EXHIBIT 10.31
SECOND AMENDMENT
SECOND AMENDMENT, dated as of December 2, 2003 (this
"Amendment"), with respect to the Credit Agreement, dated as of November 22,
2002 (as amended by the Firs Amendment, dated as of August 7, 2003, and as may
be further amended from time to time, the "Credit Agreement"), among NATIONAL
WATERWORKS HOLDINGS, INC., a Delaware corporation ("Holdings"), NATIONAL
WATERWORKS, INC., a Delaware corporation (the "Borrower"), the several banks and
other financial institutions or entities from time to time parties to the Credit
Agreement (the "Lenders"). X.X. XXXXXX SECURITIES INC. and XXXXXXX SACHS CREDIT
PARTNERS L.P., as co-syndication agents, GENERAL ELECTRIC CAPITAL CORPORATION
and ANTARES CAPITAL CORPORATION, as co-documentation agents, and UBS AG,
STAMFORD BRANCH, as administrative agent (the "Administrative Agent").
WITNESSETH:
WHEREAS, pursuant to the Credit Agreement, the Lenders have
agreed to make, and have made, certain loans and other extensions of credit to
the Borrower.
WHEREAS, the Borrower has requested that certain other
provisions of the Credit Agreement be modified in the manner provided for in
this Amendment.
NOW, THEREFORE, for valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and in consideration of the
premises, the parties hereto hereby agree as follows:
SECTION I AMENDMENTS
1.1. Definitions. Unless otherwise defined herein, terms defined in
the Credit Agreement shall have their defined meanings when used herein.
1.2. Amendments to Section 1.1.
(a) The definition of "Consolidated EBITDA" in Section 1.1 of
the Credit Agreement is hereby amended by (i) deleting the word "and" prior to
clause (h) thereof and (ii) adding the following new clause (i) immediately
after clause (h) thereof:
"and (i) any fees, expenses and other charges (including,
without limitation, any consent fees) associated with the
payment of the dividend permitted by Section 7.6(j)"-
(b) The definition of "Consolidated Interest Expense" in
Section 1.1 of the Credit Agreement is hereby amended by adding the following
sentence at the end of such definition:
"Notwithstanding the foregoing, Consolidated Interest Expense
shall not include (x) any fees, expenses and other charges
(including, without limitation, any consent fees) associated
with the payment of the dividend permitted by Section 7.6(j)
and (y) for purposes of calculating Consolidated Interest
Expense for each fiscal quarter ended on or after September
30, 2003, any fees, expenses and other charges (including,
without limitation, consent fees, amendment fees, prepayment
fees and fees paid to the Agents hereunder) associated with
Borrower incurring the Replacement Tranche B Term Loans and
prepaying the Tranche B Term Loans with the proceeds of the
Replacement Tranche B Term Loans."
1.3. Amendment to Section 2.2. Section 2.2 of the Credit Agreement
is hereby amended by inserting the phrase "made pursuant to Section 2.1(a)A"
immediately after the words "Replacement Tranche B Term Loans" in each of the
last two sentences of such Section.
1.4. Amendment to Section 2.11. Paragraph (d) of Section 2.11 of
the Credit Agreement is hereby amended by adding the following new proviso at
the end of the first sentence of such Section:
"provided, however, that for the purpose of calculating Excess
Cash Flow for any fiscal year (x) during which a dividend
shall have been paid pursuant to Section 7.6(j) or (y) where a
dividend shall have been paid pursuant to Section 7.6(j)
following the end of such fiscal year but prior to the Excess
Cash Flow Application Date in the next succeeding fiscal year,
Consolidated Net Income for such fiscal year, in the case of
clause (x) and clause (y) above, shall be decreased by an
amount equal to (i) the amount of such dividend (to the extent
that such amount was not deducted from Consolidated Net Income
for the prior fiscal year pursuant to this proviso), less (ii)
the amount of any Indebtedness incurred to finance the payment
of such dividend (other than any Revolving Loans permitted by
such Section 7.6(j))."
1.5. Amendments to Section 7.6. Section 7.6 of the Credit Agreement
is hereby amended by (a) deleting the word "and" at the end of paragraph (h)
thereof, (b) deleting the period at the end of paragraph (i) thereof and (c)
adding the following new paragraph (j) immediately after paragraph (i):
"(j) so long as no Default or Event of Default shall have
occurred and be continuing or would result therefrom, the
Borrower may, at any time and from time to time, pay a
dividend, and Holdings may use the amount of any such dividend
for any purpose not otherwise prohibited by this Agreement, to
pay dividends or make other distributions on, or repurchase or
redeem, shares of its Qualified or Disqualified Capital Stock
or to make payments in respect of Indebtedness permitted to be
incurred by it under this Agreement, or for any combination of
the foregoing, provided that (i) on the date of the payment of
any such dividend by the Borrower, the Consolidated Senior
Leverage Ratio as of the last day of the most recently
completed fiscal quarter of the Borrower for which financial
statements are available, calculated on a pro forma basis to
include any net additional Indebtedness incurred or paid since
such last day (including any such Indebtedness incurred to
finance such payment), shall not exceed 2.75 to 1.0, (ii)
after giving effect to the payment of any such dividend by the
Borrower, the aggregate outstanding principal amount of
Revolving Loans shall not exceed $25,000,000, (iii) the
payment of any such dividend by the Borrower shall be
permitted by the Senior Subordinated Note Indenture, (iv) the
aggregate amount of dividends made by the Borrower pursuant to
this paragraph (j) shall not exceed $110,000,000, (v) the
aggregate amount of dividends made by the Borrower pursuant to
this paragraph (j) in any fiscal year shall not exceed (x)
$45,000,000 for the fiscal year ending December 31, 2003 and
(y) $40,000,000 for any fiscal year thereafter; provided that
any such amount referred to in this clause (v), if not paid as
a dividend in the fiscal year for which it is permitted, may
be carried over to increase the aggregate amount of dividends
permitted in any succeeding fiscal year, and (vi) prior to the
making of any such dividend by the Borrower, the
Administrative Agent shall have received a certificate from a
Responsible Officer stating that the making of such dividend
complies with the foregoing conditions and setting forth all
calculations necessary for determining such compliance
(including, without limitation, calculations necessary to
demonstrate compliance with Section 4.07 of the Senior
Subordinated Note Indenture)."
2
1.6. Amendment to Section 7.8. Paragraph (1) of Section 7.8 is
hereby amended in its entirety to read as follows:
"(l)(i) any repurchase of Indebtedness permitted by Section
7.9(a) and (ii) any repurchase of Capital Stock permitted by
Section 7.6."
1.7. Amendment to Section 7.9. The proviso in clause (a) of Section
7.9 is hereby amended by inserting the phrase "and any subordinated Indebtedness
incurred pursuant to Section 7.2(g)" immediately after the words "Senior
Subordinated Notes" therein.
1.8. Amendment to Section 7.10. Section 7.10 is hereby amended by
(a) deleting the phrase "except in the case of payments permitted by Section
7.6," in clause (c) thereof and (b) inserting the parenthetical "(other than any
transaction permitted by Section 7.6)" immediately after the phrase "Enter into
any transaction" in the first sentence thereof.
SECTION II MISCELLANEOUS
2.1. Conditions to Effectiveness of Amendment. Subject to the
provisions of Section 2.2 hereof, this Amendment shall become effective as of
the date first set forth above upon satisfaction of the following conditions
precedent (the effective date of this Amendment, the "Effective Date"):
(a) Loan Documents:
(i) Amendment. The Administrative Agent shall have
received counterparts of this Amendment duly executed
and delivered, by the Borrower, the Administrative
Agent and the Required Lenders; and
(ii) Reaffirmation of Guarantee and Collateral Agreement.
The Administrative Agent shall have received a
reaffirmation of the Guarantee and Collateral
Agreement (the "Reaffirmation"). executed and
delivered by an authorized officer of Holdings, the
Borrower and each Subsidiary Guarantor, the form of
which is attached hereto as Exhibit A.
(b) Payment of Fees and Expenses. The Administrative Agent shall
have received (i) an amendment fee, for the account of the Lenders that have
delivered an executed signature page to this Amendment to the Administrative
Agent or its counsel no later than 12:00 noon., New York City time, on November
26, 2003, in an amount equal to 0.25% of the aggregate amount (without
duplication) of the Commitments in effect and Loans outstanding of such Lenders
as of such date and (ii) payment for all other fees required to be paid, and all
expenses for which invoices have been presented (including the reasonable fees
and expenses of legal counsel), in connection with this Amendment or otherwise
required to be paid pursuant to Section 10.5 of the Credit Agreement.
2.2. Representations and Warranties. The Borrower represents and
warrants to each Lender that as of the effective date of this Amendment: (i)
this Amendment constitutes the legal, valid and binding obligation of the
Borrower, enforceable against it in accordance with its terms, except as such
enforcement may be limited by bankruptcy, insolvency, fraudulent conveyance,
reorganization,
3
moratorium or similar laws affecting creditors' rights generally, by general
equitable principles (whether enforcement is sought by proceedings in equity or
at law) and an implied covenant of good faith and fair dealing; (ii) the
representations and warranties made by the Loan Parties in the Loan Documents
are true and correct in all material respects on and as of the date hereof
(except to the extent that such representations and warranties are expressly
stated to relate to an earlier date, in which case such representations and
warranties shall have been true and correct in all material respects on and as
of such earlier date); and (iii) no Default or Event of Default shall have
occurred and be continuing as of the date hereof.
2.3. Counterparts. This Amendment may be executed by one or more of
the parties to this Amendment on any number of separate counterparts (including
by facsimile transmission), and all of said counterparts taken together shall be
deemed to constitute one and the same instrument. A set of the copies of this
Amendment signed by all the parties shall be lodged with the Borrower and the
Administrative Agent. The execution and delivery of the Amendment by any Lender
shall be binding upon each of its successors and assigns (including Transferees
of its Commitments and Loans in whole or in part prior to effectiveness hereof)
and binding in respect of all of its Commitments and Loans, including any
acquired subsequent to its execution and delivery hereof and prior to the
effectiveness hereof.
2.4. Continuing Effect; No Other Amendments. Except as expressly
amended, modified and supplemented hereby, the provisions of the Credit
Agreement are and shall remain in full force and effect. This Amendment shall
not constitute an amendment of any other provision of the Credit Agreement not
expressly referred to herein and shall not be construed as an amendment or
consent to any further or future action on the part of the Borrower that would
require an amendment or consent of the Required Lenders or Lenders, as the case
may be, or the Administrative Agent. This Amendment shall constitute a Loan
Document.
2.5. Payment of Expenses. The Borrower agrees to pay and reimburse
the Administrative Agent for all of its out-of-pocket costs and reasonable
expenses incurred to date in connection with this Amendment and the other Loan
Documents, including, without limitation, the reasonable fees and disbursements
of legal counsel to the Administrative Agent.
2.6. GOVERNING LAW. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS
OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
[REST OF PAGE INTENTIONALLY LEFT BLANK]
4
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly accepted and delivered by their respective proper and duly authorized
officers as of the day and year first above written.
NATIONAL WATERWORK, INC.
By: /s/ Xxxxx X. Xxxxxxx, Xx.
-------------------------
Name:
Title:
NATIONAL WATERWORKS HOLDINGS, INC.
By: /s/ Xxxxx X. Xxxxxxx, Xx.
-------------------------
Name:
Title:
UBS AG, STAMFORD BRANCH, as
Administrative Agent and as a Lender
By: /s/ XXXXXX XXXXXX
------------------
Name: XXXXXX XXXXXX
Title: EXECUTIVE DIRECTOR
By: /s/ Xxxxx Feliciand
--------------------
Name: Xxxxx Feliciand
Title: Associate Director
LPRM
JPMORGAN SECURITIES INC., as
Co-Syndication Agent
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------
Name: Xxxxxx X. Xxxxxxx
TITLE: Vice President
XXXXXXX XXXXX CREDIT PARTNERS L.P., as
Co-Syndication Agent and as a Lender
By: /s/ XXXXXX XXXXXXXXX
--------------------
Name: XXXXXX XXXXXXXXX
Title: AUTHORIZED SIGNATORY
SEQUILS - PILGRIM I, LTD
By: ING Investments, LLC
as its investment manager
By: /s/ Illegible
-------------------
Name:
Title:
ING PRIME RATE TRUST
BY: AELTUS INVESTMENT MANAGEMENT, INC.
AS ITS INVESTMENT MANAGER
By: /s/ Illegible
-------------------
NAME:
TITLE:
ING SENIOR INCOME FUND
BY: AELTUS INVESTMENT MANAGEMENT, INC.
AS ITS INVESTMENT MANAGER
BY: /s/ [ILLEGIBLE]
-------------------
NAME:
TITLE:
ATRIUM CDO
By: /s/ XXXXX X. XXXXXX
----------------------------
Name: XXXXX X. XXXXXX
Title: AUTHORIZED SIGNATORY
CSAM FUNDING III
By: /s/ XXXXX X. XXXXXX
---------------------
Name: XXXXX X. XXXXXX
Title: AUTHORIZED SIGNATORY
CSAM Funding II
By: /s/ XXXXX X. XXXXXX
---------------------
Name: XXXXX X. XXXXXX
Title: AUTHORIZED SIGNATORY
CSAM FUNDING I
BY: /s/ XXXXX X. XXXXXX
---------------------
Name: XXXXX X. XXXXXX
Title: AUTHORIZED SIGNATORY
First Dominion Funding II
By: /s/ XXXXX X. XXXXXX
----------------------
Name: XXXXX X. XXXXXX
Title: AUTHORIZED SIGNATORY
HARBOURVIEW CLO IV, LTD.
BY: /s/ Xxxx Xxxxxxxx
-----------------
Name: Xxxx Xxxxxxxx
Title: Manager
HARBOURVIEW CLO V, LTD.
BY: /s/ Xxxx Xxxxxxxx
----------------
Name: Xxxx Xxxxxxxx
Title: Manager
Toronto Dominion (New York). Inc.
(Name of Lender)
By: /s/ Xxxxxx X. Xxxxx
-------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
SEQUILS-Cumberland I, Ltd.
By: Deerfield Capital Management LLC as
Its Collateral Manager
By: /s/ Xxxx Xxxxxx
---------------
Name: Xxxx Xxxxxx
Title: Senior Vice President
ROSEMONT CLO, Ltd.
By: Deerfield Capital Management LLC as
its Collateral Manager
By: /s/ Xxxx Xxxxxx
----------------------
Name: Xxxx Xxxxxx
Title: Senior Vice President
BRYN MAWR CLO, Ltd.
By: Deerfield Capital Management LLC as
its Collateral Manager
By: /s/ Xxxx Xxxxxx
---------------
Name: Xxxx Xxxxxx
Title: Senior Vice President
FOREST CREEK CLO, Ltd.
By: Deerfield Capital Management LLC as
its Collateral Manager
By: /s/ Xxxx Xxxxxx
---------------
Name: Xxxx Xxxxxx
Title: Senior Vice President
Xxxxxx'x Island CDO, Ltd.
By: Cypress Tree Investment Management
Company, Inc., as Portfolio Manager.
By: /s/ Xxxxxxxx X. Xxxxxxxxx
--------------------------
Name: Xxxxxxxx X. Xxxxxxxxx
Title: Investment Analyst
CLOSE INTERNATIONAL CUSTODY SERVICES
LIMITED RE
CYPRESSTREE INTERNATIONAL LOAN HOLDING
COMPANY LIMITED
BY: CypressTree Strategic Debt
Management Co., Inc. as Investment
Adviser
By: /s/ Xxxxxxxx X. Xxxxxxxxx
-------------------------
Name: Xxxxxxxx X. Xxxxxxxxx
Title: Investment Analyst
X. XXXX PRICE ASSOCIATES, INC. as
Collateral Manager for INNER HARBOR CBO
2001-1 LTD.
(NAME OF LENDER)
By: /s/ Xxxxxxx X. Xxxxxx
---------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
THE TRAVELERS INSURANCE COMPANY
By: /s/ XXXX X. XXXXX
-----------------
Name: XXXX X. XXXXX
Title: ASSISTANT INVESTMENT OFFICER
CITIGROUP INVESTMENTS CORPORATE LOAN
FUND INC.
BY TRAVELERS ASSET MANAGEMENT
INTERNATIONAL COMPANY, LLC
By: /s/ XXXX X. XXXXX
-----------------
Name: XXXX X. XXXXX
Title: ASSISTANT INVESTMENT OFFICER
COLUMBUS LOAN FUNDING LTD.
BY TRAVELERS ASSET MANAGEMENT
INTERNATIONAL COMPANY, LLC
By: /s/ XXXX X. XXXXX
-----------------
Name: XXXX X. XXXXX
Title: ASSISTANT INVESTMENT OFFICER
CITICORP INSURANCE AND INVESTMENT TRUST
BY TRAVELERS ASSET MANAGEMENT
INTERNATIONAL COMPANY, LLC
By: /s/ XXXX X. XXXXX
-----------------
Name: XXXX X. XXXXX
Title: ASSISTANT INVESTMENT OFFICER
Xxxxxx Xxxxxxx Prime Income Trust
By: /s/ Xxxxxxxxx Xxxxxxx
----------------------
Name: Xxxxxxxxx Xxxxxxx
Title: Authorized Signatory
CHASE LINCOLN FIRST COMMERCIAL CORP
(Name of Lender)
By: /s/ XXXXXX X. XXXXXXX
---------------------
Name: XXXXXX X. XXXXXXX
Title: VICE PRESIDENT
SunAmerica Life Insurance Company
BY: AIG Global Investment Corp., Its
Investment Advisor
By: /s/ W. Xxxxxxx Xxxxxx
----------------------
Name: W. Xxxxxxx Xxxxxx
Title: Vice President
Galaxy CLO 1999-1, Ltd.
BY: AIG Global Investment Corp., As
Collateral Manager
By: /s/ W. Xxxxxxx Xxxxxx
----------------------
Name: W. Xxxxxxx Xxxxxx
Title: Vice President
Venture CDO 2002, Limited
By its investment advisor, MJX Asset
Management, LLC
By: /s/ Illegible
-------------------------------
Name:
Title:
VENTURE II CDO 2002, LIMITED
BY ITS INVESTMENT ADVISOR, MJX ASSET
MANAGEMENT, LLC
By: /s/ Illegible
----------------------------------
Name:
Title:
Transamerica Business Capital Corporation
(Name of Lender)
By: /s/ Xxxxxxx X. Xxxxxxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Senior Vice President
Flagship CLO II
by: Flagship Capital Management, Inc.
By: /s/ Xxxx X. Xxxxx
---------------------------------
Name: Xxxx X. Xxxxx
Title: Director
Longhorn CDO (Cayman) LTD
By: Xxxxxxx Xxxxx Investment Managers, L.P.
as Investment Advisor
By: /s/ Xxxxxxx Xxxxxx
---------------------------------------
Xxxxxxx Xxxxxx
AUTHORIZED SIGNATORY
LONGHORN CDO III, LTD.
By: Xxxxxxx Xxxxx Investment Managers, L.P.
As Investment Advisor,
By: /s/ Xxxxxxx Xxxxxx
---------------------------------------
Xxxxxxx Xxxxxx
Authorized Signatory
Tuscany CDO, Limited
----------------------------------------
(Name of Lender)
By: /s/ Xxxxx X. Xxxxxx
---------------------------------------
PPM America, Inc., as Collateral Manager
By:
--------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Managing Director
MUIRFIELD TRADING LLC
By: /s/ Xxxxx X. Xxxxx
-------------------------------
Name: XXXXX X. XXXXX
Title: ASSISTANT VICE PRESIDENT
OLYMPIC FUNDING TRUST, SERIES 1999-1
By: /s/ Xxxxx X. Xxxxx
----------------------------------
Name: XXXXX X. XXXXX
Title: AUTHORIZED AGENT
PPM SPYGLASS FUNDING TRUST
By: /s/ Xxxxx X. Xxxxx
-------------------------------
Name: XXXXX X. XXXXX
Title: ATHORIZED AGENT
PPM SHADOW CREEK FUNDING LLC
By: /s/ Xxxxx X. Xxxxx
-------------------------------
Name: XXXXX X. XXXXX
Title: ASSISTANT VICE PRESIDENT
Denali Capital LLC, managing member of
DC Funding Partners, portfolio manager for
DENALI CAPITAL CLO I, LTD., or an
affiliate
------------------------------------------
(Name of Lender)
By: /s/ XXXX X. XXXXXXX
------------------------------------------
Name: XXXX X. XXXXXXX
Title: CHIEF CREDIT OFFICER
Denali Capital LLC, managing member of
DC Funding Partners, portfolio manager for
DENALI CAPITAL CLO II, LTD., or an
affiliate
------------------------------------------
(Name of Lender)
By: /s/ Xxxx X.Xxxxxxx
--------------------------------------
Name: XXXX X.XXXXXXX
Title: CHIEF CREDIT OFFICER
Denali Capital LLC, managing member of
DC Funding Partners, portfolio manager for
DENALI CAPITAL CLO III, LTD., or an
affiliate
---------------------------------------------
(Name of Lender)
By: /s/ Xxxx X. Xxxxxxx
-----------------------------------------
Name XXXX X. XXXXXXX
Title: CHIEF CREDIT OFFICER
GoldenTree Loan Opportunities I, Limited
By: GoldenTree Asset Management, LP
By: /s/ Xxxx Xxxxx
-----------------------------------------
Name: Xxxx Xxxxx
Title: Research Analyst
GoldenTree Loan Opportunities II, Limited
By: GoldenTree Asset Management, LP
By: /s/ Xxxx Xxxxx
------------------------------------------
Name: Xxxx Xxxxx
Title: Research Analyst
ALLSTATE LIFE INSURANCE COMPANY
------------------------------------------
(Name of Lender)
By: /s/ Illegible
---------------------------------------
Name:
Title:
By: /s/ Illegible
---------------------------------------
AIMCO CDO Series 2000-A
------------------------------------------
(Name of Lender)
By: /s/ Illegible
---------------------------------------
Name:
Title:
By: /s/ Illegible
---------------------------------------
AIMCO CLO SERIES 2001-A
------------------------------------------
(Name of Lender)
By: /s/ Illegible
---------------------------------------
Name:
Title:
By: /s/ Illegible
---------------------------------------
Franklin CLO III, Limited
FRANKLIN CLO IV, LIMITED
FRANKLIN FLOATING RATE
DAILY ACCESS FUND
Franklin Floating Rate Master Series
FRANKLIN FLOATING RATE TRUST
--------------------------------------
(Name of Lender)
By: /s/ XXXXX XXXX
---------------------------------------
Name: XXXXX XXXX
Title: ASST. VICE PRESIDENT
MAINE CDO 2002, LTD.
------------------------------------------
(Name of Lender)
By: /s/ Xxxx X. Xxxxxx
--------------------------------------
NAME: XXXX X. XXXXXX
TITLE: MANAGING DIRECTOR
Antares Capital Corporation
------------------------------------------
(Name of Lender)
By: /s/ Xxxx X. Xxxxxx
--------------------------------------
Name: XXXX X. XXXXXX
Title: MANAGING DIRECTOR
The Governor & Company of the Bank of Ireland
By: /s/ Xxxxx Xxxxxx
-----------------------------------------
Name: Xxxxx Xxxxxx
Title: Authorised Signatory
By: /s/ Xxxx Xxxx
-----------------------------------------
Name: Xxxx Xxxx
Title: Anthorised Signatory
Lasalle Bank NA
------------------------------------------
(Name of Lender)
By: /s/ Xxxx Xxxxxxxx
--------------------------------------
Name: Xxxx Xxxxxxxx
Title: First Vice President
XXXXXXXXX CARRERA CLO, LTD.
BY: XXXXXXXXX CAPITAL PARTNERS LLC
AS ITS ASSET MANAGER
By: /s/ Xxxxxxxxxxx X. Xxxxx
---------------------------------------
Name: Xxxxxxxxxxx X. Xxxxx
Title: Partner
Xxxxxxxxx Arbitrage CdO, Ltd.
By: Xxxxxxxxx Capital Partners LLC
As Its Collateral Manager
By: /s/Xxxxxxxxxxx X. Xxxxx
--------------------------------------
Name: Xxxxxxxxxxx X. Xxxxx
Title: Partner
NATIONAL WATERWORKS, INC. CREDIT AGREEMENT
XXX XXXXXX
SENIOR INCOME TRUST
By: Xxx Xxxxxx Investment Advisory Corp.
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------------
Name: XXXXXX X. XXXXXX
Title: EXECUTIVE DIRECTOR
State Street Bank & Trust Co. as Trustee for
GMAM Group Pension Trust I
By: /s/ Xxxxxxx Xxxxxxxxx
------------------------------------------
Name: XXXXXXX XXXXXXXXX
Title: CSO
State Street Bank & Trust Co. as Trustee for
General Motors Welfare Benefits Trust
By: /s/ Xxxxxxx Xxxxxxxxx
-------------------------------------------
Name: XXXXXXX XXXXXXXXX
Title: CSO
Fidelity Advisor Series II: Fidelity Advisor
Floating Rate High Income Fund
------------------------------------------------
(Name of Lender)
By: /s/ Xxxxx Xxxx
--------------------------------------------
Name: Xxxxx Xxxx
Title: ASST TREASURER
GENERAL ELECTRIC CAPITAL CORPORATION
---------------------------------------------
(Name of Lender)
By: /s/ Xxxxxx Ekizoou
-----------------------------------------
Name: XXXXXX EKIZOOU
Title: VICE PRESIDENT
Xxxxxx IV- Leveraged Loan CDO 2003,
By Prudential Investment Management, As
Collateral Manager,
By: /s/ Xxxxx X. Xxxxxx
------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
Xxxxxx III Leveraged Loan CDO 2002,
By Prudential Investment Management Inc., As
Collateral Manager
By: /s/ Xxxxx X. Xxxxxx
-------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
NATEXIS BANQUES POPULAIRES
------------------------------------------
(Name of Lender)
By: /s/ Xxxxxxx X. Xxxxx
--------------------------------------
Name: XXXXXXX X. XXXXX
Title: VICE PRESIDENT
By: /s/ XXXXXXX X. XXXXXX
--------------------------------------
XXXXXXX X. XXXXXX
ASSOCIATE
Carlyle Loan Opportunity Fund
------------------------------------------
(Name of Lender)
By: /s/ Xxxxx Xxxx
--------------------------------------
Name: XXXXX XXXX
Title: PRINCIPAL
CARLYLE HIGH YIELD PARTNERS, L.P.
____________________________________
(Name of Lender)
By: /s/ Xxxxx Xxxx
------------------------------------
Name: XXXXX XXXX
Title: PRINCIPAL
CARLYLE HIGH YIELD PARTNERS II, LTD.
___________________________________
(Name of Lender)
By: /s/ Xxxxx Xxxx
------------------------------------
Name: XXXXX XXXX
Title: PRINCIPAL
CARLYLE HIGH YIELD PARTNERS III, LTD.
____________________________________
(Name of Lender)
By: /s/ Xxxxx Xxxx
------------------------------------
Name: XXXXX XXXX
Title: PRINCIPAL
CARLYLE HIGH YIELD PARTNERS IV, LTD.
____________________________________
(Name of Lender)
By: /s/ Xxxxx Xxxx
------------------------------------
Name: XXXXX XXXX
Title: PRINCIPAL
________________________________________
CREDIT LYONNAIS NEW YORK BRANCH
By: /s/ Xxxx Xxxxxxxx
----------------------------------------
Name: Xxxx Xxxxxxxx
Title: Vice President
SENIOR DEBT PORTFOLIO
BY: Boston Management and Research
as Investment Advisor
________________________________________
(Name of Lender)
By: /s/ Xxxxx X. Page
----------------------------------------
Name: Xxxxx X. Page
Title: Vice President
XXXXX XXXXX SENIOR INCOME TRUST
BY: XXXXX XXXXX MANAGEMENT
AS INVESTMENT ADVISOR
________________________________________
(Name of Lender)
By: /s/ Xxxxx X. Page
----------------------------------------
Name: Xxxxx X. Page
Title: Vice President
XXXXX XXXXX INSTITUTIONAL
BY: XXXXX XXXXX MANAGEMENT
AS INVESTMENT ADVISOR
________________________________________
(Name of Lender)
By: /s/ Xxxxx X. Page
----------------------------------------
Name: Xxxxx X. Page
Title: Vice President
OXFORD STRATEGIC INCOME FUND
BY: XXXXX XXXXX MANAGEMENT
AS INVESTMENT ADVISOR
________________________________________
(Name of Lender)
By: /s/ Xxxxx X. Page
----------------------------------------
Name: Xxxxx X. Page
Title: Vice President
XXXXX XXXXX CDO II, LTD.
BY: XXXXX XXXXX MANAGEMENT
AS INVESTMENT ADVISOR
________________________________________
(Name of Lender)
By: /s/ Xxxxx X. Page
----------------------------------------
Name: Xxxxx X. Page
Title: Vice President
XXXXX XXXXX CDO III, LTD.
BY: XXXXX XXXXX MANAGEMENT
AS INVESTMENT ADVISOR
_______________________________________
(Name of Lender)
By: /s/ Xxxxx X. Page
----------------------------------------
Name: Xxxxx X. Page
Title: Vice President
XXXXX XXXXX CDO IV, LTD.
BY: XXXXX XXXXX MANAGEMENT
AS INVESTMENT ADVISOR
________________________________________
(Name of Lender)
By: /s/ Xxxxx X. Page
----------------------------------------
Name: Xxxxx X. Page
Title: Vice President
XXXXX XXXXX CDO V, LTD.
BY: XXXXX XXXXX MANAGEMENT
AS INVESTMENT ADVISOR
________________________________________
(Name of Lender)
By: /s/ Xxxxx X. Page
----------------------------------------
Name: Xxxxx X. Page
Title: Vice President
XXXXX XXXXX CDO VI, LTD.
BY: XXXXX XXXXX MANAGEMENT
AS INVESTMENT ADVISOR
________________________________________
(Name of Lender)
By: /s/ Xxxxx X. Page
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Name: Xxxxx X. Page
Title: Vice President
XXXXXXX & CO
BY: BOSTON MANAGEMENT AND RESEARCH
AS INVESTMENT ADVISOR
________________________________________
(Name of Lender)
By: /s/ Xxxxx X. Page
-------------------------------------
Name: Xxxxx X. Page
Title: Vice President
XXXXX XXXXX
LIMITED DURATION INCOME FUND
BY: XXXXX XXXXX MANAGEMENT
AS INVESTMENT ADVISOR
________________________________________
(Name of Lender)
By: /s/ Xxxxx X. Page
-------------------------------------
Name: Xxxxx X. Page
Title: Vice President
TOLLI & CO.
BY: XXXXX XXXXX MANAGEMENT
AS INVESTMENT ADVISOR
________________________________________
(Name of Lender)
By: /s/ Xxxxx X. Page
----------------------------------------
Name: Xxxxx X. Page
Title: Vice President
OAK HILL CREDIT PARTNERS I, LIMITED, Lender
By: Oak Hill CLO Management I, LLC
As Investment Manager
By /s/ Xxxxx X. Xxxxx
---------------------------------------
Name: Xxxxx X. Xxxxx
Title: Authorized Signatory
OAK HILL CREDIT PARTNERS II, LIMITED,
Lender
By: Oak Hill CLO Management II, LLC
As Investment Manager
By /s/ Xxxxx X. Xxxxx
---------------------------------------
Name: Xxxxx X. Xxxxx
Title: Authorized Signatory
DOLPHIN INVESTMENT CO., LIMITED, Lender
By: Oak Hill CLO Management III, LLC
As Investment Manager
By /s/ Xxxxx X. Xxxxx
---------------------------------------
Name: Xxxxx X. Xxxxx
Title: Authorized Signatory
GENERAL ELECTRIC CAPITAL CORPORATION
BY: /s/ Xxxxxx Xxxxx
--------------------------------
Name: Xxxxxx Xxxxx
Title: Duly Authorized Signatory
EXHIBIT A
REAFFIRMATION AGREEMENT
December__, 2003
Reference is made to the Credit Agreement, dated as of November 22,
2002 (as amended, supplemented or otherwise modified from time to time, the
"Credit Agreement"), among NATIONAL WATERWORKS HOLDINGS, INC., a Delaware
corporation ("Holdings"), NATIONAL WATERWORKS, INC., a Delaware corporation (the
"Borrower"), the several banks and other financial institutions or entities from
time to time parties to the Credit Agreement (the "Lenders"), X.X. XXXXXX
SECURITIES INC. and XXXXXXX SACHS CREDIT PARTNERS L.P., as co-syndication
agents, GENERAL ELECTRIC CAPITAL CORPORATION and ANTARES CAPITAL CORPORATION, as
co-documentation agents, and UBS AG, STAMFORD BRANCH, as administrative agent
(the "Administrative Agent").
Holdings, as the only guarantor under the Guarantee and Collateral
Agreement, dated as of November 22, 2002, made by the undersigned corporations
in favor of the Administrative Agent, for the benefit of the Lenders (the
"Guarantee and Collateral Agreement"), hereby (a) consents to the transactions
contemplated by the Second Amendment, dated as of December_, 2003, to the Credit
Agreement (the "Amendment"), made by the Borrower, each Lender party thereto,
the Administrative Agent and each Co-Syndication Agent, and (b) acknowledges and
agrees that the guarantees (and grants of collateral security therefor)
contained in such Guarantee and Collateral Agreement are, and shall remain, in
full force and effect after giving effect to the Amendment. The Borrower, as
grantor and pledgor under the Guarantee and Collateral Agreement, hereby
acknowledges and agrees that its grant of collateral security contained in the
Guarantee and Collateral Agreement remains in full force and effect after giving
effect to the Amendment.
NATIONAL WATERWORKS, INC.
By:____________________________________
Name:
Title:
NATIONAL WATERWORKS HOLDINGS, INC.
By:____________________________________
Name:
Title: