Exhibit 10.12





Exhibit 10.12




EXECUTION COPY




AMENDMENT NO. 7

Dated as of April 23, 2009

to

RECEIVABLES PURCHASE AGREEMENT

Dated as of November 30, 2001




This AMENDMENT NO. 7 (this “Amendment”) dated as of April 23, 2009 is entered into
among ENERGY SERVICES FUNDING CORPORATION, a Delaware corporation, as the seller (the
“Seller”), UGI ENERGY SERVICES, INC., a Pennsylvania corporation (“UGI”), as
initial servicer (in such capacity, together with its successors and permitted assigns in such
capacity, the “Servicer”), MARKET STREET FUNDING LLC, a Delaware limited liability company
(as successor to Market Street Funding Corporation) (together with its successors and permitted
assigns, the “Issuer”), and PNC BANK, NATIONAL ASSOCIATION, a national banking association,
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, in connection with this Amendment and concurrently herewith, the Parties are entering
into the Fourth Amended and Restated Fee Letter, dated the date hereof (the “A&R Fee
Letter”); and



WHEREAS, the parties hereto wish to make certain changes to the Agreement as herein provided
below;



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.



2.1 Section 1.6(b) of the Agreement is amended by replacing the rate “2.0% per annum”
where it appears therein with the rate “3.00% per annum”.



2.2 The definition of “Alternate Rate” set forth in Exhibit I to the Agreement
is replaced in its entirety with the following:




“Alternate Rate” for any Settlement Period for any Portion of Capital
of the Purchased Interest means an interest rate per annum equal to: (a) 2.00% per
annum above the Euro-Rate for such Settlement Period, or, in the sole
discretion of the Administrator, (b) the Base Rate for such Settlement Period;
provided, however, that the “Alternate Rate” for any day while a
Termination Event exists shall be an interest rate equal to 3.00% per annum above
the Base Rate in effect on such day.


 


 









 





2.3 The definition of “Concentration Percentage” set forth in Exhibit I to the
Agreement is amended by replacing the percentage “16.00%” where it appears in clause (b)
thereof with the percentage “12.00%”.



2.4 The definition of “Concentration Reserve Percentage” set forth in Exhibit
I to the Agreement is replaced in its entirety with the following:




“Concentration Reserve Percentage” means, at any time, the largest of: (a) the
sum of five largest Group D Obligor Percentages, (b) the sum of the three largest
Group C Obligor Percentages, (c) the sum of two largest Group B Obligor Percentages
and (d) the largest Group A Obligor Percentage.



2.5 The definition of “CP Rate” set forth in Exhibit I to the Agreement is
amended by replacing the percentage “2.00%” where it appears therein with the percentage “3.00%”.



2.6 Clause (a) of the definition of “Defaulted Receivable” set forth in
Exhibit I to the Agreement is amended by replacing the phrase “90 days from the original
invoice date” where it appears therein with the phrase “60 days from the original due date”.



2.7 The definition of “Delinquent Receivable” set forth in Exhibit I to the
Agreement is amended by replacing the phrase “90 days from the original invoice date” where it
appears therein with the phrase “60 days from the original due date”.



2.8 The definition of “Dilution Reserve Percentage” set forth in Exhibit I to
the Agreement is amended by replacing the number “2.0” where it appears therein with the number
“2.25”.



2.9 Clause (d) of the definition of “Eligible Receivable” set forth in
Exhibit I to the Agreement is replaced in its entirety with the following:




(d) (i) that arises under a duly authorized Contract for the sale and delivery
of goods and services in the ordinary course of the Originator’s business or (ii) in
the case of a Receivable arising in connection with the sale or assignment by the
Originator to a Purchasing Utility of a Billing Program Receivable, such Receivable
arises under an Approved Billing Program; provided, however, that
Receivables described in clause (ii) above shall not constitute Eligible
Receivables to the extent that the aggregate Outstanding Balance of such Receivables
exceeds 20% of the aggregate Outstanding Balance of all Eligible Receivables,



2.10 The definition of “Facility Termination Date” set forth in Exhibit I to
the Agreement is amended by replacing the date “April 23, 2009” where it appears in clause
(a) thereof with the date April 22, 2010.


 


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2.11 The definition of “Loss Reserve Percentage” set forth in Exhibit I to the
Agreement is amended by replacing the number “2.0” where it appears therein with the number “2.25”.



2.12 The definition of “Receivable” set forth in Exhibit I to the Agreement is
replaced in its entirety with the following:




“Receivable” means any indebtedness and other obligations (whether or
not earned by performance) owed to the Seller (as assignee of the Originator) or the
Originator by, or any right of the Seller or the Originator to payment from or on
behalf of, an Obligor (including a Purchasing Utility), whether constituting an
account, chattel paper, instrument or general intangible, arising in connection with
(i) property or goods that have been or are to be sold or otherwise disposed of, or
services rendered or to be rendered by the Originator (including, in each case and
without limitation, the sale of electricity or natural gas) or (ii) the sale or
assignment by the Originator to a Purchasing Utility of a Billing Program
Receivable, and, in each case, includes the obligation (if any) to pay any finance
charges, fees and other charges with respect thereto; provided,
however, that “Receivable” shall not include any Billing Program Receivable.
Indebtedness and other obligations arising from any one transaction, including
indebtedness and other obligations represented by an individual invoice or
agreement, shall constitute a Receivable separate from a Receivable consisting of
the indebtedness and other obligations arising from any other transaction.



2.13 The definition of “Yield Reserve Percentage” set forth in Exhibit I to
the Agreement is amended by replacing the number “1.5” where it appears in the formula therein with
the number “2.0”.



2.14 The following defined terms and definitions thereof are added to Exhibit I of the
Agreement in appropriate alphabetical order:




“Approved Billing Program” means any consolidated billing or similar
agreement between a Purchasing Utility and the Originator pursuant to which the
Originator may from time to time sell and/or assign receivables, which agreement has
been approved in writing by the Administrator; provided, that if (i) the
Originator delivers to the Administrator in writing and in accordance with
Section 5.2 a copy of such an agreement (or a substantially final draft
thereof) with a request that it be approved as an “Approved Billing Program” and
(ii) the Administrator does not, on or prior to the date that is ten (10) Business
Days following such delivery, notify the Originator or the Servicer that the
Administrator is withholding such approval, the Administrator shall be deemed to
have approved such agreement as an “Approved Billing Program” in accordance with
this definition. Without limiting the generality of the foregoing, each of the
following agreements shall be an Approved Billing Program: (x) that certain
Consolidated Utility Billing Service and Assignment Agreement, contemplated to be
entered into between Consolidated Edison Company of New York, Inc. and the
Originator, containing terms and conditions in form and substance substantially
similar to those set forth in the draft of such agreement previously delivered by
the Originator to the Administrator on April 7, 2009 and (y) that certain Third
Party Supplier Customer Account Services Master Service Agreement, dated November 6,
2008, by and between Public Service Electric and Gas Company and the Originator, a
copy of which was delivered by the Originator to the Administrator on April 20,
2009.


 


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“Billing Program Receivable” means a Receivable described in clause
(i) of the definition of the term “Receivable”, which is sold and/or assigned by
the Originator to a Purchasing Utility from time to time pursuant to an Approved
Billing Program.




“Days’ Sales Outstanding” means, for any calendar month, an amount
(expressed as a number of days) computed as of the last day of such calendar month
equal to: (a) the average of the Outstanding Balance of all Pool Receivables as of
the last day of each of the three most recent calendar months ended on the last day
of such calendar month divided by (b) (i) the aggregate credit sales made by the
Originator during the three calendar months ended on the last day of such calendar
month divided by (ii) 90.




“Purchasing Utility” means a jurisdictional natural gas or electricity
distribution company.



2.15 Clause (g) of Exhibit V to the Agreement is replaced in its entirety with
the following:




(g) (i) the (A) Default Ratio shall exceed 2.25% or (B) Delinquency Ratio shall
exceed 10.0% or (ii) the average for three consecutive calendar months of (A) the
Default Ratio shall exceed 1.50%, (B) the Delinquency Ratio shall exceed 9.0%, (C)
the Dilution Ratio shall exceed 1.75% or (iii) Days’ Sales Outstanding exceeds 45
days;



2.16 Schedule IV (Location of Records) to the Agreement is replaced in its entirety
with the new Schedule IV attached to this Amendment (which new Schedule reflects the change
of address previously communicated to the Administrator).



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 (including
after giving effect to the filing of the financing statement amendments attached as
Exhibit A hereto) (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);


 


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(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
corporate powers and have been duly authorized by all necessary corporate 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 or the filing of the financing statement
amendments attached as Exhibit A hereto.



SECTION 4. UCC Filings. The Seller hereby authorizes the Issuer (or the Administrator
on its behalf) to file financing statements describing as the collateral covered thereby as “all of
the debtor’s personal property or assets” or words to that effect, notwithstanding that such
wording may be broader in scope than the collateral described in the Agreement. The Administrator
(on the Issuer’s behalf) agrees, and UGI and the Seller authorize the Administrator and the Issuer,
to file (at UGI’s and the Seller’s expense) the UCC-3 financing statement amendments attached as
Exhibit A hereto.



SECTION 5. Effectiveness. This Amendment shall become effective as of the date hereof
when the Administrator shall have received (i) counterparts of this Amendment (whether by facsimile
or otherwise), executed and delivered by each of the parties hereto, (ii) counterparts of the A&R
Fee Letter duly executed by each of the parties thereto, (iii) confirmation that the “Maturity
Extension Fee” has been paid in accordance with and as defined in the A&R Fee Letter and (iv) such
other documents as the Administrator may reasonably request.



SECTION 6. 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 7. 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 8. 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 9. Governing Law. This Amendment, including the rights and duties of the
parties hereto, shall be governed by, and construed in accordance with, the laws of the State of
New York (without giving effect to the conflict of laws principles thereof).


 


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SECTION 10. 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 11. 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 12. 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.



[Signature Pages Follow]






 


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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:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 	

UGI ENERGY SERVICES, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



Amendment No. 7 to

Receivables Purchase Agreement (UGI)





 


S-1









 







	 	 	 	 	 
	 	

MARKET STREET FUNDING LLC

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



Amendment No. 7 to

Receivables Purchase Agreement (UGI)




	 	 	 	 	 



 


S-2









 





	 	 	 	 	 
	 	 	 
	 	 	 
	 	 	 
	 	 	 
	 



	 	 	 	 	 
	 	PNC BANK, NATIONAL ASSOCIATION, as Administrator

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



Amendment No. 7 to

Receivables Purchase Agreement (UGI)






 


S-3









 







SCHEDULE IV

LOCATION OF RECORDS OF SELLER





460 North Gulph Road

King of Prussia, Pennsylvania 19406-2815



1 Meridian Boulevard

Reading, Pennsylvania 19610


 


Schedule IV-1









 





EXHIBIT A




FINANCING STATEMENT AMENDMENTS




(Attached)





 


Exhibit A-1