Exhibit 4.21
THIRD AMENDMENT TO REVOLVING CREDIT AGREEMENT
THIRD AMENDMENT to Revolving Credit Agreement ("Third Amendment"),
dated as of December 20, 1996, among Philadelphia Suburban Water Company, a
Pennsylvania corporation (the "Borrower"), the Banks signatory hereto (the
"Banks"), and Mellon Bank, N.A., in its capacity as agent for the Banks
hereunder (hereafter the "Agent").
W I T N E S S E T H
WHEREAS, the Borrower, the Agent and the Banks are parties to a
Revolving Credit Agreement dated as of March 17, 1994, as amended by a First
Amendment to Revolving Credit Agreement dated as of May 22, 1995, and as further
amended by a letter agreement dated July 21, 1995 (as amended, modified and/or
extended, the "Loan Agreement"), pursuant to which the Banks agreed to make
available to the Borrower certain credit facilities in the aggregate amount of
$30,000,000 upon the terms and conditions specified in the Loan Agreement;
WHEREAS, pursuant to an Assignment and Assumption Agreement dated
December 20, 1996, between First Union National Bank f/k/a First Fidelity Bank,
N.A. ("First Union") and First Union National Bank of North Carolina ("First
Union-NC"), First Union has sold and assigned to First Union-NC all of First
Union's interest in and to First Union's rights and obligations under the Loan
Agreement as of the date hereof; and
WHEREAS, the parties wish to amend certain terms and conditions of the
Loan Agreement, as hereinafter set forth.
NOW, THEREFORE, in consideration of the promises and mutual agreements
herein contained, the parties hereto, intending to be legally bound hereby,
agree to amend the Loan Agreement as herein stated.
1. Effect of Prior Agreements.
This Third Amendment is intended to amend the Loan Agreement, as it
has been in effect to the date hereof and as it shall be amended on and after
the date hereof. All capitalized terms used herein as defined terms shall have
the meanings ascribed to them in the Loan Agreement unless herein provided to
the contrary.
2. Amendments.
(a) Section 2.01 of the Loan Agreement is hereby amended in its
entirety to read as follows:
2.01 The Revolving Credit Commitment. The maximum aggregate
amount the Banks shall be obligated to lend to the Borrower at any given time
under this Agreement shall be Fifty Million Dollars ($50,000,000) from December
20, 1996 through and including December 31, 1997, and Thirty Million Dollars
($30,000,000) thereafter until the Revolving Credit Commitment Termination Date,
as such amounts may have been reduced under Section 2.03 hereof (the "Revolving
Credit Commitment").
(b) Schedule 1.01(a) is hereby replaced with Second
Replacement Schedule 1.01(a) attached hereto and made a part hereof. Any and all
references to Schedule 1.01(a) shall be deemed to refer to Second Replacement
Schedule 1.01(a).
3. Conditions. To induce the Agent and Banks to enter into this Third
Amendment and to extend the Loans contemplated herein, the Borrower shall
perform the following conditions to the Agent's and the Banks' satisfaction
prior to the Banks' acting in reliance hereon:
(a) The Borrower shall execute and deliver to the Banks this Third
Amendment, the Third Allonges to Revolving Credit Notes (the "Third Allonges")
and all other documents as the Banks may require; and
(b) The Borrower shall deliver all other documents and certificates
reasonably requested by the Agent.
4. Representations and Warranties. Borrower hereby represents and
warrants that:
(a) The representations and warranties contained in the Loan
Agreement and in each certificate, document or financial statement furnished by
the Borrower delivered therewith or in connection with any other Loan Document
are true and correct in all material respects on and as of the date hereof as
though made on and as of the date hereof.
(b) No Event of Default, and to the Borrower's knowledge no event
which with the passage of time or the giving of notice or both could become an
Event of Default, exists on the date hereof, and no offsets or defenses exist
against the Borrower's obligations under the Loan Agreement or the documents
delivered in connection therewith.
(c) This Third Amendment and the Third Allonges have been duly
authorized, executed and delivered so as to constitute the legal, valid and
binding obligations of the Borrower, enforceable in accordance with their terms,
except as the same may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting creditors' rights
generally and general principles of equity.
(d) The execution, delivery and performance of this Third Amendment
and the Third Allonges will not violate any applicable provision of law or
judgment, order or regulation of any court or of any public or governmental
agency or authority nor conflict with or constitute a breach of or a default
under any instrument to which the Borrower is a party or by which the Borrower
or the Borrower's properties are bound nor result in the creation of any lien,
charge or encumbrance upon any assets of the Borrower.
(e) No approval, consent or authorization of, or registration,
declaration or filing with, any governmental or public body or authority is
required in connection with the valid execution, delivery and performance by the
Borrower of this Third Amendment and the Third Allonges.
5. Reaffirmation. The Borrower hereby affirms and reaffirms to the
Agent and the Banks all of the terms, covenants, and conditions contained in the
Loan Agreement including, without limitation, those contained in Article VI of
the Loan Agreement and agrees to abide thereby until all of the obligations to
the Banks are satisfied and/or discharged in their entirety.
6. Miscellaneous.
(a) All terms, conditions, provisions and covenants in the Loan
Agreement, the Notes as amended by the Third Allonges, and all other Loan
Documents delivered to the Agent and the Banks in connection therewith shall
remain unaltered and in full force and effect except as modified or amended
hereby and are hereby ratified and confirmed.
(b) This Third Amendment shall be governed by and construed
according to the laws of the Commonwealth of Pennsylvania.
(c) This Third Amendment shall inure to the benefit of, and be
binding upon, the parties hereto and their respective successors and permitted
assigns.
(d) This Third Amendment may be executed in one or more
counterparts, and by different parties on different counterparts, each of which
shall be deemed an original, all of which together shall constitute one and the
same instrument, and in making proof of this Third Amendment it shall be
necessary only to produce one counterpart.
(e) This Third Amendment shall have effect as of its date.
(f) To the extent an Event of Default exists on the date hereof, any
and all undertakings of the Agent and the Banks under or pursuant to this Third
Amendment shall not be deemed a waiver by the Agent or the Banks of any such
Event of Default or any of the Agent's or the Banks' rights and remedies under
the Loan Agreement and/or applicable law; and the Banks hereby reserve any and
all such rights and remedies.
IN WITNESS WHEREOF, the parties hereto have executed this
Third Amendment as of the day and year first above written.
ATTEST: PHILADELPHIA SUBURBAN WATER COMPANY
By: By: Xxxxxxx X. Xxxxxx
------------------------ -------------------------------
Name: Name: Xxxxxxx X. Xxxxxx
Title: Title: Senior Vice President
- Finance & Treasurer
Address: 000 Xxxxxxxxx Xxxxxx
Xxxx Xxxx, XX 00000
Tel. No: (000) 000-0000
Telecopy: (000) 000-0000
MELLON BANK, N.A.
By: Xxxxxxx X. Xxxxxxx
-----------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Assistant Vice President
Address: Plymouth Meeting
Executive Campus
000 Xxxx Xxxxxxxxxx Xxxx
Xxxxx 000
Xxxxxxxx Xxxxxxx, XX 00000
Tel. No: (000) 000-0000
Telecopy: (000) 000-0000
PNC BANK, NATIONAL ASSOCIATION
By: Xxxxx X. Xxxxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
Address: 000 Xxxxxxx Xxxx
Xxxxxxx, XX 00000
Tel. No: (000) 000-0000
Telecopy: (000) 000-0000
FIRST UNION NATIONAL BANK OF NORTH
CAROLINA (successor to First Fidelity Bank,
National Association)
By: Xxxxxxx X. Xxxxxxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Vice President
Address: 000 Xxxxx Xxxxx Xxxxxx
XX0000
Xxxxxxxxxxxx, XX 00000
Tel. No: (000) 000-0000
Telecopy: (000) 000-0000
Notices to: Xxxx X. Xxxxx
CORESTATES BANK, N.A. (successor to Meridian Bank)
By: Xxxxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
Address: FC 1-8-11-28
0000 Xxxxxxxx Xxxxxx
X.X. Xxx 0000
Xxxxxxxxxxxx, XX 00000-0000
Tel. No: (000) 000-0000
Telecopy: (000) 000-0000
STATE OF : Pennsylvania
ss.
COUNTY OF : Xxxxxxxxxx
On the 20th day of December, 1996, before me, the subscriber, a Notary
Public in and for the State and County aforesaid, personally appeared Xxxxxxx X.
Xxxxxx, who acknowledged himself to be the Senior Vice President Finance and
Treasurer of Philadelphia Suburban Water Company, a Pennsylvania corporation,
and that he as such officer being authorized to do so, executed and delivered
the foregoing instrument for the purposes therein contained by signing the name
of the corporation by himself as such officer.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal.
Xxxxxxx Xxxxxxx
----------------------
Notary Public
(NOTARIAL SEAL)
My Commission expires:
July 26, 1997
------------------------
SECOND REPLACEMENT SCHEDULE 1.01(a)
-----------------------------------
Amount of Amount of
Commitment For Commitment for
Revolving Credit Revolving Credit
Name and Address Loans From Loans From
of Bank 12/20/96 through 12/31/97 01/01/98 Percentages
------------------------- -------- -----------
1. Mellon Bank, N.A. $31,666,666.67 $19,000,000 63 1/3%
Plymouth Meeting
Executive Campus
000 Xxxx Xxxxxxxxxx Xxxx
Xxxxx 000
Xxxxxxxx Xxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxx
Assistant Vice President
Tel: (000) 000-0000
Fax: (000) 000-0000
Mellon Bank, N.A.
Attn: Loan Administration,
Xxxxxxx Xxxxxx
Mellon Independence Center
199-5220
000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000 or
(000) 000-0000
2. PNC Bank, National
Association $ 6,666,666.67 $4,000,000 13 1/3%
000 Xxxxxxx Xxxx
Xxxxxxx, XX 00000
3. First Union National Bank of
North Carolina (successor to
First Fidelity Bank,
National Association) $ 6,666,666.66 $4,000,000 13 1/3%
000 Xxxxx Xxxxx Xxxxxx
XX0000
Xxxxxxxxxxxx, XX 00000
4. CoreStates Bank, N.A.
(successor to Meridian Bank) $ 5,000,000.00 $3,000,000 10%
FC 1-8-10-73
0000 Xxxxxxxx Xxxxxx
X.X. Xxx 0000
Xxxxxxxxxxxx, XX 00000-0000 ---------------- ----------- -----
-
TOTAL REVOLVING
CREDIT COMMITMENTS: $50,000,000 $30,000,000 100%
=========== =========== ===
THIRD ALLONGE TO REVOLVING CREDIT NOTE
ENDORSEMENT SEPARATE FROM INSTRUMENT
BORROWER: Philadelphia Suburban Water Company
PAYEE: Mellon Bank, N.A.
DATE: March 17, 1994
PRINCIPAL AMOUNT: $19,000,000
DUE DATE: March 1, 1998
This Allonge shall be and remain attached to and shall
constitute an integral part of the above-described Revolving Credit Note from
and after the date hereof.
The Revolving Credit Note is hereby amended by temporarily
increasing the maximum principal amount permitted to be borrowed thereunder by
$12,666,666.67 from $19,000,000 to $31,666,666.67 from December 20, 1996 to
December 31, 1997. On January 1, 1998 the maximum principal amount shall
automatically reduce to $19,000,000.
IN WITNESS WHEREOF, the undersigned, intending to be legally
bound, has caused this Third Allonge to be executed by its duly authorized
officer as of the 20th day of December, 1996.
Attest: PHILADELPHIA SUBURBAN WATER COMPANY
By: By: Xxxxxxx X. Xxxxxx
------------------------- -----------------------
Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President -
Finance and Treasurer
STATE OF PENNSYLVANIA :
ss.
COUNTY OF XXXXXXXXXX :
On the 20th day of December, 1996, before me, the subscriber, a Notary
Public in and for the State and County aforesaid, personally appeared Xxxxxxx X.
Xxxxxx who acknowledged himself to be the Senior Vice President - Finance and
Treasurer of Philadelphia Suburban Water Company, a Pennsylvania corporation,
and that he as such officer being authorized to do so, executed and delivered
the foregoing instrument for the purposes therein contained by signing the name
of the corporation by himself as such officer.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal.
Xxxxxxx Xxxxxxx
----------------------
Notary Public
(NOTARIAL SEAL)
My Commission expires:
July 26, 1997
------------------------
THIRD ALLONGE TO REVOLVING CREDIT NOTE
ENDORSEMENT SEPARATE FROM INSTRUMENT
BORROWER: Philadelphia Suburban Water Company
PAYEE: First Union National Bank of North Carolina
(successor to First Fidelity Bank, National
Association)
DATE: March 17, 1994
PRINCIPAL AMOUNT: $4,000,000
DUE DATE: March 1, 1998
This Allonge shall be and remain attached to and shall
constitute an integral part of the above-described Revolving Credit Note from
and after the date hereof.
The Revolving Credit Note is hereby amended by temporarily
increasing the maximum principal amount permitted to be borrowed thereunder by
$2,666,666.67 from $4,000,000 to $6,666,666.67 from December 20, 1996 to
December 31, 1997. On January 1, 1998 the maximum principal amount shall
automatically reduce to $4,000,000.
IN WITNESS WHEREOF, the undersigned, intending to be legally
bound, has caused this Third Allonge to be executed by its duly authorized
officer as of the 20th day of December, 1996.
Attest: PHILADELPHIA SUBURBAN WATER COMPANY
By: By: Xxxxxxx X. Xxxxxx
------------------------- -----------------------
Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President -
Finance and Treasurer
STATE OF PENNSYLVANIA :
ss.
COUNTY OF XXXXXXXXXX :
On the 20th day of December, 1996, before me, the subscriber, a Notary
Public in and for the State and County aforesaid, personally appeared Xxxxxxx X.
Xxxxxx who acknowledged himself to be the Senior Vice President - Finance and
Treasurer of Philadelphia Suburban Water Company, a Pennsylvania corporation,
and that he as such officer being authorized to do so, executed and delivered
the foregoing instrument for the purposes therein contained by signing the name
of the corporation by himself as such officer.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal.
Xxxxxxx Xxxxxxx
----------------------
Notary Public
(NOTARIAL SEAL)
My Commission expires:
July 26, 1997
------------------------
THIRD ALLONGE TO REVOLVING CREDIT NOTE
ENDORSEMENT SEPARATE FROM INSTRUMENT
BORROWER: Philadelphia Suburban Water Company
PAYEE: CoreStates Bank, N.A. (successor to Meridian Bank)
DATE: March 17, 1994
PRINCIPAL AMOUNT: $3,000,000
DUE DATE: March 1, 1998
This Allonge shall be and remain attached to and shall
constitute an integral part of the above-described Revolving Credit Note from
and after the date hereof.
The Revolving Credit Note is hereby amended by temporarily
increasing the maximum principal amount permitted to be borrowed thereunder by
$2,000,000 from $3,000,000 to $5,000,000 from December 20, 1996 to December 31,
1997. On January 1, 1998 the maximum principal amount shall automatically reduce
to $3,000,000.
IN WITNESS WHEREOF, the undersigned, intending to be legally
bound, has caused this Third Allonge to be executed by its duly authorized
officer as of the 20th day of December, 1996.
Attest: PHILADELPHIA SUBURBAN WATER COMPANY
By: By: Xxxxxxx X. Xxxxxx
------------------------- -----------------------
Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President -
Finance and Treasurer
STATE OF PENNSYLVANIA :
ss.
COUNTY OF XXXXXXXXXX :
On the 20th day of December, 1996, before me, the subscriber, a Notary
Public in and for the State and County aforesaid, personally appeared Xxxxxxx X.
Xxxxxx who acknowledged himself to be the Senior Vice President - Finance and
Treasurer of Philadelphia Suburban Water Company, a Pennsylvania corporation,
and that he as such officer being authorized to do so, executed and delivered
the foregoing instrument for the purposes therein contained by signing the name
of the corporation by himself as such officer.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal.
Xxxxxxx Xxxxxxx
----------------------
Notary Public
(NOTARIAL SEAL)
My Commission expires:
July 26, 1997
------------------------
THIRD ALLONGE TO REVOLVING CREDIT NOTE
ENDORSEMENT SEPARATE FROM INSTRUMENT
BORROWER: Philadelphia Suburban Water Company
PAYEE: PNC Bank, National Association
DATE: March 17, 1994
PRINCIPAL AMOUNT: $4,000,000
DUE DATE: March 1, 1998
This Allonge shall be and remain attached to and shall
constitute an integral part of the above-described Revolving Credit Note from
and after the date hereof.
The Revolving Credit Note is hereby amended by temporarily
increasing the maximum principal amount permitted to be borrowed thereunder by
$2,666,666.66 from $4,000,000 to $6,666,666.66 from December 20, 1996 to
December 31, 1997. On January 1, 1998 the maximum principal amount shall
automatically reduce to $4,000,000.
IN WITNESS WHEREOF, the undersigned, intending to be legally
bound, has caused this Third Allonge to be executed by its duly authorized
officer as of the 20th day of December, 1996.
Attest: PHILADELPHIA SUBURBAN WATER COMPANY
By: By: Xxxxxxx X. Xxxxxx
------------------------- -----------------------
Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President -
Finance and Treasurer
STATE OF PENNSYLVANIA :
ss.
COUNTY OF XXXXXXXXXX :
On the 20th day of December, 1996, before me, the subscriber, a Notary
Public in and for the State and County aforesaid, personally appeared Xxxxxxx X.
Xxxxxx who acknowledged himself to be the Senior Vice President - Finance and
Treasurer of Philadelphia Suburban Water Company, a Pennsylvania corporation,
and that he as such officer being authorized to do so, executed and delivered
the foregoing instrument for the purposes therein contained by signing the name
of the corporation by himself as such officer.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal.
Xxxxxxx Xxxxxxx
----------------------
Notary Public
(NOTARIAL SEAL)
My Commission expires:
July 26, 1997
------------------------
PHILADELPHIA SUBURBAN WATER COMPANY
OFFICER'S CERTIFICATE
The undersigned officer of Philadelphia Suburban Water Company (the
"Borrower"), hereby certifies that:
1. The Articles and Certificate of Incorporation of the Borrower, as
amended, and the By-laws of the Borrower delivered to Mellon Bank, N.A. on March
17, 1994 have not been amended, modified or rescinded and remain in full force
and effect;
2. The Borrower is and remains in Good Standing in the Commonwealth of
Pennsylvania and all other jurisdictions where it is required to remain in Good
Standing.
3. The Resolutions adopted by the Board of Directors of the Borrower at
a regular meeting held on February 1, 1994 have not been amended, modified or
revoked, are in full force and effect, and authorize the appropriate officers of
the Borrower to execute the Third Amendment to the Revolving Credit Agreement
dated the date hereof and applicable Allonges.
IN WITNESS WHEREOF, the undersigned hereby executed this Certificate
this 20th day of December, 1996.
Xxxxxxx X. Xxxxxx
-----------------------
Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President -
Finance and Treasurer
