NINTH AMENDMENT TO CREDIT AGREEMENT
EXHIBIT 4.33
NINTH AMENDMENT TO CREDIT AGREEMENT
THIS NINTH AMENDMENT TO CREDIT AGREEMENT is made as of this 28th day of February, 2007, by and
among AQUA PENNSYLVANIA, INC., a Pennsylvania corporation (formerly known as Pennsylvania Suburban
Water Company, 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
A. Borrower, Agent and Banks 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, a Second
Amendment to Credit Agreement dated as of December 18, 2001, a Third Amendment to Credit Agreement
dated as of December 16, 2002, a Fourth Amendment dated as of December 24, 2002, a Fifth Amendment
to Credit Agreement dated as of December 14, 2003, a Sixth Amendment to Credit Agreement dated as
of December 12, 2004, a Seventh Amendment to Credit Agreement dated as of December 6, 2005 and an
Eighth Amendment to Credit Agreement dated as of December 1, 2006 (as so amended, the “Credit
Agreement”), pursuant to which Banks 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.
B. Borrower, Agent and Banks desire to modify certain covenants in the Credit Agreement, 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
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. The Credit Agreement is hereby amended as follows:
(a) The reference to “45 days” in Section 5.1(i) is hereby deleted and “60 days” is
substituted therefor.
(b) The reference to “90 days” in Section 5.1(ii) is hereby deleted and “120 days” is
substituted therefor.
3. 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.
4. 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.
5. 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;
(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 obligation of Borrower, enforceable in accordance with its terms.
All of the above representations and warranties shall survive the making of this Agreement.
6. 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:
(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; and | ||
| (ii) | 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.
7. 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.
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.
| AQUA PENNSYLVANIA, INC. |
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| By: | /s/ Xxxxx X. Xxxx | |||
| Title: Vice President and Treasurer | ||||
| PNC BANK, NATIONAL ASSOCIATION, as a Bank and as Agent |
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| By: | /s/ Xxxxxxx X. Xxxxxxxxx, Xx. | |||
| Title: Senior Vice President | ||||
| CITIZENS BANK OF PENNSYLVANIA |
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| By: | /s/ Xxxxxx X. Xxxxxxxxx | |||
| Title: Senior Vice President | ||||
| BANK OF AMERICA, N.A. (formerly Fleet National Bank) |
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| By: | /s/ Xxxxxxxxx Xxxxx | |||
| Title: Assistant Vice President | ||||
| NATIONAL CITY BANK |
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| By: | /s/ Xxxxx X. Xxxxxxxx | |||
| Title: Senior Vice President | ||||
