210-DAY CREDIT AGREEMENT DATED AS OF October 26, 2006 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,...
Nicor
Gas
Form
10-Q
Exhibit
10.01
EXECUTION
VERSION
210-DAY
DATED
AS
OF
October
26, 2006
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 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
TABLE
OF CONTENTS
(This
Table of Contents is not part of the Agreement)
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PAGE
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SECTION
1.
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DEFINITIONS;
INTERPRETATION
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1
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Section
1.1
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Definitions
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1
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Section
1.2
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Interpretation
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13
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SECTION
2.
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THE
CREDITS
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14
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Section
2.1
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The
Revolving Loan Commitment
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14
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Section
2.2
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Applicable
Interest Rates
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14
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Section
2.3
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Minimum
Borrowing Amounts
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16
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Section
2.4
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Manner
of Borrowing Loans and Designating Interest Rates Applicable to
Loans
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16
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Section
2.5
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Interest
Periods
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19
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Section
2.6
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Maturity
of Loans
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19
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|
Section
2.7
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Prepayments
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19
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Section
2.8
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Default
Rate
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20
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Section
2.9
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Evidence
of Debt
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21
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Section
2.10
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Funding
Indemnity
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21
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Section
2.11
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Commitments
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22
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Section
2.12
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Increase
in the Aggregate Commitments
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23
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SECTION
3.
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FEES
AND EXTENSIONS
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24
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Section
3.1
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Fees
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24
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Section
3.2
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Extensions
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25
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SECTION
4.
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PLACE
AND APPLICATION OF PAYMENTS
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26
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SECTION
5.
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REPRESENTATIONS
AND WARRANTIES
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27
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Section
5.1
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Corporate
Organization and Authority
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27
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Section
5.2
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Subsidiaries
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27
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Section
5.3
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Corporate
Authority and Validity of Obligations
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27
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Section
5.4
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Financial
Statements
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28
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Section
5.5
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No
Litigation; No Labor Controversies
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28
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Section
5.6
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Taxes
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28
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Section
5.7
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Approvals
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29
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Section
5.8
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ERISA
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29
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Section
5.9
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Government
Regulation
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29
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|
Section
5.10
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Margin
Stock; Use of Proceeds
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29
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Section
5.11
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Environmental
Warranties
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29
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Section
5.12
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Ownership
of Property; Liens
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31
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Section
5.13
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Compliance
with Agreements
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31
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Section
5.14
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Full
Disclosure
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31
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Section
5.15
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Solvency
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31
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SECTION
6.
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CONDITIONS
PRECEDENT
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31
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Section
6.1
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Initial
Borrowing
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31
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Section
6.2
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All
Borrowings
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32
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SECTION
7.
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COVENANTS
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33
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Section
7.1
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Corporate
Existence; Material Subsidiaries
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33
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Section
7.2
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Maintenance
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33
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Section
7.3
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Taxes
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33
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|
Section
7.4
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ERISA
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34
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Section
7.5
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Insurance
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34
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Section
7.6
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Financial
Reports and Other Information
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34
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Section
7.7
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Lender
Inspection Rights
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36
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Section
7.8
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Conduct
of Business
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36
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Section
7.9
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Liens
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37
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Section
7.10
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Use
of Proceeds; Regulation U
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39
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Section
7.11
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Mergers,
Consolidations and Sales of Assets
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39
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Section
7.12
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Environmental
Matters
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39
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Section
7.13
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Investments,
Acquisitions, Loans, Advances and Guaranties
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40
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Section
7.14
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Restrictions
on Indebtedness
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41
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Section
7.15
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Leverage
Ratio
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41
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Section
7.16
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[Intentionally
Omitted]
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42
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Section
7.17
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Dividends
and Other Shareholder Distributions
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42
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Section
7.18
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No
Negative Pledges
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42
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Section
7.19
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Transactions
with Affiliates
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43
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Section
7.20
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Compliance
with Laws
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43
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Section
7.21
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Derivative
Obligation
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43
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Section
7.22
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Sales
and Leasebacks
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43
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Section
7.23
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OFAC;
BSA
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43
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SECTION
8.
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EVENTS
OF DEFAULT AND REMEDIES
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43
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Section
8.1
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Events
of Default
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44
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Section
8.2
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Non-Bankruptcy
Defaults
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46
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Section
8.3
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Bankruptcy
Defaults
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46
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SECTION
9.
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CHANGE
IN CIRCUMSTANCES; TAXES
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46
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ii
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Section
9.1
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Change
of Law
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46
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Section
9.2
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Unavailability
of Deposits or Inability to Ascertain, or Inadequacy of,
LIBOR
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46
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Section
9.3
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Increased
Cost
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47
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Section
9.4
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Taxes
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48
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Section
9.5
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Mitigation
Obligations; Replacement of Lenders
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51
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Section
9.6
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Discretion
of Lender as to Manner of Funding
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52
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SECTION
10.
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THE
AGENT
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52
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Section
10.1
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Appointment
and Authority
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52
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Section
10.2
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Rights
as a Lender
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52
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Section
10.3
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Exculpatory
Provisions
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53
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Section
10.4
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Reliance
by Administrative Agent
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54
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Section
10.5
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Delegation
of Duties
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54
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Section
10.6
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Resignation
of Administrative Agent
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54
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Section
10.7
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Non-Reliance
on Administrative Agent and Other Lenders
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55
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Section
10.8
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No
Other Duties, etc
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55
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SECTION
11.
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MISCELLANEOUS
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55
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Section
11.1
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No
Waiver of Rights
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55
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Section
11.2
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Non-Business
Day
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56
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Section
11.3
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Survival
of Representations
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56
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Section
11.4
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Survival
of Indemnities
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56
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|
Section
11.5
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Set-Off;
Sharing of Payments
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56
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Section
11.6
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Notices
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57
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Section
11.7
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Counterparts;
Integration; Effectiveness; Electronic Execution
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58
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Section
11.8
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Successors
and Assigns
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59
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|
Section
11.9
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Amendments
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62
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Section
11.10
|
Headings
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63
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|
Section
11.11
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Expenses;
Indemnity; Waiver
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63
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Section
11.12
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Entire
Agreement
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65
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Section
11.13
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Governing
Law; Jurisdiction; Etc
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65
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Section
11.14
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WAIVER
OF JURY TRIAL
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66
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|
Section
11.15
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Treatment
of Certain Information; Confidentiality
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66
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Section
11.16
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Patriot
Act
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67
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EXHIBITS
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A
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Form
of Note
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B
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Form
of Compliance Certificate
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C
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Assignment
and Assumption
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D
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Notice
of Borrowing
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SCHEDULE
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iii
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SCHEDULE
1
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Pricing
Grid
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SCHEDULE
2
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Commitments
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SCHEDULE
4
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Administrative
Agent Notice and Payment Info
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SCHEDULE
5.2
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Schedule
of Existing Subsidiaries
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SCHEDULE
7.17
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Restrictions
on Distributions and Existing Negative Pledges
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iv
210-DAY
CREDIT AGREEMENT
210-DAY
CREDIT AGREEMENT,
dated
as of October 26, 2006 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.
2
“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
October 26, 2006.
“Code”
means
the Internal Revenue Code of 1986, as amended.
“Commitment”
and
“Commitments”
are
defined in Section 2.1 hereof.
“Commitment
Letter”
means
that certain letter dated as of September 25, 2006, among the Borrower, ▇.▇.
▇▇▇▇▇▇ Securities Inc., ABN AMRO Incorporated, JPMorgan Chase Bank, N.A. and
ABN
AMRO Bank N.V.
“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,
4
commodity
option, equity or equity index swap or option, bond option, interest rate
option, forward foreign exchange agreement, rate cap, collar or floor agreement,
future agreement, currency swap agreement, cross currency rate swap agreement,
swaption, currency option, that relates to fluctuations in raw material prices
or utility or energy prices or other costs, or any other similar agreement,
including any option to enter into any of the foregoing, or any combination
of
any of the foregoing. “Derivative Arrangements” shall include all such
agreements or arrangements made or entered into at any time, or in effect
at any
time, whether or not related to a Loan.
“Derivative
Obligations”
means,
with respect to any Person, all liabilities of such Person under any Derivative
Arrangement (including but not limited to obligations and liabilities arising
in
connection with or as a result of early or premature termination of a Derivative
Arrangement, whether or not occurring as a result of a default thereunder),
absolute or contingent, now or hereafter existing or incurred or due or to
become due.
“Eligible
Assignee”
means
(a) a Lender, (b) an Affiliate of a Lender, (c) an Approved Fund, and (d) any
other Person (other than a natural person) approved by (i) the Administrative
Agent, and (ii) unless an Event of Default has occurred and is continuing,
the
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.
5
“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
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.
“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 September 25, 2006, among
ABN
AMRO Bank N.V., ABN AMRO Incorporated and the Borrower and (ii) that certain
letter, dated as of September 25, 2006, between ▇.▇. ▇▇▇▇▇▇ Securities Inc.,
the
Administrative Agent, and the Borrower.
"5-Year
Facility Agreement"
means
the credit agreement entered into September 13, 2005, as amended or supplemented
from time to time, among the Borrower, Nicor, the financial institutions party
thereto, JPMorgan Chase Bank, N.A., as administrative agent, Wachovia Bank,
N.A., as syndication agent, ABN AMRO Bank N.V, The Bank of Tokyo-Mitsubishi,
Ltd., Chicago Branch, and The Bank of New York, as documentation
6
“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 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.
“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 party to the 2 Year Term Loan
Agreement.
“Hazardous
Material”
means:
(a) any
“hazardous substance”, as defined by CERCLA; or
7
(b) any
pollutant or contaminant or hazardous, dangerous or toxic chemical, material
or
substance within the meaning of any other Environmental Law.
“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 the Borrower and Nicor Inc. or any wholly-owned
subsidiary of Nicor Inc. that does not violate the applicable orders, rules
and
regulations of the Illinois Commerce Commission.
“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.
“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 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
8
“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.
“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.
9
“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 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.
10
“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.
“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 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.
“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
11
“SEC”
means
the United States Securities and Exchange Commission.
“SEC
Disclosure Documents”
means
all reports on forms 10K, 10Q, and 8K filed by Nicor or the Borrower 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 senior unsecured debt 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, 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.
12
“Termination
Date”
means
May 24, 2007, as extended from time to time pursuant to Section
3.2.
“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.
“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’ 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
13
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
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
14
“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) ½ 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
|
“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
15
“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 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
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).
17
(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, 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
18
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.
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
19
(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 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.
20
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 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,
21
(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.
(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.
22
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.
(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
23
SECTION
3. FEES AND EXTENSIONS.
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
24
(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 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
25
(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
(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
26
SECTION
5. REPRESENTATION 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 or
Material Subsidiaries, as to each Subsidiary or Material Subsidiary, as
applicable, 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
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
27
Section
5.4 Financial
Statements.
The
consolidated balance sheet and consolidated statement of capitalization of
Nicor
as of December 31, 2005 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, 2006 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, 2005 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.
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
28
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.
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 other general
corporate purposes.
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;
29
(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;
(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.
30
Section
5.12 Ownership
of Property; Liens.
The
Borrower and each Subsidiary of the Borrower owns good title to, or a valid
leasehold interest in, or other enforceable 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.
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, (i) the charter or by-laws of the Borrower, or (ii) any
applicable law or regulation, or any order, writ, injunction or decree of any
court or Governmental Authority, or (iii) 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 except in
the
case of this clause (iii) as would not have a Material Adverse
Effect.
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.
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
31
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, 2006;
(g) Except
as
set forth on Schedule 6.1, neither the Borrower nor any of its Subsidiaries
shall have, during the period from June 30, 2006 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;
(i) The
Borrower shall have delivered the SEC Disclosure Documents which Nicor or the
Borrower shall have filed with the Securities and Exchange Commission (or any
governmental agency substituted therefore) or any national securities exchange
on or after January 1, 2006; 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):
32
(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 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.
33
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, except to the extent the imposition
of
such Lien would not result in a Material Adverse Effect.
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
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
34
(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 the Borrower. 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 the 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) the 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.
(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 and regular periodic reports,
if
any, which Nicor or the Borrower shall have filed with the SEC (or any
governmental agency substituted therefore) or any national securities
exchange.
(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.
35
(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 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 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 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 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 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.
36
Section
7.9 Liens.
Borrower will not, 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 the Borrower or any Material
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 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 the Borrower
or
any Material 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 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 the Borrower or any Material
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 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 the Borrower or any Material
Subsidiary of the 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
37
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 Material
Subsidiaries;
(j) Liens
on
any Properties or assets owned by a Person other than the Borrower or any
Material Subsidiary of the Borrower if the Borrower or a Material Subsidiary
of
the 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 Indebtedness of the Borrower or any of
its
Material Subsidiaries secured thereby shall not exceed the principal amount
of
Indebtedness of the Borrower or any of its Material Subsidiaries so secured
at
the time of such extension, renewal or replacement, and that such extension,
renewal or replacement shall be limited to the Property of the Borrower or
any
of its Material Subsidiaries which was subject to the Lien so extended, renewed
or replaced;
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, 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 (k) above may continue to exist, and shall be permitted
hereunder, notwithstanding that such Lien if incurred thereafter would not
comply with such requirement.
38
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 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
39
Laws,
except for any noncompliance that will not have a Material Adverse Effect;
and
(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 Material 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) ICC
Permitted Investments;
(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, 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 such Investment, (ii) if such Investment is
for
the purpose of acquiring
40
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 $50,000,000 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 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
Borrower shall be in compliance with the Leverage Ratio set forth in Section
7.15.
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.
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 ▇▇▇▇▇’▇,
41
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 (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 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
the Borrower or any Material Subsidiary of the Borrower, (2) pay any
Indebtedness owed to the Borrower or any other Material Subsidiary, (3) make
loans or advances to the Borrower or any other Material Subsidiary, or (4)
transfer any of its Property or assets to the 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.
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 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 Borrower or Material Subsidiary, as applicable; provided,
42
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, (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.
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.
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.
43
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 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
44
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 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.
45
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.
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:
46
(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 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
47
(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 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.
48
(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 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.
49
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
(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
50
(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 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,
51
(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 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
52
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 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,
53
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.
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
54
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 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.
55
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.
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, 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
56
(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.
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:
Treasurer
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.
▇▇▇
▇▇▇▇
▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇ ▇▇▇▇▇
Attention:
_____________
57
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 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
58
(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.
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
59
(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;
(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
60
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 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
61
(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 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:
62
(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
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
accordance with the Fee Letters and the Commitment Letter, 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
63
(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 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
64
(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.
(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
65
(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, 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
66
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.
-
Remainder of Page Intentionally Left Blank -
[Signature
Page Follows]
67
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed and delivered as of the day and year first written above.
Northern
Illinois Gas Company,
an
Illinois corporation
By:
/s/ ▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇▇
Name:
▇▇▇▇▇▇
▇. ▇'▇▇▇▇▇▇
Title:
Vice
President - Treasurer
210-DAY
FACILITY AGREEMENT SIGNATURE PAGE
JPMORGAN
CHASE BANK, N. A.,
in
its
individual capacity as a Lender and as Administrative Agent
By: /s/ ▇▇▇▇▇▇▇
▇.
▇▇▇▇▇
Name: ▇▇▇▇▇▇▇
▇.
▇▇▇▇▇
Title: Assistant
Vice President
ABN
AMRO BANK N. V.
By: /s/
▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇
▇.
▇▇▇▇▇▇▇▇
Title: Managing
Director
By: /s/
ECE
▇▇▇▇▇▇▇
Name: Ece
▇▇▇▇▇▇▇
Title: Director
WACHOVIA
BANK, N. A.
By: /s/ ▇▇▇▇▇
▇▇▇▇▇
Name: ▇▇▇▇▇
▇▇▇▇▇
Title: Vice
President
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
THE
BANK OF NEW YORK
By: /s/
▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇, ▇▇.
Name: ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇,
▇▇.
Title: Vice
President
MIZUHO
CORPORATE BANK, LTD.
By: /s/
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
Title: Deputy
General Manager
BANK
SIGNATURE PAGE TO 210-DAY CREDIT AGREEMENT
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 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
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
THE
NORTHERN TRUST COMPANY
By: /s/
▇▇▇▇▇
▇▇▇▇
Name: ▇▇▇▇▇
▇▇▇▇
Title: Vice
President
BANK
SIGNATURE PAGE TO 210-DAY CREDIT AGREEMENT
EXHIBIT
A
PROMISSORY
NOTE
September
[ ], 2006
FOR
VALUE
RECEIVED, the undersigned, Northern Illinois Gas Company, an Illinois
corporation (“Borrower”),
promises to pay to the order of [_________________] (the “Lender”),
at
the principal office of JPMorgan Chase Bank, N.A., in New York, New York, in
accordance with Section 4 of the Credit Agreement, the aggregate unpaid
principal amount of each Loan made by the Lender to Borrower pursuant to the
Credit Agreement (as hereinafter defined) on the date repayment of such Loan
is
due, together with interest on the principal amount of each Loan from time
to
time outstanding hereunder at the rates, and payable in the manner and on the
dates, specified in the Credit Agreement.
This
Note
is one of the Notes referred to in the Credit Agreement dated as of October
26,
2006, among Northern Illinois Gas Company, JPMorgan Chase Bank, N.A., as
Administrative Agent and the other financial institutions party thereto (the
“Credit
Agreement”),
and
this Note and the holder hereof are entitled to all the benefits provided for
thereby or referred to therein, to which Credit Agreement reference is hereby
made for a statement thereof. All defined terms used in this Note, except terms
otherwise defined herein, shall have the same meaning as in the Credit
Agreement. This Note shall be governed by and construed in accordance with
the
laws of the State of New York.
The
Lender shall record on its books or records or on a schedule attached to this
Note, which is a part hereof, each Loan made by it pursuant to the Credit
Agreement, together with all payments of principal and interest and the
principal balances from time to time outstanding hereon, whether the Loan is
a
Base Rate Loan or a Eurodollar Loan, and the interest rate and Interest Period
applicable thereto; provided
that
prior to the transfer of this Note all such amounts shall be recorded on a
schedule attached to this Note. The record thereof, whether shown on such books
or records or on a schedule to this Note, shall be prima facie evidence of
the
same; provided,
however, that the failure of the Lender to record any of the foregoing or any
error in any such record shall not limit or otherwise affect the obligation
of
Borrower to repay all Loans made to it pursuant to the Credit Agreement together
with accrued interest thereon.
Prepayments
may be made hereon and this Note may be declared due prior to the expressed
maturity hereof, all in the events, on the terms and in the manner as provided
for in the Credit Agreement.
-
Remainder of Page Intentionally Left Blank -
[Signature
Page Follows]
The
Borrower hereby waives demand, presentment, protest or notice of any kind
hereunder.
NORTHERN
ILLINOIS GAS COMPANY,
an
Illinois corporation
By:
Name:
Title:
EXHIBIT
B
COMPLIANCE
CERTIFICATE
This
Compliance Certificate is furnished to JPMorgan Chase Bank, N.A., as
Administrative Agent pursuant to the 210-Day Credit Agreement dated as of
October 26, 2006, among Northern Illinois Gas Company, an Illinois corporation
(the “Borrower”),
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 the Borrower;
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
Borrower's 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)
|
EXHIBIT
C
ASSIGNMENT
AND ASSUMPTION
This
Assignment and Assumption (the “Assignment
and Assumption”)
is
dated as of the Effective Date set forth below and is entered into by and
between [Insert
name of Assignor]
(the
“Assignor”)
and
[Insert
name of Assignee]
(the
“Assignee”).
Capitalized terms used but not defined herein shall have the meanings given
to
them in the Credit Agreement identified below (as amended, the “Credit
Agreement”),
receipt of a copy of which is hereby acknowledged by the Assignee. Annex 1
attached hereto is hereby agreed to and incorporated herein by reference and
made a part of this Assignment and Assumption as if set forth herein in
full.
For
an
agreed consideration, the Assignor hereby irrevocably sells and assigns to
the
Assignee, and the Assignee hereby irrevocably purchases and assumes from the
Assignor, subject to and in accordance with the Assignment and Assumption and
the Credit Agreement, as of the Effective Date inserted by the Administrative
Agent as contemplated below (i) all of the Assignor’s rights and obligations in
its capacity as a Lender under the Credit Agreement and any other documents
or
instruments delivered pursuant thereto to the extent related to the amount
and
percentage interest identified below of all of such outstanding rights and
obligations of the Assignor under the respective facilities identified below
(including without limitation any letters of credit, guarantees, and swingline
loans included in such facilities) and (ii) to the extent permitted to be
assigned under applicable law, all claims, suits, causes of action and any
other
right of the Assignor (in its capacity as a Lender) against any Person, whether
known or unknown, arising under or in connection with the Credit Agreement,
any
other documents or instruments delivered pursuant thereto or the loan
transactions governed thereby or in any way based on or related to any of the
foregoing, including, but not limited to, contract claims, tort claims,
malpractice claims, statutory claims and all other claims at law or in equity
related to the rights and obligations sold and assigned pursuant to clause
(i)
above (the rights and obligations sold and assigned pursuant to clauses (i)
and
(ii) above being referred to herein collectively as, the “Assigned
Interest”).
Such
sale and assignment is without recourse to the Assignor and, except as expressly
provided in this Assignment and Assumption, without representation or warranty
by the Assignor.
1.
Assignor:
2.
Assignee:
[and is an Affiliate/Approved Fund of [identify
Lender]1]
3.
Borrower:
Northern
Illinois Gas
Company
4.
Administrative
Agent: ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Bank, N.A., as the administrative agent under the Credit Agreement
1
Select
as applicable.
5.
Credit
Agreement: The Credit Agreement dated
as of October 26, 2006 among Northern Illinois Gas Company, the Lenders parties
thereto, and JPMorgan Chase Bank, N.A., as Administrative Agent.
6.
Assigned
Interest:
|
Amount
of Commitment/Loans of Assignor prior to [Effective] [Trade]
Date
|
Amount
of Commitment/Loans of Assignee prior to [Effective] [Trade]
Date
|
Amount
of Commitment/Loans Assigned
|
Amount
of Commitment/Loans of Assignor after [Effective] [Trade]
Date
|
Amount
of Commitment/Loans of Assignee after [Effective] [Trade]
Date
|
|
$
|
$
|
$
|
$
|
$
|
[7.
Trade
Date:
] 2
Effective
Date: _____________ ___, 20___ [TO
BE INSERTED BY ADMINISTRATIVE AGENT AND WHICH SHALL BE THE EFFECTIVE DATE OF
RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.]
The
terms
set forth in this Assignment and Assumption are hereby agreed to:
ASSIGNOR
[NAME
OF
ASSIGNOR]
By:
Title:
ASSIGNEE
[NAME
OF
ASSIGNEE]
By:
Title:
2 To
be completed if
the Assignor and the Assignee intend that the minimum assignment amount is
to be
determined as of the Trade Date.
[Consented
to and]3
Accepted:
JPMORGAN
CHASE BANK, N.A.,
as
Administrative
Agent
By:
Title:
[Consented
to:]4
NORTHERN
ILLINOIS GAS COMPANY
By:
Title:
|
3
|
To
be added only if the consent of the Administrative Agent is required
by
the terms of the Credit Agreement.
|
|
4
|
To
be added only if the consent of the Borrower is required by the
terms of
the Credit Agreement.
|
ANNEX
1 to Assignment and Assumption
STANDARD
TERMS AND CONDITIONS FOR
ASSIGNMENT
AND ASSUMPTION
1. Representations
and Warranties.
1.1 Assignor.
The
Assignor (a) represents and warrants that (i) it is the legal and beneficial
owner of the Assigned Interest, (ii) the Assigned Interest is free and clear
of
any lien, encumbrance or other adverse claim and (iii) it has full power and
authority, and has taken all action necessary, to execute and deliver this
Assignment and Assumption and to consummate the transactions contemplated
hereby; and (b) assumes no responsibility with respect to (i) any statements,
warranties or representations made in or in connection with the Credit Agreement
or any other Credit Document, (ii) the execution, legality, validity,
enforceability, genuineness, sufficiency or value of the Credit Documents or
any
collateral thereunder, (iii) the financial condition of the Borrower, any of
its
Subsidiaries or Affiliates or any other Person obligated in respect of any
Credit Document or (iv) the performance or observance by the Borrower, any
of
its Subsidiaries or Affiliates or any other Person of any of their respective
obligations under any Credit Document.
1.2 Assignee.
The
Assignee (a) represents and warrants that (i) it has full power and authority,
and has taken all action necessary, to execute and deliver this Assignment
and
Assumption and to consummate the transactions contemplated hereby and to become
a Lender under the Credit Agreement, (ii) it meets all requirements of an
Eligible Assignee under the Credit Agreement (subject to receipt of such
consents as may be required under the Credit Agreement), (iii) from and after
the Effective Date, it shall be bound by the provisions of the Credit Agreement
as a Lender thereunder and, to the extent of the Assigned Interest, shall have
the obligations of a Lender thereunder, (iv) it has received a copy of the
Credit Agreement, together with copies of the most recent financial statements
delivered pursuant to Section 7.6 thereof, as applicable, and such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into this Assignment and Assumption and to
purchase the Assigned Interest on the basis of which it has made such analysis
and decision independently and without reliance on the Administrative Agent
or
any other Lender, and (v) if it is a Foreign Lender, attached to the Assignment
and Assumption is any documentation required to be delivered by it pursuant
to
the terms of the Credit Agreement, duly completed and executed by the Assignee;
and (b) agrees that (i) it will, independently and without reliance on the
Administrative Agent, the Assignor or any other Lender, and based on such
documents and information as it shall deem appropriate at the time, continue
to
make its own credit decisions in taking or not taking action under the Credit
Documents, and (ii) it will perform in accordance with their terms all of the
obligations which by the terms of the Credit Documents are required to be
performed by it as a Lender.
2. Payments.
From
and after the Effective Date, the Administrative Agent shall make all payments
in respect of the Assigned Interest (including payments of principal, interest,
fees and other amounts) to the Assignee whether such amounts have accrued prior
to, on or after the Effective Date. The Assignor and the Assignee shall make
all
appropriate adjustments in
3. General
Provisions.
This
Assignment and Assumption shall be binding upon, and inure to the benefit of,
the parties hereto and their respective successors and assigns. This Assignment
and Assumption may be executed in any number of counterparts, which together
shall constitute one instrument. Delivery of an executed counterpart of a
signature page of this Assignment and Assumption by telecopy shall be effective
as delivery of a manually executed counterpart of this Assignment and
Assumption. This Assignment and Assumption shall be governed by, and construed
in accordance with, the law of the State of New York.
EXHIBIT
D
FORM
OF NOTICE OF
BORROWING
JPMorgan
Chase Bank, N.A., as Administrative Agent
for
the
Lenders parties
to
the Credit Agreement
referred to below
▇▇
▇.
▇▇▇▇▇▇▇▇, ▇▇▇▇▇ 19
Mail
Code
IL1-0010
▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
[Date]
Attention: ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
Email: ▇▇▇▇▇▇▇.▇.▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇
phone: ▇▇▇-▇▇▇-▇▇▇▇
fax: ▇▇▇-▇▇▇-▇▇▇▇
Ladies
and Gentlemen:
The
undersigned, Northern Illinois Gas Company, refers to the Credit Agreement,
dated as of October 26, 2006 (as amended, amended and restated, supplemented
or
otherwise modified from time to time, the “Credit
Agreement”,
the
terms defined therein being used herein as therein defined), among the Borrower,
the Lenders parties thereto, and JPMorgan Chase Bank, N.A., as Administrative
Agent for said Lenders, and hereby gives you notice, irrevocably, pursuant
to
Section 2.4(a) of the Credit Agreement that the undersigned hereby requests
a
Borrowing under the Credit Agreement, and in that connection sets forth below
the information relating to such Borrowing (the “Proposed
Borrowing”)
as
required by Section 2.4(a) of the Credit Agreement:
(i) The
Business Day of the Proposed Borrowing is _______________, 200_.
(ii) The
Proposed Borrowing is [new advance of Loans] [continuation of existing Loans]
[conversion of existing Loans].
(iii) The
type
of Loan comprising the Proposed Borrowing is [Base Rate Loans] [Eurodollar
Loans].
(iv) The
aggregate amount of the Proposed Borrowing is $_______________.
[(v) The
initial Interest Period for each Eurodollar Loans made as part of the Proposed
Borrowing is _____ month[s].]
The
undersigned hereby certifies that the conditions precedent to such Proposed
Borrowing contained in Section 6 have been satisfied.
Very
truly yours,
NORTHERN
ILLINOIS GAS COMPANY
By
Title:
SCHEDULE
1
PRICING
GRID
|
If
the Level Status Is
|
The
Facility Fee Rate is:
|
The
Eurodollar Margin is:
|
The
Base Rate Margin is:
|
The
Utilization Fee Rate is:
|
|
Level
I Status
|
0.035%
|
0.090%
|
0.000%
|
0.050%
|
|
Level
II Status
|
0.040%
|
0.110%
|
0.000%
|
0.050%
|
|
Level
III Status
|
0.050%
|
0.150%
|
0.000%
|
0.050%
|
|
Level
IV Status
|
0.060%
|
0.190%
|
0.000%
|
0.050%
|
|
Level
V Status
|
0.070%
|
0.230%
|
0.000%
|
0.050%
|
|
Level
VI Status
|
0.090%
|
0.360%
|
0.000%
|
0.050%
|
|
Level
VII Status
|
0.100%
|
0.500%
|
0.000%
|
0.050%
|
Each
change in a rating shall be effective as of the date it is announced by the
applicable rating agency.
With
respect to the Borrower, in the event that the ▇▇▇▇▇’▇ Rating and the S&P
Rating fall in consecutive Levels, the rating falling in the higher Level (with
Level I being the highest Level and Level VII being the lowest Level) shall
govern for purposes of determining the applicable pricing pursuant to the above
pricing grid. In the event that the ▇▇▇▇▇’▇ Rating and the S&P Rating fall
in non-consecutive Levels, the Level immediately below the Level in which the
higher rating falls shall govern for purposes of determining the applicable
pricing pursuant to the above pricing grid. If at any time the Borrower has
no
▇▇▇▇▇’▇ Rating or no S&P Rating, the remaining rating shall apply unless the
Borrower has neither a ▇▇▇▇▇’▇ Rating nor a S&P Rating, in which case Level
VII shall apply; provided,
that in
such event the Borrower may propose an alternative rating agency or mechanism
in
replacement thereof, subject to the written consent of the Required Lenders.
SCHEDULE
2
INITIAL
COMMITMENTS
Lender Initial
Commitment
|
ABN
Amro Bank N.V.
|
48,000,000
|
|
JPMorgan
Chase Bank, N.A.
|
48,000,000
|
|
The
Bank of New York
|
40,000,000
|
|
The
Bank of Tokyo-Mitsubishi UFJ, Ltd., Chicago Branch
|
40,000,000
|
|
Wachovia
Bank, N.A.
|
40,000,000
|
|
▇▇▇▇▇
Fargo Bank, National Association
|
35,000,000
|
|
The
Northern Trust Company
|
30,000,000
|
|
SunTrust
Bank
|
30,000,000
|
|
U.S.
Bank National Association
|
30,000,000
|
|
Mizuho
Corporate Bank, Ltd.
|
25,000,000
|
|
Banco
Bilbao Vizcaya Argentaria S.A.
|
20,000,000
|
|
Fifth
Third Bank (Chicago)
|
10,000,000
|
|
Seaway
National Bank of Chicago
|
4,000,000
|
SCHEDULE
4
ADMINISTRATIVE
AGENT’S NOTICE AND PAYMENT INFORMATION
JPMorgan
Chase Bank, N.A.
ABA/Routing
No.: ▇▇▇▇▇▇▇▇▇
Account
Name: Loan Processing DP
Account
No.: 9008109962
Attention:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Part
B -
Notices
JPMorgan
Chase Bank, N.A.
▇▇
▇.
▇▇▇▇▇▇▇▇, ▇▇▇▇▇ 19
Mail
Code
IL1-0010
▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Attn:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Email:
▇▇▇▇▇▇▇.▇.▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇
Fax:
▇▇▇-▇▇▇-▇▇▇▇
SCHEDULE
5.2
MATERIAL
SUBSIDIARIES
|
Description
of Subsidiary's Authorized Capital Stock, if not
wholly
|
|||
|
Subsidiary
Name
|
State
of Origin
|
Ownership
|
owned
|
|
None.
|
|||
SCHEDULE
6.1
Borrower
has entered into a Bond Purchase Agreement dated as of October 20, 2006 for
the
issuance and sale to the purchasers identified therein of $50,000,000 aggregate
principal amount of Borrower's First Mortgage Bonds 5.85% Series Due December
15, 2036. The bonds are to be issued under and in accordance with a supplemental
indenture to the Nicor Gas Indenture to be dated as of December 15, 2006 and
the
proceeds will be used to repay existing indebtedness of Borrower.
SCHEDULE
7.17
RESTRICTIONS
ON DISTRIBUTIONS AND EXISTING NEGATIVE PLEDGES
Refer
to
(i) Nicor Gas Indenture as defined in Section 1, (ii) the 5-Year 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.