EXHIBIT 10.32
EXECUTION COPY
THIRD AMENDMENT
THIRD AMENDMENT, dated as of October 26, 2004 (this "Amendment"),
with respect to the Credit Agreement, dated as of November 22, 2002 (as amended,
supplemented or otherwise modified prior to the date hereof, 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").
W I T N E S S E T H:
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, pursuant to the second paragraph of Section 10.1 of the
Credit Agreement, the Credit Agreement may be amended with the written consent
of the Administrative Agent, the Borrower and the Lenders providing replacement
term loans to provide for the refinancing of all outstanding Replacement Tranche
B Term Loans.
WHEREAS, on the Replacement Tranche C Effective Date (as defined
below), the Replacement Tranche C Term Loans (as defined below) will be borrowed
and the proceeds thereof will be used to prepay the Replacement Tranche B Term
Loans.
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) Section 1.1 of the Credit Agreement is hereby amended by adding the
following new definitions, to appear in alphabetical order:
"Replacement Tranche C Effective Date": the Replacement Tranche C
Effective Date, as defined in the Third Amendment dated as of
October 26, 2004 to this Agreement.
"Replacement Tranche C Term Commitment": as to any Replacement
Tranche C Term Lender, the obligation of such Replacement Tranche C
Term Lender to make a Replacement Tranche C Term Loan to the
Borrower in a principal amount not to exceed the amount set forth
under the heading "Replacement Tranche C Term Commitment" opposite
such Replacement Tranche C Term Lender's name on Schedule 1.1AB. The
original aggregate amount of the Replacement Tranche C Term
Commitments is $228,750,000.
"Replacement Tranche C Term Lender": each Lender that has a
Replacement Tranche C Term Commitment or that holds a Replacement
Tranche C Term Loan.
"Replacement Tranche C Term Loan": as defined in Section 2.1.
"Replacement Tranche C Term Loan Maturity Date": November 22, 2009.
"Replacement Tranche C Term Percentage": as to any Replacement
Tranche C Term Lender at any time, the percentage which such
Replacement Tranche C Term Lender's Replacement Tranche C Term
Commitment then constitutes of the aggregate Replacement Tranche C
Term Commitments (or, at any time after the Replacement Tranche C
Effective Date the percentage which the aggregate principal amount
of such Replacement Tranche C Term Lender's Replacement Tranche C
Term Loans then outstanding constitutes of the aggregate principal
amount of the Replacement Tranche C Term Loans then outstanding).
(b) The definition of "Applicable Margin" in Section 1.1 of the Credit
Agreement is hereby amended in its entirety to read as follows:
"Applicable Margin": (a) for Replacement Tranche C Term Loans and
Revolving Loans (including Swingline Loans), for each Type of Loan,
the rate per annum set forth under the relevant column heading below
and (b) for Incremental Extensions of Credit, such per annum rates
as shall be agreed to by the Borrower and the applicable Incremental
Lenders as shown in the applicable Incremental Facility Activation
Notice.
2
ABR Loans Eurodollar Loans
Revolving Loans and
Swingline Loans 2.00% 3.00%
Replacement Tranche C
Term Loans 1.50% 2.50%
; provided, that on and after (i) the first Adjustment Date
occurring after the completion of two full fiscal quarters of the
Borrower after the Closing Date, the Applicable Margin with respect
to Revolving Loans and Swingline Loans will be determined pursuant
to the Pricing Grid and (ii) the first Adjustment Date occurring
after the completion of the first fiscal quarter of the Borrower
ending after the Replacement Tranche C Effective Date, the
Applicable Margin with respect to the Replacement Tranche C Term
Loans shall be determined pursuant to the Pricing Grid.
(c) The definition of "Commitment" in Section 1.1 of the Credit
Agreement is hereby amended in its entirety to read as follows:
"Commitment": as to any Lender, the sum of the Replacement Tranche C
Term Commitment, Incremental Commitment and the Revolving Commitment
of such Lender.
(d) The definition of "Facility" in Section 1.1 of the Credit Agreement
is hereby amended in its entirety to read as follows:
"Facility": each of (a) the Replacement Tranche C Term Commitments
of all Lenders and the Replacement Tranche C Term Loans made
thereunder (the "Replacement Tranche C Term Facility"), (b) the
Incremental Commitments of all Lenders having the same Incremental
Facility Closing Date and the Incremental Extensions of Credit made
thereunder (each, an "Incremental Facility"), and (c) the Revolving
Commitments of all Lenders and the Revolving Extensions of Credit
made thereunder (the "Revolving Facility").
(e) The definition of "Final Maturity Date" in Section 1.1 of the Credit
Agreement is hereby amended in its entirety to read as follows:
"Final Maturity Date": at any time, the last to occur of (a) the
Replacement Tranche C Term Loan Maturity Date or (b) any Incremental
Maturity Date.
(f) The definition of "Incremental Maturity Date" in Section 1.1 of the
Credit Agreement is hereby amended in its entirety to read as follows:
"Incremental Maturity Date": with respect to the Incremental
Extensions of Credit to be made pursuant to any Incremental Facility
Activation Notice, the maturity date specified in such Incremental
Facility Activation Notice, which date shall be on or after the
Replacement Tranche C Term Loan Maturity Date.
3
(g) The definition of "Original Holdings Notes" is hereby amended in its
entirety to read as follows:
"Original Holdings Notes": any notes of Holdings issued on or after
the Replacement Tranche B Effective Date in one or more series from
time to time pursuant to one or more Holdings Note Indentures,
provided that (a) each series of such notes shall (i)(x) be issued
at a discount and not require the payment of interest in cash
thereon prior to the fifth anniversary of the Replacement Tranche B
Effective Date or (y) permit the payment of any interest thereon
prior to such fifth anniversary in kind (it being understood that a
"catch-up" payment in an amount sufficient to avoid such notes
having significant original issue discount as described in Section
163(i)(2) of the Code, may be required to be made in or after the
year following such fifth anniversary), (ii) be issued in a maximum
aggregate amount such that the aggregate principal amount thereof
that would appear on a balance sheet of Holdings as of the date of
such issuance, prepared in accordance with GAAP, shall not exceed
the amount which would cause the Consolidated Leverage Ratio as
calculated as of the end of the last fiscal quarter prior to the
issuance of such notes on a pro forma basis to include such
aggregate principal amount in Consolidated Total Debt
(notwithstanding that such notes shall be issued by Holdings and not
the Borrower) and to exclude therefrom any Indebtedness repaid with
the Net Cash Proceeds of such notes to exceed 6.00 to 1, (iii) not
have a scheduled maturity or provide for any scheduled payments of
principal thereon prior to the date six months after the then Final
Maturity Date, (iv) not be guaranteed by or have any recourse to the
assets of the Borrower or any of its Subsidiaries and (v) have
representations, covenants and default provisions that are either
(x) no more restrictive with respect to the Borrower and its
Subsidiaries than the Senior Subordinated Notes or (y) otherwise are
reasonably acceptable to the Administrative Agent, (b) on the date
of the issuance of such notes, no Default or Event of Default shall
have occurred and be continuing and (c) prior to the issuance of
such notes, the Administrative Agent shall receive a certificate of
the Chief Financial Officer of the Borrower stating the issuance of
such notes complies with the foregoing conditions and setting forth
all calculations necessary for determining such compliance. Any
Original Holdings Notes shall include any accretion in the principal
amount thereof and any pay-in-kind notes issued for the payment of
interest thereon pursuant to the relevant Holdings Note Indenture
(it being understood that the conditions in clauses (a)(ii), (b) and
(c) in this definition shall not apply to any such accretion or
issuance of such pay-in-kind notes). The Original Holdings Notes may
take the form of Disqualified Capital Stock and, in such event,
references above to payments of interest shall be deemed to refer to
required or regularly scheduled dividend payments, references to
notes shall be deemed to refer to capital stock, references to
scheduled maturity and scheduled payments of principal shall be
deemed to refer to scheduled mandatory redemption and references to
principal amount shall be deemed to refer to liquidation value.
(h) The definition of "Pricing Grid" in Section 1.1 of the Credit
Agreement is hereby amended in its entirety to read as follows:
"Pricing Grid": (a) with respect to Revolving Credit Loans
(including Swingline Loans) the table set forth below:
4
Consolidated Leverage Ratio Applicable Margin for Applicable Margin Commitment Fee Rate
Eurodollar Loans for ABR Loans
> (or equal to) 4.5 to 1.0 3.00% 2.00% 0.50%
> (or equal to) 4.0 to 1.0 and
< 4.5 to 1.0 2.75% 1.75% 0.50%
> (or equal to) 3.5 to 1.0 and
< 4.0 to 1.0 2.50% 1.50% 0.375%
< 3.5 to 1.0 2.25% 1.25% 0.375%
and (b) with respect to Replacement Tranche C Term Loans, the table
set forth below:
Consolidated Leverage Ratio Applicable Margin for Applicable Margin for ABR
Eurodollar Loans Loans
> (or equal to) 3.00 to 1.0 2.50% 1.50%
< 3.00 to 1.0 2.25% 1.25%
For the purposes of the Pricing Grid, changes in the Applicable
Margin resulting from changes in the Consolidated Leverage Ratio
shall become effective on the date (the "Adjustment Date") that is
three Business Days after the date on which financial statements are
delivered to the Lenders pursuant to Section 6.1 and shall remain in
effect until the next change to be effected pursuant to this
paragraph. If any financial statements referred to above are not
delivered within the time periods specified in Section 6.1, then,
until the date that is three Business Days after the date on which
such financial statements are delivered, the highest rate set forth
in each column of the Pricing Grid shall apply. In addition, at all
times while an Event of Default shall have occurred and be
continuing, the highest rate set forth in each column of the Pricing
Grid shall apply. Each determination of the Consolidated Leverage
Ratio pursuant to the Pricing Grid shall be made in a manner
consistent with the determination thereof pursuant to Section 7.1.
(i) The definition of "Term Loan Lenders" in Section 1.1 of the Credit
Agreement is hereby amended in its entirety to read as follows:
"Term Loan Lenders": the collective reference to the Replacement
Tranche C Term Lenders and the Incremental Lenders that hold term
loans.
(j) The definition of "Term Loans" in Section 1.1 of the Credit
Agreement is hereby amended in its entirety to read as follows:
"Term Loans": the collective reference to the Replacement Tranche C
Term Loans and the Incremental Extensions of Credit that are term
loans.
1.3. Amendments to Section 2.1.
5
(a) Section 2.1 of the Credit Agreement is hereby amended by inserting
the following new paragraph (a)B immediately following paragraph (a)A:
"(a)B. Subject to the terms and conditions hereof, each Replacement
Tranche C Term Lender severally agrees to make a term loan (a
"Replacement Tranche C Term Loan") to the Borrower on the
Replacement Tranche C Effective Date in an amount not to exceed the
amount of the Replacement Tranche C Term Loan Commitment of such
Replacement Tranche C Term Lender."
(b) Clause (C) of the proviso in Section 2.1(b) is hereby amended in its
entirety to read as follows:
"(C) in the case of Incremental Extensions of Credit, the Applicable
Margin (which, for such purposes only, shall be deemed to include
all upfront or similar fees or original issue discount payable to
all Lenders providing such Incremental Extensions of Credit,
amortized over the maturity of such Incremental Extensions of
Credit, but exclusive of any arrangement, structuring or other fees
payable in connection therewith that are not shared with all Lenders
providing such Incremental Extensions of Credit) determined as of
the applicable Incremental Facility Closing Date shall not be
greater than 0.25% above the Applicable Margin then in effect for
Replacement Tranche C Term Loans (which, for such purposes only,
shall be deemed to include all upfront or similar fees or original
issue discount payable to all Replacement Tranche C Term Lenders as
of the applicable Incremental Facility Closing Date, amortized over
the maturity of such Replacement Tranche C Term Loans, but exclusive
of any arrangement, structuring or other fees payable in connection
therewith that are not shared with all Replacement Tranche C Term
Lenders) (or, in the case of any Incremental Trade Credit Facility,
Revolving Extensions of Credit (which, for such purposes only, shall
be deemed to include any upfront fees or original issue discount
paid to all Revolving Lenders as of the applicable Incremental
Facility Closing Date, amortized over the maturity of such Revolving
Extensions of Credit, but exclusive of any arrangement, structuring
or other fees payable in connection therewith that are not shared
with all Revolving Lenders))"
1.4. Amendment to Section 2.2. Section 2.2 of the Credit Agreement is
hereby amended in its entirety to read as follows:
"2.2 Procedure for Term Loan Borrowing. The Borrower shall give the
Administrative Agent irrevocable notice (which notice must be received by
the Administrative Agent prior to 11:00 A.M., New York City time, (a)
three Business Days prior to the anticipated Closing Date (or, in the case
of any Term Loans to be made after the Closing Date pursuant to Section
2.1(b), the requested Borrowing Date) in the case of Eurodollar Loans, or
(b) one Business Day prior to the anticipated Closing Date (or, if
applicable, the requested Borrowing Date), in the case of ABR Loans)
requesting that the relevant Term Loan Lenders make Term Loans on such
date and specifying the amount to be borrowed. Upon receipt of such notice
the Administrative Agent shall promptly notify each relevant Term Loan
Lender thereof. Not later than 12:00 Noon, New York City time, on the
requested Borrowing Date each relevant Term Loan Lender shall make
available to the Administrative Agent at the Funding Office an amount in
immediately available funds equal to the Term Loan or Term Loans to be
made by such Lender. The Administrative Agent shall credit the account of
the Borrower on the books of such office of the Administrative Agent with
the aggregate of the amounts made available to the Administrative Agent by
the relevant Term Loan Lenders in immediately available funds. The
requested Borrowing Date (i) for the Replacement Tranche B Term Loans made
pursuant to
6
Section 2.1(a)(A) shall be the Replacement Tranche B Effective Date and
(ii) for the Replacement Tranche C Term Loans made pursuant to Section
2.1(a)(B) shall be the Replacement Tranche C Effective Date. The Borrower
irrevocably authorizes the Administrative Agent to deduct from such
account of the Borrower (x) the proceeds of the Replacement Tranche B Term
Loans made pursuant to Section 2.1(a)(A) and apply such proceeds to the
prepayment of the Tranche B Term Loans on the Replacement Tranche B
Effective Date and (y) the proceeds of the Replacement Tranche C Term
Loans made pursuant to Section 2.1(a)(B) and apply such proceeds to the
prepayment of the Replacement Tranche B Term Loans."
1.5. Amendment to Section 2.3. Section 2.3 of the Credit Agreement is
hereby amended by inserting the following new paragraph (a)B immediately
following paragraph (a)A:
"(a)B. The Replacement Tranche C Term Loan of each Replacement
Tranche C Term Lender shall mature in 20 consecutive quarterly
installments and on the Replacement Tranche C Term Loan Maturity Date,
each of which shall be in an amount equal to such Replacement Tranche C
Term Lender's Replacement Tranche C Term Percentage multiplied by the
amount set forth below opposite such installment:
Installment Principal Amount
----------- ----------------
December 31, 2004 $3,750,000
March 31, 2005 $3,750,000
June 30, 2005 $3,750,000
September 30, 2005 $3,750,000
December 31, 2005 $3,750,000
March 31, 2006 $5,000,000
June 30, 2006 $5,000,000
September 30, 2006 $5,000,000
December 31, 2006 $5,000,000
March 31, 2007 $6,250,000
June 30, 2007 $6,250,000
September 30, 2007 $6,250,000
December 31, 2007 $6,250,000
March 31, 2008 $6,250,000
June 30, 2008 $6,250,000
September 30, 2008 $6,250,000
December 31, 2008 $6,250,000
March 31, 2009 $35,000,000
June 30, 2009 $35,000,000
September 30, 2009 $35,000,000
November 22, 2009 $35,000,000"
1.6. Amendment to Section 2.10. Section 2.10 of the Credit Agreement is
hereby amended by adding the following new paragraph at the end thereof:
"All optional prepayments of Replacement Tranche C Term Loans
effected on or prior to the first anniversary of the Replacement
Tranche C Effective Date with the proceeds of a substantially
concurrent issuance or incurrence of new term loans under this
Agreement, as amended, amended and restated, supplemented, waived or
otherwise modified from time to time, shall be accompanied by a
prepayment fee equal to 1% of the aggregate
7
amount of such prepayments if the Applicable Margin (or similar
interest rate spread) applicable to such new term loans is less than
the Applicable Margin applicable to the Replacement Tranche C Term
Loans on the date of such prepayment."
1.7. Addition of Section 4.16B. Section 4 of the Credit Agreement is
hereby amended by adding the following section following Section 4.16A thereof:
"4.16B Replacement Tranche C Term Loan Proceeds. The proceeds of the
Replacement Tranche C Term Loans shall be used on the Replacement
Tranche C Effective Date to prepay the Replacement Tranche B Term
Loans."
1.8. Amendments to Section 7.6. Section 7.6 of the Credit Agreement is
hereby amended by replacing clause (iv) of paragraph (j) thereof with the
following new clause (iv):
"(iv) the aggregate amount of dividends made by the Borrower
pursuant to this paragraph (j) at anytime on or after January 1,
2005, shall not exceed $125,000,000,"
1.9. Amendment to Section 7.15. Clause (iii) at the end of Section 7.15 of
the Credit Agreement is hereby amended in its entirety to read as follows:
"(iii) any restriction existing under any agreements governing
Indebtedness permitted under Section 7.2(f), (g), (i) and (l)"
1.10. Amendment to Section 8. Paragraph (l) of Section 8 is hereby amended
in its entirety to read as follows:
"(l) Holdings shall (i) conduct, transact or otherwise engage in, or
commit to conduct, transact or otherwise engage in, any business or
operations other than those (x) in connection with its ownership of
the Capital Stock of the Borrower and beneficial ownership of the
other Group Members, (y) relating to the ownership, operations and
administration of the businesses of the Group Members, taken as a
whole, including, without limitation, the engagement of
professionals, advisors and consultants and (z) in connection with
the issuance of Holdings Notes or its Capital Stock or as is
otherwise expressly permitted or contemplated for it by Section 7,
(ii) incur, create, assume or suffer to exist any Indebtedness or
other material liabilities or financial obligations, except (w)
nonconsensual obligations imposed by operation of law, (x)
obligations pursuant to the Loan Documents to which it is a party,
(y) obligations (including Indebtedness and Guarantee Obligations)
permitted or contemplated for it by Section 7 and (z) obligations
with respect to its Capital Stock, or (iii) own, lease, manage or
otherwise operate any properties or assets (including cash (other
than (i) cash received in connection with dividends made by the
Borrower in accordance with Section 7.6 pending application in the
manner contemplated by said Section and (ii) cash received in
connection with the issuance of Holdings Notes pending application
in the manner contemplated by Section 7.6(i) or pending application
to fees and expenses incurred in connection therewith) and cash
equivalents) other than the ownership of shares of Capital Stock of
the Borrower or otherwise in connection with or incidental to any of
the foregoing items permitted by this clause;"
1.11. New Schedule.
8
(a) The following language is added immediately following "Schedule
1.1AA" in the schedules listed on page (iv) of the Credit Agreement:
"Schedule 1.1AB Replacement Tranche C Term Commitments"
(b) Schedule 1.1AB, attached hereto as Exhibit A, is hereby added to the
Credit Agreement immediately following Schedule 1.1AA
1.12. Replacement of Terms. The following sections and exhibits of the
Credit Agreement are hereby amended to replace "Replacement Tranche B Term
Loan", "Replacement Tranche B Term Loans", "Replacement Tranche B Lenders",
"Replacement Tranche B Term Loan Maturity Date" and "Replacement Tranche B Term
Percentage" with "Replacement Tranche C Term Loan", "Replacement Tranche C Term
Loans", "Replacement Tranche C Term Lenders" "Replacement Tranche C Term Loan
Maturity Date" and "Replacement Tranche C Term Percentage", respectively:
(a) Section 2.1(b);
(b) Section 2.3(b);
(c) Section 2.17;
(d) Exhibit K; and
(e) Exhibit L.
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 "Replacement Tranche C 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 each Replacement
Tranche C Term Lender; 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, if any, the form
of which is attached hereto as Exhibit B.
(b) Consents, Licenses and Approvals. The Administrative Agent shall
have received a certificate of a Responsible Officer of the Borrower stating
that all consents, authorizations, notices and filings required in connection
with this Amendment, the Replacement Tranche C Term Facility, the security,
collateral and guarantees for the Replacement Tranche C Term Facility (except
for consents, authorizations, notices and filings which the failure to obtain or
make would not reasonably be expected to have a Material Adverse Effect) are in
full force and effect or have the status described therein, and the
Administrative Agent shall have received evidence thereof reasonably
satisfactory to it.
9
(c) Legal Opinions. The Administrative Agent shall have received an
executed legal opinion of O'Melveny & Xxxxx LLP, counsel to each of Holdings and
the Borrower, reasonably satisfactory in form and substance to the
Administrative Agent.
(d) Closing Certificate. The Administrative Agent shall have received a
certificate from each Loan Party, dated the Replacement Tranche C Effective
Date, substantially in the form of Exhibit C to the Credit Agreement, with
appropriate insertions and attachments and modifications to reflect this
Amendment.
(e) Corporate Proceedings of the Loan Parties. The Administrative Agent
shall have received a copy of the resolutions, in form and substance reasonably
satisfactory to the Administrative Agent, of the board of directors of each Loan
Party authorizing, as applicable, (i) the execution, delivery and performance of
this Amendment, any Notes evidencing the Replacement Tranche C Term Loans, the
Reaffirmation and the other Loan Documents to which such Loan Party will become
a party as of the Replacement Tranche C Effective Date and (ii) the extensions
of credit to such Loan Party (if any) contemplated hereunder, certified by the
Secretary or an Assistant Secretary of such Loan Party as of the Replacement
Tranche C Effective Date, which certificate shall be in form and substance
reasonably satisfactory to the Administrative Agent and shall state that the
resolutions thereby certified have not been amended, modified (except as any
later such resolution may modify any earlier such resolution), revoked or
rescinded and are in full force and effect.
(f) Incumbency Certificates of the Loan Parties. The Administrative
Agent shall have received a certificate of each Loan Party, dated the
Replacement Tranche C Effective Date, as to the incumbency and signature of the
officers of such Loan Party executing any Loan Document, reasonably satisfactory
in form and substance to the Administrative Agent, executed by a Responsible
Officer and the Secretary or any Assistant Secretary of such Loan Party.
(g) Payment of Fees and Expenses. The Administrative Agent shall have
received payment for all 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.
2.2. Further Conditions Regarding Certain Provision to the Amendment. The
amendment to the definition of "Original Holdings Notes" in Section 1.2(g) of
this Amendment and the amendments in Sections 1.7 through 1.9 of this Amendment
shall become effective as of the date first set forth above upon satisfaction of
the following conditions precedent:
(a) The Replacement Tranche C Effective Date shall have occurred;
(b) The Replacement Tranche C Term Loans shall have been made; and
(c) The Administrative Agent shall have received counterparts of this
Amendment duly executed and delivered, or consented to in a manner satisfactory
to the Administrative Agent, by the Required Lenders, determined after giving
effect to the making of the Replacement Tranche C Term Loans and the use of the
proceeds thereof to prepay the Replacement Tranche B Term Loans.
2.3. Representations and Warranties.
(a) 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, moratorium or
similar laws affecting
10
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.
(b) (i) The audited consolidated balance sheets of the Borrower and
its Subsidiaries as at December 31, 2003, and the related consolidated
statements of income and of cash flows for the fiscal year ended December 31,
2003, reported on by and accompanied by an unqualified report from KPMG LLP,
copies of each of which have heretofore been furnished to the Administrative
Agent and each Replacement Tranche C Term Lender, present fairly, in all
material respects, the consolidated financial condition of the Borrower and its
Subsidiaries as at such date, and the consolidated results of its operations and
its consolidated cash flows for the fiscal year then ended. The unaudited
consolidated balance sheet of the Borrower and its Subsidiaries as at June 27,
2004, and the related unaudited consolidated statements of income and cash flows
for the three-month period ended on such date, present fairly, in all material
respects, the consolidated financial condition of the Borrower as at such date,
and the consolidated results of its operations and its consolidated cash flows
for the three-month period then ended (subject to normal year-end audit
adjustments). All such financial statements, including the related schedules and
notes thereto, have been prepared in accordance with GAAP applied consistently
throughout the periods involved (except as approved by the aforementioned firm
of accountants and disclosed therein and, in the case of the unaudited financial
statements referred to in the preceding sentence, except for the absence in
footnotes) and the applicable rules and regulation of the Securities Act. As of
December 31, 2003, neither Holdings nor any of its Subsidiaries has any material
Guarantee Obligations, contingent liabilities and liabilities for taxes, or any
long-term leases or unusual forward or long-term commitments, including any
interest rate or foreign currency swap or exchange transaction or other
obligation in respect of derivatives, that are not reflected in the most recent
financial statements as of and for the fiscal year ended December 31, 2003.
(ii) Since December 31, 2003 (i) there have not been any events or
states of fact which individually or in the aggregate would have a Material
Adverse Effect, and (ii) no change has occurred or is threatened which
individually or in the aggregate has had or is continuing to have a material
adverse effect on the prospects of the Borrower and its Subsidiaries taken as a
whole.
2.4. Mortgages. With respect to each of the Mortgages, to the extent
reasonably requested by the Administrative Agent, within sixty (60) days
following the Replacement Tranche C Effective Date, the Loan Party signatory
thereto shall execute and deliver a mortgage amendment, which has the effect of
including all obligations of the Loan Parties in respect of the Replacement
Tranche C Term Loans as secured obligations under such Mortgage, and furnish a
title report with respect to each Mortgaged Property, in each case form and
substance reasonably satisfactory to the Administrative Agent.
2.5. 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.
11
2.6. 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 a
Amendment of any other provision of the Credit Agreement not expressly referred
to herein and shall not be construed as a Amendment or consent to any further or
future action on the part of the Borrower that would require a 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.
2.7. 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.
2.8. 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]
12
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly
executed and delivered by their respective proper and duly authorized officers
as of the day and year first above written.
NATIONAL WATERWORKS, INC.
By: /s/ Xxxxxxxx Xxxxxxxxx
------------------------------------------
Name: Xxxxxxxx Xxxxxxxxx
Title: CFO & Secretary
NATIONAL WATERWORKS HOLDINGS, INC.
By: /s/ Xxxxxxxx Xxxxxxxxx
------------------------------------------
Name: Xxxxxxxx Xxxxxxxxx
Title: CFO & Secretary
UBS AG, STAMFORD BRANCH, as Administrative Agent
and as a Lender
By: /s/ Xxxxxxx X. Saint
------------------------------------------
Name: Xxxxxxx X. Saint
Title: Director Banking Products
Services, US
By: /s/ Xxxxx Xxxx
------------------------------------------
Name: Xxxxx Xxxx
Title: Associate Director Banking Products
Services, US
Allstate Life Insurance Company
as a Replacement Tranche C Term Lender
By: /s/ Xxxxx Xxxxxxx
------------------------------------------
Name: Xxxxx Xxxxxxx
Title: Authorized Signatory
By: /s/ Xxxxxxx X. Xxxxx
------------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Authorized Signatory
Signature Pages to Third Amendment
13
AIMCO CDO Series 2000-A
as a Replacement Tranche C Term Lender
By: /s/ Xxxxx Xxxxxxx
------------------------------------------
Name: Xxxxx Xxxxxxx
Title: Authorized Signatory
By: /s/ Xxxxxxx X. Xxxxx
------------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Authorized Signatory
AIMCO CLO Series 2001-A
as a Replacement Tranche C Term Lender
By: /s/ Xxxxx Xxxxxxx
------------------------------------------
Name: Xxxxx Xxxxxxx
Title: Authorized Signatory
By: /s/ Xxxxxxx X. Xxxxx
------------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Authorized Signatory
as a Replacement Tranche C Term Lender
Monument Capital Ltd., as Assignee
By: Alliance Capital Management L.P.,
as Investment Manager
By: Alliance Capital Management Corporation,
as General Partner
By: /s/ Xxxx Xxxxxxxxxxx
------------------------------------------
Name: Xxxx Xxxxxxxxxxx
Title: Senior Vice President
New Alliance Global CDO, Limited
By: Alliance Capital Management L.P.,
as Sub-advisor
By: Alliance Capital Management Corporation,
as General Partner
By: /s/ Xxxx Xxxxxxxxxxx
------------------------------------------
Name: Xxxx Xxxxxxxxxxx
Title: Senior Vice President
14
UBS AG, STAMFORD BRANCH, as Administrative Agent
and as a Lender
By:
------------------------------------------
Name:
Title:
Antares Capital Corporation
By: /s/ Xxxxx X. Xxxxxxxx
------------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Director
Mariner CDO 2002, Ltd
By: Antares Asset Management Inc.,
As Collateral Manager
By: /s/ Xxxxx X. Xxxxxxxx
------------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
Navigator CDO 2003, Ltd
By: Antares Asset Management Inc.,
As Collateral Manager
By: /s/ Xxxxx X. Xxxxxxxx
------------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
THE GOVERNOR AND COMPANY OF THE BANK OF IRELAND
as a Replacement Tranche C Term Lender
By: /s/ Xxxxxxxxx Xxxxxx
------------------------------------------
Name: Xxxxxxxxx Xxxxxx
Title: Authorised Signatory
By: /s/ Xxxxx Xxxxxx
------------------------------------------
Name: Xxxxx Xxxxxx
Title: Authorised Signatory
15
THE GOVERNOR AND COMPANY OF THE BANK OF IRELAND
as a Revolving Credit Lender
By: /s/ Xxxxxxxxx Xxxxxx
------------------------------------------
Name: Xxxxxxxxx Xxxxxx
Title: Authorised Signatory
By: /s/ Xxxxx Xxxxxx
------------------------------------------
Name: Xxxxx Xxxxxx
Title: Authorised Signatory
Hanover Square CLO Ltd.
By: Blackstone Debt Advisors L.P.
As Collateral Manager
as a Replacement Tranche C Term Lender
By: /s/ Xxxx Xxxxxxx
------------------------------------------
Name: Xxxx Xxxxxxx
Title: Managing Director
Union Square CDO Ltd.
By: Blackstone Debt Advisors L.P.
As Collateral Manager
as a Replacement Tranche C Term Lender
By: /s/ Xxxx Xxxxxxx
------------------------------------------
Name: Xxxx Xxxxxxx
Title: Managing Director
CALYON NEW YORK BRANCH
as a Revolving Credit Lender
By: /s/ Xxxx Xxxxxxxx
------------------------------------------
Name: Xxxx Xxxxxxxx
Title: Director
CALYON NEW YORK BRANCH
as a Revolving Credit Lender
By: /s/ W. Xxxxxxx Xxxxxx
------------------------------------------
Name: W. Xxxxxxx Xxxxxx
Title: Managing Director
16
CALYON NEW YORK BRANCH
as a Replacement Tranche C Term Lender
By: /s/ Xxxx Xxxxxxxx
------------------------------------------
Name: Xxxx Xxxxxxxx
Title: Director
CALYON NEW YORK BRANCH
as a Replacement Tranche C Term Lender
By: /s/ W. Xxxxxxx Xxxxxx
------------------------------------------
Name: W. Xxxxxxx Xxxxxx
Title: Managing Director
Carlyle High Yield Partners II, Ltd.
as a Replacement Tranche C Term Lender
By: /s/ Xxxxx Xxxx
------------------------------------------
Name: Xxxxx Xxxx
Title: Managing Director
Carlyle High Yield Partners III, Ltd.
as a Replacement Tranche C Term Lender
By: /s/ Xxxxx Xxxx
------------------------------------------
Name: Xxxxx Xxxx
Title: Managing Director
Carlyle High Yield Partners IV, Ltd.
as a Replacement Tranche C Term Lender
By: /s/ Xxxxx Xxxx
------------------------------------------
Name: Xxxxx Xxxx
Title: Managing Director
Carlyle Loan Opportunity Fund
as a Replacement Tranche C Term Lender
By: /s/ Xxxxx Xxxx
------------------------------------------
Name: Xxxxx Xxxx
Title: Managing Director
17
Olympic CLO I
as a Replacement Tranche C Term Lender
By: /s/ Xxxx X. Xxxxxxxxx
------------------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Chief Operating Officer
Centre Pacific, Manager
Sierra CLO I
as a Replacement Tranche C Term Lender
By: /s/ Xxxx X. Xxxxxxxxx
------------------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Chief Operating Officer
Centre Pacific, Manager
Citigroup Investments Corporate Loan Fund Inc.
By: Travelers Asset Management International
Company LLC as a Replacement Tranche C Term
Lender
By: /s/ Xxxx X'Xxxxxxx
------------------------------------------
Name: Xxxx X'Xxxxxxx
Title: Vice President
Columbus Loan Funding Ltd.
By: Travelers Asset Management International
Company LLC as a Replacement Tranche C Term
Lender
By: /s/ Xxxx X'Xxxxxxx
------------------------------------------
Name: Xxxx X'Xxxxxxx
Title: Vice President
CHASE LINCOLN FIRST COMMERCIAL
as a Replacement Tranche C Term Lender
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
CHASE LINCOLN FIRST COMMERCIAL
as a Revolving Credit Lender
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
18
Atrium CDO
as a Replacement Tranche C Term Lender
By: /s/ Xxxxx X. Xxxxxx
------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Authorized Signatory
CSAM Funding I
as a Replacement Tranche C Term Lender
By: /s/ Xxxxx X. Xxxxxx
------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Authorized Signatory
CSAM Funding II
as a Replacement Tranche C Term Lender
By: /s/ Xxxxx X. Xxxxxx
------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Authorized Signatory
CSAM Funding III
as a Replacement Tranche C Term Lender
By: /s/ Xxxxx X. Xxxxxx
------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Authorized Signatory
First Dominion Funding II
as a Replacement Tranche C Term Lender
By: /s/ Xxxxx X. Xxxxxx
------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Authorized Signatory
BRYN MAWR CLO LTD.
By: Deerfield Capital Management LLC,
As its Collateral Manager
as a Replacement Tranche C Term Lender
By: /s/ Xxx Xxxxxxx
------------------------------------------
Name: Xxx Xxxxxxx
Title: Senior Vice President
19
FOREST CREEK CLO LTD.
By: Deerfield Capital Management LLC,
As its Collateral Manager
as a Replacement Tranche C Term Lender
By: /s/ Xxx Xxxxxxx
------------------------------------------
Name: Xxx Xxxxxxx
Title: Senior Vice President
LONG GROVE CLO LTD.
By: Deerfield Capital Management LLC,
As its Collateral Manager
as a Replacement Tranche C Term Lender
By: /s/ Xxx Xxxxxxx
------------------------------------------
Name: Xxx Xxxxxxx
Title: Senior Vice President
MUIRFIELD TRADING LLC
as a Replacement Tranche C Term Lender
By: /s/ Xxxxxxxx X. Xxxxxxx
------------------------------------------
Name: Xxxxxxxx X. Xxxxxxx
Title: Assistant Vice President
ROSEMONT CLO LTD.
By: Deerfield Capital Management LLC,
As its Collateral Manager
as a Replacement Tranche C Term Lender
By: /s/ Xxx Xxxxxxx
------------------------------------------
Name: Xxx Xxxxxxx
Title: Senior Vice President
SEQUILS-CUMBERLAND I, LTD.
By: Deerfield Capital Management LLC,
As its Collateral Manager
as a Replacement Tranche C Term Lender
By: /s/ Xxx Xxxxxxx
------------------------------------------
Name: Xxx Xxxxxxx
Title: Senior Vice President
20
BIG SKY III SENIOR LOAN TRUST
By: XXXXX XXXXX MANAGEMENT
AS INVESTMENT ADVISOR
as a Replacement Tranche C Term Lender
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
BIG SKY SENIOR LOAN FUND, LTD.
By: XXXXX XXXXX MANAGEMENT
AS INVESTMENT ADVISOR
as a Replacement Tranche C Term Lender
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
COSTANTINUS XXXXX XXXXX CDO V, LTD.
By: XXXXX XXXXX MANAGEMENT
AS INVESTMENT ADVISOR
as a Replacement Tranche C Term Lender
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
XXXXX XXXXX CDO II, LTD.
By: XXXXX XXXXX MANAGEMENT
AS INVESTMENT ADVISOR
as a Replacement Tranche C Term Lender
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
XXXXX XXXXX CDO III, LTD.
By: XXXXX XXXXX MANAGEMENT
AS INVESTMENT ADVISOR
as a Replacement Tranche C Term Lender
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
21
XXXXX XXXXX CDO VI, LTD.
By: XXXXX XXXXX MANAGEMENT
AS INVESTMENT ADVISOR
as a Replacement Tranche C Term Lender
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
XXXXX XXXXX INSTITUTIONAL SENIOR LOAN FUND
By: XXXXX XXXXX MANAGEMENT
AS INVESTMENT ADVISOR
as a Replacement Tranche C Term Lender
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
XXXXX XXXXX LIMITED DURATION INCOME FUND
By: XXXXX XXXXX MANAGEMENT
AS INVESTMENT ADVISOR
as a Replacement Tranche C Term Lender
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
XXXXX XXXXX SENIOR FLOATING-RATE TRUST
By: XXXXX XXXXX MANAGEMENT
AS INVESTMENT ADVISOR
as a Replacement Tranche C Term Lender
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
XXXXX XXXXX SENIOR INCOME TRUST
By: XXXXX XXXXX MANAGEMENT
AS INVESTMENT ADVISOR
as a Replacement Tranche C Term Lender
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
22
XXXXX XXXXX FLOATING-RATE INCOME TRUST
By: XXXXX XXXXX MANAGEMENT
AS INVESTMENT ADVISOR
as a Replacement Tranche C Term Lender
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
XXXXXXX & CO
By: BOSTON MANAGEMENT AND RESEARCH AS
INVESTMENT ADVISOR
as a Replacement Tranche C Term Lender
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
OXFORD STRATEGIC INCOME FUND
By: XXXXX XXXXX MANAGEMENT
AS INVESTMENT ADVISOR
as a Replacement Tranche C Term Lender
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
SENIOR DEBT PORTFOLIO
By: BOSTON MANAGEMENT AND RESEARCH as
Investment Advisor
as a Replacement Tranche C Term Lender
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
TOLLI & CO.
By: XXXXX XXXXX MANAGEMENT
AS INVESTMENT ADVISOR
as a Replacement Tranche C Term Lender
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
23
Fidelity Advisor Deries II: Fidelity Advisor
Floating Rate High Income Fund
as a Replacement Tranche C Term Lender
By: /s/ Xxxx X. Xxxxxxxx
------------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Assistant Treasurer
Flagship CLO II
By: Flagship Capital Management, Inc.
as a Replacement Tranche C Term Lender
By: /s/ Xxxx X. Xxxxx
------------------------------------------
Name: Xxxx X. Xxxxx
Title: Director
Franklin CLO III, Limited
as a Replacement Tranche C Term Lender
By: /s/ Xxxxx Xxxxxx
------------------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
FRANKLIN CLO IV, LIMITED
as a Replacement Tranche C Term Lender
By: /s/ Xxxxx Xxxxxx
------------------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
FRANKLIN FLOATING RATE DAILY ACCESS FUND
as a Replacement Tranche C Term Lender
By: /s/ Xxxxxxx Xxx
------------------------------------------
Name: Xxxxxxx Xxx
Title: Vice President
Franklin Floating Rate Master Series
as a Replacement Tranche C Term Lender
By: /s/ Xxxxxxx Xxx
------------------------------------------
Name: Xxxxxxx Xxx
Title: Vice President
24
Franklin Floating Rate Trust
as a Replacement Tranche C Term Lender
By: /s/ Xxxxxxx Xxx
------------------------------------------
Name: Xxxxxxx Xxx
Title: Vice President
General Electric Capital Corporation
As a Replacement Tranche C Term Lender
By: /s/ Xxxxx X. Xxxxxxx
------------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Duly Authorized Signatory
General Electric Capital Corporation
as a Revolving Credit Lender
By: /s/ Xxxxxxx X. Xxxxxxxx
------------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: SVP
GE Business Capital Corporation
as a Replacement Tranche C Term Lender
By: /s/ Xxxxxxx X. Xxxxxxxx
------------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: SVP
GE Business Capital Corporation
as a Revolving Credit Lender
By: /s/ Xxxxxxx X. Xxxxxxxx
------------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: SVP
State Street Bank and Trust Company as Trustee
for GMAM Group Pension Trust I
as a Replacement Tranche C Term Lender
By: /s/ Xxxxxxx Xxxxxxxxx
------------------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: CSO
00
Xxxxx Xxxxxx Xxxx and Trust Company as Trustee
for General Motors Welfare Benefit Trust
as a Replacement Tranche C Term Lender
By: /s/ Xxxxxxx Xxxxxxxxx
------------------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: CSO
GoldenTree Loan Opportunities II, Limited
By: GoldenTree Asset Management, LP
as a Replacement Tranche C Term Lender
By: /s/ Xxxxxxxxx X. Xxxxxx
------------------------------------------
Name: Xxxxxxxxx X. Xxxxxx
Title: Portfolio Manager
GoldenTree Loan Opportunities I, Limited
By: GoldenTree Asset Management, LP
as a Replacement Tranche C Term Lender
By: /s/ Xxxxxxxxx X. Xxxxxx
------------------------------------------
Name: Xxxxxxxxx X. Xxxxxx
Title: Portfolio Manager
XXXXXXX XXXXX CREDIT PARTNERS, L.P.
As a Revolving Credit Lender
By: /s/ Xxxxxx Xxxxxxxxx
------------------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Authorized Signatory
ING PRIME RATE TRUST
As a Replacement Tranche C Term Lender
By: ING Investment Management, Co.
As its investment manager
By: /s/ Xxxxxxxx X. Xxxx
------------------------------------------
Name: Xxxxxxxx X. Xxxx
Title: Vice President
26
ING SENIOR INCOME FUND
As a Replacement Tranche C Term Lender
By: ING Investment Management, Co.
As its investment manager
By: /s/ Xxxxxxxx X. Xxxx
------------------------------------------
Name: Xxxxxxxx X. Xxxx
Title: Vice President
SEQUILS-PILGRIM I, LTD,
As a Replacement Tranche C Term Lender
By: ING Investments, LLC
As its investment manager
By: /s/ Xxxxxxxx X. Xxxx
------------------------------------------
Name: Xxxxxxxx X. Xxxx
Title: Vice President
Venture CDO 2002, Limited
By its investment advisor MJX Asset Management
LLC
By: /s/ Xxxx Xxxxx
------------------------------------------
Name: Xxxx Xxxxx
Title:
Venture II CDO, Limited
By its investment advisor MJX Asset Management
LLC
By: /s/ Xxxx Xxxxx
------------------------------------------
Name: Xxxx Xxxxx
Title:
As a Replacement Tranche C Term Lender
Longhorn CDO III, LTD.
By: Xxxxxxx Xxxxx Investment Managers, L.P.
As Investment Advisor
By: /s/ Xxxxxxx Xxxxxx
------------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Authorized Signatory
27
Longhorn CDO (Cayman) LTD
By: Xxxxxxx Xxxxx Investment Managers, L.P.
As Investment Advisor
By: /s/ Xxxxxxx Xxxxxx
------------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Authorized Signatory
Xxxxxx Xxxxxxx Prime Income Trust
as a Replacement Tranche C Term Lender
By: /s/ Xxxxxxxxx Xxxxxxx
------------------------------------------
Name: Xxxxxxxxx Xxxxxxx
Title: Authorized Signatory
NATEXIS BANQUES POPULAIRES
as a Replacement Tranche C Term Lender
By: /s/ Xxxxx X. Xxxxxx, Xx.
------------------------------------------
Name: Xxxxx X. Xxxxx, Xx.
Title: Vice President & Group Manager
By: /s/ Xxxxxxx X. Xxxxx
------------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
as a Replacement Tranche C Term Lender
By: /s/
------------------------------------------
Name:
Title:
OAK HILL CREDIT PARTNERS III, LIMITED
By: Oak Hill CLO Management III, LLC
As Investment Manager
By: /s/ Xxxxx X. Xxxxx
------------------------------------------
Name: Xxxxx X. Xxxxx
Title: Authorized Person
28
as a Replacement Tranche C Term Lender
By: /s/
------------------------------------------
Name:
Title:
OAK HILL CREDIT PARTNERS I, LIMITED
By: Oak Hill CLO Management I, LLC
As Investment Manager
By: /s/ Xxxxx X. Xxxxx
------------------------------------------
Name: Xxxxx X. Xxxxx
Title: Authorized Person
as a Replacement Tranche C Term Lender
By: /s/
------------------------------------------
Name:
Title:
OAK HILL CREDIT PARTNERS II, LIMITED
By: Oak Hill CLO Management II, LLC
As Investment Manager
By: /s/ Xxxxx X. Xxxxx
------------------------------------------
Name: Xxxxx X. Xxxxx
Title: Authorized Person
HarbourView CLO IV, Ltd.
as a Replacement Tranche C Term Lender
By: /s/ Xxxx Xxxxxxx
------------------------------------------
Name: Xxxx Xxxxxxx
Title: Manager
HarbourView CLO V, Ltd.
as a Replacement Tranche C Term Lender
By: /s/ Xxxx Xxxxxxx
------------------------------------------
Name: Xxxx Xxxxxxx
Title: Manager
29
Xxxxxxxxxxx Senior Floating Rate Fund
as a Replacement Tranche C Term Lender
By: /s/ Xxxx Xxxxxxx
------------------------------------------
Name: Xxxx Xxxxxxx
Title: Manager
PPM SHADOW CREEK FUNDING LLC
as a Replacement Tranche C Term Lender
By: /s/ Xxxxxxxx X. Xxxxxxx
------------------------------------------
Name: Xxxxxxxx X. Xxxxxxx
Title: Assistant Vice President
PPM SPYGLASS FUNDING TRUST
as a Replacement Tranche C Term Lender
By: /s/ Xxxxx X. Xxxxx
------------------------------------------
Name: Xxxxx X. Xxxxx
Title: Authorized Agent
Xxxxxx III-Leveraged Loan CDO 2002,
By Prudential Investment Management, Inc.,
As Collateral Manager
as a Replacement Tranche C Term Lender
By: /s/ Illegible
------------------------------------------
Name:
Title: Vice President
Xxxxxxxxx Carrera CLO, Ltd.
By: Xxxxxxxxx Capital Partners LLC
As its Asset Manager
as a Replacement Tranche C Term Lender
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Director
30
Xxxxxxxxx Arbitrage CDO, Ltd.
By: Xxxxxxxxx Capital Partners LLC
As its Collateral Manager
as a Replacement Tranche C Term Lender
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Director
SunAmerica Life Insurance Company
By: AIG Global Investment Corp.,
Its Investment Advisor
as a Replacement Tranche C Term Lender
By: /s/ Xxxxx Xxxxxxxxx
------------------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Vice President
Galaxy CLO 1999-1, Ltd.
By: AIG Global Investment Corp.,
Its Collateral Manager
as a Replacement Tranche C Term Lender
By: /s/ Xxxxx Xxxxxxxxx
------------------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Vice President
Inner Harbor 2001-1 CBO with X. Xxxx Price as
Collateral Manager as a Replacement Tranche C
Term Lender
By: /s/ Xxxxx Xxxxx
------------------------------------------
Name: Xxxxx Xxxxx
Title: Portfolio Manager Vice President
as a Replacement Tranche C Term Lender
C-SQUARED CDO LTD.
By: TCW Advisors, Inc., as its Portfolio Manager
By: /s/ Xxxxxxxx X. Xxxxxx
------------------------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Managing Director
31
as a Replacement Tranche C Term Lender
FIRST 2004-I CLO, LTD.
By: TCW Advisors, Inc., its Collateral Manager
By: /s/ Xxxxxxxx X. Xxxxxx
------------------------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Managing Director
By: /s/ Xxxxxxx X. Xxxxx
------------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Senior Vice President
as a Replacement Tranche C Term Lender
FIRST 2004-II CLO, LTD.
By: TCW Advisors, Inc., its Collateral Manager
By: /s/ Xxxxxxx X. Xxxxx
------------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Senior Vice President
By: /s/ Xxxxxxxx X. Xxxxxx
------------------------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Managing Director
as a Replacement Tranche C Term Lender
LOAN FUNDING I LLC, a wholly owned subsidiary of
Citibank, N.A.
By: TCW Advisors, Inc., as portfolio manager of
Loan Funding I LLC
By: /s/ Xxxxxxx X. Xxxxx
------------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Senior Vice President
By: /s/ Xxxxxxxx X. Xxxxxx
------------------------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Managing Director
as a Replacement Tranche C Term Lender
VELOCITY CLO, LTD.
By: TCW Advisors, Inc., its Collateral Manager
By: /s/ Xxxxxxx X. Xxxxx
------------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Senior Vice President
32
By: /s/ Xxxxxxxx X. Xxxxxx
------------------------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Managing Director
as a Replacement Tranche C Term Lender
TCW SELECT LOAN FUND, LIMITED
By: TCW Advisors, Inc. as its Collateral Manager
By: /s/ Xxxxxxx X. Xxxxx
------------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Senior Vice President
By: /s/ Xxxxxxxx X. Xxxxxx
------------------------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Managing Director
Toronto Dominion (New York), Inc.
as a Replacement Tranche C Term Lender
By: /s/ Xxxxxx Xxxxxx
------------------------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President
CITICORP INSURANCE AND INVESTMENT TRUST
as a Replacement Tranche C Term Lender
BY TRAVELERS ASSET MANAGEMENT INTERNATIONAL
COMPANY, LLC
By: /s/ Xxxxx Xxxxxxxx
------------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Investment Officer
THE TRAVELERS INSURANCE COMPANY
as a Replacement Tranche C Term Lender
By: /s/ Xxxxx Xxxxxxxx
------------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Investment Officer
33
Tuscany CDO, Limited by PPM America, Inc., as
Collateral Manager as a Replacement Tranche C
Term Lender
By: /s/ Xxxxx X. Xxxxxx
------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Managing Director
UBS AG, STAMFORD BRANCH
as a Replacement Tranche C Term Lender
By: /s/ Xxxxxxx X. Saint
------------------------------------------
Name: Xxxxxxx X. Saint
Title: Director Banking Products
Services, US
By: /s/ Xxxxx Xxxx
------------------------------------------
Name: Xxxxx Xxxx
Title: Associate Director Banking Products
Services, US
UBS AG, STAMFORD BRANCH
as a Revolving Credit Lender
By: /s/ Xxxxxxx X. Saint
------------------------------------------
Name: Xxxxxxx X. Saint
Title: Director Banking Products
Services, US
By: /s/ Xxxxx Xxxx
------------------------------------------
Name: Xxxxx Xxxx
Title: Associate Director Banking Products
Services, US
XXX XXXXXX SENIOR INCOME TRUST
By: Xxx Xxxxxx Investment Advisory Corp.
as a Replacement Tranche C Term Lender
By: /s/ Xxxxxx Xxxxxx
------------------------------------------
Name: Xxxxxx Xxxxxx
Title: Executive Director
34
EXHIBIT A
Schedule 1.1AB
Replacement Tranche C Term Commitments
Name Replacement Tranche C
Term Commitment
AIMCO CDO SERIES 2000 A $933,673.30
AIMCO CLO SERIES 2001-A $933,673.48
ALLIANCE - MONUMENT CAPITAL LTD. $2,801,020.41
ALLIANCE - NEW ALLIANCE GLOBAL CDO, LIMITED $1,867,346.94
ALLSTATE LIFE INSURANCE COMPANY $2,801,020.41
ANTARES - ANTARES CAPITAL CORPORATION $3,660,000.00
THE GOVERNOR AND COMPANY OF THE BANK OF IRELAND $4,668,367.35
BLACKSTONE - HANOVER SQUARE CLO LTD. $3,734,693.87
BLACKSTONE - UNION SQUARE CDO LTD. $1,867,346.94
CALYON NEW YORK BRANCH $1,867,346.94
XXXXXXX - XXXXXXX HIGH YIELD PARTNERS III, LTD. $933,673.48
XXXXXXX - XXXXXXX HIGH YIELD PARTNERS II, LTD. $933,673.48
XXXXXXX - XXXXXXX HIGH YIELD PARTNERS IV, LTD. $933,673.48
XXXXXXX - XXXXXXX LOAN OPPORTUNITY FUND $933,673.48
CENTRE PACIFIC - OLYMPIC CLO I $1,867,346.94
CENTRE PACIFIC - SIERRA CLO I $1,867,346.94
CGAM - CITIGROUP INVESTMENTS CORPORATE LOAN FUND INC. $933,673.48
CGAM - COLUMBUS LOAN FUNDING LTD. $933,673.48
CHASE LINCOLN FIRST COMMERCIAL $1,750,637.57
CSAM - ATRIUM CDO $933,673.48
CSAM - CSAM FUNDING I $1,867,346.94
CSAM - CSAM FUNDING II $2,100,765.30
CSAM - CSAM FUNDING III $3,267,857.13
CSAM - FIRST DOMINION FUNDING II $3,034,438.76
DEERFIELD - BRYN MAWR CLO LTD. $1,792,653.05
DEERFIELD - FOREST CREEK CLO LTD. $1,792,653.05
DEERFIELD - LONG GROVE CLO LTD. $896,326.52
DEERFIELD - MUIRFIELD TRADING LLC $401,479.59
DEERFIELD - ROSEMONT CLO LTD. $1,792,653.05
DEERFIELD - SEQUILS-CUMBERLAND I, LTD. $2,660,969.39
EV - BIG SKY III SENIOR LOAN TRUST $1,867,347.00
EV - BIG SKY SENIOR LOAN FUND, LTD. $1,700,255.11
EV - COSTANTINUS XXXXX XXXXX CDO V, LTD. $2,801,020.41
35
EV - XXXXX XXXXX CDO II, LTD. $700,255.11
EV - XXXXX XXXXX CDO III, LTD. $2,334,183.67
EV - XXXXX XXXXX CDO VI LTD. $1,867,346.94
EV - XXXXX XXXXX INSTITUTIONAL SENIOR LOAN FUND $1,867,346.94
EV - XXXXX XXXXX LIMITED DURATION INCOME FUND $4,201,530.61
EV - XXXXX XXXXX SENIOR FLOATING-RATE TRUST $1,000,000.00
EV - XXXXX XXXXX SENIOR INCOME TRUST $1,400,510.22
EV - XXXXX XXXXX FLOATING-RATE INCOME TRUST $4,000,000.00
EV - XXXXXXX & CO $5,508,686.65
EV - OXFORD STRATEGIC INCOME FUND $466,836.74
EV - SENIOR DEBT PORTFOLIO $4,668,367.35
EV - TOLLI & CO $1,400,510.22
FIDELITY - FIDELITY ADVISOR SERIES II: FIDELITY ADVISOR FLOATING RATE HIGH INCOME FUND $1,867,346.94
FLAGSHIP - FLAGSHIP CLO II $2,801,020.41
XXXXXXXX - XXXXXXXX CLO III, LIMITED $933,673.48
XXXXXXXX - XXXXXXXX CLO IV, LIMITED $2,801,020.41
XXXXXXXX - XXXXXXXX FLOATING RATE DAILY ACCESS FUND $933,673.48
XXXXXXXX - XXXXXXXX FLOATING RATE MASTER SERIES $933,673.48
XXXXXXXX - XXXXXXXX FLOATING RATE TRUST $933,673.48
GE CAPITAL - GENERAL ELECTRIC CAPITAL CORPORATION $14,640,000.00
GE BUSINESS CAPITAL CORPORATION $6,405,000.00
GENERAL MOTORS WELFARE BENEFIT TRUST $933,673.48
GMAM GROUP PENSION TRUST I $2,801,020.41
GOLDENTREE - GOLDENTREE LOAN OPPORTUNITIES II, LIMITED $3,734,693.87
GOLDENTREE - GOLDENTREE LOAN OPPORTUNITIES I, LIMITED $6,535,714.28
ING INV - ING PRIME RATE TRUST $2,801,020.41
ING INV - ING SENIOR INCOME FUND $1,400,510.22
ING INV - SEQUILS-PILGRIM I, LTD $1,400,510.22
MARINER CDO 2002, LTD $2,745,000.00
MJX - VENTURE CDO 2002, LIMITED $933,673.48
MJX - VENTURE II CDO, LIMITED $933,673.48
ML - LONGHORN CDO (CAYMAN) LTD $1,867,346.94
ML - LONGHORN CDO III, LTD. $933,673.48
XXXXXX XXXXXXX PRIME INCOME TRUST $1,867,346.94
NATEXIS BANQUES POPULAIRES $9,150,000.00
NAVIGATOR CDO 2003, LTD. $2,745,000.00
OAKHILL - OAK HILL CREDIT PARTNERS III, LIMITED $3,734,693.87
OAKHILL - OAK HILL CREDIT PARTNERS I, LIMITED $4,668,367.35
OAKHILL - OAK HILL CREDIT PARTNERS II, LIMITED $5,602,040.83
XXXXXXXXXXX - HARBOURVIEW CLO IV, LTD. $1,400,510.22
XXXXXXXXXXX - HARBOURVIEW CLO V, LTD. $1,400,510.22
XXXXXXXXXXX - XXXXXXXXXXX SENIOR FLOATING RATE FUND $3,967,741.94
PPM - PPM SHADOW CREEK FUNDING LLC $4,201,530.61
PPM - PPM SPYGLASS FUNDING TRUST $5,135,204.09
PRUDENTIAL - XXXXXX III - LEVERAGED LOAN CDO 2002 $2,334,183.67
36
XXXXXXXXX - XXXXXXXXX CARRERA CLO, LTD. $1,867,346.94
XXXXXXXXX - XXXXXXXXX ARBITRAGE CDO, LTD. $1,867,346.94
SUN AMERICA - GALAXY CLO 1999-1, LTD. $816,964.28
SUNAMERICA - SUNAMERICA LIFE INSURANCE COMPANY $1,633,928.59
X.XXXX PRICE - INNER HARBOR 2001-1 CBO $933,673.48
TCW - C-SQUARED CDO LTD. $1,867,346.94
TCW - FIRST 2004-I CLO, LTD. $2,801,020.40
TCW - FIRST 2004-II CLO, LTD. $1,333,819.25
TCW - LOAN FUNDING I LLC $1,867,346.94
TCW - VELOCITY CLO, LTD. $1,000,364.44
TCW SELECT LOAN FUND, LIMITED $1,867,346.94
TORONTO DOMINION (NEW YORK), INC. $3,734,693.87
TRAVELERS - CITICORP INSURANCE AND INVESTMENT TRUST $933,673.48
TRAVELERS - THE TRAVELERS INSURANCE COMPANY $1,867,346.94
TUSCANY CDO, LIMITED $2,801,020.41
UBS - PAR LOAN $1,665,816.33
XXX XXXXXX - XXX XXXXXX SENIOR INCOME TRUST $1,867,346.94
Total: $228,750,000.00
---------------
37
EXHIBIT B
REAFFIRMATION AGREEMENT
October , 2004
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").
Each of [ ], as guarantors under the Guarantee and Collateral
Agreement, dated as of November 22, 2003, 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 Third Amendment, dated as of October 26, 2004, to the Credit
Agreement (the "Amendment"), 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:
[
------------------------------------------------
as a Subsidiary Guarantor
By:
------------------------------------------
Name:
Title:]
38
