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Exhibit 10.3
FIRST AMENDMENT TO
CREDIT AGREEMENT
By and Among
NEW JERSEY NATURAL GAS COMPANY
as the Borrower
THE FINANCIAL INSTITUTIONS PARTY THERETO
as the Lenders
and
PNC BANK, NATIONAL ASSOCIATION
as the Administrative Agent
and
SUMMIT BANK
as the Syndication Agent
and
BANK ONE, NA
as the Documentation Agent
Dated as of
March 1, 2001
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FIRST AMENDMENT TO CREDIT AGREEMENT
THIS FIRST AMENDMENT TO CREDIT AGREEMENT (the "First Amendment") made
as of March 1, 2001, among NEW JERSEY NATURAL GAS COMPANY, a New Jersey
corporation (the "Borrower"), the financial institutions listed on the signature
pages hereto (individually a "Lender" and collectively the "Lenders"), PNC BANK,
NATIONAL ASSOCIATION, a national banking association, as Administrative Agent
for the Lenders (in such capacity the "Administrative Agent"), SUMMIT BANK, as
Syndication Agent and BANK ONE, NA, a national banking association, as
Documentation Agent, amends that certain Credit Agreement dated as of January 5,
2001 by and among the Borrower, the financial institutions listed on the
signature pages thereto (the "Existing Lenders") and the Administrative Agent
(the Credit Agreement, together with the exhibits and schedules thereto and all
modifications, amendments, extensions, renewals, substitutions or replacements
prior to the date hereof, the "Existing Agreement") (the Existing Agreement, as
amended by this First Amendment and as modified, amended, extended, renewed,
substituted or replaced from time to time hereafter, the "Agreement").
WITNESSETH:
WHEREAS, the Borrower, the Existing Lenders and the Administrative
Agent entered into the Existing Agreement pursuant to which the Existing Lenders
made certain financial accommodations available to the Borrower including
Commitments to make (i) Short Term Revolving Credit Loans in an amount not to
exceed $50,000,000 and (ii) Long Term Revolving Credit Loans in an amount not to
exceed $75,000,000;
WHEREAS, the Borrower has requested that the Existing Agreement be
amended to (i) increase the total Commitments from $125,000,000 to $150,000,000
by increasing the aggregate Long Term Revolving Credit Commitments from
$75,000,000 to $100,000,000, and (ii) add an additional financial institution as
a Lender under the Agreement; and
WHEREAS, the Borrower, the Lenders and the Administrative Agent desire
to amend the Existing Agreement as set forth herein.
NOW THEREFORE, in consideration of the mutual promises contained herein
and other good and valuable consideration, the Borrower, the Administrative
Agent and the Lenders with the intent to be legally bound hereby, agree that the
Existing Agreement shall be amended as follows:
ARTICLE I
AMENDMENTS TO EXISTING AGREEMENT
SECTION 1.01. ADDITIONAL DEFINITIONS. Section 1.1 of the Existing
Agreement is hereby amended by adding thereto the following definitions in the
appropriate alphabetical order:
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"First Amendment" shall mean that certain First Amendment to Credit
Agreement dated as of March 1, 2001.
"First Amendment Effective Date" shall mean March 1, 2001.
SECTION 1.02. NO OTHER AMENDMENTS OR WAIVERS. The amendments to the
Existing Agreement set forth in Section 1.01 above do not either implicitly or
explicitly alter, waive or amend, except as expressly provided in this First
Amendment, the provisions of the Existing Agreement. The amendments set forth in
Section 1.01 hereof do not waive, now or in the future, compliance with any
other covenant, term or condition to be performed or complied with nor do they
impair any rights or remedies of the Lenders or the and the Administrative Agent
under the Existing Agreement with respect to any such violation. Nothing in this
First Amendment shall be deemed or construed to be a waiver or release of, or a
limitation upon, the Lenders' or the Administrative Agent's exercise of any of
their respective rights and remedies under the Existing Agreement and the other
Loan Documents, whether arising as a consequence of any Events of Default which
may now exist or otherwise, and all such rights and remedies are hereby
expressly reserved.
ARTICLE II
INCREASE IN COMMITMENTS; ADDITIONAL LENDER
SECTION 2.01. MODIFICATION TO COMMITMENT. Effective upon and after the
First Amendment Effective Date, the Existing Agreement shall be deemed to be
amended such that (i) the aggregate Long Term Revolving Credit Commitment shall
be increased to $100,000,000 and (ii) the Commitments, the Short Term Revolving
Credit Commitment Percentages and the Long Term Revolving Credit Commitment
Percentages of each of the Lenders shall be as set forth opposite such Lender's
name on the Lender's signature pages hereto.
SECTION 2.02. ADDITIONAL LENDER. Effective upon and after the First
Amendment Effective Date, the Existing Agreement shall be deemed to be amended
to make The Chase Manhattan Bank (the "New Lender") a Lender for all purposes of
the Agreement and the other Loan Documents.
SECTION 2.03. ASSIGNMENT OF INTERESTS UNDER EXISTING AGREEMENT.
Effective upon and after the opening of business on the First Amendment
Effective Date, each Existing Lender hereby agrees to sell, assign, delegate and
transfer, without recourse and without any representation or warranty except as
set forth below, and the New Lender hereby agrees to buy, assume and accept, a
portion such Existing Lender's rights in (i) such Existing Lender's Commitment,
(ii) the principal of, and all accrued and unpaid interest on, all outstanding
Loans of such Existing Lender, (iii) all accrued but unpaid Fees owing to such
Existing Lender under the Agreement and the other Loan Documents and (iv) all of
such Existing Lender's other rights (including voting rights), interests,
duties, liabilities and obligations under the Agreement and the other Loan
Documents, such as is necessary so that each Existing Lender and the New Lender
shall have the Commitment, Short Term Revolving Credit Commitment Percentage of
outstanding Short Term Revolving Credit Loans, and Long Term Revolving Credit
Commitment Percentage of outstanding Long Term Revolving Credit Loans as is set
forth opposite each such Lender's name on the signature pages hereto.
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On the First Amendment Effective Date, the New Lender shall pay to the
Administrative Agent at or before 12:00 Noon (Eastern time), in immediately
available funds, an amount equal to the principal of all outstanding Loans being
sold by the Existing Lenders to the New Lender. The Administrative Agent shall
pay such amounts to the Existing Lenders, in immediately available funds, on the
First Amendment Effective Date on a pro rata basis in accordance with their
respective Short Term Revolving Credit Commitment Percentages, and Long Term
Revolving Credit Commitment Percentages in effect prior to the First Amendment
Effective Date. The principal amount paid by the New Lender to the
Administrative Agent is referred to hereinafter as the "Purchase Price." On and
after the First Amendment Effective Date, the Administrative Agent shall begin
to calculate interest on the outstanding Loans and all Fees under the Agreement
and the other Loan Documents which are owed to each Existing Lender and the New
Lender, based on each Existing Lender's and the New Lender's Short Term
Revolving Credit Commitment Percentages and Long Term Revolving Credit
Commitment Percentages set forth on the signature pages hereto.
Each Existing Lender has made arrangements with the New Lender with
respect to (i) the amount, if any, to be paid, and the date or dates for
payment, by such Existing Lender to such New Lender of any Fees heretofore
received by such Existing Lender pursuant to the Agreement or any other Loan
Document prior to the First Amendment Effective Date and (ii) the amount, if
any, to be paid, and the date or dates for payment, by such New Lender to such
Existing Lender of Fees or interest received by such New Lender pursuant to the
Agreement or any other Loan Document from and after the First Amendment
Effective Date. Any such amount is in addition to the Purchase Price.
As soon as possible after the Administrative Agent has received from
each Existing Lender the existing Notes payable to such Existing Lender and
after the Borrower has executed and delivered to the Administrative Agent new
Notes, the Administrative Agent shall deliver to each Existing Lender new Notes
payable to the order of such Existing Lender in a principal amount equal to the
revised Commitments of such Existing Lender or the Loans retained by it as set
forth on the signature pages hereto, and shall deliver to the New Lender Notes
payable to the order of the New Lender in a principal amount equal to the
Commitments of the New Lender or the Loans assumed by it as set forth on the
signature pages hereto.
Each Existing Lender represents and warrants to the New Lender, and the
New Lender represents and warrants to each Existing Lender, that (i) it has full
power and legal right to execute and deliver this First Amendment and to perform
the provisions of this First Amendment, (ii) the execution, delivery and
performance of this First Amendment have been authorized by all necessary
corporate action and (iii) this First Amendment constitutes its legal, valid and
binding obligation, enforceable against it in accordance with its terms.
By executing and delivering this First Amendment, each Existing Lender
and the New Lender confirm to and agree with each other, the Administrative
Agent and the other Lenders as follows: (i) except as set forth in the
immediately preceding paragraph, such Existing Lender makes no representation or
warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with the Agreement or any
Loan Document or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of the Agreement, any other Loan Document or any other
instrument or document furnished pursuant thereto; (ii) such Existing Lender
makes no representation or warranty and assumes no responsibility with respect
to the financial condition of the Borrower or any of the Lenders or the
performance or observance by the Borrower or any
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of the Lenders of any of their respective obligations under the Agreement, the
other Loan Documents or any other instrument or document furnished pursuant
thereto; (iii) the New Lender confirms that it has received a copy of the
Agreement, together with copies of the financial statements delivered to the
Administrative Agent pursuant to the Agreement, if any, and such other documents
and information as it has deemed appropriate to make its own credit analysis and
decision to enter into this First Amendment; (iv) the New Lender has not relied
upon and will continue independently and without reliance upon the
Administrative Agent, the New Lender or any other Lender and based on such
documents and information as it shall deem appropriate at the time, make its own
credit decision in taking or not taking action under the Agreement and the other
Loan Documents; (v) the New Lender appoints and authorizes the Administrative
Agent to take such action on its behalf and to exercise such powers under the
Agreement and the other Loan Documents as are delegated to the Administrative
Agent by the terms of the Agreement and the other Loan Documents, together with
such powers as are reasonably incidental thereto, all in accordance with Article
VIII of the Agreement and in certain other Loan Documents; and (vi) the New
Lender agrees that it will perform in accordance with their terms all of the
obligations which by the terms of the Agreement and the other Loan Documents are
required to be performed by it as a Lender.
ARTICLE III
BORROWER'S SUPPLEMENTAL REPRESENTATIONS
SECTION 3.01. INCORPORATION BY REFERENCE. As an inducement to the
Lenders to enter into this First Amendment, the Borrower hereby repeats herein,
for the benefit of the Lenders, the representations and warranties made by the
Borrower in Article III of the Existing Agreement, as amended hereby, except
that for purposes hereof such representations and warranties shall be deemed to
extend to and cover this First Amendment.
ARTICLE IV
CONDITIONS PRECEDENT
SECTION 4.01. CONDITIONS PRECEDENT. Each of the following shall be a
condition precedent to the effectiveness of this First Amendment:
(i) The Administrative Agent shall have received on behalf of each
Lender, on or before the First Amendment Effective Date, duly executed
counterpart originals of this First Amendment (which may be initially delivered
via telecopier).
(ii) The Administrative Agent shall have received on behalf of each
Lender, on or before the First Amendment Effective Date, a Short Term Revolving
Credit Note, a Long Term Revolving Credit Note and (with respect to the New
Lender only) a Bid Rate Note made payable to such Lender in the appropriate
amounts and otherwise properly completed and executed by the Borrower (and which
may be initially delivered via telecopier).
(iii) The following statements shall be true and correct on the First
Amendment Effective Date, and the Administrative Agent shall have received a
certificate signed by an authorized officer of the Borrower dated the First
Amendment Effective Date stating that:
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(A) except to the extent modified in writing by the Borrower
heretofore delivered to the Banks, the representations and warranties made
pursuant to Section 3.01 of this First Amendment and in the other Loan Documents
are true and correct on and as of the First Amendment Effective Date as though
made on and as of such date in all material respects;
(B) no Event of Default or Potential Default has occurred and is
continuing, or would result from the execution of or performance under this
First Amendment;
(C) the Borrower has in all material respects performed all
agreements, covenants and conditions required to be performed on or prior to the
date hereof under the Existing Agreement and the other Loan Documents.
(iv) The Administrative Agent shall have received a certificate, duly
certified as of the date hereof, by the secretary or assistant secretary of the
Borrower, as to (A) the Certificate of Incorporation of the Borrower in effect
as of the date hereof, (B) the By-Laws of the Borrower in effect as of the date
hereof, (C) the resolutions of the Borrower's Board of Directors authorizing the
borrowings hereunder and the execution and delivery of this First Amendment, the
Notes, and all documents supplemental hereto and (D) the names of the officers
of the Borrower authorized to sign this First Amendment, the new Notes, and all
supplemental documentation and which contains a true signature of each such
officer.
ARTICLE V
GENERAL PROVISIONS
SECTION 5.01. RATIFICATION OF TERMS. Except as expressly amended by
this First Amendment, the Existing Agreement and each and every representation,
warranty, covenant, term and condition contained therein is specifically
ratified and confirmed in all material respects.
SECTION 5.02. REFERENCES. All notices, communications, agreements,
certificates, documents or other instruments executed and delivered after the
execution and delivery of this First Amendment in connection with the Agreement,
any of the other Loan Documents or the transactions contemplated thereby may
refer to the Existing Agreement without making specific reference to this First
Amendment, but nevertheless all such references shall include this First
Amendment unless the context requires otherwise. From and after the First
Amendment Effective Date, (i) all references in the Existing Agreement and each
of the other Loan Documents to the "Agreement" shall be deemed to be references
to the Existing Agreement as amended hereby, and (ii) all references in the
Agreement and each of the other Loan Documents to the "Lenders" shall be deemed
to include a reference to the New Lender.
SECTION 5.03. COUNTERPARTS. This First Amendment may be executed in
different counterparts, each of which when executed by the Borrower, the
Administrative Agent and the Lenders shall be regarded as an original, and all
such counterparts shall constitute one First Amendment. Delivery of an executed
counterpart by telecopier shall be effective as delivery of a manually executed
counterpart hereof.
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SECTION 5.04. CAPITALIZED TERMS. Except for proper nouns and as
otherwise defined herein, capitalized terms used herein as defined terms shall
have the meanings ascribed to them in the Existing Agreement, as amended hereby.
SECTION 5.05. GOVERNING LAW. THIS FIRST AMENDMENT AND THE RIGHTS AND
OBLIGATIONS HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE
LAWS OF THE STATE OF NEW JERSEY WITHOUT REGARD TO THE PROVISIONS THEREOF
REGARDING CONFLICTS OF LAW.
SECTION 5.06. HEADINGS. The headings of the sections in this First
Amendment are for purposes of reference only and shall not be deemed to be a
part hereof.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto, intending to be legally bound
hereby, have caused this First Amendment to Credit Agreement to be duly executed
by their duly authorized officers as of the date first written above.
ATTEST:
By:
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Name:
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Title:
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NEW JERSEY NATURAL GAS COMPANY
By: (SEAL)
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Name:
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Title:
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PNC BANK, NATIONAL ASSOCIATION, in its
capacity as the Administrative Agent hereunder
By:
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Name:
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Title:
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IN WITNESS WHEREOF, intending to be legally bound hereby, the
undersigned Lender has caused this First Amendment to Credit Agreement by and
among NEW JERSEY NATURAL GAS COMPANY, THE LENDERS PARTY HERETO and PNC BANK,
NATIONAL ASSOCIATION, as the Administrative Agent to be executed by its duly
authorized officers as of the date first above written.
Short Term Revolving Credit
Commitment: $14,912,280.70
Short Term Revolving Credit
Commitment Percentage:
29.82456140%
Long Term Revolving Credit
Commitment: $29,824,561.40
Long Term Revolving Credit
Commitment Percentage:
29.82456140%
Addresses for notice purposes:
If by United States Mail:
PNC Bank, National Association
Agency Services
One PNC Plaza - 22nd Floor
249 Fifth Avenue
Pittsburgh, Pennsylvania 15222-2707
Attention: Arlene M. Ohler
With a copy to:
PNC Bank, National Association
Energy Metals and Mining Group
One PNC Plaza - 3rd Floor
249 Fifth Avenue
Pittsburgh, Pennsylvania 15222-2707
Attention: Brian M. Begg
Vice President
If by other means:
PNC Bank, National Association
Agency Services
One PNC Plaza - 22nd Floor
249 Fifth Avenue
Pittsburgh, Pennsylvania 15222-2707
Attention: Arlene M. Ohler
Telephone: (412) 762-3627
Telecopier: (412) 762-7658
With a copy to:
PNC Bank, National Association
Energy Metals and Mining Group
One PNC Plaza - 3rd Floor
249 Fifth Avenue
Pittsburgh, Pennsylvania 15222-2707
Attention: Brian M. Begg
Vice President
Telephone: (412) 762-3440
Telecopier: (412) 705-3232
Address for Euro-Rate Loan Funding if different from above:
N/A
Telephone:
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Telecopier:
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Telex:
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PNC BANK, NATIONAL ASSOCIATION
By:
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Name:
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Title:
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IN WITNESS WHEREOF, intending to be legally bound hereby, the
undersigned Lender has caused this First Amendment to Credit Agreement by and
among NEW JERSEY NATURAL GAS COMPANY, THE LENDERS PARTY HERETO and PNC BANK,
NATIONAL ASSOCIATION, as the Administrative Agent to be executed by its duly
authorized officers as of the date first above written.
Short Term Revolving Credit
Commitment:
$10,526,315.79
Short Term Revolving Credit
Commitment Percentage:
21.05263158%
Long Term Revolving Credit
Commitment:
$21,052,631.58
Long Term Revolving Credit
Commitment Percentage:
21.05263158%
Addresses for notice purposes:
If by United States Mail:
Summit Bank
Specialized Industries Group
750 Walnut Avenue, 1st Floor
Cranford, New Jersey 07016
Attention: Richard J. Banning
If by other means:
Summit Bank
Specialized Industries Group
750 Walnut Avenue, 1st Floor
Cranford, New Jersey 07016
Attention: Richard J. Banning
Telecopier: (908) 709-6433
Telephone: (908) 709-2838
SUMMIT BANK
By:
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Name:
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Title:
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Address for Eurodollar Rate Loan Funding if different from above:
N/A
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Telephone:
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Telecopier:
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Telex:
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IN WITNESS WHEREOF, intending to be legally bound hereby, the
undersigned Lender has caused this First Amendment to Credit Agreement by and
among NEW JERSEY NATURAL GAS COMPANY, THE LENDERS PARTY HERETO and PNC BANK,
NATIONAL ASSOCIATION, as the Administrative Agent to be executed by its duly
authorized officers as of the date first above written.
Short Term Revolving Credit
Commitment:
$7,017,543.86
Short Term Revolving Credit
Commitment Percentage:
14.03508772%
Long Term Revolving Credit
Commitment:
$14,035,087.72
Long Term Revolving Credit
Commitment Percentage:
14.03508772%
Addresses for notice purposes:
If by United States Mail:
Bank One, NA
1 Bank One Plaza, Suite IL 1-0363
Chicago, Illinois 60670
Attention: Dawn M. Lawler
If by other means:
Bank One, NA
1 Bank One Plaza, Suite IL 1-0363
Chicago, Illinois 60670
Attention: Dawn M. Lawler
Telecopier: (312) 732-3055
Telephone: (312) 732-3857
Address for Eurodollar Rate Loan Funding if different from above:
LaTanya Driver
Client Service Associate
1 Bank One Plaza Suite IL 1-0634
Chicago, Illinois 60670
Telephone: (312) 732-1395
Telecopier: (312) 732-4840
Telex:
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BANK ONE, NA
By:
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Name:
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Title:
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IN WITNESS WHEREOF, intending to be legally bound hereby, the
undersigned Lender has caused this First Amendment to Credit Agreement by and
among NEW JERSEY NATURAL GAS COMPANY, THE LENDERS PARTY HERETO and PNC BANK,
NATIONAL ASSOCIATION, as the Administrative Agent to be executed by its duly
authorized officers as of the date first above written.
Short Term Revolving Credit
Commitment:
$4,385,964.91
Short Term Revolving Credit
Commitment Percentage:
8.77192982%
Long Term Revolving Credit
Commitment:
$8,771,929.82
Long Term Revolving Credit
Commitment Percentage:
8.77192982%
Addresses for notice purposes:
If by United States Mail:
The Bank of New York
One Wall Street, 19th Floor
New York, New York 10286
Attention: Cynthia Howells
If by other means:
The Bank of New York
One Wall Street, 19th Floor
New York, New York 10286
Attention: Cynthia Howells
Telecopier: (212) 635-7923
Telephone: (212) 635-7889
Address for Eurodollar Rate Loan Funding if different from above:
The Bank of New York
Commercial Loan Servicing Department
101 Barclay Street
New York, New York 10286
Attention: Bill Barbiero
Telephone:
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Telecopier:
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Telex:
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THE BANK OF NEW YORK
By:
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Name:
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Title:
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IN WITNESS WHEREOF, intending to be legally bound hereby, the
undersigned Lender has caused this First Amendment to Credit Agreement by and
among NEW JERSEY NATURAL GAS COMPANY, THE LENDERS PARTY HERETO and PNC BANK,
NATIONAL ASSOCIATION, as the Administrative Agent to be executed by its duly
authorized officers as of the date first above written.
Short Term Revolving Credit
Commitment:
$4,385,964.91
Short Term Revolving Credit
Commitment Percentage:
8.77192982%
Long Term Revolving Credit
Commitment:
$8,771,929.82
Long Term Revolving Credit
Commitment Percentage:
8.77192982%
Addresses for notice purposes:
If by United States Mail:
Citizens Bank of Massachusetts
28 State Street
Boston, Massachusetts 02109
Attention: Michael Ouellet
If by other means:
Citizens Bank of Massachusetts
28 State Street
Boston, Massachusetts 02109
Attention: Michael Ouellet
Telecopier: (617) 263-0439
Telephone: (617) 994-7034
Address for Eurodollar Rate Loan Funding if different from above:
N/A
Telephone:
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Telecopier:
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Telex:
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CITIZENS BANK OF MASSACHUSETTS
By:
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Name:
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Title:
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IN WITNESS WHEREOF, intending to be legally bound hereby, the
undersigned Lender has caused this First Amendment to Credit Agreement by and
among NEW JERSEY NATURAL GAS COMPANY, THE LENDERS PARTY HERETO and PNC BANK,
NATIONAL ASSOCIATION, as the Administrative Agent to be executed by its duly
authorized officers as of the date first above written.
Short Term Revolving Credit
Commitment:
$4,385,964.91
Short Term Revolving Credit
Commitment Percentage:
8.77192982%
Long Term Revolving Credit
Commitment:
$8,771,929.82
Long Term Revolving Credit
Commitment Percentage:
8.77192982%
Addresses for notice purposes:
If by United States Mail:
Bank of Tokyo-Mitsubishi Trust Company
1251 Avenue of the Americas, 12th Floor
New York, New York 10020-1104
Attention: Nicholas R. Battista
If by other means:
Bank of Tokyo-Mitsubishi Trust Company
1251 Avenue of the Americas, 12th Floor
New York, New York 10020-1104
Attention: Nicholas R. Battista
Telecopier: (212) 782-4979
Telephone: (212) 782-4333
Address for Eurodollar Rate Loan Funding if different from above:
N/A
Telephone:
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Telecopier:
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Telex:
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BANK OF TOKYO-MITSUBISHI TRUST
COMPANY
By:
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Name:
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Title:
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IN WITNESS WHEREOF, intending to be legally bound hereby, the
undersigned Lender has caused this First Amendment to Credit Agreement by and
among NEW JERSEY NATURAL GAS COMPANY, THE LENDERS PARTY HERETO and PNC BANK,
NATIONAL ASSOCIATION, as the Administrative Agent to be executed by its duly
authorized officers as of the date first above written.
Short Term Revolving Credit
Commitment:
$4,385,964.91
Short Term Revolving Credit
Commitment Percentage:
8.77192982%
Long Term Revolving Credit
Commitment:
$8,771,929.82
Long Term Revolving Credit
Commitment Percentage:
8.77192982%
Addresses for notice purposes:
If by United States Mail:
The Chase Manhattan Bank
695 Route 46 West
Fairfield, NJ 07004
Attention: Valerie Schanzer
If by other means:
The Chase Manhattan Bank
695 Route 46 West
Fairfield, NJ 07004
Attention: Valerie Schanzer
Telephone: (973) 439-5056
Telecopier: (973) 439-5018
Address for Eurodollar Rate Loan Funding if different from above:
N/A
Telephone:
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Telecopier:
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Telex:
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THE CHASE MANHATTAN BANK
By:
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Name:
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Title:
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