EXHIBIT 4.01
THIRD AMENDMENT TO
AMENDED AND RESTATED
MULTICURRENCY CREDIT AGREEMENT
AND FIRST OMNIBUS AMENDMENT
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This THIRD AMENDMENT TO AMENDED AND RESTATED MULTICURRENCY CREDIT AGREEMENT
AND FIRST OMNIBUS AMENDMENT (this "Third Amendment") is made and entered into as
of November 10, 1998, by and among UNITED STATES FILTER CORPORATION, a Delaware
corporation with its chief executive office at 00-000 Xxxx Xxxxxx, Xxxx Xxxxxx,
Xxxxxxxxxx 00000 (the "Borrower"), BANKBOSTON, N.A., a national banking
association having its principal place of business at 000 Xxxxxxx Xxxxxx,
Xxxxxx, Xxxxxxxxxxxxx 00000 ("BKB"), DLJ CAPITAL FUNDING, INC. ("DLJ"), ABN AMRO
BANK N.V. ("ABN"), THE BANK OF NEW YORK ("BNY"), BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION ("BOA"), FLEET BANK, N.A. ("Fleet"), NATIONSBANK, N.A.
("NationsBank"), DEUTSCHE BANK AG, NEW YORK AND/OR CAYMAN ISLANDS BRANCHES
("Deutsche Bank"), THE LONG-TERM CREDIT BANK OF JAPAN LTD. (LOS ANGELES AGENCY),
UNION BANK OF CALIFORNIA, N.A., ("Union"), THE SANWA BANK LIMITED, LOS ANGELES
BRANCH ("Sanwa"), THE FIRST NATIONAL BANK OF CHICAGO ("First Chicago") and the
other financial institutions which are party to the Credit Agreement (defined
below) (each a "Lender" and, collectively, the "Lenders"), BKB as Administrative
Agent, FIRST CHICAGO as Documentation Agent, BOA as Syndication Agent, DEUTSCHE
BANK and FLEET as Co-Agents, AND UNION, ABN, BNY and SANWA as Lead Managers.
Capitalized terms used herein without definition shall have the meanings
assigned to such terms in the Credit Agreement.
WHEREAS, the Borrower, the Lenders, and the Agents entered into an Amended
and Restated Multicurrency Credit Agreement dated as of October 20, 1997 (as
amended and in effect from time to time, the "Credit Agreement"), pursuant to
which the lenders extended credit to the Borrower on the terms set forth
therein;
WHEREAS, the Borrower, the Lenders, and the Agents have agreed to amend the
Credit Agreement and other loan documents as 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 and other loan
documents as follows:
1. AMENDMENT TO THE LOAN DOCUMENTS. For the Agreement Regarding Existing
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Letters of Credit between the Borrower and BKB (the "L/C Agreement") and each of
the Loan Documents, any and all references to "Managing Agent" shall be deemed
to be references to "Administrative Agent". The L/C Agreement and each of the
Loan Documents are hereby
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further amended mutatis mutandis as appropriate to reflect the fact that BKB's
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title has been changed from Managing Agent to Administrative Agent.
2. AMENDMENT TO PREAMBLE. The Preamble to the Credit Agreement is hereby
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amended by deleting the Preamble in its entirety and restating it as follows:
"This AMENDED AND RESTATED MULTICURRENCY CREDIT AGREEMENT is made as
of October 20, 1997 among UNITED STATES FILTER CORPORATION, a Delaware
corporation with its chief executive office at 00-000 Xxxx Xxxxxx, Xxxx
Xxxxxx, Xxxxxxxxxx 00000 (the "Borrower"), BANKBOSTON, N.A., a national
banking association having its principal place of business at 000 Xxxxxxx
Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 ("BKB"), DLJ CAPITAL FUNDING, INC.
("DLJ"), ABN AMRO BANK N.V., LOS ANGELES INTERNATIONAL BRANCH ("ABN"), THE
BANK OF NEW YORK ("BNY"), BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION ("BOA"), FLEET BANK, N.A. ("Fleet"), NATIONSBANK, N.A.
("NationsBank") THE INDUSTRIAL BANK OF JAPAN, LIMITED (LOS ANGELES AGENCY)
("IBJ"), DEUTSCHE BANK AG, NEW YORK AND/OR CAYMAN ISLANDS BRANCHES
("Deutsche Bank"), THE LONG-TERM CREDIT BANK OF JAPAN LTD. (LOS ANGELES
AGENCY) ("LTCB"), UNION BANK OF CALIFORNIA, N.A. ("Union"), THE SANWA BANK
LIMITED, LOS ANGELES BRANCH ("Sanwa"), UNICREDITO ITALIANO ("Unicredito"),
BANCA NAZIONALE DEL LAVORO S.P.A., and THE FIRST NATIONAL BANK OF CHICAGO
("First Chicago") (such financial institutions and any financial
institutions which become parties hereto in accordance with (S)22 hereof
are collectively referred to herein as the "Lenders" and individually as a
"Lender"), BKB as administrative and managing agent for the Lenders (in
such capacity, the "Administrative Agent"), FIRST CHICAGO as documentation
agent (the "Documentation Agent"), BOA as syndication agent (the
"Syndication Agent"), DEUTSCHE BANK and FLEET As co-agents (the "Co-Agents"
and, collectively with the Managing Agent, the Documentation Agent, and the
Syndication Agent, the "Agents"), and ABN, UNION, BNY and SANWA as lead
managers (the "Lead Managers")."
3. AMENDMENT TO DEFINITIONS. Section 1.1 is hereby amended by
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(a) inserting the following definitions in their proper alphabetical place:
"Financial L/C(s). Letter(s) of credit where the event which
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triggers payment is financial, such as the failure to pay money, and
not performance related, such as failure to ship a product or provide
a service, as set forth in greater detail in the letter dated March
30, 1995 from the Board of Governors of the Federal Reserve System or
in any applicable directive or letter
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ruling of the Board of Governors of the Federal Reserve System issued
subsequent thereto.
Third Amendment Effective Date. November 10, 1998."
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and (b) deleting the following definitions in their entirety and restating
them as follows:
"Arranger. BancBoston Xxxxxxxxx Xxxxxxxx Inc. (f/k/a BancBoston
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Securities Inc.).
Funded Debt. Consolidated Indebtedness of the Borrower and its
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Subsidiaries (other than Unrestricted Subsidiaries) for borrowed
money, including (without duplication) guarantees of such debt,
recorded on the Consolidated balance sheet of the Borrower and its
Subsidiaries, and including (without duplication) the amount of any
such indebtedness for Capitalized Leases which corresponds to
principal and all contingent Reimbursement Obligations with respect to
outstanding Financial L/Cs (including the Letters of Credit), but
excluding contingent obligations with respect to letters of credit
which are not Financial L/Cs.
Issuing Lender. The Lender(s) issuing Letters of Credit, which
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shall initially be BKB or any of its Affiliates, and such other
Lenders as are agreed to be issuing Lenders by the Borrower and the
Managing Agent.
Pricing Table:
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APPLICABLE APPLICABLE
MARGIN FOR MARGIN FOR
APPLICABLE APPLICABLE BASE RATE EUROCURRENCY
SENIOR PUBLIC FACILITY RATE L/C RATE LOANS LOANS
LEVEL DEBT RATING (PER ANNUM) (PER ANNUM) (PER ANNUM) (PER ANNUM)
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Level I At least BBB+ by Standard 0.1250% (M) 0.3750% 0.0000% 0.3750% (M)
& Poor's 0.1000% (R) 0.4000% (R)
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Level At least BBB by Standard 0.1500% (M) 0.5000% 0.0000% 0.5000% (M)
II & Poor's 0.1250% (R) 0.5250% (R)
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Level At least BBB- by Standard 0.2000% (M) 0.5500% 0.0000% 0.5500% (M)
III & Poor's 0.1500% (R) 0.6000% (R)
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Level At least BB+ by Standard 0.2500% (M) 0.7000% 0.0000% 0.7000% (M)
IV & Poor's 0.2000% (R) 0.7500% (R)
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Level If no other level applies 0.2500% (M) 0.7500% 0.0000% 0.9500% (M)
V 0.2000% (R) 1.0000% (R)
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M = Multicurrency Loans
R = Revolving Credit Loans
The applicable rate or margin for any day shall be determined by the
Senior Public Debt Rating in effect as of that day, provided that
Level II pricing shall be effective from the Third Amendment Effective
Date through the Managing Agent's receipt of the Compliance
Certificate for the quarter ended March 31, 1999, unless a change in
the Senior Public Debt Rating would result in a higher pricing level.
Term Out Date.__October 19, 1999."
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4. AMENDMENTS TO (S)3 (LETTERS OF CREDIT). Section 3 is hereby amended by
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deleting (S)3.6 in its entirety and restating it as follows:
"LETTER OF CREDIT FEE. The Borrower shall pay a fee (the "Letter of
Credit Fee") equal to the Applicable L/C Rate on the Maximum Drawing Amount
to the Managing Agent for the account of the Lenders, to be shared pro rata
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by the Lenders in accordance with their respective Commitment Percentages.
The Borrower shall also pay (a) a fee (the "Issuance Fee") to the Issuing
Lender, for its own account, equal to 0.07% multiplied by the result of (i)
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one (1) minus (ii) such Issuing Lender's Commitment Percentage (expressed
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as a decimal), per annum on the Maximum Drawing Amount of all Letters of
Credit issued by such Issuing Lender, plus (b) its customary administrative
charges and such other fees as agreed between the Borrower and such Issuing
Lender. The Letter of Credit Fee and the Issuance Fee shall be payable for
the number of days each Letter of Credit is outstanding, and shall be
payable quarterly in arrears on the last day of each calendar quarter for
the quarter then ended, and on the Maturity Date."
5. AMENDMENTS TO (S)5 (REVOLVING CREDIT LOANS). Section 5 is hereby
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amended by
(a) deleting (S)5.1 in its entirety and restating it as follows:
"(S)5.1. COMMITMENT TO LEND.
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(a) Subject to the terms and conditions set forth in this
Agreement, each of the Lenders severally agrees to lend to the
Borrower, and the Borrower may borrow and reborrow from time to
time from the Third Amendment Effective Date until the Term Out
Date, upon notice to the Managing Agent given in accordance with
(S)5.3 hereof, such sums in Dollars as are requested by the
Borrower up to a maximum aggregate principal amount outstanding
(after giving effect to all amounts requested) at any one time
equal to such
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Lender's Commitment Percentage of the Revolving Credit
Commitment. In no event shall (a) the aggregate principal
outstanding balance of the Revolving Credit Loans (after giving
effect to all amounts requested) exceed at any one time the
Revolving Credit Commitment, or (b) any Lender be obligated to
fund or maintain Revolving Credit Loans in excess of such
Lender's Commitment Percentage of the Revolving Credit
Commitment. The Revolving Credit Loans shall be made pro rata in
accordance with each Lender's Commitment Percentage.
(b) As of the Term Out Date, the Revolving Credit Commitment
shall terminate, and the outstanding Revolving Credit Loans shall
convert into the Term Loan in accordance with (S)6.1."
and (b) deleting (S)5.4 in its entirety.
6. AMENDMENTS TO (S)6 (THE TERM LOAN). Section 6 is hereby amended by
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deleting (S)6.3 in its entirety and restating it as follows:
"(S)6.3 SCHEDULED REPAYMENTS. The Borrower promises to pay to the
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Managing Agent for the account of the Lenders the principal amount of the
Term Loan in twelve (12) equal quarterly installments, commencing on
December 31, 1999, each equal to 1/12th of the principal balance of the
Revolving Credit Loans outstanding on the Term Out Date, with a final
payment on the Maturity Date in an amount equal to the unpaid balance of
the Term Loan, if any, plus interest thereon."
7. AMENDMENT TO (S)7 (PROVISIONS RELATING TO THE MULTICURRENCY LOANS AND
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REVOLVING CREDIT LOANS). Section 7 is hereby amended by (a) deleting (S)7.1 in
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its entirety and restating it as follows:
"(S)7.1 THE NOTES. The Multicurrency Loans shall be evidenced by
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separate promissory notes of the Borrower in substantially the form of
Exhibit A hereto (each a "Multicurrency Note") each dated as of the
Third Amendment Effective Date and completed with appropriate
insertions, and the Revolving Credit Loans shall be evidenced by
separate promissory notes of the Borrower in substantially the form of
Exhibit D hereto (each a "Revolving Credit Note") each dated as of the
Third Amendment Effective Date and completed with appropriate
insertions. One Multicurrency Note shall be payable to the order of
each Lender in a principal amount equal to such Lender's Commitment
Percentage of the Multicurrency Commitment, and shall represent the
obligation of the Borrower to pay to such Lender such principal amount
(or the outstanding principal amount, if less) plus interest accrued
thereon as set forth below. One Revolving Credit Note
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shall be payable to the order of each Lender in a principal amount
equal to such Lender's Commitment Percentage of the Revolving Credit
Commitment, and shall represent the obligation of the Borrower to pay
to such Lender such principal amount (or the outstanding principal
amount, if less) plus interest accrued thereon as set forth below. The
Borrower irrevocably authorizes each Lender to make or cause to be
made, at or about the time of the Drawdown Date of any Multicurrency
Loan or Revolving Credit Loan or at the time of receipt of any payment
of principal on such Lender's Multicurrency Note or Revolving Credit
Note, an appropriate notation on such Lender's Multicurrency Note
record or Revolving Credit Note record, as the case may be, reflecting
the making of such Loan or (as the case may be) the receipt of such
payment. The outstanding amount of the Multicurrency Loans or
Revolving Credit Loans set forth on such Lender's Multicurrency Note
record or Revolving Credit Note record, as the case may be, shall be
prima facie evidence of the principal amount thereof owing and unpaid
to such Lender, but the failure to record, or any error in so
recording, any such amount on such Lender's Multicurrency Note record
or Revolving Credit Note record shall not limit, increase, or
otherwise affect the obligations of the Borrower hereunder or under
any Multicurrency Note or Revolving Credit Note to make payments of
principal or interest on any Multicurrency Loans or Revolving Credit
Loans advanced to the Borrower and evidenced by such Multicurrency
Note or Revolving Credit Note when due. As of the Third Amendment
Effective Date, all Multicurrency Notes and Revolving Credit Notes
dated as of October 20, 1997 and previously held by the Lenders
pursuant to this Agreement shall be returned to the Borrower."
and (b) adding the following (S)(S)7.5 and 7.6 to the end thereof:
"(S)7.5 LEVERAGE PREMIUM. The Borrower agrees to pay to the
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Managing Agent for the account of the Lenders a premium (the "Leverage
Premium") equal to the outstanding portion of the Total Commitment
multiplied by 0.20%. The Leverage Premium shall be payable initially
for the period from (and including) the Third Amendment Effective Date
through the date of the Managing Agent's receipt of the Compliance
Certificate for the quarter ended March 31, 1999, and thereafter for
each fiscal quarter during which the Leverage Ratio in (S)12.1 exceeds
3.25:1. The Leverage Premium shall be payable quarterly in arrears on
the date of the Managing Agent's receipt of the Compliance Certificate
for the applicable fiscal quarter. The Leverage Premium shall be
distributed pro rata among the Lenders in accordance with each
Lender's Commitment Percentage.
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(S)7.6 EUROPEAN MONETARY UNION.
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(a) The provisions of this section apply from and after, and in
anticipation of, the Euro Availability Date (as defined below).
(b) For purposes of this section, the following terms shall have
the following meanings:
ECU: The unit of account known as the ECU that is from time to
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time used in the European Monetary System.
EMU: The third stage of the economic and monetary union formed
---
pursuant to the EU Treaties.
Euro Availability Date: The later of January 1, 1999, and the
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date on which the ECU is replaced by the Euro in accordance with the
EU Treaties.
Euro Interbank Rate: With respect to any Loan denominated or to
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be denominated in Euros, the rate of interest at which the Reference
Banks are able to obtain deposits for comparable amounts in Euros for
the relevant Interest Period in the London interbank market for a
period comparable to the duration of such Interest Period, as
determined by the Managing Agent.
EU Treaties: The Treaty Establishing the European Economic
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Community, as amended by the Treaty on the European Union (the
Maastrict Treaty).
Euro or e: The currency introduced during the third stage of the
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EMU.
participating member state: Each state described as a
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"participating member state" in the EU Treaties.
(c) If, as a result of the implementation of the EMU,
(i) any Optional Currency ceases to be lawful currency of
the nation issuing such Optional Currency and is replaced by the
Euro as the lawful currency of such nation, or
(ii) any Optional Currency and the Euro are at the same time
recognized by the central bank or comparable authority of the
nation issuing such Optional Currency as lawful currency of such
nation and the Managing Agent or the Majority Lenders shall so
request or, upon the request of
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the Borrower, the Managing Agent or the Majority Lenders shall so
consent, in a notice delivered to the Borrower,
then:
(A) any amount payable hereunder by the Lenders to the
Borrower, or by the Borrower to the Lenders, in such Optional
Currency shall instead be payable in the Euro and the amount so
payable shall be determined by translating the amount payable in
such Optional Currency to the Euro at the exchange rate
recognized by the European Central Bank for the purpose of
implementing the EMU,
(B) the Euro itself shall be an Optional Currency for
purposes of this Agreement, and
(C) if so specified in the notice delivered under the
foregoing clause (ii) or in any subsequent notice referring to
such clause, the Optional Currency recognized at the same time as
the Euro shall no longer be available as an Optional Currency for
purposes of this Agreement, effective at the expiration of the
period of five Business Days following the Borrower's receipt of
such notice. Such notice shall apply to (1) any Loan to be made
or Letter of Credit to be issued, extended or renewed on or after
the expiration of such five Business Day period or (2) any Loan
outstanding at the end of such five Business Day period and
denominated in such Optional Currency, following the expiration
of the Interest Period applicable to such outstanding Loan at the
time of the expiration of such five Business Day period.
(d) The Managing Agent may in its discretion by notice to the
Lenders and the Borrower:
(i) modify the definition of "Business Day" to include a
principal financial center of any participating member state
where Loans to bear interest by reference to the Euro Interbank
Rate are funded, or any amounts are or are to be paid in Euros;
(ii) designate an account or accounts at a bank in a
principal financial center of any participating member state for
receiving payments to the Managing Agent, whether for the account
of the Managing Agent or for the account of the Lenders, in
immediately available funds, in Euros or for disbursing Loans to
bear interest by reference to the Euro Interbank Rate;
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(iii) designate the date or time for fixing the Euro
Interbank Rate for any Interest Period to be consistent with any
practice or convention in the London interbank market;
(iv) designate the fraction for rounding upwards
quotations by Reference Banks used to determine the Euro
Interbank Rate, to be, in the reasonable judgment of the Managing
Agent, as nearly as may be, consistent with the rounding of
quotations by Reference Banks for other Optional Currencies and
also consistent with any practice or convention in the London
interbank market;
(v) designate other mechanics for fixing the Euro
Interbank Rate to be, in the reasonable judgment of the Managing
Agent, as nearly as may be, consistent with the mechanics for
determining rates for other Optional Currencies and also
consistent with any practice or convention in the London
interbank market;
(vi) designate the period of notice from the Borrower to
the Managing Agent required for the Borrower to borrow any Loan
to be denominated in Euros or to convert any Loan denominated in
another Optional Currency to a Loan denominated in Euros;
(vii) designate the basis of accrual of interest, fees or
other amounts to be consistent with any practice or convention in
the London interbank market with respect to amounts calculated or
payable in Euros;
(viii) where this Agreement specifies a minimum amount or
integral multiple thereof, designate what the Managing Agent
considers a reasonably comparable and convenient minimum amount
and integral multiple for the Euro; and
(ix) where this Agreement specifies an amount to be paid
in an Optional Currency that is, under the terms of this Section,
to be paid in Euros, designate a convenient amount in Euros to
account for de minimis rounding.
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(e) Section 8.13(a) shall not apply in the event that an Optional
Currency is not available or an interbank offered rate may not be
quoted for such Optional Currency, solely because such Optional
Currency ceases to be lawful currency of the nation issuing such
Optional Currency and is replaced by the Euro as the lawful currency
of such nation, so long as the Euro is available as an Optional
Currency and the Euro Interbank Rate may be quoted for the Euro.
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(f) The Borrower agrees, at the request of the Majority Lenders,
at the time of or at any time following the implementation of the EMU
and within 30 days following such request, to further amend this
Agreement in such manner as may be mutually agreed upon by the
Borrower and the Majority Lenders in order further to reflect the
implementation of the EMU and to place the parties hereto in the
position they would have been in had the EMU not been implemented.
(g) The Borrower agrees, at the request of any Lender, to
compensate such Lender for any reasonable loss, cost, expense or
reduction in return that shall be incurred or sustained by such Lender
as a result of the implementation of the EMU and that would not have
been incurred or sustained but for the transactions provided for
herein. A certificate of a Lender setting forth (i) the amount or
amounts necessary to compensate such Lender, (ii) a description of the
nature of the loss or expense sustained or incurred by such Lender as
a consequence thereof and (iii) a reasonably detailed explanation of
the calculation thereof shall be delivered to the Borrower and shall
be conclusive absent manifest error. The Borrower shall pay such
Lender the amount shown as due on any such certificate within 10 days
after receipt thereof."
8. AMENDMENT TO (S)11.1 (RESTRICTIONS ON INDEBTEDNESS). Section 11.1(g)
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is hereby amended by deleting the words " the greater of $150,000,000 or"
therein.
9. AMENDMENT TO (S)11.2 (RESTRICTIONS ON LIENS). Section 11.2 is hereby
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amended by adding the following paragraph immediately following (S)11.2(h)
therein:
"The Borrower covenants and agrees that if it or any of its
Subsidiaries shall create or assume any lien upon any of their respective
properties or assets, whether now owned or hereafter acquired, other than
Permitted Liens (unless prior written consent shall have been obtained from
the Lenders), the Borrower will make or cause to be made effective
provisions whereby the Obligations will be secured by such lien equally and
ratably with any and all other Indebtedness thereby secured so long as such
other Indebtedness shall be so secured; provided, that the covenants of the
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Borrower contained in this sentence shall only be in effect for so long as
the Borrower shall be similarly obligated under any other Indebtedness;
provided, further, that an Event of Default shall occur for so long as such
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other Indebtedness becomes secured notwithstanding any actions taken by the
Borrower to ratably secure the Obligations hereunder."
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10. AMENDMENTS TO (S)12 (FINANCIAL COVENANTS). Section 12 is hereby
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amended by deleting (S)(S)12.1 12.3 in their entirety and restating them as
follows:
"(S)12.1 LEVERAGE RATIO. As of the end of any fiscal quarter
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commencing with the fiscal quarter ending September 30, 1998, the ratio of
(a) Funded Debt less cash and cash equivalents in excess of $10,000,000 to
(b) EBITDA for the four quarters ending on such date (the "Leverage Ratio")
shall not exceed the ratio set forth below for the applicable period:
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PERIOD RATIO
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Ending 9/30/98 4.75:1
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10/1/98 through 4.25:1
3/31/99
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4/1/99 through 4.00:1
6/30/99
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Thereafter 3.25:1
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(S)12.2 INTEREST COVERAGE RATIO. As of the end of any fiscal quarter
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commencing with the fiscal quarter ending September 30, 1998 the ratio of
(a) EBIT for the four quarters ending on such date to (b) Consolidated
Total Interest Expense for such period shall not be less than the ratio set
forth below for the applicable period:
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PERIOD RATIO
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Ending 9/30/98 2.50:1
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Thereafter 3.50:1
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(S)12.3 DEBT TO CAPITAL RATIO. As at the end of any fiscal quarter
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commencing with the fiscal quarter ending September 30, 1998 the ratio of
(a) Funded Debt to (b) Funded Debt plus total shareholders' equity
(excluding any capital contributions from Unrestricted Subsidiaries,
including net income earned by Unrestricted Subsidiaries, which is
reflected in consolidated retained earnings) shall not exceed the
percentage set forth below for the applicable period:
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PERIOD RATIO
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Ending 6/30/99 60%
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Thereafter 55%
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11. AMENDMENTS TO (S)30 (CONSENTS, AMENDMENTS, WAIVERS, ETC.). Section 30
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is hereby amended by deleting clauses (a) and (d) thereof in their entirety and
restating them as follows:
"(a) without the written consent of the Borrower and the written
consent of all of the Lenders (i) the rate of interest on the Notes and the
amount of Facility Fees, Letter of Credit Fees or Leverage Premium
hereunder may not be decreased, and (ii) the amount of any Reimbursement
Obligations, the amount of the Commitments of the Lenders, the Revolving
Credit Commitment, the Multicurrency Commitment, the Total Commitment, and
the amount or date of any scheduled payment or mandatory prepayment
hereunder may not be changed;
(d) the amount of any Letter of Credit Fees payable for any Issuing
Lender's account may not be decreased without the written consent of the
Issuing Lender, and."
12. AMENDMENT TO SCHEDULE 2 (BANKS; COMMITMENT PERCENTAGES; ADDRESSES).
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Schedule 2 is hereby amended by deleting such schedule in its entirety and
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substituting the Schedule 2 attached hereto in place thereof. The parties
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hereto hereby acknowledge and agree that each reference to Schedule 2 in the
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Credit Agreement or any other Loan Document shall henceforth be a reference to
Schedule 2 attached hereto or as subsequently amended.
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13. CONDITIONS TO EFFECTIVENESS. This Third Amendment shall become
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effective upon the satisfaction of the following conditions:
(a) The execution and delivery of this Third Amendment by the parties
hereto;
(b) Each of the Lenders shall have received an executed original of such
Lender's Revolving Credit Note in form and substance satisfactory to such Lender
signed by the Borrower;
(c) Each of the Lenders shall have received an executed original of such
Lender's Multicurrency Note in form and substance satisfactory to such Lender
signed by the Borrower;
(d) The Lenders shall have received opinions of counsel to the Borrower as
to the due authorization and enforceability of the Third Amendment, the
Multicurrency Notes and the Revolving Credit Notes issued to the Lenders
pursuant to the Third Amendment, the due organization, legal existence, and good
standing of the Borrower, and all other matters as the Lenders may reasonably
request;
(d) The Borrower shall have delivered to the Managing Agent financial
projections, including a balance sheet, income statement and cash flow
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statement beginning with the period ending September 30, 1998 and for the
following five (5) fiscal years thereafter, in form and substance reasonably
satisfactory to the Managing Agent; and
(e) The Borrower shall have paid to the Managing Agent, for the pro rata
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benefit of the Lenders, an amendment fee in an amount equal to one tenth of one
percent (0.10%) of the Total Commitment.
14. NO EVENT OF DEFAULT. The Borrower represents and warrants to the
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Agents and the Lenders that after giving effect to this Third Amendment, no
Default or Event of Default has occurred and is continuing.
15. RATIFICATION, ETC. Except as expressly amended hereby, the Credit
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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. This Third 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 Third Amendment.
16. GOVERNING LAW. THIS THIRD AMENDMENT SHALL BE GOVERNED BY AND
-------------
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS
(WITHOUT REFERENCE TO CONFLICT OF LAWS) AND SHALL TAKE EFFECT AS A SEALED
INSTRUMENT IN ACCORDANCE WITH SUCH LAWS.
17. COUNTERPARTS. This Third 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.
IN WITNESS WHEREOF, each of the undersigned has duly executed this Third
Amendment under seal as of the date first set forth above.
THE BORROWER:
-------------
UNITED STATES FILTER
CORPORATION
By: /s/ Xxxxx X. Xxxxxx
_______________________________
Name: Xxxxx X. Xxxxxx
Title: Executive Vice President, Chief Financial Officer
THE LENDERS:
------------
BANKBOSTON, N.A., individually and DLJ CAPITAL FUNDING, INC.
as Administrative Agent
/s/ Xxxxxxx X. XxXxxxxxx /s/ Xxxx X. Xxxxx
By:_______________________________ By:____________________________
Name: Xxxxxxx X. XxXxxxxxx Name: Xxxx X. Xxxxx
Title: Director Title: Vice President
ABN AMRO BANK N.V. DEUTSCHE BANK AG, NEW YORK
AND/OR CAYMAN ISLANDS BRANCHES
/s/ Xxxxx X. Xxxxxxx /s/ Xxxx X. Xxxxxxxx
By:______________________________ By:____________________________
NAME: Xxxxx X. Xxxxxxx NAME: Xxxx X. Xxxxxxxx
TITLE: Vice President TITLE: Vice President
/s/ Xxxxxxxx X. Xxxxxx /s/ Xxxxx X. Xxxxxxx
By:_______________________________ By:____________________________
NAME: Xxxxxxxx X. Xxxxxx NAME: Xxxxx X. Xxxxxxx
TITLE: Senior Vice President TITLE: Director
Branch Manager
THE BANK OF NEW YORK BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
/s/ Xxxxxxxx Xxxxxxx /s/ Xxxx X. XxXxxxxx
By:_______________________________ By:____________________________
NAME: Xxxxxxxx Xxxxxxx NAME: Xxxx X. XxXxxxxx
TITLE: Assistant Vice President TITLE: Vice President
UNICREDITO ITALIANO FLEET BANK, N.A.
/s/ Xxxxxxxxxx Xxxxxxx /s/ Xxxxxxxxxxx Xxxxxxx
BY:_______________________________ By:____________________________
NAME: Xxxxxxxxxx Xxxxxxx NAME: Xxxxxxxxxxx Xxxxxxx
TITLE: First Vice President TITLE: Vice President
/s/ Xxxxxx X. Abbos
BY:_______________________________
NAME: Xxxxxx X. Abbos
TITLE: Assistant Vice President
NATIONSBANK, N.A. THE LONG-TERM CREDIT
BANK OF JAPAN LTD.
(LOS ANGELES AGENCY)
/s/ Xxxx X. XxXxxxxx /s/ Xxxxxx Xxxxxxx
By:_______________________________ By:____________________________
NAME: Xxxx X. XxXxxxxx NAME: Xxxxxx Xxxxxxx
TITLE: Vice President TITLE: Deputy General
Manager
UNION BANK OF THE SANWA BANK LIMITED,
CALIFORNIA, N.A. LOS ANGELES BRANCH
/s/ Xxxxxxx X. Xxxxxxx /s/ Xxxxxxx Xxxx
By:_______________________________ By:____________________________
NAME: Xxxxxxx X. Xxxxxxx NAME: Xxxxxxx Xxxx
TITLE: Vice President TITLE: Vice President
BANCA NAZIONALE DEL LAVORO S.P.A. THE INDUSTRIAL BANK OF JAPAN,
LIMITED (LOS ANGELES AGENCY)
/s/ X. Xxxxxxx /s/ Xxxxxxxx X. Xxxxxxxx
By:_______________________________ By:____________________________
NAME: X. Xxxxxxx NAME: Xxxxxxxx X. Xxxxxxxx
TITLE: Assistant Vice President TITLE: SVP & SDGM
/s/ X. Xxxxxxxxx
By:_______________________________
NAME: X. Xxxxxxxxx
TITLE: First Vice President
THE FIRST NATIONAL BANK OF CHICAGO
/s/ Xxxx X. Xxxxx
By:___________________________
NAME: Xxxx X. Xxxxx
TITLE: First Vice President
SCHEDULE 2
----------
BANKS; COMMITMENT PERCENTAGES; ADDRESSES
----- ----------------------------------
-----------------------------------------------------------------------------
COMMITMENT
LENDER PERCENTAGE
-----------------------------------------------------------------------------
BANKBOSTON, N.A. 20.0000%
000 XXXXXXX XXXXXX, X/X 00-00-00
XXXXXX, XX 00000
ATTN: XXXXXXX X. XXXXXXXXX
TEL: 000.000.0000
FAX: 000.000.0000
-----------------------------------------------------------------------------
DEUTSCHE BANK AG, NEW YORK AND/OR CAYMAN
ISLANDS BRANCHES 10.0000%
00 XXXX 00XX XXXXXX, 00XX XXXXX
XXX XXXX, XX 00000
ATTN: XXXX XXXXXXXX
TEL: 000.000.0000
FAX: 000.000.0000
------------------------------------------------------------------------------
FIRST CHICAGO 10.0000%
000 X. XXXXXXXX XXXXXX, 0XX XXXXX
XXX XXXXXXX, XX 00000-0000
ATTN: XXXX XXXXXXXX
TEL: 000.000.0000
FAX: 000.000.0000
------------------------------------------------------------------------------
FLEET BANK, N.A. 10.0000%
0000 XXXXXX XX XXX XXXXXXXX, 0XX XXXXX
XXX XXXX, XX 00000
ATTN: XXXXXXXXXXX XXXXXXX
TEL: 000.000.0000
FAX: 000.000.0000
------------------------------------------------------------------------------
NATIONSBANK, N.A. 10.0000%
000 XXXXX XXXXXX XXXXXX, XXXXX 0000
XXX XXXXXXX, XX 00000
ATTN: XXXX XXXXXXXX
TEL: 000.000.0000
FAX: 000.000.0000
------------------------------------------------------------------------------
-2-
------------------------------------------------------------------------------
COMMITMENT
LENDER PERCENTAGE
------------------------------------------------------------------------------
BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION 7.3333%
000 XXXXX XXXXXX XXXXXX, XXXXX 0000
XXX XXXXXXX, XX 00000
ATTN: XXXX XXXXXXXX
TEL: 000.000.0000
FAX: 000.000.0000
------------------------------------------------------------------------------
UNION BANK OF CALIFORNIA, N.A. 7.3333%
000 XXXXX XXXXXXXX, 00XX XXXXX
XXX XXXXXXX, XX 00000
ATTN: XXXXX XXXXXXX
TEL: 000.000.0000
FAX: 000.000.0000
------------------------------------------------------------------------------
ABN AMRO BANK N.V., LOS ANGELES INTERNATIONAL
BRANCH 6.6667%
000 XXXXX XXXXX XXXXXX, XXXXX 0000
XXX XXXXXXX, XX 00000-0000
ATTN: XXXXX XXXXXXX
TEL: 000.000.0000
FAX: 000.000.0000
------------------------------------------------------------------------------
THE BANK OF NEW YORK 4.6667%
00000 XXXXXXXX XXXXXXXXX, XXXXX 0000
XXX XXXXXXX, XX 00000
ATTN: XXXXXXXX XXXXXXX
TEL: 000.000.0000
FAX: 000.000.0000
------------------------------------------------------------------------------
THE SANWA BANK, LIMITED, LOS ANGELES BRANCH 4.6667%
XXXXX XXXX XXXXX, X0-0
000 XXXXX XXXXXXXX XXXXXX
XXX XXXXXXX, XX 00000
ATTN: XXXXXXX XXXX
TEL: 000.000.0000
FAX: 000.000.0000
------------------------------------------------------------------------------
-3-
------------------------------------------------------------------------------
COMMITMENT
LENDER PERCENTAGE
------------------------------------------------------------------------------
UNICREDITO ITALIANO 3.3333%
000 XXXX XXXXXX
XXX XXXX, XX 00000
ATTN: XXXXXXXXXX XXXXXXX
TEL: 000.000.0000
FAX: 000.000.0000
------------------------------------------------------------------------------
BANCA NAZIONALE DEL LAVORO 2.0000%
00 X. 00XX XXXXXX
XXX XXXX, XX 00000
ATTN: XXXXXXX XXXXXXX
TEL: 000.000.0000
FAX: 000.000.0000
------------------------------------------------------------------------------
DLJ CAPITAL FUNDING, INC. 1.3333%
000 XXXX XXXXXX, 0XX XXXXX
XXX XXXX, XX 00000
ATTN: XXXX XXXXX
TEL: 000.000.0000
FAX: 000.000.0000
------------------------------------------------------------------------------
THE INDUSTRIAL BANK OF JAPAN, LIMITED (LOS
ANGELES AGENCY) 1.3333%
000 XXXXX XXXXX XXXXXX, XXXXX 0000
XXX XXXXXXX, XX 00000
ATTN: J. XXXXX XXXXXX
TEL: 000.000.0000
FAX: 000.000.0000
------------------------------------------------------------------------------
THE LONG-TERM CREDIT BANK OF JAPAN, LTD. (LOS
ANGELES AGENCY) 1.3333%
000 XXXXX XXXXX XXXXXX, XXXXX 0000
XXX XXXXXXX, XX 00000
ATTN: XXXXX READ
TEL: 000.000.0000
FAX: 000.000.0000
------------------------------------------------------------------------------
TOTAL 100.0000%
------------------------------------------------------------------------------
