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Exhibit 4-8
U.S. $30,000,000
REVOLVING CREDIT AGREEMENT
DATED AS OF AUGUST 27, 1996
AMONG
NEW JERSEY RESOURCES CORPORATION
AS BORROWER,
UNION BANK OF SWITZERLAND
NEW YORK BRANCH
AS AGENT
AND
UNION BANK OF SWITZERLAND
THE BANK OF TOKYO MITSUBISHI, LTD. AS LENDERS
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NEW JERSEY RESOURCES CORPORATION
U.S. $30,000,000
DATED AS OF AUGUST 27, 1996
TABLE OF CONTENTS
Page Number
1. DEFINITIONS; INTERPRETATION
1.1. Definitions 1
1.2. Interpretation 4
2. COMMITMENTS; DISBURSEMENT
2.1. Commitment to Lend 4
2.2. Notice of Borrowing 4
2.3. Disbursements 4
2.4. Evidence of Advances 5
2.5. Extension of Commitment 5
3. REPAYMENT
3.1. Repayment 5
3.2. Reduction of the Commitments 5
3.3. Optional Prepayment 5
4. INTEREST
4.1. Basic Rate 5
4.2. Substitution Rate 5
4.3. Interest on Late Payments 6
5. FEES
5.1. Commitment Fee 6
5.2. Agency Fees 6
6. TAXES
6.1. Gross-up 6
6.2. Stamp Taxes 7
7. CONDITIONS PRECEDENT
7.1. Conditions to be Satisfied on or
Before the Initial Disbursement Date 7
7.2. Termination of Existing Revolving Credit
Agreement 8
7.3. Further Conditions to be Satisfied at or
Before Each Disbursement Date 8
8. REPRESENTATIONS AND WARRANTIES
8.1. Representations and Warranties 8
8.2. Repetition of Representations and Warranties 10
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Page Number
9. COVENANTS
9.1. Use of Proceeds 10
9.2. Governmental Authorizations 10
9.3. Financial Statements and Other Information 10
9.4. Notices of Default 11
9.5. Negative Pledge 12
9.6. Consolidation, Merger, Sale of Assets, etc. 12
9.7. Preservation of Existence, Rights and
Franchises;
Conduct of Business 13
9.8. Insurance 13
9.9. ERISA Compliance 13
9.10. Payment of Taxes, etc. 13
9.11. Borrower Debt 13
9.12. Interest Coverage 13
9.13. Debt Ratio 13
9.14. Subsidiary Borrowing 14
9.15. Holding Company Act Compliance 14
10. EVENTS OF DEFAULT
10.1. Events of Default 14
10.2. Default Remedies 15
10.3. Right of Setoff 15
10.4. Rights Not Exclusive 15
11. PAYMENTS; COMPUTATIONS
11.1. Making of Payments 16
11.2. Computations 16
12. APPLICATION, DISTRIBUTION AND SHARING OF PAYMENTS
12.1. Sharing of Payments 16
13. THE AGENT
13.1. The Agent 16
13.2. Covenant to Reimburse 17
13.3. Non-Receipt of Funds by the Agent 17
14. INDEMNIFICATION
14.1. Expenses 17
14.2. Other Costs 18
15. CHANGES IN APPLICABLE LAW; INCREASED COSTS
15.1. Changes in Applicable Law 18
15.2. Increased Costs 18
15.3. Alternative Arrangements 19
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Page Number
16. GENERAL
16.1. Choice of Law 19
16.2. Jurisdiction 19
16.3. Loan Currency 19
16.4. Notices 20
16.5. Remedies and Waivers 20
16.6. Amendment 20
16.7. Assignment; Participations 20
16.8. Determinations by the Agent or any Bank 21
16.9. Survival 21
16.10. Severability of Provisions 21
16.11. Counterparts 21
16.12. Integration of Terms 21
SCHEDULE I - Details of Banks and Commitments
EXHIBIT A - Form of Grid Note
EXHIBIT B - Substance of Opinions of Counsel to the Borrower
EXHIBIT C - List of Subsidiaries of the Borrower
EXHIBIT D - Permitted Encumbrances
EXHIBIT E - Permitted Indebtedness
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THIS REVOLVING CREDIT AGREEMENT is made as of August 27, 1996,
among NEW JERSEY RESOURCES CORPORATION, as borrower (the "Borrower"), UNION BANK
OF SWITZERLAND, New York Branch, as agent (the "Agent") and UNION BANK OF
SWITZERLAND and THE BANK OF TOKYO MITSUBISHI, LTD. (the "Banks").
WHEREAS the Borrower wishes to be able to borrow from the
Banks, and the Banks, severally but not jointly, are willing to lend, on a
revolving basis, to the Borrower, an aggregate principal amount of up to
$30,000,000, the parties agree as follows.
1. DEFINITIONS; INTERPRETATION
1.1. Definitions. For purposes of this Agreement, the
following terms shall have the meanings indicated.
"Advance" means an advance made by a Bank to the Borrower
pursuant to Section 2.1.
"Aggregate Advances" means, with respect to each Bank, the sum
of its Advances hereunder.
"Applicable Law" means (a) any law or regulation of (i) the
jurisdiction (or any agency, department, instrumentality or taxing authority
thereof) under whose law the Borrower is incorporated, and (ii) any jurisdiction
(or any agency, department, instrumentality or taxing authority thereof) in
which the Borrower's principal office is located and (b) as to any Bank, any law
or regulation of (i) the jurisdiction (or any agency, department,
instrumentality or taxing authority thereof) under whose law such Bank is
organized, (ii) any jurisdiction (or any agency, department, instrumentality or
taxing authority thereof) in which such Bank's principal office is located and
(iii) any jurisdiction (or any agency, department, instrumentality or taxing
authority thereof) in which such Bank's Lending Office is located.
"Borrowing" means the aggregate of the Advances made on any
Disbursement Date.
"Business Day" means any day except Saturday, Sunday and any
day which shall be in New York City or London a legal holiday or a day on which
banking institutions are authorized or required by law or other government
action to close.
"Code" means the Internal Revenue Code of 1986, as amended
from time to time.
"Commission" has the meaning assigned to that term in Section
8.1(n).
"Commitment" means, in relation to any Bank, the obligation to
lend the amount specified opposite its name in Schedule I, in each case as
reduced in accordance with the terms hereof.
"Default" means any event or occurrence which with the giving
of notice or the passage of time, or both, would constitute an Event of Default.
"Disbursement Date" in respect of any Advance, has the meaning
assigned to that term in Section 2.2.
"Dollars" or "$" means lawful money of the United States.
"Effective Date" means October 1,1996.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended, and the regulations thereunder.
"ERISA Affiliate" means each trade or business (whether or not
incorporated) that would be treated together with the Borrower as a single
employer under Section 4001 of ERISA.
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"Event of Default" has the meaning assigned to that term in
Section 10.1.
"Grid Note" means a promissory note of the Borrower evidencing
Advances made by a Bank, in substantially the form of Exhibit A.
"IRS" has the meaning assigned to that term in Section
6.1(a)(i).
"Indebtedness" with respect to any Person, means any amount
payable by such Person pursuant to an agreement or instrument involving or
evidencing money borrowed or received, the advance of credit, (other than trade
payables incurred in the ordinary course of business of such Person), a
conditional sale or a transfer with recourse or with an obligation to
repurchase, or pursuant to a lease with substantially the same economic effect
as any such agreement or instrument, to which such Person is a party as debtor,
borrower, lessee or guarantor.
"Indenture" means the Indenture of Mortgage and Deed of Trust
dated April l, 1952 between New Jersey Natural Gas Company and ▇▇▇▇▇▇ Trust and
Savings Bank, as Trustee, as amended through the Twenty-sixth supplemental
Indenture dated October 1, 1995.
"Interest Period" means, with respect to any Advance, the
period commencing on the Disbursement Date, in the case of the initial Interest
Period for an Advance, or on the last day of the prior Interest Period in the
case of any subsequent Interest Period for an Advance. The duration of each such
Interest Period shall be one, two, three or six months (or such shorter period
as the Borrower, the Agent and the Banks may agree) as designated by the
Borrower in a Notice of Borrowing delivered to the Agent pursuant to Section
2.2, in the case of the initial Interest Period for an Advance, or in a notice
delivered to the Agent at least four Business Days prior to the end of the prior
Interest Period, in the case of any subsequent Interest Period for an Advance,
provided that:
(a) if the Borrower shall fail timely to elect the duration of
an Interest Period, it will be deemed to have elected a three month
Interest Period;
(b) any Interest Period which would otherwise end on a day
which is not a Business Day shall be extended to the next succeeding
Business Day unless such Business Day falls in another calendar month,
in which case such Interest Period shall end on the next preceding
Business Day;
(c) any Interest Period which begins on the last Business Day
of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest
Period) shall, subject to clause (d) below, end on the last Business
Day of a calendar month; and
(d) any Interest Period which would otherwise end after the
Termination Date shall end on the Termination Date.
"Lending Office", with respect to any Bank, means the office
of such Bank named in Schedule I or such other office of such Bank as such Bank
may have last designated as its lending office for purposes of this Agreement by
notice to the Agent and the Borrower.
"Long-Term Debt" means obligations of the Borrower for
borrowed money which are by their terms not due (or subject to demand) within
one year.
"Majority Banks" means Banks whose Aggregate Advances total
more than fifty percent (50%) of the Banks' Aggregate Advances.
"Margin" means, on a per annum basis, 30 basis points.
Notwithstanding the foregoing, the Borrower agrees that if the rating (by either
Rating Agency) of the First Mortgage Bonds of New Jersey Natural Gas Company is
equal to BBB+ (or its equivalent) or below, the Borrower shall negotiate in good
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faith with the Agent to reset the rate to an amount which is consistent with the
market rate for customers with a credit rating equal to that of the Borrower.
"Officers' Certificate" means a certificate executed on behalf
of the Borrower by any two officers of the Borrower.
"PBGC" means the Pension Benefit Guaranty Corporation.
"Person" means any corporation, natural person, firm, joint
venture, partnership, trust, unincorporated organization or government, or any
political subdivision, department or agency of any government.
"Plan" means any plan subject to Title IV of ERISA with
respect to which the Borrower or any ERISA Affiliate would incur a liability to
the PBGC or to such plan pursuant to Title IV of ERISA as a result of the
termination of such plan or withdrawal or partial withdrawal of any person from
such plan.
"Plan Event" means the filing of a notice of intent to
terminate any Plan under Section 4041 of ERISA, the receipt of any notice by any
Plan that the PBGC intends to apply for the appointment of a trustee to
administer such Plan, the termination of any Plan, the complete or partial
withdrawal of any Person from any Plan if such withdrawal could result in
liability of the Borrower or any ERISA Affiliate to the PBGC or to such Plan, a
"reportable event," as defined in Section 4043(b) of ERISA, with respect to any
Plan and any other event or condition that would constitute grounds under
Section 4042 of ERISA for the termination of, or for the appointment of a
trustee to administer, any Plan.
"Prime Rate" means the rate which the Agent announces from
time to time as its prime rate, the Prime Rate to change when and as such prime
rate changes. The Prime Rate is a reference rate and does not necessarily
represent the lowest or best rate actually charged to any customer. The Agent
may make commercial loans or other loans at rates of interest at, above or below
the Prime Rate.
"Principal Subsidiary" means each of New Jersey Natural Gas
Company, NJR Storage Corp., New Jersey Natural Energy Company, New Jersey
Natural Resources Company and NJNR Pipeline Company, and Commercial Realty &
Resources Corp., and any other Subsidiary having total assets in excess of five
percent (5%) of the total assets of the Borrower and its Subsidiaries on a
consolidated basis, all as set forth in the most recent audited balance sheets
of the Borrower and its Subsidiaries.
"Pro Rata Share" means, with respect to any Bank and any
Advance, the amount that bears the same relation to the principal amount of such
Advance, as the case may be, as such Bank's Commitment bears to the Total
Commitment.
"Quoted Rate" means, with respect to any Interest Period for a
Borrowing, the rate of interest (expressed as an annual rate) determined by the
Agent to be the arithmetic mean (rounded up to the nearest one sixteenth of one
percent (1/16%)) of the respective rates of interest communicated by the several
Reference Banks to the Agent as the rates at which each such Reference Bank is
offering to place a deposit in Dollars, for a term coextensive with such
Interest Period in an amount substantially equal to the amount of such Reference
Bank's Pro Rata Share of such Borrowing, with leading banks in the London
interbank marker at approximately 11:00 a.m. London time on the second Business
Day next preceding the Disbursement Date for such Borrowing; provided, however,
that if any of the Reference Banks fails so to communicate a rate, the Quoted
Rate shall be determined on the basis of the rates communicated to the Agent by
the remaining Reference Bank or Reference Banks.
"Rating Agency" means ▇▇▇▇▇'▇ Investors Service Inc., Standard
and Poor's Corporation and their respective successors and assigns.
"Reference Banks" means the respective principal New York
offices of Union Bank of Switzerland and The Bank Of Tokyo-Mitsubishi, Ltd..
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"Regulation D" means Regulation D of the Board of Governors of
the Federal Reserve System as from time to time in effect and any Successor to
all or a portion thereof establishing reserve requirements.
"Subsidiary" at any time, means any entity of which more than
fifty percent of the outstanding voting stock or other equity interest entitled
ordinarily to vote in the election of the directors or other governing body
(however designated) of such entity is at the time beneficially owned or
controlled directly or indirectly by the Borrower and/or by one or more such
entities.
"Termination Date" means October 1, 1999 unless extended
pursuant to Section 2.5 or the earlier date of termination in whole of the
Commitments pursuant to Section 3.2.
"Total Commitment" means the sum of the Commitments of all of
the Banks in effect from time to time.
"United States" means the United States of America.
"United States Tax" has the meaning assigned to that term in
Section 6.1.
"U.S. Person" means a citizen or resident of the United
States, a corporation, partnership or other entity created or organized in or
under the laws of the United States, or an estate or trust the income of which
is subject to United States federal income taxation regardless of the source.
1.2. Interpretation. The headings in this Agreement are
inserted for convenience only and shall be ignored in construing this Agreement.
Unless the context otherwise requires, words denoting the singular number only
shall include the plural and vice versa. The words "written" and "in writing"
include any means of visible reproduction. Unless otherwise indicated,
references to Sections , Exhibits and Schedules are to be construed as reference
to sections of and exhibits and schedules to this Agreement.
2. COMMITMENTS; DISBURSEMENT
2.1. Commitment to Lend. On the terms and subject to the
conditions set forth herein, each Bank severally but not jointly, agrees to make
from time to time on or prior to the Termination Date, in an aggregate principal
amount not exceeding such Bank's Commitment, one or more Advances through its
Lending Office to the Borrower. Within the limits of each Bank's Commitment, the
Borrower may borrow, repay pursuant to Section 3.1 or prepay pursuant to Section
3.3, and reborrow under this Section 2.1.
2.2. Notice of Borrowing. If the Borrower wishes to borrow
hereunder, it shall, not later than 5:00 p.m. New York City time on the fourth
Business Day preceding the date on which it wishes to borrow, give the Agent
notice of (a) such date (a "Disbursement Date"), (b) the amount of the
Borrowing, which amount shall be an integral multiple of $1,000,000 not less
than $3,000,000 (unless the remaining unused portion of the Total Commitment is
less than $3,000,000 in which case the amount designated by the Borrower shall
equal the remaining unused portion of the Total commitment), (c) the account to
which it wishes the proceeds of the Borrowing to be credited and (d) the
Interest Period for such Borrowing. The giving of such notice shall constitute
the Borrower's irrevocable commitment to borrow such amount on such Disbursement
Date.
2.3. Disbursements. The Agent shall promptly, on the third
Business Day prior to the anticipated Disbursement Date, give notice to each
Bank of (a) the Disbursement Date for such Borrowing, (b) the amount of the
Advance to be made by such Bank on such Disbursement Date, which amount shall be
such Bank's Pro Rata Share of such Borrowing, and (c) the Interest Period. By
11:00 a.m. New York City time on each Disbursement Date, each Bank shall,
subject to the conditions set forth herein, make available to the Agent an
amount equal to the amount of the Advance to be made by such Bank on such
Disbursement Date, in same-day funds, by deposit to such account as the Agent
may have
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theretofore designated by notice to the Banks. Subject to the conditions set
forth herein, the Agent shall, on such Disbursement Date, transfer such funds by
12 noon New York City time to the account specified by the Borrower pursuant to
Section 2.2.
2.4. Evidence of Advances. Each Bank's Advance made pursuant
to this Agreement shall be evidenced on the Grid Note of the Borrower held by
such Bank. Upon making an Advance, each Bank shall record on the schedule
contained on the Grid Note the Disbursement Date and the principal amount of the
Advance. Each Bank shall also promptly so record any payments of principal or
interest. In any legal action or proceeding in respect of this Agreement or any
Advance, the entries made on such schedule shall be prima facie evidence of the
existence and amounts of the Advances made by such Bank and of the amounts due
to it under this Agreement in respect thereof. The failure to record or to
record properly any such amount shall not affect the obligation of the Borrower
to repay the actual principal amount of any Advance made by any Bank with all
applicable interest accruing thereon.
2.5 Extension of Commitment. At least 6 months but not more
than 12 months before the Termination Date, the Borrower may request the Agent
and the Banks, by giving written notice of such request to the Agent, to extend
the Termination Date of the Agreement for one year, specifying the terms and
conditions, including fees, to be applicable to such extension. The Agent shall
promptly notify the Banks of such request, and, no later than 90 days from the
date on which the Agent shall have received notice from the Borrower pursuant to
the preceding sentence, the Agent shall notify the Borrower of the consent or
non-consent to such extension request. No extension shall be effective without
the consent of the Banks. The consent of the Banks shall be conditional upon the
preparation, execution and delivery of legal documentation in form and substance
satisfactory to the Banks and their counsel incorporating substantially the
terms and conditions contained in the extension request as the same may be
modified by agreement among the Borrower and the Banks. In no event shall the
Termination Date be extended beyond October 1, 2002.
3. REPAYMENT
3.1. Repayment. The Borrower shall repay the principal amount
of each Advance owing to such Bank on the Termination Date.
3.2. Reduction of the Commitments. The Borrower shall have the
right, upon at least five Business Days' notice to the Agent, to terminate in
whole or reduce ratably in part the unused portions of the respective
Commitments of the Banks, provided that each partial reduction shall be in the
aggregate of $1,000,000 or a greater integral multiple thereof.
3.3. Optional Prepayment. The Borrower may, upon at least five
Business Days' notice to the Agent stating the proposed date and aggregate
principal amount of the prepayment, and if such notice is given the Borrower
shall, prepay the outstanding principal amount of any Borrowing in whole or
ratably in part, together with accrued interest to the date of such prepayment
on the principal amount prepaid; provided, however, that (a) each partial
prepayment shall be in an aggregate principal amount not less than $1,000,000 or
a greater integral multiple of $500,000 and (b) the Borrower shall be obligated
to reimburse the Banks in respect thereof pursuant to Section 14.2.
4. INTEREST
4.1. Basic Rate. (a) Except as otherwise expressly provided in
Section 4.2 or Section 4.3, interest shall accrue on the outstanding principal
amount of each Advance at a rate per annum equal to the sum of the Quoted Rate
plus the Margin. The Agent shall give prompt notice to the Borrower and each
Bank of the Quoted Rate after each determination thereof. Each Reference Bank
shall use reasonable efforts to furnish in a timely manner a quotation for use
in the determination of the Quoted Rate.
(b) Except as otherwise provided herein, accrued interest on
the unpaid principal amount of each Advance owing to each Bank from the date of
such Advance until the maturity thereof
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(whether at stated maturity, by acceleration or otherwise) shall be payable on
the last day of an Interest Period and, if such Interest Period has a duration
of more than three months, on each day which occurs during such Interest Period
every three months from the first day of such Interest Period.
4.2. Substitution Rate. (a) If none of the Reference Banks
shall communicate a rate to the Agent for the purpose of making any
determination of the Quoted Rate, or if the Majority Banks shall determine and
so advise the Agent (i) that the Banks are generally unable to obtain deposits
in Dollars in the London inter-bank market for the applicable Interest Period or
(ii) that the Quoted Rate for such Interest Period will not adequately reflect
the cost to the Majority Banks of obtaining deposits in Dollars in the London
inter-bank market for such Interest Period, the Agent shall promptly (but in any
event not later than 5:00 p.m. New York time on the second Business Day
preceding the Disbursement Date), so notify the Borrower and the Banks.
(b) If a notice is given pursuant to Section 4.2(a), interest
shall accrue on each Bank's Advance during the affected Interest Period at a
rate per annum equal to the Prime Rate. The Borrower, at its discretion, shall
have the right to prepay any Borrowing subject to the Prime Rate at any time,
provided the Borrower has given the Bank one Business Day prior written notice.
(c) For the purpose of determining the commitment fee payable
by the Borrower under Section 5.1, the unused portion of the Total Commitment
shall not include the Commitment of any Bank to the extent its obligation to
lend is canceled or suspended pursuant to Section 15.1, and such Bank shall not
be entitled to receive any portion of the commitment fee attributable thereto.
4.3. Interest on Late Payments. If any amount payable by the
Borrower hereunder is not paid on or before the due date thereof, interest shall
accrue on such amount to the extent permitted by applicable law, during the
period from and including the due date thereof to but excluding the date such
amount is paid, at a rate per annum equal for each day in such period to the sum
of 2% plus the Base Rate. For purposes hereof, the "Base Rate" means, for any
day, the higher of (x) the rate announced from time to time by the Agent as its
prime rate on such date, changing as and when such prime rate changes and (y)
1/2 of 1% in excess of the average rate quoted to the Agent at approximately
11:00 a.m. (New York City time) on such day (or, if such day is not a Business
Day, on the next preceding Business Day) for overnight Federal Funds
transactions arranged by New York Federal Funds brokers selected by Agent on
such date.
5. FEES
5.1. Commitment Fee. The Borrower shall pay to the Agent for
the account of the Banks a commitment fee on the average daily unused portion of
the Total Commitment from and including the date hereof to but excluding the
Termination Date at a rate per annum of one eighth of one percent (1/8%),
payable on the last day of each February, May, August and November, commencing
February 28, 1991, and on the Termination Date.
5.2. Agency Fees. The Borrower shall pay to the Agent for its
own account agency fees in the amounts and at the times separately agreed upon
between the Borrower and the Agent.
6. TAXES
6.1. Gross-up. (a) In the event that any amount is required by
Applicable Law to be withheld or deducted from any payments due to a Bank in
respect of any Advance for or on account of any present or future taxes imposed
by any governmental or other taxing authority of or in the United States
("United States Tax"), the Borrower shall pay to the Agent for distribution to
such Bank such additional amounts as may be necessary in order that the net
amount received for distribution to such Bank after the required withholding or
other payment (including any required withholding or other payment on such
additional amounts) shall equal the amount the Agent would have received for
distribution to such Bank
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had no such withholding or other payment been made; provided, however, that no
such additional amounts shall be paid:
(i) if such Bank shall have delivered an Internal Revenue
Service ("IRS") Form 4224 to the Borrower pursuant to Section 6.1(c)
and (A) such Bank shall at any time not be entitled to complete
exemption from withholding of United States Tax for any reason other
than a change in United States federal income tax law, regulation or
official interpretation after the date hereof or (B) such withholding
or deduction of United States Tax is imposed in respect of similar
payments to United States taxpayers generally; or
(ii) if such Bank shall have delivered an IRS Form 1001 to the
Borrower pursuant to Section 6.1(c) and such Bank shall at any time not
be entitled to the complete exemption from or reduction of United
States Tax for any reason other than an amendment, modification or
revocation of an applicable double tax treaty, or a change in official
position regarding the application or interpretation of such treaty,
after the date hereof; or
(iii) in the case of a Bank that has delivered an IRS Form
1001 that claims partial exemption from or reduction of United States
Tax, for or on account of any such taxes imposed at a rate that date
not exceed the rate applicable to such Bank on the date hereof; or
(iv) for or on account of any such taxes that could not have
been imposed but for such Bank's failure to comply with its obligations
under Section 6.1(c).
In the event that the Borrower or the Agent makes payments to
any Bank without any reduction by reason of withholding or other payments of
United States Tax, and it is later determined by any applicable governmental or
taxing authority that the Borrower or the Agent is liable for withholding or
other payments and such Bank would not be entitled, by virtue of clause (i),
(ii), (iii) or (iv) above, to an additional amount in respect of any such
deduction or withholding, then such Bank shall indemnify the Borrower or the
Agent, as the case may be (on an after-tax basis), for any amounts (other than
interest and penalties, where the failure by the Borrower or the Agent, as the
case may be, to deduct or withhold was not the result of an action or inaction
on the part of such Bank) that the Borrower or the Agent, as the case may be,
remits to the governmental or taxing authority as a result of such
determination. If the Borrower receives notice of any additional amount due
hereunder, it shall, subject to compliance with Section 3.3 hereof, have the
right to prepay the Aggregate Advances, in whole or in part, of any Bank to
which such additional amount is payable.
(b) All taxes to be paid by the Borrower pursuant to Section
6.1(a) shall be paid prior to the date on which penalties attach thereto or
interest accrues thereon. If any Bank pays any amount in respect of such taxes
or penalties or interest thereon (other than penalties or interest where the
failure by the Borrower or Agent, as the case may be, to deduct or withhold was
the result of an action or inaction on the part of such Bank), the Borrower
shall reimburse such Bank in Dollars for such payment on demand. If the Borrower
pays any such taxes, penalties or interest, it shall deliver official tax
receipts evidencing such payment or certified copies thereof to the Agent on or
before the thirtieth day after payment.
(c) Each Bank that is not a U.S. Person shall deliver to the
Borrower an accurate and complete original signed copy of an IRS Form 1001 or
4224 within 30 days of the signing of this Agreement, and shall deliver such
additional or supplemental forms thereafter as may be required in order to
maintain the effectiveness and accuracy of such forms. In addition, such Bank
shall deliver to the Borrower such other forms or documentation as the Borrower
may reasonably request in order to comply with United States tax laws. For any
period with respect to which a Bank has failed to provide the Borrower with the
appropriate form described herein (unless such failure is due to a change in law
occurring after the date on which a form originally was required to be provided)
such Bank shall not be entitled to indemnification under subsection (a) with
respect to United States Taxes.
6.2. Stamp Taxes. The Borrower shall pay any registration or
transfer taxes, stamp duties or similar levies, and any penalties or interest
that may be due with respect thereto, that may be
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imposed by any jurisdiction in connection, with this Agreement or the Grid
Notes. If the Agent or any Bank pays any amount in respect of any such taxes,
duties, levies, penalties or interest, the Borrower shall reimburse the Agent or
such Bank for such payment on demand.
7. CONDITIONS PRECEDENT
7.1. Conditions to be Satisfied on or Before the Effective
Date. The obligation of the Banks to make the initial Advances hereunder is
subject to the condition that the Agent receive, on or before the Effective
Date, one executed copy and certified copies or additional executed copies
sufficient for all the Banks of each of the documents listed below, each dated
the date of its delivery, in form and substance satisfactory to the Agent:
(a) The Grid Notes for distribution by the Agent to each Bank,
duly executed and delivered.
(b) Opinions of Debovise & ▇▇▇▇▇▇▇▇, counsel to the Borrower,
as to the matters set forth in Exhibit B.
(c) Copies of all corporate action taken by the Borrower to
authorize this Agreement, the borrowings hereunder and the Grid Notes, certified
as of the date hereof.
(d) Such other documents as the Agent may reasonably require.
7.2 Termination of Existing Revolving Credit Agreement.
Reference is made to that certain Revolving Credit Agreement, dated as of
December 31,1990, by and among Borrower, the Lenders party thereto and Union
Bank of Switzerland, New York Branch, as Agent (as amended, the "Existing Credit
Agreement"). The Borrower hereby requests that the "Commitments" under the
Existing Credit Agreement be terminated immediately upon this Agreement becoming
effective. Each Bank party hereto that is also party to the Existing Credit
Agreement agrees that;
(a) the Existing Credit Agreement, and all "Commitments" and
all other obligations under the Existing Credit Agreement (other than
obligations which, by their terms, are contemplated to survive termination of
the Existing Credit Agreement) shall cease and be terminated on the Effective
Date; and
(b) to the extent that any notice is required under the
Existing Credit Agreement in order to effect the termination contemplated in
this Section 7.2, such requirement is hereby waived;
7.3. Further Conditions to be Satisfied at or Before Each
Disbursement Date. The obligation of each Bank to make each Advance hereunder
(including its initial Advance) is subject to the further conditions that (a)
the Borrower shall have complied and shall then be in compliance with all the
terms, covenants and conditions of this Agreement which are binding upon it, (b)
there shall have occurred no Default or Event of Default, (c) the
representations and warranties contained in Section 8.1 shall be true with the
same effect as though such representations and warranties had been made at the
initial Disbursement Date and (d) there shall have been no material adverse
change in the business, properties, condition (financial or otherwise) or
operations, present or prospective, of the Borrower since the date of the
financial statements furnished to the Agent as of the date hereof. The
Borrower's notice of borrowing pursuant to Section 2.2 hereof shall be deemed to
constitute a certification to the foregoing effect.
8. REPRESENTATIONS AND WARRANTIES
8.1. Representations and Warranties. The Borrower represents
and warrants to each Bank as follows:
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(a) The Borrower is a corporation duly organized and validly
existing under the law of New Jersey and has the power and authority to own its
property, to conduct its business as currently conducted and to consummate the
transactions contemplated in this Agreement.
(b) Each Principal Subsidiary is an entity duly organized and
validly existing under the law of its jurisdiction of incorporation or
organization and has the power and authority to own its property and to conduct
its business as currently conducted.
(c) The Borrower has taken all necessary corporate action to
authorize the execution and delivery of this Agreement and all other documents
to be executed and delivered by it in connection with this Agreement, the
performance of its obligations under the Agreement and the Grid Notes and the
consummation of the transactions contemplated in this Agreement.
(d) This Agreement has been duly executed and delivered by the
Borrower and constitutes, and each of the Grid Notes, when duly executed and
delivered by the Borrower, will constitute, a legal, valid and binding
obligation of the Borrower, enforceable against the Borrower in accordance with
its terms, subject to applicable bankruptcy, insolvency, moratorium and similar
laws affecting creditors' rights generally, and subject, as to enforceability,
to general principles of equity (regardless of whether enforcement is sought in
a proceeding in equity or at law).
(e) All governmental authorizations and actions of any kind
necessary to authorize the Advances or required for the validity or
enforceability against the Borrower of this Agreement or the Grid Notes have
been obtained or performed and are valid and subsisting in full force and
effect.
(f) No Default or Event of Default has occurred and is
continuing or will occur by reason of the consummation of the transactions
contemplated in this Agreement.
(g) No consent or approval of, or notice to, any creditor of
the Borrower is required by the terms of any agreement or instrument evidencing
any Indebtedness of the Borrower for the execution or delivery of, or the
performance of the obligations of the Borrower under, this Agreement or the Grid
Notes or the consummation of the transactions contemplated in this Agreement,
and such execution, delivery, performance and consummation will not result in
any breach or violation of, or constitute a default under, the charter or
by-laws of the Borrower or any Principal subsidiary or any material agreement,
instrument, judgment, order, law, rule or regulation applicable to the Borrower
or any Principal Subsidiary or to any property of the Borrower or any Principal
Subsidiary.
(h) There are no actions, proceedings or claims pending, or,
to the knowledge of the Borrower, threatened, which would reasonably be expected
to have a materially adverse effect on the business, operations, property or
consolidated financial condition of the Borrower and its Subsidiaries, taken as
a whole, or impair the ability of the Borrower to perform its obligations under,
or affect the validity or enforceability of, this Agreement or the Grid Notes.
(i) The Borrower's financial statements for the most recent
fiscal year fairly present the financial condition of the Borrower as of the
close of such fiscal year, have been prepared in accordance with generally
accepted accounting principles, consistently applied, and have been certified by
Deloitte & Touche, or other independent public accountants of recognized
national standing, as fairly presenting the financial condition of the Borrower
as at the close of such fiscal year and the results of its operations for such
year.
(j) There has been no material adverse change since December
31, 1995 in the business, operations, property or consolidated financial
condition of the Borrower or in the Borrower's ability to perform its
obligations under this Agreement or the Grid Notes.
(k) The execution and delivery by the Borrower of this
Agreement and the Grid Notes are not subject to any tax, duty, fee or other
charge, including, without limitation, any registration or
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transfer tax, stamp duty or similar levy, imposed by or within the United States
or any political subdivision or taxing authority thereof or therein that has not
been paid by the Borrower.
(l) The Borrower is not an "investment company" within the
meaning of the Investment Company Act of 1940, as amended.
(m) The Borrower and its Subsidiaries are exempted from
regulation by the Securities and Exchange Commission (the "Commission") under
the Public Utility Holding Company Act of 1935, as amended (the "Holding Company
Act"), except under Section 9(a)(2) thereof, pursuant to a filing made with the
Commission under Section 3 of the Holding Company Act. Such filing is in full
force and effect, and no proceedings are pending or, to the knowledge of the
Borrower, threatened for the revocation or denial of such exemption.
(n) The Borrower and its Subsidiaries have filed all material
tax returns and reports required to be filed by them in any jurisdiction, and
all taxes, assessments, fees and other governmental charges or levies imposed
upon the Borrower and each Subsidiary or upon any of their respective
properties, assets, income, profits or franchises, that are due and payable,
have been paid where the failure to so file, or the failure to so pay, would
materially affect the Borrower's ability to perform its obligations hereunder,
except for any taxes, assessments, fees, charges or levies which are being
contested in good faith and for which reserves which are adequate under
generally accepted accounting principles have been established.
(o) No Plan has incurred a material "accumulated funding
deficiency" within the meaning of Section 302 of ERISA or Section 412 of the
Code whether or not such accumulated funding deficiency has been waived. No Plan
has engaged in any "prohibited transaction", as such term is defined in Section
4975 of the Code, as amended, that might result in a material liability of the
Borrower or any ERISA Affiliate to any person. No Plan Event has occurred that
might result in a material liability of the Borrower or any ERISA Affiliate to
the PBGC or to any Plan.
(p) None of the transactions contemplated in this Agreement
(including, without limitation, the Borrowings and the use of the proceeds
thereof) will violate or result in a violation of Section 7 of the Securities
Exchange Act of 1934, as amended (or any regulations issued pursuant thereto,
including, without limitation, Regulations G, T, U and X of the Board of
Governors of the Federal Reserve System).
(q) No contractual obligation of the Borrower or any
Subsidiary and no requirement of law materially adversely affects, or insofar as
the Borrower may reasonably foresee may so affect, the business, operations,
property or consolidated financial condition of the Borrower.
(r) All factual information heretofore or contemporaneously
furnished in writing by or on behalf of the Borrower to the Banks for purposes
of or in connection with this Agreement, the Grid Notes or any transaction
contemplated hereby is, and all other such factual information hereafter
furnished in writing by or on behalf of the Borrower to the Banks will be true
and accurate in every material respect on the date as of which such information
is dated or certified and as of the date of execution and delivery of this
Agreement and the Grid Notes, and not incomplete by omitting to state any
material fact necessary to make such information not misleading in view of the
circumstances under which such information is given.
(s) Exhibit C contains an accurate list as of the date hereof
of all the presently existing Subsidiaries of the Borrower and accurately sets
forth with respect to each Subsidiary the laws under which it is incorporated or
organized and the percentage of its voting stock owned by the Borrower or any
other Subsidiary (other than directors' qualifying shares). All of the issued
and outstanding shares of capital stock of such Subsidiaries have been duly
authorized and issued and are fully paid and nonassessable.
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15
8.2. Repetition of Representations and Warranties. Each of the
representations and warranties set forth in Section 8.1 shall be deemed to be
repeated on each Disbursement Date as if made at and as of such time.
9. COVENANTS
9.1. Use Or Proceeds. The Borrower shall use the proceeds of
the Advances for its general corporate purposes.
9.2. Governmental Authorizations. The Borrower shall obtain,
make and keep in full force and effect all authorizations from and registrations
with governmental authorities that may be required for the validity or
enforceability against the Borrower of this Agreement or the Grid Notes.
9.3. Financial Statements and Other Information. The Borrower
will deliver to the Agent, with a copy for each Bank, the following:
(a) as soon as available but in no event more than 45 days
after the end of each of the Borrower's fiscal quarters, consolidated (and
company only as to the Borrower and each Principal Subsidiary) balance sheets of
the Borrower and its Subsidiaries as of the close of such period and
consolidated (and company only as to the Borrower and each Principal Subsidiary)
statements of income and retained earnings and statements of cash flow from the
beginning of the then current fiscal year and from the beginning of such fiscal
quarter to the close of such period, certified by the chief financial officer of
the Borrower and accompanied by a certificate of said officer stating whether
any Default or Event of Default has occurred and, if so, stating the facts with
respect thereto, and providing calculations which establish the Borrower's
compliance with the requirements or restrictions imposed by Sections 9.11, 9.12
and 9.13;
(b) as soon as available but in no event more than 90 days
after the close of each of the Borrower's fiscal years, a copy of the annual
audit report relating to the Borrower and its Subsidiaries on a consolidated
basis and relating to the Borrower and New Jersey Natural Gas Company separately
in reasonable detail satisfactory to the Agent and in each case prepared in
accordance with generally accepted accounting principles by Deloitte & Touche or
other independent public accountants of recognized national standing, together
with financial statements (audited, in the case of the Borrower and New Jersey
Natural Gas Company) consisting of consolidated (and company only as to the
Borrower and each Principal Subsidiary) balance sheets of the Borrower and its
Subsidiaries as of the end of such fiscal year and consolidated (and company
only as to the Borrower and each Principal Subsidiary) statements of income and
cash flow, retained earnings, paid-in capital and surplus of the Borrower and
its Subsidiaries for such fiscal year;
(c) as soon as available but in no event more than 90 days
after the close of each of the Borrower's fiscal years, a letter or opinion of
the accountants who prepared the annual audit report relating to the Borrower
and its Subsidiaries stating whether anything in such accountants' examination
has revealed the occurrence of any event which constitutes a Default or Event of
Default and, if so, stating the facts with respect thereto;
(d) promptly upon receipt thereof, copies of any reports and
material sections of management letters submitted to the Borrower by such
accountants in connection with any annual or interim audit of the books of the
Borrower and its Subsidiaries, together with the Borrower's responses, if any;
(e) as soon as available, copies of all financial statements,
reports, notices and proxy statements sent by the Borrower in a general mailing
to all its stockholders, of all reports on Forms 10-Q, 8-K and 10-K under the
Securities Exchange Act of 1934, of all final prospectuses filed pursuant to
Rule 424(b) under the Securities Act of 1933 and of all other material
information filed by the Borrower with any securities exchange or with the
Commission or any governmental authority succeeding to any or all of the
functions of the Commission;
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(f) copies of the indentures pursuant to which any outstanding
debt of the Borrower or any Subsidiary is issued (other than indentures
previously delivered to the Agent); and
(g) such additional information, reports or statements as the
Agent from time to time may reasonably request.
Any financial statement, report or other information obtained
by any Bank pursuant to this Section 9.3, or by delivery by or on behalf of the
Borrower at or prior to the date hereof, other than documents which are publicly
available, shall be used by such Bank solely for purposes relating to such
Bank's participation in the Advances, provided that any Bank may disclose any
such information to any governmental authority, regulatory agency, legislature,
court, or any officer, subdivision or committee thereof, its independent
accountants or its counsel, or, if such Bank is directed to do so by order of
any court or any other governmental body having appropriate authority, to any
other Person.
9.4. Notices Of Default. The Borrower shall promptly give
notice to the Agent of each Default or Event of Default and each other event
that has or would be reasonably expected to have a materially adverse effect on
its ability to perform its obligations under this Agreement or the Grid Notes.
The notice shall specify the nature and period of existence of such event and
what action the Borrower has taken or is taking or proposes to take with respect
thereto.
9.5. Negative Pledge. (a) The Borrower will not, and will not
permit any Principal Subsidiary other than New Jersey Natural Gas Company to,
create or permit to exist any mortgage, lien or encumbrance, pledge of, or other
security interest in, or file or permit the filing of any financing statement
under the Uniform Commercial Code or similar notice under any other statute with
respect to, any asset of the Borrower or any Principal Subsidiary, except (i),
as set forth in Exhibit D hereto and (ii) security for indebtedness referred to
in Section 9.14 (iii) hereof.
(b) In case any mortgage, lien, encumbrance, pledge or
security interest arises in violation of Section 9.5(a), the Borrower shall make
or cause to be made provision whereby the Grid Notes and all other amounts due
from the Borrower hereunder will be secured equally and ratably with all other
obligations secured thereby, and in any case, the Banks shall have the benefit,
to the full extent that they may be entitled thereto under Applicable Law, of
any equitable mortgage, encumbrance, pledge or security interest so equally and
ratably securing the Grid Notes and such other amounts. Any violation of Section
9.5(a) shall nevertheless constitute an Event of Default.
9.6. Consolidation, Merger, Sale of Assets, etc. The Borrower
will not sell or otherwise dispose of any voting securities of any Principal
Subsidiary, and the Borrower will not, and will not permit any Principal
Subsidiary to, directly or indirectly, sell, lease or otherwise dispose of all
or substantially all of its properties and assets, or consolidate with or merge
into any other Person, or permit any other Person to consolidate with or merge
into it, except that
(a) a Principal Subsidiary may sell or otherwise transfer all
or substantially all of its properties and assets to the Borrower or to another
Subsidiary (which, if not already such, shall thereupon become a Principal
Subsidiary);
(b) a Principal Subsidiary may be consolidated with or merged
into any other Subsidiary (in which case the surviving Subsidiary shall remain
or become, as the case may be, a Principal Subsidiary);
(c) the Borrower may be consolidated with any other Person, or
any other Person may be merged into the Borrower, if
(i) the Borrower is the survivor of such merger or
consolidation and
(ii) upon the consummation of such merger or consolidation and
immediately after giving effect thereto (and deeming the Borrower to
have incurred at the time of such
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consummation all indebtedness of such other Person that then remains
outstanding), no Default or Event of Default would exist; and
(d) the Borrower may sell or otherwise transfer all or
substantially all of its properties and assets to another corporation, and shall
thereupon be released from all of its obligations under this Agreement and the
Grid Notes, if
(i) the acquiring corporation (A) shall be organized and
existing under the laws of the United States of America or any state
thereof or the District of Columbia, and (B) shall expressly assume the
obligations of the Borrower under this Agreement and the Grid Notes
under documentation satisfactory in form and substance to the Banks;
and
(ii) immediately after giving effect to such transaction and
such assumption (and deeming all Indebtedness of such acquiring
corporation outstanding prior to such transaction and remaining
outstanding immediately after such transaction to have been incurred by
such corporation as part of such transaction and such assumption), no
Default or Event of Default would exist
9.7. Preservation of Existence, Rights and Franchises; Conduct
of Business. The Borrower shall at all times preserve and keep in full force and
effect its corporate existence and that of each of its Principal Subsidiaries,
except as permitted by Section 9.6. The Borrower shall at all times preserve and
keep in full force and effect its rights and franchises material to its business
and those of each of its Principal Subsidiaries, and the Borrower shall, and
shall cause each of its Principal Subsidiaries to, take all action necessary to
comply with the rules and regulations, as in effect from time to time, of any
governmental authority to which it is subject, the noncompliance with which
would reasonably be expected to have a material adverse effect on its ability to
perform its obligations under this Agreement or the Grid Notes; provided,
however, that nothing in this Section 9.7 shall prevent a consolidation, merger
or transfer of assets that is permitted by Section 9.6, if immediately after,
and giving effect to, such transaction, the Borrower and its Principal
Subsidiaries would be in compliance with this Section 9.7.
9.8. Insurance. The Borrower and each Principal Subsidiary
shall maintain insurance on their property with financially sound and reputable
insurers to the extent and against the risks customary for companies in similar
businesses.
9.9. ERISA Compliance. The Borrower shall not take any action
or omit to take any action, and shall not permit any ERISA Affiliate within its
control to take any action or omit to take any action, with respect to any Plan,
that under ERISA might result in a lien or charge upon the property of the
Borrower or might otherwise materially adversely affect the business, profits,
properties or condition (financial or otherwise) of the Borrower. Without
limiting the generality of the foregoing, the Borrower shall not permit, and
shall not permit any ERISA Affiliate within its control to permit, any Plan to
(a) engage in any "prohibited transaction", as such term is defined in Section
4975 of the Code without securing an exemption therefor or (b) incur any
material "accumulated funding deficiency", as such term is defined in Section
302 of ERISA, whether or not waived.
9.10. Payment of Taxes, etc. The Borrower and each Principal
Subsidiary shall pay and discharge, or cause to be paid or discharged, as the
same may become due and payable, all taxes, assessments and other governmental
charges, levies or claims of any kind against it or on or with respect to any of
its property, as well as claims of any kind which, if unpaid, might become a
lien (except as permitted by Section 9.5) upon any or its properties; provided,
however. that the foregoing shall not require the Borrower or any Principal
Subsidiary to pay or discharge, or cause to be paid or discharged, any such tax,
assessment, charge, levy, claim or lien so long as it shall contest the validity
thereof in good faith by appropriate proceedings and shall have set aside on its
books reserves with respect thereto which are adequate under generally accepted
accounting principles.
9.11. Borrower Debt. The Borrower will not incur or permit to
exist Indebtedness of the Borrower to exceed 45%, of the sum of the Borrower's
tangible net worth and its Long Term Debt. As
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used herein, "tangible net worth" means the excess of total assets over total
liabilities, total assets and total liabilities each to be determined as to both
classification of items and amounts in accordance with generally accepted
accounting principles consistently maintained by the Borrower in the preparation
of the financial statements referred to in Section 9.3(b); provided, that there
shall be excluded from total assets (i) all assets which would be classified as
intangible assets under generally accepted accounting principles, including but
not limited to goodwill and deferred charges, (ii) cash set apart and held in a
sinking or other analogous fund established for the purpose of redemption or
other retirement of capital stock, (iii) leasehold improvements, and (iv)
applicable reserves, allowances and other similar properly deductible items.
9.12. Interest Coverage. The Borrower will have in each of its
fiscal years net earnings before income taxes and interest expense in an amount
at least 2 times interest charges during such fiscal year with respect to all
Indebtedness of the Borrower. The Borrower will ensure that New Jersey Natural
Gas Company will comply with item (15) of Section 4.01 B of the Indenture in
connection with the issuance of any additional series of bonds.
9.13. Debt Ratio. The Borrower will cause New Jersey Natural
Gas Company at all times to comply with Section 9.18 of the Indenture whether or
not any Series G Bonds (as defined in the Indenture) are outstanding. The
Borrower will not permit all Indebtedness of the Borrower and its Subsidiaries
on a consolidated basis to exceed 65% of the sum of (x) Indebtedness of the
Borrower and its Subsidiaries on a consolidated basis and (y) consolidated
tangible net worth. As used herein, "consolidated tangible net worth" means the
excess of total consolidated assets over total consolidated liabilities, total
consolidated assets and total consolidated liabilities each to be determined as
to both classification of items and amounts in accordance with generally
accepted accounting principles consistently maintained by the Borrower in the
preparation of the financial statements referred to in Section 9.3(b); provided,
that there shall be excluded from total consolidated assets (i) all assets which
would be classified as intangible assets under generally accepted accounting
principles, including but not limited to goodwill and deferred charges, (ii)
cash set apart and held in a sinking or other analogous fund established for the
purpose of redemption or other retirement of capital stock, (iii) leasehold
improvements, and (iv) applicable reserves, allowances and other similar
properly deductible items; and provided further, that there shall be excluded
from total consolidated liabilities deferred income taxes.
9.14. Subsidiary Borrowing. The Borrower will not permit New
Jersey Natural Resources Company and NJNR Pipeline Company, or Commercial Realty
& Resources Corp. to incur or suffer to exist Indebtedness, except (i)
indebtedness to the Borrower or another Subsidiary, and (ii) indebtedness not
exceeding $250,000 in the aggregate for each such Subsidiary.
9.15. Holding Company Act Compliance. The Borrower will
maintain in effect the exemption described in Section 8.1 (m) hereof and will
comply (and will cause each Subsidiary to comply) in all material respects with
the provisions of the Holding Company Act to which it is subject.
10. EVENTS OF DEFAULT
10.1. Events of Default. If one or more of the following
events of default (each an "Event of Default") shall occur and be continuing,
the Agent and the Banks shall be entitled to the remedies set forth in Section
10.2:
(a) the Borrower fails to pay the principal amount of any
Advance when due or interest on any Advance or any other amount payable
hereunder within 5 days after such interest or other amount becomes due and
payable;
(b) the Borrower defaults in the performance of or compliance
with any covenant, obligation or term contained herein or in any Grid Note and,
if such default is capable of remedy, such default has not been remedied within
30 days after the Agent shall have given the Borrower written notice of such
default;
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(c) any representation or warranty made in writing by or on
behalf of the Borrower herein or delivered in connection herewith at any time
proves to have been incorrect in any material respect as of the date made or
deemed to have been repeated;
(d) any Indebtedness (other than the Advances) of the Borrower
or any of its Subsidiaries in excess of $5,000,000 is not paid when due or
becomes or is declared to be due and payable prior to the expressed maturity
thereof, or there shall have occurred an event which would cause any such
Indebtedness to become, or allow any such Indebtedness to be declared to be, due
and payable;
(e) the Borrower or any Principal Subsidiary makes an
assignment for the benefit of creditors, or admits in writing its inability to
pay its debts as they become due, or commences a voluntary case under any
applicable bankruptcy, insolvency or other similar law, or files any petition or
answer seeking for itself any reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar relief under any present or
future statute, law or regulation relating to creditors' rights, or a decree or
order for relief is entered in respect of the Borrower or any Principal
Subsidiary in an involuntary case under any applicable bankruptcy, insolvency or
other similar law, or the Borrower or any Principal Subsidiary files any answer
admitting or not contesting the material allegations of a petition filed against
the Borrower or any Principal Subsidiary in any such proceeding, or seeks or
consents to or acquiesces in the entry of an order for relief or the appointment
of, or taking possession by, any trustee, receiver, assignee, custodian,
secuestrator or liquidator of the Borrower or such Principal Subsidiary or of
all or a substantial part of the properties of the Borrower or such Subsidiary;
(f) within 60 days after the commencement of an action against
the Borrower or any Principal Subsidiary seeking any reorganization,
arrangement, composition, readjustment, liquidation, dissolution or similar
relief under any present or future statute, law or regulation, such action is
not dismissed and all orders or proceedings thereunder affecting the operations
or the business of the Borrower or such Principal Subsidiary are not stayed, or
if the stay of any such order or proceeding is thereafter set aside, or if,
within 60 days after the appointment without the consent or acquiescence of the
Borrower or any Principal Subsidiary of any trustee, receiver, assignee,
custodian, sequestrator or liquidator of the Borrower or such Principal
Subsidiary or all or any substantial part of the properties of the Borrower or
such Principal Subsidiary, such appointment is not vacated;
(g) any governmental authority or court takes any action that,
in the reasonable opinion of the Majority Banks, materially adversely affects
the business, operations, property or financial condition of the Borrower or any
Principal Subsidiary or the ability of the Borrower to perform its obligations
under this Agreement or the Grid Notes;
(h) final judgments in an aggregate amount of $500,000 or more
are entered against the Borrower or any Principal Subsidiary and such judgments
remain undischarged, and the execution thereof unstayed for a period of more
than 60 days; or
(i) any Plan or Plans are involuntarily terminated, or a
trustee is appointed to administer any such Plan or Plans under Section 4042 of
ERISA or the PBGC shall institute proceedings to terminate, or to have a trustee
appointed to administer, any such Plan or Plans, and such proceeding shall not
be dismissed within 30 days, or the Borrower or any Subsidiary incurs a
withdrawal liability with respect to any such Plan or Plans under Section 4201
of ERISA, but only if such termination, appointment, institution of proceedings,
or withdrawal liability would result in a liability of the Borrower or any
Subsidiary that would be material to the consolidated financial condition of the
Borrower.
10.2. Default Remedies. If any Event of Default (other than an
Event of Default specified in Section 10.1(e) or 10.1(f)) shall occur and be
continuing, the Agent may with the consent of the Majority Banks, and shall upon
the request of the Majority Banks, (a) declare the obligations of each Bank
hereunder to be terminated, whereupon such obligations shall forthwith
terminate, and (b) declare all amounts payable hereunder or under the Grid Notes
by the Borrower that would otherwise be due after the date of such termination
to be immediately due and payable, whereupon all such amounts shall
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become immediately due and payable, all without diligence, presentment, demand
of payment, protest or notice of any kind, which are expressly waived by the
Borrower. If an Event of Default specified in Section 10.1(e) or 10.1(f) occurs,
the obligations of each Bank hereunder shall be immediately terminated and all
amounts payable hereunder or under the Grid Notes by the Borrower that would
otherwise be due after the date of such Event of Default shall become
immediately due and payable without any declaration or other act on the part of
the Agent or the Banks.
10.3. Right of Setoff. If any amount payable hereunder is not
paid as and when due, the Borrower authorizes each Bank to proceed at any time
and from time to time, to the fullest extent permitted by law, without prior
notice or demand, by right of setoff, banker's lien, counterclaim or otherwise,
against any assets of the Borrower which may at any time be in the possession of
such Bank or any of its affiliates, at any branch or office, and/or against any
other indebtedness at any time owing by such Bank to or for the credit or the
account of the Borrower to the full extent of all amounts payable to the Banks
hereunder, whether or not such amounts shall be due and payable. Any Bank so
proceeding shall forthwith give notice to the Agent and the Borrower of any
action taken by such Bank pursuant to this Section , provided that the failure
to give such notice shall not affect the validity of any such action.
10.4. Rights Not Exclusive. The rights provided for herein are
cumulative and are not exclusive of any other rights, powers, privileges or
remedies provided by law.
11. PAYMENTS; COMPUTATIONS.
11.1. Making of Payments. Each payment by the Borrower under
this Agreement or the Grid Notes shall be made in Dollars, in same-day funds or
such other funds as the Agent may at the time determine to be customary for the
settlement in New York City of international banking transactions denominated in
Dollars, by 11:00 a.m. New York City time on the date such payment is due, to
the Agent by deposit to such account as the Agent may have last designated by
notice to the Borrower.
11.2. Computations. Interest and the commitment fees payable
hereunder shall be computed on the basis of a 360-day year and actual days
elapsed.
12. APPLICATION, DISTRIBUTION AND SHARING OF PAYMENTS.
12.1. Sharing of Payments. If any Bank at any time obtains
total or partial payment of any amount payable hereunder other than pursuant to
Section 4.2, 15.1 or 15.2 or by distribution by the Agent pursuant to Section
6.1, such Bank shall forthwith pay to the Agent the amount so obtained, and the
Agent shall apply and distribute such amount were a payment was made by the
Borrower; provided, however, that, if any Bank at any time obtains total or
partial payment of any amount payable thereunder by exorcising a right of
setoff, banker's lien or counterclaim, such Bank shall forthwith purchase from
the other Banks such participations in the Aggregate Advances made by such other
Banks as shall be necessary to cause such purchasing Bank to share such amount
ratably with such other Banks; and provided further, however, that, if all or
any of such amount is thereafter recovered from such purchasing Bank, the
purchase shall be rescinded and the purchase price restored to the extent of
such recovery, but with such adjustments of interest as shall be equitable. Any
Bank so purchasing a direct participation from another Bank pursuant to this
Section 12.1 may, to the fullest extent permitted by law, exercise all of its
rights of collection with respect to such participation as fully as if such Bank
were the direct creditor of the Borrower in the amount of such participation.
Nothing herein contained shall in any way affect the right of any Bank to retain
any amount obtained with respect to indebtedness other than indebtedness under
this Agreement or any Grid Note.
13. THE AGENT
13.1. The Agent. (a) Each Bank authorizes the Agent to
exercise on its behalf the powers specifically delegated to the Agent herein and
all other powers reasonably incidental thereto. The relationship between the
Agent and each Bank is that of agent and principal only, and nothing herein
shall
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be deemed to constitute the Agent a trustee for any Bank or to impose on the
Agent any obligations other than those for which express provision is made
herein.
(b) Neither the Agent nor any director, officer, employee or
agent of the Agent shall have any responsibility for (i) any failure of the
Borrower to fulfill any obligation under this Agreement or the Grid Notes, (ii)
the truth of any representation or warranty made by the Borrower in this
Agreement or any other document delivered in connection with this Agreement or
(iii) the validity or enforceability against the Borrower of this Agreement or
the Grid Notes.
(c) Neither the Agent nor any of the directors, officers,
employees or agents of the Agent shall have any responsibility for any action
taken or omitted to be taken in connection with this Agreement or the Grid
Notes, except for gross negligence or willful misconduct.
(d) The Agent shall be entitled to rely in good faith on any
document believed by it to be genuine and to have been sent or signed by the
proper person and on the opinions and statements of any legal counsel or other
professional advisors selected by it and shall not be liable to any other party
for any consequence of any such reliance.
(e) Each Bank acknowledges that it has made such independent
investigation and evaluation of the creditworthiness of the Borrower as it has
judged appropriate and prudent in connection with the making of its Aggregate
Advances. Except as expressly provided herein, the Agent shall have no duty to
provide any Bank with any credit or other information with respect to the
Borrower.
(f) The Agent and its affiliates may, without liability to
account to any Bank therefor, make loans to, accept deposits from, and generally
engage in any kind of business with the Borrower as though it were not the
Agent.
(g) The Agent may treat each Bank as the holder of each Grid
Note delivered for such Bank pursuant to this Agreement for all purposes
whatsoever unless and until the Agent receives notice, in form and substance
satisfactory to it, of a transfer or assignment thereof and the written
agreement of the person or persons to whom such Grid Note has been transferred
or assigned to be bound by the terms hereof.
(h) The Agent may resign at any time by giving written notice
to the Banks and the Borrower or be removed with or without cause by the
Majority Banks by notice to the Agent and the Borrower. Upon the giving of
either such notice, the Majority Banks shall have the right to appoint another
Bank as successor Agent. If a successor Agent has not been so appointed and
accepted such appointment on or before the sixtieth day after such notice is
given, the retiring Agent may appoint a successor Agent. Upon the acceptance of
appointment as Agent hereunder by a successor Agent and notice of such
acceptance to the Borrower and the Banks, such successor agent shall succeed to
and become vested with all the rights, powers, privileges and duties of the
retiring Agent, and the retiring Agent shall be discharged from its duties and
obligations under this Agreement. Notwithstanding the resignation or removal of
any retiring Agent hereunder, the provisions of this Section 13 shall continue
to inure to the benefit of such Agent in respect of any action taken or omitted
to be taken by such Agent in its capacity as such.
13.2. Covenant to Reimburse. Each Bank shall reimburse the
Agent (to the extent not reimbursed by the Borrower) ratably in accordance with
the proportionate share of such Bank determined, if the Agent seek such
reimbursement, with respect to a time when there are no Advances outstanding
hereunder, on the basis of the respective Commitments of the Banks, or, it
thereafter, on the basis of respective principal amounts of the Aggregate
Advances maintained at the time for all expenses incurred by the Agent in the
exercise of its responsibilities as Agent, including, without limitation, the
reasonable fees and expenses of legal and other professional advisors.
13.3. Non-Receipt of Funds by the Agent. (a) Unless the Agent
has received written notice from the Borrower prior to the date on which any
payment by the Borrower is due hereunder that
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the Borrower does not intend to make such payment as and when due, the Agent may
assume that the Borrower has so made such payment and, in reliance upon such
assumption, the Agent may (but shall not be required to) make available to each
Bank on the date such payment is due an amount equal to the portion of such
assumed payment that such Bank is entitled to hereunder. If the Borrower has not
in fact made such payment to the Agent, each such Bank shall, on demand, repay
to the Agent the amount so made available to it, together with interest on such
amount accrued for each day from and including such payment date to but
excluding the date of such repayment at a rate per annum determined and
certified by the Agent to be its cost of funds.
(b) On each Disbursement Date, the Agent shall be entitled to
assume that each Bank (other than any Bank that has given the Agent notice to
the contrary) has made funds available to the Agent as required by Section 2.3,
and the Agent, acting in reliance upon such assumption, may (but shall not be
required to) transfer funds to the Borrower in an amount equal to the aggregate
of the respective amounts due from all Banks from which no such notice has been
received. If any Bank that has not given such notice fails to make funds
available as required by Section 2.3 and the Agent has credited to the Borrower
an amount equal to such aggregate, the Agent shall be entitled at its option to
recover an amount equal to the expected Advance of such Bank on demand from
either such Bank or the Borrower (without prejudice to the rights of the
Borrower against such Bank) together with interest on such amount accrued for
each day from and including the Disbursement Date, to but excluding the date of
such recovery at a rate per annum determined and certified by the Agent to be
its cost of funds.
14. INDEMNIFICATION
14.1. Expenses. The Borrower shall reimburse the Agent on
demand for all reasonable expenses (including the reasonable fees and expenses
of the Agent's counsel) incurred as a consequence of, or in connection with the
negotiation, preparation or execution of this Agreement or any amendment to this
Agreement and the preservation or enforcement of any right of the Agent or any
Bank under this Agreement or the Grid Notes.
14.2. Other Costs. If the Borrower (a) fails, after giving the
notice referred to in Section 2.2, to fulfill the conditions set forth in
Section 7 at or before the respective times specified for their fulfillment or
otherwise defaults in its irrevocable commitment pursuant to Section 2.2, (b)
fails to pay any amount payable hereunder as and when due or (c) makes, for any
reason whatsoever, any prepayment of principal of any Advance on any day other
than the last day of an Interest Period, the Borrower shall reimburse each Bank
on demand for all losses, additional costs or expenses, that it may reasonably
incur as a consequence thereof including, without limitation, any loss incurred
by each Bank in connection with its reemployment of the amount so prepaid or of
those funds acquired by each Bank to fund an Advance, as the case may be, but
excluding any loss of anticipated profits.
15. CHANGES IN APPLICABLE LAW; INCREASED COSTS
15.1 Changes in Applicable Law. Each Bank shall forthwith
advise the Agent and the Borrower if it determines that:
(a) after the date hereof, the adoption of or any change in
any Applicable Law or in the interpretation thereof by any governmental
or other regulatory authority administering such Applicable Law or by
any court of competent jurisdiction, and/or
(b) compliance by such Bank with any requirement or directive
arising after the date hereof from any central bank or other regulatory
authority administering Applicable Law (whether or not such requirement
or directive has the force of law),
makes it (or makes it apparent that it will become) unlawful to comply with, or
otherwise prevents such Bank from complying with, some or all of the obligations
contemplated by this Agreement. Such notice shall specify the obligations whose
performance is thereby prevented. Such notice may, at the option of such Bank,
demand prepayment by the Borrower of any outstanding Advance made by such Bank
if in
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23
accordance with this Section 15.1 it is unlawful for such Bank to continue to
fund or maintain such Advance or any portion thereof.
The obligations so specified in such notice shall forthwith be
canceled or suspended to the extent specified in such notice, effective whenever
such performance is so prevented and, if so demanded in such notice, the
Borrower shall, on or prior to the later of (i) two Business' Days after receipt
of such notice or (ii) the date as of which such performance is prevented,
prepay the outstanding amount specified therein in full, or any lesser portion
thereof necessary to eliminate such situation, with accrued interest thereon.
Each prepayment made by the Borrower pursuant to this Section 15.1 shall be
distributed to the Bank entitled thereto.
15.2. Increased Costs. If as a result of:
(a) after the date hereof, the adoption of or any change in
any Applicable Law or in the interpretation thereof by any governmental
or other regulatory authority administering such Applicable Law or by
any court of competent jurisdiction, and/or
(b) compliance by any Bank with any requirement or directive
arising after the date hereof from any central bank or other fiscal,
monetary or any other regulatory authority administering Applicable Law
(whether or not such requirement or directive has the force of law),
(x) the capital required to be maintained by any Bank as a result of its
Commitment or its Advances shall be increased such that the rate of return on
such Bank's capital with respect to its Commitment and Advances is reduced below
that which such Bank could have achieved but for such adoption, change or
compliance (taking into account such Bank's policies regarding capital
adequacy), or (y) there shall be any increase in the cost to any Bank of making,
maintaining or giving effect to its obligations under this Agreement (including,
without limitation, any increased costs resulting from any reserve requirements)
or making or maintaining any Advance or any reduction in any amounts receivable
by any Bank under this Agreement (other than such an increase in costs or
reduction in amounts receivable attributable to (i) a tax on or measured by the
net income of such Bank imposed by the jurisdiction in which it is constituted
or doing business; or (ii) without prejudice to such Bank's rights under ▇▇▇▇▇▇▇
▇.▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ Tax or any tax described in clause (i) imposed by withholding
with respect to a payment hereunder); then the Borrower shall from time to time,
forthwith on receipt of a certificate from such Bank, pay to such Bank such
amounts as are certified therein to be sufficient to indemnify such Bank against
such increased cost, reduction in any amount so receivable and/or reduction in
rate of return on capital. The certificate provided by the Bank shall be prima
facie evidence of the amounts claimed (provided that such certificate is
accompanied by a statement of the details on which the calculation of such
amounts was based).
15.3. Alternative Arrangements. If a determination or
certification in accordance with Section 15.1 or 15.2 above is made by, or any
of the circumstances specified in Section 6.1, 15.1 or 15.2 above shall arise in
relation to, any Bank, such Bank shall, in consultation with the Borrower,
during a period ending not later than 30 days after the giving of such notice
under Section 15.1 or such certificate under Section 15.2 or after the date on
which any tax under Section 6.1 becomes payable, as the case may be, use its
reasonable endeavors to make alternative arrangements that remove or minimize
the application of Section 6.1 or this Section 15, as the case may be, and that
are not in the sole judgment of such Bank otherwise disadvantageous to it.
16. GENERAL
16.1. Choice of Law. This Agreement shall be governed by and
construed in accordance with the law of the State of New York.
16.2. Jurisdiction. (a) Any action or proceeding relating in
any way to this Agreement or any Grid Note may be brought and enforced in the
courts of the State of New York or of the United States of America for the
Southern District of New York, and the Borrower irrevocably submits to the
jurisdiction of each such court. Any process or other legal summons for the
purpose of any such action or
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24
proceeding may be served by mailing a copy thereof by registered mail addressed
to the Borrower as provided for notices hereunder.
(b) The Borrower irrevocably waives, to the fullest extent
permitted by law, any objection that it may now or hereafter have to the laying
of venue of any such action or proceeding relating in any way to this Agreement
or any Grid Note brought in the Supreme Court of the State of New York, County
of New York, or the United States District Court for the Southern District of
New York and any claim that any such action or proceeding brought in any such
court has been brought in an inconvenient forum.
(c) The Borrower further irrevocably waives, to the fullest
extent permitted by Applicable Law, any claim that any action or proceeding
commenced by the Agent or any Bank relating in any way to this Agreement or any
Grid Note should be dismissed or stayed by reason, or pending the resolution, of
any action or proceeding commenced by the Borrower relating in any way to this
Agreement or any Grid Note, whether or not commenced earlier. To the fullest
extent permitted by Applicable Law, the Borrower shall take all measures
necessary for any such action or proceeding commenced by the Agent or any Bank
to proceed to judgment prior to the entry of judgment in any such action or
proceeding commenced by the Borrower.
16.3. Loan Currency. Each reference in this Agreement to
Dollars is of the essence. The obligation of the Borrower in respect of any
amount due under this Agreement or the Grid Notes shall, notwithstanding any
payment in any other currency (whether pursuant to a judgment or otherwise), be
discharged only to the extent of the amount in Dollars that the person entitled
to receive such payment may, in accordance with normal banking procedures,
purchase with the sum paid in such other currency (after premium and costs of
exchange) on the Business Day immediately following the date on which such
person receives such payment. If the amount in Dollars that may be so purchased
for any reason falls short of the amount originally due, the Borrower shall pay
such additional amounts, in Dollars, as may be necessary to compensate for such
shortfall. Any obligation of the Borrower not discharged by such payment shall
be due as a separate and independent obligation and, until discharged as
provided herein, shall continue in full force and effect.
16.4. Notices. Except as otherwise expressly provided herein,
all notices pursuant to this Agreement shall be given by telecopier, telex cable
or by notice in writing hand-delivered or by airmail, postage prepaid. All such
notices shall be sent to the telecopier, telex number or address (as the case
may be) specified for the intended recipient in Schedule I, or, in the case of
the Borrower, to New Jersey Resources Corporation, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇.▇. ▇▇▇
▇▇▇▇, ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Senior Vice President and Chief
Financial Officer, or, in the case of the Agent, to Union Bank of Switzerland,
New York Branch, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ Attention: ▇▇▇▇▇▇ ▇.
▇▇▇▇▇, ▇▇., or to such other number of addresses as such recipient say have last
specified by notice to the other parties. All such notices shall be effective
upon receipt.
16.5. Remedies and Waivers. No failure or delay on the part of
the Agent or any Bank in exercising any right hereunder shall operate as a
waiver of, or impair, any such right. No single or partial exercise of any such
right shall preclude any other or further exercise thereof or the exercise of
any other right. No waiver of any such right shall be effective unless given in
writing. No waiver of any such right shall be deemed a waiver of any other right
hereunder.
16.6. Amendment. This Agreement may be amended only by an
instrument in writing executed by the Borrower and the Majority Banks; provided,
however, that execution of such instrument by the Borrower and all the Banks
shall be required for any amendment that (a) subjects the Banks to any
additional obligation hereunder, (b) reduces the Advances or any fee payable
hereunder, (c) alters any provision of Section 4, (d) postpones any date fixed
for, or changes the currency of, payment of the Advances or any other amount
payable by the Borrower under this Agreement or any of the Grid Notes, (e)
changes the number of Banks, or the manner of determining the number of Banks,
required for the Banks or any of them to take any action hereunder or (f) alters
Sections 6, 12, 15 or this Section 16.6; and
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25
provided further, that amendment of any provision of this Agreement affecting
the rights or duties of the Agent hereunder shall, in addition, require
execution of such instrument by the Agent.
16.7. Assignment; Participations. (a) This Agreement shall be
binding upon and inure to the benefit of the Borrower, the Agent and each Bank
and their respective successors and assigns; provided, however, that the
Borrower may not assign any of its rights or obligations under this Agreement
without the prior written consent of the Agent and all the Banks.
(b) Any Bank may at any time assign or otherwise transfer its
Grid Note or any of its rights or obligations hereunder in whole or in part;
provided, however, that if the assignee or transferee is other than an office,
Subsidiary or affiliate of such Bank, such assignment or transfer shall not be
made without the consent of the Borrower and notification to the Agent; and
provided further, that no such assignment or transfer shall result in any
additional liability of the Borrower on account of United States Taxes or for
increased costs under Section 6.1 or 15.2 or violate any applicable provision of
the securities laws of the United States or any state thereof. The Borrower
shall, from time to time at the request of any Bank, execute and deliver such
documents as may be necessary to give full force and effect to such assignment
or transfer, including, without limitation, a new Grid Note in exchange for any
Grid Note held by such Bank. If any Bank assigns or otherwise transfers any of
its rights or obligations hereunder, subject to Section 13.1(h), each reference
in this Agreement to such Bank shall be deemed to be a reference to such Bank
and the person or persons to whom such rights or obligations were assigned or
transferred to the extent of their respective interests.
(c) Any Bank may at any time grant to one or more banks or
other institutions (each a "Participant") participating interests in its
Commitment or any or all of its Advances provided that no Bank shall grant a
participation in its Commitment unless (A) such participation involves an amount
equal to $1,000,000 or any greater multiple of $500,000 and (B) after giving
effect thereto such Bank has either no remaining unparticipated Commitment or an
unparticipated Commitment of at least $1,000,000. In the event of any such grant
by a Bank of a participating interest to a Participant, such Bank shall remain
responsible for the performance of its obligations hereunder, and the Borrowers
and the Agent shall continue to deal solely and directly with such Bank in
connection with such Bank's rights and obligations under this Agreement. Any
agreement pursuant to which any Bank may grant such a participating interest
shall provide that such Bank shall retain the sole right and responsibility to
enforce the obligations of the Borrower hereunder including, without limitation,
the right to approve any amendment, modification or waiver of any provision of
this Agreement, provided that such participation agreement may provide that such
Bank will not agree to any modification, amendment or waiver of this Agreement
described in clause (a), (b), (c) or (d) of Section 16.6 without the consent of
the Participant. Each Participant shall be entitled to the benefits of Sections
6, 14 and 15 hereof to the extent that such Bank would be entitled to such
benefits if the participation had not been granted.
16.8. Determinations by the Agent or any Bank. Except as
otherwise provided herein, each determination by the Agent or any Bank hereunder
shall, in the absence of manifest error, be conclusive and binding on the
parties.
16.9. Survival. The obligations of the Borrower under Section
6.1, Section 6.2, Section 14 and Section 15 shall survive the repayment of the
Advances and the cancellation of the Grid Notes and the termination of the other
obligations of the Borrower hereunder.
16.10. Severability of Provisions. Any provision Of this
Agreement that is prohibited or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof or
affecting the validity or enforceability of such provision in any other
jurisdiction.
16.11. Counterparts. This Agreement may be executed in any
number of counterparts, and all such counterparts taken together shall be deemed
to constitute one and the same agreement.
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26
16.12. Integration of Terms. This Agreement contains the
entire agreement of the parties relating to the subject matter hereof and
supersedes all oral statements and prior writings with respect thereto.
IN WITNESS WHEREOF, the parties have caused this Agreement to
be duly executed and delivered in New York City as of the date and year first
written above.
Borrower:
NEW JERSEY RESOURCES CORPORATION
By: /S/ ▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇
-----------------------------------
Agent and Bank:
UNION BANK OF SWITZERLAND
New York Branch
By: /S/ ▇▇▇▇▇▇ ▇ ▇▇▇▇▇
-----------------------------------
By:
-----------------------------------
Bank:
THE BANK OF TOKYO MITSUBISHI, LTD.
By: /S/ ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇
-----------------------------------
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SCHEDULE I
DETAILS OF BANKS AND COMMITMENTS
Union Bank of Switzerland, New York Branch:. Commitment: $20,000,000
Lending Branch: New York
Address for notices: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇.
Telex No: 129299
Fax: ▇▇▇-▇▇▇-▇▇▇▇
The Bank Of Tokyo Mitsubishi, Ltd. Commitment: $10,000,000
Lending Branch:
Address for notices: ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telex No: 229049
Fax: ▇▇▇-▇▇▇-▇▇▇▇
28
EXHIBIT A
PROMISSORY NOTE
U.S. $ 20,000,000 00 Dated: October 1, 1996
FOR VALUE RECEIVED, the undersigned, NEW JERSEY RESOURCES
CORPORATION, a New Jersey corporation (the "Borrower"), HEREBY PROMISES TO PAY
to the order of
UNION BANK OF SWITZERLAND, NEW YORK BRANCH
(the "Bank") for the account of its Lending Office (as defined in the Credit
Agreement referred to below) the principal amount of each Advance (as defined
below) owing to the Bank by the Borrower pursuant to the Credit Agreement (as
defined below) on the Termination Date (as defined in the Credit Agreement).
The Borrower promises to pay interest on the unpaid principal
amount of each Advance from the date of such Advance until such principal amount
is paid in full, at such interest rates, and payable at such times, as are
specified in the Credit Agreement.
Both principal and interest are payable in lawful money of the
United States of America to Union Bank of Switzerland, New York Branch ("UBS"),
as Agent, at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, in same-day funds. Each
Advance owing to the Bank by the Borrower and the maturity thereof, and all
payments made on account of principal thereof, shall be recorded by the Bank
and, prior to any transfer hereof, endorsed on the grid attached hereto which is
part of this Promissory Note.
This Promissory Note is one of the Notes referred to in, and
is entitled to the benefits of, the Revolving Credit Agreement dated as of
August 27, 1996 (the "Credit Agreement"), among the Borrower, the Bank and
certain other banks parties thereto, and UBS, as Agent for the Bank and such
other banks.
The Credit Agreement, among other things, (i) provides for the
making of advances (the "Advances") by the Bank to the Borrower from time to
time in an aggregate amount not to exceed at any time outstanding the U.S.
dollar amount first above mentioned, the indebtedness of the Borrower resulting
from each such Advance being evidenced by this Promissory Note, and (ii)
contains provisions for acceleration of the maturity hereof upon the happening
of certain stated events and also for prepayments on account of principal hereof
prior to the maturity hereof upon the terms and conditions therein specified.
This Promissory Note shall be governed by, and construed in
accordance with, the laws of the State of New York.
NEW JERSEY RESOURCES CORPORATION
By: ______________________________
Title:
29
GRID
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AMOUNT OF UNPAID PRINCIPAL
DISBURSEMENT DATE AMOUNT OF ADVANCE MATURITY OF PRINCIPAL PAID BALANCE NOTATION MADE BY
ADVANCE OR PREPAID
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30
[OPINION OF COUNSEL]
Union Bank of Switzerland
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Re: $30,000,000 Revolving Credit and Term Loan for
New Jersey Resources Corporation
New Jersey Resources Corporation (hereinafter the "Company") or
"Borrower") has entered into a revolving Credit and Term Loan Agreement
(hereinafter the "Agreement") with UNION BANK OF SWITZERLAND, New York Bank, as
agent (hereinafter the "Agent"), and UNION BANK OF SWITZERLAND, New York Branch
and THE BANK OF TOKYO MITSUBISHI, LTD., (hereinafter the "Banks").
We are New Jersey counsel to the Company and in that capacity are
familiar with the affairs of the Company, including those relating to the
transactions that are contemplated by the Agreement. We have examined such
corporate records of the Company and other instruments, documents and
certificates as we have deemed necessary for a basis of this opinion which is
being rendered to you as part of the Agreement. We have also engaged in
conferences with officers of the Company and have ascertained or verified to our
satisfaction such additional facts and made such further investigation as we
deemed necessary as a basis for this opinion. Our opinion in this regard is
limited to the laws of the State of New Jersey. Based upon the foregoing we are
of the opinion that:
(i). The Borrower is a corporation duly organized and validly existing
under the law of New Jersey and has the power and authority to own its property,
to conduct its business as currently conducted and to consummate the
transactions contemplated in the Agreement.
(ii). Each Subsidiary is an entity duly organized and validly existing
under the law of its jurisdiction of incorporation or organization and has the
power and authority to own its property and to conduct its business as currently
conducted.
(iii). The Borrower has taken all necessary action to authorize the
execution and delivery of the Agreement and all other documents to be executed
and delivered by it in connection with the Agreement, the performance of its
obligations and under the Agreement and Grid Notes and the consummation of the
transactions contemplated in the Agreement.
(iv). The Agreement has been duly executed and delivered by the
Borrower and constitutes, and each of the Grid Notes, when duly executed and
delivered by the Borrower, will constitute, a legal, valid and binding
obligation of the Borrower, enforceable against the Borrower in accordance with
its terms, subject to applicable bankruptcy, insolvency, moratorium and similar
laws affecting creditors' rights generally, and subject, as to enforceability,
to general principles of equity (regardless of whether enforcement is sought in
a proceeding in equity or at law).
(v). All governmental authorizations and actions of any kind necessary
to authorize the Advances or required for the validity or enforceability against
the Borrower of the Agreement or Grid Notes have been obtained or performed and
are valid and subsisting in full force and effect.
(vi). No consent or approval of, or notice to, any creditor of the
Borrower is required by the terms of any agreement or instrument evidencing any
indebtedness of the Borrower for the execution or delivery of, or the
performance of the obligations of the Borrower under the Agreement or the Grid
Notes or the consummation of the transactions contemplated in the Agreement, and
such execution, delivery, performance and consummation will not result in any
breach or violation of, or constitute a default under, the charter or by-laws of
the Borrower or any subsidiary or any agreement, instrument, judgment, order,
31
law, rule or regulation applicable to the Borrower or any Subsidiary or to any
property of the Borrower or any Subsidiary.
(vii). There are not actions, proceedings or claims pending or, to our
best knowledge, threatened the adverse determination of which would have a
materially adverse effect on the business, operations, property or consolidated
financial condition of the Borrower and its Subsidiaries or impair the ability
of the Borrower to perform its obligations under, or affect the validity or
enforceability of, the Agreement or the Grid Notes.
(viii.) The Borrower is not an "investment company" within the meaning
of the Investment Company Act of 1940, as amended.
(ix). The Borrower and its Subsidiaries are exempted from regulation by
the Commission under the Holding Company Act, except under Section 9(a)(2)
thereof, pursuant to a filing made with the Commission under Section 3 of said
Act. Such filing is in full force and effect, and no proceedings are pending or,
to our best knowledge, threatened for the revocation or denial of such
exemption.
(x). None of the transactions contemplated in the Agreement (including,
without limitation, the borrowings thereunder and the use of the proceeds
thereof) will violate or result in a violation of Section 7 of the Securities
Exchange Act of 1934, as amended (or any regulations issued pursuant thereto,
including without limitation, Regulations G, T, U and X of the Board of
Governors of the Federal Reserve System).
(xi). All of the issued and outstanding shares of capital stock of the
subsidiaries listed on Exhibit C to the Agreement have been duly authorized and
issued and are fully paid and nonassessable.
Very truly yours,
32
NEW JERSEY RESOURCES CORPORATION
EXHIBIT C
LIST OF SUBSIDIARIES
% OF VOTING STOCK OWNED
NAME PLACE OF INCORPORATION BY THE BORROWER
------------------------------ ---------------------- -------------------------------------
1. New Jersey New Jersey 100% of common stock (96.0% of voting
Natural Gas stock, inclusive of 210,045 shares of
Company outstanding redeemable cumulative
Preferred Stock not
owned by the
Borrower).
2. NJR Energy Services Corp. New Jersey 100% (all common stock)
subsidiaries:
New Jersey 100% (all common stock)
New Jersey Natural
Energy Company
NJR Energy Corporation New Jersey 100% (all common stock)
subsidiaries:
. New Jersey New Jersey 100% (all common stock)
Natural
Resources
Company
NJNR Pipeline New Jersey 100% (all common stock)
Company
New Jersey Storage Corp. New Jersey 100% (all common stock)
3. NJR Development Corp. New Jersey 100% (all common stock)
Subsidiary:
Commercial New Jersey 100% (all common stock)
Realty &
Resources Corp.
33
NEW JERSEY RESOURCES CORPORATION
EXHIBIT D
PERMITTED ENCUMBRANCES
(i) Liens for taxes not delinquent or being contested in good faith and
by appropriate proceedings and for which reserves adequate under generally
accepted accounting principles are being maintained;
(ii) Deposits or pledges to secure obligations under workmen's
compensation, social security or similar laws, or under unemployment insurance;
(iii) Deposits or pledges to secure bids, tenders, contracts (other
than contracts for the payment of money), leases, statutory obligations, surety
and appeal bonds and other obligations of like nature arising in the ordinary
course of business;
(iv) Mechanics', workmen's, materialmen's or other like liens arising
in the ordinary course of business with respect to obligations which are not due
or which are being contested in good faith;
(v) Minor imperfections of title on real estate, provided such
imperfections do not render title unmarketable;
(vi) Any mortgage, encumbrance or other lien upon, or security interest
in, any property hereafter acquired by the Borrower or any Subsidiary, created
contemporaneously with such acquisition to secure or provide for the payment or
financing of any part of the purchase price thereof, or the assumption of any
such mortgage, encumbrance or lien upon, or security interest in, property
hereafter acquired existing at the time of such acquisition, or the acquisition
of any such property subject to any such mortgage, encumbrance or other lien or
security interest without the assumption thereof, provided that each such
mortgage, encumbrance, lien or security interest shall attach only to the
property so acquired;
(vii) Any pledge or assignment of, encumbrance or other liens upon, or
security interest in, the partnership interest of the Company or its
Subsidiaries in Iroquois Gas Transmission System L.P., a Delaware limited
partnership, or any other partnership created in connection with the
development, construction, financing or operation of the Iroquois pipeline which
will transport natural gas from Canada to the north-eastern section of the
United States.
34
EXTRACT FROM THE MINUTES OF A JOINT MEETING OF THE BOARDS OF DIRECTORS OF
NEW JERSEY RESOURCES CORPORATION, NEW JERSEY NATURAL GAS COMPANY,
AND COMMERCIAL REALTY & RESOURCES CORP., HELD ON ______, 1996
RESOLVED, that the Company enter into a three-year Revolving Credit
Facility with Union Bank of Switzerland, as Agent for the Participating Banks,
in the amount of $30,000,000, substantially upon the terms and conditions set
forth in the Summary of Terms and Conditions submitted at this meeting, which
are hereby approved, and upon such other or further terms and conditions as
shall be approved by the appropriate officers of the Company, the proceeds of
which shall be used to refinance the existing $30,000,000 Term Loan with the
said Participating Banks; and it is further
RESOLVED, that the appropriate officers of the Company are hereby
authorized to execute and deliver an appropriate loan agreement, promissory note
and such other documents and certificates on behalf of the Company as may be
deemed necessary or appropriate to carry out the intent of the foregoing
resolution.
* * * * * * * * * * * * * * * * * * *
I hereby certify this ___ day of October, 1996 that the foregoing is a
true and correct extract from the Minutes of a joint meeting of the Boards of
Directors of New Jersey Resources Corporation, New Jersey Natural Gas Company,
and Commercial Realty & Resources Corp. held on _________, 1996 and that the
resolutions set forth in such extract were duly adopted and have not been
amended or rescinded and are in full force and effect.
--------------------------
Name:
Title:
35
NEW JERSEY RESOURCES CORPORATION
CERTIFICATE OF INCUMBENCY
I, ________, Senior Vice President, General Counsel and Secretary, do
hereby certify that each of the following persons listed below have been duly
elected to the office or offices set forth opposite his or her name and have
held such office or offices at all times since ____________, 1996 through and
including the date hereof, and the signature appearing opposite his or her name
is his or her genuine signature:
NAME TITLE SIGNATURE
---- ----- ---------
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ President, CEO ________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Senior Vice President & Chief ________________________
Financial Officer
,
_________________________
Name:Title:
Dated: October 1, 1996
36
E&A INCENTIVE PLAN
