Amended and Restated Committed Line Of Credit Note (Multi-Rate Options) $20,000,000.00 January 29, 2010
Exhibit
10.2
|
Amended
and Restated
|
 |
|
(Multi-Rate
Options)
|
|
|
$20,000,000.00
|
January
29, 2010
|
FOR VALUE RECEIVED, MIDDLESEX WATER COMPANY (the
“Borrower”), with an
address at 0000 Xxxxxx Xxxx, Xxxxxx, Xxx Xxxxxx 00000-3020, promises to pay to
the order of PNC BANK,
NATIONAL ASSOCIATION
(the “Bank”), in
lawful money of the United States of America in immediately available funds at
its offices located at Two Tower Center Boulevard, East Brunswick, New Jersey
08816, or at such other location as the Bank may designate from time to time,
the principal sum of TWENTY
MILLION AND 00/100 DOLLARS ($20,000,000.00) (the “Facility”) or such lesser
amount as may be advanced to or for the benefit of the Borrower hereunder,
together with interest accruing on the outstanding principal balance from the
date hereof, all as provided below.
1. Advances. The Borrower may
request advances, repay and request additional advances hereunder until the
Expiration Date, subject to the terms and conditions of this Note and the Loan
Documents (as hereinafter defined). The “Expiration Date” shall mean
January 29, 2011, or such later date as may be designated by the Bank by written
notice from the Bank to the Borrower. The Borrower acknowledges and
agrees that in no event will the Bank be under any obligation to extend or renew
the Facility or this Note beyond the Expiration Date. The Borrower
may request advances hereunder upon giving oral or written notice to the Bank by
11:00 a.m. (Eastern, Standard time) (a) on the day of the proposed advance, in
the case of advances to bear interest under the Base Rate Option (as hereinafter
defined) and (b) three (3) Business Days prior to the proposed advance, in
the case of advances to bear interest under the LIBOR Option (as hereinafter
defined), followed promptly thereafter by the Borrower’s written confirmation to
the Bank of any oral notice. The aggregate unpaid principal
amount of advances under this Note shall not exceed the face amount of this
Note.
2. Rate of
Interest. Each advance
outstanding under this Note will bear interest at a rate or rates per annum as
may be selected by the Borrower from the interest rate options set forth below
(each, an “Option”):
(i) Base Rate
Option. A rate of
interest per annum which is at all times equal to the Base Rate. If
and when the Base Rate (or any component thereof) changes, the rate of interest
with respect to any advance to which the Base Rate Option applies will change
automatically without notice to the Borrower, effective on the date of any such
change. There are no required minimum interest periods for advances
bearing interest under the Base Rate Option.
(ii) LIBOR
Option. A rate per annum
equal to (A) LIBOR plus (B) one hundred
(100) basis points (1.00%), for the applicable LIBOR Interest
Period.
For
purposes hereof, the following terms shall have the following
meanings:
“Base Rate” shall mean the
highest of (A) the Prime Rate, and (B) the sum of the Federal Funds Open Rate
plus fifty (50)
basis points (0.50%), and (C) the sum of the Daily LIBOR Rate plus one hundred
(100) basis points (1.0%), so long as a Daily LIBOR Rate is offered,
ascertainable and not unlawful.
“Business Day” shall mean any
day other than a Saturday or Sunday or a legal holiday on which commercial banks
are authorized or required by law to be closed for business in East Brunswick,
New Jersey.
“Daily LIBOR Rate” shall mean,
for any day, the rate per annum determined by the Bank by dividing (x) the
Published Rate by (y) a number equal to 1.00 minus the LIBOR
Reserve Percentage.
“Federal Funds Open Rate”
shall mean, for any day, the rate
per annum (based on a year of 360 days and actual days elapsed) which is the
daily federal funds open rate as quoted by ICAP North America, Inc. (or any
successor) as set forth on the Bloomberg Screen BTMM for that day opposite the
caption “OPEN” (or on such other substitute Bloomberg Screen that displays such
rate), or as set forth on such other recognized electronic source used for the
purpose of displaying such rate as selected by the Bank (an “Alternate Source”)
(or if such rate for such day does not appear on the Bloomberg Screen BTMM (or
any substitute screen) or on any Alternate Source, or if there shall at any
time, for any reason, no longer exist a Bloomberg Screen BTMM (or any substitute
screen) or any Alternate Source, a comparable replacement rate determined by the
Bank at such time (which determination shall be conclusive absent manifest
error); provided however, that if such day is not a Business Day, the Federal
Funds Open Rate for such day shall be the “open” rate on the immediately
preceding Business Day. The rate of interest charged shall be
adjusted as of each Business Day based on changes in the Federal Funds Open Rate
without notice to the Borrower.
“LIBOR” shall mean, with
respect to any advance to which the LIBOR Option applies for the applicable
LIBOR Interest Period, the interest rate per annum determined by the Bank by
dividing (the resulting quotient rounded upwards, at the Bank’s discretion, to
the nearest 1/100th of 1%) (i) the rate of interest determined by the Bank in
accordance with its usual procedures (which determination shall be conclusive
absent manifest error) to be the eurodollar rate two (2) Business Days prior to
the first day of such LIBOR Interest Period for an amount comparable to such
advance and having a borrowing date and a maturity comparable to such LIBOR
Interest Period by (ii) a number equal to 1.00 minus the LIBOR Reserve
Percentage.
“LIBOR Interest Period” shall
mean, as to any advance to which the LIBOR Option applies, the period of one
(1), two (2), or three (3) months as selected by the Borrower in its notice of
borrowing or notice of conversion, as the case may be, commencing on the date of
disbursement of an advance (or the date of conversion of an advance to the LIBOR
Option, as the case may be) and each successive period selected by the Borrower
thereafter; provided that, (i) if a LIBOR
Interest Period would end on a day which is not a Business Day, it shall end on
the next succeeding Business Day unless such day falls in the next succeeding
calendar month in which case the LIBOR Interest Period shall end on the next
preceding Business Day, (ii) the Borrower may not select a LIBOR Interest Period
that would end on a day after the Expiration Date, and (iii) any LIBOR Interest
Period that begins on the last Business Day of a calendar month (or a day for
which there is no numerically corresponding day in the last calendar month of
such LIBOR Interest Period) shall end on the last Business Day of the last
calendar month of such LIBOR Interest Period.
“LIBOR Reserve Percentage”
shall mean the maximum effective percentage in effect on such day as
prescribed by the Board of Governors of the Federal Reserve System (or any
successor) for determining the reserve requirements (including, without
limitation, supplemental, marginal and emergency reserve requirements) with
respect to eurocurrency funding (currently referred to as “Eurocurrency
liabilities”).
-2-
“Prime Rate” shall mean the
rate publicly announced by the Bank from time to time as its prime
rate. The Prime Rate is determined from time to time by the Bank as a
means of pricing some loans to its borrowers. The Prime Rate is not
tied to any external rate of interest or index, and does not necessarily reflect
the lowest rate of interest actually charged by the Bank to any particular class
or category of customers.
“Published Rate” shall mean the
rate of interest published each Business Day in the Wall Street Journal “Money
Rates” listing under the caption “London Interbank Offered Rates” for a one
month period (or, if no such rate is published therein for any reason, then the
Published Rate shall be the eurodollar rate for a one month period as published
in another publication selected by the Bank).
LIBOR and
the Daily LIBOR Rate shall be adjusted with respect to any advance to which the
LIBOR Option or Base Rate Option applies, as applicable, on and as of the
effective date of any change in the LIBOR Reserve Percentage. The
Bank shall give prompt notice to the Borrower of LIBOR or the Daily LIBOR Rate
as determined or adjusted in accordance herewith, which determination shall be
conclusive absent manifest error.
If the
Bank determines (which determination shall be final and conclusive) that, by
reason of circumstances affecting the eurodollar market generally, deposits in
dollars (in the applicable amounts) are not being offered to banks in the
eurodollar market for the selected term, or adequate means do not exist for
ascertaining LIBOR, then the Bank shall give notice thereof to the
Borrower. Thereafter, until the Bank notifies the Borrower that the
circumstances giving rise to such suspension no longer exist, (a) the
availability of the LIBOR Option shall be suspended, and (b) the interest rate
for all advances then bearing interest under the LIBOR Option shall be converted
at the expiration of the then current LIBOR Interest Period(s) to the Base Rate
Option.
In
addition, if, after the date of this Note, the Bank shall determine (which
determination shall be final and conclusive) that any enactment, promulgation or
adoption of or any change in any applicable law, rule or regulation, or any
change in the interpretation or administration thereof by a governmental
authority, central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by the Bank with any guideline, request or
directive (whether or not having the force of law) of any such authority,
central bank or comparable agency shall make it unlawful or impossible for the
Bank to make or maintain or fund loans based on LIBOR, the Bank shall notify the
Borrower. Upon receipt of such notice, until the Bank notifies the
Borrower that the circumstances giving rise to such determination no longer
apply, (a) the availability of the LIBOR Option shall be suspended, and (b) the
interest rate on all advances then bearing interest under the LIBOR Option shall
be converted to the Base Rate Option either (i) on the last day of the then
current LIBOR Interest Period(s) if the Bank may lawfully continue to maintain
advances based on LIBOR to such day, or (ii) immediately if the Bank may
not lawfully continue to maintain advances based on LIBOR.
The
foregoing notwithstanding, it is understood that the Borrower may select
different Options to apply simultaneously to different portions of the advances
and may select up to three (3) different interest periods to apply
simultaneously to different portions of the advances bearing interest under the
LIBOR Option. Interest hereunder will be calculated based on the
actual number of days that principal is outstanding over a year of 360 days. In
no event will the rate of interest hereunder exceed the maximum rate allowed by
law.
3. Interest
Rate Election. Subject to the terms and conditions of this
Note, at the end of each interest period applicable to any advance, the Borrower
may renew the Option applicable to such advance or convert such advance to a
different Option; provided that, during any
period in which any Event of
-3-
Default
(as hereinafter defined) has occurred and is continuing, any advances bearing
interest under the LIBOR Option shall, at the Bank’s sole discretion, be
converted at the end of the applicable LIBOR Interest Period to the Base Rate
Option and the LIBOR Option will not be available to Borrower with respect to
any new advances (or with respect to the conversion or renewal of any existing
advances) until such Event of Default has been cured by the Borrower or waived
by the Bank. The Borrower shall notify the Bank of each election of
an Option, each conversion from one Option to another, the amount of the
advances then outstanding to be allocated to each Option and where relevant the
interest periods therefor. In the case of converting to the LIBOR
Option, such notice shall be given at least three (3) Business Days prior to the
commencement of any LIBOR Interest Period. If no interest period is
specified in any such notice for which the resulting advance is to bear interest
under the LIBOR Option, the Borrower shall be deemed to have selected a LIBOR
Interest Period of one month’s duration. If no notice of election, conversion or
renewal is timely received by the Bank with respect to any advance, the Borrower
shall be deemed to have elected the Base Rate Option. Any such
election shall be promptly confirmed in writing by such method as the Bank may
require.
4. Advance
Procedures. A request for
advance made by telephone must be promptly confirmed in writing by such method
as the Bank may require. The Borrower authorizes the Bank to accept
telephonic requests for advances, and the Bank shall be entitled to rely upon
the authority of any person providing such instructions. The Borrower
hereby indemnifies and holds the Bank harmless from and against any and all
damages, losses, liabilities, costs and expenses (including reasonable
attorneys’ fees and expenses) which may arise or be created by the acceptance of
such telephone requests or making such advances. The Bank will enter
on its books and records, which entry when made will be presumed correct, the
date and amount of each advance, the interest rate and interest period
applicable thereto, as well as the date and amount of each payment.
5. Payment
Terms. The Borrower shall pay accrued interest on the unpaid principal
balance of this Note in arrears: (a) for the portion of advances
bearing interest under the Base Rate Option, on the first day of each month
during the term hereof, (b) for the portion of advances bearing interest under
the LIBOR Option, on the last day of the respective LIBOR Interest Period, as
the case may be, for such advance, and (c) for all advances, at maturity,
whether by acceleration of this Note or otherwise, and after maturity, on demand
until paid in full. All outstanding principal and accrued interest
hereunder shall be due and payable in full on the Expiration Date.
If any
payment under this Note shall become due on a Saturday, Sunday or public holiday
under the laws of the State where the Bank’s office indicated above is located,
such payment shall be made on the next succeeding Business Day and such
extension of time shall be included in computing interest in connection with
such payment. The Borrower hereby authorizes the Bank to charge the
Borrower’s deposit account at the Bank for any payment when due hereunder.
Payments received will be applied to charges, fees and expenses (including
attorneys’ fees), accrued interest and principal in any order the Bank may
choose, in its sole discretion.
6. Late
Payments; Default Rate. If the Borrower
fails to make any payment of principal, interest or other amount coming due
pursuant to the provisions of this Note within fifteen (15) calendar days of the
date due and payable, the Borrower also shall pay to the Bank a late charge
equal to the lesser of five percent (5%) of the amount of such payment or
$100.00 (the “Late
Charge”). Such fifteen (15) day period shall not be construed
in any way to extend the due date of any such payment. Upon maturity,
whether by acceleration, demand or otherwise, and at the Bank’s option upon the
occurrence of any Event of Default (as hereinafter defined) and during the
continuance thereof, each advance outstanding under this Note shall bear
interest at a rate per annum (based on the actual number of days that principal
is outstanding over a year of 360 days) which shall be three percentage
points (3%) in excess of the interest rate in effect from time to time under
this Note but not more than the maximum rate allowed by law (the “Default
Rate”). The Default Rate shall continue to apply whether or
not judgment shall be entered on
-4-
this
Note. Both the Late Charge and the Default Rate are imposed as
liquidated damages for the purpose of defraying the Bank’s expenses incident to
the handling of delinquent payments, but are in addition to, and not in lieu of,
the Bank’s exercise of any rights and remedies hereunder, under the other Loan
Documents or under applicable law, and any fees and expenses of any agents or
attorneys which the Bank may employ. In addition, the Default Rate
reflects the increased credit risk to the Bank of carrying a loan that is in
default. The Borrower agrees that the Late Charge and Default Rate
are reasonable forecasts of just compensation for anticipated and actual harm
incurred by the Bank, and that the actual harm incurred by the Bank cannot be
estimated with certainty and without difficulty.
7. Prepayment. The Borrower
shall have the right to prepay any advance hereunder at any time and from time
to time, in whole or in part; subject, however, to payment of any break funding
indemnification amounts owing pursuant to paragraph 8 below.
8. Yield
Protection; Break Funding Indemnification. The Borrower shall
pay to the Bank on written demand therefor, together with the written evidence
of the justification therefor, all direct costs incurred, losses suffered or
payments made by Bank by reason of any change in law or regulation or its
interpretation imposing any reserve, deposit, allocation of capital, or similar
requirement (including without limitation, Regulation D of the Board of
Governors of the Federal Reserve System) on the Bank, its holding company or any
of their respective assets. In addition, the Borrower agrees to
indemnify the Bank against any liabilities, losses or expenses (including,
without limitation, loss of margin, any loss or expense sustained or incurred in
liquidating or employing deposits from third parties, and any loss or expense
incurred in connection with funds acquired to effect, fund or maintain any
advance (or any part thereof) bearing interest under the LIBOR Option) which the
Bank sustains or incurs as a consequence of either (i) the Borrower’s failure to
make a payment on the due date thereof, (ii) the Borrower’s revocation
(expressly, by later inconsistent notices or otherwise) in whole or in part of
any notice given to Bank to request, convert, renew or prepay any advance
bearing interest under the LIBOR Option, or (iii) the Borrower’s payment or
prepayment (whether voluntary, after acceleration of the maturity of this Note
or otherwise) or conversion of any advance bearing interest under the LIBOR
Option on a day other than the last day of the applicable LIBOR Interest
Period. A notice as to any amounts payable pursuant to this paragraph
given to the Borrower by the Bank shall, in the absence of manifest error, be
conclusive and shall be payable upon demand. The Borrower’s indemnification
obligations hereunder shall survive the payment in full of the advances and all
other amounts payable hereunder.
9. Other
Loan Documents.
This Note is issued in connection with a Letter Agreement dated August
27, 2001 between the Borrower and the Bank, dated on or before the date hereof,
and the other agreements and documents executed and/or delivered in connection
therewith or referred to therein, the terms of which are incorporated herein by
reference (as amended, modified or renewed from time to time, collectively the
“Loan Documents”), and
is secured by the property (if any) described in the Loan Documents and by such
other collateral as previously may have been or may in the future be granted to
the Bank to secure this Note.
10. Events of
Default. The occurrence of
any of the following events will be deemed to be an “Event of Default” under this
Note: (i) the nonpayment of any principal, interest or other indebtedness under
this Note when due; (ii) the occurrence of any event of default or any default
and the lapse of any notice or cure period, or any Obligor’s failure to observe
or perform any covenant or other agreement, under or contained in any Loan
Document or any other document now or in the future evidencing or securing any
debt, liability or obligation of any Obligor to the Bank; (iii) the filing by or
against any Obligor of any proceeding in bankruptcy, receivership, insolvency,
reorganization, liquidation, conservatorship or similar proceeding (and, in the
case of any such proceeding instituted against any Obligor, such proceeding is
not dismissed or stayed within 30 days of the commencement thereof, provided
that the Bank shall not be obligated to advance additional funds hereunder
during such period); (iv) any assignment by any Obligor for the benefit of
creditors, or any levy, garnishment, attachment or
-5-
similar
proceeding is instituted against any property of any Obligor held by or
deposited with the Bank; (v) a default with respect to any other indebtedness of
any Obligor for borrowed money, if the effect of such default is to cause or
permit the acceleration of such debt; (vi) the commencement of any foreclosure
or forfeiture proceeding, execution or attachment against any collateral
securing the obligations of any Obligor to the Bank; (vii) the entry of a final
judgment against any Obligor and the failure of such Obligor to discharge the
judgment within ten (10) days of the entry thereof; (viii) any material adverse
change in any Obligor’s business, assets, operations, financial condition or
results of operations; (ix) any Obligor ceases doing business as a going
concern; (x) any representation or warranty made by any Obligor to the Bank in
any Loan Document or any other documents now or in the future evidencing or
securing the obligations of any Obligor to the Bank, is false, erroneous or
misleading in any material respect; (xi) if this Note or any guarantee executed
by any Obligor is secured, the failure of any Obligor to provide the Bank with
additional collateral if in the Bank’s opinion at any time or times, the market
value of any of the collateral securing this Note or any guarantee has
depreciated below that required pursuant to the Loan Documents or, if no
specific value is so required, then in an amount deemed material by the Bank;
(xii) the revocation or attempted revocation, in whole or in part, of any
guarantee by any Obligor; or (xiii) the death, incarceration, indictment or
legal incompetency of any individual Obligor or, if any Obligor is a partnership
or limited liability company, the death, incarceration, indictment or legal
incompetency of any individual general partner or member. As used
herein, the term “Obligor” means any Borrower
and any guarantor of, or any pledgor, mortgagor or other person or entity
providing collateral support for, the Borrower’s obligations to the Bank
existing on the date of this Note or arising in the future.
Upon the
occurrence of an Event of Default: (a) the Bank shall be under no
further obligation to make advances hereunder; (b) if an Event of Default
specified in clause (iii) or (iv) above shall occur, the outstanding principal
balance and accrued interest hereunder together with any additional amounts
payable hereunder shall be immediately due and payable without demand or notice
of any kind; (c) if any other Event of Default shall occur, the outstanding
principal balance and accrued interest hereunder together with any additional
amounts payable hereunder, at the Bank’s option and without demand or notice of
any kind, may be accelerated and become immediately due and payable; (d) at
the Bank’s option, this Note will bear interest at the Default Rate from the
date of the occurrence of the Event of Default; and (e) the Bank may
exercise from time to time any of the rights and remedies available under the
Loan Documents or under applicable law.
11. Right of
Setoff. In addition to
all liens upon and rights of setoff against the Borrower’s money, securities or
other property given to the Bank by law, the Bank shall have, with respect to
the Borrower’s obligations to the Bank under this Note and to the extent
permitted by law, a contractual possessory security interest in and a
contractual right of setoff against, and the Borrower hereby grants the Bank a
security interest in, and hereby assigns, conveys, delivers, pledges and
transfers to the Bank, all of the Borrower’s right, title and interest in and
to, all of the Borrower’s deposits, moneys, securities and other property now or
hereafter in the possession of or on deposit with, or in transit to, the Bank or
any other direct or indirect subsidiary of The PNC Financial Services Group,
Inc., whether held in a general or special account or deposit, whether held
jointly with someone else, or whether held for safekeeping or otherwise,
excluding, however, all IRA, Xxxxx, and trust accounts. Every such
security interest and right of setoff may be exercised without demand upon or
notice to the Borrower. Every such right of setoff shall be deemed to
have been exercised immediately upon the occurrence of an Event of Default
hereunder without any action of the Bank, although the Bank may enter such
setoff on its books and records at a later time.
12. Indemnity. The Borrower
agrees to indemnify each of the Bank, each legal entity, if any, who controls,
is controlled by or is under common control with the Bank, and each of their
respective directors, officers and employees (the “Indemnified Parties”), and to
defend and hold each Indemnified Party harmless from and against any and all
claims, damages, losses, liabilities and expenses (including
-6-
all fees
and charges of internal or external counsel with whom any Indemnified Party may
consult and all expenses of litigation and preparation therefor) which any
Indemnified Party may incur or which may be asserted against any Indemnified
Party by any person, entity or governmental authority (including any person or
entity claiming derivatively on behalf of the Borrower), in connection with or
arising out of or relating to the matters referred to in this Note or in the
other Loan Documents or the use of any advance hereunder, whether (a) arising
from or incurred in connection with any breach of a representation, warranty or
covenant by the Borrower, or (b) arising out of or resulting from any suit,
action, claim, proceeding or governmental investigation, pending or threatened,
whether based on statute, regulation or order, or tort, or contract or
otherwise, before any court or governmental authority; provided, however, that the
foregoing indemnity agreement shall not apply to any claims, damages, losses,
liabilities and expenses solely attributable to an Indemnified Party's gross
negligence or willful misconduct. The indemnity agreement contained
in this Section shall survive the termination of this Note, payment of any
advance hereunder and the assignment of any rights hereunder. The
Borrower may participate at its expense in the defense of any such action or
claim.
13. Miscellaneous. All notices, demands,
requests, consents, approvals and other communications required or permitted
hereunder (“Notices”)
must be in writing (except as may be agreed otherwise above with respect to
borrowing requests) and will be effective upon receipt. Notices may be given in
any manner to which the parties may separately agree, including electronic
mail. Without limiting the foregoing, first-class mail, facsimile
transmission and commercial courier service are hereby agreed to as acceptable
methods for giving Notices. Regardless of the manner in which
provided, Notices may be sent to a party’s address as set forth above or to such
other address as any party may give to the other for such purpose in accordance
with this paragraph. No delay or omission on the Bank’s part to
exercise any right or power arising hereunder will impair any such right or
power or be considered a waiver of any such right or power, nor will the Bank’s
action or inaction impair any such right or power. The Bank’s rights
and remedies hereunder are cumulative and not exclusive of any other rights or
remedies which the Bank may have under other agreements, at law or in
equity. No modification, amendment or waiver of, or consent to any
departure by the Borrower from, any provision of this Note will be effective
unless made in a writing signed by the Bank, and then such waiver or consent
shall be effective only in the specific instance and for the purpose for which
given. The Borrower agrees to pay on demand, to the extent permitted
by law, all costs and expenses incurred by the Bank in the enforcement of its
rights in this Note and in any security therefor, including without limitation
reasonable fees and expenses of the Bank’s counsel. If any provision
of this Note is found to be invalid, illegal or unenforceable in any respect by
a court, all the other provisions of this Note will remain in full force and
effect. The Borrower and all other makers and indorsers of this Note
hereby forever waive presentment, protest, notice of dishonor and notice of
non-payment. The Borrower also waives all defenses based on
suretyship or impairment of collateral. If this Note is executed by
more than one Borrower, the obligations of such persons or entities hereunder
will be joint and several. This Note shall bind the Borrower and its
heirs, executors, administrators, successors and assigns, and the benefits
hereof shall inure to the benefit of the Bank and its successors and assigns;
provided, however, that the
Borrower may not assign this Note in whole or in part without the Bank’s written
consent and the Bank at any time may assign this Note in whole or in
part.
This Note
has been delivered to and accepted by the Bank and will be deemed to be made in
the State where the Bank’s office indicated above is located. This Note
will be interpreted and the rights and liabilities of the Bank and the Borrower
determined in accordance with the laws of the State where the Bank’s office
indicated above is located, excluding its conflict of laws
rules. The Borrower hereby irrevocably consents to the
exclusive jurisdiction of any state or federal court in the county or judicial
district where the Bank’s office indicated above is located; provided that
nothing contained in this Note will prevent the Bank from bringing any action,
enforcing any award or judgment or exercising any rights against the Borrower
individually, against any
-7-
security
or against any property of the Borrower within any other county, state or other
foreign or domestic jurisdiction. The Borrower acknowledges and
agrees that the venue provided above is the most convenient forum for both the
Bank and the Borrower. The Borrower waives any objection to venue and
any objection based on a more convenient forum in any action instituted under
this Note.
14. Commercial
Purpose. The Borrower
represents that the indebtedness evidenced by this Note is being incurred by the
Borrower solely for the purpose of acquiring or carrying on a business,
professional or commercial activity, and not for personal, family or household
purposes.
15. Amendment
and Restatement – This Note amends and restates, and is in substitution
for, that certain Committed Line of Credit Note in the principal amount of
$15,000,000.00 payable to the order of the Bank and dated January 22, 2009 (the
“Existing Note”). However, without duplication, this Note shall in no
way extinguish, cancel or satisfy Borrower’s unconditional obligation to repay
all indebtedness evidenced by the Existing Note or constitute a novation of the
Existing Note. Nothing herein is intended to extinguish, cancel or
impair the lien priority or effect of any security agreement, pledge agreement
or mortgage with respect to the Obligor’s obligations hereunder and under any
other document relating hereto.
16. WAIVER OF
JURY TRIAL. The
Borrower irrevocably waives any and all rights the Borrower may have to a trial
by jury in any action, proceeding or claim of any nature relating to this Note,
any documents executed in connection with this Note or any transaction
contemplated in any of such documents. The Borrower acknowledges that
the foregoing waiver is knowing and voluntary.
The
Borrower acknowledges that it has read and understood all the provisions of this
Note, including the waiver of jury trial, and has been advised by counsel as
necessary or appropriate.
WITNESS the due execution
hereof as a document under seal, as of the date first written above, with the
intent to be legally bound hereby.
|
WITNESS
/ ATTEST:
|
MIDDLESEX
WATER COMPANY
|
|||
|
/s/
Xxxxxxx X. Xxxxx
|
By:
|
/s/
X. Xxxxx X’Xxxxxx
|
||
|
(SEAL)
|
||||
|
Print
Name:
|
Xxxxxxx
X. Xxxxx
|
X.
Xxxxx X’Xxxxxx
|
||
|
Title:
|
Secretary
|
Vice
President and Chief Financial
Officer
|
||
-8-
Amendment
to Loan Documents
THIS AMENDMENT TO LOAN
DOCUMENTS (this “Amendment”) is made as of
January 29, 2010, by and between MIDDLESEX WATER COMPANY (the
“Borrower”), and PNC BANK, NATIONAL ASSOCIATION
(the “Bank”).
BACKGROUND
A. The
Borrower has executed and delivered to the Bank (or a predecessor which is now
known by the Bank’s name as set forth above), one or more promissory notes,
letter agreements, loan agreements, security agreements, mortgages, pledge
agreements, collateral assignments, and other agreements, instruments,
certificates and documents, some or all of which are more fully described on
attached Exhibit A, which is made a part of this Amendment (collectively as
amended from time to time, the “Loan Documents”) which
evidence or secure some or all of the Borrower’s obligations to the Bank for one
or more loans or other extensions of credit (the “Obligations”).
B. The
Borrower and the Bank desire to amend the Loan Documents as provided for in this
Amendment.
NOW, THEREFORE, in
consideration of the mutual covenants herein contained and intending to be
legally bound hereby, the parties hereto agree as follows:
1. Certain
of the Loan Documents are amended as set forth in Exhibit A. Any and
all references to any Loan Document in any other Loan Document shall be deemed
to refer to such Loan Document as amended by this Amendment. This
Amendment is deemed incorporated into each of the Loan Documents. Any initially
capitalized terms used in this Amendment without definition shall have the
meanings assigned to those terms in the Loan Documents. To the extent
that any term or provision of this Amendment is or may be inconsistent with any
term or provision in any Loan Document, the terms and provisions of this
Amendment shall control.
2. The
Borrower hereby certifies that: (a) all of its representations and warranties in
the Loan Documents, as amended by this Amendment, are, except as may otherwise
be stated in this Amendment: (i) true and correct as of the date of this
Amendment, (ii) ratified and confirmed without condition as if made anew, and
(iii) incorporated into this Amendment by reference, (b) no Event of Default or
event which, with the passage of time or the giving of notice or both, would
constitute an Event of Default, exists under any Loan Document which will not be
cured by the execution and effectiveness of this Amendment, (c) no consent,
approval, order or authorization of, or registration or filing with, any third
party is required in connection with the execution, delivery and carrying out of
this Amendment or, if required, has been obtained, and (d) this Amendment has
been duly authorized, executed and delivered so that it constitutes the legal,
valid and binding obligation of the Borrower, enforceable in accordance with its
terms. The Borrower confirms that the Obligations remain outstanding
without defense, set off, counterclaim, discount or charge of any kind as of the
date of this Amendment.
3. The
Borrower hereby confirms that any collateral for the Obligations, including
liens, security interests, mortgages, and pledges granted by the Borrower or
third parties (if applicable), shall continue unimpaired and in full force and
effect, and shall cover and secure all of the Borrower’s existing and future
Obligations to the Bank, as modified by this Amendment.
4. As
a condition precedent to the effectiveness of this Amendment, the Borrower shall
comply with the terms and conditions (if any) specified in Exhibit
A.
5. To
induce the Bank to enter into this Amendment, the Borrower waives and releases
and forever discharges the Bank and its officers, directors, attorneys, agents,
and employees from any liability, damage, claim, loss or expense of any kind
that it may have against the Bank or any of them arising out of or relating to
the Obligations. The Borrower further agrees to indemnify and hold
the Bank and its officers, directors, attorneys, agents and employees harmless
from any loss, damage, judgment, liability or expense (including attorneys’
fees) suffered by or rendered against the Bank or any of them on account of any
claims arising out of or relating to the Obligations. The Borrower
further states that it has carefully read the foregoing release and indemnity,
knows the contents thereof and grants the same as its own free act and
deed.
6. This
Amendment may be signed in any number of counterpart copies and by the parties
to this Amendment on separate counterparts, but all such copies shall constitute
one and the same instrument. Delivery of an executed
counterpart of a signature page to this Amendment by facsimile transmission
shall be effective as delivery of a manually executed
counterpart. Any party so executing this Amendment by facsimile
transmission shall promptly deliver a manually executed counterpart, provided
that any failure to do so shall not affect the validity of the counterpart
executed by facsimile transmission.
7. This
Amendment will be binding upon and inure to the benefit of the Borrower and the
Bank and their respective heirs, executors, administrators, successors and
assigns.
8. This
Amendment has been delivered to and accepted by the Bank and will be deemed to
be made in the State where the Bank’s office indicated in the Loan Documents is
located. This Amendment will be interpreted and the rights and
liabilities of the parties hereto determined in accordance with the laws of the
State where the Bank’s office indicated in the Loan Documents is located,
excluding its conflict of laws rules.
9. Except
as amended hereby, the terms and provisions of the Loan Documents remain
unchanged, are and shall remain in full force and effect unless and until
modified or amended in writing in accordance with their terms, and are hereby
ratified and confirmed. Except as expressly provided herein, this
Amendment shall not constitute an amendment, waiver, consent or release with
respect to any provision of any Loan Document, a waiver of any default or Event
of Default under any Loan Document, or a waiver or release of any of the Bank’s
rights and remedies (all of which are hereby reserved). The Borrower expressly ratifies and
confirms the waiver of jury trial provisions contained in the Loan
Documents.
WITNESS the due execution of
this Amendment as a document under seal as of the date first written
above.
|
WITNESS
/ ATTEST:
|
MIDDLESEX
WATER COMPANY
|
|||
|
/s/
Xxxxxxx X. Xxxxx
|
By:
|
/s/
X. Xxxxx X’Xxxxxx
|
||
|
(SEAL)
|
||||
|
Print
Name:
|
Xxxxxxx
X. Xxxxx
|
X.
Xxxxx X’Xxxxxx
|
||
|
Title:
|
Secretary
|
Vice
President and Chief Financial
Officer
|
||
-2-
|
PNC
BANK, NATIONAL ASSOCIATION
|
||
|
By:
|
/s/
Xxxxxxxx XxXxxxx
|
|
|
(SEAL)
|
||
|
Print
Name:
|
Xxxxxxxx
XxXxxxx
|
|
|
Title:
|
Vice
President
|
|
-3-
EXHIBIT
A TO
AMENDMENT
TO LOAN DOCUMENTS
DATED
AS OF JANUARY 29, 2010
|
A.
|
The
“Loan Documents” that are the subject of this Amendment include the
following (as any of the foregoing have previously been amended, modified
or otherwise supplemented):
|
|
|
1.
|
Letter
Agreement dated August 27, 2001 (the
“Agreement”)
|
|
|
2.
|
Amended
and Restated Committed Line of Credit Note dated January 22, 2009 in the
principal amount of $15,000,000.00 (the “Existing
Note”)
|
|
|
3.
|
All
other documents, instruments, agreements, and certificates executed and
delivered in connection with the Loan Documents listed in this Section
A.
|
B. The
Loan Documents are amended as follows:
|
1.
|
Modifications
to the Agreement.
|
|
|
a.
|
The
facility as described as the “Loan” in the opening paragraph and the “Line
of Credit” in paragraph 1 Facility and Use of
Proceeds, is hereby increased to TWENTY MILLION AND 00/100 DOLLARS
($20,000.000.00).
|
|
|
b.
|
The
“Expiration Date” set forth in paragraph 1. Facility and Use of
Proceeds is hereby amended to mean January 29, 2011, or
such later date as may be designated by the Bank by written notice from
the Bank to the Borrower.
|
|
|
2.
|
Restated
Note. Concurrently
with the execution and delivery of this Amendment, the Borrower shall
execute and deliver to the Bank a restated note (the “Restated Note”)
evidencing the Line of Credit in the principal amount of $20,000.000.00,
in form and substance satisfactory to the Bank. Upon receipt by
the Bank of the Restated Note, the existing Line of Credit Note shall be
canceled; the Line of Credit and all accrued and unpaid interest on the
Existing Note shall thereafter be evidenced by the Restated Note; and all
references to the “Note” evidencing the Line of Credit in any documents
relating thereto shall thereafter be deemed to refer to the Restated
Note. Without duplication, the Restated Note shall not
constitute a novation and shall in no way extinguish the Borrower’s
unconditional obligation to repay all indebtedness, including accrued and
unpaid interest, evidenced by the Existing
Note.
|
|
C.
|
Conditions
to Effectiveness of Amendment: The Bank’s willingness to agree to the
amendments set forth in this Amendment is subject to the prior
satisfaction of the following
conditions:
|
|
|
1.
|
Execution
by all parties and delivery to the Bank of this Amendment and the Restated
Note.
|
|
|
2.
|
Reimbursement
of the fees and expenses of the Bank's outside and in-house counsel in
connection with this Amendment, which fees and expenses as of the date of
this Amendment are
$_________________.
|
-4-
