Exhibit 10.2
EXECUTION COPY
AMENDMENT NO. 1 TO CREDIT AGREEMENT
AND
AMENDMENT NO. 1 TO GUARANTY AGREEMENT
THIS AMENDMENT NO. 1 TO CREDIT AGREEMENT AND AMENDMENT NO. 1 TO
GUARANTY AGREEMENT (this "Amendment") is being executed and delivered as of
March 21, 2005 by and among Watts Water Technologies, Inc., a Delaware
corporation (the "Company"), Watts Industries Europe B.V., a private company
with limited liability organized under the laws of The Netherlands (the "Initial
Designated Borrower"), each of the Subsidiary Guarantors named as signatories
hereto, the several financial institutions from time to time party to the Credit
Agreement referred to and defined below (collectively, the "Lenders") and Bank
of America, N.A. ("Bank of America"), as administrative agent for the Lenders
(in such capacity, the "Administrative Agent"). Undefined capitalized terms used
herein shall have the meanings ascribed to such terms in such Credit Agreement
as defined below.
W I T N E S S E T H:
WHEREAS, the Company, the Initial Designated Borrower, the Lenders
and the Administrative Agent have entered into that certain Credit Agreement
dated as of September 23, 2004 (the "Credit Agreement"), pursuant to which,
among other things, the Lenders have agreed to provide, subject to the terms and
conditions contained therein, certain loans and other financial accommodations
to or for the benefit of the Company and the Initial Designated Borrower;
WHEREAS, the Company, the Initial Designated Borrower and certain
Subsidiaries of the Company have executed that certain Guaranty Agreement, dated
as of September 23, 2004 (as amended, restated, supplemented or otherwise
modified from time to time, the "Guaranty Agreement"), in favor of the
Administrative Agent;
WHEREAS, pursuant to Section 2.14(c) of the Credit Agreement, the
Initial Designated Borrower has (i) agreed to be jointly and severally liable
for the Obligations of the Company and each other Designated Borrower and (ii)
executed the Guaranty Agreement, pursuant to which the Initial Designated
Borrower provided an unconditional guaranty of the Obligations of the Company
and each other Designated Borrower;
WHEREAS, pursuant to Section 6.15 of the Credit Agreement, Watts
Cazzaniga S.p.A., a private company with limited liability organized under the
laws of Italy ("Watts Cazzaniga"), Watts Londa S.p.A., a private company with
limited liability organized under the laws of Italy ("Watts Londa"), Watts
Intermes S.r.l., a private company with limited liability organized under the
laws of Italy ("Watts Intermes"), and Giuliani Anello S.r.l., a private company
with limited liability organized under the laws of Italy ("Giuliani Anello" and,
collectively with Watts Cazzaniga, Watts Londa and Watts Intermes, the "Foreign
Subsidiary Guarantors"), executed Supplements to the Guaranty Agreement, dated
as of November 19, 2004, pursuant to which the Foreign Subsidiary Guarantors
provided an unconditional guaranty of the Obligations of the Company and the
Designated Borrowers; and
WHEREAS, the Company, the Initial Designated Borrower and the
Foreign Subsidiary Guarantors have requested that that Lenders and the
Administrative Agent, and subject to the terms and conditions set forth herein,
the Lenders and the Administrative Agent have agreed to, (i) amend the Credit
Agreement to provide that Designated Borrowers that are Foreign Subsidiaries of
the Company (such Designated Borrowers, "Foreign Designated Borrowers") shall be
required to deliver an unconditional guaranty only of the Obligations of Foreign
Designated Borrowers and (ii) amend the Guaranty Agreement to provide that
Foreign Subsidiaries of the Company party thereto shall provide an unconditional
guaranty only of Obligations of Foreign Designated Borrowers;
NOW, THEREFORE, in consideration of the foregoing premises, the
terms and conditions stated herein and other valuable consideration, the receipt
and sufficiency of which are hereby acknowledged by the Company, the Initial
Designated Borrower, the Subsidiary Guarantors, the Lenders and the
Administrative Agent, such parties hereby agree as follows:
1. Amendment to Credit Agreement. Subject to the satisfaction of
each of the conditions set forth in Paragraph 3 of this Amendment, the Credit
Agreement is hereby amended as follows:
(a) The Credit Agreement is hereby amended to delete the first
sentence of Section 2.03(i) thereof in its entirety and to replace such sentence
with the following sentence:
Each Borrower shall pay to the Administrative Agent for the account of
each Lender in accordance with its Applicable Percentage, in Dollars, a
Letter of Credit fee (the "Letter of Credit Fee") for each Letter of
Credit issued at the request of such Borrower equal to the Applicable Rate
times the Dollar Equivalent of the daily amount available to be drawn
under such Letter of Credit.
(b) Section 2.03(j) of the Credit Agreement is hereby amended to (i)
delete therefrom the phrase: "The Borrowers shall, jointly and severally, pay
directly to the L/C Issuer for its own account, in Dollars, a fronting fee with
respect to each Letter of Credit" and insert therefor the following phrase:
"Each Borrower shall pay directly to the L/C Issuer for its own account, in
Dollars, a fronting fee with respect to each Letter of Credit issued at the
request of such Borrower" and (ii) delete therefrom the phrase "In addition, the
Borrowers shall, jointly and severally, pay directly to the L/C Issuer for its
own account, in Dollars" and insert therefor the following phrase: "In addition,
each Borrower shall pay directly to the L/C Issuer for its own account, in
Dollars, with respect to each Letter of Credit issued at the request of such
Borrower".
(c) The Credit Agreement is hereby amended to delete Section 2.14(c)
thereof in its entirety and to replace such provision with the following
provision:
"(c) Concurrently with the delivery of each Designated Borrower
Request and Assumption Agreement, the related Applicant Borrower shall
execute and deliver to the Administrative Agent a counterpart of the
Guaranty Agreement or such other document as the Administrative Agent
shall deem appropriate in order for such Subsidiary to provide an
unconditional guaranty of the Obligations of each other Borrower (in the
case of any Designated Borrower that is a Domestic Subsidiary of the
Company) or each other Foreign Designated Borrower (in the case of any
Designated Borrower that is a Foreign Subsidiary of the Company), in form,
content and scope reasonably satisfactory to the Administrative Agent."
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(d) Section 6.15 of the Credit Agreement is hereby amended to delete
therefrom the phrase "unconditional guaranty of the Obligations of the
Borrowers" and insert therefor the following phrase: "unconditional
guaranty of the Obligations of the each Designated Borrower that is a
Foreign Subsidiary of the Company".
2. Amendments to Guaranty Agreement. Subject to the satisfaction of
each of the conditions set forth in Paragraph 3 of this Amendment, the
Guaranty Agreement is hereby amended as follows:
(a) The Guaranty Agreement is hereby amended to delete the last
preliminary statement thereto in its entirety and to replace such statement with
the following statement:
"WHEREAS, in order to induce Administrative Agent and Lenders to
enter into the Credit Agreement and other Loan Documents and to induce
Lenders to make the Loans and other financial accommodations as provided
for in the Credit Agreement, (i) the Company, each Designated Borrower
that is a Domestic Subsidiary of the Company (each such Designated
Borrower, a "Domestic Designated Borrower") and each Subsidiary Guarantor
that is a Domestic Subsidiary of the Company (such Subsidiary Guarantors,
together with the Company and the Domestic Designated Borrowers, the
"Domestic Guarantors") have agreed to guarantee payment of the Obligations
of all of the Borrowers and (ii) each Designated Borrower that is a
Foreign Subsidiary of the Company (each such Designated Borrower, a
"Foreign Designated Borrower") and each Subsidiary Guarantor that is a
Foreign Subsidiary of the Company (such Subsidiary Guarantors, together
with the Foreign Designated Borrowers, the "Foreign Guarantors") have
agreed to guarantee payment of the Obligations of all of the Foreign
Designated Borrowers;"
(b) Section 1 of the Guaranty Agreement is hereby amended to delete
the first sentence thereof in its entirety and to replace such sentence with the
following provision:
"Each Domestic Guarantor hereby, jointly and severally, absolutely and
unconditionally guarantees, as a guarantee of payment and not merely as a
guarantee of collection, prompt payment when due, whether at stated
maturity, upon acceleration or otherwise, and at all times thereafter, of
any and all existing and future Obligations of all of the Borrowers to the
Administrative Agent, the Lenders, the L/C Issuer and the Affiliates of
the foregoing to whom Obligations are owed, and the respective successors,
endorsees, transferees and assigns of each of the foregoing (each a
"Holder of Obligations" and collectively the "Holders of Obligations")
(including all renewals, extensions and modifications thereof and all
costs, reasonable attorneys' fees and expenses incurred by the Holders of
Obligations in connection with the collection or enforcement thereof)
(collectively, the "Guaranteed Obligations"). Each Foreign Guarantor
hereby, jointly and severally, absolutely and unconditionally guarantees,
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as a guarantee of payment and not merely as a guarantee of collection,
prompt payment when due, whether at stated maturity, upon acceleration or
otherwise, and at all times thereafter, of any and all existing and future
Obligations of all of the Foreign Designated Borrowers to the Holders of
Obligations (including all renewals, extensions and modifications thereof
and all costs, reasonable attorneys' fees and expenses incurred by the
Holders of Obligations in connection with the collection or enforcement
thereof) (collectively, the "Guaranteed Foreign Obligations"; it being
understood that all references to the "Guaranteed Obligations" herein
(except in the first sentence of Section 10, in which instance the
reference to "Guaranteed Obligations" shall refer to all existing and
future Obligations of all of the Borrowers to the Holders of Obligations)
shall, in the case of any Foreign Guarantor, refer only to the Guaranteed
Foreign Obligations)."
(c) Section 2 of the Guaranty Agreement is hereby amended to insert
at the end of the last sentence thereof the following proviso: "; provided, that
no Foreign Guarantor shall be liable for any indemnity for (or otherwise with
respect to) any taxes paid by a Holder of Obligations in respect of a payment
received from any Domestic Guarantor".
(d) Section 12 of the Guaranty Agreement is hereby amended to insert
at the end of the first sentence thereof the following proviso: "; provided,
that no Foreign Guarantor shall be liable for any expenses in any way related to
the enforcement or protection of the rights of the Holders of Obligations
hereunder against any Domestic Guarantor".
2. Effectiveness of this Amendment; Condition Precedent. The
provisions of Paragraphs 1 and 2 of this Amendment shall be deemed to have
become effective as of the date of this Amendment, but such effectiveness shall
be expressly conditioned upon the receipt by the Administrative Agent of an
originally-executed counterpart of this Amendment executed and delivered by duly
authorized officers of the Company, the Initial Designated Borrower, each
Subsidiary Guarantor, each Lender and the Administrative Agent.
3. Representations and Warranties. The Company, the Initial
Designated Borrower and each Subsidiary Guarantor hereby represents and warrants
that (i) this Amendment constitutes its legal, valid and binding obligation,
enforceable against each such party in accordance with its terms, (ii) there is
no consent, approval or other requirement known to such Loan Party which could
reasonably be expected to impair or materially delay such Loan Party's ability
to perform its obligations under this Amendment or the Credit Agreement or
Guaranty Agreement as proposed to be amended hereby and (iii) after giving
effect to the provisions of Paragraphs 1 and 2 of this Amendment, no Event of
Default will be continuing.
4. Reaffirmation, Ratification and Acknowledgment; Reservation. The
Company, the Initial Designated Borrower and each Subsidiary Guarantor hereby
(a) ratifies and reaffirms all of its payment and performance obligations,
contingent or otherwise, and each grant of security interests and liens in favor
of the Administrative Agent, under each Loan Document to which it is a party,
(b) agrees and acknowledges that such ratification and reaffirmation is not a
condition to the continued effectiveness of such Loan Documents, and (c) agrees
that neither such ratification and reaffirmation, nor the Administrative Agent's
or any Lender's solicitation of such ratification and reaffirmation, constitutes
a course of dealing giving rise to any obligation or condition requiring a
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similar or any other ratification or reaffirmation from the Company, the Initial
Designated Borrower or such Subsidiary Guarantors with respect to any subsequent
modifications to the Credit Agreement or the other Loan Documents. The Credit
Agreement and the Guaranty Agreement are in all respects ratified and confirmed.
Each of the Loan Documents shall remain in full force and effect and is hereby
ratified and confirmed. Neither the execution, delivery nor effectiveness of
this Amendment shall operate as a waiver of any right, power or remedy of the
Administrative Agent or the Lenders, or of any Default or Event of Default
(whether or not known to the Administrative Agent or the Lenders), under any of
the Loan Documents, all of which rights, powers and remedies, with respect to
any such Default or Event of Default or otherwise, are hereby expressly reserved
by the Administrative Agent and the Lenders. This Amendment shall constitute a
Loan Document for purposes of the Credit Agreement.
5. Effect on the Credit Agreement and the Guaranty Agreement. Upon
the effectiveness of this Amendment, on and after the date hereof, (i) each
reference in the Credit Agreement to "this Agreement," "hereunder," "hereof,"
"herein" or words of like import shall mean and be a reference to the Credit
Agreement, as amended and modified hereby and (ii) each reference in the
Guaranty Agreement to "this Guaranty," "hereunder," "hereof," "herein" or words
of like import shall mean and be a reference to the Guaranty Agreement, as
amended and modified hereby.
6. Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
7. Administrative Agent's Expenses. The Company hereby agrees to
promptly reimburse the Administrative Agent for all of the reasonable
out-of-pocket expenses, including, without limitation, attorneys' and
paralegals' fees, it has heretofore or hereafter incurred or incurs in
connection with the preparation, negotiation and execution of this Amendment.
8. Counterparts. This Amendment may be executed in counterparts,
each of which shall be an original and all of which together shall constitute
one and the same agreement among the parties.
9. Section Titles. The section titles contained in this Amendment
are and shall be without substance, meaning or content of any kind whatsoever
and are not a part of the agreement between the parties hereto.
* * * *
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered by their proper and duly authorized officers as of
the day and year first above written.
WATTS WATER TECHNOLOGIES, INC.
By: /s/ William C. McCartney
--------------------------
Name: William C. McCartney
Title: Chief Financial Officer
WATTS INDUSTRIES EUROPE B.V.
By: /s/ Johan van Kouterik
--------------------------
Name: Johan van Kouterik
Title: Vice President & CFO
Signature Page to
Amendment No. 1 to Credit Agreement and
Amendment No. 1 to Guaranty Agreement
SUBSIDIARY GUARANTORS:
WATTS REGULATOR CO. WATTS PREMIER, INC.
By: /s/ William C. McCartney By: /s/ William C. McCartney
--------------------------- ---------------------------
Name: William C. McCartney Name: William C. McCartney
Title: VP Finance Title: Treasurer
ANDERSON-BARROWS METALS CORPORATION WATTS CAZZANIGA S.P.A.
By: /s/ William C. McCartney By: /s/ Johan van Kouterik
--------------------------- ---------------------------
Name: William C. McCartney Name: Johan van Kouterik
Title: VP Finance Title: Vice President & CFO
WEBSTER VALVE, INC. WATTS LONDA S.P.A.
By: /s/ William C. McCartney By: /s/ Johan van Kouterik
--------------------------- ---------------------------
Name: William C. McCartney Name: Johan van Kouterik
Title: VP Finance Title: Vice President & CFO
HUNTER INNOVATIONS, INC. WATTS INTERMES S.R.L.
By: /s/ William C. McCartney By: /s/ Johan van Kouterik
--------------------------- ---------------------------
Name: William C. McCartney Name: Johan van Kouterik
Title: Chief Financial Officer Title: Vice President & CFO
WATTS DISTRIBUTION COMPANY, INC. GIULIANI ANELLO S.R.L.
By: /s/ William C. McCartney By: /s/ Johan van Kouterik
--------------------------- ---------------------------
Name: William C. McCartney Name: Johan van Kouterik
Title: Treasurer Title: Vice President & CFO
WATTS RADIANT, INC.
By: /s/ William C. McCartney
---------------------------
Name: William C. McCartney
Title: Treasurer
Signature Page to
Amendment No. 1 to Credit Agreement and
Amendment No. 1 to Guaranty Agreement
BANK OF AMERICA, N.A., as
Administrative Agent
By: /s/ David A Johanson
----------------------
Name: David A. Johanson
Title: Vice President
BANK OF AMERICA, N.A., as a Lender
By: /s/ Jennifer L. Gerdes
----------------------
Name: Jennifer L. Gerdes
Title: Senior Vice President
Signature Page to
Amendment No. 1 to Credit Agreement and
Amendment No. 1 to Guaranty Agreement
JPMORGAN CHASE BANK, N.A.,
as a Lender
By: /s/ Peter M. Killea
----------------------
Name: Peter M. Killea
Title: Vice President
Signature Page to
Amendment No. 1 to Credit Agreement and
Amendment No. 1 to Guaranty Agreement
WACHOVIA BANK, NATIONAL ASSOCIATION,
as a Lender
By: /s/ Sarah T. Warren
----------------------
Name: Sarah T. Warren
Title: Director
Signature Page to
Amendment No. 1 to Credit Agreement and
Amendment No. 1 to Guaranty Agreement
KEYBANK NATIONAL ASSOCIATION,
as a Lender
By: /s/ Thomas J. Purcell
----------------------
Name: Thomas J. Purcell
Title: Senior Vice President
Signature Page to
Amendment No. 1 to Credit Agreement and
Amendment No. 1 to Guaranty Agreement
SUNTRUST BANK, as a Lender
By: /s/ Robert W. Maddox
----------------------
Name: Robert W. Maddox
Title: Vice President
Signature Page to
Amendment No. 1 to Credit Agreement and
Amendment No. 1 to Guaranty Agreement
HSBC BANK USA, N.A., as a Lender
By: /s/ Dan Lobdell
----------------------
Name: Dan Lobdell
Title: Vice President
Signature Page to
Amendment No. 1 to Credit Agreement and
Amendment No. 1 to Guaranty Agreement
LASALLE BANK NATIONAL ASSOCIATION,
as a Lender
By: /s/ Gary A. Pirri
----------------------
Name: Gary A. Pirri
Title: Senior Vice President
Signature Page to
Amendment No. 1 to Credit Agreement and
Amendment No. 1 to Guaranty Agreement
CITIZENS BANK OF MASSACHUSETTS,
as a Lender
By: /s/ Daniel Bernard
----------------------
Name: Daniel Bernard
Title: Vice President
Signature Page to
Amendment No. 1 to Credit Agreement and
Amendment No. 1 to Guaranty Agreement
CALYON NEW YORK BRANCH,
as a Lender
By: /s/ Scott R. Chappelka
----------------------
Name: Scott R. Chappelka
Title: Director
By: /s/ Phillip Schubert
----------------------
Name: Phillip Schubert
Title: Director
Signature Page to
Amendment No. 1 to Credit Agreement and
Amendment No. 1 to Guaranty Agreement
BROWN BROTHERS HARRIMAN & CO., as a
Lender
By: /s/ John D. Rogers
----------------------
Name: John D. Rogers
Title: Senior Vice President
Signature Page to
Amendment No. 1 to Credit Agreement and
Amendment No. 1 to Guaranty Agreement