EXHIBIT 10.34
THIRTEENTH AMENDMENT AND WAIVER
TO
AMENDED AND RESTATED CREDIT AGREEMENT
THIS THIRTEENTH AMENDMENT AND WAIVER TO AMENDED AND RESTATED
CREDIT AGREEMENT (the "AGREEMENT") is being executed and delivered as of
December 20, 2001, by and among Waterlink, Inc., a Delaware corporation (the
"COMPANY"), the "Banks" party to and as defined in the "Credit Agreement"
referred to below (the "BANKS") and Bank of America, N.A. in its capacities as
"Agent" for the Banks under the Credit Agreement and "Collateral Agent" for the
Banks pursuant to the Collateral Documents (the "AGENT"). Capitalized terms used
herein and not defined herein shall have the meanings ascribed to such terms as
set forth in the Credit Agreement referred to and defined below.
W I T N E S S E T H:
WHEREAS, the Company, the Banks and the Agent are parties to
that certain Amended and Restated Credit Agreement dated as of June 27, 1997, as
amended and restated as of February 11, 2000, as further amended (the "CREDIT
AGREEMENT"), pursuant to which the Banks have agreed, subject to the terms and
conditions set forth therein, to extend credit to the Company;
WHEREAS, the Company has (i) failed to make the Scheduled
Repayment of principal due and payable with respect to the Term Loans on
November 30, 2001 resulting in an Event of Default under SECTION 9.01(a) of the
Credit Agreement and (ii) failed to cause to be executed and delivered on or
before November 30, 2001 blocked account and lockbox account agreements with
respect to certain of its deposit account maintained for its Pure Water business
unit as required by SECTION 7.14(e) resulting in an Event of Default under
SECTION 9.01(c) (collectively, the "EXISTING DEFAULTS"); and
WHEREAS, the Company has requested that the Banks waive the
Existing Defaults and amend the remaining Scheduled Repayments to provide for
the later payment of the Company's delinquent installment and, subject to the
terms and conditions of this Agreement, the Banks have agreed to such requests.
NOW, THEREFORE, in consideration of the foregoing premises,
the terms and conditions stated herein and other valuable consideration, the
receipt and sufficiency of which is hereby acknowledged by the Company, the
Banks and the Agent, such parties hereby agree as follows:
SECTION 1. AMENDMENT TO CREDIT AGREEMENT. Subject to the
satisfaction of each of the conditions set forth in SECTION 3 of this Agreement,
the Credit Agreement is hereby amended as follows (unless otherwise specified,
section references refer to sections of the Credit Agreement):
(a) SECTION 2.10(a)(i) is deleted in its entirety and replaced
with the following provision:
On each date set forth below, the Company shall be required to repay
the principal amount (or such other amount after giving effect to any
prepayments permitted or required pursuant to this Agreement) of the
Term Loans as is set forth opposite such date (each, a "Scheduled
Repayment"):
Date Amount
---- ------
December 31, 2001 $100,000
Term Maturity Date $13,017,250.06
(b) SECTION 7.14(e) is deleted in its entirety and replaced
with the following provision:
(e) On or before June 15, 2001, the Company will
execute and deliver, and cause to be executed and delivered, in favor
of the Agent and the Banks, blocked account and lockbox account
agreements, in form and substance acceptable to the Agent, with respect
to each depository, collection and concentration account maintained by
the Company and each of the Domestic Subsidiaries (other than those
accounts maintained by Domestic Subsidiaries comprising the Company's
Pure Water business unit (as to which accounts the Company shall use
all reasonable efforts to promptly obtain such agreements and in any
event on or before December 31, 2001 and, to the extent such efforts
are unsuccessful, the Company shall close such accounts and replace
them with accounts located at one or more other institutions which
execute and deliver such blocked accounts and lockbox agreements on or
before January 15, 2002) and other than those determined by the Agent
to be immaterial), pursuant to which the Agent would have the right,
following the occurrence and during the continuation of any Event of
Default, to require that all collections received by the depositories
with respect to such accounts shall be maintained in such accounts or
transferred (on a daily basis) to the Agent, for application to Loans,
L/C Obligations and other obligations of the Company or the Domestic
Subsidiaries pursuant to this Agreement or the other Loan Documents, in
any such case pursuant to the Agent's exclusive instructions.
SECTION 2. WAIVER. Subject to the satisfaction of the
conditions set forth in SECTION 3 of this Agreement, the Banks hereby waive the
Existing Defaults.
SECTION 3. EFFECTIVENESS OF THE AMENDMENT AND WAIVER;
CONDITIONS PRECEDENT. The provisions of SECTIONS 1 and 2 of this Agreement shall
become effective as of the date hereof upon the Agent's receipt of each of the
following:
(a) originally-executed (or facsimiles of originally-executed)
counterparts of this Agreement executed and delivered by duly
authorized officers of the Company, each Guarantor and each of the
Banks; and
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(b) payment in full of the fees and expenses described in
SECTION 6(c) hereof, to the extent invoices with respect thereto are
delivered to the Company prior to the satisfaction of the other
conditions described in this section.
SECTION 4. REPRESENTATIONS AND WARRANTIES. The Company and
each Guarantor hereby represents and warrants that (a) this Agreement
constitutes its legal, valid and binding obligation, enforceable against each
such party in accordance with its terms and (b) there is no consent, approval or
other requirement known to the Company or such Guarantor which could reasonably
be expected to impair or materially delay the Company's or such Guarantor's
ability to perform its obligations under this Agreement or the Credit Agreement
as proposed to be amended hereby and (c) after giving effect to the provisions
of SECTION 2 hereof, no Default or Event of Default will be continuing.
SECTION 5. REAFFIRMATION, RATIFICATION AND ACKNOWLEDGMENT. (a)
The Company and each of the Guarantors hereby (i) 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 Agent, under each Loan Document
to which it is a party, (ii) agrees and acknowledges that such ratification and
reaffirmation is not a condition to the continued effectiveness of such Loan
Documents, and (iii) agrees that neither such ratification and reaffirmation,
nor the Agent's nor any Banks' solicitation of such ratification and
reaffirmation, constitutes a course of dealing giving rise to any obligation or
condition requiring a similar or any other ratification or reaffirmation from
the Company or the Guarantors with respect to any subsequent modifications
consent or waiver with respect to the Credit Agreement or other Loan Documents.
The Credit Agreement and each other Loan Document is in all respects hereby
ratified and confirmed and, except as is expressly set forth in SECTION 2
hereof, neither the execution, delivery nor effectiveness of this Agreement
shall operate as a waiver of any Default or Event of Default (whether or not
known to the Agent, the Collateral Agent or any Bank) or any right, power or
remedy of the Agent, the Collateral Agent or any Bank of any provision contained
in the Credit Agreement or any other Loan Document, whether as a result of any
Default or Event of Default or otherwise. This Agreement shall constitute a
"Loan Document" for purposes of the Credit Agreement.
(b) The Company and each of the Guarantors hereby acknowledges
and confirms that (i) it does not have any grounds, and hereby agrees not to
challenge (or to allege or to pursue any matter, cause or claim arising under or
with respect to), in any case based upon acts or omissions of the Agent or any
of the Banks occurring prior to the date hereof or facts otherwise known to it
as of the date hereof, the effectiveness, genuiness, validity, collectibility or
enforceability of the Credit Agreement or any of the other Loan Documents, the
Obligations, the Liens securing such Obligations, or any of the terms or
conditions of any Loan Document (it being understood that such acknowledgement
and confirmation does not preclude the Company or the Guarantors from
challenging the Agent's or any Bank's interpretation of any term or provision of
the Credit Agreement or other Loan Document) and (ii) it does not possess (and
hereby forever waives, remises, releases, discharges and holds harmless the
Banks, the Agent and their respective affiliates, stockholders, directors,
officers, employees, attorneys, agents and representatives and each of their
respective heirs, executors, administrators, successors and assigns
(collectively, the "INDEMNIFIED PARTIES") from and against, and agrees not to
allege or pursue) any action, cause of action, suit, debt, claim, counterclaim,
cross-claim, demand,
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defense, offset, opposition, demand and other right of action whatsoever,
whether in law, equity or otherwise (which it, all those claiming by, through or
under it, or its successors or assigns, have or may have) against the
Indemnified Parties, or any of them, by reason of, any matter, cause or thing
whatsoever, with respect to events or omissions occurring or arising on or prior
to the date hereof and relating to the Credit Agreement or any of the other Loan
Documents (including, without limitation, with respect to the payment,
performance, validity or enforceability of the Obligations, the Liens securing
the Obligations or any or all of the terms or conditions of any Loan Document)
or any transaction relating thereto; PROVIDED, HOWEVER, THAT neither the Company
nor any Guarantor hereby releases or holds harmless any Indemnified Party for
actions or omissions by any such Indemnified Party constituting, or losses or
expenses directly resulting from, the gross negligence or willful misconduct of
such Indemnified Party.
SECTION 6. MISCELLANEOUS.
(a) EXECUTION IN COUNTERPARTS; GOVERNING LAW This Agreement
may be executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed and delivered shall be
deemed to be an original and all of which when taken together shall constitute
but one and the same instrument. This Agreement shall be governed by and
construed in accordance with the laws of the State of Illinois.
(b) SECTION TITLES. The section titles contained in this
Agreement 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.
(c) AGENT'S EXPENSE. The Company hereby agrees to promptly
reimburse the Agent for all reasonable out-of-pocket expenses, including,
without limitation, attorneys' and paralegals fees, field exam fees and expenses
and consultants fees and expenses, it has heretofore or hereafter incurred or
incurs in connection with the preparation, negotiation, administration and
execution of the Loan Agreement, this Agreement or any document, instrument,
agreement delivered pursuant to the Loan Agreement or this Agreement.
* * * *
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto duly authorized
as of the date first above written.
WATERLINK, INC.
WATERLINK MANAGEMENT, INC.
WATERLINK SEPARATIONS, INC.
WATERLINK BIOLOGICAL WASTEWATER SYSTEMS, INC.
WATERLINK TECHNOLOGIES, INC.
XXXXXXXX & XXXXXXXXX CORPORATION (a/k/a Xxxxxxxx Sutcliffe Corporation)
C'TREAT OFFSHORE, INC. (f/k/a Chemitreat Services, Inc.)
WATERLINK N.S., INC.
By: /s/ Xxxxxx X. Xxxxxx
--------------------
Name:
Title: Chief Financial Officer
BANK OF AMERICA, N.A., as Agent and Collateral
Agent
By: /s/ Xxxxxxxx X. Xxxx
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Title: Vice President
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BANK OF AMERICA, N.A., Individually as a Bank and
as Issuing Bank
By: /s/ Xxxxxx X. Xxxxxxxxxx
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Title: Vice President
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COMERICA BANK
By: /s/ Xxxxxx Xxxxxxx
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Title: Assistant Vice President
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FIFTH THIRD BANK, CENTRAL OHIO
By: /s/ Xxxxx Xxxxx
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Title: Assistant Vice President
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XXXXXX TRUST AND SAVINGS BANK
By: /s/ Xxxxxxx X. Xxxxxxx
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Title: Managing Director
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PNC BANK, NATIONAL ASSOCIATION
By: /s/ Xxxxx X. Xxxxx
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Title: Vice President
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UNION BANK OF CALIFORNIA, N.A.
By: /s/ Xxxxxxxxxx Xxxxxxxxx
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Title: Vice President
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