Exhibit 4.19
FIRST AMENDMENT TO CREDIT AGREEMENT
THIS FIRST AMENDMENT TO CREDIT AGREEMENT is made as of this 28th day of
November, 2000, by and among PHILADELPHIA SUBURBAN WATER COMPANY, a Pennsylvania
corporation ("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. Banks, Borrower and Agent are parties to a Credit Agreement, dated
as of December 22, 1999 (the "Credit Agreement"), pursuant to which Banks agreed
to make revolving credit loans to Borrower in an aggregate outstanding amount of
up to Fifty Million Dollars ($50,000,000) (the "Loans"). The Loans are evidenced
by Borrower's Revolving Credit Notes in the aggregate principal face amount of
$50,000,000 (the "Notes").
B. Agent, Banks and Borrower desire to modify certain covenants in the
Credit Agreement, extend the Termination Date of the facility, and increase the
swing line provided therein, 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) Effective as of December 20,2000, 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 18, 2001 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."
(b) Section 6.2 is hereby amended by deleting the word "and" at the end
of subsection (vi) thereof, redesignating the next subsection as subsection
(viii) and adding the following new subsection (vii):
"(vii) indebtedness to the Pennsylvania Infrastructure
Investment Authority in an amount not to exceed an aggregate of
$15,000,000 incurred in each fiscal year of the Borrower for the
purchase of capital assets; and"
(c) Section 6.3 is hereby amended by deleting the word "and" at the end
of subsection (i) thereof, redesignating the next subsection as subsection (k)
and adding the following new subsection (j):
"(j) Liens granted to secure indebtedness permitted by Section
6.2(vii) to the extent such Liens are also permitted under the
Indenture; and"
(d) Section 2.2 is hereby amended by adding the following new
subsection (k):
"(k) In addition to making Swing Line Loans pursuant to the
foregoing provisions of this Section 2.2, the Swing Line Bank may
also make Swing Line Loans to the Borrower without the requirement
for a specific request from the Borrower pursuant to Section 2.2(b
) in accordance with the provisions of the agreements between the
Borrower and the Swing Line Bank relating to the Borrower's
deposit, sweep and other accounts at the Swing Line Bank and
related arrangements and agreements regarding the management and
investment of Borrower's cash assets as in effect from time to time
(the "Cash Management Agreements") to the extent of the daily
aggregate net negative balance in the Borrower's accounts which are
subject to the provisions of the Cash Management Agreements. Swing
Line Loans made pursuant to this Section 2.2(k) in accordance with
the provisions of the Cash Management Agreements shall (i) be
subject to the limitations as to aggregate amount set forth in
Section 2.2(a), (ii) not be subject to the limitations as to number
or individual amount set forth in Sections 2.2(h) and (i), (iii) be
payable by the Borrower, both as to principal and interest, at the
times set forth in the Cash Management Agreements (but in no event
later than the Termination Date), (iv) not be made at any time
after the Swing Line Bank has notice of the occurrence of a Default
or Event of Default, (v) if not repaid by the Borrower in
accordance with the provisions of the Cash Management Agreements,
be subject to each Bank's obligation to purchase participating
interests therein pursuant to Section 2.2(!), and (vi) except as
provided in the foregoing subsections (i) through (v), be subject
to all of the terms and conditions of this Section 2.2."
(e) Schedule I to the Credit Agreement is hereby amended to change the
amount set forth opposite PNC Bank, National Association's name under the column
headed "Swing Line Commitment" from "$2,000,000" to "$5,000,000".
3. Replacement Swing Line Note. Concurrently with the execution and
delivery of this Agreement, the Borrower shall execute and deliver to the Swing
Line Bank a replacement Swing Line Note in the face amount of $5,000,000 and
otherwise in the form of Exhibit B-2 attached to the Credit Agreement. Such
replacement Swing Line Note shall evidence any outstanding Swing Line Loans and
upon receipt thereof the original Swing Line Note shall be cancelled.
4. Loan Documents. Except where the context clearly requires otherwise,
all references to the Credit Agreement and the Swing Line Note 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 and to
the Swing Line Note delivered pursuant to Section 3 hereof.
5. Borrower's Ratification. Borrower agrees that it has no defenses or
setoffs 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.
6. 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.
7. 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) The replacement Swing Line Note;
(iii) Copies, certified by the Secretary or an Assistant
Secretary of Borrower 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 replacement Swing Line Note and the
other documents and transactions contemplated hereby;
(iv) Copies, certified by its corporate secretary of the
articles of incorporation, certificate of information, 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
(v) 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 or 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
additional fee of $30,000 to be distributed to Banks pro rata in accordance with
their Commitments.
8. 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.
PHILADELPHIA SUBURBAN
WATER COMPANY
By: /s/ Kathy L. Pape
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Title: Vice President & Treasurer
PNC BANK, NATIONAL ASSOCIATION,
as a Bank and as Agent
By:
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Title:
FIRST UNION NATIONAL BANK
By:
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Title:
MELLON BANK, N .A.
By:
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Title:
Consent and Waiver Approved By:
PNC :Bank, National Association. as Agent and as a Lender
/s/ Frank A. Pugliese
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By: Frank A. Pugliese, Vice President
Mellon Bank, N.A
/s/ Mark W. Tori
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By: Mark W. Tori, Vice President
First Union National Bank
/s/ Michael J. Kolosowsky
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By: Michael J. Kolosowsky, Vice President