AMENDMENT NO. 2 TO AMENDED AND RESTATED CREDIT AGREEMENT

Exhibit 10.1.2

Execution Version

AMENDMENT NO. 2 TO AMENDED AND RESTATED CREDIT AGREEMENT

This Amendment No. 2 to Amended and Restated Credit Agreement (this “ Amendment ”), dated as of June 18, 2009 (the “ Amendment Date ”), is made by and among MUELLER WATER PRODUCTS, INC. , a Delaware corporation (the “ Borrower ”), BANK OF AMERICA, N.A. , a national banking association organized and existing under the laws of the United States (“ Bank of America ”), in its capacity as administrative agent for the Lenders (as defined in the Credit Agreement (as defined below)) (in such capacity, the “ Administrative Agent ”), each of the Lenders signatory hereto, and each of the Guarantors (as defined in the Credit Agreement).

W I T N E S S E T H :

WHEREAS , the Borrower, Bank of America, as Administrative Agent, and the Lenders have entered into that certain Amended and Restated Credit Agreement dated as of May 24, 2007 (as amended by Amendment No. 1 to Amended and Restated Credit Agreement dated as of June 21, 2007 and as hereby amended and as from time to time further amended, modified, supplemented, restated, or amended and restated, the “ Credit Agreement ”; capitalized terms used in this Amendment not otherwise defined herein shall have the respective meanings given thereto in the Credit Agreement), pursuant to which the Lenders have made available to the Borrower a term loan facility and a revolving credit facility, including a letter of credit facility and a swing line loan facility; and

WHEREAS , each of the Guarantors has entered into a Guaranty pursuant to which it has guaranteed certain or all of the obligations of the Borrower under the Credit Agreement and the other Loan Documents; and

WHEREAS , each of the Borrower all the Guarantors have entered into a Security Agreement pursuant to which each such Loan Party has granted a lien on certain of its assets as security for certain or all of its obligations under the Credit Agreement and the other Loan Documents; and

WHEREAS , each of the Borrower and all the Guarantors have entered into a Pledge Agreement pursuant to which each such Loan Party has granted a lien on certain of its equity interests as security for certain or all of its obligations under the Credit Agreement and the other Loan Documents; and

WHEREAS , the Borrower has requested that the Administrative Agent and the Lenders agree to amend certain terms of the Credit Agreement in order to, among other things, (i) modify the pricing levels and percentages per annum set forth in the definition of “Applicable Rate”, (ii) reduce the Aggregate Revolving Credit Commitments by $100,000,000 (to $200,000,000), (iii) increase the Letter of Credit – BA Sublimit by up to $10,000,000 (to $60,000,000), (iv) remove the Swing Line Loan facility, (v) provide for additional events that would trigger a mandatory prepayment of the Term Loan Facilities under Section 2.06 of the Credit Agreement, (vi) remove the increase option to the Term Loan Facilities, (vii) amend the existing financial covenants set

forth in Section 8.12 of the Credit Agreement and add additional financial covenants to such Section, (viii) amend certain of the affirmative and negative covenants set forth in Articles VII and VIII , respectively, of the Credit Agreement, (ix) allow for second lien debt obligations, and (x) update certain of the Schedules and Exhibits attached to the Credit Agreement, which the Administrative Agent and the Lenders party hereto are willing to do on the terms and conditions contained in this Amendment;

NOW, THEREFORE , in consideration of the premises and further valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:

1. Amendments to Credit Agreement, Schedules and Exhibits . Subject to the terms and conditions set forth herein, the Credit Agreement, including all schedules and exhibits thereto, is hereby amended such that, after giving effect to all such amendments, it shall read in its entirety as attached hereto as Exhibit A .

2. Effectiveness; Conditions Precedent . The effectiveness of this Amendment and the amendment to the Credit Agreement provided in Paragraph 1 hereof are subject to the satisfaction of each the following conditions precedent:

(a) The Administrative Agent shall have received each of the following fees, payments, documents or instruments in form and substance reasonably acceptable to the Administrative Agent:

(i) counterparts of this Amendment, duly executed by the Borrower, the Administrative Agent, each Guarantor and the Required Lenders, which counterparts may be delivered by telefacsimile or other electronic means (including .pdf), but such delivery will be promptly followed by the delivery of four (4) original signature pages by each Person party hereto unless waived by the Administrative Agent;

(ii) an amendment fee payable to each Lender that executes this Amendment by 5:00 p.m. EST on June 16, 2009, such amendment fee for each Lender’s own account, in an amount equal to (A) for each such Revolving Lender, an amount equal to fifty basis points (50 “bps”) multiplied by such Revolving Lender’s Revolving Credit Commitment immediately prior to the Amendment Date, (B) for each Term Loan A Lender, an amount equal to fifty basis points (50 “bps”) multiplied by such Term Loan A Lender’s Outstanding Amount with respect to the Term Loan A immediately prior to the Amendment Date, and (C) for each Term Loan B Lender, an amount equal to fifty basis points (50 “bps”) multiplied by such Term Loan B Lender’s Outstanding Amount with respect to the Term Loan B immediately prior to the Amendment Date;

(iii) prepayments of principal amounts under (a) the Term Loan A Facility such that the Outstanding Amount with respect to the Term Loan A Facility is not greater than $120,408,000 and (b) the Term Loan B Facility such that the Outstanding Amount with respect to the Term Loan B Facility is not

 

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greater than $445,257,640, in each case in accordance with the terms of the Credit Agreement;

(iv) evidence satisfactory to the Administrative Agent that any Outstanding Amounts with respect to Swing Line Loans shall have been repaid to the Swing Line Lender by the Borrower; and

(v) satisfactory customary opinions of counsel to the Borrower and such corporate resolutions, charters, bylaws, certificates and other customary closing documents as the Administrative Agent reasonably may require.

(b) All fees and expenses payable to the Administrative Agent and the Lenders (including the reasonable fees and expenses of counsel to the Administrative Agent) shall have been paid in full (without prejudice to final settling of accounts for such fees and expenses).

3. Consent of the Guarantors; Confirmation of Security Interest .

(a) Each Guarantor hereby consents, acknowledges and agrees to the amendments and the other matters set forth herein and hereby confirms and ratifies in all respects the Guaranty to which such Guarantor is a party (including without limitation the continuation of such Guarantor’s payment and performance obligations thereunder upon and after the effectiveness of this Amendment and the amendments described in Paragraph 1 hereof) and the enforceability of such Guaranty against such Guarantor in accordance with its terms.

(b) Each of the Borrower and each Guarantor hereby confirms its grant as collateral security for the payment, performance and satisfaction of all of the Borrower’s Obligations and such Guarantor’s Obligations (as defined in the Guaranty), as applicable, and the payment and performance of its obligations and liabilities (whether now existing or hereafter arising) under the Security Agreement or under any of the other Loan Documents to which it is now or hereafter becomes a party, to the Administrative Agent for the benefit of the Secured Parties a continuing first priority security interest in and to, and collaterally assigns to the Administrative Agent for the benefit of the Secured Parties, the Collateral (as defined in the Security Agreement).

(c) Each of the Borrower and each Guarantor hereby confirms its grant as collateral security for the payment, performance and satisfaction of all of its Secured Obligations (as defined in the Pledge Agreement), and the payment and performance of its obligations and liabilities (whether now existing or hereafter arising) under the Pledge Agreement or under any of the other Loan Documents to which it is now or hereafter becomes a party, to the Administrative Agent for the benefit of the Secured Parties a continuing first priority security interest in and to, and collaterally assigns to the Administrative Agent for the benefit of the Secured Parties, the Collateral (as defined in the Pledge Agreement).

(d) Each of the Borrower and each Guarantor that is a party to a Mortgage hereby (i) confirms its grant and conveyance, as collateral security for the payment, performance and satisfaction of all of the Obligations (as defined in the applicable Mortgage to which it is a

 

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party), to the Administrative Agent for the benefit of the Secured Parties, of a continuing first priority lien and security interest in and to, the Mortgaged Property (as defined in the applicable Mortgage to which it is a party), and (ii) ratifies and affirms the Mortgage to which it is a party and its obligations thereunder.

4. Representations and Warranties . In order to induce the Administrative Agent and the Lenders to enter into this Amendment, the Borrower represents and warrants to the Administrative Agent and the Lenders as follows:

(a) The representations and warranties made by (i) the Borrower in Article VI of the Credit Agreement and in each of the other Loan Documents to which it is a party and (ii) each Guarantor in each of the Loan Documents to which it is a party are, in each case, true and correct in all material respects on and as of the date hereof, except to the extent that such representations and warranties expressly relate to an earlier date;

(b) The Persons appearing as Guarantors on the signature pages to this Amendment constitute all Persons who are required to be Guarantors pursuant to the terms of the Credit Agreement and the other Loan Documents, including without limitation all Persons who became Subsidiaries or were otherwise required to become Guarantors after the Closing Date, and each of such Persons has become and remains a party to the Guaranty as a Guarantor and any other Loan Document to which it required to be a party;

(c) This Amendment has been duly authorized, executed and delivered by the Borrower and the Guarantors party hereto and constitutes a legal, valid and binding obligation of such parties; and

(d) No Default or Event of Default has occurred and is continuing.

5. Entire Agreement . This Amendment, together with all the Loan Documents (collectively, the “ Relevant Documents ”), sets forth the entire understanding and agreement of the parties hereto in relation to the subject matter hereof and supersedes any prior negotiations and agreements among the parties relating to such subject matter. No promise, condition, representation or warranty, express or implied, not set forth in the Relevant Documents shall bind any party hereto, and no such party has relied on any such promise, condition, representation or warranty. Each of the parties hereto acknowledges that, except as otherwise expressly stated in the Relevant Documents, no representations, warranties or commitments, express or implied, have been made by any party to the other in relation to the subject matter hereof or thereof. None of the terms or conditions of this Amendment may be changed, modified, waived or canceled orally or otherwise, except in writing and in accordance with Section 11.01 of the Credit Agreement.

6. Post-Effectiveness Obligations . The Borrower hereby agrees to deliver, or cause to be delivered, to the Administrative Agent on or before August 31, 2009 fully-executed amendments to each Mortgage specified on Exhibit B hereto (as such Exhibit may from time to time be revised by the Administrative Agent to reflect a current list of amendments required to be delivered), each amendment in form and substance acceptable to the Administrative Agent, along with such other evidence of recording, assurances, title insurance endorsements, title

 

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insurance policies, certificates, documents, consents or opinions as the Administrative Agent or the Required Lenders may reasonably require. The Administrative Agent may, but shall not be obligated to, extend the time (if applicable) for the satisfaction of any of the requirements set forth herein by up to thirty (30) days in its sole discretion.

7. Full Force and Effect of Agreement . Except as hereby specifically amended, modified or supplemented, the Credit Agreement and all other Loan Documents are hereby confirmed and ratified in all respects and shall be and remain in full force and effect according to their respective terms.

8. Counterparts . This Agreement may be executed in any number of counterparts, each of which shall be deemed an original as against any party whose signature appears thereon, and all of which shall together constitute one and the same instrument. Delivery of an executed counterpart of a signature page of this Amendment by telecopy or other electronic means (including .pdf) shall be effective as delivery of a manually executed counterpart of this Amendment.

9. Governing Law . This Agreement shall in all respects be governed by, and construed in accordance with, the laws of the State of New York applicable to contracts executed and to be performed entirely within such State, and shall be further subject to the provisions of Sections 11.14 and 11.15 of the Credit Agreement.

10. Enforceability . Should any one or more of the provisions of this Amendment be determined to be illegal or unenforceable as to one or more of the parties hereto, all other provisions nevertheless shall remain effective and binding on the parties hereto.

11. References . All references in any of the Loan Documents to the “Credit Agreement” shall mean the Credit Agreement, as amended hereby.

12. Successors and Assigns . This Agreement shall be binding upon and inure to the benefit of the Borrower, the Administrative Agent and each of the Guarantors and Lenders, and their respective successors, legal representatives, and assignees to the extent such assignees are permitted assignees as provided in Section 11.06 of the Credit Agreement.

13. No Novation . Neither the execution and delivery of this Amendment nor the consummation of any other transaction contemplated hereunder is intended to constitute a novation of the Credit Agreement or of any of the other Loan Documents or any obligations thereunder.

[Signature pages follow.]

 

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IN WITNESS WHEREOF , the parties hereto have caused this instrument to be made, executed and delivered by their duly authorized officers as of the day and year first above written.

BORROWER:

 

MUELLER WATER PRODUCTS, INC.
By:		/s/ Evan L. Hart
Name:		Evan L. Hart
Title:		Senior Vice President and Chief Financial Officer

GUARANTORS:

ANVIL 1, LLC

ANVIL 2, LLC

ANVIL INTERNATIONAL, LP

   By: Anvil I, LLC, its General Partner

ANVILSTAR, LLC

FAST FABRICATORS, LLC

HENRY PRATT COMPANY, LLC

HENRY PRATT INTERNATIONAL, LLC

HERSEY METERS CO., LLC

HUNT INDUSTRIES, LLC

HYDRO GATE, LLC

JAMES JONES COMPANY, LLC

J.B. SMITH MFG CO., LLC

MCO 1, LLC

MCO 2, LLC

MILLIKEN VALVE, LLC

MUELLER CO. LTD.

   By: MCO 1, LLC, its General Partner

MUELLER FINANCIAL SERVICES, LLC

MUELLER GROUP CO-ISSUER, INC.

MUELLER GROUP, LLC

MUELLER INTERNATIONAL, L.L.C.

MUELLER INTERNATIONAL FINANCE, L.L.C.

MUELLER SERVICE CALIFORNIA, INC.

MUELLER SERVICE CO., LLC

MUELLER TECHNOLOGIES, LLC

UNITED STATES PIPE AND FOUNDRY

   COMPANY, LLC

U.S. PIPE VALVE & HYDRANT, LLC

 

By:		/s/ Evan L. Hart
Name:		Evan L. Hart
Title:		Senior Vice President and Chief Financial Officer

 

MUELLER INTERNATIONAL FINANCE, INC. MUELLER INTERNATIONAL, INC.
By:		/s/ Thomas E. Fish
Name:		Thomas E. Fish
Title:		President

 

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ADMINISTRATIVE AGENT:

 

BANK OF AMERICA, N.A., as Administrative Agent
By:		/s/ W. Thomas Barnett
Name:		W. Thomas Barnett
Title:		Senior Vice President

LENDERS:

 

BANK OF AMERICA, N.A., as a Lender and L/C Issuer
By:		/s/ W. Thomas Barnett
Name:		W. Thomas Barnett
Title:		Senior Vice President

 

JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, as a Lender and L/C Issuer
By:		/s/ Jonathan Twichell
Name:		Jonathan Twichell
Title:		Senior Vice President

 

CITIBANK, N.A., as a Lender
By:		/s/ Christopher Hartzell
Name:		Christopher Hartzell
Title:		Vice President

 

CALYON NEW YORK BRANCH, as a Lender
By:		/s/ Brian Myers
Name:		Brian Myers
Title:		Managing Director
By:		/s/ David Cagle
Name:		David Cagle
Title:		Managing Director

 

SUNTRUST BANK, as a Lender
By:		/s/ Rick Schmersal
Name:		Rick Schmersal
Title:		Managing Director

 

RAYMOND JAMES BANK, FSB, as a Lender
By:		/s/ Kathy Bennett
Name:		Kathy Bennett
Title:		Vice President

 

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FIFTH THIRD BANK, A MICHIGAN BANKING CORPORATION, as a Lender
By:		/s/ John A. Marian
Name:		John A. Marian
Title:		Vice President

 

CAPITAL ONE LEVERAGE FINANCE CORP. (f/k/a North Fork Business Capital), as a Lender
By:		/s/ Ron Walker
Name:		Ron Walker
Title:		Senior Vice President

 

 

COMERICA BANK, as a Lender
By:		/s/ Scott M. Kowalski
Name:		Scott M. Kowalski
Title:		Vice President

 

CAROLINA FIRST BANK, as a Lender
By:		/s/ Kevin M. Short
Name:		Kevin M. Short
Title:		Executive Vice President

 

KBC BANK N.V., as a Lender
By:		/s/ Katherine S. McCarthy
Name:		Katherine S. McCarthy
Title:		Director
By:		/s/ Sandra T. Johnson
Name:		Sandra T. Johnson
Title:		Managing Director

 

PNC BANK, NATIONAL ASSOCIATION, as a Lender
By:		/s/ Mukunthan Panchalingam
Name:		Mukunthan Panchalingam
Title:		Vice President

 

THE BANK OF NEW YORK MELLON   (f/k/a The Bank of New York) , as a Lender
By:		/s/ Thomas Frangione
Name:		Thomas Frangione
Title:		Vice President

 

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ISRAEL DISCOUNT BANK OF NEW YORK, as a Lender
By:		/s/ Richard Tripaldi
Name:		Richard Tripaldi
Title:		Vice President
By:		/s/ David Acosta
Name:		David Acosta
Title:		Senior Vice President

 

KEYBANK NATIONAL ASSOCIATION, as a Lender
By:		/s/ Marcel Fournier
Name:		Marcel Fournier
Title:		Vice President

 

THE NORTHERN TRUST COMPANY, as a Lender
By:		/s/ Kathryn Schad Reuther
Name:		Kathryn Schad Reuther
Title:		Vice President

 

FIRSTRUST BANK, as a Lender
By:		/s/ Ellen Frank
Name:		Ellen Frank
Title:		Vice President

 

•

[SIGNATURE PAGES OF TERM LOAN B LENDERS INTENTIONALLY OMITTED AND, TO THE EXTENT RECEIVED, ON FILE WITH THE ADMINISTRATIVE AGENT.]

 

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Exhibit A

to Amendment No. 2 to Amended and Restated Credit Agreement

[ See attached ]

Conformed to Include Amendment No. 2

 

 

AMENDED AND RESTATED CREDIT AGREEMENT

Dated as of May 24, 2007

among