AMENDMENT NO.6 to
AMENDED AND RESTATED STANDBY BOND PURCHASE AGREEMENT
This AMENDMENT NO.6 TO AMENDED AND RESTATED STANDBY BOND PURCHASE
AGREEMENT, dated as of May 19,2004, between NUI UTIL.ITIES, INC., a New Jersey
corporation (the "Company") and THE BANK OF NEW YORK, as Purchasing Bank (this
"Amendment").
WHEREAS, the Company and The Bank of New York, as Purchasing Bank, are
parties to the Amended and Restated Standby Bond Purchase Agreement, dated as of
June 12, 2001, among the Company, the Participating Banks and The Bank of New
York, as Purchasing Bank, as amended by Amendment No.1 and Waiver dated as of
November 21,2001, Amendment No. 2 dated as of June 3, 2002, Amendment No.3 dated
as of June 10, 2003, Amendment No, 4 dated as of July 21,2003 and Amendment No.5
dated as of December 4,2003 (the "Standby Bond Purchase Agreement);
WHEREAS, the Company has requested that the Stated Expiration Date under
the Standby Bond Purchase Agreement be extended from June 30, 2004 to June 29,
2005; and
WHEREAS, the Purchasing Bank is willing to agree to grant such waivers and
so extend the Stated Expiration Date, subject to the terms and conditions
hereof;
NOW, THEREFORE, the parties hereto agree as follows:
1. Defined Terms. Terms defined in the Standby Bond Purchase Agreement and
not otherwise defined herein are used herein as therein defined.
2. Extension of Stated Expiration Date. Subject to the satisfaction of the
conditions precedent set forth in Section 5 below, effective as of June 30,
2004, the definition of "Stated Expiration Date" in Section 1.01 of the Standby
Bond Purchase Agreement shall be amended by replacing the date "June 30, 2004"
with the date "June 29, 2005",
3. Amendment.
(a) Section 5.15 of the Standby Bond Purchase Agreement is hereby
amended to delete the figure "$20,000,000" in subclauses (j) of clause (c)
thereof and to replace it with the figure "$56,300,000",
(b) Section 5.1O(a) is hereby amended by deleting in the second, third
and fourth lines thereof the words "the Company" and replacing them with
the words "NUI Corporation".
(c) Section 5.10(b) is hereby amended by deleting in the second line
thereof, each time they appear, the words "the Company" and replacing them
with the words "NUI Corporation" .
(d) Section 5.10(d) is hereby amended by deleting in the second and
third lines thereof the words "the Company" and replacing them with the
words 'NUI Corporation".
4. Representations and Warranties. In order to induce the Purchasing Bank
to agree to enter into this Amendment, the Company hereby represents and
warrants, as of the date of this Amendment, as follows:
(a) The execution and delivery by the Company of this Amendment, and
the performance by the Company of the Standby Bond Purchase Agreement as
amended by this Amendment, (a) are within the Company's corporate powers,
have been duly authorized by all necessary corporate action, and do not
contravene (i) the Company's or any Subsidiary's certificate of
incorporation or by-laws, (ii) any Applicable Laws (including the Margin
Regulations) or (iii) any legal or contractual restriction binding on or
affecting the Company or any Subsidiary or any of their respective
properties and (b) will not result in the creation or imposition of any
Lien upon any property or assets of the Company.
(b) No Government Approval or Governmental Registration is required
for the due execution and delivery by the Company of this Amendment or the
performance by the Company of the Standby Bond Purchase Agreement as
amended by this Amendment, except for such Governmental Approvals and
Governmental Registrations that have been duly obtained or made and are in
full force and effect on the date hereof.
(c) This Amendment and the Standby Bond Purchase Agreement as amended
by this Amendment each constitute a legal, valid and binding obligation of
the Company enforceable in accordance with its terms, except as enforcement
may be limited by bankruptcy, insolvency or similar Applicable Laws
affecting the enforcement of creditors' rights generally and subject to
general principles of equity regardless of whether such enforcement is
considered in a proceeding in equity or at law.
(d) Each of the representations and warranties of the Company
contained in Article IV of the Standby Bond Purchase Agreement is true and
correct on and as of the date hereof; provided that in making such
representation and warranty with respect Section 4.05 of the Standby Bond
Purchase Agreement, (i) all references therein to September 30, 2000 shall
be deemed to be references to September 30, 2002, (ii) all references
therein to Arthur Andersen shall be deemed to be references to
PriceWaterhouseCoopers, (Hi) all references therein to March 31,2001 shall
be deemed to be references to June 30, 2003, (iv) all references therein to
"the six-month period" shall be deemed to be references to "the nine-month
period" and (v) Section 4.05 shall be deemed further qualified by the
insertion immediately prior to the final period thereof of the words
"except to the extent disclosed in the Company's public filings", and
provided further that in making such representation and warranty with
respect to Section 4.06 of the Standby Bond Purchase Agreement, (1) all
references therein to September 30,2000 shall be deemed to be references to
September 30, 2002, (2) all references therein to December 31, 2000 shall
be deemed to be references to December 31,2002, (3) all references therein
to March 31, 2001 shall be deemed to be references to March 31,2003, and
(4) the words "June 30,2003" shall be added after the amended reference to
"March 31, 2003".
(e) No event has occurred and is continuing, or would result from the
effectiveness of this Amendment, that constitutes a Default
5. Conditions to Effectiveness. The amendments provided for in Section 3
above shall be effective as of the date hereof, but shall not become effective
as of such date unless and until each of the following conditions precedent have
been satisfied:
(a) The Purchasing Bank shall have received each of the following, in
form and substance satisfactory to the Purchasing Bank:
(i) This Amendment, duly executed on behalf of each of the
parties hereto.
(ii) A certificate of an officer of the Company, certifying the
names and true signatures of the officers of the Company authorized to
execute on behalf of the Company this Amendment.
(iii) A certificate of an officer of the Company certifying as to
the matters set forth in Section 4(d) and (e) above.
(iv) Legal opinions of (A) in-house counsel to the Company and
(B) Pillsbury Winthrop LLP, counsel to the Purchasing Bank, in each
case, as to such matters incident to this Amendment and the
transactions contemplated hereby as the Purchasing Bank shall have
reasonably requested.
(v) Such other documents, instruments, opinions and approvals as
the Purchasing Bank shall have reasonably requested.
(b) The Company shall have paid to the Purchasing Bank (i) all
commitment fees accrued under Section 2.08 of the Standby Bond Purchase
Agreement to (but not including) the date hereof and (ii) all other fees,
expenses and other amounts then payable to the Purchasing Bank or any of
its Affiliates pursuant to the Standby Bond Purchase Agreement or the
Related Documents or in connection with this Amendment, including the fees
and disbursements of legal counsel of the Purchasing Bank relating to this
Amendment to the extent that an invoice therefor has been delivered to the
Company.
6. Confirmation of Amended Agreement. The Standby Bond Purchase Agreement
as amended by this Amendment is and shall continue to be in full force and
effect and is hereby in all respects confirmed, approved and ratified.
7. Governing Law. The rights and duties of the Company and the Purchasing
Bank under this Amendment shall, pursuant to New York General Obligations Law
Section 5-1401, be governed by the law of the State of New York.
8. Counterparts. This Amendment may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto were upon the same instrument.
9. Headings. Section headings in this Amendment are included herein for
convenience and reference only and shall not constitute a part of this Amendment
for any other purpose.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their duly authorized officers all as of the date first set forth
above.
COMPANY
By: Peter Maricondo
Title: Chief Financial Officer
PURCHASING BANK
THE BANK OF NEW YORK
By: Charlotte Sohn Fuiks
Title: Vice President