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