UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of The Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): July 3, 2018
SOUTH JERSEY INDUSTRIES, INC.
(Exact name of registrant as specified in its charter)
New Jersey
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1-6364
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22-1901645
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(State or other jurisdiction of incorporation)
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(Commission File Number)
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(IRS Employer Identification No.)
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1 South Jersey Plaza, Folsom, NJ
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08037
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(Address of principal executive offices)
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(Zip Code)
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(609) 561-9000
(Registrant’s telephone number, including area code)
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
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Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging Growth Company
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If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act.
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As previously disclosed, South Jersey Industries, Inc. (the “Company”) has completed the previously announced acquisition of the Elizabethtown Gas operating division of Pivotal Utility Holdings, Inc., a New Jersey corporation (the “Seller”) (the “Elizabethtown Acquisition”) and the Elkton Gas operating division of the Seller (the “Elkton Acquisition”, and together with the Elizabethtown Acquisition, the “Acquisition”) pursuant to the terms of respective asset purchase agreements, each executed on October 15, 2017. In connection with the Acquisition, the Company entered into certain agreements amending the terms of previously executed agreements as described below.
On July 3, 2018, the Company entered into the following amendments of its privately-placed notes with the financial institutions signatory thereto to require, among other things, that the Company own at all times, directly or indirectly, all of the capital stock having voting rights of South Jersey Gas Company and Elizabethtown Gas Company (“Elizabethtown”):
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Second Amendment to the Note Purchase Agreement dated as of June 28, 2012;
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Second Amendment to the Note Purchase Agreement dated as of June 26, 2014;
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Second Amendment to the Note Purchase Agreement dated as of August 16, 2017; and
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First Amendment to the Note Purchase Agreement dated as of April 25, 2018.
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On July 3, 2018, the Company’s subsidiary, South Jersey Gas Company (“South Jersey Gas”), entered into the following amendments of its privately-placed notes with the financial institutions signatory thereto to (i) require, among other things, that the Company own at all times, directly or indirectly, all of the capital stock having voting rights of South Jersey Gas and (ii) modify the definition of change of control to include the acquisition of direct or indirect ownership of 50% or more of the outstanding ownership interests of South Jersey Gas, other than an acquisition by the Company or any subsidiary of the Company:
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First Amendment to the Note Purchase Agreement dated as of March 1, 2010;
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First Amendment to the Note Purchase Agreement dated as of December 30, 2010;
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First Amendment to the Note Purchase Agreement dated as of April 2, 2012;
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Second Amendment to the Note Purchase Agreement dated as of September 20, 2012;
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First Amendment to the Note Purchase Agreement dated as of November 21, 2013; and
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First Amendment to the Note Purchase Agreement dated as of January 25, 2017.
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On June 15, 2018, Southern Jersey Gas entered into the following amendments of its credit agreements, which amendments contained substantially the same provisions as the amendments to the privately-placed notes: (i) the First Amendment to the Five-Year Revolving Credit Agreement dated as of August 14, 2017 and (ii) the First Amendment to the Term Loan Credit Agreement dated as of January 26, 2017.
In connection with the Acquisition, the Company also entered into the following amendments of its credit agreements with the financial institutions signatory thereto, which amendments among other things (i) allow for certain indebtedness of South Jersey Gas and Elizabethtown, (ii) modify the meaning of significant subsidiary to account for the Acquisition, (iii) require, among other things, that the Company own at all times, directly or indirectly, all of the capital stock having voting rights of South Jersey Gas and Elizabethtown and (iii) modify the cross-default provisions to cover defaults under the credit agreements of South Jersey Gas and Elizabethtown:
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Third Amendment, dated June 13, 2018, to the 364-Day Revolving Credit Agreement dated as of September 7, 2016;
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Second Amendment, dated June 14, 2018, to the Five-Year Revolving Credit Agreement dated as of August 7, 2017; and
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Second Amendment, dated June 26, 2018, to the Term Loan Credit Agreement dated as of October 28, 2015.
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The foregoing summaries of the various amendments described herein are each qualified in their entirety by reference to the text of the respective agreements filed as exhibits hereto and incorporated herein by reference.
Item 9.01.
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Financial Statements and Exhibits
.
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Exhibit
No.
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Description of Exhibit
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Second Amendment to the Note Purchase Agreement dated as of June 28, 2012, by and among South Jersey Industries, Inc. and the institutions signatory thereto, dated as of July 3, 2018.
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Second Amendment to the Note Purchase Agreement dated as of June 26, 2014, by and among South Jersey Industries, Inc. and the institutions signatory thereto, dated as of July 3, 2018.
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Second Amendment to the Note Purchase Agreement dated as of August 16, 2017, by and among South Jersey Industries, Inc. and the institutions signatory thereto dated as of July 3, 2018.
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First Amendment to the Note Purchase Agreement dated as of April 25, 2018, by and among South Jersey Industries, Inc. and the institutions signatory thereto dated as of July 3, 2018.
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First Amendment to the Note Purchase Agreement dated as of March 1, 2010, by and among South Jersey Gas Company and the institutions signatory thereto, dated as of July 3, 2018.
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First Amendment to the Note Purchase Agreement dated as of December 30, 2010, by and among South Jersey Gas Company and the institutions signatory thereto, dated as of July 3, 2018.
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First Amendment to the Note Purchase Agreement dated as of April 2, 2012, by and among South Jersey Gas Company and the institutions signatory thereto, dated as of July 3, 2018.
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Second Amendment to the Note Purchase Agreement dated as of September 20, 2012, by and among South Jersey Gas Company and the institutions signatory thereto, dated as of July 3, 2018.
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First Amendment to the Note Purchase Agreement dated as of November 21, 2013, by and among South Jersey Gas Company and the institutions signatory thereto, dated as of July 3, 2018.
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First Amendment to the Note Purchase Agreement dated as of January 25, 2017, by and among South Jersey Gas Company and the institutions signatory thereto, dated as July 3, 2018.
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First Amendment to the Five-Year Revolving Credit Agreement dated as of August 14, 2017, by and among South Jersey Gas Company, as borrower, the lenders party thereto and Wells Fargo Bank, National Association, as administrative agent, dated as of June 14, 2018.
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First Amendment to the Term Loan Credit Agreement dated as of January 26, 2017, by and among South Jersey Gas Company, as borrower, the lenders party thereto and PNC Bank, National Association, as administrative agent, dated as of June 15, 2018.
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Third Amendment to the 364-Day Revolving Credit Agreement dated as of September 6, 2016, by and among South Jersey Industries, Inc., as borrower, Morgan Stanley Bank, N.A., as the sole required lender and Morgan Stanley Senior Funding, Inc., as administrative agent, dated as of June 13, 2018.
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Second Amendment to the Five-Year Revolving Credit Agreement dated as of August 7, 2017, by and among South Jersey Industries, Inc., the lenders party thereto and Wells Fargo Bank, National Association, as administrative agent, dated as of June 14, 2018.
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Second Amendment to the Term Loan Credit Agreement dated as of October 28, 2015, by and among South Jersey Industries, Inc., as borrower, the lenders party thereto and Bank of America, N.A., as administrative agent, dated as of June 26, 2018.
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
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SOUTH JERSEY INDUSTRIES, INC.
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Date: July 10
, 2018
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By:
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/s/ Stephen H. Clark
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Name:
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Stephen H. Clark
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Title:
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Executive Vice President and Chief
Financial Officer
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Exhibit 99.1
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 June 28, 2012 (the
“Note Purchase Agreement”
), relating to issue and sale by the Company of its (a) $64,000,000 aggregate principal amount of its 2.39% Senior Notes, Series 2012A, due June 28, 2015, (b) $16,000,000 aggregate principal amount of its 2.71% Senior Notes, Series 2012B, due June 28, 2017, and (c) $35,000,000 aggregate principal amount of its 3.46% Senior Notes, Series 2012C, due June 28, 2022 (the
“Series 2012C Notes”
), of which, only the Series 2012C Notes remain outstanding (collectively, 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.
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South Jersey Industries, Inc.
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By
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/s/ Ann T. Anthony
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Name: Ann T. Anthony
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Title: Vice President, Treasurer and Acting Corporate Secretary
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Accepted as of the date first written above.
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Thrivent Financial for Lutherans
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By
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/s/ Christopher Patton
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Name: Christopher Patton
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Title: Managing Director
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We acknowledge that we hold $15,000,000 3.46% Senior Notes, Series 2012C due June 28, 2022
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South Jersey Industries, Inc.
Second Amendment to 2012 Note Purchase Agreement
Accepted as of the date first written above.
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Modern Woodmen of America
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By
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/s/ Douglas A. Pannier
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Name: Douglas A. Pannier
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Title: Group Head – Private Placements
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By
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/s/ Christopher M. Cramer
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Name: Christopher M Cramer
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Title: Manager - Fixed Income
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We acknowledge that we hold $20,000,000 3.46% Senior Notes, Series 2012C due June 28, 2022
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Exhibit 99.2
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 June 26, 2014 (the
“Note Purchase Agreement”
), relating to issue and sale by the Company of its (a) $60,000,000 aggregate principal amount of its 3.05% Senior Notes, Series 2014A-1, due June 26, 2019 the (
“Series A1 Notes”
), (b) $30,000,000 aggregate principal amount of its 3.05% Senior Notes, Series 2014A-2, due August 15, 2019 (
“Series A2 Notes”
), (c) $50,000,000 aggregate principal amount of its 3.05% Senior Notes, Series 2014A-3, due September 26, 2019 (
“Series A3 Notes”
), (d) $40,000,000 aggregate principal amount of its Floating Rate Senior Notes, Series 2014B-1, due June 26, 2019 the (
“Series B1 Notes”
) and (e) $60,000,000 aggregate principal amount of its Floating Rate Senior Notes, Series 2014B-2, due September 26, 2019 the (
“Series B2 Notes”
and collectively with the Series A1 Notes, Series A2 Notes and Series A3 Notes and the Series B1 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.
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South Jersey Industries, Inc.
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By
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/s/ Ann T. Anthony
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Name: Ann T. Anthony
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Title: Vice President, Treasurer and Acting Corporate Secretary
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Accepted as of the date first written above.
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Metropolitan life insurance Company
by MetLife Investment Advisors LLC,
Its Investment Manager
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By
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/s/ John A. Wills
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Name: John A. Wills
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Title: Senior Vice President and Managing Director
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We acknowledge that we hold $39,200,000 Floating Rate Senior
Notes, Series 2014B-1 due June 26, 2019
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We acknowledge that we hold $5,400,000 3.05% Senior Notes, Series 2014A-2 due August 15, 2019
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We acknowledge that we hold $58,900,000 Floating Rate Senior
Notes, Series 2014B-2 due September 26, 2019
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Brighthouse life insurance Company,
formerly known as MetLife Investors USA Insurance Company, formerly known as MetLife Insurance Company of Connecticut and as successor by merger to MetLife Investors USA Insurance Company
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by MetLife Investment Advisors, LLC, its Investment Manager
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By
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/s/ Judith A. Gulotta
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Name: Judith A. Gulotta
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Title: Managing Director
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We acknowledge that we hold $14,000,000 3.05% Senior Notes, Series 2014A-2 due August 15, 2019
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South Jersey Industries, Inc.
Second Amendment to 2014 Note Purchase Agreement
Accepted as of the date first written above.
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Axis Reinsurance Company
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By MetLife Investment Advisors, LLC, its Investment Manager
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By
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/s/ Judith A. Gulotta
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Name: Judith A. Gulotta
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Title: Managing Director
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We acknowledge that we hold $800,000 Floating Rate Senior
Notes, Series 2014B-1 due June 26, 2019
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We acknowledge that we hold $10,600,000 3.05% Senior Notes Series 2014A-2 due August 15, 2019
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We acknowledge that we hold $1,000,000 Floating Rate Senior Notes, Series 2014B-2 due September 26, 2019
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Accepted as of the date first written above.
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The Northwestern Mutual Life Insurance Company
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By Northwestern Mutual Investment Management Company, LLC, its investment adviser
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By
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/s/ Bradley T. Kunath
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Name: Bradley T. Kunath
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Title: Managing Director
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We acknowledge that we hold $50,000,000 3.05% Senior Notes Series 2014A-1 due June 26, 2019
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We acknowledge that we hold $50,000,000 3.05% Senior Notes, Series 2014A-3 due September 26, 2019
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Accepted as of the date first written above.
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Woodmen of the World Life Insurance Society
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By
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/s/ Shawn Bengtson
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Name: Shawn Bengtson
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Title: Vice President, Investment
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We acknowledge that we hold $10,000,000 3.05% Senior Notes Series 2014A-1 due June 26, 2019
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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.
|
South Jersey Industries, Inc.
|
|
|
|
|
By
|
/s/ Ann T. Anthony
|
|
|
Name: Ann T. Anthony
|
|
|
Title: Vice President, Treasurer and Acting Corporate Secretary
|
Accepted as of the date first written above.
|
The Northwestern Mutual Life Insurance Company
|
|
|
|
|
By Northwestern Mutual Investment Management Company, LLC, its investment adviser
|
|
|
|
|
By
|
/s/ Bradley T. Kunath
|
|
|
Name: Bradley T. Kunath
|
|
|
Title: Managing Director
|
|
|
|
|
We acknowledge that we hold $9,000,000 3
.
22% Senior
|
|
Notes, Series 2017A-l due August 16, 2024
|
|
|
|
|
We acknowledge that we hold $8,000,000 3
.
32% Senior
|
|
Notes, Series 2017 A-2 due January 16
,
2025
|
|
|
|
|
We acknowledge that we hold $4
,
860
,
000 3.46% Senior
|
|
Notes, Series 2017B-l due August 16, 2027
|
|
|
|
|
We acknowledge that we hold $5,832,000 3
.
56% Senior
|
|
Notes, Series 2017B
-
2 due January 16, 2028
|
|
The Northwestern Mutual Life Insurance Company for its Group Annuity Separate Account
|
|
|
|
|
By
|
/s/ Bradley T. Kunath
|
|
|
Name: Bradley T. Kunath
|
|
|
Title: Its Authorized Representative
|
|
|
|
|
We acknowledge that we hold $140,000 3.46% Senior Notes, Series 2017B
-
l due August 16, 2027
|
|
|
|
|
We acknowledge that we hold $168,000 3.56% Senior Notes, Series 2017B
-
2 due January 16, 2028
|
South Jersey Industries, Inc.
Second Amendment to 2017 Note Purchase Agreement
Accepted as of the date first written above.
|
The Prudential Insurance Company of America
|
|
|
|
|
|
Name: Lauren Solis
|
|
|
Title: Vice President
|
|
|
|
|
We acknowledge that we hold $8,000,000 3
.
22% Senior
|
|
Notes, Series 2017A-l due August 16, 2024
|
|
|
|
|
We acknowledge that we hold $3,000,000 3.46% Senior
|
|
Notes, Series 2017B
-
l due August 16, 2027
|
|
|
|
|
We acknowledge that we hold $7,000,000 3.56% Senior
|
|
Notes, Series 2017B-2 due January 16, 2028
|
|
|
|
|
Prudential Retirement Insurance and Annuity Company
|
|
|
|
|
By: PGIM, Inc. as investment manager
|
|
|
|
|
|
Name: Lauren Solis
|
|
|
Title: Vice President
|
|
|
|
|
We acknowledge that we hold
$10,000,000 3.32% Senior
|
|
Notes,
Series 2017
A-2
due
January 16
,
2025
|
Accepted as of the date first written above.
|
Pacific Life Insurance Company
|
|
|
|
|
By
|
/s/ Violet Osterberg
|
|
|
Name: Violet Osterberg
|
|
|
Title: Assistant Vice President
|
|
|
|
|
By
|
/s/ Cathy L. Schwartz
|
|
|
Name: Cathy L. Schwartz
|
|
|
Title: Assistant Secretary
|
|
|
|
|
We acknowledge that we hold $13,000,000 3.46% Senior
|
|
Notes
, Series 20 l 7B
-
l due August 16, 2027
|
|
|
|
|
We acknowledge that we hold $7,000,000 3.56% Senior
|
|
Notes, Series 20 l 7B-2 due January 16, 2028
|
Accepted as of the date first written above.
|
The Guardian Life Insurance Company Of America
|
|
|
|
|
By
|
/s/ Trinh T. Nguyen
|
|
|
Name: Trinh T. Nguyen
|
|
|
Title: Senior Director
|
|
|
|
|
We acknowledge that we hold $5,000,000 3.22% Senior
|
|
Notes, Series 20 l 7A- l due August 16, 2024
|
|
|
|
|
Notes, Series 20 l 7A-2 due January 25, 2025
|
|
Notes, Series 20 l 7B-2 due January 16, 2028
|
|
|
|
We acknowledge that we hold $5,000,000 3.56% Senior
|
|
Notes, Series 20 l7B-2 due January 16, 2028
|
Exhibit 99.4
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 Industries, Inc.
, a New Jersey corporation (the
“Company”
), and each of the institutions that is a signatory to this First 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 April 25, 2018 (the
“Note Purchase Agreement”
), relating to issue and sale by the Company of its (a) $90,000,000 aggregate principal amount of its 3.18% Senior Notes, Series 2018A, due 2021 the (
“Series A Notes”
), (b) $80,000,000 aggregate principal amount of its 3.82% Senior Notes, Series 2018B, due 2028 (
“Series B Notes”
) and (c) $80,000,000 aggregate principal amount of its 3.92% Senior Notes, Series 2018C, due 2030 (
“Series C Notes”
and collectively with the Series A Notes and Series B 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 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.
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 First Amendment (which representations shall survive the execution and delivery of this First Amendment), the Company represents and warrants to the holders of the outstanding Notes (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 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.
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.
|
South Jersey Industries, Inc.
|
|
|
|
By
|
/s/ Ann T. Anthony
|
|
|
Name: Ann T. Anthony
|
|
|
Title: Vice President, Treasurer and Acting
Corporate Secretary
|
Accepted as of the date first written above.
|
Brighthouse Life Insurance Company
by MetLife Investment Advisors, LLC, Its
Investment Manager
|
|
|
|
By
|
/s/ Judith A. Gulotta
|
|
|
Name: Judith A. Gulotta
|
|
|
Title: Managing Director
|
|
|
|
We acknowledge that we hold $39,500,000 3.18% Senior
Notes,
Series
2018A, due April 25, 2021
|
|
Farmers New World Life Insurance
Company
by MetLife Investment Advisors, LLC, Its
Investment Manager
|
|
|
|
By
|
/s/ Judith A. Gulotta
|
|
|
Name: Judith A. Gulotta
|
|
|
Title: Managing Director
|
|
|
|
We acknowledge that we hold $2,000,000 3.18% Senior
Notes,
Series
2018A, due April 25, 2021
|
|
Transatlantic Reinsurance Company
by MetLife Investment Advisors, LLC, Its
Investment Manager
|
|
|
|
By
|
/s/ Judith A. Gulotta
|
|
|
Name: Judith A. Gulotta
|
|
|
Title: Managing Director
|
|
|
|
We acknowledge that we hold $3,500,000
3.18% Senior
Notes,
Series 2018A,
due April 25,
2021
|
South Jersey Industries, Inc.
First Amendment to 2018 Note Purchase Agreement
Accepted as of the date first written above.
|
Zurich American Insurance Company
by MetLife Investment Advisors, LLC, Its
Investment Manager
|
|
|
|
Pension and Savings Committee,
On Behalf of The Zurich American Insurance
Company Master Retirement Trust
|
|
by MetLife Investment Advisors, LLC, Its
Investment Manager
|
|
|
|
By
|
/s/ Judith A. Gulotta
|
|
|
Name: Judith A. Gulotta
|
|
|
Title: Managing Director
|
|
|
|
We acknowledge that
Zurich American Insurance
Company
holds $3,500,000 3.18% Senior Notes, Series
2018A, due April 25, 2021
|
|
|
|
We acknowledge that
Zurich American Insurance
Company Master Retirement Trust
holds $1,500,000
3.18% Senior Notes, Series 2018A, due April 25, 2021
|
Accepted as of the date first written above.
|
The Northwestern Mutual Life Insurance
Company
|
|
|
|
By: Northwestern Mutual Investment
Management Company, LLC, its investment
adviser
|
|
|
|
By
|
/s/ Bradley T. Kunath
|
|
|
Name: Bradley T. Kunath
|
|
|
Title: Managing Director
|
|
|
|
|
We acknowledge that we hold $20,000,000 3.82% Senior
Notes, Series 2018B, due June 19, 2028
|
|
|
|
We acknowledge that we hold $19,200,000 3.92% Senior
Notes, Series 2018C, due June 19, 2030
|
|
The Northwestern Mutual Life Insurance
Company for its Group Annuity Separate
Account
|
|
|
|
By
|
/s/ Bradley T. Kunath
|
|
|
Name: Bradley T. Kunath
|
|
|
Title: Managing Director
|
|
|
|
We acknowledge that we hold $800,000 3.92% Senior
Notes, Series 2018C, due June 19, 2030
|
Accepted as of the date first written above.
|
Thrivent Financial for Lutherans
|
|
|
|
By
|
/s/ Christopher H. Patton
|
|
|
Name: Christopher H. Patton
|
|
|
Title: Managing Director
|
|
|
|
We acknowledge that we hold $7,000,000 3.82% Senior
Notes, Series 2018B, due June 19, 2028
|
|
|
|
We acknowledge that we hold $7,000,000 3.92% Senior
Notes, Series 2018C, due June 19, 2030
|
Accepted as of the date first written above.
|
Pacific Life Insurance Company
|
|
|
|
By
|
/s/ Violet Osterberg
|
|
|
Name: Violet Osterberg
|
|
|
Title: Assistant Vice President
|
|
By
|
/s/ Cathy L. Schwartz
|
|
|
Name: Cathy L. Schwartz
|
|
|
Title: Assistant Secretary
|
|
|
|
We acknowledge that we hold $9,000,000 3.82% Senior
Notes, Series 2018B, due June 19, 2028
|
|
|
|
We acknowledge that we hold $8,000,000 3.92% Senior
Notes, Series 2018C, due June 19, 2030
|
Accepted as of the date first written above.
|
The Guardian Life Insurance Company of
America
|
|
|
|
By
|
/s/ Trinh T. Nguyen
|
|
|
Name: Trinh T. Nguyen
|
|
|
Title: Senior Director
|
|
|
|
W
e acknowledge that we hold $8,000,000 3.82% Senior
Notes, Series 2018B, due June 19, 2028
|
Accepted as of the date first written above.
|
American Equity Investment Life
Insurance Company
|
|
|
|
|
By
|
/s/ Jeffrey A. Fossell
|
|
|
Name: Jeffrey A. Fossell
|
|
|
Title: Authorized Signatory
|
|
|
|
We acknowledge that we hold $9,000,000 3.82% Senior
Notes, Series 2018B, due June 19, 2028
|
|
|
|
We acknowledge that we hold $8,000,000 3.92% Senior
Notes, Series 2018C, due June 19, 2030
|
Accepted as of the date first written above.
|
Colonial Life & Accident Insurance
Company
|
|
|
|
By:
|
Provident Investment Management, LLC
|
Its:
|
Agent
|
|
|
|
|
By
|
/s/ Ben Vance
|
|
|
Name: Ben Vance
|
|
|
Title: Vice President, Senior Managing
Director
|
|
|
|
We acknowledge that we hold $8,000,000 3.82% Senior
Notes, Series 2018B, due June 19, 2028
|
|
Provident Life and Accident Insurance
Company
|
|
|
|
|
By:
|
Provident Investment Management, LLC
|
Its:
|
Agent
|
|
|
|
|
By
|
/s/ Ben Vance
|
|
|
Name: Ben Vance
|
|
|
Title: Vice President, Senior Managing Director
|
|
|
|
We acknowledge that we hold $9,000,0003.92% Senior
Notes, Series 2018C, due June 19, 2030
|
Accepted as of the date first written above.
|
Transamerica Life Insurance Company
|
|
|
|
By:
|
AEGON USA Investment Management,
LLC, its investment manager
|
|
|
|
|
By:
|
/s/ Frederick B. Howard
|
|
|
Name: Frederick B. Howard
|
|
|
Title: Vice President
|
|
|
|
We acknowledge that we hold $7,000,000 3.82% Senior
Notes, Series 2018B, due June 19, 2028
|
|
|
|
We acknowledge that we hold $4,000,000 3.92% Senior
Notes, Series 2018C, due June 19, 2030
|
Accepted as of the date first written above.
|
Connecticut General Life Insurance
Company
|
|
|
|
|
By:
|
Cigna Investments, Inc. (authorized agent)
|
|
|
|
|
By
|
/s/ Christopher D. Potter
|
|
|
Name: Christopher D. Potter
|
|
|
Title: Managing Director
|
|
|
|
We acknowledge that we hold $1,000,000 3.82% Senior
Notes, Series 2018B, due June 19, 2028
|
|
Life Insurance Company of North America
|
|
|
|
|
By:
|
Cigna Investments, Inc. (authorized agent)
|
|
|
|
|
By
|
/s/ Christopher D. Potter
|
|
|
Name: Christopher D. Potter
|
|
|
Title: Managing Director
|
|
|
|
We acknowledge that we hold $6,000,000 3.18% Senior
Notes, Series 2018A, due April 25, 2021
|
|
|
|
We acknowledge that we hold $1,000,000 3.82% Senior
Notes, Series 2018B, due June 19, 2028
|
|
|
|
We acknowledge that we hold $1,500,000 3.92% Senior
Notes, Series 2018C, due June 19, 2030
|
|
Cigna Health and Life Insurance
|
|
|
|
|
By:
|
Cigna Investments, Inc. (authorized agent)
|
|
|
|
|
By
|
/s/ Christopher D. Potter
|
|
|
Name: Christopher D. Potter
|
|
|
Title: Managing Director
|
|
|
|
We acknowledge that we hold $1,000,000 3.82% Senior
Notes, Series 2018B, due June 19, 2028
|
|
|
|
We acknowledge that we hold $500,000 3.92% Senior
Notes, Series 2018C, due June 19, 2030
|
Accepted as of the date first written above.
|
Ensign Peak Advisors, Inc.
|
|
|
|
By
|
/s/ Matthew D. Dall
|
|
|
Name: Matthew D. Dall
|
|
|
Title: Head of Credit Research
|
|
|
|
We acknowledge that we hold $10,000,000 3.18% Senior
Notes, Series 2018A, due April 25, 2021
|
Accepted as of the date first written above.
|
Principal Life Insurance Company
|
|
|
|
By:
|
Principal Global Investors, LLC a Delaware
limited liability company, its authorized
signatory
|
|
By
|
/s/ Alex R. Montz
|
|
|
Name: Alex R. Montz
|
|
|
Title: Counsel
|
|
By
|
/s/ Justin T. Lange
|
|
|
Name: Justin T. Lange
|
|
|
Title: Counsel
|
|
|
|
We acknowledge that we hold $8,000,000 3.18% Senior
Notes, Series 2018A, due April 25, 2021
|
Accepted as of the date first written above.
|
American United Life Insurance Company
|
|
|
|
|
By
|
/s/ David M. Weisenburger
|
|
|
Name: David M. Weisenburger
|
|
|
Title: VP, Fixed Income Securities
|
|
|
|
We acknowledge that we hold $3,000,000 3.82% Senior
Notes, Series 2018B, due June 19, 2028
|
|
The State Life Insurance Company
|
|
By: American United Life Insurance Company
Its: Agent
|
|
|
|
By
|
/s/ David M. Weisenburger
|
|
|
Name: David M. Weisenburger
|
|
|
Title: VP, Fixed Income Securities
|
|
|
|
We acknowledge that we hold $2,000,000 3.92% Senior
Notes, Series 2018C, due June 19, 2030
|
|
Pioneer Mutual Life Insurance Company
|
|
By: American United Life Insurance Company
Its: Agent
|
|
|
|
|
By
|
/s/ David M. Weisenburger
|
|
|
Name: David M. Weisenburger
|
|
|
Title: VP, Fixed Income Securities
|
|
United Family Life Insurance Company
|
|
By: American United Life Insurance Company
Its: Agent
|
|
|
|
|
By
|
/s/ David M. Weisenburger
|
|
|
Name: David M. Weisenburger
|
|
|
Title: VP, Fixed Income Securities
|
|
|
|
We acknowledge that we hold $1,000,000 3.92% Senior
Notes, Series 2018C, due June 19, 2030
|
Accepted as of the date first written above.
|
Ameritas Life Insurance Corp.
|
|
Americas Life Insurance Corp. of New York
|
|
By: Ameritas Investment Partners Inc., as Agent
|
|
|
|
|
By
|
/s/ Tina Udell
|
|
|
Name: Tina Udell
|
|
|
Title: Vice President & Managing Director
|
|
|
|
We acknowledge that
Ameritas Life Insurance Corp.
holds $4,000,000 3.92% Senior Notes, Series 2018C, due
June 19, 2030
|
|
|
|
We acknowledge that
Ameritas Life Insurance Corp.
of
New York holds $1,000,000 3.92% Senior Notes, Series
2018C, due June 19, 2030
|
Accepted as of the date first written above.
|
CMFG Life Insurance Company
|
|
|
|
By: MEMBERS Capital Advisors, Inc. acting as
Investment Advisor
|
|
|
|
By
|
/s/ Allen R. Cantrell
|
|
|
Name: Allen R. Cantrell
|
|
|
Title: Managing Director, Investments
|
|
|
|
We acknowledge that we hold $2,000,000 3.18% Senior
Notes, Series 2018A, due April 25, 2021
|
|
|
|
We acknowledge that we hold $3,000,000 3.92% Senior
Notes, Series 2018C, due June 19, 2030
|
Accepted as of the date first written above.
|
Southern Farm Bureau Life Insurance
Company
|
|
|
|
|
By
|
/s/ David Divine
|
|
|
Name: David Divine
|
|
|
Title: Senior Portfolio Manager
|
|
|
|
We acknowledge that we hold $2,000,000 3.92% Senior
Notes, Series 2018C, due June 19, 2030
|
Accepted as of the date first written above.
|
Country Mutual Life Insurance Company
|
|
|
|
|
By
|
/s/ John A. Jacobs
|
|
|
Name: John A. Jacobs
|
|
|
Title: Director – Fixed Income
|
|
|
|
We acknowledge that we hold $1,000,000 3.82% Senior
Notes, Series 2018B, due June 19, 2028
|
|
Country Life Insurance Company
|
|
|
|
|
By
|
/s/ John A. Jacobs
|
|
|
Name: John A. Jacobs
|
|
|
Title: Director – Fixed Income
|
|
|
|
We acknowledge that we hold $1,000,000 3.92% Senior
Notes, Series 2018C, due June 19, 2030
|
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 March 1, 2010 (the
“Note Purchase Agreement”
), relating to issue and sale by the Company of its (i) $15,000,000 aggregate principal amount of its Medium Term Notes, Series C, 2010-1, Tranche A, due March 1, 2026 (the
“Tranche A Notes”
) and (ii) $45,000,000 aggregate principal amount of its Medium Term Notes, Series C, 2010-1, Tranche B, due 2026 (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:
“(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.
|
South Jersey Gas Company
|
|
|
|
|
By:
|
/s/ Ann T. Anthony
|
|
|
Name: Ann T. Anthony
|
|
|
Title:
Treasurer and Secretary
|
Accepted as of the date first written above.
|
Metropolitan Life Insurance Company
|
|
|
|
By:
|
MetLife Investment Advisors, LLC, its
Investment Manager
|
|
|
|
|
By:
|
/s/ John A. Wills
|
|
|
Name: John A. Wills
|
|
|
Title: Senior Vice President and Managing Director
|
|
|
|
|
We acknowledge that we hold
$35,000,000
Medium Term Notes, Series C, 2010-1, Tranche A due March 1, 2026
|
South Jersey Gas Company First Amendment to
March 1, 2010 Note Purchase Agreement
Accepted as of the date first written above.
|
Massachusetts Mutual Life Insurance Company
|
|
|
|
By: Barings LLC, as Investment Advisor
|
|
|
|
By:
|
/s/ Stephen J. Katz
|
|
|
Name: Stephen J. Katz
|
|
|
Title: Managing Director & Senior Counsel
|
|
|
|
We acknowledge that we hold
$8,550,000
Medium Term Notes, Series C, 2010-1, Tranche B due June 30, 2026
|
|
|
|
C.M. Life Insurance Company
|
|
|
|
By: Barings LLC, as Investment Advisor
|
|
|
|
By:
|
/s/ Stephen J. Katz
|
|
|
Name: Stephen J. Katz
|
|
|
Title: Managing Director & Senior Counsel
|
|
|
|
We acknowledge that we hold
$750,000
Medium Term Notes, Series C, 2010-1, Tranche B due June 30, 2026
|
|
|
|
Massmutual Asia Limited
|
|
|
|
By: Barings LLC, as Investment Advisor
|
|
|
|
By:
|
/s/ Stephen J. Katz
|
|
|
Name: Stephen J. Katz
|
|
|
Title: Managing Director & Senior Counsel
|
|
|
|
We acknowledge that we hold
$700,000
Medium Term Notes, Series C, 2010-1, Tranche B due June 30, 2026
|
South Jersey Gas Company First Amendment to
March 1, 2010 Note Purchase Agreement
Accepted as of the date first written above.
|
United of Omaha Life Insurance Company
|
|
|
|
By:
|
/s/ Justin P. Kavan
|
|
|
Name: Justin P. Kavan
|
|
|
Title: Senior Vice President
|
|
|
|
We acknowledge that we hold
$5,000,000
Medium Term Notes, Series C, 2010-1, Tranche A due March 1, 2026
|
|
|
|
Mutual of Omaha Insurance Company
|
|
|
|
By:
|
/s/ Justin P. Kavan
|
|
|
Name: Justin P. Kavan
|
|
|
Title: Senior Vice President
|
|
|
|
We acknowledge that we hold
$2,000,000
Medium Term Notes, Series C, 2010-1, Tranche A due March 1, 2026
|
South Jersey Gas Company First Amendment to
March 1, 2010 Note Purchase Agreement
Accepted as of the date first written above.
|
Modern Woodmen of America
|
|
|
|
By:
|
/s/ Douglas A. Pannier
|
|
|
Name: Douglas A. Pannier
|
|
|
Title: Group Head – Private Placements
|
|
|
|
|
By:
|
/s/ Christopher M. Cramer
|
|
|
Name: Christopher M. Cramer
|
|
|
Title: Manager – Fixed Income
|
|
|
|
We acknowledge that we hold
$5,000,000
Medium Term Notes, Series C, 2010-1, Tranche A due March 1, 2026
|
South Jersey Gas Company First Amendment to
March 1, 2010 Note Purchase Agreement
Accepted as of the date first written above.
|
Country Life Insurance Company
|
|
|
|
By:
|
/s/ John A. Jacobs
|
|
|
Name: John A. Jacobs
|
|
|
Title: Director – Fixed Income
|
|
|
|
We acknowledge that we hold
$2,000,000
Medium Term Notes, Series C, 2010-1, Tranche A due March 1, 2026
|
|
|
|
Cotton States Life Insurance
|
|
|
|
By:
|
/s/ John A. Jacobs
|
|
|
Name: John A. Jacobs
|
|
|
Title: Director – Fixed Income
|
|
|
|
We acknowledge that we hold
$1,000,000
Medium Term Notes, Series C, 2010-1, Tranche A due March 1, 2026
|
South Jersey Gas Company First Amendment to
March 1, 2010 Note Purchase Agreement
Exhibit 99.6
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 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:
“(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.
|
South Jersey Gas Company
|
|
|
|
|
By
|
/s/ Ann T. Anthony
|
|
|
Name: Ann T. Anthony
|
|
|
Title: Treasurer and Secretary
|
Accepted as of the date first written above.
|
Massachusetts Mutual Life Insurance
Company
|
|
|
|
|
By:
|
Barings LLC, as Investment Advisor
|
|
|
|
|
By:
|
/s/ Steven J. Katz
|
|
|
Name: Steven J. Katz
|
|
|
Title: Managing Director & Senior Counsel
|
|
|
|
|
We acknowledge that we hold
$45,000,000
Medium Term Notes, Series C, 2010-2, Tranche A due December 30, 2025
|
South Jersey Gas Company First Amendment to
December 30, 2010 Note Purchase Agreement
Accepted as of the date first written above.
|
Modern Woodmen of America
|
|
|
|
|
By:
|
/s/ Douglas A. Pannier
|
|
|
Name: Douglas A. Pannier
|
|
|
Title: Group Head – Private Placements
|
|
|
|
|
By:
|
/s/ Christopher M. Cramer
|
|
|
Name: Christopher M
. Cramer
|
|
|
Title: Manager – Fixed Income
|
|
|
|
|
We acknowledge that we hold
$10,000,000
Medium Term Notes, Series C, 2010-2, Tranche B due December 30, 2027
|
South Jersey Gas Company First Amendment to
December 30, 2010 Note Purchase Agreement
Exhibit 99.7
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.
|
S
outh
J
ersey
Gas Company
|
|
By:
|
/s/ Ann T, Anthony
|
|
|
Name:
|
Ann T. Anthony
|
|
|
Title:
|
Treasurer and Secretary
|
Accepted as of the date first written above.
|
Thrivent Financial For Lutherans
|
|
|
|
|
By:
|
/s/ Christopher H. Patton
|
|
|
Name:
|
Christopher H. Patton
|
|
|
Title:
|
Managing Director
|
|
We acknowledge that we hold
$35,000,000
Medium
Term Notes, Series D, 2012-1, due April 1, 2032
|
South Jersey Gas Company First Amendment to
April 2, 2012 Note Purchase Agreement
Exhibit 99.8
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.
|
South Jersey Gas Company
|
|
|
|
By:
|
/s/ Ann T. Anthony
|
|
|
Name: Ann T. Anthony
|
|
|
Title:
Treasurer and Secretary
|
Accepted as of the date first written above.
|
The Northwestern Mutual Life Insurance Company
|
|
|
|
|
By:
|
Northwestern Mutual Investment Management Company, LLC, its investment adviser
|
|
|
|
|
By:
|
/s/ Bradley T. Kunath
|
|
|
Name: Bradley T. Kunath
|
|
|
Title: Managing Director
|
|
|
|
|
We acknowledge that we hold
$30,000,000
Medium Term Notes, Series D, 2012-2, Tranche A, due September 20, 2024
|
|
|
|
|
We acknowledge that we hold
$20,000,000
Medium Term Notes, Series D, 2012-2, Tranche B, due November 30, 2024
|
South Jersey Gas Company Second Amendment to
September 20, 2012 Note Purchase Agreement
Accepted as of the date first written above.
|
American United Life Insurance Company
|
|
|
|
|
By:
|
/s/ Michael Bullock
|
|
|
Name: Michael Bullock
|
|
|
Title: VP, Private Placements
|
|
|
|
|
We acknowledge that we hold
$8,000,000
Medium Term Notes, Series D, 2012-2, Tranche A, due September 20, 2024
|
|
|
|
|
We acknowledge that we hold
$7,000,000
Medium Term Notes, Series D, 2012-2, Tranche B, due November 30, 2024
|
South Jersey Gas Company Second Amendment to
September 20, 2012 Note Purchase Agreement
Accepted as of the date first written above.
|
United of Omaha Life Insurance Company
|
|
|
|
|
By:
|
/s/ Justin P. Kavan
|
|
|
Name: Justin P. Kavan
|
|
|
Title: Senior Vice President
|
|
|
|
|
We acknowledge that we hold
$5,000,000
Medium Term Notes, Series D, 2012-2, Tranche A, due September 20, 2024
|
|
|
|
|
Mutual of Omaha Insurance Company
|
|
|
|
|
By:
|
/s/ Justin P. Kavan
|
|
|
Name: Justin P. Kavan
|
|
|
Title: Senior Vice President
|
|
|
|
|
We acknowledge that we hold
$1,000,000
Medium Term Notes, Series D, 2012-2, Tranche A, due September 20, 2024
|
|
|
|
|
We acknowledge that we hold
$1,000,000
Medium Term Notes, Series D, 2012-2, Tranche B, due November 30, 2024
|
|
|
|
|
Omaha Reinsurance Company
|
|
|
|
|
By:
|
/s/ Justin P. Kavan
|
|
|
Name: Justin P. Kavan
|
|
|
Title: An Authorized Signer
|
|
|
|
|
We acknowledge that we hold
$3,000,000
Medium Term Notes, Series D, 2012-2, Tranche B, due November 30, 2024
|
South Jersey Gas Company Second Amendment to
September 20, 2012 Note Purchase Agreement
Accepted as of the date first written above.
|
Modern Woodmen of America
|
|
|
|
|
By:
|
/s/ Douglas A. Pannier
|
|
|
Name: Douglas A. Pannier
|
|
|
Title: Group Head – Private Placements
|
|
|
|
|
By:
|
/s/ Christopher M. Cramer
|
|
|
Name: Christopher M. Cramer
|
|
|
Title: Manager – Fixed Income
|
|
|
|
|
We acknowledge that we hold
$6,000,000
Medium Term Notes, Series D, 2012-2, Tranche A, due September 20, 2024
|
|
|
|
|
We acknowledge that we hold
$4,000,000
Medium Term Notes, Series D, 2012-2, Tranche B, due November 30, 2024
|
South Jersey Gas Company Second Amendment to
September 20, 2012 Note Purchase Agreement
Exhibit 99.9
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 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:
“(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.
|
South Jersey Gas Company
|
|
|
|
|
By
|
/s/ Ann T. Anthony
|
|
|
Name: Ann T. Anthony
|
|
|
Title: Treasurer and Secretary
|
Accepted as of the date first written above.
|
Metlife Life Insurance K.K.
|
|
f/k/a Metlife Alico Life Insurance K.K.
|
|
|
|
by MetLife Investment Advisors, LLC, Its Investment Manager
|
|
|
|
By:
|
/s/ John A. Wills
|
|
|
Name: John A. Wills
|
|
|
Title: Senior Vice President and Managing Director
|
|
|
|
We acknowledge that we hold
$18,000,000
Medium Term Notes, Series D, 2013, Tranche A, due November 21, 2030
|
|
|
|
We acknowledge that we hold
$15,000,000
Medium Term Notes, Series D, 2013, Tranche B, due January 30, 2030
|
South Jersey Gas Company First Amendment to
November 21, 2013 Note Purchase Agreement
Accepted as of the date first written above.
|
State Farm Life Insurance Company
|
|
|
|
By:
|
/s/ Julie Hoyer
|
|
|
Name: Julie Hoyer
|
|
|
Title: Investment Executive
|
|
|
|
|
By:
|
/s/ Jeffrey Attwood
|
|
|
Name: Jeffrey Attwood
|
|
|
Title: Investment Professional
|
|
|
|
We acknowledge that we hold
$17,000,000
Medium Term Notes, Series D, 2013, Tranche A, due November 21, 2030
|
|
|
|
We acknowledge that we hold
$14,000,000
Medium Term Notes, Series D, 2013, Tranche B, due January 30, 2030
|
|
|
|
|
State Farm Life and Accident Assurance Company
|
|
|
|
|
By:
|
/s/ Julie Hoyer
|
|
|
Name: Julie Hoyer
|
|
|
Title: Investment Executive
|
|
|
|
|
By:
|
/s/ Jeffrey Attwood
|
|
|
Name: Jeffrey Attwood
|
|
|
Title: Investment Professional
|
|
|
|
|
We acknowledge that we hold
$1,000,000
Medium Term Notes, Series D, 2013, Tranche A, due November 21, 2030
|
|
|
|
We acknowledge that we hold
$1,000,000
Medium Term Notes, Series D, 2013, Tranche B, due January 30, 2030
|
South Jersey Gas Company First Amendment to
November 21, 2013 Note Purchase Agreement
Accepted as of the date first written above.
|
Knights of Columbus
|
|
|
|
By:
|
/s/ Gilles Marchand
|
|
|
Name: Gilles Marchand
|
|
|
Title: VP
|
|
|
|
We acknowledge that we hold
$14,000,000
Medium Term Notes, Series D, 2013, Tranche A, due November 21, 2030
|
South Jersey Gas Company First Amendment to
November 21, 2013 Note Purchase Agreement
Exhibit 99.10
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.
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.
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South Jersey Gas Company
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By:
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/s/ Ann T. Anthony
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Name: Ann T. Anthony
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Title:
Treasurer and Secretary
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Accepted as of the date first written above.
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The Northwestern Mutual Life Insurance Company
|
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|
By:
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Northwestern Mutual Investment
|
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Management Company, LLC, its
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investment adviser
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By:
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/s/ Bradley T. Kunath
|
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Name: Bradley T. Kunath
|
|
|
Title: Managing Director
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We acknowledge that we hold
$103,360,000
Medium Term Notes, Series E, 2017, due January 25, 2047
|
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The Northwestern Mutual Life Insurance Company for its Group Annuity Separate Account
|
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By:
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/s/ Bradley T. Kunath
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Name: Bradley T. Kunath
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Its: Authorized Representative
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We acknowledge that we hold
$640,000,000
Medium Term Notes, Series E, 2017, due January 25, 2047
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South Jersey Gas Company First Amendment to
January 25, 2017 Note Purchase Agreement
Accepted as of the date first written above.
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State Farm Life Insurance Company
|
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By:
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/s/ Julie Hoyer
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Name: Julie Hoyer
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Title: Investment Executive
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By:
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/s/ Jeffrey Attwood
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Name: Jeffrey Attwood
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Title: Investment Professional
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We acknowledge that we hold
$55,500,000
Medium Term Notes, Series E, 2017, due January 25, 2047
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State Farm Insurance Companies Employee Retirement Trust
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By:
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/s/ Julie Hoyer
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Name: Julie Hoyer
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Title: Investment Executive
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By:
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/s/ Jeffrey Attwood
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Name: Jeffrey Attwood
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Title: Investment Professional
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We acknowledge that we hold
$5,500,000
Medium Term Notes, Series E, 2017, due January 25, 2047
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State Farm Life and Accident Assurance Company
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By:
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/s/ Julie Hoyer
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Name: Julie Hoyer
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Title: Investment Executive
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By:
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/s/ Jeffrey Attwood
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Name: Jeffrey Attwood
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Title: Investment Professional
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We acknowledge that we hold
$3,000,000
Medium Term Notes, Series E, 2017, due January 25, 2047
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South Jersey Gas Company First Amendment to
January 25, 2017 Note Purchase Agreement
Accepted as of the date first written above.
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Hartford Life Insurance Company
|
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Hartford Fire Insurance Company
|
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Hartford Insurance Company of Illinois
|
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Hartford Life and Accident Insurance Company
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By:
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Hartford Investment Management Company Their Agent and Attorney-in-Fact
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By:
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/s/ Dawn Bruneau
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Name: DAWN BRUNEAU
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Title: VICE PRESIDENT
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We acknowledge that
Hartford Life Insurance Company
holds
$5,000,000
Medium Term Notes, Series E, 2017, due January 25, 2047
|
|
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We acknowledge that
Hartford Fire Insurance Company
holds
$4,000,000
Medium Term Notes, Series E, 2017, due January 25, 2047
|
|
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We acknowledge that
Hartford Insurance Company of Illinois
holds
$7,000,000
Medium Term Notes, Series E, 2017, due January 25, 2047
|
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We acknowledge that
Hartford Life and Accident Insurance Company
holds
$5,000,000
Medium Term Notes, Series E, 2017, due January 25, 2047
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Kansas City Life Insurance Company
|
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By:
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Hartford Investment Management Company Its Agent and Attorney-in-Fact
|
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By:
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/s/ Dawn Bruneau
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Name: DAWN BRUNEAU
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Title: VICE PRESIDENT
|
|
|
|
|
We acknowledge that
Kansas City Life Insurance Company
holds
$3,000,000
Medium Term Notes, Series E, 2017, due January 25, 2047
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South Jersey Gas Company First Amendment to
January 25, 2017 Note Purchase Agreement
Accepted as of the date first written above.
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Country Life Insurance Company
|
|
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By:
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/s/ John A. Jacobs
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Name: John A. Jacobs
|
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Title: Director – Fixed Income
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We acknowledge that we hold $8,000,000 Medium Term Notes, Series E, 2017, due January 25, 2047
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South Jersey Gas Company First Amendment to
January 25, 2017 Note Purchase Agreement
Exhibit 99.11
FIRST AMENDMENT TO FIVE-YEAR REVOLVING CREDIT AGREEMENT
This
FIRST AMENDMENT TO FIVE-YEAR REVOLVING CREDIT AGREEMENT
(this “
Amendment
”), dated as of June 14, 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
WELLS FARGO 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 Five-Year Revolving Credit Agreement dated as of August 14, 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 (“
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 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, 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;
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 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 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 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
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 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 9.13 and 9.15 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.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF the parties hereto have caused this First Amendment to Five-Year Revolving Credit Agreement to be duly executed on the date first above written.
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SOUTH JERSEY GAS COMPANY, as Borrower
|
|
|
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By:
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/s/ Ann T. Anthony
|
|
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Name: Ann T. Anthony
|
|
|
Title: VP & Treasurer
|
|
WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Administrative Agent
|
|
|
|
By:
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/s/ Patrick Engel
|
|
|
Name: Patrick Engel
|
|
|
Title: Managing Director
|
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BANK OF AMERICA, N.A., as Issuing Bank and Lender
|
|
|
|
By:
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/s/ Richard R. Powell
|
|
|
Name:
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Richard R. Powell
|
|
|
Title:
|
Vice President
|
|
JPMORGAN CHASE BANK, N.A., as Issuing Bank and Lender
|
|
|
|
By:
|
/s/ Justin Martin
|
|
|
Name:
|
Justin Martin
|
|
|
Title:
|
Authorized Officer
|
|
PNC BANK, NATIONAL ASSOCIATION,
as Issuing Bank and Lender
|
|
|
|
By:
|
/s/ Thomas E. Redmond
|
|
|
Name:
|
Thomas E. Redmond
|
|
|
Title:
|
Managing Director
|
|
CITIZENS BANK OF PENNSYLVANIA, as Lender
|
|
|
|
By:
|
/s/ Hassan Shakeel
|
|
|
Name:
|
Hassan Shakeel
|
|
|
Title:
|
Vice President, Portfolio Management
|
|
TD BANK, N.A., as Issuing Bank and Lender
|
|
|
|
By:
|
/s/ Vijay Prasad
|
|
|
Name:
|
Vijay Prasad
|
|
|
Title:
|
Senior Vice President
|
|
BRANCH BANKING AND TRUST COMPANY, as Lender
|
|
|
|
By:
|
/s/ Sharona Yen
|
|
|
Name:
|
Sharona Yen
|
|
|
Title:
|
Banking Officer
|
|
KEYBANK NATIONAL ASSOCIATION, as Lender
|
|
|
|
By:
|
/s/ Renee M. Bonnell
|
|
|
Name:
|
Renee M. Bonnell
|
|
|
Title:
|
Vice President
|
|
MANUFACTURERS AND TRADERS TRUST COMPANY,
as Lender
|
|
|
|
By:
|
/s/ Laurel LB Magruder
|
|
|
Name:
|
Laurel LB Magruder
|
|
|
Title:
|
Group Vice President
|
SIGNATURE PAGE TO
FIRST AMENDMENT TO CREDIT AGREEMENT – SOUTH JERSEY GAS COMPANY
Exhibit 99.12
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.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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.
|
SOUTH JERSEY GAS COMPANY, as Borrower
|
|
|
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|
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By:
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/s/ Ann T. Anthony
|
|
|
Name:
|
Ann T. Anthony
|
|
|
Title:
|
VP, Treasurer
|
South Jersey Gas Company
First Amendment to Term Loan Credit Agreement
Signature Page
|
PNC BANK, NATIONAL ASSOCIATION, as
Administrative Agent
|
|
|
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By:
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/s/ Thomas E. Redmond
|
|
|
Name:
|
Thomas E. Redmond
|
|
|
Title:
|
Managing Director
|
South Jersey Gas Company
First Amendment to Term Loan Credit Agreement
Signature Page
|
PNC BANK, NATIONAL ASSOCIATION, as a
Lender
|
|
|
|
By:
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/s/ J. Alex Rolfe
|
|
|
Name:
|
J. Alex Rolfe
|
|
|
Title:
|
Vice President
|
South Jersey Gas Company
First Amendment to Term Loan Credit Agreement
Signature Page
|
BANK OF AMERICA, N.A., as a Lender
|
|
|
|
|
By:
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/s/ Richard R. Powell
|
|
|
Name:
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Richard R. Powell
|
|
|
Title:
|
Vice President
|
South Jersey Gas Company
First Amendment to Term Loan Credit Agreement
Signature Page
|
CITIZENS BANK OF PENNSYLVANIA, as a
Lender
|
|
|
|
By:
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/s/ Hassan Shakeel
|
|
|
Name:
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Hassan Shakeel
|
|
|
Title:
|
Vice President,
Portfolio
Management
|
South Jersey Gas Company
First Amendment to Term Loan Credit Agreement
Signature Page
|
KEYBANK NATIONAL ASSOCIATION, as a
Lender
|
|
|
|
By:
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/s/ Renee M. Bonnell
|
|
|
Name:
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Renee M. Bonnell
|
|
|
Title:
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Vice President
|
South Jersey Gas Company
First Amendment to Term Loan Credit Agreement
Signature Page
|
TD BANK, N.A., as a Lender
|
|
|
|
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By:
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/s/ Vijay Prasad
|
|
|
Name:
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Vijay Prasad
|
|
|
Title:
|
Senior Vice President
|
South Jersey Gas Company
First Amendment to Term Loan Credit Agreement
Signature Page
|
BRANCH BANKING AND TRUST COMPANY,
as a Lender
|
|
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By:
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/s/ Sharona Yen
|
|
|
Name:
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Sharona Yen
|
|
|
Title:
|
Banking Officer
|
South Jersey Gas Company
First Amendment to Term Loan Credit Agreement
Signature Page
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THE NORTHERN TRUST COMPANY, as a Lender
|
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By:
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/s/ Peter J. Hallan
|
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Name:
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Peter J. Hallan
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|
Title:
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Vice President
|
South Jersey Gas Company
First Amendment to Term Loan Credit Agreement
Signature Page
Exhibit 99.13
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.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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.
|
SOUTH JERSEY INDUSTRIES, INC.
|
|
|
|
|
|
|
By:
|
/s/ Ann T. Anthony
|
|
|
|
Name:
|
Ann T. Anthony
|
|
|
|
Title:
|
Vice President, Treasurer & Acting Corporate Secretary
|
|
[
Signature Page to Third Amendment to 364-Day Revolving Credit Agreement
]
|
MORGAN STANLEY SENIOR FUNDING,
|
|
|
INC., as Administrative Agent
|
|
|
|
|
|
|
By:
|
/s/ Emanuel Ma
|
|
|
|
Name:
|
Emanuel Ma
|
|
|
|
Title:
|
Vice President
|
|
[
Signature Page to Third Amendment to 364-Day Revolving Credit Agreement
]
|
MORGAN STANLEY BANK, N.A., as a Lender
|
|
|
|
|
|
By:
|
/s/ Emanuel Ma
|
|
|
|
Name:
|
Emanuel Ma
|
|
|
|
Title:
|
Authorized Signatory
|
|
[
Signature Page to Third Amendment to 364-Day Revolving Credit Agreement
]
Exhibit 99.14
Execution Version
SECOND AMENDMENT TO FIVE-YEAR REVOLVING CREDIT AGREEMENT
This
SECOND AMENDMENT TO FIVE-YEAR REVOLVING CREDIT AGREEMENT
(this “
Amendment
”), dated as of June 14, 2018, is by and among
SOUTH JERSEY INDUSTRIES, INC.
, a
New Jersey corporation (the “
Borrower
”), the lenders signatory hereto (together constituting the Required Lenders) and
WELLS FARGO 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, several banks and other financial institutions from time to time party thereto and the Administrative Agent are parties to that certain Five-Year Revolving Credit Agreement dated as of August 7, 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 (b) 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:
(b)
Indebtedness 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 (i):
(i)
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(j)
.
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
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 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 9.13 and 9.15 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.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF the parties hereto have caused this Second Amendment to Five-Year Revolving Credit Agreement to be duly executed on the date first above written.
|
SOUTH JERSEY INDUSTRIES, INC.
|
|
|
|
By:
|
/s/ Ann T. Anthony
|
|
|
Name: Ann T. Anthony
|
|
|
Title: VP, Treasurer & Acting Corporate Secretary
|
|
WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Administrative Agent, Issuing Bank, Swingline Lender and Lender
|
|
|
|
By:
|
/s/ Patrick Engel
|
|
|
Name:
|
Patrick Engel
|
|
|
Title:
|
Managing Director
|
|
BANK OF AMERICA, N.A., as Issuing Bank and Lender
|
|
|
|
By:
|
/s/ Richard R. Powell
|
|
|
Name:
|
Richard R. Powell
|
|
|
Title:
|
Vice President
|
|
JPMORGAN CHASE BANK, N.A., as Issuing Bank and Lender
|
|
|
|
By:
|
/s/ Justin Martin
|
|
|
Name:
|
Justin Martin
|
|
|
Title:
|
Authorized Officer
|
|
PNC BANK, NATIONAL ASSOCIATION, as Issuing Bank and Lender
|
|
|
|
By:
|
/s/ Thomas E. Redmond
|
|
|
Name:
|
Thomas E. Redmond
|
|
|
Title:
|
Managing Director
|
|
CITIZENS BANK OF PENNSYLVANIA, as Lender
|
|
|
|
By:
|
/s/ Hassan Shakeel
|
|
|
Name:
|
Hassan Shakeel
|
|
|
Title:
|
Vice President, Portfolio Management
|
|
TD BANK, N.A., as Issuing Bank and Lender
|
|
|
|
By:
|
/s/ Vijay Prasad
|
|
|
Name:
|
Vijay Prasad
|
|
|
Title:
|
Senior Vice President
|
|
BRANCH BANKING AND TRUST COMPANY, as Lender
|
|
|
|
By:
|
/s/ Sharona Yen
|
|
|
Name:
|
Sharona Yen
|
|
|
Title:
|
Banking Officer
|
|
KEYBANK NATIONAL ASSOCIATION, as Lender
|
|
|
|
By:
|
/s/ Renee M. Bonnell
|
|
|
Name:
|
Renee M. Bonnell
|
|
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Title:
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Vice President
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MANUFACTURERS AND TRADERS TRUST COMPANY,
as Lender
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By:
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/s/ Laurel LB Magruder
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Name:
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Laurel LB Magruder
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Title:
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Group Vice President
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SIGNATURE PAGE TO
SECOND AMENDMENT TO CREDIT AGREEMENT – SOUTH JERSEY INDUSTRIES, INC.
Exhibit 99.15
EXECUTION VERSION
SECOND AMENDMENT TO TERM LOAN CREDIT AGREEMENT
This
SECOND AMENDMENT TO TERM LOAN CREDIT AGREEMENT
(this “
Amendment
”), dated as of June 26, 2018, is by and among
SOUTH JERSEY INDUSTRIES, INC.
, a
New Jersey corporation (the “
Borrower
”), the lenders signatory hereto (together constituting the Required Lenders) and
BANK OF AMERICA, N.A.
, 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, several banks and other financial institutions from time to time party thereto and the Administrative Agent are parties to that certain Term Loan Credit Agreement dated as of October 28, 2015 (as amended on November 3, 2017, and further 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 (c) 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:
(c)
Indebtedness (other than the type described in clause (d) 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 (j):
(j)
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(v)
.
Section 7.01(v) of the Credit Agreement is hereby amended and restated in its entirety to read as follows:
(v)
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
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 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.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF the parties hereto have caused this Second Amendment to Term Loan Credit Agreement to be duly executed on the date first above written.
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SOUTH JERSEY INDUSTRIES, INC.
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By:
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/s/ Ann T. Anthony
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Name: Ann T. Anthony
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Title: VP, Treasurer & Acting Corporate Secretary
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[
Signature Page to Second Amendment to Term Loan Credit Agreement
]
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BANK OF AMERICA, N.A., as Administrative Agent
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By:
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/s/ Richard R. Powell
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Name: Richard R. Powell
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Title: Vice President
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[
Signature Page to Second Amendment to Term Loan Credit Agreement
]
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BANK OF AMERICA, N.A., as Lender
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By:
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/s/ Richard R. Powell
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Name: Richard R. Powell
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Title: Vice President
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[
Signature Page to Second Amendment to Term Loan Credit Agreement
]