EXECUTION ORIGINAL
THIRD AMENDMENT
TO
AMENDED AND RESTATED LETTER OF CREDIT
AND REIMBURSEMENT AGREEMENT
This THIRD AMENDMENT TO AMENDED AND RESTATED LETTER OF CREDIT
AND REIMBURSEMENT AGREEMENT (this "Third Amendment") is made as of the 5th day
of August, 2004, among SOUTH JERSEY INDUSTRIES, INC., a New Jersey corporation
("South Jersey"); MARINA ENERGY LLC, a New Jersey limited liability company
("Marina Energy"; and together with South Jersey, collectively, the "Obligors");
WACHOVIA BANK, NATIONAL ASSOCIATION, a national banking association having its
principal offices in Charlotte, North Carolina ("Wachovia"), as the Fronting
Bank (the "Fronting Bank"); WACHOVIA, as the Administrative Agent (the
"Administrative Agent"); and the participating banks listed on the signature
pages hereto (collectively, the "Banks"). Unless otherwise defined herein,
capitalized terms used herein shall have the meanings ascribed to them in the
Reimbursement Agreement (as defined below).
WITNESSETH:
WHEREAS, the undersigned are parties to that certain Amended
and Restated Letter of Credit and Reimbursement Agreement dated as of September
19, 2002 (as previously amended, the "Reimbursement Agreement"); and
WHEREAS, the Obligors have requested that the Administrative
Agent, the Fronting Bank and the Banks agree (i) to extend the Stated Expiration
Date of each Letter of Credit currently in effect, pursuant to the terms and
conditions of Section 2.15 of the Reimbursement Agreement, and (ii) to make
certain modifications to the terms of the Reimbursement Agreement, and the
Administrative Agent, the Fronting Bank and the Banks have agreed to grant such
extension and to make such modifications, on the terms and conditions set forth
in this Third Amendment.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth herein, the premises set forth above (which are
incorporated herein by this reference) and for other good and valuable
consideration, the receipt and sufficiency of which hereby are acknowledged, the
undersigned agree as follows:
1. Extension of the Stated Expiration Date of each Letter of
Credit. Pursuant to the provisions of Section 2.15 of the Reimbursement
Agreement, the undersigned agree as follows:
a. By notice to the Administrative Agent, given more than ninety (90)
days before the Stated Expiration Date of each Letter of Credit
currently in effect, the Obligors have requested the Fronting Bank, with
the consent of all of the Banks, to extend the Stated Expiration Date of
each such Letter of Credit to September 19, 2007.
b. The Fronting Bank and the Banks have elected to so extend the
Stated Expiration Date for each such Letter of Credit currently in
effect and have requested that the Administrative Agent deliver to the
Obligors a Notice of Extension designating the date to which the Stated
Expiration Date for each such Letter of Credit shall be extended and the
conditions for the consent of the Fronting Bank and the Banks.
c. Upon satisfaction of all conditions set forth in the Notice of
Extension, all references in the Reimbursement Agreement to the Stated
Expiration Date as to each such Letter of Credit currently in effect
shall be deemed to be references to the date of September 19, 2007, as
such date may be further extended in accordance with Section 2.15 of
the Reimbursement Agreement.
2. Amendments to Reimbursement Agreement. The Reimbursement
Agreement is amended as follows:
a. In Section 1.01 of the Reimbursement Agreement, the definition of
"Applicable Margin" is amended by deleting the pricing grid set forth
therein in its entirety and replacing it with the following:
Applicable Applicable
Basis for Pricing - LIBOR Rate Applicable Letter of
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Level Senior Debt Rating Margin Unused Fee Credit Fee
------------ ------------------------------ ----------------- --------------- -----------------
1 Greater than or equal to 0.750% 0.125% 0.750%
A-/A3
------------ ------------------------------ ----------------- --------------- -----------------
2 Less than Xxxxx 0, but at 0.875% 0.150% 0.875%
least BBB+/Baa1
------------ ------------------------------ ----------------- --------------- -----------------
3 Less than Xxxxx 0, but at 1.000% 0.175% 1.000%
least BBB/Baa2
------------ ------------------------------ ----------------- --------------- -----------------
4 Less than Xxxxx 0 1.250% 0.225% 1.250%
------------ ------------------------------ ----------------- --------------- -----------------
b. In Section 1.01 of the Reimbursement Agreement, the definition of
"Permitted Indebtedness" is amended by deleting the reference to the
amount of "$120,000,000" in item (2) of said definition and replacing it
with a reference to the amount of "$150,000,000."
c. In Section 1.01 of the Reimbursement Agreement, the definition of
"Permitted Liens" is amended by deleting the reference to the amount of
"$5,000,000" in item (6) of said definition and replacing it with a
reference to the amount of "$10,000,000."
d. The following new Section (m) is added at the end of Section 5.01
of the Reimbursement Agreement:
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(m) OFAC Compliance. Comply with any obligations that
it may have under the laws of the United States of America,
including without limitation, the USA Patriot Act, all laws
and executive orders administered by the Office of Foreign
Asset Control, Department of the Treasury ("OFAC") and all
regulations promulgated and executive orders having the force
of law issued pursuant thereto, as amended or supplemented
from time to time (collectively, "AML and Anti-Terrorist
Acts"). In the event that any Obligor becomes aware that it is
not in compliance with any applicable AML and Anti-Terrorist
Acts, then such Obligor shall notify the Administrative Agent
and diligently take all actions required thereunder to become
compliant. Each Obligor represents and warrants to the
Administrative Agent that such Obligor is not listed on the
specially Designated Nationals and Blocked Persons List
maintained by OFAC pursuant to Executive Order No. 13224, 66
Fed. Reg. 49079 (Sept. 25, 2001), and/or any other list
maintained pursuant to any of the rules and regulations of
OFAC or pursuant to any other applicable Executive Orders or
otherwise subject to sanction under an OFAC implemented
regulation.
3. Representations and Warranties. The Obligors hereby represent
and warrant that:
a. They have taken all necessary action to authorize the execution,
delivery and performance of this Third Amendment.
b. The representations and warranties contained in Article IV of the
Reimbursement Agreement are true, correct and complete as of the date
hereof as if made on and as of the date hereof and as if each reference
in said Article IV to "this Agreement" includes a reference to this
Third Amendment and to the Reimbursement Agreement, as amended by this
Third Amendment.
c. No Default or Event of Default has occurred and is continuing on
the date hereof, before or after giving effect to this Third Amendment.
4. Conditions Precedent. This Third Amendment shall become
effective as of the date hereof, upon the satisfaction of the following
conditions precedent:
a. Execution By All Parties. This Third Amendment shall have been
executed and delivered by each of the parties hereto.
b. Existence and Authority Documents. The Administrative Agent and
the Banks shall have received all documentation that they may reasonably
request relating to the existence of each of the Obligors, the company
or corporate, as applicable, authority for and the validity of this
Third Amendment, the Reimbursement Agreement as amended hereby, and any
other matters relevant hereto, all in form and substance satisfactory to
the Administrative Agent, the Fronting Bank and the Banks, including
without limitation a certificate of incumbency of each of the Obligors,
signed by a Secretary or an Assistant Secretary, certifying as to the
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names, true signatures and incumbency of the officers authorized to
execute and deliver this Third Amendment and each other document to be
executed, delivered by each of the Obligors from time to time in
connection with the Reimbursement Agreement as amended hereby, and
certified copies of the following items with respect to each of the
Obligors: (i) Articles of Organization or Incorporation, as applicable
(or, in the alternative, a certification that none of such documents
have been modified since delivery thereof in connection with the
execution and delivery of the Reimbursementn Agreement), (ii) Operating
Agreement or By-laws, as applicable (or, in the alternative, a
certification that none of such documents have been modified since
delivery thereof in connection with the execution and delivery of the
Reimbursement Agreement), (iii) a Good Standing Certificate issued by
the Department of Treasury of the State of New Jersey, and (iv) the
resolutions adopted by the members or board of directors, as applicable,
authorizing the execution, delivery and performance of this Third
Amendment and each other document to be executed, delivered and
performed by such Obligor from time to time in connection with the
Reimbursement Agreement as amended hereby.
c. Opinion of Counsel. The Administrative Agent shall have received an
opinion letter of Cozen X'Xxxxxx, counsel to the Obligors, as to such
matters as the Administrative Agent shall reasonably request, addressed
to the Administrative Agent, the Fronting Bank and the Banks.
d. Other Documents. The Administrative Agent shall have received such
other documents, approvals and opinions as the Administrative Agent,
the Fronting Bank and the Banks may reasonably request.
e. Fees. The Administrative Agent shall have received (for its own
account and the account of the Banks, as applicable) all of the fees
required to be received in connection with this Third Amendment,
including, without limitation, the fees set forth in that certain Fee
Arrangement Letter dated July 7, 2004, among the Administrative Agent,
Wachovia Capital Markets, LLC, and the Obligors.
5. Expenses. The Obligors shall pay (a) all out-of-pocket expenses
of the Administrative Agent (including reasonable fees and disbursements of
counsel for the Administrative Agent) in connection with the preparation of
this Third Amendment and any other instruments or documents to be delivered
hereunder, any waiver or consent hereunder or thereunder or any amendment hereof
or thereof; and (b) if an Event of Default occurs, all out-of-pocket expenses
incurred by the Administrative Agent and each of the Banks, including fees and
disbursements of counsel for the Administrative Agent and each of the Banks, in
connection with such Event of Default and collection and other enforcement
proceedings resulting therefrom, including out-of-pocket expenses incurred in
enforcing the Reimbursement Agreement as amended by this Third Amendment, and
each Related Document.
6. Successors and Assigns. This Third Amendment shall be binding
upon and inure to the benefit of each of the parties hereto and its respective
successors and assigns. The successor and assigns of such entities shall
include, without limitation, their respective receivers, trustees, or
debtors-in-possession.
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7. Further Assurances. The Obligors hereby agree from time to
time, as and when requested by the Administrative Agent, to execute and deliver
or cause to be executed and delivered, all such documents, instruments and
agreements and to take or cause to be taken such further or other action as the
Administrative Agent may reasonably deem necessary in order to carry out the
intent and purposes of this Third Amendment.
8. Ratification. Except as herein provided, the Reimbursement
Agreement shall remain unchanged and shall continue to be in full force and
effect and is hereby ratified and confirmed in all respects. It is the intention
and understanding of the parties hereto that this Third Amendment shall act as
an amendment to the Reimbursement Agreement and shall not act as a novation of
the indebtedness evidenced by the Reimbursement Agreement.
9. General. References (i) in the Reimbursement Agreement to "this
Agreement" (and indirect references such as "hereunder," "hereof" and words of
like import referring to the Reimbursement Agreement), and (ii) in the Related
Documents to "the Reimbursement Agreement" (and indirect references such as
"thereunder," "thereof" and words of like import referring to the Reimbursement
Agreement) shall be deemed to be references to the Reimbursement Agreement as
amended by this Third Amendment.
10. Definitions. All references to the singular shall be deemed to
include the plural and vice versa where the context so requires.
11. Governing Law. THIS THIRD AMENDMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING
EFFECT TO NEW YORK CHOICE OF LAW PRINCIPLES.
12. Severability. Wherever possible, each provision of this Third
Amendment shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Third Amendment shall be prohibited
by or invalid under such law, then such provision shall be ineffective to the
extent of such prohibition or invalidity without invalidating the remainder of
such provision or the remaining provisions of this Third Amendment.
13. Execution in Counterparts. This Third Amendment may be executed
in any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.
14. Section Headings. The section headings herein are for
convenience of reference only, and shall not affect in any way the
interpretation of any of the provisions hereof.
[SIGNATURE PAGES FOLLOW]
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