EXHIBIT 4.27
SIXTH AMENDMENT TO CREDIT AGREEMENT
THIS SIXTH AMENDMENT TO CREDIT AGREEMENT is made as of this 12th day of
December, 2004, 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 and a Fifth Amendment
to Credit Agreement dated as of December 14, 2003 (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 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
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 12, 2004
(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 10, 2005 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."
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 obligations 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 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 as of a recent date, 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 as of a recent
date, 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 extension fee of $84,000 to be distributed pro rata to Banks.
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.
By: XXXXX X. XXXX
-----------------------------------
Title: Vice President and Treasurer
PNC BANK, NATIONAL ASSOCIATION, as a
Bank and as Agent
By: XXXXXXX X. XXXXXXXXX, XX.
-----------------------------------
Title: SVP
CITIZENS BANK OF PENNSYLVANIA
By: XXXX X. XXXXX
-----------------------------------
Title: SVP
FLEET NATIONAL BANK
By: XXXXX X. XXXXXXX
-----------------------------------
Title: Senior Vice President
NATIONAL CITY BANK
By: XXXXX X. XXXXXXXX
-----------------------------------
Title: Senior Vice President
