Proof of November 14, 1994 EXHIBIT NO. 1-5
NUI CORPORATION
Medium Term Notes
Distribution Agreement
____________, 199_
To the Agents named in
Schedule A attached hereto
Gentlemen:
NUI Corporation, a New Jersey corporation (the "Company"),
confirms its agreement with each of you as agent (collectively, the
"Agents") with respect to the issue and sale by the Company of up to
$100,000,000 aggregate principal amount of its Medium Term Notes in such
series and with such due dates as set forth on Schedule A attached hereto
(the "Securities"). The Securities are to be issued from time to time, in
one or more series, under an Indenture (as supplemented from time to time,
the "Indenture"), dated as of __________ __, 1994, between the Company and
First Fidelity Bank, National Association, as trustee (the "Trustee");
will be issued in denominations of $1,000 and integral multiples in excess
thereof; and will bear interest at rates to be provided in a supplement to
the Prospectus referred to below.
The Company hereby appoints each of you as its Agent for the purpose
of using your reasonable best efforts to solicit offers to purchase the
Securities from the Company by others and agrees that if the Company
determines to sell Securities directly to one or more of you as principal
for resale to others, it will enter into a Terms Agreement (as defined
below) relating to such sale in accordance with the provisions of Section
1(b) hereof. On the basis of the representations and warranties herein
contained, but subject to the terms and conditions herein set forth, each
of you agrees to use your reasonable best efforts to solicit offers to
purchase Securities at such times and in such amounts as the Company shall
from time to time specify. The Agents shall communicate to the Company,
orally or in writing, each offer to purchase Securities received by the
Agents, as agents. The Company shall have the sole right to accept offers
to purchase Securities and may reject any offer in whole or in part. The
Agents shall have the right to reject any offer to purchase Securities
which the Agents consider to be unacceptable in their discretion
reasonably exercised, and any such rejection shall not be deemed a breach
of the Agents' agreements contained herein. In acting under this
Agreement, and in connection with the sale of any Securities by the
Company (other than Securities sold to any Agent pursuant to a Terms
Agreement), the Agents are acting solely as agent of the Company and do
not assume any obligation towards or relationship of agency or trust with
any purchaser of the Securities.
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The Company may appoint additional agents in connection with the
offering of the Securities; provided that (a) the Company promptly
notifies the Agents of such appointment and (b) such additional agent
enters into an agreement with the Company making such agent an agent under
this Agreement or enters into an agreement with the Company on terms which
are substantially similar to those contained in this Agreement, which
agreement shall include appropriate changes to reflect the arrangements
between the Company and such additional agent.
The Company has filed in accordance with the provisions of the
Securities Act of 1933 (the "Act"), and has filed with the Securities and
Exchange Commission (the "SEC") a registration statement on Form S-3 (with
a registration number and effective date as set forth on Schedule A
attached hereto) which registration statement includes a prospectus, for
the registration under the Act of the Securities. Such registration
statement, including the exhibits thereto, as amended as of the date of
the sale of any Securities, is hereinafter referred to as the
"Registration Statement." The Company has filed, or will file, in
accordance with the provisions of Rule 424 under the Act one or more
prospectus supplements describing certain terms of the Securities (the
"Prospectus Supplement"). The Indenture has been qualified under the
Trust Indenture Act of 1939 (the "Trust Indenture Act"), and the Company
has duly authorized the issuance of the Securities. The Registration
Statement, as amended at the date of this Agreement, meets the
requirements set forth in Rule 415(a)(1)(x) under the Act and complies in
all other material respects with said Rule. The Company proposes to file
with the SEC from time to time, pursuant to Rule 424 under the Act,
supplements to the prospectus relating to the Securities included in the
Registration Statement, which will include certain information relating to
the principal amount, price and terms of offering, the interest rate and
redemption prices, if any, of such Securities (the "Pricing Supplement").
The term "Prospectus" means the prospectus in the form in which it appears
in the Registration Statement together with the Prospectus Supplement or
Supplements, as the case may be, and any Pricing Supplement specifically
relating to any Securities sold pursuant to this Agreement, in the form in
which from time to time it has most recently been filed with, or
transmitted for filing to, the SEC pursuant to Rule 424 under the Act.
Any reference herein to the Registration Statement and Prospectus shall be
deemed to refer to and include the documents incorporated by reference
therein pursuant to Item 11 of Form S-3 which documents were filed under
the Securities Exchange Act of 1934 (the "Exchange Act").
The Company and the Agents agree as follows:
1. Solicitations as Agent; Purchases as Principal.
(a) Solicitations as Agent. On the basis of the representations and
warranties herein contained, but subject to the terms and conditions
herein set forth, the Agents will use their reasonable best efforts to
solicit offers to purchase the Securities upon the terms and conditions
set forth in the Prospectus.
The Company reserves the right, in its sole discretion, to instruct
the Agents to suspend at any time, for any period of time or permanently
the solicitations of offers to purchase the Securities. Upon receipt of
notice from the Company of such instruction, the Agents will promptly
suspend solicitations of offers to purchase Securities from the Company
until such time as the Company has advised the Agents that such
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solicitation may be resumed. During the period of time that such
solicitations are suspended, the Company shall not be required to deliver
any opinions or letters in accordance with Sections 4(i) and (j) hereof;
provided, however, that the Agents shall not be required to resume
soliciting offers to purchase Securities until the Company has delivered,
or caused to be delivered, such opinions or letters as requested by the
Agents if any of the events described in Sections 4(i), (j) and (k) hereof
have occurred during the period of suspension.
The Company agrees to pay the Agents, as consideration for the sale
of any Securities resulting from a solicitation made by the Agents, a
commission in the form of a percentage of the principal amount of each
Security sold by the Company hereunder as set forth in Schedule A attached
hereto.
(b) Purchases as Principal. Each sale of Securities to an Agent as
principal shall be made in accordance with the terms of this Agreement and
a separate agreement which will provide for the sale of such Securities
to, and the purchase and re-offering thereof by, such Agent. Each such
separate agreement (which shall take the form of either (i) a written
agreement between such Agent and the Company or (ii) an oral agreement
between such Agent and the Company confirmed in writing, each such written
agreement or written confirmation may be substantially in the form of
Exhibit A attached hereto or may take the form of an exchange of any
standard form of written telecommunication between such Agent and the
Company) is herein referred to as a "Terms Agreement." Such Agent's
commitment to purchase Securities pursuant to any Terms Agreement shall be
deemed to have been made on the basis of the representations and warran-
ties of the Company herein contained and shall be subject to the terms and
conditions herein set forth. Each Terms Agreement shall specify the
principal amount of Securities to be purchased by such Agent pursuant
thereto, the interest rate applicable to such Securities, the maturity
date of such Securities, the price to be paid to the Company for such
Securities and the time and place of delivery of and payment for such
Securities (the "Settlement Date"). Such Terms Agreement shall also
specify any requirements for officers' certificates, opinions of counsel
and letters from the independent public accountants of the Company
pursuant to Section 4 hereof.
(c) Procedures. The Agents and the Company agree to perform the
respective duties and obligations specifically required to be performed in
the Medium Term Notes Administrative Procedures attached hereto as Annex A
(the "Procedures"), as amended from time to time. The Procedures may be
amended only by written agreement of the Company and the Agents.
(d) Delivery. The documents required to be delivered by Sections 4
and 6 hereof shall be delivered to the offices of the counsel for the
Agents (as such is set forth on Schedule A attached hereto), not later
than 6:00 p.m. New York City time on the date hereof, or at such other
time as you and the Company may agree upon in writing (the "Commencement
Date").
(e) Other Sales of Securities. The Company expressly reserves the
right to place the Securities itself privately or through a negotiated
underwritten transaction or an invitation to bid with one or more
underwriters or purchasers without notice to any Agent and without any
opportunity for any Agent to solicit offers for the purchase of the
Securities. In such event, no commission will be payable to the Agents.
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2. The Company's Representations. The Company makes the following
representations to each of the Agents, all of which representations shall
survive the issuance and delivery of the Securities:
(a) The Company is a corporation duly organized and validly existing
and in good standing under the laws of the State of New Jersey and duly
qualified to do business in the States of Florida, Maryland, New York and
North Carolina and the Commonwealth of Pennsylvania; the Company has full
power and authority to transact the business in which it is engaged, to
own and operate the properties used by it in such business, to execute and
deliver this Agreement and the Indenture and to perform its obligations
hereunder and thereunder; the conduct of the Company's business does not
make the qualification or licensing of the Company as a foreign
corporation necessary in any other state or jurisdiction where failure to
so qualify would materially adversely affect the transactions contemplated
by this Agreement, the Registration Statement or the Prospectus or have a
material adverse effect on the financial condition of the Company and its
subsidiaries taken as a whole; and the Company has the franchises
requisite to its business except for such franchises which the failure to
have would not have a material adverse effect on the financial condition
of the Company and its subsidiaries taken as a whole.
(b) The Company has duly authorized the execution, delivery and
performance of this Agreement, the Securities and the Indenture, and this
Agreement has been duly executed and delivered by the Company; as of the
time of the Closing, the Securities and the Indenture will have been duly
executed and delivered by the Company; the Indenture, when so executed and
delivered by the Company and duly authorized, executed and delivered by
the Trustee, will constitute, and the Securities, when so executed and
delivered by the Company and duly authenticated by the Trustee, will
constitute, the legal, valid and binding obligations of the Company
enforceable in accordance with their respective terms, except as the same
may be limited by bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium, or other laws relating to or affecting the
enforcement of creditors' rights generally and except to the extent that
the enforceability thereof may be limited by the application of general
principles of equity; the Securities, when duly authorized and delivered
by the Company and duly authenticated by the Trustee, will be entitled to
the benefit of the Indenture; all approvals or other actions by, or
filings with, any governmental authority required in connection with the
execution, delivery or performance by the Company of this Agreement, the
Indenture and the Securities have heretofore been obtained or taken other
than (i) in connection with any Prospectus Supplement and any Pricing
Supplement to be filed or transmitted for filing under the Act on or after
the date hereof, (ii) the required approvals, if any, by the Florida
Public Service Commission, the Public Service Commission of the State of
Maryland, the Board of Public Utilities of the State of New Jersey, the
Public Service Commission of the State of New York (the "NYPSC"), the
Utilities Commission of the State of North Carolina and the Public Utility
Commission of the Commonwealth of Pennsylvania (collectively, the "Utility
Commissions"), and (iii) the necessary qualification under the securities
or blue sky laws of the various jurisdictions in which the Securities are
being offered by the Agents; the Company has filed the required
applications, if any, for such required approvals by the Utility
Commissions (other than any filing for approval which may be required from
the NYPSC after the execution of any applicable Terms Agreement with
respect to (i) the terms of such applicable Terms Agreement, (ii) the
terms of the Securities and the sale thereof pursuant to any applicable
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Terms Agreement, (iii) the terms of the initial public offering of any
Securities pursuant to any applicable Terms Agreement and (iv) any other
similar or related matters) and, as to each such application, the Company
has no reason to believe that the approval of such application will not be
received by the Company; neither the making of nor the performance by the
Company under this Agreement or the Indenture will conflict with or
violate any statutory or constitutional provision or the Company's
Articles of Incorporation or By-Laws or any indenture, mortgage, deed of
trust, agreement or other instrument to which the Company or any of its
subsidiaries is a party or by which any of them or any of their properties
may be bound or any regulation, court order or consent decree to which the
Company or any of its subsidiaries is subject other than those conflicts
or violations which would not have a material adverse affect on the
general affairs or the financial position or the net assets of the Company
and its subsidiaries taken as a whole; the Company has duly authorized the
taking of any and all other actions necessary to carry out and give effect
to the transactions contemplated to be performed on its part by the
Registration Statement, the Prospectus, this Agreement and the Indenture;
the Company is not in material default under any obligation for borrowed
money; and no default will exist under the provisions of the Indenture
when executed and delivered.
(c) (i) Each part of the Registration Statement, when such part
became effective, did not contain any untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, (ii) the
Registration Statement, when it became effective, complied, and the
Prospectus as of the date hereof complies, and the Prospectus, when it
will be used to confirm sales of the Securities and at the Closing Date,
will comply in all material respects with the Act and the Trust Indenture
Act and the applicable rules and regulations of the SEC thereunder, (iii)
each preliminary prospectus filed as part of the registration statement as
originally filed or as part of any amendment thereto, or filed pursuant to
Rule 424 under the Act, complied when so filed in all material respects
with the Act and the rules and regulations of the SEC thereunder and (iv)
the Prospectus as of the date hereof does not contain and the Prospectus,
when it will be used to confirm sales of the Securities and at the
Settlement Date with respect to any applicable Terms Agreement, will not
contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading, except that
the representations set forth in this paragraph (c) do not apply (A) to
any statements or omissions in the Registration Statement or the
Prospectus in reliance upon and in conformity with information furnished
in writing to the Company by, or on behalf of, any Agent expressly for use
in the Registration Statement or the Prospectus or (B) to any statements
in or omissions from that part of the Registration Statement that shall
constitute the Statement of Eligibility and Qualification under the Trust
Indenture Act of the Trustee (the "Statement of Eligibility").
(d) The documents incorporated by reference in the Prospectus, when
they were filed with the SEC, complied as to form in all material respects
with the applicable requirements of the Act and the Exchange Act and the
rules and regulations of the SEC thereunder; and any further documents so
filed and incorporated by reference, when they are filed with the SEC will
comply as to form in all material respects with the applicable
requirements of the Act and the Exchange Act and the rules and regulations
of the SEC thereunder.
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(e) There has been no material adverse change in the business,
properties or financial condition of the Company and its subsidiaries
taken as a whole from that shown in the Registration Statement or the
Prospectus.
(f) Except as disclosed in the Registration Statement or the
Prospectus, there is no action, suit, proceeding, inquiry or
investigation, at law or in equity, before or by any court, public board
or body, pending or, to the knowledge of the Company, threatened against
the Company (or, to the knowledge of the Company, any meritorious basis
therefor) wherein an unfavorable decision, ruling or finding would have a
material adverse effect on the transactions contemplated by this
Agreement, the Registration Statement and the Prospectus, the validity or
enforceability of the Indenture or this Agreement, the corporate existence
or powers of the Company, the financial condition of the Company and its
subsidiaries taken as a whole, or the operation by the Company or its
subsidiaries of its properties.
3. The Agents' Representations. Each Agent makes the following
representations to the Company, all of which representations shall survive
the issuance and delivery of the Securities:
(a) The written information furnished to the Company by, or on
behalf of, each Agent for use in the Prospectus is correct as to such
Agent. Each Agent, in addition to other written information furnished to
the Company for use in the Prospectus, hereby agrees to furnish to the
Company correct written information with regard to the public offering, if
any, of Securities by such Agent pursuant to any applicable Terms
Agreement.
(b) Pursuant to any applicable Terms Agreement, such Agent may
lawfully purchase from the Company the Securities that it agrees to
purchase pursuant to such Terms Agreement.
4. Covenants of the Company. The Company hereby covenants and
agrees that it shall:
(a) As soon as reasonably practicable after the Company is advised
thereof, advise each of you and confirm the advice in writing of any
request made by the SEC for amendments to the Registration Statement or
the Prospectus or for additional information with respect thereto or of
the entry of a stop order suspending the effectiveness of the Registration
Statement or of the initiation or threat of any proceedings for that
purpose and, if such a stop order should be entered by the SEC, to make
every reasonable effort to obtain the lifting or removal thereof.
(b) Deliver to each of you, without charge, as soon as reasonably
practicable and from time to time thereafter during such period of time
after the effective date of this Agreement as the Agents are required by
law to deliver a prospectus, as many copies of the Prospectus (as
supplemented or amended if the Company shall have made any supplements or
amendments thereto, other than supplements or amendments relating solely
to securities other than the Securities) as the Agents may reasonably
request.
(c) Furnish to each of you a copy, certified by the Secretary or an
Assistant Secretary of the Company, of the Registration Statement as
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initially filed with the SEC and of all amendments thereto, other than
amendments relating solely to securities other than the Securities.
(d) As soon as reasonably practicable, to make generally available
to its security holders and each of you an earning statement or statements
of the Company and its subsidiaries which will satisfy the provisions of
Section 11(a) of the Act and Rule 158 of the rules and regulations of the
SEC promulgated under the Act.
(e) Use its reasonable best efforts to qualify the Securities for
offer and sale under the securities or "blue sky" laws of such
jurisdictions as the Agents may designate and itself to pay, or to
reimburse the Agents and their counsel for, reasonable filing fees and
actual out-of-pocket expenses in connection therewith in an amount not
exceeding $5,000 in the aggregate (including filing fees and expenses paid
and incurred prior to the date hereof), provided, however, that the
Company shall not be required to qualify as a foreign corporation or to
file a consent to service of process or to file annual reports or to
comply with any other requirements deemed by the Company to be unduly
burdensome.
(f) For such period of time after the effective date of this
Agreement as the Agents are required by law to deliver a prospectus, if
any event shall have occurred as a result of which it is necessary to
amend or supplement the Prospectus in order to make the statements
therein, in the light of the circumstances when the Prospectus is
delivered to a purchaser, not misleading, forthwith prepare and furnish,
at its own expense, to each of you and to dealers (whose names and
addresses are furnished to the Company by the Agents) to whom Securities
may have been sold by the Agents and, upon request, to any other dealers
making such request at such dealers' expense, copies of such amendments to
the Prospectus or supplemental information; in such case, the Company
promptly will notify the Agents to suspend solicitation of offers to
purchase Securities and, if so notified by the Company, the Agents
covenant and agree that they shall promptly suspend such solicitation and
cease using the Prospectus as then amended or supplemented; upon the
filing of an amendment or supplement to the Registration Statement or
Prospectus with the SEC or effectiveness of an amendment to the
Registration Statement, the Agents may resume the solicitation of offers
to purchase Securities hereunder.
(g) Pay the costs of preparing and reproducing or printing and
distributing this Agreement, the Indenture, the Securities, the
Registration Statement, the Prospectus (including the cost, if any, of
amending or supplementing and distributing the Registration Statement and
the Prospectus pursuant hereto) and the Blue Sky Memorandum; the fees of
rating agencies, if any; the fees and disbursements of accountants for the
Company; the fees and disbursements of the Trustee and counsel for the
Trustee, if any; the costs (including counsel fees not to exceed $5,000)
of qualifying the Securities for sale under the Blue Sky or other
securities laws of certain jurisdictions of the United States of America
and of preparing the Blue Sky Memorandum as set forth in Section 4(e)
hereof; and the reasonable fees and actual out-of-pocket expenses of
Winthrop, Stimson, Putnam & Roberts, as counsel to the Agents.
(h) Each request by the Company to solicit sales of Securities, each
acceptance by the Company of an offer for the purchase of Securities, and
each sale of Securities to an Agent pursuant to a Terms Agreement, shall
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be deemed to be an affirmation that the representations of the Company
contained in this Agreement are true and correct in all material respects
at the time of such request, acceptance or sale, as the case may be, and
an undertaking that such representations will be true and correct in all
material respects at the time of delivery to the purchaser or its agent,
or to an Agent, of the Securities relating to such request, acceptance or
sale, as the case may be, as though made at and as of each such time (and
it is understood that such representations shall relate to the
Registration Statement and the Prospectus as amended and supplemented to
each such time).
(i) Each time the Registration Statement or the Prospectus is
amended or supplemented (other than by an amendment or supplement (1)
providing solely for the specification of or a change in the interest
rates, maturity dates, the issuance prices or other similar terms of any
Securities sold pursuant hereto, (ii) incorporating by reference
information contained in a Current Report on Form 8-K filed by the Company
under the Exchange Act that is (A) filed solely under Item 5 of Form 8-K
and (B) not required to be filed to comply with Section 4(f) hereof, (iii)
a change related solely to securities other than the Securities or (iv) a
change deemed immaterial in the Agents' reasonable judgment, unless in the
case of clause (ii) above, in the reasonable judgment of any of you, such
information is of such a nature that a certificate of the Company should
be delivered), the Company will deliver, or cause to be delivered,
forthwith to each of you a certificate of the Company signed by the
Chairman of the Board, the President, any Vice President or the Treasurer
of the Company, dated the date of the effectiveness of such amendment or
the date of the filing of such supplement, as the case may be, in form and
substance reasonably satisfactory to each of you, to the effect that the
statements of the Company contained in the certificate referred to in
Section 6(i) hereof that was last furnished to the Agents (either pursuant
to Section 6(i) hereof or pursuant to this Section 4(i)) are true and
correct as though made at and as of such time (except that such statements
shall be deemed to relate to the Registration Statement and the Prospectus
as amended and supplemented to such time) or, in lieu of such certificate,
a certificate of substantially the same tenor as the certificate referred
to in Section 6(i) hereof relating to the Registration Statement and the
Prospectus as amended and supplemented to the time of delivery of such
certificate.
(j) Each time the Registration Statement or the Prospectus is
amended or supplemented (other than by an amendment or supplement (i)
providing solely for the specification of or a change in the interest
rates or maturity dates, the issuance prices or other similar terms of any
Securities sold pursuant hereto, (ii) incorporating by reference
information contained in a Current Report on Form 8-K filed by the Company
under the Exchange Act that is (A) filed solely under Item 5 of Form 8-K
and (B) not required to be filed to comply with Section 4(f) hereof, (iii)
a change related solely to securities other than the Securities or (iv) a
change deemed immaterial in the Agents' reasonable judgment, unless in the
case of clause (ii) above, in the reasonable judgment of any of you, such
information is of such a nature that a certificate of the Company shall be
delivered), the Company shall furnish, or cause to be furnished, forthwith
to you a written opinion of counsel to the Company (which may include
counsel employed by the Company), dated the date of the effectiveness of
such amendment or the date of the filing of such supplement, as the case
may be, in form and substance reasonably satisfactory to each of you, of
substantially the same tenor as the opinion referred to in Section 6(c)
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hereof (except that such statements shall be deemed to relate to the
Registration Statement and the Prospectus as amended and supplemented to
the date of such opinion) or, in lieu of such opinion, such counsel may
furnish to you a letter to the effect that you may rely on such last
opinion of such counsel to the same extent as though it were dated the
date of such letter authorizing reliance on such last opinion (except that
such statements in such last opinion letter shall be deemed to relate to
the Registration Statement and the Prospectus as amended and supplemented
to the date of such letter authorizing such reliance).
(k) If requested, each time that the Registration Statement or the
Prospectus is amended or supplemented to include or incorporate amended or
supplemented financial information, the Company shall cause its
independent public accountants forthwith to furnish each of you with a
letter, dated the date of the effectiveness of such amendment or the date
of the filing of such supplement, as the case may be, in form and
substance reasonably satisfactory to you, of substantially the same tenor
as the letter referred to in Section 6(f), with regard to the amended or
supplemental financial information included or incorporated by reference
in the Registration Statement and the Prospectus, as amended or
supplemented to the date of such letter; provided, however, that if the
Registration Statement or the Prospectus is amended or supplemented solely
to include or incorporate by reference financial information as of and for
a fiscal quarter, the Company's independent public accountants may limit
the scope of such letter, which shall be satisfactory in form to each of
you, to the unaudited financial statements, the related "Management's
Discussion and Analysis of Results of Operations and Financial Condition"
and any other information of an accounting, financial or statistical
nature included in such amendment or supplement, unless, in the reasonable
judgment of any of you, such letter should cover other information or
changes in specified financial statement line items.
(l) Between the date of any applicable Terms Agreement and the
Settlement Date with respect to such Terms Agreement, the Company will
not, without the prior consent of the Agent who is a party to such Terms
Agreement, offer, sell, contract to sell or otherwise dispose of any debt
securities of the Company substantially similar to the Securities being
sold to such Agent pursuant to such Terms Agreement (other than (i) the
Securities that are to be sold pursuant to such Terms Agreement, (ii) debt
securities previously agreed to be sold by the Company and (iii)
commercial paper issued in the ordinary course of the Company's business),
except as may otherwise be provided in this Agreement or such Terms
Agreement.
5. Reimbursement of the Agents' Expenses. The Company shall
reimburse each of you on a monthly basis for all actual out-of-pocket
expenses (including, without limitation, advertising expenses) incurred
with the prior approval of the Company in connection with this Agreement.
6. Conditions of the Agents' Obligations. The obligations of each
of you to use your respective reasonable best efforts to solicit offers to
purchase the Securities as agent of the Company and to purchase Securities
as principal pursuant to any applicable Terms Agreement shall be subject
to the fulfillment of the following conditions at or before the applicable
date:
(a) The Company's representations contained herein shall be true in
all material respects on the date hereof and such representations, and the
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statements of the Company's officers made in each certificate furnished
pursuant to the provisions hereof, shall be true in all material respects
at the time of such request for solicitation of offers to purchase the
Securities or on and as of the Settlement Date with respect to any
applicable Terms Agreement.
(b) At the Commencement Date, each of you shall receive an opinion
of Kaye, Scholer, Fierman, Hays & Handler, Special Counsel to the Company,
addressed to each of you, dated the Commencement Date and in form and
substance reasonably satisfactory to each of you, substantially stating in
effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of
New Jersey; the Company has full corporate power and authority to transact
the business in which it is engaged, to own and operate the properties
used by it in such business, to undertake the transactions contemplated by
the Registration Statement, to execute and deliver this Agreement, the
Indenture and the Securities and to perform its obligations hereunder and
thereunder.
(ii) This Agreement has been duly authorized, executed and
delivered by the Company.
(iii) The Indenture has been duly authorized, executed and
delivered by the Company; the Indenture has been duly qualified under the
Trust Indenture Act; the Securities, upon due authorization, execution and
delivery thereof by the Company and due authentication thereof by the
Trustee, and the Indenture, assuming due authorization, execution and
delivery and delivery thereof by the Trustee, will be the legal, valid and
binding obligations of the Company; and the Securities, upon due
authorization, execution and delivery by the Company and due
authentication thereof by the Trustee, will be entitled to the benefit of
the Indenture.
(iv) The making of and the performance by the Company under this
Agreement, the Indenture and the Securities and the carrying out by the
Company of the terms hereof and thereof do not violate or conflict with
any statutory or constitutional provision applicable to the Company or any
provision of the Company's Articles of Incorporation or By-Laws or any
indenture, mortgage, deed of trust, agreement or other instrument filed as
an exhibit to the Registration Statement.
(v) The statements contained in the Registration Statement and
the Prospectus under the captions "Description of Debt Securities" and
["Supplemental Description of the Notes," except under the subheading
"Book Entry Notes,"] insofar as they relate to provisions of the
Securities and the Indenture, are accurate in all material respects.
(vi) The Registration Statement, when it became effective, and
the Prospectus, when it was filed with, or transmitted for filing to, the
SEC pursuant to Rule 424, each appeared on its face to be responsive in
all material respects to the applicable requirements of the Act and the
Trust Indenture Act and the rules and regulations promulgated thereunder
by the SEC (except as to the financial statements and schedules and other
financial, engineering and statistical data contained in the Registration
Statement, the Prospectus or documents incorporated in the Prospectus as
to which such counsel need express no opinion).
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(vii) The Registration Statement has become effective under
the Act, and, to the best of such counsel's knowledge, no stop order
suspending the effectiveness of the Registration Statement has been issued
under the Act and no proceedings for that purpose have been instituted or
threatened under Sections 8(d) or 8(e) of the Act by the SEC.
In rendering their opinion, such counsel may rely, as to matters of
New Jersey law, on the opinion of Mary Patricia Keefe, Esq., Group Vice
President and General Counsel of Elizabethtown Gas Company, a Division of
the Company ("EGC"), referred to in Section 6(c) hereof, dated the
Commencement Date and addressed to each of you, and, as to factual
matters, on certificates of public officials and officers of the Company,
provided that copies of such opinion and certificates shall be furnished
to each of you and, provided further, that, in the case of any such
reliance, such counsel shall state that they believe that they and each of
you are justified in relying on such opinion and certificates for such
matters.
In addition, such counsel shall state that such counsel has
participated in conferences with officers and other representatives of the
Company, representatives of Winthrop, Stimson, Putnam & Roberts,
representatives of the independent public accountants of the Company,
representatives of the Agents and Mary Patricia Keefe, Esq., Group Vice
President and General Counsel of EGC, at which the contents of the
Registration Statement and the Prospectus were discussed and, although in
rendering the opinion expressed in subparagraph (vi) above and the other
opinions expressed in such opinion letter, such counsel is not passing
upon and does not assume responsibility for the accuracy, completeness or
fairness of the statements contained in the Registration Statement or the
Prospectus (except as and to the extent stated in subparagraph (v) above),
on the basis of the foregoing, nothing has come to the attention of such
counsel that leads them to believe that the Registration Statement or any
amendment thereto at the time such Registration Statement or amendment
became effective contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading and, at the time
the Prospectus was filed with the SEC pursuant to Rule 424, the Prospectus
contained or contains any untrue statement of a material fact or omitted
or omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading (it being understood that such counsel need
express no opinion with respect to the financial statements and schedules
and other financial, engineering and statistical data included or
incorporated by reference in the Registration Statement or the Prospectus
and that part of the Registration Statement that constitutes the Statement
of Eligibility).
(c) At the Commencement Date, each of you shall receive an opinion
of Mary Patricia Keefe, Esq., Group Vice President and General Counsel of
EGC, addressed to each of you, dated the Commencement Date and in form and
substance reasonably satisfactory to each of you, substantially stating in
effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of
New Jersey and is duly qualified to do business in the States of Florida,
Maryland, New York and North Carolina and the Commonwealth of
Pennsylvania; the Company has full power and authority to transact the
11
business in which it is engaged, to own and operate the properties used by
it in such business, to undertake the transactions contemplated by the
Registration Statement, to execute and deliver this Agreement, the
Securities and the Indenture and to perform its obligations hereunder and
thereunder; the conduct of the Company's business does not make the
qualification or licensing of the Company as a foreign corporation
necessary in any other state or jurisdiction where failure so to qualify
would adversely affect the transactions contemplated by this Agreement or
the Registration Statement or have a material adverse effect on the
financial condition of the Company; and the Company has the franchises
requisite to its business except for such franchises which would not have
a material adverse effect on the financial condition of the Company and
its subsidiaries taken as a whole.
(ii) The Indenture has been duly authorized, executed and
delivered by the Company; the Securities, upon due authorization,
execution and delivery thereof by the Company and due authentication
thereof by the Trustee, and the Indenture, assuming due authorization,
execution and delivery thereof by the Trustee, will be the legal, valid
and binding obligations of the Company; and the Securities, upon due
authorization, execution and delivery thereof by the Company and due
authentication thereof by the Trustee, will be entitled to the benefit of
the Indenture.
(iii) This Agreement and the Terms Agreement, if applicable,
have been duly authorized, executed and delivered by the Company.
(iv) The making of and the performance by the Company under the
Indenture, the Securities, this Agreement and the Terms Agreement, if
applicable, and the carrying out by the Company of the terms thereof and
hereof do not violate or conflict with any statutory or constitutional
provision applicable to the Company or any provision of the Company's
Articles of Incorporation or By-Laws or any indenture, mortgage, deed of
trust, agreement or other instrument to which the Company or any of its
subsidiaries is a party or by which any of them or any of their properties
may be bound or any regulation, court order or consent decree to which the
Company or any of its subsidiaries is subject other than those conflicts
or violations which would not have a material adverse effect on the
general affairs or the financial position or the net assets of the Company
and its subsidiaries taken as a whole.
(v) There is no action, suit, proceeding, inquiry or
investigation, at law or in equity, before or by any court, public board
or body, pending or, to her knowledge, threatened against the Company (or,
to her knowledge, any meritorious basis therefor) wherein an unfavorable
decision, ruling or finding would have a material adverse effect on the
transactions contemplated by this Agreement, any applicable Terms
Agreement, and the Registration Statement, the validity or enforceability
of this Agreement, the Securities, the Indenture or any applicable Terms
Agreement, the corporate existence or powers of the Company, the business,
properties or financial condition of the Company and its subsidiaries
taken as a whole or the operation by the Company or its subsidiaries of
its properties.
(vi) The Board of Public Utilities of the State of New Jersey
has issued appropriate orders with respect to the execution, delivery and
performance by the Company of this Agreement, any applicable Terms
Agreement, the Indenture and the Securities, and no other regulatory
12
approval or consent is required to be obtained, nor is any filing with any
governmental entity required to be made under the laws of the State of New
Jersey or under federal law by the Company in connection with the
execution, delivery and performance of this Agreement, any applicable
Terms Agreement, the Indenture or the Securities or the consummation of
the transactions contemplated hereby or thereby other than in connection
with any Prospectus Supplement and any Pricing Supplement to be filed or
transmitted for filing under the Act after the date hereof; provided,
however, that such counsel shall not be required to express an opinion
with respect to the necessity for any (a) action under the laws of the
States of Florida, Maryland, New York or North Carolina or the
Commonwealth of Pennsylvania, as to which matters each of you are relying
upon the opinions, each dated the Commencement Date and addressed to each
of you, of McWhirter, Reeves, McGlothlin, Davidson & Bakas; Piper &
Marbury; Cullen & Dykman; Brooks, Pierce, McLendon, Humphrey & Leonard;
and Malatesta, Hawke & McKeon, respectively (or in the case of any of the
foregoing counsel, other counsel reasonably acceptable to each of you),
and (b) qualification or other action under the Blue Sky or securities
laws of any jurisdiction.
(vii) The documents incorporated by reference in the
Registration Statement, when they were filed with the SEC, complied as to
form in all material respects with the applicable requirements of the Act
and the Exchange Act and the rules and regulations of the SEC thereunder.
(viii) The Registration Statement has become effective under
the Act and, to the best of such counsel's knowledge, no stop order
suspending the effectiveness of the Registration Statement has been issued
under the Act and no proceedings for that purpose have been instituted or
threatened under Sections 8(d) or 8(e) of the Act by the SEC.
In rendering her opinion, such counsel may rely, as to matters
of Florida, Maryland, New York, North Carolina and Pennsylvania law, on
the opinions of McWhirter, Reeves, McGlothlin, Davidson & Bakas; Piper &
Marbury; Cullen & Dykman; Brooks, Pierce, McLendon, Humphrey & Leonard;
and Malatesta, Hawke & McKeon, respectively (or in the case of any of the
foregoing counsel, other counsel reasonably acceptable to each of you),
each such opinion dated the Commencement Date and addressed to each of
you, and as to factual matters on certificates of public officials and
officers of the Company, provided that copies of such opinions and
certificates shall be furnished to each of you and, provided further,
that, in the case of any such reliance, she shall state that she believes
that she and each of you are justified in relying on such opinions and
certificates for such matters.
In addition, such counsel shall state that such counsel has
participated in conferences with officers and other representatives of the
Company, representatives of the independent public accountants of the
Company, representatives of the Agents, representatives of Kaye, Scholer,
Fierman, Hays & Handler, special counsel for the Company, and
representatives of Winthrop, Stimson, Putnam & Roberts at which the
contents of the Registration Statement and the Prospectus were discussed
and, although such counsel is not passing upon and does not assume
responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement or the Prospectus, on
the basis of the foregoing nothing has come to the attention of such
counsel that causes her to believe that the Registration Statement or any
amendment thereto at the time such Registration Statement or amendment
13
became effective contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading and, at the time
the Prospectus was filed with the SEC pursuant to Rule 424 and at the date
of such opinion, the Prospectus contained or contains any untrue statement
of a material fact or omitted or omits to state a material fact necessary
in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading (it being understood that such
counsel need express no opinion with respect to the financial statements
and schedules and other financial, engineering and statistical data
included or incorporated by reference in the Registration Statement or the
Prospectus and that part of the Registration Statement that constitutes
the Statement of Eligibility).
(d) At the Commencement Date, each of you shall receive an
opinion of Winthrop, Stimson, Putnam & Roberts, addressed to each of you,
dated the Commencement Date and in form and substance reasonably
satisfactory to each of you, substantially stating in effect that:
(i) The Registration Statement has become effective under
the Act, and, to the best of such counsel's knowledge, no stop order
suspending the effectiveness of the Registration Statement has been issued
under the Act and no proceedings for that purpose have been instituted or
threatened under Sections 8(d) or 8(e) of the Act by the SEC.
(ii) The descriptions and summaries of the Securities, this
Agreement and the Indenture contained in the Registration Statement and
the Prospectus under the captions "Description of Debt Securities," "Plan
of Distribution" and ["Supplemental Description of the Notes," except
under the subheading "Book Entry Notes,"] are accurate and fairly present
the information purported to be shown with respect thereto.
(iii) This Agreement has been duly authorized, executed
and delivered by the Company.
(iv) The Indenture has been duly authorized, executed and
delivered by the Company; the Indenture has been qualified under the Trust
Indenture Act; the Securities, upon due authorization, execution and
delivery thereof by the Company and due authentication thereof by the
Trustee, and the Indenture, assuming due authorization, execution and
delivery thereof by the Trustee, will be the legal, valid and binding
obligations of the Company enforceable in accordance with their respective
terms, except as limited by (a) bankruptcy, insolvency, fraudulent
conveyance, reorganization or other similar laws affecting creditors'
rights generally and (b) general principles of equity (regardless of
whether enforceability is considered in a proceeding in equity or at law);
and the Securities, upon due authorization, execution and delivery thereof
by the Company and due authentication thereof by the Trustee, will be
entitled to the benefit of the Indenture.
(v) The Registration Statement, at the time it became
effective, and the Prospectus, at the time it was filed with, or
transmitted for filing to, the SEC (except in each case as to the
financial statements and schedules and other financial, engineering and
statistical data contained therein, as to which such counsel need express
no opinion), complied as to form in all material respects with the
requirements of the Act and the applicable rules and regulations of the
SEC thereunder.
14
In passing upon the forms of the Registration Statement and the
Prospectus, such counsel may necessarily assume the correctness and
completeness of the statements made and information included therein by
the Company and take no responsibility therefor, except as set forth in
subparagraph (ii) above and except insofar as such statements and
information relate to such counsel. In addition, such counsel shall state
that, in the course of the preparation of the Registration Statement and
the Prospectus, such counsel has had conferences with certain of the
officers and employees of the Company, with the Agents, with Kaye,
Scholer, Fierman, Hays & Handler, special counsel for the Company, with
the independent public accountants for the Company and with Mary Patricia
Keefe, Esq., Group Vice President and General Counsel of EGC, and reviewed
the documents listed in the Registration Statement as being incorporated
therein by reference and, on the basis of the foregoing, nothing has come
to the attention of such counsel that leads them to believe that the
Registration Statement or any amendment thereto at the time such
Registration Statement or amendment became effective contained an untrue
statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading and, at the time the Prospectus was filed with the SEC pursuant
to Rule 424, the Prospectus contained or contains any untrue statement of
a material fact or omitted or omits to state a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading (it being understood that such
counsel need express no opinion with respect to the financial statements
and schedules and other financial, engineering and statistical data
included or incorporated by reference in the Registration Statement or the
Prospectus and that part of the Registration Statement that constitutes
the Statement of Eligibility).
In rendering their opinion, such counsel may rely, as to matters
of New Jersey law, on the opinion of Mary Patricia Keefe, Esq., Group Vice
President and General Counsel of EGC, referred to in Section 6(c) hereof,
dated the Commencement Date and addressed to each of you, and, as to
factual matters, on certificates of public officials and officers of the
Company, provided that copies of such opinion and certificates shall be
furnished to each of you and, provided further, that, in the case of any
such reliance, such counsel shall state that they believe that they and
each of you are justified in relying on such opinion and certificates for
such matters.
(e) At the Commencement Date, each of you shall receive an opinion
of each of McWhirter, Reeves, McGlothlin, Davidson & Bakas; Piper &
Marbury; Cullen & Dykman; Brooks, Pierce, McLendon, Humphrey & Leonard;
and Malatesta, Hawke & McKeon, respectively (or in the case of any of the
foregoing counsel, other counsel reasonably acceptable to the Agents),
addressed to each of you, each dated the Commencement Date and in form and
substance reasonably satisfactory to each of you, substantially to the
effect set forth in Exhibits B-1 through B-5 attached hereto.
(f) At the Commencement Date, each of you shall receive a letter or
letters of the Company's independent public accountants, addressed to each
of you, dated the Commencement Date and in form and substance reasonably
satisfactory to each of you, substantially to the effect set forth in
Exhibit C attached hereto if each of you provides the Company and such
independent public accountants, a representation letter substantially in
the form of Exhibit D attached hereto, or covering the matters set forth
15
in Exhibit E attached hereto if each of you do not provide such
representation letter.
(g) No stop order with respect to the effectiveness of the
Registration Statement shall have been issued under the Act and no
proceedings for that purpose shall have been instituted or threatened
under Sections 8(d) or 8(e) of the Act by the SEC.
(h) Between the time of the execution of this Agreement and each
Settlement Date, no materially adverse change in the general affairs or in
the financial position or net assets of the Company and its subsidiaries,
taken as a whole, from that shown in the Registration Statement or the
Prospectus has occurred, other than changes disclosed by or contemplated
in the Registration Statement or the Prospectus.
(i) The Company shall, at the Commencement Date, deliver to each of
you a certificate of its Chairman of the Board, its President, any of its
Vice Presidents or its Treasurer to the effect that the conditions set
forth in paragraphs (a), (g), (h) and (k) of this Section 6 have been met,
that they are true in all material respects as of such date and attaching
true and complete copies of each order required from the Utility
Commissions in connection with the issuance of the Securities.
(j) The Company shall have furnished to each of you and your counsel
such other documents and certificates as to the accuracy and completeness
of any statement in the Registration Statement and the Prospectus as of
the Commencement Date as each of you or such counsel may reasonably
request.
(k) The Company shall have performed, in all material respects, such
of its obligations under this Agreement that are to be performed at or
before the Commencement Date or the Settlement Date with respect to any
applicable Terms Agreement, if called for by such Terms Agreement.
(l) At the Settlement Date with respect to any applicable Terms
Agreement, the Securities shall have been duly authorized, executed and
authenticated in accordance with the provisions of the Indenture and any
applicable orders of the Utility Commissions.
(m) At the Settlement Date with respect to any applicable Terms
Agreement, the Indenture shall be in full force and effect, shall have
become and shall be qualified under the Trust Indenture Act and shall not
have been amended, modified, or supplemented subsequent to the date of
such Terms Agreement except as may have been disclosed in the Prospectus
or agreed to in writing by the Agents.
(n) With respect to any applicable Terms Agreement, the Registration
Statement shall have become effective on or before the Settlement Date
with respect to such Terms Agreement and shall be effective on the
Settlement Date with respect to such Terms Agreement. The Prospectus
shall have been filed with the SEC pursuant to Rule 424 under the Act on
or before the date required for such filing pursuant to such Rule.
16
[Provision applicable only if debt service insurance option elected
by the Company.]
[(o) At the Settlement Date with respect to any applicable Terms
Agreement, in the event that a debt service insurance policy is obtained,
an effective debt service insurance policy.]
7. Conditions of the Company's Obligations. The obligation of the
Company to sell and deliver the Securities is subject to the fulfillment
of the following conditions at the Settlement Date with respect to any
applicable Terms Agreement:
(a) No stop order with respect to the effectiveness of the
Registration Statement shall have been issued under the Act and no
proceedings for that purpose shall have been instituted or threatened
under Sections 8(d) or 8(e) of the Act by the SEC.
(b) Concurrently with or prior to the delivery of the Securities to
you, the Company shall receive the full purchase price to be paid for such
Securities.
(c) There shall be in full force and effect authorizations of each
of the Utility Commissions that are required with respect to the
participation of the Company in the transactions contemplated herein and
in the Registration Statement or the Prospectus, and none of such
authorizations shall contain a provision unacceptable to the Company, it
being agreed that all such authorizations existing on the date of this
Agreement do not contain any such unacceptable provisions other than any
provision that the Company has informed the Agents, on or prior to the
date hereof, is unacceptable to the Company.
(d) The Agents' representations hereunder shall be true in all
material respects on the date hereof, and such representations shall be
true in all material respects on and as of the Settlement Date with
respect to any applicable Terms Agreement.
In case any of the conditions specified in this Section 7 shall not
have been fulfilled, the applicable Terms Agreement and the Company's
obligation to participate in the transactions contemplated herein may be
terminated by the Company upon mailing or delivering written notice
thereof to any Agents. Any such termination shall be without liability of
any party to any other party except to the extent provided in Sections 5
and 9 hereof.
8. Termination. This Agreement may be terminated at any time by
the Company or by any Agent on behalf of such Agent upon the giving of
written notice of such termination to the other parties hereto. Any Terms
Agreement may be terminated, prior to the Settlement Date relating to such
Terms Agreement, by any Agent who is a party thereto if, at any time prior
to such Settlement Date, any of the following occurs:
(a) trading in securities listed on the New York Stock Exchange, the
American Stock Exchange or the National Association of Securities Dealers
Automated Quotation system ("NASDAQ") shall have been generally suspended,
or trading in Company securities on any exchange or NASDAQ on which such
securities are traded shall have been suspended, or minimum prices shall
have been generally established on the New York Stock Exchange, the
American Stock Exchange or NASDAQ, or a general banking moratorium shall
17
have been declared either by the United States of America or New York
State authorities, or the United States of America shall have declared war
in accordance with its constitutional processes or there shall have
occurred any material outbreak or escalation of hostilities or other
national or international calamity or crisis of such magnitude in its
effect on the financial markets of the United States of America as, in
such Agent's reasonable judgment, to make it impracticable to market the
Securities;
(b) any event or condition which, in the reasonable judgment of such
Agent, renders untrue or incorrect, in any material respect as of the time
to which the same purports to relate, the information, including, without
limitation, the financial statements, contained or incorporated by
reference in the Registration Statement or the Prospectus, or which
requires that information not reflected in such Registration Statement or
the Prospectus should be reflected therein in order to make the statements
and information contained therein not misleading in any material respect
as of such time; or
(c) a downgrading or withdrawal of any rating of the Securities by a
nationally recognized statistical rating organization which, in the
reasonable judgment of the Agents, may substantially impair the
marketability or reduce the market price of the Securities.
If any Agent elects to terminate this Agreement or any applicable
Terms Agreements to which such Agent is a party as provided in this
Section 8, the Company and each other party hereto shall be notified
promptly in writing by letter or telegram.
If the sale of any Securities pursuant to any Terms Agreement is not
consummated by an Agent who is a party to such Terms Agreement for any
reason permitted under this Agreement or any applicable Terms Agreement or
if such sale is not consummated because the Company shall be unable to
comply with any of the terms of this Agreement, the Company shall not be
under any obligation or liability under this Agreement (except to the
extent provided in Sections 4(g), 5 and 9 hereof) and the Agents shall be
under no obligation or liability to the Company under this Agreement or
any applicable Terms Agreement (except to the extent provided in Section 9
hereof) or to one another hereunder.
9. Indemnity by the Company and the Agents.
(a) The Company agrees to indemnify, defend and hold harmless each
Agent and any person who controls any Agent within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act from and against
any loss, expense, liability or claim (including, without limitation, the
reasonable cost of investigation) which, jointly or severally, such Agent
or such controlling person may incur under the Act, the Exchange Act or
otherwise insofar as such loss, expense, liability or claim arises out of
or is based upon any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or the Prospectus or
any amendment or supplement thereto, or arises out of or is based upon any
omission or alleged omission to state a material fact required to be
stated therein or necessary to make the statements made therein, in the
light of the circumstances under which they were made, not misleading,
except insofar as any such loss, expense, liability or claim arises out of
or is based upon any untrue statement or alleged untrue statement of a
material fact contained in and in conformity with information furnished in
18
writing to the Company by, or on behalf of, any Agent expressly for use
with reference to such Agent in the Registration Statement or the
Prospectus or any amendment or supplement thereto, or arises out of or is
based upon any omission or alleged omission to state a material fact in
connection with such information necessary to make such information not
misleading, provided, however, that the indemnity agreement contained in
this Section 9(a) with respect to the Registration Statement or the
Prospectus shall not inure to the benefit of any Agent (or to the benefit
of any person controlling such Agent) from whom the person asserting any
such loss, expense, liability or claim purchased the Securities which are
the subject thereof if the Prospectus or any amended Prospectus corrected
any such alleged untrue statement or omission and if such Agent failed to
send or give a copy of the Prospectus or any amended Prospectus, as the
case may be, to such person at or prior to the written confirmation of the
sale of such Securities to such person.
If any action is brought against an Agent or a controlling
person of an Agent in respect of which indemnity may be sought against the
Company pursuant to the foregoing paragraph, such Agent or such
controlling person, as the case may be, shall promptly notify the Company
in writing of the institution of such action and the Company shall assume
the defense of such action, including, without limitation, the employment
of counsel (which counsel shall be reasonably satisfactory to such person
or entity, as the case may be) and payment of reasonable expenses related
thereto. Such Agent and such controlling person shall have the right to
employ its or their own counsel in any such case, but the fees and
expenses of such counsel shall be at the expense of such Agent or such
controlling person, as the case may be, unless the employment of such
counsel shall have been authorized in writing by the Company in connection
with the defense of such action or the Company shall not have employed
counsel to have charge of the defense of such action or such indemnified
party or parties shall have reasonably concluded that there may be
defenses available to it or them which are different from or additional to
those available to the Company (in which case the Company shall not have
the right to direct the defense of such action on behalf of the
indemnified party or parties), in any of which events such reasonable fees
and expenses shall be borne by the Company (it being understood, however,
that the Company shall not be liable for the expenses of more than one
separate counsel in any one action or series of related actions in the
same jurisdiction representing the indemnified parties who are parties to
such action). Anything in this paragraph to the contrary notwithstanding,
the Company shall not be liable for any settlement of any claim or action
effected without its written consent, which consent shall not be
unreasonably withheld.
(b) Each Agent severally agrees to indemnify, defend and hold
harmless the Company, each of its directors and officers and any person
who controls the Company within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act from and against any loss, expense,
liability or claim (including, without limitation, the reasonable cost of
investigation) which, jointly or severally, the Company or any such
director, officer or controlling person may incur under the Act, the
Exchange Act or otherwise insofar as such loss, expense, liability or
claim arises out of or is based upon any untrue statement or alleged
untrue statement of a material fact contained in and in conformity with
information furnished in writing to the Company by, or on behalf of, such
Agent expressly for use with reference to such Agent in the Registration
Statement or the Prospectus or any amendment or supplement thereto, or
19
arises out of or is based upon any omission or alleged omission to state a
material fact in connection with such written information necessary to
make such written information, in the light of the circumstances under
which such written information is used, not misleading.
If any action is brought against the Company or any director,
officer or controlling person of the Company in respect of which indemnity
may be sought against any Agent pursuant to the foregoing paragraph, the
Company or any such director, officer or controlling person shall promptly
notify such Agent in writing of the institution of such action and such
Agent shall assume the defense of such action, including, without
limitation, the employment of counsel (which counsel shall be reasonably
satisfactory to such person or entity, as the case may be) and payment of
reasonable expenses related thereto. The Company and such director,
officer and controlling person shall have the right to employ its or their
own counsel in any such case, but the fees and expenses of such counsel
shall be at the expense of the Company or such person, as the case may be,
unless the employment of such counsel shall have been authorized in
writing by such Agent in connection with the defense of such action or
such Agent shall not have employed counsel to have charge of the defense
of such action or such indemnified party or parties shall have reasonably
concluded that there may be defenses available to it or them which are
different from or additional to those available to such Agent (in which
case such Agent shall not have the right to direct the defense of such
action on behalf of the indemnified party or parties), in any of which
events such reasonable fees and expenses shall be borne by such Agent (it
being understood, however, that such Agent shall not be liable for the
expenses of more than one separate counsel in any one action or series of
related actions in the same jurisdiction representing the indemnified
parties who are parties to such action). Anything in this paragraph to
the contrary notwithstanding, no Agent shall be liable for any settlement
of any claim or action effected without the written consent of such Agent,
which consent shall not be unreasonably withheld.
(c) If the indemnification provided in this Section 9 is unavailable
to an indemnified party under paragraphs (a) and (b) of this Section 9 in
respect of any losses, expenses, liabilities or claims referred to
therein, then each applicable indemnifying party, in lieu of indemnifying
such indemnified party, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, expenses, liabilities
or claims (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and the Agents on the
other hand from the offering of the Securities or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company
on the one hand and of the Agents on the other in connection with the
statements or omissions that resulted in such losses, damages, expenses,
liabilities or claims, as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one
hand and the Agents on the other shall be deemed to be in the same
proportion as the total proceeds from the offering (net of underwriting
discounts, if acting as principal, and commissions, if acting as an agent,
but before deducting expenses) received by the Company bear to the total
underwriting discounts, if acting as a principal, and commissions, if
acting as an agent, received by the Agents. The relative fault of the
Company on the one hand and of the Agents on the other shall be determined
by reference to, among other things, whether the untrue statement or
20
alleged untrue statement of a material fact or omission or alleged
omission relates to information supplied by the Company or by the Agents,
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The amount
paid or payable by a party as a result of the losses, expenses,
liabilities and claims referred to above shall be deemed to include any
legal or other fees or expenses reasonably incurred by such party in
connection with investigating or defending any claim or action.
(d) The Company and the Agents agree that it would not be just and
equitable if contribution pursuant to this Section 9 were determined by
pro rata allocation (even if the Agents were treated as one entity for
such purpose) or by any other method of allocation that does not take
account of the equitable considerations referred to in paragraph (c) of
this Section 9. Notwithstanding the provisions of this Section 9, no
Agent shall be required to contribute any amount in excess of the amount
by which the total price at which the Securities purchased by it and
distributed to the public were offered to the public, if acting as a
principal, or commissions received from the Company, if acting as an
agent, exceeds the amount of any damages which such Agent has otherwise
been required to pay by reason of such untrue statement or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation. The Agents'
obligations to contribute pursuant to this Section 9 are several and not
joint.
(e) The indemnity and contribution agreements contained in this
Section 9 and the covenants and representations of the Company and the
Agents contained in this Agreement shall remain in full force and effect
regardless of any investigation made by, or on behalf of, any Agent, or
any person who controls any Agent within the meaning of Section 15 of the
Act, or by, or on behalf of, the Company, each of its directors, officers
or any person who controls the Company within the meaning of Section 15 of
the Act, and shall survive any termination of this Agreement or the
issuance and delivery of the Securities. The Company and each Agent agree
promptly to notify the others of the commencement of any litigation or
proceeding against it or any person who controls it within the meaning of
Section 15 of the Act and, in the case of the Company, against any of its
officers and directors, in connection with the issuance and sale of the
Securities, or in connection with the Registration Statement, the
Prospectus or any amendment or supplement thereto.
10. Position of the Agent. In soliciting offers to purchase the
Securities, you are acting solely as agent for the Company and not as
principal. You shall make reasonable commercial efforts to assist the
Company in obtaining performance by each purchaser whose offer to purchase
Securities has been solicited by an Agent and accepted by the Company, but
no Agent shall have any liability to the Company in the event any such
purchase is not consummated for any reason.
11. Parties at Interest. The agreement herein set forth has been
and is made solely for the benefit of the Agents, the Company and the
controlling persons, directors and officers referred to in Section 9
hereof, and their respective successors, assigns, executors and
administrators. No other person, partnership, association, corporation or
other entity (including, without limitation, a purchaser, as such
21
purchaser, from one or more of the Agents) shall acquire or have any right
under or by virtue of this Agreement.
12. Notices. Except as otherwise herein provided, all statements,
requests, notices and agreements shall be in writing or by telegram and,
if to the Agents, shall be sufficient in all respects if delivered or sent
to the Agents at the address set forth in Schedule A attached hereto and,
if to the Company, shall be sufficient in all respects if delivered or
sent to the Company at the offices of the Company at 550 Route 202-206,
P.O. Box 760, Bedminster, New Jersey 07921-0760, Attention: Corporate
Secretary.
13. Counterparts. This Agreement may be signed by the parties in
counterparts which together shall constitute one and the same agreement
among the parties.
14. Construction. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York without
giving effect to any conflict of law provisions thereof. The section
headings in this Agreement have been inserted as a matter of convenience
of reference and are not a part of this Agreement.
If the foregoing correctly sets forth the understanding between the
Company and you, please so indicate in the space provided below for the
purpose, whereupon this letter and your acceptance shall constitute a
binding agreement between the Company and the Agents, severally.
Very truly yours,
NUI CORPORATION
By:
Name:
Title
Accepted and agreed to as of the
date first above written.
[AGENT]
By:
Name:
Title:
[AGENT]
By:
22
Name:
Title:
[AGENT]
By:
Name:
Title:
23
SCHEDULE A
Registration Statement No.:
Effective Date of Registration Statement:
Names of Agents:
Addresses for Notice:
Counsel for Agents:
Address of Counsel for Agents:
The Company agrees to pay the Agents an aggregate commission equal to the
following percentage of the principal amount of each Security sold by such
Agent:
Commission
(Percentage of
Aggregate
Principal
Range of Security Amount of
Maturities Securities Sold
24
More than: 9 months to less than 12 .125%
months .150%
12 months to less than 18 .200%
months .250%
18 months to less than 24 .350%
months .450%
24 months to less than 36 .500%
months .550%
36 months to less than 48 .600%
months .625%
48 months to less than 60 .700%
months .750%
60 months to less than 72 To be negotiated
months
72 months to less than 84
months
84 months to less than 120
months
120 months to less than 180
months
180 months to less than 240
months
240 months to less than 360
months
360 months or more
25
EXHIBIT A
MEDIUM TERM NOTES
TERMS AGREEMENT
__________ __, 199_
Attention:
Re: Distribution Agreement, dated __________ __, 199_, by and
between NUI Corporation (the "Company") and
(the "Distribution Agreement")
The undersigned agrees to purchase the following $_______ principal
amount of your Medium Term Notes further described as follows:
Interest Rate:
Maturity Date:
Purchase Price:
Settlement Date and Time:
Place of Delivery:
(Other terms)
[Provisions regarding debt service insurance, if any.]
[Name of the Agent]
By:
Name:
Title:
Accepted on this ___ day of ________________, _____:
NUI CORPORATION
By:______________________
Name:
Title:
A-1
EXHIBIT B-1
[Letterhead of McWhirter, Reeves, McGlothlin, Davidson & Bakas or other
Florida Counsel reasonably acceptable to the Purchasers]
[Date]
The Agents
Who are parties to the Distribution
Agreement, dated __________ __, ____
(the "Agreement"), relating to the
Securities referenced to below
Mary Patricia Keefe, Esq.
Vice President and General Counsel
Elizabethtown Gas Company
One Elizabethtown Plaza
Union, New Jersey 07083
Kaye, Scholer, Fierman, Hays & Handler
425 Park Avenue
New York, New York 10022
Winthrop, Stimson, Putnam & Roberts
One Battery Park Plaza
New York, New York 10004
Re: $______ ,____________
of NUI Corporation
We have acted as local counsel to NUI Corporation, a
New Jersey corporation (the "Company"), in connection with the
execution and delivery of the Agreement to the Agents.
In such capacity, we have examined originals or copies,
identified to our satisfaction, of the Agreement, the form of the
Securities (as defined in the Agreement), the form of the
Indenture (as defined in the Agreement), any applicable Terms
Agreement and such other documents and instruments as we have
deemed necessary or appropriate. We have also examined such
certificates, documents and records of officers of the Company
and public officials as we have deemed necessary in connection
with the opinions hereinafter set forth.
Based upon the foregoing, we are of the opinion that:
1. The Company is duly qualified to do business in
the State of Florida and has full power and authority under the
laws of the State of Florida to transact the business in which it
is engaged in the State of Florida and to own and operate the
properties used by it in such business.
B-1-1
2. The Florida Public Service Commission has issued
appropriate orders with respect to authorizing the execution,
delivery and performance by the Company of the Agreement, any
applicable Terms Agreement, the Indenture and the Securities and
no other approval or consent is required to be obtained, nor is
any filing with any governmental authority required to be made,
by the Company under the laws of the State of Florida in
connection with the execution, delivery and performance of the
Agreement, any applicable Terms Agreement, the Indenture or the
Securities or the consummation of the transactions contemplated
thereby; provided, however, that we express no opinion with
respect to the necessity for any qualification or other action
under the Blue Sky or securities laws of any jurisdiction of the
United States of America.
The reference to filings required by governmental
authorities or approvals and consents does not encompass
informational, post-closing "consummation reports" routinely
submitted to the Florida Public Service Commission after it has
provided the requisite authority for the transaction.
We express no opinion regarding any law other than the
laws of the State of Florida.
Very truly yours,
B-1-2
EXHIBIT B-2
[Letterhead of Piper & Marbury or other Maryland Counsel
reasonably acceptable to the Purchasers]
[Date]
(Points to be covered)
1. The Company is duly qualified to do business in
the State of Maryland and has full power and authority under the
laws of the State of Maryland to transact the business in which
it is engaged in the State of Maryland and to own and operate the
properties used by it in such business.
2. No approval or consent is required to be obtained,
nor is any filing with any governmental authority required to be
made, by the Company under the laws of the State of Maryland in
connection with the execution, delivery and performance of the
Agreement, any applicable Terms Agreement, the Indenture or the
Securities or the consummation of the transactions contemplated
thereby; provided, however, that we express no opinion with
respect to the necessity for any qualification or other action
under the Blue Sky or securities laws of any jurisdiction.
B-2-1
EXHIBIT B-3
[Letterhead of Cullen & Dykman or other New York Counsel
reasonably acceptable to the Purchasers]
[Date]
(Points to be covered)
1. The Company is duly qualified to do business in
the State of New York and has full power and authority under the
laws of the State of New York to transact the business in which
it is engaged in the State of New York and to own and operate the
properties used by it in such business.
2. The Public Service Commission of the State of New
York has issued appropriate orders with respect to the execution,
delivery and performance by the Company of the Agreement, any
applicable Terms Agreement, the Indenture and the Securities, and
no other approval or consent is required to be obtained, nor is
any filing with any governmental authority required to be made,
by the Company under the laws of the State of New York in
connection with the execution, delivery and performance of the
Agreement, any applicable Terms Agreement, the Indenture or the
Securities or the consummation of the transactions contemplated
thereby; provided, however, that we express no opinion with
respect to the necessity for any qualification or other action
under the Blue Sky or securities laws of any jurisdiction.
B-3-1
EXHIBIT B-4
[Letterhead of Brooks, Pierre, McLendon, Humphrey & Leonard or
other
North Carolina Counsel reasonably acceptable to the Purchaser]
[Date]
(Points to be covered)
1. The Company is duly qualified to do business in
the State of North Carolina and has full corporate and regulatory
power and authority under the laws of the State of North Carolina
to transact the business in which it is engaged in the State of
North Carolina and to own and operate the properties used by it
in such business.
2. No approval or consent is required to be obtained,
nor is any filing with any governmental authority required to be
made, by the Company under the laws of the State of North
Carolina in connection with the execution, delivery and
performance of the Agreement, any applicable Terms Agreement, the
Indenture or the Securities or the consummation of the
transactions contemplated thereby; provided, however, that we
express no opinion with respect to the necessity for any
qualification or other action under the Blue Sky or securities
laws of any jurisdiction.
B-4-1
EXHIBIT B-5
[Letterhead of Malatesta, Hawke, McKeon or other Pennsylvania
Counsel reasonably acceptable to the Purchasers]
[Date]
(Points to be covered)
1. The Company is duly qualified to do business in
the Commonwealth of Pennsylvania and has full power and authority
under the laws of the Commonwealth of Pennsylvania to transact
the business in which it is engaged in the Commonwealth of
Pennsylvania and to own and operate the properties used by it in
such business.
2. The Public Utility Commission of the Commonwealth
of Pennsylvania has issued the appropriate Secretarial Letter
with respect to the execution, delivery and performance by the
Company of the Agreement, any applicable Terms Agreement, the
Indenture and the Securities, and no other approval or consent is
required to be obtained, nor is any filing with any governmental
authority required to be made, by the Company under the laws of
the Commonwealth of Pennsylvania in connection with the
execution, delivery and performance of the Agreement, any
applicable Terms Agreement, the Indenture or the Securities or
the consummation of the transactions contemplated thereby;
provided, however, that we express no opinion with respect to the
necessity for any qualification or other action under the Blue
Sky or securities laws of any jurisdiction.
B-5-1
EXHIBIT C
Matters to be set forth in letter from
Independent Public Accountants for the Company
The letter will state in effect that (I) with respect
to the Company they are independent public accountants within the
meaning of the Act, (II) in their opinion, the audited
consolidated financial statements included in the Company's 10-K
Report for the most recent fiscal year-end (the "10-K Report")
and incorporated by reference in the Registration Statement
comply as to form in all material respects with the applicable
accounting requirements of the Securities Exchange Act of 1934,
(the "Exchange Act") and the published rules and regulations of
the Securities and Exchange Commission (the "SEC") thereunder
with respect to annual reports on Form 10-K, (III) they consent
to the incorporation by reference in the Registration Statement
of their report, dated __________ __, ____, appearing in the 10-K
Report and to the reference to them under the caption "Experts"
in the Registration Statement, (IV) on the basis of procedures
(but not an examination in accordance with generally accepted
auditing standards) consisting of: (A) reading of the minutes of
the Board of Directors of the Company and its subsidiaries
subsequent to the most recent fiscal year-end, as set forth in
the minute books to a specified date not more than five business
days prior to the Closing, (B) reading the unaudited condensed
consolidated financial statements of the Company and its
subsidiaries incorporated by reference in the Registration
Statement and (C) making inquiries of officials of the Company
and its subsidiaries who have responsibility for financial and
accounting matters, nothing has come to their attention that
caused them to believe that (a) the unaudited condensed
consolidated financial statements incorporated by reference in
the Registration Statement do not comply as to form in all
material respects with the applicable accounting requirements of
the Exchange Act and the published rules and regulations of the
SEC thereunder with respect to reports on Form 10-Q or are not
presented fairly in conformity with generally accepted accounting
principles applied on a basis substantially consistent with that
of the most recent audited consolidated financial statements
incorporated by reference in the Registration Statement, (b) at a
specified date not more than five business days prior to the date
of this letter there was any change in capital stock, short-term
debt or long-term debt or any decrease in the net assets of the
Company and its subsidiaries consolidated as compared with the
corresponding amounts shown in the most recent unaudited
consolidated balance sheet incorporated by reference in the
Registration Statement, except in all instances for changes or
decreases which the Registration Statement discloses have
occurred or may occur, and except for such other changes or
decreases as the Agents shall, in their sole discretion, accept,
or (c) for the period from __________ __, ____, through a
specified date not more than five business days prior to the date
of this letter there were any decreases in total consolidated
operating revenues or net income, as compared with the
C-1
corresponding period in the preceding year, except in all
instances for changes or decreases which the Registration
Statement discloses have occurred or may occur, and except for
such other changes or decreases as the Purchasers shall, in their
sole discretion, accept, and (V) they have performed specified
procedures set forth in detail in such letter in connection with
certain data set forth or incorporated by reference in the
Registration Statement, as reasonably requested by the Agents and
which are expressed in dollars or percentages derived from dollar
amounts, and have found such data to be in agreement with the
general accounting records of the Company.
C-2
EXHIBIT D
[Independent Public Accountants]:
, as principal or agent, in the purchase
of $________ _________________________ to be issued by NUI
Corporation (the "Company"), will be reviewing certain
information relating to the Company that will be included or
incorporated by reference in the Registration Statement, which
may be delivered to investors and utilized by them as a basis for
their investment decision. We hereby request that you deliver to
us a "comfort" letter concerning the financial statements of the
Company and certain statistical and other data included in the
offering document. The procedures we wish you to perform are
outlined in the purchase agreement.
__________________________
(Principal or Agent)
D-1
EXHIBIT E
[Letterhead of Independent Public Accountants]
[Commencement Date]
Company Name
Company Address
Dear Sirs:
We have audited the consolidated balance sheets and
statements of consolidated capitalization of NUI Corporation and
subsidiaries (the "Company") as of September 30, ____ and ____,
and the related statements of consolidated income, cash flows,
taxes and shareholders' equity for the three years in the period
ended September 30, ____, and the related consolidated financial
statement schedules all included in the Company's Annual Report
on Form 10-K for the year ended September 30, ____ (the "____
Form 10-K"), which is incorporated by reference in the
Registration Statement filed with the Securities and Exchange
Commission (the "SEC") in connection with the issuance and sale
of $ ___________ principal amount of _________________________ of
the Company. Our report with respect thereto, dated
________________, is included in the ____ Form 10-K which is
incorporated by reference in the Registration Statement. The
Registration Statement as filed with the SEC on ______________,
including the documents incorporated therein, is herein referred
to as the "Registration Statement."
We have not audited any financial statements of the Company
as of any date or for any period subsequent to September 30,
____; although we have conducted an audit for the year ended
September 30, ____, the purpose (and therefore the scope) of the
audit was to enable us to express our opinion on the consolidated
financial statements as of September 30, ____, and for the year
then ended, but not on the financial statements for any interim
period within that year. Therefore, we are unable to and do not
express any opinion on the unaudited consolidated balance sheets
as of December 31, ____, March 31, ____, and June 30, ____, and
the unaudited consolidated statements of income, shareholder's
equity, and cash flows for the three-month periods ended December
31, ____ and ____, and the three and six-month periods ended
March 31, ____ and ____; and the three and nine-month periods
ended June 30, ____ and ____, included in the Company's Quarterly
Reports on Form 10-Q for the quarters ended December 31, ____
(the "December Form 10-Q") and March 31, ____ (the "March Form
10-Q"), and June 30, ____ (the "June Form 10-Q"), respectively,
which are incorporated by reference in the Registration
Statement, or on the financial position, results of operations,
or cash flows as of any date or for any period subsequent to
September 30, ____.
E-1
We are independent certified public accountants with
respect to the Company under Rule 101 of the AICPA's Code of
Professional Conduct and its interpretations and rulings.
At your request, we have performed the following agreed-
upon procedures to ___________ (our work did not extend to the
period from ____________ to ___________, ____, inclusive), as
follows:
1. We have read the minutes of meetings of the Board of
Directors of the Company and its subsidiaries
subsequent to September 30, ____ as set forth in the
minute books at __________________, officials of the
Company advising us that the minutes of all such
meetings through that date were set forth therein or
furnished to us in said draft or agenda form.
2. With respect to the three-month periods ended December
31, ____ and ____, and the three and six-month periods
ended March 31, ____ and ____, and the three and nine-
month periods ended June 30, ____ and ____, we have:
(a) Read the unaudited consolidated balance sheets as of
December 31, ____, March 31, ____ and June 30, ____,
and unaudited consolidated statements of income,
shareholder's equity, and cash flows of the Company for
the three-month periods ended December 31, ____ and
____, the three and six-month periods ended March 31,
____ and ____, and the three and nine-month periods
ended June 30, ____ and ____, included in the December
Form 10-Q, March Form 10-Q, and the June Form 10-Q,
respectively, which are incorporated by reference in
the Registration Statement.
(b) Made inquiries of certain officials of the Company who
have responsibility for financial and accounting
matters regarding whether the unaudited consolidated
financial statements referred to in (a) are in
conformity with generally accepted accounting
principles applied on a basis substantially consistent
with that of the audited consolidated financial
statements included in the ____ Form 10-K which is
incorporated by reference in the Registration Statement
and comply as to form in all material respects with the
applicable accounting requirements of Regulation S-X of
the SEC. Those officials stated that the unaudited
consolidated financial statements, other than the
effect of the adoption on October 1, 1993, of Financial
Accounting Standards Board Statement No. 106,
"Employers' Accounting for Postretirement Benefits
Other Than Pensions," and Financial Accounting
Standards Board Statement No. 109, "Accounting for
Income Taxes," as discussed in Security No. 1 included
in the ____ Form 10-K which is incorporated by
reference in the Registration Statement, are in
conformity with generally accepted accounting
principles applied on a basis substantially consistent
E-2
with that of the audited consolidated financial
statements and comply as to form in all material
respects with the applicable accounting requirements of
Regulation S-X of the SEC.
Had we performed additional procedures or had we audited
the Company's December Form 10-Q, March Form 10-Q and June
Form 10-Q in accordance with generally accepted auditing
standards other matters might have come to our attention
that would have been reported to you.
3. We have made inquiries of certain Company officials who
have responsibility for financial and accounting
matters regarding whether (a) there was any change at
______________, ____, in capital stock, short-term debt
or long-term debt of the Company or its subsidiaries or
any decrease in net assets of the Company or its
subsidiaries as compared with amounts shown on the June
30, __________ unaudited consolidated balance sheet,
included in the June Form 10-Q which is incorporated by
reference in the Registration Statement or (b) for the
period from July 1, ____ to __________ 1994, there were
any decreases, as compared with the corresponding
period in the preceding year, in total consolidated
operating revenue or net income. Those officials
referred to above stated that there were no such
changes or decreases. Officials of the Company also
have advised us that the Company has prepared no
financial statements as of any date or for any period
subsequent to June 30, ____.
The foregoing procedures do not constitute an audit
conducted in accordance with generally accepted auditing
standards. Also, they would not necessarily reveal matters
of significance with respect to the comments above, nor
would they necessarily disclose changes in specified
financial statement line items, inconsistencies in the
application of generally accepted accounting principles, or
other matters. Accordingly, we make no representations
regarding the sufficiency of the foregoing procedures for
your purposes.
4. With respect to other financial information set forth
in the Registration Statement on the indicated pages we
have:
ITEM PAGE DESCRIPTION PROCEDURES AND
FINDINGS
Our audit of the consolidated financial statements for the
periods referred to in the introductory paragraph of this
letter comprised audit tests and procedures deemed
necessary for the purpose of expressing an opinion on such
financial statements taken as a whole. For none of the
periods referred to herein, or any other period, did we
E-3
perform audit tests for the purpose of expressing an
opinion on individual balances of accounts or summaries of
selected transactions such as those enumerated above, and
accordingly, we express no opinion thereon.
It should be understood that we make no representations
regarding questions of legal interpretation or regarding
the sufficiency for the purposes of the procedures
enumerated in the preceding paragraph; also, such
procedures would not necessarily reveal any material
misstatement of the amounts or percentages listed above.
Further, we have addressed ourselves solely to the
foregoing data as set forth in the Registration Statement
and make no representations regarding the adequacy of
disclosure or regarding whether any material facts have
been omitted.
5. This report is solely for the information of the
addressees and to assist the Agent in conducting and
documenting their investigation of the affairs of the
Company in connection with the offering of the bonds
covered by the Registration Statement, and it is not to
be used, circulated, quoted, or otherwise referred to
within or without the Agent for any other purpose.
6. We have no responsibility to update the procedures
described herein for events and circumstances occurring
after _________, ____.
Very truly yours,
[INDEPENDENT PUBLIC
ACCOUNTANTS]
E-4
ANNEX A
Medium Term Notes Administrative Procedures
The Administrative Procedures set forth herein relate to the
Securities defined in the Distribution Agreement, dated [
], 199_ (the "Distribution Agreement"), by and between NUI
Corporation, a New Jersey corporation (the "Company") and the
agent with respect to the Securities as set forth in Schedule A
("Schedule A") attached to the Distribution Agreement as agent
(the "Agent"). Defined terms used herein and not defined herein
shall have the meanings given such terms in the Distribution
Agreement, the Prospectus as amended or supplemented, or the
Indenture.
The procedures to be followed with respect to the settlement
of sales of Securities (hereinafter sometimes referred to as
"Securities") directly by the Company to purchasers solicited by
the Agent, as agent, are set forth below. The terms and
settlement details related to a purchase of Securities by the
Agent, as principal, from the Company will be set forth in a
Terms Agreement pursuant to the Distribution Agreement, unless
the Company and the Agent otherwise agree as provided in Section
1(b) of the Distribution Agreement, in which case the procedures
to be followed in respect of the settlement of such sale will be
as set forth below.
The Company will advise the Agent in writing of those persons
at the Company with whom the Agent is to communicate regarding
offers to purchase Securities and the related settlement details.
Each Security will be issued only in fully registered form and
will be represented by either a global security (a "Global
Security") delivered to the trustee set forth in Schedule A (the
"Trustee"), as agent for the Depository Trust Company (the
"Depository"), and recorded in the book-entry system maintained
by the Depository (a "Book-Entry Security") or a certificate
issued in definitive form (a "Certificated Security") delivered
to a person designated by the Agent, as set forth in the
applicable Pricing Supplement (as defined below). An owner of a
Book-Entry Security will not be entitled to receive a certificate
representing such a Security, except as provided in the
Indenture.
Certificated Securities will be issued in accordance with the
Administrative Procedure set forth in Part I hereof, and
Book-Entry Securities will be issued in accordance with the
Administrative Procedure set forth in Part II hereof.
1
PART I: ADMINISTRATIVE PROCEDURE FOR CERTIFICATED SECURITIES
Posting Rates by Company:
The Company and the Agent will discuss from time to time the
rates of interest per annum to be borne by and the maturity of
Certificated Securities that may be sold as a result of the
solicitation of offers by the Agent. The Company may establish a
fixed set of interest rates and maturities for an offering period
("posting"). If the Company decides to change already posted
rates, it will promptly advise the Agent to suspend solicitation
of offers until the new posted rates have been established with
the Agent.
Acceptance of Offers by Company:
The Agent will promptly advise the Company by telephone or
other appropriate means of all reasonable offers to purchase
Certificated Securities, other than those rejected by the Agent.
Such advice shall include all of the Sale Information (as defined
below) other than (1) the taxpayer identification number and
address included in item 8 thereof and (2) the information
required by item 9 thereof. The Agent may, in its reasonable
discretion, reject any offer received by it in whole or in part
which offer the Agent considers to be unacceptable. The Agent
also may make offers to the Company to purchase Certificated
Securities for its own account. The Company will have the sole
right to accept offers to purchase Certificated Securities and
may reject any such offer in whole or in part.
The Company will promptly notify the Agent of its acceptance
or rejection of an offer to purchase Certificated Securities. If
the Company accepts an offer to purchase Certificated Securities,
it will confirm such acceptance in writing to the Agent and the
Trustee.
Communication of Sale Information to Company by Agent:
After the acceptance of an offer by the Company, the Agent
will communicate the following details of the terms of such offer
(the "Sale Information") to the Company by telephone (confirmed
in writing) or by facsimile transmission or other reasonable
written means:
(1) principal amount of Securities to be purchased;
(2) interest rate and the initial Interest Payment Date;
(3) maturity date;
(4) issue price;
(5) Agent's commission;
(6) net proceeds to the Company;
(7) Settlement Date (as defined below);
2
(8) name, address and taxpayer identification number of the
registered owner(s);
(9) denomination of certificates to be delivered at
settlement; and
(10) that the Securities will be issued as Certificated
Securities.
Preparation of Pricing Supplement by Company:
If the Company accepts an offer to purchase a Certificated
Security, it will prepare a pricing prospectus supplement
reflecting the terms of such Certificated Security (the "Pricing
Supplement"). The Company will supply to the Agent the number of
copies of such Pricing Supplement requested by the Agent, not
later than 5:00 p.m., New York City time, on the Business Day
following the date of acceptance of such offer, or if the Company
and the purchaser agree to settlement on the date of such
acceptance, not later than noon, New York City time, on such
date. The Company will arrange to have the Pricing Supplement
duly filed with the Securities and Exchange Commission (the
"SEC") not later than the close of business of the SEC on the
second Business Day following the date on which such Pricing
Supplement is first used.
Delivery of Confirmation and Prospectus to Purchaser by Agent:
The Agent will deliver to the purchaser of a Certificated
Security a written confirmation of the sale, delivery and payment
instructions. In addition, the Agent will deliver to such
purchaser or its agent the Prospectus as amended or supplemented
(including the Pricing Supplement) relating to such Certificated
Security prior to or together with the earlier of the delivery to
such purchaser or its agent of (1) the confirmation of sale or
(2) the Certificated Security.
Date of Settlement:
All offers solicited by the Agent or made by the Agent and
accepted by the Company will be settled on a date (the
"Settlement Date") which is the fifth Business Day after the date
of acceptance of such offer, unless the Company and the purchaser
agree to settlement on any other Business Day.
Instruction from Company to Trustee for Preparation of
Certificated Securities:
After receiving the Sale Information from the Agent and
accepting the offer related thereto, the Company will communicate
such Sale Information to the Trustee by telephone (confirmed in
writing) or by facsimile transmission or other reasonable written
means.
The Company will instruct the Trustee by facsimile
transmission or other reasonable written means to authenticate
and deliver the Certificated Securities no later than 2:15 p.m.,
New York City time, on the Settlement Date. Such instruction
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will be given by the Company prior to 3:00 p.m., New York City
time, on the second Business Day prior to the Settlement Date
unless the Settlement Date is the date of acceptance by the
Company of the offer to purchase Certificated Securities, in
which case such instruction will be given by the Company by 11:00
a.m., New York City time, and the Company will instruct the
Trustee by facsimile transmission or other reasonable written
means to, in such case, authenticate and deliver the Certificated
Securities no later than 2:15 p.m., New York City time.
Preparation and Delivery of Certificated Securities by Trustee
and Receipt of Payment Therefor:
The Trustee will prepare each Certificated Security and
appropriate receipts that will serve as the documentary control
of the transaction.
The Trustee will, by 2:15 p.m., New York City time, on the
Settlement Date, deliver the appropriate receipts and the
properly authenticated Certificated Securities to the Agent for
the benefit of the purchaser of such Certificated Securities
against delivery by the Agent of a receipt therefor and of the
required payment. On the Settlement Date, the Agent will deliver
payment for such Certificated Securities in immediately available
funds to the Company in an amount equal to (1) the issue price of
the Certificated Securities plus (2) accrued interest, if any,
less (3) the Agent's commission (each based upon the information
contained in the Sale Information supplied by the Agent to the
Company with respect to the accepted offers to purchase the
Certificated Securities); provided that the Agent reserves the
right to withhold payment for which it has not received funds
from the purchaser.
Failure of Purchaser to Pay Agent:
If a purchaser (other than the Agent) fails to make payment to
the Agent for a Certificated Security, the Agent will promptly
notify the Trustee and the Company thereof by telephone
(confirmed in writing) or by facsimile transmission or other
reasonable written means. The Agent will immediately return the
related Certificated Security or Securities to the Trustee.
Immediately upon receipt of such Certificated Security or
Securities by the Trustee and the Trustee's notification of the
Company by telephone (confirmed in writing) or by facsimile
transmission or other reasonable written means of such receipt,
the Company will return to the Agent an amount equal to the
amount previously paid to the Company in respect of such
Certificated Security or Securities. If such failure shall have
occurred for any reason other than default by the Agent to
perform its obligations hereunder or under the Distribution
Agreement, the Company will reimburse the Agent on an equitable
basis for its loss of the use of funds during the period when
such funds were credited to the account of the Company.
The Trustee will cancel the Certificated Security in respect
of which the failure occurred, make appropriate entries in its
records and, unless otherwise instructed by the Company, destroy
the Certificated Security.
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PART II: ADMINISTRATIVE PROCEDURES FOR BOOK-ENTRY SECURITIES
In connection with the qualification of the Book-Entry
Securities for eligibility in the book-entry system maintained by
the Depository, the Trustee will perform the custodial, document
control and administrative functions described below, in
accordance with its respective obligations under a Letter of
Representations from the Company and the Trustee to the
Depository, dated the date of the Distribution Agreement, and a
Medium-Term Note Certificate Agreement between the Trustee and
the Depository, dated as of [ ], 199_ (the "Certificate
Agreement") and its obligations as a participant in the
Depository, including the Depository's Same-Day Funds Settlement
System ("SDFS").
Posting Rates by the Company:
The Company and the Agent will discuss from time to time the
rates of interest per annum to be borne and the maturity of
Book-Entry Securities that may be sold as a result of the
solicitation of offers by the Agent. The Company may establish a
fixed set of interest rates and maturities for an offering period
("posting"). If the Company decides to change already posted
rates, it will promptly advise the Agent to suspend solicitation
of offers until the new posted rates have been established with
the Agent.
Acceptance of Offers by the Company:
The Agent will promptly advise the Company by telephone or
other reasonable means of all reasonable offers to purchase Book-
Entry Securities, other than those rejected by the Agent. Such
advice shall include all of the Sale Information (as defined
below) other than (1) the taxpayer identification number and
address included in item 8 thereof and (2) the information
required by item 9 thereof. The Agent may, in its reasonable
discretion, reject any offer received by it in whole or in part
which offer the Agent considers unacceptable. The Agent also may
make offers to the Company to purchase Book-Entry Securities for
its own account. The Company will have the sole right to accept
offers to purchase Book-Entry Securities and may reject any such
offer in whole or in part.
The Company will promptly notify the Agent of its acceptance
or rejection of an offer to purchase Book-Entry Securities. If
the Company accepts an offer to purchase Book-Entry Securities,
it will confirm such acceptance in writing to the Agent and the
Trustee.
Communication of Sale Information to the Company by Agent and
Settlement Procedures:
A. After the acceptance of an offer by the Company, the
Agent will communicate promptly, but in no event later than the
time set forth under "Settlement Procedure Timetable" below, the
following details of the terms of such offer (the "Sale
Information") to the Company by telephone (confirmed in writing)
or by facsimile transmission or other reasonable written means:
5
(1) principal amount to be purchased;
(2) interest rate and initial Interest Payment Date;
(3) maturity date;
(4) issue price;
(5) Agent's commission;
(6) net proceeds to the Company;
(7) Settlement Date (as defined below);
(8) name, address and taxpayer identification number of the
registered owner(s);
(9) denomination of certificates to be delivered at
settlement; and
(10) that the Securities will be issued as Book-Entry
Securities.
B. After receiving the Sale Information from the Agent and
accepting the offer related thereto, the Company will communicate
such Sale Information to the Trustee by telephone (confirmed in
writing) or facsimile transmission or other reasonable written
means. The Trustee will assign a CUSIP number to the Global
Security from a list of CUSIP numbers previously delivered to the
Trustee by the Company representing such Book-Entry Security and
then advise the Company and the Agent of such CUSIP number.
C. The Trustee will enter a pending deposit message
through the Depository's participant terminal system, providing
the following settlement information to the Depository, and the
Depository shall forward such information to the Agent, Standard
& Poor's Corporation and Interactive Data Corporation:
(1) the applicable Sale Information;
(2) CUSIP number of the Global Security representing such
Book-Entry Security;
(3) whether such Global Security will represent any other
Book-Entry Security (to the extent known at such time);
(4) number of the participant account maintained by the
Depository on behalf of the Agent or the Trustee, as the case may
be;
(5) the interest payment period; and
(6) initial Interest Payment Date for such Book-Entry
Security, number of days by which such date succeeds the record
date for the Depository's purposes (which, in the case of such
Book-Entry Securities shall be the Regular Record Date) and the
amount of interest payable on such Interest Payment Date.
6
D. The Trustee will complete and authenticate the Global
Security previously delivered by the Company representing such
Book-Entry Security.
E. The Depository will credit such Book-Entry Security to
the Trustee's participant account at the Depository.
F. The Trustee will enter an SDFS deliver order through
the Depository's participant terminal system instructing the
Depository to (1) debit such Book-Entry Security to the Trustee's
participant account and credit such Book-Entry Security to the
Agent's participant account and (2) debit the Agent's settlement
account and credit the Trustee's settlement account for an amount
equal to (a) the issue price of such Book-Entry Security less (b)
the Agent's commission (each based upon the Sale Information
supplied by the Agent to the Company with respect to the accepted
offers to purchase the Book-Entry Securities) . The entry of
such a deliver order shall constitute a representation and
warranty by the Trustee to the Depository that (i) the Global
Security representing such Book-Entry Security has been issued
and authenticated and (ii) the Trustee is holding such Global
Security pursuant to the Certificate Agreement.
G. The Agent will enter an SDFS delivery order through the
Depository's participant terminal system instructing the
Depository (i) to debit such Book-Entry Security to the Agent's
participant account and credit such Book-Entry Security to the
participant accounts of the purchasers of the Book-Entry Security
with respect to such Book-Entry Security and (ii) to debit the
settlement accounts of such purchasers of the Book-Entry Security
and credit the settlement account of the Agent for an amount
equal to the price of such Book-Entry Security.
H. Transfers of funds in accordance with SDFS deliver
orders described in Settlement Procedures "F" and "G" will be
settled in accordance with SDFS operating procedures in effect on
the settlement date.
I. Upon confirmation of receipt of funds, the Trustee will
transfer to the account of the Company maintained at First
Fidelity Bank, National Association, or such other account as the
Company may have previously specified to the Trustee, in funds
available for immediate use in the amount transferred to the
Trustee in accordance with Settlement Procedure "F."
J. Upon request, the Trustee will send to the Company a
statement setting forth the principal amount of Book-Entry
Securities outstanding under the Indenture as of the date of such
request.
K. The Agent will confirm the purchase of such Book-Entry
Security to the purchaser either by transmitting to the purchaser
with respect to such Book-Entry Security confirmation order or
orders through the Depository's institutional delivery system or
by mailing a written confirmation to such purchaser.
L. The Depository will, at any time, upon request of the
Company or the Trustee, promptly furnish to the Company or the
7
Trustee a list of the names and addresses of the participants for
whom the Depository has credited Book-Entry Securities.
Preparation Of Pricing Supplement:
If the Company, accepts an offer to purchase a Book-Entry
Security, it will prepare a Pricing Supplement reflecting the
terms of such Book-Entry Security and arrange to have supplied to
the Agent the number of copies of such Pricing Supplement
requested by the Agent, not later than 5:00 p.m., New York City
time, on the Business Day following the receipt of the Sale
Information, or if the Company and the purchaser agree to
settlement on the Business Day following the date of acceptance,
not later than noon, New York City time, on such date. The
Company will arrange to have the Pricing Supplement duly filed
with the SEC not later than the close of business of the SEC on
the second Business Day following the date on which such Pricing
Supplement is first used.
Delivery of Confirmation and Prospectus to Purchaser by Agent:
The Agent will deliver to the purchaser of a Book-Entry
Security a written confirmation of the sale, delivery and payment
instructions. In addition, the Agent will deliver to such
purchaser or its agent the Prospectus as amended or supplemented
(including the Pricing Supplement) relating to such Book-Entry
Security prior to or together with the delivery to such purchaser
or its agent of the confirmation of sale.
Date of Settlement:
The receipt by the Company of immediately available funds in
payment for a Book-Entry Security and the authentication and
issuance of the Global Security representing such Book-Entry
Security shall constitute "settlement" with respect to such
Book-Entry Security. All offers accepted by the Company will be
settled on the fifth Business Day after the sale date pursuant to
the timetable for settlement set forth below, unless the Company
and the purchaser agree to settlement on another day which shall
be no earlier than the next Business Day (the "Settlement Date").
Settlement Procedure Timetable:
For orders of Book-Entry Securities solicited by the Agent as
agent and accepted by the Company for settlement on the first
Business Day after the sale date, Settlement Procedures "A"
through "I" set forth above shall be completed as soon as
possible but not later than the respective times (New York City
time) set forth below:
8
Settlement
Procedure Time
A 5:00 p.m. on the Business Day following the
acceptance of an offer by the Company or 10:00 a.m. on
the Business Day prior to the settlement date,
whichever is earlier
B 12:00 noon on the sale date
C 2:00 p.m. on the sale date
D 9:00 a.m. on settlement date
E 10:00 a.m. on settlement date
F-G 2:00 p.m. on settlement date
H 4:45 p.m. on settlement date
I 5:00 p.m. on settlement date
If a sale is to be settled more than one Business Day after
the sale date, Settlement Procedures "B" and "C" shall be
completed as soon as practicable but not later than 2:00 p.m. on
the first Business Day after the sale date. Settlement Procedure
"H" is subject to extension in accordance with any extension of
Fedwire closing deadlines and in the other events specified in
the SDFS operating procedures in effect on the Settlement Date.
If settlement of a Book-Entry Security is rescheduled or
canceled, the Trustee, upon obtaining knowledge thereof, will
deliver to the Depository, through the Depository's participant
terminal system a cancellation message to such effect by no later
than 2:00 p.m. on the Business Day immediately preceding the
scheduled Settlement Date.
Failure to Settle:
If the Trustee fails to enter an SDFS deliver order with
respect to a Book-Entry Security pursuant to Settlement Procedure
"F," the Trustee may deliver to the Depository, through the
Depository's participant terminal system, as soon as practicable,
a withdrawal message instructing the Depository to debit such
Book-Entry Security to the Trustee's participant account,
provided that the Trustee's participant account contains a
principal amount of the Global Security representing such
Book-Entry Security that is at least equal to the principal
amount to be debited. If a withdrawal message is processed with
respect to all the Book-Entry Securities represented by a Global
Security, the Trustee will mark such Global Security "canceled,"
make appropriate entries in the Trustee's records and send such
canceled Global Security to the Company. The CUSIP number
assigned to such Global Security shall, in accordance with CUSIP
Service Bureau procedures, be canceled and not immediately
reassigned. If a withdrawal message is processed with respect to
one or more, but not all, of the Book-Entry Securities
represented by a Global Security, the Trustee will exchange such
Global Security for two Global Securities, one of which shall
represent such withdrawn Book-Entry Security or Securities and
shall be canceled immediately after issuance and the other of
which shall represent the remaining Book-Entry Securities
9
previously represented by the surrendered Global Security and
shall bear the CUSIP number of the surrendered Global Security.
If the purchase price for any Book-Entry Security is not
timely paid to the participants with respect to such Book-Entry
Security by the beneficial purchaser thereof (or a person,
including an indirect participant in the Depository, acting on
behalf of such purchaser), such participants and, in turn, the
Agent for such Book-Entry Security may enter and deliver orders
through the Depository's participant terminal system debiting
such Book-Entry Security to such participant's account and
crediting such Book-Entry Security to the Agent's account and
then debiting such Book-Entry Security to the Agent's participant
account and crediting such Book-Entry Security to the Trustee's
participant account and shall notify the Company and the Trustee
thereof. Thereafter, the Trustee will (1) immediately notify the
Company of such order and the Company shall transfer to the Agent
funds available for immediate use in an amount equal to the price
of such Book-Entry Security which was credited to the account of
the Company maintained at the Trustee in accordance with
Settlement Procedure I, and (2) deliver the withdrawal message
and take the related actions described in the preceding
paragraph. If such failure shall have occurred for any reason
other than default by the Agent to perform its obligations
hereunder or under the Distribution Agreement, the Company will
reimburse the Agent on an equitable basis for the loss of its use
of funds during the period when such funds were credited to the
account of the Company.
Notwithstanding the foregoing, upon any failure to settle with
respect to a Book-Entry Security, the Depository may take any
actions in accordance with its SDFS operating procedures then in
effect. In the event of a failure to settle with respect to one
or more, but not all, of the Book-Entry Securities to have been
represented by a Global Security, the Trustee will provide, in
accordance with Settlement Procedure "D" for the authentication
and issuance of a Global Security representing the other
Book-Entry Securities to have been represented by such Global
Security and will make appropriate entries in its record. The
Company will, from time to time, furnish the Trustee with a
sufficient quantity of the Securities.
10