Exhibit 4.23
FOURTH AMENDMENT TO REVOLVING CREDIT AGREEMENT
FOURTH AMENDMENT TO REVOLVING CREDIT AGREEMENT ("Fourth Amendment"),
dated as of January 15, 1998, 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, and as further amended by a
Third Amendment to Revolving Credit Agreement dated as of December 20, 1996 (as
amended, modified and/or extended, the "Loan Agreement"), pursuant to which the
Banks agreed to make available to the Borrower certain credit facilities upon
the terms and conditions specified in the Loan Agreement; 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 Fourth 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) The definition of "Revolving Credit Commitment Termination
Date" in Article I of the Loan Agreement is hereby amended in its entirety to
read as follows:
"Revolving Credit Commitment Termination Date" means
the earlier of (A) January 1, 2000, (B) the date on which the
Revolving Credit Commitments are terminated in whole pursuant
to Section 2.03(a) hereof, or (C) the date the Revolving
Credit Commitments are terminated pursuant to Article VIII
hereof.
(b) 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), as such amount may have been
reduced under Section 2.03 hereof (the "Revolving Credit
Commitment").
(c) Schedule 1.01(a) is hereby replaced with Third 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 Third Replacement Schedule
1.01(a).
3. Conditions. To induce the Agent and Banks to enter into this Fourth
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
Fourth Amendment, a Fourth Allonge to Revolving Credit Note in favor of each of
the Banks (the "Fourth 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. The 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 Fourth Amendment and the Fourth 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 Fourth
Amendment and the Fourth 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 Fourth Amendment and the Fourth 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 Fourth 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 Fourth Amendment shall be governed by and construed
according to the laws of the Commonwealth of Pennsylvania.
(c) This Fourth Amendment shall inure to the benefit of, and
be binding upon, the parties hereto and their respective successors and
permitted assigns.
(d) This Fourth 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 Fourth Amendment it shall be
necessary only to produce one counterpart.
(e) This Fourth 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 Fourth 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: Patricia M. Mycek By Michael P. Graham
------------------------- -------------------------------
Name: Patricia M. Mycek Name: Michael P. Graham
Title: Secretary Title: Senior Vice President
- Finance & Treasurer
Address: 762 Lancaster Avenue
Bryn Mawr, PA 19010
Tel. No: (610) 645-1087
Telecopy: (610) 645-1061
MELLON BANK, N.A.
By: Anthony R. Caringi
------------------------------
Name: Anthony R. Caringi
Title: Vice President
Address: Plymouth Meeting
Executive Campus
610 West Germantown Pike
Suite 200
Plymouth Meeting, PA 19462
Tel. No: (610) 941-4182
Telecopy: (610) 941-4136
PNC BANK, NATIONAL ASSOCIATION
By: Frank Pugliese
------------------------------
Name: Frank Pugliese
Title: Banking Officer
Address: Valley Forge Regional
Banking Center, Suite 200
1000 West Lakes Drive
Berwyn, PA 19312
Tel. No: (610) 725-5731
Telecopy: (610) 725-5799
FIRST UNION NATIONAL BANK, (formerly
known as First Union National Bank of
North Carolina) (successor to First
Fidelity Bank, National Association)
By: Michael J. Kolosowsky
------------------------------------
Name: Michael J. Kolosowsky
Title: Vice President
Address: One First Union Center
301 South College Street
Charlotte, NC 28288
Tel. No: (704) 383-0510
Telecopy: (704) 383-6670
CORESTATES BANK, N.A. (successor to
Meridian Bank)
By: Anthony D. Braxton
------------------------------------
Name: Anthony D. Braxton
Title: Vice President
Address: FC 1-8-11-28
1339 Chestnut Street
P.O. Box 7618
Philadelphia, PA 19101-7618
Tel. No: (215) 786-4353
Telecopy: (215) 786-7721
THIRD REPLACEMENT SCHEDULE 1.01(a)
Name and Address Amount of Commitment
of Bank for Revolving Credit Loans Percentage
---------------- -------------------------- ----------
1. Mellon Bank, N.A. $31,666,666.67 63 1/3%
Plymouth Meeting
Executive Campus
610 West Germantown Pike
Suite 200
Plymouth Meeting, PA 19462
Attn: Anthony R. Caringi
Vice President
Tel: (610) 941-4182
Fax: (610) 941-4136
Mellon Bank, N.A.
Attn: Loan Administration,
Flossie Bowers
Mellon Independence Center
199-5220
701 Market Street
Philadelphia, PA 19106
Tel: (215) 553-3414
Fax: (215) 553-4789 or
(215) 553-1016
2. PNC Bank, National Association $6,666,666.66 13 1/3%
Valley Forge Regional Banking
Center, Suite 200
1000 West Lakes Drive
Berwyn, PA 19312
Attn: Frank Pugliese
Banking Officer
Tel: (610) 725-5731
Fax: (610) 725-5799
3. First Union National Bank of $6,666,666.67 13 1/3%
North Carolina
One First Union Center
301 South College Street
Charlotte, NC 28288
Attn: Michael J. Kolosowsky
Vice President
Tel: (704) 383-0510
Fax: (704) 383-6670
4. CoreStates Bank, N.A. $5,000,000.00 10 %
FC 1-8-11-28
1339 Chestnut Street
P.O. Box 7618
Philadelphia, PA 19101-7618
--------------
TOTAL REVOLVING CREDIT
COMMITMENTS: $50,000,000.00 100 %
============== ===
FOURTH ALLONGE TO REVOLVING CREDIT NOTE
ENDORSEMENT SEPARATE FROM INSTRUMENT
BORROWER: Philadelphia Suburban Water Company
PAYEE: Mellon Bank, N.A.
DATE OF NOTE: March 17, 1994
DUE DATE (AS AMENDED): January 1, 2000
ORIGINAL PRINCIPAL
AMOUNT: $12,666,666.67
PRINCIPAL AMOUNT
(AS AMENDED): $31,666,666.67
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 increasing the
maximum principal amount permitted to be borrowed thereunder to $31,666,666.67.
IN WITNESS WHEREOF, the undersigned, intending to be legally
bound, has caused this Fourth Allonge to be executed by its duly authorized
officer as of the 15th day of January, 1998.
Attest: PHILADELPHIA SUBURBAN WATER COMPANY
By: Patricia M. Mycek By: Michael P. Graham
--------------------- ---------------------
Michael P. Graham
Senior Vice President -
Finance and Treasurer
STATE OF Pennsylvania : SS.
COUNTY OF Montgomery :
On the 15th day of January, 1998, before me, the subscriber, a Notary
Public in and for the State and County aforesaid, personally appeared Michael P.
Graham, 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.
Suzanne Falcone
---------------
Notary Public
My Commission expires:
August 27, 2001
FOURTH ALLONGE TO REVOLVING CREDIT NOTE
ENDORSEMENT SEPARATE FROM INSTRUMENT
BORROWER: Philadelphia Suburban Water Company
PAYEE: First Union National Bank, formerly known as First
Union National Bank of North Carolina (successor to
First Fidelity Bank, National Association)
DATE OF NOTE: March 17, 1994 `
DUE DATE (AS AMENDED): January 1, 2000
ORIGINAL PRINCIPAL
AMOUNT: $2,666,666.67
PRINCIPAL AMOUNT
(AS AMENDED): $6,666,666.67
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 increasing the
maximum principal amount permitted to be borrowed thereunder to $6,666,666.67.
IN WITNESS WHEREOF, the undersigned, intending to be legally
bound, has caused this Fourth Allonge to be executed by its duly authorized
officer as of the 15th day of January, 1998.
Attest: PHILADELPHIA SUBURBAN WATER
COMPANY
By: Patricia M. Mycek By: Michael P. Graham
---------------------- -----------------------
Michael P. Graham
Senior Vice President -
Finance and Treasurer
STATE OF Pennsylvania : SS..
COUNTY OF Montgomery :
On the 15th day of January, 1998, before me, the subscriber, a Notary
Public in and for the State and County aforesaid, personally appeared Michael P.
Graham, 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.
Suzanne Falcone
---------------
Notary Public
My Commission expires:
August 27, 2001
FOURTH ALLONGE TO REVOLVING CREDIT NOTE
ENDORSEMENT SEPARATE FROM INSTRUMENT
BORROWER: Philadelphia Suburban Water Company
PAYEE: CoreStates Bank, N.A. (successor to Meridian Bank)
DATE OF NOTE: March 17, 1994
DUE DATE (AS AMENDED): January 1, 2000
ORIGINAL PRINCIPAL
AMOUNT: $3,000,000.00
PRINCIPAL AMOUNT
(AS AMENDED): $5,000,000.00
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 increasing the
maximum principal amount permitted to be borrowed thereunder to $5,000,000.00.
IN WITNESS WHEREOF, the undersigned, intending to be legally
bound, has caused this Fourth Allonge to be executed by its duly authorized
officer as of the 15th day of January, 1998.
Attest: PHILADELPHIA SUBURBAN WATER
COMPANY
By: Patricia M. Mycek By: Michael P. Graham
------------------- -------------------------------
Michael P. Graham
Senior Vice President -
Finance and Treasurer
STATE OF Pennsylvania : SS..
COUNTY OF Montgomery :
On the 15th day of January, 1998, before me, the subscriber, a Notary
Public in and for the State and County aforesaid, personally appeared Michael P.
Graham, 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.
Suzanne Falcone
---------------
Notary Public
My Commission expires:
August 27, 2001
FOURTH ALLONGE TO REVOLVING CREDIT NOTE
ENDORSEMENT SEPARATE FROM INSTRUMENT
BORROWER: Philadelphia Suburban Water Company
PAYEE: PNC Bank, National Association
DATE OF NOTE: March 17, 1994
DUE DATE (AS AMENDED): January 1, 2000
ORIGINAL PRINCIPAL
AMOUNT: $4,000,000.00
PRINCIPAL AMOUNT
(AS AMENDED): $6,666,666.66
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 increasing the
maximum principal amount permitted to be borrowed thereunder to $6,666,666.66.
IN WITNESS WHEREOF, the undersigned, intending to be legally
bound, has caused this Fourth Allonge to be executed by its duly authorized
officer as of the 15th day of January, 1998.
Attest: PHILADELPHIA SUBURBAN WATER COMPANY
By: Patricia M. Mycek By: Michael P. Graham
-------------------- -------------------------------
Michael P. Graham
Senior Vice President -
Finance and Treasurer
STATE OF Pennsylvania : SS..
COUNTY OF Montgomery :
On the 15th day of January, 1998, before me, the subscriber, a Notary
Public in and for the State and County aforesaid, personally appeared Michael P.
Graham, 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.
Suzanne Falcone
---------------
Notary Public
My Commission expires:
August 27, 2001
PHILADELPHIA SUBURBAN WATER COMPANY
Secretary's Certificate
I, the undersigned, Corporate Secretary of PHILADELPHIA SUBURBAN WATER
COMPANY (the "Company"), a corporation organized under the laws of the
Commonwealth of Pennsylvania, DO HEREBY CERTIFY that by Unanimous Consent of the
Board of Directors of said Company dated January 7, 1998, the resolution
attached to this Secretary's Certificate as Exhibit A was unanimously adopted
and has not been modified or rescinded and is now in full force and effect; and
that the same is not in contravention or in conflict with the By-laws or
Articles of Incorporation of said Company and is in accord therewith and
pursuant thereto.
IN WITNESS WHEREOF, I have hereunto set my hand and the seal of said
Company this 19th January, 1998.
Patricia M. Mycek
--------------------
Patricia M. Mycek
Secretary
[CORPORATE SEAL]