Registration No. 33-[ ]
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
Registration Statement
UNDER
THE SECURITIES ACT OF 1933
NUI CORPORATION
(Exact name of Registrant as specified in its charter)
New Jersey
(State or other jurisdiction of Incorporation of Organization)
22-1869941
(I.R.S. employer identification no.)
Joseph P. Coughlin, Secretary
550 Route 202-206, Box 760,
Bedminster, New Jersey 07921-0760
(908) 781-0500
(Address, including zip code, and telephone number including area code,
of Registrant's principal executive office and agent for services)
The Commission is requested to send copies of all orders, communications and
notices to:
Gary Apfel, Esq. Michael F. Cusick, Esq.
Kaye, Scholer, Fierman, Hays & Handler Winthrop, Stimson, Putnam & Roberts
1999 Avenue of the Stars, Suite 1600 One Battery Park Plaza
Los Angeles, California 90067 New York, New York 10004-1490
Approximate date of commencement of proposed sale of the securities to the
public: From time to time after the effective date of this Registration
Statement as determined by market conditions.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the
following. ____
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following. __X__
CALCULATION OF REGISTRATION FEE
Title of Securities Amount to be Proposed Proposed Amount of
to be Registered Registered Maximum Maximum Registration
Offering Aggregate Fee
Price Per Offering
Unit Price (1)
NUI Corporation Debt
Securities
NUI Corporation
Common Stock, No Par
Value
Total (2) (2) $100,000,000 $34,483(2)<PAGE>
(1) Such amount represents the principal amount of any Debt Securities issued
at its principal amount and the expected initial public offering price of
any Common Stock.
(2) The aggregate amount of each of the Debt Securities and the Common Stock
to be registered and the aggregate offering price per unit have been
omitted pursuant to Securities Act Release No. 6964. The registration
fee has been calculated in accordance with Rule 457(o) under the
Securities Act of 1933.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES
AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933, OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION
8(A), MAY DETERMINE.<PAGE>
NUI CORPORATION
CROSS REFERENCE SHEET
Between Items in Part I of Form S-3 the Prospectus
Item Number and Caption Location in Prospectus
1. Forepart of the Registration Outside Front Cover;
Statement and Outside Front Forepart of
Cover Page of Prospectus Registration Statement
2. Inside Front and Outside Back Available Information;
Cover Page of Prospectus Incorporation by Reference; Table of
Contents
3. Summary Information, Risk Outside Front Cover; The Factors and
Ratio of Earnings Company; Summary Financial
to Fixed Charges Information; Consolidated Ratio of
Earnings to Fixed Charges
4. Use of Proceeds Use of Proceeds
5. Determination of Offering *
Price
6. Dilution *
7. Selling Security-Holders *
8. Plan of Distribution Plan of Distribution
9. Description of Securities Description of the Debt
to be Registered Securities; Description of Capital
Stock; Incorporation of Certain
Documents by Reference; Certain Tax
Consideration
10. Interest of Named Expert *
and Counsel
11. Material Changes The Company
12. Incorporation of Certain Incorporation of Certain Information
by Reference Documents by Reference
13. Disclosure of Commission *
Position on Indemnification
For Securities Act
Liabilities
---------------------
* Not Applicable<PAGE>
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF ANY OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE
SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE
UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF
ANY SUCH STATE.<PAGE>
SUBJECT TO COMPLETION, DATED NOVEMBER 15, 1994
NUI CORPORATION
$100,000,000
Debt Securities
Common Stock (No Par Value)
NUI Corporation, a New Jersey corporation (the "Company"), may from
time to time offer, in one or more series, its debt securities (the "Debt
Securities") and its Common Stock, no par value (the "Common Stock" and,
collectively with the Debt Securities, the "Securities"). The Debt Securities
will be unsecured. The Securities offered pursuant to this Prospectus will be
limited to an aggregate public offering price of $100,000,000.
The Securities will be offered to the public on terms determined by the
Company in light of market conditions at the time of sale. The Debt
Securities may be issued in one or more series, at par or at a premium or with
original issue discount. The Debt Securities may be issued with the same or
various maturities and may include medium-term notes. For each offering of
Securities for which this Prospectus is being delivered (the "Offered
Securities") there will be an accompanying prospectus supplement (each a
"Prospectus Supplement") or a pricing prospectus supplement (each a "Pricing
Supplement") or both that sets forth the terms of offering of such Offered
Securities and (i) with respect to the Debt Securities, the specific
designation, aggregate principal amount, authorized denominations, interest
rate (or method of calculating such interest), time of payment of interest,
maturity, the initial public offering price, any redemption terms, sinking
fund provisions, if any, and any other specific terms, and any listing on a
securities exchange of such Offered Securities; or (ii) with respect to Common
Stock, the number of shares, the initial public offering price and any other
specific terms of such Offered Securities.
The Debt Securities may be issued only in registered form, including in
the form of one or more global securities ("Global Securities"), unless
otherwise set forth in a Prospectus Supplement.
The Company's outstanding shares of Common Stock are traded on the New
York Stock Exchange (the "NYSE") under the symbol "NUI." Application will be
made to list any shares of Common Stock offered hereby on the NYSE.
___________________
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS OR ANY SUPPLEMENT HERETO. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
___________________<PAGE>
The Securities may be sold directly, through agents, underwriters or
dealers as designated from time to time, at competitive bidding, or through a
combination of such methods. If agents, underwriters, purchasers or dealers
are involved in the sale of the Offered Securities, the names of such agents,
underwriters, purchasers or dealers and any applicable commissions or
discounts will be set forth in or may be calculated from the Prospectus
Supplement or Pricing Supplement with respect to such Offered Securities. The
net proceeds to the Company from such sale also will be set forth in the
Prospectus Supplement or Pricing Supplement.
___________________
The date of this Prospectus is _____________, 1994<PAGE>
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934 (the "Exchange Act") and in accordance
therewith files reports, proxy statements and other information with the
Securities and Exchange Commission (the "SEC"). Such reports, proxy
statements and other information can be inspected and copied at the Public
Reference Room of the SEC, 450 Fifth Street, N.W., Room 1024, Washington, D.C.
20549, and at the SEC's regional offices at Citicorp Center, 500 West Madison
Street, Suite 1400, Chicago, Illinois 60661 and 7 World Trade Center, Suite
1300, New York, New York 10048. Copies of such material also can be obtained
from the Public Reference Section of the SEC at 450 Fifth Street, N.W., Room
1024, Washington, D.C. 20549 at prescribed rates. The outstanding shares of
Common Stock are listed on the NYSE. Reports, proxy statements and other
information concerning the Company also may be inspected and copied at the
offices of the NYSE at Room 401, 20 Broad Street, New York, New York 10005.
The Company has filed a Registration Statement on Form S-3 (herein,
together with all exhibits and amendments thereto, called the "Registration
Statement") with the SEC under the Securities Act of 1933 (the "Securities
Act") with respect to the Securities. This Prospectus does not contain all
the information set forth in the Registration Statement, certain parts of
which are omitted in accordance with the rules and regulations of the SEC.
For further information, reference is made to the Registration Statement.
Statements contained herein concerning any document filed as an exhibit to the
Registration Statement are not necessarily complete and, in each instance,
reference is made to the copy of such document filed as an exhibit to the
Registration Statement. Each such statement is qualified in its entirety by
such reference.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents heretofore filed by the Company with the SEC
are hereby incorporated by reference in this Prospectus.
1. The Company's Annual Report on Form 10-K for the fiscal year ended
September 30, 1993;
2. The Company's Quarterly Reports on Form 10-Q for the quarters ended
December 31, 1993, March 31, 1994 and June 30, 1994;
3. The Company's Current Report on Form 8-K dated April 20, 1994;
4. The Company's Current Report on Form 8-K dated July 29, 1994;
5. The Company's Current Report on Form 8-K dated November 1, 1994; and
6. The Company's Registration Statement on Form 8-A, filed on May 28,
1982, and Amendment No. 1 thereto on Form 8-A/A, filed on
September 16, 1993.
All documents filed by the Company with the SEC pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of this
2<PAGE>
Prospectus and prior to the termination of the offering of the Securities
offered hereby shall be deemed to be incorporated by reference in this
Prospectus; provided however, that all documents (other than any amendments to
the Company's Registration Statement on Form 8-A) so filed in each fiscal year
during which the offering made by this Prospectus is in effect, shall not be
incorporated by reference or be a part hereof from and after the date of
filing of the Company's Annual Report on Form 10-K for such fiscal year.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be modified or superseded, for purposes
of this Prospectus to the extent that a statement contained herein or in any
other subsequently filed document which is or is deemed to be incorporated by
reference herein modifies or supersedes such statement. Any statement so
modified or superseded shall not be deemed, except as so modified or
superseded, to constitute a part of this Prospectus.
The Company hereby undertakes to provide without charge to each person
to whom a copy of this Prospectus has been delivered, on the written or oral
request of any such person, a copy of any or all of the documents which have
been or may be incorporated by reference in this Prospectus, other than
exhibits to such documents. Requests for such copies should be directed to:
NUI Corporation, 550 Route 202-206, Box 760, Bedminster, New Jersey 07921-
0760, Attention: Corporate Secretary; telephone number: (908) 781-0500.
THE COMPANY
General
The Company is engaged primarily in the sale and transportation of
natural gas. The Company serves customers in six states through its
divisions, Elizabethtown Gas Company (New Jersey), City Gas Company of Florida
(Florida), North Carolina Gas Service (North Carolina), Elkton Gas Service
(Maryland), Valley Cities Gas Service (Pennsylvania) and Waverly Gas Service
(New York). The Company is subject to regulation as an operating utility by
the public utility commissions of the states in which it operates.
The principal executive offices of the Company are located at 550 Route
202-206, Box 760, Bedminster, New Jersey 07921-0760; telephone: (908) 781-
0500.
3<PAGE>
CONSOLIDATED RATIOS OF EARNINGS TO FIXED CHARGES
Twelve
Year Ended September 30 Months Ended
1989 1990 1991 1992 1993 June 30, 1994
Consolidated Ratio of
Earnings to Fixed
Charges(1) 1.70 1.76 1.17 1.90 2.15 1.88
______________________________________
(1) Represents Earnings (defined as income before the cumulative effect
of an accounting change plus income taxes plus Fixed Charges
(defined as interest expense before any reduction for amounts
capitalized plus one-third of rentals charged to operating expense))
divided by Fixed Charges.
USE OF PROCEEDS
Unless otherwise indicated in the Prospectus Supplement, the Company
intends to use the net proceeds to be received from the sale of the Securities
offered hereby to discharge or refund outstanding debt obligations of the
Company, to finance the Company's capital expenditures, to reduce short-term
debt and for general corporate purposes. Funds not required immediately for
such purposes may be invested in marketable securities and short-term
investments.
DESCRIPTION OF DEBT SECURITIES
The Debt Securities will be unsecured obligations of the Company issued
under an indenture, dated as of ____________, 1994 (the "Indenture"), between
the Company and First Fidelity Bank, National Association, as trustee (the
"Trustee"), the proposed form of which has been filed as an exhibit to the
Registration Statement. The following summaries of certain provisions of the
Indenture do not purport to be complete and are subject to, and are qualified
in their entirety by reference to, all of the provisions of the Indenture,
including the definitions contained therein. Whenever particular sections or
defined terms of the Indenture are referred to herein or in a Prospectus
Supplement with respect to Debt Securities, such sections or defined terms are
incorporated by reference as a part of the statements made. Section
references are references to sections of the Indenture. Capitalized terms not
otherwise defined herein or in any Prospectus Supplement with respect to Debt
Securities have the respective meanings given to them in the Indenture.
General
The Debt Securities will rank equally with all other unsecured and
unsubordinated debt of the Company. The Debt Securities will rank junior to
the Company's First Mortgage Bonds, of which $9,773,000 were outstanding on
September 30, 1994. The Indenture does not limit the amount of debt which may
be issued by the Company under the Indenture or otherwise. The Debt
Securities may be issued from time to time in one or more series with the same
or various maturities, at par or a premium or with original issue discount.
4<PAGE>
Each Prospectus Supplement with respect to Debt Securities and any
related Pricing Supplement will describe certain terms of the Debt Securities
offered by such Prospectus Supplement and Pricing Supplement (the "Offered
Debt Securities"), including: (1) the title of the Offered Debt Securities;
(2) any limit on the aggregate principal amount of the Offered Debt
Securities; (3) the price or prices at which the Offered Debt Securities will
be offered (expressed as a percentage of the principal amount thereof); (4)
the date or dates on which the Offered Debt Securities may be issued and on
which the Offered Debt Securities will mature; (5) the rate or rates per annum
(which may be fixed or floating) at which the Offered Debt Securities will
bear interest, if any, or the method by which such rate or rates shall be
determined, and the date or dates from which such interest, if any, shall
accrue; (6) the date or dates on which such interest, if any, on the Offered
Debt Securities will be payable (the "Interest Payment Dates") and the Regular
Record Dates for any such Interest Payment Dates; (7) any index or other
method used to determine the amounts of payments of principal of and premium,
if any, and interest, if any, on the Offered Debt Securities; (8) any optional
or mandatory redemption or repayment terms; (9) the denominations in which the
Offered Debt Securities shall be issuable if other than denominations of
$1,000 or any integral multiple thereof; (10) whether the Offered Debt
Securities are to be issued in the form of Global Securities and, if so, the
identity of the Depository with respect to such Global Securities; (11) in the
case of Offered Debt Securities issued with original issue discount, the
principal amount thereof payable upon acceleration of the maturity thereof;
and (12) any other specific terms associated with the Offered Debt Securities.
(Section 301.)
Unless otherwise set forth in any Prospectus Supplement with respect to
Debt Securities, the principal of and premium, if any, and interest, if any,
on the Debt Securities is payable to registered holders of Debt Securities at
the designated corporate trust office of the Trustee in Philadelphia,
Pennsylvania, or at any paying agency maintained at the time by the Company
for such purpose. At the option of the Company, payment of interest to
registered holders of Debt Securities may be made by check mailed to the
address of the person entitled thereto as it appears on the register for Debt
Securities. (Section 301 and 1002.)
Unless otherwise provided in any Prospectus Supplement with respect to
Debt Securities, the Debt Securities shall be issued in fully registered form.
(Section 302.) Debt Securities may be presented for registration of transfer
or exchange at such office of the Trustee or at such other location or
locations as may be established pursuant to the Indenture. No service charge
will be made for any registration of transfer or exchange of Debt Securities,
but the Company may require payment of a sum sufficient to cover any tax or
other governmental charge payable in connection therewith. The Company will
not be required (a) to issue, register the transfer of or exchange Debt
Securities during the period of fifteen (15) days prior to giving any notice
of redemption or (b) to register the transfer of or exchange any Debt
Securities selected for redemption in whole or in part, except the unredeemed
portion of any Debt Securities being redeemed in part. (Section 305.)
5<PAGE>
The Debt Securities will not be subject to any sinking fund and are not
redeemable by the Company prior to maturity unless otherwise provided in any
applicable Prospectus Supplement or any related Pricing Supplement. In
accordance with the terms of the Indenture, Debt Securities will be redeemable
only upon notice, by mail, not less than 30 or more than 60 days prior to the
date fixed for redemption unless a shorter period is specified in the Debt
Securities of a particular series and, if less than all of the Debt Securities
of any series are to be redeemed, the particular Debt Securities will be
selected by such method as the Trustee deems fair and appropriate. (Sections
1101, 1102, 1103 and 1201.)
Covenants
Maintenance of Properties. The Company will cause (or, with respect to
property owned in common with others, make reasonable effort to cause) all its
properties used or useful in the conduct of its business to be maintained and
kept in good condition, repair and working order and will cause (or with
respect to property owned in common with others, make reasonable effort to
cause) to be made all necessary repairs, renewals, replacements, betterments
and improvements thereof, all as, in the judgment of the Company, may be
necessary so that the business carried on in connection therewith may be
properly conducted; provided, however, that the foregoing will not prevent the
Company from discontinuing, or causing the discontinuance of, the operation
and maintenance of any of its properties if such discontinuance is, in the
judgment of the Board of Directors of the Company (the "Board"), desirable in
the conduct of its business and is not disadvantageous in any material respect
to the Holders of the Debt Securities. (Section 1005.)
Corporate Existence. Subject to the provisions described below in the
paragraph entitled "Merger or Consolidation," the Company will do or cause to
be done all things necessary to preserve and keep in full force and effect its
corporate existence, rights (charter and statutory) and material franchises;
provided, however, that the Company shall not be required to preserve any such
right or franchise if the Board shall determine that the preservation thereof
is no longer desirable in the conduct of the business of the Company and that
the loss thereof is not disadvantageous in any material respect to the Holders
of the Debt Securities. (Section 1004.)
Negative Pledge. The Indenture prohibits the Company from creating or
permitting any liens (other than Excepted Encumbrances, as defined below) upon
its property to secure indebtedness for borrowed money without either making
effective provision whereby the Debt Securities shall be directly secured
equally and ratably with such indebtedness or depositing with the Trustee, as
collateral for the Debt Securities, bonds or other evidences of indebtedness
of the Company secured by such lien; provided, however, that this restriction
will not apply in certain circumstances, including, among other things, (a)
the pledging by the Company of property or assets in connection with the
incurrence of indebtedness (under circumstances not otherwise excepted from
the operation of the negative pledge covenant) in aggregate principal amount
not exceeding 3% of the Company's net tangible utility assets at any time
outstanding and (b)(i) the pledging of property or assets for the purpose of
securing a stay or discharge or for any other purpose in the course of a legal
proceeding in which the Company is a party and (ii) liens or pledges arising
in the ordinary course of the Company's business (which do not secure
6<PAGE>
indebtedness for borrowed money or in the aggregate materially detract from
the value of the Company's property or assets or materially impair the use
thereof in the operation of the Company's business); provided, however, that
the fair market value of any property or assets pledged under items (b)(i) and
(ii) hereof may not exceed $25,000,000 in the aggregate. (Section 1007.)
"Excepted Encumbrances" include, among other things, the following:
(a) liens existing on the date of the Indenture; (b) liens for taxes or
charges or worker's compensation awards or similar obligations not delinquent
or, if delinquent, taxes or charges the validity of which is being contested
by the Company in good faith; (c) liens securing indebtedness neither assumed
nor guaranteed by the Company nor on which it customarily pays interest
existing in or relating to real estate or rights in real estate acquired by
the Company for distribution system or right-of-way purposes or in connection
with its usual operations; (d) undetermined liens and charges incidental to
current construction; (e) rights reserved to or vested in any public authority
to control or regulate any property or asset of the Company in a manner that
does not materially impair the use thereof for the purposes for which it is
held by the Company; (f) certain title defects, rights-of-way, easements and
similar restrictions; (g) purchase money liens on property or assets acquired
after the date of the Indenture or mortgages or liens existing on such
property at the time of acquisition by the Company; (h) leases made in the
ordinary course of business; and (i) liens of any judgments in an aggregate
amount not in excess of $250,000. (Section 1007.)
Certain property of the Company is not subject to the prohibition
against encumbrances, including, among other things, (a) cash, bonds, stocks,
obligations and other securities (including securities issued by subsidiaries
of the Company); (b) choses in action, accounts receivable, unbilled revenues,
judgments and other evidences of indebtedness and contracts, leases and
operating agreements; (c) stock in trade, merchandise, equipment, apparatus,
materials or supplies and other personal property manufactured or acquired for
the purpose of sale and/or resale in the usual course of business or
consumable in the operation of any of the properties or businesses of the
Company or held for purposes of repair or replacement; (d) timber, gas, fuel
oil, electric energy, minerals (including developed and undeveloped natural
gas reserves and natural gas in underground storage or otherwise), liquefied
natural gas, propane gas, synthetic fuel, mineral rights and royalties; (e)
materials or products generated, manufactured, stored, produced or purchased
by the Company for sale, distribution or use in the ordinary course of its
business; and (f) office furniture and equipment, tools, rolling stock, buses,
motor coaches, trucks and automobiles and other vehicles and aircraft.
(Section 1007.)
Merger or Consolidation. The Company, without the consent of the
Holders of the Outstanding Debt Securities, may dissolve or otherwise dispose
of all or substantially all of its assets and may consolidate with or merge
into another corporation or permit one or more corporations to consolidate or
merge into it, if the surviving, resulting or transferee corporation (a) is
the Company or (b) if other than the Company, (i) is organized under the laws
of the United States of America, any state thereof or the District of
Columbia, (ii) assumes in writing the Company's obligations under the Debt
Securities and under the Indenture and (iii) after giving effect to the
transaction, no Event of Default will have occurred and be continuing, and the
7<PAGE>
Company or successor corporation will have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel as provided in the Indenture.
(Section 801.)
Statement of Compliance. The Company is required, among other things,
to furnish to the Trustee annually a statement that the Company is in
compliance with its conditions and covenants under the Indenture and as to any
default in such compliance. The Company is also required to notify the
Trustee of any Event of Default, or any event which, with notice or the lapse
of time or both, would become an Event of Default, within 10 days after
certain of its officers obtain actual knowledge thereof. (Section 1006.)
Events of Default
The following are Events of Default under the Indenture with respect to
Debt Securities of any series: (a) failure to pay any interest on any Debt
Security of that series within 30 days after the same becomes due and payable;
(b) failure to pay the principal of or premium, if any, on any Debt Security
of that series when the same becomes due and payable; (c) failure to perform
in any material respect or breach of any covenant or warranty of the Company
in the Indenture (other than any covenant or warranty the breach of which is
the subject of a separate Event of Default or any covenant or warranty
included in the Indenture solely for the benefit of one or more series of Debt
Securities other than that series) for a period of 90 days after written
notice by the Trustee to the Company or by the Holders of at least 25% in
aggregate principal amount of the Outstanding Debt Securities of such series
to the Company and the Trustee as provided in the Indenture or in the case of
any such failure or breach which can be cured but which cannot, with
reasonable diligence, be cured within such 90-day period, failure of the
Company to proceed with reasonable diligence after receipt of such notice; (d)
certain events of bankruptcy, insolvency, conservatorship, receivership,
reorganization or similar events; (e) a default under any evidence of
indebtedness of the Company (including Debt Securities of any other series) or
instrument under which there may be issued or by which there may be secured
any indebtedness of the Company, in each case in excess of $10,000,000
aggregate principal amount, which default constitutes a failure to pay any
portion of the principal of such indebtedness when due and payable after the
expiration of any applicable grace period or results in the acceleration of
the maturity of such indebtedness, if (x) written notice of such default has
been given to the Company by the Trustee or to the Company and the Trustee by
the Holders of at least 25% in aggregate principal amount of the Outstanding
Debt Securities of such series and (y) within a period of 10 days after such
notice is given such indebtedness has not been discharged or such acceleration
has not been rescinded or annulled; and (f) any other Event of Default
provided with respect to the Debt Securities of such series. (Section 501.)
Except as described in (e) above, no Event of Default with respect to
the Debt Securities of a particular series necessarily constitutes an Event of
Default with respect to the Debt Securities of any other series issued under
the Indenture.
8<PAGE>
Remedies
If any Event of Default with respect to the Outstanding Debt Securities
of any series occurs and is continuing, either the Trustee or the Holders of
at least 33% in aggregate principal amount of the Outstanding Debt Securities
of that series may declare the principal amount (or, if the Debt Securities of
that series are issued with original issue discount, such portion of the
principal as may be specified in the terms of the Debt Securities of that
series) of all the Outstanding Debt Securities of that series to be due and
payable immediately. (Section 502.)
At any time after the declaration of acceleration with respect to the
Debt Securities of any series has been made but before a judgment or decree
based on acceleration has been obtained, the Holders of a majority in
aggregate principal amount of the Outstanding Debt Securities of that series
may rescind and annul such declaration of acceleration and its consequences if
(a) the Company has paid or deposited with the Trustee a sum sufficient to pay
(i) all overdue interest on all Debt Securities of such series; (ii) the
principal of and premium, if any, on any Debt Securities of such series which
have become due otherwise than by such declaration of acceleration and
interest thereon at the rate or rates prescribed in such Debt Securities;
(iii) to the extent that payment of such interest is lawful, interest upon
overdue interest at the rate or rates prescribed therefor in such Debt
Securities; and (iv) all amounts due to the Trustee under the Indenture; and
(b) all other Events of Default with respect to the Debt Securities of such
series, other than the nonpayment of the principal of the Debt Securities of
such series which has become due solely by such declaration of acceleration,
have been cured or waived as provided in the Indenture. (Section 502.)
If an Event of Default occurs and is continuing with respect to more
than one series of Debt Securities, the Trustee or the Holders of no less than
the requisite percentage in aggregate principal amount of the Outstanding Debt
Securities of all such series, considered as one class, may make such
declaration of acceleration or waiver, or rescind and annul such acceleration,
as applicable, and not the Holders of the Debt Securities of any individual
series. (Section 502.)
The Indenture provides that, subject to the duty of the Trustee during
the continuance of an Event of Default to act with the required standard of
care, the Trustee will be under no obligation to exercise any of its rights or
powers under the Indenture at the request or direction of any of the Holders,
unless such Holders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which might be incurred
with respect to such request or direction. (Section 601.) Subject to such
provisions for the indemnification of the Trustee and subject to certain other
limitations, the Holders of a majority or more in aggregate principal amount
of the Outstanding Debt Securities of any series will have the right to direct
the time, method and place of conducting any proceedings for any remedy
available to the Trustee, or exercising any trust or power conferred on the
Trustee, with respect to the Debt Securities of that series; provided,
however, that if an Event of Default occurs and is continuing with respect to
more than one series of Debt Securities, the Holders of a majority or more in
aggregate principal amount of the Outstanding Debt Securities of all such
series, considered as one class, will have the right to make such direction,
9<PAGE>
and not the Holders of the Debt Securities of any one of such series; and
provided, further, however, that (a) such direction will not be in conflict
with any rule of law, with the Indenture or with the Debt Securities of any
such series, (b) the Trustee may take any other action it deems proper which
is not inconsistent with such direction and (c) such direction is not unduly
prejudicial to the rights of the other Holders of Debt Securities of such
series not joining such action. (Section 512.)
The right of a Holder of any Debt Security of such series to institute
a proceeding with respect to the Indenture is subject to certain conditions
precedent, but each Holder has an absolute and unconditional right to receive
payment of principal of, premium, if any, and interest, if any, on such Debt
Security when due and to institute suit for the enforcement of any such
payment. (Section 508.) The Trust Indenture Act of 1939 (the "Trust Indenture
Act"), provides that the Trustee, within 90 days after the occurrence of any
default under the Indenture with respect to the Debt Securities of a series,
is required to give to the Holders of the Debt Securities of such series
notice of any default known to it unless cured or waived; provided, however,
that except in the case of a default in the payment of principal of or
premium, if any, or interest, if any, on any Debt Securities of such series,
the Trustee may withhold such notice if the Trustee determines that it is in
the interest of such Holders to do so.
Modification, Waiver and Amendment
Certain modifications and amendments of the Indenture may be made by
the Company and the Trustee without the consent of the Holders, including
those which: (a) evidence the assumption by any successor to the Company of
the Company's obligations under the Indenture or with respect to the Debt
Securities; (b) add to the covenants of or surrender any right or power of the
Company under the Indenture; (c) add any Events of Default, in addition to
those specified in the Indenture, with respect to all or any series of Debt
Securities; (d) change or eliminate any provision of the Indenture; provided,
however, that any such change or elimination will become effective only when
there is no Debt Security of any series created prior to such action which is
entitled to the benefit of such provision; (e) provide security for the Debt
Securities; (f) establish the form or terms of Debt Securities of any series;
(g) evidence the appointment of a successor Trustee with respect to the Debt
Securities of one or more series and to add to or change any of the provisions
of the Indenture to facilitate administration of the trusts thereunder by more
than one Trustee; or (h) cure any ambiguity or inconsistency or make any other
provisions with respect to matters and questions arising under the Indenture,
provided such provisions shall not adversely affect the interests of the
Holders of Debt Securities of any series in any material respect. (Section
901.)
Without limiting the generality of the foregoing, if the Trust
Indenture Act is amended after the date of the Indenture to require changes to
the Indenture or the incorporation therein of additional provisions or permit
changes to, or require the elimination of, provisions which, at the date of
the Indenture or at any time thereafter, are required by the Trust Indenture
Act to be contained in the Indenture, the Company and the Trustee may, without
the consent of any Holders, enter into one or more supplemental indentures to
effect or reflect any such change, incorporation or elimination.
10<PAGE>
Other modifications and amendments of the Indenture may be made by the
Company and the Trustee with the consent of the Holders of not less than a
majority in aggregate principal amount of the Outstanding Debt Securities of
all series affected by such modification or amendment (all such series
considered as one class); provided, however, that no such modification or
amendment may, without the consent of the Holders of each Outstanding Debt
Security affected thereby, (a) change the stated maturity date of the
principal of, or premium, if any, or installment of interest, if any, on, any
Debt Security; (b) reduce the principal amount of, or premium, if any, or
interest, if any, on, or change the method of calculating the rate of interest
on, any Debt Security; (c) reduce the amount of the principal payable upon
declaration of acceleration of the Maturity Date of any Offered Debt
Securities issued with original issue discount; (d) change the place of
payment or the currency of payment of the principal of, or premium, if any, or
interest, if any, on, any Debt Security; (e) impair the right to institute
suit for the enforcement of any payment on or with respect to any Debt
Security; (f) reduce the percentage in aggregate principal amount of the
Outstanding Debt Securities of any series, the consent of whose Holders is
required for modification or amendment of the Indenture, waiver of compliance
with certain provisions of the Indenture or waiver of certain defaults; or (g)
amend certain other provisions of the Indenture relating to amendments and
defaults. (Section 902.)
The Holders of not less than a majority in aggregate principal amount
of the Outstanding Debt Securities of all series with respect to which a
certain covenant or restriction has been specified (all such series considered
as one class), may, on behalf of all Holders of Debt Securities, waive
compliance by the Company with certain covenants of the Indenture. (Section
1008.) The Holders of a majority in aggregate principal amount of the
Outstanding Debt Securities of any series may, on behalf of all Holders of
Debt Securities of that series waive any past default and its consequences
under the Indenture with respect to Debt Securities of that series, except a
default (i) in the payment of principal of, premium, if any, or interest, if
any, on any Debt Security or (ii) in respect of a covenant or provision that
cannot be modified or amended without the consent of the Holder of each
Outstanding Debt Security affected thereby. If a past default shall have
occurred with respect to more than one series of Debt Securities, the Trustee
or the Holders of not less than a majority in aggregate principal amount of
the Outstanding Debt Securities of all such series, considered as one class,
may waive such past default and its consequences, except as set forth in
clauses (i) and (ii) of the immediately preceding sentence, and not the
Holders of the Debt Securities of any one of such series. (Section 513.)
A supplemental indenture which changes or eliminates any covenant or
other provision of the Indenture which has expressly been included solely for
the benefit of one or more particular series of Debt Securities, or which
modifies the rights of the Holders of Debt Securities of such series with
respect to such covenant or other provision, shall be deemed not to affect the
rights under the Indenture of the Holders of Debt Securities of any other
series. (Section 902.)
Satisfaction and Discharge
11<PAGE>
The Company may terminate certain of its obligations under the
Indenture with respect to Debt Securities of any series, on the terms and
subject to the conditions contained in the Indenture, by irrevocably
depositing in trust with the Trustee cash and/or Eligible Obligations (as
defined below) (or a combination thereof) sufficient to pay the principal of,
premium, if any, and interest, if any, due and to become due on the Debt
Securities of such series in accordance with the terms of the Indenture and
such Debt Securities. (Section 401.)
The Indenture, with respect to all series of Debt Securities (except
for certain specified surviving obligations), will be discharged and canceled
upon the satisfaction of certain conditions, including: (a) the payment in
full of the principal of, and premium, if any, and interest, if any, on, all
of the Debt Securities or the deposit with the Trustee of an amount in cash or
Eligible Obligations (or a combination thereof) sufficient for such payment or
redemption in accordance with the Indenture; (b) the payment by the Company of
all other sums required under the Indenture; and (c) the delivery of a
certificate by the Company to the Trustee stating that all conditions relating
to the satisfaction and discharge of the Indenture have been complied with.
(Sections 102, 401 and 605.)
"Eligible Obligations" means: (a) with respect to Debt Securities
denominated in United States Dollars, Government Obligations (which include
direct obligations of, or obligations unconditionally guaranteed by, the
United States of America entitled to the benefit of the full faith and credit
thereof and certificates, depositary receipts or other instruments which
evidence a direct ownership interest in such obligations or in any specific
interest or principal payments due in respect thereof); and (b) with respect
to Debt Securities denominated in a currency other than United States Dollars
or in a composite currency, such other obligations or instruments as shall be
specified with respect to such Debt Securities, as contemplated by the
Indenture.
For United States federal income tax purposes, any deposit contemplated
by the first two paragraphs of this section may be treated as a taxable
exchange of the related Debt Securities for an issue of obligations of the
trust or a direct interest in the cash and securities held in the trust. In
that case, Holders of such Debt Securities would recognize gain or loss as if
the trust obligations or the cash or securities deposited, as the case may be,
had actually been received by them in exchange for their Debt Securities.
Such Holders thereafter would be required to include in income a share of the
income, gain or loss of the trust. The amount so required to be included in
income could be different from the amount that would be includable in the
absence of such deposit. Prospective investors are urged to consult their own
tax advisors as to the specific consequences to them of such deposit.
Governing Law
The Debt Securities and the Indenture will be governed by and construed
in accordance with the laws of the State of New York.
Regarding the Trustee
12<PAGE>
The Trustee has, from time to time, extended, and may continue to
extend, credit to the Company in the ordinary course of business. The Company
currently has a line of credit available from the Trustee. In addition, the
Trustee is currently acting as trustee under that certain Trust Indenture,
dated as of July 15, 1994, between the New Jersey Economic Development
Authority (the "NJEDA") and the Trustee pursuant to which the NJEDA issued its
Gas Facilities Refunding Revenue Bonds, the proceeds of which were loaned to
the Company pursuant to that certain Loan Agreement, dated as of July 15,
1994, between the NJEDA and the Company. Further, the Trustee is currently
acting as trustee under that certain Trust Indenture, dated as of July 15,
1994, between Brevard County, Florida (the "County"), and the Trustee pursuant
to which the County issued its Industrial Development Revenue Bonds, the
proceeds of which were loaned to the Company pursuant to that certain Loan
Agreement, dated as of July 15, 1994, between the County and the Company.
DESCRIPTION OF CAPITAL STOCK
Authorized Capital Stock
The Company is authorized to issue up to 30,000,000 shares of Common
Stock and 5,000,000 shares of preferred stock (the "Preferred Stock").
Common Stock
Each share of Common Stock is entitled to one vote on matters to be
voted upon by the shareholders and is not entitled to cumulative voting rights
in the election of directors. Under the Certificate of Incorporation of the
Company (the "Certificate of Incorporation"), the affirmative vote of the
holders of at least 75% of all of the then-outstanding shares of voting stock,
voting as a single class, are required to alter, amend or repeal the
provisions of the Certificate of Incorporation (or any provision of the By-
Laws of the Company (the "By-Laws") which is to the same effect) relating to
rights, preferences and limitations of each class of common and preferred
stock; the number, classification, election or removal of directors; action
taken by the Company's shareholders; the calling of special meetings of
shareholders; limited liability and indemnification rights of directors and
officers of the Company and amendment of the Certificate of Incorporation. In
the case of liquidation, dissolution or winding up of the Company's affairs,
whether voluntary or involuntary, all assets remaining after payment of
creditors and holders of all classes and series of Preferred Stock (if any are
outstanding) are required to be divided among the holders of the Common Stock
in proportion to their holdings. The holders of shares of Common Stock do not
have preemptive, redemption or conversion rights. Dividends on the Common
Stock may, by action of the Board, be declared and paid from time to time out
of retained earnings. The outstanding shares of Common Stock are, and the
shares of Common Stock which may be sold by the Company pursuant to this
Prospectus and any related Prospectus Supplement and Pricing Supplement will
be, if and when issued and delivered, validly issued, fully paid and
nonassessable.
13<PAGE>
Transfer Agent and Register
Mellon Securities Trust Company is the Transfer Agent and Registrar for
the Common Stock.
Preferred Stock
The Board is authorized to provide for the issuance of shares of
Preferred Stock, in one or more series, and to fix for each series such voting
powers, designations, preferences and relative, participating, optional and
other special rights, and such qualifications, limitations or restrictions, as
are stated in the resolution adopted by the Board providing for the issue of
such series and as permitted by New Jersey law.
Certain Anti-Takeover Effects
The Certificate of Incorporation and By-Laws provide that the Board
shall be divided into three classes with directors in each class serving three
year terms. Approximately one-third of the Board will be elected each year.
The classification of the Board pursuant to the By-Laws may delay shareholders
from removing a majority of the Board for two years, unless removal for cause
can be established and the required 75% vote for removal can be obtained, as
provided in the Certificate of Incorporation. Because the existence of a
classified board may operate to delay a potential purchaser's ability to
obtain control of the Board in a relatively short period of time, a classified
Board may have the effect of discouraging attempts to acquire significant
minority positions with the intent of obtaining control of the Company by
electing a slate of directors. Also, because neither the New Jersey Business
Corporation Act nor the Certificate of Incorporation of the Company requires
cumulative voting, a purchaser of a block of Common Stock constituting less
than a majority of the outstanding shares will have no assurance of
proportional representation on the Board.
The Certificate of Incorporation also provides that directors may be
removed only for cause and only by the affirmative vote of holders of at least
75% of the then-outstanding shares of voting stock, voting as a single class,
and that shareholder action can be taken only at an annual or special meeting
of shareholders, and prohibits shareholder action in lieu of a meeting unless
such action is by unanimous written consent. The Certificate of Incorporation
and the By-Laws provide that, subject to the rights of any holders of any
series of Preferred Stock, special meetings of shareholders can only be called
pursuant to a resolution adopted by a majority of the authorized directors of
the Company.
As described above, the Board is authorized to provide for the issuance
of shares of Preferred Stock, in one or more series, and to fix by resolution
of the Board, and to the extent permitted by New Jersey law, the terms and
conditions of each such series. The authorized shares of Preferred Stock, as
well as shares of Common Stock, are available for issuance without further
action by the shareholders, unless such action is required by applicable law
or the rules of the NYSE. Although the Board has no present intention of
doing so, it could issue a series of Preferred Stock that could, depending on
the terms of such series, impede the completion of a merger, tender offer or
other takeover attempt by including class voting rights that would enable the
14<PAGE>
holders thereof to block such a transaction. The Board will make any
determination to issue such shares based on its judgment as to the best
interests of the Company and its then existing shareholders.
These provisions could impede the completion of a merger, tender offer,
acquisition or other transaction that some or a majority of the shareholders
might believe to be in their best interests or in which the shareholders might
receive a premium for their stock over the then market price of such stock.
CERTAIN TAX CONSIDERATIONS
The applicable Prospectus Supplement will contain a brief summary of
the relevant United States federal income taxation laws applicable to the
Securities being offered thereby.
PLAN OF DISTRIBUTION
The Company may sell the Securities on a continuous basis (a) through
underwriters; (b) through dealers; (c) directly to one or more institutional
purchasers; or (d) through agents. Each Prospectus Supplement and any related
Pricing Supplement will set forth the terms of the offering of the Securities
offered thereby, including the name or names of any underwriters or agents,
the purchase price of such Securities and the proceeds to the Company from
such sale, any underwriting or agent discounts and other items constituting
underwriters' or agents' compensation, any initial public offering price and
any discounts or concessions allowed or reallowed or paid to dealers. Any
initial public offering price and any discounts or concessions allowed or
reallowed or paid to dealers may be changed from time to time. Only firms
named in the Prospectus Supplement and any related Pricing Supplement are
deemed to be underwriters or agents in connection with the Securities offered
thereby. If an agent is used, such agent will use its reasonable best efforts
to solicit offers to purchase the Securities for the period of its
appointment. The Company will have the sole right to accept offers to
purchase Securities and may reject proposed purchases in whole or in part.
The agent will have the right, in its discretion reasonably exercised and
without notice to the Company, to reject any proposed purchase of Securities
through the agent in whole or in part.
The Securities may be acquired by the underwriters or the agents for
their own account and may be resold from time to time in one or more
transactions, including competitive bids or negotiated transactions, at a
fixed public offering price or at varying prices determined at the time of
sale. The Securities may be offered to the public either through underwriting
syndicates represented by one more managing underwriters or directly by one or
more of such firms.
The Debt Securities will not have an established trading market when
issued. The underwriter or agent may make a market in the Debt Securities but
will not be obligated to do so and may discontinue any market-making at any
time without notice. There can be no assurance that there will be a secondary
market for any of the Debt Securities or liquidity in the secondary market, if
one develops, or that any or all of the Debt Securities will be sold.
15<PAGE>
The Common Stock is currently traded on the NYSE under the symbol
"NUI."
Any agent, whether acting as agent or principal, may be deemed to be an
"underwriter" within the meaning of the Securities Act. The Company will
agree to indemnify the underwriters and the agents against certain
liabilities, including liabilities under the Securities Act, or to contribute
to payments that the underwriters and the agents may be required to make in
respect thereof. Underwriters, dealers and agents may engage in transactions
with or perform services for the Company in the ordinary course of business.
LEGAL MATTERS
The validity of the Securities offered hereby will be passed upon for
the Company by Mary Patricia Keefe, Esq., Union, New Jersey, Group Vice
President and General Counsel of Elizabethtown Gas Company, a Division of the
Company, and Kaye, Scholer, Fierman, Hays & Handler, New York, New York,
special counsel to the Company. The validity of such Securities will be
passed upon for any underwriters or agents by Winthrop, Stimson, Putnam &
Roberts, New York, New York. Kaye, Scholer, Fierman, Hays & Handler and
Winthrop, Stimson, Putnam & Roberts may rely on the opinion of Mary Patricia
Keefe, Esq. as to legal matters arising under New Jersey law.
EXPERTS
The Company's audited Consolidated Financial Statements, and audited
Summary Consolidated Financial Data incorporated by reference in this
Prospectus have been audited by Arthur Andersen LLP, independent public
accountants, as indicated in their reports thereon and are incorporated herein
by reference in reliance upon the authority of said firm as experts in giving
said reports.
16<PAGE>
No dealer, salesperson or any other person has been authorized to give
any information or to make any representations, other than those contained in
this Prospectus (including any accompanying Prospectus Supplement and Pricing
Supplement), in connection with the offer contained herein, and, if given or
made, such other information or representations must not be relied upon as
having been authorized by the Company. This Prospectus (including any
accompanying Prospectus Supplement and Pricing Supplement) does not constitute
an offer of any securities other than those to which it relates or an offer to
sell, or a solicitation of an offer to buy, those to which it relates by
anyone in any jurisdiction in which the person making such offer or
solicitation is not qualified to do so or to anyone to whom it is unlawful to
make such offer or solicitation. The delivery of this Prospectus (including
any accompanying Prospectus Supplement and Pricing Supplement) at any time
does not imply that the information herein is correct as of any time subse-
quent to its date or that there has been no change in the affairs of the
Company since the date as of which information was given herein.
__________
NUI CORPORATION
Debt Securities
Common Stock (No Par Value)
__________
TABLE OF CONTENTS
Page
Available Information . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Incorporation of Certain Documents by Reference . . . . . . . . . . . . . 2
The Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Consolidated Ratio of Earnings to Fixed Charges . . . . . . . . . . . . . 3
Use of Proceeds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Description of Debt Securities . . . . . . . . . . . . . . . . . . . . . . 4
Description of Capital Stock . . . . . . . . . . . . . . . . . . . . . . . 11
Certain Tax Consideration . . . . . . . . . . . . . . . . . . . . . . . . 13
Plan of Distribution . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Legal Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Experts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
Expenses of the registrant in connection with the issuance and
distribution of the securities being registered, other than underwriting
discounts and commissions, are estimated to amount to the following:
Filing Fee -- Securities and Exchange Commission . $ 34,483
Listing Fee -- New York Stock Exchange . . . . . . 25,650 (1)
Legal fees (including blue sky expense) . . . . . . 285,000 (2)
Auditors' fees . . . . . . . . . . . . . . . . . . 50,000 (2)
Trustee's charges (including trustee's counsel fees) 25,550 (2)(3)
Transfer Agent and Registrar Fees . . . . . . . . . 1,000 (1)(2)
Printing and Engraving . . . . . . . . . . . . . . 40,000 (2)
Rating Agency Fees . . . . . . . . . . . . . . . . 75,000 (2)(3)
Miscellaneous . . . . . . . . . . . . . . . . . . . 20,000 (2)
Total assuming $100,000,000 of Common Stock
and $0 of Debt Securities (all items except
the first are estimated) . . . . . . . . . . . 456,500 (1)
Total assuming $100,000,000 of Debt Securities
and $0 of Common Stock (all items except the first
are estimated) . . . . . . . . . . . . . . . . 530,400 (3)
(1) Estimated, assuming $100,000,000 of Common Stock and $0 of Debt
Securities issued pursuant to this registration statement.
(2) Estimated, assuming six separate transactions, and subject to future
contingencies.
(3) Estimated, assuming $100,000,000 of Debt Securities and $0 of Common
Stock issued pursuant to this registration statement.
Item 15. Indemnification of Directors and Officers.
Pursuant to New Jersey Business Corporation Act, Section 14A:3-5, a
New Jersey corporation may indemnify its directors, officers, employees or
agents in their capacities as such, or when serving as such for any other
enterprise at the request of the corporation (each such person a "Corporate
Agent"), against expenses and liabilities in connection with any proceedings.
Good faith and a reasonable belief that the conduct was in or not opposed to
the best interests of the corporation and, with respect to a criminal
proceeding, no reasonable cause to believe that the conduct was unlawful, must
be found by a majority vote of a quorum of disinterested directors, by
independent legal counsel in a written opinion or by the shareholders. In
proceedings by or in the right of the corporation, a Corporate Agent, when the
above standards of conduct are found as set forth in the previous sentence,
may be indemnified for expenses. However, if a court judges a Corporate Agent
liable to the corporation, no indemnification shall be provided except as such
court deems proper. A Corporate Agent must be indemnified against expenses by
the corporation to the extent such Corporate Agent has been successful on the
II-1<PAGE>
merits or otherwise in a proceeding arising out of such Corporate Agent's
duties. A corporation may pay the expenses incurred by a Corporate Agent in
advance of final disposition of the proceeding if such payments are authorized
by the board of directors of the corporation upon the receipt of an
undertaking by or on behalf of such Corporate Agent to repay such amount if it
shall be ultimately determined that such Corporate Agent is not entitled to
indemnification under Section 14A:3-5 of the New Jersey Business Corporation
Act.
The Registrant has insurance policies covering certain of its
liabilities and expenses which might arise in connection with its lawful
indemnification of its directors and officers for certain of their liabilities
and expenses. In addition, the Registrant carries liability insurance on
behalf of its directors and officers against expenses incurred in proceedings
and for liabilities asserted against them by reason of their being or having
been a director or officer.
Item 16. Exhibits.
Exhibit
No. Description of Exhibit Reference
1-1 Form of Underwriting Agreement Filed herewith
relating Debt Securities
1-2 Form of Underwriting Agreement Filed herewith
relating to Common Stock
1-3 Form of Invitation for Bid, Filed herewith
Form of Bid and Form of Terms of
Purchase relating to Debt Securities
1-4 Form of Invitation for Bid, Filed herewith
Form of Bid and Form of Terms of
Purchase relating to Common Stock
1-5 Form of Distribution Agreement Filed herewith
relating to Debt Securities
3-1 Amended and Restated Certificate Incorporated by
of Incorporation reference to Exhibit
3(i) of the
Registrant's Form 10-K
Report for the
fiscal year ended
September 30, 1991
II-2<PAGE>
3-2 Amended and Restated By-Laws Incorporated by
reference to Exhibit
3(ii) of the
Registrant's Form 10-K
Report for the
fiscal year ended
September 30, 1991
4-1 Specimen certificate of Common Incorporated by
Stock, no par value reference to Exhibit
4(i) to Form S-2
Registration Statement
No. 33-46162
4-2 Form of Indenture Filed herewith
5 Opinion of Mary Patricia Filed herewith
Keefe, Esq.
12 Statement Re Computation of Ratio Filed herewith
of Earnings to Fixed Charges
23-1 Consent of Arthur Andersen LLP Filed herewith
23-2 Consent of Mary Patricia Keefe, Filed herewith
Esq. (contained in opinion filed
as Exhibit 5)
25 Statement of Eligibility of Trustee Filed herewith
26-1 Form of Invitation for Bids Included as part of
relating to Debt Securities Exhibit 1-3 hereof
26-2 Form of Invitation for Bids Included as part of
relating to Common Stock Exhibit 1-4 hereof
Exhibits listed above which have been filed previously with the
Securities and Exchange Commission pursuant to the Securities Act of 1933 or
the Securities Exchange Act of 1934 and which were designated as noted above
and have not been amended, are hereby incorporated by reference and made a
part hereof with the same effect as if filed herewith.
The Registrant is a party to various agreements with respect to long-
term indebtedness not being registered pursuant to which the total amount of
indebtedness authorized under each agreement, respectively, does not exceed
10% of the total assets of the Registrant and its subsidiaries on a
consolidated basis. The Registrant hereby agrees to furnish to the Securities
and Exchange Commission copies of such agreements upon request.
II-3<PAGE>
Item 17. Undertakings.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3)
of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the
most recent post-effective amendment thereof) which, individually
or in the aggregate, represent a fundamental change in the
information set forth in the registration statement; and
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold
at the termination of the offering.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
The undersigned Registrant hereby undertakes (1) to use its best
efforts to distribute prior to the opening of bids, to prospective bidders,
underwriters, and dealers, a reasonable number of copies of a prospectus which
at that times meets the requirements of Section 10(a) of the Act, and relating
to the securities offered at competitive bidding, as contained in the
registration statement, together with any supplements thereto, and (2) to file
an amendment to the registration statement reflecting the results of bidding,
the terms of the reoffering and related matters to the extent required by the
applicable form, not later than the first use, authorized by the issuer after
II-4<PAGE>
the opening of bids, of a prospectus relating to the securities offered at
competitive bidding, unless no further public offering of such securities by
the issuer and no reoffering of such securities by the purchasers is proposed
to be made.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the Registrant pursuant to Item 15 of this Registration Statement, or
otherwise, the Registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public
policy as expressed in the Securities Act of 1933 and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of expenses incurred or
paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities
being registered, the Registrant will, unless in the opinion of its counsel
the matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act of 1933 and will be
governed by the final adjudication of such issue.
II-5<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the Township of
Bedminster, State of New Jersey, on the 15th day of November 1994.
NUI Corporation
(Registrant)
By: JOHN KEAN
John Kean, Chairman of the Board
II-6<PAGE>
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Name Capacity Date
JOHN KEAN Chairman of the November 15, 1994
John Kean Board (Principal
executive officer)
DAVID VINCENT Executive Vice November 15, 1994
David Vincent President (Chief
financial officer)
BERNARD F. LENIHAN Vice President November 15, 1994
Bernard F. Lenihan (Chief accounting
officer)
JOHN W. ATHERTON, JR. Director November 15, 1994
John W. Atherton, Jr.
CALVIN R. CARVER Director November 15, 1994
Calvin R. Carver
VERA FARRIS Director November 15, 1994
Dr. Vera King Farris
JAMES J. FORESE Director November 15, 1994
James J. Forese
ROBERT W. KEAN, JR. Director November 15, 1994
Robert W. Kean, Jr.
JACK LANGER Director November 15, 1994
Jack Langer
B. S. LEE Director November 15, 1994
Bernard S. Lee
R. V. WHISNAND Director November 15, 1994
R. V. Whisnand
JOHN WINTHROP Director November 15, 1994
John Winthrop
II-7<PAGE>
INDEX TO EXHIBITS
Exhibit
No. Description of Exhibit P/CE
1-1 Form of Underwriting Agreement CE
relating to Debt Securities
1-2 Form of Underwriting Agreement CE
relating to Common Stock
1-3 Form of Invitation for Bid, CE
Form of Bid and Form of Terms of
Purchase relating to Debt Securities
1-4 Form of Invitation for Bid, CE
Form of Bid and Form of Terms of
Purchase relating to Common Stock
1-5 Form of Distribution Agreement CE
relating to Debt Securities
4-2 Form of Indenture CE
5 Opinion of Mary Patricia CE
Keefe, Esq.
12 Statement Re Computation of Ratio CE
of Earnings to Fixed Charges
23-1 Consent of Arthur Andersen LLP CE
23-2 Consent of Mary Patricia Keefe, CE
Esq. (contained in opinion filed
as Exhibit 5)
24 Statement of Eligibility of Trustee CE<PAGE>
Proof of November 14, 1994 EXHIBIT NO. 1-1
[Form of Debt Security
Underwriting Agreement]
UNDERWRITING AGREEMENT
[Date]
To the Representatives
named in Schedule I
hereto of the several
Underwriters named in
Schedule II hereto
Dear Sirs:
NUI CORPORATION, a New Jersey corporation (the "Company"), proposes
to issue and sell to the persons named in Schedule II attached hereto (the
"Underwriters"), for whom the firms named in Schedule I attached hereto
are acting as representatives (the "Representatives"), an aggregate amount
of securities as set forth and described on Schedule I attached hereto
(the "Securities") of the Company. The Securities are described in the
Prospectus which is referred to below. If the firm or firms listed in
Schedule II attached hereto include only the firm or firms listed in
Schedule I attached hereto, then the terms "Underwriters" and
"Representatives," as used herein, shall each be deemed to refer to such
firm or firms.
The Company has filed in accordance with the provisions of the
Securities Act of 1933 (the "Act") 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
and prospectus may have been amended or supplemented from time to time
prior to the date of this Agreement. 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 Indenture (the "Indenture"), dated as of ____________
___, 1994, between the Company and First Fidelity Bank, National
Association, as trustee (the "Trustee"), 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 describe certain terms of the
Securities and prior to any such filing will advise you of all further
information (financial and other) with respect to the Company to be set
forth therein. The term "Prospectus" means the prospectus in the form in<PAGE>
which it appears in the Registration Statement as it may have been amended
or supplemented from time to time prior to the date of this Agreement,
other than any amendment or supplement relating solely to securities other
than the Securities, together with the prospectus supplement or
supplements specifically relating to any Securities sold pursuant to this
Agreement (the "Prospectus Supplement"), 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 Underwriters agree as follows:
1. Sale and Purchase. Upon the basis of the representations and
the other terms and conditions herein set forth, the Company agrees to
sell to each of the respective Underwriters and each of the Underwriters,
severally and not jointly, agrees to purchase from the Company the
Securities set forth opposite the name of such Underwriter in Schedule II
attached hereto at the purchase price set forth on Schedule I attached
hereto plus accrued interest thereon, if any, from the date of original
issuance of the Securities to the Closing Date (as defined below). You
shall release the Securities for public sale promptly after the execution
and delivery of this Agreement. You may from time to time increase or
decrease the public offering price after the initial public offering of
the Securities to such extent as you may determine.
2. Payment and Delivery. Payment of the purchase price for the
Securities shall be made to the Company by certified, cashier's or
official bank check, payable in New York clearing house funds, against
credit with respect to the Securities for the respective accounts of the
Underwriters of the one or more global Securities to be deposited with The
Depository Trust Company ("DTC"). Such payment, deposit and credit shall
be made at such time and location as set forth in Schedule I attached
hereto, on the fifth Business Day (as defined in the Indenture) following
the day on which this Agreement shall become effective (unless another
date, time or place shall be agreed to by you and the Company or unless
postponed in accordance with the provisions of Section 10 hereof). The
time at which such payment, deposit and credit are actually made is
hereinafter called the "Closing" and the date of the Closing is
hereinafter called the "Closing Date." The Securities shall be issued in
book-entry form through the facilities of DTC. The Representatives agree
to furnish to DTC the names and denominations of the Securities for each
Underwriter not less than 72 hours prior to the Closing. If such
information is not received by that time, the Securities will be credited
to the account of one of the Representatives as a single credit and any
subsequent registration of transfer to effect a reallocation of the
Securities shall be the responsibility of the Underwriters.
3. Representations of the Company. The Company makes the
following representations to each of the Underwriters, 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
2<PAGE>
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 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
Underwriters; 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
this Agreement with respect to (i) the terms of this Agreement, (ii) the
terms of the Securities and the sale thereof, (iii) the terms of the
initial public offering of the Securities 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
3<PAGE>
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 first 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 first be used to confirm sales of the Securities and at the
Closing Date, 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 Underwriter
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.
(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.
4<PAGE>
(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.
4. The Underwriters' Representations. Each Underwriter 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 Underwriter for use in the Prospectus is correct as to such
Underwriter. Each Underwriter, in addition to other written information
furnished to the Company for use in the Prospectus, herewith furnishes to
the Company, through the Representatives, for use in the Prospectus, the
written information with regard to the public offering, if any, of the
Securities by such Underwriter and warrants and represents that such
written information is correct as to such Underwriter.
(b) Each Underwriter may lawfully purchase from the Company the
Securities that it has agreed to purchase pursuant to this Agreement.
5. 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 the Representatives 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 the Underwriters, without charge, as soon as reasonably
practicable and from time to time thereafter during such period of time
(not exceeding nine months) after the effective date of this Agreement as
the Underwriters 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
Representatives may reasonably request; and in case any Underwriter is
required to deliver a prospectus after the expiration of nine months after
the effective date of this Agreement, to furnish to the Representatives as
soon as reasonably practicable, upon request by the Representatives, a
reasonable quantity of a supplemental prospectus or of a Prospectus
Supplement complying with Section 10(a)(3) of the Act.
(c) Furnish to the Representatives a copy, certified by the Secretary
or an Assistant Secretary of the Company, of the Registration Statement as
5<PAGE>
initially filed with the SEC and of all amendments thereto, other than
amendments relating solely to securities other than the Securities, and,
upon request, to furnish to the Representatives sufficient plain copies
thereof (exclusive of exhibits thereto) or of a composite of the
Registration Statement giving effect to all amendments thereto (exclusive
of exhibits thereto and of the Statement of Eligibility), other than
amendments relating solely to securities other than the Securities, for
distribution of one copy thereof to each of the other Underwriters.
(d) As soon as reasonably practicable, to make generally available to
its security holders and the Representatives 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 Representatives may designate within six months after the date hereof
and itself to pay, or to reimburse the Underwriters 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 (not exceeding nine months) after the
effective date of this Agreement as the Underwriters 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 the Underwriters and to dealers (whose
names and addresses are furnished to the Company by the Representatives)
to whom Securities may have been sold by the Underwriters 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
Representatives that the Underwriters shall suspend solicitation of offers
to purchase Securities and, if so notified by the Company, the
Underwriters covenant and agree that the Underwriters 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 Underwriters 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, such 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; and the costs (including counsel fees not to exceed
$5,000) of qualifying such Securities for sale under the Blue Sky or other
6<PAGE>
securities laws of certain jurisdictions of the United States of America
and of preparing the Blue Sky Memorandum as set forth in Section 5(e)
hereof; provided, however, if the Underwriters shall not take up and pay
for the Securities due to the failure of the Company to comply with any of
the conditions specified in Section 7 hereof, or if this Agreement shall
be terminated in accordance with the provisions of Section 9 hereof, the
Company agrees to pay the reasonable fees and actual out-of-pocket
expenses of Winthrop, Stimson, Putnam & Roberts, as counsel to the
Underwriters.
(h) Between the date of this Agreement and the Closing Date, the
Company will not, without the Representatives' prior consent, offer, sell,
contract to sell or otherwise dispose of any debt securities of the
Company substantially similar to the Securities (other than (i) the
Securities that are to be sold pursuant to this 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.
6. Reimbursement of Underwriters' Expenses. If the Securities
are not delivered for any reason other than the termination of this
Agreement pursuant to Section 9 hereof or the default by one or more of
the Underwriters in its or their respective obligations hereunder, the
Company shall reimburse the Underwriters for all of their actual out-of-
pocket expenses.
7. Conditions of Underwriters' Obligations. The several
obligations of the Underwriters hereunder are subject to the fulfillment
of the following conditions at or before the Closing:
(a) The Company's representations contained herein 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 Closing Date.
(b) At the Closing, each of you shall receive an opinion of Kaye,
Scholer, Fierman, Hays & Handler, Special Counsel to the Company,
addressed to each of you, as the Representatives, dated the Closing 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 Securities and the Indenture have been duly
authorized, executed and delivered by the Company; the Indenture has been
duly qualified under the Trust Indenture Act; the Securities, assuming due
authentication thereof by the Trustee, and the Indenture, assuming due
authorization, execution and delivery thereof by the Trustee, are the
7<PAGE>
legal, valid and binding obligations of the Company; and the Securities,
assuming due authentication thereof by the Trustee, are 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).
(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 7(c) hereof, dated the Closing
Date and addressed to each of you, as the Representatives, 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, as the Representatives, and, provided further,
that, in the case of any such reliance, such counsel shall state that they
believe that they and the Underwriters 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 Representatives, 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
8<PAGE>
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 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).
(c) At the Closing, 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, as the Representatives, dated the Closing 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
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 Securities and the Indenture have been duly authorized,
executed and delivered by the Company; the Securities, assuming due
authentication thereof by the Trustee, and the Indenture, assuming due
authorization, execution and delivery thereof by the Trustee, are the
legal, valid and binding obligations of the Company; and the Securities,
assuming due authentication thereof by the Trustee, are entitled to the
benefit of the Indenture.
(iii) This Agreement has been duly authorized, executed and
delivered by the Company.
(iv) The making of and the performance by the Company under the
Indenture, the Securities and this Agreement and the carrying out by the
Company of the terms thereof and hereof do not violate or conflict with
9<PAGE>
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 and the Registration
Statement, the validity or enforceability of this Agreement, the
Securities or the Indenture, 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, the Indenture and the
Securities, and no other regulatory 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, the Indenture or the Securities or the consummation of the
transactions contemplated hereby or thereby; 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 the Underwriters are relying upon the opinions, each
dated the Closing Date and addressed to each of you, as the
Representatives, 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
Representatives), 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 &
10<PAGE>
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
Representatives), each such opinion dated the Closing Date and addressed
to each of you, as the Representatives, 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, as the Representatives, and, provided further, that, in the case
of any such reliance, she shall state that she believes that she and the
Underwriters 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 Representatives, 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
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 Closing, each of you shall receive an opinion of Winthrop,
Stimson, Putnam & Roberts addressed to each of you, as the
Representatives, dated the Closing 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.
11<PAGE>
(iii) This Agreement has been duly authorized, executed and
delivered by the Company.
(iv) The Securities and the Indenture have been duly authorized,
executed and delivered by the Company; the Indenture has been qualified
under the Trust Indenture Act; the Securities, assuming due authentication
thereof by the Trustee, and the Indenture, assuming due authorization,
execution and delivery thereof by the Trustee, are 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, assuming due authentication thereof
by the Trustee, are 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.
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 Representatives, 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 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).
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
12<PAGE>
President and General Counsel of EGC, referred to in Section 6(c) hereof,
dated the Closing Date and addressed to each of you, as the
Representatives, 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, as the
Representatives, and, provided further, that, in the case of any such
reliance, such counsel shall state that they believe that they and the
Underwriters are justified in relying on such opinion and certificates for
such matters.
(e) At the Closing, 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 Representatives), addressed to
each of you, as the Representatives, each dated the Closing Date and in
form and substance reasonably satisfactory to the Representatives,
substantially to the effect set forth in Exhibits A-1 through A-5 attached
hereto.
(f) At the Closing, each of you shall receive a letter or letters of
the Company's independent public accountants, addressed to each of you, as
the Representatives, dated the Closing Date and in form and substance
reasonably satisfactory to each of you, substantially stating 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 Exchange Act and the published
rules and regulations of 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
13<PAGE>
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 Underwriters
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
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 Underwriters shall, in their sole discretion, accept.
(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
Representatives, 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.
(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 the Closing
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 Closing, deliver to each of you, as the
Representatives, 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 7 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 the Representatives and their
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 Closing Date as the Underwriters or their counsel may
reasonably request.
14<PAGE>
(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 Closing Date.
(l) 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 time of the Closing, 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 hereof except as may have been disclosed in the
Prospectus or agreed to in writing by the Representatives.
(n) The Registration Statement shall have become effective on or before
the date of this Agreement and shall be effective on the Closing Date.
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.
[Provision applicable only if debt service insurance option elected by
the Company.]
[(o) In the event that a debt service insurance policy is obtained, an
effective debt service insurance policy.]
8. 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 time of the Closing:
(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 Representatives, on or prior
to the date hereof, is unacceptable to the Company.
(d) The Underwriters' 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 Closing Date.
In case any of the conditions specified in this Section 8 shall not
have been fulfilled, this 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 the
15<PAGE>
Representatives. Any such termination shall be without liability of any
party to any other party except to the extent provided in Section 11
hereof.
9. Events Permitting Termination. The Representatives may
terminate the Underwriters' obligations to purchase the Securities at any
time before the Closing if 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
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 the
reasonable judgment of the Representatives, to make it impracticable to
market the Securities;
(b) any event or condition which, in the reasonable judgment of the
Representatives, 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 Representatives, may substantially impair the
marketability or reduce the market price of the Securities.
If the Representatives elect to terminate this Agreement as
provided in this Section 9, the Company shall be notified promptly in
writing by letter or telegram.
If the sale to the Underwriters of the Securities, as contemplated
by this Agreement, is not consummated by the Underwriters for any reason
permitted under this 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 6 and 11
hereof), and the Underwriters shall be under no obligation or liability to
the Company under this Agreement (except to the extent provided in Section
11 hereof) or to one another hereunder.
10. Default by One or More Underwriters. If one or more of the
Underwriters defaults, the remaining Underwriters, if any, are obligated
to take up and pay for at the Closing additional Securities not exceeding
10% of their respective participations. Should the total aggregate
16<PAGE>
participation of the defaulting Underwriter or Underwriters exceed 9.09%
of the total principal amount of the Securities to be purchased as set
forth on Schedule I attached hereto, (a) the Representatives shall use
their best efforts to arrange for a substitute Underwriter or Underwriters
within 24 hours of notice from the Company of such default, to purchase
all, but not less than all, of the total participation of the defaulting
Underwriter or Underwriters upon the terms set forth in this Agreement,
and (b) if the Representatives shall fail to arrange for such a substitute
Underwriter or Underwriters within such 24-hour period, the Company shall
be entitled to an additional 24-hour period within which to arrange for a
substitute Underwriter or Underwriters, to purchase all, but not less than
all, of the total participation of the defaulting Underwriter or
Underwriters upon the terms set forth in this Agreement. In either event,
the Representatives or the Company shall have the right to postpone the
Closing for a period not to exceed five full business days from the date
determined as provided in Section 2 hereof, in order that the necessary
changes in the Registration Statement and the Prospectus and any other
documents and arrangements may be effected. If the Representatives and
the Company shall fail to procure a substitute Underwriter or
Underwriters, as above provided, to purchase or agree to purchase all, but
not less than all, of the total participation of the defaulting
Underwriter or Underwriters, then this Agreement shall terminate. In the
event of any such termination, the Company shall not be liable to any non-
defaulting Underwriter, nor shall any non-defaulting Underwriter be liable
to the Company; provided, however, that each defaulting Underwriter shall
not be released from its liability to the Company for damages occasioned
by such default under this Agreement.
The term Underwriter as used in this Agreement shall refer to and
include any underwriter substituted under this Section 10 with like effect
as if such substituted underwriter had originally been named in Schedule
II attached hereto.
11. Indemnity by the Company and the Underwriters.
(a) The Company agrees to indemnify, defend and hold harmless each
Underwriter and any person who controls any Underwriter 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 Underwriter 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 writing to the Company by, or on behalf of,
any Underwriter expressly for use with reference to such Underwriter 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,
17<PAGE>
however, that the indemnity agreement contained in this Section 11(a) with
respect to the Registration Statement or the Prospectus shall not inure to
the benefit of any Underwriter (or to the benefit of any person
controlling such Underwriter) 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 Underwriter 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 Underwriter or a controlling
person of an Underwriter in respect of which indemnity may be sought
against the Company pursuant to the foregoing paragraph, such Underwriter
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 Underwriter 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
Underwriter 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 Underwriter 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
Underwriter expressly for use with reference to such Underwriter 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 written
information necessary to make such written information, in the light of
18<PAGE>
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 Underwriter pursuant to the foregoing paragraph,
the Company or any such director, officer or controlling person shall
promptly notify such Underwriter in writing of the institution of such
action and such Underwriter 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 Underwriter in connection with the
defense of such action or such Underwriter 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 Underwriter (in which case such Underwriter 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 Underwriter (it being understood,
however, that such Underwriter 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 Underwriter shall be liable for any settlement of any
claim or action effected without the written consent of such Underwriter,
which consent shall not be unreasonably withheld.
(c) If the indemnification provided in this Section 11 is unavailable
to an indemnified party under paragraphs (a) and (b) of this Section 11 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 Underwriters 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 Underwriters 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 Underwriters on the other shall be deemed to be in
the same proportion as the total proceeds from the offering (net of
underwriting discounts and commissions but before deducting expenses)
received by the Company bear to the total underwriting discounts and
commissions received by the Underwriters. The relative fault of the
Company on the one hand and of the Underwriters on the other shall be
determined by reference to, among other things, whether the untrue
statement or alleged untrue statement of a material fact or omission or
19<PAGE>
alleged omission relates to information supplied by the Company or by the
Underwriters, 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 Underwriters agree that it would not be just
and equitable if contribution pursuant to this Section 11 were determined
by pro rata allocation (even if the Underwriters 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 11. Notwithstanding the provisions of this Section
11, no Underwriter 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 exceeds the
amount of any damages which such Underwriter 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 Underwriters'
obligations to contribute pursuant to this Section 11 are several in
proportion to their respective underwriting commitments and not joint.
(e) The indemnity and contribution agreements contained in this Section
11 and the covenants and representations of the Company and the
Underwriters contained in this Agreement shall remain in full force and
effect regardless of any investigation made by, or on behalf of, any
Underwriter, or any person who controls any Underwriter 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 Underwriter 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.
[12. Debt Service Insurance. Provisions to be inserted, if
applicable.]
13. Notices. Except as otherwise herein provided, all statements,
requests, notices and agreements shall be in writing or by telegram and,
if to the Underwriters, shall be sufficient in all respects if delivered
or sent to the Representatives at the address set forth in Schedule I
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.
14. Parties at Interest. The agreement herein set forth has been
and is made solely for the benefit of the Underwriters, the Company and
the controlling persons, directors and officers referred to in Section 11
20<PAGE>
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
purchaser, from one or more of the Underwriters) shall acquire or have any
right under or by virtue of this Agreement.
15. Counterparts. This Agreement may be signed by the parties in
counterparts which together shall constitute one and the same agreement
among the parties.
16. 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.
17. Time is of Essence. Time shall be of the essence with
respect to this Agreement.
If the foregoing correctly sets forth the understanding among the
Company, and the Underwriters, please so indicate in the space provided
below for the purpose, whereupon this letter and your acceptance shall
constitute a binding agreement among the Company, and the Underwriters,
severally.
Very truly yours,
NUI CORPORATION
By:
Name:
Title:
Accepted and agreed to as of the date first
above written, on behalf of itself and the
other several Underwriters named in
Schedule II attached hereto.
By:
By:
Name:
Title:
21<PAGE>
Schedule I
Registration Number:
Representatives Names:
Address for Notice:
Description of Securities to be Offered:
Amount of Securities to be Offered:
Purchase Price of Securities to be Offered
Closing Date, Time and Location:
[Provisions regarding debt service insurance, if any.]
22<PAGE>
Schedule II
Underwriters Principal Amount of Securities
23<PAGE>
EXHIBIT A-1
[Letterhead of McWhirter, Reeves, McGlothlin, Davidson & Bakas or other
Florida Counsel reasonably acceptable to the Purchasers]
[the Closing Date]
The Representatives
Listed in Schedule I to the
Underwriting Agreement, dated
________ __, ____ (the "Agreement"),
of the several Underwriters named in
Schedule II to the Agreement
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
sale on the date hereof of $________ aggregate principal amount
of the Company's _________________ , to the Underwriters named in
Schedule II to the Agreement.
In such capacity, we have examined originals or copies,
identified to our satisfaction, of the Agreement, the Securities
(as defined in the Agreement), the Indenture (as defined in the
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.
A-1-1<PAGE>
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, 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, 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,
A-1-2<PAGE>
EXHIBIT A-2
[Letterhead of Piper & Marbury or other Maryland Counsel
reasonably acceptable to the Purchasers]
[the Closing 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, 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.
A-2-1<PAGE>
EXHIBIT A-3
[Letterhead of Cullen & Dykman or other New York Counsel
reasonably acceptable to the Purchasers]
[the Closing 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, 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, 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.
A-3-1<PAGE>
EXHIBIT A-4
[Letterhead of Brooks, Pierre, McLendon, Humphrey & Leonard or
other
North Carolina Counsel reasonably acceptable to the Purchaser]
[the Closing 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, 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.
A-4-1<PAGE>
EXHIBIT A-5
[Letterhead of Malatesta, Hawke, McKeon or other Pennsylvania
Counsel reasonably acceptable to the Purchasers]
[the Closing 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, 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, 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.
A-5-1<PAGE>
Proof of November 14, 1994 EXHIBIT NO. 1-2
[Form of Common Stock
Underwriting Agreement]
UNDERWRITING AGREEMENT
[Date]
To the Representatives
named in Schedule I
hereto of the several
Underwriters named in
Schedule II hereto
Dear Sirs:
NUI CORPORATION, a New Jersey corporation (the "Company"), proposes
to issue and sell to the persons named in Schedule II attached hereto (the
"Underwriters"), for whom the firms named in Schedule I attached hereto
are acting as representatives (the "Representatives"), an aggregate number
of shares of Common Stock, no par value (the "Common Stock"), as set forth
and described on Schedule I attached hereto (the "Securities") of the
Company. The Securities are described in the Prospectus which is referred
to below. If the firm or firms listed in Schedule II attached hereto
include only the firm or firms listed in Schedule I attached hereto, then
the terms "Underwriters" and "Representatives," as used herein, shall each
be deemed to refer to such firm or firms.
The Company has filed in accordance with the provisions of the
Securities Act of 1933 (the "Act") 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
and prospectus may have been amended or supplemented from time to time
prior to the date of this Agreement. 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 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 describe
certain terms of the Securities and prior to any such filing will advise
you of all further information (financial and other) with respect to the
Company to be set forth therein. The term "Prospectus" means the
prospectus in the form in which it appears in the Registration Statement
as it may have been amended or supplemented from time to time prior to the
date of this Agreement, other than any amendment or supplement relating<PAGE>
solely to securities other than the Securities, together with the
prospectus supplement or supplements specifically relating to any
Securities sold pursuant to this Agreement (the "Prospectus Supplement"),
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 Underwriters agree as follows:
1. Sale and Purchase. Upon the basis of the representations and
the other terms and conditions herein set forth, the Company agrees to
sell to each of the respective Underwriters and each of the Underwriters,
severally and not jointly, agrees to purchase from the Company the number
of shares of the Securities set forth opposite the name of such
Underwriter in Schedule II attached hereto at the purchase price set forth
on Schedule I attached hereto. You shall release the Securities for
public sale promptly after the execution and delivery of this Agreement.
You may from time to time increase or decrease the public offering price
after the initial public offering of the Securities to such extent as you
may determine.
2. Payment and Delivery. Payment of the purchase price for the
Securities shall be made to the Company by certified, cashier's or
official bank check, payable in New York clearing house funds, against
delivery of the certificates representing the Securities to the
Representatives for the respective accounts of the Underwriters. Such
payment and delivery shall be made at such time and location as set forth
in Schedule I attached hereto, on the fifth business day following the day
on which this Agreement shall become effective (unless another date, time
or place shall be agreed to by you and the Company or unless postponed in
accordance with the provisions of Section 10 hereof). The time at which
such payment and delivery are actually made is hereinafter called the
"Closing" and the date of the Closing is hereinafter called the "Closing
Date." Certificates representing the Securities shall be delivered to the
Representatives in definitive form in such names and in such denominations
as the Representatives shall specify not less than 72 hours prior to the
Closing. For the purpose of expediting the checking of the certificates
representing the Securities, the Company agrees to make such certificates
available to the Representatives for such purpose at least one full
business day preceding the Closing.
3. Representations of the Company. The Company makes the
following representations to each of the Underwriters, 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, to issue and sell the Securities as herein
contemplated and to perform its obligations hereunder; the conduct of the
Company's business does not make the qualification or licensing of the
2<PAGE>
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 and the issuance and sale of the Securities,
and this Agreement has been duly executed and delivered by the Company; as
of the time of the Closing, the Securities, when issued and delivered to
the Representatives as contemplated hereby, will be duly authorized and
validly issued, fully paid and non-assessable, and free and clear of any
pledge, lien, charge, encumbrance, security interest, preemptive right or
other claim; 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 and the issuance and sale
of the Securities as contemplated hereby have heretofore been obtained or
taken other than (i) in connection with any Prospectus 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 Underwriters; 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 this Agreement with respect to (i) the
terms of this Agreement, (ii) the terms of the Securities and the sale
thereof, (iii) the terms of the initial public offering of the Securities
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 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 and this Agreement; and the Company
is not in material default under any obligation for borrowed money.
(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
3<PAGE>
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 first be used
to confirm sales of the Securities and at the Closing Date, will comply in
all material respects with the 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 first be
used to confirm sales of the Securities and at the Closing Date, 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 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 Underwriter expressly for use in the
Registration Statement or the Prospectus.
(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.
(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 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.
(g) The Company has an authorized capitalization as set forth in the
Registration Statement and the Prospectus; all of the issued and
outstanding shares of the Common Stock have been duly authorized and
validly issued and are fully paid and non-assessable; the capital stock of
the Company, including the Securities, conforms to the description thereof
contained in the Registration Statement and the Prospectus, and the
certificates representing the Securities are in due and proper form and
4<PAGE>
the holders of the Securities will not be subject to personal liability by
reason of being such holders.
4. The Underwriters' Representations. Each Underwriter 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 Underwriter for use in the Prospectus is correct as to such
Underwriter. Each Underwriter, in addition to other written information
furnished to the Company for use in the Prospectus, herewith furnishes to
the Company, through the Representatives, for use in the Prospectus, the
written information with regard to the public offering, if any, of the
Securities by such Underwriter and warrants and represents that such
written information is correct as to such Underwriter.
(b) Each Underwriter may lawfully purchase from the Company the
Securities that it has agreed to purchase pursuant to this Agreement.
5. 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 the Representatives 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 the Underwriters, without charge, as soon as reasonably
practicable and from time to time thereafter during such period of time
(not exceeding nine months) after the effective date of this Agreement as
the Underwriters 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
Representatives may reasonably request; and in case any Underwriter is
required to deliver a prospectus after the expiration of nine months after
the effective date of this Agreement, to furnish to the Representatives as
soon as reasonably practicable, upon request by the Representatives, a
reasonable quantity of a supplemental prospectus or of a Prospectus
Supplement complying with Section 10(a)(3) of the Act.
(c) Furnish to the Representatives a copy, certified by the Secretary
or an Assistant Secretary of the Company, of the Registration Statement as
initially filed with the SEC and of all amendments thereto, other than
amendments relating solely to securities other than the Securities, and,
upon request, to furnish to the Representatives sufficient plain copies
thereof (exclusive of exhibits thereto) or of a composite of the
Registration Statement giving effect to all amendments thereto (exclusive
of exhibits thereto), other than amendments relating solely to securities
other than the Securities, for distribution of one copy thereof to each of
the other Underwriters.
5<PAGE>
(d) As soon as reasonably practicable, to make generally available to
its security holders and the Representatives 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 Representatives may designate within six months after the date hereof
and itself to pay, or to reimburse the Underwriters 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 (not exceeding nine months) after the
effective date of this Agreement as the Underwriters 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 the Underwriters and to dealers (whose
names and addresses are furnished to the Company by the Representatives)
to whom Securities may have been sold by the Underwriters 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
Representatives that the Underwriters shall suspend solicitation of offers
to purchase Securities and, if so notified by the Company, the
Underwriters covenant and agree that the Underwriters 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 Underwriters 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 certificates representing 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 and
disbursements of accountants for the Company; and the costs (including
counsel fees not to exceed $5,000) of qualifying such Securities for sale
under the Blue Sky or other securities laws of certain jurisdictions of
the United States of America, of preparing the Blue Sky Memorandum as set
forth in Section 5(e) hereof and the filing for review of the public
offering of the Securities by the National Association of Securities
Dealers, Inc.; provided, however, if the Underwriters shall not take up
and pay for the Securities due to the failure of the Company to comply
with any of the conditions specified in Section 7 hereof, or if this
Agreement shall be terminated in accordance with the provisions of Section
9 hereof, the Company agrees to pay the reasonable fees and actual out-of-
pocket expenses of Winthrop, Stimson, Putnam & Roberts, as counsel to the
Underwriters.
6<PAGE>
(h) For a period of one hundred and twenty days from the date hereof,
not to sell, grant any option to sell or otherwise dispose of, directly or
indirectly, any shares of Common Stock or securities convertible into or
exercisable for or exchangeable into Common Stock or permit the
registration under the Act of any shares of Common Stock, except for
(i) the registration of the Securities and the sales thereof to the
Underwriters pursuant to this Agreement, (ii) the issuance of shares of
Common Stock upon conversion of currently outstanding convertible
securities or upon the exercise of stock options and other rights granted
under employee benefit plans outstanding on the date hereof, (iii) sales
to existing shareholders or to residents in the states in which the
Company operates under plans outstanding on the date hereof and (iv) sales
or grants to employees of the Company or any of its subsidiaries under
plans outstanding on the date hereof, without the prior written consent of
the Representatives, which consent shall not be unreasonably withheld.
6. Reimbursement of Underwriters' Expenses. If the Securities
are not delivered for any reason other than the termination of this
Agreement pursuant to Section 9 hereof or the default by one or more of
the Underwriters in its or their respective obligations hereunder, the
Company shall reimburse the Underwriters for all of their actual out-of-
pocket expenses.
7. Conditions of Underwriters' Obligations. The several
obligations of the Underwriters hereunder are subject to the fulfillment
of the following conditions at or before the Closing:
(a) The Company's representations contained herein 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 Closing Date.
(b) At the Closing, each of you shall receive an opinion of Kaye,
Scholer, Fierman, Hays & Handler, Special Counsel to the Company,
addressed to each of you, as the Representatives, dated the Closing 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, to issue,
sell and deliver the Securities as herein contemplated and to perform its
obligations hereunder and thereunder.
(ii) This Agreement has been duly authorized, executed and
delivered by the Company.
(iii) The Securities, when issued and delivered to and paid for
by the Underwriters in accordance with the terms of this Agreement, will
be duly and validly authorized and issued and will be fully paid and non-
assessable, and will be free of statutory preemptive rights.
(iv) The making of and the performance by the Company under this
Agreement and the carrying out by the Company of the terms hereof do not
violate or conflict with any statutory or constitutional provision
7<PAGE>
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 Company has an authorized capitalization as set forth in
the Registration Statement and the Prospectus and the Common Stock
conforms in all material respects to the description thereof contained in
the Registration Statement and the Prospectus under the caption
"Description of Capital Stock."
(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 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).
(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 7(c) hereof, dated the Closing
Date and addressed to each of you, as the Representatives, 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, as the Representatives, and, provided further,
that, in the case of any such reliance, such counsel shall state that they
believe that they and the Underwriters 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 Representatives, 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
8<PAGE>
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).
(c) At the Closing, 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, as the Representatives, dated the Closing 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
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, to issue
and sell the Securities as herein contemplated and to perform its
obligations hereunder; 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 Securities, when issued and delivered to and paid for by
the Underwriters in accordance with the terms of this Agreement, will be
duly and validly authorized and issued and will be fully paid and non-
assessable, and will be free of statutory and contractual preemptive
rights.
(iii) This Agreement has been duly authorized, executed and
delivered by the Company.
(iv) The making of and the performance by the Company under this
Agreement and the carrying out by the Company of the terms 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.
9<PAGE>
(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 and the Registration
Statement, the validity of the Securities or this Agreement or the
enforceability of this 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 and the issuance and sale of
the Securities, and no other regulatory 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, the issuance and sale of the Securities or the consummation of
the transactions contemplated hereby; 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 the Underwriters are relying upon the opinions, each dated the
Closing Date and addressed to each of you, as the Representatives, 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 Representatives), 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.
(ix) The Company has an authorized capitalization as set forth in
the Registration Statement and the Prospectus; the outstanding shares of
capital stock, including the Common Stock, of the Company have been duly
and validly authorized and issued, and are fully paid and non-assessable,
and free of statutory and contractual preemptive rights; the certificates
representing the Securities are in due and proper form; and the holders of
the Securities will not be subject to personal liability by reason of
being such holders.
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;
10<PAGE>
and Malatesta, Hawke & McKeon, respectively (or in the case of any of the
foregoing counsel, other counsel reasonably acceptable to the
Representatives), each such opinion dated the Closing Date and addressed
to each of you, as the Representatives, 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, as the Representatives, and, provided further, that, in the case
of any such reliance, she shall state that she believes that she and the
Underwriters 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 Representatives, 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
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).
(d) At the Closing, each of you shall receive an opinion of Winthrop,
Stimson, Putnam & Roberts addressed to each of you, as the
Representatives, dated the Closing 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 Common Stock contained
in the Registration Statement and the Prospectus under the caption
"Description of Capital Stock" 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.
11<PAGE>
(iv) The Securities, when issued and delivered to and paid for by
the Underwriters in accordance with the terms of this Agreement, will be
duly and validly authorized and issued and will be fully paid and non-
assessable, and will be free of statutory preemptive rights.
(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.
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 Representatives, 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 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).
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 Closing Date and addressed to each of you, as the
Representatives, 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, as the
Representatives, and, provided further, that, in the case of any such
reliance, such counsel shall state that they believe that they and the
Underwriters are justified in relying on such opinion and certificates for
such matters.
(e) At the Closing, each of you shall receive an opinion of each of
McWhirter, Reeves, McGlothlin, Davidson & Bakas; Piper & Marbury; Cullen &
12<PAGE>
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 Representatives), addressed to
each of you, as the Representatives, each dated the Closing Date and in
form and substance reasonably satisfactory to the Representatives,
substantially to the effect set forth in Exhibits A-1 through A-5 attached
hereto.
(f) At the Closing, each of you shall receive a letter or letters of
the Company's independent public accountants, addressed to each of you, as
the Representatives, dated the Closing Date and in form and substance
reasonably satisfactory to each of you, substantially stating 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 Exchange Act and the published
rules and regulations of 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 Underwriters
13<PAGE>
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
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 Underwriters shall, in their sole discretion, accept.
(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
Representatives, 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.
(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 the Closing
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 Closing, deliver to each of you, as the
Representatives, 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 7 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 and sale of
the Securities.
(j) The Company shall have furnished to the Representatives and their
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 Closing Date as the Underwriters or their 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 Closing Date.
(l) The Securities to be sold by the Company at the Closing shall have
been duly listed, subject to notice of issuance, on the New York Stock
Exchange.
(m) The Registration Statement shall have become effective on or before
the date of this Agreement and shall be effective on the Closing Date.
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.
14<PAGE>
8. 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 time of the Closing:
(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 Representatives, on or prior
to the date hereof, is unacceptable to the Company.
(d) The Underwriters' 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 Closing Date.
In case any of the conditions specified in this Section 8 shall not
have been fulfilled, this 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 the
Representatives. Any such termination shall be without liability of any
party to any other party except to the extent provided in Section 11
hereof.
9. Events Permitting Termination. The Representatives may
terminate the Underwriters' obligations to purchase the Securities at any
time before the Closing if 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
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 the
reasonable judgment of the Representatives, to make it impracticable to
market the Securities; or
(b) any event or condition which, in the reasonable judgment of the
Representatives, renders untrue or incorrect, in any material respect as
13<PAGE>
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.
If the Representatives elect to terminate this Agreement as
provided in this Section 9, the Company shall be notified promptly in
writing by letter or telegram.
If the sale to the Underwriters of the Securities, as contemplated
by this Agreement, is not consummated by the Underwriters for any reason
permitted under this 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 6 and 11
hereof), and the Underwriters shall be under no obligation or liability to
the Company under this Agreement (except to the extent provided in Section
11 hereof) or to one another hereunder.
10. Default by One or More Underwriters. If one or more of the
Underwriters defaults, the remaining Underwriters, if any, are obligated
to take up and pay for at the Closing additional Securities not exceeding
10% of their respective participations. Should the total aggregate
participation of the defaulting Underwriter or Underwriters exceed 9.09%
of the total number of shares of the Securities to be purchased as set
forth on Schedule I attached hereto, (a) the Representatives shall use
their best efforts to arrange for a substitute Underwriter or Underwriters
within 24 hours of notice from the Company of such default, to purchase
all, but not less than all, of the total participation of the defaulting
Underwriter or Underwriters upon the terms set forth in this Agreement,
and (b) if the Representatives shall fail to arrange for such a substitute
Underwriter or Underwriters within such 24-hour period, the Company shall
be entitled to an additional 24-hour period within which to arrange for a
substitute Underwriter or Underwriters, to purchase all, but not less than
all, of the total participation of the defaulting Underwriter or
Underwriters upon the terms set forth in this Agreement. In either event,
the Representatives or the Company shall have the right to postpone the
Closing for a period not to exceed five full business days from the date
determined as provided in Section 2 hereof, in order that the necessary
changes in the Registration Statement and the Prospectus and any other
documents and arrangements may be effected. If the Representatives and
the Company shall fail to procure a substitute Underwriter or
Underwriters, as above provided, to purchase or agree to purchase all, but
not less than all, of the total participation of the defaulting
Underwriter or Underwriters, then this Agreement shall terminate. In the
event of any such termination, the Company shall not be liable to any non-
defaulting Underwriter, nor shall any non-defaulting Underwriter be liable
to the Company; provided, however, that each defaulting Underwriter shall
not be released from its liability to the Company for damages occasioned
by such default under this Agreement.
The term Underwriter as used in this Agreement shall refer to and
include any underwriter substituted under this Section 10 with like effect
14<PAGE>
as if such substituted underwriter had originally been named in Schedule
II attached hereto.
11. Indemnity by the Company and the Underwriters.
(a) The Company agrees to indemnify, defend and hold harmless each
Underwriter and any person who controls any Underwriter 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 Underwriter 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 writing to the Company by, or on behalf of,
any Underwriter expressly for use with reference to such Underwriter 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 11(a) with
respect to the Registration Statement or the Prospectus shall not inure to
the benefit of any Underwriter (or to the benefit of any person
controlling such Underwriter) 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 Underwriter 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 Underwriter or a controlling
person of an Underwriter in respect of which indemnity may be sought
against the Company pursuant to the foregoing paragraph, such Underwriter
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 Underwriter 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
Underwriter 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
15<PAGE>
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 Underwriter 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
Underwriter expressly for use with reference to such Underwriter 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 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 Underwriter pursuant to the foregoing paragraph,
the Company or any such director, officer or controlling person shall
promptly notify such Underwriter in writing of the institution of such
action and such Underwriter 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 Underwriter in connection with the
defense of such action or such Underwriter 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 Underwriter (in which case such Underwriter 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 Underwriter (it being understood,
however, that such Underwriter 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 Underwriter shall be liable for any settlement of any
16<PAGE>
claim or action effected without the written consent of such Underwriter,
which consent shall not be unreasonably withheld.
(c) If the indemnification provided in this Section 11 is unavailable
to an indemnified party under paragraphs (a) and (b) of this Section 11 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 Underwriters 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 Underwriters 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 Underwriters on the other shall be deemed to be in
the same proportion as the total proceeds from the offering (net of
underwriting discounts and commissions but before deducting expenses)
received by the Company bear to the total underwriting discounts and
commissions received by the Underwriters. The relative fault of the
Company on the one hand and of the Underwriters on the other shall be
determined by reference to, among other things, whether the untrue
statement or alleged untrue statement of a material fact or omission or
alleged omission relates to information supplied by the Company or by the
Underwriters, 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 Underwriters agree that it would not be just
and equitable if contribution pursuant to this Section 11 were determined
by pro rata allocation (even if the Underwriters 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 11. Notwithstanding the provisions of this Section
11, no Underwriter 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 exceeds the
amount of any damages which such Underwriter 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 Underwriters'
obligations to contribute pursuant to this Section 11 are several in
proportion to their respective underwriting commitments and not joint.
(e) The indemnity and contribution agreements contained in this Section
11 and the covenants and representations of the Company and the
Underwriters contained in this Agreement shall remain in full force and
effect regardless of any investigation made by, or on behalf of, any
Underwriter, or any person who controls any Underwriter within the meaning
17<PAGE>
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 Underwriter 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.
12. Notices. Except as otherwise herein provided, all statements,
requests, notices and agreements shall be in writing or by telegram and,
if to the Underwriters, shall be sufficient in all respects if delivered
or sent to the Representatives at the address set forth in Schedule I
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. Parties at Interest. The agreement herein set forth has been
and is made solely for the benefit of the Underwriters, the Company and
the controlling persons, directors and officers referred to in Section 11
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
purchaser, from one or more of the Underwriters) shall acquire or have any
right under or by virtue of this Agreement.
14. Counterparts. This Agreement may be signed by the parties in
counterparts which together shall constitute one and the same agreement
among the parties.
15. 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.
16. Time is of Essence. Time shall be of the essence with
respect to this Agreement.
If the foregoing correctly sets forth the understanding among the
Company, and the Underwriters, please so indicate in the space provided
below for the purpose, whereupon this letter and your acceptance shall
constitute a binding agreement among the Company, and the Underwriters,
severally.
Very truly yours,
NUI CORPORATION
By:
Name:
Title:
18<PAGE>
Accepted and agreed to as of the date first
above written, on behalf of itself and the
other several Underwriters named in
Schedule II attached hereto.
By:
By:
Name:
Title:
19<PAGE>
Schedule I
Registration Number:
Representatives Names:
Address for Notice:
Number of Shares of Securities to be Offered:
Purchase Price of Securities to be Offered
Closing Date, Time and Location:
20<PAGE>
Schedule II
Underwriters Number of Shares
21<PAGE>
EXHIBIT A-1
[Letterhead of McWhirter, Reeves, McGlothlin, Davidson & Bakas or other
Florida Counsel reasonably acceptable to the Purchasers]
[the Closing Date]
The Representatives
Listed in Schedule I to the
Underwriting Agreement, dated
_______ __, ____ (the "Agreement"),
of the several
Underwriters named in Schedule II to
the Agreement
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: _______ Aggregate Shares of Common Stock of NUI
Corporation
We have acted as local counsel to NUI Corporation, a
New Jersey corporation (the "Company"), in connection with the
issuance and sale on the date hereof of ________ aggregate shares
of Common Stock, no par value (the "Securities"), of the Company
to the Underwriters named in Schedule II to the Agreement.
In such capacity, we have examined originals or copies,
identified to our satisfaction, of the 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
A-1-1<PAGE>
is engaged in the State of Florida and to own and operate the
properties used by it in such business.
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 and the
issuance and sale of 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 or the
consummation of the transactions contemplated thereby or the
issuance and sale of the Securities; 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,
EXHIBIT A-2
[Letterhead of Piper & Marbury or other Maryland Counsel
reasonably acceptable to the Purchasers]
[the Closing 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 or the consummation of the transactions contemplated
thereby or the issuance and sale of the Securities; 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.
A-2-1<PAGE>
EXHIBIT A-3
[Letterhead of Cullen & Dykman or other New York Counsel
reasonably acceptable to the Purchasers]
[the Closing 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 and the
issuance and sale of 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 or the
consummation of the transactions contemplated thereby or the
issuance and sale of the Securities; 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.
A-3-1<PAGE>
EXHIBIT A-4
[Letterhead of Brooks, Pierre, McLendon, Humphrey & Leonard or
other
North Carolina Counsel reasonably acceptable to the Purchaser]
[the Closing 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 or the consummation of the
transactions contemplated thereby or the issuance and sale of the
Securities; 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.
A-4-1
EXHIBIT A-5
[Letterhead of Malatesta, Hawke, McKeon or other Pennsylvania
Counsel reasonably acceptable to the Purchasers]
[the Closing 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 and the issuance and sale of 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 or the consummation of
the transactions contemplated thereby or the issuance and sale of
the Securities; 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.
A-5-1<PAGE>
Proof of November 14, 1994 EXHIBIT NO. 1-3
NUI CORPORATION
INVITATION FOR BIDS FOR THE PURCHASE OF
DEBT SECURITIES OF NUI CORPORATION
NUI Corporation (the "Company") hereby invites bids, subject to
the terms and conditions hereof, for the purchase from it of $_____
principal amount of of the Company (the
"Securities"). A brief description of the Securities is contained in the
Registration Statement and the Prospectus referred to hereinafter.
[Optional provision, at the election of the Company.] [At the
sole option of the bidder or a group of bidders, debt service insurance
may be obtained for the Securities. Should a bidder or a group of bidders
specify that debt service insurance shall be purchased for the Securities,
the premium therefor shall be paid by such bidder or group of bidders.
See Section 7 hereof.]
1. Information Concerning the Company
and the Securities
Prospective bidders may examine, at the offices of counsel for
the Purchasers (as defined below), Winthrop, Stimson, Putnam & Roberts,
One Battery Park Plaza, New York, New York 10004, copies of the following
documents:
(a) The form of the Indenture, dated as of ________ __, 1994
(the "Indenture"), between the Company and First Fidelity Bank, National
Association, as trustee (the "Trustee");
(b) The registration statement (No. 33-____) of the Company and
any amendments thereto (including the documents incorporated therein by
reference, at the time of such examination and exhibits) under the
Securities Act of 1933 with respect to the Securities (the "Registration
Statement"), the related prospectus (including applicable supplements
thereto) (the "Prospectus") and any orders of the Securities and Exchange
Commission (the "SEC") related thereto;
(c) The form of bid to be used by bidders in offering to
purchase the Securities (the "Bid"), which includes the terms of the
purchase of the Securities (the "Terms of Purchase");
(d) Forms of opinions to be furnished to the successful bidder
or bidders by Mary Patricia Keefe, Esq., Group Vice President and General
Counsel of Elizabethtown Gas Company, a Division of the Company, by Kaye,
Scholer, Fierman, Hays & Handler, special counsel to the Company, by
Winthrop, Stimson, Putnam & Roberts, who have been selected by the Company
to act as counsel for the purchasers of the Securities (the "Purchasers"),
and by local counsel, selected by the Company, in Florida, Maryland, New
York, North Carolina and Pennsylvania;<PAGE>
(e) The preliminary memorandum of Winthrop, Stimson, Putnam &
Roberts, with respect to the qualification of the Securities for sale
under the state securities and blue sky laws of various jurisdictions of
the United States of America (the "Blue Sky Memorandum"); and
(f) To the extent required and available, the orders of 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
Utilities Commission of the State of North Carolina and the Public Utility
Commission of the Commonwealth of Pennsylvania with respect to the
participation of the Company in the contemplated transactions.
Copies of said documents will be supplied in reasonable
quantities on request to prospective bidders. The Company reserves the
right to amend or supplement the Registration Statement and the Prospectus
and to make changes in the forms of the other documents relating to the
issuance of the Securities. Any reference to said documents herein shall
include any amendments or changes so made. The Company will give
telephone notice (confirmed promptly in writing) of any such amendment or
change made prior to the opening of bids, which amendment or change is
considered by counsel for the Purchasers to be material, to each
prospective single bidder and to the Representative (hereinafter defined)
of each group of prospective bidders from whom counsel to the Purchasers,
Winthrop, Stimson, Putnam & Roberts, One Battery Park Plaza, New York, New
York 10004, Attention: Michael F. Cusick, Esq. (Tel. (212) 858-1238),
shall have received a written request to be informed of such amendments or
changes. Copies of any such amendments and descriptions of any such
changes will be made available for examination at said offices of counsel
to the Purchasers.
2. Representative of Group of Bidders
In the case of a bid by a group of bidders, the several bidders
in the group shall act through a duly authorized representative or
representatives (the "Representative"), who may be included in such group.
The Company shall be entitled to assume in all matters contemplated hereby
that any Representative, and in case such Representative consists of two
or more persons, then any of such persons, is fully authorized to
represent and act for each member of the group of bidders, including,
without limitation, the right to rely on any statement made by such
Representative or any person on behalf of the Representative as to the
amount of the participation of the members of such group or as to changes
made in any agreement among members of such group and the right to rely on
the authority of the Representative or the person on behalf of the
Representative to execute and submit the bid presented to the Company in
the form in which it was signed.
3. Form and Content of Bids
Each bid must be for the purchase of all of the Securities and
may be made by a single bidder or by a group of bidders. In the case of a
bid by a group of bidders, the members of the group shall act through the
Representative. If the bid of a group is accepted, the obligations of the
members of a group shall be several, and not joint, to purchase the
respective principal amount of the Securities to be indicated on Schedule
A to the Bid. No bidder may submit or participate directly or indirectly
in more than one bid.
2<PAGE>
All bids must be submitted on the Form of Bid furnished by the
Company and must be signed by the bidder, or in the case of a bid by a
group of bidders, by the Representative on behalf of the group. Each bid
shall specify the principal amount and maturity date of the Securities to
be purchased, the annual interest rate of the Securities, which interest
rate shall be a multiple of 1/8 or 1/20 of 1% (whether or not debt service
insurance and the premium therefor is included in its bid, if applicable)
and the price (exclusive of accrued interest) to be paid to the Company
for the Securities (which price shall not be less than 98% or more than
100% of the principal amount of the Securities). Interest on the
Securities shall accrue from the date of original issuance of the
Securities.
4. Presentation of Bids
Each bid must be delivered to the Company enclosed and sealed in
an envelope addressed as follows: "NUI Corporation, c/o Kaye, Scholer,
Fierman, Hays & Handler, 19th floor, 425 Park Avenue, New York, New York
10022, Attention: Gary Apfel, Esq." Such bid must be so delivered at or
prior to 11:00 A.M., New York City time, on ____________ ___, _____. Each
such envelope, when delivered, must indicate the name, address and
telephone number of the bidder, or, in the case of a group of bidders, of
the Representative.
The Company reserves the right in its discretion from time to
time to postpone the time for presentation and opening of bids and will
give prompt notice of any such postponement to any prospective bidder or
to the Representative of any group of prospective bidders from whom a
request in writing that such notice be given has been received by
Winthrop, Stimson, Putnam & Roberts.
5. Delivery of Check with Bid
Each bidder shall deliver with its bid a certified, cashier's
or official bank check or checks in an aggregate amount equal to 1% of the
principal amount of the Securities then being offered, payable in New York
Clearing House funds and drawn to the order of the Company. If the bid of
such bidder is accepted, the check or checks delivered with respect
thereto are hereby authorized to be deposited in a bank account in the
Company's name forthwith, will be held by the Company as security for the
performance of the obligations of the bidder or of the respective members
of the group of bidders, as the case may be, and such deposit will be held
and disposed of in accordance with the Terms of Purchase. If such bid is
not accepted, the check or checks delivered with such bid will be returned
forthwith to the bidder or, in the case of a group of bidders, to the
Representative.
6. Opening, Acceptance or Rejection of Bids
All bids will be opened on behalf of the Company in the offices
of Kaye, Scholer, Fierman, Hays & Handler, 19th floor, 425 Park Avenue,
New York, N.Y. 10022 at the time designated as provided in Section 4
hereof. Each Representative of a group of bidders and each individual
bidder are invited to be present at the opening of the bids. Prior to
5:00 P.M., New York City time, on such date, an authorized representative
of the Company will accept (subject to the provisions of the next
following paragraph) the bid which shall provide the lowest "true interest
cost," to be determined by the Company as hereinafter provided. Unless
3<PAGE>
sooner rejected, each bid will remain irrevocable until such time. Any
bid not so accepted by the Company by such time shall be deemed to have
been rejected. Each bid will be accepted or rejected in its entirety.
In case two or more bids provide the identical lowest "true
interest cost," the Company (unless the Company shall reject all bids)
will forthwith give the makers of such bids an opportunity to improve
their bids. If no improved bids shall be made by such bidders within the
time specified by the Company or if upon such rebidding, two or more of
the rebids provide the Company with the identical lowest "true interest
cost," the Company may (i) accept any one of such identical bids or (ii)
accept all of such bids in their entirety or (iii) accept all of such bids
on a pro rata basis so long as the aggregate principal amount of the
Securities sold by the Company pursuant to such accepted bids is equal to
100% or more of the aggregate principal amount of Securities that are the
subject of any one of such bids, in each case, at the Company's
discretion.
Notwithstanding any other provisions of this Section 6, the
Company reserves the right with respect to any transaction hereunder (a)
to reject all bids or (b) to reject the bid of any bidder or of any group
of bidders (i) if such bidder or any member of such group of bidders is in
such relationship with any Trustee or its corporate parent, if any, as
would disqualify such Trustee from acting as a Trustee if the bid of such
bidder or group of bidders should be accepted or (ii) if the Company
reasonably believes that it may not lawfully sell the Securities then
being offered to such bidder or to any member of such group of bidders or
(iii) if the Company is not satisfied with the financial responsibility of
such bidder or of any member of such group, and, in any of such events in
the case of a group of bidders, if within two hours after the time the
Company has notified the Representative of the existence of any of the
items set forth in item (b) of this paragraph with respect to any member
or members of such group of bidders, the member or members of such group
causing such disqualification, illegality or dissatisfaction have not
withdrawn from the group and the remaining members, including substituted
members if any are permitted by the Company, have not agreed to purchase
such Securities which such withdrawing member or members had proposed to
purchase. The bid of any bidder or group of bidders rejected by the
Company by reason of clause (b) of this paragraph shall be disregarded for
the purpose of determining the bid specifying the lowest "true interest
cost" for such Securities.
Notwithstanding any other provisions of this Invitation for
Bids, the Company reserves the right in its discretion to designate, not
less than 24 hours prior to the time, or extended time, specified for the
submission of bids, a principal amount less than that previously
designated. Any bid not conforming to the notice of sale or not submitted
on the Form of Bid without alteration, except for the required insertions,
may be rejected. The Company specifically reserves the right to waive any
irregularity in any or all bids.
The "true interest cost" with respect to each bid for the
purchase of the Securities, expressed as an annual interest rate, will be
determined as being twice that factor or discount rate, compounded semi-
annually, which when applied against each semi-annual debt service payment
(interest or principal and interest, as due) for the Securities will
equate the sum of such discounted semi-annual payments to the bid price
(exclusive of accrued interest). The true interest cost shall be
4<PAGE>
calculated from the date of the original issuance of the Securities. The
calculation by the Company of the winning bid shall be final.
[Provision applicable only if debt service insurance option is made
available by the Company.]
[7. Debt Service Insurance
The Company has conditionally qualified the Securities for debt
service insurance with ____________________________. Any purchase of a
policy of debt service insurance, or any commitment therefor, guaranteeing
payment of principal, redemption premium, if any, and interest on the
Securities shall be at the sole option of the bidder or a group of
bidders. Bidders should contact such insurer directly for the terms
thereof, including, without limitation, cost, of such insurance. Each
bidder or group of bidders must specify on its bid in the space provided
on the Form of Bid whether its bid includes debt service insurance and the
amount of the premium thereof. Should a bidder or a group of bidders
specify that debt service insurance shall be purchased for the Securities,
the premium therefor shall be paid for by such bidder or such group of
bidders. The initial ratings fee shall be paid for by the Company. If
the Securities are awarded on an insured basis, reference to such policy
shall appear on the Securities. If such insurance is purchased for the
Securities, the Agreement (as defined herein) may not be amended without
the consent of the insurer.]
8. Effectiveness of Agreement
Forthwith upon the acceptance in writing of a bid: (a) the
Terms of Purchase shall become effective without any separate execution
thereof and such Terms of Purchase and the bid shall constitute the
agreement (the "Agreement") between the Company and the successful bidder
or bidders, subject, however, to such changes in the Terms of Purchase as
may be appropriate if the successful bidder or bidders shall not
contemplate a public offering or if the time for presentation or opening
of bids shall be postponed; and (b) the Company shall, upon being
requested, execute the form of acceptance on a duplicative copy or a
reasonable number of duplicative copies of such proposal furnished by, and
for delivery to, the successful bidder or bidders. Thereafter, all rights
of the Company and of the successful bidder or bidders under an accepted
bid shall be determined solely in accordance with the terms of the
Agreement.
9. Legal Matters
Winthrop, Stimson, Putnam & Roberts has been selected to act as
counsel for the Purchasers to deliver to the successful bidder or bidders
an opinion as to the validity of the Securities. The form of such opinion
is attached to the Terms of Purchase as Exhibit C. The validity of the
Company's obligations under the Indenture will be passed on by Mary
Patricia Keefe, Esq., Group Vice President and General Counsel of
Elizabethtown Gas Company, a Division of the Company, and by Kaye,
Scholer, Fierman, Hays & Handler, special counsel to the Company. Certain
matters under Florida, Maryland, New York, North Carolina and Pennsylvania
law will be passed on by local counsel. The forms of such opinions are
attached to the Terms of Purchase as Exhibits A-1 through A-7 thereto.
The fees and disbursements of counsel for the Purchasers are to
be paid by the successful bidder or group of bidders. Any prospective
5<PAGE>
bidder and the Representative of any group of prospective bidders may
obtain advice from counsel for the Purchasers as to the amount of their
fees and the estimated amount of their disbursements.
10. Delivery
Delivery of the Securities will be made against payment of the
purchase price therefor in New York Clearing House funds on the fifth
Business Day (as defined in the Indenture) after the acceptance of the bid
for the Securities bring offered. Such delivery will be made in New York,
New York, as more fully specified in, and subject to the terms and
conditions of, the Agreement.
11. Reservation of Right to Waive Compliance Herewith
The Company reserves the right to (a) waive any failure on the
part of any bidder or group of bidders to comply with the terms or
conditions hereof if such waiver will not unfairly prejudice any other
bidder or group of bidders and (b) permit any bidder or group of bidders
to correct any typographical, clerical or similar error.
NUI CORPORATION
By: _________________________
Name:
Title:
Dated:
6<PAGE>
NUI CORPORATION
FORM OF BID
$________
DEBT SECURITIES
Due ________ ___, _____
Interest Rate: _______% (multiple of 1/8 or 1/20 of 1%)
Price: _______% (not less than 98% or more than 100%)
[Optional provision at the election of the Company.] [This Bid
[check the appropriate box] is [ ] is not [ ] made for the Securities
carrying debt service insurance, with the insurance premiums related
thereto to be paid for by the Bidder or the group of Bidders. The chosen
insuring agency is ________________________ and the insurance premium is
________________ Dollars ($__________).]
_________ ___, _____
NUI CORPORATION
c/o Kaye, Scholer, Fierman, Hays & Handler
425 Park Avenue
New York, New York 10022
Ladies and Gentlemen:
Referring to the Invitation for Bids (the "Invitation for Bids"),
dated _______ __, ____, inviting bids for the purchase of $_______
principal amount of (the "Securities") of NUI
Corporation (the "Company"), the person, firm or corporation (or the
persons, firms and/or corporations) named in the attached Schedule A (the
"Bidders") submit the following Bid for the purchase of the Securities:
1. The stated interest rate to be borne by the Securities and the
price (stated as a percentage of the principal amount) to be paid to the
Company for the Securities shall be as set forth above; and the Bidders,
severally, hereby offer to purchase the Securities from the Company at
such price, upon the terms and conditions set forth in the Terms of
Purchase annexed hereto (the "Terms of Purchase").<PAGE>
2. If this Bid is accepted by the Company, the Terms of Purchase
shall become effective without any separate execution thereof; the
accepted Bid and the Terms of Purchase, together, shall constitute the
agreement between the Company and the Bidders (the "Agreement"); and all
rights of the Company and the Bidders shall be determined solely in
accordance with the terms of the Agreement, subject, however, to such
modifications therein as may be necessary and as are contemplated by the
Invitation for Bids.
3. The Bidders agree that their offer included in this Bid shall be
irrevocable until 5:00 P.M., New York City time, on the date fixed for the
presentation hereof, unless such Bid is sooner returned or rejected by the
Company. It shall be the obligation of the successful bidder to furnish
to The Depository Trust Company the denominations of and names in which
the Securities shall be registered not less than 72 hours prior to the
delivery of the Securities and to furnish to the Company,
contemporaneously with the acceptance of the Bid, such details of the
offering, including the price to the public, as are needed to complete the
Registration Statement and the Prospectus. If such information is not
received by DTC by the required time, the Securities shall be credited to
the account of the Representative as a single credit and any subsequent
registration of transfer to effect a reallocation of the Securities shall
be the responsibility of the Bidders.
4. This Bid shall be deemed rejected by the Company if it shall not
have been accepted by the Company by 5:00 P.M., New York City time, on the
date fixed for the presentation hereof.
5. This Bid shall be governed by the laws of the State of New York
without giving effect to any conflict of law provisions thereof.
6. The Invitation for Bids is not intended as a disclosure
document. Bidders are required to obtain and carefully review the
Registration Statement and the Prospectus (each as defined in the Terms of
Purchase) relating to the offering of the Securities before submitting a
Bid.
7. Each of the Bidders acknowledges receipt of a copy of the
Registration Statement and the Prospectus relating to the Securities
referred to in the Invitation for Bids.
8. Each of the Bidders acknowledges that the Company's calculation
of the "true interest cost" shall be final.
9. There are enclosed herewith certified, cashier's or official
bank check or checks in an aggregate amount equal to 1% of the principal
amount of the Securities now being offered, payable in New York Clearing
House funds and drawn to the order of the Company, to be held and disposed
of by the Company in accordance with the Invitation for Bids and the Terms
of Purchase.
2<PAGE>
10. The undersigned hereby represents that it or they have been
authorized by the Bidders to sign this Bid on their behalf and to act for
them in the manner provided herein, in the Invitation for Bids and in the
Terms of Purchase.
Very truly yours,
Representative
By: ________________________
Name:
Title:
Address:
By: ________________________
Name:
Title:
Accepted: Address:
NUI Corporation
By: ________________________
Name:
Title:
This Form of Bid must be signed and submitted with the attached Schedule A
completed.
3<PAGE>
SCHEDULE A
Purchasers
Principal Amount of Securities<PAGE>
NUI CORPORATION
TERMS OF PURCHASE FOR DEBT SECURITIES
(to be attached to Form of Bid)
1. Purchasers and Representative. If there shall be two or
more persons, firms or corporations named in Schedule A to the attached
Form of Bid (the "Bid"), the term "Purchasers," as used herein, shall be
deemed to mean the persons, firms or corporations so named (including the
Representative hereinafter mentioned), and the term "Representative," as
used herein, shall be deemed to mean the representative or representatives
by whom or on whose behalf the Bid has been signed. All obligations of
the Purchasers hereunder are several. If there shall be only one person,
firm or corporation named in said Schedule A, the term "Purchasers" and
the term "Representative," as used herein, shall mean such person, firm or
corporation.
2. Background.
(a) NUI Corporation, a New Jersey corporation (the
"Company"), proposes to issue and sell its Debt Securities, to be in the
aggregate principal amount, and to have the terms, maturity and interest
rate specified in the attached Bid (the "Securities"), to be issued under
that certain Indenture (the "Indenture"), dated as of , 1994,
between the Company and First Fidelity Bank, National Association, as
trustee (the "Trustee").
[(b) Optional provision, at the election of the Company.]
[At the sole option of the Purchasers, debt service insurance may be
obtained for the Securities. Should the Purchasers specify that debt
service insurance will be purchased for the Securities, the premium
therefor will be paid by the Purchasers. See Section 7 of the Invitation
for Bids for the Purchase of Debt Securities of NUI Corporation.]
(c) The Purchasers have designated the person or persons
signing the Bid to execute the Bid on behalf of the respective Purchasers
and to act for the respective Purchasers in the manner provided in this
Terms of Purchase (collectively, with the Bid, the "Agreement").
(d) The Company has prepared and filed, in accordance with
the provisions of the Securities Act of 1933 (the "Act"), with the
Securities and Exchange Commission (the "SEC"), a registration statement
and prospectus relating to the Securities and such registration statement
has become effective.
(e) Such registration statement, as it may have been
amended, including the financial statements, the documents incorporated or
deemed incorporated therein by reference, and exhibits, being herein
called the "Registration Statement" and the prospectus as included or<PAGE>
referred to in the Registration Statement (the "Basic Prospectus"), as it
may be last amended or supplemented prior to the effectiveness of the
Agreement, but excluding any amendment or supplement relating solely to
securities other than the Securities (any such amendment or supplement
being referred to as a "Prospectus Supplement"), and as supplemented to
include certain information relating to the Purchasers, the principal
amount, price and terms of offering, the interest rate and redemption
prices, if any, of the Securities (any such supplement being referred to
as a "Pricing Supplement"), as filed with, or transmitted for filing to,
the SEC pursuant to Rule 424 of the rules and regulations of the SEC
promulgated under the Act, including all documents then incorporated or
deemed to have been incorporated therein by reference, in the form in
which from time to time it has most recently been filed with, or
transmitted for filing to, the SEC, being herein called the "Prospectus."
3. Purchase, Sale and the Closing. On the terms and subject
to the conditions, and in reliance on the representations, warranties and
covenants herein, each Purchaser shall severally buy from the Company, and
the Company shall sell to such Purchaser, the principal amount of the
Securities set forth opposite the name of such Purchaser in Schedule A to
the Bid. The purchase price of the Securities shall be that percentage of
the principal amount thereof set forth in the Bid plus interest accrued
thereon, if any, from the date of original issuance of the Securities to
the Closing Date (as defined below), and shall be payable by certified,
cashier's or official bank check in New York Clearing House funds drawn
to the order of the Company. The closing of the purchase and sale of the
Securities (the "Closing") will be held at the offices of Kaye, Scholer,
Fierman, Hays & Handler, New York, New York at 10:00 A.M. New York City
time on the fifth Business Day (as defined in the Indenture) following the
day on which the Agreement shall become effective, or such other place or
other date or other time as may be agreed on by the Company and the
Representative. The date of the Closing is hereinafter referred to as the
"Closing Date."
The notes shall be issued in book-entry form through the
facilities of The Depository Trust Company ("DTC"). As part of the
Closing, the Company will deposit one or more global Securities with DTC
or Cede & Co., as DTC's nominee, or such other nominee of DTC or Cede &
Co. as may be designated by DTC. The Representative agrees to furnish to
DTC the names and the denominations of the Securities for each Purchaser
not less than 72 hours prior to the Closing.
4. Public Offering. Contemporaneously with the acceptance of
the Bid, the Representative shall advise the Company of such details of
the offering, including the price to the public, as are needed to complete
the Registration Statement or the Prospectus.
5. Security Check. The funds represented by any check or
checks delivered with the Bid by or on behalf of a Purchaser or group of
Purchasers shall be held by the Company as security for the faithful
performance by the Purchasers of their obligations hereunder until
disposed of as hereinafter provided in this Section 5. Upon the
2<PAGE>
acceptance of the Bid of a Purchaser or group of Purchasers, the Company
is hereby authorized to deposit such check or checks in a bank account in
the Company's name forthwith. Upon deposit of the Securities with DTC or
Cede & Co., as its nominee, pursuant to the provisions of Section 3
hereof, such funds so deposited shall be applied to the payment of the
purchase price of the Securities, but only if simultaneously therewith the
balance of the purchase price shall be paid by the Purchasers as provided
in Section 3 hereof. In the event that the Agreement shall be terminated
in accordance with the provisions of Section 12 hereof, the deposit made
with respect to a check or checks from a Purchaser who is not in default
hereunder shall forthwith be returned to such Purchaser without interest.
In the event that a Purchaser fails or refuses, otherwise than for some
reason sufficient to justify, in accordance with the terms hereof, the
cancellation or termination of its obligation hereunder to purchase and
pay for the Securities as provided in Section 3 hereof, the deposit made
with respect to a check or checks from such Purchaser shall become the
property of the Company, as minimum liquidated damages, free of any claim
on the part of such Purchaser, without prejudice, however, to any other
rights of the Company hereunder.
6. Company's Representations. The Company makes the following
representations to each of the Purchasers, 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 the Agreement and the Indenture and to perform its
obligations 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 the 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 the Agreement, the Securities and the Indenture, and the
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
3<PAGE>
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 the 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 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 Underwriters; 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 the Agreement with respect to (i) the
terms of the Agreement, (ii) the terms of the Securities and the sale
thereof, (iii) the terms of the initial public offering of the Securities
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 the 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, the 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
4<PAGE>
will first 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 of 1939 (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 first be
used to confirm sales of the Securities and at the Closing Date, 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 Purchaser 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 Securities
Exchange Act of 1934 (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.
(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 the Agreement,
the Registration Statement and the Prospectus, the validity or
enforceability of the Indenture or the 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.
7. Purchasers' Representations. Each Purchaser makes the
following representations to the Company, all of which representations
shall survive the issuance and delivery of the Securities:
5<PAGE>
(a) The written information furnished to the Company by, or on
behalf of, each Purchaser for use in the Prospectus is correct as to such
Purchaser. Each Purchaser, in addition to other written information
furnished to the Company for use in the Prospectus, herewith furnishes to
the Company, through the Representative, for use in the Prospectus, the
written information with regard to the public offering, if any, of the
Securities by such Purchaser and warrants and represents that such written
information is correct as to such Purchaser.
(b) Each Purchaser may lawfully purchase from the Company the
Securities that it has agreed to purchase pursuant to the Agreement.
8. 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 the Representative 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 the Purchasers, without charge, as soon as
reasonably practicable and from time to time thereafter during such period
of time (not exceeding nine months) after the effective date of the
Agreement as the Purchasers 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 Representative may reasonably request; and in case any
Purchaser is required to deliver a prospectus after the expiration of nine
months after the effective date of the Agreement, to furnish to the
Representative as soon as reasonably practicable, upon request by the
Representative, at the expense of such Purchaser, a reasonable quantity of
a supplemental prospectus or of supplements to the Prospectus complying
with Section 10(a)(3) of the Act.
(c) Furnish to the Representative a copy, certified by the
Secretary or an Assistant Secretary of the Company, of the Registration
Statement as initially filed with the SEC and of all amendments thereto,
other than amendments relating solely to securities other than the
Securities, and, upon request, to furnish to the Representative sufficient
plain copies thereof (exclusive of exhibits thereto) or of a composite of
the Registration Statement giving effect to all amendments thereto
(exclusive of exhibits thereto and of the Statement of Eligibility), other
than amendments relating solely to securities other than the Securities,
for distribution of one copy thereof to each of the other Purchasers.
6<PAGE>
(d) As soon as reasonably practicable, to make generally
available to its security holders and the Representative 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 Representative may designate within six months after
the date hereof and itself to pay, or to reimburse the Purchasers 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 (not exceeding nine months) after
the effective date of the Agreement as the Purchasers 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 the Purchasers and to dealers (whose
names and addresses are furnished to the Company by the Representative) to
whom Securities may have been sold by the Purchasers and, upon request, to
any other dealers making such request at such dealers' expense, copies of
such amendments to the Prospectus or supplemental information.
(g) Pay the costs of preparing and reproducing or printing and
distributing the Invitation for Bids for the Purchase of the Securities,
the Terms of Purchase, the Bid, 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; and 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 8(e)
hereof; provided, however, if the Purchasers shall not take up and pay for
the Securities due to the failure of the Company to comply with any of the
conditions specified in Section 9 hereof or if the Agreement shall be
terminated in accordance with the provisions of Section 12 hereof, the
Company agrees to pay the reasonable fees and actual out-of-pocket
expenses of Winthrop, Stimson, Putnam & Roberts, as counsel to the
Purchasers. If the Securities are not delivered for any reason other than
the termination of the Agreement pursuant to Section 12 hereof or the
default by one or more of the Purchasers in its or their respective
7<PAGE>
obligations hereunder, the Company shall reimburse the Purchasers for all
of their actual out-of-pocket expenses.
(h) Between the date of this Agreement and the Closing Date,
the Company will not, without the Representative's prior consent, offer,
sell, contract to sell or otherwise dispose of any debt securities of the
Company substantially similar to the Securities (other than (i) the
Securities that are to be sold pursuant to this 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.
9. Conditions of Purchasers' Obligation. The obligation of
the Purchasers to purchase the Securities is subject to fulfillment of the
following conditions at or before the Closing:
(a) The Company's representations contained herein 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 Closing Date.
(b) The Company shall have performed, in all material respects,
such of its obligations under the Agreement that are to be performed at or
before the Closing.
(c) At the time of the Closing, 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 acceptance of the Bid except as may have been disclosed
in the Prospectus or agreed to in writing by the Representative.
(d) 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.
(e) At or prior to the Closing, the Representative shall have
received:
(i) certified copies or executed counterparts of the
Indenture;
(ii) opinions of counsel for the Company, dated the
Closing Date, addressed to the Representative and in form and
substance reasonably satisfactory to the Representative,
substantially to the effect set forth in Exhibits A-1 through A-
7 attached hereto;
(iii) a letter, dated the Closing Date and
addressed to the Representative, from the independent public
accountants of the Company substantially to the effect set forth
in Exhibit B attached hereto;
8<PAGE>
(iv) an opinion of counsel to the Purchasers, dated
the Closing Date, addressed to the Representative and in form
and substance reasonably satisfactory to the Representative,
substantially to the effect set forth in Exhibit C attached
hereto;
(v) a copy of the Registration Statement and the
Prospectus and the documents incorporated therein by reference,
if requested, which shall include the consolidated financial
statements of the Company and a report thereon executed by the
Company's independent public accountants;
(vi) a certificate, dated the Closing Date, of the
Chairman of the Board, the President, any Vice President or the
Treasurer of the Company, reasonably satisfactory to the
Representative, certifying that
(1) as of the Closing Date, the Company's representations
under the Agreement are true in all material respects and that
the Company has performed in all material respects such of its
obligations under the Agreement that are to be performed at or
before the Closing;
(2) between the time of the execution of the Agreement and
the Closing Date, there has been 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, other
than changes disclosed by or contemplated in the Registration
Statement or the Prospectus or changes arising in the ordinary
course of the Company's business;
(3) as of the Closing Date, 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; and
(4) attaching true and complete copies of each order
required from the Utility Commissions in connection with the
issuance of the Securities; [and]
(vii) such other documents and certificates as to the
accuracy and completeness of any statement in the Registration
Statement and the Prospectus as of the Closing Date as the
Representative or the Representative's counsel may reasonably
request; [and]
[Provision applicable only if debt service insurance option elected
by the Company]
9<PAGE>
[(viii) in the event that a debt service insurance policy
is obtained, an effective debt service insurance policy].
(f) The Registration Statement shall have become effective on
or before the date of the Agreement and shall be effective on the Closing
Date. 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.
(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 the Agreement and the
Closing 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.
10. Conditions of the Company's Obligation. The obligation of
the Company to sell and deliver the Securities is subject to the
fulfillment of the following conditions at the time of the Closing:
(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 less the amount of any good faith deposit held by
the Company with respect to any non-defaulting Purchasers.
(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 the
Agreement do not contain any such unacceptable provisions other than any
provision that the Company has informed the Representative, on or prior to
the date hereof, is unacceptable to the Company.
(d) The Purchasers' 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 Closing Date.
In case any of the conditions specified in this Section 10 shall
not have been fulfilled, the Agreement and the Company's obligation to
participate in the transactions contemplated herein may be terminated by
10<PAGE>
the Company upon mailing or delivering written notice thereof to the
Representative. Any such termination shall be without liability of any
party to any other party except to the extent provided in Section 11
hereof.
11. Indemnity by the Company and the Purchasers. (a) The
Company agrees to indemnify, defend and hold harmless each Purchaser and
any person who controls any Purchaser 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 Purchaser 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
writing to the Company by, or on behalf of, any Purchaser expressly for
use with reference to such Purchaser 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 11(a) with respect to the Registration Statement or the
Prospectus shall not inure to the benefit of any Purchaser (or to the
benefit of any person controlling such Purchaser) 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 Purchaser 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 a Purchaser or a controlling
person of a Purchaser in respect of which indemnity may be sought against
the Company pursuant to the foregoing paragraph, such Purchaser 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 Purchaser 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 Purchaser 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
11<PAGE>
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 Purchaser 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
Purchaser expressly for use with reference to such Purchaser 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 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 Purchaser pursuant to the foregoing paragraph,
the Company or any such director, officer or controlling person shall
promptly notify such Purchaser in writing of the institution of such
action and such Purchaser 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 Purchaser in connection with the
defense of such action or such Purchaser 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
12<PAGE>
available to such Purchaser (in which case such Purchaser 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 Purchaser (it being understood,
however, that such Purchaser 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 Purchaser shall be liable for any settlement of any
claim or action effected without the written consent of such Purchaser,
which consent shall not be unreasonably withheld.
(c) If the indemnification provided in this Section 11 is
unavailable to an indemnified party under paragraphs (a) and (b) of this
Section 11 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
Purchasers 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 Purchasers 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 Purchasers on the other shall be deemed to
be in the same proportion as the total proceeds from the offering (net of
underwriting discounts and commissions but before deducting expenses)
received by the Company bear to the total underwriting discounts and
commissions received by the Purchasers. The relative fault of the Company
on the one hand and of the Purchasers on the other shall be determined by
reference to, among other things, whether the untrue statement or alleged
untrue statement of a material fact or omission or alleged omission
relates to information supplied by the Company or by the Purchasers, 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 Purchasers agree that it would not be
just and equitable if contribution pursuant to this Section 11 were
determined by pro rata allocation (even if the Purchasers 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 11. Notwithstanding the provisions of this
Section 11, no Purchaser shall be required to contribute any amount in
excess of the amount by which the total price at which the Securities
13<PAGE>
purchased by it and distributed to the public were offered to the public
exceeds the amount of any damages which such Purchaser 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 Purchasers'
obligations to contribute pursuant to this Section 11 are several in
proportion to their respective underwriting commitments and not joint.
(e) The indemnity and contribution agreements contained in
this Section 11 and the covenants and representations of the Company and
the Purchasers contained in the Agreement shall remain in full force and
effect regardless of any investigation made by, or on behalf of, any
Purchaser, or any person who controls any Purchaser 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 the
Agreement or the issuance and delivery of the Securities. The Company and
each Purchaser 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.
12. Events Permitting Termination. The Representative may
terminate the Purchasers' obligations to purchase the Securities at any
time before the Closing if 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 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
the reasonable judgment of the Representative, to make it impracticable to
market the Securities;
(b) any event or condition which, in the reasonable judgment of
the Representative, 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
14<PAGE>
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 Representative, may substantially impair the
marketability or reduce the market price of the Securities.
If the Representative elects to terminate the Agreement as
provided in this Section 12, the Company shall be notified promptly in
writing by letter or telegram.
If the sale to the Purchasers of the Securities, as contemplated
by the Agreement, is not consummated by the Purchasers for any reason
permitted under the Agreement or if such sale is not consummated because
the Company shall be unable to comply with any of the terms of the
Agreement, the Company shall not be under any obligation or liability
under the Agreement (except to the extent provided in Section 8(g) and
Section 11 hereof), and the Purchasers shall be under no obligation or
liability to the Company under the Agreement (except to the extent
provided in Section 11 hereof) or to one another hereunder.
13. Default by One or More Purchasers. If one or more of the
Purchasers defaults, the remaining Purchasers, if any, are obligated to
take up and pay for at the Closing additional Securities not exceeding 10%
of their respective participations. Should the total aggregate
participation of the defaulting Purchaser or Purchasers exceed 9.09% of
the total principal amount of the Securities to be purchased as set forth
on Schedule A attached to the Bid, (a) the Representative shall use its
best efforts to arrange for a substitute Purchaser or Purchasers within 24
hours of notice from the Company of such default, to purchase all, but not
less than all, of the total participation of the defaulting Purchaser or
Purchasers upon the terms set forth in the Agreement, and (b) if the
Representative shall fail to arrange for such a substitute Purchaser or
Purchasers within such 24-hour period, the Company shall be entitled to an
additional 24-hour period within which to arrange for a substitute
Purchaser or Purchasers, to purchase all, but not less than all, of the
total participation of the defaulting Purchaser or Purchasers upon the
terms set forth in the Agreement. In either event, the Representative or
the Company shall have the right to postpone the Closing for a period not
to exceed five full business days from the date determined as provided in
Section 3 hereof, in order that the necessary changes in the Registration
Statement and the Prospectus and any other documents and arrangements may
be effected. If the Representative and the Company shall fail to procure
a substitute Purchaser or Purchasers, as above provided, to purchase or
agree to purchase all, but not less than all, of the total participation
of the defaulting Purchaser or Purchasers, then the Agreement shall
terminate. In the event of any such termination, the Company shall not be
liable to any non-defaulting Purchaser, nor shall any non-defaulting
Purchaser be liable to the Company; provided, however, that each
15<PAGE>
defaulting Purchaser shall not be released from its liability to the
Company for damages occasioned by such default under the Agreement.
The term Purchaser as used in the Agreement shall refer to and
include any purchaser substituted under this Section 13 with like effect
as if such substituted purchaser had originally been named in Schedule A
attached to the Bid.
14. Parties at Interest. The agreement herein set forth has
been and is made solely for the benefit of the Purchasers, the Company and
the controlling persons, directors and officers referred to in Section 11
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
purchaser, from one or more of the Purchasers) shall acquire or have any
right under or by virtue of the Agreement.
15. Notices. Except as otherwise herein provided, all
statements, requests, notices and agreements shall be in writing or by
telegram and, if to the Purchasers, shall be sufficient in all respects if
delivered or sent to the Representative at the address set forth in the
Bid 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.
16. Construction. The 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 the Agreement have been inserted as a matter of convenience of
reference and are not a part of the Agreement.
17. Time is of Essence. Time shall be of the essence with
respect to the Agreement.
16<PAGE>
EXHIBIT A-1
[Letterhead of Mary Patricia Keefe, Esq.
Group Vice President and General Counsel
Elizabethtown Gas Company]
[the Closing Date]
(Points to be covered)
1. 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
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 the Agreement, the
Securities and the Indenture and to perform its obligations 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 the 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.
2. The Securities and the Indenture have been duly authorized,
executed and delivered by the Company; the Securities, assuming due
authentication thereof by the Trustee, and the Indenture, assuming due
authorization, execution and delivery thereof by the Trustee, are the
legal, valid and binding obligations of the Company; and the Securities,
assuming due authentication thereof by the Trustee, are entitled to the
benefit of the Indenture.
3. The Agreement has been duly authorized, executed and
delivered by the Company.
4. The making of and the performance by the Company under the
Indenture, the Securities and the Agreement and the carrying out by the
Company of the terms 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 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.
A-1-1<PAGE>
5. 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 my knowledge, threatened against the Company (or,
to my knowledge, any meritorious basis therefor) wherein an unfavorable
decision, ruling or finding would have a material adverse effect on the
transactions contemplated by the Agreement and the Registration Statement,
the validity or enforceability of the Agreement, the Securities or the
Indenture, 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.
6. 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 the Agreement, the Indenture and the
Securities, and no other regulatory 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 the
Agreement, the Indenture or the Securities or the consummation of the
transactions contemplated thereby; provided, however, that I express no
opinion with respect to the necessity for any (i) action under the laws of
the States of Florida, Maryland, New York or North Carolina or the
Commonwealth of Pennsylvania, as to which matters the Purchasers are
relying upon the opinions, each dated the date hereof and addressed to
you, as the Representative, 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 you, as the Representative), and (ii) qualification or other action
under the Blue Sky or securities laws of any jurisdiction.
7. 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.
8. The Registration Statement has become effective under the
Act and, to the best of my 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.
Insofar as my opinion involves matters of Florida, Maryland, New
York, North Carolina and Pennsylvania law, I have relied, with your
approval, upon 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 the Purchasers), each such opinion dated the date hereof and addressed
to you, as the Representative, and, as to factual matters, on certificates
of public officials and officers of the Company. I believe that the
A-1-2<PAGE>
Purchasers and I are justified in relying on such opinions and
certificates to the extent they relate to such matters.
In addition, I have participated in conferences with officers
and other representatives of the Company, representatives of the
independent public accountants of the Company, representatives of the
Representative, 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 I am not passing upon and do
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 my attention to make me
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 and at the date hereof, 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 I am expressing 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).
This opinion shall be governed by, and interpreted in accordance
with, the Legal Opinion Accord of the ABA Section of Business Law (1991).
A-1-3<PAGE>
EXHIBIT A-2
[Letterhead of McWhirter, Reeves, McGlothlin, Davidson & Bakas or other
Florida Counsel reasonably acceptable to the Purchasers]
[the Closing Date]
The Purchasers
Listed in Schedule A to the accepted
Bid, dated , , and
the attached Terms of Purchase (the
"Terms of Purchase") (collectively,
the "Agreement") relating to the
Securities referred 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
sale on the date hereof of $________ aggregate principal amount
of the Company's _________________ , to the Purchasers named in
Schedule A to the Agreement.
In such capacity, we have examined originals or copies,
identified to our satisfaction, of the Agreement, the Securities
(as defined in the Agreement), the Indenture (as defined in the
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.
A-2-1<PAGE>
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.
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, 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, 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,
A-2-2<PAGE>
EXHIBIT A-3
[Letterhead of Piper & Marbury or other Maryland Counsel
reasonably acceptable to the Purchasers]
[the Closing 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, 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.
A-3-1<PAGE>
EXHIBIT A-4
[Letterhead of Cullen & Dykman or other New York Counsel
reasonably acceptable to the Purchasers]
[the Closing 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, 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, 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.
A-4-1<PAGE>
EXHIBIT A-5
[Letterhead of Brooks, Pierre, McLendon, Humphrey & Leonard or
other
North Carolina Counsel reasonably acceptable to the Purchaser]
[the Closing 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, 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.
A-5-1<PAGE>
EXHIBIT A-6
[Letterhead of Malatesta, Hawke, McKeon or other Pennsylvania
Counsel reasonably acceptable to the Purchasers]
[the Closing 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, 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, 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.
A-6-1<PAGE>
EXHIBIT A-7
[Letterhead of Kaye, Scholer, Fierman,
Hays & Handler]
[the Closing Date]
(Points to be covered)
1. 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 the Agreement, the Indenture
and the Securities and to perform its obligations thereunder.
2. The Agreement has been duly authorized, executed
and delivered by the Company.
3. The Securities and the Indenture have been duly
authorized, executed and delivered by the Company; the Indenture
has been duly qualified under the Trust Indenture Act; the
Securities, assuming due authentication thereof by the Trustee,
and the Indenture, assuming due authorization, execution and
delivery thereof by the Trustee, are the legal, valid and binding
obligations of the Company; and the Securities, assuming due
authentication thereof by the Trustee, are entitled to the
benefit of the Indenture.
4. The making of and the performance by the Company
under the Agreement, the Indenture and the Securities and the
carrying out by the Company of the terms 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.
5. 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.
6. 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
A-7-1<PAGE>
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 we express no
opinion).
7. The Registration Statement has become effective
under the Act, and, to the best of our 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.
Insofar as our opinion involves matters of New Jersey
law, we have relied, with your approval, upon the opinion of Mary
Patricia Keefe, Esq., Group Vice President and General Counsel of
Elizabethtown Gas Company, a Division of the Company ("EGC"),
dated the date hereof and addressed to you, as the
Representative, and, as to factual matters, on certificates of
public officials and officers of the Company. We believe that
the Purchasers and we are justified in relying on such opinion
and certificates to the extent they relate to such matters.
In addition, we have 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 Representative, 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 paragraph 6 above and the other opinions expressed
in this opinion letter, we are not passing upon and do 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 paragraph 5
above), on the basis of the foregoing, nothing has come to our
attention that leads us 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 and at the date hereof, 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 we express no opinion with respect to
the financial statements and schedules and other financial,
engineering and statistical data included or incorporated by
A-7-2<PAGE>
reference in the Registration Statement or the Prospectus and
that part of the Registration Statement that constitutes the
Statement of Eligibility).
This opinion shall be governed by, and interpreted in
accordance with, the Legal Opinion Accord of the ABA Section of
Business Law (1991).
Very truly yours,
A-7-3<PAGE>
EXHIBIT B
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
B-1<PAGE>
decreases as the Purchasers 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 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 Purchasers
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.
B-2<PAGE>
EXHIBIT C
[Letterhead of Winthrop, Stimson, Putnam & Roberts]
[date of the Closing]
The Purchasers
Listed in Schedule A to the
accepted Bid dated ,
, and the attached Terms of
Purchase (the "Terms of Purchase")
(collectively, the "Agreement")
relating to the Securities referred
to below
Re: $ _______, ______________
of NUI Corporation
Gentlemen:
We have acted as counsel to the Purchasers in connection
with the issuance and sale of the above-captioned securities (the
"Securities") pursuant to the Agreement by and among NUI
Corporation (the "Company") and the purchasers named in Schedule
A thereto (the "Purchasers"). All terms used herein, unless
otherwise defined herein, have the meanings assigned to them in
the Agreement.
In connection therewith we have examined originals or
copies, certified or otherwise identified to our satisfaction, of
the documents delivered at the Closing as listed in the Closing
Memorandum of even date herewith. We have also reviewed and are
relying upon, and in our opinion, you are justified in relying
upon, the opinions delivered to you today pursuant to the
provisions of the Agreement by Mary Patricia Keefe, Esq., Vice
President and General Counsel of Elizabethtown Gas Company, a
Division of the Company, and local counsel. We have also
reviewed, and in our opinion, you are justified in relying upon,
the opinion delivered to you today pursuant to the provisions of
the Agreement by Kaye, Scholer, Fierman, Hays & Handler, Special
Counsel for the Company.
Based upon the foregoing, we are of the opinion that:
(1) The Registration Statement has become effective under
the Act, and, to the best of our 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.
C-1<PAGE>
(2) The descriptions and summaries of the Securities, the
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.
(3) The Agreement has been duly authorized, executed and
delivered by the Company.
(4) The Securities and the Indenture have been duly
authorized, executed and delivered by the Company; the Indenture
has been qualified under the Trust Indenture Act; the Securities,
assuming due authentication thereof by the Trustee, and the
Indenture, assuming due authorization, execution and delivery
thereof by the Trustee, are 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, assuming due authentication thereof by
the Trustee, are entitled to the benefit of the Indenture.
(5) 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 pursuant to Rule 424 (except
in each case as to the financial statements and schedules and
other financial, engineering and statistical data contained
therein, as to which we 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.
In passing upon the forms of the Registration Statement and
the Prospectus, we 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 paragraph 2 above and except insofar as
such statements and information relate to us. In the course of
the preparation of the Registration Statement and the Prospectus,
we have had conferences with certain of the officers and
employees of the Company, with Kaye, Scholer, Fierman, Hays &
Handler, special counsel for the Company, with the independent
public accountants for the Company, with the Representative and
with Mary Patricia Keefe, Esq., Group Vice President and General
Counsel of EGC and we reviewed the documents listed in the
Registration Statement as being incorporated therein by
reference. Our examination of the Registration Statement, our
discussions in the above-mentioned conferences and our review did
not disclose to us any information, and nothing has come to our
C-2<PAGE>
attention, which would lead us 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 and at the date hereof, 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 we 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).
Insofar as our opinion involves matters of New Jersey law,
we have relied, with your approval, upon the opinion of Mary
Patricia Keefe, Esq., Group Vice President and General Counsel of
EGC, dated the date hereof and addressed to you, as the
Representative, and, as to factual matters, on certificates of
public officials and officers of the Company. We believe that
the Purchasers and we are justified in relying on such opinion
and certificates to the extent they relate to such matters.
This opinion is given to you solely for your use in
connection with the Agreement and the transactions contemplated
thereunder and may not be relied upon by any other person or for
any other purpose.
Very truly yours,
C-3<PAGE>
Proof of November 14, 1994 EXHIBIT NO. 1-4
NUI CORPORATION
INVITATION FOR BIDS FOR THE PURCHASE OF
COMMON STOCK OF NUI CORPORATION
NUI Corporation (the "Company") hereby invites bids, subject to
the terms and conditions hereof, for the purchase from it of ______ shares
of Common Stock, no par value ("Common Stock"), of the Company (the
"Securities"). A brief description of the Securities is contained in the
Registration Statement and the Prospectus referred to hereinafter.
1. Information Concerning the Company
and the Securities
Prospective bidders may examine, at the offices of counsel for
the Purchasers (as defined below), Winthrop, Stimson, Putnam & Roberts,
One Battery Park Plaza, New York, New York 10004, copies of the following
documents:
(a) The registration statement (No. 33-____) of the Company and
any amendments thereto (including the documents incorporated therein by
reference, at the time of such examination and exhibits) under the
Securities Act of 1933 with respect to the Securities (the "Registration
Statement"), the related prospectus (including applicable supplements
thereto) (the "Prospectus") and any orders of the Securities and Exchange
Commission (the "SEC") related thereto;
(b) The form of bid to be used by bidders in offering to
purchase the Securities (the "Bid"), which includes the terms of the
purchase of the Securities (the "Terms of Purchase");
(c) Forms of opinions to be furnished to the successful bidder
or bidders by Mary Patricia Keefe, Esq., Group Vice President and General
Counsel of Elizabethtown Gas Company, a Division of the Company, by Kaye,
Scholer, Fierman, Hays & Handler, special counsel to the Company, by
Winthrop, Stimson, Putnam & Roberts, who have been selected by the Company
to act as counsel for the purchasers of the Securities (the "Purchasers"),
and by local counsel, selected by the Company, in Florida, Maryland, New
York, North Carolina and Pennsylvania;
(d) The preliminary memorandum of Winthrop, Stimson, Putnam &
Roberts, with respect to the qualification of the Securities for sale
under the state securities and blue sky laws of various jurisdictions of
the United States of America (the "Blue Sky Memorandum"); and
(e) To the extent required and available, the orders of 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
Utilities Commission of the State of North Carolina and the Public Utility<PAGE>
Commission of the Commonwealth of Pennsylvania with respect to the
participation of the Company in the contemplated transactions.
Copies of said documents will be supplied in reasonable
quantities on request to prospective bidders. The Company reserves the
right to amend or supplement the Registration Statement and the Prospectus
and to make changes in the forms of the other documents relating to the
issuance of the Securities. Any reference to said documents herein shall
include any amendments or changes so made. The Company will give
telephone notice (confirmed promptly in writing) of any such amendment or
change made prior to the opening of bids, which amendment or change is
considered by counsel for the Purchasers to be material, to each
prospective single bidder and to the Representative (hereinafter defined)
of each group of prospective bidders from whom counsel to the Purchasers,
Winthrop, Stimson, Putnam & Roberts, One Battery Park Plaza, New York, New
York 10004, Attention: Michael F. Cusick, Esq. (Tel. (212) 858-1238),
shall have received a written request to be informed of such amendments or
changes. Copies of any such amendments and descriptions of any such
changes will be made available for examination at said offices of counsel
to the Purchasers.
2. Representative of Group of Bidders
In the case of a bid by a group of bidders, the several bidders
in the group shall act through a duly authorized representative or
representatives (the "Representative"), who may be included in such group.
The Company shall be entitled to assume in all matters contemplated hereby
that any Representative, and in case such Representative consists of two
or more persons, then any of such persons, is fully authorized to
represent and act for each member of the group of bidders, including,
without limitation, the right to rely on any statement made by such
Representative or any person on behalf of the Representative as to the
amount of the participation of the members of such group or as to changes
made in any agreement among members of such group and the right to rely on
the authority of the Representative or the person on behalf of the
Representative to execute and submit the bid presented to the Company in
the form in which it was signed.
3. Form and Content of Bids
Each bid must be for the purchase of all of the Securities and
may be made by a single bidder or by a group of bidders. In the case of a
bid by a group of bidders, the members of the group shall act through the
Representative. If the bid of a group is accepted, the obligations of the
members of a group shall be several, and not joint, to purchase the
respective number of shares of the Securities to be indicated on
Schedule A to the Bid. No bidder may submit or participate directly or
indirectly in more than one bid.
All bids must be submitted on the Form of Bid furnished by the
Company and must be signed by the bidder, or in the case of a bid by a
group of bidders, by the Representative on behalf of the group. Each bid
shall specify the purchase price per share to be paid to the Company for
the Securities to be purchased, which price shall be in multiples of .125.
2<PAGE>
4. Presentation of Bids
Each bid must be delivered to the Company enclosed and sealed in
an envelope addressed as follows: "NUI Corporation, c/o Kaye, Scholer,
Fierman, Hays & Handler, 19th floor, 425 Park Avenue, New York, New York
10022, Attention: Gary Apfel, Esq." Such bid must be so delivered at or
prior to 11:00 A.M., New York City time, on ____________ ___, _____. Each
such envelope, when delivered, must indicate the name, address and
telephone number of the bidder, or, in the case of a group of bidders, of
the Representative.
The Company reserves the right in its discretion from time to
time to postpone the time for presentation and opening of bids and will
give prompt notice of any such postponement to any prospective bidder or
to the Representative of any group of prospective bidders from whom a
request in writing that such notice be given has been received by
Winthrop, Stimson, Putnam & Roberts.
5. Delivery of Check with Bid
Each bidder shall deliver with its bid a certified, cashier's
or official bank check or checks in an aggregate amount equal to 1% of the
aggregate purchase price specified in such bid to be paid to the Company
for the Securities then being offered, payable in New York Clearing House
funds and drawn to the order of the Company. If the bid of such bidder is
accepted, the check or checks delivered with respect thereto are hereby
authorized to be deposited in a bank account in the Company's name
forthwith, will be held by the Company as security for the performance of
the obligations of the bidder or of the respective members of the group of
bidders, as the case may be, and such deposit will be held and disposed of
in accordance with the Terms of Purchase. If such bid is not accepted,
the check or checks delivered with such bid will be returned forthwith to
the bidder or, in the case of a group of bidders, to the Representative.
6. Opening, Acceptance or Rejection of Bids
All bids will be opened on behalf of the Company in the offices
of Kaye, Scholer, Fierman, Hays & Handler, 19th floor, 425 Park Avenue,
New York, N.Y. 10022 at the time designated as provided in Section 4
hereof. Each Representative of a group of bidders and each individual
bidder are invited to be present at the opening of the bids. Prior to
5:00 P.M., New York City time, on such date, an authorized representative
of the Company will accept (subject to the provisions of the next
following paragraph) the bid which shall provide the highest purchase
price to be paid to the Company for the Securities then being offered.
Unless sooner rejected, each bid will remain irrevocable until such time.
Any bid not so accepted by the Company by such time shall be deemed to
have been rejected. Each bid will be accepted or rejected in its
entirety.
In case two or more bids provide for the identical highest
purchase price to be paid to the Company for the Securities then being
offered, the Company (unless the Company shall reject all bids) will
forthwith give the makers of such bids an opportunity to improve their
bids. If no improved bids shall be made by such bidders within the time
specified by the Company or if upon such rebidding, two or more of the
rebids provide the Company with the identical highest purchase price, the
Company may (i) accept any one of such identical bids or (ii) accept all
3<PAGE>
of such bids in their entirety or (iii) accept all of such bids on a pro
rata basis so long as the aggregate number of shares of Securities sold by
the Company pursuant to such accepted bids is equal to 100% or more of the
aggregate number of shares of Securities that are the subject of any one
of such bids, in each case, at the Company's discretion.
Notwithstanding any other provisions of this Section 6, the
Company reserves the right with respect to any transaction hereunder (a)
to reject all bids or (b) to reject the bid of any bidder or of any group
of bidders (i) if the Company reasonably believes that it may not lawfully
sell the Securities then being offered to such bidder or to any member of
such group of bidders or (ii) if the Company is not satisfied with the
financial responsibility of such bidder or of any member of such group,
and, in any of such events in the case of a group of bidders, if within
two hours after the time the Company has notified the Representative of
the existence of any of the items set forth in item (b) of this paragraph
with respect to any member or members of such group of bidders, the member
or members of such group causing such disqualification, illegality or
dissatisfaction have not withdrawn from the group and the remaining
members, including substituted members if any are permitted by the
Company, have not agreed to purchase such Securities which such
withdrawing member or members had proposed to purchase. The bid of any
bidder or group of bidders rejected by the Company by reason of clause (b)
of this paragraph shall be disregarded for the purpose of determining the
bid specifying the highest purchase price to be paid to the Company for
such Securities.
Notwithstanding any other provisions of this Invitation for
Bids, the Company reserves the right in its discretion to designate, not
less than 24 hours prior to the time, or extended time, specified for the
submission of bids, a number of shares of Common Stock less than that
previously designated. Any bid not conforming to the notice of sale or
not submitted on the Form of Bid without alteration, except for the
required insertions, may be rejected. The Company specifically reserves
the right to waive any irregularity in any or all bids.
7. Effectiveness of Agreement
Forthwith upon the acceptance in writing of a bid: (a) the
Terms of Purchase shall become effective without any separate execution
thereof and such Terms of Purchase and the bid shall constitute the
agreement (the "Agreement") between the Company and the successful bidder
or bidders, subject, however, to such changes in the Terms of Purchase as
may be appropriate if the successful bidder or bidders shall not
contemplate a public offering or if the time for presentation or opening
of bids shall be postponed; and (b) the Company shall, upon being
requested, execute the form of acceptance on a duplicative copy or a
reasonable number of duplicative copies of such proposal furnished by, and
for delivery to, the successful bidder or bidders. Thereafter, all rights
of the Company and of the successful bidder or bidders under an accepted
bid shall be determined solely in accordance with the terms of the
Agreement.
8. Legal Matters
Winthrop, Stimson, Putnam & Roberts has been selected to act as
counsel for the Purchasers to deliver to the successful bidder or bidders
an opinion as to the validity of the Securities. The form of such opinion
4<PAGE>
is attached to the Terms of Purchase as Exhibit C. The validity of the
Securities will be passed on by Mary Patricia Keefe, Esq., Group Vice
President and General Counsel of Elizabethtown Gas Company, a Division of
the Company, and by Kaye, Scholer, Fierman, Hays & Handler, special
counsel to the Company. Certain matters under Florida, Maryland, New
York, North Carolina and Pennsylvania law will be passed on by local
counsel. The forms of such opinions are attached to the Terms of Purchase
as Exhibits A-1 through A-7 thereto.
The fees and disbursements of counsel for the Purchasers are to
be paid by the successful bidder or group of bidders. Any prospective
bidder and the Representative of any group of prospective bidders may
obtain advice from counsel for the Purchasers as to the amount of their
fees and the estimated amount of their disbursements.
9. Delivery
Delivery of the Securities will be made against payment of the
purchase price therefor in New York Clearing House funds on the fifth
business day after the acceptance of the bid for the Securities bring
offered. Such delivery will be made in New York, New York, as more fully
specified in, and subject to the terms and conditions of, the Agreement.
10. Reservation of Right to Waive Compliance Herewith
The Company reserves the right to (a) waive any failure on the
part of any bidder or group of bidders to comply with the terms or
conditions hereof if such waiver will not unfairly prejudice any other
bidder or group of bidders and (b) permit any bidder or group of bidders
to correct any typographical, clerical or similar error.
NUI CORPORATION
By: _________________________
Name:
Title:
Dated:
5<PAGE>
NUI CORPORATION
FORM OF BID
________ SHARES
COMMON STOCK
Purchase Price Per Share: $_______ (in multiples of .125)
_________ ___, _____
NUI CORPORATION
c/o Kaye, Scholer, Fierman, Hays & Handler
425 Park Avenue
New York, New York 10022
Ladies and Gentlemen:
Referring to the Invitation for Bids (the "Invitation for Bids"),
dated _______ __, ____, inviting bids for the purchase of _______ shares
of Common Stock, no par value (the "Securities"), of NUI Corporation (the
"Company"), the person, firm or corporation (or the persons, firms and/or
corporations) named in the attached Schedule A (the "Bidders") submit the
following Bid for the purchase of the Securities:
1. The purchase price per share to be paid to the Company for the
Securities shall be as set forth above; and the Bidders, severally, hereby
offer to purchase the Securities from the Company at such price, upon the
terms and conditions set forth in the Terms of Purchase annexed hereto
(the "Terms of Purchase").
2. If this Bid is accepted by the Company, the Terms of Purchase
shall become effective without any separate execution thereof; the
accepted Bid and the Terms of Purchase, together, shall constitute the
agreement between the Company and the Bidders (the "Agreement"); and all
rights of the Company and the Bidders shall be determined solely in
accordance with the terms of the Agreement, subject, however, to such
modifications therein as may be necessary and as are contemplated by the
Invitation for Bids.
3. The Bidders agree that their offer included in this Bid shall be
irrevocable until 5:00 P.M., New York City time, on the date fixed for the
presentation hereof, unless such Bid is sooner returned or rejected by the
Company. It shall be the obligation of the successful bidder to furnish
to the Company the denominations of and names in which the certificates
representing the Securities shall be issued not less than 72 hours prior
to the delivery of the Securities and to furnish to the Company,
contemporaneously with the acceptance of the Bid, such details of the<PAGE>
offering, including the price to the public, as are needed to complete the
Registration Statement and the Prospectus.
4. This Bid shall be deemed rejected by the Company if it shall not
have been accepted by the Company by 5:00 P.M., New York City time, on the
date fixed for the presentation hereof.
5. This Bid shall be governed by the laws of the State of New York
without giving effect to any conflict of law provisions thereof.
6. The Invitation for Bids is not intended as a disclosure
document. Bidders are required to obtain and carefully review the
Registration Statement and the Prospectus (each as defined in the Terms of
Purchase) relating to the offering of the Securities before submitting a
Bid.
7. Each of the Bidders acknowledges receipt of a copy of the
Registration Statement and the Prospectus relating to the Securities
referred to in the Invitation for Bids.
8. Each of the Bidders acknowledges that the Company's
determination of the highest purchase price to be paid to the Company for
the proposed purchase of the Securities shall be final.
9. There are enclosed herewith certified, cashier's or official
bank check or checks in an aggregate amount equal to 1% of the aggregate
purchase price specified in this Bid to be paid to the Company for the
Securities now being offered, payable in New York Clearing House funds and
drawn to the order of the Company, to be held and disposed of by the
Company in accordance with the Invitation for Bids and the Terms of
Purchase.
2<PAGE>
10. The undersigned hereby represents that it or they have been
authorized by the Bidders to sign this Bid on their behalf and to act for
them in the manner provided herein, in the Invitation for Bids and in the
Terms of Purchase.
Very truly yours,
Representative
By: ________________________
Name:
Title:
Address:
By: ________________________
Name:
Title:
Accepted: Address:
NUI Corporation
By: ________________________
Name:
Title:
This Form of Bid must be signed and submitted with the attached Schedule A
completed.
3<PAGE>
SCHEDULE A
Purchasers
Number of Shares<PAGE>
NUI CORPORATION
TERMS OF PURCHASE FOR COMMON STOCK
(to be attached to Form of Bid)
1. Purchasers and Representative. If there shall be two or
more persons, firms or corporations named in Schedule A to the attached
Form of Bid (the "Bid"), the term "Purchasers," as used herein, shall be
deemed to mean the persons, firms or corporations so named (including the
Representative hereinafter mentioned), and the term "Representative," as
used herein, shall be deemed to mean the representative or representatives
by whom or on whose behalf the Bid has been signed. All obligations of
the Purchasers hereunder are several. If there shall be only one person,
firm or corporation named in said Schedule A, the term "Purchasers" and
the term "Representative," as used herein, shall mean such person, firm or
corporation.
2. Background.
(a) NUI Corporation, a New Jersey corporation (the
"Company"), proposes to issue and sell its Common Stock, no par value
("Common Stock"), in the aggregate number of shares and at the purchase
price specified in the attached Bid (the "Securities").
(b) The Purchasers have designated the person or persons
signing the Bid to execute the Bid on behalf of the respective Purchasers
and to act for the respective Purchasers in the manner provided in this
Terms of Purchase (collectively, with the Bid, the "Agreement").
(c) The Company has prepared and filed, in accordance with
the provisions of the Securities Act of 1933 (the "Act"), with the
Securities and Exchange Commission (the "SEC"), a registration statement
and prospectus relating to the Securities and such registration statement
has become effective.
(d) Such registration statement, as it may have been
amended, including the financial statements, the documents incorporated or
deemed incorporated therein by reference, and exhibits, being herein
called the "Registration Statement" and the prospectus as included or
referred to in the Registration Statement (the "Basic Prospectus"), as it
may be last amended or supplemented prior to the effectiveness of the
Agreement, but excluding any amendment or supplement relating solely to
securities other than the Securities (any such amendment or supplement
being referred to as a "Prospectus Supplement"), and as supplemented to
include certain information relating to the Purchasers, the number of
shares to be offered, and the purchase price and terms of offering of the
Securities (any such supplement being referred to as a "Pricing
Supplement"), as filed with, or transmitted for filing to, the SEC
pursuant to Rule 424 of the rules and regulations of the SEC promulgated
under the Act, including all documents then incorporated or deemed to have
been incorporated therein by reference, in the form in which from time to
time it has most recently been filed with, or transmitted for filing to,
the SEC being herein called the "Prospectus."
<PAGE>
3. Purchase, Sale and the Closing. On the terms and subject
to the conditions, and in reliance on the representations, warranties and
covenants herein, each Purchaser shall severally buy from the Company, and
the Company shall sell to such Purchaser, the number of shares of the
Securities set forth opposite the name of such Purchaser in Schedule A to
the Bid. The purchase price per share for the Securities shall be the
purchase price set forth in the Bid and shall be payable by certified,
cashier's or official bank check in New York Clearing House funds drawn
to the order of the Company. The closing of the purchase and sale of the
Securities (the "Closing") will be held at the offices of Kaye, Scholer,
Fierman, Hays & Handler, New York, New York at 10:00 A.M. New York City
time on the fifth business day following the day on which the Agreement
shall become effective, or such other place or other date or other time as
may be agreed on by the Company and the Representative. The date of the
Closing is hereinafter referred to as the "Closing Date."
The Representative agrees to furnish to the Company the names
and the denominations of the certificates representing the Securities for
each Purchaser not less than 72 hours prior to the Closing. For the
purpose of expediting the checking of the certificates representing the
Securities, the Company agrees to make such certificates available to the
Representative for such purpose at least one full business day preceding
the Closing.
4. Public Offering. Contemporaneously with the acceptance of
the Bid, the Representative shall advise the Company of such details of
the offering, including the price to the public, as are needed to complete
the Registration Statement or the Prospectus.
5. Security Check. The funds represented by any check or
checks delivered with the Bid by or on behalf of a Purchaser or group of
Purchasers shall be held by the Company as security for the faithful
performance by the Purchasers of their obligations hereunder until
disposed of as hereinafter provided in this Section 5. Upon the
acceptance of the Bid of a Purchaser or group of Purchasers, the Company
is hereby authorized to deposit such check or checks in a bank account in
the Company's name forthwith. As part of the Closing, such funds so
deposited shall be applied to the payment of the purchase price of the
Securities, but only if simultaneously therewith the balance of the
purchase price shall be paid by the Purchasers as provided in Section 3
hereof. In the event that the Agreement shall be terminated in accordance
with the provisions of Section 12 hereof, the deposit made with respect to
a check or checks from a Purchaser who is not in default hereunder shall
forthwith be returned to such Purchaser without interest. In the event
that a Purchaser fails or refuses, otherwise than for some reason
sufficient to justify, in accordance with the terms hereof, the
cancellation or termination of its obligation hereunder to purchase and
pay for the Securities as provided in Section 3 hereof, the deposit made
with respect to a check or checks from such Purchaser shall become the
property of the Company, as minimum liquidated damages, free of any claim
on the part of such Purchaser, without prejudice, however, to any other
rights of the Company hereunder.
6. Company's Representations. The Company makes the following
representations to each of the Purchasers, all of which representations
shall survive the issuance and delivery of the Securities:
2<PAGE>
(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 the Agreement, to issue and sell the Securities as
herein contemplated and to perform its obligations 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 the 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 the Agreement and the issuance and sale of the Securities,
and the Agreement has been duly executed and delivered by the Company; as
of the time of the Closing, the Securities, when issued and delivered to
the Representative as contemplated thereby, will be duly authorized and
validly issued, fully paid and non-assessable, and free and clear of any
pledge, lien, charge, encumbrance, security interest, preemptive right or
other claim; 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 the Agreement and the issuance and sale
of the Securities as contemplated thereby 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
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 Purchasers; the Company has filed the
required applications, if any, for such required approvals by the Public
Utility Commissions (other than any filing for approval which may be
required from the NYPSC after the execution of the Agreement with respect
to (i) the terms of the Agreement, (ii) the terms of the Securities and
the sale thereof, (iii) the terms of the initial public offering of the
Securities 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 the Agreement 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
3<PAGE>
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 and the Agreement; and
the Company is not in material default under any obligation for borrowed
money.
(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 first be used to confirm sales of the Securities and at the Closing
Date, will comply in all material respects with the 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 first
be used to confirm sales of the Securities and at the Closing Date, 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 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 Purchaser expressly for use in the
Registration Statement or the Prospectus.
(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 Securities
Exchange Act of 1934 (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.
(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 the Agreement,
the Registration Statement and the Prospectus, the validity or
enforceability of the 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.
4<PAGE>
(g) The Company has an authorized capitalization as set forth
in the Registration Statement and the Prospectus; all of the issued and
outstanding shares of the Common Stock have been duly authorized and
validly issued and are fully paid and non-assessable; the capital stock of
the Company, including the Securities, conforms to the description thereof
contained in the Registration Statement and the Prospectus, and the
certificates representing the Securities are in due and proper form and
the holders of the Securities will not be subject to personal liability by
reason of being such holders.
7. Purchasers' Representations. Each Purchaser 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 Purchaser for use in the Prospectus is correct as to such
Purchaser. Each Purchaser, in addition to other written information
furnished to the Company for use in the Prospectus, herewith furnishes to
the Company, through the Representative, for use in the Prospectus, the
written information with regard to the public offering, if any, of the
Securities by such Purchaser and warrants and represents that such written
information is correct as to such Purchaser.
(b) Each Purchaser may lawfully purchase from the Company the
Securities that it has agreed to purchase pursuant to the Agreement.
8. 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 the Representative 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 the Purchasers, without charge, as soon as
reasonably practicable and from time to time thereafter during such period
of time (not exceeding nine months) after the effective date of the
Agreement as the Purchasers 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 Representative may reasonably request; and in case any
Purchaser is required to deliver a prospectus after the expiration of nine
months after the effective date of the Agreement, to furnish to the
Representative as soon as reasonably practicable, upon request by the
Representative, at the expense of such Purchaser, a reasonable quantity of
a supplemental prospectus or of supplements to the Prospectus complying
with Section 10(a)(3) of the Act.
(c) Furnish to the Representative a copy, certified by the
Secretary or an Assistant Secretary of the Company, of the Registration
Statement as initially filed with the SEC and of all amendments thereto,
other than amendments relating solely to securities other than the
5<PAGE>
Securities, and, upon request, to furnish to the Representative sufficient
plain copies thereof (exclusive of exhibits thereto) or of a composite of
the Registration Statement giving effect to all amendments thereto
(exclusive of exhibits thereto), other than amendments relating solely to
securities other than the Securities, for distribution of one copy thereof
to each of the other Purchasers.
(d) As soon as reasonably practicable, to make generally
available to its security holders and the Representative 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 Representative may designate within six months after
the date hereof and itself to pay, or to reimburse the Purchasers 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 (not exceeding nine months) after
the effective date of the Agreement as the Purchasers 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 the Purchasers and to dealers (whose
names and addresses are furnished to the Company by the Representative) to
whom Securities may have been sold by the Purchasers and, upon request, to
any other dealers making such request at such dealers' expense, copies of
such amendments to the Prospectus or supplemental information.
(g) Pay the costs of preparing and reproducing or printing and
distributing the Agreement, the certificates representing 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 and
disbursements of accountants for the Company; and 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, of preparing the Blue Sky Memorandum as set
forth in Section 8(e) hereof and the filing for review of the public
offering of the Securities by the National Association of Securities
Dealers, Inc.; provided, however, if the Purchasers shall not take up and
pay for the Securities due to the failure of the Company to comply with
any of the conditions specified in Section 9 hereof, or if the Agreement
shall be terminated in accordance with the provisions of Section 12
hereof, the Company agrees to pay the reasonable fees and actual out-of-
pocket expenses of Winthrop, Stimson, Putnam & Roberts, as counsel to the
Purchasers. If the Securities are not delivered for any reason other than
the termination of the Agreement pursuant to Section 12 hereof or the
default by one or more of the Purchasers in its or their respective
6<PAGE>
obligations hereunder, the Company shall reimburse the Purchasers for all
of their actual out-of-pocket expenses.
(h) For a period of one hundred and twenty days from the date
hereof, not to sell, grant any option to sell or otherwise dispose of,
directly or indirectly, any shares of Common Stock or securities
convertible into or exercisable for or exchangeable into Common Stock or
permit the registration under the Act of any shares of Common Stock,
except for (i) the registration of the Securities and the sales thereof to
the Purchasers pursuant to the Agreement, (ii) the issuance of shares of
Common Stock upon conversion of currently outstanding convertible
securities or upon the exercise of stock options and other rights granted
under employee benefit plans outstanding on the date hereof, (iii) sales
to existing shareholders or to residents in the states in which the
Company operates under plans outstanding on the date hereof and (iv) sales
or grants to employees of the Company or any of its subsidiaries under
plans outstanding on the date hereof, without the prior written consent of
the Representative, which consent shall not be unreasonably withheld.
9. Conditions of Purchasers' Obligation. The obligation of
the Purchasers to purchase the Securities is subject to fulfillment of the
following conditions at or before the Closing:
(a) The Company's representations contained herein 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 Closing Date.
(b) The Company shall have performed, in all material respects,
such of its obligations under the Agreement that are to be performed at or
before the Closing.
(c) The Securities to be sold by the Company at the Closing
shall have been duly listed, subject to notice of issuance, on the New
York Stock Exchange.
(d) At or prior to the Closing, the Representative shall have
received:
(i) opinions of counsel for the Company, dated the
Closing Date, addressed to the Representative and in form and
substance reasonably satisfactory to the Representative,
substantially to the effect set forth in Exhibits A-1 through A-
7 attached hereto;
(ii) a letter, dated the Closing Date and addressed to
the Representative, from the independent public accountants of
the Company substantially to the effect set forth in Exhibit B
attached hereto;
(iii) an opinion of counsel to the Purchasers,
dated the Closing Date, addressed to the Representative and in
form and substance reasonably satisfactory to the
Representative, substantially to the effect set forth in Exhibit
C attached hereto;
(iv) a copy of the Registration Statement and the
Prospectus and the documents incorporated therein by reference,
if requested, which shall include the consolidated financial
7<PAGE>
statements of the Company and a report thereon executed by the
Company's independent public accountants;
(v) a certificate, dated the Closing Date, of the
Chairman of the Board, the President, any Vice President or the
Treasurer of the Company, reasonably satisfactory to the
Representative, certifying that
(1) as of the Closing Date, the Company's representations
under the Agreement are true in all material respects and that
the Company has performed in all material respects such of its
obligations under the Agreement that are to be performed at or
before the Closing;
(2) between the time of the execution of the Agreement and
the Closing Date, there has been 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, other
than changes disclosed by or contemplated in the Registration
Statement or the Prospectus or changes arising in the ordinary
course of the Company's business;
(3) as of the Closing Date, 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; and
(4) attaching true and complete copies of each order
required from the Utility Commissions in connection with the
issuance of the Securities; and
(vi) such other documents and certificates as to the
accuracy and completeness of any statement in the Registration
Statement and the Prospectus as of the Closing Date as the
Representative or the Representative's counsel may reasonably
request.
(e) The Registration Statement shall have become effective on
or before the date of the Agreement and shall be effective on the Closing
Date. 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.
(f) 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.
(g) Between the time of the execution of the Agreement and the
Closing 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.
8<PAGE>
10. Conditions of the Company's Obligation. The obligation of
the Company to sell and deliver the Securities is subject to the
fulfillment of the following conditions at the time of the Closing:
(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 less the amount of any good faith deposit held by
the Company with respect to any non-defaulting Purchasers.
(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 the
Agreement do not contain any such unacceptable provisions other than any
provision that the Company has informed the Representative, on or prior to
the date hereof, is unacceptable to the Company.
(d) The Purchasers' 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 Closing Date.
In case any of the conditions specified in this Section 10 shall
not have been fulfilled, the 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 the
Representative. Any such termination shall be without liability of any
party to any other party except to the extent provided in Section 11
hereof.
11. Indemnity by the Company and the Purchasers. (a) The
Company agrees to indemnify, defend and hold harmless each Purchaser and
any person who controls any Purchaser 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 Purchaser 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
writing to the Company by, or on behalf of, any Purchaser expressly for
use with reference to such Purchaser 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
9<PAGE>
misleading, provided, however, that the indemnity agreement contained in
this Section 11(a) with respect to the Registration Statement or the
Prospectus shall not inure to the benefit of any Purchaser (or to the
benefit of any person controlling such Purchaser) 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 Purchaser 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 a Purchaser or a controlling
person of a Purchaser in respect of which indemnity may be sought against
the Company pursuant to the foregoing paragraph, such Purchaser 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 Purchaser 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 Purchaser 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 Purchaser 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
Purchaser expressly for use with reference to such Purchaser 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 written
information necessary to make such written information, in the light of
the circumstances under which such written information is used, not
misleading.
10<PAGE>
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 Purchaser pursuant to the foregoing paragraph,
the Company or any such director, officer or controlling person shall
promptly notify such Purchaser in writing of the institution of such
action and such Purchaser 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 Purchaser in connection with the
defense of such action or such Purchaser 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 Purchaser (in which case such Purchaser 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 Purchaser (it being understood,
however, that such Purchaser 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 Purchaser shall be liable for any settlement of any
claim or action effected without the written consent of such Purchaser,
which consent shall not be unreasonably withheld.
(c) If the indemnification provided in this Section 11 is
unavailable to an indemnified party under paragraphs (a) and (b) of this
Section 11 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
Purchasers 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 Purchasers 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 Purchasers on the other shall be deemed to
be in the same proportion as the total proceeds from the offering (net of
underwriting discounts and commissions but before deducting expenses)
received by the Company bear to the total underwriting discounts and
commissions received by the Purchasers. The relative fault of the Company
on the one hand and of the Purchasers on the other shall be determined by
reference to, among other things, whether the untrue statement or alleged
untrue statement of a material fact or omission or alleged omission
relates to information supplied by the Company or by the Purchasers, 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,
11<PAGE>
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 Purchasers agree that it would not be
just and equitable if contribution pursuant to this Section 11 were
determined by pro rata allocation (even if the Purchasers 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 11. Notwithstanding the provisions of this
Section 11, no Purchaser 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
exceeds the amount of any damages which such Purchaser 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 Purchasers'
obligations to contribute pursuant to this Section 11 are several in
proportion to their respective underwriting commitments and not joint.
(e) The indemnity and contribution agreements contained in
this Section 11 and the covenants and representations of the Company and
the Purchasers contained in the Agreement shall remain in full force and
effect regardless of any investigation made by, or on behalf of, any
Purchaser, or any person who controls any Purchaser 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 the
Agreement or the issuance and delivery of the Securities. The Company and
each Purchaser 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.
12. Events Permitting Termination. The Representative may
terminate the Purchasers' obligations to purchase the Securities at any
time before the Closing if 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 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
the reasonable judgment of the Representative, to make it impracticable to
market the Securities; or
12<PAGE>
(b) any event or condition which, in the reasonable judgment of
the Representative, 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.
If the Representative elects to terminate the Agreement as
provided in this Section 12, the Company shall be notified promptly in
writing by letter or telegram.
If the sale to the Purchasers of the Securities, as contemplated
by the Agreement, is not consummated by the Purchasers for any reason
permitted under the Agreement or if such sale is not consummated because
the Company shall be unable to comply with any of the terms of the
Agreement, the Company shall not be under any obligation or liability
under the Agreement (except to the extent provided in Section 8(g) and
Section 11 hereof), and the Purchasers shall be under no obligation or
liability to the Company under the Agreement (except to the extent
provided in Section 11 hereof) or to one another hereunder.
13. Default by One or More Purchasers. If one or more of the
Purchasers defaults, the remaining Purchasers, if any, are obligated to
take up and pay for at the Closing additional Securities not exceeding 10%
of their respective participations. Should the total aggregate
participation of the defaulting Purchaser or Purchasers exceed 9.09% of
the number of shares of the Securities to be purchased as set forth on
Schedule A attached to the Bid, (a) the Representative shall use its best
efforts to arrange for a substitute Purchaser or Purchasers within 24
hours of notice from the Company of such default, to purchase all, but not
less than all, of the total participation of the defaulting Purchaser or
Purchasers upon the terms set forth in the Agreement, and (b) if the
Representative shall fail to arrange for such a substitute Purchaser or
Purchasers within such 24-hour period, the Company shall be entitled to an
additional 24-hour period within which to arrange for a substitute
Purchaser or Purchasers, to purchase all, but not less than all, of the
total participation of the defaulting Purchaser or Purchasers upon the
terms set forth in the Agreement. In either event, the Representative or
the Company shall have the right to postpone the Closing for a period not
to exceed five full business days from the date determined as provided in
Section 3 hereof, in order that the necessary changes in the Registration
Statement and the Prospectus and any other documents and arrangements may
be effected. If the Representative and the Company shall fail to procure
a substitute Purchaser or Purchasers, as above provided, to purchase or
agree to purchase all, but not less than all, of the total participation
of the defaulting Purchaser or Purchasers, then the Agreement shall
terminate. In the event of any such termination, the Company shall not be
liable to any non-defaulting Purchaser, nor shall any non-defaulting
Purchaser be liable to the Company; provided, however, that each
defaulting Purchaser shall not be released from its liability to the
Company for damages occasioned by such default under the Agreement.
The term Purchaser as used in the Agreement shall refer to and
include any purchaser substituted under this Section 13 with like effect
13<PAGE>
as if such substituted purchaser had originally been named in Schedule A
attached to the Bid.
14. Parties at Interest. The agreement herein set forth has
been and is made solely for the benefit of the Purchasers, the Company and
the controlling persons, directors and officers referred to in Section 11
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
purchaser, from one or more of the Purchasers) shall acquire or have any
right under or by virtue of the Agreement.
15. Notices. Except as otherwise herein provided, all
statements, requests, notices and agreements shall be in writing or by
telegram and, if to the Purchasers , shall be sufficient in all respects
if delivered or sent to the Representative at the address set forth in the
Bid 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.
16. Construction. The 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 the Agreement have been inserted as a matter of convenience of
reference and are not a part of the Agreement.
17. Time is of Essence. Time shall be of the essence with
respect to the Agreement.
14<PAGE>
EXHIBIT A-1
[Letterhead of Mary Patricia Keefe, Esq.
Group Vice President and General Counsel
Elizabethtown Gas Company]
[the Closing Date]
(Points to be covered)
1. 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
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 the Agreement, to issue and
sell the Securities as herein contemplated and to perform its obligations
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 the 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.
2. The Securities, when issued and delivered to and paid for
by the Purchasers in accordance with the terms of the Agreement, will be
duly and validly authorized and issued and will be fully paid and non-
assessable, and will be free of statutory and contractual preemptive
rights.
3. The Agreement has been duly authorized, executed and
delivered by the Company.
4. The making of and the performance by the Company under the
Agreement and the carrying out by the Company of the terms 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 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.
5. 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 my knowledge, threatened against the Company (or,
to my knowledge, any meritorious basis therefor) wherein an unfavorable
decision, ruling or finding would have a material adverse effect on the
transactions contemplated by the Agreement and the Registration Statement,
the validity of the Securities or the Agreement or the enforceability of
A-1-1<PAGE>
the 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.
6. 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 the Agreement and the issuance and sale of
the Securities, and no other regulatory 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 the
Agreement, the issuance and sale of the Securities or the consummation of
the transactions contemplated thereby; provided, however, that I express
no opinion with respect to the necessity for any (i) action under the laws
of the States of Florida, Maryland, New York or North Carolina or the
Commonwealth of Pennsylvania, as to which matters the Purchasers are
relying upon the opinions, each dated the date hereof and addressed to
you, as the Representative, 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 you, as the Representative), and (ii) qualification or other action
under the Blue Sky or securities laws of any jurisdiction.
7. 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.
8. The Registration Statement has become effective under the
Act and, to the best of my 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.
9. The Company has an authorized capitalization as set forth
in the Registration Statement and the Prospectus; the outstanding shares
of capital stock, including the Common Stock, of the Company have been
duly and validly authorized and issued, and are fully paid and non-
assessable, and free of statutory and contractual preemptive rights; the
certificates representing the Securities are in due and proper form; and
the holders of the Securities will not be subject to personal liability by
reason of being such holders.
Insofar as my opinion involves matters of Florida, Maryland, New
York, North Carolina and Pennsylvania law, I have relied, with your
approval, upon 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 the Purchasers), each such opinion dated the date hereof and addressed
to you, as the Representative, and, as to factual matters, on certificates
of public officials and officers of the Company. I believe that the
Purchasers and I are justified in relying on such opinions and
certificates to the extent they relate to such matters.
A-1-2<PAGE>
In addition, I have participated in conferences with officers
and other representatives of the Company, representatives of the
independent public accountants of the Company, representatives of the
Representative, 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 I am not passing upon and do
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 my attention to make me
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 and at the date hereof, 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 I am expressing 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).
This opinion shall be governed by, and interpreted in accordance
with, the Legal Opinion Accord of the ABA Section of Business Law (1991).
A-1-3<PAGE>
EXHIBIT A-2
[Letterhead of McWhirter, Reeves, McGlothlin, Davidson & Bakas or other
Florida Counsel reasonably acceptable to the Purchasers]
[the Closing Date]
The Purchasers
Listed in Schedule A to the accepted
Bid, dated , , and
the attached Terms of Purchase (the
"Terms of Purchase") (collectively,
the "Agreement") relating to the
Securities referred 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
sale on the date hereof of $________ aggregate principal amount
of the Company's _________________ , to the Purchasers named in
Schedule A to the Agreement.
In such capacity, we have examined originals or copies,
identified to our satisfaction, of the Agreement, the Securities
(as defined in the Agreement), the Indenture (as defined in the
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
A-2-1<PAGE>
is engaged in the State of Florida and to own and operate the
properties used by it in such business.
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 and the
issuance and sale of 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 or the
consummation of the transactions contemplated thereby or the
issuance and sale of the Securities; 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,
A-2-2<PAGE>
EXHIBIT A-3
[Letterhead of Piper & Marbury or other Maryland Counsel
reasonably acceptable to the Purchasers]
[the Closing 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 or the consummation of the transactions contemplated
thereby or the issuance and sale of the Securities; 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.
A-3-1<PAGE>
EXHIBIT A-4
[Letterhead of Cullen & Dykman or other New York Counsel
reasonably acceptable to the Purchasers]
[the Closing 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 and the
issuance and sale of 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 or the
consummation of the transactions contemplated thereby or the
issuance and sale of the Securities; 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.
A-4-1<PAGE>
EXHIBIT A-5
[Letterhead of Brooks, Pierre, McLendon, Humphrey & Leonard or
other
North Carolina Counsel reasonably acceptable to the Purchaser]
[the Closing 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 or the consummation of the
transactions contemplated thereby or the issuance and sale of the
Securities; 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.
A-5-1<PAGE>
EXHIBIT A-6
[Letterhead of Malatesta, Hawke, McKeon or other Pennsylvania
Counsel reasonably acceptable to the Purchasers]
[the Closing 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 and the issuance and sale of 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 or the consummation of
the transactions contemplated thereby or the issuance and sale of
the Securities; 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.
A-6-1
<PAGE>
EXHIBIT A-7
[Letterhead of Kaye, Scholer, Fierman,
Hays & Handler]
[the Closing Date]
(Points to be covered)
1. 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 the Agreement, to issue, sell
and deliver the Securities as herein contemplated and to perform
its obligations thereunder.
2. The Agreement has been duly authorized, executed
and delivered by the Company.
3. The Securities, when issued and delivered to and
paid for by the Purchasers in accordance with the terms of the
Agreement, will be duly and validly authorized and issued and
will be fully paid and non-assessable, and will be free of
statutory preemptive rights.
4. The making of and the performance by the Company
under the Agreement and the carrying out by the Company of the
terms 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.
5. The Company has an authorized capitalization as
set forth in the Registration Statement and the Prospectus and
the Common Stock conforms in all material respects to the
description thereof contained in the Registration Statement and
the Prospectus under the caption "Description of Capital Stock."
6. 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 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 we express no opinion).
7. The Registration Statement has become effective
under the Act, and, to the best of our knowledge, no stop order
suspending the effectiveness of the Registration Statement has
been issued under the Act and no proceedings for that purpose
A-7-1<PAGE>
have been instituted or threatened under Sections 8(d) or 8(e) of
the Act by the SEC.
Insofar as our opinion involves matters of New Jersey
law, we have relied, with your approval, upon the opinion of Mary
Patricia Keefe, Esq., Group Vice President and General Counsel of
Elizabethtown Gas Company, a Division of the Company ("EGC"),
dated the date hereof and addressed to you, as the
Representative, and, as to factual matters, on certificates of
public officials and officers of the Company. We believe that
the Purchasers and we are justified in relying on such opinion
and certificates to the extent they relate to such matters.
In addition, we have 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 Representative, 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 paragraph 6 above and the other opinions expressed
in this opinion letter, we are not passing upon and do 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 paragraph 5
above), on the basis of the foregoing, nothing has come to our
attention that leads us 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 and at the date hereof, 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 we 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).
This opinion shall be governed by, and interpreted in
accordance with, the Legal Opinion Accord of the ABA Section of
Business Law (1991).
Very truly yours,
A-7-2<PAGE>
EXHIBIT B
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 Purchasers 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 corresponding period in the preceding year, except in all
B-1<PAGE>
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 Purchasers
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.
B-1
EXHIBIT C
[Letterhead of Winthrop, Stimson, Putnam & Roberts]
[date of the Closing]
The Purchasers
Listed in Schedule A to the
accepted Bid dated ,
, and the attached Terms of
Purchase (the "Terms of Purchase")
(collectively, the "Agreement")
relating to the Securities referred
to below
Re: $ _______, ______________
of NUI Corporation
Gentlemen:
We have acted as counsel to the Purchasers in connection
with the issuance and sale of the above-captioned securities (the
"Securities") pursuant to the Agreement by and among NUI
Corporation (the "Company") and the purchasers named in Schedule
A thereto (the "Purchasers"). All terms used herein, unless
otherwise defined herein, have the meanings assigned to them in
the Agreement.
In connection therewith we have examined originals or
copies, certified or otherwise identified to our satisfaction, of
the documents delivered at the Closing as listed in the Closing
Memorandum of even date herewith. We have also reviewed and are
relying upon, and in our opinion, you are justified in relying
upon, the opinions delivered to you today pursuant to the
provisions of the Agreement by Mary Patricia Keefe, Esq., Vice
President and General Counsel of Elizabethtown Gas Company, a
Division of the Company, and local counsel. We have also
reviewed, and in our opinion, you are justified in relying upon,
the opinion delivered to you today pursuant to the provisions of
the Agreement by Kaye, Scholer, Fierman, Hays & Handler, Special
Counsel for the Company.
Based upon the foregoing, we are of the opinion that:
(1) The Registration Statement has become effective under
the Act, and, to the best of our 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.
(2) The descriptions and summaries of the Common Stock
contained in the Registration Statement and the Prospectus under
the caption "Description of Capital Stock" are accurate and
fairly present the information purported to be shown with respect
thereto.
C-1<PAGE>
(3) The Agreement has been duly authorized, executed and
delivered by the Company.
(4) The Securities, when issued and delivered to and paid
for by the Purchasers in accordance with the terms of the
Agreement, will be duly and validly authorized and issued and
will be fully paid and non-assessable, and will be free of
statutory preemptive rights.
(5) 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 pursuant to Rule 424 (except
in each case as to the financial statements and schedules and
other financial, engineering and statistical data contained
therein, as to which we 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.
In passing upon the forms of the Registration Statement and
the Prospectus, we 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 paragraph 2 above and except insofar as
such statements and information relate to us. In the course of
the preparation of the Registration Statement and the Prospectus,
we have had conferences with certain of the officers and
employees of the Company, with Kaye, Scholer, Fierman, Hays &
Handler, special counsel for the Company, with the independent
public accountants for the Company, with the Representative and
with Mary Patricia Keefe, Esq., Group Vice President and General
Counsel of EGC, and we reviewed the documents listed in the
Registration Statement as being incorporated therein by
reference. Our examination of the Registration Statement, our
discussions in the above-mentioned conferences and our review did
not disclose to us any information, and nothing has come to our
attention, which would lead us 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 and at the date hereof, 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 we 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).
Insofar as our opinion involves matters of New Jersey law,
we have relied, with your approval, upon the opinion of Mary
Patricia Keefe, Esq., Group Vice President and General Counsel of
EGC, dated the date hereof and addressed to you, as the
Representative, and, as to factual matters, on certificates of
public officials and officers of the Company. We believe that
C-2<PAGE>
the Purchasers and we are justified in relying on such opinion
and certificates to the extent they relate to such matters.
This opinion is given to you solely for your use in
connection with the Agreement and the transactions contemplated
thereunder and may not be relied upon by any other person or for
any other purpose.
Very truly yours,
C-3<PAGE>
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.
1<PAGE>
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
2<PAGE>
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.
3<PAGE>
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
4<PAGE>
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.
5<PAGE>
(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
6<PAGE>
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
7<PAGE>
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)
8<PAGE>
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
9<PAGE>
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).
10<PAGE>
(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<PAGE>
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<PAGE>
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<PAGE>
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<PAGE>
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<PAGE>
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<PAGE>
[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<PAGE>
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<PAGE>
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<PAGE>
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<PAGE>
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<PAGE>
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<PAGE>
Name:
Title:
[AGENT]
By:
Name:
Title:
23<PAGE>
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<PAGE>
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<PAGE>
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<PAGE>
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<PAGE>
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<PAGE>
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<PAGE>
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<PAGE>
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<PAGE>
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<PAGE>
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<PAGE>
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<PAGE>
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<PAGE>
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<PAGE>
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<PAGE>
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<PAGE>
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<PAGE>
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<PAGE>
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<PAGE>
(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
3<PAGE>
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.
4<PAGE>
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<PAGE>
(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<PAGE>
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<PAGE>
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<PAGE>
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<PAGE>
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<PAGE>
Proof of November 14, 1994 EXHIBIT NO. 4-2
NUI CORPORATION
To
FIRST FIDELITY BANK, NATIONAL ASSOCIATION
as Trustee
_____________________
INDENTURE
Dated as of __________ __, 1994
______________________
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE ONE . . . . . . . . . . . . . 1
Definitions and Other Provisions of General Application . . . . . . . 1
SECTION 101.Definitions. . . . . . . . . . . . . . . . . . . . . 1
"Act" . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Affiliate" . . . . . . . . . . . . . . . . . . . . . . . . 2
"Authenticating Agent" . . . . . . . . . . . . . . . . . . 2
"Board of Directors" . . . . . . . . . . . . . . . . . . . 2
"Board Resolution" . . . . . . . . . . . . . . . . . . . . 2
"Business Day" . . . . . . . . . . . . . . . . . . . . . . 2
"Company" . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Company Request" or "Company Order" . . . . . . . . . . . 2
"Corporate Trust Office" . . . . . . . . . . . . . . . . . 2
"Corporation" . . . . . . . . . . . . . . . . . . . . . . . 2
"Defaulted Interest" . . . . . . . . . . . . . . . . . . . 2
"Depository" . . . . . . . . . . . . . . . . . . . . . . . 3
"Eligible Obligations" . . . . . . . . . . . . . . . . . . 3
"Event of Default" . . . . . . . . . . . . . . . . . . . . 3
"Excepted Encumbrances" . . . . . . . . . . . . . . . . . . 3
"Excepted Property" . . . . . . . . . . . . . . . . . . . . 3
"Exchange Act" . . . . . . . . . . . . . . . . . . . . . . 3
"Global Instrument" . . . . . . . . . . . . . . . . . . . . 3
"Government Obligations" . . . . . . . . . . . . . . . . . 3
"Holder" . . . . . . . . . . . . . . . . . . . . . . . . . 3
"Indenture" . . . . . . . . . . . . . . . . . . . . . . . . 3
"Instrument" . . . . . . . . . . . . . . . . . . . . . . . 4
"Instrument Register" and "Instrument Registrar" . . . . . 4
"interest" . . . . . . . . . . . . . . . . . . . . . . . . 4
"Interest Payment Date" . . . . . . . . . . . . . . . . . . 4
"LIBOR Instrument" . . . . . . . . . . . . . . . . . . . . 4
"London Banking Day" . . . . . . . . . . . . . . . . . . 4
"Maturity" . . . . . . . . . . . . . . . . . . . . . . . . 4
"Notice of Default" . . . . . . . . . . . . . . . . . . . . 4
"Officers' Certificate" . . . . . . . . . . . . . . . . . . 4
"Opinion of Counsel" . . . . . . . . . . . . . . . . . . . 4
"Original Issue Discount Instrument" . . . . . . . . . . . 4
"Outstanding" . . . . . . . . . . . . . . . . . . . . . . . 4
"Paying Agent" . . . . . . . . . . . . . . . . . . . . . . 5
"Periodic Offering" . . . . . . . . . . . . . . . . . . . . 5
"Person" . . . . . . . . . . . . . . . . . . . . . . . . . 5
"Place of Payment" . . . . . . . . . . . . . . . . . . . . 5
"Predecessor Instrument" . . . . . . . . . . . . . . . . . 5
"Redemption Date" . . . . . . . . . . . . . . . . . . . . . 6
"Redemption Price" . . . . . . . . . . . . . . . . . . . . 6
"Regular Record Date" . . . . . . . . . . . . . . . . . . . 6
"SEC" . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
"Special Record Date" . . . . . . . . . . . . . . . . . . . 6
"Stated Maturity" . . . . . . . . . . . . . . . . . . . . . 6
"Subsidiary" . . . . . . . . . . . . . . . . . . . . . . . 6
"Trust Indenture Act" . . . . . . . . . . . . . . . . . . . 6
"Trustee" . . . . . . . . . . . . . . . . . . . . . . . . . 6
SECTION 102. Compliance Certificates and Opinions. . . . . . . 6
SECTION 103. Form of Documents Delivered to Trustee. . . . . . 7
i<PAGE>
SECTION 104. Acts of Holders. . . . . . . . . . . . . . . . . 7
SECTION 105. Notices, Etc., to Trustee and Company . . . . . . 8
SECTION 106. Notice to Holders; Waiver. . . . . . . . . . . . 8
SECTION 107. Conflict with Trust Indenture Act. . . . . . . . 9
SECTION 108. Effect of Headings and Table of Contents. . . . . 9
SECTION 109. Successors and Assigns. . . . . . . . . . . . . . 9
SECTION 110. Separability Clause. . . . . . . . . . . . . . . 9
SECTION 111. Benefits of Indenture. . . . . . . . . . . . . . 9
SECTION 112. Governing Law. . . . . . . . . . . . . . . . . . 9
SECTION 113. Legal Holidays. . . . . . . . . . . . . . . . . . 10
SECTION 114. Incorporators, Stockholders, Officers and
Directors of the Company Exempt from Individual
Liability. . . . . . . . . . . . . . . . . . . . 10
SECTION 115. Duplicate Originals. . . . . . . . . . . . . . . 10
ARTICLE TWO . . . . . . . . . . . . . 10
Instrument Forms . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 201. Forms Generally. . . . . . . . . . . . . . . . . 10
SECTION 202. Form of Trustee's Certificate of Authentication. 11
SECTION 203. Form of Legend for Global Instruments. . . . . . 11
ARTICLE THREE . . . . . . . . . . . . 12
The Instruments . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 301. Amount Unlimited, Issuable in Series . . . . . . 12
SECTION 302. Denominations. . . . . . . . . . . . . . . . . . 14
SECTION 303. Execution, Authentication, Delivery and Dating. . 14
SECTION 304. Temporary Instruments . . . . . . . . . . . . . . 17
SECTION 305. Registration; Registration of Transfer and
Exchange. . . . . . . . . . . . . . . . . . . . . 17
SECTION 306. Mutilated, Destroyed, Lost and Stolen
Instruments. . . . . . . . . . . . . . . . . . . 19
SECTION 307. Payment of Interest; Interest Rights Preserved. . 19
SECTION 308. Persons Deemed Owners. . . . . . . . . . . . . . 20
SECTION 309. Cancellation. . . . . . . . . . . . . . . . . . . 21
SECTION 310. Computation of Interest. . . . . . . . . . . . . 21
SECTION 311. CUSIP Numbers. . . . . . . . . . . . . . . . . . 21
ARTICLE FOUR . . . . . . . . . . . . . 22
Satisfaction and Discharge . . . . . . . . . . . . . . . . . . . . . 22
SECTION 401. Satisfaction and Discharge. . . . . . . . . . . . 22
SECTION 402. Application of Trust Money. . . . . . . . . . . . 23
SECTION 403. Repayment to the Company. . . . . . . . . . . . . 24
ARTICLE FIVE . . . . . . . . . . . . . 24
Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 501. Events of Default. . . . . . . . . . . . . . . . 24
SECTION 502. Acceleration of Maturity; Rescission and
Annulment. . . . . . . . . . . . . . . . . . . . 25
SECTION 503. Collection of Indebtedness and Suits for
Enforcement by Trustee. . . . . . . . . . . . . . 27
SECTION 504. Trustee May File Proofs of Claim. . . . . . . . . 28
SECTION 505. Trustee May Enforce Claims Without Possession of
Instruments. . . . . . . . . . . . . . . . . . . 28
SECTION 506. Application of Money Collected. . . . . . . . . . 29
ii<PAGE>
Page
SECTION 507. Limitation on Suits. . . . . . . . . . . . . . . 29
SECTION 508. Unconditional Right of Holders to Receive
Principal, Premium and Interest. . . . . . . . . 30
SECTION 509. Restoration of Rights and Remedies. . . . . . . . 30
SECTION 510. Rights and Remedies Cumulative. . . . . . . . . . 30
SECTION 511. Delay or Omission Not Waiver. . . . . . . . . . . 30
SECTION 512. Control by Holders. . . . . . . . . . . . . . . . 30
SECTION 513. Waiver of Past Defaults. . . . . . . . . . . . . 31
SECTION 514. Undertaking for Costs. . . . . . . . . . . . . . 32
SECTION 515. Waiver of Stay or Extension Laws. . . . . . . . . 32
ARTICLE SIX . . . . . . . . . . . . . 33
The Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 601. Certain Rights of Trustee. . . . . . . . . . . . 33
SECTION 602. Not Responsible for Recitals or Issuance of
Instruments. . . . . . . . . . . . . . . . . . . 34
SECTION 603. May Hold Instruments. . . . . . . . . . . . . . . 34
SECTION 604. Money Held in Trust. . . . . . . . . . . . . . . 34
SECTION 605. Compensation and Reimbursement. . . . . . . . . . 34
SECTION 606. Corporate Trustee Required; Eligibility. . . . . 35
SECTION 607. Resignation and Removal; Appointment of
Successor. . . . . . . . . . . . . . . . . . . . 35
SECTION 608. Acceptance of Appointment by Successor. . . . . . 37
SECTION 609. Merger, Conversion, Consolidation or Succession
to Business. . . . . . . . . . . . . . . . . . . 38
SECTION 610. Appointment and Qualification of Authenticating
Agent. . . . . . . . . . . . . . . . . . . . . . 38
ARTICLE SEVEN . . . . . . . . . . . . 40
Holders' Lists and Reports by Trustee and Company . . . . . . . . . . 40
SECTION 701. Company to Furnish Trustee Names and Addresses of
Holders. . . . . . . . . . . . . . . . . . . . . 40
SECTION 702. Preservation of Information; Communications to
Holders. . . . . . . . . . . . . . . . . . . . . 40
SECTION 703. Reports by Trustee. . . . . . . . . . . . . . . . 41
SECTION 704. Reports by Company. . . . . . . . . . . . . . . . 41
ARTICLE EIGHT . . . . . . . . . . . . 42
Consolidation, Merger, Conveyance, Transfer, Sale or Lease . . . . . 42
SECTION 801. Company May Consolidate, Etc., Only on Certain
Terms. . . . . . . . . . . . . . . . . . . . . . 42
SECTION 802. Successor Corporation Substituted. . . . . . . . 42
ARTICLE NINE . . . . . . . . . . . . . 43
Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . 43
SECTION 901. Supplemental Indentures Without Consent of
Holders. . . . . . . . . . . . . . . . . . . . . 43
SECTION 902. Supplemental Indentures with Consent of Holders. 44
SECTION 903. Execution of Supplemental Indentures. . . . . . . 45
SECTION 904. Effect of Supplemental Indentures. . . . . . . . 45
SECTION 905. Reference in Instruments to Supplemental
Indentures. . . . . . . . . . . . . . . . . . . . 45
iii<PAGE>
Page
SECTION 906. Conformity with Trust Indenture Act. . . . . . . 45
ARTICLE TEN . . . . . . . . . . . . . 46
Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 1001. Payment of Principal, Premium and Interest. . . . 46
SECTION 1002. Maintenance of Office or Agency. . . . . . . . . 46
SECTION 1003. Money for Instrument Payments to Be Held in
Trust. . . . . . . . . . . . . . . . . . . . . . 46
SECTION 1004. Corporate Existence. . . . . . . . . . . . . . . 47
SECTION 1005. Maintenance of Properties. . . . . . . . . . . . 48
SECTION 1006. Statement as to Compliance. . . . . . . . . . . . 48
SECTION 1007. Negative Pledge. . . . . . . . . . . . . . . . . 48
SECTION 1008. Waiver of Certain Covenants. . . . . . . . . . . 52
ARTICLE ELEVEN . . . . . . . . . . . . 52
Redemption of Instruments . . . . . . . . . . . . . . . . . . . . . . 52
SECTION 1101. Applicability of Article. . . . . . . . . . . . . 52
SECTION 1102. Election to Redeem; Notice to Trustee. . . . . . 52
SECTION 1103. Selection by Trustee of Instruments to Be
Redeemed. . . . . . . . . . . . . . . . . . . . . 53
SECTION 1104. Notice of Redemption. . . . . . . . . . . . . . . 53
SECTION 1105. Deposit of Redemption Price. . . . . . . . . . . 54
SECTION 1106. Instruments Payable on Redemption Date. . . . . . 54
SECTION 1107. Instruments Redeemed in Part. . . . . . . . . . . 54
ARTICLE TWELVE . . . . . . . . . . . . 55
Sinking Funds . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
SECTION 1201. Applicability of Article. . . . . . . . . . . . . 55
SECTION 1202. Satisfaction of Sinking Fund Payments with
Instruments. . . . . . . . . . . . . . . . . . . 55
SECTION 1203. Redemption of Instruments for Sinking Fund. . . . 55
iv<PAGE>
NUI CORPORATION
Reconciliation and Tie Sheet between Trust Indenture Act
of 1939 and Indenture, dated as of __________ __, 1994
Trust Indenture
Act Section
Indenture Section
310(a) (1) . . . . . . . . . . . . . . . . . . . . 606
(a) (2) . . . . . . . . . . . . . . . . . . . . 606
(a) (3) . . . . . . . . . . . . . . . . . . . . . Inapplicable
(a) (4) . . . . . . . . . . . . . . . . . . . . . Inapplicable
(a) (5) . . . . . . . . . . . . . . . . . . . . 606
(b) . . . . . . . . . . . . . . . . . . . . . 603, 607
(c) . . . . . . . . . . . . . . . . . . . . . Inapplicable
311(a) . . . . . . . . . . . . . . . . . . . . 603
(b) . . . . . . . . . . . . . . . . . . . . 603
(c) . . . . . . . . . . . . . . . . . . . . . Inapplicable
312(a) . . . . . . . . . . . . . . . . . . . . . 701, 702
(b) . . . . . . . . . . . . . . . . . . . . 702
(c) . . . . . . . . . . . . . . . . . . . . 702
313(a) . . . . . . . . . . . . . . . . . . . . . 703
(b) (1) . . . . . . . . . . . . . . . . . . . . . Inapplicable
(b) (2) . . . . . . . . . . . . . . . . . . . . . . 703
(c) . . . . . . . . . . . . . . . . . . . . . . 703
(d) . . . . . . . . . . . . . . . . . . . . . . 703
314(a) (1) . . . . . . . . . . . . . . . . . . . . 704
(a) (2) . . . . . . . . . . . . . . . . . . . . 704
(a) (3) . . . . . . . . . . . . . . . . . . . . 704
(a) (4) . . . . . . . . . . . . . . . . . . . . . 1006
(b) . . . . . . . . . . . . . . . . . . . . . Inapplicable
(c) (1) . . . . . . . . . . . . . . . . . . . . 102
(c) (2) . . . . . . . . . . . . . . . . . . . . 102
(c) (3) . . . . . . . . . . . . . . . . . . . . . Inapplicable
(d) . . . . . . . . . . . . . . . . . . . . . Inapplicable
(e) . . . . . . . . . . . . . . . . . . . . 102
(f) . . . . . . . . . . . . . . . . . . . . . Inapplicable
315(a) . . . . . . . . . . . . . . . . . . . . 601
(b) . . . . . . . . . . . . . . . . . . . . 601
(c) . . . . . . . . . . . . . . . . . . . . 601
(d) . . . . . . . . . . . . . . . . . . . . 601
(e) . . . . . . . . . . . . . . . . . . . . 514
v<PAGE>
316(a) (l) . . . . . . . . . . . . . . . . . . . . . 512, 513
(a) (2) . . . . . . . . . . . . . . . . . . . . . Inapplicable
(b) . . . . . . . . . . . . . . . . . . . . 508
(c) . . . . . . . . . . . . . . . . . . . . . . 104, 512, 513
902, 1008
317(a) (1) . . . . . . . . . . . . . . . . . . . . 503
(a) (2) . . . . . . . . . . . . . . . . . . . . . 504
(b) . . . . . . . . . . . . . . . . . . . . . 1003
318(a) . . . . . . . . . . . . . . . . . . . . 107
This reconciliation and Tie Sheet shall not, for any purpose, be deemed to
be a part of the Indenture.
vi<PAGE>
INDENTURE, dated as of __________ __, 1994 between NUI Corporation,
a corporation duly organized and existing under the laws of the state of
New Jersey (herein called the "Company"), having its principal office at
550 Route 202-206, Bedminster, New Jersey 07921, and First Fidelity Bank,
National Association, a national bank organized, existing and authorized
to accept and execute trusts of the character herein set out under and by
virtue of the laws of the United States, as trustee (herein called the
"Trustee"), having its principal corporate trust office at Newark, New
Jersey.
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (herein called the
"Instruments"), unlimited as to principal amount, in one or more series as
in this Indenture provided.
All things necessary to make this Indenture a valid agreement of
the Company, in accordance with its terms, have been done.
This Indenture is subject to the provisions of the Trust Indenture
Act of 1939 and the rules and regulations of the Securities and Exchange
Commission promulgated thereunder that are required to be part of this
Indenture and, to the extent applicable, shall be governed by such
provisions.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Instruments by the Holders (as herein defined) thereof, it is mutually
covenanted and agreed, for the equal and proportionate benefit of all
Holders of the Instruments or of any series thereof, as follows:
ARTICLE ONE
Definitions and Other Provisions of General Application
SECTION 101.Definitions.
For all purposes of this Indenture, except as otherwise expressly provided
or unless the context otherwise requires:
(1) The terms defined in this Article have the meanings assigned to them
in this Article and include the plural as well as the singular;
(2) All other terms used herein which are defined in the Trust Indenture
Act, either directly or by reference therein, have the meanings assigned
to them therein;
(3) All accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting
principles in the United States as in effect from time to time; and
(4) The words "herein," "hereof," "hereto" and "hereunder" and other
words of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision.
1<PAGE>
Certain terms used principally in certain Articles are defined in those
Articles.
"Act," when used with respect to any Holder, has the meaning
specified in Section 104 hereof.
"Affiliate" of any specified Person means any other Person directly
or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this
definition, "control" when used with respect to any specified Person means
the power to direct the management and policies of such Person, directly
or indirectly, whether through the ownership of voting securities, by
contract or otherwise, and the terms "controlling" and "controlled" have
meanings correlative to the foregoing.
"Authenticating Agent" means the Person designated by the Trustee
which at the time shall be designated and acting pursuant to Section 610
hereof.
"Board of Directors" means either the board of directors of the
Company or any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly
adopted by the Board of Directors and to be in full force and effect on
the date of such certification, and which is delivered to the Trustee.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and
Friday which (i) is not a day on which banking institutions or trust
companies in The City of New York or any Place of Payment are generally
authorized or obligated by law, regulation or executive order to close and
(ii) if with respect to an Instrument issued pursuant to this Indenture
which is a LIBOR Instrument, is also a London Banking Day.
"Company" means the Person named as the "Company" in the first
paragraph of this Indenture until a successor corporation shall have
become such pursuant to the applicable provisions of this Indenture, and
thereafter "Company" shall mean such successor corporation.
"Company Request" or "Company Order" means a written request or
order signed in the name of the Company by its Chairman of the Board, its
President, an Executive Vice President, its Chief Financial Officer, its
Chief Accounting Officer or a Vice President, and by its Treasurer, an
Assistant Treasurer, its Secretary or an Assistant Secretary, and which is
delivered to the Trustee.
"Corporate Trust Office" means the principal office of the Trustee,
any Authenticating Agent, or any Paying Agent, as the case may be, at
which at any particular time its corporate trust business shall be
administered. Until notice of change thereof is given as provided in this
Indenture, the Corporate Trust Office of the Trustee is located at 765
Broad Street, Newark, New Jersey 07102.
"Corporation" includes corporations and, except for purposes of
Article Eight hereof, associations, companies and business trusts.
"Defaulted Interest" has the meaning specified in Section 307
hereof.
2<PAGE>
"Depository" means, with respect to the Instruments of any series
issuable or issued in the
form of one or more Global Instruments, the Person designated as
Depository by the Company pursuant to Section 301 hereof until a successor
Depository shall have been appointed pursuant to Section 305 hereof, and
thereafter "Depository" shall mean or include each Person who is then a
Depository hereunder.
"Eligible Obligations" means:
(1) with respect to Instruments denominated in United States
Dollars, Government Obligations; or
(2) with respect to Instruments denominated in a currency
other than United States Dollars or in a composite currency, such other
obligations or instruments as shall be specified with respect to such
Instruments, as contemplated by Section 301 hereof.
"Event of Default" has the meaning specified in Section 501 hereof.
"Excepted Encumbrances" has the meaning specified in Section 1007
hereof.
"Excepted Property" has the meaning specified in Section 1007
hereof.
"Exchange Act" has the meaning specified in Section 303 hereof.
"Global Instrument" means an Instrument bearing the legend
specified in Section 203 hereof, evidencing all or part of a series of
Instruments, issued to the Depository for such series or its nominee, and
registered in the name of such Depository or nominee.
"Government Obligations" means:
(1) direct obligations of, or obligations the principal and
interest on which are unconditionally guaranteed by, the United
States of America entitled to the benefit of
full faith and credit thereof; and
(2) certificates, depositary receipts or other instruments
which evidence a direct ownership interest in obligations described in
clause (1) above or in any specific interest or principal payments due
in respect thereof; provided, however, that the custodian of such
obligations or specific interest or principal payments shall be a
bank or trust company subject to federal or state supervision or
examination with a combined capital and surplus of at least $50,000,000;
and provided, further, however, that except as may be otherwise required
by law, such custodian shall be obligated to pay to the holders of
such certificates, depositary receipts or other instruments the full
amount received by such custodian in respect of such obligations or
specific payments and shall not be permitted to make any deduction
therefrom.
"Holder" means a Person in whose name an Instrument is registered
in the Instrument Register.
3<PAGE>
"Indenture" means this instrument as originally executed or as it
may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions
hereof and, with respect to any Instrument, by the terms and provisions of
such Instrument established pursuant to Section 301 hereof (as such terms
and provisions may be amended pursuant to the applicable provisions
hereof).
"Instrument" has the meaning stated in the first recital of this
Indenture and more particularly means any Instruments authenticated and
delivered pursuant to this Indenture.
"Instrument Register" and "Instrument Registrar" have the
respective meanings specified in Section 305 hereof.
"interest," when used with respect to an Original Issue Discount
Instrument which by its terms bears interest only after Maturity, means
interest payable after Maturity.
"Interest Payment Date," when used with respect to any Instrument,
means the Stated Maturity of an installment of interest on such
Instrument.
"LIBOR Instrument" means an Instrument bearing interest at a
floating rate determined by reference to a LIBOR interest rate basis.
"London Banking Day" means any day on which dealings in deposits
in U.S. dollars are transacted in the London interbank market.
"Maturity," when used with respect to any Instrument, means the
date on which the principal of such Instrument or an installment of
principal becomes due and payable as therein or herein provided, whether
at the Stated Maturity or by declaration of acceleration, call for
redemption or otherwise.
"Notice of Default" has the meaning specified in Section 501
hereof.
"Officers' Certificate" means a certificate signed by the Chairman
of the Board, the President, an Executive Vice President, the Chief
Financial Officer, the Chief Accounting Officer or a Vice President, and
by the Treasurer, an Assistant Treasurer, the Secretary or an Assistant
Secretary, of the Company, that complies with the requirements of Section
314(e) of the Trust Indenture Act and which is delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be
an employee of or counsel for the Company, that complies with the
requirements of Section 314(e) of the Trust Indenture Act and which is
delivered to the Trustee.
"Original Issue Discount Instrument" means any Instrument which
provides for an amount less than the principal amount thereof to be due
and payable upon a declaration of acceleration of the Maturity thereof
pursuant to Section 502 hereof.
"Outstanding," when used with respect to Instruments, means as of
the date of determination, all Instruments theretofore authenticated and
delivered under this Indenture, except:
4<PAGE>
(1) Instruments theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
(2) Instruments for whose payment or redemption money and/or
Eligible Obligations in the necessary amount have theretofore been
deposited in trust with the Trustee or any Paying Agent (other than the
Company) or set aside and segregated in trust by the Company (if the
Company shall act as its own Paying Agent) for the Holders of such
Instruments; provided that, if such Instruments are to be redeemed, notice
of such redemption has been duly given pursuant to this Indenture or
provision therefor satisfactory to the Trustee has been made; and
(3) Instruments which have been paid pursuant to Section 306
hereof or in exchange for or in lieu of which other Instruments have been
authenticated and delivered pursuant to this Indenture, other than any
such Instruments in respect of which there shall have been presented to
the Trustee proof satisfactory to it that such Instruments are held by a
bona fide purchaser in whose hands such Instruments are valid obligations
of the Company;
provided, however, that in determining whether the Holders of the
requisite principal amount of the Outstanding Instruments have given any
request, demand, authorization, direction, notice, consent or waiver
hereunder, (1) the principal amount of an Original Issue Discount
Instrument that shall be deemed to be Outstanding shall be equal to the
amount of the principal thereof that would be due and payable as of the
date of such determination upon acceleration of the Maturity thereof
pursuant to Section 502 hereof, and (2) Instruments owned by the Company
or any other obligor upon the Instruments or any Affiliate of the Company
or of such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be
protected in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Instruments which the Trustee
knows to be so owned shall be so disregarded. Instruments so owned which
have been pledged in good faith may be regarded as Outstanding if the
pledgee establishes to the satisfaction of the Trustee the pledgee's right
so to act with respect to such Instruments and that the pledgee is not the
Company or any other obligor upon the Instruments or any Affiliate of the
Company or of such other obligor.
"Paying Agent" means any Person authorized by the Company to pay
the principal of (and premium, if any) or interest on any Instruments on
behalf of the Company.
"Periodic Offering" means an offering of Instruments of a series
from time to time, the specific terms of which Instruments, including,
without limitation, the rate or rates of interest, if any, thereon, the
Stated Maturity or Maturities thereof and the redemption provision, if
any, with respect thereto, are to be determined by the Company or its
agents upon the issuance of such Instruments.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated
organization or other entity or government or any agency or political
subdivision thereof.
"Place of Payment" when used with respect to Instruments of any
series means the place or places where the principal of (and premium, if
5<PAGE>
any) or interest on the Instruments of such series is payable, which place
shall be, unless otherwise specified pursuant to Section 301 hereof, the
corporate trust office of the Trustee in Philadelphia, Pennsylvania.
"Predecessor Instrument" of any particular Instrument means every
previous Instrument evidencing all or a portion of the same debt as that
evidenced by such particular Instrument; and, for the purposes of this
definition, any Instrument authenticated and delivered under Section 306
hereof in exchange for or in lieu of a mutilated, destroyed, lost or
stolen Instrument shall be deemed to evidence the same debt as the
mutilated, destroyed, lost or stolen Instrument.
"Redemption Date," when used with respect to any Instrument or
portion thereof to be redeemed, means the date fixed for such redemption
by or pursuant to this Indenture.
"Redemption Price," when used with respect to any Instrument or
portion thereof to be redeemed, means the price at which it is to be
redeemed as determined by or pursuant to this Indenture.
"Regular Record Date" for the interest payable on any Interest
Payment Date on the Instruments of any series means the date specified for
that purpose as contemplated by Section 301 hereof.
"SEC" means the Securities and Exchange Commission, as from time to
time constituted, created under the Exchange Act or, if at any time after
the execution of this Indenture such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act,
then the body performing such duties at such time.
"Special Record Date" for the payment of any Defaulted Interest
means a date fixed by the Trustee pursuant to Section 307 hereof.
"Stated Maturity," when used with respect to any Instrument or any
installment of principal thereof or interest thereon, means the date
specified in such Instrument as the fixed date on which the principal of
such Instrument or such installment of principal thereof or interest
thereon is due and payable.
"Subsidiary" means a corporation more than 50% of the outstanding
voting capital stock of which is owned, directly or indirectly, by the
Company or by one or more other Subsidiaries, or by the Company and one or
more other Subsidiaries.
"Trust Indenture Act" means the Trust Indenture Act of 1939, and
any reference herein to the Trust Indenture Act or a particular provision
thereof shall mean such Act or provision, as the case may be, as amended
or replaced from time to time or as supplemented from time to time by
rules or regulations adopted by the SEC under or in furtherance of the
purposes of such act or provision, as the case may be.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become
such pursuant to the applicable provisions of this Indenture, and
thereafter "Trustee" shall mean or include each Person who is then a
Trustee hereunder, and if at any time there is more than one such Person,
"Trustee" as used with respect to the Instruments of any series shall mean
the Trustee with respect to the Instruments of such series.
6<PAGE>
SECTION 102. Compliance Certificates and Opinions.
Except as otherwise expressly provided in this Indenture, upon any
application or request by the Company to the Trustee to take any action
under any provision of this Indenture, the Company shall furnish to the
Trustee an Officers' Certificate stating that all conditions precedent, if
any, provided for in this Indenture relating to the proposed action have
been complied with and an Opinion of Counsel stating that in the opinion
of such counsel all such conditions precedent, if any, have been complied
with, except that in the case of any such application or request as to
which the furnishing of such documents is specifically required by any
provision of this Indenture relating to such particular application or
request, no additional certificate or opinion need be furnished. Each
such Officers' Certificate and Opinion of Counsel shall comply with
Section 314(e) of the Trust Indenture Act.
SECTION 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by,
or covered by an opinion of, any specified Person, it is not necessary
that all such matters be certified by, or covered by the opinion of, only
one such Person, or that they be so certified or covered by only one
document, but one such Person may certify or give an opinion with respect
to some matters and one or more other such Persons as to other matters,
and any such Person may certify or give an opinion as to such matters in
one or several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or
opinion of, or representations by, counsel, unless such officer knows, or
in the exercise of reasonable care should know, that the certificate or
opinion or representations with respect to the matters upon which his or
her certificate or opinion is based are erroneous. Any such certificate
or Opinion of Counsel may be based, insofar as it relates to factual
matters, upon a certificate or opinion of, or representations by, public
officials or an officer or officers of the Company, provided that any
certificate or opinion of, or representation by, an officer affecting the
Company shall state that the information with respect to such factual
matters is in the possession of the Company, unless such counsel actually
knows, or in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to such matters are
erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, demands, authorizations, directions, notices,
waivers, consents, certificates, statements, opinions or other instruments
under this Indenture, such instruments may, but need not, be consolidated
and form one instrument.
SECTION 104. Acts of Holders.
Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by or pursuant to this Indenture to be
given or taken by Holders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders in
person or by an agent duly appointed in writing; and, except as herein
otherwise expressly provided, such action shall become effective when such
instrument or instruments are delivered to the Trustee and, where it is
7<PAGE>
hereby expressly required, to the Company. Such instrument or instruments
(and the action embodied therein and evidenced thereby) are herein
sometimes referred to as an "Act" of the Holders signing such instrument
or instruments. Proof of execution of any such instrument or of a writing
appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Section 315 of the Trust Indenture Act)
conclusive in favor of the Trustee and the Company, if made in the manner
provided in this Section.
The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer
authorized by law to take acknowledgments of deeds, certifying that the
individual signing such instrument or writing acknowledged to him or her
the execution thereof. Where such execution is by a signer acting in a
capacity other than his or her individual capacity, such certificate or
affidavit shall also constitute sufficient proof of his or her authority
to so execute such instrument or writing. The fact and date of the
execution of any such instrument or writing, or the authority of the
Person executing the same, may also be proved in any other reasonable
manner which the Trustee deems sufficient.
The ownership of Instruments shall be proved by the Instrument
Register.
Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Instrument shall bind every
future Holder of the same Instrument and the Holder of every Instrument
issued upon the registration of transfer thereof or in exchange therefor
or in lieu thereof in respect of anything done, omitted or suffered to be
done by the Trustee, any Instrument Registrar, any Paying Agent or the
Company in reliance thereon, whether or not notation of such action is
made upon such Instrument.
The Company may, but shall not be obligated to, fix a record date
for the purpose of determining the Holders entitled to sign any instrument
evidencing or embodying an Act of the Holders. If a record date is fixed,
those Persons who were Holders at such record date (or their duly
appointed agents), and only those Persons, shall be entitled to sign any
such instrument evidencing or embodying an Act of the Holders or to revoke
any such instrument previously signed, whether or not such Persons
continue to be Holders after such record date.
SECTION 105. Notices, Etc., to Trustee and Company.
Except as otherwise specifically provided herein, any request,
demand, authorization, direction, notice, consent, waiver or other Act of
the Holders or other document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with,
(1) The Trustee by any Holder or by the Company shall
be sufficient for every purpose hereunder if made, given,
furnished or filed in writing to or with the Trustee at its
Corporate Trust Office, Attention: Corporate Trust
Administration; or
(2) The Company by the Trustee or by any Holder shall
be sufficient for every purpose hereunder (unless otherwise
8<PAGE>
herein expressly provided) if in writing and mailed, first-
class postage prepaid, to the Company addressed to it at 550
Route 202-206, Bedminster, New Jersey 07921, Attention:
Corporate Secretary, or at any other address previously
furnished in writing to the Trustee by the Company.
SECTION 106. Notice to Holders; Waiver.
Where this Indenture provides for notice to the Holders of any
event, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage prepaid,
to each Holder affected by such event, at such Holder's address as it
appears in the Instrument Register, not later than the latest date, and
not earlier than the earliest date, prescribed for the giving of such
notice. In any case where notice to the Holders is given by mail, neither
the failure to mail such notice, nor any defect in any notice so mailed,
to any particular Holder shall affect the sufficiency of such notice with
respect to other Holders and any notice which is mailed in the manner
herein provided shall be conclusively presumed to have been duly given.
Where this Indenture provides for notice in any manner, such notice may be
waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by the Holders shall be filed with the Trustee,
but such filing shall not be a condition precedent to the validity of any
action taken in reliance upon such waiver.
In any case by reason of the suspension of regular mail service or
by reason of any other cause it shall be impracticable to give such notice
by mail, then such notification as shall be made with the approval of the
Trustee shall constitute a sufficient notification for every purpose
hereunder.
SECTION 107. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with any
duties under any required provision of the Trust Indenture Act imposed
hereon by Section 318(c) thereof, such required provision shall control.
SECTION 108. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents
hereof are for convenience only and shall not affect the construction
hereof.
SECTION 109. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
SECTION 110. Separability Clause.
In case any provision in this Indenture or in the Instruments shall
be, or be deemed to be, invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions hereof and thereof
shall not in any way be affected or impaired thereby.
SECTION 111. Benefits of Indenture.
9<PAGE>
Nothing contained in this Indenture or in the Instruments, express
or implied, shall give to any Person, other than the parties hereto, any
Paying Agent, any Instrument Registrar, any Authenticating Agent and their
respective successors hereunder, and the Holders of Instruments, any
benefit or any legal or equitable right, remedy or claim under this
Indenture.
SECTION 112. Governing Law.
This Indenture and the Instruments shall be governed by and
construed in accordance with the laws of the State of New York.
SECTION 113. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date or
Stated Maturity of any Instrument shall not be a Business Day, then
(notwithstanding any other provision of this Indenture or of the
Instruments) payment of principal of (and premium, if any, on) and
interest on such Instrument need not be made on such date, but may be made
on the next succeeding Business Day (and without any interest or other
payment in respect of such delay) except that, with respect to any
Interest Payment Date, if such Instrument is a LIBOR Instrument and such
succeeding Business Day is in the next succeeding calendar month, such
payment shall be made on the immediately preceding Business Day, in each
case with the same force and effect as if made on the Interest Payment
Date, Redemption Date or at the Stated Maturity.
SECTION 114. Incorporators, Stockholders, Officers and Directors of
the Company Exempt from Individual Liability.
No recourse under or upon any obligation, covenant or agreement of
this Indenture or any indenture supplemental hereto or of any Instrument
or for any claim based thereon or otherwise in respect thereof, shall be
had against any incorporator, stockholder, officer or director, as such,
past, present or future, of the Company or of any successor corporation,
either directly or through the Company or any successor corporation,
whether by virtue of any constitution, statute or rule of law, or by the
enforcement of any assessment or penalty or otherwise; it being expressly
understood that this Indenture and the obligations issued hereunder or
under any indenture supplemental hereto are solely corporate obligations,
and that no such personal liability whatever shall attach to, or is or
shall be incurred by, the incorporators, stockholders, officers or
directors, as such, of the Company or of any successor corporation,
because of the creation of the indebtedness hereby authorized, under any
indenture supplemental hereto or under or by reason of the obligations,
covenants or agreements contained in this Indenture, under any indenture
supplemental hereto, or in any of the Instruments or implied therefrom;
and that any and all such personal liability of every name and nature,
either at common law or in equity or by constitution or statute, of, and
any and all such rights and claims against, every such incorporator,
stockholder, officer or director, as such, because of the creation of the
indebtedness hereby authorized, or under or by reason of the obligations,
covenants or agreements contained in this Indenture, under any indenture
supplemental hereto or in any of the Instruments or implied therefrom are
hereby expressly waived and released as a condition of, and as
consideration for, the execution of this Indenture and the issuance of
such Instruments.
10<PAGE>
SECTION 115. Duplicate Originals.
The parties may sign any number of copies of this Indenture. Each
signed copy shall be an original, but all of them together represent the
same agreement.
ARTICLE TWO
Instrument Forms
SECTION 201. Forms Generally.
The Instruments of each series shall be in substantially the form
as shall be established in or pursuant to Board Resolutions or Officers'
Certificates pursuant to Board Resolutions or in one or more indentures
supplemental hereto, in each case, with such appropriate insertions,
omissions, substitutions and other variations as are required or permitted
by this Indenture or such indentures supplemental hereto and may have such
letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with any
applicable law or the rules of any securities exchange or as may,
consistently herewith, be determined by the officers executing such
Instruments, as evidenced by their execution of the Instruments. If the
form of Instruments of any series is established by action taken pursuant
to Board Resolutions or Officers' Certificates pursuant to Board
Resolutions, such Officers' Certificates, if any, setting forth such form,
together with the Board Resolutions, shall be delivered to the Trustee and
any Authenticating Agent at or prior to the delivery of the Company Order
contemplated by Section 303 hereof for the authentication and delivery of
such Instruments.
The definitive Instruments shall be printed, lithographed or
engraved or produced by any combination of these methods on steel engraved
borders or may be produced in any other manner permitted by the rules of
any securities exchange on which the Instruments may be listed, all as
determined by the officers executing such Instruments, as evidenced by
their execution of such Instruments. In addition, any definitive Global
Instruments may also be typewritten or mimeographed as determined by the
officers executing such Global Instruments, as evidenced by their
execution of such Global Instruments.
SECTION 202. Form of Trustee's Certificate of Authentication.
Subject to Section 610 hereof, the Trustee's certificate of
authentication shall be in substantially the following form:
This is one of the Instruments of the series designated herein
referred to in the within-mentioned Indenture.
FIRST FIDELITY BANK, NATIONAL ASSOCIATION,
as Trustee
By __________________________
Authorized Signatory
SECTION 203. Form of Legend for Global Instruments.
11<PAGE>
Any Global Instrument authenticated and delivered hereunder shall
bear a legend in substantially the following form:
"This Instrument is a Global Instrument within the meaning of the
Indenture hereinafter referred to and is registered in the name of
a Depository or a nominee of a Depository. This Instrument is
exchangeable for Instruments registered in the name of a Person
other than the Depository or its nominee only in the limited
circumstances described in such Indenture, and no transfer of this
Instrument (other than a transfer of this Instrument as a whole by
the Depository to a nominee of the Depository or by a nominee of
the Depository to the Depository or another nominee of the
Depository) may be registered except in such limited
circumstances."
ARTICLE THREE
The Instruments
SECTION 301. Amount Unlimited, Issuable in Series
The aggregate principal amount of Instruments which may be
authenticated and delivered under this Indenture is unlimited. The
Instruments may be issued from time to time in one or more series.
There shall be established in or pursuant to Board Resolutions, or
Officers' Certificates pursuant to Board Resolutions, or established in
one or more indentures supplemental hereto, prior to the issuance of
Instruments of any series:
(1) the title of the Instruments of such series (which
shall distinguish the Instruments of such series from all
other Instruments);
(2) any limit upon the aggregate principal amount of
the Instruments of such series which may be authenticated
and delivered under this Indenture (except for Instruments
authenticated and delivered upon registration of transfer
of, or in exchange for, or in lieu of, other Instruments of
such series pursuant to Section 304, 305, 306, 905 or 1107);
(3) the price or prices at which the Instruments of such
series will be offered by the Company (such price or prices to be
expressed as a percentage of the principal amount of the
Instruments of such series);
(4) the Person or Persons (without specific
identification) to whom interest on Instruments of such
series shall be payable on any Interest Payment Date, if
other than the Person in whose name that Instrument (or one
or more Predecessor Instruments) is registered at the close
of business on the Regular Record Date for such interest;
(5) the date or dates on which the Instruments of such
series may be issued and on which the principal of (and
premium, if any, on) the Instruments of such series is
payable;
12<PAGE>
(6) the rate or rates per annum (which may be fixed or
floating) at which the Instruments of such series shall bear
interest, if any, or the method or methods, if any, by which
such rate or rates are to be determined, the date or dates
from which such interest, if any, shall accrue, the Interest
Payment Dates, if any, on which such interest shall be
payable, the Regular Record Dates, if any, for the interest
payable on any Interest Payment Date, the rate or rates of
interest, if any, payable on overdue installments of
principal of (and premium, if any, on) or interest on the
Instruments of such series and the basis upon which interest
shall be calculated if other than a 360-day year of twelve
30-day months;
(7) any index or other method used to determine the amounts
of principal of (and premium, if any, on) and interest, if any on
the Instruments of such series;
(8) if in addition to or other than the Borough of
Manhattan, The City of New York, the place or places where
(a) the principal of (and premium, if any, on) and interest,
if any, on the Instruments of such series shall be payable,
(b) any of such Instruments may be surrendered for
registration of transfer or exchange and (c) notices or
demands to or upon the Company in respect of such
Instruments and this Indenture may be served; provided,
however, that, at the option of the Company, any payment on
such Instruments (other than Global Instruments) may be paid
by check mailed to the address of the Person entitled
thereto as such address shall appear in the Instrument
Register on the date of Maturity, with respect to payments
of principal or premium (if any), and on the applicable
Regular Record Date, with respect to payments of interest;
provided further, however, that payment of interest due on
Global Instruments will be made in immediately available
funds to the Depository for Global Instruments;
(9) if the Instruments of such series are redeemable
or repayable at the option of the Company, the period or
periods within which, the price or prices at which and the
terms and conditions upon which such Instruments may be
redeemed or repaid in whole or in part;
(10) the obligation, if any, of the Company to redeem
or purchase Instruments of such series pursuant to any
sinking fund or analogous provisions or at the option of any
Holder thereof and the period or periods within which, the
price or prices at which and the other terms and conditions
upon which such Instruments shall be redeemed or purchased,
in whole or in part, pursuant to such obligation;
(11) if any of the Instruments of such series are
issuable upon original issuance in whole or in part in the
form of one or more Global Instruments, the Depository for
such Global Instrument or Instruments and the circumstances,
if any, under which any such Global Instrument may be
exchanged for Instruments registered in the name of, and any
transfer of such Global Instrument may be registered to, a
13<PAGE>
Person other than such Depository or its nominee, if other
than as set forth in Section 305 hereof;
(12) if other than denominations of $1,000 and any
integral multiple thereof, the denominations in which
Instruments of such series shall be issuable;
(13) if other than the principal amount thereof, the
portion of the principal amount of Instruments of such
series which shall be payable upon declaration of
acceleration of the Maturity thereof pursuant to Section 502
hereof or the method by which such portion is to be
determined;
(14) any Events of Default with respect to Instruments
of such series if not set forth herein; and
(15) any other terms, conditions, rights and
preferences (or limitations on such rights and preferences)
relating to Instruments of such series.
All Instruments of any one series shall be substantially identical
except as to denomination, number and except as may otherwise be provided
in or pursuant to Board Resolutions or Officers' Certificates pursuant to
Board Resolutions or in one or more indenture supplemental hereto.
With respect to Instruments of a series subject to a Periodic
Offering, such Board Resolutions or Officers' Certificates or indentures
supplemental hereto may provide general terms or parameters for the
Instruments of such series and provide either that the specific terms of
particular Instruments of such series shall be specified in a Company
Order or that such terms shall be determined by the Company or its agents
in accordance with a Company Order as contemplated by the proviso of the
third paragraph of Section 303 hereof.
SECTION 302. Denominations.
The Instruments of each series shall be issuable in registered form
without coupons in such denominations as shall be specified as
contemplated by Section 301 hereof. In the absence of any such provisions
with respect to the Instruments of any series, the Instruments of such
series shall be issuable in denominations of $1,000 and any integral
multiple thereof.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Instruments shall be executed on behalf of the Company by its
Chairman of the Board, its President, an Executive Vice President, its
Chief Financial Officer, its Chief Accounting Officer or a Vice President,
under its corporate seal reproduced thereon attested by its Secretary or
an Assistant Secretary. The signature of any of these officers on the
Instruments may be manual or facsimile.
Instruments bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall
bind the Company, notwithstanding that such individuals or any of them
have ceased to hold such offices prior to the authentication and delivery
14<PAGE>
of such Instruments or did not hold such offices at the initial issuance
date of such Instruments.
At any time and from time to time after the execution and delivery
of this Indenture, the Company may deliver Instruments of any series
executed by the Company to the Trustee for authentication, together with
the Board Resolutions or the Officers' Certificates pursuant to Board
Resolutions, or the supplemental indenture with respect to such
Instruments referred to in Section 301 hereof and a Company Order for the
authentication and delivery of such Instruments; provided, however, that,
with respect to such Instruments of a series subject to a Periodic
Offering, (1) such Company Order may be delivered by the Company to the
Trustee prior to the delivery to the Trustee of such Instruments for
authentication and delivery; (2) the Trustee shall authenticate and make
available for delivery Instruments of such series for original issue from
time to time, in an aggregate principal amount not exceeding the aggregate
principal amount established for such series, all pursuant to a Company
Order or pursuant to such procedures acceptable to the Trustee as may be
specified from time to time by a Company Order; (3) the maturity date or
dates, original issue date or dates, interest rate or rates and any other
terms of Instruments of such series shall be determined by Company Order
or pursuant to such procedures; and (4) if provided for in such
procedures, such Company Order may authorize authentication and delivery
pursuant to oral or electronic instructions from the Company or its duly
authorized agent or agents, which oral instructions shall be promptly
confirmed in writing. The Trustee, in accordance with such Company Order,
shall authenticate and make available for delivery such Instruments as in
this Indenture provided and not otherwise. If the form or forms or terms
of the Instruments of the series have been established in or pursuant to
one or more Board Resolutions or Officer's Certificates pursuant to Board
Resolutions or supplemental indentures each as permitted by Sections 201
and 301 hereof, in authenticating such Instruments, and accepting the
additional responsibilities under this Indenture in relation to such
Instruments, the Trustee shall be entitled to receive, and (subject to
Sections 315(a) through 315(d) of the Trust Indenture Act) shall be fully
protected in relying upon, an Opinion of Counsel substantially stating
that:
(1) the form or forms and terms of such Instruments have been
established in conformity with the provisions of this Indenture;
(2) all conditions precedent described herein to the
authentication and delivery of such Instruments have been complied
with and that such Instruments, when authenticated and delivered by
the Trustee and issued by the Company in the manner and subject to
any conditions specified in such Opinion of Counsel, will
constitute legal, valid and binding obligations of the Company
enforceable against the Company in accordance with their terms,
except as the same may be limited by bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium or other laws
relating to or affecting the enforcement of creditors' rights
generally and except to the extent that enforcement thereof may be
limited by the application of general principles of equity; and
(3) to such counsel's knowledge, all laws and governmental
requirements in respect of the execution and delivery by the
Company of such Instruments have been complied with;
15<PAGE>
provided, however, that with respect to Instruments of a series subject to
a Periodic Offering, the Trustee shall be entitled to receive such Opinion
of Counsel only once at or prior to the time of the first authentication
of Instruments of such series and that the opinions described in clauses
(1) and (2) above may, alternatively, state respectively,
(x) that, when the terms of such Instruments shall have
been established pursuant to a Company Order or pursuant to
such procedures as may be specified from time to time by a
Company Order, all as contemplated by and in accordance with
Board Resolutions or Officers' Certificates pursuant to
Board Resolutions or one or more indentures supplemental
hereto, as the case may be, such terms will have been duly
authorized by the Company and will have been established in
conformity with the provisions of this Indenture; and
(y) that such instruments, when (i) executed by the
Company, (ii) authenticated and delivered by the Trustee in
accordance with this Indenture, (iii) issued and delivered
by the Company, and (iv) paid for, all as contemplated by
and in accordance with the aforesaid Company Order or
specified procedures, as the case may be, will have been
duly issued under this Indenture and will constitute legal,
valid and binding obligations of the Company enforceable in
accordance with their terms, except as the same may be
limited by bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium or other laws relating to or
affecting the enforcement of creditors' rights generally and
except to the extent that enforcement thereof may be limited
by the application of general principles of equity.
With respect to Instruments of a series subject to a Periodic Offering,
the Trustee may conclusively rely, as to the authorization by the Company
of any such Instruments, the form and terms thereof and the legality,
validity, binding effect and enforceability thereof, upon the Opinion of
Counsel and other documents delivered pursuant to Sections 201 and 301
hereof and this Section, as applicable, at or prior to the time of the
first authentication of Instruments of such series unless and until such
opinion or other documents have been superseded or revoked or the Trustee
shall have actual knowledge that such opinion or other documents are
erroneous in any material manner. In connection with the authentication
and delivery of Instruments of a series subject to a Periodic Offering,
the Trustee shall be entitled to assume that the Company's instructions to
authenticate and deliver such instruments do not violate any rules,
regulations or orders of any governmental agency or commission having
jurisdiction over the Company unless and until the Trustee shall have
actual knowledge that such instructions do violate such rules, regulations
or orders.
The Trustee shall not be required to authenticate or to cause an
Authenticating Agent to authenticate any Instruments if the issue of such
Instruments pursuant to this Indenture will affect the Trustee's own
rights, duties or immunities under the Instruments and this Indenture or
otherwise in a manner which is not reasonably acceptable to the Trustee or
if the Trustee, being advised by counsel, determines that such action may
not lawfully be taken.
16<PAGE>
If the Company shall establish pursuant to Section 301 hereof that
the Instruments of a series are to be issued in whole or in part in the
form of one or more Global Instruments, then the Company shall execute,
and the Trustee, shall, in accordance with this Section and a Company
Order for the authentication and delivery of a Global Instrument or
Instruments of such series, authenticate and make available for delivery
one or more Global Instruments that (1) shall represent and shall be
denominated in an aggregate amount equal to the aggregate principal amount
of the Outstanding Instruments of such series to be represented by such
Global Instrument or Instruments, (2) shall be registered in the name of
the Depository for such Global Instrument or Instruments or the nominee of
such Depository and (3) shall be delivered by the Trustee to such
Depository or pursuant to such Depository's instructions.
Each Depository designated pursuant to Section 301 hereof as the
Depository for the Instruments of series issuable in whole or in part in
the form of Global Instruments must, at the time of its designation and at
all times while it serves as Depository, be a clearing agency registered
under the Securities Exchange Act of 1934 (the "Exchange Act").
Each Instrument shall be dated the date of its authentication.
No Instrument shall be entitled to any benefit under this Indenture
or be valid or obligatory for any purpose unless there appears on such
Instrument a certificate of authentication substantially in the form
provided for herein executed by the Trustee by manual signature. Such
certificate upon any Instrument shall be conclusive evidence, and the only
evidence, that such Instrument has been duly authenticated and delivered
hereunder.
Notwithstanding the foregoing, if any Instrument shall have been
duly authenticated and delivered hereunder but never issued and sold by
the Company, and the Company shall deliver such Instrument to the Trustee
for cancellation as provided in Section 309 hereof together with a written
statement (which need not comply with Section 102 hereof and need not be
accompanied by an Opinion of Counsel) stating that such Instrument has
never been issued and sold by the Company, for all purposes of this
Indenture such Instrument shall be deemed never to have been authenticated
and delivered hereunder and shall not be entitled to the benefits of this
Indenture.
SECTION 304. Temporary Instruments.
Pending the preparation of definitive Instruments of any series,
the Company may execute and deliver to the Trustee and, upon Company
Order, the Trustee shall authenticate and make available for delivery,
temporary Instruments which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Instruments in lieu of which
they are issued and with such appropriate insertions, omissions,
substitutions and other variations as the officers of the Company
executing such Instruments may determine, as evidenced by their execution
of such Instruments. Such temporary Instruments may be Global
Instruments.
If temporary Instruments of any series are issued, the Company
shall cause definitive Instruments of that series to be prepared without
unreasonable delay. After the preparation of definitive Instruments of
17<PAGE>
such series, the temporary Instruments of such series shall be
exchangeable for definitive Instruments of such series upon surrender of
the temporary Instruments of such series at any office or agency of the
Company designated pursuant to Section 1002 hereof without charge to the
Holder. Upon surrender for cancellation of any one or more temporary
Instruments of any series, the Company shall execute and the Trustee shall
authenticate and make available for delivery in exchange therefor a like
principal amount of definitive Instruments of the same series of
authorized denominations. Until so exchanged the temporary Instruments of
any series shall in all respects be entitled to the same benefits under
this Indenture as definitive Instruments of such series.
SECTION 305. Registration; Registration of Transfer and Exchange.
With respect to each series of Instruments, the Company shall cause
to be kept at one of the offices or agencies to be maintained by the
Company as provided in Section 1002 hereof a register (herein sometimes
referred to as the "Instrument Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for
the registration of that series of Instruments and of transfers and
exchanges of that series of Instruments. Such office or agency shall be
the "Instrument Registrar" for that series of Instruments. In the event
that the Trustee shall not be the Instrument Registrar, the Instrument
Register and the records of the Instrument Registrar relating to the
performance of its duties as such shall be open for inspection by the
Trustee at all reasonable times. The Trustee is hereby initially
appointed as Instrument Registrar for each series of Instruments.
Upon surrender for registration of transfer of any Instrument of
any series at said office or agency for that series, the Company shall
execute, and the Trustee shall authenticate and make available for
delivery, in the name of the designated transferee or transferees, one or
more new Instruments of the same series of any authorized denominations,
of a like tenor and aggregate principal amount.
At the option of the Holder, Instruments of any series may be
exchanged for other Instruments of the same series, of any authorized
denominations, of a like tenor and aggregate principal amount, upon
surrender of the Instruments to be exchanged at any office or agency for
such series. Whenever any Instruments are so surrendered for exchange,
the Company shall execute, and the Trustee shall authenticate and make
available for delivery, the Instruments which the Holder making the
exchange is entitled to receive.
Notwithstanding the foregoing and except as otherwise provided in
or pursuant to this Indenture, any Global Instrument shall be exchangeable
pursuant to this Section 305 or Sections 304, 306, 905 and 1107 hereof for
Instruments registered in the name of, and a transfer of a Global
Instrument of any series may be registered to, any Person other than the
Depository for such Instrument or its nominee only if (1) such Depository
notifies the Company that it is unwilling or unable to continue as
Depository for such Global Instrument or if at any time such Depository
ceases to be a clearing agency registered under the Exchange Act and the
Company within 90 days after receiving such notice or becoming aware that
the Depository is no longer so registered, does not appoint a successor
Depository for such Global Instrument, (2) the Company executes and
delivers to the Trustee a Company Order to the effect that such Global
Instrument shall be so exchangeable and the transfer thereof so
18<PAGE>
registrable or (3) there shall have occurred and be continuing with
respect to the Instruments of such series, an Event of Default or an event
which after notice or lapse of time would be an Event of Default. Upon
the occurrence in respect of any Global Instrument of any series of any
one or more of the conditions specified in clauses (1), (2) or (3) of the
preceding sentence or such other conditions as may be specified as
contemplated by Section 301 hereof for such series, (a) such Global
Instrument may be exchanged in accordance with the foregoing provisions of
this Section 305 for an Instrument which is not a Global Instrument and
(b) in accordance with the foregoing provisions of this Section 305 the
transfer of such Global Instrument may be registered to such Persons
(including, without limitation, Persons other than the Depository with
respect to such series and its nominees) as such Depository shall
designate, and the new Instrument or Instruments authenticated and
delivered upon such registration of transfer shall not bear the legend
specified in Section 203 hereof. Notwithstanding any other provision of
this Indenture, any Instrument authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, any Global
Instrument shall also be a Global Instrument and shall bear the legend
specified in Section 203 hereof except for any Instrument authenticated
and delivered in exchange for, or upon registration of transfer of, a
Global Instrument pursuant to the preceding sentence.
All Instruments issued upon any registration of transfer or
exchange of Instruments shall be the valid obligations of the Company,
evidencing the same debt, and entitling the Holders thereof to the same
benefits under this Indenture, as the Instruments surrendered upon such
registration of transfer or exchange.
Every Instrument presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company or the
Trustee or the Instrument Registrar for such series of Instruments) be
duly endorsed, or be accompanied by a written instrument of transfer in
form satisfactory to the Company and the Instrument Registrar (and, if so
required by the Trustee, to the Trustee) duly executed, by the Holder
thereof or his or her attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Instruments, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be
imposed in connection with any registration of transfer or exchange of
Instruments, other than exchanges expressly provided in this Indenture to
be made at the Company's own expense or without expense or without charge
to Holders.
The Company shall not be required to (1) issue, register the
transfer of or exchange any Instrument of any series during the period
beginning at the opening of business 15 days before the day of the mailing
of a notice of redemption of Instruments of that series selected for
redemption under Section 1103 hereof and ending at the close of business
on the day of such mailing, or (2) register the transfer of or exchange
any Instrument so selected for redemption in whole or in part, except the
unredeemed portion of Instruments of that series being redeemed in part.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Instruments.
If there shall be delivered to the Company and the Trustee (1) a
mutilated Instrument or evidence to their satisfaction of the destruction,
19<PAGE>
loss or theft of any Instrument and (2) such security or indemnity as may
be required by them to save each of them harmless, then, in the absence of
notice to the Company or the Trustee that such Instrument has been
acquired by a bona fide purchaser, the Company shall execute and upon its
request the Trustee shall authenticate and make available for delivery, in
exchange for or in lieu of any such mutilated, destroyed, lost or stolen
Instrument, a new Instrument of the same series and of like tenor and
principal amount and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Instrument
has become or is about to become due and payable, the Company in its
discretion may, instead of issuing a new Instrument, pay such Instrument.
Upon the issuance of any new Instrument under this Section, the
Company may require the payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in relation thereto and any
other expenses (including, without limitation, the fees and expenses of
the Trustee) connected therewith.
Every new Instrument of any series issued pursuant to this Section
in exchange for a mutilated Instrument or in lieu of any destroyed, lost
or stolen Instrument shall constitute an original additional contractual
obligation of the Company, whether or not the destroyed, lost or stolen
Instrument shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately
with any and all other Instruments of that series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen
Instruments.
SECTION 307. Payment of Interest; Interest Rights Preserved.
Unless otherwise provided as contemplated by Section 301 hereof
with respect to the Instruments of any series, interest on any Instrument
which is payable, and is punctually paid or duly provided for, on any
Interest Payment Date shall be paid to the Person in whose name that
Instrument (or one or more Predecessor Instruments) is registered at the
close of business on the Regular Record Date for such interest.
Any interest on any Instrument of any series which is payable, but
is not punctually paid or duly provided for, on any Interest Payment Date
(herein called "Defaulted Interest") shall forthwith cease to be payable
to the Holder thereof on the relevant Regular Record Date by virtue of
having been such Holder, and such Defaulted Interest may be paid by the
Company, at its election in each case, as provided in Clause (l) or (2)
below:
(1) The Company may elect to make payment of any
Defaulted Interest to the Persons in whose names the
Instruments of such series (or their respective Predecessor
Instruments) are registered at the close of business on a
Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The
Company shall notify the Trustee in writing of the amount of
Defaulted Interest proposed to be paid on each Instrument of
such series and the date of proposed payment, and at the
20<PAGE>
same time the Company shall deposit with the Trustee an
amount of money equal to the aggregate amount proposed to be
paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit
prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the Persons
entitled to such Defaulted Interest as provided in this
Clause. Thereupon, the Trustee shall fix a Special Record
Date for the payment of such Defaulted Interest which shall
be not more than 15 days and not less than 10 days prior to
the date of the proposed payment and not less than 10 days
after the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify the
Company of such Special Record Date and, in the name and at
the expense of the Company, shall cause notice of the
proposed payment of such Defaulted Interest and the Special
Record Date therefor to be mailed, first-class postage
prepaid, to each Holder of Instruments of such series at
such Holder's address as it appears in the Instrument
Register, not less than 10 days prior to such Special Record
Date. Notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor having been so
mailed, such Defaulted Interest shall be paid to the Persons
in whose names the Instruments of such series (or their
respective Predecessor Instruments) are registered at the
close of business on such Special Record Date and shall no
longer be payable pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted
Interest on the Instruments of any series in any other
lawful manner not inconsistent with the requirements of any
securities exchange on which the Instruments may be listed,
and upon such notice as may be required by such exchange,
if, after notice given by the Company to the Trustee of the
proposed payment pursuant to this Clause, such manner of
payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each
Instrument delivered under this Indenture upon registration of transfer of
or in exchange for or in lieu of any other Instrument shall carry the
rights to interest accrued and unpaid, and to accrue, which were carried
by such other Instrument.
SECTION 308. Persons Deemed Owners.
Prior to due presentment of an Instrument for registration of
transfer, the Company, the Trustee, any Paying Agent, any Authenticating
Agent and any other agent of the Company or the Trustee may treat the
Person in whose name such Instrument is registered in the Instrument
Register as the owner of such Instrument for the purpose of receiving
payment of principal of (and premium, if any on) and (subject to Section
307 hereof) interest on such Instrument and for all other purposes
whatsoever, whether or not any payment with respect to such Instrument be
overdue, and neither the Company, the Trustee, any Paying Agent, any
Authenticating Agent nor any other agent of the Company or the Trustee
shall be affected by notice to the contrary.
21<PAGE>
None of the Company, the Trustee, any Paying Agent, any
Authenticating Agent or any other agent of the Company or the Trustee will
have any responsibility or liability for any aspect of the records
relating to or payments made on account of beneficial ownership interests
in a Global Instrument or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interests, and they shall be
fully protected in acting or refraining from acting on any information
provided by the Depository.
Notwithstanding the foregoing, with respect to any Global
Instrument, nothing herein shall prevent the Company, the Trustee or any
agent of the Company or the Trustee from giving effect to any written
certification, proxy or other authorization furnished by a Depository or
impair, as between a Depository and holders of beneficial interests in any
Global Instrument, the operation of customary practices governing the
exercise of the rights of the Depository or its nominee as Holder of such
Global Instrument.
SECTION 309. Cancellation.
All Instruments surrendered for payment, redemption, registration
of transfer or exchange, or for credit against any sinking fund payment,
if any, shall, if surrendered to the Company, any Paying Agent, any
Authenticating Agent or any other agent of the Company, be delivered to
the Trustee or the Instrument Registrar and, if not already canceled,
shall be promptly canceled by it. The Company may at any time deliver to
the Trustee or the Instrument Registrar for cancellation any Instruments
previously authenticated and delivered hereunder which the Company may
have acquired in any manner whatsoever, and all Instruments so delivered
shall be promptly canceled by the Trustee or the Instrument Registrar. No
Instrument shall be authenticated in lieu of or in exchange for any
Instruments canceled as provided in this Section, except as expressly
permitted by this Indenture. All canceled Instruments held by the Trustee
or by the Instrument Registrar shall be promptly destroyed and a
certificate of destruction shall be delivered to the Company.
SECTION 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301 hereof
for Instruments of any series, interest on the Instruments of each series
shall be computed on the basis of a 360-day year of twelve 30-day months.
SECTION 311. CUSIP Numbers.
The Company in issuing the Instruments may use "CUSIP" numbers (if
then generally in use), and, if so, the Trustee shall use "CUSIP" numbers
in notices of redemption as a convenience to the Holders; provided,
however, that any such notice may state that no representation is made as
to the correctness of such numbers either as printed on the Instruments or
as contained in any notice of a redemption and that reliance may be placed
only on the other identification numbers printed on the Instruments, and
any such redemption shall not be affected by any defect in or omission of
such numbers.
ARTICLE FOUR
Satisfaction and Discharge
SECTION 401. Satisfaction and Discharge.
22<PAGE>
Any Instrument or Instruments, or any portion of the principal
amount thereof, shall be deemed to have been paid for all purposes of this
Indenture, the entire indebtedness of the Company in respect thereof shall
be deemed to have been satisfied and discharged and, if (a) all
Instruments issued under and outstanding pursuant to this Indenture have
been paid or shall have been deemed paid and (b) the Company so elects,
this Indenture shall be discharged and canceled and shall cease to be of
any further effect (except as specifically provided for in this Section
401), if there shall have been irrevocably deposited with the Trustee, in
trust:
(1) money in an amount which shall be sufficient; or
(2) in the case of a deposit made prior to the
Maturity of such Instruments or portions thereof, Eligible
Obligations, which shall not contain provisions permitting
the redemption or other prepayment thereof at the option of
the issuer thereof, the principal of and the interest on
which when due, without any regard to reinvestment thereof,
will provide moneys which, together with the money, if any,
deposited with or held by the Trustee, shall be sufficient;
or
(3) a combination of (1) or (2) which shall be
sufficient,
to pay when due the principal of and premium, if any, and interest, if
any, due and to become due on such Instruments or portions thereof;
provided, however, that in the case of the provision for payment or
redemption of less than all the Instruments of any series, such
Instruments or portions thereof shall have been selected by the Instrument
Registrar as provided herein and, in the case of a redemption, the notice
requisite to the validity of such redemption shall have been given or
irrevocable authority shall have been given by the Company to the Trustee
to give such notice, under arrangements satisfactory to the Trustee; and
provided, further, however, that the Company shall have delivered to the
Trustee:
(x) if such deposit shall have been made prior to the
Maturity of such Instruments, a Company Order stating that
the money and Eligible Obligations deposited with the
Trustee in accordance with this Section shall be held by the
Trustee, in trust, as provided in Section 402; and
(y) if Eligible Obligations shall have been deposited
with the Trustee, an opinion of an independent public
accountant of nationally recognized standing, selected by
the Company, to the effect that the requirements set forth
in clause (2) above have been satisfied.
Upon receipt by the Trustee of money or Eligible Obligations, or
both, in accordance with this Section, together with the documents
required by clauses (x) and (y) above, the Trustee shall, upon receipt of
a Company Request, acknowledge in writing that the Instrument or
Instruments or portions thereof with respect to which such deposit was
made are deemed to have been paid for all purposes of this Indenture, that
the entire indebtedness of the Company in respect thereof is deemed to
have been satisfied and discharged and, if (a) all Instruments issued
23<PAGE>
under and outstanding pursuant to this Indenture have been paid or shall
have been deemed paid and (b) the Company so elects in such Company
Request, this Indenture shall be discharged and canceled and shall cease
to be of any further effect (except as specifically provided for in this
Section 401).
If payment at Stated Maturity of less than all of the Instruments
of any series is to be provided for in the manner and with the effect
provided in this Section, the Instrument Registrar shall select such
Instruments, or portions of principal amount thereof, in the manner
specified by Section 1103 hereof for selection for redemption of less than
all the Instruments of a series.
In the event that Instruments which shall be deemed to have been
paid as provided in this Section 401 do not mature and are not to be
redeemed within the sixty (60) day period commencing with the date of the
deposit with the Trustee of moneys or Eligible Obligations, as aforesaid,
the Company shall, as promptly as practicable, give a notice, in the same
manner as a notice of redemption with respect to such Instruments, to the
Holders of such Instruments to the effect that such deposit has been made
and the effect thereof.
Notwithstanding the satisfaction and discharge of any Instruments
as aforesaid, the obligations of the Company and the Trustee in respect of
such Instruments under Sections 112, 304, 305, 306, 605, 607, 608, 610,
1002, 1003, 1104, 1203 (as to notice of redemption) hereof and this
Article Four shall survive.
The Company shall pay, and shall indemnify the Trustee and each
Holder of Instruments which are deemed to have been paid as provided in
this Section against, any tax, fee, or other charge imposed on or assessed
against the Eligible Obligations deposited with the Trustee or the
principal or interest received by the Trustee in respect of such Eligible
Obligations.
Anything herein to the contrary notwithstanding, if, at any time
after an Instrument would be deemed to have been satisfied or discharged
pursuant to this Section (without regard to the provisions of this
paragraph), the Trustee shall be required to return the money or Eligible
Obligations, or combination thereof, deposited with it, as aforesaid, to
the Company or its representative under any applicable Federal or State
bankruptcy, insolvency, or other similar law, the indebtedness of the
Company in respect of such Instrument shall thereupon be deemed
retroactively not to have been satisfied and discharged and this Indenture
to not have been discharged and canceled and to not have ceased to be of
any further effect, as aforesaid, and to remain Outstanding.
SECTION 402. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1003
hereof, all money deposited with the Trustee pursuant to Section 401
hereof shall be held in trust and applied by it to the payment, either
directly or through any Paying Agent (including, without limitation, the
Company acting as its own Paying Agent) as the Trustee may determine, to
the Persons entitled thereto, of all sums due and to become due with
respect to Instruments for which such money has been deposited for
principal of (and premium, if any, on) and interest on such Instruments
24<PAGE>
but such money need not be segregated from other funds except to the
extent required by law.
SECTION 403. Repayment to the Company.
Upon termination of the trust established pursuant to Section 401
hereof, the Trustee and the Paying Agent shall promptly pay to the Company
any excess money or Eligible Obligations held by them.
ARTICLE FIVE
Default
SECTION 501. Events of Default.
"Event of Default," wherever used herein with respect to
Instruments of any series, means any one of the following events:
(1) failure to pay any interest on any Instrument of
such series within 30 days after the same becomes due and
payable; or
(2) failure to pay the principal of or premium, if
any, on any Instrument of such series at its Maturity; or
(3) failure to perform in any material respect or
breach of any covenant or warranty of the Company in this
Indenture (other than a covenant or warranty a default in
the performance of which or breach of which is elsewhere in
this Section specifically dealt with or which has expressly
been included in this Indenture solely for the benefit of
one or more series of Instruments other than such series),
and continuance of such failure or breach for a period of 90
days after there has been given, by registered or certified
mail, to the Company by the Trustee, or to the Company and
the Trustee by the Holders of at least 25% in aggregate
principal amount of the Outstanding Instruments of such
series, a written notice specifying such default or breach
and requiring it to be remedied and stating that such notice
is a "Notice of Default" hereunder, or in the case of any
such failure or breach which can be cured but which cannot,
with reasonable diligence, be cured within such 90-day
period, failure of the Company to proceed with reasonable
diligence after receipt of such notice; or
(4) the entry by a court having jurisdiction in the
premises of (a) a decree or order for relief in respect of
the Company in an involuntary case or proceeding under any
applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or (b) a decree or order
adjudging the Company a bankrupt or insolvent, or approving
as properly filed a petition by one or more Persons other
than the Company seeking reorganization, arrangement,
adjustment or composition of or in respect of the Company
under any applicable Federal or State law, or appointing a
custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official for the Company, or
ordering the winding up or liquidation of its affairs, and
any such decree or order for relief or any such other decree
25<PAGE>
or order shall have remained unstayed and in effect for a
period of 90 consecutive days; or
(5) the commencement by the Company of a voluntary
case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization, or other similar law
or of any other case or proceeding to be adjudicated a
bankrupt or insolvent, or the consent by it to the entry of
a decree or order for relief in respect of the Company in a
case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization, or other similar law
or to the commencement of any bankruptcy or insolvency case
or proceeding against it, or the consent by it to the
appointment of or taking possession by a custodian,
receiver, liquidator, assignee, trustee, sequestrator, or
other similar official of the Company, or the making of it
by an assignment for the benefit of creditors, or the
admission by it in writing of its inability to pay its debts
generally as they become due, or the authorization of such
action by the Board of Directors; or
(6) a default under any bond, debenture, note, or
other evidence of indebtedness by the Company (including,
without limitation, a default with respect to Instruments of
any series) or a default under any mortgage, indenture or
instrument under which there may be issued or by which there
may be secured or evidenced any indebtedness by the Company
(including, without limitation, this Indenture), in each
case in excess of $10,000,000 aggregate principal amount,
whether such indebtedness now exists or shall hereafter be
created, which default shall constitute a failure to pay any
portion of the principal of such indebtedness when due and
payable after the expiration of any applicable grace period
with respect thereto or shall have resulted in such
indebtedness becoming or being declared due and payable
prior to the date on which it would otherwise have become
due and payable, if (a) there shall have been given, by
registered or certified mail, to the Company by the Trustee
or to the Company and the Trustee by the Holders of at least
25% in aggregate principal amount of the Outstanding
Instruments of any series a written notice specifying such
default and requiring the Company to cause such indebtedness
to be discharged or cause such acceleration to be rescinded
or annulled and (b) within a period of 10 days after said
notice is given to the Company, such indebtedness is not
discharged or such acceleration is not rescinded or
annulled; or
(7) any other Event of Default specified with respect
to Instruments of such series.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to Outstanding Instruments of
any series occurs and is continuing, then and in every such case the
Trustee or the Holders of not less than 33% in aggregate principal amount
of the Outstanding Instruments of that series may declare the principal
(or, if the Instruments of that series are Original Issue Discount
26<PAGE>
Instruments, such portion of the principal as may be specified in the
terms of that series) of all the Instruments of that series to be due and
payable immediately, by a notice in writing to the Company (and to the
Trustee if given by the Holders), and upon any such declaration such
principal (or specified portion thereof) shall become immediately due and
payable; provided, however, that if an Event of Default shall have
occurred and be continuing with respect to more than one series of
Instruments, the Trustee or the Holders of not less than 33% in aggregate
principal amount of the Outstanding Instruments of all such series,
considered as one class, may make such declaration of acceleration, and
not the Holders of the Instruments of any one of such series. Upon
payment of such amount, all obligations of the Company in respect of the
payment of principal of the Instruments of such series shall terminate.
At any time after such a declaration of acceleration with respect
to Instruments of any series has been made and before a judgment or decree
for payment of the money due based on such acceleration has been obtained
by the Trustee as hereinafter in this Article provided, the Holders of not
less than a majority in aggregate principal amount of the Outstanding
Instruments of that series, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if
(1) The Company has paid or deposited with the Trustee
a sum sufficient to pay:
(a) all overdue installments of interest on
all Instruments of that series,
(b) the principal of (and premium, if any,
on) any Instruments of that series which have
become due otherwise than by such declaration of
acceleration and interest thereon at the rate or
rates borne by or provided for in such
Instruments,
(c) to the extent that payment of such
interest is lawful, interest upon overdue
installments of interest at the rate or rates
borne by or provided for in such Instruments, and
(d) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation,
expenses, disbursements and advances of the
Trustee, its agents and counsel; and
(2) All Events of Default with respect to Instruments
of that series, other than the nonpayment of the principal
of Instruments of that series which has become due solely by
such declaration of acceleration, have been cured or waived
as provided in Section 513 hereof.
If an Event of Default shall have occurred and be continuing with
respect to more than one series of Instruments, the Trustee or the Holders
of not less than a majority in aggregate principal amount of the
outstanding Instruments of all such series, considered as one class, may
rescind and annul such declaration of acceleration, and not the Holders of
the Instruments of any one of such series. No such rescission shall
affect any subsequent default or impair any right consequent thereon.
27<PAGE>
Upon receipt by the Trustee of any written notice of declaration of
acceleration, or rescission and annulment thereof, with respect to
Instruments of a series all or part of which is represented by a Global
Instrument, from the Holders of less than the requisite principal amount
of Outstanding Instruments of such series, the Trustee shall establish a
record date for determining the Holders of Outstanding Instruments of such
series entitled to join in such written notice of declaration of
acceleration, or rescission and annulment, as the case may be, which
record date shall be at the close of business on the day the Trustee
receives such written notice of declaration of acceleration, or rescission
and annulment, as the case may be. The Holders on such record date, or
their duly designated proxies, and only such Persons, shall be entitled to
join in such written notice of declaration of acceleration, or rescission
and annulment, as the case may be, whether or not such Holders remain the
Holders after such record date; provided, however, that unless such
declaration of acceleration, or rescission and annulment, as the case may
be, shall have become effective by virtue of the requisite percentage
having been obtained prior to the day which is 90 days after such record
date, such written notice of declaration of acceleration, or rescission
and annulment, as the case may be, shall automatically and without further
action by any Holder be canceled and of no effect. Nothing in this
paragraph shall prevent a Holder, or a proxy of a Holder, of Instruments
of any series from giving, (1) after expiration of such 90-day period, a
new written notice of declaration of acceleration, or rescission and
annulment thereof, as the case may be, that is identical to a written
notice of declaration of acceleration, or rescission and annulment
thereof, which has been canceled pursuant to the proviso to the preceding
sentence, or (2) during any such 90-day period, an additional written
notice of declaration of acceleration with respect to any other Event of
Default with respect to Instruments of such series, or an additional
written notice of rescission and annulment of any declaration of
acceleration with respect to any other Event of Default with respect to
Instruments of such series, in either of which events a new record date
shall be established pursuant to the provisions of this Section 502 in
respect of such new or additional written notice of declaration of
acceleration, or rescission and annulment, as the case may be.
SECTION 503. Collection of Indebtedness and Suits for Enforcement by
Trustee.
The Company covenants that if
(1) default is made in the payment of any installment of
interest on any Instrument of any series when such interest becomes
due and payable and such default continues for a period of 30 days,
or
(2) default is made in the payment of the principal of (or
premium, if any, on) any Instrument of any series at the Maturity
thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit
of the Holders of Instruments of such series, the whole amount then due
and payable on Instruments of such series for principal of (and premium,
if any) and interest on, with interest upon the overdue principal (and
premium, if any) and, to the extent that payment of such interest shall be
legally enforceable, upon overdue installments of interest, at the rate or
rates borne by or provided for in such Instruments; and, in addition
28<PAGE>
thereto, such further amount as shall be sufficient to cover the costs and
expenses of collection, including, without limitation, the reasonable
compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel.
If the Company fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express trust,
may institute a judicial proceeding for the collection of the sums so due
and unpaid, may prosecute such proceeding to judgment or final decree and
may enforce the same against the Company or any other obligor upon the
Instruments and collect the moneys adjudged or decreed to be payable in
the manner provided by law out of the property of the Company or any other
obligor upon the Instruments, wherever situated.
If an Event of Default with respect to Instruments of any series
occurs and is continuing, the Trustee may in its discretion proceed to
protect and enforce its rights and the rights of the Holders of the
Instruments of such series by such appropriate judicial proceedings as the
Trustee shall deem most effectual to protect and enforce any such rights,
whether for the specific enforcement of any covenant or agreement in this
Indenture or such Instruments or in aid of the exercise of any power
granted herein or therein, or to enforce any other proper remedy.
SECTION 504. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment,
composition or other judicial proceeding relative to the Company or any
other obligor upon the Instruments or the property of the Company or of
such other obligor or their creditors, the Trustee (irrespective of
whether the principal of any Instruments of any series shall then be due
and payable as therein expressed or by declaration or otherwise and
irrespective of whether the Trustee shall have made any demand on the
Company for the payment of any overdue principal, premium or interest)
shall be entitled and empowered, by intervention in such proceeding or
otherwise,
(1) to file and prove a claim for the whole amount of
principal of (or with respect to Original Issue Discount
Instruments, such portion of the principal amount as may be
specified in the terms of such Instruments), and premium, if
any, and interest owing and unpaid in respect of the
Instruments and to file such other papers or documents as
may be necessary or advisable in order to have the claims of
the Trustee (including, without limitation, any claim for
the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel) and of the
Holders allowed in such judicial proceeding, and
(2) to collect and receive any moneys or other
property payable or deliverable on any such claims and to
distribute the same;
and any custodian, receiver, liquidator, assignee, trustee, sequestrator
or other similar official in any such judicial proceeding is hereby
authorized by each Holder to make such payments to the Trustee and, in the
event that the Trustee shall consent to the making of such payments
directly to the Holders, to pay to the Trustee any amount due it for the
29<PAGE>
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee
under Section 605 hereof.
Nothing herein contained shall be deemed to authorize the Trustee
to authorize or consent to or accept or adopt on behalf of any Holder any
plan of reorganization, arrangement, adjustment or composition affecting
the Instruments or the rights of any Holder thereof or to authorize the
Trustee to vote in respect of the claim of any Holder in any such
proceeding.
SECTION 505. Trustee May Enforce Claims Without Possession of
Instruments.
All rights of action and claims under this Indenture or the
Instruments may be prosecuted and enforced by the Trustee without the
possession of any of the Instruments or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by the
Trustee shall be brought in its own name as trustee of an express trust,
and any recovery of judgment shall, after provision for the payment of the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, be for the ratable benefit of the Holders
of the Instruments in respect of which such judgment has been recovered.
SECTION 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall
be applied in the following order, at the date or dates fixed by the
Trustee and, in case of the distribution of such money on account of
principal (or premium, if any) or interest, upon presentation of the
Instruments and the notation thereon of the payment if only partially paid
and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee
and any predecessor Trustee under Section 605 hereof;
SECOND: To the payment of the amounts then due and
unpaid for principal of (and premium, if any, on) and
interest on the Instruments in respect of which or for the
benefit of which such money has been collected, ratably,
without preference or priority of any kind, according to the
amounts due and payable on such Instruments for principal
(and premium, if any) and interest, respectively; and
THIRD: The balance, if any, to the Person or Persons
entitled thereto, or as a court of competent jurisdiction
may direct.
SECTION 507. Limitation on Suits.
No Holder of any Instrument of any series shall have any right to
institute any proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or for any
other remedy hereunder, unless:
(1) such Holder has previously given written notice to
the Trustee of a continuing Event of Default with respect to
Instruments of that series;
30<PAGE>
(2) the Holders of not less than 33% in aggregate
principal amount of the Outstanding Instruments of that
series shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default in
its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and
liabilities to be incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such
notice, request and offer of indemnity has failed to
institute any such proceeding; and
(5) no direction inconsistent with such written
request has been given to the Trustee during such 60-day
period by the Holders of a majority in aggregate principal
amount of the Outstanding Instruments of that series; it
being understood and intended that no one or more Holders
shall have any right in any manner whatsoever by virtue of,
or by availing of, any provision of this Indenture or any
Instrument to affect, disturb or prejudice the rights of any
other Holders, or to obtain or to seek to obtain priority or
preference over any other Holders or to enforce any right
under this Indenture, except in the manner herein provided
and for the equal and ratable benefit of all the Holders of
Instruments.
SECTION 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest.
Notwithstanding any other provision in this Indenture, the Holder
of any Instrument shall have the right, which is absolute and
unconditional, to receive payment of the principal of (and premium, if
any) and (subject to Section 307 hereof) interest, if any, on such
Instrument on the respective Stated Maturities specified in such
Instrument (or, in the case of redemption, on the Redemption Date) and to
institute suit for the enforcement of any such payment on such respective
date, and such right shall not be impaired or affected without the consent
of such Holder.
SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has
been discontinued or abandoned for any reason, or has been determined
adversely to the Trustee or to such Holder, then and in every such case,
subject to any determination in such proceeding, the Company, the Trustee
and the Holders shall be restored severally and respectively to their
former positions hereunder and thereafter all rights and remedies of the
Trustee and the Holders shall continue as though no such proceeding had
been instituted.
SECTION 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Instruments in the last
paragraph of Section 306 hereof, no right or remedy herein conferred upon
31<PAGE>
or reserved to the Trustee or to the Holders is intended to be exclusive
of any other right or remedy, and every right and remedy shall, to the
extent permitted by law, be cumulative and in addition to every other
right and remedy given hereunder or now or hereafter existing at law or in
equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any
Instrument to exercise any right or remedy accruing upon any Event of
Default shall impair any such right or remedy or constitute a waiver of
any such Event of Default or an acquiescence therein. Every right and
remedy given by this Article or by law to the Trustee or to the Holders
may be exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by the Holders, as the case may be.
SECTION 512. Control by Holders.
The Holders of a majority or more in aggregate principal amount of
the Outstanding Instruments of any series shall have the right to direct
the time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred on
the Trustee, with respect to the Instruments of such series, provided,
however, that if an Event of Default shall have occurred and be continuing
with respect to more than one series of Instruments, the Holders of a
majority or more in aggregate principal amount of the Outstanding
Instruments of all such series, considered as one class, shall have the
right to make such direction, and not the Holders of the Instruments of
any one of such series; provided, further, however, that
(1) such direction shall not be in conflict with any
rule of law, with this Indenture or with the Instruments of
any such series,
(2) the Trustee may take any other action it deems
proper which is not inconsistent with such direction, and
(3) such direction is not unduly prejudicial to the
rights of the other Holders of Instruments of such series
not joining in such action.
Upon receipt by the Trustee of any written notice directing the
time, method or place of conducting any such proceeding or exercising any
such trust or power with respect to Instruments of a series all or part of
which is represented by a Global Instrument and if such direction is from
Holders of less than a majority in aggregate principal amount of
Outstanding Instruments of such series, a record date shall be established
for determining Holders of Outstanding Instruments of such series entitled
to join in such notice, which record date shall be at the close of
business on the day the Trustee receives such notice. The Trustee shall
give notice to the Holders of record on such record date informing such
Holders of the Trustee's receipt of such written notice directing the
time, method or place of conducting any proceeding or exercising any trust
or power and informing such Holders of the record date for determining
Holders entitled to join in such written notice directing the time, method
or place of conducting any proceeding or exercising any trust or power.
32<PAGE>
The Holders on such record date, or their duly designated proxies, and
only such Persons, shall be entitled to join in such notice whether or not
such Holders remain Holders after such record date; provided, however,
that unless the Holders of a majority or more in aggregate principal
amount of the Outstanding Instruments of such series (or, with respect to
more than one series of Instruments, the Holders of a majority in
aggregate principal amount of the Outstanding Instruments of all such
series, considered as one claim) shall have joined in such notice prior to
the day which is 90 days after such record date, such notice shall
automatically and without further action by any Holder be canceled and of
no effect. Nothing in this paragraph shall prevent a Holder, or a proxy
of a Holder, from giving, (a) after expiration of such 90-day period, a
new notice identical to a notice which has been canceled pursuant to the
proviso to the preceding sentence, or (b) during any such 90-day period, a
new direction contrary to or otherwise different from such direction, in
either of which events a new record date shall be established pursuant to
the provisions of this Section 512 in respect of such new direction.
SECTION 513. Waiver of Past Defaults.
The Holders of not less than a majority in aggregate principal
amount of the Outstanding Instruments of any series may, on behalf of the
Holders of all the Instruments of such series, waive any past default and
its consequences, hereunder with respect to such series, except a default
(1) in the payment of the principal of (or premium, if
any) or interest, if any, on any Instrument of such series,
or
(2) in respect of a covenant or provision hereof which
under Article Nine cannot be amended or modified without the
consent of the Holder of each Outstanding Instrument of such
series affected.
If a past default shall have occurred with respect to more than one
series of Instruments, the Trustee or the Holders of not less than a
majority in aggregate principal amount of the Outstanding Instruments of
all such series, considered as one class, may waive such past default and
its consequence, except as set forth in subparagraph (1) and (2) of the
immediately preceding paragraph, and not the Holders of the Instruments of
any one of such series.
The Company may, but shall not be obligated to, fix a record date
for the purpose of determining the Persons entitled to waive any past
default hereunder. If a record date is fixed, the Holders on such record
date, or their duly designated proxies, and only such Persons, shall be
entitled to waive any default hereunder, whether or not such Holders
remain Holders after such record date; provided, however, that unless such
majority in aggregate principal amount shall have waived such default
prior to the date which is 90 days after such record date, any such waiver
previously given by a Holder shall automatically and without further
action by any such Holder be canceled and of no effect.
Upon any such waiver, such default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.
33<PAGE>
SECTION 514. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any
Instrument by his or her acceptance thereof shall be deemed to have
agreed, that any court may in its discretion require, in any suit for the
enforcement of any right or remedy under this Indenture, or in any suit
against the Trustee for any action taken, suffered or omitted by it as
Trustee, the filing by any party litigant in such suit, other than the
Trustee, of an undertaking to pay the costs of such suit, and that such
court may in its discretion assess reasonable costs, including, without
limitation, reasonable attorney's fees and expenses at trial and on
appeal, against any party litigant in such suit, having due regard to the
merits and good faith of the claims or defenses made by such party
litigant; provided, that the provisions of this Section shall not apply to
any suit instituted by the Trustee or any Holder, or group of Holders,
holding in the aggregate more than 10% in principal amount of the
Outstanding Instruments of any series, or to any suit instituted by any
Holder for the enforcement of the payment of the principal of (or premium,
if any) or interest on any Instrument on or after the respective Stated
Maturities specified in such Instrument (or, in the case of redemption, on
or after the Redemption Date).
SECTION 515. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so)
that it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay or
extension law wherever enacted, now or at any time hereafter in force,
which may affect
the covenants or the performance of this Indenture; and the Company (to
the extent that it may lawfully do so) hereby expressly waives all benefit
or advantage of any such law and covenants that it will not hinder, delay
or impede the execution of any power herein granted to the Trustee, but
will suffer and permit the execution of every such power as though no such
law had been enacted.
ARTICLE SIX
The Trustee
SECTION 601. Certain Rights of Trustee.
Subject to the rights, duties and responsibilities of the Trustee
set forth in Sections 315(a) through 315(d) of the Trust Indenture Act:
(1) the Trustee may, in the absence of bad faith on its part,
rely and shall be protected in acting or refraining from acting
upon any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(2) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company
Order unless otherwise specifically provided herein (in each case,
other than delivery of any Instrument to the Trustee for
authentication and delivery pursuant to Section 303 hereof, which
shall be sufficiently evidenced as provided therein) and any
34<PAGE>
resolution of the Board of Directors may be sufficiently evidenced
by a Board Resolution;
(3) whenever in the administration of this Indenture the
Trustee shall reasonably deem it desirable that a matter be proved
or established prior to taking, suffering or omitting any action
hereunder, the Trustee (unless other evidence be herein
specifically prescribed) may, in the absence of bad faith on its
part, rely upon an Officers' Certificate;
(4) the Trustee may consult with counsel of its selection and
the written advice of such counsel or any Opinion of Counsel shall
be full and complete authorization and protection in respect of any
action taken, suffered or omitted by it hereunder in good faith and
in reliance thereon;
(5) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by or pursuant to this
Indenture at the request or direction of any of the Holders
pursuant to this Indenture, unless such Holders shall have offered
to the Trustee reasonable security or indemnity against the costs,
expenses and liabilities which might be incurred by it in
compliance with such request or direction;
(6) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the Trustee, in its
discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit, and, if the Trustee shall
determine to make such further inquiry or investigation, it shall
be entitled to examine, during business hours and upon reasonable
notice, the books, records and premises of the Company, personally
or by agent or attorney;
(7) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys, and the Trustee shall not be
responsible for any misconduct or negligence on the part of any
agent or attorney appointed with due care by it hereunder;
(8) no provision of this Indenture shall require the Trustee
to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its rights or powers, if it
shall have reasonable grounds for believing that repayment of such
funds or adequate indemnity against such risk or liability is not
reasonably assured to it; and
(9) the Trustee shall not be liable for any action taken,
suffered or omitted to be taken by it in good faith and reasonably
believed by it to be authorized or within the discretion or rights
or powers conferred upon it by this Indenture.
35<PAGE>
SECTION 602. Not Responsible for Recitals or Issuance of Instruments.
The recitals contained herein and in the Instruments, except in the
certificates of authentication, shall be taken as the statements of the
Company, and neither the Trustee nor any Authenticating Agent assumes any
responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of
the Instruments, except that the Trustee represents that it is duly
authorized to execute and deliver this Indenture, authenticate the
Instruments and perform its obligations hereunder and that the statements
made by it in a Statement of Eligibility on Form T-l supplied to the
Company are true and accurate, subject to the qualifications set forth
therein. Neither the Trustee nor any Authenticating Agent shall be
accountable for the use or application by the Company of the Instruments
or the proceeds thereof.
SECTION 603. May Hold Instruments.
The Trustee, any Paying Agent, Authenticating Agent, Instrument
Registrar or any other agent of the Trustee or the Company, in its
individual or any other capacity, may become the owner or pledgee of
Instruments and, subject to Sections 310(b) and 311 of the Trust Indenture
Act, may otherwise deal with the Company with the same rights it would
have if it were not Trustee, Paying Agent, Authenticating Agent,
Instrument Registrar or such other agent.
SECTION 604. Money Held in Trust.
Except as provided in Section 1003 hereof, money held by the
Trustee or any Paying Agent in trust hereunder need not be segregated from
other funds except to the extent required by law. Neither the Trustee nor
any Paying Agent shall be under any liability for interest on any money
received by it hereunder except as otherwise agreed in writing with the
Company.
SECTION 605. Compensation and Reimbursement.
The Company agrees:
(1) to pay to the Trustee from time to time such compensation
as the Company and the Trustee shall from time to time agree in
writing for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in regard
to the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by the
Trustee in accordance with any provision of this Indenture
(including the reasonable compensation and the expenses and
disbursements of its agents and counsel and any
Authenticating Agent), except any such expense, disbursement
or advance as may be attributable to its negligence or bad
faith; and
(3) to indemnify each of the Trustee or any
predecessor Trustee and their respective agents for, and to
hold them harmless against, any and all loss, damages,
36<PAGE>
claims, liability or expense, including, without limitation,
taxes (other than taxes on the income of the Trustee)
incurred without negligence or bad faith on their part,
arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder, including,
without limitation, the costs and expenses of defending
themselves against any claim or liability in connection with
the exercise or performance of any of their powers or duties
hereunder.
As security for the performance of the obligations of the Company
under this Section, the Trustee shall have a lien prior to the Instruments
upon all property and funds held or collected by the Trustee as such,
except funds held in trust for the payment of principal of (and premium,
if any, on) or interest on the Instruments.
When the Trustee incurs expenses or renders services in connection
with an Event of Default specified in Section 501(4) hereof or Section
501(5) hereof, the expenses (including, without limitation, the reasonable
charges and expenses of its counsel) and the compensation for the services
are intended to constitute expenses of the administration under any
applicable Federal or State bankruptcy, insolvency or other similar law.
The provisions of this Section shall survive the termination of
this Indenture.
SECTION 606. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be a
corporation permitted by the Trust Indenture Act to act as trustee under
an indenture qualified under the Trust Indenture Act and that has a
combined capital and surplus (computed in accordance with Section
310(a)(2) of the Trust Indenture Act) of at least $100,000,000. If at any
time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and
with the effect hereinafter specified in this Article.
SECTION 607. Resignation and Removal; Appointment of Successor.
No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until
the acceptance of appointment by the successor Trustee under Section 608
hereof.
The Trustee may resign at any time with respect to the Instruments
of one or more series by giving written notice thereof to the Company. If
an instrument of acceptance by a successor Trustee shall not have been
delivered to the Trustee within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to
the Instruments of such series.
The Trustee may be removed at any time with respect to the
Instruments of any series by Act of the Holders of a majority in aggregate
principal amount of the Outstanding Instruments of such series, delivered
to the Trustee and to the Company.
If at any time:
37<PAGE>
(1) the Trustee shall fail to comply with the
obligations imposed upon it under Section 310(b) of the
Trust Indenture Act with respect to any series of
Instruments after written request therefor by the Company or
by any Holder who has been a bona fide Holder of an
Instrument of such series for at least six months, or
(2) the Trustee shall cease to be eligible under
Section 606 hereof with respect to any series of Instruments
and shall fail to resign after written request therefor by
the Company or by any such Holder, or
(3) the Trustee shall become incapable of acting with
respect to any series of Instruments or shall be adjudged a
bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take
charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or
liquidation,
then, in any such case, (a) the Company by or pursuant to a Board
Resolution may remove the Trustee with respect to all Instruments or the
Instruments of such series, or (b) subject to Section 315(e) of the Trust
Indenture Act, any Holder who has been a bona fide Holder of an Instrument
of such series for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction
for the removal of the Trustee and the appointment of a successor Trustee
with respect to such series.
If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any
cause, with respect to the Instruments of one or more series, the Company,
by or pursuant to a Board Resolution, shall promptly appoint a successor
Trustee or Trustees with respect to the Instruments of that or those
series (it being understood that any such successor Trustee may be
appointed with respect to the Instruments of one or more or all of such
series and that at any time there shall be only one Trustee with respect
to the Instruments of any particular series) and shall comply with the
applicable requirements of Section 608 hereof. If, within one year after
such resignation, removal or incapability or the occurrence of such
vacancy, a successor Trustee with respect to the Instruments of any series
shall be appointed by Act of the Holders of a majority in aggregate
principal amount of the Outstanding Instruments of such series delivered
to the Company and the retiring Trustee, the successor Trustee so
appointed shall, forthwith upon its acceptance of such appointment in
accordance with the applicable requirements of Section 608 hereof, become
the successor Trustee with respect to the Instruments of such series and
to that extent supersede the successor Trustee appointed by the Company.
If no successor Trustee with respect to the Instruments of any series
shall have been so appointed by the Company or the Holders of Instruments
of such series and accepted appointment in the manner required by Section
608 hereof, any Holder who has been a bona fide Holder of an Instrument of
such series for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction
for the appointment of a successor Trustee with respect to the Instruments
of such series.
38<PAGE>
The Company shall give notice of each resignation and each removal
of the Trustee with respect to the Instruments of any series and each
appointment of a successor Trustee with respect to the Instruments of any
series by mailing written notice of such event by first-class mail,
postage prepaid, to all Holders of Instruments of such series as their
names and addresses appear in the Instrument Register at the time of such
event. Each notice shall include the name of the successor Trustee with
respect to the Instruments of such series and the address of its Corporate
Trust Office.
SECTION 608. Acceptance of Appointment by Successor.
In the case of the appointment hereunder of a successor Trustee
with respect to all Instruments, such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and to the retiring
Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become effective, and
such successor Trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts and duties of the
retiring Trustee; but, on the request of the Company or the successor
Trustee, such retiring Trustee shall, upon payment of its charges, execute
and deliver an instrument transferring to such successor Trustee all the
rights, powers and trusts of the retiring Trustee and shall duly assign,
transfer and deliver to such successor Trustee all property and money held
by such retiring Trustee hereunder, subject nevertheless to its claim, if
any, provided for in Section 605 hereof.
In the case of the appointment hereunder of a successor Trustee
with respect to the Instruments of one or more (but not all) series, the
Company, the retiring Trustee and each successor Trustee with respect to
the Instruments of one or more series shall execute and deliver an
indenture supplemental hereto wherein each successor Trustee shall accept
such appointment and which (1) shall contain such provisions as shall be
necessary or desirable to transfer and confirm to, and to vest in, each
successor Trustee all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Instruments of that or those series
to which the appointment of such successor Trustee relates, (2) if the
retiring Trustee is not retiring with respect to all Instruments, shall
contain such provisions as shall be deemed necessary or desirable to
confirm that all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Instruments of that or those series as to
which the retiring Trustee is not retiring shall continue to be vested in
the retiring Trustee, and (3) shall add to or change any of the provisions
of this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart
from any trust or trusts hereunder administered by any other such Trustee;
and upon the execution and delivery of such supplemental indenture, the
resignation or removal of the retiring Trustee shall become effective to
the extent provided therein, such retiring Trustee shall, with respect to
the Instruments of that or those series to which the appointment of such
successor Trustee relates, have no further responsibility for the exercise
of rights and powers or for the performance of the duties and obligations
vested in the Trustee under this Indenture other than as hereinafter set
forth, and each such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and
39<PAGE>
duties of the retiring Trustee with respect to the Instruments of that or
those series to which the appointment of such successor Trustee relates;
but, on request of the Company or any successor Trustee, such retiring
Trustee shall duly assign, transfer and deliver to such successor Trustee
all property and money held by such retiring Trustee hereunder with
respect to the Instruments of that or those series to which the
appointment of such successor Trustee relates.
Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in
and confirming to such successor Trustee all such rights, powers and
trusts referred to in the two preceding paragraphs of this Section, as the
case may be.
No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
SECTION 609. Merger, Conversion, Consolidation or Succession to
Business.
Any corporation into which the Trustee may be merged or converted
or with which it may be consolidated, or any corporation resulting from
any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to all or substantially all the
corporate trust business of the Trustee, shall be the successor of the
Trustee hereunder, provided such corporation shall be otherwise qualified
and eligible under this Article, without the execution or filing of any
paper or any further act on the part of any of the parties hereto. In
case any Instruments shall have been authenticated, but not delivered, by
the Trustee then in office with respect to such series of Instruments, any
successor by merger, conversion or consolidation to such authenticating
Trustee may adopt such authentication and deliver the Instruments so
authenticated with the same effect as if such successor Trustee had itself
authenticated such Instruments.
SECTION 610. Appointment and Qualification of Authenticating Agent.
At any time when any of the Instruments remain Outstanding, the
Trustee may appoint an Authenticating Agent or Agents with respect to one
or more series of Instruments which shall be authorized to act on behalf
of the Trustee to authenticate Instruments of that or those series issued
upon original issue, exchange, registration of transfer or partial
redemption thereof or pursuant to Section 306 hereof, and Instruments so
authenticated shall be entitled to the benefits of this Indenture and
shall be valid and obligatory for all purposes as if authenticated by the
Trustee hereunder. Wherever reference is made in this Indenture to the
authentication and delivery of Instruments by the Trustee or the Trustee's
certificate of authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an Authenticating
Agent and a certificate of authentication executed on behalf of the
Trustee by an Authenticating Agent.
Each such Authenticating Agent shall be acceptable to the Company
and shall at all times be a corporation that would be permitted by the
Trust Indenture Act to act as trustee under an indenture qualified under
the Trust Indenture Act, is authorized under applicable law and its
charter to act as an Authenticating Agent and has a combined capital and
40<PAGE>
surplus (computed in accordance with Section 310(a)(2) of the Trust
Indenture Act) of at least $50,000,000. If at any time an Authenticating
Agent shall cease to be eligible in accordance with the provisions of this
Section, such Authenticating Agent shall resign immediately in the manner
and with the effect specified in this Section.
Any corporation into which any Authenticating Agent may be merged
or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which any
Authenticating Agent shall be a party, or any corporation succeeding to
the corporate agency or corporate trust business of any Authenticating
Agent, shall continue to be the Authenticating Agent, provided such
corporation shall be otherwise eligible under this Section, without the
execution or filing of any paper or any further act on the part of the
Trustee or the Authenticating Agent. In case any Instruments shall have
been authenticated, but not delivered, by the Authenticating Agent then in
place with respect to such series of Instruments, any successor by merger,
conversion or consolidation to such Authenticating Agent may adopt such
authentication and deliver the Instruments so authenticated with the same
effect as if such successor Authenticating Agent had itself authenticated
such Instruments.
Any Authenticating Agent may resign at any time by giving written
notice of resignation to the Trustee and to the Company. The Trustee at
any time may, or in case at any time any Authenticating Agent shall cease
to be eligible in accordance with the provisions of this Section, the
Trustee promptly shall terminate the agency of any such Authenticating
Agent by giving written notice of termination to such Authenticating Agent
and to the Company. Upon such a resignation or termination, the Trustee
may appoint a successor Authenticating Agent which must be acceptable to
the Company and which must meet the eligibility requirements of this
Section. The Trustee shall mail notice of such appointment to all Holders
of Instruments of the series with respect to which such Authenticating
Agent will serve as the names and addresses of such Holders appear in the
Instrument Register at the time of such event. Any successor
Authenticating Agent, upon acceptance of its appointment hereunder, shall
become vested with all the rights, powers, duties and responsibilities of
its predecessor hereunder, with like effect as if originally named as an
Authenticating Agent.
The provisions of Sections 104, 308, 601 and 602 hereof shall also
be applicable to any Authenticating Agent.
The Company agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section, to
reimburse it for all reasonable expenses, disbursements and advances
incurred or made by it (each as may be agreed to in writing by the
Company) and to indemnify it for and hold it harmless against any loss,
liability or expense incurred hereunder to the same extent as the Company
is required to pay the Trustee under Section 605 hereof, and the Trustee
shall have no obligation with respect to such expenses, disbursements,
advances or indemnities.
If an appointment with respect to one or more series of Instruments
is made pursuant to this Section, the Instruments of such series may have
endorsed thereon, in addition to or in lieu of the Trustee's certificate
of authentication, an alternate certificate of authentication in the
following form:
41<PAGE>
This is one of the Instruments of the series designated herein
referred to in the within-mentioned Indenture.
FIRST FIDELITY BANK, NATIONAL ASSOCIATION,
as Trustee
By
as Authenticating Agent
By
Authorized Officer
ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Company
SECTION 701. Company to Furnish Trustee Names and Addresses of
Holders.
In accordance with Section 312(a) of the Trust Indenture Act, the
Company will furnish or cause to be furnished to the Trustee with respect
to the Instruments of each series (1) semiannually, either (a) not later
than June 30 and December 31 in each year in the case of Original Issue
Discount Instruments which by their terms bear interest only after
maturity, or (b) not later than 15 days after each Regular Record Date in
the case of Instruments of any other series, if and so long as Instruments
of such series are Outstanding, and (2) at such other times as the Trustee
may request in writing, within 30 days after receipt by the Company of any
such request, a list in such form as the Trustee may reasonably require
containing all the information in the possession or control of the
Company, or any of its Paying Agents other than the Trustee, as to the
names and addresses of the Holders of such series; provided, however, that
no such list need be furnished if the Trustee shall be the Instrument
Registrar. Any such list shall be dated as of a date not more than 15
days prior to the time such information is furnished or caused to be
furnished and need not include information received after such date;
provided, further, however, that with respect to any list furnished
pursuant to subclause
(1) (b) above, any such list shall be dated as of the Regular Record Date.
SECTION 702. Preservation of Information; Communications to Holders.
The Trustee shall comply with the obligations imposed upon it
pursuant to Section 312 of the Trust Indenture Act.
Every Holder of Instruments, by receiving and holding the same,
agrees with the Company and the Trustee that none of the Company, the
Trustee, any Paying Agent or any Instrument Registrar shall be held
accountable by reason of the disclosure of any such information as to the
names and addresses of the Holders in accordance with Section 312 of the
Trust Indenture Act, regardless of the source from which such information
was derived, and that the Trustee shall not be held accountable by reason
of mailing any material pursuant to a request made under Section 312(b) of
the Trust Indenture Act.
42<PAGE>
SECTION 703. Reports by Trustee.
Within 60 days after May 15 of each year, if required by Section
313(a) of the Trust Indenture Act, the Trustee shall transmit, pursuant to
Section 313(c) of the Trust Indenture Act, a brief report dated as of such
May 15 with respect to any of the events specified in said Section 313(a)
which may have occurred since the later of the immediately preceding May
15 and the date of this Indenture.
The Trustee shall transmit the reports required by Section
313(b)(2) of the Trust Indenture Act at the times specified therein.
Reports pursuant to this Section shall be transmitted in the manner
and to the Persons required by Sections 313(c) and 313(d) of the Trust
Indenture Act.
SECTION 704. Reports by Company.
The Company, pursuant to Section 314(a) of the Trust Indenture Act,
shall:
(1) file with the Trustee, within 15 days after the
Company is required to file the same with the SEC, copies of
the annual reports and of the information, documents and
other reports (or copies of such portions of any of the
foregoing as the SEC may from time to time by rules and
regulations prescribe) which the Company may be required to
file with the SEC pursuant to Section 13 or Section 15(d) of
the Exchange Act; or, if the Company is not required to file
information, documents or reports pursuant to either of such
Sections, then it shall file with the Trustee and the SEC,
in accordance with rules and regulations prescribed from
time to time by the SEC, such of the supplementary and
periodic information, documents and reports which may be
required pursuant to Section 13 of the Exchange Act in
respect of a security listed and registered on a national
securities exchange as may be prescribed from time to time
in such rules and regulations;
(2) file with the Trustee and the SEC, in accordance
with rules and regulations prescribed from time to time by
the SEC, such additional information, documents and reports
with respect to compliance by the Company with the
conditions and covenants of this Indenture as may be
required from time to time by such rules and regulations;
and
(3) transmit to the Holders within 30 days after the
filing thereof with the Trustee, in the manner and to the
extent provided in Section 313(c) of the Trust Indenture
Act, such summaries of any information, documents and
reports required to be filed by the Company pursuant to
paragraphs (1) and (2) of this Section 704 as may be
required by rules and regulations prescribed from time to
time by the SEC.
43<PAGE>
ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer, Sale or Lease
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms.
The Company, without the consent of the Holders of the Outstanding
Instruments, may dissolve or convey, transfer, sell, lease or otherwise
dispose of all or substantially all of its properties and assets to any
Person, and may consolidate with or merge into another Person or permit
one or more other Persons to consolidate or merge into it, if the
surviving, resulting or transferee corporation:
(1) is the Company or
(2) if other than the Company,
(a) is organized and existing under the laws of the
United States of America, any state thereof or the District of
Columbia;
(b) such corporation shall expressly assume, by an
indenture (or indentures, if at such time there is more than
one Trustee) supplemental hereto, executed and delivered to
the Trustee, in form satisfactory to the Trustee, the due and
punctual payment of the principal of (and premium, if any, on)
and interest, if any, on all the Instruments and the
performance of every other covenant of this Indenture on the
part of the Company to be performed or observed; and
(c) immediately after giving effect to such
transaction, no Event of Default and no event which, after
notice or lapse of time or both, would become an Event of
Default, shall have occurred and be continuing.
and either the Company or the successor corporation or Person shall have
delivered to the Trustee an Officers' Certificate and an Opinion of
Counsel, each stating that such consolidation, merger, conveyance,
transfer, sale, lease or other disposition and such supplemental
indenture, if applicable, comply with this Article and that all conditions
precedent herein provided for relating to such transaction have been
complied with.
SECTION 802. Successor Corporation Substituted.
Upon any consolidation or merger or conveyance, sale, transfer,
lease or other disposition of all or substantially all of the properties
and assets of the Company in accordance with Section 801 hereof, the
successor corporation or Person formed by such consolidation or into which
the Company is merged or to which such conveyance, sale, transfer, lease
or other disposition is made shall succeed to, and be substituted for, and
may exercise every right and power of, the Company under this Indenture
with the same effect as if such successor corporation or Person had been
named as the Company herein; and thereafter, except in the case of a
lease, the predecessor corporation shall be released from all obligations
and covenants under this Indenture and the Instruments.
44<PAGE>
ARTICLE NINE
Supplemental Indentures
SECTION 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company (when authorized by
or pursuant to a Board Resolution) and the Trustee, at any time and from
time to time, may enter into one or more indentures supplemental hereto,
in form satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another corporation
to the Company and the assumption by any such successor of
the obligations of the Company hereunder and under the
Instruments; or
(2) to add to the covenants of the Company for the
benefit of the Holders of all or any series of Instruments
(and if such covenants are to be for the benefit of less
than all series of Instruments, stating that such covenants
are expressly being included solely for the benefit of such
series) or to surrender any right or power herein conferred
upon the Company; or
(3) to add any additional Events of Default with
respect to all or any series of Instruments (as shall be
specified in such supplemental indenture); or
(4) to add to or change any of the provisions of this
Indenture to such extent as shall be necessary to permit or
facilitate the issuance of Instruments in bearer form,
registrable or not registrable as to principal, and with or
without interest coupons; or
(5) to change or eliminate any of the provisions of
this Indenture; provided, however, that any such change or
elimination shall become effective only when there is no
Instrument Outstanding of any series created prior to the
execution of such supplemental indenture which is entitled
to the benefit of such provision; or
(6) to secure the Instruments; or
(7) to establish the form or terms of Instruments of
any series as permitted by Sections 201 and 301 hereof; or
(8) to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee with respect to
the Instruments of one or more series and to add to or
change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of
the trusts hereunder by more than one Trustee, pursuant to
the requirements of Section 608 hereof; or
(9) to cure any ambiguity, to correct or supplement
any provision herein which may be defective or inconsistent
with any other provision herein, or to make any other
provisions with respect to matters or questions arising
under this Indenture, provided such action shall not
45<PAGE>
adversely affect the interests of the Holders of Instruments
of any series in any material respect; or
(10) to effect or reflect any amendment or amendments
to the Trust Indenture Act after the date of this Indenture,
which amendment or amendments require changes to this
Indenture, require the incorporation herein of additional
provisions or permit changes to, or require the elimination
of, provisions which, at the date of this Indenture or at
anytime thereafter, were required by the Trust Indenture Act
to be contained herein.
SECTION 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in
aggregate principal amount of the Outstanding Instruments of all series
affected by such supplemental indenture (all such series considered as one
class), by Act of said Holders delivered to the Company and the Trustee,
the Company (when authorized by or pursuant to a Board Resolution) and the
Trustee may enter into an indenture or indentures supplemental hereto for
the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Indenture or of modifying in any
manner the rights of the Holders of Instruments of such series under this
Indenture; provided, however, that no such supplemental indenture shall,
without the consent of the Holder of each Outstanding Instrument affected
thereby,
(1) change the Stated Maturity of the principal of, or
premium, if any, on or installment of interest on, any
Instrument, or reduce the principal amount thereof or the
rate of interest thereon or any premium payable thereon, or
change the method of calculating the rate of interest on any
Instrument, or reduce the amount of the principal of an
Original Issue Discount Instrument that would be due and
payable upon a declaration of acceleration of the Maturity
thereof pursuant to Section 502 hereof, or change the Place
of Payment where, or the coin or currency in which, any
Instrument or any premium or the interest thereon is
payable, or impair the right to institute suit for the
enforcement of any such payment on or after the Stated
Maturity thereof (or, in the case of redemption, on or after
the Redemption Date), or
(2) reduce the percentage in principal amount of the
Outstanding Instruments of any series, the consent of whose
Holders is required for any such supplemental indenture, or
the consent of whose Holders is required for any waiver (of
compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences) provided
for in this Indenture, or
(3) modify any of the provisions of this Section or
Sections 513 or 1008 hereof, except to increase any such
percentage or to provide that certain other provisions of
this Indenture cannot be modified or waived without the
consent of the Holder of each outstanding instrument
affected thereby.
46<PAGE>
A supplemental indenture which changes or eliminates any covenant
or other provision of this Indenture which has expressly been included
solely for the benefit of one or more particular series of Instruments, or
which modifies the rights of the Holders of Instruments of such series
with respect to such covenant or other provision, shall be deemed not to
affect the rights under this Indenture of the Holders of Instruments of
any other series.
The Company may, but shall not be obligated to, fix a record date
for the purpose of determining the Persons entitled to consent to any
indenture supplemental hereto. If a record date is fixed, the Holders on
such record date, or their duly designated proxies, and only such Persons,
shall be entitled to consent to such supplemental indenture, whether or
not such Holders remain Holders after such record date; provided, however,
that unless such consent shall have become effective by virtue of the
requisite percentage having been obtained prior to the date which is 90
days after such record date, any such consent previously given by a Holder
shall automatically and without further action by any such Holder be
canceled and of no effect.
It shall not be necessary for any Act of Holders under this Section
to approve the particular form of any proposed supplemental indenture, but
it shall be sufficient if such Act shall approve the substance thereof.
SECTION 903. Execution of Supplemental Indentures.
As a condition to executing, or accepting the additional trusts
created by, any supplemental indenture permitted by this Article or the
modifications thereby of the trusts created by this Indenture, the Trustee
shall be entitled to receive, and (subject to Section 315 of the Trust
Indenture Act) shall be fully protected in relying upon, an Opinion of
Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not
be obligated to, enter into any such supplemental indenture which affects
the Trustee's own rights, duties or immunities under this Indenture or
otherwise.
SECTION 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this
Article, this Indenture shall be modified in accordance therewith, and
such supplemental indenture shall form a part of this Indenture for all
purposes; and every Holder of an Instrument theretofore or thereafter
authenticated and delivered hereunder shall be bound thereby.
SECTION 905. Reference in Instruments to Supplemental Indentures.
Instruments of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and
shall if required by the Trustee, bear a notation in form approved by the
Trustee as to any matter provided for in such supplemental indenture. If
the Company shall so determine, new Instruments of any series so modified
as to conform, in the opinion of the Trustee and the Company, to any such
supplemental indenture may be prepared and executed by the Company and
authenticated and made available for delivery by the Trustee in exchange
for Outstanding Instruments of such series without charge to the Holders.
SECTION 906. Conformity with Trust Indenture Act.
47<PAGE>
Every supplemental indenture executed pursuant to this Article
shall conform to the requirements of the Trust Indenture Act as then in
effect.
ARTICLE TEN
Covenants
SECTION 1001. Payment of Principal, Premium and Interest.
The Company will duly and punctually pay the principal of (and
premium, if any) and interest on the Instruments of each series in
accordance with the terms of the Instruments of such series and this
Indenture.
SECTION 1002. Maintenance of Office or Agency.
The Company will maintain an office or agency in each Place of
Payment for any series of Instruments where Instruments of that series may
be presented or surrendered for payment, where Instruments of that series
may be surrendered for registration of transfer or exchange and where
notices and demands to or upon the Company in respect of the Instruments
of that series and this Indenture may be served. Unless otherwise
designated by the Company in written notice to the Trustee, such office or
agency shall be the Corporate Trust Office of the Trustee. If at any time
the Company shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at
the Corporate Trust Office of the Trustee and, effective at that time, the
Company hereby appoints the Trustee as its agent to receive all
presentations, surrenders, notices and demands under this Indenture.
In addition to such office or agency, the Company may also from
time to time designate one or more other offices or agencies in one or
more other cities where the Instruments of one or more series may be
presented or surrendered for any or all the purposes specified above in
this Section and may from time to time rescind such designations;
provided, however, that no such designation or rescission shall in any
manner relieve the Company of its obligation to maintain an office or
agency in each Place of Payment for such purposes. The Company will give
prompt written notice to the Trustee of any such designation or rescission
and of any change in the location of any such other office or agency.
SECTION 1003. Money for Instrument Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with
respect to any series of Instruments, it shall, on or before each due date
of the principal of (and premium, if any, on) or interest on any of the
Instruments of that series, segregate and hold in trust for the benefit of
the Persons entitled thereto a sum sufficient to pay such principal (and
premium, if any,) or interest so becoming due until such sums shall be
paid to such Persons or otherwise disposed of as herein provided, and will
promptly notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any
series of Instruments, it shall, on or prior to each due date of the
principal of (and premium, if any) or interest on any Instruments of that
series, deposit with any Paying Agent for that series a sum sufficient to
pay such principal (and premium, if any,) or interest so becoming due,
48<PAGE>
such sum to be held in trust for the benefit of the Persons entitled
thereto and (unless such Paying Agent is the Trustee) the Company shall
promptly notify the Trustee of its action or failure so to act.
The Company shall cause each Paying Agent for any series of
Instruments, other than the Trustee, to execute and deliver to the Trustee
an instrument in which such Paying Agent shall agree with the Trustee,
subject to the provisions of this Section, that such Paying Agent shall:
(1) hold all sums held by it for the payment of the
principal of (and premium, if any) or interest on
Instruments of that series in trust for the ratable benefit
of the Persons entitled thereto until such sums shall be
paid to such Persons or otherwise disposed of as herein
provided;
(2) give the Trustee notice of any default by the
Company (or any other obligor upon the Instruments of that
series) in the making of any payment of principal of (and
premium, if any, on) or interest on the Instruments of that
series; and
(3) at any time during the continuance of any such
default, upon the written request of the Trustee, forthwith
pay to the Trustee all sums so held in trust by such Paying
Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose,
pay, or by Company Order direct any Paying Agent to pay, to the Trustee
all sums held in trust by the Company or such Paying Agent, such sums to
be held by the Trustee upon the same trusts as those upon which such sums
were held by the Company or such Paying Agent; and, upon such payment by
any Paying Agent to the Trustee, such Paying Agent shall be released from
all further liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then
held by the Company, in trust for the payment of the principal of (and
premium, if any) or interest on any Instrument of any series and remaining
unclaimed for two years after such principal (and premium, if any) or
interest has become due and payable shall be paid to the Company, or (if
then held by the Company) shall be discharged from such trust; and the
Holder of such Instrument shall thereafter, as an unsecured general
creditor, look only to the Company for payment thereof, and all liability
of the Trustee or such Paying Agent with respect to such trust money, and
all liability of the Company as trustee thereof, shall thereupon cease;
provided, however, that the Trustee or such Paying Agent, before making
any such repayment, may at the expense of the Company, mail to the Holders
at their addresses as set forth in the Instrument Register at such time,
or cause to be published once, in a newspaper published in the English
language, customarily published on each Business Day and of general
circulation at each Place of Payment with respect to Instruments of such
series, notice that such money remains unclaimed and that, after a date
specified therein, which shall not be less than 30 days or more than 60
days from the date of such publication or mailing, any unclaimed balance
of such money then remaining shall be repaid to the Company.
SECTION 1004. Corporate Existence.
49<PAGE>
Subject to Article Eight hereof, the Company shall do or cause to
be done all things necessary to preserve and keep in full force and effect
its corporate existence, rights (charter and statutory) and material
franchises; provided, however, that the Company shall not be required to
preserve any such right or franchise if the Board of Directors shall
determine that the preservation thereof is no longer desirable in the
conduct of the business of the Company and that the loss thereof is not
disadvantageous in any material respect to the Holders of the Instruments.
SECTION 1005. Maintenance of Properties.
The Company shall cause (or, with respect to property owned in
common with others, make reasonable effort to cause) all its properties
used or useful in the conduct of its business to be maintained and kept in
good condition, repair and working order (ordinary wear and tear excepted)
and shall cause (or, with respect to property owned in common with others,
make reasonable effort to cause) to be made all necessary repairs,
renewals, replacements, betterments and improvements thereof, all as, in
the judgment of the Company, may be necessary so that the business carried
on in connection therewith may be properly conducted; provided, however,
that nothing in this Section shall prevent the Company from discontinuing,
or causing the discontinuance of, the operation and maintenance of any of
its properties if such discontinuance is, in the judgment of the Board of
Directors, desirable in the conduct of its business and is not
disadvantageous in any material respect to the Holders of the Instruments.
SECTION 1006. Statement as to Compliance.
The Company shall deliver to the Trustee, within 120 days after the
end of each fiscal year, a written statement (which need not be contained
in or accompanied by an Officers' Certificate) signed by the Chief
Executive Officer, Chief Financial Officer or Chief Accounting Officer of
the Company, stating, as to such signer thereof, that
(1) a review of the activities of the Company during
such year and of its performance under this Indenture has
been made under his or her supervision; and
(2) to the best of his or her knowledge, based on such
review, (A) the Company is in compliance with all of its conditions
and covenants under this Indenture or, if there has been a default
in the fulfillment of any such obligation, specifying each such
default known to him or her and the nature and status thereof, and
(B) no event has occurred and is continuing which is, or after
notice or lapse of time or both would become, an Event of Default
or, if such an event has occurred and is continuing, specifying
each such event known to him or her and the nature and status
thereof.
The Company shall deliver to the Trustee, within 10 days after the
occurrence thereof, written notice of any event of which the Company's
Chief Executive Officer, Chief Financial Officer, or Chief Accounting
Officer has actual knowledge, which event is, or after notice or lapse of
time or both would become, an Event of Default.
SECTION 1007. Negative Pledge.
50<PAGE>
The Company shall not create, assume, incur, or suffer to be
created, assumed, or incurred or to exist any mortgage, lien, pledge,
charge or encumbrance of any kind (other than Excepted Encumbrances) upon
any property of any character of the Company (other than Excepted
Property), whether owned at the date hereof or hereafter acquired, to
secure indebtedness for borrowed money without either making effective
provision whereby the Instruments of all series shall be directly secured
equally and ratably with the indebtedness secured by such mortgage, lien,
pledge, charge or encumbrance, or depositing with the Trustee, as
collateral for the Instruments, bonds or other evidences of indebtedness
of the Company secured by such lien; provided, however, that this
restriction shall not be applicable to nor prevent:
(1) the pledging by the Company of any property or
assets as security for the payment of any tax, assessment or
other similar charge demanded of the Company by any
governmental authority or public body so long as the Company
in good faith contests its liability to pay the same, or as
security to be deposited with any governmental authority or
public body for any purpose at any time required by law or
governmental regulation as a condition to the transaction of
any business or the exercise of any franchise, grant,
privilege, license or right;
(2) the pledging by the Company of any property or
assets for the purposes of securing a stay or discharge or
for any other purpose in the course of any legal proceeding
in which the Company is a party; provided, however, that the
fair market value, in the good faith opinion of the Board of
Directors, of such property or assets at the time of such
pledge, together with (a) the fair market value, in the good
faith opinion of the Board of Directors, of any other
property or assets so pledged (at the time such other
property or assets was pledged) plus (b) the fair market
value, in the good faith opinion of the Board of Directors,
of any property or assets pledged pursuant to paragraph (4)
below (at the time such property or assets was pledged),
does not exceed $25,000,000 in the aggregate;
(3) any mortgage, lien, pledge, charge or encumbrance
on any property or asset in favor of the United States of
America, any State or any department, agency,
instrumentality or political subdivision of any such
jurisdiction, securing industrial revenue bonds, the
interest on which is exempt from Federal income tax under
Section 103 of the Internal Revenue Code or any successor
provision; provided, however, that such bonds shall be
issued for the purpose of financing the construction or
improvement of such property or asset; and provided,
further, that such mortgage, lien, pledge, charge or
encumbrance is a condition to the issuance of such bonds;
(4) mortgages, liens, pledges, charges or encumbrances
arising in the ordinary course of its business which (a) do
not secure indebtedness for borrowed money and (b) do not in
the aggregate materially detract from the value of its
properties or assets or materially impair the use thereof in
the operation of its business; provided, however, that the
51<PAGE>
fair market value, in the good faith opinion of the Board of
Directors, of any property or assets so pledged (at the time
of such pledge), together with (i) the fair market value, in
the good faith opinion of the Board of Directors, of any
other property or assets so pledged (at the time such other
property or assets was pledged) plus (ii) the fair market
value, in the good faith opinion of the Board of Directors,
of any property or assets pledged pursuant to paragraph (2)
above (at the time such property or assets was pledged),
does not exceed $25,000,000 in the aggregate;
(5) making good faith deposits in connection with
tenders, contracts or leases to which the Company is a
party; or
(6) the pledging by the Company of any property or
assets in connection with the incurrence of indebtedness
(under circumstances not otherwise excepted from the
operation of this Section) in aggregate principal amount not
exceeding 3% of the Company's net tangible utility assets at
any time outstanding.
Any instrument creating a lien in favor of the Holders pursuant to
the requirements of this Section shall contain reasonable and customary
provisions for the enforcement of such lien and for the release of, or
substitution for, the property subjected to such lien. Such lien shall be
evidenced by an appropriate instrument or instruments executed and
delivered to the Trustee (or to the extent legally necessary, to another
trustee as additional or separate trustee). The Trustee, subject to the
provisions of Section 102 hereof, may receive an Opinion of Counsel as
conclusive evidence that any such instrument is in customary form and
complies with the foregoing provisions of this paragraph; and the Trustee
shall not be under any duty or responsibility to any Holder with respect
to the form, validity or enforceability of any such instrument which it
may accept in reliance in good faith upon any such opinion.
The term "Excepted Encumbrances" as used herein shall mean as of
any particular time any of the following:
(1) mortgages, liens, pledges, charges or encumbrances
in existence on the date hereof;
(2) liens for taxes, assessments of governmental
charges not delinquent and liens for worker's compensation
awards and similar obligations not delinquent and liens for
taxes, assessments or governmental charges delinquent but
the validity of which is being contested at the time by the
Company in good faith by appropriate proceedings;
(3) any liens securing indebtedness neither assumed
nor guaranteed by the Company nor on which it customarily
pays interest, existing in or relating to real estate or
rights in real estate acquired by the Company distribution
system or right-of-way purposes or in connection with its
usual operations;
(4) easements, rights of way, restrictions, exceptions
or reservations in or affecting any property or asset of the
52<PAGE>
Company created for the purpose of roads, railroads,
railroadside tracks, electric lines, pipe liens, sewers,
water and gas transmission and distribution mains, conduits,
transmission, distribution, or communication lines or for
the joint or common use of real property and equipment and
other like purposes, building and use restrictions and
defects and irregularities of title to, or leases of, any
property or asset of the Company which do not materially
impair the use of such property or asset as an entirety in
the operation of the business of the Company;
(5) undetermined liens and charges incidental to
current construction, including, without limitation,
mechanic's, laborers', materialmen's and similar liens;
(6) any obligations or duties affecting the properties
or assets of the Company to any municipality or public
authority with respect to any franchise, grant, license,
permit or certificate;
(7) rights reserved to or vested in any municipality
or public authority to control or regulate any property or
asset of the Company or to use such property in a manner
which does not materially impair the use of such property or
asset for the purposes for which it is held by the Company;
(8) any irregularities in or deficiencies of title to
any rights of way for distribution mains or pipes and/or
appurtenances to any thereto or other improvements thereon
and to any real estate used or to be used primarily for
right of way purposes, which do not materially affect the
use of such property or asset by the Company in the normal
course of its business;
(9) purchase money mortgages, liens, pledges or
security interests (which term for purposes of this
subsection (9) shall include conditional sale agreements or
other title retention agreements) upon or in property or
assets acquired after the date of this Indenture (provided
that the same is created concurrently with the acquisition
of such property or assets by the Company), provided that no
such mortgage, lien, pledge or security interest extends or
shall extend to or cover any property or assets of the
Company other than the property or assets then being
acquired and fixed improvements then or thereafter erected
thereon;
(10) leases made, or existing on property or assets
acquired, in the ordinary course of business;
(11) any mortgage, lien, pledge, charge or encumbrance
of any corporation existing at the time such corporation is
merged or consolidated with or into the Company and not
created in contemplation of such event;
(12) any mortgage, lien, pledge, charge or encumbrance
existing on any property or asset at the time of the
acquisition thereof by the Company and not created in
53<PAGE>
contemplation of such acquisition, and any mortgage, lien,
pledge, charge or encumbrance on any property or asset
acquired or constructed by the Company and created not later
than the date of (a) such acquisition or completion of such
construction or (b) commencement of full operation of such
property or asset, whichever is later;
(13) the liens of any judgment in an aggregate amount not in
excess of $250,000; and
(14) zoning laws and ordinances.
The term "Excepted Property" as used herein shall mean (1) cash,
bonds, stocks, obligations, and other securities (including, without
limitation, securities issued by Subsidiaries of the Company); (2) choses
in action, accounts receivable, unbilled revenues, judgments and other
evidences of indebtedness and contracts, leases and operating agreements;
(3) stock in trade, merchandise, equipment, apparatus, materials or
supplies and other personal property manufactured or acquired for the
purpose of sale and/or resale in the usual course of business or
consumable in the operation of any of the properties or businesses of the
Company or held for the purpose of repair or replacement; (4) timber, gas,
fuel oil, electric energy, minerals (including, without limitation,
developed and undeveloped natural gas reserves and natural gas in
underground storage or otherwise), liquefied natural gas, propane gas,
synthetic fuel, mineral rights and royalties; (5) materials or products
generated, manufactured, stored, produced or purchased by the Company for
sale, distribution or use in the ordinary course of its business; and (6)
office furniture and equipment, tools, rolling stock, buses, motor
coaches, trucks and automobiles and other vehicles and aircraft.
SECTION 1008. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any
covenant or condition set forth in Sections 801, 1004, 1005 and 1007 with
respect to the Instruments of any series if before or after the time for
such compliance the Holders of not less than a majority in aggregate
principal amount of the Instruments of all such series at the time
Outstanding (all such series considered as one class) shall, by Act of
such Holders, either waive such compliance in each instance or generally
waive compliance with such covenant or condition, but no such waiver shall
extend to or affect such covenant or condition except to the extent so
expressly waived, and, until such waiver shall become effective, the
obligations of the Company and the duties of the Trustee in respect of any
such covenant or condition shall remain in full force and effect.
The Company may, but shall not be obligated to, fix a record date
for the purpose of determining the Persons entitled to waive any such
covenant or condition. If a record date is fixed, the Holders on such
record date, or their duly designated proxies, and only such Persons,
shall be entitled to waive any such covenant or condition hereunder,
whether or not such Holders remain Holders after such record date;
provided that unless the Holders of a majority in aggregate principal
amount of the Outstanding Instruments of such series shall have waived
such covenant or condition prior to the date which is 90 days after such
record date, any such waiver by a Holder previously given shall
automatically and without further action by such Holder be canceled and of
no further effect.
54<PAGE>
ARTICLE ELEVEN
Redemption of Instruments
SECTION 1101. Applicability of Article.
Redemption of Instruments of any series at the election of the
Company as permitted or required by the terms of such Instruments shall be
made in accordance with the terms of such Instruments and (except as
otherwise specified as contemplated by Section 301 hereof for Instruments
of any series) in accordance with this Article.
SECTION 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Instruments shall be
evidenced by a Board Resolution or a Company Order pursuant to a Board
Resolution. In case of any redemption at the election of the Company of
less than all the Instruments of any series, the Company shall, at least
60 days prior to the Redemption Date fixed by the Company (unless a
shorter notice shall be satisfactory to the Trustee), notify the Trustee
of such Redemption Date and of the principal amount of Instruments of such
series to be redeemed. In the case of any redemption of Instruments
subject to any condition on such redemption provided in the terms of such
Instruments or elsewhere in this Indenture, the Company shall furnish the
Trustee with an Officers' Certificate evidencing satisfaction of such
condition.
SECTION 1103. Selection by Trustee of Instruments to Be Redeemed.
If less than all the Instruments of any series are to be redeemed,
the particular Instruments to be redeemed shall be selected not more than
60 days prior to the Redemption Date by the Trustee, from the Outstanding
Instruments of such series not previously called for redemption, by such
method as the Trustee shall deem fair and appropriate and which may
provide for the selection for redemption of portions of the principal
amount of Instruments of such series; provided, however, that no such
partial redemption shall reduce the portion of the principal amount of an
Instrument not redeemed to less than the minimum authorized denomination
for Instruments of that series. In any case where multiple Instruments of
such series are registered in the same name, the Trustee shall treat the
aggregate principal amount so registered as if it were represented by one
Instrument of such series. If the Instruments to be redeemed consist of
Instruments having different Stated Maturities or different rates of
interest or methods of computing interest, then the Company may, by
written notice to the Trustee, direct that the Instruments of such series
to be redeemed shall be selected from among groups of such Instruments
having specified Stated Maturities or rates of interest or methods of
computing interest and the Trustee shall thereafter select the particular
Instruments to be redeemed in the manner set forth above from among the
groups of such Instruments so specified.
The Trustee shall promptly notify the Company and the Instrument
Registrar (if other than itself) in writing of the Instruments selected
for redemption and, in the case of any Instrument selected for partial
redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Instruments shall
relate, in the case of any Instruments redeemed or to be redeemed only in
55<PAGE>
part, to the portion of the principal amount of such Instruments which has
been or is to be redeemed.
SECTION 1104. Notice of Redemption.
Notice of redemption shall be given in the manner provided in
Section 106 hereof, not less than 30 or more than 60 days prior to the
Redemption Date, unless a shorter period is specified in the Instruments
of a Series to be redeemed, to each Holder of Instruments to be redeemed
at such Holder's address appearing in the Instrument Register just prior
to the time the notice of redemption is to be sent.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Instruments of
any series are to be redeemed, the identification (and, in
the case of partial redemption, the principal amounts) of
the particular Instruments to be redeemed,
(4) that on the Redemption Date, the Redemption Price
will become due and payable upon each such Instrument or
portion thereof to be redeemed and, if applicable, that
interest thereon will cease to accrue on and after said
date,
(5) the place or places where such Instruments are to
be surrendered for payment of the Redemption Price,
(6) that the redemption is for a sinking fund, if such
is the case, and
(7) the CUSIP number, if any.
Notice of redemption of Instruments to be redeemed at the election
of the Company shall be given by the Company or, at the Company's request,
by the Trustee in the name and at the expense of the Company.
SECTION 1105. Deposit of Redemption Price.
On or prior to any Redemption Date, the Company shall deposit in
trust with the Trustee or with a Paying Agent (or, if the Company is
acting as its own Paying Agent, segregate and hold in trust as provided in
Section 1003 hereof) an amount of money sufficient to pay the Redemption
Price of, and (except if the Redemption Date shall be an Interest Payment
Date) accrued interest, if any, on, all the Instruments to be redeemed on
that Redemption Date.
SECTION 1106. Instruments Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the
Instruments so to be redeemed shall, on the Redemption Date, become due
and payable at the Redemption Price therein specified, and from and after
such date (unless the Company shall default in the payment of the
56<PAGE>
Redemption Price and accrued interest, if any, thereon) such Instruments
shall cease to bear interest. Upon surrender of any such Instrument for
redemption in accordance with said notice, such Instrument shall be paid
by the Company at the Redemption Price, together with accrued interest, if
any, to the Redemption Date; provided, however, that installments of
interest whose Stated Maturity is on or prior to the Redemption Date shall
be payable to the Holders of such Instruments, or one or more Predecessor
Instruments, registered as such at the close of business on the Regular
Record Dates therefor according to their terms and the provisions of
Section 307 hereof.
If any Instrument called for redemption shall not be so paid upon
surrender thereof for redemption, the principal thereof (and premium, if
any, thereon) shall, until paid, bear interest from the Redemption Date at
the rate or rates prescribed therefor in such Instrument.
SECTION 1107. Instruments Redeemed in Part.
Any Instrument which is to be redeemed only in part shall be
surrendered at an office or agency of the Company designated for that
purpose pursuant to Section 1002 hereof (with, if the Company, the Trustee
or the Instrument Registrar so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Company, the Trustee
and the Instrument Registrar duly executed by the Holder thereof or such
Holder's attorney duly authorized in writing), and the Company shall
execute, and the Trustee or the Authenticating Agent shall authenticate
and make available for delivery to the Holder of such Instrument, without
service charge, a new Instrument or Instruments of the same series, of
like tenor and of any authorized denomination as requested by such Holder,
in aggregate principal amount equal to and in exchange for the unredeemed
portion of the principal of the Instrument so surrendered. If a Global
Instrument is so surrendered, the Company shall execute, and the Trustee
or the Authenticating Agent shall authenticate and make available for
delivery to the Depository for such Global Instrument as shall be
specified in the Company Order with respect thereto, without service
charge, a new Global Instrument in a denomination equal to and in exchange
for the unredeemed portion of the principal of the Global Instrument so
surrendered.
ARTICLE TWELVE
Sinking Funds
SECTION 1201. Applicability of Article.
The provisions of this Article shall be applicable to any sinking
fund for the retirement of any Instruments of a series required by the
terms of such Instrument (except as otherwise specified as contemplated by
Section 301 hereof for Instruments of such series).
The minimum amount of any sinking fund payment provided for by the
terms of the Instruments of any series is herein referred to as a
"mandatory sinking fund payment," and any payment in excess of such
minimum amount provided for by the terms of Instruments of any series is
herein referred to as an "optional sinking fund payment." If provided for
by the terms of Instruments of any series, the cash amount of any sinking
fund payment may be subject to reduction as provided in Section 1202
hereof. Each sinking fund payment shall be applied to the redemption of
57<PAGE>
Instruments of any series as provided for by the terms of Instruments of
such series.
SECTION 1202. Satisfaction of Sinking Fund Payments with Instruments.
The Company may, in satisfaction of all or any part of any sinking
fund payment with respect to the Instruments of any series to be made
pursuant to the terms of such Instruments, (1) deliver Outstanding
Instruments of such series (other than any previously called for
redemption) and (2) apply as a credit Instruments of such series which
have been redeemed (or called for redemption and for which the Redemption
Price, together with accrued interest, if any, has been deposited pursuant
to Section 1105 hereof) either at the election of the Company pursuant to
the terms of such Instruments or through the application of permitted
optional sinking fund payments pursuant to the terms of such Instruments;
provided that such Instruments have not been previously so credited. Such
Instruments shall be received and credited for such purpose by the Trustee
at the Redemption Price specified in such Instruments for redemption
through operation of the sinking fund and the amount of such sinking fund
payment shall be reduced accordingly.
SECTION 1203. Redemption of Instruments for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date for
any series of Instruments, the Company will deliver to the Trustee an
Officers' Certificate specifying the amount of the next ensuing sinking
fund payment for Instruments of that series pursuant to the terms of the
Instruments of that series, the portion thereof, if any, which is to be
satisfied by payment of cash, the portion thereof, if any, which is to be
satisfied by delivering Instruments of such series (other than any
previously called for redemption), the portion thereof, if any, which is
to be satisfied by crediting Instruments of such series which have been
redeemed (or called for redemption and for which the Redemption Price,
together with accrued interest, if any, has been deposited pursuant to
Section 1105 hereof) and which have not been previously so credited, as
permitted by Section 1202 hereof, and the optional amount, if any, to be
added in cash to the next ensuing mandatory sinking fund payment, and will
also deliver to the Trustee any Instruments to be credited and not
theretofore so delivered. If such Officers' Certificate shall specify an
optional amount be added to the next ensuing mandatory sinking fund
payment, the Company shall thereupon be obligated to pay the amount
therein specified. Not less than 45 days before each such sinking fund
payment date the Trustee shall select the Instruments to be redeemed upon
such sinking fund payment date in the manner specified in Section 1103
hereof and cause notice of the redemption thereof to be given in the name
of and at the expense of the Company in the manner provided in Section
1104 hereof. The Company shall deposit the amount of cash, if any,
required for such sinking fund payment in the manner provided in Section
1105 hereof. Such notice having been duly given, the redemption of such
Instruments shall be made upon the terms
and in the manner stated in Sections 1106 and 1107 hereof.
58<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above
written.
NUI CORPORATION
BY:______________________
Name:
Title:
(SEAL)
Attest:___________________
Name:
Title:
FIRST FIDELITY BANK,
NATIONAL ASSOCIATION,
as Trustee
BY:______________________
Name:
Title:
(SEAL)
Attest:_______________________
Name:
Title:
59<PAGE>
STATE OF [NEW JERSEY] )
) SS.:
COUNTY OF [SOMERSET] )
I hereby certify, that on this day before me, an officer duly
authorized in the State aforesaid and in the County aforesaid to take
acknowledgements, personally appeared
and , respectively, of NUI
Corporation, a corporation organized and existing under the laws of the
State of New Jersey, to me personally known, or has produced
______________________________ as identification, and known to me to be
the and , respectively, of said corporation,
who executed the foregoing instrument, and acknowledged before me that the
same was executed in the name and on behalf of said corporation.
WITNESS my hand and official seal in the County and State last
aforesaid, this day of , 1994.
Notary Public
Name:
(Notarial Seal)
My Commission Expires:
Commission Serial Number:
60<PAGE>
STATE OF [NEW JERSEY] )
) SS.:
COUNTY OF [ESSEX] )
I hereby certify, that on this day before me, an officer duly
authorized in the State aforesaid and in the County aforesaid to take
acknowledgements, personally appeared
and , respectively, of First
Fidelity Bank, National Association, a national bank organized, existing
and authorized to accept and execute trusts of the character herein set
out under and by virtue of the laws of the United States, to me personally
known, or has produced ______________________________ as identification,
and known to me to be the and , respectively,
of said corporation, who executed the foregoing instrument, and
acknowledged before me that the same was executed in the name and on
behalf of said corporation.
WITNESS my hand and official seal in the County and State last
aforesaid, this day of , 1994.
Notary Public
Name:
(Notarial Seal)
My Commission Expires:
Commission Serial Number:
61<PAGE>
EXHIBIT NO. 5
[Elizabethtown Gas Company Letterhead]
November 15, 1994
Board of Directors
NUI Corporation
550 Route 202-206
P.O. Box 760
Bedminster, New Jersey 07921-0790
Gentlemen:
In connection with the Registration Statement on Form S-3
(the "Registration Statement") proposed to be filed by NUI
Corporation, a New Jersey corporation (the "Corporation"), with
the Securities and Exchange Commission (the "SEC") for the
purpose of registering under the Securities Act of 1933 (the
"Act") of up to $100,000,000 aggregate offering price of the
Corporation's shares of common stock, no par value (the "Common
Stock"), and debt securities ("Debt Securities"), I have examined
such corporate records, certificates and other documents, upon
which I have relied, and reviewed such questions of law as I have
deemed necessary or appropriate for the purposes of this opinion.
On the basis of such examination and review, I advise you
that, in my opinion:
(a) the Debt Securities of each series will be validly
authorized and legally issued and will be legal, valid and
binding obligations of the Company, enforceable in accordance
with their terms (except as limited by bankruptcy, insolvency,
moratorium, fraudulent conveyance, reorganization or other
similar laws affecting creditors' rights generally, by general
principles of equity (regardless of whether enforceability is
considered in a proceeding in equity or at law) and by applicable
law affecting the availability of remedies) if, at the time of
the issuance of the Debt Securities of such series:
1. the Board of Directors of the Company shall have
authorized the issuance and sale of the Debt Securities of
such series;
2. the Board of Public Utilities of the State of New
Jersey and any other applicable state regulatory authorities
or bodies shall have authorized, as applicable, the issuance
and sale of the Debt Securities of such series;
3. the Registration Statement of the Company on Form
S-3 shall have become and remain effective for the purpose
of the issuance and sale of the Debt Securities; the Debt
Securities of such series shall have been sold in accordance
with the description of the sale in the Registration
Statement; and the Prospectus relating to the Debt
Securities shall have been duly supplemented with respect to
<PAGE>
Board of Directors
November 15, 1994
Page 2
the Debt Securities of such series and, as so supplemented,
duly filed under the Act;
4. the Indenture under which the Debt Securities are
to be issued has been duly executed and delivered by the
Company and the Trustee thereunder and has been duly
qualified under the Trust Indenture Act of 1939.
5. the supplemental indenture, if any, relating to
the Debt Securities of such series shall have been duly
executed and delivered, the resolutions of the Board of
Directors of the Company, if any, or the certificate of
officers pursuant to resolutions of the Board of Directors
of the Company, if any, authorizing the issuance of such
series of Debt Securities shall have been duly authorized,
executed and delivered and all actions required by the terms
of the Company's Indenture to be taken as a condition to or
in connection with the issuance of the Debt Securities of
such series shall have been duly taken; and
6. the Debt Securities of such series shall have been
duly executed, authenticated and delivered and the
consideration therefor paid to or at the direction of the
Company; and
(b) the Common Stock will be legally issued, fully paid and
non-assessable if, at the time of the issuance of the Common
Stock:
1. the Board of Directors of the Company shall have
authorized the issuance and sale of the Common Stock;
2. the Board of Public Utilities of the State of New
Jersey and any other applicable state regulatory authorities
or bodies shall have authorized, as applicable, the issuance
and sale of the Common Stock;
3. the Registration Statement of the Company on Form
S-3, as amended, shall have become and remain effective for
the purpose of the issuance and sale of the Common Stock;
the Common Stock of such series shall have been sold in
accordance with the description of the sale in the
Registration Statement; and the Prospectus relating to the
Common Stock shall have been duly supplemented with respect
to the Common Stock of such series and, as so supplemented,
duly filed under the Act; and
4. the certificates for the Common Stock shall have
been duly executed, countersigned, registered and delivered
and the consideration therefor approved by the Board of
Directors of the Company paid to the Company.
<PAGE>
Board of Directors
November 15, 1994
Page 3
This opinion shall be governed by, and interpreted in
accordance with, the Legal Opinion Accord of the ABA Section of
Business Law (1991).
I hereby consent to the filing of this opinion with the
Commission as an exhibit to the Registration Statement, and to
all references to me included in such Registration Statement. In
giving such consent, I do not thereby admit that I come within
the category of persons whose consent is required under Section 7
of the Act or the rules and regulations of the Commission
thereunder.
Very truly yours,
MARY PATRICIA KEEFE
Mary Patricia Keefe
Group Vice President
and General Counsel
<PAGE>
<TABLE>
EXHIBIT 12
NUI CORPORATION AND SUBSIDIARIES
CONSOLIDATED RATIO OF EARNINGS TO FIXED CHARGES
(OOO's)
<CAPTION
Twelve
Year Ended September 30, Months Ended
1989 1990 1991 1992 1993 June 30, 1994
<S> <C> <C> <C> <C> <C> <C>
Income from continuing
operations before
income taxes $10,846 $13,857 $3,164 $18,078 $20,837 $16,686
Add:
Interest element of
rentals charged to
income (a) 643 2,848 2,933 3,007 3,156 3,314
Interest expense 14,822 15,369 15,928 17,058 14,966 15,852
------ ------ ------ ------ ------ ------
Earnings as defined $26,311 $32,074 $22,025 $38,143 $38,959 $35,652
====== ====== ====== ====== ====== ======
Interest expense 14,822 15,058 15,644 16,859 14,844 15,565
Capitalized interest --- 311 284 199 122 87
Interest element of
rentals charged
to income (a) 643 2,848 2,933 3,007 3,156 3,314
------ ------ ------ ------ ------ ------
Fixed charges
as defined $15,465 $18,217 $18,861 $20,065 $18,122 $18,966
====== ====== ====== ====== ====== ======
CONSOLIDATED RATIO OF
EARNINGS TO FIXED CHARGES 1.70 1.76 1.17 1.90 2.15 1.88
---- ---- ---- ---- ---- ----
<F1>
(a) Includes the interest element of rentals where determinable plus 1/3 of
rental expense where no readily defined interest element can be determined.
</TABLE>
<PAGE>
EXHIBIT NO. 23-1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this Registration Statement of our
report dated November 23, 1993 included in NUI Corporation's
Annual Report on Form 10-K for the fiscal year ended September
30, 1993 and to all references to our Firm included in this
Registration Statement.
ARTHUR ANDERSEN LLP
Arthur Andersen LLP
New York, NY
November 15, 1994
<PAGE>
EXHIBIT NO. 25
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE
PURSUANT TO SECTION 305(b)(2)
FIRST FIDELITY BANK, NATIONAL ASSOCIATION
(Name of Trustee)
22-1147033
(Jurisdiction of Incorporation or (I.R.S. Employer
Organization if not a U.S. National Bank) Identification No.)
175 West Broadway, Salem, New Jersey 08079
(Address of Principal Executive Offices) (Zip Code)
NUI CORPORATION
(Name of Obligor)
NEW JERSEY 22-1869941
(State of Incorporation) (I.R.S. Employer
Identification No.)
550 Route 202-206, Box 760, Bedminster, N.J. 07921-0760
(Address of Principal Executive Offices) (Zip Code)
DEBT SECURITIES
(Title of Indenture Securities)<PAGE>
2
1. General information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervisory authority to
which it is subject:
Comptroller of the Currency
United States Department of the Treasury
Washington, D.C. 20219
Board of Governors of the Federal Reserve System
Washington, D.C.
Federal Deposit Insurance Corporation
Washington, D.C. 20429
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
2. Affiliations with obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
3. List of Exhibits.
List below all exhibits filed as part of this statement of
eligibility.
1. Copy of Articles of Association of the trustee as now in effect.
Incorporated herein by reference to Exhibit 1 filed with Form T-
1, Registration No. 22-73340.
2. Copy of Certificate of the Comptroller of the Currency dated
January 11, 1994, evidencing the authority of the trustee to
transact business. Incorporated herein by reference to Exhibit 2
filed with Form T-1, Registration No. 22-73340.
3. Copy of the authorization of the trustee to exercise corporate
trust powers has heretofore been filed with the Securities and
Exchange Commission as Exhibit 3 filed with Form T-1,
Registration Number 22-73340, has not been amended since filing
and is incorporated herein by reference.
4. Copy of existing by-laws of the trustee. Incorporated herein by
reference to Exhibit 4 filed with Form T-1, Registration No. 22-
73340
.<PAGE>
3
5. Copy of each indenture if the obligor is in default.
Not applicable.
6. Consent of the trustee required by Section 321(b) of the Act.
Incorporated herein by reference to Exhibit 6 filed with Form T-
1, Registration No. 22-73340.
7. Copy of report of condition of the trustee at the close of
business on September 30, 1994, published pursuant to the
requirements of its supervising authority.
NOTE
The trustee disclaims responsibility for the accuracy or completeness
of information contained in this Statement of Eligibility and
Qualification not known to the trustee and not obtainable by it through
reasonable investigation and as to such information it has obtained from
the obligor and has had to rely or will obtain from the principal
underwriters and will have to rely.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 (as
amended), the trustee, First Fidelity Bank, National Association, a
national banking association organized and existing under the laws of the
United States of America, has duly caused this Statement of Eligibility to
be signed on its behalf by the undersigned, thereunto duly authorized, all
in the City of Newark and State of New Jersey on the 4th day of
November, 1994.
FIRST FIDELITY BANK, NATIONAL
ASSOCIATION
By: /s/ Thomas W. Simons
Thomas W. Simons
Vice President<PAGE>
4
EXHIBIT T-7
REPORT OF CONDITION
Consolidating domestic and foreign subsidiaries of the First Fidelity
Bank, National Association of Salem in the state of New Jersey, at the
close of business on September 30, 1994, published in response to call
made by Comptroller of the Currency, under title 12, United States Code,
Section 161. Charter Number 33869 Comptroller of the Currency
Northeastern District.
Statement of Resources and Liabilities
ASSETS Thousand of Dollars
Cash and balance due from depository institutions:
Noninterest-bearing balances and currency and coin . . . . . 1,346,661
Interest-bearing balances . . . . . . . . . . . . . . . . . . . 411,672
Securities . . . . . . . . . . . . . . . . . . . . . . . . . . /////////
Hold-to-maturity securities . . . . . . . . . . . . . . . . . 3,235,557
Available-for-sale securities . . . . . . . . . . . . . . . . 3,287,987
Federal funds sold and securities purchased under agreements . //////////
to resell in domestic offices of the bank and of it . . . . . . //////////
Edge and Agreement subsidiaries, and in IBFs: . . . . . . . . . //////////
Federal funds sold . . . . . . . . . . . . . . . . . . . . . 12,494
Securities purchased under agreement to resell . . . . . . . . . 325,542
Loans and lease financing receivables:
Loan and leases, net of unearned income 18,895,117
LESS: Allowance for loan and lease losses 502,752
LESS: Allocated transfer risk reserve 0
Loans and leases, net of unearned income, allowance, and
reserve . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18,392,365
Assets held in trading accounts . . . . . . . . . . . . . . . . . 111,334
Premises and fixed assets (including capitalized leases) . . . . 338,489
Other real estate owned . . . . . . . . . . . . . . . . . . . . . 125,867
Investment in unconsolidated subsidiaries and associated . . . //////////
companies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12,646
Customer's liability to this bank on acceptances outstanding . . 202,327
Intangible assets . . . . . . . . . . . . . . . . . . . . . . . . 284,003
Other assets . . . . . . . . . . . . . . . . . . . . . . . . . . 733,174
Total assets . . . . . . . . . . . . . . . . . . . . . . . . . 28,820,118
Deposits: LIABILITIES
In domestic offices . . . . . . . . . . . . . . . . . . . . . . 21,926,652
Noninterest-bearing . . . . . . . . . . . . . . . . . . . . . 4,373,924
Interest-bearing . . . . . . . . . . . . . . . . . . . . . . 17,552,728
In foreign offices, Edge and Agreement subsidiaries,
and IBFs . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,434,456
Noninterest-bearing . . . . . . . . . . . . . . . . . . . . . . . 12,570
Interest-bearing . . . . . . . . . . . . . . . . . . . . . . 1,421,886
Federal funds purchased and securities sold under agreements
to repurchase in domestic offices of the bank and of its
Edge and Agreement subsidiaries, and IBFs
Federal fund purchased . . . . . . . . . . . . . . . . . . . 662,248
Securities sold under agreements to repurchase . . . . . . 1,259,079
Demand notes issued to the U.S. Treasury . . . . . . . . . . . . . . 0
Trading liabilities . . . . . . . . . . . . . . . . . . . . . . . . . . 0
Other borrowed money: . . . . . . . . . . . . . . . . . . . . . /////////
With original maturity of one year or less 176,938
With original maturity of more than one year . . . . . . . . . . 740<PAGE>
Mortgage indebtedness and obligations under capitalized leases . . 6,963
Bank's liability on acceptances executed and outstanding . . . . 205,111
Subordinated notes and debentures . . . . . . . . . . . . . . . . 175,000
Other liabilities . . . . . . . . . . . . . . . . . . . . . . . . 452,172
Total liabilities . . . . . . . . . . . . . . . . . . . . . . . 26,299,359
Limited-life preferred stock and related surplus . . . . . . . . . . . 0
EQUITY CAPITAL
Perpetual preferred stock and related surplus . . . . . . . . . . . . . 0
Common Stock . . . . . . . . . . . . . . . . . . . . . . . . . . 430,000
Surplus . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 985,034
Undivided profits and capital reserves . . . . . . . . . . . . 1,144,089
Net unrealized holding gains (losses) on available-for-sale . . /////////
securities . . . . . . . . . . . . . . . . . . . . . . . . . . (38,364)
Cumulative foreign currency translation adjustments . . . . . . . . . . 0
Total equity capital . . . . . . . . . . . . . . . . . . . . . 2,520,759
Total liabilities, limited-life preferred stock and equity . . //////////
capital . . . . . . . . . . . . . . . . . . . . . . . . . . . 28,820,118<PAGE>
