SECOND AMENDMENT
TO
AMENDED AND RESTATED LETTER OF CREDIT
AND REIMBURSEMENT AGREEMENT
This SECOND AMENDMENT TO AMENDED AND RESTATED LETTER OF CREDIT
AND REIMBURSEMENT AGREEMENT (this "Second Amendment") is made as of the 21st day
of January, 2004, among SOUTH JERSEY INDUSTRIES, INC., a New Jersey corporation
("South Jersey"); MARINA ENERGY LLC, a New Jersey limited liability company
("Marina Energy"; and together with South Jersey, collectively, the "Obligors");
WACHOVIA BANK, NATIONAL ASSOCIATION, a national banking association having its
principal offices in Charlotte, North Carolina ("Wachovia"), as the Fronting
Bank (the "Fronting Bank"); WACHOVIA, as the Administrative Agent (the
"Administrative Agent"); and the participating banks listed on the signature
pages hereto (collectively, the "Banks"). Unless otherwise defined herein,
capitalized terms used herein shall have the meanings ascribed to them in the
Reimbursement Agreement (as defined below).
WITNESSETH:
WHEREAS, the undersigned are parties to that certain Amended
and Restated Letter of Credit and Reimbursement Agreement dated as of September
19, 2002 (as amended by that certain First Amendment to Amended and Restated
Letter of Credit and Reimbursement Agreement dated as of August 21, 2003, the
"Reimbursement Agreement"); and
WHEREAS, the Obligors have requested that the Administrative
Agent, the Fronting Bank and the Banks agree (i) to extend the Stated Expiration
Date of each Letter of Credit currently in effect, pursuant to the terms and
conditions of Section 2.15 of the Reimbursement Agreement, and (ii) to make
certain modifications to the terms of the Reimbursement Agreement, including
without limitation, an amendment to the definition of "Permitted Indebtedness"
set forth therein, and the Administrative Agent, the Fronting Bank and the Banks
have agreed to grant such extension and to make such modifications, on the terms
and conditions set forth in this Second Amendment.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth herein, the premises set forth above (which are
incorporated herein by this reference) and for other good and valuable
consideration, the receipt and sufficiency of which hereby are acknowledged, the
undersigned agree as follows:
1. Extension of the Stated Expiration Date of each Letter of
Credit. Pursuant to the provisions of Section 2.15 of the Reimbursement
Agreement, the undersigned agree as follows:
a. By notice to the Administrative Agent, given more than
ninety (90) days before the Stated Expiration Date of each Letter of
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Credit currently in effect, the Obligors have requested the Fronting
Bank, with the consent of all of the Banks, to extend the Stated
Expiration Date of each such Letter of Credit to September 19, 2005.
b. The Fronting Bank and the Banks have elected to so
extend the Stated Expiration Date for each such Letter of Credit
currently in effect and have requested that the Administrative Agent
deliver to the Obligors a Notice of Extension designating the date to
which the Stated Expiration Date for each such Letter of Credit shall
be extended and the conditions for the consent of the Fronting Bank and
the Banks.
c. Upon satisfaction of all conditions set forth in the
Notice of Extension, all references in the Reimbursement Agreement to
the Stated Expiration Date as to each such Letter of Credit currently
in effect shall be deemed to be references to the date of September 19,
2005, as such date may be further extended in accordance with Section
2.15 of the Reimbursement Agreement.
2. Amendments to Reimbursement Agreement. The Reimbursement
Agreement is amended as follows:
(a) Section 1.01 of the Reimbursement Agreement is amended by
deleting the reference to the amount of "$100,000,000" in item (2) of
the definition of "Permitted Indebtedness" and replacing it with a
reference to the amount of "$120,000,000."
3. Representations and Warranties. The Obligors hereby
represent and warrant that (a) all of the representations and warranties
contained in Article IV of the Reimbursement Agreement are true, correct and
complete as of the date hereof as if made on and as of the date hereof,
and (b) no Default or Event of Default has occurred and is continuing on the
date hereof before or after giving effect to this Second Amendment.
4. Conditions Precedent. This Second Amendment shall become
effective as of the date hereof, upon the satisfaction of the following
conditions precedent:
a. Execution By All Parties. This Second Amendment shall
have been executed and delivered by each of the parties hereto.
b. Other Documents. The Administrative Agent shall have
received such other documents, approvals and opinions as the
Administrative Agent, the Fronting Bank and the Banks may reasonably
request.
c. Fees. The Administrative Agent shall have received (for
its own account and the account of the Banks, as applicable) all of the
fees required to be received in connection with this Second Amendment,
including, without limitation, the fees set forth in that certain Fee
Arrangement Letter dated December 19, 2003, among the Administrative
Agent, Wachovia Capital Markets, LLC, and the Obligors.
5. Expenses. The Obligors shall pay (a) all out-of-pocket
expenses of the Administrative Agent (including reasonable fees and
disbursements of counsel for the Administrative Agent) in connection with the
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preparation of this Second Amendment and any other instruments or documents to
be delivered hereunder, any waiver or consent hereunder or thereunder or any
amendment hereof or thereof; and (b) if an Event of Default occurs, all
out-of-pocket expenses incurred by the Administrative Agent and each of the
Banks, including fees and disbursements of counsel for the Administrative Agent
and each of the Banks, in connection with such Event of Default and collection
and other enforcement proceedings resulting therefrom, including out-of-pocket
expenses incurred in enforcing the Reimbursement Agreement as amended by this
Amendment, and each Related Document.
6. Successors and Assigns. This Second Amendment shall be
binding upon and inure to the benefit of each of the parties hereto and its
respective successors and assigns. The successor and assigns of such entities
shall include, without limitation, their respective receivers, trustees, or
debtors-in-possession.
7. Further Assurances. The Obligors hereby agree from time to
time, as and when requested by the Administrative Agent, to execute and deliver
or cause to be executed and delivered, all such documents, instruments and
agreements and to take or cause to be taken such further or other action as the
Administrative Agent may reasonably deem necessary in order to carry out the
intent and purposes of this Second Amendment.
8. Ratification. Except as herein provided, the Reimbursement
Agreement shall remain unchanged and shall continue to be in full force and
effect and is hereby ratified and confirmed in all respects. It is the
intention and understanding of the parties hereto that this Second Amendment
shall act as an amendment to the Reimbursement Agreement and shall not act as a
novation of the indebtedness evidenced by the Reimbursement Agreement.
9. General. References (i) in the Reimbursement Agreement to
"this Agreement" (and indirect references such as "hereunder," "hereof" and
words of like import referring to the Reimbursement Agreement), and (ii) in the
Related Documents to "the Reimbursement Agreement" (and indirect references such
as "thereunder," "thereof" and words of like import referring to the
Reimbursement Agreement) shall be deemed to be references to the Reimbursement
Agreement as amended by this Second Amendment.
10. Definitions. All references to the singular shall be
deemed to include the plural and vice versa where the context so requires.
11. Governing Law. THIS SECOND AMENDMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT
GIVING EFFECT TO NEW YORK CHOICE OF LAW PRINCIPLES.
12. Severability. Wherever possible, each provision of this
Second Amendment shall be interpreted in such manner as to be effective and
valid under applicable law, but if any provision of this Second Amendment shall
be prohibited by or invalid under such law, then such provision shall be
ineffective to the extent of such prohibition or invalidity without invalidating
the remainder of such provision or the remaining provisions of this Second
Amendment.
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13. Execution in Counterparts. This Second Amendment may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement.
14. Section Headings. The section headings herein are for
convenience of reference only, and shall not affect in any way the
interpretation of any of the provisions hereof.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, this Second Amendment has been duly
executed by each of the undersigned as of the day and year first set forth
above.
SOUTH JERSEY INDUSTRIES, INC.
By: /s/ XXXXX X. XXXXXXXX
___________________________________
Xxxxx X. Xxxxxxxx
Vice President, Treasurer &
Chief Financial Officer
MARINA ENERGY LLC
By: South Jersey Industries, Inc.
Its: Sole Member
By: /s/ XXXXX X. XXXXXXXX
__________________________________
Xxxxx X. Xxxxxxxx
Vice President, Treasurer &
Chief Financial Officer
Second Amendment to Amended and Restated
Letter of Credit and Reimbursement Agreement
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WACHOVIA BANK, NATIONAL ASSOCIATION,
as Administrative Agent, as Fronting
Bank and as a Bank
By:/s/ XXXXXXXX X. XXXXXXXX
------------------------------------
Xxxxxxxx X. Xxxxxxxx
Vice President
Second Amendment to Amended and Restated
Letter of Credit and Reimbursement Agreement
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XXXXXX UNITED BANK,
as a Bank
By: /s/ XXXXXXX X. XXXXXX
-------------------------------------
Name: Xxxxxxx X. Xxxxxx
-------------------------------------
Title: Senior Vice President
-------------------------------------
Second Amendment to Amended and Restated
Letter of Credit and Reimbursement Agreement
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COMMERCE BANK, N.A.,
as a Bank
By: /s/ XXXXXX X. XXXXX
--------------------------------------
Name: Xxxxxx X. Xxxxx
-----------------------------------
Title: Senior Vice President
-----------------------------------
Second Amendment to Amended and Restated
Letter of Credit and Reimbursement Agreement
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SUN NATIONAL BANK,
as a Bank
By: /s/ XXXXX XXXXX
--------------------------------------
Name: Xxxxx Xxxxx
-----------------------------------
Title: Vice President
-----------------------------------
Second Amendment to Amended and Restated
Letter of Credit and Reimbursement Agreement
Page S5
