Exhibit 4(3C)


 


THIRD AMENDMENT TO


CREDIT AGREEMENT


 


 


THIS THIRD AMENDMENT TO
CREDIT AGREEMENT  (the “Amendment”),
dated and effective as of July 12, 2004, is made by and among NEW JERSEY NATURAL GAS COMPANY, a New
Jersey corporation (the “Borrower”), the BANKS
(as hereinafter defined), FLEET NATIONAL BANK
and SUNTRUST BANK, each
in its capacity as a documentation agent, BANK
OF TOKYO-MITSUBISHI TRUST COMPANY and JPMORGAN CHASE BANK, each in its capacity as a syndication
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”).


 


WITNESSETH:


 


WHEREAS, reference is made to that certain Credit Agreement, dated
as of December 23, 2002, by and among the Borrower, the Guarantors party
thereto, the Banks party thereto, Fleet National Bank and SunTrust Bank, each
in its capacity as a documentation agent, Bank of Tokyo-Mitsubishi Trust
Company and JPMorgan Chase Bank, each in its capacity as a syndication 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, as amended as of August 13,
2003 and December 19, 2003 (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.]  Section 1.1
of the Credit Agreement is hereby amended to insert between the definitions of “Permitted
Acquisitions” and “Permitted Investment” the following new definitions of
Permitted Additional NJNG Indebtedness Documents and Permitted Additional NJNG
Indebtedness:


 


Permitted
Additional NJNG Indebtedness Documents shall mean the note
and other material agreements evidencing the Permitted Additional NJNG
Indebtedness as in effect on the date of the issuance thereof, as the same may
be 


 





















 


supplemented, amended, or modified from time to time as permitted by Section 8.2.18
[Amendments to Permitted Additional NJNG Indebtedness Documents] hereof.


 


Permitted
Additional NJNG Indebtedness shall mean Indebtedness issued
by the Borrower which Indebtedness


 


(i)                                     on
the date of issuance meets the following requirements:


 


(A)                              after
giving effect to the issuance of such Indebtedness (the amount of which shall
be included in Consolidated Total Indebtedness for purposes of the ratio set
forth in Section 8.2.12 [Maximum Leverage Ratio]), the Loan Parties shall
be in pro-forma compliance with the covenants set forth in Section 8.2.12
[Maximum Leverage Ratio] and Section 8.2.13 [Minimum Interest Coverage
Ratio] of this Agreement and no Event of Default or Potential Default shall
exist or be continuing; and


 


(B)                                the
events of default and covenants applicable to such Indebtedness shall not be
more restrictive, in any material respect, than the events of default and
covenants governing those matters or similar matters that are the subject of Section 8.2
[Negative Covenants] and Section 9.1 [Events of Default] of this Agreement
unless Borrower shall have irrevocably offered
the Agent and the Banks to enter at any time into an amendment of this
Agreement to add to this Agreement substantially similar covenants or Events of
Default, as the case may be; and


 


(ii)                                  on
the date of issuance and thereafter as amended or modified, at all times meets
the following requirement:


 


(A)                              such
Indebtedness will be guaranteed by no Person which is a Loan Party or a
Subsidiary of a Loan Party, unless such Person also provides to the lenders
under this Agreement, a Guaranty (such Guaranty to be in form and substance
satisfactory to the requisite lenders under this Agreement) of the Indebtedness
and other obligations of New Jersey Natural Gas under this Agreement and
related loan documents.


 


The Loan Parties
shall promptly after issuance of Permitted Additional NJNG Indebtedness deliver
to the Agent and the Banks a copy of the material documents with respect to the
issuance of such Indebtedness.”


 


(b)                                 Clause
(iv) of Section 8.2.1 [Indebtedness] of the Credit Agreement is hereby
amended and restated in its entirety to read as follows:


 


“(iv)                        Additional,
unsecured Indebtedness of the Borrower (including, without limitation, the
Permitted Additional NJNG Indebtedness) incurred after the Closing Date, not to
exceed at any time outstanding, after giving effect thereto, 65% of Consolidated
Total Capitalization, so long as, both before and after giving effect to any
proposed additional 


 


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Indebtedness:  (a) no Default or Event of Default shall have
occurred and be continuing, (b) provided that such additional Indebtedness
shall not contain covenants, defaults and other terms and conditions more
restrictive than or in addition to those contained in this Agreement (subject
to the provisions of Section 8.2.18 [Amendments to Permitted Additional
NJNG Indebtedness Documents] in the case of the Permitted Additional NJNG
Indebtedness), and (c) the Net Cash Proceeds thereof are applied as a mandatory
prepayment of the Loans as required and a mandatory reduction of the
Commitments by and in accordance with Section 5.4.4;”


 


(c)                                  Section 8.2
[Negative Covenants] of the Credit Agreement is hereby amended to insert the
following new Section 8.2.18:


 


“8.2.18            Amendments to
Permitted Additional NJNG Indebtedness.


 


Each Loan Party and each Subsidiary of each Loan Party shall not enter into any one or more amendments,
modifications, restatements, or the like of the Permitted Additional NJNG
Indebtedness Documents containing (i) covenants or events of default materially
more restrictive than the covenants or Events of Default contained in this
Agreement (an “NJNG Modification Agreement”) unless no later than five (5)
Business Days after entering into any such NJNG Modification Agreement,
Borrower shall have irrevocably offered the Agent and the Banks to enter at any
time into an amendment of this Agreement to add hereto substantially similar
covenants or Events of Default, as the case may be.


 


The foregoing shall not
be construed as:  (i) a consent by the
Agent or any Bank to any action or inaction otherwise restricted or prohibited
by this Agreement, or (ii) a waiver by the Agent or any Bank of any Potential
Default or Event of Default resulting from any NJNG Modification Agreement.”


 


3.                                       Conditions of Effectiveness of
this Amendment.


 


This Amendment shall become effective upon
satisfaction of each of the following conditions, being satisfied to the
satisfaction of the Agent (the “Effective Time”):


 


(a)                                  Legal
Details; Counterparts.  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)                                 Execution
and Delivery of Amendment.  The
Borrower, the Agent and the Required Banks shall have executed this Amendment.


 


(c)                                  No
Default.  Confirmation of Representations
and Warranties.  Each of the Loan
Parties, by its execution and delivery of this Amendment to the Agent, hereby
certifies that:  (i) no Event of Default
or Potential Default has occurred and is continuing, and (ii) the 


 


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representations and warranties made by the Borrower
and the other Loan Parties in or pursuant to the Credit Agreement or any of the
other Loan Documents, are true and correct in all material respects on and as
of the date hereof as if made on such date (except to the extent that any such
representations and warranties expressly relate to an earlier date, in which
case such representations and warranties were true and correct in all material
respects on and as of such earlier date).


 


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. No novation is intended or shall
occur by or as a result of this Amendment.


 


(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 Loan Parties
unconditionally agree to pay and reimburse the Agent and save the Agent
harmless against liability for the payment of all out-of-pocket costs, expenses
and disbursements, including without limitation, reasonable fees and expenses
of counsel incurred by the Agent in connection with the development,
preparation, execution, administration, interpretation or performance of this
Amendment and all other documents or instruments to be delivered in connection
herewith.


 


[SIGNATURES BEGIN ON NEXT PAGE]


 


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[SIGNATURE PAGE TO THIRD 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.


 


 


	
   

  	
   

  	
  BORROWER:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ATTEST:

  	
   

  	
  NEW
  JERSEY NATURAL GAS COMPANY

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
  [Seal]

  
	
  Name:

  	
   

  	
   

  	
  Name:

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  	
  Title:

  	
   

  	
   

  
										



 





















 


	
   

  	
  BANK
  OF TOKYO-MITSUBISHI TRUST

  
	
   

  	
  COMPANY,
  individually and as Syndication Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
					



 





















 


	
   

  	
  BANK
  ONE, NA, individually and as Co-Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
					



 





















 


	
   

  	
  CITIZENS
  BANK OF MASSACHUSETTS,

  
	
   

  	
  individually and
  as a Co-Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
					



 





















 


	
   

  	
  FLEET
  NATIONAL BANK, individually and as

  
	
   

  	
  Documentation
  Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
					



 





















 


	
   

  	
  JPMORGAN
  CHASE BANK, individually and as

  
	
   

  	
  Syndication
  Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
					



 





















 


	
   

  	
  PNC
  BANK, NATIONAL ASSOCIATION,

  
	
   

  	
  individually and
  as Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
					



 





















 


	
   

  	
  SUNTRUST
  BANK, individually and as

  
	
   

  	
  Documentation
  Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
					



 





















 


	
   

  	
  THE
  BANK OF NEW YORK, individually and as

  
	
   

  	
  a Co-Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
					



 





















 


	
   

  	
  WACHOVIA
  BANK, NATIONAL

  
	
   

  	
  ASSOCIATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title: