AMENDMENT NO. 1 TO 364-DAY CREDIT AGREEMENT
EXHIBIT 10(o)
AMENDMENT NO. 1
TO 364-DAY CREDIT AGREEMENT
AMENDMENT NO. 1 TO 364-DAY CREDIT AGREEMENT (this “Amendment”) dated as of
June 26, 2001, is by and between AMERICAN WATER CAPITAL CORP., a Delaware corporation (the “Borrower”); AMERICAN WATER WORKS COMPANY, INC., a Delaware corporation (the “Parent”); each of the Lenders that is a
signatory hereto (each individually, a “Lender” and, collectively, the “Lenders”); and FIRST UNION NATIONAL BANK, as Administrative Agent for the Lenders (in such capacity, together with its successors and assigns
in such capacity, the “Administrative Agent”).
WITNESSETH:
WHEREAS, the Borrower, the Parent, the Administrative Agent and certain banks and other financial institutions, including certain of the Lenders (collectively, the “Original
Lenders”), are parties to a 364-Day Credit Agreement dated as of June 27, 2000 (as in effect on the date hereof, the “Credit Agreement”);
WHEREAS, the Borrower and the Parent have requested that the Termination Date under the Credit Agreement be extended by 364 days;
WHEREAS, the Lenders are willing, on the terms and conditions set forth in this Amendment, to extend the Termination Date with respect to the amounts of their respective Commitments
indicated on Schedule 1.01A hereto, in the aggregate Commitment amount of $500,000,000, reduced from the $600,000,000 aggregate Commitment amount, under the Credit Agreement; and
WHEREAS, it is understood and acknowledged by the parties to this Amendment that the Commitments of the Original Lenders who are not Lenders under this Amendment will lapse in accordance
with the provisions of the Credit Agreement on the Current Termination Date of June 26, 2001.
NOW THEREFORE, the parties hereto
hereby agree as follows:
Section 1. Definitions; Incorporation of
Recitals. Except as otherwise defined in this Amendment, terms defined in the Credit Agreement are used herein as defined therein. Each of the above recitals is incorporated herein and made a part hereof.
Section 2. Amendments. Subject to the satisfaction of the conditions precedent specified
in Section 4 below, but effective as of the date hereof, the Credit Agreement shall be amended as follows:
2.01. General. References (i) in the Credit Agreement (including references to the Credit Agreement as amended hereby) to “this Agreement” (and indirect references such as
“hereunder,” “hereof” and words of like import referring to the Credit Agreement), and (ii) in the
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other Loan Documents to “the Credit Agreement” and the “the Agreement” (and indirect references such
as “thereunder,” “thereof” and words of like import referring to the Credit Agreement) shall be deemed to be references to the Credit Agreement as amended by this Amendment.
2.02. Definitions. Section 1.01 of the Credit Agreement shall be amended by replacing in their entirety each of the following
definitions:
“Lenders” means each of the Lenders identified on the signature pages to
Amendment No. 1 to 364-Day Credit Agreement dated June 26, 2001, between the Borrower, the Parent, the Administrative Agent, and the Lenders thereunder, and the successors and permitted assigns of such Lenders.
“Termination Date” means June 25, 2002, unless such date is otherwise extended pursuant to Section 2.05.
2.03. Financial Condition. Section 4.05 of the Credit Agreement shall be
amended to read in its entirety as follows:
SECTION 4.05. Financial Information.
(a) The consolidated balance sheet of the Parent and its Subsidiaries, as of December 31, 2000, and the related
statements of income and cash flows for the Fiscal Year then ended, reported on by independent public accountants of nationally recognized standing, and the unaudited consolidated balance sheet of the Parent and its Subsidiaries, as of March 31,
2001, and the related statements of income and cash flows for the Fiscal Quarter then ended (copies of each which have been delivered to the Lenders), fairly present, in conformity with GAAP, subject to normal year-end adjustments and the absence of
footnotes, the consolidated financial position of the Parent and its Subsidiaries, as of such dates, and of their results of operations and cash flows for such periods stated.
(b) Since December 31, 2000, there has occurred no event which has had, or could reasonably be expected to have, a Material Adverse Effect.
2.04. Commitments of Lenders. Schedule 1.01A to the Credit Agreement shall be amended to
read in its entirety as set forth on Schedule 1.01A hereto.
2.05. Notice and Lending Offices
of Lenders. Schedule 1.01B to the Credit Agreement shall be amended to read in its entirety as set forth on Schedule 1.01B hereto.
2.06 Applicable Percentage. The table set forth in the definition of “Applicable Percentage” in the Credit Agreement is hereby
deleted and replaced in its entirety with the table set forth on Schedule 2.06 hereto.
Section
3. Representations and Warranties. The Borrower and the Parent each represent and warrant to the Lenders and the Administrative Agent that:
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(a) the representations and warranties set forth in Article IV of the Credit
Agreement are true and complete on the date hereof as if made on and as of the date hereof and as if each reference in said Article IV to “this Agreement” includes reference to this Amendment; and
(b) no Default or Event of Default has occurred and is continuing on the date hereof.
Section 4. Conditions Precedent. As provided in Section 2 above, the amendments to the Credit
Agreement set forth in Section 2 shall become effective as of the date hereof, upon the satisfaction of the following conditions precedent:
4.01. Execution by All Parties. This Amendment shall have been executed and delivered by each of the parties hereto.
4.02. Documents. The Administrative Agent shall have received the following documents, each of
which shall be satisfactory to the Administrative Agent in form and substance:
(a) Corporate Documents. All documents which the Administrative Agent and the Lenders may reasonably request relating to the existence of the Borrower and the Parent, the corporate
authority for and the validity of this Amendment, the Loan Documents as amended hereby, and any other matters relevant hereto, all in form and substance satisfactory to the Administrative Agent and the Lenders, including without limitation a
certificate of incumbency of each of the Borrower and the Parent, signed by the respective Secretary or an Assistant Secretary of the Borrower and the Parent, certifying as to the names, true signatures and incumbency of the officer or officers
authorized to execute and deliver this Amendment and each other document to be executed, delivered by the Borrower and/or the Parent, as applicable, from time to time in connection with the Credit Agreement as amended hereby, and certified copies of
the following items: (i) the Borrower’s and the Parent’s Articles of Incorporation (or, in the alternative, a certification that none of such documents have been modified since delivery thereof in connection with the execution and delivery
of the Credit Agreement), (ii) the Borrower’s and the Parent’s By-laws (or, in the alternative, a certification that none of such documents have been modified since delivery thereof in connection with the execution and delivery of the
Credit Agreement), (iii) certificates of the Secretary of State of the Delaware as to the existence of the Borrower and the Parent as Delaware corporations, and (iv) the resolutions adopted by the Board of Directors of the Borrower and the Parent
authorizing the Borrower’s and the Parent’s execution, delivery and performance of this Amendment and each other document to be executed, delivered and performed by the Borrower and/or the Parent, as applicable, from time to time in
connection with the Credit Agreement as amended hereby.
(b) Opinion of Counsel to
the Company. An opinion of Dechert Price and Xxxxxx, counsel to the Borrower and the Parent, and an opinion of W. Xxxxxxx Xxxx, Esq., General Counsel to the Borrower and the Parent, each in form and substance satisfactory
to the Administrative Agent and the Lenders.
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(c) Other Documents. Such other
documents, approvals and opinions as the Administrative Agent and the Lenders may reasonably request.
4.03. Fees. Receipt by the Administrative Agent (for its own account and the account of the Lenders, as applicable) of all fees required to be received in connection with this Amendment.
Section 5. Lenders not Original Lenders under the Credit Agreement.
5.01 Bound by Execution. Subject to the satisfaction of the conditions precedent specified in
Section 4 above, but effective as of the date hereof, each of the Lenders hereunder that was not an Original Lender, by its execution of the Amendment, is a party to the Credit Agreement and has all rights and obligations of a Lender thereunder.
5.02 Confirmation of Receipt. Each of the Lenders hereunder that was not a
Original Lender, (i) confirms that it has received a copy of the Credit Agreement, together with copies of the financial statement referred to in Section 4.05(a) and (b) and Section 5.01 thereof and such other documents and information as it has
deemed appropriate to make its own credit analysis and decision to enter into this Amendment; (ii) agrees that it will, independently and without reliance upon the Administrative Agent or any Lender and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Credit Agreement; (iii) appoints and authorizes the Administrative Agent to take such action as agent on its behalf and to
exercise such powers and discretion under the Credit Agreement as are delegated to the Administrative Agent by the terms thereof, together with such powers and discretion as are reasonably incidental thereto; (iv) agrees that it will perform in
accordance with their terms all of the obligations that attaches any U.S. Internal Revenue Service or other forms required under Section 2.05 of the Credit Agreement
6. Expenses. The Borrower shall pay (i) all out-of-pocket expenses of the Administrative Agent (including reasonable fees and
disbursements of counsel for the Administrative Agent) in connection with the preparation of this Amendment and any other instruments or documents to be delivered hereunder, any waiver or consent hereunder or thereunder or any amendment hereof or
thereof or any Default hereunder or thereunder, and (ii) if an Event of Default occurs, all out-of-pocket expenses incurred by the Administrative Agent and each of the Lenders, including fees and disbursements of counsel of the Administrative Agent
and each Lender, in connection with such Event of Default and collection and other enforcement proceedings resulting therefrom, including out-of-pocket expenses incurred in enforcing the Credit Agreement as amended by this Amendment, and the other
Loan Documents.
Section 7. Miscellaneous. Except as herein provided, the
Credit Agreement and all other Loan Documents shall remain unchanged and shall continue to be in full force and effect and are hereby ratified and confirmed in all respects. This Amendment may be executed in any number of counterparts, all of which
taken together shall constitute one and the same amendatory instrument, and any of the parties hereto may execute this Amendment by signing any such counterpart. This Amendment shall be governed by, and construed in accordance with, the law of the
State of North Carolina.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed and
delivered as of the day and year first above written.
| BORROWER: |
| AMERICAN WATER CAPITAL CORP. | ||
| By: |
/s/ Xxxxxx X. Xxxxxxxx, Xx. | |
| Name: Xxxxxx X. Xxxxxxxx, Xx. Title: Vice President and Treasurer | ||
| Address for Notices: 0000 Xxxxxx Xxx Xxxx Xxxxxxxx, XX 00000 Attention: Treasurer Telecopy number: 856.346.8363 |
| PARENT: |
| AMERICAN WATER WORKS COMPANY, INC. | ||
| By: |
/s/ Xxxxx X. Xxxx | |
| Name: Xxxxx X. Xxxx Title: Vice President and Chief Financial Officer | ||
| Address for Notices: 0000 Xxxxxx Xxx Xxxx Xxxxxxxx, XX 00000 Attention: Treasurer Telecopy number: 856.346.8363 |
Signature Page
to
Amendment No. 1
(American Water Capital Corp.)
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| FIRST UNION NATIONAL BANK, as |
| Administrative Agent, Swing Line Bank and a Lender |
| By: |
/s/ Xxx X. Xxxxx | |
| Name: Xxx X. Xxxxx Title:
Vice President |
Signature Page
to
Amendment No. 1
to
(American Water Capital Corp.)
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| MELLON BANK, N.A., as Documentation |
| Agent and Lender |
| By: |
/s/ J. Xxxx Xxxx | |
| Name: J. Xxxx Xxxx Title:
Vice President |
Signature Page
to
Amendment No. 1
to
(American Water Capital Corp.)
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| FLEET NATIONAL BANK | ||
| By: |
/s/ Xxxxxx X. Xxxxxxxxx | |
| Name: Xxxxxx X. Xxxxxxxxx Title: Managing Director | ||
Signature Page
to
Amendment No. 1
to
(American Water Capital Corp.)
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| THE NORINCHUKIN BANK, NEW YORK BRANCH | ||
| By: |
/s/ Xxxxxxx Xxxxx | |
| Name: Xxxxxxx Xxxxx Title:
General Manager | ||
Signature Page
to
Amendment No. 1
to
(American Water Capital Corp.)
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| PNC BANK, NATIONAL ASSOCIATION | ||
| By: |
/s/ Xxxxxx X. Xxxxxxxx | |
| Name: Xxxxxx X. Xxxxxxxx Title: Vice President | ||
Signature Page
to
Amendment No. 1
to
(American Water Capital Corp.)
10
| BANK ONE, N.A. | ||
| By: |
/s/ Xxxxxxx X. Xxxxx | |
| Name: Xxxxxxx X. Xxxxx Title:
Director, Capital Markets | ||
Signature Page
to
Amendment No. 1
to
364-Day Credit
Agreement
(American Water Capital Corp.)
11
| CREDIT SUISSE FIRST BOSTON | ||||
| By: |
/s/ Xxxxxx X. Xxxxxx |
Xxxx X. Xxxxxx | ||
| Name: Xxxxxx X. Xxxxxx Title:Vice President |
Xxxx X. Xxxxxx Director | |||
Signature Page
to
Amendment No. 1
to
364-Day Credit
Agreement
(American Water Capital Corp.)
00
| XXXXXXXX XXXX XXXX XX XXXXXXX | ||
| By: |
/s/ Xxxxxx X. Xxxxxxx | |
| Name: Xxxxxx X. Xxxxxxx Title: Vice President | ||
Signature Page
to
Amendment No. 1
To
364-Day Credit
Agreement
(American Water Capital Corp.)
13
| BRANCH BANKING AND TRUST COMPANY | ||
| By: |
/s/ J. Xxxx Xxxx | |
| Name: J. Xxxx Xxxx Title:
Senior Vice President—Corporate Banker | ||
Signature Page
to
Amendment No. 1
to
364-Day Credit
Agreement
(American Water Capital Corp.)
00
| XXX XXXXX XXXXXXXXX BANK | ||
| By: |
/s/ Wing Xxx-Xxx | |
| Name: Wing Xxx-Xxx Title:
Vice President | ||
Signature Page
to
Amendment No. 1
to
364-Day Credit
Agreement
(American Water Capital Corp.)
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SCHEDULE 1.01A
COMMITMENTS OF
LENDERS
| LENDER |
COMMITMENT |
INITIAL PRO RATA PERCENTAGE |
SWING LINE COMMITMENT | |||
| First Union National Bank |
$71,250,000 |
23.50% |
$20,000,000 | |||
| Mellon Bank, N.A. |
$71,250,000 |
18.00% |
N/A | |||
| Fleet National Bank |
$65,000,000 |
N/A | ||||
| The Norinchukin Bank New
York Branch |
$65,000,000 |
13.00% |
N/A | |||
| PNC Bank, National Association |
$55,000,000 |
11.00% |
N/A | |||
| Bank One, N.A. |
$45,000,000 |
9.00% |
N/A | |||
| Credit Suisse First Boston |
$45,000,000 |
9.00% |
N/A | |||
| National City Bank of
Indiana |
$37,500,000 |
7.50% |
N/A | |||
| Branch Banking and Trust
Company |
$22,500,000 |
4.50% |
N/A | |||
| The Chase Manhattan Bank |
$22,500,000 |
4.50% |
N/A | |||
| TOTAL |
$500,000,000 |
100% |
$20,000,000 |
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SCHEDULE 1.01B
NOTICE AND LENDING
OFFICES OF LENDERS
| LENDER |
NOTICE AND DOMESTIC LENDING OFFICE |
LIBOR LENDING OFFICE | ||
| First Union National Bank |
One First Union Center 000 Xxxxx Xxxxxxx Xxxxxx Xxxxxxxxx, Xxxxx
Xxxxxxxx 00000-0000 Attn: Agency Services Telephone: (000) 000-0000
Facsimile: (000) 000-0000 |
One First Union Center 000 Xxxxx Xxxxxxx Xxxxxx Xxxxxxxxx, Xxxxx
Xxxxxxxx 00000-0000 Attn: Agency Services Telephone: (000) 000-0000
Facsimile: (000) 000-0000 | ||
| With a copy of Notices to: First Union Securities, Inc. |
||||
| Structuring & Underwriting – Utilities 000 Xxxxx Xxxxxxx Xxxxxx, XX-0 Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000 Attn: Xxx X. Xxxxx Telephone: (000) 000-0000 Facsimile: (000) 000-0000 |
||||
| Mellon Bank, N.A. |
3 Mellon Bank Center 12th Floor – 153-1203 Xxxxxxxxxx,
Xxxxxxxxxxxx 00000 Attn: Xxxxxxxx Xxxxxxxx Telephone: (000) 000-0000
Facsimile: (000) 000-0000 |
3 Mellon Bank Center 12th Floor – 153-1203 Xxxxxxxxxx,
Xxxxxxxxxxxx 00000 Attn: Xxxxxxxx Xxxxxxxx Telephone: (000) 000-0000
Facsimile: (000) 000-0000 | ||
| Fleet National Bank
|
0 Xxxxxxx Xxxxxx Xxxxxx Xxxxxxxxxxxxx 00000 MA OF
DO7K Attn: Xxxxxxx Xxxxxxxx Telephone: (000) 000-0000 Facsimile: (000)
000-0000 |
0 Xxxxxxx Xxxxxx Xxxxxx, Xxxxxxxxxxxxx 00000 MA OF
DO7K Attn: Xxxxxxx Xxxxxxxx Telephone: (000) 000-0000 Facsimile: (000)
000-0000 |
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| LENDER |
NOTICE AND DOMESTIC LENDING OFFICE |
LIBOR LENDING OFFICE | ||
| The Norinchukin Bank, New York Branch |
000 Xxxx Xxxxxx, 00xx Xxxxx Xxx Xxxx, Xxx Xxxx 00000 Attn: Junya
Morishita Vice President (Primary) Xxxxxxxxxx Xxxxxxxxx Vice President & Manager (Backup) Telephone: (000) 000-0000 Facsimile: (000) 000-0000 (Primary) (000) 000-0000 (Backup) |
000 Xxxx Xxxxxx, 00xx Xxxxx Xxx Xxxx, Xxx Xxxx 00000 Attn: Junya
Morishita Vice President (Primary) Xxxxxxxxxx Xxxxxxxxx Vice President & Manager (Backup) Telephone: (000) 000-0000 Facsimile: (000) 000-0000 (Primary) (000) 000-0000 (Backup) | ||
| PNC Bank, National Association |
0000 Xxxxxx Xxxxxx 00xx Xxxxx Xxxxxxxxxxxx,
Xxxxxxxxxxxx 00000 Attn: Xxxxxxx X. Xxxx Telephone: (000) 000-0000
Facsimile: (215) 585-6987 |
0000 Xxxxxx Xxxxxx 00xx Xxxxx Xxxxxxxxxxxx,
Xxxxxxxxxxxx 00000 Attn: Xxxxxxx X. Xxxx Telephone: (000) 000-0000
Facsimile: (000) 000-0000 | ||
| Bank One, N.A. |
1 Bank Xxx Xxxxx Xxxxx 0000 Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxx Xxxxxxx Telephone: (000) 000-0000 Facsimile: (000) 000-0000 |
1 Bank Xxx Xxxxx Xxxxx 0000 Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxx Xxxxxxx Telephone: (000) 000-0000 Facsimile: (000) 000-0000 |
||
| Credit Suisse First Boston |
Attn: Xxxxxx Xxx Telephone: (000) 000-0000 Facsimile: (000)
000-0000 |
|||
| National City Bank of Indiana |
Xxx Xxxxxxxx Xxxx Xxxxxx Xxxxx 000X Xxxxxxxxxxxx,
Xxxxxxx 00000 Attn: Xxxxxx Xxxxxxx Telephone: (000) 000-0000
Facsimile: (000) 000-0000 |
Xxx Xxxxxxxx Xxxx Xxxxxx Xxxxx 000X Xxxxxxxxxxxx,
Xxxxxxx 00000 Attn: Xxxxxx Xxxxxxx Telephone: (000) 000-0000
Facsimile: (000) 000-0000 |
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| LENDER |
NOTICE AND DOMESTIC LENDING OFFICE |
LIBOR LENDING OFFICE | ||
| Branch Banking and Trust Company |
000 Xxxxxxx Xxxxxx Xxxxxxxxxx, Xxxx Xxxxxxxx 00000
Attn: Xxxx Xxxx, Xx. Vice President, Corporate Banker Telephone: (000) 000-0000 Facsimile: (000) 000-0000 (Primary) 000 Xxxxx Xxxxxxxxx Xxxx Xxxxxxx-Xxxxx Xxxxx Xxxxxxxx 00000 |
000 Xxxxxxx Xxxxxx Xxxxxxxxxx, Xxxx Xxxxxxxx 00000 Attn: Xxxx
Xxxx, Xx. Vice President, Corporate Banker Telephone: (000) 000-0000
Facsimile: (000) 000-0000 (Primary) 000 Xxxxx Xxxxxxxxx Xxxx Xxxxxxx-Xxxxx Xxxxx Xxxxxxxx 00000 | ||
| Attn: Xxxxxxxx Tonwsend Senior Vice President Corporate
Accounts Telephone: (000) 000-0000 Facsimile: (000) 000-0000 (Backup) |
Attn: Xxxxxxxx Tonwsend Senior Vice President Corporate
Accounts Telephone: (000) 000-0000 Facsimile: (000) 000-0000 (Backup) | |||
| The Chase Manhattan Bank |
Xxx Xxxxxxxxxx Xxxxx 0xx Xxxxx Xxxxxx, Xxx Xxxxxx
00000 Attn: Wing Xxx-Xxx (Primary) Xxxxxx Xxxxxxxx (Backup) Telephone: (000) 000-0000 (Primary) (000) 000-0000 (Backup) Facsimile: (000) 000-0000 |
Xxx Xxxxxxxxxx Xxxxx 0xx Xxxxx Xxxxxx, Xxx Xxxxxx
00000 Attn: Wing Xxx-Xxx (Primary) Xxxxxx Xxxxxxxx (Backup) Telephone: (000) 000-0000 (Primary) (000) 000-0000 (Backup) Facsimile: (000) 000-0000 |
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SCHEDULE 2.06
APPLICABLE PERCENTAGE TABLE
| Senior Unsecured LTD Ratings |
Applicable LIBOR Rate Margin |
Applicable Facility Fee |
Applicable Swing Line Margin |
Applicable Utilization Fee | ||||
| (S&P/Xxxxx’x) |
||||||||
| Level 1 at least A+/A1 |
0.275% |
0.075% |
0.475% |
0.125% | ||||
| Xxxxx 0 xxxx xxxx Xx/X0; xx xxxxx X/X0 |
0.315% |
0.085% |
0.515% |
0.125% | ||||
| Xxxxx 0 less than A/A2; at least A-/A3 |
0.400% |
0.100% |
0.575% |
0.125% | ||||
| Xxxxx 0 less than A-/A3; at least BBB+/Baa1 |
0.500% |
0.125% |
0.650% |
0.125% | ||||
| Xxxxx 0 less than BBB+/Baa1; at least BBB/Baa2 |
0.600% |
0.150% |
0.725% |
0.125% | ||||
| Xxxxx 0 less than BBB/Baa2 |
0.700% |
0.175% |
0.875% |
0.25% |
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