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Exhibit 4-5F
SIXTH AMENDMENT (the "Amendment"), dated as of September 29, 2000, 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 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 September
29, 2000, 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. Amendment to the Agreement.
(a) Section 1. THE COMMITMENT. is hereby amended by deleting "August 1,
2001" from the last sentence of the first paragraph and substituting
the following date therefor: "December 31, 2001.".
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.
(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
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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.
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. The Borrower acknowledges and agrees the
Agreement as amended by this Amendment, is in full force and effect
without any defense, counterclaim, right or claim of set-off-, that
nothing herein shall be construed as a waiver of any of the rights of
the Bank; and that this Agreement is a modification of an existing
obligation and is not a notation. This Amendment and the Agreement are
intended to be consistent.
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However, in the event of any inconsistencies between this Amendment and
the Agreement, the terms of this Amendment shall control. All parties
hereto shall be entitled to the benefits of the Agreement as amended by
this Amendment.
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: /s/ Xxxxx X. Xxxxxxxx By: /s/ XXXXXXX X. XXXXXXXXXX
Name: Xxxxx X. Xxxxxxxx Name: XXXXXXX X. XXXXXXXXXX
Title: Senior Vice President & CFO Title: VICE PRESIDENT
