AMENDMENT NO. 16 Dated as of October 30, 2015 to RECEIVABLES PURCHASE AGREEMENT Dated as of November 30, 2001
EXHIBIT 10.1
AMENDMENT NO. 16
Dated as of October 30, 2015 to
RECEIVABLES PURCHASE AGREEMENT Dated as of November 30, 2001
This AMENDMENT NO. 16 (this “Amendment”) dated as of October 30, 2015 is entered into among ENERGY SERVICES FUNDING CORPORATION, a Delaware corporation, as the seller (the “Seller”), UGI ENERGY SERVICES, LLC (as successor to UGI Energy Services, Inc.), a Pennsylvania limited liability company (“UGI”), as initial servicer (in such capacity, together with its successors and permitted assigns in such capacity, the “Servicer”), and PNC BANK, NATIONAL ASSOCIATION, a national banking association (“PNC”), as issuer (together with its successors and permitted assigns, the “Issuer”) and as administrator (in such capacity, together with its successors and assigns in such capacity, the “Administrator”).
RECITALS
WHEREAS, the parties hereto have entered into that certain Receivables Purchase Agreement, dated as of November 30, 2001 (as amended, supplemented or otherwise modified from time to time, the “Agreement”);
WHEREAS, the parties hereto wish to amend the Agreement as set forth herein; and
WHEREAS, concurrently herewith, the Seller, Servicer and PNC are entering into a
Tenth Amended and Restated Fee Letter (the “Fee Letter”).
NOW, THEREFORE, in consideration of the promises and the mutual agreements contained herein and in the Agreement, the parties hereto agree as follows:
SECTION 1. Definitions. All capitalized terms used but not otherwise defined herein are used herein as defined in the Agreement.
SECTION 2. Amendments to the Agreement. The Agreement is hereby amended as follows:
(a) The following new defined term and definition thereof is hereby added to
Exhibit I to the Agreement in appropriate alphabetical order:
“Company Note” has the meaning set forth in the Purchase and Sale
Agreement.
(b) Clause (a) of the definition of “Facility Termination Date” set forth in Exhibit I to the Agreement is hereby amended by replacing the date “October 30, 2015” where it appears therein with the date “October 28, 2016”.
(c) The definition of “LMIR” set forth in Exhibit I to the Agreement is hereby amended by inserting the phrase “the greater of (a) 0% and (b)” immediately after the phrase “during any Settlement Period,” where it appears therein.
(d) The definition of “Purchase Limit” set forth in Exhibit I to the Agreement is replaced in its entirety with the following:
“Purchase Limit” means (i) at any time on or after October 30,
2015 and prior to but excluding May 1, 2016, $150,000,000 and (ii) at any time on and after May 1, 2016 $75,000,000, in each case, as such amount may be subsequently reduced pursuant to Section 1.1(b) of the Agreement; provided, that any such reduction of the Purchase Limit then in effect pursuant to clauses (i) or (ii) above, as applicable, shall automatically and permanently reduce the amount of the Purchase Limit set forth in such other clauses above in the same proportion as the percentage of the reduction of the Purchase Limit then in effect. References to the unused portion of the Purchase Limit shall mean, at any time, the Purchase Limit minus the then outstanding Capital.
(e) Section 1(s) of Exhibit III to the Agreement is replaced in its entirety with the following:
(s) The Seller is not an “investment company,” or a company “controlled” by an “investment company” within the meaning of the Investment Company Act of 1940, as amended. In addition, the Seller is not a “covered fund” under Section 13 of the U.S. Bank Holding Company Act of 1956, as amended, and the applicable rules and regulations thereunder (the “Xxxxxxx Rule”). In determining that Seller is not a “covered fund” under the Xxxxxxx Rule, Seller is entitled to rely on the exemption from the definition of “investment company” set forth in Section 3(c)(5)(A) or (B) of the Investment Company Act of 1940, as amended.
(f) The following new Section 1(x) is hereby added to Exhibit III to the
Agreement immediately following existing Section 1(w) thereof:
(x) The Seller has not, does not and will not during the term of this Agreement (x) issue any obligations that (A) constitute asset-backed commercial paper, or (B) are securities required to be registered under the Securities Act of 1933 (the “33 Act”) or that may be offered for sale under Rule 144A or a similar exemption from registration under the 33 Act or the rules promulgated thereunder, or (y) issue any other debt obligations or equity interests other than the Company Notes or debt obligations substantially similar to the obligations of the Seller under this Agreement that are (A) issued to other banks or asset-backed commercial paper conduits in privately negotiated transactions, and (B) subject to transfer restrictions substantially similar to the transfer restrictions set forth in the
Agreement. The Seller further represents and warrants that its assets and liabilities are consolidated with the assets and liabilities of UGI for purposes of generally accepted accounting principles.
SECTION 3. Certain Representations, Warranties and Covenants. Each of the Seller, UGI and the Servicer, as to itself, hereby represents and warrants that:
(a) the representations and warranties of such Person contained in Exhibit III to the Agreement (as amended hereby) are true and correct as of the date hereof (unless stated to relate solely to an earlier date, in which case such representations and warranties were true and correct as of such earlier date);
(b) the execution and delivery by such Person of this Amendment, and the performance of its obligations under this Amendment and the Agreement (as amended hereby) are within its organizational powers and have been duly authorized by all necessary organizational action on its part, and this Amendment and the Agreement (as amended hereby) are its valid and legally binding obligations, enforceable in accordance with its terms, subject to the effect of bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors’ rights generally; and
(c) no Termination Event or Unmatured Termination Event has occurred, is continuing, or would occur as a result of this Amendment.
SECTION 4. Effectiveness. This Amendment shall become effective as of the date hereof provided that the Administrator shall have received:
and
(a) counterparts to this Amendment executed by each of the parties hereto;
(b) counterparts to the Fee Letter executed by each of the parties thereto and confirmation that the “Renewal Fee” owing thereunder has been paid in full.
SECTION 5. References to Agreement. Upon the effectiveness of this Amendment, each reference in the Agreement to “this Agreement”, “hereunder”, “hereof”, “herein”, or words of like import shall mean and be a reference to the Agreement as amended hereby, and each reference to the Agreement in any other document, instrument or agreement executed and/or delivered in connection with the Agreement shall mean and be a reference to the Agreement as amended hereby.
SECTION 6. Effect on the Agreement. Except as specifically amended above, the Agreement and all other documents, instruments and agreements executed and/or delivered in connection therewith shall remain in full force and effect and are hereby ratified and confirmed.
SECTION 7. No Waiver. The execution, delivery and effectiveness of this Amendment shall not operate as a waiver of any right, power or remedy of any party under the Agreement or any other document, instrument or agreement executed in connection therewith, nor constitute a waiver of any provision contained therein, except as specifically set forth herein.
SECTION 8. Governing Law. THIS AMENDMENT, INCLUDING THE RIGHTS AND DUTIES OF THE PARTIES HERETO, SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING FOR SUCH PURPOSE SECTION 5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK).
SECTION 9. Successors and Assigns. This Amendment shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and assigns.
SECTION 10. Headings. The Section headings in this Amendment are inserted for convenience of reference only and shall not affect the meaning or interpretation of this Amendment or any provision hereof.
SECTION 11. Counterparts. This Amendment may be executed by the parties hereto in several counterparts, each of which shall be deemed to be an original and all of which shall constitute together but one and the same agreement. Delivery of an executed counterpart of a signature page to this Amendment by facsimile or electronic transmission shall be effective as delivery of a manually executed counterpart hereof.
SECTION 12. Severability. Each provision of this Amendment shall be severable from every other provision of this Amendment for the purpose of determining the legal enforceability of any provision hereof, and the unenforceability of one or more provisions of this Amendment in one jurisdiction shall not have the effect of rendering such provision or provisions unenforceable in any other jurisdiction.
[Signature Pages Follow]
IN WITNESS WHEREOF, the parties have caused this Amendment to be executed by their respective officers thereunto duly authorized as of the date first above written.
ENERGY SERVICES FUNDING CORPORATION
By: /s/ Xxxxxx X.
Xxxxx
Name: Xxxxxx X. Xxxxx
Title: Treasurer
UGI ENERGY SERVICES, LLC
By: /s/ Xxxxxx X.
Xxxxx
Name: Xxxxxx X. Xxxxx
Title: Treasurer
| PNC BANK, NATIONAL ASSOCIATION, |
| as Issuer and Administrator |
By: /s/ Xxxx Xxxxx
Name: Xxxx Xxxxx
Title: Senior Vice President
