ELEVENTH AMENDMENT TO CREDIT
AGREEMENT
THIS ELEVENTH AMENDMENT TO CREDIT AGREEMENT is
made as of this 4th day of December, 2008, 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”).
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, an
Eighth Amendment to Credit Agreement dated as of December 1,
2006, a Ninth Amendment to Credit Agreement dated as of
February 28, 2007 and a Tenth Amendment to Credit Agreement
dated as of December 6, 2007 (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 and modify certain interest rate and
fee provisions 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:
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 4, 2008 (the “Effective
Date”) the Credit Agreement is hereby amended as
follows:
(a) The definitions of “Base
Rate”, “Required Banks” and “Termination
Date” in Section 1.1 are hereby amended and restated to
read in full as follows:
““Base Rate”: for any day, a
rate per annum (rounded upwards, if necessary, to the next 1/100th
of 1%) equal to the highest of (a) the Prime Rate in effect on
such day, (b) the Federal Funds Open Rate in effect on such
day plus one half of one percent (0.5%) and (c) the Daily
LIBOR Rate plus seventy five basis points (.75%). If for any reason
the Agent shall have determined (which determination shall be
conclusive absent manifest error) that it is unable to ascertain
the Federal Funds Open Rate for any reason, including the inability
or failure of the Agent to obtain sufficient quotations in
accordance with the definition of such term, the Base Rate shall be
determined without regard to clause (b) of the first sentence
of this definition until the circumstances giving rise to such
inability no longer exist. Any change in the Base Rate due to a
change in the Prime Rate, the Federal Funds Open Rate or the Daily
LIBOR Rate shall be effective on the effective date of such change
in the Prime Rate, the Federal Funds Open Rate or the Daily LIBOR
Rate, as the case may be.
“
Required Banks ”: at any time, (a) Banks the
Exposures of which aggregate at least 51% of the Total Exposure at
such time of the Banks, or (b) if there are no Loans
outstanding, Banks whose Commitments aggregate at least 51% of the
Total Commitment at such time, provided , however ,
that at any time that PNC and/or TD Bank, N.A. (“TD”)
are Banks hereunder, Required Banks must include PNC and
TD.
“
Termination Date ”: the earlier of
(a) December 2, 2009 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) The following definitions of
“Daily LIBOR Rate”, “Federal Funds Open
Rate” and “Published Rate” are hereby added in
Section 1.1 in the appropriate alphabetical order:
““
Daily LIBOR Rate ” shall mean, for any day, the rate
per annum determined by the Agent by dividing (x) the
Published Rate by (y) a number equal to 1.00 minus the
percentage prescribed by the Federal Reserve for determining the
maximum reserve requirements with respect to any eurocurrency
funding by banks on such day.
“
Federal Funds Open Rate ” for any day shall mean the
rate per annum which is the daily federal funds open rate as quoted
by ICAP North America, Inc. (or any successor) as set forth on the
Bloomberg Screen BTMM for that day opposite the caption
“OPEN” (or on such other substitute Bloomberg Screen
that displays such rate), or as set forth on such other recognized
electronic source used for the purpose of displaying such rate as
selected by the Agent (an “Alternate Federal Funds
Source”) (or if such rate for such day does not appear on the
Bloomberg Screen BTMM (or any substitute screen) or on any
Alternate Federal Funds Source, or if there shall at any time, for
any reason, no longer exist a Bloomberg Screen BTMM (or any
substitute screen) or any Alternate Federal Funds Source, a
comparable replacement rate determined by the Agent at such time
(which determination shall be conclusive absent manifest error));
provided , that if such day is not a Business Day, the
Federal Funds Open Rate for such day shall be the Federal Funds
Open Rate on the immediately preceding Business
Day.”
2
“
Published Rate ” shall mean the rate of interest
published each Business Day in The Wall Street Journal “Money
Rates” listing under the caption “London Interbank
Offered Rates” for a one month period (or, if no such rate is
published therein for any reason, then the Published Rate shall be
the eurodollar rate for a one month period as published in another
publication determined by the Agent).
(c) Clause (A) of Section 2.2(b)
is hereby amended and restated to read as follows:
“(A) the Base Rate or”
(d) Section 2.4(b) is hereby amended
and restated as follows:
“(b)
Intentionally Omitted”
(e) Section 2.6(b) is hereby amended
by deleting “twenty basis points (.20%)” and
substituting therefor “seventy five basis points
(.75%).”
(f) Section 3.10(b) of the Credit
Agreement is hereby amended and restated to read in full as
follows:
|
