Conformed
Copy
New
Jersey Resources Corporation
$50,000,000
6.05% Senior Notes due September 24, 2017
______________
Note
Purchase Agreement
_____________
Dated
as
of September 24, 2007
TABLE
OF CONTENTS
(Not
a
part of the Agreement)
|
Section
|
HEADING
|
PAGE
|
|
|
SECTION
1.
|
AUTHORIZATION
OF NOTES
|
6
|
|
|
Section 1.1.
|
Authorization
of Notes
|
6
|
|
|
SECTION 2.
|
SALE
AND PURCHASE OF NOTES; GUARANTY
|
6
|
|
|
Section 2.1.
|
Sale
and Purchase of Notes
|
6
|
|
|
Section 2.2.
|
Guaranty
Agreement
|
6
|
|
|
SECTION 3.
|
CLOSING
|
6
|
|
|
SECTION
4.
|
CONDITIONS
TO CLOSING
|
7
|
|
|
Section
4.1
|
Representations
and Warranties
|
7
|
|
|
Section
4.2
|
Performance;
No Default
|
7
|
|
|
Section
4.3
|
Compliance
Certificates
|
7
|
|
|
Section
4.4
|
Guaranty
Agreement
|
7
|
|
|
Section
4.5
|
Opinions
of Counsel
|
7
|
|
|
Section
4.6
|
Purchase
Permitted by Applicable Law, Etc
|
7
|
|
|
Section
4.7
|
Related
Transactions
|
7
|
|
|
Section
4.8
|
Payment
of Special Counsel Fees
|
7
|
|
|
Section
4.9
|
Private
Placement Number
|
8
|
|
|
Section
4.10
|
Changes
in Corporate Structure
|
8
|
|
|
Section
4.11
|
Funding
Instructions
|
8
|
|
|
Section
4.12
|
Proceedings
and Documents
|
||
|
SECTION 5.
|
REPRESENTATIONS
AND WARRANTIES OF THE COMPANY
|
8
|
|
|
Section
5.1
|
Organization;
Power and Authority
|
8
|
|
|
Section
5.2
|
Authorization,
Etc
|
8
|
|
|
Section
5.3
|
Disclosure
|
8
|
|
|
Section
5.4
|
Organization
and Ownership of Shares of Subsidiaries
|
9
|
|
|
Section
5.5
|
Financial
Statements
|
9
|
|
|
Section
5.6
|
Compliance
with Laws, Other Instruments, Etc
|
9
|
|
|
Section
5.7
|
Governmental
Authorizations, Etc
|
9
|
|
|
Section
5.8
|
Litigation;
Observance of Statutes and Orders
|
9
|
|
|
Section
5.9
|
Taxes
|
10
|
|
|
Section
5.10
|
Title
to Property; Leases
|
10
|
|
|
Section
5.11
|
Licenses,
Permits, Etc
|
10
|
|
|
Section
5.12
|
Compliance
with ERISA
|
10
|
|
|
Section
5.13
|
Private
Offering by the Company
|
10
|
|
|
Section
5.14
|
Use
of Proceeds; Margin Regulations
|
11
|
|
|
Section
5.15
|
Existing
Debt
|
11
|
|
|
Section
5.16
|
Foreign
Assets Control Regulations, Etc
|
11
|
|
|
Section
5.17
|
Status
under Certain Statutes
|
11
|
|
|
Section
5.18
|
Environmental
Matters
|
11
|
|
|
Section
5.19
|
Notes
Rank Pari Passu
|
12
|
|
|
SECTION
6.
|
REPRESENTATIONS
OF THE PURCHASERS
|
12
|
|
|
Section
6.1
|
Purchase
for Investment
|
12
|
|
|
Section
6.2
|
Source
of Funds
|
12
|
TABLE
OF CONTENTS
(continued)
|
Section
|
HEADING
|
PAGE
|
|
|
SECTION
7
|
INFORMATION
AS TO COMPANY
|
13
|
|
|
Section
7.1
|
Financial
and Business Information
|
13
|
|
|
Section
7.2
|
Officer’s
Certificate
|
15
|
|
|
Section
7.3
|
Inspection
|
15
|
|
|
SECTION
8.
|
PREPAYMENT
OF THE NOTES
|
15
|
|
|
Section
8.1
|
Required
Prepayments
|
15
|
|
|
Section
8.2
|
Optional
Prepayments with Make-Whole Amount
|
15
|
|
|
Section
8.3
|
Allocation
of Partial Prepayments
|
16
|
|
|
Section
8.4
|
Maturity;
Surrender, Etc
|
16
|
|
|
Section
8.5
|
Purchase
of Notes
|
16
|
|
|
Section
8.6
|
Offer
to Prepay Upon Asset Disposition
|
16
|
|
|
Section
8.7
|
Make-Whole
Amount for Notes
|
16
|
|
|
SECTION
9.
|
AFFIRMATIVE
COVENANTS
|
17
|
|
|
Section
9.1
|
Compliance
with Law
|
17
|
|
|
Section
9.2
|
Insurance
|
17
|
|
|
Section
9.3
|
Maintenance
of Properties
|
18
|
|
|
Section
9.4
|
Payment
of Taxes and Claims
|
18
|
|
|
Section
9.5
|
Corporate
Existence, Etc
|
18
|
|
|
Section
9.6
|
Ownership
of Subsidiaries
|
18
|
|
|
Section
9.7
|
Guaranty
Agreement
|
18
|
|
|
Section
9.8
|
New
Jersey Natural Gas Regulated Nature
|
19
|
|
|
Section
9.9
|
Notes
to Rank Pari Passu
|
19
|
|
|
SECTION
10.
|
NEGATIVE
COVENANTS
|
19
|
|
|
Section
10.1
|
Leverage
Ratio
|
19
|
|
|
Section
10.2
|
Limitation
on Priority Debt
|
19
|
|
|
Section
10.3
|
Liens
|
19
|
|
|
Section
10.4
|
Restricted
Payments
|
21
|
|
|
Section
10.5
|
Restrictions
on Dividends of Subsidiaries, Etc
|
21
|
|
|
Section
10.6
|
Sale
of Assets, Etc
|
21
|
|
|
Section
10.7
|
Merger,
Consolidation, Etc
|
22
|
|
|
Section
10.8
|
Disposal
of Ownership of a Restricted Subsidiary
|
22
|
|
|
Section
10.9
|
Limitations
on Subsidiaries, Partnerships and Joint Ventures
|
22
|
|
|
Section
10.10
|
Limitation
on Certain Leases
|
23
|
|
|
Section
10.11
|
Nature
of Business
|
23
|
|
|
Section
10.12
|
Transactions
with Affiliates
|
23
|
|
|
Section
10.13
|
Designation
of Restricted and Unrestricted Subsidiaries
|
23
|
|
|
Section
10.14
|
Terrorism
Sanctions Regulations
|
23
|
|
|
SECTION
11.
|
EVENTS
OF DEFAULT
|
24
|
|
|
SECTION
12.
|
REMEDIES
ON DEFAULT, ETC
|
25
|
|
|
Section
12.1
|
Acceleration
|
25
|
|
|
Section
12.2
|
Other
Remedies
|
26
|
|
|
Section
12.3
|
Rescission
|
26
|
|
|
Section
12.4
|
No
Waivers or Election of Remedies, Expenses, Etc
|
26
|
TABLE
OF CONTENTS
(continued)
|
Section
|
HEADING
|
PAGE
|
|
|
SECTION
13.
|
REGISTRATION;
EXCHANGE; SUBSTITUTION OF NOTES
|
26
|
|
|
Section
13.1
|
Registration
of Notes
|
26
|
|
|
Section
13.2
|
Transfer
and Exchange of Notes
|
26
|
|
|
Section
13.3
|
Replacement
of Notes
|
27
|
|
|
SECTION 14.
|
PAYMENTS
ON NOTES
|
27
|
|
|
Section 14.1.
|
Place
of Payment
|
27
|
|
|
Section 14.2.
|
Home
Office Payment
|
27
|
|
|
SECTION 15.
|
EXPENSES,
ETC
|
27
|
|
|
Section 15.1.
|
Transaction
Expenses
|
27
|
|
|
Section 15.2.
|
Survival
|
28
|
|
|
SECTION 16.
|
SURVIVAL
OF REPRESENTATIONS AND WARRANTIES; ENTIRE AGREEMENT
|
28
|
|
|
SECTION
17.
|
AMENDMENT
AND WAIVER
|
28
|
|
|
Section
17.1
|
Requirements
|
28
|
|
|
Section
17.2
|
Solicitation
of Holders of Notes
|
28
|
|
|
Section
17.3
|
Binding
Effect, Etc
|
28
|
|
|
Section
17.4
|
Notes
Held by Company, Etc
|
29
|
|
|
SECTION
18.
|
NOTICES
|
29
|
|
|
SECTION 19.
|
REPRODUCTION
OF DOCUMENTS
|
29
|
|
|
SECTION 20.
|
CONFIDENTIAL
INFORMATION
|
30
|
|
|
SECTION 21.
|
SUBSTITUTION
OF PURCHASER
|
30
|
|
|
SECTION 22.
|
MISCELLANEOUS
|
30
|
|
|
Section
22.1
|
Successors
and Assigns
|
30
|
|
|
Section
22.2
|
Submission
to Jurisdiction; Waiver of Jury Trial
|
30
|
|
|
Section
22.3
|
Payments
Due on Non-Business Days
|
31
|
|
|
Section
22.4
|
Accounting
Terms
|
31
|
|
|
Section
22.5
|
Severability
|
31
|
|
|
Section
220.6
|
Construction
|
31
|
|
|
Section
22.7
|
Counterparts
|
31
|
|
|
Section
22.8
|
Governing
Law
|
31
|
Attachments
to Note Purchase Agreement:
|
Schedule A
|
—
|
Information
Relating to Purchasers
|
|
Schedule B
|
—
|
Defined
Terms
|
|
Schedule 4.10
|
—
|
Changes
in Corporate Structure
|
|
Schedule 5.3
|
—
|
Disclosure
Materials
|
|
Schedule 5.4
|
—
|
Subsidiaries
of the Company and Ownership of Subsidiary Stock
|
|
Schedule 5.5
|
—
|
Financial
Statements
|
|
Schedule 5.8
|
—
|
Certain
Litigation
|
|
Schedule 5.11
|
—
|
Patents,
Etc.
|
|
Schedule 5.14
|
—
|
Use
of Proceeds
|
|
Schedule 5.15
|
—
|
Existing
Debt
|
|
Exhibit 1
|
—
|
Form
of 6.05% Senior Note due September 24, 2017
|
|
Exhibit 2
|
—
|
Form
of Subsidiary Guaranty Agreement
|
|
Exhibit 4.5(a)
|
—
|
Form
of Opinion of Special Counsel for the Company and the
Guarantors
|
|
Exhibit 4.5(b)
|
—
|
Form
of Opinion of Special Counsel for the
Purchasers
|
New
Jersey Resources Corporation
1415
Wyckoff Road
Wall,
New Jersey 07719
6.05%
Senior Notes due September 24, 2017
Dated
as
of September 24, 2007
To
the
Purchasers listed in
the
attached Schedule A:
Ladies
and Gentlemen:
New
Jersey Resources Corporation, a New Jersey corporation (the
“Company”
),
agrees with the purchasers listed in the attached
Schedule
A
(each, a
“Purchaser”
and
collectively, the
“Purchasers”
) as follows:
|
Section 1.
|
Authorization
of Notes.
|
Section 1.1.
Authorization
of
Notes.
The Company will authorize the issue and sale of
$50,000,000 aggregate principal amount of its 6.05% Senior Notes due
September 24, 2017 (the
“Notes,”
such term to include any such
notes issued in substitution therefor pursuant to
Section 13
). The Notes shall be substantially
in the form set out in
Exhibit 1
, with such changes
therefrom, if any, as may be approved by the Purchasers and the
Company. Certain capitalized terms used in this Agreement are defined
in
Schedule
B
; references to a “Schedule”
or an “Exhibit” are, unless otherwise specified, to a Schedule
or an Exhibit
attached to this Agreement.
|
Section 2.
|
Sale
and Purchase of Notes; Guaranty.
|
Section 2.1.
Sale
and Purchase of
Notes.
Subject to the terms and conditions of this Agreement,
the Company will issue and sell to each Purchaser and each Purchaser will
purchase from the Company, at the Closing provided for in
Section 3
, Notes in the principal amount specified
opposite such Purchaser’s name in
Schedule
A
for an aggregate purchase
price of $49,850,000. Each Purchaser’s obligations hereunder are
several and not joint and no Purchaser shall have any obligation or liability
to
any Person for the performance or nonperformance by any other Purchaser
hereunder.
Section 2.2.
Guaranty
Agreement.
The obligations of the Company hereunder and under
the Notes are absolutely, unconditionally and irrevocably guaranteed by each
Restricted Subsidiary existing on the date of the Closing and each other
Subsidiary from time to time required to guaranty the Notes pursuant to
Section 9.7
(each a
“Guarantor”
and,
collectively, the
“Guarantors”
), pursuant to that
certain Subsidiary Guaranty Agreement dated as of September 24, 2007 (as
the same may be amended, supplemented, restated or otherwise modified from
time
to time, the
“Guaranty Agreement”
) substantially in the form of
Exhibit 2
.
|
Section 3.
|
Closing.
|
The
sale
and purchase of the Notes to be purchased by the Purchasers shall occur at
the
offices of Schiff Hardin LLP, 900 Third Avenue, 23rd Floor, New York, New York
10022, at 11:00 a.m., New York, New York time, at a closing (the
“Closing”
) on September 24, 2007 or on such other Business Day
thereafter on or prior to September 28, 2007 as may be agreed upon by the
Company and the Purchasers. At the Closing, the Company will deliver
to each Purchaser the Notes to be purchased by such Purchaser in the form of
a
single Note (or such greater number of Notes in denominations of at least
$100,000 as such Purchaser may request) dated the date of the Closing and
registered in such Purchaser’s name (or in the name of its nominee), against
delivery by such Purchaser to the Company or its order of immediately available
funds in the amount of the purchase price therefor by wire transfer of
immediately available funds for the account of the Company in accordance with
the funding instructions provided pursuant to
Section 4.11
. If at the Closing the Company
shall fail to tender such Notes to any Purchaser as provided above in this
Section 3
, or any of the conditions specified in
Section 4
shall not have been fulfilled to any Purchaser’s
satisfaction, such Purchaser shall, at its election, be relieved of all further
obligations under this Agreement, without thereby waiving any rights such
Purchaser may have by reason of such failure or such
nonfulfillment.
|
Section 4.
|
Conditions
to Closing.
|
Each
Purchaser’s obligation to purchase and pay for the Notes to be sold to such
Purchaser at the Closing is subject to the fulfillment to such Purchaser’s
satisfaction, prior to or at the Closing, of the following
conditions:
Section 4.1.
Representations
and
Warranties
. (a) The representations and warranties of the
Company in this Agreement shall be correct when made and at the time of the
Closing.
(b)
The
representations and warranties of
each Guarantor in the Guaranty Agreement shall be correct when made and at
the
time of the Closing.
Section 4.2.
Performance;
No
Default
. The Company and each Guarantor shall have performed and
complied with all agreements and conditions contained in this Agreement or
in
the Guaranty Agreement, as applicable, required to be performed or complied
with
by it prior to or at the Closing, and after giving effect to the issue and
sale
of the Notes (and the application of the proceeds thereof as contemplated by
Schedule 5.14
), no Default or Event of Default shall have
occurred and be continuing.
Section 4.3.
Compliance
Certificates
.
(a)
Officer’s
Certificate
. (1) The Company shall have delivered to such
Purchaser an Officer’s Certificate, dated the date of the Closing, certifying
that the conditions specified in
Sections 4.1, 4.2
and
4.10
have been fulfilled.
(2)
Each
Guarantor shall have delivered
to such Purchaser an Officer’s Certificate, dated the date of the Closing,
certifying that the conditions specified in
Section 4.1(b)
and
4.2
have been fulfilled.
(b)
Secretary’s
Certificate
. (1) The Company shall have delivered to such
Purchaser a certificate of its Secretary, dated the date of Closing, certifying
as to the resolutions attached thereto and other corporate proceedings relating
to the authorization, execution and delivery of the Notes and this
Agreement.
(2)
Each
Guarantor shall have delivered
to such Purchaser a certificate of its Secretary, dated the date of Closing,
certifying as to the resolutions attached thereto and other corporate or similar
proceedings relating to the authorization, execution and delivery of the
Guaranty Agreement.
Section 4.4.
Guaranty
Agreement
. The Guaranty Agreement shall have been duly
authorized, executed and delivered by each Guarantor and shall be in full force
and effect and such Purchaser shall have received a duly executed copy
thereof.
Section 4.5.
Opinions
of
Counsel
. Such Purchaser shall have received opinions in form and
substance satisfactory to such Purchaser, dated the date of the Closing
(a) from Chapman and Cutler LLP, special counsel for the Company and the
Guarantors, covering the matters set forth in
Exhibit 4.5(a)
and covering such other matters incident to the transactions
contemplated hereby as such Purchaser or special counsel to the Purchasers
may
reasonably request (and the Company hereby instructs its counsel to deliver
such
opinion to such Purchaser) and (b) from Schiff Hardin LLP, special counsel
to the Purchasers in connection with such transactions, substantially in the
form set forth in
Exhibit 4.5(b)
and covering such other
matters incident to such transactions as such Purchaser may reasonably
request.
Section 4.6.
Purchase
Permitted by Applicable
Law, Etc
. On the date of the Closing,
such Purchaser’s purchase of Notes shall (a) be permitted by the
laws and regulations of each jurisdiction to which such Purchaser is subject,
without recourse to provisions (such as Section 1405(a)(8) of the New York
Insurance Law) permitting limited investments by insurance companies without
restriction as to the character of the particular investment, (b) not
violate any applicable law or regulation (including, without limitation,
Regulation T, U or X of the Board of Governors of the Federal Reserve System)
and (c) not subject such Purchaser to any tax, penalty or liability under
or pursuant to any applicable law or regulation. If requested by any
Purchaser, such Purchaser shall have received an Officer’s Certificate
certifying as to such matters of fact as such Purchaser may reasonably specify
to enable it to determine whether such purchase is so permitted.
Section 4.7.
Related
Transactions
. The Company shall have consummated the sale of the
entire principal amount of the Notes scheduled to be sold on the date of the
Closing pursuant to this Agreement.
Section 4.8.
Payment
of Special Counsel Fees.
Without limiting the provisions of
Section 15.1
, the
Company shall have paid on or before the Closing the reasonable fees, charges
and disbursements of special counsel to the Purchasers referred to in
Section 4.5(b)
to the extent reflected in a statement of
such counsel rendered to the Company at least one Business Day prior to the
Closing.
Section 4.9.
Private
Placement
Number
. A Private Placement Number issued by Standard &
Poor’s CUSIP Service Bureau (in cooperation with the Securities Valuation Office
of the National Association of Insurance Commissioners) shall have been obtained
for the Notes.
Section 4.10.
Changes
in Corporate
Structure
. Except as specified in
Schedule 4.10
, the Company shall not have changed its
jurisdiction of incorporation or been a party to any merger or consolidation
and
shall not have succeeded to all or any substantial part of the liabilities
of
any other entity, at any time following the date of the most recent financial
statements referred to in
Schedule 5.5
.
Section 4.11.
Funding
Instructions
. At least three Business Days prior to the date of
the Closing, such Purchaser shall have received written instructions executed
by
an authorized financial officer of the Company on letterhead of the Company
directing the manner of the payment of funds and setting forth (a) the name
and
address of the transferee bank, (b) such transferee bank’s ABA number, (c) the
account name and number into which the purchase price for the Notes is to be
deposited and (d) the name and telephone number of the account representative
responsible for verifying receipt of such funds.
Section 4.12.
Proceedings
and
Documents
. All corporate and other proceedings in connection
with the transactions contemplated by this Agreement and all documents and
instruments incident to such transactions shall be satisfactory to such
Purchaser and special counsel to the Purchasers, and such Purchaser and special
counsel to the Purchasers shall have received all such counterpart originals
or
certified or other copies of such documents as such Purchaser or special counsel
to the Purchasers may reasonably request.
|
Section 5.
|
Representations
and Warranties of the Company.
|
The
Company represents and warrants to each Purchaser that:
Section 5.1.
Organization;
Power and
Authority
. The Company is a corporation duly organized, validly
existing and in good standing under the laws of its jurisdiction of
incorporation, and is duly qualified as a foreign corporation and is in good
standing in each jurisdiction in which such qualification is required by law,
other than those jurisdictions as to which the failure to be so qualified or
in
good standing would not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect. The Company has the
corporate power and authority to own or lease the properties it purports to
own
or lease, to transact the business it transacts and proposes to transact, to
execute and deliver this Agreement and the Notes and to perform the provisions
hereof and thereof.
Section 5.2.
Authorization,
Etc
. (a) This Agreement and the Notes have been duly authorized
by all necessary corporate action on the part of the Company, and this Agreement
constitutes, and upon execution and delivery thereof each Note will constitute,
a legal, valid and binding obligation of the Company enforceable against the
Company in accordance with its terms, except as such enforceability may be
limited by (1) applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting the enforcement of creditors’ rights
generally and (2) general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
(b)
The
Guaranty Agreement has been duly
authorized by all necessary corporate or other action on the part of each
Guarantor, and the Guaranty Agreement constitutes a legal, valid and binding
obligation of each Guarantor enforceable against each Guarantor in accordance
with its terms, except as such enforceability may be limited by
(1) applicable bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting the enforcement of creditors’ rights generally and
(2) general principles of equity (regardless of whether such enforceability
is considered in a proceeding in equity or at law).
Section 5.3.
Disclosure
. The
Company, through its agent, Goldman, Sachs & Co., has delivered to each
Purchaser a copy of a Private Placement Memorandum, dated September 2007 (the
“Memorandum”
), relating to the transactions contemplated
hereby. Except as disclosed in
Schedule 5.3
,
this Agreement, the Memorandum, the documents, certificates or other writings
identified in
Schedule 5.3
and the financial statements
listed in
Schedule 5.5
(collectively, the
“Disclosure
Documents”
), taken as a whole, do not contain any untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein not misleading in light of the circumstances under which
they
were made. Except as disclosed in the Disclosure Documents, since
September 30, 2006, there has been no change in the financial condition,
operations, business or properties of the Company, any of its Restricted
Subsidiaries or New Jersey Natural Gas except changes that, individually or
in
the aggregate, would not reasonably be expected to have a Material Adverse
Effect.
Section
5.4.
Organization
and
Ownership of Shares of
Subsidiaries
. (a)
Schedule 5.4
is
(except as noted therein) a complete and correct list of the Company’s
Subsidiaries, showing, as to each Subsidiary, the correct name thereof, the
jurisdiction of its organization, the percentage of shares of each class of
its
capital stock or similar equity interests outstanding owned by the Company
and
each other Subsidiary and whether or not such Subsidiary is a Restricted
Subsidiary, an Inactive Subsidiary and/or a Regulated Entity.
(b)
All
of the outstanding shares of
capital stock or similar equity interests of each Restricted Subsidiary and
New
Jersey Natural Gas shown in
Schedule 5.4
as being owned by
the Company and its Subsidiaries have been validly issued, are fully paid and
nonassessable and are owned by the Company or another Subsidiary free and clear
of any Lien (except as otherwise disclosed in
Schedule 5.4
).
(c)
Each
Restricted Subsidiary identified
in
Schedule 5.4
and New Jersey Natural
Gas
is a corporation or other legal entity duly organized,
validly existing and in good standing under the laws of its jurisdiction of
organization, and is duly qualified as a foreign corporation or other legal
entity and is in good standing in each jurisdiction in which such qualification
is required by law, other than those jurisdictions as to which the failure
to be
so qualified or in good standing would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect. Each such
Restricted Subsidiary and New Jersey Natural Gas has the corporate or other
power and authority to own or lease the properties it purports to own or lease,
to transact the business it transacts and proposes to transact and, in the
case
of each Restricted Subsidiary that is a Guarantor, to execute and deliver the
Guaranty Agreement and to perform the provisions thereof.
Section 5.5.
Financial
Statements
. The Company has delivered to each Purchaser copies
of the consolidated financial statements of the Company and its Subsidiaries
listed on
Schedule 5.5
. All of said financial
statements (including in each case the related schedules and notes) fairly
present in all material respects the consolidated financial position of the
Company and its Subsidiaries as of the respective dates specified in such
Schedule and the consolidated results of their operations and cash flows for
the
respective periods so specified and have been prepared in accordance with GAAP
consistently applied throughout the periods involved except as set forth in
the
notes thereto (subject, in the case of any interim financial statements, to
normal year-end adjustments). The Company and its Subsidiaries do not have
any
Material liabilities that are not disclosed on such financial statements or
otherwise disclosed in the Disclosure Documents.
Section 5.6.
Compliance
with Laws, Other
Instruments, Etc
. The execution, delivery and performance by the
Company of this Agreement and the Notes and the execution and delivery by each
Guarantor of the Guaranty Agreement will not (a) contravene, result in any
breach of, or constitute a default under, or result in the creation of any
Lien
in respect of any property of the Company, any Restricted Subsidiary or New
Jersey Natural Gas under, any indenture, mortgage, deed of trust, loan, purchase
or credit agreement, lease, corporate charter or by-laws, or any other Material
agreement or instrument to which the Company, any Restricted Subsidiary or
New
Jersey Natural Gas is bound or by which the Company, any Restricted
Subsidiary or New Jersey Natural Gas or any of their respective
properties may be bound or affected, (b) conflict with or result in a
breach of any of the terms, conditions or provisions of any order, judgment,
decree or ruling of any court, arbitrator or Governmental Authority applicable
to the Company, any Restricted Subsidiary or New Jersey Natural Gas or
(c) violate any provision of any statute or other rule or regulation of any
Governmental Authority applicable to the Company, any Restricted Subsidiary
or
New Jersey Natural Gas.
Section 5.7.
Governmental
Authorizations,
Etc
. No consent, approval or authorization of, or registration,
filing or declaration with, any Governmental Authority is required in connection
with the execution, delivery or performance by (a) the Company of this
Agreement or the Notes or (b) any Guarantor of the Guaranty Agreement, in each
case, other than such consents, approvals, authorizations, registrations,
filings or declarations that have been obtained or made prior to the date of
the
Closing.
Section 5.8.
Litigation;
Observance of
Statutes and Orders
. (a) Except as disclosed in
Schedule 5.8, there are no actions, suits or proceedings pending or, to the
knowledge of the Company, threatened against or affecting the Company, any
Restricted Subsidiary or New Jersey Natural Gas or any property of the Company,
any Restricted Subsidiary or New Jersey Natural Gas in any court or before
any
arbitrator of any kind or before or by any Governmental Authority that,
individually or in the aggregate, would reasonably be expected to have a
Material Adverse Effect.
(b)
None
of the Company, any Restricted
Subsidiary or New Jersey Natural Gas is in default under any order, judgment,
decree or ruling of any court, arbitrator or Governmental Authority or is in
violation of any applicable law, ordinance, rule or regulation (including,
without limitation, ERISA, Environmental Laws or the USA Patriot Act) of any
Governmental Authority, which default or violation, individually or in the
aggregate, would reasonably be expected to have a Material Adverse
Effect.
Section
5.9.
Taxes
. The Company
and
its Subsidiaries have filed all income tax returns that are required to have
been filed in any jurisdiction, and have paid all taxes shown to be due and
payable on such returns and all other taxes and assessments payable by them,
to
the extent such taxes and assessments have become due and payable and before
they have become delinquent, except for any taxes and assessments (a) the
amount of which is not, individually or in the aggregate, Material or
(b) the amount, applicability or validity of which is currently being
contested in good faith by appropriate proceedings and with respect to which
the
Company or a Subsidiary, as the case may be, has established adequate reserves
in accordance with GAAP. The charges, accruals and reserves on the
books of the Company and its Subsidiaries in respect of Federal, state or other
taxes for all fiscal periods are adequate. The Federal income tax
liabilities of the Company and its Subsidiaries have been determined by the
Internal Revenue Service and paid for all fiscal years up to and including
the
fiscal year ended September 30, 2004.
Section 5.10.
Title
to Property;
Leases
. The Company, its Restricted Subsidiaries and New Jersey
Natural Gas have good and sufficient title related to the ownership of their
respective Material properties, including all such properties reflected in
the
most recent audited balance sheet referred to in
Section 5.5
or purported to have been acquired by the Company, any Restricted
Subsidiary or New Jersey Natural Gas after said date (except as sold or
otherwise disposed of in the ordinary course of business), in each case free
and
clear of Liens prohibited by this Agreement, except for those defects in title
and Liens that, individually or in the aggregate, would not have a Material
Adverse Effect. All Material leases are valid and subsisting and are
in full force and effect in all material respects.
Section 5.11.
Licenses,
Permits,
Etc
. Except as disclosed in
Schedule 5.11
,
the Company, its Restricted Subsidiaries and New Jersey Natural Gas own or
possess all licenses, permits, franchises, authorizations, patents, copyrights,
proprietary software, service marks, trademarks, trade names and domain names
or
rights thereto, that are Material, without known conflict with the rights of
others, except for those conflicts that, individually or in the aggregate,
would
not have a Material Adverse Effect.
Section 5.12.
Compliance
with
ERISA
. (a) The Company and each ERISA Affiliate have
operated and administered each Plan in compliance with all applicable laws
except for such instances of noncompliance as have not resulted in and would
not
reasonably be expected to result in a Material Adverse
Effect. Neither the Company nor any ERISA Affiliate has incurred any
liability pursuant to Title I or IV of ERISA or the penalty or excise tax
provisions of the Code relating to employee benefit plans (as defined in
Section 3 of ERISA), and no event, transaction or condition has occurred or
exists that would reasonably be expected to result in the incurrence of any
such
liability by the Company or any ERISA Affiliate, or in the imposition of any
Lien on any of the rights, properties or assets of the Company or any ERISA
Affiliate, in either case pursuant to Title I or IV of ERISA or to such penalty
or excise tax provisions or to Section 401(a)(29) or 412 of the Code or
Section 4068 of ERISA, other than such liabilities or Liens as would not be,
individually or in the aggregate, Material.
(b)
The
present value of the aggregate
benefit liabilities under each of the Plans which are subject to Title IV
of ERISA (other than Multiemployer Plans), determined as of the end of such
Plan’s most recently ended plan year on the basis of the actuarial assumptions
specified for funding purposes in such Plan’s most recent actuarial valuation
report, did not exceed the aggregate current value of the assets of such Plans
allocable to such benefit liabilities by more than $8,000,000. The
term “benefit liabilities” has the meaning specified in Section 4001 of
ERISA and the terms “current value” and “present value” have the meanings
specified in Section 3 of ERISA.
(c)
The
Company and its ERISA Affiliates
have not incurred withdrawal liabilities (and are not subject to contingent
withdrawal liabilities) under Section 4201 or 4204 of ERISA in respect of
Multiemployer Plans that, individually or in the aggregate, are
Material.
(d)
The
accumulated post-retirement
benefit obligation (determined as of the last day of the Company’s most recently
ended fiscal year in accordance with Financial Accounting Standards Board
Statement No. 106, without regard to liabilities attributable to continuation
coverage mandated by Section 4980B of the Code) of the Company, its
Restricted Subsidiaries and New Jersey Natural Gas is not Material.
(e)
The
execution and delivery of this
Agreement and the issuance and sale of the Notes hereunder will not involve
any
transaction that is subject to the prohibitions of Section 406 of ERISA or
in connection with which a tax could be imposed pursuant to
Section 4975(c)(1)(A)-(D) of the Code. The representation by the
Company in the first sentence of this
Section 5.12(e)
with
respect to each Purchaser is made in reliance upon and subject to the accuracy
of such Purchaser’s representation in
Section 6.2
as to
the sources of the funds used to pay the purchase price of the Notes to be
purchased by such Purchaser.
Section 5.13.
Private
Offering by the
Company
. Neither the Company nor anyone authorized to act on its
behalf has offered the Notes or the Guaranty Agreement or any similar securities
for sale to, or solicited any offer to buy any of the same from, or otherwise
approached or negotiated in respect thereof with, any Person other than the
Purchasers and not more than __ other Institutional Investors of the type
described in clause (c) of the definition thereof, each of which has been
offered the Notes and the Guaranty Agreement at a private sale for
investment. Neither the Company nor anyone acting on its behalf has
taken, or will take, any action that would subject the issuance or sale of
the
Notes or the execution and performance of the Guaranty Agreement to the
registration requirements of Section 5
of the
Securities Act.
Section 5.14.
Use
of Proceeds; Margin
Regulations
. The Company will apply the proceeds of the sale of
the Notes as set forth in
Schedule 5.14
. No
part of the proceeds from the sale of the Notes hereunder will be used, directly
or indirectly, for the purpose of buying or carrying any margin stock within
the
meaning of Regulation U of the Board of Governors of the Federal Reserve System
(12 CFR 221), or for the purpose of buying or carrying or trading in any
securities under such circumstances as to involve the Company in a violation
of
Regulation X of said Board (12 CFR 224) or to involve any broker or dealer
in a
violation of Regulation T of said Board (12 CFR 220). Margin stock
does not constitute more than 25% of the value of the consolidated assets of
the
Company and its Subsidiaries and the Company does not have any present intention
that margin stock will constitute more than 25% of the value of such
assets. As used in this Section, the terms “margin stock” and
“purpose of buying or carrying” shall have the meanings assigned to them in said
Regulation U.
Section 5.15.
Existing
Debt
. (a) Except as described therein,
Schedule 5.15
sets forth a complete and correct list of
all outstanding Debt of the Company, its Restricted Subsidiaries and New Jersey
Natural Gas as of June 30, 2007, since which dates there has been no Material
change in the amounts, interest rates, sinking funds, installment payments
or
maturities of the Debt of the Company, its Restricted Subsidiaries or New Jersey
Natural Gas. None of the Company, any Restricted Subsidiary or New
Jersey Natural Gas is in default and no waiver of default is currently in
effect, in the payment of any principal or interest on any Debt of the Company,
such Restricted Subsidiary or New Jersey Natural Gas and no event or condition
exists with respect to any Debt of the Company, any Restricted Subsidiary or
New
Jersey Natural Gas the outstanding principal amount of which exceeds $1,000,000
that would permit (or that with notice or the lapse of time, or both, would
permit) one or more Persons to cause such Debt to become due and payable before
its stated maturity or before its regularly scheduled dates of
payment.
(b)
Neither
the Company nor any
Subsidiary is a party to, or otherwise subject to any provision contained in,
any instrument evidencing Debt of the Company or such Subsidiary, any agreement
relating thereto or any other agreement (including, but not limited to, its
charter or other organizational document) which limits the amount of, or
otherwise imposes restrictions on the incurring of, Debt of the Company or
any
Guarantor, except as specifically indicated in
Schedule
5.15
.
Section 5.16.
Foreign
Assets Control
Regulations, Etc
. (a) Neither the sale of the Notes by the
Company hereunder nor its use of the proceeds thereof will violate the
Anti-Terrorism Order, the USA Patriot Act, the Trading with the Enemy Act,
as
amended, or any of the foreign assets control regulations of the United States
Treasury Department (31 CFR, Subtitle B, Chapter V, as amended) or any enabling
legislation or executive order relating thereto.
(b)
Neither
the Company nor any
Subsidiary (1) is a Person described or designated in the Specially
Designated Nationals and Blocked Persons List of the Office of Foreign Assets
Control or in Section 1 of the Anti-Terrorism Order or (2) engages in
any dealings or transactions with any such Person. The Company and
its Subsidiaries are in compliance, in all material respects, with the USA
Patriot Act.
(c)
No
part of the proceeds from the sale
of the Notes hereunder will be used, directly or indirectly, for any payments
to
any governmental official or employee, political party, official of a political
party, candidate for political office, or anyone else acting in an official
capacity, in order to obtain, retain or direct business or obtain any improper
advantage, in violation of the United States Foreign Corrupt Practices Act
of
1977, as amended, assuming in all cases that such Act applies to the
Company.
Section
5.17.
Status under
Certain Statutes
. Neither the Company nor any Subsidiary is an
“investment company” registered or required to be registered under the
Investment Company Act of 1940 or an “affiliated person” of an “investment
company” or an “affiliated person” of such “affiliated person” or under the
“control” of an “investment company” as such terms are defined in the Investment
Company Act of 1940, as amended, and shall not become such an “investment
company” or such an “affiliated person” or under such
“control.” Neither the Company nor any Subsidiary is a “holding
company” or a “subsidiary company” of a “holding company,” or an “affiliate” of
a “holding company” or of a “subsidiary company” of a “holding company” within
the meaning of the Public Utility Holding Company Act of 2005, as
amended. Based upon the immediately preceding sentence, neither the
Company nor the issue and sale of the Notes is subject to regulation under
the
Public Utility Holding Company Act of 2005, as amended. Neither the
Company nor any Subsidiary is subject to the ICC Termination Act of 1995, as
amended, or the Federal Power Act, as amended. Neither the Company
nor any Subsidiary (other than New Jersey Natural Gas) is subject to any Federal
or state statute or regulation limiting its ability to incur Debt.
Section
5.18.
Environmental
Matters
. None of the Company, any Restricted Subsidiary or New
Jersey Natural Gas has knowledge of any claim or has received any notice of
any
claim, and no proceeding has been instituted raising any claim against the
Company, any of its Restricted Subsidiaries or New Jersey Natural Gas or any
of
their respective real properties now or formerly owned, leased or operated
by
any of them or other assets, alleging any damage to the environment or violation
of any Environmental Laws, except, in each case, such as would not reasonably
be
expected to result in a Material Adverse Effect. Except as otherwise
disclosed to the Purchasers in writing:
(a)
none
of the Company, any Restricted
Subsidiary or New Jersey Natural Gas has knowledge of any facts which would
give
rise to any claim, public or private, of violation of Environmental Laws or
damage to the environment emanating from, occurring on or in any way related
to
real properties now or formerly owned, leased or operated by any of them or
to
other assets or their use, except, in each case, such as would not reasonably
be
expected to result in a Material Adverse Effect;
(b)
none
of the Company, any of its
Restricted Subsidiaries or New Jersey Natural Gas has stored any Hazardous
Materials on real properties now or formerly owned, leased or operated by any
of
them or has disposed of any Hazardous Materials in a manner contrary to any
Environmental Laws in each case in any manner that would reasonably be expected
to result in a Material Adverse Effect; and
(c)
all
buildings on all real properties
now owned, leased or operated by the Company, any of its Restricted Subsidiaries
or New Jersey Natural Gas are in compliance with applicable Environmental Laws,
except where failure to comply would not reasonably be expected to result in
a
Material Adverse Effect.
Section
5.19.
Notes Rank Pari
Passu
. The obligations of the Company under this Agreement and
the Notes rank at least
pari passu
in right of payment with all other
unsecured Senior Debt (actual or contingent) of the Company, including, without
limitation, all unsecured Senior Debt of the Company described in
Schedule 5.15
.
|
Section 6.
|
Representations
of the Purchasers.
|
Section
6.1.
Purchase for
Investment
. Each Purchaser severally represents that it is
purchasing the Notes for its own account or for one or more separate accounts
maintained by such Purchaser or for the account of one or more pension or trust
funds and not with a view to the distribution thereof,
provided
that
the disposition of such Purchaser’s or such pension or trust fund’s property
shall at all times be within such Purchaser’s or such pension or trust fund’s
control. Each Purchaser represents that it is an “accredited
investor,” as defined in Rule 501(a)(1), (2), (3) or (7) of
Regulation D under the Securities Act. Each Purchaser
understands that the Notes have not been registered under the Securities Act
and
may be resold only if registered pursuant to the provisions of the Securities
Act or if an exemption from registration is available, except under
circumstances where neither such registration nor such an exemption is required
by law, and that the Company is not required to register the Notes.
Section
6.2.
Source of
Funds
. Each Purchaser severally represents that at least one of
the following statements is an accurate representation as to each source of
funds (a
“Source”
) to be used by such Purchaser to pay the purchase
price of the Notes to be purchased by such Purchaser hereunder:
(a)
the
Source is an “insurance company
general account” (as the term is defined in the United States Department of
Labor’s Prohibited Transaction Exemption (
“PTE”
) 95-60) in respect of
which the reserves and liabilities (as defined by the annual statement for
life
insurance companies approved by the National Association of Insurance
Commissioners (the
“NAIC Annual Statement”
)) for the general account
contract(s) held by or on behalf of any employee benefit plan together with
the
amount of the reserves and liabilities for the general account contract(s)
held
by or on behalf of any other employee benefit plans maintained by the same
employer (or affiliate thereof as defined in PTE 95-60) or by the same employee
organization in the general account do not exceed 10% of the total reserves
and
liabilities of the general account (exclusive of separate account liabilities)
plus surplus as set forth in the NAIC Annual Statement filed with such
Purchaser’s state of domicile; or
(b)
the
Source is a separate account that
is maintained solely in connection with such Purchaser’s fixed contractual
obligations under which the amounts payable, or credited, to any employee
benefit plan (or its related trust) that has any interest in such separate
account (or to any participant or beneficiary of such plan (including any
annuitant)) are not affected in any manner by the investment performance of
the
separate account; or
(c)
the
Source is either (1) an
insurance company pooled separate account, within the meaning of PTE 90-1 or
(2) a bank collective investment fund, within the meaning of the PTE 91-38
and, except as disclosed by such Purchaser to the Company in writing pursuant
to
this clause (c), no employee benefit plan or group of plans maintained by the
same employer or employee organization beneficially owns more than 10% of all
assets allocated to such pooled separate account or collective investment fund;
or
(d)
the
Source constitutes assets of an
“investment fund” (within the meaning of Part V of PTE 84-14 (the
“QPAM Exemption”
)) managed by a “qualified professional asset manager”
or “QPAM” (within the meaning of Part V of the QPAM Exemption), no employee
benefit plan’s assets that are included in such investment fund, when combined
with the assets of all other employee benefit plans established or maintained
by
the same employer or by an affiliate (within the meaning of Section V(c)(1)
of the QPAM Exemption) of such employer or by the same employee organization
and
managed by such QPAM, exceed 20% of the total client assets managed by such
QPAM, the conditions of Part I(c) and (g) of the QPAM Exemption are satisfied,
neither the QPAM nor a Person controlling or controlled by the QPAM (applying
the definition of “control” in Section V(e) of the QPAM Exemption) owns a
5% or more interest in the Company and (1) the identity of such QPAM and
(2) the names of all employee benefit plans whose assets are included in
such investment fund have been disclosed to the Company in writing pursuant
to
this clause (d); or
(e)
the
Source constitutes assets of a
“plan(s)” (within the meaning of Section IV of PTE 96-23 (the
“INHAM Exemption”
)) managed by an “in-house asset manager” or “INHAM”
(within the meaning of Part IV of the INHAM Exemption), the conditions
of Part
I(a), (g) and (h) of the INHAM Exemption are satisfied, neither the INHAM nor
a
Person controlling or controlled by the INHAM (applying the definition of
“control” in Section IV(d) of the INHAM Exemption) owns a 5% or more
interest in the Company and (1) the identity of such INHAM and (2) the
name(s) of the employee benefit plan(s) whose assets constitute the Source
have
been disclosed to the Company in writing pursuant to this clause (e);
or
(f)
the
Source is a governmental plan;
or
(g)
the
Source is one or more employee
benefit plans, or a separate account or trust fund comprised of one or more
employee benefit plans, each of which has been identified to the Company in
writing pursuant to this clause (g); or
(h)
the
Source does not include assets of
any employee benefit plan, other than a plan exempt from the coverage of
ERISA.
As
used
in this
Section 6.2
, the terms “employee benefit plan,”
“governmental plan,” and “separate account” shall have the respective meanings
assigned to such terms in Section 3 of ERISA.
|
Section 7.
|
Information
as to Company.
|
Section
7.1.
Financial and
Business Information
. The Company shall deliver to each holder
of Notes that is an Institutional Investor:
(a)
Quarterly
Statements
— within
55 days after the end of each quarterly fiscal period in each fiscal year of
the
Company (other than the last quarterly fiscal period of each such fiscal year),
duplicate copies of:
(1)
a
consolidated and consolidating
balance sheet of the Company and its Subsidiaries as at the end of such quarter,
and
(2)
consolidated
and consolidating
statements of income, changes in shareholders’ equity and cash flows of the
Company and its Subsidiaries for such quarter and (in the case of the second
and
third quarters) for the portion of the fiscal year ending with such
quarter,
setting
forth in each case in comparative form the figures for the corresponding periods
in the previous fiscal year, all in reasonable detail, prepared in accordance
with GAAP applicable to quarterly financial statements generally, and certified
by a Senior Financial Officer as fairly presenting, in all material respects,
the financial position of the companies being reported on and their results
of
operations and cash flows, subject to changes resulting from normal year-end
adjustments,
provided
that delivery within the time period specified
above of copies of the Company’s Quarterly Report on Form 10-Q prepared in
compliance with the requirements therefor and filed with the Securities and
Exchange Commission shall be deemed to satisfy the requirements of this
Section 7.1(a)
, and
provided, further,
that the
Company shall be deemed to have made such delivery of such Form 10-Q if it
shall
have timely made such Form 10-Q available on “EDGAR” and on its home page on the
worldwide web (at the date of this Agreement located at:
http//www.njresources.com) and shall have given such holder prior notice of
such
availability on EDGAR and on its home page in connection with each delivery
(such availability and notice thereof being referred to as
“Electronic
Delivery”
);
(b)
Annual
Statements
— within 100
days after the end of each fiscal year of the Company, duplicate copies
of:
(1)
a
consolidated and consolidating
balance sheet of the Company and its Subsidiaries, as at the end of such year,
and
(2)
consolidated
and consolidating
statements of income, changes in shareholders’ equity and cash flows of the
Company and its Subsidiaries, for such year,
setting
forth in each case in comparative form the figures for the previous fiscal
year,
all in reasonable detail, prepared in accordance with GAAP, and accompanied
by
an opinion thereon of independent certified public accountants of recognized
national standing, which opinion shall state that such financial statements
present fairly, in all material respects, the financial position of the
companies being reported upon and their results of operations and cash flows
and
have been prepared in conformity with GAAP, and that the examination of such
accountants in connection with such financial statements has been made in
accordance with generally accepted auditing standards, and that such audit
provides a reasonable basis for such opinion in the circumstances,
provided
that the delivery within the time period specified above of
the Company’s Annual Report on Form 10-K for such fiscal year (together with the
Company’s annual report to shareholders, if any, prepared pursuant to Rule 14a-3
under the Exchange Act) prepared in accordance with the requirements therefor
and filed with the Securities and Exchange Commission shall be deemed to satisfy
the requirements of this
Section 7.1(b)
,
and
provided,
further,
that the Company shall be deemed to have made such delivery of
such Form 10-K if it shall have timely made Electronic Delivery
thereof;
(c)
SEC
and Other Reports
— with
reasonable promptness, upon their becoming available, one copy of (1) each
financial statement, report, notice or proxy statement sent by the Company,
any
Restricted Subsidiary or New Jersey Natural Gas to its principal lending banks
as a whole (excluding information sent to such banks in the ordinary course
of
administration of a bank facility, such as information relating to pricing
and
borrowing availability) or to its public securities holders generally and
(2) each regular or periodic report, each registration statement that shall
have become effective (without exhibits except as expressly requested by such
holder), and each final prospectus and all amendments thereto filed by the
Company, any Restricted Subsidiary or New Jersey Natural Gas with the Securities
and Exchange Commission, excluding in any event confidential correspondence
delivered by any of the foregoing Persons to the Securities and Exchange
Commission;
(d)
Notice
of Default or Event of
Default
— with reasonable promptness, and in any event within five days
after a Responsible Officer becoming aware of the existence of any Default
or
Event of Default, a written notice specifying the nature and period of existence
thereof and what action the Company is taking or proposes to take with respect
thereto;
(e)
ERISA
Matters
— with reasonable
promptness, and in any event within five days after a Responsible Officer
becoming aware of any of the following, a written notice setting forth the
nature thereof and the action, if any, that the Company or an ERISA Affiliate
proposes to take with respect thereto:
(1)
with
respect to any Plan, any
reportable event, as defined in Section 4043(c) of ERISA and the
regulations thereunder, for which notice thereof has not been waived pursuant
to
such regulations as in effect on the date thereof; or
(2)
the
taking by the PBGC of steps to
institute, or the threatening by the PBGC of the institution of, proceedings
under Section 4042 of ERISA for the termination of, or the appointment of a
trustee to administer, any Plan, or the receipt by the Company or any ERISA
Affiliate of a notice from a Multiemployer Plan that such action has been taken
by the PBGC with respect to such Multiemployer Plan; or
(3)
any
event, transaction or condition
that could result in the incurrence of any liability by the Company or any
ERISA
Affiliate pursuant to Title I or IV of ERISA or the penalty or excise tax
provisions of the Code relating to employee benefit plans, or in the imposition
of any Lien on any of the rights, properties or assets of the Company or any
ERISA Affiliate pursuant to Title I or IV of ERISA or such penalty or excise
tax
provisions, if such liability or Lien, taken together with any other such
liabilities or Liens then existing, would reasonably be expected to have a
Material Adverse Effect;
(f)
Unrestricted
Subsidiaries
— at
such time as either (1) the aggregate amount of the total assets of all
Unrestricted Subsidiaries (for this purpose, excluding New Jersey Natural Gas)
exceeds 10% of the consolidated total assets of the Company and its Subsidiaries
determined in accordance with GAAP or (2) one or more Unrestricted Subsidiaries
(for this purpose, excluding New Jersey Natural Gas) account for more than
10%
of the consolidated gross revenues of the Company and its Subsidiaries
determined in accordance with GAAP, and within the respective periods provided
in paragraphs (a) and (b) above, financial statements of the character and
for
the dates and periods as in said paragraphs (a) and (b) covering each
Unrestricted Subsidiary (or groups of Unrestricted Subsidiaries on a
consolidated basis, excluding New Jersey Natural Gas) together with
consolidating statements reflecting eliminations or adjustments required in
order to reconcile such financial statements to the corresponding consolidated
financial statements of the Company and its Subsidiaries delivered pursuant
to
paragraphs (a) and (b) above; and
(g)
Requested
Information
— with
reasonable promptness, such other data and information relating to the business,
operations, affairs, financial condition, assets or properties of the Company,
any of its Restricted Subsidiaries or New Jersey Natural Gas or relating to
the
ability of the Company to perform its obligations hereunder and under the Notes
as from time to time may be reasonably requested by any such holder of
Notes.
Section
7.2.
Officer’s
Certificate
. Each set of financial statements delivered to a
holder of Notes pursuant to
Section 7.1(a)
or
Section 7.1(b)
shall be accompanied by a certificate of
a
Senior Financial Officer setting forth (which, in the case of Electronic
Delivery of any such financial statements, shall be by separate concurrent
delivery of such certificate to each holder of Notes):
(a)
Covenant
Compliance
— the
information (including reasonably detailed calculations) required in order
to
establish whether the Company was in compliance with the requirements of
Section 10.1
through
Section 10.8
,
inclusive, and
Section 10.10
during the quarterly or
annual period covered by the statements then being furnished (including with
respect to each such Section, where applicable, the calculations of the maximum
or minimum amount, ratio or percentage, as the case may be, permissible under
the terms of such Sections, and the calculation of the amount, ratio or
percentage then in existence); and
(b)
Event
of Default
— a statement
that such Senior Financial Officer has reviewed the relevant terms hereof and
has made, or caused to be made, under his or her supervision, a review of the
transactions and conditions of the Company and its Subsidiaries from the
beginning of the quarterly or annual period covered by the statements then
being
furnished to the date of the certificate and that such review shall not have
disclosed the existence during such period of any condition or event that
constitutes a Default or an Event of Default or, if any such condition or event
existed or exists (including, without limitation, any such event or condition
resulting from the failure of the Company or any Subsidiary to comply with
any
Environmental Law), specifying the nature and period of existence thereof and
what action the Company shall have taken or proposes to take with respect
thereto.
Section
7.3.
Inspection
. The Company
shall permit the representatives of each holder of Notes that is an
Institutional Investor:
(a)
No
Default
— if no Default or
Event of Default then exists, at the expense of such holder and upon reasonable
prior written notice to the Company, to visit the principal executive office
of
the Company, to discuss the affairs, finances and accounts of the Company,
its
Restricted Subsidiaries and New Jersey Natural Gas with the Company’s officers,
and, with the consent of the Company (which consent will not be unreasonably
withheld) to visit the other offices and properties of the Company, each
Restricted Subsidiary and New Jersey Natural Gas, all at such reasonable times
during normal business hours and as often as may be reasonably requested in
writing; and
(b)
Default
—
if
a Default or Event
of Default then exists, at the expense of the Company, upon prior notice to
the
Company, to visit and inspect any of the offices or properties of the Company,
any Restricted Subsidiary or New Jersey Natural Gas, to examine all their
respective books of account, records, reports and other papers, to make copies
and extracts therefrom, and to discuss their respective affairs, finances and
accounts with their respective officers and independent public accountants
(and
by this provision the Company authorizes said accountants to discuss the
affairs, finances and accounts of the Company, its Restricted Subsidiaries
and
New Jersey Natural Gas), all at such times during normal business hours and
as
often as may be requested.
|
Section 8.
|
Prepayment
of the Notes.
|
Section
8.1.
Required
Prepayments
. The Notes shall not be subject to required
prepayments.
Section
8.2.
Optional
Prepayments with Make-Whole Amount
. The Company may, at its
option, upon notice as provided below, prepay at any time all, or from time
to
time any part of, the Notes, in an amount not less than $1,000,000 in aggregate
principal amount of the Notes then outstanding in the case of a partial
prepayment, at 100% of the principal amount so prepaid together with interest
accrued thereon to the date of such prepayment and the Make-Whole Amount, if
any, determined for the prepayment date with respect to such principal
amount. The Company will give each holder of Notes written notice of
each optional prepayment under this
Section 8.2
not less
than 30 days and not more than 60 days prior to the date fixed for such
prepayment. Each such notice shall specify such date (which shall be
a Business Day), the aggregate principal amount of the Notes to be prepaid
on
such date, the principal amount of each Note held by such holder to be prepaid
(determined in accordance with
Section 8.4
), and the
interest to be paid on the prepayment date with respect to such principal amount
being prepaid, and shall be accompanied by a certificate of a Senior Financial
Officer as to the estimated Make-Whole Amount due in connection with such
prepayment (calculated as if the date of such notice were the date of the
prepayment), setting forth the details of such computation. Two
Business Days prior to such prepayment, the Company shall deliver to each holder
of Notes a certificate of a Senior Financial Officer specifying the calculation
of such Make-Whole Amount as of the specified prepayment date.
Section 8.3.
Allocation
of Partial
Prepayments
. In the case of each partial prepayment of the Notes
pursuant to
Section 8.2
hereof, the principal amount of
the Notes to be prepaid shall be allocated among all of the Notes at the time
outstanding in proportion, as nearly as reasonably practicable, to the
respective unpaid principal amounts thereof not theretofore called for
prepayment. All partial prepayments made pursuant to
Section 8.5(b)
or
Section 8.6
shall
be applied only to the Notes of the holders who have elected to participate
in
such prepayment.
Section 8.4.
Maturity;
Surrender,
Etc
. In the case of each prepayment of Notes pursuant to this
Section 8
, the principal amount of each Note to be prepaid
shall mature and become due and payable on the date fixed for such prepayment
(which shall be a Business Day), together with interest on such principal amount
accrued to such date and the applicable Make-Whole Amount, if
any. From and after such date, unless the Company shall fail to pay
such principal amount when so due and payable, together with the interest and
Make-Whole Amount, if any, as aforesaid, interest on such principal amount
shall
cease to accrue. Any Note paid or prepaid in full shall be
surrendered to the Company and cancelled and shall not be reissued, and no
Note
shall be issued in lieu of any prepaid principal amount of any
Note.
Section 8.5.
Purchase
of
Notes
. The Company will not, and will not permit any Affiliate
to, purchase, redeem, prepay or otherwise acquire, directly or indirectly,
any
of the outstanding Notes except (a) upon the payment or prepayment of the
Notes in accordance with the terms of this Agreement and the Notes or
(b) pursuant to an offer to purchase made by the Company or an Affiliate
pro rata to the holders of all Notes at the time outstanding upon the same
terms
and conditions. Any such offer shall provide each holder with
sufficient information to enable it to make an informed decision with respect
to
such offer, and shall remain open for at least 15 Business Days. If
the holders of more than 50% of the principal amount of the Notes then
outstanding accept such offer, the Company shall promptly notify the remaining
holders of such fact and the expiration date for the acceptance by holders
of
Notes of such offer shall be extended by the number of days necessary to give
each such remaining holder at least 10 Business Days from its receipt of such
notice to accept such offer. The Company will promptly cancel all
Notes acquired by it or any Affiliate pursuant to any payment, prepayment or
purchase of Notes pursuant to any provision of this Agreement and no Notes
may
be issued in substitution or exchange for any such Notes.
Section
8.6
Offer to Prepay Upon Asset
Disposition.
(a)
Notice
and Offer
. In the event of a Transfer where the Company has
elected to apply all or a portion of the Net Proceeds Amount of such Transfer
pursuant to
Section 10.6(b)
, the Company shall, no later
than the 305
th
day following the date of such Transfer, give written notice of such event
(an
“Asset Disposition Prepayment Event”
) to each holder of
Notes. Such notice shall contain, and shall constitute, an
irrevocable offer to prepay a Ratable Portion of the Notes held by such holder
on the date (which shall be a Business Day) specified in such notice (the
“Asset Disposition Prepayment Date”
) which date shall be not less than
30 days and not more than 60 days after such notice.
(b)
Acceptance
and Payment.
A holder of Notes may accept or reject the offer to
prepay pursuant to this
Section 8.6
by causing a notice of such
acceptance or rejection to be delivered to the Company at least 10 days prior
to
the Asset Disposition Prepayment Date. A failure by a holder of the
Notes to respond to an offer to prepay made pursuant to this
Section
8.6
shall be deemed to constitute a rejection of such offer by such
holder. If so accepted, such offered prepayment in respect of the
Ratable Portion of the Notes of each holder that has accepted such offer shall
be due and payable on the Asset Disposition Prepayment Date. Such
offered prepayment shall be made at 100% of the aggregate Ratable Portion of
the
Notes of each holder that has accepted such offer, together with interest on
that portion of the Notes then being prepaid accrued to the Asset Disposition
Prepayment Date, but without any Make-Whole Amount. If any holder of
a Note rejects or is deemed to have rejected such offer of prepayment, the
Company may use the Ratable Portion for such Note for general corporate
purposes.
(c)
Officer’s
Certificate.
Each offer to prepay the Notes pursuant to this
Section 8.6
shall be accompanied by a certificate, executed by
a Senior Financial Officer and dated the date of such offer, specifying: (1)
the
Asset Disposition Prepayment Date; (2) that such offer is being made pursuant
to
this
Section 8.6
and that the failure by a holder to respond to
such offer by the deadline established in
Section 8.6(b)
shall
result in such offer to such holder being deemed rejected; (3) the Ratable
Portion of each such Note offered to be prepaid; (4) the interest that would
be
due on the Ratable Portion of each such Note offered to be prepaid, accrued
to
the Asset Disposition Prepayment Date; (5) that the conditions of this
Section 8.6
have been satisfied and (6) in reasonable detail, a
description of the nature and date of the Asset Disposition Prepayment Event
giving rise to such offer of prepayment.
Section 8.7.
Make-Whole
Amount for
Notes
. The term
“Make-Whole Amount”
shall mean, with
respect to any Note, an amount equal to the excess, if any, of the Discounted
Value of the Remaining Scheduled Payments with respect to the Called Principal
of such Note over the amount of such Called Principal,
provided
that
the Make-Whole Amount may in no event be less than zero. For the
purposes of determining the Make-Whole Amount, the following terms have the
following meanings:
“
Called
Principal
” shall mean, with respect to any Note, the principal of such Note
that is to be prepaid pursuant to
Section 8.2
or
has become or is declared to be immediately
due and payable pursuant to
Section 12.1
, as the context
requires.
“
Discounted
Value
” shall mean, with respect to the Called Principal of any Note, the
amount obtained by discounting all Remaining Scheduled Payments with respect
to
such Called Principal from their respective scheduled due dates to the
Settlement Date with respect to such Called Principal, in accordance with
accepted financial practice and at a discount factor (applied on the same
periodic basis as that on which interest on the Notes is payable) equal to
the
Reinvestment Yield with respect to such Called Principal.
“
Reinvestment
Yield
” shall mean, with respect to the Called Principal of any Note, 0.50%
over the yield to maturity implied by (a) the yields reported, as of 10:00
a.m.
(New York, New York time) on the second Business Day preceding the Settlement
Date with respect to such Called Principal, on the display designated as “Page
PX1” (or such other display as may replace Page PX1) on the Bloomberg Financial
Markets Services Screen) for the most recently issued actively traded on the
run
U.S. Treasury securities having a maturity equal to the Remaining Average Life
of such Called Principal as of such Settlement Date, or (b) if such yields
are
not reported as of such time or the yields reported as of such time are not
ascertainable (including by way of interpolation), the Treasury Constant
Maturity Series Yields reported, for the latest day for which such yields have
been so reported as of the second Business Day preceding the Settlement Date
with respect to such Called Principal, in Federal Reserve Statistical Release
H.15 (or any comparable successor publication) for U.S. Treasury securities
having a constant maturity equal to the Remaining Average Life of such Called
Principal as of such Settlement Date.
In
the
case of each determination under clause (a) or clause (b), as the case may
be,
of the preceding paragraph, such implied yield will be determined, if necessary,
by (1) converting U.S. Treasury bill quotations to bond-equivalent yields in
accordance with accepted financial practice and (2) interpolating linearly
between (i) the applicable U.S. Treasury security with the maturity closest
to
and greater than such Remaining Average Life and (ii) the applicable U.S.
Treasury security with the maturity closest to and less than such Remaining
Average Life. The Reinvestment Yield shall be rounded to the number
of decimal places as appears in the interest rate of the applicable
Note.
“
Remaining
Average Life
” shall mean, with respect to any Called Principal, the number
of years (calculated to the nearest one-twelfth year) obtained by dividing
(a)
such Called Principal into (b) the sum of the products obtained by multiplying
(1) the principal component of each Remaining Scheduled Payment with respect
to
such Called Principal by (2) the number of years (calculated to the nearest
one-twelfth year) that will elapse between the Settlement Date with respect
to
such Called Principal and the scheduled due date of such Remaining Scheduled
Payment.
“
Remaining
Scheduled Payments
” shall mean, with respect to the Called Principal of any
Note, all payments of such Called Principal and interest thereon that would
be
due after the Settlement Date with respect to such Called Principal if no
payment of such Called Principal were made prior to its scheduled due date,
provided
that if such Settlement Date is not a date on which interest
payments are due to be made under the terms of the Notes, then the amount of
the
next succeeding scheduled interest payment will be reduced by the amount of
interest accrued to such Settlement Date and required to be paid on such
Settlement Date pursuant to
Section 8.2
or
Section 12.1
.
“
Settlement
Date
” shall mean, with respect to the Called Principal of any Note, the
date on which such Called Principal is to be prepaid pursuant to
Section 8.2
or has become or is declared to be immediately
due and payable pursuant to
Section 12.1
, as the context
requires.
|
Section 9.
|
Affirmative
Covenants.
|
The
Company covenants that so long as any of the Notes are outstanding:
Section 9.1.
Compliance
with
Law
. The Company will, and will cause each of its Subsidiaries
to, comply with all laws, ordinances or governmental rules or regulations to
which each of them is subject, including, without limitation, ERISA, the USA
Patriot Act and Environmental Laws, and will obtain and maintain in effect
all
licenses, certificates, permits, franchises and other governmental
authorizations necessary to the ownership of their respective properties or
to
the conduct of their respective businesses, in each case to the extent necessary
to ensure that non-compliance with such laws, ordinances or governmental rules
or regulations or failures to obtain or maintain in effect such licenses,
certificates, permits, franchises and other governmental authorizations would
not reasonably be expected, individually or in the aggregate, to have a Material
Adverse Effect.
Section 9.2.
Insurance
. The
Company will, and will cause each of its Restricted Subsidiaries and New Jersey
Natural Gas to, maintain, with financially sound and reputable insurers,
insurance with respect to their respective properties and businesses against
such casualties and contingencies, of such types, on such terms and in such
amounts (including deductibles, co-insurance and self-insurance, if adequate
reserves are maintained with respect thereto) as is customary in the case of
entities of established reputations engaged in the same or a similar business
and in the same industry and similarly
situated.
Section 9.3.
Maintenance
of
Properties
. The Company will, and will cause each of its
Restricted Subsidiaries and New Jersey Natural Gas to, maintain and keep, or
cause to be maintained and kept, their respective properties in good repair,
working order and condition (other than ordinary wear and tear), so that the
business carried on in connection therewith may be properly conducted at all
times,
provided
that this Section shall not prevent the Company, any
Restricted Subsidiary or New Jersey Natural Gas from discontinuing the operation
and the maintenance of any of its properties if such discontinuance is desirable
in the conduct of its business and the Company has concluded that such
discontinuance would not reasonably be expected, individually or in the
aggregate, to have a Material Adverse Effect.
Section 9.4.
Payment
of Taxes and
Claims
. The Company will, and will cause each of its
Subsidiaries to, file all income tax or similar tax returns required to be
filed
in any jurisdiction and to pay and discharge all taxes shown to be due and
payable on such returns and all other taxes, assessments, governmental charges
or levies payable by any of them, to the extent the same have become due and
payable and before they have become delinquent,
provided
that neither
the Company nor any Subsidiary need pay any such tax, assessment, governmental
charge or levy if (1) the amount, applicability or validity thereof is
contested by the Company or such Subsidiary on a timely basis in good faith
and
in appropriate proceedings, and the Company or a Subsidiary has established
adequate reserves therefor in accordance with GAAP on the books of the Company
or such Subsidiary or (2) the nonpayment of all such taxes, assessments,
governmental charges and levies in the aggregate would not reasonably be
expected, individually or in the aggregate, to have a Material Adverse
Effect.
Section 9.5.
Corporate
Existence,
Etc
. The Company will at all times preserve and keep in full
force and effect its corporate existence. Subject to
Sections 10.6, 10.7
and
10.8
, the Company
will at all times preserve and keep in full force and effect the corporate
existence of each of its Restricted Subsidiaries and New Jersey Natural Gas
(unless merged into the Company or a Wholly-Owned Restricted Subsidiary) and
all
rights and franchises of the Company, its Restricted Subsidiaries and New Jersey
Natural Gas unless, in the good faith judgment of the Company, the termination
of or failure to preserve and keep in full force and effect such corporate
existence, right or franchise would not reasonably be expected, individually
or
in the aggregate, to have a Material Adverse Effect.
Section 9.6.
Ownership
of
Subsidiaries.
The Company shall at all times own (a) 100% of the
issued and outstanding common stock of New Jersey Natural Gas and 51% or more
of
the issued and outstanding Voting Stock of New Jersey Natural Gas and (b) 51%
or
more of the issued and outstanding Voting Stock of each Guarantor.
Section 9.7.
Guaranty
Agreement
. (a) The Company shall promptly, and in any event
within five Business Days after (1) the formation or acquisition of a new
Restricted Subsidiary (other than a Regulated Entity), (2) the occurrence
of any other event creating a new Restricted Subsidiary (other than a Regulated
Entity), (3) the designation of an Unrestricted Subsidiary (other than a
Regulated Entity) as a Restricted Subsidiary or (4) an Unrestricted Subsidiary
becoming or being a guarantor or co-obligor in respect of the Bank Credit
Agreement, cause such Subsidiary to execute and deliver a supplement to the
Guaranty Agreement (a
“Supplement”
) in the form of Exhibit A to
the Guaranty Agreement;
provided
that clause (4) above shall not apply
to NJR Energy Corporation or NJNR Pipeline Company prior to December 17,
2007.
(b)
Within
15 days of the delivery by any
Subsidiary of a Supplement pursuant to
Section 9.7(a)
, the
Company shall cause such Subsidiary to deliver to each holder of
Notes:
(1)
such
documents and evidence with
respect to such Subsidiary as any holder may reasonably request in order to
establish the existence and good standing of such Subsidiary and evidence that
the Board of Directors of such Subsidiary has adopted resolutions authorizing
the execution and delivery of such Supplement and the guaranty of the
Notes;
(2)
evidence
of compliance with such
Subsidiary’s outstanding Debt instruments in the form of (i) a compliance
certificate from such Subsidiary to the effect that such Subsidiary is in
compliance with all terms and conditions of its outstanding Debt instruments,
(ii) consents or approvals of the holder or holders of any evidence of Debt
or security, and/or (iii) amendments of agreements pursuant to which any
evidence of Debt or security may have been issued, all as may be reasonably
deemed necessary by the holders of Notes to permit the execution and delivery
of
such Supplement by such Subsidiary;
(3)
an
opinion of counsel to the effect
that (i) such Subsidiary is a corporation or other business entity, duly
organized, validly existing and in good standing under the laws of its
jurisdiction of organization, has the corporate or other power and the authority
to execute and deliver such Supplement and to perform the Guaranty Agreement,
(ii) the execution and delivery of such Supplement and performance of the
Guaranty Agreement has been duly authorized by all necessary action on the
part
of such Subsidiary, such Supplement has been duly executed and delivered by
such
Subsidiary and the Guaranty Agreement constitutes the legal, valid and binding
contract of such Subsidiary enforceable against such Subsidiary in accordance
with its terms, subject to bankruptcy, insolvency, fraudulent conveyance or
similar laws affecting creditors’ rights generally, and general principles of
equity (regardless of whether the application of such principles is considered
in a proceeding in equity or at law), (iii) the execution and delivery of
such Supplement and the performance by such Subsidiary of the Guaranty Agreement
do not conflict with or result in any breach of any of the provisions of or
constitute a default under or result in the creation of a Lien upon any of
the
property of such Subsidiary pursuant to the provisions of any law, order, rule
or regulation, its charter documents or any agreement or other instrument known
to such counsel to which such Subsidiary is a party to or by which such
Subsidiary may be bound and (iv) no approval, consent or withholding of
objection on the part of, or filing, registration or qualification with, any
Governmental Authority, Federal or state, is necessary in connection with the
lawful execution and delivery of such Supplement by such Subsidiary or the
performance of the Guaranty Agreement by such Subsidiary, which opinion may
contain such assumptions and qualifications as are reasonably acceptable to
the
Required Holders; and
(4)
all
other documents and showings
reasonably requested by the holders of Notes in connection with the execution
and delivery of such Supplement, which documents shall be reasonably
satisfactory in form and substance to such holders and their special counsel,
and each holder of Notes shall have received a copy (executed or certified
as
may be appropriate) of all of the foregoing legal documents.
Section 9.8.
New
Jersey Natural Gas Regulated
Nature.
The Company will at all times cause New Jersey Natural
Gas to be and remain a Person that is subject under law to regulation by a
public utility commission or other governmental regulatory body with oversight
responsibilities for utilities.
Section
9.9.
Notes to Rank
Pari Passu
. The Company will ensure that its payment obligations
under this Agreement and the Notes will at all times rank at least
pari
passu
in right of payment with all other unsecured Senior Debt (actual or
contingent) of the Company.
|
Section 10.
|
Negative
Covenants.
|
The
Company covenants that so long as any of the Notes are outstanding:
Section 10.1.
Leverage
Ratio.
The Company will not permit, as of the end of any fiscal
quarter of the Company, the ratio of Consolidated Total Debt to Consolidated
Total Capitalization to exceed 0.65 to 1.00.
Section 10.2.
Limitation
on Priority
Debt
. The Company will not permit, as of the end of any fiscal
quarter of the Company, Priority Debt to exceed an amount equal to 20% of
Consolidated Total Capitalization.
Section 10.3.
Liens
. The
Company will not, and will not permit any of its Restricted Subsidiaries to,
directly or indirectly create, incur, assume or permit to exist (upon the
happening of a contingency or otherwise) any Lien on or with respect to any
property or asset (including, without limitation, any document or instrument
in
respect of goods or accounts receivable) of the Company or any such Restricted
Subsidiary, whether now owned or held or hereafter acquired, or any income
or
profits therefrom, or assign or otherwise convey any right to receive income
or
profits, except:
(a)
Liens
for taxes, assessments or other
governmental charges which are not yet due and payable or the payment of which
is not at the time required by
Section 9.4
;
(b)
statutory
Liens of landlords and Liens
of carriers, warehousemen, mechanics, materialmen and other similar Liens,
in
each case, incurred in the ordinary course of business for sums not yet due
and
payable or the payment of which is not at the time required by
Section 9.4
;
(c)
Liens
(other than any Lien imposed by
ERISA) 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, or (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;
(d)
subject
to
Section 11(j)
, any attachment or judgment Lien, unless the
judgment it secures shall not, within 30 days after the entry thereof, have
been
discharged or execution thereof stayed pending appeal, or shall not have been
discharged within 30 days after the expiration of any such stay;
(e)
leases
or subleases granted to others,
easements, rights-of-way, restrictions and other similar charges or encumbrances
or minor survey exceptions, in each case incidental to, and not interfering
with, the ordinary conduct of the business of the Company or any of its
Restricted Subsidiaries,
provided
that such Liens do not, in the
aggregate, materially detract from the value of such property;
(f)
Liens
on property or assets of any
Restricted Subsidiary securing Debt owing to the Company or to a Wholly-Owned
Restricted Subsidiary;
(g)
Liens
existing on the date of the
Closing and described on
Schedule 5.15
;
(h)
Liens
on accounts receivable owned by
Securitization Subsidiaries that are Restricted Subsidiaries and incurred
pursuant to Receivables Securitization Transactions;
(i)
any
Lien created to secure all or any
part of the purchase price, or to secure Debt incurred or assumed to pay all
or
any part of the purchase price or cost of construction, of property (or any
improvement thereon) acquired or constructed by the Company or a Restricted
Subsidiary after the date of the Closing,
provided
that:
(1)
any
such Lien shall extend solely to
the item or items of such property (or improvement thereon) so acquired or
constructed and, if required by the terms of the instrument originally creating
such Lien, other property (or improvement thereon) which is an improvement
to or
is acquired for specific use in connection with such acquired or constructed
property (or improvement thereon) or which is real property being improved
by
such acquired or constructed property (or improvement thereon);
(2)
the
principal amount of the Debt
secured by any such Lien shall at no time exceed an amount equal to the lesser
of (i) the cost to the Company or such Restricted Subsidiary of the
property (or improvement thereon) so acquired or constructed and (ii) the
Fair Market Value (as determined in good faith by one or more officers of the
Company to whom authority to enter into the subject transaction has been
delegated by the board of directors of the Company) of such property (or
improvement thereon) at the time of such acquisition or
construction;
(3)
any
such Lien shall be created
contemporaneously with, or within 180 days after, the acquisition or
construction of such property; and
(4)
the
aggregate principal amount of all
Debt secured by such Liens shall be permitted by the limitation set forth in
Section 10.1
if tested on the date such Lien is created
and not as of the end of the immediately preceding fiscal quarter of the
Company;
(j)
any
Lien existing on property of a
Person immediately prior to its being consolidated with or merged into the
Company or a Restricted Subsidiary or its becoming a Subsidiary, or any Lien
existing on any property acquired by the Company or any Restricted Subsidiary
at
the time such property is so acquired (whether or not the Debt secured thereby
shall have been assumed),
provided
that (1) no such Lien shall
have been created or assumed in contemplation of such consolidation or merger
or
such Person becoming a Subsidiary or such acquisition of property, (2) each
such Lien shall extend solely to the item or items of property so acquired
and,
if required by the terms of the instrument originally creating such Lien
(i) other property which is an improvement to or is acquired for specific
use in connection with such acquired property or (ii) other property that
does not constitute property or assets of the Company or any of its Restricted
Subsidiaries and (3) the aggregate amount of all Debt secured by such Liens
shall be permitted by the limitation set forth in
Section 10.1
if tested on the date of such event and not
as of the end of the immediately preceding fiscal quarter of the
Company;
(k)
any Lien
renewing, extending or refunding any Lien permitted by paragraphs (g), (i)
or
(j) of this
Section 10.3
,
provided
that
(1) the principal amount of Debt secured by such Lien immediately prior to
such extension, renewal or refunding is not increased or the maturity thereof
reduced, (2) such Lien is not extended to any other property and
(3) immediately after such extension, renewal or refunding no Default or
Event of Default would exist (
provided
that, with respect to
Sections 10.1
and
10.2
, calculation of
compliance therewith shall be made as of the date of determination under this
Section 10.3(k)
and not as of the end of the immediately
preceding fiscal quarter of the Company; and
(l)
other
Liens not otherwise permitted by
paragraphs (a) through (k), inclusive, of this
Section 10.3
securing Debt,
provided
that the
Debt secured by such Liens shall be permitted by the limitations set forth
in
Sections 10.1 and 10.2
if tested on the date such Lien is
created and not as of the end of the immediately preceding fiscal quarter of
the
Company
.
Notwithstanding
the foregoing, the Company will not, and will not permit any Subsidiary to,
directly or indirectly create, incur, assume or permit to exist (upon the
happening of a contingency or otherwise) any Lien on or with respect to the
Voting Stock of New Jersey Natural Gas owned by the Company or any
Subsidiary.
Section 10.4.
Restricted
Payments
. (a) The Company will not, and will not
permit any Restricted Subsidiary to, declare or make or incur any liability
to
declare or make any Restricted Payment unless immediately after giving effect
to
such action no Default or Event of Default would exist (
provided
that,
with respect to
Sections 10.1
and
10.2
,
calculation of compliance therewith shall be made as of the date of
determination under this
Section 10.4
and not as of the
end of the immediately preceding fiscal quarter of the Company).
(b)
The
Company will not, and will not
permit any Restricted Subsidiary to, declare a Restricted Payment that is not
payable within 60 days of such declaration.
Section 10.5.
Restrictions
on Dividends of
Subsidiaries, Etc.
The Company will not, and will not permit any
Restricted Subsidiary to, enter into any agreement which would restrict any
Restricted Subsidiary’s ability or right to pay dividends to, or make advances
to or investments in, the Company or, if such Restricted Subsidiary is not
directly owned by the Company, the “parent” Restricted Subsidiary of such
Restricted Subsidiary;
provided
that the foregoing shall not apply to
restrictions and conditions imposed by law or this Agreement or the Bank Credit
Agreement, in each case, as in effect on the date of Closing.
Section 10.6.
Sale
of Assets,
Etc.
(a) Except as permitted under
Section 10.7
and
Section 10.8
, the Company will not, and will
not permit any of its Restricted Subsidiaries to, make any Asset Disposition
unless
:
(1)
in
the good faith opinion of the
Company, the Asset Disposition is in the best interest of the Company or such
Restricted Subsidiary;
(2)
immediately
after giving effect to the
Asset Disposition, no Default or Event of Default would exist (
provided
that, with respect to
Sections 10.1
and
10.2
, calculation of compliance therewith shall
be made as of
the date of determination under this
Section 10.6
and not
as of the end of the immediately preceding fiscal quarter of the Company);
and
(3)
immediately
after giving effect to the
Asset Disposition the Disposition Value of all property that was the subject
of
any Asset Disposition occurring in the immediately preceding 12 consecutive
month period would not exceed 10% of Consolidated Tangible Assets as of the
end
of the then most recently ended fiscal year of the Company.
(b)
If
the Net Proceeds Amount for any
Transfer is, within 365 days after such Transfer, (1) applied to a Debt
Prepayment Application, (2) applied to or would otherwise constitute a Property
Reinvestment Application or (3) applied to any combination of the foregoing
clauses (1) and (2), then such Transfer, only for the purpose of determining
compliance with subsection (3) of
Section 10.6(a)
as of a
date on or after the Net Proceeds Amount is so applied, shall be deemed not
to
be an Asset Disposition.
(c)
Notwithstanding
the foregoing, the
sale of accounts receivable to a Securitization Subsidiary in connection with
a
Receivables Securitization Transaction shall not be considered an Asset
Disposition for purposes of this
Section 10.6
;
provided,
that, to the extent any such sale results in the
aggregate
amount of Debt of all Securitization Subsidiaries under all Receivables
Securitization Transactions being in excess of $100,000,000, the Company shall
treat that portion of such sale resulting in the aggregate amount of Debt of
all
Securitization Subsidiaries under all Receivables Securitization Transactions
being in excess of $100,000,000 as an Asset Disposition subject to this
Section 10.6
without application of this clause
(c).
Section 10.7.
Merger,
Consolidation, Etc.
The Company will not, and will not permit any Restricted Subsidiary to,
consolidate with or merge with any other Person or convey, transfer or lease
all
or substantially all of its assets in a single transaction or series of
transactions to any Person (except that a Restricted Subsidiary may (x)
consolidate with or merge with, or convey, transfer or lease all or
substantially all of its assets in a single transaction or series of
transactions to, the Company or another Restricted Subsidiary or any other
Person so long as such Restricted Subsidiary is the surviving Person and
(y) convey, transfer or lease all of its assets in compliance with the
provisions of
Section 10.6
or
Section 10.8
),
provided
that the foregoing restriction
does not apply to the consolidation or merger of the Company with, or the
conveyance, transfer or lease of all or substantially all of the assets of
the
Company in a single transaction or series of transactions to, any Person so
long
as:
(a)
the
successor formed by such
consolidation or the survivor of such merger or the Person that acquires by
conveyance, transfer or lease all or substantially all of the assets of the
Company as an entirety, as the case may be (the
“Successor
Corporation”
), shall be a solvent Person organized and existing under the
laws of the United States or any State thereof (including the District of
Columbia);
(b)
if
the Company is not the Successor
Corporation, (1) such Person shall have executed and delivered to each
holder of the Notes its assumption of the due and punctual performance and
observance of each covenant and condition of this Agreement and the Notes
(pursuant to such agreements or instruments as shall be reasonably satisfactory
to the Required Holders), (2) such Person shall have caused to be delivered
to each holder of the Notes an opinion of nationally recognized independent
counsel, or other independent counsel reasonably satisfactory to the Required
Holders, to the effect that all agreements or instruments effecting such
assumption are enforceable in accordance with their terms and comply with the
terms hereof and (3) each Guarantor shall have reaffirmed, in writing, its
obligations under the Guaranty Agreement; and
(c)
immediately
after giving effect to such
transaction, no Default or Event of Default would exist (
provided
that,
with respect to
Sections 10.1
and
10.2
,
calculation of compliance therewith shall be made as of the date of
determination under this
Section 10.7
and not as of the
end of the immediately preceding fiscal quarter of the Company).
No
such
conveyance, transfer or lease of all or substantially all of the assets of
the
Company shall have the effect of releasing the Company or any Successor
Corporation that shall theretofore have become such in the manner prescribed
in
this
Section 10.7
from its liability under this Agreement
or the Notes.
Section 10.8.
Disposal
of Ownership of a
Restricted Subsidiary
. The Company will not, and will not permit
any Restricted Subsidiary to, sell or otherwise dispose of any shares of
Restricted Subsidiary Stock, nor will the Company permit any such Restricted
Subsidiary to issue, sell or otherwise dispose of any shares of its own
Restricted Subsidiary Stock,
provided
that the foregoing restrictions
do not apply to:
(a)
the
issue of directors’ qualifying
shares by any such Restricted Subsidiary;
(b)
any
such Transfer of Restricted
Subsidiary Stock constituting a Transfer described in clause (a) of the
definition of “Asset Disposition”; and
(c)
the
Transfer of the Restricted
Subsidiary Stock of a Restricted Subsidiary owned by the Company and its other
Subsidiaries;
provided
that such Transfer satisfies the requirements of
Section 9.6
and
Section 10.6.
Section 10.9.
Limitations
on Subsidiaries,
Partnerships and Joint Ventures.
The Company will not, and will
not permit any of its Restricted Subsidiaries to, own or create directly or
indirectly any Restricted Subsidiaries other than (a) any Restricted
Subsidiary which is a Regulated Entity, (b) any Restricted Subsidiary which
is a Guarantor on the date of the Closing and (c) any Restricted Subsidiary
formed after the date of the Closing that becomes a Guarantor under the Guaranty
Agreement pursuant to
Section 9.7
. The Company
shall not, and shall not permit any Restricted Subsidiary to, become or agree
to
become (1) a general or limited partner in any general or limited
partnership, except that the Company may be a general or limited partner in
any
Subsidiary and any Restricted Subsidiary may be a general or limited partner
in
any other Subsidiary and except that the Company and its Restricted Subsidiaries
may be a limited partner in a Permitted Related Business Opportunity, (2) a
member or manager of, or hold a limited liability company interest in, a limited
liability company, except that the Company may be a member or manager of, or
hold limited liability company interests in, its Subsidiaries and Restricted
Subsidiaries may be members or managers of, or hold limited liability company
interests in, other Subsidiaries and except that the Company and its Restricted
Subsidiaries may be members or managers of, or hold limited liability company
interests in a Permitted Related Business Opportunity or (3) a joint
venturer or hold a joint venture interest in any joint venture, except that
the
Company and its Restricted Subsidiaries may become a joint venturer in or hold
a
joint venture interest in any joint venture that is a Permitted Related Business
Opportunity.
Section 10.10.
Limitation
on Certain
Leases.
The Company will not, and will not permit any of its
Restricted Subsidiaries to, engage in any off-balance sheet transaction
(
i.e.
, the liabilities in respect of which do not appear on the
liability side of the balance sheet, with such balance sheet prepared in
accordance with GAAP) providing the functional equivalent of borrowed money
(including asset securitizations, sale/leasebacks or Synthetic Leases (other
than any sale/leaseback transaction or Synthetic Lease entered into, in either
case, with respect to meter assets and which transaction is otherwise permitted
by this Agreement)) with liabilities in excess, in the aggregate for the Company
and its Restricted Subsidiaries as of any date of determination, of 5% of the
Consolidated Tangible Assets.
For
purposes of this
Section 10.10
, the amount of any lease which
is not a Capital Lease is the aggregate amount of minimum lease payments due
pursuant to such lease for any non-cancelable portion of its term.
Section 10.11.
Nature
of
Business
. The Company will not, and will not permit any of its
Restricted Subsidiaries to, engage in any business if, as a result, the general
nature of the business in which the Company and its Restricted Subsidiaries,
taken as a whole, would then be engaged would be substantially and materially
changed from the general nature of the business in which the Company and its
Restricted Subsidiaries are engaged on the date of the Closing.
Section 10.12.
Transactions
with
Affiliates
. Except in the case of a Permitted Related Business
Opportunity, the Company will not, and will not permit any Restricted Subsidiary
to, enter into, directly or indirectly, any Material transaction or group of
related transactions (including, without limitation, the purchase, lease, sale
or exchange of properties of any kind or the rendering of any service) with
any
Affiliate (other than the Company, a Restricted Subsidiary or New Jersey Natural
Gas), except in the ordinary course and pursuant to the reasonable requirements
of the Company’s or such Restricted Subsidiary’s business and upon fair and
reasonable terms no less favorable to the Company or such Restricted Subsidiary
than would be obtainable in a comparable arm’s-length transaction with a Person
not an Affiliate.
Section 10.13.
Designation
of Restricted and
Unrestricted Subsidiaries.
(a) Subject to Section 10.13(b),
the Company may designate any Subsidiary to be a Restricted Subsidiary and
may
designate any Restricted Subsidiary to be an Unrestricted Subsidiary by giving
written notice to each holder of Notes that the Board of Directors of the
Company has made such designation,
provided, however,
that no
Subsidiary may be designated a Restricted Subsidiary and no Restricted
Subsidiary may be designated an Unrestricted Subsidiary unless, at the time
of
such action and after giving effect thereto, (1) solely in the case of a
Restricted Subsidiary being designated an Unrestricted Subsidiary, such
Restricted Subsidiary being designated an Unrestricted Subsidiary shall not
have
any continuing Investment in the Company or any other Restricted Subsidiary
and
(2) no Default or Event of Default shall have occurred and be continuing
(
provided
that, with respect to
Sections 10.1
and
10.2
, calculation of compliance therewith
shall be made as of
the date of determination under this
Section 10.13
and not
as of the end of the immediately preceding fiscal quarter of the
Company). Any Restricted Subsidiary which has been designated an
Unrestricted Subsidiary and which has then been redesignated a Restricted
Subsidiary, in each case in accordance with the provisions of the first sentence
of this
Section 10.13
, shall not at any time thereafter be
redesignated an Unrestricted Subsidiary without the prior written consent of
the
Required Holders. Any Unrestricted Subsidiary which has been
designated a Restricted Subsidiary and which has then been redesignated an
Unrestricted Subsidiary, in each case in accordance with the provisions of
the
first sentence of this
Section 10.13
, shall not at any
time thereafter be redesignated a Restricted Subsidiary without the prior
written consent of the Required Holders. If the Company enters into
any credit facility or note purchase agreement after the date of Closing and
New
Jersey Natural Gas shall be designated as a “restricted subsidiary” under, then
the Company shall, within 10 Business Days of its entering into such credit
facility or note purchase agreement, designate New Jersey Natural Gas as a
Restricted Subsidiary under this Agreement. If the Company enters
into any credit facility or note purchase agreement after the date of Closing
and New Jersey Natural Gas shall be subjected to any negative covenants of
the
type included in this
Section 10
of such credit facility
or note purchase agreement, then and in any such event the Company shall give
written notice thereof to each holder not later than 30 days following the
date
of execution of any such agreement. Effective on the date of
execution of any such agreement, such additional covenant that is included
in
such agreement and any related definitions shall be deemed to have been
incorporated herein. The Company further covenants to promptly
execute and deliver at its expense (including, without limitation, the fees
and
expenses of counsel for the holders) an amendment to this Agreement in form
and
substance satisfactory to the Required Holders evidencing the amendment of
this
Agreement to include such additional covenant.
(b)
The
Company will cause each
Subsidiary that is designated as a Restricted Subsidiary on Schedule 5.4 on
the date of Closing to at all times remain a Restricted Subsidiary.
Section 10.14.
Terrorism
Sanctions
Regulations.
The Company will not, and will not permit any
Subsidiary to, (a) become a Person described or designated in the Specially
Designated Nationals and Blocked Persons List of the Office of Foreign Assets
Control or in Section 1 of the Anti-Terrorism Order or (b) engage in
any dealings or transactions with any such Person.
|
Section 11.
|
Events
of Default.
|
An
“Event of Default”
shall exist if any of the following conditions or
events shall occur and be continuing:
(a)
the
Company defaults in the payment of
any principal or Make-Whole Amount on any Note when the same becomes due
and
payable, whether at maturity or at a date fixed for prepayment or by declaration
or otherwise; or
(b)
the
Company defaults in the payment of
any interest on any Note for more than five Business Days after the same becomes
due
and
payable; or
(c)
the
Company defaults in the performance
of or compliance with any term contained in any of
Section 9.6
through
Section 9.8,
inclusive,
Section 10.1
through
Section 10.10
, inclusive, or
Section 10.14
; or
(d)
the
Company defaults in the performance
of or compliance with any term contained herein (other than those referred
to in
paragraphs (a), (b) and (c) of this
Section 11
) and such
default is not remedied within 30 days after the earlier of (1) a
Responsible Officer obtaining actual knowledge of such default and (2) the
Company receiving written notice of such default from any holder of a Note
(any
such written notice to be identified as a “notice of default” and to refer
specifically to this paragraph (d) of
Section 11
);
or
(e)
any
representation or warranty made in
writing by or on behalf of the Company or any Guarantor or by any officer of
the
Company or any Guarantor in this Agreement, the Guaranty Agreement or in any
writing furnished in connection with the transactions contemplated hereby proves
to have been false or incorrect in any material respect on the date as of which
made; or
(f)
(1) the
Company or any Significant
Subsidiary is in default (as principal or as guarantor or other surety) in
the
payment of any principal of or premium or make-whole amount or interest on
any
Debt that is outstanding in an aggregate principal amount of at least
$15,000,000 beyond any period of grace provided with respect thereto or
(2) the Company or any Significant Subsidiary is in default in the
performance of or compliance with any term of any evidence of any Debt in an
aggregate outstanding principal amount of at least $15,000,000 or of any
mortgage, indenture or other agreement relating thereto or any other condition
exists, and as a consequence of such default or condition such Debt has become,
or has been declared
(or one or more Persons are entitled
to declare such Debt to be),
due and payable before its
stated maturity or before its regularly scheduled dates of payment or
(3) as a consequence of the occurrence or continuation of any event or
condition (other than the passage of time or the right of the holder of Debt
to
convert such Debt into equity interests), (i) the Company or any
Significant Subsidiary has become obligated to purchase or repay Debt before
its
regular maturity or before its regularly scheduled dates of payment in an
aggregate outstanding principal amount of at least $15,000,000 or (ii) one
or more Persons have the right to require the Company or any Significant
Subsidiary so to purchase or repay such Debt; or
(g)
the
Company or any Significant
Subsidiary is in default under the terms of any agreement involving any
off-balance sheet transaction (including any asset securitization,
sale/leaseback transaction or Synthetic Lease) with obligations in the aggregate
thereunder for which the Company or any Significant Subsidiary may be obligated
in an amount in excess of $15,000,000, and such breach, default or event of
default consists of the failure to pay (beyond any period of grace permitted
with respect thereto) any obligation when due (whether at stated maturity,
by
acceleration or otherwise) or if such breach or default permits or causes the
acceleration of any obligation or the termination of such agreement;
or
(h)
the
Company or any Significant
Subsidiary (1) is generally not paying, or admits in writing its inability
to pay, its debts as they become due, (2) files, or consents by answer or
otherwise to the filing against it of, a petition for relief or reorganization
or arrangement or any other petition in bankruptcy, for liquidation or to take
advantage of any bankruptcy, insolvency, reorganization, moratorium or other
similar law of any jurisdiction, (3) makes an assignment for the benefit of
its creditors, (4) consents to the appointment of a custodian, receiver,
trustee or other officer with similar powers with respect to it or with respect
to any substantial part of its property, (5) is adjudicated as insolvent or
to be liquidated or (6) takes corporate action for the purpose of any of
the foregoing; or
(i)
a
court or Governmental Authority of
competent jurisdiction enters an order appointing, without consent by the
Company or any of its Significant Subsidiaries, a custodian, receiver, trustee
or other officer with similar powers with respect to it or with respect to
any
substantial part of its property, or constituting an order for relief or
approving a petition for relief or reorganization or any other petition in
bankruptcy or for liquidation or to take advantage of any bankruptcy or
insolvency law of any jurisdiction, or ordering the dissolution, winding-up
or
liquidation of the Company or any of its Significant Subsidiaries, or any such
petition shall be filed against the Company or any of its Significant
Subsidiaries and such petition shall not be dismissed within 60 days;
or
(j)
a
final judgment or judgments for the
payment of money aggregating in excess of $15,000,000 (exclusive of amounts
fully covered by valid and collectible insurance in respect thereof subject
to
customary deductibles) are rendered against one or more of the Company and
its
Significant Subsidiaries and which judgments are not, within 45 days after
entry
thereof (or such shorter period as judgment creditors are stayed pursuant to
applicable law from executing on such judgment or judgments), bonded, discharged
or stayed pending appeal, or are not discharged within 45 days after the
expiration of such stay (or such shorter period as judgment creditors are stayed
pursuant to applicable law from executing on such judgment or judgments);
or
(k)
(1) default
shall occur under the
Guaranty Agreement and such default shall continue beyond the period of grace,
if any, allowed with respect thereto or (2) the Guaranty Agreement shall
cease to be in full force and effect for any reason whatsoever, including,
without limitation, a determination by any Governmental Authority or court
that
such agreement is invalid, void or unenforceable or any Guarantor shall contest
or deny in writing the validity or enforceability of the Guaranty Agreement;
or
(l)
if (1) any Plan shall fail to
satisfy the minimum funding standards of ERISA or the Code for any plan year
or
part thereof or a waiver of such standards or extension of any amortization
period is sought or granted under Section 412 of the Code, (2) a
notice of intent to terminate any Plan on other than a standard basis shall
have
been or is reasonably expected to be filed with the PBGC or the PBGC shall
have
instituted proceedings under Section 4042 of ERISA to terminate or appoint
a trustee to administer any Plan or the PBGC shall have notified the Company
or
any ERISA Affiliate that a Plan may become a subject of any such proceedings,
(3) the present value of the aggregate “amount of unfunded benefit
liabilities” within the meaning of Section 4001(a)(18) of ERISA under all Plans
(determined in accordance with Title IV of ERISA, as of the end of the most
recent Plan year on the basis of the actuarial assumptions specified for funding
purposes in the most recent actuarial valuation), shall exceed the aggregate
actuarial value of their assets by an amount equal to 10% of Consolidated
Tangible Net Worth, (4) the Company or any ERISA Affiliate shall have
incurred or is reasonably expected to incur any liability pursuant to Title
I or
IV of ERISA or the penalty or excise tax provisions of the Code relating to
employee benefit plans, (5) the Company or any ERISA Affiliate withdraws
from any Multiemployer Plan or (6) the Company or any ERISA Affiliate
establishes or amends any employee welfare benefit plan that provides
post-employment welfare benefits in a manner that would increase the liability
of the Company or any ERISA Affiliate thereunder; and any such event or events
described in clauses (1) through (6) above, either individually or together
with
any other such event or events, would reasonably be expected to have a Material
Adverse Effect.
As
used
in
Section 11(l),
the terms “employee benefit plan” and
“employee welfare benefit plan” shall have the respective meanings assigned to
such terms in Section 3 of ERISA.
|
Section 12.
|
Remedies
on Default, Etc.
|
Section 12.1.
Acceleration
. (a) If
an Event of Default with respect to the Company described in paragraph (h)
or
(i) of
Section 11
(other than an Event of Default
described in clause (1) of paragraph (h) or described in clause (6) of paragraph
(h) by virtue of the fact that such clause encompasses clause (1) of paragraph
(h)) has occurred, all the Notes then outstanding shall automatically become
immediately due and payable.
(b)
If
any other Event of Default has
occurred and is continuing, the Required Holders may at any time at its or
their
option, by notice or notices to the Company, declare all the Notes then
outstanding to be immediately due and payable.
(c)
If
any Event of Default described in
paragraph (a) or (b) of
Section 11
has occurred and is
continuing, any holder or holders of Notes at the time outstanding affected
by
such Event of Default may at any time, at its or their option, by notice or
notices to the Company, declare all the Notes held by it or them to be
immediately due and payable.
Upon
any
Note becoming due and payable under this
Section 12.1
,
whether automatically or by declaration, such Note will forthwith mature and
the
entire unpaid principal amount of such Note,
plus
(1) all accrued
and unpaid interest thereon (including, but not limited to, interest accrued
thereon at the Default Rate) and (2) the Make-Whole Amount, if any,
determined in respect of such principal amount (to the full extent permitted
by
applicable law) shall all be immediately due and payable, in each and every
case
without presentment, demand, protest or further notice, all of which are hereby
waived. The Company acknowledges, and the parties hereto agree, that
each holder of a Note has the right to maintain its investment in the Notes
free
from repayment by the Company (except as herein specifically provided for),
and
that the provision for payment of the Make-Whole Amount by the Company in the
event that the Notes are prepaid or are accelerated as a result of an Event
of
Default, is intended to provide compensation for the deprivation of such right
under such circumstances.
Section 12.2.
Other
Remedies
. If any Default or Event of Default has occurred and is
continuing, and irrespective of whether any Notes have become or have been
declared immediately due and payable under
Section 12.1
,
the holder of any Note at the time outstanding may proceed to protect and
enforce the rights of such holder by an action at law, suit in equity or other
appropriate proceeding, whether for the specific performance of any agreement
contained herein or in any Note, or for an injunction against a violation of
any
of the terms hereof or thereof, or in aid of the exercise of any power granted
hereby or thereby or by law or otherwise.
Section 12.3.
Rescission
. At
any time after any Notes have been declared due and payable pursuant to clause
(b) or (c) of
Section 12.1
, the Required Holders, by
written notice to the Company, may rescind and annul any such declaration and
its consequences if (a) the Company has paid all overdue interest on the
Notes, all principal of and Make-Whole Amount, if any, on any Notes that are
due
and payable and are unpaid other than by reason of such declaration, and all
interest on such overdue principal and Make-Whole Amount, if any, and (to the
extent permitted by applicable law) any overdue interest in respect of the
Notes, at the Default Rate, (b) neither the Company nor any other Person shall
have paid any amounts which have become due solely by reason of such
declaration, (c) all Events of Default and Defaults, other than non-payment
of amounts that have become due solely by reason of such declaration, have
been
cured or have been waived pursuant to
Section 17
and
(d) no judgment or decree has been entered for the payment of any monies
due pursuant hereto or to the Notes. No rescission and annulment
under this
Section 12.3
will extend to or affect any
subsequent Event of Default or Default or impair any right consequent
thereon.
Section 12.4.
No
Waivers or Election of
Remedies, Expenses, Etc
. No course of dealing and no delay on
the part of any holder of any Note in exercising any right, power or remedy
shall operate as a waiver thereof or otherwise prejudice such holder’s rights,
powers or remedies. No right, power or remedy conferred by this
Agreement or by any Note upon any holder thereof shall be exclusive of any
other
right, power or remedy referred to herein or therein or now or hereafter
available at law, in equity, by statute or otherwise. Without
limiting the obligations of the Company under
Section 15
,
the Company will pay to the holder of each Note on demand such further amount
as
shall be sufficient to cover all costs and expenses of such holder incurred
in
any enforcement or collection under this
Section 12
,
including, without limitation, reasonable attorneys’ fees, expenses and
disbursements.
|
Section 13.
|
Registration;
Exchange; Substitution of Notes.
|
Section 13.1.
Registration
of
Notes
. The Company shall keep at its principal executive office
a register for the registration and registration of transfers of
Notes. The name and address of each holder of one or more Notes, each
transfer thereof and the name and address of each transferee of one or more
Notes shall be registered in such register. Prior to due presentment
for registration of transfer, the Person in whose name any Note shall be
registered shall be deemed and treated as the owner and holder thereof for
all
purposes hereof, and the Company shall not be affected by any notice or
knowledge to the contrary. The Company shall give to any holder of a
Note that is an Institutional Investor promptly upon request therefor, a
complete and correct copy of the names and addresses of all registered holders
of Notes.
Section 13.2.
Transfer
and Exchange of
Notes
. Upon surrender of any Note at the principal executive
office of the Company for registration of transfer or exchange (and in the
case
of a surrender for registration of transfer, duly endorsed or accompanied by
a
written instrument of transfer duly executed by the registered holder of such
Note or its attorney duly authorized in writing and accompanied by the address
for notices of each transferee of such Note or part thereof), within 10 Business
Days thereafter, the Company shall execute and deliver, at the Company’s expense
(except as provided below), one or more new Notes (as requested by the holder
thereof) in exchange therefor, in an aggregate principal amount equal to the
unpaid principal amount of the surrendered Note. Each such new Note
shall be payable to such Person as such holder may request and shall be
substantially in the form of
Exhibit 1
. Each such
new Note shall be dated and bear interest from the date to which interest shall
have been paid on the surrendered Note or dated the date of the surrendered
Note
if no interest shall have been paid thereon. The Company may require
payment of a sum sufficient to cover any stamp tax or governmental charge
imposed in respect of any such transfer of Notes. Notes shall not be
transferred in denominations of less than $100,000,
provided
that if
necessary to enable the registration of transfer by a holder of its entire
holding of Notes, one Note may be in a denomination of less than
$100,000. Any transferee, by its acceptance of a Note registered in
its name (or the name of its nominee), shall be deemed to have made the
representation set forth in
Section 6.2
.
Section 13.3.
Replacement
of
Notes
. Upon receipt by the Company of evidence reasonably
satisfactory to it of the ownership of and the loss, theft, destruction or
mutilation of any Note (which evidence shall be, in the case of an Institutional
Investor, notice from such Institutional Investor of such ownership and such
loss, theft, destruction or mutilation), and
(a)
in
the case of loss, theft or
destruction, of indemnity reasonably satisfactory to it (
provided
that
if the holder of such Note is, or is a nominee for, an original Purchaser or
another holder of a Note with a minimum net worth of at least $50,000,000,
such
Person’s own unsecured agreement of indemnity shall be deemed to be
satisfactory), or
(b)
in
the case of mutilation, upon
surrender and cancellation thereof,
within
10
Business Days thereafter, the Company at its own expense shall execute and
deliver, in lieu thereof, a new Note, dated and bearing interest from the date
to which interest shall have been paid on such lost, stolen, destroyed or
mutilated Note or dated the date of such lost, stolen, destroyed or mutilated
Note if no interest shall have been paid thereon.
|
Section 14.
|
Payments
on Notes.
|
Section 14.1.
Place
of
Payment
. Subject to
Section 14.2
, payments
of principal, Make-Whole Amount, if any, and interest becoming due and payable
on the Notes shall be made in New York, New York at the principal office of
JPMorgan Chase Bank, N.A. in such jurisdiction. The Company may at
any time, by notice to each holder of a Note, change the place of payment of
the
Notes so long as such place of payment shall be either the principal office
of
the Company in such jurisdiction or the principal office of a bank or trust
company in such jurisdiction.
Section 14.2.
Home
Office
Payment
. So long as any Purchaser or its nominee shall be the
holder of any Note, and notwithstanding anything contained in
Section 14.1
or in such Note to the contrary, the Company
will pay all sums becoming due on such Note for principal, Make-Whole Amount,
if
any, and interest by the method and at the address specified for such purpose
below such Purchaser’s name in
Schedule A
, or by such
other method or at such other address as such Purchaser shall have from time
to
time specified to the Company in writing for such purpose, without the
presentation or surrender of such Note or the making of any notation thereon,
except that upon written request of the Company made concurrently with or
reasonably promptly after payment or prepayment in full of any Note, such
Purchaser shall surrender such Note for cancellation, reasonably promptly after
any such request, to the Company at its principal executive office or at the
place of payment most recently designated by the Company pursuant to
Section 14.1
. Prior to any sale or other
disposition of any Note held by any Purchaser or its nominee such Purchaser
will, at its election, either endorse thereon the amount of principal paid
thereon and the last date to which interest has been paid thereon or surrender
such Note to the Company in exchange for a new Note or Notes pursuant to
Section 13.2
. The Company will afford the
benefits of this
Section 14.2
to any Institutional
Investor that is the direct or indirect transferee of any Note purchased by
any
Purchaser under this Agreement and that has made the same agreement relating
to
such Note as such Purchaser has made in this
Section 14.2
.
|
Section 15.
|
Expenses,
Etc.
|
Section 15.1.
Transaction
Expenses
. Whether or not the transactions contemplated hereby
are consummated, the Company will pay the costs and expenses incurred in
connection with the initial filing of this Agreement and all related documents
and financial information, and all subsequent annual and interim filings of
documents and financial information related thereto, with the Securities
Valuation Office of the National Association of Insurance Commissioners or
any
successor organization, all costs and expenses (including reasonable attorneys’
fees of a special counsel and, if reasonably required, local or other counsel)
incurred by the Purchasers or any other holder of a Note in connection with
such
transactions and in connection with any amendments, waivers or consents under
or
in respect of this Agreement, the Notes or the Guaranty Agreement (whether
or
not such amendment, waiver or consent becomes effective), including, without
limitation: (a) the costs and expenses incurred in enforcing or defending
(or determining whether or how to enforce or defend) any rights under this
Agreement, the Notes or the Guaranty Agreement or in responding to any subpoena
or other legal process or informal investigative demand issued in connection
with this Agreement, the Notes or the Guaranty Agreement, or by reason of being
a holder of any Note and (b) the costs and expenses, including financial
advisors’ fees, incurred in connection with the insolvency or bankruptcy of the
Company or any Subsidiary or in connection with any work-out or restructuring
of
the transactions contemplated hereby and by the Notes. The Company
will pay, and will save the Purchasers and each other holder of a Note harmless
from, all claims in respect of any fees, costs or expenses, if any, of brokers
and finders (other than those retained by such Person).
Section 15.2.
Survival
. The
obligations of the Company under this
Section 15
will
survive the payment or transfer of any Note, the enforcement, amendment or
waiver of any provision of this Agreement, the Notes or the Guaranty Agreement,
and the termination of this Agreement or the Guaranty Agreement.
|
Section 16.
|
Survival
of Representations and Warranties; Entire
Agreement.
|
All
representations and warranties contained herein shall survive the execution
and
delivery of this Agreement and the Notes, the purchase or transfer by any
Purchaser of any Note or portion thereof or interest therein and the payment
of
any Note, and may be relied upon by any subsequent holder of a Note, regardless
of any investigation made at any time by or on behalf of any Purchaser or any
other holder of a Note. All statements contained in any certificate
or other instrument delivered by or on behalf of the Company pursuant to this
Agreement shall be deemed representations and warranties of the Company under
this Agreement. Subject to the preceding sentence, this Agreement and
the Notes embody the entire agreement and understanding between the Purchasers
and the Company and supersede all prior agreements and understandings relating
to the subject matter hereof.
|
Section 17.
|
Amendment
and Waiver.
|
Section 17.1.
Requirements
. This
Agreement and the Notes may be amended, and the observance of any term hereof
or
of the Notes may be waived (either retroactively or prospectively), with (and
only with) the written consent of the Company and the Required Holders, except
that (a) no amendment or waiver of any of the provisions of
Section 1, 2, 3, 4, 5, 6
or
21
hereof, or
any defined term (as it is used therein), will be effective as to any holder
of
a Note unless consented to by such holder in writing and (b) no such
amendment or waiver may, without the written consent of the holder of each
Note
at the time outstanding affected thereby, (1) subject to the provisions of
Section 12
relating to acceleration or rescission, change
the amount or time of any prepayment or payment of principal of, or reduce
the
rate or change the time of payment or method of computation of interest or
of
the Make-Whole Amount on, the Notes, (2) change the percentage of the
principal amount of the Notes the holders of which are required to consent
to
any such amendment or waiver or (3) amend any of
Sections 8,
11(a), 11(b), 12, 17
or
20.
Section 17.2.
Solicitation
of Holders of
Notes.
(a)
Solicitation
. The
Company will provide each holder of the Notes (irrespective of the amount of
Notes then owned by it) with sufficient information, sufficiently far in advance
of the date a decision is required, to enable such holder to make an informed
and considered decision with respect to any proposed amendment, waiver or
consent in respect of any of the provisions hereof or of the
Notes. The Company will deliver executed or true and correct copies
of each amendment, waiver or consent effected pursuant to the provisions of
this
Section 17
to each holder of outstanding Notes promptly
following the date on which it is executed and delivered by, or receives the
consent or approval of, the requisite holders of Notes.
(b)
Payment
. The
Company will not, directly or indirectly, pay or cause to be paid any
remuneration, whether by way of supplemental or additional interest, fee or
otherwise, or grant any security or provide any other credit support, to any
holder of Notes as consideration for or as an inducement to the entering into
by
any holder of Notes of any waiver or amendment of any of the terms and
provisions hereof unless such remuneration is concurrently paid, or security
is
concurrently granted or other credit support concurrently provided, on the
same
terms, ratably to each holder of Notes then outstanding even if such holder
did
not consent to such waiver or amendment.
(c)
Consent
in Contemplation of
Transfer.
Any consent made pursuant to this
Section 17
by a holder of Notes that has transferred a
portion or has agreed to transfer all or a portion of its Notes to the Company,
any Subsidiary or any Affiliate of the Company and has provided or has agreed
to
provide such written consent as a condition to such transfer shall be void
and
of no force and effect except solely as to such holder, and any amendments
effected or waivers granted or to be effected or granted that would not have
been or be so effected or granted but for such consent (and the consents of
all
other holders of the Notes that were acquired under the same or similar
conditions) shall be void and of no force and effect except solely as to such
holder.
Section 17.3.
Binding
Effect,
Etc
. Any amendment or waiver consented to as provided in this
Section 17
applies equally to all holders of Notes and is
binding upon them and upon each future holder of any Note and upon the Company
without regard to whether such Note has been marked to indicate such amendment
or waiver. No such amendment or waiver will extend to or affect any
obligation, covenant, agreement, Default or Event of Default not expressly
amended or waived or impair any right consequent thereon. No course
of dealing between the Company and the holder of any Note nor any delay in
exercising any rights hereunder or under any Note shall operate as a waiver
of
any rights of any holder of such Note. As used herein, the term “this
Agreement” and references thereto shall mean this Agreement as it may from time
to time be amended or supplemented.
Section 17.4.
Notes
Held by Company,
Etc
. Solely for the purpose of determining whether the holders
of the requisite percentage of the aggregate principal amount of Notes then
outstanding approved or consented to any amendment, waiver or consent to be
given under this Agreement or the Notes, or have directed the taking of any
action provided herein or in the Notes to be taken upon the direction of the
holders of a specified percentage of the aggregate principal amount of Notes
then outstanding, Notes directly or indirectly owned by the Company or any
of
its Affiliates shall be deemed not to be outstanding.
|
Section 18.
|
Notices.
|
All
notices and communications provided for hereunder shall be in writing and sent
(a) by telefacsimile if the sender on the same day sends a confirming copy
of such notice by a recognized overnight delivery service (charges prepaid),
(b) by registered or certified mail with return receipt requested (postage
prepaid) or (c) by a recognized overnight delivery service (charges
prepaid). Any such notice must be sent:
(1)
if
to any Purchaser or its nominee, to
such Purchaser or its nominee at the address specified for such communications
in
Schedule A
, or at such other address as such Purchaser
or its nominee shall have specified to the Company in writing,
(2)
if
to any other holder of any Note, to
such holder at such address as such other holder shall have specified to the
Company in writing, or
(3)
if
to the Company, to the Company at
its address set forth at the beginning hereof to the attention of the Chief
Financial Officer of the Company, or at such other address as the Company shall
have specified to the holder of each Note in writing.
Notices
under this
Section 18
will be deemed given only when
actually received.
|
Section 19.
|
Reproduction
of Documents.
|
This
Agreement and all documents relating hereto, including, without limitation,
(a) consents, waivers and modifications that may hereafter be executed,
(b) documents received by the Purchasers at the Closing (except the Notes
themselves) and (c) financial statements, certificates and other
information previously or hereafter furnished to any holder of the Notes, may
be
reproduced by such holder by any photographic, photostatic, microfilm,
microcard, miniature photographic or other similar process and such holder
may
destroy any original document so reproduced. The Company agrees and
stipulates that, to the extent permitted by applicable law, any such
reproduction shall be admissible in evidence as the original itself in any
judicial or administrative proceeding (whether or not the original is in
existence and whether or not such reproduction was made by any holder of the
Notes in the regular course of business) and any enlargement, facsimile or
further reproduction of such reproduction shall likewise be admissible in
evidence. This
Section 19
shall not prohibit
the Company or any other holder of Notes from contesting any such reproduction
to the same extent that it could contest the original, or from introducing
evidence to demonstrate the inaccuracy of any such reproduction.
|
Section 20.
|
Confidential
Information.
|
For
the
purposes of this
Section 20
,
“Confidential
Information”
shall mean information delivered to any Purchaser by or on
behalf of the Company or any Subsidiary in connection with the transactions
contemplated by or otherwise pursuant to this Agreement that is proprietary
in
nature and that was clearly marked or labeled or otherwise adequately identified
when received by such Purchaser as being confidential information of the Company
or such Subsidiary,
provided
that such term does not include
information that (a) was publicly known or otherwise known to such
Purchaser prior to the time of such disclosure (
provided, however,
that
to such Purchaser’s actual knowledge, the source of such information was not, at
the time of disclosure to such Purchaser, bound by a confidentiality agreement
with the Company or its Subsidiaries relating to such information),
(b) subsequently becomes publicly known through no act or omission by such
Purchaser or any Person acting on such Purchaser’s behalf, (c) otherwise
becomes known to such Purchaser other than through disclosure by the Company
or
any Subsidiary (
provided, however,
that to such Purchaser’s actual
knowledge, the source of such information was not, at the time of disclosure
to
such Purchaser, bound by a confidentiality agreement with the Company or its
Subsidiaries relating to such information) or (d) constitutes financial
statements delivered to such Purchaser under
Section 7.1
that are otherwise publicly available. Each Purchaser will
maintain the confidentiality of such Confidential Information in accordance
with
procedures adopted by such Purchaser in good faith to protect confidential
information of third parties delivered to such Purchaser,
provided
that
such Purchaser may deliver or disclose Confidential Information to (1) its
directors, officers, trustees, employees, agents, attorneys and affiliates
(to
the extent such disclosure reasonably relates to the administration of the
investment represented by its Notes and such individuals are bound by the terms
of this
Section 20
or agree to hold confidential the
Confidential Information substantially in accordance with the terms of this
Section 20
), (2) its financial advisors and other
professional advisors who agree to hold confidential the Confidential
Information substantially in accordance with the terms of this
Section 20
, (3) any other holder of any Note,
(4) any Institutional Investor to which such Purchaser sells or offers to
sell such Note or any part thereof or any participation therein (if such Person
has agreed in writing prior to its receipt of such Confidential Information
to
be bound by the provisions of this
Section 20
),
(5) any Person from which such Purchaser offers to purchase any security of
the Company (if such Person has agreed in writing prior to its receipt of such
Confidential Information to be bound by the provisions of this
Section 20
), (6) any Federal or state regulatory
authority having jurisdiction over such Purchaser, (7) the National
Association of Insurance Commissioners or any similar organization, or any
nationally recognized rating agency that requires access to information about
such Purchaser’s investment portfolio or (8) any other Person to which such
delivery or disclosure may be necessary or appropriate (i) to effect
compliance with any law, rule, regulation or order applicable to such Purchaser,
(ii) in response to any subpoena or other legal process, (iii) in
connection with any litigation to which such Purchaser is a party or
(iv) if an Event of Default has occurred and is continuing, to the extent
such Purchaser may reasonably determine such delivery and disclosure to be
necessary or appropriate in the enforcement or for the protection of the rights
and remedies under such Purchaser’s Notes and this Agreement. Each
holder of a Note, by its acceptance of a Note, will be deemed to have agreed
to
be bound by and to be entitled to the benefits of this
Section 20
as though it were a party to this Agreement. On reasonable
request by the Company in connection with the delivery to any holder of a Note
of information required to be delivered to such holder under this Agreement
or
requested by such holder (other than a holder that is a party to this Agreement
or its nominee), such holder will enter into an agreement with the Company
embodying the provisions of this
Section 20
.
|
Section 21.
|
Substitution
of Purchaser.
|
Each
Purchaser shall have the right to substitute any one of its Affiliates as the
purchaser of the Notes that such Purchaser has agreed to purchase hereunder,
by
written notice to the Company, which notice shall be signed by both such
Purchaser and such Affiliate, shall contain such Affiliate’s agreement to be
bound by this Agreement and shall contain a confirmation by such Affiliate
of
the accuracy with respect to it of the representations set forth in
Section 6
. Upon receipt of such notice,
wherever the word “Purchaser” is used in this Agreement (other than in this
Section 21
), such word shall be deemed to refer to such
Affiliate in lieu of such Purchaser. In the event that such Affiliate
is so substituted as a purchaser hereunder and such Affiliate thereafter
transfers to such Purchaser all of the Notes then held by such Affiliate, upon
receipt by the Company of notice of such transfer, wherever the word “Purchaser”
is used in this Agreement (other than in this
Section 21
),
such word shall no longer be deemed to refer to such Affiliate, but shall refer
to such Purchaser, and such Purchaser shall have all the rights of an original
holder of the Notes under this Agreement.
|
Section 22.
|
Miscellaneous.
|
Section 22.1.
Successors
and
Assigns
. All covenants and other agreements contained in this
Agreement by or on behalf of any of the parties hereto bind and inure to the
benefit of their respective successors and assigns (including, without
limitation, any subsequent holder of a Note) whether so expressed or
not.
Section 22.2.
Submission
to Jurisdiction;
Waiver of Jury Trial.
(a) The Company hereby irrevocably
submits to the non-exclusive jurisdiction of any State of New York court or
any
Federal court located in New York County, New York, New York for the
adjudication of any matter arising out of or relating to this Agreement, and
consents to the service of all writs, process and summonses by registered or
certified mail out of any such court or by service of process on the Company
at
its address to which notices are to be given pursuant to
Section 18
hereof and hereby waives any requirement to
have an agent for service of process in the State of
New
York.
Nothing
contained herein shall affect the right of any holder of the Notes to serve
legal process in any other manner or to bring any proceeding hereunder in any
jurisdiction where the Company may be amenable to suit. The Company
hereby irrevocably waives any objection to any suit, action or proceeding in
any
New York court or Federal court located in New York County, New York, New York
on the grounds of venue and hereby further irrevocably waives any claim that
any
such suit, action or proceeding brought in any such court has been brought
in an
inconvenient forum.
(b)
The
parties hereto hereby waive trial
by jury in any action brought on or with respect to this Agreement, the Notes
or
any other document executed in connection herewith or therewith.
Section 22.3.
Payments
Due on Non-Business
Days
. Anything in this Agreement or the Notes to the contrary
notwithstanding (but without limiting the requirement in
Section 8.4
that the notice of any optional prepayment
specify a Business Day as the date fixed for such prepayment), any payment
of
principal of or Make-Whole Amount, if any, or interest on any Note that is
due
on a date other than a Business Day shall be made on the next succeeding
Business Day without including the additional days elapsed in the computation
of
the interest payable on such next succeeding Business Day;
provided
that if the maturity date of any Note is a date other than a Business Day,
the
payment otherwise due on such maturity date shall be made on the next succeeding
Business Day and shall include the additional days elapsed in the computation
of
interest payable on such next succeeding Business Day.
Section 22.4.
Accounting
Terms.
All accounting terms used herein which are not expressly
defined in this Agreement have the meanings respectively given to them in
accordance with GAAP. Except as otherwise specifically provided
herein, (a) all computations made pursuant to this Agreement shall be made
in accordance with GAAP, and (b) all financial statements shall be prepared
in accordance with GAAP.
Section 22.5.
Severability
. Any
provision of this Agreement that is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall (to the full extent permitted by law) not invalidate or
render unenforceable such provision in any other jurisdiction.
Section 22.6.
Construction
. Each
covenant contained herein shall be construed (absent express provision to the
contrary) as being independent of each other covenant contained herein, so
that
compliance with any one covenant shall not (absent such an express contrary
provision) be deemed to excuse compliance with any other
covenant. Where any provision herein refers to action to be taken by
any Person, or which such Person is prohibited from taking, such provision
shall
be applicable whether such action is taken directly or indirectly by such
Person.
For
the
avoidance of doubt, all Schedules and Exhibits attached to this Agreement shall
be deemed to be a part hereof.
Section 22.7.
Counterparts
. This
Agreement may be executed in any number of counterparts, each of which shall
be
an original but all of which together shall constitute one
instrument. Each counterpart may consist of a number of copies
hereof, each signed by less than all, but together signed by all, of the parties
hereto.
Section 22.8.
Governing
Law
. This Agreement 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.
* * * * *
The
execution hereof by the Purchasers shall constitute a contract among the Company
and the Purchasers for the uses and purposes hereinabove set forth.
|
|
Very
truly yours,
|
|
|
New
Jersey Resources Corporation
|
|
|
By /s/ Glenn
C. Lockwood
|
|
|
Title: Senior
Vice President and Chief Financial
Officer
|
|
The
foregoing is hereby agreed
|
|
|
to
as of the date thereof.
|
|
|
|
New
York Life Insurance Company
|
|
|
By: /s/ Stuart
Ashton
|
|
|
Title: Director
|
|
|
New
York Life Insurance and Annuity
Corporation
|
|
|
By: New
York Life Investment ManagementLLC,
|
|
|
its
Investment Manager
|
|
|
By: /s/ Stuart
Ashton
|
|
|
Title: Director
|
|
|
New
York Life Insurance and Annuity Corporation Institutionally Owned
Life
Insurance Separate Account
|
|
|
(BOLI
3)
|
|
|
By: New
York Life Investment ManagementLLC,
|
|
|
its
Investment Manager
|
|
|
By: /s/ Stuart
Ashton
|
|
|
Title: Director
|
|
The
foregoing is hereby agreed
|
|
|
to
as of the date thereof.
|
|
|
|
New
York Life Insurance and Annuity Corporation Institutionally Owned
Life
Insurance Separate Account
|
|
|
(BOLI
3-2)
|
|
|
By: New
York Life Investment ManagementLLC,
|
|
|
its
Investment Manager
|
|
|
By: /s/ Stuart
Ashton
|
|
|
Title: Corporate
Vice President
|
|
|
New
York Life Insurance and Annuity Corporation Institutionally Owned
Life
Insurance Separate Account
|
|
|
(BOLI
30C)
|
|
|
By: New
York Life Investment ManagementLLC,
|
|
|
its
Investment Manager
|
|
|
By: /s/ Stuart
Ashton
|
|
|
Title: Director
|
|
|
NYLIFE
Insurance Company of Arizona
|
|
|
By: New
York Life Investment ManagementLLC,
|
|
|
its
Investment Manager
|
|
|
By: /s/ Stuart
Ashton
|
|
|
Title: Director
|
Information
Relating to Purchasers
|
Name
and Address of Purchaser
New
York Life Insurance Company
c/o
New York Life Investment Management LLC
51
Madison Avenue
New
York, New York 10010-1603
Attention: Fixed
Income Investors Group,
Private
Finance, 2
nd
Floor
Fax
Number: (212) 447-4122
|
Principal
Amount of
Notes
to be
Purchased
$29,000,000
|
Payments
All
payments on or in respect of the Notes to be by bank wire transfer of Federal
or
other immediately available funds to:
JPMorgan
Chase Bank
New
York,
New York 10019
ABA
No.
021-000-021
Credit:
New York Life Insurance Company
General
Account No. 008-9-00687
With
sufficient information (including issuer, PPN number, interest rate, maturity
and whether payment is of principal, premium, or interest) to identify the
source and application of such funds.
Notices
All
notices with respect to payments, written confirmations of such wire transfers
and audit confirmations to be addressed:
New
York Life Insurance
Company
c/o
New York Life Investment Management
LLC
51
Madison Avenue
New
York, New
York 10010-1603
Attention: Financial
Management, Securities Operations, 2
nd
Floor
Fax
Number: (212)
447-4160
With
electronic copy to: FIIGLibrary@nylim.com
All
other
notices and communications to be addressed as first provided above, with a
duplicate electronic copy to
FIIGLibrary@nylim.com
, and with a copy of
any notices regarding defaults or Events of Default under the operative
documents to: Office of General Counsel, Investment Section, Room
1016, Fax Number (212) 576-8340.
Name
of
Nominee in which Notes are to be issued: None
Taxpayer
I.D. Number: 13-5582869
|
Name
and Address of Purchaser
New
York Life Insurance and Annuity Corporation
c/o
New York Life Investment Management LLC
51
Madison Avenue
New
York, New York 10010-1603
Attention: Fixed
Income Investors Group,
Private
Finance, 2
nd
Floor
Fax
Number: (212) 447-4122
|
Principal
Amount of
Notes
to be
Purchased
$19,000,000
|
Payments
All
payments on or in respect of the Notes to be by bank wire transfer of Federal
or
other immediately available funds to:
JPMorgan
Chase Bank
New
York,
New York
ABA
No.
021-000-021
Credit:
New York Life Insurance and Annuity Corporation
General
Account No. 323-8-47382
With
sufficient information (including issuer, PPN number, interest rate, maturity
and whether payment is of principal, premium, or interest) to identify the
source and application of such funds.
Notices
All
notices with respect to payments, written confirmations of such wire transfers
and audit confirmations to be addressed:
New
York Life Insurance and Annuity
Corporation
c/o
New York Life Investment Management
LLC
51
Madison Avenue
New
York, New
York 10010-1603
Attention: Financial
Management, Securities Operations, 2
nd
Floor
Fax
Number: (212)
447-4160
With
electronic copy to: FIIGLibrary@nylim.com
All
other
notices and communications to be addressed as first provided above, with a
duplicate electronic copy to
FIIGLibrary@nylim.com
, and with a copy of
any notices regarding defaults or Events of Default under the operative
documents to: Office of General Counsel, Investment Section, Room
1016, Fax Number (212) 576-8340.
Name
of
Nominee in which Notes are to be issued: None
Taxpayer
I.D. Number: 13-3044743
|
Name
and Address of Purchaser
New
York Life Insurance and Annuity Corporation Institutionally Owned
Life
Insurance Separate Account
c/o
New York Life Investment Management LLC
51
Madison Avenue
New
York, New York 10010-1603
Attention: Fixed
Income Investors Group,
Private
Finance, 2
nd
Floor
Fax
Number: (212) 447-4122
|
Principal
Amount of
Notes
to be
Purchased
$500,000
|
Payments
All
payments on or in respect of the Notes to be by bank wire transfer of Federal
or
other immediately available funds to:
JPMorgan
Chase Bank
New
York,
New York
ABA
No.
021-000-021
Credit:
NYLIAC SEPARATE BOLI 3 BROAD FIXED
General
Account No. 323-8-39002
With
sufficient information (including issuer, PPN number, interest rate, maturity
and whether payment is of principal, premium, or interest) to identify the
source and application of such funds.
Notices
All
notices with respect to payments, written confirmations of such wire transfers
and audit confirmations to be addressed:
New
York Life Insurance and Annuity
Corporation
Institutionally
Owned Life Insurance
Separate Account
c/o
New York Life Investment Management
LLC
51
Madison Avenue
New
York, New
York 10010-1603
Attention: Financial
Management, Securities Operations, 2
nd
Floor
Fax
Number: (212)
447-4160
With
electronic copy to: FIIGLibrary@nylim.com
All
other
notices and communications to be addressed as first provided above, with a
duplicate electronic copy to
FIIGLibrary@nylim.com
, and with a copy of
any notices regarding defaults or Events of Default under the operative
documents to: Office of General Counsel, Investment Section, Room
1016, Fax Number (212) 576-8340.
Name
of
Nominee in which Notes are to be issued: None
Taxpayer
I.D. Number: 13-3044743
|
Name
and Address of Purchaser
New
York Life Insurance and Annuity Corporation Institutionally Owned
Life
Insurance Separate Account
c/o
New York Life Investment Management LLC
51
Madison Avenue
New
York, New York 10010-1603
Attention: Fixed
Income Investors Group,
Private
Finance, 2
nd
Floor
Fax
Number: (212) 447-4122
|
Principal
Amount of
Notes
to be
Purchased
$500,000
|
Payments
All
payments on or in respect of the Notes to be by bank wire transfer of Federal
or
other immediately available funds to:
Chase
Manhattan Bank
New
York,
New York
ABA
No.
021-000-021
Credit:
NYLIAC SEPARATE BOLI 3-2
General
Account No. 323-9-56793
With
sufficient information (including issuer, PPN number, interest rate, maturity
and whether payment is of principal, premium, or interest) to identify the
source and application of such funds.
Notices
All
notices with respect to payments, written confirmations of such wire transfers
and audit confirmations to be addressed:
New
York Life Insurance and Annuity
Corporation
Institutionally
Owned Life Insurance
Separate Account
c/o
New York Life Investment Management
LLC
51
Madison Avenue
New
York, New
York 10010-1603
Attention: Financial
Management, Securities Operations, 2
nd
Floor, Room
201
Fax
Number: (212)
447-4160
With
electronic copy to: FIIGLibrary@nylim.com
All
other
notices and communications to be addressed as first provided above, with a
duplicate electronic copy to
FIIGLibrary@nylim.com
, and with a copy of
any notices regarding defaults or Events of Default under the operative
documents to: Office of General Counsel, Investment Section, Room
1016, Fax Number (212) 576-8340.
Name
of
Nominee in which Notes are to be issued: None
Taxpayer
I.D. Number: 13-3044743
|
Name
and Address of Purchaser
New
York Life Insurance and Annuity Corporation Institutionally Owned
Life
Insurance Separate Account
c/o
New York Life Investment Management LLC
51
Madison Avenue
New
York, New York 10010-1603
Attention: Fixed
Income Investors Group,
Private
Finance, 2
nd
Floor
Fax
Number: (212) 447-4122
|
Principal
Amount of
Notes
to be
Purchased
$500,000
|
Payments
All
payments on or in respect of the Notes to be by bank wire transfer of Federal
or
other immediately available funds to:
JPMorgan
Chase Manhattan Bank
New
York,
New York
ABA
No.
021-000-021
Credit:
NYLIAC SEPARATE BOLI 30C
General
Account No. 304-6-23970
With
sufficient information (including issuer, PPN number, interest rate, maturity
and whether payment is of principal, premium, or interest) to identify the
source and application of such funds.
Notices
All
notices with respect to payments, written confirmations of such wire transfers
and audit confirmations to be addressed:
New
York Life Insurance and Annuity
Corporation
Institutionally
Owned Life Insurance
Separate Account
c/o
New York Life Investment Management
LLC
51
Madison Avenue
New
York, New
York 10010-1603
Attention: Financial
Management, Securities Operations, 2
nd
Floor, Room
201
Fax
Number: (212)
447-4160
With
electronic copy to: FIIGLibrary@nylim.com
All
other
notices and communications to be addressed as first provided above, with a
duplicate electronic copy to
FIIGLibrary@nylim.com
, and with a copy of
any notices regarding defaults or Events of Default under the operative
documents to: Office of General Counsel, Investment Section, Room
1016, Fax Number (212) 576-8340.
Name
of
Nominee in which Notes are to be issued: None
Taxpayer
I.D. Number: 13-3044743
|
Name
and Address of Purchaser
NYLIFE
Insurance Company of Arizona
c/o
New York Life Investment Management LLC
51
Madison Avenue
New
York, New York 10010-1603
Attention: Fixed
Income Investors Group,
Private
Finance, 2
nd
Floor
Fax
Number: (212) 447-4122
|
Principal
Amount of
Notes
to be
Purchased
$500,000
|
Payments
All
payments on or in respect of the Notes to be by bank wire transfer of Federal
or
other immediately available funds to:
JPMorgan
Chase Bank
New
York,
New York
ABA
No.
021-000-021
Credit:
NYLIFE Insurance Company of Arizona
General
Account No. 323847633
With
sufficient information (including issuer, PPN number, interest rate, maturity
and whether payment is of principal, premium, or interest) to identify the
source and application of such funds.
Notices
All
notices with respect to payments, written confirmations of such wire transfers
and audit confirmations to be addressed:
NYLIFE
Insurance Company of
Arizona
c/o
New York Life Investment Management
LLC
51
Madison Avenue
New
York, New
York 10010-1603
Attention: Financial
Management, Securities Operations, 2
nd
Floor
Fax
Number: (212)
447-4160
With
electronic copy to: FIIGLibrary@nylim.com
All
other
notices and communications to be addressed as first provided above, with a
duplicate electronic copy to
FIIGLibrary@nylim.com
, and with a copy of
any notices regarding defaults or Events of Default under the operative
documents to: Office of General Counsel, Investment Section, Room
1016, Fax Number (212) 576-8340.
Name
of
Nominee in which Notes are to be issued: None
Taxpayer
I.D. Number: 52-1530175
Defined
Terms
As
used
herein, the following terms have the respective meanings set forth below or
set
forth in the Section hereof following such term:
“Affiliate”
shall mean, (a) at any time, and with respect to any Person, any other
Person that at such time directly or indirectly through one or more
intermediaries Controls, or is Controlled by, or is under common Control with,
such first Person and (b) any Person beneficially owning or holding,
directly or indirectly, 10% or more of any class of equity or Voting Stock
of
the Company or any Subsidiary or any Person of which the Company and its
Subsidiaries beneficially own or hold, in the aggregate, directly or indirectly,
10% or more of any class of equity or Voting Stock. As used in this
definition,
“Control”
means the possession, directly or indirectly, of
the power to direct or cause the direction of the management and policies of
a
Person, whether through the ownership of Voting Stock, by contract or
otherwise. Unless the context otherwise clearly requires, any
reference to an “Affiliate” is a reference to an Affiliate of the
Company.
“Anti-Terrorism
Order”
shall mean Executive Order No. 13,224 of September 24, 2001
(Executive Order Blocking Property and Prohibiting Transactions with Persons
Who
Commit, Threaten to Commit, or Support Terrorism, 66 U.S. Fed. Reg. 49,079
(2001), as amended).
“Asset
Disposition”
shall mean any Transfer except:
(a)
any
(1)
Transfer
from a Restricted Subsidiary
to the Company or a Wholly-Owned Restricted Subsidiary; and
(2)
Transfer
from the Company to a
Wholly-Owned Restricted Subsidiary;
so
long
as immediately before and immediately after the consummation of any such
Transfer and after giving effect thereto, no Default or Event of Default shall
exist (
provided
that, with respect to
Sections 10.1
and
10.2
, calculation of
compliance therewith shall be made as of any date of determination hereof and
not as of the end of the immediately preceding fiscal quarter of the Company);
and
(b)
any
Transfer made in the ordinary
course of business and involving only property that is either (1) inventory
held
for sale or (2) equipment, fixtures, supplies or materials no longer required
in
the operation of the business of the Company or any of its Restricted
Subsidiaries or that is obsolete.
“Asset
Disposition Prepayment Date”
is defined in
Section
8.6(a)
.
“Asset
Disposition Prepayment Event”
is defined in
Section
8.6(a)
.
“Bank
Credit Agreement”
shall mean that certain Revolving Credit Facility by and
among New Jersey Resources Corporation, PNC Bank, NA as Administrative Agent,
the banks party thereto, JPMorgan Chase Bank, NA and Bank of America, N.A.,
as
Syndication Agents, Bank of Tokyo-Mitsubishi Trust Company and Citicorp North
America, Inc., as Documentation Agents and PNC Capital Markets, Inc.,
as Lead Arranger, dated as of December 16, 2004, as the same may be
amended, restated, increased, refinanced, replaced or otherwise modified or
any
successor thereto.
“Business
Day”
shall mean (a) for purposes of
Section 8.7
only, any day other than a Saturday, a Sunday or a day
on which
commercial banks in New York, New York are required or authorized to be closed
and (b) for the purposes of any other provision of this Agreement, any day
other than a Saturday, a Sunday or a day on which commercial banks in Wall,
New
Jersey or New York, New York are required or authorized to be
closed.
“Capital
Lease”
shall mean, at any time, a lease with respect to which the lessee is
required concurrently to recognize the acquisition of an asset and the
incurrence of a liability in accordance with GAAP.
“Closing”
is defined in
Section 3
.
“Code”
shall mean the Internal Revenue Code of 1986, as amended from time to time,
and
the rules and regulations promulgated thereunder from time to time.
“Company”
shall mean New Jersey Resources Corporation, a New Jersey corporation, or any
Successor Corporation.
“Confidential
Information”
is defined in
Section 20
.
“Consolidated
Shareholders’ Equity”
shall mean, as of any date of determination, the sum
of the amounts under the headings “Common Shareholders’ Equity” and “Preferred
Shareholders’ Equity” on the balance sheet, prepared in accordance with GAAP,
for the Company, its Restricted Subsidiaries and New Jersey Natural Gas on
a
consolidated basis.
“Consolidated
Tangible Assets”
shall mean, as of any date of determination, the total
assets of the Company, its Restricted Subsidiaries and New Jersey Natural Gas
that would be shown as assets on a consolidated balance sheet of the Company,
its Restricted Subsidiaries and New Jersey Natural Gas as of such time
determined on a consolidated basis in accordance with GAAP after subtracting
therefrom the aggregate amount of all intangible assets of the Company, its
Restricted Subsidiaries and New Jersey Natural Gas, including, without
limitation, all goodwill, franchises, licenses, patents, trademarks, trade
name,
copyrights, service marks and brand names.
“Consolidated
Tangible Net Worth”
shall mean, as of any date of determination,
(a) Consolidated Shareholders’ Equity
minus
(b) the net book
amount of all assets of the Company, its Restricted Subsidiaries and New Jersey
Natural Gas (after deducting reserves applicable thereto) that would be shown
as
intangible assets on a balance sheet, prepared in accordance with GAAP, for
the
Company, its Restricted Subsidiaries and New Jersey Natural Gas on a
consolidated basis as of such date of determination.
“Consolidated
Total Capitalization”
shall mean, as of any date of determination, the sum
of (a) Consolidated Total Debt and (b) Consolidated Shareholders’
Equity.
“Consolidated
Total Debt”
shall mean, as of any date of determination, without
duplication, the total of all Debt of the Company, its Restricted Subsidiaries
and New Jersey Natural Gas determined on a consolidated basis in accordance
with
GAAP.
For
purposes of determining
“Consolidated Total Debt,”
there shall be
excluded from any such determination Debt of Securitization Subsidiaries that
are Restricted Subsidiaries (but not Debt of the Company, any other Restricted
Subsidiary or New Jersey Natural Gas) incurred pursuant to Receivables
Securitization Transactions in an amount for principal and accrued and unpaid
interest not to exceed $100,000,000 in the aggregate.
“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) any Hedging Contract, to
the
extent that any net indebtedness, obligations or liabilities of such Person
in
respect thereof constitutes “indebtedness” as determined in accordance with
GAAP, (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.
“Debt
Prepayment Application”
shall mean, with respect to any Transfer of
property, the application by the Company or its Restricted Subsidiaries of
cash
in an amount equal to the Net Proceeds Amount with respect to such Transfer
to
the pro rata payment of Senior Debt of the Company (other than Senior Debt
owing
to any of its Subsidiaries or any Affiliate and Senior Debt in respect of any
revolving credit or similar credit facility providing the Company with the
right
to obtain loans or other extensions of credit from time to time, except to
the
extent that in connection with such payment of Senior Debt the availability
of
credit under such credit facility is permanently reduced by an amount not less
than the amount of such proceeds applied to the payment of such Senior Debt),
provided
that in the course of making such application the Company
shall offer to prepay each outstanding Note in accordance with
Section 8.6
in a principal amount that equals the Ratable
Portion for such Note.
“Default”
shall mean an event or condition the occurrence or existence of which would,
with the lapse of time or the giving of notice or both, become an Event of
Default.
“Default
Rate”
as of any date shall mean that rate of interest that is the greater
of (a) 8.05% per annum or (b) 2.0% per annum over the rate of interest
publicly announced by JPMorgan Chase Bank, N.A. in New York, New York as its
“base” or “prime” rate.
“Disclosure
Documents”
is defined in
Section 5.3
.
“Disposition
Value”
shall mean, at any time, with respect to any property:
(a)
in
the case of property that does not
constitute Subsidiary Stock, the book value thereof, valued at the time of
such
disposition in good faith by the Company, and
(b)
in
the case of property that
constitutes Subsidiary Stock, an amount equal to that percentage of book value
of the assets of the Subsidiary that issued such stock as is equal to the
percentage that the book value of such Subsidiary Stock represents of the book
value of all of the outstanding capital stock of such Subsidiary (assuming,
in
making such calculations, that all securities convertible into such capital
stock are so converted and giving full effect to all transactions that would
occur or be required in connection with such conversion) determined at the
time
of the disposition thereof, in good faith by the Company.
“Distribution”
shall mean, in respect of any corporation, association or other business entity:
(a) dividends or other distributions or payments on capital stock or other
equity interests of such corporation, association or other business entity
(except distributions in such stock or other equity interests); and (b) the
redemption or acquisition of such stock or other equity interests (except when
solely in exchange for such stock or other equity interests) unless made,
contemporaneously, from the net proceeds of a sale of such stock or other equity
interests.
“Electronic
Delivery”
is defined in
Section 7.2(a)
.
“Environmental
Laws”
shall mean any and all Federal, state, local, and foreign statutes,
laws, regulations, ordinances, rules, judgments, orders, decrees, permits,
concessions, grants, franchises, licenses, agreements or governmental
restrictions relating to pollution and the protection of the environment or
the
release of any materials into the environment, including but not limited to
those related to Hazardous Materials.
“ERISA”
shall mean the Employee Retirement Income Security Act of 1974, as amended
from
time to time, and the rules and regulations promulgated thereunder from time
to
time in effect.
“ERISA
Affiliate”
shall mean any trade or business (whether or not incorporated)
that is treated as a single employer together with the Company under
Section 414 of the Code.
“Event
of Default”
is defined in
Section 11
.
“Exchange
Act”
shall mean the Securities Exchange Act of 1934, as
amended.
“Fair
Market Value”
shall mean, at any time and with respect to any property, the
sale value of such property that would be realized in an arm’s-length sale at
such time between an informed and willing buyer and an informed and willing
seller (neither being under a compulsion to buy or sell).
“GAAP”
shall mean generally accepted accounting principles as in effect from time
to
time in the United States of America.
“Governmental
Authority”
shall mean
(a)
the
government of
(1)
the
United States of America or any
State or other political subdivision thereof, or
(2)
any
jurisdiction in which the Company
or any Subsidiary conducts all or any part of its business, or which asserts
jurisdiction over any properties of the Company or any Subsidiary,
or
(b)
any
entity exercising executive,
legislative, judicial, regulatory or administrative functions of, or pertaining
to, any such government.
“Guarantor”
is
defined in
Section 2.2
.
“Guaranty”
shall mean, with respect to any Person, any obligation (except the endorsement
in the ordinary course of business of negotiable instruments for deposit or
collection) of such Person guaranteeing or in effect guaranteeing any Debt,
dividend or other obligation of any other Person in any manner, whether directly
or indirectly, including, without limitation, obligations incurred through
an
agreement, contingent or otherwise, by such Person:
(a)
to
purchase such Debt or obligation or
any property constituting security therefor;
(b)
to
advance or supply funds (1) for
the purchase or payment of such Debt or obligation or (2) to maintain any
working capital or other balance sheet condition or any income statement
condition of any other Person or otherwise to advance or make available funds
for the purchase or payment of such Debt or obligation;
(c)
to
lease properties or to purchase
properties or services primarily for the purpose of assuring the owner of such
Debt or obligation of the ability of any other Person to make payment of the
Debt or obligation; or
(d)
otherwise
to assure the owner of such
Debt or obligation against loss in respect thereof.
In
any
computation of the Debt or other liabilities of the obligor under any Guaranty,
the Debt or other obligations that are the subject of such Guaranty shall be
assumed to be direct obligations of such obligor.
“Guaranty
Agreement”
is defined in
Section 2.2
.
“Hazardous
Materials”
shall mean any and all pollutants, toxic or hazardous wastes or
any other substances that might pose a hazard to health or safety, the removal
of which may be required or the generation, manufacture, refining, production,
processing, treatment, storage, handling, transportation, transfer, use,
disposal, release, discharge, spillage, seepage or filtration of which is or
shall be restricted, prohibited or penalized by any applicable law (including,
without limitation, asbestos, urea formaldehyde foam insulation and
polychlorinated biphenyls), petroleum, petroleum products, lead based paint,
radon gas or similar restricted, prohibited or penalized
substances.
“Hedging
Contract”
shall mean any transaction entered into by the Company, any of
its Restricted Subsidiaries or New Jersey Natural Gas with respect to hedging
or
trading of gas contracts or other commodity, hedging contracts of any kind,
or
any derivatives or other similar financial instruments of the Company, its
Restricted Subsidiaries and New Jersey Natural Gas.
“holder”
shall mean, with respect to any Note, the Person in whose name such Note is
registered in the register maintained by the Company pursuant to
Section 13.1
.
“Hybrid
Security”
shall mean any of the following: (a) beneficial interests issued
by a trust which constitutes a Subsidiary of the Company or any Guarantor
substantially all of the assets of which trust are unsecured Debt of the Company
or any Guarantor or any Subsidiary of the Company or any Guarantor or proceeds
thereof, and all payments of such Debt are required to be, and are, distributed
to the holders of beneficial interests in such trust promptly after receipt
by
such trust or (b) any shares of capital stock or other equity interests that,
other than solely at the option of the issuer thereof, by their terms (or by
the
terms of any security into which they are convertible or exchangeable) are,
or
upon the happening of an event or the passage of time would be, required to
be
redeemed or repurchased, in whole or in part, or have, or upon the happening
of
an event or the passage of time would have, a redemption or similar
payment.
“Inactive
Subsidiary”
shall mean, at any time, any Subsidiary of any Person, which
Subsidiary (a) does not conduct any business or have operations and
(b) does not have total assets with a net book value, as of any date of
determination, in excess of $100,000.
“INHAM
Exemption”
is defined in
Section 6.2(e)
.
“Institutional
Investor”
shall mean (a) any original purchaser of a Note,
(b) any holder of a Note holding (together with one or more of its
affiliates) more than $2,000,000 of the aggregate principal amount of the Notes
then outstanding, (c) any bank, trust company, savings and loan association
or other financial institution, any pension plan, any investment company, any
insurance company, any broker or dealer, or any other similar financial
institution or entity, regardless of legal form and (d) any Related Fund of
any holder of any Note.
“Investment”
shall mean any investment, made in cash or by delivery of property, by any
Person (a) in any other Person, whether by acquisition of stock, Debt or
other obligation or security, or by loan, Guaranty, advance, capital
contribution or otherwise or (b) in any property.
“Lien”
shall mean, with respect to any Person, any mortgage, lien, pledge, charge,
security interest or other encumbrance, or any interest or title of any vendor,
lessor, lender or other secured party to or of such Person under any conditional
sale or other title retention agreement or Capital Lease or Synthetic Lease,
upon or with respect to any property or asset of such Person (including in
the
case of stock, stockholder agreements, voting trust agreements and all similar
arrangements).
“Make-Whole
Amount”
is defined in
Section 8.7
.
“Material”
shall mean material in relation to the business, operations, affairs, financial
condition, assets or properties of the Company, its Restricted Subsidiaries
and
New Jersey Natural Gas, taken as a whole.
“Material
Adverse Effect”
shall mean a material adverse effect on (a) the
business, operations, affairs, financial condition, assets or properties of
the
Company, its Restricted Subsidiaries and New Jersey Natural Gas, taken as a
whole, or (b) the ability of the Company to perform its obligations under
this Agreement and the Notes, (c) the ability of any Guarantor to perform
its obligations under the Guaranty Agreement or (d) the validity or
enforceability of this Agreement, the Notes or the Guaranty
Agreement.
“Memorandum”
is defined in
Section 5.3
.
“Multiemployer
Plan”
shall mean any Plan that is a “multiemployer plan” (as such term is
defined in Section 4001(a)(3) of ERISA).
“NAIC
Annual Statement”
is defined in
Section
6.2(a)
.
“Net
Proceeds Amount”
shall mean, with respect to any Transfer of any Property
by any Person, an amount equal to the difference of
(a)
the
aggregate amount of the
consideration (valued at the Fair Market Value of such consideration at the
time
of the consummation of such Transfer) received by such Person in respect of
such
Transfer,
minus
(b)
all
ordinary and reasonable
out-of-pocket costs and expenses actually incurred by such Person in connection
with such Transfer.
“New
Jersey Natural Gas”
shall mean New Jersey Natural Gas Company, a
corporation organized and existing under the laws of the State of New Jersey,
which corporation is a wholly-owned Subsidiary of the Company.
“Notes”
is defined in
Section 1
.
1.
“Officer’s
Certificate”
shall mean a certificate of a Senior Financial Officer or of
any other officer of the Company whose responsibilities extend to the subject
matter of such certificate.
“PBGC”
shall mean the Pension Benefit Guaranty Corporation referred to and defined
in
ERISA or any successor thereto.
“Permitted
Related Business Opportunity”
shall mean any transaction with another
Person (other than any Inactive Subsidiary of the Company) involving business
activities or assets reasonably related or complementary to the business of
the
Company, its Restricted Subsidiaries and New Jersey Natural Gas as conducted
on
the date of the Closing or as may be conducted pursuant to
Section 10.11
, including, without limitation, the
management and marketing of storage, capacity and transportation of gas and
other forms of energy, the generation, transmission or storage of gas and other
forms of energy, or the access to gas and energy transmission lines, and
business initiatives for the conservation and efficiency of gas and
energy.
“Person”
shall mean an individual, partnership, corporation, limited liability company,
association, trust, unincorporated organization or a government or agency or
political subdivision thereof.
“Plan”
shall mean an “employee benefit plan” (as defined in Section 3(3) of ERISA)
subject to Title I of ERISA that is or, within the preceding five years, has
been established or maintained, or to which contributions are or, within the
preceding five years, have been made or required to be made, by the Company
or
any ERISA Affiliate or with respect to which the Company or any ERISA Affiliate
may have any liability.
“Priority
Debt”
shall mean (without duplication) the sum of (a) unsecured Debt of
Restricted Subsidiaries 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
.
“property”
or
“properties”
shall mean, unless otherwise specifically limited, real
or personal property of any kind, tangible or intangible, choate or
inchoate.
“Property
Reinvestment Application”
shall mean, with respect to any Transfer of
property, the application of an amount equal to the Net Proceeds Amount with
respect to such Transfer to the acquisition by the Company or any Restricted
Subsidiary of operating assets of the Company or any Restricted Subsidiary
to be
used in the principal business of such Person.
“Purchaser”
is defined in the first paragraph of this Agreement.
“PTE”
is defined in
Section 6.2(a).
“QPAM
Exemption”
is defined in
Section 6.2(d)
.
“Ratable
Portion”
for any Note shall mean an amount equal to the product of
(a) the Net Proceeds Amount from a Transfer being applied to a Debt
Prepayment Application pursuant to
Section 10.6(b)
multiplied
by (b) a fraction,
the numerator of which is the aggregate outstanding principal amount of such
Note and the denominator of which is the aggregate outstanding principal amount
of all Senior Debt of the Company (other than Senior Debt owing to any of its
Subsidiaries or any Affiliate).
“Receivables
Securitization Transaction”
shall mean any transaction pursuant to which
the Company or any Restricted Subsidiary Transfers accounts receivable to a
Securitization Subsidiary and such Securitization Subsidiary incurs Debt in
connection with the purchase of such accounts receivable and grants a security
interest in such accounts receivable as collateral security for such Debt;
provided
that such Debt is non-recourse to the Company and the other
Restricted Subsidiaries other than with respect to representations, warranties
and indemnities entered into by the Company or the applicable Restricted
Subsidiary in connection with such transaction that are customary in
non-recourse securitization of receivables transactions.
“Regulated
Entity”
shall mean any Person that is subject under law to any of the laws,
rules or regulations respecting the financial, organizational or rate regulation
of electric companies, public utilities or public utility holding
companies.
“Required
Holders”
shall mean, at any time, the holders of more than 50% in principal
amount of the Notes at the time outstanding (exclusive of Notes then owned
by
the Company or any of its Affiliates).
“Related
Fund”
shall mean, with respect to any holder of any Note, any fund or
entity that (a) invests in securities or bank loans and (b) is advised or
managed by such holder, the same investment advisor as such holder or by an
Affiliate of such holder or such investment advisor.
“Responsible
Officer”
shall mean any Senior Financial Officer and any other officer of
the Company with responsibility for the administration of the relevant portion
of this Agreement.
“Restricted
Payment”
shall mean any Distribution in respect of the Company or any
Restricted Subsidiary (other than on account of capital stock or other equity
interests of a Restricted Subsidiary owned legally and beneficially by the
Company or another Restricted Subsidiary), including, without limitation, any
Distribution resulting in the acquisition by the Company or any Restricted
Subsidiary of securities that would constitute treasury stock. For
purposes of this Agreement, the amount of any Restricted Payment made in
property shall be the greater of (a) the Fair Market Value of such property
(determined in good faith by the Board of Directors (or equivalent governing
body) of the Person making such Restricted Payment) and (b) the net book value
thereof on the books of such Person, in each case determined as of the date
on
which such Restricted Payment is made.
“Restricted
Subsidiary”
shall mean each Subsidiary that is either (a) designated
as a Restricted Subsidiary on
Schedule 5.4
or
(b) designated as a Restricted Subsidiary by the Board of Directors of the
Company in accordance with
Section 10.13.
“Restricted
Subsidiary Stock”
shall mean Subsidiary Stock of any Restricted
Subsidiary.
“Securities
Act”
shall mean the Securities Act of 1933, as amended from time to time
and the rules and regulations promulgated thereunder from time to time in
effect.
“Securitization
Subsidiary”
shall mean any Restricted Subsidiary that (a) has been created
for the sole purpose and business of purchasing and owning the accounts
receivable of the Company or any other Restricted Subsidiary, (b) has no Debt
outstanding other than Debt incurred in connection with the purchase of such
accounts receivable and (c) does not, and by the terms of its organizational
documents or contractual obligations to which it or its property is then bound
can not, own or hold any other assets or participate in any other business
or
incur any other Debt.
“Senior
Debt”
shall mean any Debt of the Company other than Debt that is in any
manner subordinated in right of payment or security in any respect to the Debt
evidenced by the Notes.
“Senior
Financial Officer”
shall mean the chief financial officer, principal
accounting officer, treasurer or comptroller of the Company.
“Significant
Subsidiary”
shall mean at any time (a) each Guarantor, (b) each other
Restricted Subsidiary that would at such time constitute a “significant
subsidiary” (as such term is defined in Regulation S-X of the Securities and
Exchange Commission as in effect on the date of the Closing) of the Company
and
(c) New Jersey Natural Gas.
“Source”
is defined in
Section 6.2
.
“Subsidiary”
shall mean, as to any Person, any corporation, association or other business
entity in which such Person or one or more of its Subsidiaries or such Person
and one or more of its Subsidiaries owns sufficient Voting Stock to enable
it or
them (as a group) ordinarily, in the absence of contingencies, to elect a
majority of the directors (or Persons performing similar functions) of such
entity, and any partnership or joint venture if more than a 50% interest in
the
profits or capital thereof is owned by such Person or one or more of its
Subsidiaries or such Person and one or more of its Subsidiaries (unless such
partnership or joint venture can and does ordinarily take major business actions
without the prior approval of such Person or one or more of its
Subsidiaries). Unless the context otherwise clearly requires, any
reference to a “Subsidiary” is a reference to a Subsidiary of the
Company.
“Subsidiary
Stock”
shall mean, with respect to any Person, the stock (or any options or
warrants to purchase stock or other securities exchangeable for or convertible
into stock) of any Subsidiary of such Person.
“Supplement”
is defined in
Section 9.7(a).
“Synthetic
Lease”
shall mean any lease transaction under which the parties intend that
(a) the lease will be treated as an “operating lease” by the lessee
pursuant to Statement of Financial Accounting Standards No. 13, as amended,
or
appropriate successor thereto, and (b) the lessee will be entitled to
various tax benefits ordinarily available to owners (as opposed to lessees)
of
like property.
“Transfer”
shall mean, with respect to any Person, any transaction in which such Person
sells, conveys, transfers or leases (as lessor) any of its property, including,
without limitation, Subsidiary Stock. For purposes of determining the
application of the Net Proceeds Amount in respect of any Transfer, the Company
may designate any Transfer as one or more separate Transfers each yielding
a
separate Net Proceeds Amount. In any such case, (a) the
Disposition Value of any property subject to each such separate Transfer and
(b) the amount of Consolidated Tangible Assets attributable to any property
subject to each such separate Transfer shall be determined by ratably allocating
the aggregate Disposition Value of, and the aggregate Consolidated Tangible
Assets attributable to, all property subject to all such separate Transfers
to
each such separate Transfer on a proportionate basis.
“Unrestricted
Subsidiary”
shall mean each Subsidiary that is either (a) designated
as an Unrestricted Subsidiary on
Schedule 5.4
or
(b) designated an Unrestricted Subsidiary by the Board of Directors of the
Company in accordance with
Section 10.13
. For
the avoidance of doubt, any Subsidiary which has not been designated as either
a
Restricted Subsidiary or Unrestricted Subsidiary shall be deemed to be an
Unrestricted Subsidiary.
“USA
Patriot Act”
shall mean United States Public Law 107-56, Uniting and
Strengthening America by Providing Appropriate Tools Required to Intercept
and
Obstruct Terrorism (USA PATRIOT ACT) Act of 2001, as amended from time to time,
and the rules and regulations promulgated thereunder from time to time in
effect.
“Voting
Stock”
shall mean any securities of any class of a Person whose holders are
entitled under ordinary circumstances to vote for the election of directors
of
such Person (or Persons performing similar functions) irrespective of whether
at
the time securities of any other class shall have or might have voting power
by
reason of the happening of any contingency.
“Wholly-Owned
Restricted Subsidiary”
shall mean, at any time, any Restricted Subsidiary
100% of all of the equity interests (except directors’ qualifying shares) and
voting interests of which are owned by any one or more of the Company and the
Company’s other Wholly-Owned Restricted Subsidiaries at such time.
Changes
in Corporate Structure
None.
Disclosure
Materials
None.
New
Jersey Resources Corporation
Corporate
Structure
Subsidiaries
of the Company and
Ownership
of Subsidiary Stock
|
Subsidiary
|
Jurisdiction
of Incorporation/
Formation
|
Percentage
Ownership
|
Shareholder/
Partner
|
Status
|
Regulated
|
|
New Jersey Natural Gas Company
|
New
Jersey
|
100
|
New
Jersey Resources Corporation
|
Unrestricted
|
Yes
|
|
NJR Energy Services Company
|
New
Jersey
|
100
|
New
Jersey Resources Corporation
|
Restricted
|
No
|
|
NJR Storage Partners
|
A
New Jersey General Partnership
|
99
1
|
NJR
Energy Services Company
(Managing
Partner)
New
Jersey Resources Corporation
|
Unrestricted
|
No
|
|
NJR Retail Holdings Corporation
|
New
Jersey
|
100
|
New
Jersey Resources Corporation
|
Restricted
|
No
|
|
NJR Home Services Company
|
New
Jersey
|
100
|
NJR
Retail Holdings Corporation
|
Restricted
|
No
|
|
NJR Plumbing Services, Inc.
|
New
Jersey
|
100
|
NJR
Home Services Company
|
Restricted
|
No
|
|
NJR Capital Services Corporation
|
New
Jersey
|
100
|
New
Jersey Resources Corporation
|
Restricted
|
No
|
|
NJR Storage Holdings Company
|
Delaware
|
100
|
NJR
Energy Holdings Corporation
|
Unrestricted
|
No
|
|
NJR Steckman Ridge Storage Company
|
Delaware
|
100
|
NJR
Storage Holdings Company
|
Unrestricted
|
No
|
|
Commercial Realty and Resources Corp.
|
New
Jersey
|
100
|
NJR
Capital Services Corporation
|
Restricted
|
No
|
|
NJR Investment Company
|
New
Jersey
|
100
|
NJR
Capital Services Corporation
|
Inactive
Restricted
|
No
|
|
NJR Energy Holdings Corporation
|
New
Jersey
|
100
|
NJR
Capital Services Corporation
|
Unrestricted
|
No
|
|
NJR Energy Corporation
|
New
Jersey
|
100
|
NJR
Energy Holdings Corporation
|
Unrestricted
|
No
|
|
NJR Pipeline Company
|
New
Jersey
|
100
|
NJR
Energy Corporation
|
Unrestricted
|
No
|
|
NJNR
Pipeline Company
|
New
Jersey
|
100
|
NJR
Energy Corporation
|
Unrestricted
|
No
|
|
NJR Service Corporation
|
New
Jersey
|
100
|
New
Jersey Resources Corporation
|
Inactive
Restricted
|
No
|
Financials
NEW
JERSEY RESOURCES CORPORATION
Annual
Reports for the each of the Fiscal Years Ended September 30, 2002 through
September 30, 2006
Quarterly
Report on Form 10-Q for the Quarterly Period Ended June 30,
2007
NEW
JERSEY NATURAL GAS COMPANY
Annual
Reports for the each of the Fiscal Years Ended September 30, 2002 through
September 30, 2006
Quarterly
Report for the Quarterly Period Ended June 30, 2007
CERTAIN
LITIGATIONS
Actions,
suits and proceedings described in Note 12 to New Jersey Resources
Corporation’s Quarterly Report on Form 10-Q for the quarter ended
June 30, 2007.
Patents,
Etc.
None.
USE
OF PROCEEDS
The
Company will apply the proceeds of the sale of the Notes to the repayment of
existing short-term debt and for its general corporate purposes.
EXISTING
DEBT
AS
OF JUNE 30, 2007
New
Jersey Resources Corporation
As
of
June 30, 2007, there was $85,400,000.00 of outstanding unsecured Debt of the
Company and its Restricted Subsidiaries under the terms of its revolving credit
facility as evidenced by that certain Credit Agreement dated as of December
16,
2004, as amended, by and among the borrower and the banks party hereto and
PNC
Bank, N.A., as Administrative Agent and JP Morgan Chase Bank NA and Bank of
America, as Syndication Agents and Bank of Tokyo-Mitsubishi Trust Company and
Citicorp North America, Inc., as Documentation Agents and PNC Capital Markets,
Inc., as Lead Arranger.
|
June
30, 2007
|
|||||
|
($000)
|
Rate
|
Maturity
Date
|
Principal
Amt.
|
||
|
Unsecured
Senior Notes
|
3.75%
|
3/15/09
|
25,000
|
||
|
Total
|
$25,000
|
NJR
Energy Services
As
of
June 30, 2007, there was $30,000,000.00 of outstanding unsecured Debt of the
Company under terms of a credit agreement dated as of October 12, 2006 and
is by
and among New Jersey Resources Corporation, a New Jersey corporation, NJR Energy
Services Company, a New Jersey corporation and Bank of Tokyo-Mitsubishi UFJ
Trust Company, a New York trust company.
New
Jersey Natural Gas Company
|
June
30, 2007
|
|||||
|
($000)
|
Rate
|
Maturity
Date
|
Principal
Amt.
|
||
|
First
Mortgage Bonds (Secured)
|
|||||
|
Series
X
|
6.27%
|
11/1/08
|
30,000
|
||
|
Series
AA
|
Var.
|
8/1/30
|
25,000
|
||
|
Series
BB
|
Var.
|
8/1/30
|
16,000
|
||
|
Series
CC
|
6.88%
|
10/1/10
|
20,000
|
||
|
Series
DD
|
Var.
|
9/1/27
|
13,500
|
||
|
Series
EE
|
Var.
|
1/1/28
|
9,545
|
||
|
Series
FF
|
Var.
|
1/1/28
|
15,000
|
||
|
Series
GG
|
Var.
|
4/1/33
|
18,000
|
||
|
Series
HH
|
5%
|
12/1/38
|
12,000
|
||
|
Series
II
|
4.5%
|
8/1/30
|
10,300
|
||
|
Series
JJ
|
4.6%
|
8/1/24
|
10,500
|
||
|
Series
KK
|
4.9%
|
10/1/40
|
6,500
|
||
|
Loan
with State Authority
|
10/1/40
|
8,500
|
|||
|
Sub-total
First Mortgage Bonds
|
194,845
|
||||
|
Unsecured
Senior Notes
|
3/15/14
|
60,000
|
|||
|
Capital
Lease Obligation – Bldg
|
6/1/21
|
27,389
|
|||
|
Capital
Lease Obligation – Meters
|
10/1/12
|
31,497
|
|||
|
Commercial
Paper (Unsecured)
|
111,679
|
||||
|
Less:
Current maturities of long-term debt
|
(4,266)
|
||||
|
Total
|
$421,144
|
Form
of Note
New
Jersey Resources Corporation
6.05%
Senior Note due September 24, 2017
No.
R-_______ __________ ___, 20___
$____________ CUSIP
646025 AA4
For
Value
Received, the undersigned, New Jersey Resources Corporation (herein called
the
“Company”
), a corporation organized and existing under the laws of the
State of New Jersey, hereby promises to pay to ________________, or registered
assigns, the principal sum of ________________ Dollars on September 24, 2017,
with interest (computed on the basis of a 360-day year of twelve 30-day months)
(a) on the unpaid balance thereof at the rate of 6.05% per annum from the
date hereof, payable semiannually, on the fifteenth day of March and September
in each year, commencing with the March 15 or September 15 next succeeding
the
date hereof, until the principal hereof shall have become due and payable,
and
(b) to the extent permitted by law on any overdue payment (including any
overdue prepayment) of principal, any overdue payment of interest and any
overdue payment of any Make-Whole Amount (as defined in the Note Purchase
Agreement referred to below), payable semiannually as aforesaid (or, at the
option of the registered holder hereof, on demand), at a rate per annum from
time to time equal to the Default Rate (as defined in the Note Purchase
Agreement referred to below).
Payments
of principal of, interest on and any Make-Whole Amount with respect to this
Note
are to be made in lawful money of the United States of America at the principal
offices of JPMorgan Chase Bank, N.A. in New York, New York or at such other
place as the Company shall have designated by written notice to the holder
of
this Note as provided in the Note Purchase Agreement referred to
below.
This
Note
is one of a series of 6.05% Senior Notes (herein called the
“Notes”
)
issued pursuant to that certain Note Purchase Agreement dated as of
September 24, 2007 (as from time to time amended, the
“Note Purchase
Agreement”
), between the Company and the respective Purchasers named
therein and is entitled to the benefits thereof. Each holder of this
Note will be deemed, by its acceptance hereof, (1) to have agreed to the
confidentiality provisions set forth in
Section 20
of the
Note Purchase Agreement and (2) to have made the representation set forth
in
Section 6.2
of the Note Purchase
Agreement.
This
Note
is a registered Note and, as provided in the Note Purchase Agreement, upon
surrender of this Note for registration of transfer, duly endorsed, or
accompanied by a written instrument of transfer duly executed, by the registered
holder hereof or such holder’s attorney duly authorized in writing, a new Note
for a like principal amount will be issued to, and registered in the name of,
the transferee. Prior to due presentment for registration of
transfer, the Company may treat the person in whose name this Note is registered
as the owner hereof for the purpose of receiving payment and for all other
purposes, and the Company will not be affected by any notice to the
contrary.
This
Note
is subject to prepayment, in whole or from time to time in part, at the times
and on the terms specified in the Note Purchase Agreement, but not
otherwise.
If
an
Event of Default, as defined in the Note Purchase Agreement, occurs and is
continuing, the principal of this Note may be declared or otherwise become
due
and payable in the manner, at the price (including any applicable Make-Whole
Amount) and with the effect provided in the Note Purchase
Agreement.
This
Note
shall be construed and enforced in accordance with, and the rights of the
parties shall be governed by, the laws of the State of New York excluding the
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.
|
|
New
Jersey Resources Corporation
|
|
|
By____________________________________
|
|
|
Its
|
Form
of Subsidiary Guaranty Agreement
Re: 6.05%
Senior Notes due September 24, 2017
of
New
Jersey Resources Corporation
This
Subsidiary Guaranty Agreement dated as of September 24, 2007 (this
“Guaranty”
) is entered into on a joint and several basis by each of the
undersigned, together with any entity which may become a party hereto by
execution and delivery of a Subsidiary Guaranty Supplement in substantially
the
form set forth as Exhibit A hereto (a
“Guaranty Supplement”
)
(which parties are hereinafter referred to individually as a
“Guarantor”
and collectively as the
“Guarantors”
).
Recitals
A. Each
Guarantor is a direct or indirect subsidiary of New Jersey Resources
Corporation, a corporation organized under the laws of the State of New Jersey
(the
“Company”
).
B. The
Company is concurrently herewith entering into that certain Note Purchase
Agreement dated as of September 24, 2007 (as the same may be amended,
supplemented, restated or otherwise modified from time to time, the
“Note
Purchase Agreement”
) between the Company and each of the institutional
investors named on Schedule A attached thereto (the
“Purchasers”
),
providing for, among other things, the issue and sale by the Company to the
Purchasers of $50,000,000 aggregate principal amount of its 6.05% Senior Notes
due September 24, 2017 (the
“Notes”
). The Purchasers
together with their respective successors and assigns are collectively referred
to herein as the
“Holders.”
C. The
Purchasers have required as a condition of their purchase of the Notes that
the
Company cause each of the undersigned to enter into this Guaranty and, upon
(1) the formation or acquisition of a new Restricted Subsidiary (other than
a Regulated Entity), (2) the occurrence of any other event creating a new
Restricted Subsidiary (other than a Regulated Entity), (3) the designation
of an Unrestricted Subsidiary (other than a Regulated Entity) as a Restricted
Subsidiary or (4) an Unrestricted Subsidiary becoming or being a guarantor
or
co-obligor in respect of the Bank Credit Agreement, to cause each such
Subsidiary to execute a Guaranty Supplement,
provided
that clause (4)
above shall not apply to NJR Energy Corporation or NJNR Pipeline
Company prior to December 17, 2007, in each case in order to induce the
Purchasers to purchase the Notes and thereby benefit the Company and its
Subsidiaries by providing funds to the Company for the repayment of existing
debt and for its general corporate purposes.
Now,
therefore, as required by Section 4.4 of the Note Purchase Agreement and in
consideration of the premises and other good and valuable consideration, the
receipt and sufficiency whereof are hereby acknowledged, each Guarantor does
hereby covenant and agree, jointly and severally, as follows:
|
Section 1.
|
Definitions
.
|
Capitalized
terms used herein shall have the meanings set forth in the Note Purchase
Agreement unless otherwise defined herein.
|
Section 2.
|
Guaranty
of Notes and Note Purchase
Agreement.
|
(a) Each
Guarantor jointly and severally does hereby irrevocably, absolutely and
unconditionally guarantee unto the Holders: (1) the full and
prompt payment of the principal of, Make-Whole Amount, if any, and interest
on
the Notes from time to time outstanding, as and when such payments shall become
due and payable whether by lapse of time, upon redemption or prepayment, by
extension or by acceleration or declaration or otherwise (including, to the
extent permitted by applicable law, interest due on overdue payments of
principal, Make-Whole Amount, if any, or interest at the rate set forth in
the
Notes) in Federal or other immediately available funds of the United States
of
America which at the time of payment or demand therefor shall be legal tender
for the payment of public and private debts, (2) the full and prompt performance
and observance by the Company of each and all of the obligations, covenants
and
agreements required to be performed or owed by the Company under the terms
of
the Notes and the Note Purchase Agreement and (3) the full and prompt
payment, upon demand by any Holder of all costs and expenses, legal or otherwise
(including reasonable attorneys’ fees), if any, as shall have been expended or
incurred in the protection or enforcement of any rights, privileges or
liabilities in favor of the Holders under or in respect of the Notes and the
Note Purchase Agreement, or under this Guaranty or in any consultation or action
in connection therewith or herewith.
(b) To
the extent that any Guarantor shall make a payment hereunder (a
“
Payment
”) which, taking into account all other Payments previously or
concurrently made by any of the other Guarantors, exceeds the amount which
such
Guarantor would otherwise have paid if each Guarantor had paid the aggregate
obligations satisfied by such Payment in the same proportion as such Guarantor’s
“Allocable Amount” (as hereinafter defined) in effect immediately prior to such
Payment bore to the Aggregate Allocable Amount (as hereinafter defined) of
all
of the Guarantors in effect immediately prior to the making of such Payment,
then such Guarantor shall be entitled to contribution and indemnification from,
and be reimbursed by, each of the other Guarantors for the amount of such
excess,
pro rata
based upon their respective Allocable Amounts in
effect immediately prior to such Payment.
As
of any
date of determination, (1) the “Allocable Amount” of any Guarantor shall be
equal to the maximum amount which could then be claimed by the Holders under
this Guaranty without rendering such claim voidable or avoidable under Section
548 of Chapter 11 of the United States Bankruptcy Code (11 U.S.C. Sec. 101
et. seq
.) or under any applicable state Uniform Fraudulent Transfer
Act, Uniform Fraudulent Conveyance Act or similar statute or common law; and
(2)
the “Aggregate Allocable Amount”
shall be equal to the sum
of each Guarantor’s Allocable Amount.
This
clause (b) is intended only to define the relative rights of the Guarantors,
and
nothing set forth in this clause (b) is intended to or shall impair the
obligations of the Guarantors, jointly and severally, to pay any amounts to
the
Holders as and when the same shall become due and payable in accordance
herewith.
Each
Guarantor acknowledges that the rights of contribution and indemnification
hereunder shall constitute an asset in favor of any Guarantor to which such
contribution and indemnification is owing.
|
Section 3.
|
Guaranty
of Payment and
Performance.
|
This
is
an irrevocable, absolute and unconditional guarantee of payment and performance
and each Guarantor hereby waives, to the fullest extent permitted by law, any
right to require that any action on or in respect of any Note or the Note
Purchase Agreement be brought against the Company or any other Person or that
resort be had to any direct or indirect security for the Notes or for this
Guaranty or any other remedy. Any Holder may, at its option, proceed
hereunder against any Guarantor in the first instance to collect monies when
due, the payment of which is guaranteed hereby, without first proceeding against
the Company or any other Person and without first resorting to any direct or
indirect security for the Notes or for this Guaranty or any other
remedy. The liability of each Guarantor hereunder shall in no way be
affected or impaired by any acceptance by any Holder of any direct or indirect
security for, or other guaranties of, any Debt, liability or obligation of
the
Company or any other Person to any Holder or by any failure, delay, neglect
or
omission by any Holder to realize upon or protect any such guarantees, Debt,
liability or obligation or any notes or other instruments evidencing the same
or
any direct or indirect security therefor or by any approval, consent, waiver,
or
other action taken, or omitted to be taken by any such Holder.
The
covenants and agreements on the part of the Guarantors herein contained shall
take effect as joint and several covenants and agreements, and references to
the
Guarantors shall take effect as references to each of them and none of them
shall be released from liability hereunder by reason of this Guaranty ceasing
to
be binding as a continuing security on any other of them.
|
Section 4.
|
General
Provisions Relating to this
Guaranty
.
|
(a) Each
Guarantor hereby consents and agrees that any Holder or Holders from time to
time, with or without any further notice to or assent from any other Guarantor
may, without in any manner affecting the liability of any Guarantor under this
Guaranty, and upon such terms and conditions as any such Holder or Holders
may
deem advisable:
(1)
extend
in whole or in part (by renewal
or otherwise), modify, change, compromise, release or extend the duration of
the
time for the performance or payment of any Debt, liability or obligation of
the
Company or of any other Person (including, without limitation, any other
Guarantor) secondarily or otherwise liable for any Debt, liability or obligation
of the Company on the Notes, or waive any Default or Event of Default with
respect thereto, or waive, modify, amend or change any provision of the Note
Purchase Agreement or any other agreement or waive this Guaranty;
or
(2)
sell,
release, surrender, modify,
impair, exchange or substitute any and all property, of any nature and from
whomsoever received, held by, or for the benefit of, any such Holder as direct
or indirect security for the payment or performance of any Debt, liability
or
obligation of the Company or of any other Person (including, without limitation,
any other Guarantor) secondarily or otherwise liable for any Debt, liability
or
obligation of the Company on the Notes; or
(3)
settle,
adjust or compromise any claim
of the Company against any other Person (including, without limitation, any
other Guarantor) secondarily or otherwise liable for any Debt, liability or
obligation of the Company on the Notes.
Each
Guarantor hereby ratifies and confirms any such extension, renewal, change,
sale, release, waiver, surrender, exchange, modification, amendment, impairment,
substitution, settlement, adjustment or compromise and that the same shall
be
binding upon it, and hereby waives, to the fullest extent permitted by law,
any
and all defenses, counterclaims or offsets which it might or could have by
reason thereof, it being understood that such Guarantor shall at all times
be
bound by this Guaranty and remain liable hereunder.
(b) Each
Guarantor hereby waives, to the fullest extent permitted by law:
(1)
notice
of acceptance of this Guaranty
by the Holders or of the creation, renewal or accrual of any liability of the
Company, present or future, or of the reliance of such Holders upon this
Guaranty (it being understood that every Debt, liability and obligation
described in Section 2 hereof shall conclusively be presumed to have been
created, contracted or incurred in reliance upon the execution of this
Guaranty);
(2)
demand
of payment by any Holder from
the Company or any other Person (including, without limitation, any other
Guarantor) indebted in any manner on or for any of the Debt, liabilities or
obligations hereby guaranteed; and
(3)
presentment
for the payment by any
Holder or any other Person of the Notes or any other instrument, protest thereof
and notice of its dishonor to any party thereto and to such
Guarantor.
The
obligations of each Guarantor under this Guaranty and the rights of any Holder
to enforce such obligations by any proceedings, whether by action at law, suit
in equity or otherwise, shall not be subject to any reduction, limitation,
impairment or termination, whether by reason of any claim of any character
whatsoever or otherwise and shall not be subject to any defense, set-off,
counterclaim (other than any compulsory counterclaim), recoupment or termination
whatsoever.
(c) The
obligations of the Guarantors hereunder shall be binding upon the Guarantors
and
their successors and assigns, and shall remain in full force and effect
irrespective of:
(1)
the
genuineness, validity, regularity
or enforceability of the Notes and the Note Purchase Agreement or any other
agreement or any of the terms of any thereof, the continuance of any obligation
on the part of the Company or any other Person on or in respect of the Notes
or
under the Note Purchase Agreement or any other agreement or the power or
authority or the lack of power or authority of the Company to issue the Notes
or
the Company to execute and deliver the Note Purchase Agreement or any other
agreement or of any Guarantor to execute and deliver this Guaranty or to perform
any of its obligations hereunder or the existence or continuance of the Company
or any other Person as a legal entity; or
(2)
any
default, failure or delay, willful
or otherwise, in the performance by the Company, any Guarantor or any other
Person of any obligations of any kind or character whatsoever under the Notes,
the Note Purchase Agreement, this Guaranty or any other agreement;
or
(3)
any
creditors’ rights, bankruptcy,
receivership or other insolvency proceeding of the Company, any Guarantor or
any
other Person or in respect of the property of the Company, any Guarantor or
any
other Person or any merger, consolidation, reorganization, dissolution,
liquidation, the sale of all or substantially all of the assets of or winding
up
of the Company, any Guarantor or any other Person; or
(4)
impossibility
or illegality of
performance on the part of the Company, any Guarantor or any other Person of
its
obligations under the Notes, the Note Purchase Agreement, this Guaranty or
any
other agreements; or
(5)
in
respect of the Company or any other
Person, any change of circumstances, whether or not foreseen or foreseeable,
whether or not imputable to the Company or any other Person, or other
impossibility of performance through fire, explosion, accident, labor
disturbance, floods, droughts, embargoes, wars (whether or not declared), civil
commotion, acts of God or the public enemy, delays or failure of suppliers
or
carriers, inability to obtain materials, action of any Federal or state
regulatory body or agency, change of law or any other causes affecting
performance, or any other
force majeure
, whether or not beyond the
control of the Company or any other Person and whether or not of the kind
hereinbefore specified; or
(6)
any
attachment, claim, demand, charge,
Lien, order, process, encumbrance or any other happening or event or reason,
similar or dissimilar to the foregoing, or any withholding or diminution at
the
source, by reason of any taxes, assessments, expenses, Debt, obligations or
liabilities of any character, foreseen or unforeseen, and whether or not valid,
incurred by or against the Company, any Guarantor or any other Person or any
claims, demands, charges or Liens of any nature, foreseen or unforeseen,
incurred by the Company, any Guarantor or any other Person, or against any
sums
payable in respect of the Notes or under the Note Purchase Agreement or this
Guaranty, so that such sums would be rendered inadequate or would be unavailable
to make the payments herein provided; or
(7)
any
order, judgment, decree, ruling or
regulation (whether or not valid) of any court of any nation or of any political
subdivision thereof or any body, agency, department, official or administrative
or regulatory agency of any thereof or any other action, happening, event or
reason whatsoever which shall delay, interfere with, hinder or prevent, or
in
any way adversely affect, the performance by the Company, any Guarantor or
any
other Person of its respective obligations under or in respect of the Notes,
the
Note Purchase Agreement, this Guaranty or any other agreement; or
(8)
the
failure of any Guarantor to receive
any benefit from or as a result of its execution, delivery and performance
of
this Guaranty; or
(9)
any
failure or lack of diligence in
collection or protection, failure in presentment or demand for payment, protest,
notice of protest, notice of default and of nonpayment, any failure to give
notice to any Guarantor of failure of the Company, any Guarantor or any other
Person to keep and perform any obligation, covenant or agreement under the
terms
of the Notes, the Note Purchase Agreement, this Guaranty or any other agreement
or failure to resort for payment to the Company, any Guarantor or to any other
Person or to any other guaranty or to any property, security, Liens or other
rights or remedies; or
(10)
the
acceptance of any additional
security or other guaranty, the advance of additional money to the Company
or
any other Person, the renewal or extension of the Notes or amendments,
modifications, consents or waivers with respect to the Notes, the Note Purchase
Agreement, or any other agreement, or the sale, release, substitution or
exchange of any security for the Notes; or
(11)
any
merger or consolidation of the
Company, any Guarantor or any other Person into or with any other Person or
any
sale, lease, transfer or other disposition of any of the assets of the Company,
any Guarantor or any other Person to any other Person, or any change in the
ownership of any shares or other equity interests of the Company, any Guarantor
or any other Person; or
(12)
any
defense whatsoever
that: (i) the Company or any other Person might have to the payment
of the Notes (including, principal, Make-Whole Amount, if any, or interest),
other than payment thereof in Federal or other immediately available funds
or
(ii) the Company or any other Person might have to the performance or observance
of any of the provisions of the Notes, the Note Purchase Agreement, or any
other
agreement, whether through the satisfaction or purported satisfaction by the
Company or any other Person of its debts due to any cause such as bankruptcy,
insolvency, receivership, merger, consolidation, reorganization, dissolution,
liquidation, winding-up or otherwise; or
(13)
any
act or failure to act with regard
to the Notes, the Note Purchase Agreement, this Guaranty or any other agreement
or anything which might vary the risk of any Guarantor or any other Person;
or
(14)
any
other circumstance which might
otherwise constitute a defense available to, or a discharge of, any Guarantor
or
any other Person in respect of the obligations of any Guarantor or other Person
under this Guaranty or any other agreement;
provided
that the specific enumeration of the above-mentioned acts, failures or
omissions shall not be deemed to exclude any other acts, failures or omissions,
though not specifically mentioned above, it being the purpose and intent of
this
Guaranty and the parties hereto that the obligations of each Guarantor shall
be
absolute and unconditional and shall not be discharged, impaired or varied
except by the payment of the principal of, Make-Whole Amount, if any, and
interest on the Notes in accordance with their respective terms whenever the
same shall become due and payable as in the Notes provided, at the place
specified in and all in the manner and with the effect provided in the Notes
and
the Note Purchase Agreement, as each may be amended or modified from time to
time. Without limiting the foregoing, it is understood that repeated
and successive demands may be made and recoveries may be had hereunder as and
when, from time to time, the Company shall default under or in respect of the
terms of the Notes or the Note Purchase Agreement and that notwithstanding
recovery hereunder for or in respect of any given default or defaults by the
Company under the Notes or the Note Purchase Agreement, this Guaranty shall
remain in full force and effect and shall apply to each and every subsequent
default.
(d) All
rights of any Holder under this Guaranty shall be considered to be transferred
or assigned at any time or from time to time upon the transfer of any Note
held
by such Holder whether with or without the consent of or notice to the
Guarantors under this Guaranty or to the Company.
(e) To
the extent of any payments made under this Guaranty, the Guarantors shall be
subrogated to the rights of the Holder or Holders upon whose Notes such payment
was made, but each Guarantor covenants and agrees that such right of subrogation
and any and all claims of such Guarantor against the Company, any endorser
or
other Guarantor or against any of their respective properties shall be junior
and subordinate in right of payment to the prior indefeasible final payment
in
cash in full of all of the Notes and satisfaction by the Company of its
obligations under the Note Purchase Agreement and by the Guarantors of their
obligations under this Guaranty, and the Guarantors shall not take any action
to
enforce such right of subrogation, and the Guarantors shall not accept any
payment in respect of such right of subrogation, until all of the Notes and
all
amounts payable by the Guarantors hereunder have indefeasibly been finally
paid
in cash in full and all of the obligations of the Company under the Note
Purchase Agreement and of the Guarantors under this Guaranty have been
satisfied. Notwithstanding any right of any Guarantor to ask, demand,
sue for, take or receive any payment from the Company, all rights, Liens and
security interests of each Guarantor, whether now or hereafter arising and
howsoever existing, in any assets of the Company shall be and hereby are
subordinated to the rights, if any, of the Holders in those
assets. No Guarantor shall have any right to possession of any such
asset or to foreclose upon any such asset, whether by judicial action or
otherwise, unless and until all of the Notes and the obligations of the Company
under the Note Purchase Agreement shall have been paid in cash in full and
satisfied.
(f) Each
Guarantor agrees that to the extent the Company or any other Person makes any
payment on any Note, which payment or any part thereof is subsequently
invalidated, voided, declared to be fraudulent or preferential, set aside,
recovered, rescinded or is required to be retained by or repaid to a trustee,
receiver, or any other Person under any bankruptcy code, common law, or
equitable cause, then and to the extent of such payment, the obligation or
the
part thereof intended to be satisfied shall be revived and continued in full
force and effect with respect to the Guarantors’ obligations hereunder, as if
said payment had not been made. The liability of the Guarantors
hereunder shall not be reduced or discharged, in whole or in part, by any
payment to any Holder from any source that is thereafter paid, returned or
refunded in whole or in part by reason of the assertion of a claim of any kind
relating thereto, including, but not limited to, any claim for breach of
contract, breach of warranty, preference, illegality, invalidity or fraud
asserted by any account debtor or by any other Person.
(g) No
Holder shall be under any obligation: (1) to marshall any assets in
favor of the Guarantors or in payment of any or all of the liabilities of the
Company under or in respect of the Notes, the Note Purchase Agreement or the
obligations of the Guarantors hereunder or (2) to pursue any other remedy that
the Guarantors may or may not be able to pursue themselves and that may lighten
the Guarantors’ burden, any right to which each Guarantor hereby expressly
waives.
|
Section 5.
|
Representations
and Warranties of the
Guarantors.
|
Each
Guarantor represents and warrants to each Holder that:
(a) Such
Guarantor is a corporation or other legal entity duly organized, validly
existing and in good standing under the laws of its jurisdiction of
organization, and is duly qualified as a foreign corporation or other legal
entity and is in good standing in each jurisdiction in which such qualification
is required by law, other than those jurisdictions as to which the failure
to be
so qualified or in good standing would not, individually or in the aggregate,
reasonably be expected to have a material adverse effect on (1) the business,
operations, affairs, financial condition, assets or properties of such Guarantor
and its subsidiaries, taken as a whole, or (2) the ability of such Guarantor
to
perform its obligations under this Guaranty or (3) the validity or
enforceability of this Guaranty (herein in this Section 5, a
“Material
Adverse Effect”
). Such Guarantor has the power and authority to
own or lease the properties it purports to own or lease, to transact the
business it transacts and proposes to transact, to execute and deliver this
Guaranty and to perform the provisions hereof.
(b) Each
subsidiary of such Guarantor is a corporation or other legal entity duly
organized, validly existing and in good standing under the laws of its
jurisdiction of organization, and is duly qualified as a foreign corporation
or
other legal entity and is in good standing in each jurisdiction in which such
qualification is required by law, other than those jurisdictions as to which
the
failure to be so qualified or in good standing would not, individually or in
the
aggregate, reasonably be expected to have a Material Adverse
Effect. Each subsidiary of such Guarantor has the power and authority
to own or lease the properties it purports to own or lease and to transact
the
business it transacts and proposes to transact.
(c) This
Guaranty has been duly authorized by all necessary action on the part of such
Guarantor, and this Guaranty constitutes a legal, valid and binding obligation
of such Guarantor enforceable against such Guarantor in accordance with its
terms, except as such enforceability may be limited by (1) applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or
other similar laws affecting the enforcement of creditors’ rights generally and
(2) general principles of equity (regardless of whether such enforceability
is considered in a proceeding in equity or at law).
(d) The
execution, delivery and performance by such Guarantor of this Guaranty will
not
(1) contravene, result in any breach of, or constitute a default under, or
result in the creation of any Lien in respect of any property of such Guarantor
or any of its subsidiaries which are Restricted Subsidiaries under any
indenture, mortgage, deed of trust, loan, purchase or credit agreement, lease,
organizational document or any other agreement or instrument to which such
Guarantor or any of its subsidiaries which are Restricted Subsidiaries is bound
or by which such Guarantor or any of its subsidiaries or any of their respective
properties may be bound or affected, (2) conflict with or result in a
breach of any of the terms, conditions or provisions of any order, judgment,
decree, or ruling of any court, arbitrator or Governmental Authority applicable
to such Guarantor or any of its subsidiaries which are Restricted Subsidiaries
or (3) violate any provision of any statute or other rule or regulation of
any Governmental Authority applicable to such Guarantor or any of its
subsidiaries which are Restricted Subsidiaries.
(e) No
consent, approval or authorization of, or registration, filing or declaration
with, any Governmental Authority is required in connection with the execution,
delivery or performance by such Guarantor of this Guaranty other than such
consents, approvals, authorizations, registrations, filings or declarations
that
have been obtained or made prior to the date of the Closing.
(f) (1) Except
as disclosed in Schedule 5.8 to the Note Purchase Agreement, there are no
actions, suits or proceedings pending or, to the knowledge of such Guarantor,
threatened against or affecting such Guarantor or any of its subsidiaries which
are Restricted Subsidiaries or any property of such Guarantor or any of its
subsidiaries which are Restricted Subsidiaries in any court or before any
arbitrator of any kind or before or by any Governmental Authority that,
individually or in the aggregate, would reasonably be expected to have a
Material Adverse Effect.
(2) Neither
such Guarantor nor any of its subsidiaries which are Restricted Subsidiaries
is
in default under any term of any agreement or instrument to which it is a party
or by which it is bound, or any order, judgment, decree or ruling of any court,
arbitrator or Governmental Authority or is in violation of any applicable law,
ordinance, rule or regulation (including, without limitation, ERISA,
Environmental Laws or the USA Patriot Act) of any Governmental Authority, which
default or violation, individually or in the aggregate, would reasonably be
expected to have a Material Adverse Effect.
(g) Such
Guarantor and its subsidiaries have filed all income tax returns that are
required to have been filed in any jurisdiction, and have paid all taxes shown
to be due and payable on such returns and all other taxes and assessments
payable by them, to the extent such taxes and assessments have become due and
payable and before they have become delinquent, except for any taxes and
assessments (1) the amount of which is not, individually or in the
aggregate, material to the business, operations, affairs, financial condition,
assets or properties of such Guarantor and its subsidiaries taken as a whole
(herein in this Section 5,
“Material”
) or (2) the amount,
applicability or validity of which is currently being contested in good faith
by
appropriate proceedings and with respect to which such Guarantor or one of
its
subsidiaries, as the case may be, has established adequate reserves in
accordance with GAAP. The charges, accruals and reserves on the books
of such Guarantor and its subsidiaries in respect of Federal, state or other
taxes for all fiscal periods are adequate in accordance with GAAP.
The Federal income tax liabilities of such Guarantor and
its subsidiaries have been determined by the Internal Revenue Service and paid
for all fiscal years up to and including the fiscal year ended
September 30, 2004.
(h) Such
Guarantor and its subsidiaries which are Restricted Subsidiaries have good
and
sufficient title related to the ownership of their respective Material
properties, including all such properties reflected in the most recent audited
consolidated balance sheet referred to in Section 5.5 of the Note Purchase
Agreement or purported to have been acquired by such Guarantor after said date
(except as sold or otherwise disposed of in the ordinary course of business),
in
each case free and clear of Liens prohibited by the Note Purchase Agreement,
except for those defects in title and Liens that, individually or in the
aggregate, would not have a Material Adverse Effect. All Material
leases to which such Guarantor is a party are valid and subsisting and are
in
full force and effect in all material respects.
(i) Except
as disclosed in Schedule 5.11 to the Note Purchase Agreement, such
Guarantor and its subsidiaries are Restricted Subsidiaries own or possess all
licenses, permits, franchises, authorizations, patents, copyrights, proprietary
software, service marks, trademarks, trade names and domain names or rights
thereto, that are Material, without known conflict with the rights of others,
except for those conflicts that, individually or in the aggregate, would not
have a Material Adverse Effect.
(j) (1) Such
Guarantor and each ERISA Affiliate have operated and administered each Plan
in
compliance with all applicable laws except for such instances of noncompliance
as have not resulted in and would not reasonably be expected to result in a
Material Adverse Effect. Neither such Guarantor nor any ERISA
Affiliate has incurred any liability pursuant to Title I or IV of ERISA or
the
penalty or excise tax provisions of the Code relating to employee benefit plans
(as defined in Section 3 of ERISA), and no event, transaction or condition
has occurred or exists that would reasonably be expected to result in the
incurrence of any such liability by such Guarantor or any ERISA Affiliate,
or in
the imposition of any Lien on any of the rights, properties or assets of such
Guarantor or any ERISA Affiliate, in either case pursuant to Title I or IV
of
ERISA or to such penalty or excise tax provisions or to Section 401(a)(29)
or 412 of the Code, other than such liabilities or Liens as would not be,
individually or in the aggregate, Material.
(2) The
present value of the aggregate benefit liabilities under each of the Plans
which
are subject to Title IV of ERISA (other than Multiemployer Plans), determined
as
of the end of such Plan’s most recently ended plan year on the basis of the
actuarial assumptions specified for funding purposes in such Plan’s most recent
actuarial valuation report, did not exceed the aggregate current value of the
assets of such Plans allocable to such benefit liabilities by more than
$8,000,000. The term “benefit liabilities” has the meaning specified
in Section 4001 of ERISA and the terms “current value” and “present value”
have the meanings specified in Section 3 of ERISA.
(3) Such
Guarantor and its ERISA Affiliates have not incurred withdrawal liabilities
(and
are not subject to contingent withdrawal liabilities) under Section 4201 or
4204 of ERISA in respect of Multiemployer Plans that, individually or in the
aggregate, are Material.
(4) The
accumulated post-retirement benefit obligation (determined as of the last day
of
the Company’s most recently ended fiscal year in accordance with Financial
Accounting Standards Board Statement No. 106, without regard to liabilities
attributable to continuation coverage mandated by Section 4980B of the
Code) of such Guarantor and its ERISA Affiliates is not Material.
(5) The
execution and delivery of this Guaranty will not involve any transaction that
is
subject to the prohibitions of Section 406 of ERISA or in connection with
which a tax could be imposed pursuant to Section 4975(c)(1)(A)-(D) of the
Code. The representation by such Guarantor in the first sentence of
this Section 5(j)(5) is made in reliance upon and subject to the accuracy
of each Holder’s representation in Section 6.2 of the Note Purchase
Agreement as to the source of the funds to be used to pay the purchase price
of
the Notes to be purchased by such Holder.
(k) Neither
such Guarantor nor any of its subsidiaries is an “investment company” registered
or required to be registered under the Investment Company Act of 1940 or an
“affiliated person” of an “investment company” or an “affiliated person” of such
“affiliated person” or under the “control” of an “investment company” as such
terms are defined in the Investment Company Act of 1940, as amended, and shall
not become such an “investment company” or such an “affiliated person” or under
such “control.” Neither such Guarantor nor any of its subsidiaries is
a “holding company” or a “subsidiary company” of a “holding company,” or an
“affiliate” of a “holding company” or of a “subsidiary company” of a “holding
company” within the meaning of the Public Utility Holding Company Act of 2005,
as amended. Based upon the immediately preceding sentence, such
Guarantor is not subject to regulation under the Public Utility Holding Company
Act of 2005, as amended. Neither such Guarantor nor any of its
subsidiaries is subject to the ICC Termination Act of 1995, as amended, or
the
Federal Power Act, as amended. Neither such Guarantor nor any of its
subsidiaries is subject to any Federal or state statute or regulation limiting
its ability to incur Debt.
(l) Neither
such Guarantor nor any of its subsidiaries which are Restricted Subsidiaries
has
knowledge of any claim or has received any notice of any claim, and no
proceeding has been instituted raising any claim against such Guarantor or
any
of its subsidiaries which are Restricted Subsidiaries or any of their respective
real properties now or formerly owned, leased or operated by any of them or
other assets, alleging any damage to the environment or violation of any
Environmental Laws, except, in each case, such as would not reasonably be
expected to result in a Material Adverse Effect. Except as otherwise
disclosed to the Holders in writing:
(1)
neither
such Guarantor nor any of its
subsidiaries which are Restricted Subsidiaries has knowledge of any facts which
would give rise to any claim, public or private, of violation of Environmental
Laws or damage to the environment emanating from, occurring on or in any way
related to real properties now or formerly owned, leased or operated by any
of
them or to other assets or their use, except, in each case, such as would not
reasonably be expected to result in a Material Adverse Effect;
(2)
neither
such Guarantor nor any of its
subsidiaries which are Restricted Subsidiaries has stored any Hazardous
Materials on real properties now or formerly owned, leased or operated by any
of
them or has disposed of any Hazardous Materials in a manner contrary to any
Environmental Laws in each case in any manner that would reasonably be expected
to result in a Material Adverse Effect; and
(3)
all
buildings on all real properties
now owned, leased or operated by the Guarantor or any of its subsidiaries are
in
compliance with applicable Environmental Laws, except where failure to comply
would not reasonably be expected to result in a Material Adverse
Effect.
(m) Such
Guarantor is solvent, has capital not unreasonably small in relation to its
business or any contemplated or undertaken transaction and has assets having
a
value both at fair valuation and at present fair salable value greater than
the
amount required to pay its debts as they become due and greater than the amount
that will be required to pay its probable liability on its existing debts as
they become absolute and matured. Such Guarantor does not intend to
incur, or believe or should have believed that it will incur, debts beyond
its
ability to pay such debts as they become due. Such Guarantor will not
be rendered insolvent by the execution and delivery of, and performance of
its
obligations under, this Guaranty. Such Guarantor does not intend to
hinder, delay or defraud its creditors by or through the execution and delivery
of, or performance of its obligations under, this Guaranty.
(n) The
obligations of such Guarantor under this Guaranty rank at least pari passu
in
right of payment with all other unsecured Senior Debt of such Guarantor,
including without limitation, all unsecured Senior Debt of such Guarantor
described in Schedule 5.15 to the Note Purchase Agreement.
|
Section 6.
|
Amendments,
Waivers and Consents
.
|
(a) This
Guaranty may be amended, and the observance of any term hereof may be waived
(either retroactively or prospectively), with (and only with) the written
consent of each Guarantor and the Required Holders, except that (1) no
amendment or waiver of any of the provisions of Sections 3, 4 or 5, or any
defined term (as it is used therein), will be effective as to any Holder unless
consented to by such Holder in writing, and (2) no such amendment or waiver
may, without the written consent of each Holder, (i) change the percentage
of the principal amount of the Notes the Holders of which are required to
consent to any such amendment or waiver or (ii) amend Section 2 or
this Section 6.
(b) The
Guarantors will provide each Holder (irrespective of the amount of Notes then
owned by it) with sufficient information, sufficiently far in advance of the
date a decision is required, to enable such Holder to make an informed and
considered decision with respect to any proposed amendment, waiver or consent
in
respect of any of the provisions hereof. The Guarantors will deliver
executed or true and correct copies of each amendment, waiver or consent
effected pursuant to the provisions of this Section 6 to each Holder
promptly following the date on which it is executed and delivered by, or
receives the consent or approval of, the requisite Holders.
(c) No
Guarantor will directly or indirectly pay or cause to be paid any remuneration,
whether by way of fee or otherwise, or grant any security, to any Holder as
consideration for or as an inducement to the entering into by such Holder of
any
waiver or amendment of any of the terms and provisions hereof unless such
remuneration is concurrently paid, or security is concurrently granted, on
the
same terms, ratably to each Holder even if such Holder did not consent to such
waiver or amendment.
(d) Any
consent made pursuant to this Section 6 by a Holder that has transferred a
portion or has agreed to transfer all or a portion of its Notes to such
Guarantor, any subsidiary or any affiliate of such Guarantor and has provided
or
has agreed to provide such written consent as a condition to such transfer
shall
be void and of no force and effect except solely as to such Holder, and any
amendment effected or waivers granted or to be effected or granted that would
not have been or be so effected or granted but for such consent (and the
consents of all other Holders that were acquired under the same or similar
conditions) shall be void and of no force and effect except solely as to such
Holder.
(e) Any
amendment or waiver consented to as provided in this Section 6 applies
equally to all Holders of Notes affected thereby and is binding upon them and
upon each future holder and upon the Guarantors. No such amendment or
waiver will extend to or affect any obligation, covenant or agreement not
expressly amended or waived or impair any right consequent
thereon. No course of dealing between the Guarantors and any Holder
nor any delay in exercising any rights hereunder shall operate as a waiver
of
any rights of any Holder. As used herein, the term “this Guaranty”
and references thereto shall mean this Guaranty as it may from time to time
be
amended or supplemented.
(f) Solely
for the purpose of determining whether the Holders of the requisite percentage
of the aggregate principal amount of Notes then outstanding approved or
consented to any amendment, waiver or consent to be given under this Guaranty,
Notes directly or indirectly owned by any Guarantor or any subsidiaries or
Affiliates of any Guarantor shall be deemed not to be outstanding.
|
Section 7.
|
Notices
.
|
All
notices and communications provided for hereunder shall be in writing and sent
(a) by telefacsimile if the sender on the same day sends a confirming copy
of such notice by a recognized overnight delivery service (charges prepaid),
(b) by registered or certified mail with return receipt requested (postage
prepaid) or (c) by a recognized overnight delivery service (charges
prepaid). Any such notice must be sent:
(1)
if
to a Purchaser or its nominee, to
such Purchaser or its nominee at the address specified for such communications
in Schedule A to the Note Purchase Agreement, or at such other address as
such Purchaser or its nominee shall have specified to any Guarantor in
writing,
(2)
if
to any other Holder, to such Holder
at such address as such Holder shall have specified to any Guarantor in writing,
or
(3)
if
to any Guarantor, to such Guarantor
c/o the Company at its address set forth at the beginning of the Note Purchase
Agreement to the attention of the Chief Financial Officer of the Company, or
at
such other address as such Guarantor shall have specified to the Holders in
writing.
Notices
under this Section 7 will be deemed given only when actually
received.
|
Section 8.
|
Miscellaneous
.
|
(a) No
remedy herein conferred upon or reserved to any Holder is intended to be
exclusive of any other available remedy or remedies, but each and every such
remedy shall be cumulative and shall be in addition to every other remedy given
under this Guaranty now or hereafter existing at law or in equity. No
delay or omission to exercise any right or power accruing upon any default,
omission or failure of performance hereunder shall impair any such right or
power or shall be construed to be a waiver thereof but any such right or power
may be exercised from time to time and as often as may be deemed
expedient. In order to entitle any Holder to exercise any remedy
reserved to it under this Guaranty, it shall not be necessary for such Holder
to
physically produce its Note in any proceedings instituted by it or to give
any
notice, other than such notice as may be herein expressly required.
(b) The
Guarantors will pay all sums becoming due under this Guaranty by the method
and
at the address specified for such purpose for such Holder, in the case of a
Holder that is a Purchaser, on Schedule A to the Note Purchase Agreement or
by such other method or at such other address as any Holder shall have from
time
to time specified to the Guarantors or the Company on behalf of the Guarantors
in writing for such purpose, without the presentation or surrender of this
Guaranty or any Note.
(c) Any
provision of this Guaranty that is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall (to the full extent permitted by law) not invalidate or
render unenforceable such provision in any other jurisdiction.
(d) If
the whole or any part of this Guaranty shall be now or hereafter become
unenforceable against any one or more of the Guarantors for any reason
whatsoever or if it is not executed by any one or more of the Guarantors, this
Guaranty shall nevertheless be and remain fully binding upon and enforceable
against each other Guarantor as if it had been made and delivered only by such
other Guarantors.
(e) This
Guaranty shall be binding upon each Guarantor and its successors and assigns
and
shall inure to the benefit of each Holder and its successors and assigns so
long
as its Notes remain outstanding and unpaid.
(f) This
Guaranty may be executed in any number of counterparts, each of which shall
be
an original but all of which together shall constitute one
instrument. Each counterpart may consist of a number of copies
hereof, each signed by less than all, but together signed by all, of the parties
hereto.
(g) This
Guaranty 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.
(h) Each
Guarantor hereby irrevocably submits to the non-exclusive jurisdiction of any
State of New York court or any Federal court located in New York County, New
York, New York for the adjudication of any matter arising out of or relating
to
this Guaranty, and consents to the service of all writs, process and summonses
by registered or certified mail out of any such court or by service of process
on such Guarantor at its address to which notices are to be given pursuant
to
Section 7 hereof and hereby waives any requirement to have an agent for service
of process in the State of New York. Nothing contained herein shall
affect the right of any Holder to serve legal process in any other manner or
to
bring any proceeding hereunder in any jurisdiction where such Guarantor may
be
amenable to suit. Each Guarantor hereby irrevocably waives any
objection to any suit, action or proceeding in any New York court or Federal
court located in New York County, New York, New York on the grounds of venue
and
hereby further irrevocably waives any claim that any such suit, action or
proceeding brought in any such court has been brought in an inconvenient
forum.
(i) Each
Guarantor hereby waives trial by jury in any action brought on or with respect
to this Guaranty or any other document executed in connection
herewith.
InWitnessWhereof,
the undersigned has caused this Guaranty to be duly executed by an authorized
representative as of the date first written above.
|
|
NJR
Retail Holdings Corporation
|
|
|
By:
|
|
|
Name: Glenn
C. Lockwood
|
|
|
Title:
|
President
|
|
|
NJR
Home Services Company
|
|
|
By:
|
|
|
Name: Glenn
C. Lockwood
|
|
|
Title:
|
President
and Treasurer
|
|
|
NJR
Plumbing Services, Inc.
|
|
|
By:
|
|
|
Name: Glenn
C. Lockwood
|
|
|
Title:
|
President
and Treasurer
|
|
|
NJR
Service Corporation
|
|
|
By:
|
|
|
Name: Glenn
C. Lockwood
|
|
|
Title:
|
Senior
Vice President and
|
|
|
Chief
Financial Officer
|
|
|
NJR
Energy Services Company
|
|
|
By:
|
|
|
Name: Glenn
C. Lockwood
|
|
|
Title:
|
Senior
Vice President, Chief
|
|
|
Financial
Officer and Treasurer
|
|
|
NJR
Capital Services Corporation
|
|
|
By:
|
|
|
Name: Glenn
C. Lockwood
|
|
|
Title:
|
Senior
Vice President, Chief
|
|
|
Financial
Officer and Treasurer
|
|
|
Commercial
Realty and Resources Corp.
|
|
|
By:
|
|
|
Name: Glenn
C. Lockwood
|
|
|
Title:
|
Senior
Vice President, Chief
|
|
|
Financial
Officer and Treasurer
|
|
|
NJR
Investment Company
|
|
|
By:
|
|
|
Name: Glenn
C. Lockwood
|
|
|
Title:
|
President
and Treasurer
|
Guaranty
Supplement
To
the
Holders (as defined in the hereinafter
defined
Guaranty Agreement)
Ladies
and Gentlemen:
Whereas,
New Jersey Resources Corporation, a corporation organized under the laws of
the
State of New Jersey (the
“Company”
), in order to repay existing debt
and for general corporate purposes, the Company issued $50,000,000 aggregate
principal amount of its 6.05% Senior Notes due September 24, 2017 (the
“Notes”
) pursuant to a Note Purchase Agreement dated as of
September 24, 2007 (
“Note Purchase Agreement”
) between the Company
and each of the purchasers named on Schedule A attached to said Note
Purchase Agreement (the
“Purchasers”
). Capitalized terms
used herein shall have the meanings set forth in the hereinafter defined
Guaranty Agreement unless herein defined or the context shall otherwise
require.
Whereas,
as a condition precedent to their purchase of the Notes, the Purchasers required
that from time to time certain Subsidiaries of the Company enter into that
certain Subsidiary Guaranty Agreement dated as of September 24, 2007
attached hereto as Exhibit 1 (as amended, supplemented, restated or otherwise
modified from time to time, the
“Guaranty Agreement”
) as security for
the Notes.
Pursuant
to Section 9.7(a) of the Note Purchase Agreement, the Company has agreed to
cause the undersigned, ____________, a [corporation] organized under the laws
of
______________ (the
“Additional Guarantor”
), to join in the Guaranty
Agreement. In accordance with the requirements of the Guaranty
Agreement, the Additional Guarantor desires to amend the definition of Guarantor
(as the same may have been heretofore amended) set forth in the Guaranty
Agreement attached hereto so that at all times from and after the date hereof,
the Additional Guarantor shall be jointly and severally liable as set forth
in
the Guaranty Agreement for the obligations of the Company under the Notes,
the
Note Purchase Agreement to the extent and in the manner set forth in the
Guaranty Agreement.
The
undersigned is the duly elected ____________ of the Additional Guarantor, a
Subsidiary of the Company, and is duly authorized to execute and deliver this
Guaranty Supplement to each of you. The execution by the undersigned
of this Guaranty Supplement shall evidence such Additional Guarantor’s consent
to and acknowledgment and approval of the terms set forth herein and in the
Guaranty Agreement and its agreement to be bound by the covenants, terms and
provisions of the Guaranty Agreement as a Guarantor thereunder and by such
execution the Additional Guarantor shall be deemed to have made in favor of
the
Holders the representations and warranties set forth in Section 5 of the
Guaranty Agreement.
Upon
execution of this Guaranty Supplement, the Guaranty Agreement shall be deemed
to
be amended as set forth above. Except as amended herein, the terms
and provisions of the Guaranty Agreement are hereby ratified, confirmed and
approved in all respects.
Any
and
all notices, requests, certificates and other instruments (including the Notes)
may refer to the Guaranty Agreement without making specific reference to this
Guaranty Supplement, but nevertheless all such references shall be deemed to
include this Guaranty Supplement unless the context shall otherwise
require.
Dated: _________________,
20
.
|
|
[Name
of Additional Guarantor]
|
|
|
By
|
|
|
Its
|
Form
of Opinion of Special Counsel
to
the Company and the Guarantors
The
closing opinion of Chapman and Cutler, LLP, special counsel for the Company
and
the Guarantors, which is called for by
Section 4.5(a)
of
the Agreement, shall be dated the date of the Closing and addressed to each
Purchaser, shall be satisfactory in scope and form to each Purchaser and shall
be to the effect that:
1.
The
Company is a corporation duly
incorporated, validly existing and in good standing under the laws of the State
of New Jersey has the corporate power and the corporate authority to execute
and
perform the Agreement and to issue the Notes and has the full corporate power
and the corporate authority to conduct the activities in which it is now engaged
and is duly licensed or qualified and is in good standing as a foreign
corporation in each jurisdiction in which the character of the properties owned
or leased by it or the nature of the business transacted by it makes such
licensing or qualification necessary, other than those jurisdictions as to
which
the failure to be so licensed, qualified or in good standing could not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.
2.
Each
Guarantor and New Jersey Natural
Gas is a corporation or other business entity duly organized, validly existing
and in good standing under the laws of its jurisdiction of organization and
is
duly licensed or qualified and is in good standing in each jurisdiction in
which
the character of the properties owned or leased by it or the nature of the
business transacted by it makes such licensing or qualification necessary,
other
than those jurisdictions as to which the failure to be so licensed, qualified
or
in good standing could not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect, and all of the issued and
outstanding shares of capital stock or other equity interests of each such
Guarantor and New Jersey Natural Gas have been duly issued, are fully paid
and
non-assessable, other than as shown on
Schedule 5.4
, and
are owned by the Company, by one or more Restricted Subsidiaries, or by the
Company and one or more Restricted Subsidiaries.
3.
Each
Guarantor has the corporate or
other power and authority to execute and perform the Guaranty Agreement and
has
full corporate or other power and authority to conduct the activities in which
it is now engaged.
4.
The
Agreement has been duly authorized
by all necessary corporate action on the part of the Company, has been duly
executed and delivered by the Company and constitutes the legal, valid and
binding contract of the Company enforceable in accordance with its terms subject
to bankruptcy, insolvency, fraudulent conveyance and similar laws affecting
creditors’ rights generally, and general principles of equity (regardless of
whether the application of such principles is considered in a proceeding in
equity or at law).
5.
The
Notes have been duly authorized by
all necessary corporate action on the part of the Company, have been duly
executed and delivered by the Company and constitute the legal, valid and
binding obligations of the Company enforceable in accordance with their terms
subject to bankruptcy, insolvency, fraudulent conveyance and similar laws
affecting creditors’ rights generally, and general principles of equity
(regardless of whether the application of such principles is considered in
a
proceeding in equity or at law).
6.
The
Guaranty Agreement has been duly
authorized by all necessary corporate action on the part of the of each
Guarantor, has been duly executed and delivered by each Guarantor and, assuming
adequate consideration has been given, constitutes the legal, valid and binding
obligations of each Guarantor enforceable in accordance with its terms subject
to bankruptcy, insolvency, fraudulent conveyance and similar laws affecting
creditors’ rights generally, and general principles of equity (regardless of
whether the application of such principles is considered in a proceeding in
equity or at law).
7.
No
approval, consent or withholding of
objection on the part of, or filing, registration or qualification with, any
Governmental Authority, Federal or state, is necessary in connection with the
execution, delivery or performance by the Company of the Agreement or the Notes
or by any Guarantor of the Guaranty Agreement, in each case, other than such
consents, approvals, authorizations, registrations, filings or declarations
that
have been obtained or made prior to the date of the Closing.
8.
The
execution and delivery of the
Agreement and the Notes by the Company do not, and the performance of the
Agreement and the Notes as therein contemplated will not (a) violate, any
provision of any applicable law, rule or regulation to which the Company is
subject or any order of any court, or of any other agency of government
presently in effect to which the Company is subject, (b) violate the Certificate
of Incorporation or by-laws of the Company, (c) result in a breach of, or
constitute a default under any indenture, mortgage, contract or other instrument
to which the Company is a party or by which the Company or any of its properties
and assets are bound, (d) result in the creation or imposition of any Lien
on,
or security interest in, any assets of the Company or any Subsidiary or (e)
result in a breach of, or constitute a default under, any order, judgment,
decree or ruling of any court binding on the Company.
9.
The
execution and delivery of the
Guaranty Agreement by each Guarantor do not, and the performance of the Guaranty
Agreement as therein contemplated will not (a) violate, any provision of any
applicable law, rule or regulation to which such Guarantor is subject or any
order of any court, or of any other agency of government presently in effect
to
which such Guarantor is subject (b) violate the organizational documents of
such
Guarantor, (c) result in a breach of, or constitute a default under any
indenture, mortgage, contract or other instrument to which such Guarantor is
a
party or by which such Guarantor or any of its properties and assets are bound,
(d) result in the creation or imposition of any Lien on, or security interest
in, any assets of such Guarantor or (e) result in a breach of, or constitute
a
default under, any order, judgment, decree or ruling of any court binding on
such Guarantor.
10.
To
our knowledge, neither the Company
nor any Subsidiary is an “investment company,” or a company “controlled” by an
“investment company,” within the meaning of the Investment Company Act of 1940,
as amended. The issuance of the Notes by the Company is not subject
to regulation under the Public Utility Holding Company Act of 2005.
11.
The
issuance of the Notes and the use
of the proceeds of the sale of the Notes in accordance with the provisions
of
and contemplated by the Agreement do not violate Regulation T, U or X of the
Board of Governors of the Federal Reserve System.
12.
The
issuance, sale and delivery of the
Notes and the execution and delivery of the Guaranty Agreement under the
circumstances contemplated by the Agreement do not, under existing law, require
the registration of the Notes or the Guaranty Agreement under the Securities
Act
or the qualification of an indenture under the Trust Indenture Act of 1939,
as
amended.
The
opinion of Chapman and Cutler, LLP, shall cover such other matters relating
to
the sale of the Notes as any Purchaser may reasonably request. With
respect to matters of fact on which such opinion is based, such counsel shall
be
entitled to rely on appropriate certificates of public officials, Goldman,
Sachs
& Co. and officers of the Company and of the Guarantors and upon
representations of the Company, the Guarantors and the Purchasers delivered
in
connection with the issuance and sale of the Notes and the execution and
delivery of the Guaranty Agreement.
Form
of Opinion of Special Counsel
to
the Purchasers
The
closing opinion of Schiff Hardin LLP, special counsel to the Purchasers, called
for by
Section 4.5(b)
of the Agreement, shall be dated the date
of the Closing and addressed to the Purchasers, shall be satisfactory in form
and substance to the Purchasers and shall be to the effect that:
1.
The
Company is a corporation validly
existing and in good standing under the laws of the State of New
Jersey.
2.
The
Agreement and the Notes being
delivered on the date hereof constitute the legal, valid and binding contracts
of the Company, enforceable against the Company in accordance with their
respective terms.
3.
The
issuance, sale and delivery of the
Notes being delivered on the date hereof under the circumstances contemplated
by
this Agreement do not, under existing law, require the registration of such
Notes under the Securities Act or the qualification of an indenture under the
Trust Indenture Act of 1939, as amended.
The
opinion of Schiff Hardin LLP shall also state that the opinion of Chapman and
Cutler, LLP, is satisfactory in scope and form to Schiff Hardin LLP and that,
in
their opinion, the Purchasers are justified in relying thereon.
In
rendering the opinion set forth in paragraph 1 above, Schiff Hardin LLP may
rely, as to matters referred to in paragraph 1, solely upon an examination
of
the Certificate of Incorporation certified by, and a certificate of good
standing of the Company from, the Secretary of State of the State of New
Jersey. The opinion of Schiff Hardin LLP is limited to the laws of
the State of New York and the Federal laws of the United States.
With
respect to matters of fact upon which such opinion is based, Schiff Hardin
LLP
may rely on appropriate certificates of public officials and officers of the
Company and upon representations of the Company and the Purchasers delivered
in
connection with the issuance and sale of the Notes.