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South Jersey Industries, Inc.

Second Amendment to 2014 Note Purchase Agreement

 

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Exhibit 99.3

 

Execution Version

 

Second Amendment to Note Purchase Agreement

This Second Amendment   to Note Purchase Agreement (this “Second Amendment” ) dated as of July 3, 2018 is between South Jersey Industries, Inc. , a New Jersey corporation (the “Company” ), and each of the institutions that is a signatory to this Second Amendment (collectively, the “Required Holders” ).  Capitalized terms used herein and not otherwise defined herein shall have the meanings ascribed thereto in the Note Purchase Agreement (as defined below).

W I T N E S S E T H

Whereas , the Company and the institutional investors named therein have heretofore entered into a Note Purchase Agreement dated as of August 16, 2017 (the “Note Purchase Agreement” ), relating to issue and sale by the Company of its (a) $25,000,000 aggregate principal amount of its 3.22% Senior Notes, Series 2017A-1, due August 16, 2024 ( “Series A1 Notes” ), (b) $25,000,000 aggregate principal amount of its 3.46% Senior Notes, Series 2017B-1, due August 16, 2027 ( “Series B1 Notes” ), (c) $25,000,000 aggregate principal amount of its 3.32% Senior Notes, Series 2017A-2, due January 16, 2025 ( “Series A2 Notes” ) and (d) $25,000,000 aggregate principal amount of its 3.56% Senior Notes, Series 2017B-2, due January 16, 2028 ( “Series B2 Notes” and collectively with the Series A1 Notes, Series B1 Notes and Series A2 Notes, the “Notes” ).  Capitalized terms used herein and not otherwise defined herein shall have the meanings ascribed thereto in the Note Purchase Agreement.

Whereas , the Company and the Required Holders have agreed to make certain amendments to the Note Purchase Agreement as hereinafter set forth .

Whereas , all requirements of law have been fully complied with and all other acts and things necessary to make this Second Amendment a valid, legal and binding instrument according to its terms for the purposes herein expressed have been done or performed.

Now, therefore , upon the full and complete satisfaction of the conditions precedent to the effectiveness of this Second Amendment set forth in Section 3 hereof, and for good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, the parties hereto agree as follows:

Section 1.              Amendments to Note Purchase Agreement.

Section 1.1.           Section 9.7 of the Note Purchase Agreement shall be and is hereby amended and restated in its entirety to read as follows:

“ Section 9.7.            Ownership .  The Company will directly or indirectly own, at all times, 100% of the Capital Stock having voting rights of South Jersey Gas Company   and Elizabethtown (upon the Elizabethtown Gas Acquisition Closing Date).”

 

Section 1.2.           The following definition shall be and hereby is added in alphabetical order to Schedule B of the Note Purchase Agreement to read as follows :

“ ‘Elizabethtown’ means Elizabethtown Gas Company, a New Jersey corporation and wholly-owned Subsidiary of the Company upon the Elizabethtown Gas Acquisition Closing Date.”

Section 2.              Representations and Warranties of the Company.

Section 2.1.          To induce the Required Holders to execute and deliver this Second Amendment (which representations shall survive the execution and delivery of this Second Amendment), the Company represents and warrants to the holders of the outstanding Notes (the “Noteholders” ) that:

(a)           this Second Amendment has been duly authorized, executed and delivered by it, and this Second Amendment and the Note Purchase Agreement as amended by this Second Amendment each constitutes a legal, valid and binding obligation of the Company enforceable against the Company in accordance with its respective terms, except as such enforceability may be limited by (a) applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors’ rights generally and (b) general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law);

(b)           the execution, delivery and performance by the Company of this Second Amendment (i) have been duly authorized by all necessary corporate action on the part of the Company, (ii) does not require the consent, approval or authorization of, or registration, filing or declaration with, any Governmental Authority, and (iii) will not contravene, result in any breach of, or constitute a default under, or result in the creation of any Lien in respect of any property of the Company or any Subsidiary under, any indenture, mortgage, deed of trust, loan, purchase or credit agreement, lease, corporate charter or bylaws, or any other Material agreement or instrument to which the Company or any Subsidiary is bound or by which the Company or any Subsidiary or any of their respective properties may be bound or affected;

(c)           as of the date hereof and after giving effect to this Second Amendment, no Default or Event of Default has occurred which is continuing;

(d)           the Company has provided the Noteholders with true, correct and complete copies of the amendments to each of the Principal Credit Facilities relating to the subject matter of this Second Amendment; and

 

(e)           no consent fee, amendment fee or other similar form of consideration is being paid or given, in respect of any Principal Credit Facility, to all consenting lenders or noteholders under such Principal Credit Facility in consideration for their consent to an amendment that addresses the subject matter of this Second Amendment.

 

Section 3.              Conditions to Effectiveness of This Second Amendment.

Section 3.1.            This Second Amendment shall not become effective until, and shall become effective when:

(a)           executed counterparts of this Second Amendment, duly executed by the Company and the Required Holders, shall have been delivered to the Noteholders;

(b)           the Company shall have provided the Noteholders with true, correct and complete copies of the amendments to each of the Principal Credit Facilities relating to the subject matter of this Second Amendment in form and substance satisfactory to the Required Holders;

(c)           the Noteholders shall have received a copy of the resolutions of the Board of Directors of the Company authorizing the execution, delivery and performance by the Company of this Second Amendment, certified by its Secretary or an Assistant Secretary;

(d)           the Noteholders shall have received the favorable opinion of counsel to the Company (which may be internal counsel) as to the matters set forth in Sections 2.1(a) and 2.1(b) hereof, which opinion shall be in form and substance satisfactory to the Required Holders; and

(e)           the Company shall have paid or caused to be paid reasonable, out-of-pocket fees and expenses of Chapman and Cutler LLP, special counsel to the Noteholders, in connection with the negotiation, approval, execution and delivery of this Second Amendment, to the extent invoiced at least 2 Business Days in advance of the date hereof.

Section 4.              Miscellaneous.

Section 4.1.          This Second Amendment shall be construed in connection with and as part of the Note Purchase Agreement, and except as modified and expressly amended by this Second Amendment, all terms, conditions and covenants contained in the Note Purchase Agreement and the Notes are hereby ratified and shall be and remain in full force and effect.

Section 4.2.           Any and all notices, requests, certificates and other instruments executed and delivered after the execution and delivery of this Second Amendment may refer to the Note Purchase Agreement without making specific reference to this Second Amendment but nevertheless all such references shall include this Second Amendment unless the context otherwise requires.

 

Section 4.3.           The descriptive headings of the various Sections or parts of this Second Amendment are for convenience only and shall not affect the meaning or construction of any of the provisions hereof.

Section 4.4.           This Second Amendment shall be governed by and construed in accordance with the laws of the State of New York.

* * * * *

 

Section 4.5.           The execution hereof by you shall constitute a contract between us for the uses and purposes hereinabove set forth, and this Second Amendment may be executed in any number of counterparts, each executed counterpart constituting an original, but all together only one agreement.

 

 

Accepted as of the date first written above.

 

 

 

South Jersey Industries, Inc.

Second Amendment to 2017 Note Purchase Agreement

 

Accepted as of the date first written above.

 

 

Accepted as of the date first written above.

 

 

Exhibit 99.4

 

Execution Version

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(a)          executed counterparts of this First Amendment, duly executed by the Company and the Required Holders, shall have been delivered to the Noteholders;

 

(b)          the Company shall have provided the Noteholders with true, correct and complete copies of the amendments to each of the Principal Credit Facilities relating to the subject matter of this First Amendment in form and substance satisfactory to the Required Holders;

 

(c)          the Noteholders shall have received a copy of the resolutions of the Board of Directors of the Company authorizing the execution, delivery and performance by the Company of this First Amendment, certified by its Secretary or an Assistant Secretary;

 

(d)          the Noteholders shall have received the favorable opinion of counsel to the Company (which may be internal counsel) as to the matters set forth in Sections 2.1(a) and 2.1(b) hereof, which opinion shall be in form and substance satisfactory to the Required Holders; and

 

(e)          the Company shall have paid or caused to be paid reasonable, out-of-pocket fees and expenses of Chapman and Cutler LLP, special counsel to the Noteholders, in connection with the negotiation, approval, execution and delivery of this First Amendment, to the extent invoiced at least 2 Business Days in advance of the date hereof.

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South Jersey Industries, Inc.

First Amendment to 2018 Note Purchase Agreement

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Exhibit 99.5

 

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South Jersey Gas Company First Amendment to

March 1, 2010 Note Purchase Agreement

 

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South Jersey Gas Company First Amendment to

March 1, 2010 Note Purchase Agreement

 

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South Jersey Gas Company First Amendment to

March 1, 2010 Note Purchase Agreement

 

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South Jersey Gas Company First Amendment to

March 1, 2010 Note Purchase Agreement

 

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South Jersey Gas Company First Amendment to

March 1, 2010 Note Purchase Agreement

First Amendment to Note Purchase Agreement

This First Amendment   to Note Purchase Agreement (this “First Amendment” ) dated as of July 3, 2018 is between South Jersey Gas Company , a New Jersey corporation (the “Company” ), and each of the institutions that is a signatory to this First Amendment (collectively, the “Noteholders” ).  Capitalized terms used herein and not otherwise defined herein shall have the meanings ascribed thereto in the Note Purchase Agreement (as defined below).

W I T N E S S E T H

Whereas , the Company and the institutional investors named therein have heretofore entered into a Note Purchase Agreement dated December 30, 2010 (the “Note Purchase Agreement” ), relating to issue and sale by the Company of its (i) $10,000,000 aggregate principal amount of its Medium Term Notes, Series C, 2010-2, Tranche A, due 2025 (the “Tranche A Notes” ) and (ii) $45,000,000 aggregate principal amount of its Medium Term Notes, Series C, 2010-2, Tranche B, due 2027 (the “Tranche B Notes” and, together with the Tranche A Notes, the “Notes” ).  Capitalized terms used herein and not otherwise defined herein shall have the meanings ascribed thereto in the Note Purchase Agreement.

Whereas , the Company and holders of 100% of the outstanding Notes have agreed to make certain amendments to the Note Purchase Agreement as hereinafter set forth .

Whereas , all requirements of law have been fully complied with and all other acts and things necessary to make this First Amendment a valid, legal and binding instrument according to its terms for the purposes herein expressed have been done or performed.

Now, therefore , upon the full and complete satisfaction of the conditions precedent to the effectiveness of this First Amendment set forth in Section 3 hereof, and for good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, the parties hereto agree as follows:

 

Section 1.         Amendments to Note Purchase Agreement.

Section 1.1.   Clause (ii) of the definition of “Change in Control” contained in Section 8.7(g) of the Note Purchase Agreement shall be and is hereby amended and restated in its entirety to read as follows:

 

Section 1.2.    The following shall be and hereby is added as a new Section 9.8 of the Note Purchase Agreement:

 

Section 1.3.     The following definitions shall be and hereby are added in alphabetical order to Schedule B of the Note Purchase Agreement to read as follows :

 

“ ‘Parent’ shall mean South Jersey Industries, Inc., a New Jersey corporation.”

Section 2.         Representations and Warranties of the Company.

 

Section 2.1.    To induce the Noteholders to execute and deliver this First Amendment (which representations shall survive the execution and delivery of this First Amendment), the Company represents and warrants to the Noteholders that:

(a)        this First Amendment has been duly authorized, executed and delivered by it, and this First Amendment and the Note Purchase Agreement as amended by this First Amendment each constitutes a legal, valid and binding obligation of the Company enforceable against the Company in accordance with its respective terms, except as such enforceability may be limited by (a) applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors’ rights generally and (b) general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law);

 

(b)       the execution, delivery and performance by the Company of this First Amendment (i) have been duly authorized by all necessary corporate action on the part of the Company, (ii) does not require the consent, approval or authorization of, or registration, filing or declaration with, any Governmental Authority, and (iii) will not contravene, result in any breach of, or constitute a default under, or result in the creation of any Lien in respect of any property of the Company or any Subsidiary under, any indenture, mortgage, deed of trust, loan, purchase or credit agreement, lease, corporate charter or bylaws, or any other Material agreement or instrument to which the Company or any Subsidiary is bound or by which the Company or any Subsidiary or any of their respective properties may be bound or affected;

 

(c)       as of the date hereof and after giving effect to this First Amendment, no Default or Event of Default has occurred which is continuing;

 

(d)       the Company has provided the Noteholders with true, correct and complete copies of the amendments to each of the Principal Credit Facilities relating to the subject matter of this First Amendment; and

 

(e)        no consent fee, amendment fee or other similar form of consideration is being paid or given, in respect of any Principal Credit Facility, to all consenting lenders or noteholders under such Principal Credit Facility in consideration for their consent to an amendment that addresses the subject matter of this First Amendment.

 

Section 3.         Conditions to Effectiveness of This First Amendment.

 

Section 3.1.    This First Amendment shall not become effective until, and shall become effective when:

(a)       executed counterparts of this First Amendment, duly executed by the Company and the holders of 100% of the outstanding Notes, shall have been delivered to the Noteholders;

 

(b)       the Company shall have provided the Noteholders with true, correct and complete copies of the amendments to each of the Principal Credit Facilities relating to the subject matter of this First Amendment in form and substance satisfactory to the Noteholders;

 

(c)       the Noteholders shall have received a copy of the resolutions of the Board of Directors of the Company authorizing the execution, delivery and performance by the Company of this First Amendment, certified by its Secretary or an Assistant Secretary;

 

(d)       the Noteholders shall have received the favorable opinion of counsel to the Company (which may be internal counsel) as to the matters set forth in Sections 2.1(a) and 2.1(b) hereof, which opinion shall be in form and substance satisfactory to the Noteholders; and

 

(e)       the Company shall have paid or caused to be paid reasonable, out-of-pocket fees and expenses of Chapman and Cutler LLP, special counsel to the Noteholders, in connection with the negotiation, approval, execution and delivery of this First Amendment, to the extent invoiced at least 2 Business Days in advance of the date hereof.

 

Section 4.         Miscellaneous.

Section 4.1.    This First Amendment shall be construed in connection with and as part of the Note Purchase Agreement, and except as modified and expressly amended by this First Amendment, all terms, conditions and covenants contained in the Note Purchase Agreement and the Notes are hereby ratified and shall be and remain in full force and effect.

Section 4.2.    Any and all notices, requests, certificates and other instruments executed and delivered after the execution and delivery of this First Amendment may refer to the Note Purchase Agreement without making specific reference to this First Amendment but nevertheless all such references shall include this First Amendment unless the context otherwise requires.

 

Section 4.3.    The descriptive headings of the various Sections or parts of this First Amendment are for convenience only and shall not affect the meaning or construction of any of the provisions hereof.

 

Section 4.4.    This First Amendment shall be governed by and construed in accordance with the laws of the State of New York.

 

Section 4.5.    The execution hereof by you shall constitute a contract between us for the uses and purposes hereinabove set forth, and this First Amendment may be executed in any number of counterparts, each executed counterpart constituting an original, but all together only one agreement.

 

Accepted as of the date first written above.

 

Accepted as of the date first written above.

 

Execution Version

First Amendment to Note Purchase Agreement

 

This First Amendment   to Note Purchase Agreement (this “First Amendment” ) dated as of July 3, 2018 is between South Jersey Gas Company , a New Jersey corporation (the “Company” ), and each of the institutions that is a signatory to this First Amendment (collectively, the “Noteholders” ).  Capitalized terms used herein and not otherwise defined herein shall have the meanings ascribed thereto in the Note Purchase Agreement (as defined below).

 

W I T N E S S E T H

 

Whereas , the Company and the institutional investors named therein have heretofore entered into a Note Purchase Agreement dated April 2, 2012 (the “Note Purchase Agreement” ), relating to issue and sale by the Company of its $35,000,000 aggregate principal amount of its Medium Term Notes, Series D, 2012-1, due 2032  (the “Notes” ).  Capitalized terms used herein and not otherwise defined herein shall have the meanings ascribed thereto in the Note Purchase Agreement.

 

Whereas , the Company and holders of 100% of the outstanding Notes have agreed to make certain amendments to the Note Purchase Agreement as hereinafter set forth .

 

Whereas , all requirements of law have been fully complied with and all other acts and things necessary to make this First Amendment a valid, legal and binding instrument according to its terms for the purposes herein expressed have been done or performed.

 

Now, therefore , upon the full and complete satisfaction of the conditions precedent to the effectiveness of this First Amendment set forth in Section 3 hereof, and for good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, the parties hereto agree as follows:

 

Section 1.           Amendments to Note Purchase Agreement.

 

Section 1.1.       Clause (ii) of the definition of “Change in Control” contained in Section 8.7(g) of the Note Purchase Agreement shall be and is hereby amended and restated in its entirety to read as follows:

 

“(ii) the acquisition of ownership, directly or indirectly, beneficially or of record, by any Person or “group” (within the meaning of the Exchange Act and the rules of the SEC thereunder as in effect on the Closing Date) of 50% or more of the outstanding ownership interests of the Company, other than an acquisition by the Parent or any Subsidiary of the Parent of such outstanding ownership interests of the Company.”

 

Section 1.2.       The following shall be and hereby is added as a new Section 9.8 of the Note Purchase Agreement:

 

“ Section 9.8.     Ownership .  The Parent will directly or indirectly own, at all times, 100% of the Capital Stock having voting rights of the Company.”

 

Section 1.3.        The following definitions shall be and hereby are added in alphabetical order to Schedule B of the Note Purchase Agreement to read as follows :

 

“ ‘Parent’ shall mean South Jersey Industries, Inc., a New Jersey corporation.”

 

Section 2.           Representations and Warranties of the Company.

 

Section 2.1.       To induce the Noteholders to execute and deliver this First Amendment (which representations shall survive the execution and delivery of this First Amendment), the Company represents and warrants to the Noteholders that:

 

(a)          this First Amendment has been duly authorized, executed and delivered by it, and this First Amendment and the Note Purchase Agreement as amended by this First Amendment each constitutes a legal, valid and binding obligation of the Company enforceable against the Company in accordance with its respective terms, except as such enforceability may be limited by (a) applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors’ rights generally and (b) general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law);

 

(b)         the execution, delivery and performance by the Company of this First Amendment (i) have been duly authorized by all necessary corporate action on the part of the Company, (ii) does not require the consent, approval or authorization of, or registration, filing or declaration with, any Governmental Authority, and (iii) will not contravene, result in any breach of, or constitute a default under, or result in the creation of any Lien in respect of any property of the Company or any Subsidiary under, any indenture, mortgage, deed of trust, loan, purchase or credit agreement, lease, corporate charter or bylaws, or any other Material agreement or instrument to which the Company or any Subsidiary is bound or by which the Company or any Subsidiary or any of their respective properties may be bound or affected;

 

(c)          as of the date hereof and after giving effect to this First Amendment, no Default or Event of Default has occurred which is continuing;

 

(d)         the Company has provided the Noteholders with true, correct and complete copies of the amendments to each of the Principal Credit Facilities relating to the subject matter of this First Amendment; and

 

(e)          no consent fee, amendment fee or other similar form of consideration is being paid or given, in respect of any Principal Credit Facility, to all consenting lenders or noteholders under such Principal Credit Facility in consideration for their consent to an amendment that addresses the subject matter of this First Amendment.

 

Section 3.           Conditions to Effectiveness of This First Amendment.

 

Section 3.1.        This First Amendment shall not become effective until, and shall become effective when:

 

(a)          executed counterparts of this First Amendment, duly executed by the Company and the holders of 100% of the outstanding Notes, shall have been delivered to the Noteholders;

 

(b)          the Company shall have provided the Noteholders with true, correct and complete copies of the amendments to each of the Principal Credit Facilities relating to the subject matter of this First Amendment in form and substance satisfactory to the Noteholders;

 

(c)          the Noteholders shall have received a copy of the resolutions of the Board of Directors of the Company authorizing the execution, delivery and performance by the Company of this First Amendment, certified by its Secretary or an Assistant Secretary;

 

(d)         the Noteholders shall have received the favorable opinion of counsel to the Company (which may be internal counsel) as to the matters set forth in Sections 2.1(a) and 2.1(b) hereof, which opinion shall be in form and substance satisfactory to the Noteholders; and

 

(e)          the Company shall have paid or caused to be paid reasonable, out-of-pocket fees and expenses of Chapman and Cutler LLP, special counsel to the Noteholders, in connection with the negotiation, approval, execution and delivery of this First Amendment, to the extent invoiced at least 2 Business Days in advance of the date hereof.

 

Section 4.          Miscellaneous.

 

Section 4.1.        This First Amendment shall be construed in connection with and as part of the Note Purchase Agreement, and except as modified and expressly amended by this First Amendment, all terms, conditions and covenants contained in the Note Purchase Agreement and the Notes are hereby ratified and shall be and remain in full force and effect.

 

Section 4.2.        Any and all notices, requests, certificates and other instruments executed and delivered after the execution and delivery of this First Amendment may refer to the Note Purchase Agreement without making specific reference to this First Amendment but nevertheless all such references shall include this First Amendment unless the context otherwise requires.

 

Section 4.3.       The descriptive headings of the various Sections or parts of this First Amendment are for convenience only and shall not affect the meaning or construction of any of the provisions hereof.

 

Section 4.4.       This First Amendment shall be governed by and construed in accordance with the laws of the State of New York.

 

Section 4.5.       The execution hereof by you shall constitute a contract between us for the uses and purposes hereinabove set forth, and this First Amendment may be executed in any number of counterparts, each executed counterpart constituting an original, but all together only one agreement.

 

 

Accepted as of the date first written above.

 

South Jersey Gas Company First Amendment to

April  2, 2012 Note Purchase Agreement

 

 

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Execution Version

 

Second Amendment to Note Purchase Agreement

This Second Amendment   to Note Purchase Agreement (this “Second Amendment” ) dated as of July 3, 2018 is between South Jersey Gas Company , a New Jersey corporation (the “Company” ), and each of the institutions that is a signatory to this Second Amendment (collectively, the “Noteholders” ).  Capitalized terms used herein and not otherwise defined herein shall have the meanings ascribed thereto in the Note Purchase Agreement (as defined below).

W I T N E S S E T H

Whereas , the Company and the institutional investors named therein have heretofore entered into a Note Purchase Agreement dated September 20, 2012 (the “Note Purchase Agreement” ), relating to issue and sale by the Company of its (i) $50,000,000 aggregate principal amount of its Medium Term Notes, Series D, 2012-2, Tranche A, due September 20, 2024  (the “Tranche A Notes” ) and (ii) $35,000,000 aggregate principal amount of its Medium Term Notes, Series D, 2012-2, Tranche B, due November 30, 2024 (the “Tranche B Notes” and, together with the Tranche A Notes, the “Notes” ).  Capitalized terms used herein and not otherwise defined herein shall have the meanings ascribed thereto in the Note Purchase Agreement.

Whereas , the Company and holders of 100% of the outstanding Notes have agreed to make certain amendments to the Note Purchase Agreement as hereinafter set forth .

Whereas , all requirements of law have been fully complied with and all other acts and things necessary to make this Second Amendment a valid, legal and binding instrument according to its terms for the purposes herein expressed have been done or performed.

Now, therefore , upon the full and complete satisfaction of the conditions precedent to the effectiveness of this Second Amendment set forth in Section 3 hereof, and for good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, the parties hereto agree as follows:

Section 1.             Amendments to Note Purchase Agreement.

Section 1.1.          Clause (ii) of the definition of “Change in Control” contained in Section 8.7(g) of the Note Purchase Agreement shall be and is hereby amended and restated in its entirety to read as follows:

“(ii) the acquisition of ownership, directly or indirectly, beneficially or of record, by any Person or “group” (within the meaning of the Exchange Act and the rules of the SEC thereunder as in effect on the Closing Date) of 50% or more of the outstanding ownership interests of the Company, other than an acquisition by the Parent or any Subsidiary of the Parent of such outstanding ownership interests of the Company.”

 

Section 1.2.           The following shall be and hereby is added as a new Section 9.8 of the Note Purchase Agreement:

“ Section 9.8.       Ownership .  The Parent will directly or indirectly own, at all times, 100% of the Capital Stock having voting rights of the Company.”

Section 1.3.           The following definitions shall be and hereby are added in alphabetical order to Schedule B of the Note Purchase Agreement to read as follows :

“ ‘Parent’ shall mean South Jersey Industries, Inc., a New Jersey corporation.”

Section 2.             Representations and Warranties of the Company.

Section 2.1.           To induce the Noteholders to execute and deliver this Second Amendment (which representations shall survive the execution and delivery of this Second Amendment), the Company represents and warrants to the Noteholders that:

(a)           this Second Amendment has been duly authorized, executed and delivered by it, and this Second Amendment and the Note Purchase Agreement as amended by this Second Amendment each constitutes a legal, valid and binding obligation of the Company enforceable against the Company in accordance with its respective terms, except as such enforceability may be limited by (a) applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors’ rights generally and (b) general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law);

(b)          the execution, delivery and performance by the Company of this Second Amendment (i) have been duly authorized by all necessary corporate action on the part of the Company, (ii) does not require the consent, approval or authorization of, or registration, filing or declaration with, any Governmental Authority, and (iii) will not contravene, result in any breach of, or constitute a default under, or result in the creation of any Lien in respect of any property of the Company or any Subsidiary under, any indenture, mortgage, deed of trust, loan, purchase or credit agreement, lease, corporate charter or bylaws, or any other Material agreement or instrument to which the Company or any Subsidiary is bound or by which the Company or any Subsidiary or any of their respective properties may be bound or affected;

(c)           as of the date hereof and after giving effect to this Second Amendment, no Default or Event of Default has occurred which is continuing;

(d)           the Company has provided the Noteholders with true, correct and complete copies of the amendments to each of the Principal Credit Facilities relating to the subject matter of this Second Amendment; and

 

(e)           no consent fee, amendment fee or other similar form of consideration is being paid or given, in respect of any Principal Credit Facility, to all consenting lenders or noteholders under such Principal Credit Facility in consideration for their consent to an amendment that addresses the subject matter of this Second Amendment.

Section 3.             Conditions to Effectiveness of This Second Amendment.

Section 3.1.           This Second Amendment shall not become effective until, and shall become effective when:

(a)           executed counterparts of this Second Amendment, duly executed by the Company and the holders of 100% of the outstanding Notes, shall have been delivered to the Noteholders;

(b)           the Company shall have provided the Noteholders with true, correct and complete copies of the amendments to each of the Principal Credit Facilities relating to the subject matter of this Second Amendment in form and substance satisfactory to the Noteholders;

(c)           the Noteholders shall have received a copy of the resolutions of the Board of Directors of the Company authorizing the execution, delivery and performance by the Company of this Second Amendment, certified by its Secretary or an Assistant Secretary;

(d)           the Noteholders shall have received the favorable opinion of counsel to the Company (which may be internal counsel) as to the matters set forth in Sections 2.1(a) and 2.1(b) hereof, which opinion shall be in form and substance satisfactory to the Noteholders; and

(e)           the Company shall have paid or caused to be paid reasonable, out-of-pocket fees and expenses of Chapman and Cutler LLP, special counsel to the Noteholders, in connection with the negotiation, approval, execution and delivery of this Second Amendment, to the extent invoiced at least 2 Business Days in advance of the date hereof.

Section 4.             Miscellaneous.

Section 4.1.           This Second Amendment shall be construed in connection with and as part of the Note Purchase Agreement, and except as modified and expressly amended by this Second Amendment, all terms, conditions and covenants contained in the Note Purchase Agreement and the Notes are hereby ratified and shall be and remain in full force and effect.

Section 4.2.           Any and all notices, requests, certificates and other instruments executed and delivered after the execution and delivery of this Second Amendment may refer to the Note Purchase Agreement without making specific reference to this Second Amendment but nevertheless all such references shall include this Second Amendment unless the context otherwise requires.

 

Section 4.3.           The descriptive headings of the various Sections or parts of this Second Amendment are for convenience only and shall not affect the meaning or construction of any of the provisions hereof.

Section 4.4.           This Second Amendment shall be governed by and construed in accordance with the laws of the State of New York.

 

Section 4.5.           The execution hereof by you shall constitute a contract between us for the uses and purposes hereinabove set forth, and this Second Amendment may be executed in any number of counterparts, each executed counterpart constituting an original, but all together only one agreement.

 

Accepted as of the date first written above.

 

Accepted as of the date first written above.

 

 

Accepted as of the date first written above.

 

 

Accepted as of the date first written above.

First Amendment to Note Purchase Agreement

 

This First Amendment   to Note Purchase Agreement (this “First Amendment” ) dated as of July 3, 2018 is between South Jersey Gas Company , a New Jersey corporation (the “Company” ), and each of the institutions that is a signatory to this First Amendment (collectively, the “Noteholders” ).  Capitalized terms used herein and not otherwise defined herein shall have the meanings ascribed thereto in the Note Purchase Agreement (as defined below).

 

W I T N E S S E T H

 

Whereas , the Company and the institutional investors named therein have heretofore entered into a Note Purchase Agreement dated November 21, 2013 (the “Note Purchase Agreement” ), relating to issue and sale by the Company of its (i) $50,000,000 aggregate principal amount of its Medium Term Notes, Series D, 2013, Tranche A, due November 21, 2030 (the “Tranche A Notes” ) and (ii) $30,000,000 aggregate principal amount of its Medium Term Notes, Series D, 2013, Tranche B, due January 30, 2030 (the “Tranche B Notes” and, together with the Tranche A Notes, the “Notes” ).  Capitalized terms used herein and not otherwise defined herein shall have the meanings ascribed thereto in the Note Purchase Agreement.

 

Whereas , the Company and holders of 100% of the outstanding Notes have agreed to make certain amendments to the Note Purchase Agreement as hereinafter set forth .

 

Whereas , all requirements of law have been fully complied with and all other acts and things necessary to make this First Amendment a valid, legal and binding instrument according to its terms for the purposes herein expressed have been done or performed.

 

Now, therefore , upon the full and complete satisfaction of the conditions precedent to the effectiveness of this First Amendment set forth in Section 3 hereof, and for good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, the parties hereto agree as follows:

 

Section 1.          Amendments to Note Purchase Agreement.

 

Section 1.1.   Clause (ii) of the definition of “Change in Control” contained in Section 8.7(g) of the Note Purchase Agreement shall be and is hereby amended and restated in its entirety to read as follows:

 

Section 1.2.   The following shall be and hereby is added as a new Section 9.8 of the Note Purchase Agreement:

 

Section 1.3.   The following definitions shall be and hereby are added in alphabetical order to Schedule B of the Note Purchase Agreement to read as follows :

 

“ ‘Parent’ shall mean South Jersey Industries, Inc., a New Jersey corporation.”

 

Section 2.         Representations and Warranties of the Company.

 

Section 2.1.   To induce the Noteholders to execute and deliver this First Amendment (which representations shall survive the execution and delivery of this First Amendment), the Company represents and warrants to the Noteholders that:

 

(a)       this First Amendment has been duly authorized, executed and delivered by it, and this First Amendment and the Note Purchase Agreement as amended by this First Amendment each constitutes a legal, valid and binding obligation of the Company enforceable against the Company in accordance with its respective terms, except as such enforceability may be limited by (a) applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors’ rights generally and (b) general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law);

 

(b)       the execution, delivery and performance by the Company of this First Amendment (i) have been duly authorized by all necessary corporate action on the part of the Company, (ii) does not require the consent, approval or authorization of, or registration, filing or declaration with, any Governmental Authority, and (iii) will not contravene, result in any breach of, or constitute a default under, or result in the creation of any Lien in respect of any property of the Company or any Subsidiary under, any indenture, mortgage, deed of trust, loan, purchase or credit agreement, lease, corporate charter or bylaws, or any other Material agreement or instrument to which the Company or any Subsidiary is bound or by which the Company or any Subsidiary or any of their respective properties may be bound or affected;

 

(c)       as of the date hereof and after giving effect to this First Amendment, no Default or Event of Default has occurred which is continuing;

 

(d)       the Company has provided the Noteholders with true, correct and complete copies of the amendments to each of the Principal Credit Facilities relating to the subject matter of this First Amendment; and

 

(e)       no consent fee, amendment fee or other similar form of consideration is being paid or given, in respect of any Principal Credit Facility, to all consenting lenders or noteholders under such Principal Credit Facility in consideration for their consent to an amendment that addresses the subject matter of this First Amendment.

 

Section 3.          Conditions to Effectiveness of This First Amendment.

 

Section 3.1.   This First Amendment shall not become effective until, and shall become effective when:

 

(a)       executed counterparts of this First Amendment, duly executed by the Company and the holders of 100% of the outstanding Notes, shall have been delivered to the Noteholders;

 

(b)       the Company shall have provided the Noteholders with true, correct and complete copies of the amendments to each of the Principal Credit Facilities relating to the subject matter of this First Amendment in form and substance satisfactory to the Noteholders;

 

(c)       the Noteholders shall have received a copy of the resolutions of the Board of Directors of the Company authorizing the execution, delivery and performance by the Company of this First Amendment, certified by its Secretary or an Assistant Secretary;

 

(d)       the Noteholders shall have received the favorable opinion of counsel to the Company (which may be internal counsel) as to the matters set forth in Sections 2.1(a) and 2.1(b) hereof, which opinion shall be in form and substance satisfactory to the Noteholders; and

 

(e)       the Company shall have paid or caused to be paid reasonable, out-of-pocket fees and expenses of Chapman and Cutler LLP, special counsel to the Noteholders, in connection with the negotiation, approval, execution and delivery of this First Amendment, to the extent invoiced at least 2 Business Days in advance of the date hereof.

 

Section 4.          Miscellaneous.

 

Section 4.1.   This First Amendment shall be construed in connection with and as part of the Note Purchase Agreement, and except as modified and expressly amended by this First Amendment, all terms, conditions and covenants contained in the Note Purchase Agreement and the Notes are hereby ratified and shall be and remain in full force and effect.

 

Section 4.2.   Any and all notices, requests, certificates and other instruments executed and delivered after the execution and delivery of this First Amendment may refer to the Note Purchase Agreement without making specific reference to this First Amendment but nevertheless all such references shall include this First Amendment unless the context otherwise requires.

 

Section 4.3.   The descriptive headings of the various Sections or parts of this First Amendment are for convenience only and shall not affect the meaning or construction of any of the provisions hereof.

 

Section 4.4.   This First Amendment shall be governed by and construed in accordance with the laws of the State of New York.

 

Section 4.5.   The execution hereof by you shall constitute a contract between us for the uses and purposes hereinabove set forth, and this First Amendment may be executed in any number of counterparts, each executed counterpart constituting an original, but all together only one agreement.

 

 

Accepted as of the date first written above.

 

Accepted as of the date first written above.

 

Accepted as of the date first written above.

 

 

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Execution Version

 

First Amendment to Note Purchase Agreement

This First Amendment   to Note Purchase Agreement (this “First Amendment” ) dated as of July 3, 2018 is between South Jersey Gas Company , a New Jersey corporation (the “Company” ), and each of the institutions that is a signatory to this First Amendment (collectively, the “Noteholders” ).  Capitalized terms used herein and not otherwise defined herein shall have the meanings ascribed thereto in the Note Purchase Agreement (as defined below).

W I T N E S S E T H

Whereas , the Company and the institutional investors named therein have heretofore entered into a Note Purchase Agreement dated January 25, 2017 (the “Note Purchase Agreement” ), relating to issue and sale by the Company of its $200,000,000 aggregate principal amount of its Medium Term Notes, Series E, 2017 due January 25, 2047  (the “Notes” ).  Capitalized terms used herein and not otherwise defined herein shall have the meanings ascribed thereto in the Note Purchase Agreement.

Whereas , the Company and holders of 100% of the outstanding Notes have agreed to make certain amendments to the Note Purchase Agreement as hereinafter set forth .

Whereas , all requirements of law have been fully complied with and all other acts and things necessary to make this First Amendment a valid, legal and binding instrument according to its terms for the purposes herein expressed have been done or performed.

Now, therefore , upon the full and complete satisfaction of the conditions precedent to the effectiveness of this First Amendment set forth in Section 3 hereof, and for good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, the parties hereto agree as follows:

Section 1.             Amendments to Note Purchase Agreement.

Section 1.1.           Clause (ii) of the definition of “Change in Control” contained in Section 8.7(g) of the Note Purchase Agreement shall be and is hereby amended and restated in its entirety to read as follows:

“(ii) the acquisition of ownership, directly or indirectly, beneficially or of record, by any Person or “group” (within the meaning of the Exchange Act and the rules of the SEC thereunder as in effect on the Closing Date) of 50% or more of the outstanding ownership interests of the Company, other than an acquisition by the Parent or any Subsidiary of the Parent of such outstanding ownership interests of the Company.”

Section 1.2.           The following shall be and hereby is added as a new Section 9.8 of the Note Purchase Agreement:

 

“ Section 9.8.            Ownership .  The Parent will directly or indirectly own, at all times, 100% of the Capital Stock having voting rights of the Company.”

 

Section 1.3.           The following definitions shall be and hereby are added in alphabetical order to Schedule B of the Note Purchase Agreement to read as follows :

“ ‘Parent’ shall mean South Jersey Industries, Inc., a New Jersey corporation.”

Section 2.             Representations and Warranties of the Company.

Section 2.1.           To induce the Noteholders to execute and deliver this First Amendment (which representations shall survive the execution and delivery of this First Amendment), the Company represents and warrants to the Noteholders that:

(a)           this First Amendment has been duly authorized, executed and delivered by it, and this First Amendment and the Note Purchase Agreement as amended by this First Amendment each constitutes a legal, valid and binding obligation of the Company enforceable against the Company in accordance with its respective terms, except as such enforceability may be limited by (a) applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors’ rights generally and (b) general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law);

(b)           the execution, delivery and performance by the Company of this First Amendment (i) have been duly authorized by all necessary corporate action on the part of the Company, (ii) does not require the consent, approval or authorization of, or registration, filing or declaration with, any Governmental Authority, and (iii) will not contravene, result in any breach of, or constitute a default under, or result in the creation of any Lien in respect of any property of the Company or any Subsidiary under, any indenture, mortgage, deed of trust, loan, purchase or credit agreement, lease, corporate charter or bylaws, or any other Material agreement or instrument to which the Company or any Subsidiary is bound or by which the Company or any Subsidiary or any of their respective properties may be bound or affected;

(c)           as of the date hereof and after giving effect to this First Amendment, no Default or Event of Default has occurred which is continuing;

(d)           the Company has provided the Noteholders with true, correct and complete copies of the amendments to each of the Principal Credit Facilities relating to the subject matter of this First Amendment; and

(e)           no consent fee, amendment fee or other similar form of consideration is being paid or given, in respect of any Principal Credit Facility, to all consenting lenders or noteholders under such Principal Credit Facility in consideration for their consent to an amendment that addresses the subject matter of this First Amendment.

 

Section 3.             Conditions to Effectiveness of This First Amendment.

Section 3.1.           This First Amendment shall not become effective until, and shall become effective when:

(a)           executed counterparts of this First Amendment, duly executed by the Company and the holders of 100% of the outstanding Notes, shall have been delivered to the Noteholders;

(b)           the Company shall have provided the Noteholders with true, correct and complete copies of the amendments to each of the Principal Credit Facilities relating to the subject matter of this First Amendment in form and substance satisfactory to the Noteholders;

(c)           the Noteholders shall have received a copy of the resolutions of the Board of Directors of the Company authorizing the execution, delivery and performance by the Company of this First Amendment, certified by its Secretary or an Assistant Secretary;

(d)           the Noteholders shall have received the favorable opinion of counsel to the Company (which may be internal counsel) as to the matters set forth in Sections 2.1(a) and 2.1(b) hereof, which opinion shall be in form and substance satisfactory to the Noteholders; and

(e)           the Company shall have paid or caused to be paid reasonable, out-of-pocket fees and expenses of Chapman and Cutler LLP, special counsel to the Noteholders, in connection with the negotiation, approval, execution and delivery of this First Amendment, to the extent invoiced at least 2 Business Days in advance of the date hereof.

Section 4.             Miscellaneous.

Section 4.1.           This First Amendment shall be construed in connection with and as part of the Note Purchase Agreement, and except as modified and expressly amended by this First Amendment, all terms, conditions and covenants contained in the Note Purchase Agreement and the Notes are hereby ratified and shall be and remain in full force and effect.

Section 4.2.           Any and all notices, requests, certificates and other instruments executed and delivered after the execution and delivery of this First Amendment may refer to the Note Purchase Agreement without making specific reference to this First Amendment but nevertheless all such references shall include this First Amendment unless the context otherwise requires.

 

Section 4.3.           The descriptive headings of the various Sections or parts of this First Amendment are for convenience only and shall not affect the meaning or construction of any of the provisions hereof.

Section 4.4.           This First Amendment shall be governed by and construed in accordance with the laws of the State of New York.

 

 

Accepted as of the date first written above.

 

 

Accepted as of the date first written above.

 

 

Accepted as of the date first written above.

 

 

Accepted as of the date first written above.

 

 

 

Execution Version

 

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SIGNATURE PAGE TO

FIRST AMENDMENT TO CREDIT AGREEMENT – SOUTH JERSEY GAS COMPANY

EXECUTION VERSION

FIRST AMENDMENT TO TERM LOAN CREDIT AGREEMENT

This FIRST AMENDMENT TO TERM LOAN CREDIT AGREEMENT (this“ Amendment ”), dated as of June 15, 2018, is by and among SOUTH JERSEY GAS COMPANY, a New Jersey corporation (the “ Borrower ”), the lenders signatory hereto (together constituting the Required Lenders) and PNC BANK, NATIONAL ASSOCIATION , a national banking association organized and existing under the laws of the United States of America, as administrative agent (in such capacity, the “ Administrative Agent ”). Capitalized terms used herein and not otherwise defined herein shall have the meanings ascribed thereto in the Credit Agreement (as defined below).

 

W I T N E S S E T H

WHEREAS , the Borrower, the lenders party thereto and the Administrative Agent are parties to that certain Term Loan Credit Agreement dated as of January 26, 2017 (as amended, modified, extended, restated, replaced, or supplemented from time to time, the “ Credit   Agreement ”);

WHEREAS , South Jersey Industries, Inc., a New Jersey corporation and parent company of the Borrower (the “ Parent ”), has entered into that certain Asset Purchase Agreement dated October 15, 2017, between the Parent and Pivotal Utility Holdings, Inc., a New Jersey corporation (“ PUH ”), pursuant to which the Parent will acquire the business and operations of the Elizabethtown Gas operating division of PUH (the “ Acquisition ”);

WHEREAS , in order to effectuate a corporate reorganization in connection with the Acquisition, the Parent has formed a wholly-owned subsidiary, SJI Utilities, Inc., a New Jersey corporation (“ SJI Utilities ”), and intends to contribute 100% of the issued and outstanding common stock of the Borrower to SJI Utilities; and

WHEREAS , the Borrower, the Required Lenders and the Administrative Agent have agreed to make certain amendments to the Credit Agreement as hereinafter set forth.

NOW, THEREFORE , in consideration of the agreements hereinafter set forth, and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto agree as follows:

 

ARTICLE I

AMENDMENTS TO CREDIT AGREEMENT

1.1            Amendment to Section 1.01 . The following definition in Section 1.01 of the Credit Agreement is hereby amended and restated in its entirety as follows:

 

“ “ Change in Control ” means (a) the Parent shall cease at any time to own, directly or indirectly, at least 100% of the Capital Stock having voting rights of the Borrower, or (b) the occurrence of either of the following: (i) any entity, person (within the meaning of Section 14(d) of 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 30% of the Parent’s then outstanding common stock either (x) acquires shares of common stock of the Parent in a transaction or series of transactions that results in such entity, person or group directly or indirectly owning beneficially 30% or more of the outstanding common stock of the Parent, or (y) acquires, by proxy or otherwise, the right to vote for the election of directors, for any merger, combination or consolidation of the Parent or any of its direct or indirect Subsidiaries, or, for any other matter or question, more than 30% of the then outstanding voting securities of the Parent; or (ii) a majority of the directors of the board of directors of the Parent fail to consist of Continuing Directors.”

1.2            Amendment to Section 5.01(c) . Section 5.01(c) of the Credit Agreement is hereby amended and restated in its entirety to read as follows:

“(c)  Ownership .   Cause the Parent to own, directly or indirectly, at all times 100% of  the Capital Stock having voting rights of Borrower.”

ARTICLE II CONDITIONS TO EFFECTIVENESS

2.1           Closing Conditions . This Amendment shall become effective on the date hereof upon the Administrative Agent receiving a copy of this Amendment duly executed by the Borrower, the Required Lenders and the Administrative Agent.

ARTICLE III MISCELLANEOUS

3.1            Amended Terms . On and after the date hereof, all references to the Credit Agreement in each of the Loan Documents shall hereafter mean the Credit Agreement as amended by this Amendment. Except as specifically amended hereby or otherwise agreed, the Credit Agreement is hereby ratified and confirmed and shall remain in full force and effect according to its terms.

3.2            Representations and Warranties of the Borrower . The Borrower represents and warrants as follows:

(a)             It has taken all necessary action to authorize the execution, delivery and performance of this Amendment.

(b)          This Amendment has been duly executed and delivered by the Borrower and constitutes the Borrower’s legal, valid and binding obligation, enforceable in accordance with its terms, except as such enforceability may be subject to (i) bankruptcy, insolvency, reorganization, fraudulent conveyance or transfer, moratorium or similar laws affecting creditors’ rights generally and (ii) general principles of equity (regardless of whether such enforceability is considered in a proceeding at law or in equity).

 

(c)             No consent, approval, authorization or order of, or filing, registration or qualification with, any court or governmental authority or third party is required in connection with the execution, delivery or performance by the Borrower of this Amendment.

(d)             The representations and warranties set forth in Article IV of the Credit Agreement and in any other Loan Document are true and correct as of the date hereof (with all applicable materiality standards and except for those which expressly relate to an earlier date).

(e)             After giving effect to this Amendment, no event has occurred and is continuing which constitutes a Default or an Event of Default.

(f)              The Obligations are not reduced or modified by this Amendment and are not subject to any offsets, defenses or counterclaims.

3.3            Reaffirmation of Obligations . The Credit Agreement and each of the other Loan Documents, as specifically amended by this Amendment, are and shall continue to be in full force and effect and the Borrower hereby ratifies the Credit Agreement and each other Loan Document to which the Borrower is a party and acknowledges and reaffirms (a) that it is bound by all terms of the Credit Agreement and the other Loan Documents applicable to it and (b) that it is responsible for the observance and full performance of its Obligations.

3.4            Loan Document . This Amendment shall constitute a Loan Document under the terms of the Credit Agreement.

3.5            Expenses . The Borrower agrees to pay all reasonable costs and expenses of the Administrative Agent in connection with the preparation, execution and delivery of this Amendment, including without limitation the reasonable fees and expenses of the Administrative Agent’s legal counsel.

3.6            Further Assurances . The Borrower agrees to promptly take such action, upon the request of the Administrative Agent, as is reasonably necessary to carry out the intent of this Amendment.

3.7            Entirety . This Amendment, together with the other Loan Documents, embody the entire agreement among the parties hereto and supersede all prior agreements and understandings, oral or written, if any, relating to the subject matter hereof.

3.8            Counterparts; Telecopy . This Amendment may be executed in any number of counterparts, each of which when so executed and delivered shall be an original, but all of which shall constitute one and the same instrument. Delivery of an executed counterpart of a signature page of this Amendment or any other document required to be delivered hereunder, by fax transmission or e-mail transmission (e.g., “pdf” or “tif”) shall be effective as delivery of a manually executed counterpart of this Amendment. Without limiting the foregoing, upon the request of any party, such fax transmission or e-mail transmission shall be promptly followed by such manually executed counterpart.

 

3.9            No Actions, Claims, Etc . As of the date hereof, the Borrower hereby acknowledges and confirms that it has no knowledge of any actions, causes of action, claims, demands, damages and liabilities of whatever kind or nature, in law or in equity, against the Administrative Agent, the Lenders, or the Administrative Agent’s or the Lenders’ respective officers, employees, representatives, agents, counsel or directors arising from any action by such Persons, or failure of such Persons to act under the Credit Agreement on or prior to the date hereof.

3.10          GOVERNING LAW . THIS AMENDMENT SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.

3.11         Successors and Assigns . This Amendment shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns.

3.12          Submission to Jurisdiction; Waivers; Waiver of Jury Trial . The jurisdiction, service of process and waiver of jury trial provisions set forth in Sections 8.12 and 8.14 of the Credit Agreement are hereby incorporated by reference, mutatis mutandis .

3.13          No Waivers . The execution, delivery and effectiveness of this Amendment shall not, except as expressly provided herein, operate as a waiver of any right, power or remedy of any Lender or the Administrative Agent under any of the Loan Documents, nor constitute a waiver of any provision of any of the Loan Documents.

 

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IN WITNESS WHEREOF the parties hereto have caused this First Amendment to Term Loan Credit Agreement to be duly executed on the date first above written.

 

 

 

 

 

 

 

 

 

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THIRD AMENDMENT TO 364-DAY REVOLVING CREDIT AGREEMENT

This THIRD AMENDMENT TO 364-DAY REVOLVING CREDIT AGREEMENT (this “ Amendment ”), dated as of June 13, 2018, is by and among SOUTH JERSEY INDUSTRIES, INC ., a New Jersey corporation (the “ Borrower ”), MORGAN STANLEY BANK, N.A. (currently the sole Required Lender) and MORGAN STANLEY SENIOR FUNDING, INC ., a Delaware corporation, as administrative agent (in such capacity, the “ Administrative Agent ”).  Capitalized terms used herein and not otherwise defined herein shall have the meanings ascribed thereto in the Credit Agreement (as defined below).

W I T N E S S E T H

WHEREAS , the Borrower, several banks and other financial institutions from time to time party thereto and the Administrative Agent are parties to that certain 364-Day Revolving Credit Agreement dated as of September 7, 2016, as amended by the First Amendment to 364-Day Revolving Credit Agreement, dated as of September 6, 2017 (as amended, modified, extended, restated, replaced, or supplemented from time to time, the “ Credit Agreement ”);

WHEREAS , the Borrower has entered into that certain Asset Purchase Agreement dated October 15, 2017, between the Borrower and Pivotal Utility Holdings, Inc., a New Jersey corporation (“ PUH ”), pursuant to which the Borrower will acquire the business and operations of the Elizabethtown Gas operating division of PUH;

WHEREAS , in order to effectuate a corporate reorganization in connection with the Elizabethtown Gas Acquisition.  the Borrower has formed a wholly-owned subsidiary.  SJI Utilities, Inc., a New Jersey corporation (“ SJI Utilities ”), and intends to contribute 100% of the issued and outstanding common stock of South Jersey Gas to SJI Utilities;

WHEREAS , the Borrower, the Required Lenders and the Administrative Agent have agreed to make certain amendments to the Credit Agreement as hereinafter set forth.

NOW, THEREFORE , in consideration of the agreements hereinafter set forth, and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto agree as follows:

ARTICLE I

AMENDMENTS TO CREDIT AGREEMENT

1.1            Additional Definitions added in Article I .   The following definitions are added in alphabetical order in Section 1.01 of the Credit Agreement to read as follows:

“ Elizabethtown ”   means Elizabethtown Gas Company, a New Jersey corporation and wholly-owned Subsidiary of the Borrower upon closing of the Elizabethtown Gas Acquisition.

“ Elizabethtown Credit Agreement ”   means that certain revolving credit agreement, to be entered into on or around the Elizabethtown Gas Acquisition Closing Date, between Elizabethtown, as borrower, JPMorgan Chase Bank, N.A., as administrative agent, and other financial institutions that are lenders party thereto, as it may be amended, modified, restated, amended and restated, renewed, refinanced or replaced from time to time.

 

“ SJI Utilities ”   means SJI Utilities, Inc., a New Jersey corporation and wholly-owned Subsidiary of the Borrower.

1.2            Amendments to Definitions in Article I .

(a)             Clause (d) in the defined term “ Permitted Indebtedness ”   set forth in Section 1.01 of the Credit Agreement is hereby amended and restated in its entirety to read as follows:

(d)           Indebtedness (other than the type described in clause (e) below) of the Borrower and its Subsidiaries (other than South Jersey Gas and Elizabethtown) so long as before and immediately after the incurrence of such Indebtedness, the Borrower is in compliance with Section 6.04 ;

(b)             The defined term “ Permitted Indebtedness ”   set forth in Section 1.01 of the Credit Agreement is hereby amended by inserting the following new clause (k):

(k)            Indebtedness of Elizabethtown not prohibited under the Elizabethtown Credit Agreement.

(c)             Clause (d) in the defined term “ Significant Subsidiary ”   in Section 1.01 of the Credit Agreement is hereby amended and restated in its entirety as follows:

(d)            with respect to the Borrower, such Subsidiaries shall include, without limitation, South Jersey Gas, SJI Utilities (upon the contribution of the equity in South Jersey Gas to SJI Utilities), and Elizabethtown (upon closing of the Elizabethtown Gas Acquisition).

1.3            Amendment to Section 6.01(c) .   Section 6.01(c) of the Credit Agreement is hereby amended and restated in its entirety to read as follows:

(c)             Ownership .  Cause the Borrower to own, directly or indirectly, at all times 100% of the Capital Stock having voting rights of South Jersey Gas and Elizabethtown (upon closing of the Elizabethtown Gas Acquisition).

1.4            Amendment to Section 7.01(i) .  Section 7.01(j) of the Credit Agreement is hereby amended and restated in its entirety to read as follows:

(j)              An “Event of Default” or “Default ^- under the SJG Credit Agreement or the Elizabethtown Credit Agreement; or

 

ARTICLE II

CONDITIONS TO EFFECTIVENESS

2.1            Closing Conditions .  This Amendment shall become effective on the date hereof upon the Administrative Agent receiving a copy of this Amendment duly executed by the Borrower, the Required Lenders and the Administrative Agent.

ARTICLE III

MISCELLANEOUS

3.1            Amended Terms .  On and after the date hereof, all references to the Credit Agreement in each of the Loan Documents shall hereafter mean the Credit Agreement as amended by this Amendment.  Except as specifically amended hereby or otherwise agreed, the Credit Agreement is hereby ratified and confirmed and shall remain in full force and effect according to its terms.

3.2            Representations and Warranties of the Borrower .  The Borrower represents and warrants as follows:

(a)            It has taken all necessary action to authorize the execution, delivery and performance of this Amendment.

(b)            This Amendment has been duly executed and delivered by the Borrower and constitutes the Borrower’s legal, valid and binding obligation, enforceable in accordance with its terms, except as such enforceability may be subject to (i) bankruptcy, insolvency, reorganization, fraudulent conveyance or transfer, moratorium or similar laws affecting creditors’ rights generally and (ii) general principles of equity (regardless of whether such enforceability is considered in a proceeding at law or in equity).

(c)            No consent, approval, authorization or order of, or filing, registration or qualification with, any court or governmental authority or third party is required in connection with the execution, delivery or performance by the Borrower of this Amendment.

(d)            The representations and warranties set forth in Article V of the Credit Agreement and in any other Loan Document are true and correct as of the date hereof (with all applicable materiality standards and except for those which expressly relate to an earlier date).

(e)            After giving effect to this Amendment, no event has occurred and is continuing which constitutes a Default or an Event of Default.

(f)            The Obligations are not reduced or modified by this Amendment and are not subject to any offsets, defenses or counterclaims.

3.3            Reaffirmation of Obligations .  The Credit Agreement and each of the other Loan Documents, as specifically amended by this Amendment, are and shall continue to be in full force and effect and the Borrower hereby ratifies the Credit Agreement and each other Loan Document to which the Borrower is a party and acknowledges and reaffirms (a) that it is bound by all terms of the Credit Agreement and the other Loan Documents applicable to it and (b) that it is responsible for the observance and full performance of its Obligations.

 

3.4             Loa n Document .  This Amendment shall constitute a Loan Document under the terms of the Credit Agreement.

3.5            Expenses .  The Borrower agrees to pay all reasonable costs and expenses of the Administrative Agent in connection with the preparation, execution and delivery of this Amendment, including without limitation the reasonable fees and expenses of the Administrative Agent’s legal counsel.

3.6            Further Assurances .  The Borrower agrees to promptly take such action, upon the request of the Administrative Agent, as is reasonably necessary to carry out the intent of this Amendment.

3.7            Entirety .  This Amendment, together with the other Loan Documents, embody the entire agreement among the parties hereto and supersede all prior agreements and understandings, oral or written, if any, relating to the subject matter hereof.

3.8            Counterparts; Telecopy .  This Amendment may be executed in any number of counterparts, each of which when so executed and delivered shall be an original, but all of which shall constitute one and the same instrument.  Delivery of an executed counterpart of a signature page of this Amendment or any other document required to be delivered hereunder, by fax transmission or e-mail transmission (e.g. “pdf” or “tif”) shall be effective as delivery of a manually executed counterpart of this Agreement.  Without limiting the foregoing, upon the request of any party, such fax transmission or e-mail transmission shall be promptly followed by such manually executed counterpart.

3.9            No Actions, Claims, Etc .   As of the date hereof, the Borrower hereby acknowledges and confirms that it has no knowledge of any actions, causes of action, claims, demands, damages and liabilities of whatever kind or nature, in law or in equity, against the Administrative Agent, the Lenders, or the Administrative Agent’s or the Lenders’ respective officers, employees, representatives, agents, counsel or directors arising from any action by such Persons, or failure of such Persons to act under the Credit Agreement on or prior to the date hereof.

3.10          GOVERNING LAW .  THIS AMENDMENT SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.

3.11          Successors and Assigns .  This Amendment shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns.

3.12          Submission to Jurisdiction; Waivers; Waiver of Jury Trial .  The jurisdiction, service of process and waiver of jury trial provisions set forth in Sections 10.13 and 10.15 of the Credit Agreement are hereby incorporated by reference, mutatis mutandis.

3.13          No Waivers .  The execution, delivery and effectiveness of this Amendment shall not, except as expressly provided herein, operate as a waiver of any right, power or remedy of any Lender or the Administrative Agent under any of the Loan Documents, nor constitute a waiver of any provision of any of the Loan Documents.

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IN WITNESS WHEREOF the parties hereto have caused this Third Amendment to 364-Day Revolving Credit Agreement to be duly executed on the date first above written.

 

 

[ Signature Page to Third Amendment to 364-Day Revolving Credit Agreement ]

 

 

[ Signature Page to Third Amendment to 364-Day Revolving Credit Agreement ]

 

 

[ Signature Page to Third Amendment to 364-Day Revolving Credit Agreement ]

 

 

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