Third Amendment to Note Purchase Agreement
Exhibit 99.3
Execution Version
Third Amendment to Note Purchase Agreement
This Third Amendment to Note Purchase Agreement (this “Third Amendment”) dated as of August 31, 2021 is between South Jersey Industries, Inc., a New Jersey corporation (the “Company”), and each of the institutions that is a signatory to this Third 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 (as amended to date, 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 the
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 Third 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 Third 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 9.8 of the Note Purchase Agreement shall be and is hereby amended and
restated in its entirety to read as follows:
“Section 9.8. Subsidiary Guarantors. (a) The Company will cause any Subsidiary that (i) at any time is a party to any Principal Credit Facility or (ii) guarantees Indebtedness in respect of any Principal Credit
Facility, to enter into a subsidiary guaranty agreement reasonably acceptable to the Required Holders providing for a guaranty of the obligations of the Company under the Notes and this Agreement (a “Subsidiary
Guaranty”) and to deliver to each of the holders of the Notes (substantially concurrently with the incurrence of any such guaranty obligation pursuant to any Principal Credit Facility) the following items:
(A) a certificate signed by an authorized Responsible Officer of the Company making representations and warranties substantially to the effect of those
contained in Sections 5.4, 5.6, and 5.7, with respect to such Subsidiary and the Subsidiary Guaranty, as applicable; and
(B) an opinion of counsel for the Company addressed to each of the holders of the Notes reasonably satisfactory to the Required Holders, substantially
to the effect that the Subsidiary Guaranty by such Person has been duly authorized, executed and delivered and that the Subsidiary Guaranty constitutes the legal, valid and binding obligation of such Person enforceable in accordance with its terms,
except as such enforceability may be limited by bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or other similar laws affecting the enforcement of creditors’ rights generally and by general equitable principles (regardless
of whether such enforceability is considered in a proceeding in equity or at law) and subject to other usual and customary limitations.
provided, that notwithstanding anything contained in this Section
9.8(a) to the contrary, the Company shall be under no obligation to require any such Subsidiary that becomes a party to a Principal Credit Facility to become a Subsidiary Guarantor in respect of this Agreement and the Notes to the extent (x) such
Subsidiary’s obligations under all Principal Credit Facilities consist solely of direct borrowings with recourse only to such Subsidiary and (y) such Subsidiary does not guarantee or otherwise become liable at any time, whether as a borrower or
an additional or co-borrower or otherwise, for or in respect of Indebtedness of the Company or any other Subsidiary under any Principal Credit Facility.
(b) The holders of the Notes agree to discharge and release any Subsidiary Guarantor from any Subsidiary Guaranty upon the written request of the
Company, provided that (i) such Subsidiary Guarantor has been released and discharged (or will be released and discharged concurrently with the release of such Subsidiary Guarantor under the Subsidiary
Guaranty) as an obligor and guarantor under and in respect of each Principal Credit Facility and the Company so certifies to the holders of the Notes in a certificate of a Responsible Officer, (ii) at the time of such release and discharge, the
Company shall deliver a certificate of a Responsible Officer to the holders of the Notes stating that no Default or Event of Default exists, and (iii) if any fee or other form of consideration is given to any holder of Indebtedness of the Company
for the purpose of such release, the holders of the Notes shall receive equivalent consideration.”
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Section 2. Representations and Warranties of the Company.
Section 2.1. To induce the Required Holders to execute and deliver this Third
Amendment (which representations shall survive the execution and delivery of this Third Amendment), the Company represents and warrants to the holders of the outstanding Notes (the “Noteholders”) that:
(a) this Third Amendment has been duly authorized, executed and delivered by it, and this Third Amendment and the Note Purchase Agreement as amended by this Third
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 Third 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 Third Amendment, no Default or Event of Default has occurred which is continuing;
(d) the Company will enter into the Master Credit Facility, expected to be dated on or about September 1, 2021 by and among the Company, South Jersey Gas Company (“SJG”), Elizabethtown Gas Company (“ETG”), the several lenders party thereto and ▇▇▇▇▇ Fargo Bank, National Association, as administrative agent (the “2021 Principal Credit Facility”) that will replace the Five-Year Revolving Credit Agreement dated as of August 7, 2017 by and among, the Company, the lenders party thereto and ▇▇▇▇▇ Fargo Bank, National
Association, as Administrative Agent, as amended to date, as a Principal Credit Facility in the form attached hereto as Exhibit A and when executed, the Company shall provide the Noteholders with a true, correct and complete copy of the 2021
Principal Credit Facility.
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Section 3. Conditions to Effectiveness of This Third Amendment.
Section 3.1. This Third Amendment shall not become effective until, and shall
become effective when:
(a) executed counterparts of this Third Amendment, duly executed by the Company and the Required Holders, shall have been delivered to the Noteholders;
(b) the representations and warranties of the Company in Section 2 above shall be true and correct; and
(c) the Company shall have paid or caused to be paid reasonable, out-of-pocket fees and expenses of ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ LLP, special counsel to the Noteholders, in
connection with the negotiation, approval, execution and delivery of this Third Amendment, to the extent invoiced at least 2 Business Days in advance of the date hereof.
Section 4. Miscellaneous.
Section 4.1. This Third Amendment shall be construed in connection with and as
part of the Note Purchase Agreement, and except as modified and expressly amended by this Third 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. By executing this Third Amendment, the Required Holders acknowledge
that the 2021 Principal Credit Facility is intended to be covered by the proviso to Section 9.8(a) of the Note Purchase Agreement (the “Proviso”), as amended and restated by this Third Amendment, on the
basis that the Subsidiaries that are a party to such 2021 Principal Credit Facility shall be obligated on a several and not joint basis and, provided that the 2021 Principal Credit Facility structure meets and remains in compliance with the
Proviso, that neither SJG nor ETG shall be required to provide a Subsidiary Guaranty as a result of their becoming a party on a several and not joint basis to the 2021 Principal Credit Facility.
Section 4.3. Any and all notices, requests, certificates and other instruments
executed and delivered after the execution and delivery of this Third Amendment may refer to the Note Purchase Agreement without making specific reference to this Third Amendment but nevertheless all such references shall include this Third
Amendment unless the context otherwise requires.
Section 4.4. The descriptive headings of the various Sections or parts of this
Third Amendment are for convenience only and shall not affect the meaning or construction of any of the provisions hereof.
Section 4.5. This Third Amendment shall be governed by and construed in accordance
with the laws of the State of New York.
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Section 4.6. The execution hereof by you shall constitute a contract between us for
the uses and purposes hereinabove set forth, and this Third 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/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: Senior Vice President and Chief Financial Officer
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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/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: Managing Director
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We acknowledge that we hold $20,000,000 3.82% Senior Notes, Series 2018B, due June 19, 2028
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We acknowledge that we hold $19,200,000 3.92% Senior Notes, Series 2018C, due June 19, 2030
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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/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: Managing Director
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We acknowledge that we hold $800,000 3.92% Senior Notes, Series 2018C, due June 19, ▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇▇ Industries, Inc.
Third Amendment to 2018 Note Purchase Agreement
Accepted as of the date first written above.
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Pacific Life Insurance Company
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By
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/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Title: Assistant Vice President
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We acknowledge that we hold $9,000,000 3.82% Senior Notes, Series 2018B, due June 19, 2028
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We acknowledge that we hold $8,000,000 3.92% Senior Notes, Series 2018C, due June 19, ▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇▇ Industries, Inc.
Third Amendment to 2018 Note Purchase Agreement
Accepted as of the date first written above.
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American Equity Investment Life Insurance Company
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By
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/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title: Authorized Signatory
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We acknowledge that we hold $9,000,000 3.82% Senior Notes, Series 2018B, due June 19, 2028
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We acknowledge that we hold $8,000,000 3.92% Senior Notes, Series 2018C, due June 19, ▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇▇ Industries, Inc.
Third Amendment to 2018 Note Purchase Agreement
Accepted as of the date first written above.
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American United Life Insurance Company
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By
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/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Title: VP, Private Placements
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We acknowledge that we hold $3,000,000 3.82% Senior Notes, Series 2018B, due June 19, 2028
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We acknowledge that we hold $9,000,000 3.92% Senior Notes, Series 2018C, due June 19, 2030
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The State Life Insurance Company
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By: American United Life Insurance Company
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Its: Agent
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By
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/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Title: VP, Private Placements
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We acknowledge that we hold $2,000,000 3.92% Senior Notes, Series 2018C, due June 19, 2030
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Pioneer Mutual Life Insurance Company
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By: American United Life Insurance Company
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Its: Agent
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By
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/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Title: VP, Private Placements
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We acknowledge that we hold $1,000,000 3.92% Senior Notes, Series 2018C, due June 19, ▇▇▇▇
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▇▇▇▇▇▇ ▇▇▇▇ Family Life Insurance Company
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By: American United Life Insurance Company
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Its: Agent
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By
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/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Title: VP, Private Placements
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We acknowledge that we hold $1,000,000 3.92% Senior Notes, Series 2018C, due June 19, ▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇▇ Industries, Inc.
Third Amendment to 2018 Note Purchase Agreement
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/ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Title: Managming Director
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We acknowledge that we hold $7,000,000 3.82% Senior Notes, Series 2018B, due June 19, 2028
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We acknowledge that we hold $7,000,000 3.92% Senior Notes, Series 2018C, due June 19, ▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇▇ Industries, Inc.
Third Amendment to 2018 Note Purchase Agreement
Accepted as of the date first written above
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Transamerica Life Insurance Company
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By: AEGON USA Investment Management, LLC, its investment manager
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By:
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/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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Title: Vice President
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We acknowledge that we hold $7,000,000 3.82% Senior Notes, Series 2018B, due June 19, 2028
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We acknowledge that we hold $4,000,000 3.92% Senior Notes, Series 2018C, due June 19, ▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇▇ Industries, Inc.
Third Amendment to 2018 Note Purchase Agreement
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Minnesota Life Insurance Company
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Gleaner Life Insurance Society
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Dearborn Life Insurance Company (f/k/a Dearborn National Life Insurance Company)
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Catholic United Financial
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By: Securian Asset Management, Inc.
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By:
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/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: Vice President
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We acknowledge that Minnesota Life Insurance Company holds $5,000,000 3.82% Senior Notes, Series 2018B, due June 19,
2028
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We acknowledge that Minnesota Life Insurance Company holds $3,000,000 3.92% Senior Notes, Series 2018C, due June 19,
2030
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We acknowledge that Gleaner Life Insurance Society holds $575,000 3.92% Senior Notes, Series 2018C, due June 19, 2030
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We acknowledge that Dearborn Life Insurance Company (f/k/a Dearborn National Life Insurance Company) holds $325,000 3.92% Senior Notes, Series 2018C, due June 19, 2030
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We acknowledge that Catholic United Financial holds $100,000 3.92% Senior Notes, Series 2018C, due June 19, ▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇▇ Industries, Inc.
Third Amendment to 2018 Note Purchase Agreement
Accepted as of the date first written above
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Ensign Peak Advisors, Inc.
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By
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/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
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Title: Head of Credit Research
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We acknowledge that we hold $8,000,000 3.82% Senior Notes, Series 2018B, due June 19, ▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇▇ Industries, Inc.
Third Amendment to 2018 Note Purchase Agreement
Accepted as of the date first written above
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The Guardian Life Insurance Company of America
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By
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/s/ ▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇▇
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Title: Senior Director, Investments
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We acknowledge that we hold $8,000,000 3.82% Senior Notes, Series 2018B, due June 19, ▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇▇ Industries, Inc.
Third Amendment to 2018 Note Purchase Agreement
Accepted as of the date first written above
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Connecticut General Life Insurance Company
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By: Cigna Investments, Inc. (authorized agent)
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By:
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/s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: Managing Director
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We acknowledge that we hold $500,000 3.82% Senior Notes, Series 2018B, due June 19, 2028
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Cigna Health and Life Insurance Company
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By: Cigna Investments, Inc. (authorized agent)
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By:
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/s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: Managing Director
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We acknowledge that we hold $500,000 3.92% Senior Notes, Series 2018C, due June 19, ▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇▇ Industries, Inc.
Third Amendment to 2018 Note Purchase Agreement
Accepted as of the date first written above
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Life Insurance Company of North America
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By:
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NYL Investors LLC, its Investment Manager
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By:
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/s/ A. Post ▇▇▇▇▇▇▇ | |
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Name: A. Post ▇▇▇▇▇▇▇
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Title: Managing Director
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We acknowledge that we hold $1,000,000 3.82% Senior Notes, Series 2018B, due June 19, 2028
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We acknowledge that we hold $1,500,000 3.92% Senior Notes, Series 2018C, due June 19, ▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇▇ Industries, Inc.
Third Amendment to 2018 Note Purchase Agreement
Accepted as of the date first written above.
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Ameritas Life Insurance Corp.
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Ameritas Life Insurance Corp. of New York
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By:
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Ameritas Investment Partners Inc., as Agent
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By
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/s/ ▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇
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Title: Vice President & Managing Director
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We acknowledge that Ameritas Life Insurance Corp. holds $4,000,000 3.92% Senior Notes, Series 2018C, due June 19, 2030
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We acknowledge that Ameritas Life Insurance Corp. of New York holds $1,000,000 3.92% Senior Notes, Series 2018C, due June 19, ▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇▇ Industries, Inc.
Third Amendment to 2018 Note Purchase Agreement
Accepted as of the date first written above.
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CMFG Life Insurance Company
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By:
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MEMBERS Capital Advisors, Inc.
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acting as Investment Advisor
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By
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/s/ ▇▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇▇▇
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Title: Managing Director, Investments
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We acknowledge that we hold $3,000,000 3.92% Senior Notes, Series 2018C, due June 19, ▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇▇ Industries, Inc.
Third Amendment to 2018 Note Purchase Agreement
Accepted as of the date first written above
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Southern Farm Bureau Life Insurance Company
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By:
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/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Its: Assistant Portfolio Manager
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We acknowledge that we hold $2,000,000 3.92% Senior Notes, Series 2018C, due June 19, ▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇▇ Industries, Inc.
Third Amendment to 2018 Note Purchase Agreement