AMENDMENT TO LOAN AGREEMENT
Exhibit
10.g.v.
AMENDMENT
THIS
AMENDMENT TO LOAN
AGREEMENT (this “Agreement”) is made
and entered into as of this 14th day
of December, 2009, among SOUTH JERSEY GAS COMPANY, a New Jersey corporation (the
“Borrower”) and
TORONTO DOMINION (NEW YORK) LLC, as lender (“Lender”).
W I T N E S S E T
H:
WHEREAS, the Borrower and the
Lender are parties to that certain Loan Agreement, dated as of December 15,
2008, (as amended, restated, modified and supplemented from time to time, the
“Loan
Agreement”) pursuant to which the Lender extended certain financial
accommodations to the Borrower under the terms and conditions stated therein;
and
WHEREAS, the Borrower has
requested that the Lender amend certain provisions in the Loan Agreement as more
specifically set forth below; and
WHEREAS, the Lender is willing
to consent to the Borrower’s requests upon and subject to the terms and
conditions hereinafter set forth;
NOW, THEREFORE, for and in
consideration of the mutual covenants and agreements contained herein, and for
other good and valuable consideration, the receipt and sufficiency of which is
acknowledged, the parties hereto agree that all capitalized terms used herein
which are not otherwise defined herein shall have the meanings ascribed thereto
in the Loan Agreement, and further agree as follows:
1.
Amendments.
(a) Section 1.1 of the
Loan Agreement, Defined Terms, is
hereby amended by deleting the definition of “Applicable Margin”
set forth therein in its entirety and substituting the following in lieu
thereof:
“’Applicable Margin” –
For any Loan made to Borrower on any date, the rate per annum as set forth
below, determined by reference to the Corporate Credit Ratings:
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Level
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Corporate
Credit Rating
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Applicable
Base Rate Margin
|
Applicable
LIBOR Margin
|
|
I
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Greater
than BBB-/Baa3
|
0.000%
|
1.75%
|
|
II
|
Less
than or equal to
BBB-/Baa3
or no rating
|
0.000%
|
2.00%
|
Any
change in the Applicable Margin will be effective as of the date on which the
applicable Selected Rating Agent, as the case may be, announces the applicable
change in the Corporate Credit Ratings. Borrower shall notify Lender
in writing promptly after becoming aware of any change in the Corporate Credit
Ratings.
For
purposes of the foregoing, (i) if the Corporate Credit Ratings established or
deemed to have been established by the Selected Rating Agencies shall fall
within different “Levels”, the lower rating will apply; (ii) if only one of the
Selected Rating Agencies maintains Corporate Credit Ratings, then the rating of
such single rating agency will apply; and (iii) if the rating system of Xxxxx’x,
S&P or Fitch shall change, or if Xxxxx’x, S&P or Fitch shall cease to be
in the business of providing Corporate Credit Ratings, Borrower and Lender shall
negotiate in good faith to amend this definition to reflect such changed rating
system or the unavailability of ratings from Xxxxx’x, S&P or Fitch, and,
pending the effectiveness of any such amendment, the Corporate Credit Ratings
shall be determined by reference to the Corporate Credit Ratings most recently
in effect prior to such change or cessation.”
(b) Section 1.1 of the
Loan Agreement, Defined Terms, is
hereby further amended by deleting the definition of “Revolving Credit Maturity
Date” as set forth therein in its entirety and substituting the following
in lieu thereof:
“’Revolving Credit Maturity
Date” – December 13, 2010.”
(c) Section
2.7 of the Loan Agreement, Fees and Charges, is
hereby amended by deleting subsection (b) thereof in its entirety and by
substituting in lieu thereof the following:
“b. Borrower
hereby agrees to pay to Lender a facility fee (the “Facility Fee”) equal to the
average daily amount of the Unused Revolving Credit Commitment during the
preceding calendar quarter (or such shorter period ending on the Revolving
Credit Maturity Date) multiplied by a rate
per annum equal to one quarter of one percent (0.250%), payable quarterly in
arrears on January 1, April 1, July 1 and October 1, and on the Revolving Credit
Maturity Date. The Facility Fee due to Lender shall cease to accrue
on the Revolving Credit Maturity Date. The Facility Fee payable on
January 1, 2010 shall be calculated for the period (1) from (and including)
October 1, 2009 through (but not including) December 14, 2009 at a rate per
annum equal to one eighth of one percent (0.125%) and (2) from (and including
December 14, 2009, through and including December 31, 2009 at a rate per annum
equal to one quarter of one percent (0.250%).”
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(d) Section II of the
Loan Agreement, The
Loans, is hereby further amended by inserting the following new Section
2.15 immediately following the end of Section 2.14 thereof:
“Section 2.15. Incremental
Facility. So long as no Default or Event of Default has occurred and
is continuing, the Borrower may at any time during the term of this Agreement
request that the Maximum Revolving Credit Amount be increased by an amount not
to exceed $10,000,000. Lender may, but shall not be obligated to, in
its sole discretion (including, without limitation, obtaining internal credit
approval) agree to all or any portion of the requested increase. In
the event that the Lender agrees to an increase to the Maximum Revolving Credit
Amount, the Borrower shall execute such amendments and additional documents
(including opinions of counsel) as may reasonably be requested by the Lender to
give effect to such increase.”
(e) Section 6.15 of the
Loan Agreement, Replacement
Financing, is hereby amended by deleting such Section in its
entirety and by substituting the following in lieu
thereof:
“6.15. [Reserved].”
2.
Strict
Compliance. Except for the amendments set forth in Section 1
above, the text of the Loan Agreement shall remain unchanged and in full force
and effect. The amendments agreed to herein shall not constitute a
modification of the Loan Agreement or a course of dealing with the Lender at
variance with the Loan Agreement such as to require further notice by the Lender
to require strict compliance with the terms of the Loan Agreement in the
future.
3.
Representations and
Warranties. The Borrower hereby represents and warrants to and
in favor of the Lender as follows:
(a) Each
representation and warranty set forth in Article V of the Loan Agreement is
hereby restated and affirmed as true and correct in all material respects as of
the date hereof, except to the extent waived hereby or previously fulfilled in
accordance with the terms of the Loan Agreement and to the extent relating
specifically to the Closing Date or otherwise inapplicable;
(b) There
does not exist any Default or Event of Default or any event with the passage of
time would become a Default or Event of Default, in each case, both before and
after giving effect to this Agreement;
(c) The
Borrower has the corporate power and authority (i) to enter into this Agreement
and (ii) to do all acts and things as are required or contemplated hereunder to
be done, observed and performed by it;
(d) As
of the date of this Agreement, the Borrower and each of its Subsidiaries will be
Solvent;
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(e) This
Agreement has been duly authorized, validly executed and delivered by one or
more authorized officers of the Borrower, and each of this Agreement and the
Loan Agreement as amended hereby constitutes the legal, valid and binding
obligations of the Borrower, enforceable against the Borrower in accordance with
its terms, except as may be limited by applicable bankruptcy, insolvency,
reorganization, moratoriam or other similar laws of general application relating
to or affecting the rights and remedies of creditors and by general principles
of equity; and
(f)
The execution and delivery of this Agreement and performance
by the Borrower under the Loan Agreement, as amended hereby, does not and will
not require the consent or approval of any regulatory authority or governmental
authority or agency having jurisdiction over the Borrower which has not already
been obtained, nor be in contravention of or in conflict with the certificate of
incorporation of the Borrower, or any provision of any statute, judgment, order,
indenture, instrument, agreement, or undertaking, to which the Borrower is party
or by which the Borrower’s assets or properties are bound.
4.
Conditions
Precedent to Effectiveness of this Agreement. This Agreement,
shall be effective as of the date hereof subject to:
(a) all
of the representations and warranties of the Borrower under Section 3 hereof
which are made as of the date hereof, being true and correct in all material
respects;
(b) receipt
by the Lender of a duly executed signature page to this Agreement from the
Borrower;
(c) receipt
by the Lender of an amendment fee in the amount of $40,000, and
(d) receipt
of any other documents or instruments that the Lender may reasonably request,
certified or executed by an authorized officer of the Borrower if so
requested.
5.
Condition
Subsequent. On or prior to [December 31, 2009], the Borrower
shall cause Cozen X’Xxxxxx, counsel to the Borrower, to deliver to the Lender a
duly executed legal opinion with respect to this Agreement and the transactions
contemplated hereby in substantially the form of the legal opinion delivered to
the Lender on the Closing Date. The Borrower acknowledges and agrees
that failure to comply with the terms of this Section 5 shall be an Event of
Default under the Loan Agreement without any cure or notice
periods.
6.
Fees and
Expenses. The Borrower agrees to promptly pay all reasonable
fees and expenses of the Lender in connection with the preparation, execution
and delivery of this Agreement, including without limitation the reasonable fees
and expenses of Xxxxx Day, counsel to the Lender.
7.
Counterparts. This
Agreement may be executed in multiple counterparts, each of which shall be
deemed to be an original and all of which when taken together shall constitute
one and the same agreement.
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8.
Law of
Contract. This Agreement shall be construed and enforced in
accordance with the internal laws (and not the law of conflicts) of the State of
New York for contracts made and to be performed within the State of New
York.
9.
Loan
Document. This Agreement shall constitute a Loan
Document.
10. Amendment to Loan
Documents. All of the Loan Documents are hereby amended to the
extent necessary to give full force and effect to the amendments contained in
this Agreement.
11. Severability. Any
provision of this Agreement which is prohibited or unenforceable shall be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof in that jurisdiction or affecting
the validity or enforceability of such provision in any other
jurisdiction.
12. Execution by Electronic
Means. Delivery by any party hereto of an executed counterpart
of this Agreement by facsimile or electronic transmission shall be as valid and
effective as such party’s original executed counterpart.
[Remainder
of page intentionally left blank]
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IN WITNESS WHEREOF, the
parties hereto have executed this Agreement as of the day and year first above
written.
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BORROWER:
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SOUTH
JERSEY GAS COMPANY
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By:
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Name:
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Title:
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LENDER:
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TORONTO
DOMINION (NEW YORK) LLC
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By:
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Name:
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Title:
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