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EXHIBIT 4-5D
FOURTH AMENDMENT (the "Amendment"), dated as of September 26, 1997, to
the Amended and Restated Note and Credit Agreement, dated May 7, 1993, between
NEW JERSEY RESOURCES CORPORATION (the "Borrower") and FIRST UNION NATIONAL BANK,
successor by consolidation to First Fidelity Bank, National Association, New
Jersey (the "Bank"), as amended (the "Agreement").
WITNESSETH:
WHEREAS, the Borrower and the Bank are parties to the Agreement; and
WHEREAS, the Borrower has requested the Bank to modify the Agreement,
and the Bank is agreeable to such request;
NOW, THEREFORE, in consideration of the premises and mutual agreements
contained herein, the parties hereto hereby agree as follows:
1. DEFINITIONS. Except as otherwise stated, capitalized terms defined
in the Agreement and used herein without definition shall have the respective
meanings assigned to them in the Agreement.
2. AMENDMENTS TO THE AGREEMENT.
(a) Section I (the Commitment) is hereby amended by deleting
"April 30, 1998" and inserting in its place "October 1, 1999".
(b) Section III.B.2 (Interest) is hereby amended by deleting "one
half of one percent (.5%)" and inserting in its place
"forty-seven one hundredths percent (.47%)".
(c) Section IV.B (Commitment Fee) is hereby amended by deleting
"three sixteenths percent (.1875%)" and inserting in its place
"four twenty-fifths percent (.16%)".
3. REPRESENTATIONS AND WARRANTIES. To induce the Bank to enter into
this Amendment, the Borrower hereby represents and warrants that:
(a) The Borrower has the power, authority and legal right to make
and deliver this Amendment and to perform its obligations
under the Agreement, as amended by this Amendment, without any
notice, consent, approval or authorization not already
obtained, and the Borrower has taken all necessary action to
authorize the same.
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(b) The making and delivery of this Amendment and the performance
of the Agreement as amended by this Amendment do not violate
any provision of law, any regulation, the Borrower's charter
or the Borrower's by-laws or result in the breach of or
constitute a default under or require any consent under any
indenture or other agreement or instrument to which the
Borrower is a party or by which the Borrower or any of its
property may be bound or affected. The Agreement as amended by
this Amendment constitutes a legal, valid and binding
obligation of the Borrower, enforceable against it in
accordance with its terms, except as the enforceability
thereof may be limited by any applicable bankruptcy,
reorganization, insolvency, moratorium or other laws affecting
creditor's rights generally.
(c) The representations and warranties contained in Section IX of
the Agreement are true and correct on and as of the date of
this Amendment and after giving effect thereto.
(d) No Event of Default or event which, with the giving of notice
or lapse of time or both, would be an Event of Default has
occurred and is continuing under the Agreement as of the date
of this Amendment and after giving effect thereto.
4. EFFECTIVE DATE. This Amendment shall become effective as of the date
hereof when all of the following shall have occurred:
(a) The Bank shall have received counterparts of this Amendment,
duly executed by each of the parties hereto.
(b) The Bank shall have received a copy of the resolution of the
Board of Directors of the Borrower authorizing the execution,
delivery and performance of this Amendment, certified by an
appropriate officer of the Borrower.
(c) The Bank shall have received an opinion of counsel to the
Borrower, dated the date hereof, to the effect that this
Amendment has been duly authorized, executed and delivered by
a duly authorized officer of the Borrower and that the
Agreement, as amended by this Amendment, constitutes a valid
obligation of the Borrower, legally binding upon it and
enforceable (except as may be limited by any applicable
bankruptcy, reorganization, insolvency, moratorium or other
similar laws affecting creditors' rights generally) in
accordance with its terms as so amended.
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5. COUNTERPARTS. This Amendment may be signed in any number of
counterparts, each of which shall be an original and all of which taken
together shall constitute a single instrument with the same effect as
if the signatures thereto and hereto were upon the same instrument.
6. FULL FORCE AND EFFECT. Except as expressly modified by this
Amendment, all of the terms and provisions of the Agreement shall
continue in full force and effect, and all parties hereto shall be
entitled to the benefits thereof.
7. GOVERNING LAW. This Amendment shall be governed by and construed in
accordance with the internal laws (and not the law of conflicts) of the
State of New Jersey.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered by their proper and duly authorized officers as of
the date set forth above.
NEW JERSEY RESOURCES CORPORATION FIRST UNION NATIONAL BANK
By: /s/ Xxxxx X. Xxxxxxxx By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxxxx Name: Xxxxx X. Xxxxxx
Title: Senior Vice President and Title: Senior Vice President
Chief Financial Officer
