Exhibit 4.25
THIRD AMENDMENT TO CREDIT AGREEMENT
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THIS THIRD AMENDMENT TO CREDIT AGREEMENT is made as of this 16th day of
December, 2002, by and among PENNSYLVANIA SUBURBAN WATER COMPANY, a Pennsylvania
corporation and successor by merger to Philadelphia Suburban Water Company
("Borrower"), the several banks which are parties to this Agreement (each a
"Bank" and collectively, "Banks") and PNC BANK, NATIONAL ASSOCIATION in its
capacity as agent for Banks (in such capacity, "Agent").
BACKGROUND
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A. Borrower, Agent, Banks and Wachovia Bank, National Association
(successor by merger to First Union National Bank) ("Wachovia") are parties to a
Credit Agreement, dated as of December 22, 1999, as amended by a First Amendment
to Credit Agreement dated as of November 28, 2000 and a Second Amendment to
Credit Agreement dated as of December 18, 2001 (as so amended, the "Credit
Agreement"), pursuant to which Banks and Wachovia agreed to make revolving
credit loans to Borrower in an aggregate outstanding amount of up to $70,000,000
(the "Loans"). The Loans are evidenced by Borrower's Revolving Credit Notes in
the aggregate principal face amount of $70,000,000 (the "Notes").
B. Borrower, Agent and Banks desire to decrease the amount of the
facility by $15,000,000, terminate, at its request, the Commitment of Wachovia,
modify the interest rate provisions of the Credit Agreement and extend the
Termination Date of the facility, all on the terms and subject to the conditions
herein set forth.
NOW THEREFORE, the parties hereto, intending to be legally bound
hereby, agree as follows:
AGREEMENT
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1. Terms. Capitalized terms used herein and not otherwise defined
herein shall have the meanings given to such terms in the Credit Agreement.
2. Amendments to Credit Agreement. Effective on December 16, 2002 (the
"Effective Date") the Credit Agreement is hereby amended as follows:
(a) The definition of Termination Date in Section 1.1 is hereby amended
and restated to read in full as follows:
"Termination Date": the earlier of (a) December 14, 2003 or any later
date to which the Termination Date shall have been extended pursuant to
subsection 2.8(d) hereof and (b) the date the Commitments are
terminated as provided herein."
(b) Section 2.6(b) is hereby amended by deleting "twenty two and
one-half basis points (.225%)" and substituting therefor "twenty five basis
points (.25%)."
(c) The Commitment of Wachovia is hereby terminated at its request and
the amount of the Total Commitment is hereby reduced from $70,000,000 to
$55,000,000 and any references to "$70,000,000" in the Credit Agreement shall be
changed to "$55,000,000." The Commitment of each of the other Banks shall remain
unchanged.
(d) To give effect to the termination of Wachovia's Commitment and the
corresponding reduction in the Total Commitment, Schedule I to the Credit
Agreement is hereby amended and replaced with Schedule I attached hereto.
3. Repayment of Wachovia. On the Effective Date, all of the Revolving
Credit Loans of Wachovia, all accrued interest thereon and any Fees and other
amounts due to Wachovia under the Credit Agreement shall be paid by Borrower to
Wachovia, the Revolving Credit Note of Wachovia shall be canceled and returned
to Borrower and Wachovia shall cease to be a Bank under (and accordingly shall
cease to be a party to) the Credit Agreement. Following such repayment Agent
shall obtain from Wachovia its acknowledgment that it is no longer a Bank under
or a party to the Credit Agreement.
4. Adjusting Payments. On or before the Effective Date Agent shall
notify each Bank as to the adjusting payments, if any, which will be required to
be made to the outstanding Revolving Credit Loans of each Bank in order to give
effect to the termination of Wachovia's Commitment and the decrease in the Total
Commitment so that after such adjusting payments are made each Bank's
outstanding Revolving Credit Loans evidenced by such Bank's Revolving Credit
Note shall be in an amount equal to its Commitment Percentage of all outstanding
Revolving Credit Loans. On the Effective Date each Bank agrees to pay to the
other Banks the amounts, if any, specified by Agent in such notice.
5. Loan Documents. Except where the context clearly requires otherwise,
all references to the Credit Agreement in any of the Loan Documents or any other
document delivered to Banks or Agent in connection therewith shall be to the
Credit Agreement as amended by this Agreement.
6. Borrower's Ratification. Borrower agrees that it has no defenses or
set-offs against Banks or Agent or their respective officers, directors,
employees, agents or attorneys, with respect to the Loan Documents, all of which
are in full force and effect, and that all of the terms and conditions of the
Loan Documents not inconsistent herewith shall remain in full force and effect
unless and until modified or amended in writing in accordance with their terms.
Borrower hereby ratifies and confirms its obligations under the Loan Documents
as amended hereby and agrees that the execution and delivery of this Agreement
does not in any way diminish or invalidate any of its obligations thereunder.
7. Representations and Warranties. Borrower hereby represents and
warrants to Agent and Banks that:
(a) Except as otherwise previously disclosed to Agent and
Banks, the representations and warranties made in the Credit Agreement, as
amended by this Agreement, are true and correct as of the date hereof;
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(b) No Default or Event of Default under the Credit Agreement
exists on the date hereof; and
(c) This Agreement has been duly authorized, executed and
delivered so as to constitute the legal, valid and binding obligations of
Borrower, enforceable in accordance with its terms.
All of the above representations and warranties shall survive the
making of this Agreement.
8. Conditions Precedent. The effectiveness of the amendments set forth
herein is subject to the fulfillment, to the satisfaction of Agent and its
counsel, of the following conditions precedent on or before the Effective Date:
(a) Borrower shall have delivered to Agent, with copies or
counterparts for each Bank as appropriate, the following, all of which shall be
in form and substance satisfactory to Agent and shall be duly completed and
executed:
(i) This Agreement;
(ii) Copies, certified by the Secretary or an Assistant
Secretary of Borrower of resolutions of the board of
directors of Borrower in effect on the date hereof
authorizing the execution, delivery and performance
of this Agreement and the other documents and
transactions contemplated hereby;
(iii) Copies, certified by its corporate secretary of the
articles of incorporation, certificate of formation,
and by-laws of Borrower as in effect, or a
certificate stating that there have been no changes
to any such documents since the most recent date,
true and correct copies thereof were delivered to
Agent; and
(iv) Such additional documents, certificates and
information as Agent or Banks may require pursuant to
the terms hereof or otherwise reasonably request.
(b) The representations and warranties set forth in the Credit
Agreement shall be true and correct on and as of the date hereof.
(c) No Default or Event of Default shall have occurred and be
continuing as of the date hereof.
(d) Borrower shall have paid to Agent for the benefit of Banks
an additional fee of $66,000 to be distributed to Banks pro rata in accordance
with their Commitments (after giving effect to the decrease in the Total
Commitments provided herein).
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9. Miscellaneous.
(a) All terms, conditions, provisions and covenants in the
Loan Documents and all other documents delivered to Agent and Banks in
connection therewith shall remain unaltered and in full force and effect except
as modified or amended hereby. To the extent that any term or provision of this
Agreement is or may be deemed expressly inconsistent with any term or provision
in any Loan Document or any other document executed in connection therewith, the
terms and provisions hereof shall control.
(b) The execution, delivery and effectiveness of this
Agreement shall neither operate as a waiver of any right, power or remedy of
Agent or Banks under any of the Loan Documents nor constitute a waiver of any
Default or Event of Default or default thereunder.
(c) In consideration of Agent's and Banks' agreement to amend
the existing credit facility, Borrower hereby waives and releases Agent and
Banks and their respective officers, attorneys, agents and employees from any
liability, suit, damage, claim, loss or expense of any kind or failure
whatsoever and howsoever arising that it ever had up until, or has as of, the
date of this Agreement.
(d) This Agreement constitutes the entire agreement of the
parties with respect to the subject matter hereof and supersedes all prior and
contemporaneous understandings and agreements.
(e) In the event any provisions of this Agreement shall be
held invalid or unenforceable by any court of competent jurisdiction, such
holding shall not invalidate or render unenforceable any other provision hereof.
(f) This Agreement shall be governed by and construed
according to the laws of the Commonwealth of Pennsylvania.
(g) This Agreement shall inure to the benefit of, and be
binding upon, the parties hereto and their respective successors and assigns and
may be executed in one or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument.
(h) The headings used in this Agreement are for convenience of
reference only, do not form a part of this Agreement and shall not affect in any
way the meaning or interpretation of this Agreement.
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IN WITNESS WHEREOF, Borrower, Agent and Banks have caused this
Agreement to be executed by their duly authorized officers as of the date first
above written.
PENNSYLVANIA SUBURBAN
WATER COMPANY
By: /s/ Xxxxx X. Xxxx
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Title: Vice President and Treasurer
PNC BANK, NATIONAL ASSOCIATION,
as a Bank and as Agent
By: /s/ Xxxxxxx X. Xxxxxxxxx, Xx.
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Title: Vice President
CITIZENS BANK OF PENNSYLVANIA
By: /s/ Xxxx X. Xxxxx
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Title: Vice President
FLEET NATIONAL BANK
By: /s/ Xxxxx Xxxxxxxxx
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Title: Vice President
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Exhibit 4.25
Schedule I
Bank and Commitment Information
Swing Line
Bank Commitment Commitment
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PNC Bank, National Association $22,500,000 $5,000,000
0000 Xxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxxx, Xx.
Citizens Bank of Pennsylvania $17,500,000 N/A
000 X. Xxxxxxxxxx Xxxxxx
Xxxxxxxx Xxxxxxx, XX 00000
Attention: Xxxx X. Xxxxx
Fleet National Bank $15,000,000 N/A
0 Xxxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxx, Xxxxx 00000
Attention: Xxxxx Xxxxxxxxx
