the 5-Year Credit Agreement as in effect prior to this
Amendment, (iv) any inaccuracy in the representation and warranty set forth
in
Section 5.12 of the 5-Year Credit Agreement as in effect prior to this Amendment
or (v) a failure by either Borrower to provide notice of any such failure,
condition, action, inaction or inaccuracy referred to in clauses (i) - (iv)
above.
Section
6. Miscellaneous.
Except
as herein provided, the 5-Year Credit Agreement shall remain unchanged and
in
full force and effect. This Amendment may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
amendatory instrument and any of the parties hereto may execute this Amendment
by signing any such counterpart. Delivery of an executed counterpart of a
signature page of this Amendment by facsimile (or other electronic transmission)
shall be effective as delivery of a manually executed counterparty hereof.
This
Amendment shall be governed by, and construed in accordance with, the law of
the
State of New York, United States of America, without giving effect to principles
of conflicts of laws (other than Section 5-1401 of the New York General
Obligations Law).
12
IN
WITNESS WHEREOF, the parties hereto have caused this Amendment to the 5-Year
Credit Agreement to be duly executed and delivered as of the day and year first
above written.
NORTHERN
ILLINOIS GAS COMPANY,
as
Borrower
By: /s/
▇▇▇▇▇▇ ▇.
▇'▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇▇
Title:
Vice President - Treasurer
as
Borrower
By: /s/
▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇▇
Title:
Vice President - Treasurer
SIGNATURE
PAGE TO THE 5-YEAR CREDIT AGREEMENT AMENDMENT
JPMORGAN
CHASE BANK, N. A.,
in
its
individual capacity as a Lender and as Administrative Agent
By: /s/
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇
Title: Assistant
Vice President
BANK
SIGNATURE PAGE TO 5-YEAR CREDIT AGREEMENT AMENDMENT
ABN
AMRO BANK N. V.
By: /s/ ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇
▇.
▇▇▇▇▇▇▇▇
Title: Managing
Director
By: /s/
ECE
▇▇▇▇▇▇▇
Name: Ece
▇▇▇▇▇▇▇
Title: Director
BANK
SIGNATURE PAGE TO 5-YEAR CREDIT AGREEMENT AMENDMENT
THE
BANK OF TOKYO-MITSUBISHI UFJ, LTD., CHICAGO BRANCH (F/K/A THE BANK OF
TOKYO-MITSUBISHI, LTD., CHICAGO BRANCH)
By: /s/
TSUGUYUKI UMENE
Name: Tsuguyuki
Umene
Title: Deputy
General Manager
BANK
SIGNATURE PAGE TO 5-YEAR CREDIT AGREEMENT AMENDMENT
WACHOVIA
BANK, N. A.
By: /s/
▇▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇▇
▇▇▇▇▇
Title: Vice
President
BANK
SIGNATURE PAGE TO 5-YEAR CREDIT AGREEMENT AMENDMENT
U.S.
BANK NATIONAL ASSOCIATION
By: /s/ ▇▇▇▇▇
▇.
▇▇▇▇▇▇▇
Name: ▇▇▇▇▇
▇. ▇▇▇▇▇▇▇
Title: Senior
Vice
President
BANK
SIGNATURE PAGE TO 5-YEAR CREDIT AGREEMENT AMENDMENT
THE
BANK OF NEW YORK
By: /s/
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇.
Name: ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇,
▇▇.
Title: Vice
President
BANK
SIGNATURE PAGE TO 5-YEAR CREDIT AGREEMENT AMENDMENT
BANCO
BILBAO VIZCAYA
ARGENTARIA
S.A.
By: /s/
▇▇▇▇▇ ▇.
VIZAN
Name: ▇▇▇▇▇
▇.
Vizan
Title: Vice
President - Global Corporate Banking
By: /s/
▇▇▇▇
▇▇▇▇▇▇▇
Name: ▇▇▇▇
▇▇▇▇▇▇▇
Title: Vice
President - Corporate
Banking
BANK
SIGNATURE PAGE TO 5-YEAR CREDIT AGREEMENT AMENDMENT
▇▇▇▇▇
FARGO BANK, NATIONAL
ASSOCIATION
By: /s/
▇▇▇▇▇▇▇ ▇.
▇▇▇▇
Name: ▇▇▇▇▇▇▇
▇.
▇▇▇▇
Title: Vice
President
BANK
SIGNATURE PAGE TO 5-YEAR CREDIT AGREEMENT AMENDMENT
SUNTRUST
BANK
By: /s/
▇▇▇▇
▇▇▇▇▇
Name: ▇▇▇▇
▇▇▇▇▇
Title: Vice
President
BANK
SIGNATURE PAGE TO 5-YEAR CREDIT AGREEMENT AMENDMENT
MIZUHO
CORPORATE BANK, LTD.
By: /s/
▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
Title: Deputy
General
Manager
BANK
SIGNATURE PAGE TO 5-YEAR CREDIT AGREEMENT AMENDMENT
FIFTH
THIRD BANK (CHICAGO),
A
MICHIGAN BANKING CORPORATION
By: /s/
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Name: ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇
Title: Vice
President
BANK
SIGNATURE PAGE TO 5-YEAR CREDIT AGREEMENT AMENDMENT
SECOND
AMENDMENT TO THE 5-YEAR CREDIT AGREEMENT
SCHEDULE
1 TO THE AMENDMENT
MODIFIED
EXHIBIT B
COMPLIANCE
CERTIFICATE
COMPLIANCE
CERTIFICATE
This
Compliance Certificate is furnished to JPMorgan Chase Bank, N.A., as
Administrative Agent pursuant to the Credit Agreement dated as of September
13,
2005, among Northern Illinois Gas Company, an Illinois corporation
(“Nicor
Gas”),
and
Nicor Inc., an Illinois corporation (“Nicor”;
Nicor
Gas and Nicor are each referred to herein as a "Borrower"
and
collectively as "Borrowers")
JPMorgan Chase Bank, N.A., as Administrative Agent and the financial
institutions party thereto (as amended, supplemented or otherwise modified
from
time to time, the “Credit
Agreement”).
Unless otherwise defined herein, the terms used in this Compliance Certificate
have the meanings ascribed thereto in the Credit Agreement.
THE
UNDERSIGNED HEREBY CERTIFIES THAT:
1. I
am the
duly elected or appointed ___________________of Nicor;
2. I
have
reviewed the terms of the Credit Agreement and I have made, or have caused
to be
made under my supervision, a detailed review of the transactions and conditions
of Nicor and its Subsidiaries during the accounting period covered by the
financial statements (which financial statements have been posted on Nicor's
website on the Internet at ▇▇▇.▇▇▇▇▇.▇▇▇);
3. The
examinations described in paragraph 2 did not disclose, and I have no knowledge
of, the existence of any condition or event which constitutes a Default or
an
Event of Default during or at the end of the accounting period covered by the
Borrowers' financial statements for the year/quarter end (which financial
statements have been posted on Nicor's website on the Internet at ▇▇▇.▇▇▇▇▇.▇▇▇)
or as of the date of this Certificate, except as set forth below;
and
4. Schedule
1 attached hereto sets forth financial data and computations evidencing
compliance with certain covenants of the Credit Agreement, all of which data
and
computations are true, complete and correct. All computations are made in
accordance with the terms of the Credit Agreement.
Described
below are the exceptions, if any, to paragraph 3 listing, in detail, the nature
of the condition or event, the period during which it has existed and the action
which the Borrower has taken, is taking, or proposes to take with respect to
each such condition or event:
The
foregoing certifications, together with the computations set forth in Schedule
1
hereto are made and delivered this ___________day of __________,
200_.
SCHEDULE
1 TO COMPLIANCE CERTIFICATE
Compliance
Calculations for Credit Agreement
CALCULATION
AS OF ________ __, 200_
|
A. Leverage
Ratio (Section 7.15)
|
||
|
1. Consolidated
Net Worth
|
$
|
|
|
2. Consolidated
Indebtedness
|
$
|
|
|
3. Capital
(Line A1 plus Line A2)
|
$
|
|
|
4. Leverage
Ratio
|
:1.00
|
(ratio
of Line A2 to Line A3 not to exceed 0.70:1.00)
|
SCHEDULE
2 TO THE AMENDMENT
AMENDED
SCHEDULE 5.2
MATERIAL
SUBSIDIARIES
|
Subsidiary
Name
|
Place
of Origin
|
Ownership
|
|
Northern
Illinois Gas Company d/b/a Nicor Gas Company
|
Illinois
|
Wholly
owned
by
|
|
▇▇▇▇▇▇▇▇
Inc.
|
Florida
|
Wholly
owned
by
|
|
Tropical
Shipping and Construction Company Limited
|
Cayman
Islands
|
Wholly
owned by ▇▇▇▇▇▇▇▇ Inc.
|
SCHEDULE
3 TO THE AMENDMENT
AMENDED
SCHEDULE 7.17
RESTRICTIONS
ON DISTRIBUTIONS AND EXISTING NEGATIVE PLEDGES
Refer
to
(i) Nicor Gas Indenture as defined in Section 1, (ii) the 210-Day Facility
Agreement as defined in Section 1, (iii) the 2 Year Term Loan Agreement as
defined in Section 1 and (iv) the Guaranty as defined in Section 1.