<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
<PAGE>
<TABLE>
<S>
<C>
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
</TABLE>
<PAGE>
<TABLE>
<S>
<C>
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
</TABLE>
-ii-
<PAGE>
<TABLE>
<S>
<C>
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
</TABLE>
-iii-
<PAGE>
<TABLE>
<S>
<C>
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
</TABLE>
- iv -
<PAGE>
<TABLE>
<S>
<C>
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
</TABLE>
- v -
<PAGE>
<TABLE>
<S>
<C>
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
</TABLE>
- vi -
<PAGE>
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;
14
<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;
15
<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.
18
<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.
19
<PAGE>
(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.
20
<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.
21
<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;
22
<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
25
<PAGE>
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
26
<PAGE>
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
27
<PAGE>
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
28
<PAGE>
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
29
<PAGE>
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;
31
<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
32
<PAGE>
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.
33
<PAGE>
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.
34
<PAGE>
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.
35
<PAGE>
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
