EXHIBIT 10.7
SECOND AMENDMENT
TO
REVOLVING CREDIT AGREEMENT
This SECOND AMENDMENT TO REVOLVING CREDIT AGREEMENT (this "Amendment") is
made and entered into as of the day of August, 1996, by and among
CULLIGAN WATER TECHNOLOGIES, INC., a Delaware corporation (the "Parent"),
CULLIGAN INTERNATIONAL COMPANY, a Delaware corporation ("CIC"), the Subsidiaries
of the Parent and CIC other than the Excluded Subsidiaries (as defined the
Credit Agreement referred to below) (the Parent and CIC and such Subsidiaries
herein referred to collectively as the "Borrowers" and, individually, as a
"Borrower"), THE FIRST NATIONAL BANK OF BOSTON ("FNBB"), a national banking
association, CREDIT LYONNAIS NEW YORK BRANCH ("Credit Lyonnais"), a duly
licensed branch under New York Banking Law of a foreign corporation organized
under the laws of the Republic of France, XXXXX FARGO BANK, NATIONAL ASSOCIATION
("Xxxxx Fargo"), a national banking association, the other Lenders (as defined
in the Credit Agreement referred to below), FNBB as Administrative and Managing
Agent for the Lenders (in such capacity, the "Managing Agent"), and CREDIT
LYONNAIS and XXXXX FARGO as Co-Agents for the Lenders (the "Co-Agents" and,
collectively with the Managing Agent, the "Agents").
WHEREAS, the Borrowers, the Lenders and the Agents are party to a Revolving
Credit Agreement dated as of July 14, 1995, as amended by a First Amendment to
Revolving Credit Agreement dated as of January 29, 1996 (as so amended, the
"Credit Agreement"), pursuant to which the Lenders have extended credit to the
Borrowers on the terms set forth therein;
WHEREAS, the Borrower has requested that the Lenders and the Agents amend
the Credit Agreement, and the Lenders and the Agents are willing to amend the
Credit Agreement on the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the foregoing, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree to amend the Credit Agreement as follows:
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1. Definitions. Capitalized terms used herein without definition that are
defined in the Credit Agreement shall have the meanings assigned to such terms
in the Credit Agreement.
2. Amendments to (S)7.4 of the Credit Agreement. Section 7.4 of the Credit
Agreement is further amended by deleting clause (h) of the proviso therein in
its entirety and replacing it with the following:
"(h) the total cash consideration (including the amount of any Indebtedness
assumed in connection therewith) shall not exceed (A) for 51-99% owned
Subsidiaries (including Excluded Subsidiaries), notwithstanding the
provisions of (S)8.2 hereof, (i) in the event the Leverage Ratio (as
defined in (S)8.2 hereof), as at the end of the fiscal quarter immediately
preceding the proposed acquisition or Investment, as adjusted for all
acquisitions or Investments made since such date plus the proposed
acquisition or Investment (the "Adjusted Leverage Ratio"), shall exceed
3.12:1, $35,000,000 in the aggregate through the term of this Agreement, or
(ii) provided the Adjusted Leverage Ratio shall be greater than 2.50:1 but
shall not exceed 3.12:1, $42,500,000 in the aggregate through the term of
this Agreement, or (iii) provided the Adjusted Leverage Ratio shall not
exceed 2.50:1, $50,000,000 in the aggregate through the term of this
Agreement; or (B) for acquisitions of less than 51% interest in any Person
(including Excluded Subsidiaries), notwithstanding the provisions of (S)8.2
hereof, (i) in the event the Adjusted Leverage Ratio shall exceed 3.12:1,
$15,000,000 in the aggregate through the term of this Agreement, or (ii)
provided the Adjusted Leverage Ratio shall be greater than 2.50:1 but shall
not exceed 3.12:1, $32,500,000 in the aggregate through the term of this
Agreement, or (iii) provided the Adjusted Leverage Ratio shall not exceed
2.50:1, $50,000,000 in the aggregate through the term of this Agreement;
provided that any acquisition or Investment permitted hereunder when made
shall not be required to be sold or otherwise divested because subsequent
thereto the Adjusted Leverage Ratio shall increase from the Adjusted
Leverage Ratio calculated at the time of the making of such acquisition or
Investment; and"
3. Representations and Warranties. The Borrowers jointly and severally
represent and warrant as follows:
(a) The execution, delivery and performance of this Amendment and the
Credit Agreement, as modified by this Amendment, and the transactions
contemplated hereby and thereby (i) are within the corporate authority of
each of the Borrowers,
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(ii) have been duly authorized by all necessary corporate proceedings on
the part of each of the respective Borrowers, (iii) do not conflict with or
result in any material breach or contravention of any provision of law,
statute, rule or regulation to which any Borrower is subject or any
judgment, order, writ, injunction, license or permit applicable to any
Borrower so as to materially adversely affect the assets, business or any
activity of any Borrowers, and (iv) do not conflict with any provision of
the corporate charter or bylaws of any Borrower or any agreement or other
instrument binding upon any Borrower.
(b) The execution, delivery and performance of this Amendment and the
Credit Agreement, as modified by this Amendment, will result in valid and
legally binding obligations of the Borrowers enforceable against each in
accordance with the respective terms and provisions hereof and thereof,
except as enforceability is limited by bankruptcy, insolvency,
reorganization, moratorium or other laws relating to or affecting generally
the enforcement of creditors rights and except to the extent that
availability of the remedy of specific performance or injunctive relief is
subject to the discretion of the court before which any proceeding
therefore may be brought.
(c) The execution, delivery and performance by the Borrowers of this
Amendment and the Credit Agreement, as modified by this Amendment, and the
consummation by the Borrowers of the transactions contemplated hereby and
thereby do not require any approval or consent of, or filing with, any
governmental agency or authority other than those already obtained.
(d) The representations and warranties contained in (S)5 of the Credit
Agreement are true and correct in all material respects as of the date
hereof as though made on and as of the date hereof.
(e) No Default or Event of Default under the Credit Agreement has
occurred and is continuing.
4. Ratification, Affirmation, etc. Except as expressly amended hereby, the
Credit Agreement, the other Loan Documents and all documents, instruments and
agreements related thereto are hereby ratified and confirmed in all respects and
shall continue in full force and effect. Each of the Borrowers hereby affirms
its irrevocable and unconditional acceptance of joint and several liability for
the Obligations as and to the extent set forth in (S)4.13 of the Credit
Agreement.
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This Amendment and the Credit Agreement shall hereafter be read and construed
together as a single document, and all references in the Credit Agreement, any
other Loan Document or any agreement or instrument related to the Credit
Agreement shall hereafter refer to the Credit Agreement as amended by this
Amendment.
5. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK (WITHOUT REFERENCE TO CONFLICT
OF LAWS) AND SHALL TAKE EFFECT AS A SEALED INSTRUMENT IN ACCORDANCE WITH SUCH
LAWS.
6. Counterparts. This Amendment may be executed in any number of
counterparts and by different parties hereto on separate counterparts, each of
which when so executed and delivered shall be an original, but all of which
counterparts taken together shall be deemed to constitute one and the same
instrument.
7. Effectiveness. This Amendment shall become effective upon receipt by the
Managing Agent of requisite counterpart signatures required under (S)26 of the
Credit Agreement. All proceedings in connection with the transactions
contemplated by this Amendment and all documents incident thereto shall be
reasonably satisfactory in substance and form to the Managing Agent, and the
Managing Agent shall have received all information and such counterpart
originals or certified or other copies of such documents as the Managing Agent
may reasonably request.
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IN WITNESS WHEREOF, each of the undersigned have duly executed this
Amendment as an instrument under seal as of the date first set forth above.
THE BORROWERS: CULLIGAN WATER TECHNOLOGIES, INC.
By: /s/ Xxxxxx X. Xxxxxxxxxxx
-------------------------
Title: Vice President
----------------------
CULLIGAN INTERNATIONAL
COMPANY
By: /s/ Xxxxxx X. Xxxxxxxxxxx
-------------------------
Title: Vice President
----------------------
CULLIGAN DES PLAINES VALLEY
WATER CONDITIONING, INC.
CULLIGAN DUTCHESS-PUTNAM
WATER CONDITIONING, INC.
CULLIGAN OF FLORIDA, INC.
CULLIGAN PENINSULA
INDUSTRIAL WATER
CONDITIONING COMPANY
CULLIGAN WATER CONDITIONING,
INC.
CULLIGAN WATER CONDITIONING
OF BATTLE CREEK, INC.
CULLIGAN WATER CONDITIONING
OF XXXXXX, INC.
CULLIGAN WATER CONDITIONING
OF GREATER DETROIT, INC.
CULLIGAN WATER CONDITIONING
OF HOUSTON, INC.
CULLIGAN WATER CONDITIONING
OF ORANGE COUNTY, INC.
CULLIGAN WATER CONDITIONING
OF SOUTH BEND, INC.
By: /s/ Xxxxxxx X. Xxxx
-------------------------
Xxxxxxx X. Xxxx
Treasurer
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CULLIGAN WATER CONDITIONING
OF TIPPECANOE COUNTY, INC.
GREATER CHICAGO CULLIGAN
WATER CONDITIONING, INC.
INDIANA SOFT WATER SERVICE,
INC.
INLAND EMPIRE DEALERSHIP
PROPERTY, INC.
HIGHQUALITY WATER SERVICES,
INC.
DALLAS-FORT WORTH WATER
QUALITY, INC.
ST. LOUIS SOFT WATER SERVICE,
INC.
CWC FINANCE CORP.
CWC INTERNATIONAL, INC.
CWM INTERNATIONAL, INC.
CULLIGAN DISTRIBUTION
SERVICES, INC.
SANTA XXXXXXX DEALERSHIP
PROPERTY, INC.
CWG, INC.
By: /s/ Xxxxxxx X. Xxxx
-------------------------
Xxxxxxx X. Xxxx
Treasurer
EVERPURE, INC.
By: /s/ Xxxxxx X. Xxxxxxxxxxx
-------------------------
Title: Vice President
----------------------
CULLIGAN OF CANADA, LTD.
By: /s/ Xxxxxx X. Xxxxxxxxxxx
-------------------------
Title: Vice President
----------------------
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CULLIGAN WATER CONDITIONING
(ONTARIO) LTD.
By: /s/ Xxxxxx X. Xxxxxxxxxxx
-------------------------------
Title: Vice President
----------------------------
WATER CONDITIONING FINANCE
LIMITED
By: /s/ Xxxxxx X. Xxxxxxxxxxx
-------------------------------
Title: Vice President
----------------------------
CULLIGAN ESPANA X.X.
XXXXXXXX ITALIANA S.p.A.
CULLIGAN INTERNATIONAL (U.K.)
LIMITED
CULLIGAN N.V.
N.V. EVERPURE (EUROPE) X.X.
XXXXXXXX de MEXICO S.A. de C.V.
EVERPURE JAPAN, INC.
CULLIGAN HUNGARY
VIZKEZELESI Rt.
By: /s/ Xxxxxx X. Xxxxxxxxxxx
-------------------------------
Title: Director or Authorized Agent
----------------------------
CULLIGAN WASSERTECHNIK Gmbh
By: /s/ Xxxxxx X. Xxxxxxxxxxx
-------------------------------
Title: Authorized Agent
----------------------------
CULLIGAN FRANCE S.A.
TECHNINO S.A.
SOFADIM, S.A.
By: /s/ Xxxxxx X. Xxxxxxxxxxx
-------------------------------
Title: Authorized Agent
----------------------------
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THE LENDERS: THE FIRST NATIONAL BANK OF
BOSTON, individually and as
Managing Agent
By: /s/ J. Xxx Xxxxxx, Xx.
------------------------
Title: Vice President
---------------------
CREDIT LYONNAIS NEW YORK
BRANCH, individually and as
Co-Agent
By: /s/ Xxxxxx Xxxxxxxxx
------------------------
Title: Senior Vice President
---------------------
XXXXX FARGO BANK,
NATIONAL ASSOCIATION,
individually and as Co-Agent
By: /s/ Xxxx X. Xxxx
------------------------
Title: Vice President
---------------------
BANK OF AMERICA ILLINOIS
By: /s/ Xxxxxxx X. Xxxxxxxx
------------------------
Title: Senior Vice President
---------------------
BANQUE PARIBAS
By: /s/ Xxx X. Xxxxx
------------------------
Title: Vice President
---------------------
By: /s/ Xxxx X. XxXxxxxxx, III
------------------------
Title: Vice President
---------------------
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XXXXXX TRUST AND SAVINGS BANK
By: /s/ R. Xxxxxxx Xxxxxx
------------------------
Title: Vice President
---------------------
LASALLE NATIONAL BANK
By: /s/ Xxxxxxx Xxxxxx
------------------------
Title: Senior Vice President
---------------------
THE BANK OF NOVA SCOTIA
By: /s/ M. D. Xxxxx
------------------------
Title: Agent, Operations
---------------------
UNION BANK
By: /s/ Xxxxx X. Xxxxxxxxxx
------------------------
Title: Vice President
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