LETTER OF CREDIT REIMBURSEMENT AGREEMENT Dated as of December 20, 2007, among SOUTH JERSEY INDUSTRIES, INC., as Borrower and THE SEVERAL LENDERS FROM TIME TO TIME PARTY HERETO and JPMORGAN CHASE BANK, N.A., as Administrative Agent
Exhibit
10(g)(iii)
Dated
as of December 20, 2007,
among
SOUTH
JERSEY INDUSTRIES, INC.,
as
Borrower
and
THE
SEVERAL LENDERS FROM
TIME
TO TIME PARTY HERETO
and
JPMORGAN
CHASE BANK, N.A.,
as
Administrative Agent
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ARTICLE
I
DEFINITIONS.................................................................................................................................................................................................
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1
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SECTION
1.01
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1
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SECTION
1.02
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12
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SECTION
1.03
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12
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SECTION
1.04
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12
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ARTICLE
II CERTAIN ADMINISTRATIVE
MATTERS.............................................................................................................................................
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13
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SECTION
2.01
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[Reserved]........................................................................................................................................................
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13
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SECTION
2.02
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[Reserved]........................................................................................................................................................
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13
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SECTION
2.03
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[Reserved]........................................................................................................................................................
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13
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SECTION
2.04
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[Reserved]........................................................................................................................................................
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13
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SECTION
2.05
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[Reserved]........................................................................................................................................................
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13
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SECTION
2.06
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[Reserved]........................................................................................................................................................
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13
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SECTION
2.07
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[Reserved]........................................................................................................................................................
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13
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SECTION
2.08
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[Reserved]........................................................................................................................................................
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13
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SECTION
2.09
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[Reserved]........................................................................................................................................................
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13
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SECTION
2.10
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Payments..........................................................................................................................................................
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13
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SECTION
2.11
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[Reserved]........................................................................................................................................................
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13
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SECTION
2.12
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[Reserved]........................................................................................................................................................
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13
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SECTION
2.13
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[Reserved]........................................................................................................................................................
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13
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SECTION
2.14
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13
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SECTION
2.15
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[Reserved]........................................................................................................................................................
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14
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SECTION
2.16
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14
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SECTION
2.17
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Net
of Taxes,
Etc..............................................................................................................................................
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15
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SECTION
2.18
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[Reserved]........................................................................................................................................................
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16
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SECTION
2.19
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[Reserved]........................................................................................................................................................
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16
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SECTION
2.20
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[Reserved]........................................................................................................................................................
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16
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ARTICLE
III LETTER OF CREDIT
FACILITY...............................................................................................................................................................
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17
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SECTION
3.01
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17
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SECTION
3.02
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17
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SECTION
3.03
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18
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SECTION
3.04
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L/C
Participations..........................................................................................................................................
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18
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SECTION
3.05
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19
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SECTION
3.06
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20
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ARTICLE
IV CONDITIONS
PRECEDENT......................................................................................................................................................................
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21
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SECTION
4.01
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Conditions
Precedent to the Execution and Delivery of this
Agreement.............................................
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21
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SECTION
4.02
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[Reserved]........................................................................................................................................................
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23
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SECTION
4.03
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[Reserved]........................................................................................................................................................
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23
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i
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SECTION
4.04
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23
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24
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SECTION
5.01
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24
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ARTICLE
VI COVENANTS OF THE
COMPANY.........................................................................................................................................................
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28
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28
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SECTION
6.02
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30
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SECTION
6.03
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31
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SECTION
6.04
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33
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ARTICLE
VII EVENTS OF
DEFAULT............................................................................................................................................................................
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34
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SECTION
7.01
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34
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SECTION
7.02
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Upon
an Event of
Default..............................................................................................................................
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35
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SECTION
7.03
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36
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ARTICLE
VIII
RESERVED.................................................................................................................................................................................................
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37
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ARTICLE
IX THE ADMINISTRATIVE
AGENT...........................................................................................................................................................
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38
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38
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SECTION
9.02
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38
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SECTION
9.03
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38
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SECTION
9.04
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39
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SECTION
9.05
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39
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SECTION
9.06
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Non
Reliance on Administrative Agent and Other
Lenders...................................................................
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39
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SECTION
9.07
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Indemnification...............................................................................................................................................
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40
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SECTION
9.08
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Administrative
Agent in Its Individual
Capacity......................................................................................
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40
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SECTION
9.09
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40
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SECTION
9.10
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Issuing
Lender.................................................................................................................................................
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41
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SECTION
9.11
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41
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ARTICLE
X
MISCELLANEOUS......................................................................................................................................................................................
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42
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SECTION
10.01
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42
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SECTION
10.02
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42
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SECTION
10.03
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44
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SECTION
10.04
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Set
off.................................................................................................................................................................
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44
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SECTION
10.05
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Indemnification...............................................................................................................................................
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45
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SECTION
10.06
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45
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SECTION
10.07
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46
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SECTION
10.08
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47
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SECTION
10.09
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47
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SECTION
10.10
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Severability......................................................................................................................................................
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49
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SECTION
10.11
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49
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ii
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SECTION
10.12
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Headings..........................................................................................................................................................
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50
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SECTION
10.13
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50
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SECTION
10.14
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Acknowledgments..........................................................................................................................................
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50
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SECTION
10.15
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51
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SECTION
10.16
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Confidentiality................................................................................................................................................
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51
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SECTION
10.17
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52
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SECTION
10.18
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52
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EXHIBITS
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Exhibit
A
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Form
of Opinion of Counsel to the Borrower
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Exhibit
B
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Form
of Assignment and Acceptance
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Exhibit
C
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Form
of Compliance Certificate
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SCHEDULES
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Schedule
I
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Lenders,
Applicable Lending Offices, Commitments and Initial Commitment
Percentages
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Schedule
II
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Ownership
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Schedule
III
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Letter
of Credit
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iii
This
LETTER OF CREDIT REIMBURSEMENT
AGREEMENT (as it may be amended, supplemented or otherwise modified in
accordance with the terms hereof at any time and from time to time, this “Agreement”)
dated as of December 20, 2007, among SOUTH JERSEY INDUSTRIES, INC.,
a New Jersey corporation (the “Borrower”),
the several banks and other financial institutions from time to time parties to
this Agreement (each a “Lender”
and collectively, the “Lenders”),
and JPMORGAN CHASE BANK,
N.A., a national banking association organized and existing under the
laws of the United States of America (“JPMCB”),
as administrative agent for the Lenders hereunder (in such capacity, together
with its successors and permitted assigns in such capacity, the “Administrative
Agent”).
PRELIMINARY
STATEMENTS
WHEREAS,
the Borrower has requested that JPMCB, as Issuing Lender, issue and that the Lenders participate
in the Letter of Credit; and
WHEREAS,
the Lenders are willing, on the terms and subject to the conditions set forth in
this Agreement, to extend credit under this Agreement as more particularly
hereinafter set forth.
NOW,
THEREFORE, in consideration of the mutual agreements, provisions and covenants
contained herein, the parties agree as follows:
ARTICLE
I
DEFINITIONS
SECTION
1.01 Certain Defined
Terms. As used in this Agreement, the following terms shall
have the following meanings (such meanings to be equally applicable to both the
singular and plural forms of the terms defined):
“Administrative
Agent” has the meaning assigned to that term in the preamble
hereto.
“AML and
Anti-Terrorist Acts” has the meaning assigned to that term in Section
6.01(m).
“Affiliate”
means, with respect to any Person, any other Person directly or indirectly
controlling (including but not limited to all directors and officers of such
Person), controlled by, or under direct or indirect common control with such
Person. A Person shall be deemed to control another entity if such Person
possesses, directly or indirectly, the power to direct or cause the direction of
the management and policies of such entity, whether through the ownership of
voting securities, by contract, or otherwise.
“Agreement”
means this Letter of Credit Reimbursement Agreement, as it may be amended,
supplemented or otherwise modified in accordance with the terms hereof at any
time and from time to time.
1
“Applicable
Law” means
all applicable laws, statutes, treaties, rules, codes, ordinances, regulations,
permits, certificates, orders, interpretations, licenses, and permits of any
Governmental Authority and judgments, decrees, injunctions, writs, orders or
like action of any court, arbitrator or other judicial or quasi–judicial
tribunal (including, without limitation, those pertaining to health, safety, the
environment or otherwise).
“Applicable
Lending Office” means, with respect to
any Lender, the office of such Lender specified as such opposite its name on
Schedule I
hereto or in the Assignment and Acceptance pursuant to which it became a Lender,
or such other office of such Lender as such Lender may from time to time specify
to the Borrower and the Administrative Agent.
“Applicable
Margin” means the rate per annum equal to 0.55%.
“Application” means an application, in the form
specified by the Issuing Lender from time to time, requesting the Issuing Lender
to issue the Letter of Credit.
“Assignment and
Acceptance” means an Assignment and Acceptance executed in accordance
with Section
10.09 in the form attached hereto as Exhibit
B.
“Bankruptcy
Code” means Title 11 of the United States Code, as now constituted or
hereafter amended.
“Base Rate”
means, for any period, a fluctuating interest rate per annum as shall be in
effect from time to time, which rate per annum shall at all times be equal to
the higher of (i) the Prime Rate in effect on such day; and (ii) 1/2 of one
percent per annum above the Federal Funds Rate in effect from time to
time. Any change in the Base Rate due to a change in the Prime Rate
or the Federal Funds Effective Rate shall be effective from and including the
effective date of such change in the Prime Rate or the Federal Funds Effective
Rate, respectively.
“Benefited Lender”
has the meaning assigned to that term in Section
10.04(b).
“Borrower”
has the meaning assigned to that term in the preamble hereto.
“Business
Day” means any day that is not a Saturday, Sunday or other day on which
commercial banks in New York City are authorized or required by law to remain
closed.
“Capital
Lease” means any lease which is required to be capitalized on a balance
sheet of the lessee in accordance with GAAP, consistently applied.
“Capital
Stock” means, with respect
to any Person, any and all shares, interests, rights to purchase, warrants,
options, participations or other equivalents of or interests in (however
designated) equity of such Person, including any preferred interest, any limited
or general partnership interest and any limited liability company membership
interest.
2
“Change in
Control” means the occurrence of
either of the following: (i) any entity, person (within the meaning of Section
14(d) of the Securities Exchange Act of 1934, as amended (the “Exchange
Act”) or group (within the meaning of Section 13(d)(3) or 14(d)(2) of the
Exchange Act) which theretofore was beneficial owner (as defined in Rule 13d-3
under the Exchange Act) of less than 20% of the Borrower’s then outstanding
common stock either (x) acquires shares of common stock of the Borrower in a
transaction or series of transactions that results in such entity, person or
group directly or indirectly owning beneficially 20% or more of the outstanding
common stock of the Borrower, or (y) acquires, by proxy or otherwise, the right
to vote for the election of directors, for any merger, combination or
consolidation of the Borrower or any of its direct or indirect Subsidiaries, or,
for any other matter or question, more than 20% of the then outstanding voting
securities of the Borrower; or (ii) 20% or more of the directors of the board of
directors of the Borrower fail to consist of Continuing Directors.
“Closing
Date” means December 20, 2007.
“Code”
means the Internal Revenue Code of 1986, as amended from time to time, and the
regulations promulgated and rulings issued thereunder.
“Commitment” means (i) with respect
to the Lenders, the aggregate amount of the Commitments of the Lenders as set
forth on Schedule
I, and (ii) with respect to a Lender, the amount of the Commitment of
such Lender as set forth on Schedule I, as such
amounts may be modified in accordance with Section
10.09.
“Commitments”
means the total of the Lenders’ Commitments.
“Commitment
Percentage” means
for each Lender, a fraction (expressed as a decimal) the numerator of which is
the Commitment of such Lender at such time and the denominator of which are the
Commitments of all of the Lenders at such time. The initial
Commitment Percentage of each Lender is set out on Schedule
I.
“Compliance
Certificate”
means a certificate substantially in the form of Exhibit C.
“Consolidated”
means, when used with reference to any accounting term, the amount described by
such accounting term, determined on a consolidated basis in accordance with
GAAP, after elimination of intercompany items.
“Consolidated
Total Capitalization” means the sum of (i) Indebtedness of the Borrower
and its Consolidated Subsidiaries, plus (ii) the sum of the
Capital Stock (excluding treasury stock and capital stock subscribed for and
unissued) and surplus (including earned surplus, capital surplus, translation
adjustment and the balance of the current profit and loss account not
transferred to surplus) accounts of the Borrower and its Consolidated
Subsidiaries appearing on a consolidated balance sheet of the Borrower and its
Consolidated Subsidiaries, in each case prepared as of the date of determination
in accordance with GAAP consistent with those applied in the preparation of the
financial statements referred to in Section 4.01(f),
after eliminating all intercompany transactions and all amounts properly
attributable to minority interests, if any, in the stock and surplus of
Subsidiaries.
3
“Continuing
Director” means, with respect to any Person as of any date of
determination, any member of the board of directors of such Person who (a) was a
member of such board of directors on the Closing Date, or (b) was nominated for
election or elected to such board of directors with the approval of a majority
of the Continuing Directors who were members of such board at the time of such
nomination or election.
“Default” means any event or
condition that would constitute an Event of Default but for the requirement that
notice be given or time elapse or both.
“Default
Rate” means a per annum rate equal to 2% greater than the Base
Rate.
“Disclosure
Documents” means the Borrower’s
Annual Report on Form 10-K for the year ended December 31, 2006, its Quarterly
Reports on Form 10-Q for the quarters ended March 31, 2007, June 30, 2007
and September 30, 2007, and any Current Report on Form 8-K delivered to the
Lenders at least three (3) Business Days prior to the date of this
Agreement.
“Dollar” or
“$”
means dollars in lawful currency of the United States of America.
“Eligible
Assignee” means, with respect to any assignment of the rights, interest
and obligations of a Lender hereunder, a Person that is at the time of such
assignment (a) a commercial bank organized or licensed under the laws of the
United States or any state thereof, having combined capital and surplus in
excess of $500,000,000, (b) a commercial bank organized under the laws of any
other country that is a member of the Organization of Economic Cooperation and
Development, or a political subdivision of any such country, having combined
capital and surplus in excess of $500,000,000, (c) a finance company, insurance
company or other financial institution which in the ordinary course of business
extends credit of the type extended hereunder and that has total assets in
excess of $1,000,000,000, (d) a Lender hereunder (whether as an original party
to this Agreement or as the assignee of another Lender), (e) an Affiliate or
Subsidiary of a Lender (whether as an original party to this Agreement or as the
assignee of another Lender) hereunder that does not otherwise qualify as an
Eligible Assignee provided such Lender continues to be obligated under this
Agreement, (f) the successor (whether by transfer of assets, merger or
otherwise) to all or substantially all of the commercial lending business of the
assigning Lender, or (g) any other Person that has been approved in writing as
an Eligible Assignee by the Administrative Agent and, if no Default or Event of
Default exists and is continuing, by the Borrower.
“Environmental
Laws” means
any federal, state or local laws, ordinances or codes, rules, orders, or
regulations relating to pollution or protection of the environment, including,
without limitation, laws relating to hazardous substances, laws relating to
reclamation of land and waterways and laws relating to emissions, discharges,
releases or threatened releases of pollutants, contaminants, chemicals, or
industrial, toxic or hazardous substances or wastes into the environment
(including, without limitation, ambient air, surface water, ground water, land
surface or subsurface strata) or otherwise relating to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport or
handling of pollution, contaminants, chemicals, or industrial, toxic or
hazardous substances or wastes.
4
“ERISA” means the Employee
Retirement Income Security Act of 1974, as amended from time to
time.
“ERISA
Affiliate” means any Person which for purposes of Title IV of ERISA is a
member of the Borrower’s controlled group, or under common control with the
Borrower, within the meaning of Section 414 of the Code, and the regulations
promulgated and rulings issued thereunder.
“ERISA
Event” means (i) the occurrence of a reportable event, within the meaning
of Section 4043 of ERISA, unless the 30-day notice requirement with respect
thereto has been waived by the PBGC; (ii) the provision by the administrator of
any Plan of a notice of intent to terminate such Plan, pursuant to Section
4041(a)(2) of ERISA (including any such notice with respect to a plan amendment
referred to in Section 404l(e) of ERISA); (iii) the cessation of operations at a
facility in the circumstances described in Section 4062(e) of ERISA; (iv) the
withdrawal by the Borrower or an ERISA Affiliate from a Multiemployer Plan
during a plan year for which it was a “substantial employer” as defined in
Section 4001(a)(2) of ERISA; (v) the failure by the Borrower or any ERISA
Affiliate to make a payment to a Plan required under Section 302 of ERISA, which
results in a lien pursuant to Section 302(f) of ERISA; (vi) the adoption of an
amendment to a Plan requiring the provision of security to such Plan, pursuant
to Section 307 of ERISA; or (vii) the institution by the PBGC of proceedings to
terminate a Plan, pursuant to Section 4042 of ERISA, or the occurrence of any
event or condition which might reasonably constitute grounds under Section 4042
of ERISA for the termination of, or the appointment of a trustee to administer,
a Plan by the PBGC.
“Event of
Default” has the meaning
assigned to that term in Section
7.01.
“Existing Credit
Facility” means that certain Five-Year Revolving Credit Agreement, dated
as of August 22, 2006, among the Borrower, the lenders referred to therein and
Wachovia Bank, National Association, as administrative agent (as such agreement
has been amended or supplemented from time to time).
“Federal Funds
Rate” means, for any period, a fluctuating interest rate per annum equal
for each day during such period to the weighted average of the rates on
overnight Federal funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers, as published for such day (or, if such day is
not a Business Day, for the next preceding Business Day) by the Federal Reserve
Lender of New York, or, if such rate is not so published for any day which is a
Business Day, the average of the quotations for such day on such transactions
received by the Administrative Agent from three Federal funds brokers of
recognized standing selected by it.
“GAAP”
means generally accepted accounting principles, as recognized by the American
Institute of Certified Public Accountants and the Financial Accounting Standards
Board, consistently applied and maintained on a consistent basis for the
Borrower and its Consolidated Subsidiaries throughout the period indicated and
consistent with the prior financial practice of the Borrower and its
Consolidated Subsidiaries.
5
“Governmental
Action” means all authorizations, consents, approvals, waivers,
exceptions, variances, orders, licenses, exemptions, publications, filings,
notices to and declarations of or with any Governmental Authority, other than
routine reporting requirements the failure to comply with which will not affect
the validity or enforceability of this Agreement or any other Loan Document or
have a material adverse effect on the transactions contemplated by this
Agreement or any other Loan Document.
“Governmental
Authority” means any nation or
government, any state or other political subdivision thereof and any entity
exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government.
“Hazardous
Materials” means any petrochemical or petroleum products, any flammable
materials, explosives, radioactive materials, hazardous materials, hazardous
wastes, hazardous or toxic substances, or related or similar materials, asbestos
or any material containing asbestos, or any other substance or material as so
defined and regulated by any Federal, state or local environmental law,
ordinance, rule, or regulation including, without limitation, the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980, as amended (42
U.S.C. Sections 9601, et seq.), the Hazardous Materials Transportation Act, as
amended (49 U.S.C. Sections 1801, et seq.), and the Resource Conservation and
Recovery Act, as amended (42 U.S.C. Sections 6901, et seq.), and the regulations
adopted and publications promulgated pursuant thereto.
“Hedging
Obligations” means, with respect to any Person, the obligations of such
Person under any interest rate or currency swap agreement, interest rate or
currency future agreement, interest rate collar agreement, swap agreement (as
defined in 11 U.S.C. § 101), interest rate or currency hedge agreement, and any
put, call or other agreement or arrangement designed to protect such Person
against fluctuations in interest rates or currency exchange rates.
“Indebtedness”
means, for any Person, all obligations of such Person which in accordance with
GAAP should be classified on a balance sheet of such Person as liabilities of
such Person, and in any event shall include, without duplication, all (i)
indebtedness for borrowed money, (ii) obligations evidenced by bonds,
debentures, notes or other similar instruments, (iii) obligations to pay the
deferred purchase price of property or services, (iv) obligations as lessee
under leases which shall have been or should be, in accordance with GAAP,
recorded as capital leases, (v) obligations as lessee under operating leases
which have been recorded as off-balance sheet liabilities, (vi) obligations
under Hedging Obligations, (vii) reimbursement obligations (contingent or
otherwise) in respect of outstanding letters of credit, (viii) indebtedness of
the type referred to in clauses (i) through (vi) above secured by (or for which
the holder of such indebtedness has an existing right, contingent or otherwise,
to be secured by) any lien or encumbrance on, or security interest in, property
(including, without limitation, accounts and contract rights) owned by such
Person, even though such Person has not assumed or become liable for the payment
of such indebtedness, and (ix) obligations under direct or indirect guaranties
in respect of, and obligations (contingent or otherwise) to purchase or
otherwise acquire, or otherwise to assure a creditor against loss in respect of,
indebtedness or obligations of others of the kinds referred to in clauses (i)
through (vii) above.For the avoidance of doubt and
notwithstanding anything to the contrary set forth above, Permitted Hedging
Obligations and Capital Stock, including Capital Stock having a preferred
interest, shall not constitute Indebtedness for purposes of this
Agreement.
6
“Information”
has the meaning assigned to that term in Section
10.16(b).
“ISP
98” means the International
Standby Practices (1998 Revision, effective January 1, 1999),
International Chamber of Commerce Publication No. 590.
“Issuing
Lender” means JPMCB, in its
capacity as issuer of the Letter of Credit, or any successor
thereto.
“JPMCB” has
the meaning assigned to that term in the preamble hereto.
“L/C
Commitment” means
the aggregate amount of all Commitments under this Agreement.
“L/C
Facility” means
the letter of credit facility established pursuant to Article
III.
“L/C
Obligations” means at any time, an amount equal to the sum of (a) the
aggregate undrawn and unexpired amount of the Letter of Credit and (b) the
aggregate amount of drawings under the Letter of Credit which have not then been
reimbursed pursuant to Section
3.05.
“L/C
Participants” means
the collective reference to all the Lenders other than the Issuing
Lender.
“Lenders”
has the meaning assigned to that term in the preamble hereto, and, in each case,
includes their respective successors and permitted assigns.
“Letter of
Credit” that certain letter of
credit issued on the Closing Date in the original face amount of $30,690,411.00,
in substantially the form of Schedule III attached
hereto.
“Lien” means, with respect to
any asset, any mortgage, lien, pledge, charge, security interest or encumbrance
of any kind in respect of such asset. For the purposes of this
Agreement, a Person or any of its Subsidiaries shall be deemed to own, subject
to a Lien, any asset that it has acquired or holds subject to the interest of a
vendor or lessor under any conditional sale agreement, capital lease or other
title retention agreement relating to such asset.
“Loan
Documents” means
this Agreement, the Application and any other document evidencing, relating to
or securing any L/C Obligation, and any other document or instrument delivered
from time to time in connection with this Agreement or the Letter of Credit, as
such documents and instruments may be amended or supplemented from time to
time.
“Marina” means Marina Energy LLC, a New
Jersey limited liability company.
7
“Material
Adverse Change” means (a) a
materially adverse change in the business, assets, liabilities (actual or
contingent), operations, condition (financial or otherwise) or prospects of (i)
the Borrower or (ii) the Borrower and its Subsidiaries, taken as a whole, (b)
any material impairment of the ability of the Borrower to perform any of its
Obligations under this Agreement, any other Loan Document or (c) any material
impairment of the rights of, or benefits available to, the Administrative Agent,
the Issuing Lender or the Lenders under this Agreement, any other Loan
Document.
“Moody’s” means Xxxxx’x Investors
Service, Inc., or any successor thereto.
“Multiemployer
Plan” means a multiemployer plan, as defined in Section 4001(a)(3) of
ERISA, which is subject to Title IV of ERISA and to which the Borrower or any
ERISA Affiliate is making or accruing an obligation to make contributions, or
has within any of the preceding five plan years made or accrued an obligation to
make contributions, such plan being maintained pursuant to one or more
collective bargaining agreements.
“Multiple Employer
Plan” means a single employer plan, as defined in Section 4001(a)(15)
of ERISA, which is subject to Title IV of ERISA and which (i) is maintained for
employees of the Borrower or an ERISA Affiliate and at least one Person other
than the Borrower and its ERISA Affiliates or (ii) was so maintained and in
respect of which the Borrower or an ERISA Affiliate could have liability under
Section 4064 or
4069 of ERISA
in the event such plan has been or were to be terminated.
“Obligations”
means, in each case, whether now
in existence or hereafter arising: (a) the principal of and interest on
(including interest accruing after the filing of any bankruptcy or similar
petition) the L/C Obligations, (b) all payment and other obligations owing by
the Borrower to any Lender or the Administrative Agent under any other agreement
to which a Lender is a party (or any Affiliate of a Lender) which is related to
and permitted under this Agreement, any of the other Loan Documents, and (c) all
other fees and commissions (including attorney’s fees), charges, indebtedness,
loans, liabilities, financial accommodations, obligations, covenants and duties
owing by the Borrower or any Subsidiary to the Lenders, the Issuing Lender, or
the Administrative Agent, in each case under or in respect of this Agreement,
the Letter of Credit, any of the other Loan Documents of every kind, nature and
description, direct or indirect, absolute or contingent, due or to become due,
contractual or tortious, liquidated or unliquidated, and whether or not
evidenced by any note, and whether or not for the payment of money under or in
respect of this Agreement, the Letter of Credit, any of the other Loan
Documents.
“OFAC” has
the meaning assigned to that term in Section
5.01(v).
“Participant”
has the meaning assigned to that term in Section
10.09(e).
“PBGC”
means the Pension Benefit Guaranty Corporation or any successor
thereto.
8
“Permitted
Commodity Xxxxxx” means obligations of the Borrower with respect to
commodity agreements or other similar agreements or arrangements entered into in
the ordinary course of business designed to protect against, or mitigate risks
with respect to, fluctuations of commodity prices to which the Borrower or any
Subsidiary is exposed to in the conduct of its business so long as (i) the
management of the Borrower has determined that entering into such agreements or
arrangements are bona fide hedging activities which comply with the Borrower’s
risk management policies and (ii) such agreements or arrangements are not
entered into for speculative purposes and are not of a speculative
nature.
“Permitted
Indebtedness” means any of
the following:
(1)
Indebtedness under the Existing Credit Facility and under this
Agreement;
(2)
Indebtedness (other than the type
described in clause (3) below) of the Borrower and its Subsidiaries (other than
South Jersey Gas) in an aggregate principal amount not to exceed $275,000,000
(inclusive of the type described in clause (1) above but excluding any
non-recourse debt of the Borrower and its Subsidiaries) at any time outstanding
so long as before and immediately after the incurrence of such Indebtedness, the
Borrower is in compliance with Section
6.04;
(3)
Indebtedness of the Borrower under Hedging Obligations covering a notional
amount not to exceed the face amount of outstanding Indebtedness;
(4)
Indebtedness of South Jersey Gas,
under that certain Five-Year Revolving Credit Agreement, dated as of August 3,
2006, among South Jersey Gas, the lenders party thereto, and Wachovia Bank,
National Association, as administrative agent on behalf of said lenders (as
amended to date, the “SJG
Credit Agreement”);
(5)
Indebtedness of South Jersey Gas
under the First Mortgage Notes (as defined in the SJG Credit Agreement) existing
as of August 3, 2006 and as identified on Schedule
IVto the SJG Credit Agreement, and
subsequent First Mortgage Notes, so long as before and immediately after the
incurrence of such Indebtedness, South Jersey Gas is in compliance with
Section
6.04of the SJG Credit
Agreement;
(6)
Indebtedness (other than the type
described in clause (7) below) of South Jersey Gas, so long as before and
immediately after the incurrence of such Indebtedness, South Jersey Gas is in
compliance with Section
6.04of the SJG Credit
Agreement;
(7)
Indebtedness of South Jersey Gas under Hedging Obligations covering a notional
amount not to exceed the face amount of such outstanding Indebtedness;
and
(8)
Permitted Commodity Xxxxxx.
9
“Permitted
Investments”
means (1) noncallable, direct general obligations of, or obligations the payment
of the principal of and interest on which are unconditionally guaranteed by, the
United States of America; (2) bonds, participation certificates or other
obligations of Federal National Mortgage Association, Government National
Mortgage Association and Federal Home Loan Mortgage Corporation; (3)
certificates of deposit, bankers’ acceptances or other obligations issued by
commercial banks which are fully insured by the Federal Deposit Insurance
Corporation or certificates of deposit, bankers’ acceptances or other deposit
obligations issued by commercial banks whose unsecured obligations are rated in
one of the two highest rating categories by Moody’s or Standard S&P; (4)
obligations issued or guaranteed by a state or political subdivision of a state
rated in one of the two highest rating categories by Moody’s or S&P; or (5)
any other investments permitted under this Agreement and which the
Administrative Agent has approved in writing.
“Permitted
Liens” means, with respect to any Person, any
of the following:
(1)
Liens for taxes, assessments or
governmental charges not delinquent or being contested in good faith and by
appropriate proceedings and for which adequate reserves in accordance with GAAP
are maintained on such Person’s books;
(2)
Liens arising out of deposits in
connection with workers’ compensation, unemployment insurance, old age pensions
or other social security or retirement benefits legislation;
(3)
Deposits or pledges to secure
bids, tenders, contracts (other than contracts for the payment of money),
leases, statutory obligations, surety and appeal bonds, and other obligations of
like nature arising in the ordinary course of such Person’s business, including,
without limitation, deposits and pledges of funds securing Permitted Commodity
Hedging Obligations;
(4)
Liens imposed by law, such as
mechanics’, workers’, materialmen’s, carriers’ or other like liens arising in
the ordinary course of such Person’s business which secure the payment of
obligations which are not past due or which are being diligently contested in
good faith by appropriate proceedings and for which adequate reserves in
accordance with GAAP are maintained on such Person’s books;
(5)
Rights of way, zoning
restrictions, easements and similar encumbrances affecting such Person’s real
property which do not materially interfere with the use of such
property;
(6)
Liens securing Permitted
Indebtedness of the type described in clauses (2) and (3) of the definition of
“Permitted Indebtedness,” not in excess of $15,000,000 in the
aggregate;
(7)
Liens securing Permitted
Indebtedness of the type described in clause (5) of the definition of “Permitted
Indebtedness”;
(8)
Liens securing Permitted
Indebtedness of the type described in clause (6) of the definition of “Permitted
Indebtedness,” not in excess of $12,500,000 in the aggregate;
and
10
(9)
Purchase money security interests
for the purchase of equipment to be used in such Person’s business, encumbering
only the equipment so purchased, and which secures only the purchase-money
Indebtedness incurred to acquire the equipment so purchased, which Indebtedness
qualifies as Permitted Indebtedness.
“Person”
means an individual, partnership, corporation (including, without limitation, a
business trust), joint stock company, limited liability company, trust,
unincorporated association, joint venture or other entity, or a government or
any political subdivision or agency thereof.
“Plan”
means a Single Employer Plan or a Multiple Employer Plan.
“Prime
Rate” means the rate of interest per annum publicly announced from time
to time by JPMCB as its prime rate in effect at its principal office in New York
City; each change in the Prime Rate shall be effective from and including the
date such change is publicly announced as being effective.
“Register”
has the meaning assigned to that term in Section
10.09(c).
“Required
Lenders” means Lenders whose aggregate Commitment Percentages total more
than 50%.
“S&P”
means Standard & Poor’s Ratings Services, a division of the XxXxxx-Xxxx
Companies, Inc., or any successor thereto.
“Significant
Subsidiary” means, with respect to
any Person, a Subsidiary which meets any of the following
conditions:
(a)
such Person’s and its other Subsidiaries’ investments in and advances to the
Subsidiary exceed 10% of the total assets of such Person and its Consolidated
Subsidiaries as of the end of the most recently completed fiscal
quarter;
(b)
such Person’s and its other Subsidiaries’ proportionate share (as determined by
ownership interests) of the total assets (after intercompany eliminations) of
the Subsidiary exceeds 10% of the total assets of such Person and its
Consolidated Subsidiaries as of the end of the most recently completed fiscal
quarter;
(c)
such Person’s and its other Subsidiaries’ proportionate share (as determined by
ownership interests) in the income from continuing operations before income
taxes, extraordinary items and cumulative effect of changes in accounting
principles of the Subsidiary exceeds 10% of such income of such Person and its
Consolidated Subsidiaries for the most recently completed fiscal quarter;
or
(d)
with respect to the Borrower, such Subsidiaries shall include, without
limitation, Marina and South Jersey Gas.
11
“Single Employer
Plan” means a single employer plan, as defined in Section 4001(a)(15) of
ERISA, which is subject to Title IV of ERISA and which (i) is maintained for
employees of the Borrower or an ERISA Affiliate and no Person other than the
Borrower and its ERISA Affiliates or (ii) was so maintained and in respect of
which the Borrower or an ERISA Affiliate could have liability under Section 4069
of ERISA in the event such plan has been or were to be terminated.
“Solvent”means, with respect to any Person, that
such Person (a) has capital sufficient to carry on its business and transactions
and all business and transactions in which it is about to engage and is able to
pay its debts as they mature, (b) owns property having a value, both at fair
valuation and at present fair saleable value, greater than the amount required
to pay its probable liabilities (including contingencies), and (c) does not
believe that it will incur debts or liabilities beyond its ability to pay such
debts or liabilities as they mature.
“South
Jersey Gas” means South
Jersey Gas Company, a New Jersey corporation.
“Stated
Termination Date”means November 1,
2010.
“Subsidiary”
means, with respect to any Person, any corporation or unincorporated entity of
which more than 50% of the outstanding capital stock (or comparable interest)
having ordinary voting power (irrespective of whether at the time capital stock
(or comparable interest) of any other class or classes of such corporation or
entity shall or might have voting power upon the occurrence of any contingency)
is at the time directly or indirectly owned by said Person (whether directly or
through one of more other Subsidiaries). In the case of an
unincorporated entity, a Person shall be deemed to have more than 50% of
interests having ordinary voting power only if such Person’s vote in respect of
such interests comprises more than 50% of the total voting power of all such
interests in the unincorporated entity.
“Taxes” has
the meaning assigned to that term in Section
2.17.
“Termination
Date” means the earliest of (a) the Stated Termination Date, and (b) the date of termination of the
Commitments pursuant to Section
7.02(a).
SECTION
1.02 Computation of
Time Periods. In
this Agreement, in the computation of a period of time from a specified date to
a later specified date, the word “from” means “from and including” and the words
“to” and “until” each means “to but excluding”.
SECTION
1.03 Accounting
Terms. All
accounting terms not specifically defined herein shall be construed in
accordance with GAAP, except as otherwise stated herein.
SECTION
1.04 Internal
References. The
words “herein”, “hereof” and “hereunder” and words of similar import, when used
in this Agreement, shall refer to this Agreement as a whole and not to any
provision of this Agreement, and “Article”, “Section”, “subsection”,
“paragraph”, “Exhibit”, “Schedule” and respective references are to this
Agreement unless otherwise specified. References herein or in any
Loan Document to any agreement or other document shall, unless otherwise
specified herein or therein, be deemed to be references to such agreement or
document as it may be amended, modified or supplemented after the date hereof
from time to time in accordance with the terms hereof or of such agreement or
document, as the case may be.
[End of
Article I]
12
ARTICLE
II
CERTAIN
ADMINISTRATIVE MATTERS
SECTION
2.01 [Reserved].
SECTION
2.02 [Reserved].
SECTION
2.03 [Reserved].
SECTION
2.04 [Reserved].
SECTION
2.05 [Reserved].
SECTION
2.06 [Reserved].
SECTION
2.07 [Reserved].
SECTION
2.08 [Reserved].
SECTION
2.09 [Reserved].
SECTION
2.10 Payments.
(a)
Intentionally
Omitted.
(b)
Intentionally
Omitted.
(c)
Intentionally
Omitted.
(d)
Intentionally
Omitted.
(e)
Payments. The
Borrower shall make each payment hereunder not later than 12:00 noon (New York
City time) on the day when due in lawful money of the United States of America
to the Administrative Agent at its address referred to in Section 10.02 in same
day funds. The Administrative
Agent shall distribute any such payments received by it for the account of any
other Person to the appropriate recipient promptly following receipt
thereof.
(f)
Intentionally
Omitted.
SECTION
2.11 [Reserved].
SECTION
2.12 [Reserved].
SECTION
2.13 [Reserved].
SECTION
2.14 Increased Costs.
13
(a)
If any Lender determines that compliance with any law or regulation or any
guideline or request from any central bank or other governmental authority
(whether or not having the force of law), in any case promulgated, implemented
or occurring on or after the date hereof, affects or would affect the amount of
capital required or expected to be maintained by any such Lender or any
corporation controlling any such Lender and that the amount of such capital is
increased by or based upon the existence of such Lender’s Commitment hereunder
and other Commitments, then, upon demand by any such Lender, as the case may be
(with a copy of such demand to the Administrative Agent), the Borrower shall
immediately pay to such Lender, as the case may be, from time to time as
specified by such Lender, additional amounts sufficient to compensate such
Lender, or such corporation in the light of such circumstances, for any
difference in the rate of return of any such Lender to the extent that such
Lender, as the case may be, reasonably determines such increase in
capital to be allocable to the existence of such Lender’s Commitment hereunder,
as the case may be. Each Lender agrees to notify the Borrower of any
such additional amount as soon as reasonably practicable after the any Lender
makes such determination. A certificate as to such amounts submitted
to the Borrower and the Administrative Agent by such Lender shall be conclusive
and binding for all purposes, absent manifest error.
SECTION
2.15 [Reserved].
SECTION
2.16 Nature of Obligations of Lenders Regarding
the Letter of Credit; Assumption by the Administrative
Agent.
The
obligations of the Lenders under this Agreement to issue or participate in the
Letter of Credit are several and are not joint or joint and
several. Unless the Administrative Agent shall have received notice
from a Lender prior to a proposed borrowing date that such Lender will not make
available to the Administrative Agent such Lender’s ratable portion of the
amount to be borrowed on such date (which notice shall not release such Lender
of its obligations hereunder), the Administrative Agent may assume that such
Lender has made such portion available to the Administrative Agent on the
proposed borrowing date in accordance with this Agreement and the Administrative
Agent may, in reliance upon such assumption, make available to the Borrower on
such date a corresponding amount. If such amount is made available to
the Administrative Agent on a date after such borrowing date, such Lender shall
pay to the Administrative Agent on demand an amount, until paid, equal to the
product of (a) the amount not made available by such Lender in accordance with
the terms hereof, times (b) the daily
average Federal Funds Rate (or, if such amount is not made available for a
period of three (3) Business Days after the borrowing date, the Base Rate)
during such period as determined by the Administrative Agent, times (c) a fraction
the numerator of which is the number of days that elapse from and including such
borrowing date to the date on which such amount not made available by such
Lender in accordance with the terms hereof shall have become immediately
available to the Administrative Agent and the denominator of which is
360. A certificate of the Administrative Agent with respect to any
amounts owing under this Section 2.16 shall be
conclusive, absent manifest error.If such
14
Lender’s
Commitment Percentage of such borrowing is not made available to the
Administrative Agent by such Lender within three (3) Business Days of such
borrowing date, the Administrative Agent shall be entitled to recover such
amount made available by the Administrative Agent with interest thereon at the
rate per annum equal to the Base Rate, on demand, from the
Borrower.
SECTION
2.17 Net of Taxes, Etc.
(a)
All payments made by the Borrower under this Agreement shall be made free and
clear of, and without deduction or withholding for or on account of, any present
or future income, stamp or other taxes, levies, imposts, duties, charges, fees,
deductions or withholdings, now or hereafter imposed, levied, collected,
withheld or assessed by any Governmental Authority, excluding, in the case of the
Administrative Agent and each Lender, taxes imposed on its overall net income,
and franchise taxes imposed on it by the jurisdiction under the laws of which
the Administrative Agent or such Lender (as the case may be) is organized or any
political subdivision thereof and, in the case of each Lender, taxes imposed on
its overall net income, and franchise taxes imposed on it by the jurisdiction of
such Lender’s Applicable Lending Office or any political subdivision thereof
(all such non-excluded taxes, levies, imposts, deductions, charges, withholdings
and liabilities being hereinafter referred to as “Taxes”). If
any Taxes are required to be withheld from any amounts payable to the
Administrative Agent or any Lender hereunder, the amounts so payable to the
Administrative Agent or such Lender shall be increased to the extent necessary
to yield to the Administrative Agent or such Lender (after payment of all Taxes)
interest or any such other amounts payable hereunder at the rates or in the
amounts specified in this Agreement. Whenever any Taxes are payable
by the Borrower, as promptly as possible thereafter the Borrower shall send to
the Administrative Agent for its own account or for the account of such Lender,
a certified copy of an original official receipt received by the Borrower
showing payment thereof. If the Borrower fails to pay any Taxes when
due to the appropriate taxing authority or fails to remit to the Administrative
Agent the required receipts or other required documentary evidence, the Borrower
shall indemnify the Administrative Agent and the Lenders for any incremental
taxes, interest or penalties that may become payable by the Administrative Agent
or any Lender as a result of any such failure. The agreements in this
Section shall survive the termination of this Agreement and the payment of the
obligations hereunder and all other amounts payable hereunder.
(b)
Each Lender that is not incorporated under the laws of the United States of
America or a state thereof agrees that it will deliver to the Borrower and the
Administrative Agent on or before the latter of the date hereof and the date
such Lender becomes a Lender (i) two duly completed copies of United States
Internal Revenue Service Form W-8BEN or W-8ECI or successor applicable form, as
the case may be. Each such Lender also agrees to deliver to the Borrower and the
Administrative Agent two further copies of said Form W-8BEN or W-8ECI, or
successor applicable forms or other manner of certification, as the case may be,
on or before the date that any such form previously delivered expires or becomes
obsolete or after the occurrence of any event requiring a change in the most
recent form previously delivered by it to the Borrower, and such extensions or
renewals thereof as may reasonably be requested by the Borrower or the
Administrative Agent, unless in any such case an event (including, without
limitation, any change in treaty, law or regulation) has
15
occurred
prior to the date on which anysuch delivery would otherwise be required which
renders all such forms inapplicable or which would prevent such Lender from duly
completing and delivering any such form with respect to it and such Lender so
advises the Borrower and the Administrative Agent. Such Lender shall
certify that it is entitled to receive payments under this Agreement without
deduction or withholding of any United States federal income taxes and that it
is entitled to an exemption from United States backup withholding
tax.
(c)
If any Lender shall request compensation for costs pursuant to this Section 2.17, (i)
such Lender shall make reasonable efforts (which shall not require such Lender
to incur a loss or unreimbursed cost or otherwise suffer any disadvantage deemed
by it to be significant) to make within thirty (30) days an assignment of its
rights and delegation and transfer of its obligations hereunder to another of
its offices, branches or affiliates, if such assignment would reduce such costs
in the future, (ii) the Borrower may with the consent of the Required Lenders,
which consent shall not be unreasonably withheld, secure a substitute bank to
replace such Lender which substitute bank shall, upon execution of a counterpart
of this Agreement and payment to such Lender of any and all amounts due under
this Agreement, be deemed to be a Lender hereunder (any such substitution
referred to in clause (ii) shall be accompanied by an amount equal to any loss
or reasonable expense incurred by such Lender as a result of such substitution);
provided, that this
Section 2.17(c)
shall not be construed as limiting the liability of the Borrower to indemnify or
reimburse such Lender for any costs or expenses the Borrower is required
hereunder to indemnify or reimburse.
SECTION
2.18 [Reserved]
..
SECTION
2.19 [Reserved].
SECTION
2.20 [Reserved].
[End of
Article II]
16
ARTICLE
III
LETTER
OF CREDIT FACILITY
SECTION
3.01 L/C Commitment.
(a)
Subject to the terms and conditions of this Agreement, the Issuing Lender, in
reliance on the agreements of the other Lenders set forth in Section 3.04(a),
agrees to issue the Letter of Credit for the account of the
Borrower or the Borrower’s Subsidiaries on the Closing Date.
(b)
The Letter of Credit shall (i) be denominated in Dollars in a minimum amount of
$100,000, (ii) be a letter of credit issued to support obligations of the
Borrower or any of its Subsidiaries, contingent or otherwise, incurred in the
ordinary course of business, (iii) (A) have a term not exceeding the Termination
Date, and (B) otherwise be reasonably satisfactory to the Issuing Lender, and
(iv) be subject to the Uniform Customs and/or ISP 98, as set forth in the
Application or as determined by the Issuing Lender and, to the extent not
inconsistent therewith, the laws of the State of New York. The Issuing Lender
shall not at any time be obligated to issue the Letter of Credit hereunder if
such issuance would conflict with, or cause the Issuing Lender or any L/C
Participant to exceed any limits imposed by, any Applicable Law. References
herein to “issue” and derivations thereof with respect to the Letter of Credit
shall also include extensions or modifications of the Letter of Credit, unless
the context otherwise requires.
SECTION
3.02 Application; Letter of
Credit.
(a)
The Application shall be irrevocable and in such form as the Issuing Lender
shall from time to time require or agree to accept (including any type of
electronic form or means of communication). The Issuing Lender’s records of the
content of any inquiry, communication or instruction (whether written,
telegraphic, facsimile, electronic or other written communication) regarding the
Letter of Credit, the Application and this Agreement shall be conclusive absent
manifest error. The Issuing Lender may transmit the Letter of Credit
(or any amendment, replacement, extension or modification thereof) by S.W.I.F.T.
message and thereby bind the Borrower directly and as indemnitor to the
S.W.I.F.T. rules, including rules obligating the Borrower or the Issuing Lender
to pay charges.
(b)
If the Letter of Credit is issued subject to UCP 500 or 600 (the “Uniform
Customs”), unless otherwise agreed, in the event that any installment of the
Letter of Credit is not drawn within the period allowed for that installment,
the Letter of Credit may continue to be available for any subsequent
installments in the sole discretion of the Issuing Lender, notwithstanding
Article 41 of UCP 500 or Article 32 of UCP 600.
17
(c)
If the Letter of Credit provides for automatic extension without amendment, the
Borrower agrees that it will notify the Issuing Lender in writing at least sixty
(60) days prior to the last day specified in the Letter of Credit by which the
Issuing Lender must give notice of nonextension as to whether or not it wishes
the Letter of Credit to be extended. Any decision to extend or not extend the
Letter of Credit shall be in the Issuing Lender’s sole discretion and
judgment. The Borrower hereby acknowledges that in the event the
Issuing Lender notifies the beneficiary of the Letter of Credit that the Issuing
Lender has elected not to extend the Letter of Credit and the beneficiary draws
on the Letter of Credit after receiving the notice of non-extension, the
Borrower acknowledges and agrees that the Borrower shall have no claim or cause
of action against the Issuing Lender, the Administrative Agent or any Lender or
defense against payment under the Letter of Credit for the Issuing Lender’s
discretionary decision to extent or not extend the Letter of
Credit.
(d)
If the Letter of Credit’s terms and conditions provide that the Issuing
Lender give the beneficiary a notice of pending expiration, the
Borrower agrees that it will notify the Issuing Lender in writing at least sixty
(60) days prior to the last day specified in the Letter of Credit by which the
Issuing Lender must give such notice of the pending expiration
date. In the event that the Borrower fails to so notify the Issuing
Lender and the Letter of Credit is extended, the Borrower’s obligations under
this Agreement and the other Loan Documents shall continue in effect and be
binding on the Borrower with regard to the Letter of Credit so
extended.
(e)
The Issuing Lender shall promptly furnish to the Borrower a copy of the Letter
of Credit and promptly notify each Lender of the issuance and upon request by
any Lender, furnish to such Lender a copy of the Letter of Credit and the amount
of such Lender’s L/C Participation therein.
SECTION
3.03 Commissions and Other
Charges.
(a)
The Borrower shall pay to the Administrative Agent, for the account of the
Issuing Lender and the L/C Participants, a letter of credit commission with
respect to the Letter of Credit in an amount equal to the product of (i) the
average daily maximum amount available to be drawn during the relevant quarter
under the Letter of Credit and (ii) the Applicable Margin (determined on a per
annum basis). Such commission shall be payable quarterly in arrears on the last
Business Day of each calendar quarter and on the Termination Date commencing on
the last Business Day of the calendar quarter in which the Letter of Credit is
issued. The Administrative Agent shall, promptly following its receipt thereof,
distribute to the Issuing Lender and the L/C Participants all commissions
received pursuant to this Section 3.03(a) in
accordance with their respective Commitment Percentages. All
commissions and fees provided hereunder shall be computed on the basis of a
360-day year and assessed for the actual number of days elapsed.
(b)
[Intentionally Omitted].
(c)
In addition to the foregoing fees and commissions, the Borrower shall pay or
reimburse the Issuing Lender for such normal and customary costs and expenses as
are incurred or charged by the Issuing Lender in issuing, effecting payment
under, transferring, amending or otherwise administering the Letter of
Credit.
18
SECTION 3.04 L/C
Participations.
(a)
The Issuing Lender irrevocably agrees to grant and hereby grants to each L/C
Participant, and, to induce the Issuing Lender to issue the Letter of Credit,
each L/C Participant irrevocably agrees to accept and purchase and hereby
accepts and purchases from the Issuing Lender, on the terms and conditions
hereinafter stated, for such L/C Participant’s own account and risk an undivided
interest equal to such L/C Participant’s Commitment Percentage in the Issuing
Lender’s obligations and rights under and in respect of the Letter of Credit
issued (or deemed issued) hereunder and the amount of each draft paid by the
Issuing Lender thereunder. Each L/C Participant unconditionally and
irrevocably agrees with the Issuing Lender that, if a draft is paid under the
Letter of Credit for which the Issuing Lender is not reimbursed in full by the
Borrower in accordance with the terms of this Agreement, such L/C Participant
shall pay to the Issuing Lender upon demand at the Issuing Lender’s address for
notices specified herein an amount equal to such L/C Participant’s Commitment
Percentage multiplied by the amount of such draft, or any part thereof, which is
not so reimbursed.
(b)
Upon becoming aware of any amount required to be paid by any L/C Participant to
the Issuing Lender pursuant to Section 3.04(a)
in respect of any unreimbursed portion of any payment made by the Issuing Lender
under the Letter of Credit, the Issuing Lender shall notify each L/C Participant
of the amount and due date of such required payment and such L/C Participant
shall pay to the Issuing Lender the amount specified on the applicable due
date. If any such amount is paid to the Issuing Lender after the date
such payment is due, such L/C Participant shall pay to the Issuing Lender on
demand, in addition to such amount, the product of (i) such amount, times (ii) the daily
average Federal Funds Rate (or Base Rate, if such amount is not paid within
three Business Days of demand) as determined by the Administrative Agent during
the period from and including the date such payment is due to the date on which
such payment is immediately available to the Issuing Lender, times (iii) a
fraction the numerator of which is the number of days that elapse during such
period and the denominator of which is 360. A certificate of the
Issuing Lender with respect to any amounts owing under this Section 3.04(b) shall
be conclusive in the absence of manifest error. With respect to
payment to the Issuing Lender of the unreimbursed amounts described in this
Section
3.04(b), if the L/C Participants receive notice that any such payment is
due (A) prior to 1:00 p.m. (New York City time) on any Business Day, such
payment shall be due that Business Day, and (B) after 1:00 p.m. (New York City
time) on any Business Day, such payment shall be due on the following Business
Day.
(c)
Whenever, at any time after the Issuing Lender has made payment under the Letter
of Credit and has received from any L/C Participant its Commitment Percentage of
such payment in accordance with this Section 3.04, the
Issuing Lender receives any payment related to the Letter of Credit (whether
directly from the Borrower or otherwise) including, without limitation, payments
made pursuant to Section 3.03, or any
payment of interest on account thereof, the Issuing Lender will distribute to
such L/C Participant its pro
rata share thereof; provided, that in the event
that any such payment received by the Issuing Lender shall be required to be
returned by the Issuing Lender, such L/C Participant shall return to the Issuing
Lender the portion thereof previously distributed by the Issuing Lender to
it.
19
SECTION
3.05 Reimbursement Obligation of the
Borrower.
(a)
The
Letter of Credit.
(i)
In the event of any drawing under the Letter of Credit, the Borrower agrees to
reimburse, in same day funds, the Issuing Lender on each date on which the
Issuing Lender notifies the Borrower of the date and amount of a draft paid
under the Letter of Credit for the amount of (x) such draft so paid and (y) any
amounts referred to in Section 3.03(c)
incurred by the Issuing Lender in connection with such payment.
(ii)
If the Borrower shall fail to reimburse the Issuing Lender as provided in this
Section 3.05(a), the unreimbursed amount of such drawing shall bear interest at
the Default Rate from the date such amounts become payable (whether at stated
maturity, by acceleration or otherwise) until payment in full.
(b)
Intentionally
Omitted.
(c)
Each Lender acknowledges and agrees that its obligation to reimburse the Issuing
Lender for any draft paid under the Letter of Credit is absolute and
unconditional and shall not be affected by any circumstance whatsoever,
including, without limitation, the existence of a Default or an Event of Default
other than a Default or Event of Default that the Issuing Lender had actual
knowledge of at the time of the issuance of the Letter of Credit.
SECTION
3.06
Obligations
Absolute.
The
Borrower’s obligations under this Article III
(including, without limitation, the Obligations) shall be absolute and
unconditional under any and all circumstances and irrespective of any set-off,
counterclaim or defense to payment which the Borrower may have or have had
against the Issuing Lender or any beneficiary of the Letter of Credit or any
other Person. The Borrower also agrees that the Issuing Lender and
the L/C Participants shall not be responsible for, and the Borrower’s
reimbursement obligation under Section 3.05 shall
not be affected by, among other things, the validity or genuineness of documents
or of any endorsements thereon, even though such documents shall in fact prove
to be invalid, fraudulent or forged, or any dispute between or among the
Borrower and any beneficiary of the Letter of Credit or any other party to which
the Letter of Credit may be transferred or any claimswhatsoever of the
Borrower against any beneficiary of the Letter of Credit or any such transferee,
except for such matters caused by the Issuing Lender’s gross negligence or
willful misconduct. The Issuing Lender shall not be liable for any
error, omission, interruption or delay in transmission, dispatch or delivery of
any message or advice, however transmitted, in connection with the Letter of
Credit, except for errors or omissions caused by the Issuing Lender’s gross
negligence or willful misconduct. The Borrower agrees that any action
taken or omitted by the Issuing Lender under or in connection with the Letter of
Credit or the related drafts or documents, if done in the absence of gross
negligence or willful misconduct and in accordance with the standards of care
specified in ISP 98 or the Uniform Customs, as the case may be, and, to the
extent not inconsistent therewith, the UCC, shall be binding on the Borrower and
shall not result in any liability of the Issuing Lender or Lenders.
[End of
Article III]
20
ARTICLE
IV
CONDITIONS
PRECEDENT
SECTION
4.01 Conditions Precedent to the Execution
and Delivery of this Agreement.
The obligation of the Lenders to execute and deliver this Agreement and to issue
the Letter of Credit is subject to the conditions precedent that the
Administrative Agent (and the Lenders, if applicable) shall have received on or
before the Closing Date, the following, each dated such date, in form and
substance reasonably satisfactory to the Administrative Agent and the Lenders,
with copies for each Lender:
(a) Agreement. Receipt
by the Administrative Agent of counterparts of this Agreement, duly executed by
the Borrower, the Administrative Agent, the Issuing Lender and the
Lenders;
(b) Secretary’s
Certificate. Receipt by the Administrative Agent of (A) a
certificate of the secretary or assistant secretary of the Borrower, as
applicable, dated the Closing Date and certifying (1) that attached thereto is a
true and complete copy of the certificate of incorporation and all amendments
thereto of the Borrower, certified as of a recent date by the appropriate
Governmental Authority in its jurisdiction of organization, (2) that attached
thereto is a true and complete copy of the by-laws of the Borrower in effect on
the Closing Date and at all times since a date prior to the date of the
resolutions described in clause (3) below, (3) that attached thereto is a true
and complete copy of resolutions or consents, as applicable, duly adopted by the
board of directors of the Borrower authorizing, as applicable, the execution,
delivery and performance of this Agreement and that such resolutions have not
been modified, rescinded or amended and are in full force and effect, (4) that
the organizational documents of the Borrower have not been amended since the
date of the last amendment thereto shown on the certificate of good standing
attached thereto, and (5) as to the incumbency and specimen signature of each
officer of the Borrower executing this Agreement and any other document
delivered in connection herewith on its behalf; and (B) a certificate of another
officer as to the incumbency and specimen signature of such secretary or
assistant secretary executing the certificate pursuant to (A)
above;
(c) Officer’s
Certificate. Receipt by the Administrative Agent of a
certificate from the chief executive officer or chief financial officer of the
Borrower, as applicable, in form and substance reasonably satisfactory to the
Administrative Agent, to the effect that, as of the Closing Date, all
representations and warranties of the Borrower contained in this Agreement and
the other Loan Documents are true, correct and complete; that the Borrower is
not in violation or aware of any event that would cause a Material Adverse
Change in the business or operation as reflected in the Disclosure Documents;
that the Borrower is not in violation of any of the covenants contained in this
Agreement and the other Loan Documents; that, after giving effect to the
transactions contemplated by this Agreement, no Default or Event of Default has
occurred and is continuing; and that the Borrower has satisfied each of the
conditions precedent set forth in this Section
4.01;
21
(d) Consents. Receipt
by the Administrative Agent of a written representation from the Borrower that
(i) all governmental, shareholder, member, partner and third party consents and
approvals necessary or, in the reasonable opinion of the Administrative Agent,
desirable, in connection with the transactions contemplated hereby have been
received and are in full force and effect and (ii) no condition or requirement
of law exists which could reasonably be likely to restrain, prevent or impose
any material adverse condition on the transactions contemplated
hereby;
(e) Proceedings. Receipt
by the Administrative Agent of a certificate from the Borrower certifying that
no action, proceeding, investigation, regulation or legislation has been
instituted, or, to the Borrower’s knowledge, threatened or proposed before any
court, government agency or legislative body to enjoin, restrain or prohibit, or
to obtain damages in respect of, or which is related to or arises out of this
Agreement or any other Loan Documents or the consummation of the transactions
contemplated hereby or thereby or which, in the Administrative Agent’s
reasonable determination, would prohibit the extension
of the Letter of Credit or could reasonably be expected to result in any such
prohibition or a Material Adverse Change on the Borrower, Marina, South Jersey
Gas Company and the Borrower’s other Subsidiaries, taken as a
whole;
(f) Financial
Statements. Receipt by the Administrative Agent of the
Disclosure Documents and financial statements required pursuant to Section 6.03, which
demonstrate, in the Administrative Agent’s reasonable judgment, together with
all other information then available to the Administrative Agent, that the
Borrower can repay its debts and satisfy its other obligations as and when they
become due, and can comply with the financial covenants contained in this
Agreement;
(g) Good Standing
Certificate. Receipt by the Administrative Agent of a
certificate of good standing for the Borrower, dated on or immediately prior to
the Closing Date, from the Secretary of State of the state of organization of
the Borrower and from all states in which the Borrower is required to obtain a
certificate of good standing or like certificate due to the nature of its
operations in such state;
(h) Fees. Receipt
by the Administrative Agent and the Lenders of the fees set forth or referenced
in this Agreement and any other accrued and unpaid fees, expenses or commissions
due hereunder (including, without limitation, legal fees and expenses of counsel
to the Administrative Agent), and to any other Person such amount as may be due
thereto in connection with the transactions contemplated hereby, including all
taxes, fees and other charges related to the Loan Documents;
(i)
Application. The
Administrative Agent shall have received an Application signed by duly
authorized officer of the Borrower, dated such date, stating that:
22
(i)
The representations and warranties of the Borrower contained in Section 5.01 of
this Agreement are true and correct on and as of the date of the issuance of the
Letter of Credit as though made on and as of such date, both before and after
giving effect to the issuance of the Letter of Credit and to the application of
the proceeds thereof; and
(ii)
Since December 31, 2006, there has been no Material Adverse Change;
and
(iii)
No event has occurred and is continuing, or would result from the issuance of
the Letter of Credit or the application of the proceeds thereof, as the case may
be, which constitutes a Default or an Event of Default;
(j) Intentionally
Omitted;
(k) Opinions. Opinions
of Cozen X’Xxxxxx, counsel to the Borrower, in substantially the form of Exhibit A hereto, and
as to such other matters as the Administrative Agent and the Lenders may
reasonably request, addressed to the Administrative Agent and the
Lenders;
(l)
Intentionally
Omitted;
(m) Intentionally
Omitted; and
(n) Other. Receipt
by the Administrative Agent of all other opinions, certificates and instruments
in connection with the transactions contemplated by this Agreement satisfactory
in form and substance to the Required Lenders.
SECTION
4.02 [Reserved].
SECTION
4.03 [Reserved].
SECTION
4.04 Reliance on
Certificates.
Each of the
Lenders, the Issuing Lender and the Administrative Agent shall be entitled to
rely conclusively upon the certificates delivered from time to time by officers
of the Borrower as to the names, incumbency, authority and signatures of the
respective Persons named therein until such time as the Administrative Agent may
receive a replacement certificate, in form acceptable to the Administrative
Agent, from an officer of the Borrower identified to the Administrative Agent as
having authority to deliver such certificate, setting forth the names and true
signatures of the officers and other representatives of the Borrower thereafter
authorized to act on its behalf.
[End of
Article IV]
23
ARTICLE
V
REPRESENTATIONS
AND WARRANTIES
SECTION
5.01 Representations
and Warranties of the Borrower. The
Borrower hereby represents and warrants as follows:
(a)
Each of the Borrower and its Subsidiaries is an entity duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
incorporation or organization, as applicable and is duly qualified to do
business in, and is in good standing in, all other jurisdictions where the
nature of its business or the nature of property owned or used by it makes such
qualification necessary, except where such failure would not result in a
Material Adverse Change. Each of the Borrower and its Subsidiaries has all
requisite corporate (or other applicable) powers and authority to own or lease
and operate its properties and to carry on its business as now conducted and as
proposed to be conducted.
(b)
The execution, delivery and performance by the Borrower and, where applicable,
each Subsidiary of this Agreement, each Loan Document to which it is a party are
within the Borrower’s or Subsidiary’s corporate (or other applicable) powers,
have been duly authorized by all necessary corporate (or other applicable)
action, do not contravene (i) the Borrower’s or Subsidiary’s certificate of
incorporation (or other applicable formation document or operating agreement),
(ii) any law, rule or regulation applicable to the Borrower or such Subsidiary
or (iii) any contractual or legal restriction binding on or affecting the
Borrower or such Subsidiary, and will not result in or require the imposition of
any lien or encumbrance on, or security interest in, any property (including,
without limitation, accounts or contract rights) of the Borrower or its
Subsidiaries, except as provided in this Agreement and any other the Loan
Document.
(c)
No Governmental Action is required for the execution or delivery by the Borrower
or its Subsidiaries of this Agreement, any other Loan Document to which it is a
party or for the performance by the Borrower or its Subsidiaries of its
obligations under this Agreement, any other Loan Document to which it is a party
other than those which have previously been duly obtained, are in full force and
effect, are not subject to any pending or, to the knowledge of the Borrower,
threatened appeal or other proceeding seeking reconsideration and as to which
all applicable periods of time for review, rehearing or appeal with respect
thereto have expired.
(d)
This Agreement and each Loan Document to which the Borrower or any Subsidiary is
a party is a legal, valid and binding obligation of the Borrower or Subsidiary
party thereto, enforceable against the Borrower or applicable Subsidiary in
accordance with its terms subject to the effect of bankruptcy, insolvency,
reorganization, fraudulent conveyance, moratorium and other similar laws of
general application affecting rights and remedies of creditors
generally.
24
(e)
Except as disclosed in the Disclosure Documents, there is no pending or, to the
Borrower’s knowledge, threatened action or proceeding (including, without
limitation, any proceeding relating to or arising out of Environmental Laws)
affecting the Borrower or any of its Subsidiaries before any court, governmental
agency or arbitrator that has a reasonable possibility of resulting in a
Material Adverse Change.
(f)
The audited consolidated balance sheet of the Borrower and its Consolidated
Subsidiaries, as at December 31, 2006, and the related consolidated statements
of income, retained earnings and cash flows of the Borrower and its Consolidated
Subsidiaries for the fiscal year then ended, and the unaudited consolidated
balance sheet of the Borrower and its Consolidated Subsidiaries as at September
30, 2007, and the related consolidated statements of income, retained earnings
and cash flows of the Borrower and its Consolidated Subsidiaries for the six (6)
months then ended, copies of which have been furnished to the Administrative
Agent and each Lender, fairly present in all material respects the financial
condition of the Borrower and its Consolidated Subsidiaries as at such dates and
the results of the operations of the Borrower and its Consolidated Subsidiaries
for the periods ended on such dates, all in accordance with GAAP consistently
applied, subject, solely in the case of unaudited consolidated balance sheets,
to normal year end adjustments. Since December 31, 2006, there has been no
Material Adverse Change, or material adverse change in the facts and information
regarding such entities as represented to the Closing Date.
(g)
The issuance of, and the existence of, the Letter of Credit and the use of the
proceeds thereof will comply with all provisions of applicable law and
regulation in all material respects.
(h)
Neither the Borrower nor any Subsidiary of the Borrower is an “investment
company” or a company “controlled” by an “investment company”, within the
meaning of the Investment Company Act of 1940, as amended.
(i)
Intentionally Deleted.
(j)
Neither the Borrower nor its Subsidiaries is engaged in the business of
extending credit for the purpose of buying or carrying margin stock (within the
meaning of Regulation U issued by the Board of Governors of the Federal Reserve
System), and no proceeds of any drawing on the Letter of Credit will be used to
buy or carry any margin stock or to extend credit to others for the purpose of
buying or carrying any margin stock.
(k)
No ERISA Event has occurred or is reasonably expected to occur with respect to
any Plan which reasonably could be expected to result in a Material Adverse
Change. Since the actuarial valuation date specified in the most recent Schedule
B (Actuarial Information) to the annual report of Plans maintained by the
Borrower (Form 5500 Series), if any, (i) there has been no Material Adverse
Change in the funding status of the Plans referred to therein and (ii) no
“prohibited transaction” has occurred with respect thereto. Neither
25
the
Borrower nor any of itsrespective ERISA Affiliates has incurred nor reasonably
expects to incur any material withdrawal liability under ERISA to any
Multiemployer Plan.
(l)
Except as set forth in the Disclosure Documents, the Borrower and its
Subsidiaries are in compliance in all material respects with all applicable
Federal, state and local statutes, rules, regulations, orders and other
provisions of law relating to Hazardous Materials, air emissions, water
discharge, noise emission and liquid disposal, and other environmental, health
and safety matters, other than those the non-compliance with which would not
result in a Material Adverse Change (taking into consideration all fines,
penalties and sanctions that may be imposed because of such non-compliance) or
on the ability of the Borrower to perform its obligations under this Agreement
or any other Loan Document to which the Borrower is a party. Except as set forth
in the Disclosure Documents, neither the Borrower nor any of its respective
Subsidiaries has received from any Governmental Authority any notice of any
material violation of any such statute, rule, regulation, order or
provision.
(m)
The Borrower and its Subsidiaries have filed all tax returns (Federal, state and
local) required to be filed and paid all taxes shown thereon to be due,
including interest and penalties, except to the extent that the Borrower or any
such Subsidiary is diligently contesting any such taxes in good faith and by
appropriate proceedings, and for which adequate reserves for payment thereof
have been established.
(n)
No event has occurred or is continuing which constitutes a Default or an Event
of Default, or which constitutes, or which with the passage of time or giving of
notice or both would constitute, a default or event of default by the Borrower
or Subsidiary thereof under any material agreement or contract, judgment, decree
or order by which the Borrower or any of its respective properties may be bound
or which would require the Borrower or Subsidiary thereof to make any payment
thereunder prior to the scheduled maturity date therefore, where such default
could reasonably be expected to result in a Material Adverse
Change.
(o)
As of the Closing Date, the Borrower and each of its Subsidiaries will be
Solvent.
(p)
The capitalization of the Borrower and each Significant Subsidiary of the
Borrower consists of the Capital Stock, authorized, issued and outstanding, of
such classes and series, with or without par value, described on Schedule II
hereto. All such outstanding Capital Stock has been duly authorized
and validly issued and are fully paid and nonassessable. Except as
set forth in the Disclosure Documents, there are no outstanding warrants,
subscriptions, options, securities, instruments or other rights of any type or
nature whatsoever, which are convertible into, exchangeable for or otherwise
provide for or permit the issuance of, Capital Stock of the Borrower or any
Subsidiary of the Borrower or are otherwise exercisable by any
Person.
(q)
The Borrower and each Subsidiary of the Borrower has good and marketable title
to all assets and other property purported to be owned by it.
26
(r)
None of the properties or assets
of the Borrower is subject to any Lien, except Permitted Liens.
(s)
All written information, reports and other papers and data produced by or on
behalf of the Borrower and furnished to the Administrative Agent and the Lenders
were, at the time the same were so furnished, complete and correct in all
material respects. No document furnished or written statement made to the
Administrative Agent or the Lenders by the Borrower in connection with the
negotiation, preparation or execution of this Agreement or any other Loan
Documents contains or will contain any untrue statement of a fact material to
the creditworthiness of the Borrower or its Subsidiaries or omits or will omit
to state a fact necessary in order to make the statements contained therein not
misleading.
(t)
Intentionally Omitted.
(u)
Intentionally Omitted.
(v)
The Borrower is not listed on the specially Designated Nationals and Blocked
Persons List maintained by the Office of Foreign Asset Control, Department of
the Treasury (“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.
[End of
Article V]
27
ARTICLE
VI
COVENANTS
OF THE COMPANY
SECTION
6.01 Affirmative Covenants.
Until the
Obligations have been finally and indefeasibly paid and satisfied in full and
the Commitments terminated, the Borrower will, and will cause each of its
Subsidiaries, unless the Required Lenders shall otherwise consent in writing,
to:
(a)
Preservation of
Existence, Etc. Preserve and maintain, and cause each of its
Subsidiaries to preserve and maintain, its corporate or company, as applicable,
existence, material rights (statutory and otherwise) and franchises, and take
such other action as may be necessary or advisable to preserve and maintain its
right to conduct its business in the states where it shall be conducting its
business, except where failure to do so does not result in, or could not
reasonably be expected to have, a Material Adverse Change.
(b)
Maintenance of
Properties, Etc. Maintain, and cause each of its Subsidiaries
to maintain, good and marketable title to all of its properties which are used
or useful in the conduct of its business, and preserve, maintain, develop and
operate, and cause each of its Subsidiaries to preserve, maintain, develop and
operate, in substantial conformity with all laws and material contractual
obligations, all such properties in good working order and condition, ordinary
wear and tear excepted, except where such failure would not result in a Material
Adverse Change.
(c)
Ownership. Cause
the Borrower to own, at all times, 100% of the Capital Stock having voting
rights of Marina and South Jersey Gas.
(d)
Compliance with
Material Contractual Obligations, Laws, Etc. Comply, and cause
each of its Subsidiaries to comply, with the requirements of all material
contractual obligations and all applicable laws, rules, regulations and orders,
the failure to comply with which could reasonably be expected to result in a
Material Adverse Change, such compliance to include, without limitation, paying
before the same become delinquent all taxes, assessments and governmental
charges imposed upon it or upon its property except to the extent diligently
contested in good faith and by appropriate proceedings and for which adequate
reserves for the payment thereof have been established, and complying with the
requirements of all applicable Federal, state and local statutes, rules,
regulations, orders and other provisions of law relating to Hazardous Materials,
air emissions, water discharge, noise emission and liquid disposal, and other
environmental, health and safety matters.
(e)
Insurance. Maintain,
and cause each of its Subsidiaries to maintain, insurance with financially sound
and reputable insurance companies or associations in such amounts and covering
such risks as are usually carried by companies engaged in the same or similar
businesses and similarly situated.
28
(f)
Visitation Rights;
Keeping of Books. At any reasonable time and from time to
time, upon reasonable advance notice, permit the Administrative Agent or any of
the Lenders or any agents or representatives thereof, to examine and make copies
of and abstracts from the records and books of account of, and visit the
properties of, the Borrower and any of its Subsidiaries, and to discuss the
affairs, finances and accounts of the Borrower and any of its Subsidiaries with
any of their respective officers or directors and with their respective
independent certified public accountants and keep proper books of record and
account, in which full and correct entries shall be made of all financial
transactions and the assets and liabilities of the Borrower in accordance with
GAAP, consistent with the procedures applied in the preparation of the financial
statements referred to in Section 5.01(f)
hereof.
(g)
Transactions with
Affiliates. Conduct, and cause each of its Subsidiaries to
conduct, all transactions otherwise permitted under this Agreement with any of
its Affiliates on terms that are fair and reasonable and no less favorable to
the Borrower or such Subsidiary than it would obtain in a comparable
arm’s-length transaction with a Person not an Affiliate.
(h)
Use of
Proceeds. Use the proceeds of the facility created by this
Agreement solely for the following purposes: the issuance of the Letter of
Credit to support the Borrower’s obligations under that certain Equity
Contribution Agreement, dated as of December 20, 2007, by and among the
Borrower, DCO Energy, LLC, Las Vegas Energy Partners, LLC and Sumitomo Mitsui
Banking Corporation, as administrative agent.
(i)
Loan
Documents. Perform and comply in all material respects
with each of the provisions of each Loan Document to which it is a
party.
(j)
Risk
Management. Perform and comply in all material respects, and
require its Subsidiaries to perform and comply in all material respects, with
any risk management policies developed by the Borrower, including such policies,
if applicable, related to (i) the retail and wholesale inventory distribution
and trading procedures and (ii) dollar and volume limits.
(k)
Intentionally
Omitted.
(l)
Intentionally
Omitted.
(m)
OFAC
Compliance. Comply with any obligations that it may have under
the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law
October 26, 2001), all laws and executive orders administered by 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 the Borrower becomes
aware that it is not in compliance with any applicable AML and Anti-Terrorist
Acts, the Borrower shall notify the Administrative Agent and diligently take all
actions required thereunder to become compliant.
29
(n)
Further
Assurances. At the expense of the Borrower, promptly execute
and deliver, or cause to be promptly executed and delivered, all further
instruments and documents, and take and cause to be taken all further actions,
that may be reasonably necessary or that the Required Lenders through the
Administrative Agent may reasonably request, to enable the Lenders and the
Administrative Agent to enforce the terms and provisions of this Agreement and
the Loan Documents and to exercise their rights and remedies
hereunder. In addition, the Borrower will use all reasonable efforts
to duly obtain Governmental Actions required from time to time on or prior to
such date as the same may become legally required, and thereafter to maintain
all such Governmental Actions in full force and effect, except where such
failure would not result in a Material Adverse Change.
SECTION
6.02 Negative Covenants.
Until all of
the Obligations have been finally and indefeasibly paid and satisfied in full
and the Commitments terminated, the Borrower will not, and will not cause or
permit any of its Subsidiaries, without the written consent of the Required
Lenders, to:
(a)
Liens,
Etc. Except as permitted in Section 6.02(c),
create, incur, assume, or suffer to exist, or permit any of its Subsidiaries to
create, incur, assume, or suffer to exist, any Lien other than Permitted
Liens.
(b)
Indebtedness. Create
or suffer, or permit any Subsidiary to create or suffer, to exist any
Indebtedness except for Permitted Indebtedness.
(c)
Obligation to Ratably
Secure. Except as permitted by Section 6.02(a),
create or suffer to exist, or permit any of its Subsidiaries to create or suffer
to exist, any Lien other than a Permitted Lien, in each case to secure or
provide for the payment of Indebtedness, unless, on or prior to the date
thereof, the Borrower shall have (i) pursuant to documentation reasonably
satisfactory to the Administrative Agent and Required Lenders, equally and
ratably secured the Obligations of the Borrower under this Agreement by a Lien
acceptable to the Administrative Agent and Required Lenders, and (ii) caused the
creditor or creditors, as the case may be, in respect of such Indebtedness to
have entered into an intercreditor agreement in form, scope and substance
reasonably satisfactory to the Administrative Agent and the Required
Lenders.
(d)
Mergers,
Etc. Merge or consolidate with or into any Person, or permit
any of its Subsidiaries to do so, except that (i) any Subsidiary of the Borrower
may merge or consolidate with or into, any other Subsidiary of the Borrower and
(ii) any Subsidiary of the Borrower may merge or consolidate with and into the
Borrower; provided,
that the Borrower is the surviving corporation; provided, further, that in each case,
immediately after giving effect to such proposed transaction, no Event of
Default or Default would exist.
(e)
Sale of
Assets, Etc. Sell, transfer, lease, assign or otherwise convey
or dispose, or permit any Subsidiary to sell, transfer, lease, assign or
otherwise convey or dispose, of assets (whether now owned or hereafter
acquired), in any single transaction or series of transactions, whether or not
related having an aggregate book value in excess of 10% of the Consolidated
assets of the Borrower and its Consolidated Subsidiaries, except for
dispositions of capital assets in the ordinary course of business as presently
conducted.
30
(f)
Restricted
Investments. Other than in the ordinary course of
business (i) make or permit to exist any loans or advances to, or any
other investment in, any Person except for investments in Permitted Investments,
or (ii) acquire any assets or property of any
other Person.
(g)
New
Business. Permit the Borrower or any of its Subsidiaries to
enter into any business which is not substantially similar to that existing on
the Closing Date.
(h)
Distributions. Pay
any dividends on or make any other distributions in respect of any Capital Stock
or redeem or otherwise acquire any such Capital Stock without in each instance
obtaining the prior written consent of the Required Lenders; provided, that (i) any
Subsidiary of the Borrower may pay regularly scheduled dividends or make other
distributions to the Borrower; and (ii) if no Default or Event of Default exists
or would result therefrom, the Borrower may pay distributions or dividends in
either cash or Capital Stock or may redeem or otherwise acquire Capital
Stock.
(i)
Compliance with
ERISA. (i) Permit to exist any “accumulated funding
deficiency” (as defined in Section 412(a) of the
Code), unless such deficiency exists with respect to a Multiple Employer Plan or
Multiemployer Plan and the Borrower has no control over the reduction or
elimination of such deficiency, (ii) terminate, or permit any ERISA Affiliate to
terminate, any Plan of the Borrower or such ERISA Affiliate so as to result in
any material liability of the Borrower or ERISA Affiliate to the PBGC, or (iii)
permit to exist any occurrence of any reportable event (within the meaning of
Section 4043 of ERISA), or any other event or condition, which presents a
material risk of a termination by the PBGC of any Plan of the Borrower or such
ERISA Affiliate and such a material liability of the Borrower or ERISA Affiliate
to the PBGC.
(j)
Constituent Documents,
Etc. Change in any material respect the nature of its
certificate of incorporation, by-laws, or other similar documents, or accounting
policies or accounting practices (except as required or permitted by the
Financial Accounting Standards Board or GAAP).
(k)
Fiscal
Year. Change its Fiscal Year.
(l)
Intentionally
Omitted.
SECTION
6.03 Reporting Requirements.
So long as
any Lender shall have any Commitment hereunder or the Borrower shall have any
obligation to pay any amount to the Administrative Agent or any Lender
hereunder, the Borrower will, unless the Required Lenders shall otherwise
consent in writing, provide to the Administrative Agent:
31
(a)
as soon as available and in any event within sixty (60) days after the end of
each of the first three quarters of each fiscal year of the Borrower, a
consolidated and consolidating balance sheet of the Borrower and its
Consolidated Subsidiaries as at the end of such quarter and consolidated and
consolidating statements of income, retained earnings and cash flows of the
Borrower and its Consolidated Subsidiaries for the period commencing at the end
of the previous fiscal year and ending with the end of such quarter, all in
reasonable detail and duly certified by the chief financial officer or the
treasurer of the Borrower as fairly presenting in all material respects the
financial condition of the Borrower and its Consolidated Subsidiaries as at such
date and the results of operations of the Borrower and its Consolidated
Subsidiaries for the periods ended on such date, except for normal year end
adjustments, all in accordance with GAAP consistently applied (for purposes
hereof delivery of the Borrower’s appropriately completed Form 10-Q will be
sufficient in lieu of delivery of such consolidated balance sheet and
consolidated statements of income, retained earnings and cash flows), together
with a Compliance Certificate, in the form of Exhibit C, of the
chief financial officer or the treasurer of the Borrower (A) demonstrating and
certifying compliance by the Borrower with the covenants set forth in Section 6.04 and (B)
stating that no Event of Default or Default has occurred and is continuing or,
if an Event of Default or Default has occurred and is continuing, a statement as
to the nature thereof and the action which the Borrower has taken and proposes
to take with respect thereto;
(b)
as soon as available and in any event within one hundred five (105) days after
the end of each fiscal year of the Borrower, a copy of the annual report for
such year for the Borrower and its Consolidated Subsidiaries, containing
consolidated and consolidating financial statements for such year certified by,
and accompanied by an unqualified opinion of, independent public accountants
reasonably acceptable to the Administrative Agent (for purposes hereof, delivery
of the Borrower’s appropriately completed Form 10-K will be sufficient in lieu
of delivery of such financial statements), together with a Compliance
Certificate, in the form of Exhibit C, of the
chief financial officer or the treasurer of the Borrower (A) demonstrating and
certifying compliance by the Borrower with the covenants set forth in Section 6.04 and (B)
stating that no Event of Default or Default has occurred and is continuing or,
if an Event of Default or Default has occurred and is continuing, a statement as
to the nature thereof and the action which the Borrower has taken and proposes
to take with respect thereto;
(c)
as soon as possible and in any event within five (5) days after the occurrence
of each Event of Default and each Default known to the Borrower, a statement of
the chief financial officer of the Borrower setting forth details of such Event
of Default or Default and the action which the Borrower has taken and proposes
to take with respect thereto;
(d)
as soon as possible and in any event within five (5) days after receipt thereof
by the Borrower or any of its ERISA Affiliates from the PBGC copies of each
notice received by the Borrower or such ERISA Affiliate of the PBGC’s intention
to terminate any Plan of the Borrower or such ERISA Affiliate or to have a
trustee appointed to administer any such Plan;
(e)
as soon as possible and in any event within five (5) days after receipt thereof
by the Borrower or any ERISA Affiliate from a Multiemployer Plan sponsor, a copy
of each notice received by the Borrower or such ERISA Affiliate concerning the
imposition of withdrawal liability in the amount of at least $1,000,000 pursuant
to Section 4202
of ERISA in respect of which the Borrower or such ERISA Affiliate is reasonably
expected to be liable;
(f)
as soon as possible and in any event within five (5) days after the Borrower
becomes aware of the occurrence thereof, notice of all actions, suits,
proceedings or other events (A) of the type described in Section 5.01(e) or
(B) for which the Administrative Agent or the Lenders will be entitled to
indemnity under Section
10.05;
32
(g)
as soon as possible and in any event within five (5) days after the sending or
filing thereof, copies of all material reports that the Borrower sends to any of
its security holders, and copies of all reports and registration statements
which the Borrower or any of its Subsidiaries files with the Securities and
Exchange Commission or any national securities exchange;
(h)
as soon as possible and in any event within five (5) days after requested, such
other information respecting the business, properties, assets, liabilities
(actual or contingent), results of operations, prospects, condition or
operations, financial or otherwise, of the Borrower or any Subsidiary thereof as
any Lender through the Administrative Agent may from time to time reasonably
request;
(i)
from time to time and promptly upon each request, information with respect to
the Borrower as a Lender may request in order to comply with the USA Patriot Act
(Title III of Pub. L. 107-56 (signed into law October 26, 2001);
and
(j)
as soon as possible and in any event within fifteen (15) days after the
occurrence of each ERISA Event, a statement of the chief financial officer of
the Borrower setting forth details of such ERISA Event and the action which the
Borrower has taken and proposes to take with respect thereto.
Information
required to be delivered pursuant to this Section 6.03 shall be
deemed to have been delivered if such information shall have been posted by the
Borrower on an Intralinks or similar site to which the Administrative Agent has
been granted access or shall be available on the website of the Securities and
Exchange Commission at xxxx://xxx.xxx.xxx and the Borrower shall have notified
the Administrative Agent of the availability of all Form 10-Q and Form 10-K
reports; provided that, if requested by the Administrative Agent or any Lender,
the Borrower shall deliver a paper copy of such information to the
Administrative Agent or such Lender. Information required to be
delivered pursuant to this Section 6.03 may also
be delivered by electronic
communications pursuant to procedures reasonably approved by the Administrative
Agent.
SECTION
6.04 Financial Covenants.
So long as
any Lender shall have any Commitment hereunder or the Borrower shall have any
obligation to pay any amount to the Administrative Agent or any Lender
hereunder, the Borrower will, unless the Required Lenders shall otherwise
consent in writing, maintain at the end of each fiscal quarter a ratio of
Indebtedness to Consolidated Total Capitalization of the Borrower and its
Consolidated Subsidiaries of not more than 0.65 to 1.0.
[End of
Article VI]
33
ARTICLE
VII
EVENTS
OF DEFAULT
SECTION
7.01 Events of
Default.
Each of the
following events should they occur and be continuing shall constitute an “Event of
Default”:
(a)
The Borrower shall fail to pay (i) any amount of principal when the same becomes
due and payable or (ii) any interest, fees or any other amount payable hereunder
within five (5) Business Days of when the same becomes due and payable;
or
(b)
Any representation or warranty made by or on behalf of the Borrower or any
Subsidiary in this Agreement, any Loan Document or by or on behalf of the
Borrower or any Subsidiary (or any of their officers) in connection with this
Agreement, any Loan Document shall prove to have been incorrect in any material
respect when made or deemed made; or
(c)
The Borrower shall fail to perform or observe any term, covenant or agreement
contained in Section
6.01(a), (c), (e), (g), (h), (i) or (j), Section 6.02(a),
(b), (c), (d), (e), (f), (g), (h), or (l), Section 6.03 or Section 6.04, or (ii)
the Borrower shall fail to perform or observe any other term, covenant or
agreement contained in this Agreement (other than obligations specifically set
forth elsewhere in this Section 7.01) on its
part to be performed or observed if the failure to perform or observe such other
term, covenant or agreement, shall remain unremedied for thirty (30) days after
written notice thereof shall have been given to the Borrower by the
Administrative Agent or any Lender; or
(d)
The Borrower or any Significant Subsidiary thereof shall fail to pay any
principal of or premium or interest on any Indebtedness (other than Indebtedness
incurred under this Agreement) thereof in the aggregate (for all such Persons)
in excess of $15,000,000, when the same becomes due and payable (whether by
scheduled maturity, required prepayment, acceleration, demand or otherwise), and
such failure shall continue after the applicable grace period, if any, specified
in the agreement or instrument relating to such Indebtedness; or any other event
shall occur or condition shall exist under any agreement or instrument relating
to any such Indebtedness and shall continue after the applicable grace period,
if any, specified in such agreement or instrument, if the effect of such event
or condition is to accelerate, or to permit the acceleration of, the maturity of
such Indebtedness; or any such Indebtedness shall be declared to be due and
payable, or required to be prepaid (other than by a regularly scheduled required
prepayment), prior to the stated maturity thereof; or
34
(e)
The Borrower or any Significant Subsidiary thereof shall generally not pay its
debts as such debts become due, or shall admit in writing its inability to pay
its debts generally, or shall make a general assignment for the benefit of
creditors, or any proceeding shall be instituted by or against the Borrower or a
Significant Subsidiary thereof seeking to adjudicate it a bankrupt or insolvent,
or seeking liquidation, winding up, reorganization, arrangement, adjustment,
protection, relief, or composition of it or its debts under any law relating to
bankruptcy, insolvency or reorganization or relief of debtors, or seeking the
entry of an order for relief or the appointment of a receiver, trustee,
custodian or other similar official for it or for any substantial part of its
property and, in the case of any such proceeding instituted against it (but not
instituted by it), such proceeding shall remain undismissed or unstayed for a
period of forty-five (45) days, any of the actions sought in such proceeding
(including, without limitation, the entry of an order for relief against, or the
appointment of a receiver, trustee, custodian or other similar official for, it
or for any substantial part of its property) shall occur or the Borrower or a
Significant Subsidiary thereof shall consent to or acquiesce in any such
proceeding; or the Borrower or a Significant Subsidiary thereof shall take any
corporate action to authorize any of the actions set forth above in this
subsection (e); or
(f)
Any judgments or orders for the payment of money in excess of $15,000,000 (in
the aggregate) shall be rendered against the Borrower or any Significant
Subsidiary thereof and either (i) enforcement proceedings shall have been
commenced by any creditor upon any such judgment or order or (ii) there shall be
any period of ten (10) consecutive days during which a stay of enforcement of
any such judgment or order, by reason of a pending appeal or otherwise, shall
not be in effect; or
(g)
The obligations of the Borrower or any Subsidiary under this Agreement, any
other Loan Document shall become unenforceable, or the Borrower or any
Subsidiary, or any court or governmental or regulatory body having jurisdiction
over the Borrower or any Subsidiary, shall so assert in writing or the Borrower
or any Subsidiary shall contest in any manner the validity or enforceability
thereof; or
(h)
Any ERISA Event shall have occurred with respect to a Plan and, thirty (30) days
after notice thereof shall have been given to the Borrower by the Administrative
Agent or any Lender, (i) such ERISA Event shall still exist and (ii) such ERISA
Event is reasonably likely to result in a liability or lien in excess of
$15,000,000 against the Borrower or any ERISA Affiliate; or
(i)
The Borrower or any Affiliate thereof as employer under a Multiemployer Plan
shall have made a complete or partial withdrawal from such Multiemployer Plan
and the plan sponsor of such Multiemployer Plan shall have notified such
withdrawing employer that such employer has incurred a withdrawal liability in
an annual amount exceeding $5,000,000; or
(j)
Any Governmental Approval shall be rescinded, revoked, otherwise terminated, or
amended or modified in any manner which is materially adverse to the interests
of the Lenders and the Administrative Agent; or
35
(k)
An “Event of Default” or “Default” under the SJG Credit Agreement;
or
(l)
[Intentionally Omitted].
(m)
A Change in Control shall occur.
SECTION
7.02 Upon an Event of Default.
Upon the
occurrence of an Event of Default, with the consent of the Required Lenders, the
Administrative Agent may, or upon the request of the Required Lenders, the
Administrative Agent shall, by notice to the Borrower:
(a)
Acceleration;
Termination of Credit Facility. (i) Declare the principal of
and interest on the L/C Obligations and the other Obligations at the time
outstanding, and all other amounts owed to the Lenders and to the Administrative
Agent under this Agreement (including, without limitation, all L/C Obligations,
whether or not the beneficiaries of the Letter of Credit shall have presented
the documents required thereunder), to be forthwith due and payable, whereupon
the same shall immediately become due and payable without presentment, demand,
protest or other notice of any kind, all of which are expressly waived, anything
in this Agreement to the contrary notwithstanding and/or (ii) terminate the
Commitment; provided,
that upon the occurrence of an Event of Default specified in Section 7.01(e), the
Commitments shall be automatically terminated and all Obligations shall
automatically become due and payable without presentment, demand, protest or
other notice of any kind, all of which are expressly waived, anything in this
Agreement or in any other Loan Document to the contrary
notwithstanding.
(b)
The Letter of
Credit. If presentment for honor of the Letter of Credit shall
not have occurred at the time of an acceleration pursuant to Section 7.02(a), the
Borrower shall at such time deposit in a cash collateral account with the
Administrative Agent an amount equal to the aggregate then undrawn and unexpired
amount of the Letter of Credit. Amounts held in such cash collateral
account shall be applied by the Administrative Agent to the payment of drafts
drawn under the Letter of Credit, and the unused portion thereof after the
Letter of Credit shall have expired or been fully drawn upon, if any, shall be
applied to repay the other Obligations. After the Letter of Credit
shall have expired or been fully drawn upon, and all Obligations shall have been
paid in full, the balance, if any, in such cash collateral account shall be
returned to the Borrower.
SECTION
7.03 Rights and
Remedies Cumulative; Non-Waiver; Etc.
The
enumeration of the rights and remedies of the Administrative Agent and the
Lenders set forth in this Agreement is not intended to be exhaustive, and the
exercise by the Administrative Agent and the Lenders of any right or remedy
shall not preclude the exercise of any other rights or remedies, all of which
shall be cumulative, and shall be in addition to any other right or remedy given
hereunder or that may now or hereafter exist in law or in equity or by suit or
otherwise. No delay or failure to take action on the part of the
Administrative Agent or any Lender in exercising any right, power or privilege
shall operate as a waiver thereof, nor shall any single or partial exercise of
any such right, power or privilege preclude other or further exercise thereof or
the exercise of any other right, power or privilege or shall be construed to be
a waiver of any Event of Default. No course of dealing between the
Borrower, the Administrative Agent and the Lenders or their respective agents or
employees shall be effective to change, modify or discharge any provision of
this Agreement or any of the other Loan Documents or to constitute a waiver of
any Event of Default.
[End of
Article VII]
36
ARTICLE
VIII
RESERVED
[End of
Article VIII]
37
ARTICLE
IX
THE
ADMINISTRATIVE AGENT
SECTION
9.01 Appointment.
Each Lender
hereby irrevocably designates and appoints JPMCB as the Administrative Agent of
such Lender and the Issuing Lender under this Agreement, the other Loan
Documents, and each such Lender and the Issuing Lender irrevocably authorizes
JPMCB, as the Administrative Agent for such Lender and the Issuing Lender, to
take such action on its behalf under the provisions of this Agreement, the other
Loan Documents and to exercise such powers and perform such duties as are
expressly delegated to the Administrative Agent by the terms of this Agreement,
the other Loan Documents, together with such other powers as are reasonably
incidental thereto. Notwithstanding any provision to the contrary elsewhere in
this Agreement, the Administrative Agent shall not have any duties or
responsibilities, except those expressly set forth herein, in the Loan
Documents, or any fiduciary relationship with any Lender, and no implied
covenants, functions, responsibilities, duties, obligations or liabilities shall
be read into this Agreement, any other Loan Documents or otherwise exist against
the Administrative Agent.
SECTION
9.02 Delegation of
Duties.
The
Administrative Agent may execute any of its duties under this Agreement, the
Letter of Credit, the other Loan Documents by or through agents or
attorneys-in-fact and shall be entitled to advice of counsel concerning all
matters pertaining to such duties. The Administrative Agent shall not
be responsible for the negligence or misconduct of any agents or
attorneys-in-fact selected by it with reasonable care.
SECTION
9.03 Exculpatory
Provisions.
Neither the
Administrative Agent nor any of its officers, directors, employees, agents,
attorneys-in-fact or affiliates shall be (i) liable for any action lawfully
taken or omitted to be taken by it or such Person under or in connection with
this Agreement, any other Loan Document (except in the case of gross negligence
or willful misconduct as determined by a court of competent jurisdiction) or
(ii) responsible in any manner to any of the Lenders for any recitals,
statements, representations or warranties made by the Borrower or any officer
thereof contained in this Agreement, any other Loan Document or in any
certificate, report, statement or other document referred to or provided for in,
or received by the Administrative Agent under or in connection with, this
Agreement, any other Loan Document or for the value, validity, effectiveness,
genuineness, enforceability or sufficiency of this Agreement or the Letter of
Credit, any other Loan Document or for any failure of the Borrower or its
Subsidiaries to perform its obligations hereunder or thereunder. The
Administrative Agent shall not be under any obligation to any Lender to
ascertain or to inquire as to the observance or performance of any of the
agreements contained in, or conditions of, this Agreement, any other Loan
Document, or to inspect the properties, books or records of the
Borrower.
38
SECTION
9.04 Reliance by
Administrative Agent.
The
Administrative Agent shall be entitled to rely, and shall be fully protected in
relying, upon any writing, resolution, notice, consent, certificate, affidavit,
letter, cablegram, telegram, telecopy, telex or teletype message, statement,
order or other document or conversation believed by it to be genuine and correct
and to have been signed, sent or made by the proper Person or Persons and upon
advice and statements of legal counsel (including, without limitation, counsel
to the Borrower), independent accountants and other experts selected by the
Administrative Agent. The Administrative Agent may deem and treat the
payee of any evidence of indebtedness in respect of any indebtedness hereunder
as the owner thereof for all purposes unless a written notice of assignment,
negotiation or transfer thereof shall have been filed with the Administrative
Agent. The Administrative Agent shall be fully justified in failing
or refusing to take any action under this Agreement, the Letter of Credit, any
Loan Document unless it shall first receive such advice or concurrence of the
Required Lenders (unless all of the Lenders’ action is required hereunder) as it
deems appropriate or it shall first be indemnified to its satisfaction by the
Lenders against any and all liability and expense which may be incurred by it by
reason of taking or continuing to take any such action. The
Administrative Agent shall in all cases be fully protected in acting, or in
refraining from acting, under this Agreement, the Loan Documents in accordance
with a request of the Required Lenders (unless all of the Lenders’ action is
required hereunder), and such request and any action taken or failure to act
pursuant thereto shall be binding upon all the Lenders.
SECTION
9.05 Notice of
Default.
The
Administrative Agent shall not be deemed to have knowledge or notice of the
occurrence of any Event of Default hereunder unless the Administrative Agent has
received notice from a Lender or the Borrower referring to this Agreement,
describing such Event of Default and stating that such notice is a “notice of
default”. In the event that the Administrative Agent receives such a notice, the
Administrative Agent shall give notice thereof to the Lenders. The
Administrative Agent shall take such action with respect to such Event of
Default as shall be reasonably directed by the Required Lenders; provided, that unless and
until the Administrative Agent shall have received such directions, the
Administrative Agent may (but shall not be obligated to) take such action, or
refrain from taking such action, with respect to such Event of Default as it
shall deem advisable in the best interests of the Issuing Lender and the
Lenders.
SECTION
9.06 Non-Reliance on
Administrative Agent and Other Lenders.
Each Lender
expressly acknowledges that neither the Administrative Agent nor any of its
officers, directors, employees, agents, attorneys-in-fact or affiliates has made
any representations or warranties to it and that no act by the Administrative
Agent hereinafter taken, including any review of the affairs of the Borrower,
shall be deemed to constitute any representation or warranty by the
Administrative Agent to any Lender. Each Lender represents to the
Administrative Agent that it has, independently and without reliance upon the
39
Administrative
Agent or any other Lender, and based on such documents and information as it has
deemed appropriate, made its own appraisal of and investigation into the
business, operations, property, financial and other condition and
creditworthiness of the Borrower and made its own decision to enter into this
Agreement. Each Lender also represents that it will, independently
and without reliance upon the Administrative Agent or any other Lender, and
based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit analysis, appraisals and decisions in
taking or not taking action under this Agreement, the Loan Documents and to make
such investigation as it deems necessary to inform itself as to the business,
operations, property, financial and other condition and creditworthiness of the
Borrower. Except for notices, reports and other documents expressly
required to be furnished to the Lenders by the Administrative Agent hereunder,
the Administrative Agent shall not have any duty or responsibility to provide
any Lender with any credit or other information concerning the business,
operations, property, condition (financial or otherwise), prospects or
creditworthiness of the Borrower which may come into the possession of the
Administrative Agent or any of its officers, directors, employees, agents,
attorneys-in-fact or affiliates.
SECTION
9.07 Indemnification.
The Lenders
agree to indemnify the Administrative Agent in its capacity as such (to the
extent not reimbursed by the Borrower and without limiting the obligation of the
Borrower to do so), ratably according to the respective amounts of their
Commitments, from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind whatsoever which may at any time (including, without limitation, at
any time following the termination of the Letter of Credit or Commitment) be
imposed on, incurred by or asserted against the Administrative Agent in any way
relating to or arising out of this Agreement, the Letter of Credit, any of the
other Loan Documents, or any documents contemplated by or referred to herein or
therein or the transactions contemplated hereby or thereby or any action taken
or omitted by the Administrative Agent under or in connection with any of the
foregoing; provided,
that no Lender
shall be liable for the payment of any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements resulting from the Administrative Agent’s gross negligence or
willful misconduct. The agreements in this Section shall survive the
termination of this Agreement, the Letter of Credit and the payment of all
amounts payable hereunder.
SECTION
9.08 Administrative
Agent in Its Individual Capacity.
The
Administrative Agent and its affiliates may make loans to, accept deposits from
and generally engage in any kind of business with, the Borrower as though the
Administrative Agent was not the Administrative Agent hereunder. With
respect to its interest in the L/C Obligations and any other amounts owed to it
hereunder, the Administrative Agent shall have the same rights and powers under
this Agreement as any Lender and may exercise the same as though it were not the
Administrative Agent, and the terms “Lender” and “Lenders” shall include the
Administrative Agent in its individual capacity.
40
SECTION
9.09 Successor
Administrative Agent.
The
Administrative Agent may resign as Administrative Agent upon ten (10) days’
notice to the Lenders and the Borrower. If the Administrative Agent
shall resign as Administrative Agent under this Agreement, then the Required
Lenders, with the consent of the Borrower, shall appoint from among the Lenders
a successor agent for the Lenders, whereupon such successor agent shall succeed
to the rights, powers and duties of the Administrative Agent, and the term
“Administrative Agent” shall mean such successor agent effective upon its
appointment, and the former Administrative Agent’s rights, powers and duties as
Administrative Agent shall be terminated, without any other or further act or
deed on the part of such former Administrative Agent or any of the parties to
this Agreement. After any retiring Administrative Agent’s resignation
as Administrative Agent, the provisions of this Section shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was
Administrative Agent under this Agreement. In the event the
Administrative Agent resigns pursuant to this Section 9.09, the
Administrative Agent shall also resign in its capacity as Issuing
Lender.
SECTION
9.10 Issuing
Lender.
Each Lender
hereby acknowledges that the provisions of this Article IX shall
apply to the Issuing Lender in its capacity as such; in the same manner, as such
provisions are expressly stated to apply to the Administrative
Agent.
SECTION
9.11 Notices; Actions
Under Loan Documents.
All notices
received by the Issuing Lender pursuant to this Agreement, any other Loan
Document shall be promptly delivered by the receiving party to the
Administrative Agent, for distribution to the Lenders, and any notices, reports
or other documents received by the Administrative Agent pursuant to this
Agreement shall be promptly delivered to the Issuing Lender and the
Lenders. The Issuing Lender hereby agrees not to amend or waive any
provision or consent to the amendment or waiver of any Loan Document without the
consent of the Required Lenders (or, to the extent required pursuant to Section 10.01, all of
the Lenders).
[End of
Article IX]
41
ARTICLE
X
MISCELLANEOUS
SECTION
10.01 Amendments,
Etc.
No amendment
or waiver of any provision of this Agreement, nor consent to any departure by
the Borrower therefrom, shall in any event be effective unless the same shall be
in writing and signed by the Required Lenders and the Borrower, and then such
waiver or consent shall be effective only in the specific instance and for the
specific purpose for which given; provided, no such waiver and
no such amendment, supplement or modification shall, without the written consent
of all the Lenders (a) extend the Termination Date or the maturity of any
unreimbursed drawing, or reduce the rate or extend the time of payment of
interest in respect thereof, or reduce any fee payable to any Lender hereunder
or extend the time for the payment thereof or change the amount of any Lender’s
Commitment, in each case without the written consent of all the Lenders, (b)
amend, modify or waive any provision of this Section 10.01 or
Section
10.09(e) or reduce the percentage specified in the definition of Required
Lenders, or consent to the assignment or transfer by the Borrower of any of its
rights and obligations under this Agreement, in each case without the written
consent of all the Lenders, (c) amend, modify or waive any provision of Article IX without
the written consent of the Administrative Agent, (d) waive, modify or eliminate
any of the conditions precedent specified in Article IV, in each
case without the written consent of all the Lenders, (e) forgive principal,
interest, fees or other amounts payable hereunder or (f) waive any requirement
for the release of collateral.
SECTION
10.02 Notices,
Etc.
All
notices and other communications provided for hereunder shall be in writing
(including telegraphic communication) and mailed, telecopied, telegraphed or
delivered as follows:
The
Borrower:
South
Jersey Industries, Inc.
0 Xxxxx
Xxxxxx Xxxxx
Xxxxxx,
Xxx Xxxxxx 00000
Attention: Xxxxxxx
X. Xxxxx
Telecopy
No.: (000) 000-0000
With a
copy to:
Cozen X’Xxxxxx
The Atrium
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx
00000
Attention: Xxxxxxx X. Xxxxx,
Esq.
Telecopy No.: (000)
000-0000
42
The
Administrative Agent or the Issuing Lender:
JPMorgan
Chase Bank, N.A.
000 Xxxx
Xxx Xxxxx Xxxxxx, Xxxxx 00
Xxxxxxx,
XX 00000-0000
Attention: Xxxxx
(Xxxxx) Xxxxxxxx
Vice
President - Global Trade Services
Phone:
000-000-0000
Telecopy: 000-000-0000
Email: xxxxx.xxxxxxxx@xxxxxxxx.xxx
Global
Trade Customer Service Hot Line: 000-000-0000
With a
copy to (other than in the case of any draw in respect of the Letter of Credit
or payment of any fees hereunder):
JPMorgan
Chase Bank, N.A.
00 Xxxxx
Xxxxxxxx, 0xx Xxxxx
Xxxxxxx,
XX 00000
Attention:
Xxxxx X. Xxxxxx
Mail Code
IL1-0090
Telecopy:
000-000-0000
and
to
JPMorgan
Chase Bank, N.A.
00 Xxxxx
Xxxxxxxx, 0xx Xxxxx
Xxxxxxx,
XX 00000
Attention: Xxxx
Xxxxxxx
Mail Code
IL1-0874
Telecopy:
000-000-0000
and if to
any Lender, at its address or telecopy number set forth on Schedule I hereto;
or, as to each party, at such other address as shall be designated by such party
in a written notice to the other parties. All such notices and
communications shall, when mailed, be effective three (3) days after being
deposited in the mails or when sent by telecopy or telex or delivered to the
telegraph company, respectively, addressed as previously aforesaid.
The
Administrative Agent and the Issuing Lender are authorized to accept and process
any Application and any amendments, transfers, assignments of proceeds,
instructions, consents, waivers and all documents relating to the Letter of
Credit or any Application which are sent to the Administrative Agent or the
Issuing Lender by electronic transmission, including S.W.I.F.T., electronic
mail, telex, telecopy, telefax, courier, mail or other computer generated
telecommunications and such electronic communication shall have the same legal
effect as if written and shall be binding upon and enforceable against the
Borrower. The Administrative Agent and the Issuing Lender may, but
shall not be obligated to, require authentication of such electronic
transmission or that the Administrative Agent or the Issuing Lender receive
original documents prior to acting on such electronic
transmission. If it is a condition of the Letter of Credit that
payment may be made upon receipt by the Issuing Lender of an electronic
transmission advising negotiation, the Borrower hereby
agrees to reimburse the Issuing Lender on demand for the amount indicated in
such electronic transmission advice, and further agrees to hold the Issuing
Lender harmless if the documents fail to arrive, or if, upon the arrival of the
documents, the Issuing Lender should determine that the documents do not comply
with the terms and conditions of the Letter of Credit.
43
SECTION
10.03 No Waiver;
Remedies.
No failure on
the part of the Administrative Agent, the Issuing Lender or any Lender to
exercise, and no delay in exercising, any right hereunder shall operate as a
waiver thereof; nor shall any single or partial exercise of any right hereunder
preclude any other or further exercise thereof or the exercise of any other
right. The remedies herein provided are cumulative and not exclusive
of any remedies provided by law.
SECTION
10.04 Set-off.
(a)
Upon the occurrence and during the continuance of any Event of Default, the
Administrative Agent and each Lender is hereby authorized at any time and from
time to time, to the fullest extent permitted by law, to set-off and apply any
and all deposits (general or special, time or demand, provisional or final) at
any time held and other indebtedness at any time owing by the Administrative
Agent or such Lender to or for the credit or the account of the Borrower against
any and all of the obligations of the Borrower now or hereafter existing under
this Agreement, irrespective of whether or not the Administrative Agent or such
Lender shall have made any demand hereunder and although such obligations may be
contingent or unmatured.
(b)
If any Lender (a “Benefited Lender”) shall at any time
receive any payment of all or part of the L/C Obligations or other obligations
of the Borrower to it hereunder (such Lender’s “Borrower
Obligations”), or interest thereon, or receive any collateral in respect
thereof (whether voluntarily or involuntarily, by set-off, pursuant to events or
proceedings of the nature referred to in Section 7.01(e), or
otherwise), in a greater proportion than any such payment to or collateral
received by any other Lender, if any, in respect of such other Lender’s Borrower
Obligations, or interest thereon, such Benefited Lender shall purchase for cash
from the other Lenders such portion of each such other Lender’s Borrower
Obligations, or shall provide such other Lenders with the benefits of any such
collateral, or the proceeds thereof, as shall be necessary to cause such
Benefited Lender to share the excess payment or benefits of such collateral or
proceeds ratably with each of the Lenders; provided, that if all or any
portion of such excess payment or benefits is thereafter recovered from such
Benefited Lender, such purchase shall be rescinded, and the purchase price and
benefits returned, to the extent of such recovery, but without
interest. The Borrower agrees that each Lender so purchasing a
portion of another Lender’s Borrower Obligations may exercise all rights of
payment (including, without limitation, rights of set-off) with respect to such
portion as fully as if such Lender were the direct holder of such
portion.
44
(c)
The Administrative Agent and each Lender agree promptly to notify the Borrower
after any such set-off and application referred to in subsection (a) above;
provided that the
failure to give such notice shall not affect the validity of such set-off and
application. The rights of the Administrative Agent and each Lender
under this Section
10.04 are in addition to other rights and remedies (including, without
limitation, other rights of set-off) which the Administrative Agent and each
Lender may have.
SECTION
10.05 Indemnification.
The Borrower
hereby indemnifies and holds the Issuing Lender, the Administrative Agent and
each Lender harmless from and against any and all claims, damages, losses,
liabilities, costs and expenses which such party may incur or which may be
claimed against such party by any Person:
(a)
by reason of any inaccuracy or alleged inaccuracy in any material respect, or
any untrue statement or alleged untrue statement of any material fact, or by
reason of the omission or alleged omission to state therein a material fact
necessary to make such statements, in the light of the circumstances under which
they were made, not misleading, in each case relating to any of the Loan
Documents and the transactions contemplated thereby, the Disclosure Documents or
in any manner, whether direct or indirect, related to this Agreement;
or
(b)
by reason of or in connection with the execution, delivery or performance of
this Agreement, the other Loan Documents, or any transaction contemplated by
this Agreement, the other Loan Documents, other than as specified in subsection
(c) below; or
(c)
by reason of or in connection with the execution and delivery or transfer of, or
payment or failure to make payment under this Agreement, the Letter of Credit,
any other Loan Document; provided, that the Borrower
shall not be required to indemnify any such party pursuant to this Section 10.05(c) for
any claims, damages, losses, liabilities, costs or expenses to the extent caused
by (i) the Issuing Lender’s willful misconduct or gross negligence in
determining whether documents presented under the Letter of Credit comply with
terms of the Letter of Credit or (ii) the Issuing Lender’s willful or grossly
negligent failure to make lawful payment under the Letter of Credit after the
presentation to it of a certificate strictly complying with the terms and
conditions of the Letter of Credit.
Nothing
in this Section
10.05 is intended to limit the Borrower’s obligations contained in Article
II. Without prejudice to the survival of any other obligation
of the Borrower hereunder, the indemnities and obligations of the Borrower
contained in this Section 10.05 shall
survive the payment in full of amounts payable pursuant to Article II and Article III and the
termination of the Commitment.
SECTION
10.06 Liability of the
Lenders.
The Borrower
assumes all risks of the acts or omissions of each beneficiary or transferee of
the Letter of Credit with respect to their use of the Letter of
Credit. None of the Issuing Lender, the Administrative Agent, the
Lenders nor any of their respective officers or directors shall be liable or
responsible for: (a) the use which may be made of the Letter of Credit or any
acts or omissions of each beneficiary or transferee in connection therewith; (b)
the validity, sufficiency or genuineness of documents, or of any endorsement
thereon, even if such documents should prove to be in any or all respects
invalid, insufficient, fraudulent or forged; (c) payment by the Issuing Lender
against presentation of documents which do not comply with the terms of the
Letter of Credit, including failure of any documents to bear any reference or
adequate reference to the Letter of Credit; or (d) any other
45
circumstances
whatsoever in making or failing to make payment under the Letter of Credit,
except that the Borrower shall have a claim against the Issuing Lender and the
Issuing Lender shall be liable to the Borrower, to the extent of any direct, as
opposed to consequential, damages suffered by the Borrower which the Borrower
proves were caused by (i) the Issuing Lender’s willful misconduct or gross
negligence in determining whether documents presented under the Letter of Credit
are genuine or comply with the terms of the Letter of Credit or (ii) the Issuing
Lender’s willful or grossly negligent failure, as determined by a court of
competent jurisdiction, to make lawful payment under the Letter of Credit after
the presentation to it of a certificate strictly complying with the terms and
conditions of the Letter of Credit. In furtherance and not in
limitation of the foregoing, the Issuing Lender may accept original or facsimile
(including telecopy) certificates presented under the Letter of Credit that
appear on their face to be in order, without responsibility for further
investigation, regardless of any notice or information to the
contrary. Any action or proceeding in respect of any matter arising
under or in connection with the Letter of Credit, this Agreement or any other
Loan Document must be brought by the Borrower against the Administrative Agent,
Issuing Lender or Lender, as applicable, within the time period specified in
Section 5-115 of the Uniform Commercial Code.
SECTION
10.07 Costs, Expenses
and Taxes.
The Borrower agrees to pay on demand all costs and expenses in connection
with the preparation, issuance, delivery, filing, recording, and administration
of this Agreement, the Letter of Credit and any other documents which may be
delivered in connection with this Agreement, including, without limitation, the
reasonable fees and out-of-pocket expenses of counsel for the Administrative
Agent and the Issuing Lender incurred in connection with the preparation and
negotiation of this Agreement, the Letter of Credit and any document delivered
in connection therewith and all costs and expenses incurred by the
Administrative Agent (and, in the case of clause (iii) or (iv) below, any
Lender) (including reasonable fees and out of pocket expenses of counsel) in
connection with (i) the transfer, drawing upon, change in terms, maintenance,
renewal or cancellation of this Agreement and the Letter of Credit, (ii) any and
all amounts which the Administrative Agent or any Lender has paid relative to
the Administrative Agent’s or such Lender’s curing of any Event of Default
resulting from the acts or omissions of the Borrower under this Agreement, any
other Loan Document, (iii) the enforcement of, or protection of rights under,
this Agreement, any other Loan Document (whether through negotiations, legal
proceedings or otherwise), (iv) any action or proceeding relating to a court
order, injunction, or other process or decree restraining or seeking to restrain
the Issuing Lender from paying any amount under the Letter of Credit or (v) any
waivers or consents or amendments to or in respect of this Agreement, the Letter
of Credit requested by the Borrower. In addition, the Borrower shall
pay any and all stamp and other taxes and fees payable or determined to be
payable in connection with the execution, delivery, filing and recording of this
Agreement, the Letter of Credit or any of such other documents, and agree to
save the Issuing Lender, the Administrative Agent and the Lenders harmless from
and against any and all liabilities with respect to or resulting from any delay
in paying or omission to pay such taxes and fees.
46
(a)
Intentionally Omitted.
SECTION
10.08 Binding
Effect.
This
Agreement shall become effective when it shall have been executed and delivered
by the Borrower and the Issuing Lender, the Administrative Agent and the Lenders
and thereafter shall (a) be binding upon the Borrower, its successors and
assigns, and (b) inure to the benefit of and be enforceable by the Lenders and
each of their respective successors, assigns and permitted transferees; provided, that the Borrower may not
assign all or any part of its rights or obligations under this Agreement without
the prior written consent of the Lenders.
SECTION
10.09 Assignments and
Participation.
Each Lender may assign to one or more Eligible Assignees all or a portion
of its rights and obligations under this Agreement and the Loan Documents
(including, without limitation, all or a portion of its Commitment); provided, that (i) the
Borrower (unless a Default or an Event of Default shall have occurred and be
continuing) shall have consented to such assignment (such consent not to be
unreasonably withheld or delayed) by signing the Assignment and Acceptance
referred to in clause (iii) below, (ii) each such assignment shall be in a
minimum amount of $5,000,000 (or, if less, the entire amount of such Lender’s
Commitment) and be of a constant, and not a varying, percentage of all of the
assigning Lender’s rights and obligations under this Agreement and the Loan
Documents and (iii) the parties to each such assignment shall execute and
deliver to the Administrative Agent, for its acceptance and recording in the
Register (as defined in Section 10.09(c)), an
Assignment and Acceptance, together with a processing and recordation fee of
$3,500, payable by the assigning Lender or the Eligible Assignee, as agreed upon
by such parties. Upon such execution, delivery, acceptance and
recording, from and after the effective date specified in each Assignment and
Acceptance, (x) the Eligible Assignee thereunder shall be a party hereto and, to
the extent that rights and obligations hereunder have been assigned to it
pursuant to such Assignment and Acceptance, have the rights and obligations of a
Lender hereunder and (y) the Lender assignor thereunder shall, to the extent
that rights and obligations hereunder have been assigned by it pursuant to such
Assignment and Acceptance, relinquish its rights and be released from its
obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all or the remaining portion of an assigning Lender’s rights
and obligations under this Agreement, such Lender shall cease to be a party
hereto). Notwithstanding anything to the contrary contained in this
Agreement, any Lender may at any time assign all or any portion of the
Obligations owing to it to any Affiliate of such Lender. No such
assignment referred to in the preceding sentence, other than to an Affiliate of
such Lender consented to by the Borrower (such consent not to be unreasonably
withheld or delayed), shall release the assigning Lender from its obligations
hereunder. Nothing contained in this Section 10.09 shall
be construed to relieve the Issuing Lender of any of its obligations under the
Letter of Credit.
(b)
By executing and delivering an Assignment and Acceptance, the Lender assignor
thereunder and the Eligible Assignee thereunder confirm to and agree with each
other and the other parties hereto as follows: (i) other than as provided
in such Assignment and Acceptance, such assigning Lender makes no representation
or warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with this Agreement, any
other Loan Document or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of this Agreement or any other Loan Document
or any other instrument or document furnished pursuant hereto; (ii) such
assigning Lender makes no representation or warranty and assumes no
responsibility with respect to the financial condition of the Borrower or the
performance or observance by the Borrower of any of its obligations under this
Agreement, any other Loan Document or any other instrument or document furnished
pursuant hereto or thereto; (iii) such Eligible Assignee confirms that it has
received a copy of this Agreement, together with copies of the financial
statements referred to in Section 5.01(f) and
such other documents and
47
information
as it has deemed appropriate to make its own credit analysis and decision to
enter into such Assignment and Acceptance; (iv) such Eligible Assignee will,
independently and without reliance upon the Administrative Agent, such assigning
Lender or any other Lender and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under this Agreement; (v) such Eligible Assignee
appoints and authorizes the Administrative Agent to take such action as agent on
its behalf and to exercise such powers under this Agreement as are delegated to
it by the terms hereof, together with such powers as are reasonably incidental
thereto; and (vi) such Eligible Assignee agrees that it will perform in
accordance with their terms all of the obligations which by the terms of this
Agreement are required to be performed by it as a Lender.
(c)
The Administrative Agent shall maintain at its address referred to in Section 10.02 a copy
of each Assignment and Acceptance delivered to and accepted by it and a register
for the recordation of the names and addresses of the Lenders and the Commitment
of, and principal amount of the Obligations owing to, each Lender from time to
time (the “Register”). The
entries in the Register shall be conclusive and binding for all purposes, absent
manifest error, and the Borrower, the Administrative Agent, the Issuing Lender
and the Lenders may treat each Person whose name is recorded in the Register as
a Lender hereunder for all purposes of this Agreement. The Register
shall be available for inspection by the Borrower or any Lender at any
reasonable time and from time to time upon reasonable prior notice.
(d)
Upon its receipt of an Assignment and Acceptance executed by an assigning Lender
and an Eligible Assignee, the Administrative Agent shall, if such Assignment and
Acceptance has been completed and is in substantially the form of Exhibit B hereto, and
has been signed by the Borrower (if the Borrower’s consent is required), (i)
accept such Assignment and Acceptance, (ii) record the information contained
therein in the Register and (iii) give prompt notice of such recordation to the
Borrower.
(e)
Each Lender may sell participations to one or more banks, financial institutions
or other entities (a “Participant”)
in all or a portion of its rights and obligations under this Agreement and the
Loan Documents (including, without limitation, all or a portion of its
Commitment); provided,
that (i) such Lender’s obligations under this Agreement (including, without
limitation, its Commitment to the Borrower hereunder) shall remain unchanged,
(ii) such Lender shall remain solely responsible to the other parties hereto for
the performance of such obligations, and (iii) the Borrower, the Administrative
Agent and the other Lenders shall continue to deal solely and directly with such
Lender in connection with such Lender’s rights and obligations under this
Agreement. Any agreement pursuant to which any Lender may grant such
a participating interest shall provide that such Lender shall retain the sole
right and responsibility to enforce the obligations of the Borrower hereunder
including, without limitation, the right to approve any amendment, modification
or waiver of any provision of this Agreement; provided, that such
participation agreement may provide that such Lender will not agree to any
modification, amendment or waiver of this Agreement which would (a) waive,
modify or eliminate any of the conditions precedent specified in Article IV, (b)
increase or extend the Commitments of the Lenders or subject the Lenders to any
additional obligations, (c) forgive principal, interest, fees or other amounts
payable hereunder or reduce the rate at which interest or any fee is calculated,
(d) postpone any date fixed for any
48
payment
of principal, interest, fees or other amounts payable hereunder, (e) change the
Commitment Percentage or the number of Lenders which shall be required for the
Lenders or any of them to take any action hereunder, or (f) amend this Section
10.09(e).
(f)
Any Lender may, in connection with any assignment or participation or proposed
assignment or participation pursuant to this Section 10.09 and in
accordance with Section 10.16,
disclose to the Eligible Assignee or Participant or proposed Eligible Assignee
or Participant, any Information relating to the Borrower furnished to such
Lender by or on behalf of the Borrower; provided, that prior to any such
disclosure, the Eligible Assignee or Participant or proposed Eligible Assignee
or Participant shall agree to preserve the confidentiality of any confidential
information relating to the Borrower received by it from such Lender and use it
only for purposes of this Agreement, the Loan Documents and the transactions
contemplated hereby and thereby, or for any other reason, directly or
indirectly, relating to this Agreement; provided, further, that the Eligible
Assignee or Participant or proposed Eligible Assignee or Participant may disclose any such information to the
extent such disclosure is required by law or requested by any regulatory
authority.
(g)
Anything in this Section 10.09 to the
contrary notwithstanding, any Lender may assign and pledge all or any portion of
its Commitment and other obligations owing to it to any Federal Reserve Lender
(and its transferees) as collateral security pursuant to Regulation A of the
Board of Governors of the Federal Reserve System and any Operating Circular
issued by such Federal Reserve Lender. No such assignment shall
release the assigning Lender from its obligations hereunder.
(h)
[Intentionally Omitted].
SECTION
10.10 Severability.
Any provision
of this Agreement which is prohibited, unenforceable or not authorized in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition, unenforceability or non-authorization without invalidating the
remaining provisions hereof or affecting the validity, enforceability or
legality of such provision in any other jurisdiction.
49
SECTION
10.11 Governing Law.
This agreement shall be
governed by, and construed in accordance with, the laws of the state of New
York.
SECTION
10.12 Headings.
Section
headings in this Agreement are included herein for convenience of reference only
and shall not constitute a part of this Agreement for any other
purpose.
SECTION
10.13 Submission To
Jurisdiction; Waivers.
The Borrower
hereby irrevocably and unconditionally:
(a)
submits for itself and its property in any legal action or proceeding relating
to this Agreement and the other Loan Documents to which it is a party, or for
recognition and enforcement of any judgment in respect thereof, to the
non-exclusive general jurisdiction of the Courts of the State of New York, the
courts of the United States of America for the Southern District of New York,
and appellate courts from any thereof;
(b)
consents that any such action or proceeding may be brought in such courts and
waives any objection that it may now or hereafter have to the venue of any such
action or proceeding in any such court or that such action or proceeding was
brought in an inconvenient court and agrees not to plead or claim the
same;
(c)
agrees that service of process in any such action or proceeding may be effected
by mailing a copy thereof by registered or certified mail (or any substantially
similar form of mail), postage prepaid, to the Borrower at its address set forth
in Section
10.02 or at such other address of which the Administrative Agent shall
have been notified pursuant thereto; and
(d)
agrees that nothing herein shall affect the right to effect service of process
in any other manner permitted by law or shall limit the right to xxx in any
other jurisdiction.
This
Section 10.13
shall not be construed to confer a benefit upon, or grant a right or privilege
to, any Person other than the parties hereto.
SECTION
10.14 Acknowledgments.
The Borrower
hereby acknowledges:
(a)
it has been advised by counsel in the negotiation, execution and delivery of
this Agreement and other Loan Documents;
(b)
neither the Administrative Agent, the Issuing Lender nor any Lender has a
fiduciary relationship to the Borrower, and the relationship between the
Administrative Agent, the Issuing Lender and any Lender, on the one hand, and
the Borrower on the other hand, is solely that of debtor and creditor;
and
50
(c)
no joint venture exists between the Borrower and the Administrative Agent, the
Issuing Lender or any Lender.
SECTION
10.15 Waivers of Jury Trial.
To the
fullest extent permitted by Applicable Law, each of the Borrower, the
Administrative Agent, the Issuing Lender and the Lenders hereby irrevocably and
unconditionally waives trial by jury in any legal action or proceeding relating
to this Agreement or any other Loan Document and for any counterclaim
therein. This Section 10.15 shall
not be construed to confer a benefit upon, or grant a right or privilege to, any
person other than the parties hereto.
SECTION
10.16 Confidentiality.
Each of the Administrative Agent, the Issuing Lender and the Lenders
agrees to maintain the confidentiality of the Information (as defined below),
and use it only for purposes of this Agreement, the Loan Documents and the
transactions contemplated hereby and thereby, or for any other reason, directly
or indirectly, relating to this Agreement, except that Information may be
disclosed (i) to its and its Affiliates’ directors, officers, employees and
agents, including accountants, legal counsel and other advisors (it being
understood that the Persons to whom such disclosure is made will be informed of
the confidential nature of such Information and instructed to keep such
Information confidential); (ii) to the extent requested by any regulatory
authority; (iii) to the extent required by Applicable Law; (iv) to any other
party to this Agreement; (v) in connection with the exercise of any remedies
hereunder or any suit, action or proceeding relating to this Agreement or the
enforcement of rights hereunder; (vi) subject to an agreement containing
provisions substantially the same as those of this Section, to (x) any Eligible
Assignee of or Participant in, or any prospective
Eligible Assignee of or Participant in, any of its rights or obligations under
this Agreement or (y) any direct or indirect contractual counterparty or
prospective counterparty (or such contractual counterparty’s or prospective
counterparty’s professional advisor) to any credit derivative transaction
relating to obligations of the Borrower; (vii) with the written consent of the
Borrower; (viii) to the extent such Information becomes publicly available other
than as a result of a breach of this Section or (ix) becomes available to the
Administrative Agent or any Lender on a nonconfidential basis from a source
other than the Borrower and such source is not known by the Administrative Agent
or such Lender to be in violation of a duty of confidentiality; or (x) to the
National Association of Insurance Commissioners or any other similar
organization.
(b)
The Administrative Agent and the Lenders may disclose the existence of this
Agreement and information about this Agreement to market data collectors,
similar service providers to the lending industry, and service providers to the
Administrative Agent and the Lenders in connection with the administration and
management of this Agreement, the other Loan Documents and the Commitments;
provided, however, that
information disclosed by the Administrative Agent or any Lender to any such
market data collectors or similar service providers shall be of a type generally
provided to such Persons in other transactions. For the purposes of
this Section
10.16, “Information”
means all non-public information received from the Borrower relating to the
Borrower or its business. Notwithstanding anything herein to the
contrary, Information, for purposes of this Section 10.16, shall
not include, and the Administrative Agent and each Lender may disclose to any
and all Persons, without limitation of any kind, any information with respect to
the U.S. federal income
51
tax
treatment and U.S. federal income tax structure of the transactions contemplated
hereby and all materials of any kind (including opinions or other tax analyses)
that are provided to the Administrative Agent or such Lender relating to such
tax treatment and tax structure.
(c)
Any Person required to maintain the confidentiality of Information as provided
in this Section
10.16 shall be considered to have complied with its obligation to do so
if such Person has exercised the same degree of care to maintain the
confidentiality of such Information as such Person would accord to its own
confidential information. Each of the Administrative Agent, the
Issuing Lender, the Lenders and the Participants shall promptly notify the
Borrower of its receipt of any subpoena or similar process or authority, unless
prohibited therefrom by the issuing Person.
SECTION
10.17 Patriot
Act
Each of the
Administrative Agent, the Issuing Lender and the Lenders hereby notifies the
Borrower that pursuant to the requirements of the USA Patriot Act (Title III of
Pub. L. 107-56 (signed into law October 26, 2001)), it is required to obtain,
verify and record information that identifies the Borrower, which information
includes the name and address of the Borrower and other information that will
allow such Lender or the Agent, as applicable, to identify the Borrower in
accordance with such Act.
SECTION
10.18 Execution in
Counterparts.
This Agreement 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.
[SIGNATURE
PAGES FOLLOW]
52
IN
WITNESS WHEREOF, the parties hereto have caused his Agreement to be duly
executed and delivered by their respective duly authorized officers as of the
date first above written.
SOUTH
JERSEY INDUSTRIES, INC.
By: ____________________________
Name:
Title:
JPMORGAN
CHASE BANK, N.A., as Administrative Agent, as a Lender and as Issuing
Lender
By: ____________________________
Name:
Title:
SIGNATURE PAGE
TO LETTER OF CREDIT REIMBURSEMENT AGREEMENT