AMENDMENT AND CONSENT TO CREDIT AGREEMENT

EX-4.2 4 y93949exv4w2.htm AMENDMENT AND CONSENT TO CREDIT AGREEMENT AMENDMENT AND CONSENT TO CREDIT AGREEMENT

CONSENT

THIS CONSENT (the “Consent”), dated and effective as of December 19, 2003, is made by and among NEW JERSEY RESOURCES CORPORATION, a New Jersey corporation (the “Borrower”), each of the GUARANTORS (as hereinafter defined), the BANKS (as hereinafter defined), FLEET NATIONAL BANK and SUNTRUST BANK, each in its capacity as a syndication agent, BANK OF TOKYO-MITSUBISHI TRUST COMPANY and JPMORGAN CHASE BANK, each in its capacity as a documentation agent, BANK ONE, NA, CITIZENS BANK OF MASSACHUSETTS and THE BANK OF NEW YORK, each in its capacity as a co-agent and PNC BANK, NATIONAL ASSOCIATION, in its capacity as administrative agent for the Banks (hereinafter referred to in such capacity as the “Agent”).

W I T N E S S E T H:

WHEREAS, reference is made to that certain Credit Agreement, dated as of December 23, 2002, by and among the Borrower, the Guarantors party thereto, the Banks party thereto, Fleet National Bank and SunTrust Bank, each in its capacity as a syndication agent, Bank of Tokyo-Mitsubishi Trust Company and JPMorgan Chase Bank, each in its capacity as a documentation agent, Bank One, NA, Citizens Bank of Massachusetts and The Bank of New York, each in its capacity as a co-agent, and the Agent, as amended by that certain First Amendment to Credit Agreement, dated August 13, 2003, and as amended and restated by that certain Amended and Restated Credit Agreement, dated the date hereof (the “Credit Agreement”);

WHEREAS, pursuant to Section 2.10 of the Credit Agreement, Borrower has delivered its annual financial statements for the fiscal year ending September 30, 2003 and has provided written notice to the 364-Day Banks that it requests an extension of the 364-Day Loan Expiration Date, and the parties hereto desire to extend the 364-Day Loan Expiration Date subject to the terms and conditions as set forth herein;

WHEREAS, pursuant to Section 2.12 of the Credit Agreement, Borrower has provided notice to the Agent that it wishes to exercise its option to increase the Banks’ 364-Day Revolving Credit Commitments, and the parties hereto desire to increase the Banks’ 364-Day Revolving Credit Commitments subject to the terms and conditions as set forth herein; and

WHEREAS, the amendment and restatement of the Credit Agreement as of the date hereof is effective prior to the execution and effectiveness of this Consent.

NOW, THEREFORE, the parties hereto, in consideration of their mutual covenants and agreements hereinafter set forth and intending to be legally bound hereby, covenant and agree as follows:

1. Definitions.

Capitalized terms used herein unless otherwise defined herein shall have the meanings ascribed to them in the Credit Agreement.

2. Consent to Extension of 364-Day Loan Expiration Date and Increase of 364-Day Revolving Credit Commitments.

(a) In accordance with Section 2.10 of the Credit Agreement, and subject to satisfaction of the conditions set forth in Section 3 below, the Borrower, the Agent and the 364-Day Banks hereby extend the 364-Day Loan Expiration Date for an additional period of 364 days commencing on the 364-Day Loan Expiration Date (such date being December 19, 2003) and with a new expiration date, referred to herein as the First Extended 364-Day Expiration Date of December 16, 2004.

(b) In accordance with Section 2.12 of the Credit Agreement, and subject to satisfaction of the conditions set forth in Section 3 below, the Borrower, the Agent and the 364-Day Banks hereby increase the 364-Day Revolving Credit Commitment in an aggregate amount of Twenty Million Dollars ($20,000,000) so that after giving effect to such increase, each 364-Day Bank has the 364-Day Revolving Credit Commitment and the 364-Day Revolving Credit Ratable Share as set forth opposite such 364-Day Bank’s name on the amended and restated Schedule 1.1(B) attached to this Consent.

3. Conditions of Effectiveness of this Consent.

The effectiveness of Section 2 [Consent to Extension of 364-Day Loan Expiration Date and Increase of 364-Day Revolving Credit Commitments] hereof is expressly conditioned upon the satisfaction of the conditions set forth below being satisfied to the satisfaction of the Agent and the 364-Day Banks:

(a) Certain Legal Details; Counterparts (364-Day Extension and Increase). All legal details and proceedings in connection with the transactions contemplated by this Consent shall be in form and substance satisfactory to the Agent, the Agent shall have received from the Borrower and each of the 364-Day Banks an executed original of this Consent, and the Agent shall have received all such other counterpart originals or certified or other copies of such documents and proceedings in connection with such transactions, in form and substance satisfactory to the Agent.

(b) Notes. The Borrower shall have executed and delivered to each of the 364-Day Banks new Notes, reflecting the increase of the amount of each Bank’s 364-Day Revolving Credit Commitments, if any such Bank so requests.

(c) Representations and Warranties; No Defaults. After giving effect to the increase in the 364-Day Revolving Credit Commitments, the representations and warranties of the Loan Parties contained in Section 6 of the Credit Agreement and each of the other Loan Documents shall be true and accurate as of the date hereof with the same effect as though such representations and warranties had been made on and as of such date (except representations and warranties which relate solely to an earlier date or time, which representations and warranties shall be true and correct on and as of the specific dates or times referred to therein), and each of the Loan Parties shall have performed and complied with all covenants and conditions under the Loan Documents and hereof; no Event of Default or Potential Default under the Credit

Agreement and the other Loan Documents shall have occurred and be continuing or shall exist; and the Chief Executive Officer, President or Chief Financial Officer or other Authorized Officer of each Loan Party shall have delivered to the Agent for the benefit of each Bank a duly executed certificate dated the date hereof certifying as to the items in this Section 3(c).

(d) Organization, Authorization and Incumbency. There shall be delivered to the Agent for the benefit of each Bank a certificate, dated as of the date hereof and signed by the Secretary or an Assistant Secretary of each Loan Party, certifying as appropriate as to:

     (i) all action taken by such party in connection with this Consent and the other Loan Documents together with resolutions of each Loan Party evidencing same;

     (ii) the names of the officer or officers authorized to sign this Consent and the other documents executed and delivered in connection herewith and the true signatures of such officer or officers and specifying the Authorized Officers permitted to act on behalf of such Loan Party for purposes of the Loan Documents and the true signatures of such officers, on which the Agent and each Bank may conclusively rely; and

     (iii) copies of its organizational documents, including its certificate of incorporation, bylaws, certificate of limited partnership, partnership agreement, certificate of formation and limited liability company agreement, in each case as in effect on the date hereof, certified by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to the continued existence and good standing of each Loan Party in each state where organized or qualified to do business, provided, however, that each of the Loan Parties may, in lieu of delivering copies of the foregoing organizational documents and good standing certificates, certify that the organizational documents and good standing certificates previously delivered by the Loan Parties to the Agent remain in full force and effect and have not been modified, amended or rescinded.

(e) Material Adverse Change. Each of the Loan Parties represents and warrants to the Agent and the Banks that, by the execution and delivery hereof by each Loan Party to the Agent, after giving effect to this Consent, no Material Adverse Change shall have occurred with respect to the Borrower or any of the Loan Parties since the Closing Date of the Credit Agreement.

(f) No Violation of Laws. The making of the Loans and the issuance of the Letters of Credit shall not contravene any Law applicable to any Loan Party or any of the Banks.

(g) No Actions or Proceedings. No action, proceeding, investigation, regulation or legislation shall have been instituted, threatened or proposed before any court, governmental agency or legislative body to enjoin, restrain or prohibit, or to obtain damages in respect of the Credit Agreement, the Loan Documents or this Consent or the consummation of the transactions contemplated thereby or hereby or which, in the Agent’s sole discretion, would make it inadvisable to consummate the transactions contemplated by the Credit Agreement, the Loan Documents or this Consent.

4. Miscellaneous.

(a) Force and Effect. The Credit Agreement and each of the other Loan Documents are hereby ratified and confirmed and are in full force and effect. No novation is intended or shall occur by or as a result of this Consent. This Consent is not intended to constitute, nor does it constitute, an interruption, suspension of continuity, satisfaction, discharge of prior duties, novation, or termination of the liens, security interests, indebtedness, loans, liabilities, expenses, or obligations under the Credit Agreement or the other Loan Documents.

(b) Governing Law. This Consent shall be deemed to be a contract under the laws of the State of New Jersey and for all purposes shall be governed by and construed and enforced in accordance with the internal laws of the State of New Jersey without regard to its conflict of laws principles.

(c) Counterparts. This Consent may be signed in any number of counterparts each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.

(d) Ratification of Guarantors. Each of the Guarantors hereby executes this Consent to evidence its consent hereto, and each Guarantor hereby ratifies and confirms the Credit Agreement, each Guaranty Agreement and each other Loan Document to which it is a party. No novation is intended or shall occur by or as a result of this Consent. This Consent is not intended to constitute, nor does it constitute, an interruption, suspension of continuity, satisfaction, discharge of prior duties, novation, or termination of the liens, security interests, indebtedness, loans, liabilities, expenses, or obligations under the Credit Agreement or the other Loan Documents.

(e) Payment of Fees and Expenses. The Borrower unconditionally agrees to pay and reimburse the Agent and save the Agent harmless against liability for the payment of all out-of-pocket costs, expenses and disbursements, including without limitation: (i) to the Agent for itself the reasonable costs and expenses of the Agent including, without limitation, the reasonable fees and expenses of counsel incurred by the Agent in connection with the development, preparation, execution, administration, interpretation or performance of this Consent, and all other documents or instruments to be delivered in connection herewith, (ii) to the Agent for the benefit of each 364-Day Bank consenting to the extension of the 364-Day Loan Expiration Date pursuant to Section 2(a) of this Consent, on or prior to the Effective Date, a fee equal to 5.0 basis points of each such 364-Day Bank’s 364-Day Revolving Credit Commitment as it was set forth on Schedule 1.1(B) in effect immediately prior to the amendment and restatement thereof by Schedule 1.1(B) attached to this Consent and (iii) to the Agent for the benefit of each 364-Day Bank consenting to the increase of the 364-Day Revolving Credit Commitment pursuant to Section 2(b) of this Consent, on or prior to the Effective Date, a fee equal to 10.0 basis points of the difference between (x) each such 364-Day Bank’s 364-Day Revolving Credit Commitment as set forth on the amended and restated Schedule 1.1(B) attached to this Consent and (y) each such consenting 364-Day Bank’s 364-Day Revolving Credit Commitment as it was set forth on Schedule 1.1(B) in effect immediately prior to the amendment and restatement thereof by Schedule 1.1(B) attached to this Consent.

(f) Effective Date. This Consent shall be dated as of and shall be effective as of the date of satisfaction of all items set forth in Section 3 hereof (the “Effective Date”).

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