1
Exhibit 4-5E
FIFTH AMENDMENT (the "Amendment"), dated as of August 10, 1999, 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:
ACKNOWLEDGMENT OF BALANCE. Borrower acknowledges that as of July 28,
1999, the outstanding principal balance under the Agreement was $20,000,000.00.
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 "October 1,
1999" from the last sentence of the first paragraph and
substituting the following date therefore: "August 8, 2001".
(b) Section X. COVENANTS. is hereby amended by adding the following
provisions; P. YEAR 2000 COMPATIBILITY. The Borrower shall take
all action necessary to assure that the Borrower's computer based
systems are able to operate and effectively process data including
dates on and after January 1, 2000. At the request of the Bank,
the Borrower shall provide the Bank assurance of the Borrower's
Year 2000 readiness.
(c) Section XIV. ARBITRATION is hereby added to the Agreement:
XIV. ARBITRATION. Upon demand of any party hereto, whether made
before or after institution of any judicial proceeding, any claim
or controversy arising out of or relating to the Loan Documents
between parties hereto (a "Dispute") shall be resolved by binding
arbitration conducted under and governed by the Commercial
Financial Disputes Arbitration Rules (the "Arbitration Rules") of
the American Arbitration
2
Exhibit 4-5E
Association (the "AAA") and the Federal Arbitration Act. Disputes
may include, without limitation, tort claims, counterclaims, a
dispute as to whether a matter is subject to arbitration, claims
brought as class actions, or claims arising from documents
executed in the future. A judgment upon the award may be entered
in any court having jurisdiction. Notwithstanding the foregoing,
this arbitration provision does not apply to disputes under or
related to swap agreements. SPECIAL RULES. All arbitration
hearings shall be conducted in either Charlotte, North Carolina or
Newark, New Jersey. A hearing shall begin within 90 days of demand
for arbitration and all hearings shall conclude within 120 days of
demand for arbitration. These time limitations may not be extended
unless a party shows cause for extension and then for no more than
a total of 60 days. The expedited procedures set forth in Rule 51
et seq. of the Arbitration Rules shall be applicable to claims of
less than $1,000,000.00. Arbitrators shall be licensed attorneys
selected from the Commercial Financial Dispute Arbitrators Panel
of the AAA. The parties do not waive applicable Federal or state
substantive law except as provided herein. WAIVER OF EXEMPLARY
DAMAGES. The parties agree that they shall not have a remedy of
punitive or exemplary damages against each other in any Dispute
and hereby waive any right or claim to punitive or exemplary
damages they have now or which may arise in the future in
connection with any Dispute whether the Dispute is resolved by
arbitration or judicially. WAIVER OF JURY TRIAL. THE PARTIES
ACKNOWLEDGE THAT BY AGREEING TO BINDING ARBITRATION THEY HAVE
IRREVOCABLY WAIVED ANY RIGHT THEY MAY HAVE TO JURY TRIAL WITH
REGARD TO A DISPUTE.
(d) Section XV. PRESERVATION AND LIMITATION OF REMEDIES is hereby added
to the Agreement:
XV. PRESERVATION AND LIMITATION OF REMEDIES. Notwithstanding
the preceding binding arbitration provisions, the parties
agree to preserve, without diminution, certain remedies
that any party may exercise before or after an arbitration
proceeding is brought. The parties shall have the right to
proceed in any court of proper jurisdiction or by self-help
to exercise or prosecute the following remedies, as
applicable: (i) all rights to foreclose against any real or
personal property or other security by exercising a power
of sale or under applicable law by judicial foreclosure
including a proceeding to confirm the sale; (ii) all rights
of self-help including peaceful occupation of real property
and collection of rents, set-off, and peaceful possession
of personal property, (iii) obtaining provisional or
ancillary remedies including injunctive relief,
sequestration, garnishment, attachment, appointment of
receiver and filing a voluntary bankruptcy proceeding, and
(iv) when applicable, a judgment by confession of judgment.
Any claim or controversy with regard to any party's
entitlement to such remedies is a Dispute.
3. REPRESENTATIONS AND WARRANTIES. To induce the Bank to enter into
this Amendment, the Borrower hereby represents and warrants that:
3
Exhibit 4-5E
(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.
(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.
(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.
4
Exhibit 4-5E
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.
PLACE OF EXECUTION AND DELIVERY. Borrower hereby certifies that this
Amendment was executed in the State of New Jersey and delivered to Bank in the
State of North Carolina.
NEW JERSEY RESOURCES CORPORATION FIRST UNION NATIONAL BANK
By: ________________________________ By:_________________________________
Name: Xxxxx X. Xxxxxxxx Name: Xxxxxxx Kolusowski
Title: SVP & CFO Title: VP
