<PAGE>
Exhibit 4-1
$275,000,000 REVOLVING CREDIT FACILITY
CREDIT AGREEMENT
BY AND AMONG
NEW JERSEY RESOURCES CORPORATION
AND
THE BANKS PARTY HERETO
AND
PNC BANK, NATIONAL ASSOCIATION,
AS ADMINISTRATIVE AGENT
AND
JPMORGAN CHASE BANK NA AND
FLEET NATIONAL BANK,
AS SYNDICATION AGENTS
AND
BANK OF TOKYO-MITSUBISHI TRUST COMPANY AND
CITICORP NORTH AMERICA, INC.,
AS DOCUMENTATION AGENTS
AND
PNC CAPITAL MARKETS, INC.,
AS LEAD ARRANGER
DATED AS OF DECEMBER 16, 2004
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1.
CERTAIN
DEFINITIONS....................................................................
1
1.1 Certain
Definitions...........................................................
1
1.2
Construction..................................................................
22
1.2.1. Number;
Inclusion..................................................
22
1.2.2.
Determination......................................................
22
1.2.3. Agent's
Discretion and Consent.....................................
22
1.2.4. Documents Taken
as a Whole......................................... 23
1.2.5.
Headings...........................................................
23
1.2.6. Implied
References to this Agreement...............................
23
1.2.7.
Persons............................................................
23
1.2.8. Modifications to
Documents......................................... 23
1.2.9. From, To and
Through............................................... 23
1.2.10.
Shall; Will........................................................
23
1.3 Accounting
Principles.........................................................
23
2.
REVOLVING CREDIT AND SWING LOAN
FACILITIES.............................................
24
2.1
Commitments...................................................................
24
2.1.1. Revolving Credit
Loans............................................. 24
2.1.2. Swing Loan
Commitment..............................................
24
2.2 Nature of
Banks' Obligations with Respect to Revolving Credit
Loans...........
25
2.3 Facility
Fees.................................................................
25
2.4 Revolving
Credit Loan
Requests................................................
25
2.5 Swing Loan
Requests...........................................................
26
2.6 Making
Revolving Credit Loans and Swing
Loans................................. 26
2.6.1. Making Revolving
Credit Loans...................................... 26
2.6.2. Making Swing
Loans................................................. 26
2.7 Swing Loan
Note...............................................................
27
2.8 Use of
Proceeds...............................................................
27
2.9 Letter of
Credit
Subfacility..................................................
27
2.9.1. Issuance of
Letters of Credit......................................
27
2.9.2. Letter of Credit
Fees.............................................. 27
2.9.3. Disbursements,
Reimbursement....................................... 28
2.9.4. Repayment of
Participation Advances................................ 29
2.9.5.
Documentation......................................................
29
2.9.6. Determinations
to Honor Drawing Requests........................... 30
2.9.7. Nature of
Participation and Reimbursement Obligations..............
30
2.9.8.
Indemnity..........................................................
32
2.9.9. Liability for
Acts and Omissions................................... 32
2.10
Borrowings to Repay Swing
Loans............................................... 34
2.11
Right to Increase
Commitments.................................................
34
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3.
INTENTIONALLY
OMITTED.....................................................................
35
4.
INTEREST
RATES............................................................................
35
4.1 Interest
Rate
Options............................................................
35
4.1.1. Revolving Credit
Interest Rate Options................................ 35
4.1.2. Rate
Quotations.......................................................
35
4.1.3. Change in Fees
or Interest Rates......................................
36
4.2 Interest
Periods.................................................................
36
4.2.1. Amount of
Borrowing Tranche...........................................
36
4.2.2.
Renewals..............................................................
36
4.3 Interest
After
Default...........................................................
36
4.3.1. Letter of Credit
Fees, Interest Rate.................................. 37
4.3.2. Other
Obligations.....................................................
37
4.3.3.
Acknowledgment........................................................
37
4.4 Euro-Rate
Unascertainable; Illegality; Increased Costs; Deposits Not
Available .. 37
4.4.1.
Unascertainable.......................................................
37
4.4.2. Illegality;
Increased Costs; Deposits Not Available...................
37
4.4.3. Agent's and
Bank's Rights.............................................
38
4.5 Selection
of Interest Rate
Options............................................... 38
5.
PAYMENTS..................................................................................
39
5.1
Payments.........................................................................
39
5.2 Pro Rata
Treatment of
Banks......................................................
39
5.3 Interest
Payment
Dates...........................................................
39
5.4
Prepayments......................................................................
40
5.4.1. Voluntary
Prepayments.................................................
40
5.4.2. Replacement of a
Bank................................................. 41
5.4.3. Change of
Lending Office..............................................
41
5.5 Voluntary
Commitment
Reductions..................................................
42
5.6 Additional
Compensation in Certain
Circumstances................................. 42
5.6.1. Increased Costs
or Reduced Return Resulting From Taxes, Reserves,
Capital Adequacy Requirements, Expenses,
Etc.......................... 42
5.6.2.
Indemnity.............................................................
43
5.7 Interbank
Market
Presumption.....................................................
44
5.8
Taxes............................................................................
44
5.8.1. No
Deductions.........................................................
44
5.8.2. Stamp
Taxes...........................................................
44
5.8.3. Indemnification
for Taxes Paid by a Bank.............................. 44
5.8.4.
Certificate...........................................................
45
5.8.5.
Survival..............................................................
45
5.9
Notes............................................................................
45
5.10
Settlement Date
Procedures.......................................................
45
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6.
REPRESENTATIONS AND
WARRANTIES..............................................................
46
6.1
Representations and
Warranties.....................................................
46
6.1.1. Organization and
Qualification..........................................
46
6.1.2.
Subsidiaries............................................................
46
6.1.3. Power and
Authority.....................................................
46
6.1.4. Validity and
Binding Effect.............................................
47
6.1.5. No
Conflict.............................................................
47
6.1.6.
Litigation..............................................................
47
6.1.7. Title to
Properties.....................................................
47
6.1.8. Financial
Statements....................................................
48
6.1.9. Use of Proceeds;
Margin Stock; Section 20 Subsidiaries..................
48
6.1.10.
Full
Disclosure.........................................................
49
6.1.11.
Taxes...................................................................
49
6.1.12.
Consents and
Approvals..................................................
49
6.1.13. No
Event of Default; Compliance With
Instruments........................ 50
6.1.14.
Patents, Trademarks, Copyrights, Licenses,
Etc.......................... 50
6.1.15.
Insurance...............................................................
50
6.1.16.
Compliance With
Laws....................................................
50
6.1.17.
Material Contracts; Burdensome
Restrictions............................. 50
6.1.18.
Investment Companies; Regulated
Entities................................ 51
6.1.19.
Plans and Benefit
Arrangements.......................................... 51
6.1.20.
Employment
Matters......................................................
52
6.1.21.
Environmental
Matters...................................................
52
6.1.22.
Senior Debt
Status......................................................
53
6.1.23.
Hedging Contract
Policies...............................................
53
6.1.24.
Permitted Related Business
Opportunities................................ 53
6.1.25.
Anti-Terrorism Laws; Executive Order No.
13224.......................... 53
6.2
Continuation of
Representations....................................................
54
7.
CONDITIONS OF LENDING AND ISSUANCE OF LETTERS OF
CREDIT..................................... 54
7.1 Conditions
to First Loans and Letters of
Credit.................................... 54
7.1.1. Officer's
Certificate...................................................
54
7.1.2. Secretary's
Certificate.................................................
55
7.1.3. Opinion of
Counsel......................................................
55
7.1.4. Legal
Details...........................................................
55
7.1.5. Payment of
Fees.........................................................
56
7.1.6.
Consents................................................................
56
7.1.7. Officer's
Certificate Regarding MACs....................................
56
7.1.8. No Violation of
Laws....................................................
56
7.1.9. No Actions or
Proceedings...............................................
56
7.1.10.
Delivery of Guaranty
Agreements......................................... 56
7.1.11.
Hedging Contract
Policies...............................................
56
7.1.12.
Termination of Commitments and Repayment of Outstanding
Indebtedness ...
57
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7.2
Each Additional Loan or Letter of
Credit.................................. 57
8.
COVENANTS............................................................................
57
8.1
Affirmative
Covenants.....................................................
57
8.1.1. Preservation of
Existence, Etc. ............................... 57
8.1.2. Payment of
Liabilities, Including Taxes, Etc. ................. 58
8.1.3. Maintenance of
Insurance....................................... 58
8.1.4. Maintenance of
Properties and Leases........................... 58
8.1.5. Maintenance of
Patents, Trademarks, Etc. ...................... 58
8.1.6. Visitation
Rights.............................................. 58
8.1.7. Keeping of
Records and Books of Account........................ 59
8.1.8. Plans and
Benefit Arrangements................................. 59
8.1.9. Compliance With
Laws........................................... 59
8.1.10.
Use of Proceeds................................................
60
8.1.11.
Hedging Contract Policies......................................
60
8.2
Negative
Covenants........................................................
60
8.2.1.
Indebtedness...................................................
60
8.2.2.
Liens..........................................................
62
8.2.3.
Guaranties.....................................................
63
8.2.4. Loans and
Investments.......................................... 64
8.2.5. Liquidations,
Mergers, Consolidations, Acquisitions............ 64
8.2.6. Dispositions of
Assets or Subsidiaries......................... 65
8.2.7. Affiliate
Transactions......................................... 66
8.2.8. Subsidiaries,
Partnerships and Joint Ventures.................. 66
8.2.9. Continuation of
or Change in Business.......................... 67
8.2.10.
Plans and Benefit Arrangements.................................
67
8.2.11.
Fiscal Year....................................................
67
8.2.12.
Maximum Leverage Ratio.........................................
67
8.2.13.
Minimum Interest Coverage Ratio................................
68
8.2.14. No
Limitation on Dividends and Distributions by Subsidiaries...
68
8.2.15.
Payment of Dividends; Redemptions..............................
68
8.2.16. No
Modification of Hedging Contract Policies...................
68
8.2.17.
Off-Balance Sheet Financing....................................
68
8.2.18.
Amendments to NJR Note Agreement and NJNG Note Agreement.......
69
8.2.19. No
Violation of Anti-Terrorism Laws............................
70
8.3
Reporting
Requirements....................................................
70
8.3.1. Quarterly
Financial Statements................................. 70
8.3.2. Annual Financial
Statements.................................... 71
8.3.3. Certificate of
the Borrower.................................... 71
8.3.4. Notice of
Default.............................................. 71
8.3.5. Notice of
Litigation........................................... 72
8.3.6. Notice of Change
in Debt Rating................................ 72
8.3.7. Sale of
Assets.................................................
72
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8.3.8. Budgets,
Forecasts, Other Reports and Information.............. 72
8.3.9. Notices
Regarding Plans and Benefit Arrangements...............
73
9.
DEFAULT..............................................................................
74
9.1
Events of
Default.........................................................
74
9.1.1. Payments Under
Loan Documents.................................. 74
9.1.2. Breach of
Warranty............................................. 75
9.1.3. Breach of
Negative Covenants or Visitation Rights.............. 75
9.1.4. Breach of Other
Covenants...................................... 75
9.1.5. Defaults in
Other Agreements or Indebtedness................... 75
9.1.6. Final Judgments
or Orders...................................... 76
9.1.7. Loan Document
Unenforceable.................................... 76
9.1.8. Uninsured
Losses; Proceedings Against Assets................... 76
9.1.9. Notice of Lien
or Assessment................................... 76
9.1.10.
Insolvency.....................................................
77
9.1.11.
Events Relating to Plans and Benefit Arrangements..............
77
9.1.12.
Cessation of Business..........................................
77
9.1.13.
Change of Control..............................................
78
9.1.14.
Involuntary Proceedings........................................
78
9.1.15.
Voluntary Proceedings..........................................
78
9.2
Consequences of Event of
Default.......................................... 79
9.2.1. Events of
Default Other Than Bankruptcy, Insolvency
or Reorganization Proceedings..................................
79
9.2.2. Bankruptcy,
Insolvency or Reorganization Proceedings........... 79
9.2.3.
Set-off........................................................
79
9.2.4. Suits, Actions,
Proceedings.................................... 80
9.2.5. Application of
Proceeds; Collateral Sharing.................... 80
9.2.6. Other Rights and
Remedies...................................... 81
10. THE
AGENT............................................................................
81
10.1
Appointment...............................................................
81
10.2
Delegation of
Duties......................................................
81
10.3
Nature of Duties; Independent Credit
Investigation........................ 82
10.4
Actions in Discretion of Agent; Instructions From the
Banks...............
82
10.5
Reimbursement and Indemnification of Agent by the
Borrower................ 83
10.6
Exculpatory Provisions; Limitation of
Liability........................... 83
10.7
Reimbursement and Indemnification of Agent by
Banks....................... 84
10.8
Reliance by
Agent.........................................................
85
10.9
Notice of
Default.........................................................
85
10.10
Notices...................................................................
85
10.11 Banks in
Their Individual Capacities; Agents in Its Individual Capacity...
85
10.12 Holders of
Notes..........................................................
86
10.13
Equalization of
Banks.....................................................
86
10.14 Successor
Agent...........................................................
86
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10.15
Agent's
Fee.................................................................
87
10.16
Availability of
Funds.......................................................
87
10.17
Calculations................................................................
87
10.18
Beneficiaries...............................................................
88
10.19 No
Reliance on Agent's Customer Identification
Program...................... 88
11.
MISCELLANEOUS........................................................................
88
11.1
Modifications, Amendments or
Waivers........................................ 88
11.1.1.
Increase of Revolving Credit Commitments; Extension of
Expiration Date..................................................
88
11.1.2.
Release of Collateral or Guarantor...............................
89
11.1.3.
Miscellaneous....................................................
89
11.2
No Implied Waivers; Cumulative Remedies; Writing
Required................... 89
11.3
Reimbursement and Indemnification of Banks by the Borrower;
Taxes...........
90
11.4
Holidays....................................................................
91
11.5
Funding by Branch, Subsidiary or
Affiliate.................................. 91
11.5.1.
Notional Funding.................................................
91
11.5.2.
Actual Funding...................................................
91
11.6
Notices; Lending
Offices....................................................
92
11.7
Severability................................................................
93
11.8
Governing
Law...............................................................
93
11.9
Prior
Understanding.........................................................
93
11.10
Duration;
Survival..........................................................
93
11.11
Successors and Assigns; Joinder of a
Bank................................... 94
11.12
Confidentiality.............................................................
96
11.12.1.
General..........................................................
96
11.12.2. Sharing
Information With Affiliates of the Banks.................
96
11.13
Counterparts................................................................
96
11.14
Agent's or Bank's
Consent...................................................
97
11.15
Exceptions..................................................................
97
11.16
WAIVER OF JURY
TRIAL........................................................
97
11.17
JURISDICTION &
VENUE........................................................
97
11.18
Certifications From Banks and
Participants.................................. 98
11.18.1. Tax
Withholding..................................................
98
11.18.2. USA
Patriot Act..................................................
99
11.19
Joinder of
Guarantors.......................................................
99
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LIST OF SCHEDULES AND EXHIBITS
SCHEDULES
SCHEDULE 1.1(A)
- PRICING
GRID
SCHEDULE 1.1(B)
-
COMMITMENTS OF BANKS AND ADDRESSES
FOR NOTICES
SCHEDULE 1.1(P)
- PERMITTED
LIENS
SCHEDULE 2.9.1
- EXISTING
LETTERS OF CREDIT
SCHEDULE 6.1.2
-
SUBSIDIARIES
SCHEDULE 6.1.12
- CONSENTS
AND APPROVALS
SCHEDULE 6.1.23
- HEDGING
CONTRACT POLICIES
SCHEDULE 6.1.24
- PERMITTED
BUSINESS OPPORTUNITIES
SCHEDULE 8.2.1
- EXISTING
INDEBTEDNESS
EXHIBITS
EXHIBIT 1.1(A)
- ASSIGNMENT
AND ASSUMPTION AGREEMENT
EXHIBIT 1.1(B)
- BANK
JOINDER
EXHIBIT 1.1(G)(1) -
GUARANTOR
JOINDER
EXHIBIT 1.1(G)(2) -
GUARANTY
AGREEMENT
EXHIBIT 1.1(R)
- REVOLVING
CREDIT NOTE
EXHIBIT 1.1(S)
- SWING LOAN
NOTE
EXHIBIT 2.4
- LOAN
REQUEST
EXHIBIT 2.5
- SWING LOAN
REQUEST
EXHIBIT 5.5
- COMMITMENT
REDUCTION NOTICE
EXHIBIT 7.1.3(A)
- OPINION OF
COUNSEL
EXHIBIT 7.1.3(B)
- OPINION OF
IN-HOUSE COUNSEL
EXHIBIT 8.2.5
-
ACQUISITION COMPLIANCE CERTIFICATE
EXHIBIT 8.3.3
- COMPLIANCE
CERTIFICATE
<PAGE>
CREDIT AGREEMENT
THIS
CREDIT AGREEMENT is dated as of December 16, 2004 and is made by
and
among NEW JERSEY RESOURCES CORPORATION, a New Jersey corporation
(the
"Borrower"), EACH OF THE GUARANTORS (as hereinafter defined), the
BANKS (as
hereinafter defined), JPMORGAN CHASE BANK NA and FLEET NATIONAL
BANK, each in
its capacity as a syndication agent, BANK OF TOKYO-MITSUBISHI TRUST
COMPANY and
CITICORP NORTH AMERICA, INC., each in its capacity as a
documentation agent, and
PNC BANK, NATIONAL ASSOCIATION, in its capacity as administrative
agent for the
Banks under this Agreement (hereinafter referred to in such
capacity as the
"Agent").
WITNESSETH:
WHEREAS,
the Borrower has requested the Banks to provide a revolving
credit facility to the Borrower in an aggregate principal amount
not to exceed
$275,000,000; and
WHEREAS,
the revolving credit facility shall be used for refinancing
existing indebtedness and general corporate purposes of the
Borrower; and
WHEREAS,
the Banks are willing to provide such credit upon the terms and
conditions hereinafter set forth;
NOW,
THEREFORE, the parties hereto, in consideration of their mutual
covenants and agreements hereinafter set forth and intending to be
legally bound
hereby, covenant and agree as follows:
1. CERTAIN DEFINITIONS
1.1 Certain
Definitions.
In addition to words and terms defined elsewhere in this
Agreement,
the following words and terms shall have the following meanings,
respectively,
unless the context hereof clearly requires otherwise:
Acquired Person shall mean a Person or business acquired by
any Loan Party in a transaction which is a Permitted
Acquisition.
Acquisition Compliance Certificate shall have the meaning
assigned to that term in Section 8.2.5.
Additional Bank shall have the meaning assigned to that term
in Section 11.11(iv).
<PAGE>
Affiliate as to any Person shall mean any other Person (i)
which
directly or indirectly controls, is controlled by, or is under
common control
with such Person, (ii) which beneficially owns or holds 10% or more
of any class
of the voting or other equity interests of such Person, or (iii)
10% or more of
any class of voting interests or other equity interests of which is
beneficially
owned or held, directly or indirectly, by such Person. Control, as
used in this
definition, shall mean the possession, directly or indirectly, of
the power to
direct or cause the direction of the management or policies of a
Person, whether
through the ownership of voting securities, by contract or
otherwise, including
the power to elect a majority of the directors or trustees of a
corporation or
trust, as the case may be.
Agent shall mean PNC Bank, National Association, and its
successors
and assigns.
Agent's Fee shall have the meaning assigned to that term in
Section
10.15.
Agent's Letter shall have the meaning assigned to that term in
Section 10.15.
Agreement shall mean this Credit Agreement, as the same may be
supplemented or amended from time to time, including all schedules
and exhibits.
Anti-Terrorism Laws shall mean any Laws relating to terrorism
or
money laundering, including Executive Order No. 13224, the USA
Patriot Act, the
Laws comprising or implementing the Bank Secrecy Act, and the Laws
administered
by the United States Treasury Department's Office of Foreign Asset
Control (as
any of the foregoing Laws may from time to time be amended,
renewed, extended,
or replaced).
Applicable Facility Fee Rate shall mean the percentage rate per
annum at the indicated level of Debt Rating in the pricing grid on
Schedule
1.1(A) below the heading "Facility Fee." The Applicable Facility
Fee Rate shall
be computed in accordance with the parameters set forth on Schedule
1.1(A).
Applicable Letter of Credit Fee Rate shall mean the percentage
rate
per annum at the indicated level of Debt Rating in the pricing grid
on Schedule
1.1(A) below the heading "Letter of Credit Fee." The Applicable
Letter of Credit
Fee Rate shall be computed in accordance with the parameters set
forth on
Schedule 1.1(A).
Applicable Margin shall mean, as applicable:
(A) the
percentage spread to be added to Base Rate under the Base
Rate Option at the indicated level of Debt Rating in the pricing
grid on
Schedule 1.1(A) below the heading "Base Rate Spread" or
(B) the
percentage spread to be added to Euro-Rate under the
Euro-Rate Option at the indicated level of Debt Rating in the
pricing grid on
Schedule 1.1(A) below the heading "Euro-Rate Spread."
2
<PAGE>
The Applicable Margin shall be computed in accordance with the
parameters set forth
on Schedule 1.1(A).
Approved Fund shall mean, with respect to any Bank, any Person
(other than a natural person) that is engaged in making,
purchasing, holding or
investing in bank loans and similar extensions of credit in the
ordinary course
of its business and that is administered by such Bank, an Affiliate
of such Bank
or an entity or an Affiliate of an entity that administers or
manages such Bank.
Assignment and Assumption Agreement shall mean an Assignment
and
Assumption Agreement by and among a Purchasing Bank, a Transferor
Bank and the
Agent, as Agent and on behalf of the remaining Banks, substantially
in the form
of Exhibit 1.1(A).
Authorized Officer shall mean those individuals, designated by
written notice to the Agent from the Borrower, authorized to
execute notices,
reports and other documents on behalf of the Loan Parties required
hereunder.
The Borrower may amend such list of individuals from time to time
by giving
written notice of such amendment to the Agent.
Bank Joinder shall mean a Bank Joinder substantially in the form
of
Exhibit 1.1(B).
Bank Provided Interest Rate Hedge shall mean an Interest Rate
Hedge
which is provided by any Bank and that meets the following
requirements: such
Interest Rate Hedge (i) is documented in a standard International
Swap Dealer
Association Agreement, (ii) provides for the method of calculating
the
reimbursable amount of the provider's credit exposure in a
reasonable and
customary manner, and (iii) is entered into for hedging (rather
than
speculative) purposes. The liabilities of the Loan Parties to the
provider of
any Bank-Provided Interest Rate Hedge shall be "Obligations"
hereunder,
guaranteed obligations under the Guaranty Agreement and otherwise
treated as
Obligations for purposes of each of the other Loan Documents.
Banks shall mean the financial institutions named on Schedule
1.1(B)
and their respective successors and assigns as permitted hereunder,
each of
which is referred to herein as a Bank.
Base Rate shall mean the greater of (i) the interest rate per
annum
announced from time to time by the Agent at its Principal Office as
its then
prime rate, which rate may not be the lowest rate then being
charged commercial
borrowers by the Agent, or (ii) the Federal Funds Open Rate plus
1/2% per annum.
Base Rate Option shall mean the option of the Borrower to have
Revolving Credit Loans bear interest at the rate and under the
terms and
conditions set forth in Section 4.1.1(i).
Benefit Arrangement shall mean at any time an "employee benefit
plan" within the meaning of Section 3(3) of ERISA, which is neither
a Plan nor a
Multiemployer Plan
3
<PAGE>
and which is maintained, sponsored or otherwise contributed to by
any member of
the ERISA Group.
Blocked Person shall have the meaning assigned to such term in
Subsection 6.1.25.
Borrower shall mean New Jersey Resources Corporation, a
corporation
organized and existing under the laws of the State of New
Jersey.
Borrowing Date shall mean, with respect to any Loan, the date
for
the making thereof or the renewal or conversion thereof at or to
the same or a
different Interest Rate Option, which shall be a Business Day.
Borrowing Tranche shall mean specified portions of Loans
outstanding
as follows: (i) any Loans to which a Euro-Rate Option applies which
become
subject to the same Interest Rate Option under the same Loan
Request by the
Borrower and which have the same Interest Period shall constitute
one Borrowing
Tranche, and (ii) all Loans to which a Base Rate Option applies
shall constitute
one Borrowing Tranche.
Business Day shall mean any day other than a Saturday or Sunday or
a
legal holiday on which commercial banks are authorized or required
to be closed
for business in Pittsburgh, Pennsylvania and if the applicable
Business Day
relates to any Loan to which the Euro-Rate Option applies, such day
must also be
a day on which dealings are carried on in the London interbank
market.
Closing Date shall mean the Business Day on which the first
Loan
shall be made, which shall be December 16, 2004. The closing shall
take place on
the Closing Date at such time and place as the parties agree.
Commercial Letter of Credit shall mean any letter of credit which
is
issued in respect of the purchase of goods or services by one or
more of the
Loan Parties in the ordinary course of their business.
Commitment shall mean, as to any Bank, its Revolving Credit
Commitment and, in the case of the Agent, its Swing Loan
Commitment, and
Commitments shall mean the aggregate of the Revolving Credit
Commitments and
Swing Loan Commitment of all of the Banks.
Compliance Certificate shall have the meaning assigned to such
term
in Section 8.3.3.
Consideration shall mean with respect to any Permitted
Acquisition,
the aggregate of (i) the cash paid by any of the Loan Parties,
directly or
indirectly, to the seller in connection therewith, (ii) the
Indebtedness
incurred or assumed by any of the Loan Parties, whether in favor of
the seller
or otherwise and whether fixed or contingent, (iii) any Guaranty
given or
incurred by any Loan Party in connection therewith, and (iv) any
other
consideration given or obligation incurred by any of the Loan
Parties in
connection therewith.
4
<PAGE>
Consolidated Income from Operations for any period of
determination
shall mean (i) the sum of net income (provided that there shall be
excluded from
net income: (a) any extraordinary items of gain or loss (including,
without
limitation, those items created by mandated changes in accounting
treatment),
and (b) any gain or loss of any Person accounted for on the equity
method except
to the extent of cash distributions received by the Borrower or any
Subsidiary
of the Borrower during the period of determination with respect to
any gain of
any Person accounted for on the equity method), depreciation,
amortization,
other non-cash charges to net income, interest expense and income
tax expense
minus (ii) non-cash credits to net income, in each case of the
Borrower and its
Subsidiaries for such period determined and consolidated in
accordance with
GAAP.
Consolidated Interest Expense for any period of determination
shall
mean interest expense for such period of the Borrower and its
Subsidiaries
determined on a consolidated basis in accordance with GAAP.
Consolidated Shareholders' Equity shall mean as of any date of
determination the sum of the amounts under the headings "Common
Shareholders'
Equity" and "Preferred Shareholders' Equity" on the balance sheet,
prepared in
accordance with GAAP, for the Borrower and its Subsidiaries on a
consolidated
basis as of such date of determination.
Consolidated Total Capitalization shall mean as of any date of
determination the sum of (i) Consolidated Total Indebtedness, plus
(ii)
Consolidated Shareholders' Equity.
Consolidated Total Indebtedness shall mean as of any date of
determination total Indebtedness, without duplication, of the
Borrower and its
Subsidiaries.
Contamination shall mean the presence or release or threat of
release of Regulated Substances in, on, under or emanating to or
from the
Property, which pursuant to Environmental Laws requires
notification or
reporting to an Official Body, or which pursuant to Environmental
Laws requires
the performance of a Remedial Action or which otherwise constitutes
a violation
of Environmental Laws.
Debt Rating shall mean the rating of New Jersey Natural Gas's
senior
secured long-term debt by each of Standard & Poor's and
Moody's.
Dollar, Dollars, U.S. Dollars and the symbol $ shall mean
lawful
money of the United States of America.
Drawing Date shall have the meaning assigned to that term in
Section
2.9.3.2.
Environmental Complaint shall mean any (i) notice of
non-compliance
or violation, citation or order relating in any way to any
Environmental Law,
Environmental Permit, Contamination or Regulated Substance; (ii)
civil,
criminal, administrative or regulatory investigation instituted by
an Official
Body relating in any way to any Environmental Law, Environmental
Permit,
Contamination or Regulated Substance; (iii) administrative,
regulatory or
5
<PAGE>
judicial action, suit, claim or proceeding instituted by any Person
or Official
Body or any other written notice of liability or potential
liability from any
Person or Official Body, in either instance, relating to or setting
forth
allegations or a cause of action for personal injury (including but
not limited
to death), property damage, natural resource damage, contribution
or indemnity
for the costs associated with the performance of Remedial Actions,
direct
recovery for the costs associated with the performance of Remedial
Actions,
liens or encumbrances attached to or recorded or levied against
property for the
costs associated with the performance of Remedial Actions, civil
or
administrative penalties, criminal fines or penalties or
declaratory or
equitable relief arising under any Environmental Laws; or (iv)
subpoena, request
for information or other written notice or demand of any type
issued by an
Official Body pursuant to any Environmental Laws.
Environmental Laws shall mean all federal, state, local and
foreign
Laws (including, but not limited to, the Comprehensive
Environmental Response,
Compensation and Liability Act, 42 U.S.C. Sections 9601 et seq.,
the Resource
Conservation and Recovery Act, 42 U.S.C. Section 6901 et seq., the
Hazardous
Materials Transportation Act, 49 U.S.C. Section 1801 et seq., the
Toxic
Substances Control Act, 15 U.S.C. Section 2601 et seq., the Federal
Water
Pollution Control Act, 33 U.S.C. Sections 1251 et seq., the Federal
Safe
Drinking Water Act, 42 U.S.C. Sections 300f-300j, the Federal Air
Pollution
Control Act, 42 U.S.C. Section 7401 et seq., the Oil Pollution Act,
33 U.S.C.
Section 2701 et seq., the Federal Insecticide, Fungicide and
Rodenticide Act, 7
U.S.C. Sections 136 to 136y, the Occupational Safety and Health
Act, 29 U.S.C.
Section 651 et seq., each as amended, and any regulations
promulgated or any
equivalent state or local Law, and any amendments thereto) and any
consent
decrees, consent orders, consent agreements, settlement agreements,
judgments,
orders, directives, policies or programs issued by or entered into
with an
Official Body pertaining or relating to: (i) pollution or pollution
control;
(ii) protection of human health from exposure to Regulated
Substances; (iii)
protection of the environment and/or natural resources; (iv)
protection of
employee safety in the workplace and protection of employees from
exposure to
Regulated Substances in the workplace (but excluding workers
compensation and
wage and hour Laws); (v) the presence, use, management, generation,
manufacture,
processing, extraction, treatment, recycling, refining,
reclamation, labeling,
sale, transport, storage, collection, distribution, disposal or
release or
threat of release of Regulated Substances; (vi) the presence of
Contamination;
(vii) the protection of endangered or threatened species; and
(viii) the
protection of Environmentally Sensitive Areas.
Environmental Permits shall mean all permits, licenses, bonds
or
other forms of financial assurances, consents, registrations,
identification
numbers, approvals or authorizations required under Environmental
Laws (i) to
own, occupy or maintain the Property; (ii) for the operations and
business
activities of any Loan Party; or (iii) for the performance of a
Remedial Action.
Environmental Records shall mean all notices, reports, records,
plans, applications, forms or other filings relating or pertaining
to the
Property, Contamination, the performance of a Remedial Action and
the operations
and business activities of any Loan Party which pursuant to
Environmental Laws,
Environmental Permits or at the request or direction of an Official
Body either
must be submitted to an Official Body or which otherwise must be
maintained.
6
<PAGE>
Environmentally Sensitive Area shall mean (i) any wetland as
defined
by applicable Environmental Laws; (ii) any area designated as a
coastal zone
pursuant to applicable Laws, including Environmental Laws; (iii)
any area of
historic or archeological significance or scenic area as defined or
designated
by applicable Laws, including Environmental Laws; (iv) habitats of
endangered
species or threatened species as designated by applicable Laws,
including
Environmental Laws; or (v) a floodplain or other flood hazard area
as defined
pursuant to any applicable Laws.
ERISA shall mean the Employee Retirement Income Security Act of
1974, as the same may be amended or supplemented from time to time,
and any
successor statute of similar import, and the rules and regulations
thereunder,
as from time to time in effect.
ERISA Group shall mean, at any time, the Borrower and all members
of
a controlled group of corporations and all trades or businesses
(whether or not
incorporated) under common control and all other entities which,
together with
the Borrower, are treated as a single employer under Section 414 of
the Internal
Revenue Code.
Euro-Rate shall mean, with respect to the Loans comprising any
Borrowing Tranche to which the Euro-Rate Option applies for any
Interest Period,
the interest rate per annum determined by the Agent by dividing
(the resulting
quotient rounded upwards, if necessary to the nearest 1/100th of 1%
per annum)
(i) the rate of interest determined by the Agent in accordance with
its usual
procedures (which determination shall be conclusive, absent
manifest error) to
be the average of the London interbank offered rates for U.S.
Dollars quoted by
the British Bankers' Association as set forth on Moneyline Telerate
(or
appropriate successor or, if the British Bankers' Association or
its successor
ceases to provide such quotes, a comparable replacement determined
by the Agent)
display page 3750 (or such other display page on the Moneyline
Telerate service
as may replace display page 3750), two (2) Business Days prior to
the first day
of such Interest Period for an amount comparable to such Borrowing
Tranche and
having a Borrowing Date and a maturity comparable to such Interest
Period by
(ii) a number equal to 1.00 minus the Euro-Rate Reserve Percentage.
The
Euro-Rate may also be expressed by the following formula:
Average of London interbank offered rates quoted
by BBA or appropriate successor as shown on
Euro-Rate = Moneyline Telerate
Service display page 3750
--------------------------------------------
1.00 - Euro-Rate Reserve Percentage
The Euro-Rate shall be adjusted with respect to any Loan to which
the Euro-Rate
Option applies that is outstanding on the effective date of any
change in the
Euro-Rate Reserve Percentage as of such effective date. The Agent
shall give
prompt notice to the Borrower of the Euro-Rate as determined or
adjusted in
accordance herewith, which determination shall be conclusive absent
manifest
error.
Euro-Rate Option shall mean the option of the Borrower to have
Revolving Credit Loans bear interest at the rate and under the
terms and
conditions set forth in Section 4.1.1(ii).
7
<PAGE>
Euro-Rate Reserve Percentage shall mean as of any day the
maximum
percentage in effect on such day as prescribed by the Board of
Governors of the
Federal Reserve System (or any successor) for determining the
reserve
requirements (including supplemental, marginal and emergency
reserve
requirements) with respect to eurocurrency funding (currently
referred to as
"Eurocurrency Liabilities").
Event of Default shall mean any of the events described in
Section
9.1 and referred to therein as an "Event of Default."
Executive Order No. 13224 shall mean the Executive Order No.
13224
on Terrorist Financing, effective September 24, 2001, as the same
has been, or
shall hereafter be, renewed, extended, amended or replaced.
Existing Credit Facility shall mean that certain Amended and
Restated Credit Agreement among the Borrower, the guarantors party
thereto, the
banks party thereto, Fleet National Bank and SunTrust Bank, each in
its capacity
as a syndication agent, Bank of Tokyo-Mitsubishi Trust Company and
JPMorgan
Chase Bank NA, previously known as JPMorgan Chase Bank, each in its
capacity as
a documentation agent, Bank One, NA, Citizens Bank of Massachusetts
and The Bank
of New York, each in its capacity as a co-agent, and PNC Bank,
National
Association, in its capacity as administrative agent for the Banks,
dated
December 19, 2003 (as amended by that certain First Amendment,
dated March 24,
2004 and that certain Second Amendment, dated July 12, 2004).
Existing Letters of Credit shall have the meaning given to such
term
in Section 2.9.1.
Expiration Date shall mean December 16, 2007.
Facility Fees collectively and Facility Fee separately shall
have
the meaning given to such terms in Section 2.3.
Federal Funds Open Rate for any day shall mean the rate per
annum
(based on a year of 360 days and actual days elapsed) determined by
the Agent in
accordance with its usual procedures (which determination shall be
conclusive
absent manifest error) to be the "Open" rate for federal funds
transactions as
of the opening of business for federal funds transactions among
members of the
Federal Reserve System arranged by federal funds brokers on such
day, as quoted
by Garvin Guybutler, any successor entity thereto, or any other
broker selected
by the Agent, as set forth on the applicable Telerate display page;
provided,
however, that if such day is not a Business Day, the Federal Funds
Open Rate for
such day shall be the "Open" rate on the immediately preceding
Business Day, or
if no such rate shall be quoted by a federal funds broker at such
time, such
other rate as determined by the Agent in accordance with its usual
procedures.
GAAP shall mean generally accepted accounting principles as are
in
effect in the United States from time to time, subject to the
provisions of
Section 1.3, and applied on a consistent basis both as to
classification of
items and amounts.
8
<PAGE>
Governmental Acts shall have the meaning assigned to that term
in
Section 2.9.8.
Guarantor shall mean each of the parties to this Agreement which
is
designated as a "Guarantor" on the signature page hereof and each
other Person
which joins this Agreement as a Guarantor after the date hereof
pursuant to
Section 11.19.
Guarantor Joinder shall mean a joinder by a Person as a
Guarantor
under this Agreement, the Guaranty Agreement and the other Loan
Documents in the
form of Exhibit 1.1(G)(1).
Guaranty of any Person shall mean any obligation of such Person
guaranteeing or in effect guaranteeing any liability or obligation
of any other
Person in any manner, whether directly or indirectly, including any
agreement to
indemnify or hold harmless any other Person, any performance bond
or other
suretyship arrangement and any other form of assurance against
loss, except
endorsement of negotiable or other instruments for deposit or
collection in the
ordinary course of business.
Guaranty Agreement shall mean the Guaranty and Suretyship
Agreement
in substantially the form of Exhibit 1.1(G)(2) executed and
delivered by each of
the Guarantors to the Agent for the benefit of the Banks.
Hedging Contract Policies shall mean the written internal
policies
and procedures with respect to hedging or trading of gas contracts
or other
commodity, hedging contracts of any kind, or any derivatives or
other similar
financial instruments of the Borrower and its Subsidiaries, as in
effect on the
date of this Agreement and as hereafter amended in accordance with
Section
8.2.16, a copy of which has been delivered to the Agent and each
Bank.
Hedging Transaction shall mean any transaction entered into by
a
Loan Party or any of its Subsidiaries in accordance with the
Hedging Contract
Policies.
Historical Statements shall have the meaning assigned to that
term
in Section 6.1.8(i).
Hybrid Security shall mean any of the following: (i) beneficial
interests issued by a trust which constitutes a Subsidiary of any
Loan Party,
substantially all of the assets of which trust are unsecured
Indebtedness of any
Loan Party or any Subsidiary of any Loan Party or proceeds thereof,
and all
payments of which Indebtedness are required to be, and are,
distributed to the
holders of beneficial interests in such trust promptly after
receipt by such
trust, or (ii) any shares of capital stock or other equity interest
that, other
than solely at the option of the issuer thereof, by their terms (or
by the terms
of any security into which they are convertible or exchangeable)
are, or upon
the happening of an event or the passage of time would be, required
to be
redeemed or repurchased, in whole or in part, or have, or upon the
happening of
an event or the passage of time would have, a redemption or similar
payment.
9
<PAGE>
Inactive Subsidiary shall mean, at any time, any Subsidiary of
any
Person, which Subsidiary (i) does not conduct any business or have
operations,
and (ii) does not have total assets with a net book value, as of
any date of
determination, in excess of $100,000.
Indebtedness shall mean, as to any Person at any time, any and
all
indebtedness, obligations or liabilities (whether matured or
unmatured,
liquidated or unliquidated, direct or indirect, absolute or
contingent, or joint
or several) of such Person for or in respect of: (i) borrowed
money, (ii)
amounts raised under or liabilities in respect of any note purchase
or
acceptance credit facility, (iii) reimbursement obligations
(contingent or
otherwise) under any letter of credit, currency swap agreement,
interest rate
swap, cap, collar or floor agreement or other interest rate or
currency exchange
rate management device, (iv) any other transaction (including
forward sale or
purchase agreements, capitalized leases and conditional sales
agreements) having
the commercial effect of a borrowing of money entered into by such
Person to
finance its operations or capital requirements (but not including
trade payables
and accrued expenses incurred in the ordinary course of business
which are not
represented by a promissory note or other evidence of indebtedness
and which are
not more than thirty (30) days past due), (v) any Hedging
Transaction, to the
extent that any indebtedness, obligations or liabilities of such
Person in
respect thereof constitutes "indebtedness" as determined in
accordance with
GAAP, (vi) any Guaranty of any Hedging Transaction described in the
immediately
preceding clause (v), (vii) any Guaranty of Indebtedness for
borrowed money,
(viii) any Hybrid Security described in clause (i) of the
definition of Hybrid
Security, or (ix) the mandatory repayment obligation of the issuer
of any Hybrid
Security described in clause (ii) of the definition of Hybrid
Security.
Ineligible Security shall mean any security which may not be
underwritten or dealt in by member banks of the Federal Reserve
System under
Section 16 of the Banking Act of 1933 (12 U.S.C. Section 24,
Seventh), as
amended.
Insolvency Proceeding shall mean, with respect to any Person, (a)
a
case, action or proceeding with respect to such Person (i) before
any court or
any other Official Body under any bankruptcy, insolvency,
reorganization or
other similar Law now or hereafter in effect, or (ii) for the
appointment of a
receiver, liquidator, assignee, custodian, trustee, sequestrator,
conservator
(or similar official) of such Person or otherwise relating to the
liquidation,
dissolution, winding-up or relief of such Person, or (b) any
general assignment
for the benefit of creditors, composition, marshaling of assets for
creditors,
or other, similar arrangement in respect of such Person's creditors
generally or
any substantial portion of its creditors; undertaken under any
Law.
Interest Period shall mean the period of time selected by the
Borrower in connection with (and to apply to) any election
permitted hereunder
by the Borrower to have Revolving Credit Loans bear interest under
the Euro-Rate
Option. Subject to the last sentence of this definition, such
period shall be
one, two, three or six Months, and solely with approval of the
Agent a shorter
period. Such Interest Period shall commence on the effective date
of such
Interest Rate Option, which shall be (i) the Borrowing Date if the
Borrower is
requesting new Loans, or (ii) the date of renewal of or conversion
to the
Euro-Rate Option if the Borrower is renewing or converting to the
Euro-Rate
Option applicable to outstanding Loans.
10
<PAGE>
Notwithstanding the second sentence hereof: (A) any Interest Period
which would
otherwise end on a date which is not a Business Day shall be
extended to the
next succeeding Business Day unless such Business Day falls in the
next calendar
month, in which case such Interest Period shall end on the next
preceding
Business Day, and (B) the Borrower shall not select, convert to or
renew an
Interest Period for any portion of the Loans that would end after
the Expiration
Date.
IRH Provider shall have the meaning assigned to such term in
Section
9.2.5.2 [Collateral Sharing].
Interest Rate Hedge shall mean an interest rate exchange,
collar,
cap, swap, adjustable strike cap, adjustable strike corridor or
similar
agreements entered into by the Loan Parties or their Subsidiaries
in order to
provide protection to, or minimize the impact upon, the Borrower,
any other Loan
Party and/or their Subsidiaries of increasing floating rates of
interest
applicable to Indebtedness.
Interest Rate Option shall mean any Euro-Rate Option or Base
Rate
Option.
Internal Revenue Code shall mean the Internal Revenue Code of
1986,
as the same may be amended or supplemented from time to time, and
any successor
statute of similar import, and the rules and regulations
thereunder, as from
time to time in effect.
Investment shall have the meaning assigned to that term in
Section
8.2.4.
Labor Contracts shall mean all employment agreements,
employment
contracts, collective bargaining agreements and other agreements
among any Loan
Party or Subsidiary of a Loan Party and its employees.
Law shall mean any law (including common law), constitution,
statute, treaty, regulation, rule, ordinance, opinion, release,
ruling, order,
injunction, writ, decree, bond, judgment, authorization or
approval, lien or
award of or settlement agreement with any Official Body.
Letter of Credit shall have the meaning assigned to that term
in
Section 2.9.1.
Letter of Credit Borrowing shall have the meaning assigned to
such
term in Section 2.9.3.4.
Letter of Credit Fee shall have the meaning assigned to that term
in
Section 2.9.2.
Letters of Credit Outstanding shall mean at any time the sum of
(i)
the aggregate undrawn face amount of outstanding Letters of Credit
and (ii) the
aggregate amount of all unpaid and outstanding Reimbursement
Obligations and
Letter of Credit Borrowings.
11
<PAGE>
Lien shall mean any mortgage, deed of trust, pledge, lien,
security
interest, charge or other encumbrance or security arrangement of
any nature
whatsoever, whether voluntarily or involuntarily given, including
any
conditional sale or title retention arrangement, and any
assignment, deposit
arrangement or lease intended as, or having the effect of, security
and any
filed financing statement or other notice of any of the foregoing
(whether or
not a lien or other encumbrance is created or exists at the time of
the filing).
LLC Interests shall have the meaning given to such term in
Section
6.1.2.
Loan Documents shall mean this Agreement, the Agent's Letter,
the
Guaranty Agreement, the Notes (if any) and any other instruments,
certificates
or documents delivered or contemplated to be delivered hereunder or
thereunder
or in connection herewith or therewith, as the same may be
supplemented or
amended from time to time in accordance herewith or therewith, and
Loan Document
shall mean any of the Loan Documents.
Loan Parties shall mean the Borrower and the Guarantors.
Loan Request shall mean a request for a Revolving Credit Loan or
a
request to select, convert to or renew a Base Rate Option or
Euro-Rate Option
with respect to an outstanding Revolving Credit Loan in accordance
with Sections
2.4, 2.5, 4.1 and 4.2.
Loans shall mean collectively and Loan shall mean separately
all
Revolving Credit Loans and Swing Loans or any Revolving Credit Loan
or Swing
Loan.
Material Adverse Change shall mean any set of circumstances or
events which (a) has or could reasonably be expected to have any
material
adverse effect whatsoever upon the validity or enforceability of
this Agreement
or any other Loan Document, (b) is or could reasonably be expected
to be
material and adverse to the business, properties, assets, financial
condition,
results of operations or prospects of the Loan Parties taken as a
whole, (c)
impairs materially or could reasonably be expected to impair
materially the
ability of the Loan Parties taken as a whole to duly and punctually
pay the
Indebtedness or otherwise perform the obligations in accordance
with the Loan
Documents, or (d) impairs materially or could reasonably be
expected to impair
materially the ability of the Agent or any of the Banks, to the
extent
permitted, to enforce their legal remedies pursuant to this
Agreement or any
other Loan Document.
Month, with respect to an Interest Period under the Euro-Rate
Option, shall mean the interval between the days in consecutive
calendar months
numerically corresponding to the first day of such Interest Period.
If any
Euro-Rate Interest Period begins on a day of a calendar month for
which there is
no numerically corresponding day in the month in which such
Interest Period is
to end, the final month of such Interest Period shall be deemed to
end on the
last Business Day of such final month.
Moody's shall mean Moody's Investors Service, Inc. and its
successors.
Mortgage Indenture shall mean that certain Indenture of Mortgage
and
Deed of Trust dated April 1, 1952 from New Jersey Natural Gas
Company to BNY
Midwest
12
<PAGE>
Trust Company, as successor to Harris Trust and Savings Bank,
Trustee, as
heretofore and hereafter amended, modified and supplemented.
Multiemployer Plan shall mean any employee benefit plan which is
a
"multiemployer plan" within the meaning of Section 4001(a)(3) of
ERISA and to
which the Borrower or any member of the ERISA Group is then making
or accruing
an obligation to make contributions or, within the preceding five
Plan years,
has made or had an obligation to make such contributions.
Multiple Employer Plan shall mean a Plan which has two or more
contributing sponsors (including the Borrower or any member of the
ERISA Group)
at least two of whom are not under common control, as such a plan
is described
in Sections 4063 and 4064 of ERISA.
Net Cash Proceeds shall mean, with respect to any issuance of
debt
or a Hybrid Security, an amount equal to the cash proceeds received
by the
Borrower or any of its Subsidiaries from or in respect of such
transaction
(including, when received: (i) any cash proceeds received as income
or other
deferred cash proceeds, or (ii) cash proceeds of any non-cash
proceeds of such
transaction), less all investment banking fees, discounts and
commissions, legal
fees, consulting fees, accountants' fees, underwriting discounts
and commissions
and other customary and reasonable fees and expenses actually
incurred in
connection therewith.
New Jersey Natural Gas shall mean New Jersey Natural Gas Company,
a
corporation organized and existing under the laws of the State of
New Jersey,
which corporation is a Subsidiary of the Borrower.
NJNG Credit Agreement shall mean that certain Credit Agreement,
dated as of December 16, 2004, among New Jersey Natural Gas, as the
borrower,
JPMorgan Chase Bank NA and Fleet National Bank, each as syndication
agent, Bank
of Tokyo-Mitsubishi Trust Company and Citicorp North America, Inc.,
each as
documentation agent, PNC Bank, National Association, as the
administrative
agent, and the Banks party thereto, as the same may be restated,
amended,
modified or supplemented from time to time.
NJNG Note
Agreement shall mean the Note Agreement, dated March 15,
2004, as the same may be supplemented, amended, or modified from
time to time as
permitted by Section 8.2.18 [Amendments to NJR Note Agreement and
NJNG Note
Agreement] hereof.
NJNG Notes shall
mean the unsecured Indebtedness issued by New
Jersey Natural Gas Company pursuant to the NJNG Note Agreement.
NJR Note Agreement shall mean the Note Agreement, dated March
15,
2004, as the same may be supplemented, amended, or modified from
time to time as
permitted by Section 8.2.18 [Amendments to NJR Note Agreement and
NJNG Note
Agreement] hereof.
NJR Notes shall mean the unsecured Indebtedness issued by the
Borrower pursuant to the NJR Note Agreement.
13
<PAGE>
Notes shall mean the Revolving Credit Notes and Swing Loan Note,
if
any.
Notices shall have the meaning assigned to that term in Section
11.6.
Obligations shall mean any obligation or liability of any of
the
Loan Parties to the Agent or any of the Banks, howsoever created,
arising or
evidenced, whether direct or indirect, absolute or contingent, now
or hereafter
existing, or due or to become due, under or in connection with this
Agreement,
any Notes, the Letters of Credit, the Agent's Letter or any other
Loan Document.
Obligations shall include the liabilities to any Bank under any
Bank-Provided
Interest Rate Hedge but shall not include the liabilities to other
Persons under
any other Interest Rate Hedge.
Official Body shall mean any national, federal, state, local or
other government or political subdivision or any agency, authority,
board,
bureau, central bank, commission, department or instrumentality of
either, or
any court, tribunal, grand jury or arbitrator, in each case whether
foreign or
domestic.
Participation Advance shall mean, with respect to any Bank,
such
Bank's payment in respect of its participation in a Letter of
Credit Borrowing
according to its Ratable Share pursuant to Section 2.9.3.4.
Partnership Interests shall have the meaning given to such term
in
Section 6.1.2.
PBGC shall mean the Pension Benefit Guaranty Corporation
established
pursuant to Subtitle A of Title IV of ERISA or any successor.
Permitted Acquisitions shall have the meaning assigned to such
term
in Section 8.2.5 [Liquidations, Mergers, Consolidations,
Acquisitions].
Permitted Investments shall mean:
(i) direct
obligations of the United States of America or any
agency or instrumentality thereof or obligations backed by the full
faith and
credit of the United States of America maturing in twelve (12)
months or less
from the date of acquisition;
(ii) repurchase
agreements having a duration of not more than
sixty (60) days that are collateralized by full faith and credit
obligations of
the United States Government or obligations guaranteed by the
United States
Government and its agencies;
(iii) interests in investment companies registered under the
Investment Company Act of 1940, as amended (or in a separate
portfolio of such
an investment company), that invest primarily in full faith and
credit
obligations of the United States Government or obligations
guaranteed by the
United States Government and its agencies and repurchase
agreements
collateralized by such obligations;
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<PAGE>
(iv) time deposits
with any office located in the United States
of the Banks or any other bank or trust company which is organized
under the
laws of the United States and has combined capital, surplus and
undivided
profits of not less than $500,000,000 or with any bank which is
organized other
than under the laws of the United States (y) the commercial paper
of which is
rated at least A-1 by Standard & Poor's and P-1 by Moody's (or,
if such
commercial paper is rated only by Standard & Poor's, at least
A-1 by Standard &
Poor's, or if such commercial paper is rated only by Moody's, at
least P-1 by
Moody's) or (z) the long term senior debt of which is rated at
least AA by
Standard & Poor's and Aa2 by Moody's (or, if such debt is rated
only by Standard
& Poor's, at least AA by Standard & Poor's, or if such debt
is rated only by
Moody's, at least Aa2 by Moody's);
(v) commercial
paper having a maturity of not more than one
year from the date of such investment and rated at least A-1 by
Standard &
Poor's and P-1 by Moody's (or, if such commercial paper is rated
only by
Standard & Poor's, at least A-1 by Standard & Poor's or, if
such commercial
paper is rated only by Moody's, at least P-1 by Moody's);
(vi) instruments held
for collection in the ordinary course of
business;
(vii) any equity or debt securities or other form of debt
instrument obtained in settlement of debts previously
contracted;
(viii) any Investment arising out of a Permitted Related
Business
Opportunity; and
(ix) any other form of
Investment by the Borrower or any of its
Subsidiaries (other than New Jersey Natural Gas which is expressly
prohibited
from making any Investments described in this clause (ix)) in any
Person so long
as the consideration paid or exchanged by the Borrower, or any of
its
Subsidiaries, for such investment (whether in cash or the value
of
payment-in-kind, with the value of payment-in-kind as reasonably
determined by
the Borrower) does not exceed $30,000,000 in the aggregate for all
Investments
permitted by this clause (ix).
Permitted Liens shall mean:
(i) Liens for
taxes, assessments, or similar charges, incurred
in the ordinary course of business and which are not yet due and
payable;
(ii) Pledges or
deposits made in the ordinary course of business
to secure payment of workmen's compensation, or to participate in
any fund in
connection with workmen's compensation, unemployment insurance,
old-age pensions
or other social security programs;
(iii)Liens of mechanics, materialmen, warehousemen, carriers,
or
other like Liens, securing obligations incurred in the ordinary
course of
business that are not yet due and payable and Liens of landlords
securing
obligations to pay lease payments that are not yet due and payable
or in
default;
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<PAGE>
(iv) Any Lien arising
out of judgments or awards but only to the
extent that the creation of any such Lien shall not be an event or
condition
which, with or without notice or lapse of time or both, would cause
Borrower to
be in violation of Section 9.1.6;
(v) Security
interests in favor of lessors of personal
property, which property is the subject of a true lease;
(vi) Good-faith
pledges or deposits made in the ordinary course
of business to secure performance of bids, tenders, contracts
(other than for
the repayment of borrowed money) or leases, not in excess of the
aggregate
amount due thereunder, or to secure statutory obligations, or
surety, appeal,
indemnity, performance or other similar bonds required in the
ordinary course of
business;
(vii) Encumbrances consisting of zoning restrictions,
easements,
rights-of-way or other restrictions on the use of real property and
minor
defects to title to real property, none of which materially impairs
the use of
such property or the value thereof;
(viii) Liens on property leased by any Loan Party or Subsidiary
of
a Loan Party securing obligations of such Loan Party or Subsidiary
to the lessor
under such leases, so long as to the extent the payments or other
amounts due
and owing under any such lease constitute Indebtedness, such
Indebtedness is
permitted under Section 8.2.1(vi);
(ix) Any Lien existing
on the date of this Agreement and
described on Schedule 1.1(P), provided, that, to the extent any
such Lien
secures Indebtedness permitted by Section 8.2.1(ii), such Lien may
continue to
secure any renewals or extensions of such Indebtedness permitted by
Section
8.2.1(ii) so long as (i) the principal amount of the Indebtedness
secured by any
such Lien is not hereafter increased and (ii) no additional assets
become
subject to such Lien;
(x) Liens on
assets of New Jersey Natural Gas existing on the
Closing Date (other than on any "Excepted Property" of New Jersey
Natural Gas,
as "Excepted Property" is defined in the Mortgage Indenture on the
Closing
Date), which Liens secure outstanding Indebtedness as of the
Closing Date under
the Mortgage Indenture and thereafter Liens on assets of New Jersey
Natural Gas
(other than on any "Excepted Property") which additional Liens
secure
outstanding Indebtedness as of the Closing Date under the Mortgage
Indenture and
any additional Indebtedness which is issued in accordance with
Article Two of
the Mortgage Indenture and is otherwise permitted by Section
8.2.1(iv);
(xi) Purchase Money
Security Interests, provided, that the
aggregate amount of loans and deferred payments secured by such
Purchase Money
Security Interests shall not exceed $20,000,000 (excluding for the
purpose of
this computation any loans or deferred payments secured by Liens
described on
Schedule 1.1(P));
(xii)Liens on any property or asset of an Acquired Person so
long as: (a) such Liens secure Indebtedness of the Acquired Person
and such
Indebtedness and such Liens on property or assets of the Acquired
Person existed
prior to the consummation of the Permitted
16
<PAGE>
Acquisition and were not created in contemplation of or in
connection with such
acquisition, (b) such Liens apply solely to the assets of the
Acquired Person
and do not apply to any asset of any Loan Party, and (c) after
giving effect to
such Permitted Acquisition and all other Permitted Acquisitions
made by the Loan
Parties from and after the Closing Date, the aggregate outstanding
amount of all
Indebtedness secured by Liens permitted by this clause (xii) shall
not exceed
$75,000,000; and
(xiii) The following, (A) if the validity or amount thereof is
being
contested in good faith by appropriate and lawful proceedings
diligently
conducted so long as levy and execution thereon have been stayed
and continue to
be stayed or (B) if a final judgment is entered and such judgment
is discharged
within thirty (30) days of entry, and could not be reasonably
expected to result
in a Material Adverse Change:
(1) Claims or Liens for taxes, assessments or charges due and
payable
and subject to interest or penalty, provided that the
applicable
Loan Party
maintains such reserves or other appropriate provisions as
shall be
required by GAAP and pays all such taxes, assessments or
charges
forthwith
upon the commencement of proceedings to foreclose any such
Lien;
(2) Claims, Liens or encumbrances upon, and defects of title
to, real
or personal property, including any attachment of personal or
real
property or other legal process prior to adjudication of a dispute
on
the merits; or
(3) Claims or Liens of mechanics, materialmen, warehousemen,
carriers,
or other statutory nonconsensual Liens.
Notwithstanding the foregoing definition of Permitted Lien or any
other
provision of the Loan Documents to the contrary, each of the Loan
Parties shall
not, and shall not permit any of its Subsidiaries to, at any time
create, incur,
assume or suffer to exist any Lien on any of the capital stock of
New Jersey
Natural Gas, or agree or become liable to do so.
Permitted Related Business Opportunity shall mean any
transaction
with another Person (other than any Inactive Subsidiary of the
Borrower)
involving business activities or assets reasonably related or
complementary to
the business of the Borrower and its Subsidiaries as conducted on
the Closing
Date or as may be conducted pursuant to Section 8.2.9, including,
without
limitation, the management and marketing of storage, capacity and
transportation
of gas and other forms of energy, the generation, transmission or
storage of gas
and other forms of energy, or the access to gas and energy
transmission lines,
and business initiatives for the conservation and efficiency of gas
and energy.
Permitted Transferee shall mean, as of any date of
determination,
any of the following with respect to any then current officer or
director of the
Borrower: (i) such Person's spouse, lineal descendants or lineal
descendant's of
such Person's spouse, (ii) any charitable corporation or trust
established by
such officer or director or by any Person described in the
immediately preceding
clause (i), (iii) any trust (or in the case of a minor, a custodial
account
under a Uniform Gifts or Transfers to Minors Act) of which the
beneficiary or
17
<PAGE>
beneficiaries are one or more Persons described in the immediately
preceding
clauses (i) or (ii), or (iv) any executor or administrator upon the
death of
such officer or director or the death of any Person described in
the immediately
preceding clauses (i) or (ii).
Person shall mean any individual, corporation, partnership,
limited
liability company, association, joint-stock company, trust,
unincorporated
organization, joint venture, government or political subdivision or
agency
thereof, or any other entity.
Plan shall mean at any time an employee pension benefit plan
(including a Multiple Employer Plan, but not a Multiemployer Plan)
which is
covered by Title IV of ERISA or is subject to the minimum funding
standards
under Section 412 of the Internal Revenue Code and either (i) is
maintained by
any member of the ERISA Group for employees of any member of the
ERISA Group or
(ii) has at any time within the preceding five years been
maintained by any
entity which was at such time a member of the ERISA Group for
employees of any
entity which was at such time a member of the ERISA Group.
PNC Bank shall mean PNC Bank, National Association, its
successors
and assigns.
Potential Default shall mean any event or condition which with
notice, passage of time, or both, would constitute an Event of
Default.
Principal Office shall mean the main banking office of the Agent
in
Pittsburgh, Pennsylvania.
Prohibited Transaction shall mean any prohibited transaction as
defined in Section 4975 of the Internal Revenue Code or Section 406
of ERISA for
which neither an individual nor a class exemption has been issued
by the United
States Department of Labor.
Property shall mean all real property, both owned and leased, of
any
Loan Party or Subsidiary of a Loan Party.
Purchase Money Security Interest shall mean Liens upon tangible
personal property securing loans to any Loan Party or Subsidiary of
a Loan Party
or deferred payments by such Loan Party or Subsidiary for the
purchase of such
tangible personal property.
Purchasing Bank shall mean a Bank which becomes a party to this
Agreement by executing an Assignment and Assumption Agreement.
Ratable Share shall mean the proportion that a Bank's
Commitment
(excluding its Swing Loan Commitment) bears to the Commitments
(excluding the
Swing Loan Commitment) of all of the Banks.
Regulated Entity shall mean any Person which is subject under Law
to
any of the laws, rules or regulations respecting the financial,
organizational
or rate regulation of electric companies, public utilities, or
public utility
holding companies.
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<PAGE>
Regulated
Substances shall mean, without limitation, any substance,
material or waste, regardless of its form or nature, defined under
Environmental
Laws as a "hazardous substance," "pollutant," "pollution,"
"contaminant,"
"hazardous or toxic substance," "extremely hazardous substance,"
"toxic
chemical," "toxic substance," "toxic waste," "hazardous waste,"
"special
handling waste," "industrial waste," "residual waste," "solid
waste," "municipal
waste," "mixed waste," "infectious waste," "chemotherapeutic
waste," "medical
waste," or "regulated substance" or any other substance, material
or waste,
regardless of its form or nature, which is regulated, controlled or
governed by
Environmental Laws due to its radioactive, ignitable, corrosive,
reactive,
explosive, toxic, carcinogenic or infectious properties or nature
or any other
material, substance or waste, regardless of its form or nature,
which otherwise
is regulated, controlled or governed by Environmental Laws,
including without
limitation, petroleum and petroleum products (including crude oil
and any
fractions thereof), natural gas, synthetic gas and any mixtures
thereof,
asbestos, urea formaldehyde, polychlorinated biphenlys, mercury,
radon and
radioactive materials.
Regulation U shall mean Regulation U, T, G, or X as promulgated
by
the Board of Governors of the Federal Reserve System, as amended
from time to
time.
Reimbursement Obligation shall have the meaning assigned to
such
term in Section 2.9.3.2.
Remedial Action shall mean any investigation, identification,
characterization, delineation, cleanup, removal, remediation,
containment,
control or abatement of or other response actions to Regulated
Substances and
any closure or post-closure measures associated therewith.
Reportable Event shall mean a reportable event described in
Section
4043 of ERISA and regulations thereunder with respect to a Plan or
Multiemployer
Plan.
Required Banks shall mean
(A) if there are no Loans, Reimbursement Obligations or Letter
of
Credit Borrowings outstanding, Required Banks shall mean Banks
whose Commitments
(excluding the Swing Loan Commitments) aggregate at least 51% of
the Commitments
of all of the Banks, or
(B) if there are Loans, Reimbursement Obligations, or Letter of
Credit Borrowings outstanding, Required Banks shall mean:
(i) prior to a termination of the Commitments hereunder
pursuant to Section 9.2.1 or 9.2.2, any Bank or group of Banks if
the sum of the
Loans (excluding the Swing Loans), Reimbursement Obligations and
Letter of
Credit Borrowings of such Banks then outstanding aggregates at
least 51% of the
total principal amount of all of the Loans (excluding the Swing
Loans),
Reimbursement Obligations and Letter of Credit Borrowings then
outstanding.
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(ii) after a termination of the Commitments hereunder pursuant
to Section 9.2.1 or 9.2.2, any Bank or group of Banks if the sum of
the Loans,
Reimbursement Obligations and Letter of Credit Borrowings of such
Banks then
outstanding aggregates at least 51% of the total principal amount
of all of the
Loans, Reimbursement Obligations and Letter of Credit Borrowings
then
outstanding.
Reimbursement Obligations and Letter of Credit Borrowings shall be
deemed, for
purposes of this definition, to be in favor of the Agent and not a
participating
Bank if such Bank has not made its Participation Advance in respect
thereof and
shall be deemed to be in favor of such Bank to the extent of its
Participation
Advance if it has made its Participation Advance in respect
thereof.
Required Share shall have the meaning assigned to such term in
Section 5.10.
Revolving Credit Commitment shall mean, as to any Bank at any
time,
the amount initially set forth opposite its name on Schedule 1.1(B)
in the
column labeled "Amount of Commitment for Revolving Credit Loans,"
and thereafter
as determined by the Agent after giving effect to each applicable
Bank Joinder
and Assignment and Assumption Agreement executed by such Bank and
delivered to
the Agent, and Revolving Credit Commitments shall mean the
aggregate Revolving
Credit Commitments of all of the Banks.
Revolving Credit Loans shall mean collectively and Revolving
Credit
Loan shall mean separately all Revolving Credit Loans or any
Revolving Credit
Loan made by the Banks or one of the Banks to the Borrower pursuant
to Section
2.1.1 or 2.9.3.
Revolving Credit Note shall mean any Revolving Credit Note of
the
Borrower in the form of Exhibit 1.1(R) issued by the Borrower at
the request of
a Bank pursuant to Section 5.9 evidencing the Revolving Credit
Loans to such
Bank, together with all amendments, extensions, renewals,
replacements,
refinancings or refundings thereof in whole or in part.
Revolving Facility Usage shall mean at any time the sum of the
Revolving Credit Loans outstanding, the Swing Loans outstanding and
the Letters
of Credit Outstanding.
SEC shall mean the Securities and Exchange Commission or any
governmental agencies substituted therefor.
SEC Filings shall mean the Borrower's Form 10-K, filed with the
SEC
for the fiscal year ended September 30, 2004 and Forms 10-Q, the
first filed
with the SEC for the fiscal quarter ended December 31, 2003, the
second filed
with SEC for the fiscal quarter ended March 31, 2004 and the third
filed with
the SEC for the fiscal quarter ended June 30, 2004.
Section 20 Subsidiary shall mean the Subsidiary of the bank
holding
company controlling any Bank, which Subsidiary has been granted
authority by the
Federal Reserve Board to underwrite and deal in certain Ineligible
Securities.
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<PAGE>
Settlement Date shall mean the 7th day of each week (if such day
is
a Business Day and if not, the next succeeding Business Day) and
any other
Business Day on which the Agent elects to effect settlement
pursuant to Section
5.10.
Significant Subsidiary shall mean, New Jersey Natural Gas, NJR
Energy Services Company, or any Subsidiary of the Borrower which at
any time (i)
has gross revenues equal to or in excess of five percent (5%) of
the gross
revenues of the Borrower and its Subsidiaries on a consolidated
basis, or (ii)
has total assets equal to or in excess of five percent (5%) of the
total assets
of the Borrower and its Subsidiaries on a consolidated basis, in
either case, as
determined and consolidated in accordance with GAAP.
Solvent shall mean, with respect to any Person on a particular
date,
that on such date (i) such Person is able to realize upon its
assets and pay its
debts and other liabilities as they mature in the normal course of
business, and
(ii) such Person has not incurred debts or liabilities beyond such
Person's
ability to pay as such debts and liabilities mature. Standard &
Poor's shall
mean Standard & Poor's Ratings Services, a division of The
McGraw-Hill
Companies, Inc., and its successors.
Standby Letter of Credit shall mean a Letter of Credit issued
to
support obligations of one or more of the Loan Parties, contingent
or otherwise,
which finance the working capital and business needs of the Loan
Parties
incurred in the ordinary course of business, but excluding any
Letter of Credit
under which the stated amount of such Letter of Credit increases
automatically
over time.
Subsidiary of any Person at any time shall mean (i) any
corporation
or trust of which 50% or more (by number of shares or number of
votes) of the
outstanding capital stock or shares of beneficial interest normally
entitled to
vote for the election of one or more directors or trustees
(regardless of any
contingency which does or may suspend or dilute the voting rights)
is at such
time owned directly or indirectly by such Person or one or more of
such Person's
Subsidiaries, (ii) any partnership of which such Person is a
general partner or
of which 50% or more of the partnership interests is at the time
directly or
indirectly owned by such Person or one or more of such Person's
Subsidiaries,
(iii) any limited liability company of which such Person is a
member or of which
50% or more of the limited liability company interests is at the
time directly
or indirectly owned by such Person or one or more of such Person's
Subsidiaries
or (iv) any corporation, trust, partnership, limited liability
company or other
entity which is controlled or capable of being controlled by such
Person or one
or more of such Person's Subsidiaries.
Subsidiary Shares shall have the meaning assigned to that term
in
Section 6.1.2.
Swing Loan Commitment shall mean PNC Bank's commitment to make
Swing
Loans to the Borrower pursuant to Section 2.1.2 hereof in an
aggregate principal
amount up to $45,000,000.
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<PAGE>
Swing Loan Interest Rate shall mean as to each Swing Loan the
rate
of interest quoted by PNC Bank applicable thereto and accepted by
the Borrower
with respect to such Swing Loan.
Swing Loan Note shall mean the Swing Loan Note of the Borrower
in
the form of Exhibit 1.1(S) evidencing the Swing Loans, together
with all
amendments, extensions, renewals, replacements, refinancings or
refundings
thereof in whole or in part.
Swing Loan Request shall mean a request for Swing Loans made in
accordance with Section 2.5 hereof.
Swing Loans shall mean collectively and Swing Loan shall mean
separately all Swing Loans or any Swing Loan made by PNC Bank to
the Borrower
pursuant to Section 2.1.2 hereof.
Transferor Bank shall mean the selling Bank pursuant to an
Assignment and Assumption Agreement.
USA Patriot Act shall mean the Uniting and Strengthening America
by
Providing Appropriate Tools Required to Intercept and Obstruct
Terrorism Act of
2001, Public Law 107-56, as the same has been, or shall hereafter
be, renewed,
extended, amended or replaced.
1.2
Construction.
Unless the
context of this Agreement otherwise clearly requires, the
following rules of construction shall apply to this Agreement and
each of the
other Loan Documents:
1.2.1. Number; Inclusion.
references to the plural include the singular, the plural, the
part and the whole; "or" has the inclusive meaning represented by
the phrase
"and/or" and "including" has the meaning represented by the phrase
"including
without limitation";
1.2.2. Determination.
references to "determination" of or by the Agent or the Banks
shall be deemed to include good-faith estimates by the Agent or the
Banks (in
the case of quantitative determinations) and good-faith beliefs by
the Agent or
the Banks (in the case of qualitative determinations) and such
determination
shall be conclusive absent manifest error;
1.2.3. Agent's Discretion and Consent.
whenever the Agent or the Banks are granted the right herein
to act in its or their sole discretion or to grant or withhold
consent such
right shall be exercised in good faith;
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<PAGE>
1.2.4. Documents Taken as a Whole.
the words "hereof," "herein," "hereunder," "hereto," and
similar terms in this Agreement or any other Loan Document refer to
this
Agreement or such other Loan Document as a whole and not to any
particular
provision of this Agreement or such other Loan Document;
1.2.5. Headings.
the section and other headings contained in this Agreement or
such other Loan Document and the Table of Contents (if any),
preceding this
Agreement or such other Loan Document are for reference purposes
only and shall
not control or affect the construction of this Agreement or such
other Loan
Document or the interpretation thereof in any respect;
1.2.6. Implied References to this Agreement.
article, section, subsection, clause, schedule and exhibit
references are to this Agreement or other Loan Document, as the
case may be,
unless otherwise specified;
1.2.7. Persons.
reference to any Person includes such Person's successors and
assigns but, if applicable, only if such successors and assigns are
permitted by
this Agreement or such other Loan Document, as the case may be, and
reference to
a Person in a particular capacity excludes such Person in any other
capacity;
1.2.8. Modifications to Documents.
reference to any agreement (including this Agreement and any
other Loan Document together with the schedules and exhibits hereto
or thereto),
document or instrument means such agreement, document or instrument
as amended,
modified, replaced, substituted for, superseded or restated;
1.2.9. From, To and Through.
relative to the determination of any period of time, "from"
means "from and including," "to" means "to but excluding," and
"through" means
"through and including"; and
1.2.10. Shall; Will.
references to "shall" and "will" are intended to have the same
meaning.
1.3
Accounting
Principles.
Except as
otherwise provided in this Agreement, all computations and
determinations as to accounting or financial matters and all
financial
statements to be delivered
23
<PAGE>
pursuant to this Agreement shall be made and prepared in accordance
with GAAP
(including principles of consolidation where appropriate), and all
accounting or
financial terms shall have the meanings ascribed to such terms by
GAAP;
provided, however, that all accounting terms used in Section 8.2
[Negative
Covenants] (and all defined terms used in the definition of any
accounting term
used in Section 8.2) shall have the meaning given to such terms
(and defined
terms) under GAAP as in effect on the date hereof applied on a
basis consistent
with those used in preparing the Annual Statements referred to in
Section
6.1.8(i) [Historical Statements]. In the event of any change after
the date
hereof in GAAP, and if such change would result in the inability to
determine
compliance with the financial covenants set forth in Section 8.2
based upon the
Borrower's regularly prepared financial statements by reason of the
preceding
sentence, then the parties hereto agree to endeavor, in good faith,
to agree
upon an amendment to this Agreement that would adjust such
financial covenants
in a manner that would not affect the substance thereof, but would
allow
compliance therewith to be determined in accordance with the
Borrower's
financial statements at that time.
2.
REVOLVING CREDIT AND SWING LOAN FACILITIES
2.1
Commitments.
2.1.1. Revolving Credit Loans.
Subject to the terms and conditions hereof and relying upon
the representations and warranties herein set forth, each Bank
severally agrees
to make Revolving Credit Loans to the Borrower at any time or from
time to time
on or after the date hereof to the Expiration Date, provided that,
after giving
effect to each such Revolving Credit Loan the aggregate amount of
Revolving
Credit Loans from such Bank shall not exceed such Bank's Revolving
Credit
Commitment minus such Bank's Ratable Share of the amount of Letters
of Credit
Outstanding; and provided further that the Revolving Facility Usage
at any time
shall not exceed the Revolving Credit Commitments of all the Banks.
Within such
limits of time and amount and subject to the other provisions of
this Agreement,
the Borrower may borrow, repay and reborrow pursuant to this
Section 2.1.1. The
outstanding principal amount of all Revolving Credit Loans,
together with
accrued interest thereon, shall be due and payable on the
Expiration Date.
2.1.2. Swing Loan Commitment.
Subject to the terms and conditions hereof and relying upon
the representations and warranties herein set forth, PNC Bank
agrees to make
Swing Loans to the Borrower at any time or from time to time after
the date
hereof to, but not including, the Expiration Date, in an aggregate
principal
amount of up to but not in excess of the Swing Loan Commitment,
provided that
the Revolving Facility Usage at any time shall not exceed the
Revolving Credit
Commitments of all the Banks. Within such limits of time and amount
and subject
to the other provisions of this Agreement, the Borrower may borrow,
repay and
reborrow pursuant to this Section 2.1.2. The outstanding principal
amount of all
Swing Loans, together
24
<PAGE>
with accrued interest thereon, shall be due and payable on the
earlier of the
Settlement Date applicable thereto or the Expiration Date.
2.2
Nature of Banks'
Obligations with Respect to Revolving Credit Loans.
Each Bank
shall be obligated to participate in each request for Revolving
Credit Loans pursuant to Section 2.4 [Revolving Credit Loan
Requests] in
accordance with its Ratable Share. The aggregate amount of each
Bank's Revolving
Credit Loans outstanding hereunder to the Borrower at any time
shall never
exceed its Revolving Credit Commitment minus its Ratable Share of
the amount of
Letters of Credit Outstanding. The obligations of each Bank
hereunder are
several. The failure of any Bank to perform its obligations
hereunder shall not
affect the Obligations of the Borrower to any other party nor shall
any other
party be liable for the failure of such Bank to perform its
obligations
hereunder. The Banks shall have no obligation to make Revolving
Credit Loans
hereunder on or after the Expiration Date.
2.3
Facility
Fees.
Accruing
from the date hereof until the Expiration Date, the Borrower
agrees to pay to the Agent for the account of each Bank, as
consideration for
such Bank's Revolving Credit Commitment hereunder, a nonrefundable
facility fee
(the "Facility Fee") equal to the Applicable Facility Fee Rate
(computed on the
basis of a year of 360 days and actual days elapsed) on the average
daily amount
of such Bank's Revolving Credit Commitment as the same may be
constituted from
time to time. All Facility Fees shall be payable quarterly in
arrears on the
first day of each January, April, July and October after the date
hereof and on
the Expiration Date or upon acceleration of the Loans.
2.4
Revolving Credit
Loan Requests.
Except as
otherwise provided herein, the Borrower may from time to time
prior to the Expiration Date request the Banks to make Revolving
Credit Loans or
renew or convert the Interest Rate Option applicable to existing
Revolving
Credit Loans pursuant to Section 4.2 [Interest Periods], by
delivering to the
Agent, not later than 10:00 a.m., Pittsburgh time, (i) three (3)
Business Days
prior to the proposed Borrowing Date with respect to the making of
Revolving
Credit Loans to which the Euro-Rate Option applies or the date of
conversion to
or the renewal of the Euro-Rate Option for any such Loans; and (ii)
one (1)
Business Day prior to either the proposed Borrowing Date with
respect to the
making of a Revolving Credit Loan to which the Base Rate Option
applies or the
last day of the preceding Interest Period with respect to the
conversion to the
Base Rate Option for any Loan, of a duly completed Loan Request
therefor
substantially in the form of Exhibit 2.4 or a Loan Request by
telephone
immediately confirmed in writing by letter, facsimile or telex in
the form of
such Exhibit, it being understood that the Agent may rely on the
authority of
any individual making such a telephonic request without the
necessity of receipt
of such written confirmation. Each Loan Request shall be
irrevocable and shall
specify (i) the proposed Borrowing Date; (ii) the aggregate amount
of the
proposed Revolving Credit Loans comprising each Borrowing Tranche,
the amount of
which shall be in integral multiples of $1,000,000 and not less
than $3,000,000
for each Borrowing Tranche to which the Euro-Rate Option applies
and not less
than the lesser of $1,000,000 and in integral
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multiples of $100,000 or the maximum amount available for Borrowing
Tranches to
which the Base Rate Option applies; (iii) whether the Euro-Rate
Option or Base
Rate Option shall apply to the proposed Loans comprising the
applicable
Borrowing Tranche; and (iv) in the case of a Borrowing Tranche to
which the
Euro-Rate Option applies, an appropriate Interest Period for the
Loans
comprising such Borrowing Tranche.
2.5
Swing Loan
Requests.
Except as
otherwise provided herein, the Borrower may from time to time
prior to the Expiration Date request PNC Bank to make a Swing Loan
by delivery
to PNC Bank, not later than 12:00 noon Pittsburgh time, on the
proposed
Borrowing Date of a duly completed request therefor substantially
in the form of
Exhibit 2.5 hereto or a request by telephone immediately confirmed
in writing by
letter, facsimile or telex, it being understood that PNC Bank may
rely on the
authority of any individual making such a telephonic request
without the
necessity of receipt of such written confirmation. Each Swing Loan
Request shall
be irrevocable and shall specify (i) the proposed Borrowing Date,
(ii) the term
of the proposed Swing Loan, which shall be no less than one day and
no longer
than seven (7) days, and (iii) the principal amount of such Swing
Loan, which
shall not be less than $250,000 and shall be an integral multiple
of $100,000.
2.6
Making Revolving
Credit Loans and Swing Loans.
2.6.1. Making Revolving Credit Loans.
The Agent shall, promptly after receipt by it of a Loan
Request for or with respect to Revolving Credit Loans pursuant to
Section 2.4
[Revolving Credit Loan Requests], notify the Banks with Revolving
Credit
Commitments of its receipt of such Loan Request specifying: (i) the
proposed
Borrowing Date and the time and method of disbursement of the
Revolving Credit
Loans requested thereby; (ii) the amount and type of each such
Revolving Credit
Loan and the applicable Interest Period (if any); and (iii) the
apportionment
among the Banks of such Revolving Credit Loans as determined by the
Agent in
accordance with Section 2.2 [Nature of Banks' Obligations]. Each
Bank shall
remit the principal amount of each Revolving Credit Loan to the
Agent such that
the Agent is able to, and the Agent shall, to the extent the Banks
have made
funds available to it for such purpose and subject to Section 7.2
[Each
Additional Loan or Letter of Credit], fund such Revolving Credit
Loans to the
Borrower in U.S. Dollars and immediately available funds at the
Principal Office
prior to 2:00 p.m., Pittsburgh time, on the applicable Borrowing
Date, provided
that if any Bank fails to remit such funds to the Agent in a timely
manner, the
Agent may elect in its sole discretion to fund with its own funds
the Revolving
Credit Loans of such Bank on such Borrowing Date, and such Bank
shall be subject
to the repayment obligation in Section 10.16 [Availability of
Funds].
2.6.2. Making Swing Loans.
So long as PNC Bank elects to make Swing Loans, PNC Bank
shall, after receipt by it of a Swing Loan Request pursuant to
Section 2.5 fund
such Swing Loan to the Borrower in U.S. Dollars and immediately
available funds
at the Principal Office prior to
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2:00 p.m. Pittsburgh time on the Borrowing Date. Each Swing Loan
shall bear
interest at the Swing Loan Interest Rate applicable thereto.
2.7
Swing Loan
Note.
The
obligation of the Borrower to repay the unpaid principal amount of
the
Swing Loans made to it by PNC Bank together with interest thereon
shall be
evidenced by a demand promissory note of the Borrower dated the
Closing Date in
substantially the form attached hereto as Exhibit 1.1(S) payable to
the order of
PNC Bank in a face amount equal to the Swing Loan Commitment.
2.8
Use of
Proceeds.
The
proceeds of the Loans shall be used by the Borrower for
general corporate purposes of the Borrower and in accordance with
Section 8.1.10
[Use of Proceeds].
2.9
Letter of Credit
Subfacility.
2.9.1. Issuance of Letters of Credit.
Borrower may request the issuance of a letter of credit (each
a "Letter of Credit") on behalf of itself by delivering to the
Agent a completed
application and agreement for letters of credit in such form as the
Agent may
specify from time to time by no later than 10:00 a.m., Pittsburgh
time, at least
five (5) Business Days, or such shorter period as may be agreed to
by the Agent,
in advance of the proposed date of issuance. Each Letter of Credit
shall be a
Standby Letter of Credit (and may not be a Commercial Letter of
Credit). Subject
to the terms and conditions hereof and in reliance on the
agreements of the
other Banks set forth in this Section 2.9, the Agent or any of the
Agent's
Affiliates will issue a Letter of Credit provided that each Letter
of Credit
shall (A) have a maximum maturity of twelve (12) months from the
date of
issuance, and (B) in no event expire later than ten (10) Business
Days prior to
the Expiration Date and providing that in no event shall (i) the
amount of
Letters of Credit Outstanding exceed, at any one time, $75,000,000
or (ii) the
Revolving Facility Usage exceed, at any one time, the Revolving
Credit
Commitments. Schedule 2.9.1 sets forth letters of credit, issued by
PNC Bank,
National Association, as administrative agent, under the Existing
Credit
Facility, which are outstanding as of the Closing Date (the
"Existing Letters of
Credit"). It is expressly agreed that the Existing Letters of
Credit are Letters
of Credit under this Agreement.
2.9.2. Letter of Credit Fees.
The Borrower shall pay (i) to the Agent for the ratable
account of the Banks a fee (the "Letter of Credit Fee") equal to
the Applicable
Letter of Credit Fee Rate then in effect (computed on the basis of
a year of 360
days and actual days elapsed) per annum, and (ii) to the Agent for
its own
account a fronting fee equal to 0.125% per annum (computed on the
basis of a
year of 360 days and actual days elapsed), which fees shall be
computed on the
daily average amount of Letters of Credit Outstanding and shall be
payable
quarterly in arrears commencing with the first Business Day of each
January,
April, July and October following issuance of each Letter of Credit
and on the
Expiration Date. The Borrower shall also pay to the
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Agent for the Agent's sole account the Agent's then in effect
customary fees and
administrative expenses payable with respect to the Letters of
Credit as the
Agent may generally charge or incur from time to time in connection
with the
issuance, maintenance, modification (if any), assignment or
transfer (if any),
negotiation, and administration of Letters of Credit.
2.9.3. Disbursements, Reimbursement.
2.9.3.1 Immediately
upon the issuance of each Letter of
Credit, each Bank shall be deemed to, and hereby irrevocably and
unconditionally
agrees to, purchase from the Agent a participation in such Letter
of Credit and
each drawing thereunder in an amount equal to such Bank's Ratable
Share of the
maximum amount available to be drawn under such Letter of Credit
and the amount
of such drawing, respectively.
2.9.3.2 In the event
of any request for a drawing under a
Letter of Credit by the beneficiary or transferee thereof, the
Agent will
promptly notify the Borrower. Provided that it shall have received
such notice,
the Borrower shall reimburse (such obligation to reimburse the
Agent shall
sometimes be referred to as a "Reimbursement Obligation") the Agent
prior to
12:00 noon, Pittsburgh time on each date that an amount is paid by
the Agent
under any Letter of Credit (each such date, an "Drawing Date") in
an amount
equal to the amount so paid by the Agent. In the event the Borrower
fails to
reimburse the Agent for the full amount of any drawing under any
Letter of
Credit by 12:00 noon, Pittsburgh time, on the Drawing Date, the
Agent will
promptly notify each Bank thereof, and the Borrower shall be deemed
to have
requested that Revolving Credit Loans be made by the Banks under
the Base Rate
Option to be disbursed on the Drawing Date under such Letter of
Credit, subject
to the amount of the unutilized portion of the Revolving Credit
Commitment and
subject to the conditions set forth in Section 7.2 [Each Additional
Loan] other
than any notice requirements. Any notice given by the Agent
pursuant to this
Section 2.9.3.2 may be oral if immediately confirmed in writing;
provided that
the lack of such an immediate confirmation shall not affect the
conclusiveness
or binding effect of such notice.
2.9.3.3 Each Bank
shall upon any notice pursuant to Section
2.9.3.2 make available to the Agent an amount in immediately
available funds
equal to its Ratable Share of the amount of the drawing, whereupon
the
participating Banks shall (subject to Section 2.9.3.4) each be
deemed to have
made a Revolving Credit Loan under the Base Rate Option to the
Borrower in that
amount. If any Bank so notified fails to make available to the
Agent for the
account of the Agent the amount of such Bank's Ratable Share of
such amount by
no later than 2:00 p.m., Pittsburgh time on the Drawing Date, then
interest
shall accrue on such Bank's obligation to make such payment, from
the Drawing
Date to the date on which such Bank makes such payment (i) at a
rate per annum
equal to the Federal Funds Open Rate during the first three (3)
days following
the Drawing Date and (ii) at a rate per annum equal to the rate
applicable to
Loans under the Base Rate Option on and after the fourth (4th) day
following the
Drawing Date. The Agent will promptly give notice of the occurrence
of the
Drawing Date, but failure of the Agent to give any such notice on
the Drawing
Date or in sufficient time to enable any Bank to effect such
payment on such
date shall not relieve such Bank from its obligation under this
Section 2.9.3.3,
provided, however, interest shall not accrue on any Bank's
obligation to make a
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payment under this Section 2.9.3.3, until such Bank has received
notice of the
Drawing Date from the Agent.
2.9.3.4 With respect
to any unreimbursed drawing that is not
converted into Revolving Credit Loans under the Base Rate Option to
the Borrower
in whole or in part as contemplated by Section 2.9.3.2, because of
the
Borrower's failure to satisfy the conditions set forth in Section
7.2 [Each
Additional Loan] other than any notice requirements or for any
other reason, the
Borrower shall be deemed to have incurred from the Agent a
borrowing (each a
"Letter of Credit Borrowing") in the amount of such drawing. Such
Letter of
Credit Borrowing shall be due and payable on demand (together with
interest) and
shall bear interest at the rate per annum applicable to the
Revolving Credit
Loans under the Base Rate Option. Each Bank's payment to the Agent
pursuant to
Section 2.9.3.3 shall be deemed to be a payment in respect of its
participation
in such Letter of Credit Borrowing and shall constitute a
"Participation
Advance" from such Bank in satisfaction of its participation
obligation under
this Section 2.9.3.
2.9.4. Repayment of Participation Advances.
2.9.4.1 Upon (and only
upon) receipt by the Agent for its
account of immediately available funds from the Borrower (i) in
reimbursement of
any payment made by the Agent under the Letter of Credit with
respect to which
any Bank has made a Participation Advance to the Agent, or (ii) in
payment of
interest on such a payment made by the Agent under such a Letter of
Credit, the
Agent will pay to each Bank, in the same funds as those received by
the Agent,
the amount of such Bank's Ratable Share of such funds, except the
Agent shall
retain the amount of the Ratable Share of such funds of any Bank
that did not
make a Participation Advance in respect of such payment by
Agent.
2.9.4.2 If the Agent
is required at any time to return to any
Loan Party, or to a trustee, receiver, liquidator, custodian, or
any official in
any Insolvency Proceeding, any portion of the payments made by any
Loan Party to
the Agent pursuant to Section 2.9.4.1 in reimbursement of a payment
made under
the Letter of Credit or interest or fee thereon, each Bank shall,
on demand of
the Agent, forthwith return to the Agent the amount of its Ratable
Share of any
amounts so returned by the Agent plus interest thereon from the
date such demand
is made to the date such amounts are returned by such Bank to the
Agent, at a
rate per annum equal to the Federal Funds Open Rate in effect from
time to time.
2.9.5. Documentation.
Each Loan Party agrees to be bound by the terms of the Agent's
application and agreement for letters of credit and the Agent's
written
regulations and customary practices relating to letters of credit,
though such
interpretation may be different from such Loan Party's own. In the
event of a
conflict between such application or agreement and this Agreement,
this
Agreement shall govern. It is understood and agreed that, except in
the case of
gross negligence or willful misconduct, the Agent shall not be
liable for any
error and/or mistakes, whether of omission or commission, in
following any Loan
Party's written instructions or those contained in the Letters of
Credit or any
modifications, amendments or supplements
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thereto, provided that each Loan Party agrees that all instructions
provided to
the Agent by a Loan Party with respect to any Letter of Credit
shall be provided
in writing.
2.9.6. Determinations to Honor Drawing Requests.
In determining whether to honor any request for drawing under
any Letter of Credit by the beneficiary thereof, the Agent shall be
responsible
only to determine that the documents and certificates required to
be delivered
under such Letter of Credit have been delivered and that they
comply on their
face with the requirements of such Letter of Credit.
2.9.7. Nature of Participation and Reimbursement Obligations.
Each Bank's obligation in accordance with this Agreement to
make the Revolving Credit Loans or Participation Advances, as
contemplated by
Section 2.9.3, as a result of a drawing under a Letter of Credit,
and the
Obligations of the Borrower to reimburse the Agent upon a draw
under a Letter of
Credit, shall be absolute, unconditional and irrevocable, and shall
be performed
strictly in accordance with the terms of this Section 2.9 under
all
circumstances, including the following circumstances:
(i) any set-off,
counterclaim, recoupment, defense or other
right which such Bank may have against the Agent or any of its
Affiliates, the Borrower or any other Person for any reason
whatsoever;
(ii) the failure of
any Loan Party or any other Person to
comply, in connection with a Letter of Credit Borrowing, with
the conditions applicable to Revolving Credit Loans set forth
in Section 2.1.1 [Revolving Credit Loans], 2.4 [Revolving
Credit Loan Requests], 2.6 [Making Revolving Credit Loans and
Swing Loans] or 7.2 [Each Additional Loan or Letter of Credit]
or as otherwise set forth in this Agreement for the making of
a Revolving Credit Loan, it being acknowledged that such
conditions are not required for the making of a Letter of
Credit Borrowing and the obligation of the Banks to make
Participation Advances under Section 2.9.3;
(iii) any lack of validity or enforceability of any Letter of
Credit;
(iv) any claim of breach of warranty that might be made by any
Loan Party or any Bank against any beneficiary of a Letter of
Credit, or the existence of any claim, set-off, recoupment,
counterclaim, crossclaim, defense or other right which any
Loan Party or any Bank may have at any time against a
beneficiary, successor beneficiary any transferee or assignee
of any Letter of Credit or the proceeds thereof (or any
Persons for whom any such transferee may be acting), the Agent
or its Affiliates or any Bank or
30
<PAGE>
any other Person or, whether in connection with this
Agreement, the transactions contemplated herein or any
unrelated transaction (including any underlying transaction
between any Loan Party or Subsidiaries of a Loan Party and the
beneficiary for which any Letter of Credit was procured);
(v) the lack of
power or authority of any signer of (or any
defect in or forgery of any signature or endorsement on) or
the form of or lack of validity, sufficiency, accuracy,
enforceability or genuineness of any draft, demand,
instrument, certificate or other document presented under or
in connection with any Letter of Credit, or any fraud or
alleged fraud in connection with any Letter of Credit, or the
transport of any property or provisions of services relating
to a Letter of Credit, in each case even if the Agent or any
of the Agent's Affiliates has been notified thereof;
(vi) payment by the
Agent or any of its Affiliates under any
Letter of Credit against presentation of a demand, draft or
certificate or other document which does not comply with the
terms of such Letter of Credit;
(vii) the solvency of, or any acts of omissions by, any
beneficiary of any Letter of Credit, or any other Person
having a role in any transaction or obligation relating to a
Letter of Credit, or the existence, nature, quality, quantity,
condition, value or other characteristic of any property or
services relating to a Letter of Credit;
(viii) any failure by the Agent or any of Agent's Affiliates
to issue any Letter of Credit in the form requested by any
Loan Party, unless the Agent has received written notice from
such Loan Party of such failure within three Business Days
after the Agent shall have furnished such Loan Party a copy of
such Letter of Credit and such error is material and no
drawing has been made thereon prior to receipt of such notice;
(ix) any adverse
change in the business, operations,
properties, assets, condition (financial or otherwise) or
prospects of any Loan Party or Subsidiaries of a Loan Party;
(x) any breach
of this Agreement or any other Loan Document
by any party thereto;
(xi) the occurrence or
continuance of an Insolvency
Proceeding with respect to any Loan Party;
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<PAGE>
(xii) the fact that an Event of Default or a Potential Default
shall have occurred and be continuing;
(xiii) the fact that the Expiration Date shall have passed or
this
Agreement or the Commitments hereunder shall have been
terminated; and
(xiv) any other circumstance or happening whatsoever, whether
or not similar to any of the foregoing.
Notwithstanding the foregoing, no Bank shall be required to make a
Revolving
Credit Advance or a Participation Advance in excess of its
Revolving Credit
Commitment minus its Ratable Share of any Letters of Credit
Outstanding.
2.9.8. Indemnity.
In
addition to amounts payable as provided in Section 10.5
[Reimbursement and Indemnification of Agent by the Borrower], the
Borrower
hereby agrees to protect, indemnify, pay and save harmless the
Agent and any of
Agent's Affiliates that has issued a Letter of Credit from and
against any and
all claims, demands, liabilities, damages, taxes, penalties,
interest,
judgments, losses, costs, charges and expenses (including
reasonable fees,
expenses and disbursements of counsel and allocated costs of
internal counsel)
which the Agent or any of Agent's Affiliates may incur or be
subject to as a
consequence of the issuance of any Letter of Credit, other than as
a result of
(A) the gross negligence or willful misconduct of the Agent as
determined by a
final judgment of a court of competent jurisdiction or (B) the
wrongful dishonor
by the Agent or any of Agent's Affiliates of a proper demand for
payment made
under any Letter of Credit, except if such dishonor resulted from
any act or
omission, whether rightful or wrongful, of any present or future de
jure or de
facto government or governmental authority (all such acts or
omissions herein
called "Governmental Acts").
2.9.9. Liability for Acts and Omissions.
As between any Loan Party and the Agent, or the Agent's
Affiliates, such Loan Party assumes all risks of the acts and
omissions of, or
misuse of the Letters of Credit by, the respective beneficiaries of
such Letters
of Credit. In furtherance and not in limitation of the foregoing,
the Agent
shall not be responsible for any of the following including any
losses or
damages to any Loan Party or other Person or property relating
therefrom: (i)
the form, validity, sufficiency, accuracy, genuineness or legal
effect of any
document submitted by any party in connection with the application
for an
issuance of any such Letter of Credit, even if it should in fact
prove to be in
any or all respects invalid, insufficient, inaccurate, fraudulent
or forged
(even if the Agent or the Agent's Affiliates shall have been
notified thereof);
(ii) the validity or sufficiency of any instrument transferring or
assigning or
purporting to transfer or assign any such Letter of Credit or the
rights or
benefits thereunder or proceeds thereof, in whole or in part, which
may prove to
be invalid or ineffective for any reason; (iii) the failure of the
beneficiary
of any such Letter of Credit, or any other party to which such
Letter of Credit
may be transferred, to comply fully with any conditions required in
order to
draw upon such Letter of
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Credit or any other claim of any Loan Party against any beneficiary
of such
Letter of Credit, or any such transferee, or any dispute between or
among any
Loan Party and any beneficiary of any Letter of Credit or any such
transferee;
(iv) errors, omissions, interruptions or delays in transmission or
delivery of
any messages, by mail, cable, telegraph, telex or otherwise,
whether or not they
be in cipher; (v) errors in interpretation of technical terms; (vi)
any loss or
delay in the transmission or otherwise of any document required in
order to make
a drawing under any such Letter of Credit or of the proceeds
thereof; (vii) the
misapplication by the beneficiary of any such Letter of Credit of
the proceeds
of any drawing under such Letter of Credit; or (viii) any
consequences arising
from causes beyond the control of the Agent or the Agent's
Affiliates, as
applicable, including any Governmental Acts, and none of the above
shall affect
or impair, or prevent the vesting of, any of the Agent's or the
Agent's
Affiliates rights or powers hereunder. Nothing in the preceding
sentence shall
relieve the Agent from liability for the Agent's gross negligence
or willful
misconduct in connection with actions or omissions described in
such clauses (i)
through (viii) of such sentence. In no event shall the Agent or the
Agent's
Affiliates be liable to any Loan Party for any indirect,
consequential,
incidental, punitive, exemplary or special damages or expenses
(including
without limitation attorneys' fees), or for any damages resulting
from any
change in the value of any property relating to a Letter of
Credit.
Without limiting the generality of the foregoing, the Agent
and each of its Affiliates (i) may rely on any oral or other
communication
believed in good faith by the Agent or such Affiliate to have been
authorized or
given by or on behalf of the applicant for a Letter of Credit, (ii)
may honor
any presentation if the documents presented appear on their face
substantially
to comply with the terms and conditions of the relevant Letter of
Credit; (iii)
may honor a previously dishonored presentation under a Letter of
Credit, whether
such dishonor was pursuant to a court order, to settle or
compromise any claim
of wrongful dishonor, or otherwise, and shall be entitled to
reimbursement to
the same extent as if such presentation had initially been honored,
together
with any interest paid by the Agent or its Affiliate; (iv) may
honor any drawing
that is payable upon presentation of a statement advising
negotiation or
payment, upon receipt of such statement (even if such statement
indicates that a
draft or other document is being delivered separately), and shall
not be liable
for any failure of any such draft or other document to arrive, or
to conform in
any way with the relevant Letter of Credit; (v) may pay any paying
or
negotiating bank claiming that it rightfully honored under the laws
or practices
of the place where such bank is located; and (vi) may settle or
adjust any claim
or demand made on the Agent or its Affiliate in any way related to
any order
issued at the applicant's request to an air carrier, a letter of
guarantee or of
indemnity issued to a carrier or any similar document (each an
"Order") and
honor any drawing in connection with any Letter of Credit that is
the subject to
such Order, notwithstanding that any drafts or other documents
presented in
connection with such Letter of Credit fail to conform in any way
with such
Letter of Credit.
In furtherance and extension and not in limitation of the
specific provisions set forth above, any action taken or omitted by
the Agent or
the Agent's Affiliates under or in connection with the Letters of
Credit issued
by it or any documents and certificates delivered thereunder, if
taken or
omitted in good faith, shall not put the Agent or the Agent's
Affiliates under
any resulting liability to the Borrower or any Bank.
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2.10
Borrowings to Repay
Swing Loans.
PNC Bank
may, at its option, exercisable at any time for any reason
whatsoever, demand repayment of the Swing Loans, and each Bank
shall make a
Revolving Credit Loan in an amount equal to such Bank's Ratable
Share of the
aggregate principal amount of the outstanding Swing Loans, plus, if
PNC Bank so
requests, accrued interest thereon, provided that no Bank shall be
obligated in
any event to make Revolving Credit Loans in excess of its Revolving
Credit
Commitment minus such Bank's Ratable Share of the amount of Letters
of Credit
Outstanding. Revolving Credit Loans made pursuant to the preceding
sentence
shall bear interest at the Base Rate Option and shall be deemed to
have been
properly requested in accordance with Section 2.5 without regard to
any of the
requirements of that provision. PNC Bank shall provide notice to
the Banks
(which may be telephonic or written notice by letter, facsimile or
telex) that
such Revolving Credit Loans are to be made under this Section 2.10
and of the
apportionment among the Banks, and the Banks shall be
unconditionally obligated
to fund such Revolving Credit Loans (whether or not the conditions
specified in
Section 2.4 or Section 7.2 are then satisfied) by the time PNC Bank
so requests,
which shall not be earlier than 3:00 p.m. Pittsburgh time on the
Business Day
next after the date the Banks receive such notice from PNC
Bank.
2.11
Right to Increase
Commitments.
Provided
that there is no Event of Default or Potential Default, if the
Borrower wishes to increase the Revolving Credit Commitments, the
Borrower shall
notify the Agent thereof, provided that any such increase shall be
in a minimum
of $5,000,000 and the aggregate of all such increases in the
Revolving Credit
Commitments shall not exceed $50,000,000 from and after the Closing
Date. Each
Bank shall have the right at any time within fifteen (15) days
following such
notice to increase its respective Revolving Credit Commitment so as
to provide
such added commitment pro rata in accordance with such Bank's
Ratable Share, and
any portion of such requested increase that is not provided by any
Bank shall:
(i) first be available to the other Banks pro rata in accordance
with their
Ratable Share, (ii) next be available to the other Banks in such a
manner as the
Borrower, the Agent and those Banks shall agree, and (iii)
thereafter, to the
extent not provided by the Banks, to any additional bank proposed
by the
Borrower, which is approved by the Agent (which approval shall not
be
unreasonably withheld) and that becomes a party to this Agreement
pursuant to
Section 11.11 [Successors and Assigns; Joinder of a Bank]. In the
event of any
such increase in the aggregate Revolving Credit Commitments
effected pursuant to
the terms of this Section 2.11, new Notes shall, to the extent
necessary, be
executed and delivered by the Borrower in exchange for the
surrender of the
existing Notes.
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3. INTENTIONALLY OMITTED
4. INTEREST RATES
4.1
Interest Rate
Options.
The
Borrower shall pay interest in respect of the outstanding
unpaid
principal amount of the Loans as selected by it from the Base Rate
Option or
Euro-Rate Option set forth below applicable to the Loans, it being
understood
that, subject to the provisions of this Agreement, the Borrower may
select
different Interest Rate Options and different Interest Periods to
apply
simultaneously to the Loans comprising different Borrowing Tranches
and may
convert to or renew one or more Interest Rate Options with respect
to all or any
portion of the comprising any Borrowing Tranche, provided that
there shall not
be at any one time outstanding more than ten (10) Borrowing
Tranches in the
aggregate among all of the Loans, and provided further that only
the Swing Loan
Interest Rate shall apply to the Swing Loans. If at any time the
designated rate
applicable to any Loan made by any Bank exceeds such Bank's highest
lawful rate,
the rate of interest on such Bank's Loan shall be limited to such
Bank's highest
lawful rate.
4.1.1. Revolving Credit Interest Rate Options.
The Borrower shall have the right to select from the following
Interest Rate Options applicable to the Revolving Credit Loans
(subject to the
provision above regarding Swing Loans):
(i) Base Rate
Option: A fluctuating rate per annum (computed
on the basis of a year of 365 or 366 days, as the case may be,
and actual days elapsed) equal to the Base Rate plus the
Applicable Margin, such interest rate to change automatically
from time to time effective as of the effective date of each
change in the Base Rate; or
(ii) Euro-Rate Option:
A rate per annum (computed on the
basis of a year of 360 days and actual days elapsed) equal to
the Euro-Rate plus the Applicable Margin.
Notwithstanding the foregoing, if any Event of Default has
occurred and is continuing, no Loan may be made, converted to or
renewed under
any Euro-Rate Option.
4.1.2. Rate Quotations.
The Borrower may call the Agent on or before the date on which
a Loan Request is to be delivered to receive an indication of the
interest rates
then in effect, but it is acknowledged that such projection shall
not be binding
on the Agent or the Banks nor affect the rate of interest which
thereafter is
actually in effect when the election is made.
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4.1.3. Change in Fees or Interest Rates.
If the Applicable Margin, Applicable Letter of Credit Fee Rate
or Applicable Facility Fee Rate is increased or reduced with
respect to any
period for which the Borrower has already paid interest, the
Facility Fee or the
Letter of Credit Fee, the Agent shall recalculate the additional
interest,
Facility Fee or Letter of Credit Fee due from or to the Borrower
and shall,
within fifteen (15) Business Days after the Borrower notifies the
Agent of such
increase or decrease, give the Borrower and the Banks notice of
such
recalculation.
4.1.3.1 Any additional
interest, Facility Fee or Letter of
Credit Fee due from the Borrower shall be paid to the Agent for the
account of
the Banks on the next date on which an interest or fee payment is
due; provided,
however, that if there are no Loans outstanding or if the Loans are
due and
payable, such additional interest, Facility Fee or Letter of Credit
Fee shall be
paid promptly after receipt of written request for payment from the
Agent.
4.1.3.2 Any interest,
Facility Fee or Letter of Credit Fee
refund due to the Borrower shall be credited against payments
otherwise due from
the Borrower on the next interest or fee payment due date or, if
the Loans have
been repaid and the Banks are no longer committed to lend under
this Agreement,
the Banks shall pay the Agent for the account of the Borrower such
interest,
Facility Fee or Letter of Credit Fee refund not later than five
Business Days
after written notice from the Agent to the Banks.
4.2
Interest
Periods.
At any
time when the Borrower shall select, convert to or renew a
Euro-Rate Option, the Borrower shall notify the Agent thereof by
delivering a
Loan Request at least three (3) Business Days prior to the
effective date of
such Interest Rate Option. The notice shall specify an Interest
Period during
which such Interest Rate Option shall apply. Notwithstanding the
preceding
sentence, the following provisions shall apply to any selection of,
renewal of,
or conversion to a Euro-Rate Option:
4.2.1. Amount of Borrowing Tranche.
the
amount of each Borrowing Tranche of Loans to which a
Euro-Rate Option applies shall be in integral multiples of
$1,000,000 and not
less than $3,000,000;
4.2.2. Renewals.
in the case of the renewal of a Euro-Rate Option at the end of
an Interest Period, the first day of the new Interest Period shall
be the last
day of the preceding Interest Period, without duplication in
payment of in
