Exhibit 10.4


 


EXECUTION VERSION


 


FIRST AMENDMENT TO SHELF NOTE PURCHASE
AGREEMENT


 


This First Amendment,
dated as of September 28, 2015 (this “First Amendment”), to the Shelf Agreement (as defined below) is between
New Jersey Resources Corporation, a New Jersey corporation (the “Company”), on one hand, and Metropolitan Life
Insurance Company (“MetLife”) and each of the other institutions which is a signatory to this First Amendment
as a Noteholder (collectively, the “Noteholders”), on the other hand.


 


RECITALS:


 


A. The Company and
MetLife have heretofore entered into that certain Shelf Note Purchase Agreement, dated as of May 12, 2011 (as supplemented by that
certain First Supplement to Shelf Note Purchase Agreement, dated as of September 17, 2012, the “Shelf Agreement”).
The Company has heretofore issued the $25,000,000 1.94% Series 2012A Senior Notes due September 15, 2015 and the $25,000,000 2.51%
Series 2012B Senior Notes due September 15, 2018 pursuant to the Shelf Agreement.


 


B. The Company, MetLife
and the Noteholders now desire to amend the Shelf Agreement in the respects, but only in the respects, hereinafter set forth.


 


C. Capitalized terms
used herein shall have the respective meanings ascribed thereto in the Shelf Agreement unless herein defined or the context shall
otherwise require.


 


D. All requirements
of law have been fully complied with and all other acts and things necessary to make this First Amendment a valid, legal and binding
instrument according to its terms for the purposes herein expressed have been done or performed.


 


NOW, THEREFORE,
upon the full and complete satisfaction of the conditions precedent to the effectiveness of this First Amendment set forth in Section
3.1 hereof, and in consideration of good and valuable consideration the receipt and sufficiency of which is hereby acknowledged,
the Company, MetLife and the Noteholders do hereby agree as follows:


 


SECTION
1. Amendments.


 


1.1.  Section
10.3(c) of the Shelf Agreement shall be and is hereby amended and restated in its entirety to read as follows:


 


(c) Liens (other
than any Lien imposed by Section 430 of the Code or Section 4068 of ERISA or any successor thereto) incurred or deposits made in
the ordinary course of business (1) in connection with workers’ compensation, unemployment insurance and other types of social
security or retirement benefits, (2) to secure (or to obtain letters of credit that secure) the performance of tenders, statutory
obligations, surety bonds, appeal bonds, bids, leases (other than Capital Leases), performance bonds, purchase, construction or
sales contracts, and other similar obligations, in each case not incurred or made in connection with the



    	 



    	



    


borrowing of money,
the obtaining of advances or credit or the payment of the deferred purchase price of property, or (3) in connection with required
margin collateral account deposits made in the ordinary course in connection with Hedging Contracts permitted by this Agreement;


 


1.2.  Schedule
B to the Shelf Agreement shall be and is hereby amended by amending and restating the following definitions contained therein in
their entireties to read as follows:


 


“Debt”
as to any Person at any time, shall mean, without duplication, any and all indebtedness, obligations or liabilities (whether matured
or unmatured, liquidated or unliquidated, direct or indirect, absolute or contingent, or joint or several) of such Person for or
in respect of: (a) borrowed money, (b) amounts raised under or liabilities in respect of any note purchase or acceptance credit
facility, (c) reimbursement obligations (contingent or otherwise) under any letter of credit, currency swap agreement, interest
rate swap, cap, collar or floor agreement or other interest rate or currency exchange rate management device, (d) any other transaction
(including forward sale or purchase agreements, Capital Leases, Synthetic Leases and conditional sales agreements) having the commercial
effect of a borrowing of money entered into by such Person to finance its operations or capital requirements (but not including
trade payables and accrued expenses incurred in the ordinary course of business which are not represented by a promissory note
or other evidence of indebtedness and which are not more than 30 days past due), (e) the net indebtedness, obligations and liabilities
of such Person under any Hedging Contract to the extent constituting “indebtedness,” as determined in accordance with
GAAP, adjusted downward dollar for dollar for any related margin collateral account balances maintained by such Person, (f) any
Guaranty of any Hedging Contract described in the immediately preceding clause (e), (g) any Guaranty of Debt for borrowed money,
(h) any Hybrid Security described in clause (a) of the definition of Hybrid Security or (i) the mandatory repayment obligation
of the issuer of any Hybrid Security described in clause (b) of the definition of Hybrid Security.


 


“Priority
Debt” shall mean (without duplication) the sum of (a) unsecured Debt of Restricted Subsidiaries and indebtedness, obligations
and liabilities of Restricted Subsidiaries constituting Debt pursuant to clause (e) of the definition of Debt in this Agreement
other than (1) Debt owed to the Company or a Wholly-Owned Restricted Subsidiary, (2) Debt outstanding at the time such Person became
a Subsidiary provided that such Debt shall not have been incurred in contemplation of such Person becoming a Subsidiary and (3)
unsecured Debt of a Guarantor under (i) the Guaranty Agreement and (ii) other Guaranties of Debt of the Company permitted to exist
pursuant to Section 10.1 and (b) Debt of the Company secured by a Lien and Debt of any of its Restricted Subsidiaries secured by
a Lien, in each case, other than Liens permitted by paragraphs (a) through (k) of Section 10.3.


 


SECTION
2. Representations and Warranties of the Company.


 


2.1.  To induce
MetLife and the Noteholders to execute and deliver this First Amendment (which representations shall survive the execution and
delivery of this First Amendment), the Company represents and warrants to MetLife and the Noteholders that:



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(a) this
First Amendment has been duly authorized, executed and delivered by it and this First Amendment constitutes the legal, valid and
binding obligation, contract and agreement of the Company and each Guarantor enforceable against the Company and each Guarantor
in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or similar
laws or equitable principles relating to or limiting creditors’ rights generally;


 


(b) the
Shelf Agreement, as amended by this First Amendment, constitutes the legal, valid and binding obligations, contracts and agreements
of the Company enforceable against it in accordance with their respective terms, except as enforcement may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws or equitable principles relating to or limiting creditors’ rights
generally;


 


(c) the
execution, delivery and performance by the Company and each Guarantor of this First Amendment (i) has been duly authorized by all
requisite corporate action and, if required, shareholder action, (ii) does not require the consent or approval of any governmental
or regulatory body or agency, and (iii) will not (A) violate (1) any provision of law, statute, rule or regulation or its certificate
of incorporation or bylaws, (2) any order of any court or any rule, regulation or order of any other agency or government binding
upon it, or (3) any provision of any material indenture, agreement or other instrument to which it is a party or by which its properties
or assets are or may be bound, including, without limitation, the Bank Credit Agreement, or (B) result in a breach or constitute
(alone or with due notice or lapse of time or both) a default under any indenture, agreement or other instrument referred to in
clause (iii)(A)(3) of this Section 2.1(c);


 


(d) as of
the date hereof and after giving effect to this First Amendment, no Default or Event of Default has occurred which is continuing;
and


 


(e) all
the representations and warranties contained in Section 5 of the Shelf Agreement are true and correct in all material respects
with the same force and effect as if made by the Company on and as of the date hereof.


 


SECTION
3. Conditions to Effectiveness of This First Amendment.


 


3.1.  This First
Amendment shall not become effective until, and shall become effective when, each and every one of the following conditions shall
have been satisfied:


 


(a) executed
counterparts of this First Amendment, duly executed by the Company, each Guarantor, MetLife and the Required Holders, shall have
been delivered to Metlife and the Noteholders; and


 


(b) the
representations and warranties of the Company set forth in Section 2 hereof are true and correct on and with respect to the date
hereof.


 


Upon satisfaction of
all of the foregoing, this First Amendment shall become effective.



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SECTION
4. REAFFIRMATION.


 


4.1. Each Guarantor
hereby consents to the terms and conditions of this First Amendment and hereby ratifies and reaffirms all of its payment and performance
obligations, contingent or otherwise, under the Guaranty Agreement, including, without limitation, with respect to the Shelf Agreement,
as amended by this First Amendment.


 


SECTION
5. Payment of Noteholders’ Counsel Fees and Expenses.


 


5.1.  The Company
hereby confirms its obligations under the Shelf Agreement, whether or not the transactions hereby contemplated are consummated,
to pay, promptly after request by MetLife, all reasonable out-of-pocket costs and expenses, including attorneys’ fees and
expenses, incurred by MetLife or the Noteholders in connection with this First Amendment or the transactions contemplated hereby,
in enforcing any rights under First Amendment, or in responding to any subpoena or other legal process or informal investigative
demand issued in connection with this letter or the transactions contemplated hereby. The obligations of the Company under this
Section 5 shall survive transfer by any holder of any Note and payment of any Note.


 


SECTION
6. Miscellaneous.


 


6.1.  This First
Amendment shall be construed in connection with and as part of the Shelf Agreement, and except as modified and expressly amended
by this First Amendment, all terms, conditions and covenants contained in the Shelf Agreement and the Notes are hereby ratified
and shall be and remain in full force and effect. The Company acknowledges and agrees that neither MetLife nor any Noteholder is
under any duty or obligation of any kind or nature whatsoever to grant the Company any additional amendments, waivers or consents
of any type, whether or not under similar circumstances, and no course of dealing or course of performance shall be deemed to have
occurred as a result of this First Amendment.


 


6.2.  Any and
all notices, requests, certificates and other instruments executed and delivered after the execution and delivery of this First
Amendment may refer to the Shelf Agreement without making specific reference to this First Amendment but nevertheless all such
references shall include this First Amendment unless the context otherwise requires.


 


6.3.  The descriptive
headings of the various Sections or parts of this First Amendment are for convenience only and shall not affect the meaning or
construction of any of the provisions hereof.


 


6.4.  This First
Amendment shall be construed and enforced in accordance with, and the rights of the parties shall be governed by, the law of the
State of New York excluding choice-of-law principles of the law of such State that would require the application of the laws of
a jurisdiction other than such State.


 


6.5.  The execution
hereof by you shall constitute a contract between us for the uses and purposes hereinabove set forth, and this First Amendment
may be executed in any number of counterparts, each executed counterpart constituting an original, but all together only one agreement.
Delivery of an executed counterpart of a signature page to this letter by facsimile or



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electronic transmission
shall be effective as delivery of a manually executed counterpart of this letter.


 


[Signature Pages Follow]



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	 	NEW JERSEY RESOURCES CORPORATION	 
	 	 	 	 
	 	By:	/s/ James Kent	 
	 	Name:	James Kent	 
	 	Title:	Treasurer	 
	 	 	 	 
	 	NJR RETAIL HOLDINGS CORPORATION	 
	 	 	 	 
	 	By:	/s/ James Kent	 
	 	Name:	James Kent	 
	 	Title:	Treasurer	 
	 	 	 	 
	 	NJR HOME SERVICES COMPANY	 
	 	 	 	 
	 	By:	/s/ James Kent	 
	 	Name:	James Kent	 
	 	Title:	Treasurer	 
	 	 	 	 
	 	NJR PLUMBING SERVICES, INC.	 
	 	 	 
	 	By:	/s/ James Kent	 
	 	Name:	James Kent	 
	 	Title:	Treasurer	 
	 	 	 	 
	 	NJR SERVICE CORPORATION	 
	 	 	 	 
	 	By:	/s/ James Kent	 
	 	Name:	James Kent	 
	 	Title:	Treasurer	 
	 	 	 	 
	 	NJR ENERGY SERVICES COMPANY	 
	 	 	 	 
	 	By:	/s/ James Kent	 
	 	Name:	James Kent	 
	 	Title:	Treasurer	 




    	 



    	



    

	 	NJR ENERGY INVESTMENTS CORPORATION	 
	 	 	 	 
	 	By:	/s/ James Kent	 
	 	Name:	James Kent	 
	 	Title:	Treasurer	 
	 	 	 	 
	 	NJR CLEAN ENERGY VENTURES CORPORATION
	 	 	 	 
	 	By:	/s/ James Kent	 
	 	Name:	James Kent	 
	 	Title:	Treasurer	 
	 	 	 	 
	 	COMMERCIAL REALTY AND RESOURCES CORP.
	 	 	 	 
	 	By:	/s/ James Kent	 
	 	Name:	James Kent	 
	 	Title:	Treasurer	 
	 	 	 	 
	 	NJR INVESTMENT COMPANY	 
	 	 	 	 
	 	By:	/s/ James Kent	 
	 	Name:	James Kent	 
	 	Title:	Treasurer	 
	 	 	 	 
	 	NJR MIDSTREAM HOLDINGS CORPORATION	 
	 	 	 
	 	By:	/s/ James Kent	 
	 	Name:	James Kent	 
	 	Title:	Treasurer	 
	 	 	 	 


	 	NJR ENERGY CORPORATION	 
	 	 	 	 
	 	By:	/s/ James Kent	 
	 	Name:	James Kent	 
	 	Title:	Treasurer	 




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	 	NJR STORAGE HOLDINGS COMPANY	 
	 	 	 	 
	 	By:	/s/ James Kent	 
	 	Name:	James Kent	 
	 	Title:	Treasurer	 
	 	 	 	 
	 	TWO DOT WIND FARM, LLC	 
	 	 	 	 
	 	By:	NJR Clean Energy Ventures Corporation II, its Sole Member
	 	 	 	 
	 	By:	/s/ James Kent	 
	 	Name:	James Kent	 
	 	Title:	Treasurer	 
	 	 	 	 
	 	NJR CLEAN ENERGY VENTURES II CORPORATION
	 	 	 	 
	 	By:	/s/ James Kent	 
	 	Name:	James Kent	 
	 	Title:	Treasurer	 
	 	 	 	 
	 	CARROLL AREA WIND FARM, LLC	 
	 	 	 	 
	 	By:	NJR Clean Energy Ventures II Corporation, its Sole Member
	 	 	 	 
	 	By:	/s/ James Kent	 
	 	Name:	James Kent	 
	 	Title:	Treasurer	 
	 	 	 	 


	 	ALEXANDER WIND FARM, LLC	 
	 	 	 	 
	 	By:	NJR Clean Energy Ventures II Corporation, its Sole Member
	 	 	 	 
	 	By:	/s/ James Kent	 
	 	Name:	James Kent	 
	 	Title:	Treasurer	 




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	 	RINGER HILL WIND, LLC	 
	 	By:	NJR Clean Energy Ventures II Corporation
	 	 	 	 
	 	By:	/s/ James Kent	 
	 	Name:	James Kent	 
	 	Title:	Treasurer	 




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	ACCEPTED AND AGREED TO:	 
	 	 	 	 
	METROPOLITAN LIFE INSURANCE COMPANY	 
	 	 	 	 
	By: 	/s/ Nancy Doyle	 
	 	Name:  Nancy Doyle	 
	 	Title:  Director	 
	 	 	 
	NOTEHOLDERS:
	 	 	 
	METLIFE INSURANCE K.K.
	 	 	 
	By:	MetLife Investment Advisors, LLC	 
	 	Its Investment Manager	 
	 	 	 
	By:	/s/ Nancy Doyle	 
	 	Name: Nancy Doyle	 
	 	Title: Director	 
	 	 	 
	METLIFE INSURANCE COMPANY USA (f/k/a MetLife Insurance Company of Connecticut)
	 	 	 
	By:	MetLife Investment Advisors, LLC	 
	 	Its Investment Manager	 
	 	 	 
	By: 	/s/ Nancy Doyle	 
	 	Name:  Nancy Doyle	 
	 	Title: Director	 



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