EXHIBIT 4.1
FIRST AMENDMENT TO CREDIT AGREEMENT
THIS FIRST AMENDMENT TO CREDIT AGREEMENT (the "Amendment"), dated and
effective as of July 24, 2003, is made by and among NEW JERSEY NATURAL GAS
COMPANY, a New Jersey corporation (the "Borrower"), the BANKS (as hereinafter
defined), BANK OF TOKYO-MITSUBISHI TRUST COMPANY and JPMORGAN CHASE BANK, each
in its capacity as a syndication agent, FLEET NATIONAL BANK and SUNTRUST BANK,
each in its capacity as a documentation agent, BANK ONE, NA, CITIZENS BANK OF
MASSACHUSETTS and THE BANK OF NEW YORK, each in its capacity as a co-agent and
PNC BANK, NATIONAL ASSOCIATION, in its capacity as administrative agent for the
Banks (hereinafter referred to in such capacity as the "Agent").
W I T N E S S E T H:
WHEREAS, reference is made to that certain Credit Agreement, dated as
of December 23, 2002, by and among the Borrower, the Banks party thereto, Bank
of Tokyo-Mitsubishi Trust Company and JPMorgan Chase Bank, each in its capacity
as a syndication agent, Fleet National Bank and SunTrust Bank, each in its
capacity as a documentation agent, Bank One, NA, Citizens Bank of Massachusetts
and The Bank of New York, each in its capacity as a co-agent, and the Agent (the
"Credit Agreement"); and
WHEREAS, the parties hereto desire to amend certain terms of the Credit
Agreement as hereinafter provided.
NOW, THEREFORE, the parties hereto, in consideration of their mutual
covenants and agreements hereinafter set forth and intending to be legally bound
hereby, covenant and agree as follows:
1. DEFINITIONS.
Capitalized terms used herein unless otherwise defined herein shall
have the meanings ascribed to them in the Credit Agreement as amended by this
Amendment.
2. AMENDMENT OF CREDIT AGREEMENT.
(a) Section 1.1 [Certain Definitions.]
(i) Existing Definitions. The following existing
definitions contained in Section 1.1 the Credit Agreement are hereby
amended and restated to read as follows:
"Facility Fees collectively and Facility Fee
separately shall have the meaning given to such terms in
Section 2.4.1."
"364-Day Facility Fees collectively and 364-Day
Facility Fee separately shall have the meaning given to such
terms in Section 2.4.2."
(ii) New Definitions. The following new definitions are
hereby added to Section 1.1 of the Credit Agreement in alphabetical
order:
"Facility Usage Fees collectively and Facility Usage
Fee separately shall have the meaning given to such terms in
Section 2.4.3."
"364-Day Revolving Credit Usage Fees collectively and
364-Day Revolving Credit Usage Fee separately shall have the
meaning given to such terms in Section 2.4.4."
(b) Section 2.4 [Facility Fees; 364-Day Facility Fees.] of the
Credit Agreement is hereby amended and restated in its entirety to read as
follows:
"2.4 Certain Fees.
2.4.1 Facility Fees.
Accruing from the date hereof until the Expiration
Date, the Borrower agrees to pay to the Agent for the account of each
Bank, as consideration for such Bank's Revolving Credit Commitment
hereunder, a nonrefundable facility fee (the "Facility Fee") equal to
the Applicable Facility Fee Rate (computed on the basis of a year of
360 days and actual days elapsed) on the average daily amount of such
Bank's Revolving Credit Commitment as the same may be constituted from
time to time. All Facility Fees shall be payable quarterly in arrears
on the first Business Day of each January, April, July and October
after the date hereof and on the Expiration Date or upon acceleration
of the Loans.
2.4.2 364-Day Facility Fees.
Accruing from the date hereof until the 364-Day Loan
Expiration Date, the Borrower agrees to pay to the Agent for the
account of each Bank, as consideration for such Bank's 364-Day
Revolving Credit Commitment hereunder, a nonrefundable facility fee
(the "364-Day Facility Fee") equal to the Applicable 364-Day Facility
Fee Rate (computed on the basis of a year of 360 days and actual days
elapsed) on the average daily amount of such Bank's 364-Day Revolving
Credit Commitment as the same may be constituted from time to time. All
364-Day Facility Fees shall be payable quarterly in arrears on the
First Business Day of each January, April, July and October after the
date hereof and on the 364-Day Loan Expiration Date or upon
acceleration of the Loans.
2.4.3 Facility Usage Fees.
During the period commencing on the date hereof until
the Expiration Date, the Borrower agrees to pay to the Agent for the
account of each Bank, a nonrefundable fee (the "Facility Usage Fee")
for each day when Revolving Facility Usage exceeds thirty-three and
one-third percent (33-1/3%) of the Revolving Credit Commitments in an
amount equal to the sum of (i) 0.125%
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per annum (computed on the basis of a year of 360 days and actual days
elapsed) computed on the amount of the Revolving Credit Loans
outstanding on such day plus (ii) 0.125% per annum (computed on the
basis of a year of 360 days and actual days elapsed) computed on the
amount of the Letters of Credit Outstanding on such day plus (iii)
0.125% per annum (computed on the basis of a year of 360 days and
actual days elapsed) computed on the amount of the Swing Loans
outstanding on such day. The Facility Usage Fee shall be payable
quarterly in arrears on the first Business Day of each January, April,
July, and October after the date hereof and on the Expiration Date or
upon acceleration of the Loans.
2.4.4 364-Day Revolving Credit Usage Fees.
During the period commencing on the date hereof until
the Expiration Date, the Borrower agrees to pay to the Agent for the
account of each Bank, a nonrefundable fee (the "364-Day Revolving
Credit Usage Fee") for each day when 364-Day Revolving Credit Loans
exceed thirty-three and one-third percent (33-1/3%) of the 364-Day
Revolving Credit Commitments in an amount equal to 0.125% per annum
(computed on the basis of a year of 360 days and actual days elapsed),
which fees shall be computed on the amount of the 364-Day Revolving
Credit Loans outstanding. The 364-Day Revolving Credit Usage Fee shall
be payable quarterly in arrears on the First Business Day of each
January, April, July, and October after the date hereof and on the
364-Day Loan Expiration Date or upon acceleration of the Loans."
(c) Schedule 1.1(A)--Pricing Grid of the Credit Agreement is
hereby amended by deleting Subsections (c) and (d) in their entirety.
3. CONDITIONS OF EFFECTIVENESS OF THIS AMENDMENT.
The effectiveness of this Amendment is expressly conditioned upon
satisfaction of the following conditions precedent:
Legal Details; Counterparts.
(a) All legal details and proceedings in connection with the
transactions contemplated by this Amendment shall be in form and substance
satisfactory to the Agent, the Agent shall have received from the Borrower and
the Required Banks an executed original of this Amendment and the Agent shall
have received all such other counterpart originals or certified or other copies
of such documents and proceedings in connection with such transactions, in form
and substance satisfactory to the Agent.
(b) This Amendment shall become effective when it has been
executed by the Borrower, the Agent and the Required Banks and each of the other
conditions set forth in this Section 3 has been satisfied.
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4. MISCELLANEOUS.
(a) Force and Effect. The Credit Agreement is hereby amended in
accordance with the terms hereof and any reference to the Credit Agreement in
any Loan Document or any other document, instrument, or agreement shall
hereafter mean and include the Credit Agreement as amended hereby. The Credit
Agreement (as amended by this Amendment) and each of the other Loan Documents
are hereby ratified and confirmed and are in full force and effect.
(b) Governing Law. This Amendment shall be deemed to be a contract
under the laws of the State of New Jersey and for all purposes shall be governed
by and construed and enforced in accordance with the internal laws of the State
of New Jersey without regard to its conflict of laws principles.
(c) Counterparts. This Amendment may be signed in any number of
counterparts each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
(d) Fees and Expenses. The Borrower shall not be responsible for
payment of any attorneys' fees or other expenses specifically associated with
the preparation and execution of this Amendment.
[SIGNATURES BEGIN ON NEXT PAGE]
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[SIGNATURE PAGE TO FIRST AMENDMENT TO
NEW JERSEY NATURAL GAS COMPANY CREDIT AGREEMENT]
IN WITNESS WHEREOF, and intending to be legally bound hereby, the
parties hereto have executed this Amendment as of the date first above written.
ATTEST: NEW JERSEY NATURAL GAS COMPANY
By: /s/Oleta Harden By: /s/T. C. Hearne [Seal]
----------------------- ----------------------------------
Name: Oleta Harden Name: T. C. Hearne
Title: Secretary Title: Senior Vice President and Treasurer
[SIGNATURE PAGE TO FIRST AMENDMENT TO
NEW JERSEY NATURAL GAS COMPANY CREDIT AGREEMENT]
BANK OF TOKYO-MITSUBISHI TRUST
COMPANY, individually and as Syndication Agent
By:___________________________________________
Name:_________________________________________
Title:________________________________________
[SIGNATURE PAGE TO FIRST AMENDMENT TO
NEW JERSEY NATURAL GAS COMPANY CREDIT AGREEMENT]
BANK ONE, NA, individually and as Co-Agent
By:___________________________________________
Name:_________________________________________
Title:________________________________________
[SIGNATURE PAGE TO FIRST AMENDMENT TO
NEW JERSEY NATURAL GAS COMPANY CREDIT AGREEMENT]
CITIZENS BANK OF MASSACHUSETTS,
individually and as a Co-Agent
By:___________________________________________
Name:_________________________________________
Title:________________________________________
[SIGNATURE PAGE TO FIRST AMENDMENT TO
NEW JERSEY NATURAL GAS COMPANY CREDIT AGREEMENT]
FLEET NATIONAL BANK, individually and as
Documentation Agent
By:___________________________________________
Name:_________________________________________
Title:________________________________________
[SIGNATURE PAGE TO FIRST AMENDMENT TO
NEW JERSEY NATURAL GAS COMPANY CREDIT AGREEMENT]
JPMORGAN CHASE BANK, individually and as
Syndication Agent
By:___________________________________________
Name:_________________________________________
Title:________________________________________
[SIGNATURE PAGE TO FIRST AMENDMENT TO
NEW JERSEY NATURAL GAS COMPANY CREDIT AGREEMENT]
PNC BANK, NATIONAL ASSOCIATION,
individually and as Agent
By:___________________________________________
Name:_________________________________________
Title:________________________________________
[SIGNATURE PAGE TO FIRST AMENDMENT TO
NEW JERSEY NATURAL GAS COMPANY CREDIT AGREEMENT]
SUNTRUST BANK, individually and as
Documentation Agent
By:___________________________________________
Name:_________________________________________
Title:________________________________________
[SIGNATURE PAGE TO FIRST AMENDMENT TO
NEW JERSEY NATURAL GAS COMPANY CREDIT AGREEMENT]
THE BANK OF NEW YORK, individually and as
a Co-Agent
By:___________________________________________
Name:_________________________________________
Title:________________________________________
[SIGNATURE PAGE TO FIRST AMENDMENT TO
NEW JERSEY NATURAL GAS COMPANY CREDIT AGREEMENT]
WACHOVIA BANK, NATIONAL
ASSOCIATION
By:___________________________________________
Name:_________________________________________
Title:________________________________________