1
Exhibit 10.8
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Equivalent of
$3,800,000
CREDIT AGREEMENT
DATED AS OF MARCH 4, 1997
AMONG
GIGANTISSIMO 2061 AB
(TO BE KNOWN AS WATERLINK (SWEDEN) AB),
AS BORROWER
WATERLINK, INC.,
AS GUARANTOR,
AND
BANK OF AMERICA NATIONAL TRUST &
SAVINGS ASSOCIATION, LONDON BRANCH
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TABLE OF CONTENTS
Section Page
ARTICLE I
DEFINITIONS..........................................................................1
1.03 ACCOUNTING PRINCIPLES................................................................9
ARTICLE II
THE CREDITS..........................................................................9
2.01 AMOUNTS AND TERMS OF COMMITMENTS........................................................9
2.02 LOAN ACCOUNTS...........................................................................9
2.03 PROCEDURE FOR BORROWING................................................................10
2.05 VOLUNTARY TERMINATION OR REDUCTION OF THE COMMITMENT...................................11
2.06 OPTIONAL PREPAYMENTS...................................................................11
2.07 MANDATORY PREPAYMENTS OF LOANS; MANDATORY COMMITMENT REDUCTIONS
...................................................................................12
2.08 REPAYMENT..............................................................................12
2.09 INTEREST...............................................................................12
2.11 COMPUTATION OF FEES AND INTEREST.......................................................13
2.12 PAYMENTS BY THE BORROWER...............................................................13
2.13 UTILIZATION OF APPROVED CURRENCIES.....................................................14
ARTICLE III
THE LETTERS OF CREDIT...............................................................14
3.01 THE LETTER OF CREDIT SUBFACILITY.......................................................14
3.02 ISSUANCE, AMENDMENT AND RENEWAL OF LETTERS OF CREDIT...................................15
3.03 DRAWINGS AND REIMBURSEMENTS............................................................17
3.04 ROLE OF THE ISSUING BANK...............................................................17
3.05 OBLIGATIONS ABSOLUTE...................................................................18
3.06 CASH COLLATERAL PLEDGE.................................................................19
3.07 LETTER OF CREDIT FEES..................................................................19
3.08 UNIFORM CUSTOMS AND PRACTICE...........................................................19
ARTICLE IV
TAXES, YIELD PROTECTION AND ILLEGALITY..............................................19
4.01 TAXES..................................................................................19
4.02 ILLEGALITY.............................................................................20
4.03 INCREASED COSTS AND REDUCTION OF RETURN................................................21
4.04 FUNDING LOSSES.........................................................................21
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Section Page
4.05 INABILITY TO DETERMINE RATES...........................................................22
4.06 RESERVES ON LOANS......................................................................22
4.07 CERTIFICATES OF THE BANK...............................................................23
4.08 SURVIVAL................................................................................23
ARTICLE V
CONDITIONS PRECEDENT................................................................23
5.01 CONDITIONS OF INITIAL CREDIT EXTENSIONS................................................23
(a) CREDIT AGREEMENT AND NOTES....................................................23
(b) RESOLUTIONS; INCUMBENCY.......................................................23
(c) ORGANIZATION DOCUMENTS; GOOD STANDING.........................................23
(d) LEGAL OPINIONS................................................................24
(e) PAYMENT OF FEES...............................................................24
(f) CERTIFICATE...................................................................24
(g) CONSENT LETTER................................................................24
(h) NORDIC ACQUISITION............................................................24
(i) SOLVENCY CERTIFICATE..........................................................25
(j) OTHER DOCUMENTS...............................................................25
5.02 CONDITIONS TO ALL CREDIT EXTENSIONS....................................................25
(a) NOTICE, APPLICATION...........................................................25
(b) CONTINUATION OF REPRESENTATIONS AND WARRANTIES................................25
(c) NO EXISTING DEFAULT...........................................................25
ARTICLE VI
REPRESENTATIONS AND WARRANTIES......................................................25
ARTICLE VII
AFFIRMATIVE COVENANTS...............................................................26
ARTICLE VIII
NEGATIVE COVENANTS..................................................................26
ARTICLE IX
EVENTS OF DEFAULT...................................................................26
9.01 EVENT OF DEFAULT.......................................................................26
(a) NON-PAYMENT...................................................................26
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Section Page
(b) REPRESENTATION OR WARRANTY....................................................26
(c) WATERLINK CREDIT AGREEMENT DEFAULTS...........................................27
(d) GUARANTOR DEFAULTS............................................................27
9.02 REMEDIES...............................................................................27
9.03 RIGHTS NOT EXCLUSIVE...................................................................27
ARTICLE X
GUARANTY
...................................................................................27
ARTICLE XI
MISCELLANEOUS
...................................................................................31
11.01 AMENDMENTS AND WAIVERS................................................................31
11.02 NOTICES...............................................................................31
11.03 NO WAIVER; CUMULATIVE REMEDIES........................................................31
11.04 COSTS AND EXPENSES....................................................................31
11.05 INDEMNIFICATION.......................................................................32
11.06 PAYMENTS SET ASIDE....................................................................32
11.07 SUCCESSORS AND ASSIGNS................................................................32
11.08 PARTICIPATIONS........................................................................33
11.09 CONFIDENTIALITY.......................................................................33
11.10 SET-OFF...............................................................................34
11.11 AUTOMATIC DEBITS OF FEES..............................................................34
11.12 JUDGMENT......................................................................34
11.13 COUNTERPARTS..........................................................................35
11.14 SEVERABILITY..........................................................................35
11.15 NO THIRD PARTIES BENEFITED............................................................35
11.16 GOVERNING LAW AND JURISDICTION........................................................35
11.17 WAIVER OF JURY TRIAL..................................................................36
11.18 ENTIRE AGREEMENT......................................................................36
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SCHEDULES
Schedule 1 Calculation of MLA Costs
Schedule 11.02 Lending Offices; Addresses for Notices
EXHIBITS
Exhibit A Form of Notice of Borrowing
Exhibit B Form of Notice of Continuation
Exhibit C-1 Form of Legal Opinion of Counsel to the Loan Parties
Exhibit C-2 Form of Legal Opinion of Special New York Counsel to the
Loan Parties
Exhibit C-3 Form of Legal Opinion of Special Sweden Counsel to the Loan
Parties
Exhibit D Form of Promissory Note
Exhibit E Form of L/C Application
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CREDIT AGREEMENT
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This CREDIT AGREEMENT is entered into as of March 4, 1997, among
Gigantissimo 2061 AB (to be known as Waterlink (Sweden) AB), a Swedish
corporation (the "Borrower"), Waterlink, Inc., a Delaware corporation (the
"Guarantor"), and Bank of America National Trust and Savings Association, London
Branch (the "Bank").
WHEREAS, the Bank has agreed to make available to the Borrower a
revolving credit facility with a letter of credit subfacility upon the terms and
conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the mutual agreements, provisions
and covenants contained herein, the parties agree as follows:
ARTICLE I
DEFINITIONS
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1.01 CERTAIN DEFINED TERMS. The following terms have the following
meanings:
"AFFILIATE" means, as to any Person, any other Person which,
directly or indirectly, is in control of, is controlled by, or is under common
control with, such Person. A Person shall be deemed to control another Person if
the controlling Person possesses, directly or indirectly, the power to direct or
cause the direction of the management and policies of the other Person, whether
through the ownership of voting securities, membership interests, by contract,
or otherwise.
"AGREEMENT" means this Credit Agreement.
"AGREEMENT CURRENCY" has the meaning specified in SECTION
11.2.
"APPLICABLE CURRENCY" means, as to any particular payment,
Dollars or the Approved Currency in which it is denominated or is payable.
"APPLICABLE MARGIN" shall mean 2.50%.
"APPROVED CURRENCY" means, at any time, Dollars, Sterling,
Deutschmarks, Krona or ECU's or any other currency (other than Dollars)
acceptable to the Bank that is readily available and freely transferable in the
London interbank market.
"ASSIGNEE" has the meaning specified in Section 11.08(a).
"ATTORNEY COSTS" means and includes all reasonable and
customary fees and disbursements of any law firm or other external counsel, the
allocated cost of internal legal services and all disbursements of internal
counsel.
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"BAI" means Bank of America Illinois, an Illinois banking
association.
"BANK" has the meaning specified in the introductory clause
hereto.
"BANKRUPTCY CODE" means the Federal Bankruptcy Reform Act of
1978 (11 U.S.C. ss.101, ET SEQ.).
"BASE RATE" means, for any Interest Period, with respect to
Loans comprising part of the same Borrowing, the rate of interest per annum
(rounded upward to the next 1/16th of 1%) determined by the Bank as follows:
Base Rate = LIBOR
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1.00 - Eurodollar Reserve Percentage
Where,
"EURODOLLAR RESERVE PERCENTAGE" means for any day for any
Interest Period the maximum reserve percentage (expressed as a
decimal, rounded upward to the next 1/100th of 1%) in effect
on such day (whether or not applicable to the Bank) under
regulations issued from time to time by a relevant
Governmental Authority for determining the maximum reserve
requirement (including any emergency, supplemental or other
marginal reserve requirement) with respect to Eurocurrency
funding (currently referred to as "Eurocurrency liabilities");
and
"LIBOR" means the rate of interest per annum determined by the
Bank to be the rate of interest per annum at which deposits in
the approximate amount of the amount of the Loan to be made or
continued by the Bank and having a maturity comparable to such
Interest Period would be offered to major banks in the London
interbank market at their request at approximately 11:00 a.m.
(London time) two Business Days prior to the commencement of
such Interest Period.
The Base Rate shall be adjusted automatically as to all Loans then
outstanding as of the effective date of any change in the Eurodollar
Reserve Percentage.
"BORROWER" has the meaning specified in the introductory
clause hereto.
"BORROWING" means a borrowing hereunder consisting of Loans of
the same Approved Currency made to the Borrower on the same day by the Bank
under Article II, and having the same Interest Period.
"BORROWING DATE" means any date on which a Borrowing occurs
under Section 2.03.
"BUSINESS DAY" means any day other than a Saturday, Sunday or
other day on which commercial banks in Chicago, San Francisco, Stockholm,
Frankfurt or London are authorized or
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required by law to close and, if the applicable Business Day relates to any
Loan, means such a day on which dealings are carried on in the applicable
offshore interbank market.
"CAPITAL ADEQUACY REGULATION" means any guideline, request or
directive of any central bank or other Governmental Authority, or any other law,
rule or regulation, whether or not having the force of law, in each case,
regarding capital adequacy of any bank or of any corporation controlling a bank.
"CASH COLLATERALIZE" means to pledge and deposit with or
deliver to the Bank as additional collateral for the L/C Obligations, cash or
deposit account balances pursuant to documentation in form and substance
satisfactory to the Bank. Derivatives of such term shall have corresponding
meaning. The Borrower hereby grants the Bank a security interest in all such
cash and deposit account balances. Cash collateral shall be maintained in
blocked, non-interest bearing deposit accounts at the Bank.
"CLOSING DATE" means the date on which all conditions
precedent set forth in Section 5.01 are satisfied or waived by the Bank.
"COMMITMENT" has the meaning specified in Section 2.01.
"COMPUTATION DATE" has the meaning specified in Section 2.13.
"CONTINUATION DATE" means any date on which, under Section
2.04, the Borrower continues Loans of the same Approved Currency, but with a new
Interest Period, having Interest Periods expiring on such date.
"CREDIT EXTENSION" means and includes (a) the making of any
Loans hereunder, and (b) the Issuance of any Letters of Credit hereunder.
"DEFAULT" means any event or circumstance which, with the
giving of notice, the lapse of time, or both, would (if not cured or otherwise
remedied during such time) constitute an Event of Default.
"DEUTSCHMARKS" means the lawful currency of Germany
"DOLLARS", "DOLLARS" and "$" each mean lawful money of the
United States.
"ECU" means the European Currency Unit used in the European
Monetary System.
"EQUIVALENT" means, at any time, the equivalent amount of an
Approved Currency in Dollars as determined by the Bank at such time on the basis
of the Spot Rate for the purchase of Dollars with such Approved Currency on the
most recent Computation Date provided for in Section 2.13.
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"EFFECTIVE AMOUNT" means with respect to any Loans on any
date, the aggregate outstanding principal amount thereof after giving effect to
any Borrowings and prepayments or repayments of Loans occurring on such date.
For purposes of Section 2.07, the Effective Amount shall be determined without
giving effect to any mandatory prepayments to be made under said Section.
"EVENT OF DEFAULT" means any of the events or circumstances
specified in Section 9.01.
"FINANCIAL LETTERS OF CREDIT" means any Letter of Credit which
either the Bank or the Issuing Bank determines is required under applicable law
(including regulations and guidelines established by banking regulators)
relating to reserve requirements to be classified as a financial letter of
credit.
"FURTHER TAXES" means any and all present or future taxes,
levies, assessments, imposts, duties, deductions, fees, withholdings or similar
charges (including, without limitation, net income taxes and franchise taxes),
and all liabilities with respect thereto, imposed by any jurisdiction on account
of amounts payable or paid pursuant to Section 4.01.
"GERMAN CREDIT AGREEMENT" means the Credit Agreement, dated as
of March 4, 1997, among the Guarantor, Provista Einhundertsechsundfunfzigste
Verwaltungsgesellschaft mbH (to be known as Waterlink (Germany) GmbH), and Bank
of America National Trust and Savings Association, Frankfurt Branch.
"GOVERNMENTAL AUTHORITY" means any nation or government, any
state or other political subdivision thereof, any central bank (or similar
monetary or regulatory authority) thereof, any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government, and any corporation or other entity owned or controlled, through
stock or capital ownership or otherwise, by any of the foregoing.
"HONOR DATE" has the meaning specified in Section 3.03(b).
"INDEMNIFIED LIABILITIES" has the meaning specified in Section
11.05.
"INDEMNIFIED PERSON" has the meaning specified in Section
11.05.
"INTEREST PAYMENT DATE" means, as to any Loan, the last day of
each Interest Period applicable to such Loan.
"INTEREST PERIOD" means, as to any Loan, the period commencing
on the Borrowing Date of such Loan or on the Continuation Date on which the Loan
is continued, and ending on the date one, two or three months thereafter as
selected by the Borrower in its Notice of Borrowing or Notice of Continuation;
PROVIDED that:
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(a) if any Interest Period would otherwise end on a
day that is not a Business Day, that Interest Period shall be
extended to the following Business Day unless the result of
such extension would be to carry such Interest Period into
another calendar month, in which event such Interest Period
shall end on the preceding Business Day;
(b) any Interest Period that begins on the last
Business Day of a calendar month (or on a day for which there
is no numerically corresponding day in the calendar month at
the end of such Interest Period) shall end on the last
Business Day of the calendar month at the end of such Interest
Period; and
(c) no Interest Period shall extend beyond the
Termination Date.
"ISSUANCE DATE" has the meaning specified in Section 3.01(a).
"ISSUE" means, with respect to any Letter of Credit, to issue
or to extend the expiry of, or to renew or increase the amount of, such Letter
of Credit; and the terms "ISSUED," "ISSUING" and "ISSUANCE" have corresponding
meanings.
"JUDGMENT CURRENCY" has the meaning specified in SECTION
11.12.
"KRONA" means the lawful currency of Sweden.
"L/C ADVANCE" means the Bank's participation in any L/C
Borrowing.
"L/C AMENDMENT APPLICATION" means an application form for
amendment of outstanding standby or commercial documentary letters of credit as
shall at any time be in use at the Issuing Bank, as the Issuing Bank shall
request.
"L/C APPLICATION" means an application form for issuances of
standby or commercial documentary letters of credit substantially in the form of
Exhibit E or such other form as shall at any time be in use at the Issuing Bank
as the Issuing Bank shall request.
"L/C BORROWING" means an extension of credit resulting from a
drawing under any Letter of Credit which shall not have been reimbursed on the
date when made nor converted into a Borrowing of Loans under Section 3.03(c).
"L/C COMMITMENT" means the commitment of the Issuing Bank to
Issue, and the commitment of the Bank to participate in, Letters of Credit from
time to time Issued or outstanding under Article III, in an aggregate amount not
to exceed on any date the amount of the Equivalent of the Commitment, as the
same shall be reduced as a result of a reduction in the L/C Commitment pursuant
to Section 2.06; PROVIDED that the L/C Commitment is a part of the Commitment,
rather than a separate, independent commitment.
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"L/C OBLIGATIONS" means at any time the sum of (a) the
aggregate undrawn amount of all Letters of Credit then outstanding, plus (b) the
amount of all unreimbursed drawings under all Letters of Credit, including all
outstanding L/C Borrowings.
"L/C-RELATED DOCUMENTS" means the Letters of Credit, the L/C
Applications, the L/C Amendment Applications and any other document relating to
any Letter of Credit, including any of the Issuing Bank's standard form
documents for letter of credit issuances.
"LENDING OFFICE" means the office or offices of the Bank
specified as its "Lending Office" or "Domestic Lending Office" or "Offshore
Lending Office", as the case may be, on SCHEDULE 11.02, or such other office or
offices as the Bank may from time to time notify the Borrower.
"LETTERS OF CREDIT" means any letters of credit or bank
guarantee (whether Financial Letters of Credit or Non-Financial Letters of
Credit) Issued by the Issuing Bank pursuant to Article III.
"LOAN" means an extension of credit by the Bank to the
Borrower under Article II or Article III in the form of a Loan or L/C Borrowing.
"LOAN DOCUMENTS" means this Agreement, the Note, the
L/C-Related Documents and all other documents delivered to the Bank in
connection herewith.
"LOAN PARTY" shall mean, collectively, the Guarantor and the
Borrower.
"MLA COST" means the cost imputed to the Bank of compliance
with the mandatory liquid assets requirements of the Bank of England during the
Interest Period of a Loan denominated in Sterling, determined in accordance with
Schedule 1.
"MATERIAL ADVERSE EFFECT" means (a) a material adverse change
in, or a material adverse effect upon, the operations, business, properties,
condition (financial or otherwise) or prospects of the Guarantor or the
Guarantor and its Subsidiaries taken as a whole or as to any Subsidiary; (b) a
material impairment of the ability of the Guarantor or any Subsidiary to perform
under any Loan Document and to avoid any Event of Default; or (c) a material
adverse effect upon the legality, validity, binding effect or enforceability
against the Guarantor or any Subsidiary of any Loan Document.
"NON-FINANCIAL LETTERS OF CREDIT" means Letters of Credit
which are not Financial Letters of Credit.
"NOTE" means a promissory note executed by the Borrower in
favor of the Bank pursuant to Section 2.02(b), in substantially the form of
EXHIBIT D.
"NOTICE OF BORROWING" means a notice in substantially the form
of EXHIBIT A.
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"NOTICE OF CONTINUATION" means a notice substantially in the
form of EXHIBIT B.
"OBLIGATIONS" means all advances, debts, liabilities,
obligations, covenants and duties arising under any Loan Document owing by each
Loan Party to the Bank or any Indemnified Person, whether direct or indirect
(including those acquired by assignment), absolute or contingent, due or to
become due, now existing or hereafter arising.
"ORGANIZATION DOCUMENTS" means, for any corporation, the
certificate or articles of incorporation, the bylaws, any certificate of
determination or instrument relating to the rights of preferred shareholders of
such corporation, any shareholder rights agreement, and all applicable
resolutions of the board of directors (or any committee thereof) of such
corporation.
"OTHER TAXES" means any present or future stamp, court or
documentary taxes or any other excise or property taxes, charges or similar
levies which arise from any payment made hereunder or from the execution,
delivery, performance, enforcement or registration of, or otherwise with respect
to, this Agreement or any other Loan Documents.
"PARTICIPANT" has the meaning specified in Section 11.08(d).
"PAYMENT OFFICE" means the address for payments set forth on
Schedule 11.02 or such other address as the Bank may from time to time specify.
"PERSON" means an individual, partnership, corporation,
limited liability company, business trust, joint stock company, trust,
unincorporated association, joint venture or Governmental Authority.
"REQUIREMENT OF LAW" means, as to any Person, any law
(statutory or common), treaty, rule or regulation or determination of an
arbitrator or of a Governmental Authority, in each case applicable to or binding
upon the Person or any of its property or to which the Person or any of its
property is subject.
"RESPONSIBLE OFFICER" means the chief executive officer or the
president of a Loan Party, or any other officer having substantially the same
authority and responsibility; or, with respect to compliance with financial
covenants, the chief financial officer or the treasurer of the Guarantor, or any
other officer having substantially the same authority and responsibility.
"LOAN" has the meaning specified in Section 2.01.
"SPOT RATE" for a currency means the rate generally quoted by
the Bank as the spot rate for the purchase by the Bank of such currency with
another currency through its FX trading office on the date two Business Days
prior to the date as of which the foreign exchange computation is made.
"STERLING" means the lawful currency of the United Kingdom.
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"TAXES" means any and all present or future taxes, levies,
assessments, imposts, duties, deductions, fees, withholdings or similar charges,
and all liabilities with respect thereto, excluding taxes imposed on or measured
by its net income by the jurisdiction (or any political subdivision thereof)
under the laws of which the Bank is organized or maintains a lending office.
"TERMINATION DATE" means the earlier to occur of:
(a) February 18, 2000; and
(b) the date on which the Commitment terminates in
accordance with the provisions of this Agreement.
"UNITED STATES" and "U.S." each means the United States of
America.
"WATERLINK CREDIT AGREEMENT" means the Credit Agreement, dated
as of February __, 1997, among the Guarantor, the financial institutions from
time to time party thereto and BAI, as agent, as the same may be amended,
restated, supplemented or otherwise modified from time to time. In the event
such credit agreement is terminated, "Waterlink Credit Agreement" means such
agreement as in effect on the date immediately prior to such termination.
1.02 OTHER INTERPRETIVE PROVISIONS. (a) The meanings of defined terms
are equally applicable to the singular and plural forms of the defined terms.
(b) The words "hereof", "herein", "hereunder" and similar
words refer to this Agreement as a whole and not to any particular provision of
this Agreement; and Section, Schedule and Exhibit references are to this
Agreement unless otherwise specified.
(c) (i) The term "documents" includes any and all instruments,
documents, agreements, certificates, indentures, notices and other writings,
however evidenced.
(ii) The term "including" is not limiting and means
"including without limitation."
(iii) In the computation of periods of time from a
specified date to a later specified date, the word "from" means "from and
including"; the words "to" and "until" each mean "to but excluding", and the
word "through" means "to and including."
(d) Unless otherwise expressly provided herein, (i) references
to agreements (including this Agreement) and other contractual instruments shall
be deemed to include all subsequent amendments and other modifications thereto,
but only to the extent such amendments and other modifications are not
prohibited by the terms of any Loan Document, and (ii) references to any statute
or regulation are to be construed as including all statutory and regulatory
provisions consolidating, amending, replacing, supplementing or interpreting the
statute or regulation.
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(e) The captions and headings of this Agreement are for
convenience of reference only and shall not affect the interpretation of this
Agreement.
(f) This Agreement and other Loan Documents may use several
different limitations, tests or measurements to regulate the same or similar
matters. All such limitations, tests and measurements are cumulative and shall
each be performed in accordance with their terms. Unless otherwise expressly
provided, any reference to any action of the Bank by way of consent, approval or
waiver shall be deemed modified by the phrase "in its/their sole discretion."
(g) This Agreement and the other Loan Documents are the result
of negotiations among and have been reviewed by counsel to the Bank, the Loan
Parties and the other parties, and are the products of all parties. Accordingly,
they shall not be construed against the Bank merely because of the Bank's
involvement in their preparation.
1.03 ACCOUNTING PRINCIPLES. (a) Unless the context otherwise clearly
requires, all accounting terms not expressly defined herein shall be construed,
and all financial computations required under this Agreement shall be made, in
accordance with GAAP, consistently applied.
(b) References herein to "fiscal year" and "fiscal quarter"
refer to such fiscal periods of the Guarantor.
1.04 CURRENCY EQUIVALENTS GENERALLY. For all purposes of this Agreement
(but not for purposes of the preparation of any financial statements delivered
pursuant hereto), the equivalent in any Approved Currency of an amount in
Dollars, and the equivalent in Dollars of an amount in any Approved Currency,
shall be determined at the Spot Rate. Each determination of an Equivalent amount
by the Bank shall be conclusive and binding on the Borrower in the absence of
manifest error. The Bank will, at the request of the Borrower, deliver to the
Borrower a statement showing the quotations used by the Bank in determining any
Equivalent amount.
ARTICLE II
THE CREDITS
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2.01 AMOUNTS AND TERMS OF COMMITMENTS. THE REVOLVING CREDIT. The Bank
agrees, on the terms and conditions set forth herein, to make loans to the
Borrower (each such loan, a "LOAN") from time to time on any Business Day during
the period from the Closing Date to the Termination Date, in an aggregate amount
not to exceed at any time outstanding the Equivalent of the amount set forth
opposite the Bank's signature on the signature page to this Agreement (such
amount, the "COMMITMENT"); PROVIDED, HOWEVER, that, after giving effect to any
Borrowing of Loans, the Effective Amount of all outstanding Loans (exclusive of
Loans which are repaid with the proceeds of, and simultaneously with the
incurrence of, the respective incurrence of Loans) and the Effective Amount of
all L/C Obligations, shall not on any Computation Date exceed the Equivalent of
the Commitment, and subject to the other terms and conditions hereof, the
Borrower may borrow under this Section 2.01, prepay under Section 2.06 and
reborrow under this Section 2.01.
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2.02 LOAN ACCOUNTS. (a) The Loans made by the Bank and the Letters of
Credit Issued by the Bank shall be evidenced by one or more accounts or records
maintained by the Bank in the ordinary course of business. The accounts or
records maintained by the Bank shall be prima facia evidence of the amount of
the Loans made by the Bank to the Borrower and the Letters of Credit Issued for
the account of the Borrower, and the interest and payments thereon. Any failure
so to record or any error in doing so shall not, however, limit or otherwise
affect the obligation of the Borrower hereunder to pay any amount owing with
respect to the Loans or any Letter of Credit.
(b) Upon the request of the Bank, the Loans may be evidenced
by one or more Notes, instead of or in addition to loan accounts. The Bank shall
record on the schedules annexed to its Note(s) the date, amount and maturity of
each Loan made by it and the amount of each payment of principal made by the
Borrower with respect thereto. The Bank is irrevocably authorized by the
Borrower to make recordations on its Note(s) and the Bank's record shall be
deemed prima facia correct; PROVIDED, HOWEVER, that the failure of the Bank to
make, or an error in making, a notation thereon with respect to any Loan shall
not limit or otherwise affect the obligations of the Borrower hereunder or under
any such Note to the Bank.
2.03 PROCEDURE FOR BORROWING. (a) Each Borrowing (other than an L/C
Borrowing) shall be made upon the Borrowers's irrevocable written notice
delivered to the Bank in the form of a Notice of Borrowing (which notice must be
received by the Bank prior to 10:00 a.m. (London time)) two Business Days prior
to the requested Borrowing Date, specifying:
(i) the amount of the Borrowing, which shall be in an
aggregate minimum amount of the Equivalent of $250,000, or any
multiple of the Equivalent of $100,000 in excess thereof;
(ii) the Approved Currency in which the Borrowing is
to be denominated;
(iii) the requested Borrowing Date, which shall be a
Business Day; and
(iv) the duration of the Interest Period applicable
to such Loans included in such notice. If the Notice of
Borrowing fails to specify the duration of the Interest Period
for any Borrowing, such Interest Period shall be one month.
(b) The Bank will make the amount of each Borrowing available
for the account of the Borrower at the Payment Office on the Borrowing Date
requested by the Borrower in funds immediately available to the Bank. The
proceeds of all such Loans will then be made available to the Borrower by the
Bank at such office by crediting the account of the Borrower on the books of the
Bank.
(c) After giving effect to any Borrowing, unless the Bank
shall otherwise consent, there may not be more than five different Interest
Periods in effect.
2.04 CONTINUATION ELECTIONS. (a) The Borrower may, upon irrevocable
written notice to the Bank in accordance with Section 2.04(b), elect as of the
last day of the applicable Interest Period,
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to continue any Loans having Interest Periods expiring on such day (or any part
thereof in an amount not less than the Equivalent of $250,000, or that is in an
integral multiple of the Equivalent of $100,000 in excess thereof).
(b) The Borrower shall deliver a Notice of Continuation to be
received by the Bank not later than 10:00 a.m. (London time) at least two
Business Days in advance of the Continuation Date, specifying:
(i) the proposed Continuation Date;
(ii) the aggregate amount of Loans to be continued;
(iii) the Approved Currency in which the Loans
subject to the proposed continuation is denominated; and
(iv) the duration of the requested Interest Period.
(c) If upon the expiration of any Interest Period applicable
to a Loan, the Borrower has failed to select a new Interest Period to be
applicable to such Loan by the time specified in Section 2.04(b), or if any
Default or Event of Default then exists, the Borrower shall be deemed to have
elected to convert such Loan into an Interest Period of one month.
(d) After giving effect to any continuation of Loans, unless
the Bank shall otherwise consent, there may not be more than five different
Interest Periods in effect.
2.05 VOLUNTARY TERMINATION OR REDUCTION OF THE COMMITMENT. The Borrower
may, upon not less than three Business Days' prior notice to the Bank, terminate
the Commitment, or permanently reduce the Commitment by an aggregate minimum
amount of $250,000 or any multiple of $100,000 in excess thereof; UNLESS, after
giving effect thereto and to any prepayments of Loans made on the effective date
thereof, (a) the Effective Amount of all Loans and L/C Obligations together
would exceed the amount of the Commitment then in effect, or (b) the Effective
Amount of all L/C Obligations then outstanding would exceed the L/C Commitment.
Once reduced in accordance with this Section, the Commitment may not be
increased. If and to the extent specified by the Borrower in the notice to the
Bank, some or all of the reduction in the Commitment shall be applied to reduce
the L/C Commitment. All accrued commitment and letter of credit fees to, but not
including, the effective date of any reduction or termination of the Commitment,
shall be paid on the effective date of such reduction or termination.
2.06 OPTIONAL PREPAYMENTS. Subject to Section 4.04, the Borrower may, at
any time or from time to time, upon irrevocable notice to the Bank, prepay Loans
in whole or in part, in minimum amounts of the Equivalent of $250,000 or any
multiple of the Equivalent of $100,000 in excess thereof. Such notice of
prepayment shall specify the date and amount of such prepayment and the Type(s)
of Loans to be prepaid. If such notice is given by the Borrower, the Borrower
shall make such prepayment and the payment amount specified in such notice shall
be due and payable on the
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date specified therein, together with accrued interest to each such date on the
amount prepaid and any amounts required pursuant to Section 4.04.
2.07 MANDATORY PREPAYMENTS OF LOANS; MANDATORY COMMITMENT REDUCTIONS.
(a) If on any date the Effective Amount of L/C Obligations exceeds the L/C
Commitment, the Borrower shall Cash Collateralize on such date the outstanding
Letters of Credit in an amount equal to the excess of the maximum amount then
available to be drawn under the Letters of Credit over the Aggregate L/C
Commitment. Subject to Section 4.04, if on any date after giving effect to any
Cash Collateralization made on such date pursuant to the preceding sentence, the
Effective Amount of all Loans then outstanding plus the Effective Amount of all
L/C Obligations exceeds the Commitment, the Borrower shall immediately, upon
demand, prepay the outstanding principal amount of the Loans and L/C Advances by
an amount equal to the applicable excess.
(b) Subject to Section 4.04, if on any Computation Date the Bank
shall have determined that due to a change in applicable rates of exchange
between Dollars and the Approved Currency the aggregate Equivalent principal
amount of all Loans then outstanding exceeds the Commitment by an amount equal
to or greater than 10% of the Commitment, THEN the Bank shall give notice to the
Borrower that a prepayment is required under this Section, and the Borrower
agrees thereupon to make prepayments of Loans such that, after giving effect to
such prepayment the aggregate Equivalent amount of all Loans does not exceed the
Commitment.
(c) Any prepayments pursuant to this Section 2.07 shall be
applied to Loans with the shortest Interest Periods remaining. The Borrower
shall pay, together with each prepayment under this Section 2.07, accrued
interest on the amount prepaid and any amounts required pursuant to Section
4.04.
2.08 REPAYMENT. The Borrower shall repay to the Bank on the Termination
Date the aggregate principal amount of Loans outstanding on such date.
2.09 INTEREST. (a) Each Loan shall bear interest on the outstanding
principal amount thereof from the applicable Borrowing Date at a rate per annum
equal to the Base Rate PLUS the Applicable Margin.
(b) Interest on each Loan shall be paid in arrears on each
Interest Payment Date. Interest shall also be paid on the date of any prepayment
of Loans under Section 2.06 or 2.07 for the portion of the Loans so prepaid and
upon payment (including prepayment) in full thereof and, during the existence of
any Event of Default, interest shall be paid on demand of the Bank.
(c) Notwithstanding Section 2.09(a), while any Event of
Default exists or after acceleration, the Borrower shall pay interest (after as
well as before entry of judgment thereon to the extent permitted by law) on the
principal amount of all outstanding Obligations, at a rate per annum which is
determined by adding 2% per annum to the Applicable Margin for such Loans.
(d) Anything herein to the contrary notwithstanding, the
obligations of the Borrower to the Bank hereunder shall be subject to the
limitation that payments of interest shall not be
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required for any period for which interest is computed hereunder, to the extent
(but only to the extent) that contracting for or receiving such payment by the
Bank would be contrary to the provisions of any law applicable to the Bank
limiting the highest rate of interest that may be lawfully contracted for,
charged or received by the Bank, and in such event the Borrower shall pay the
Bank interest at the highest rate permitted by applicable law.
2.10 FEES. In addition to certain fees described in Section 3.08, the
Borrower shall pay to the Bank a commitment fee on the average unused portion of
the Commitment calculated after giving effect to determinations made by the
Bank, pursuant to Section 2.13, computed on a quarterly basis in arrears on the
last Business Day of each calendar quarter based upon the daily utilization for
that quarter as calculated by the Bank, equal to .50% percent per annum. For
purposes of calculating utilization under this Section, the Commitment shall be
deemed used to the extent of the Equivalent of the Effective Amount of Loans
then outstanding, plus the Effective Amount of L/C Obligations then outstanding.
Such commitment fee shall accrue from the Closing Date to the Termination Date
and shall be due and payable quarterly in arrears on the last Business Day of
each March, June, September and December through the Termination Date, with the
final payment to be made on the Termination Date; PROVIDED that, in connection
with any reduction or termination of the Commitment under Section 2.05, the
accrued commitment fee calculated for the period ending on such date shall also
be paid on the date of such reduction or termination, with the following
quarterly payment being calculated on the basis of the period from such
reduction or termination date to such quarterly payment date. The commitment
fees provided in this Section shall accrue at all times after the
above-mentioned commencement date, including at any time during which one or
more conditions in Article V are not met.
2.11 COMPUTATION OF FEES AND INTEREST. (a) All computations of (i) fees
and interest (other than as provided in clause (ii) below) shall be made on the
basis of a 360-day year and actual days elapsed (which results in more interest
being paid than if computed on the basis of a 365-day year) and (ii) all
computations of interest on Loans denominated in Sterling shall be made on the
basis of a 365/366-day year and actual days elapsed. Interest and fees shall
accrue during each period during which interest or such fees are computed from
the first day thereof to the last day thereof.
(b) Each determination of an interest rate by the Bank shall
be conclusive and binding on the Borrower in the absence of manifest error. The
Bank will, at the request of the Borrower, deliver to the Borrower a statement
showing the quotations used by the Bank in determining any interest rate and the
resulting interest rate.
2.12 PAYMENTS BY THE BORROWER. (a) All payments to be made by the
Borrower shall be made without set-off, recoupment or counterclaim. Except as
otherwise expressly provided herein, all payments by the Borrower shall be made
to the Bank at the Payment Office in immediately available funds, no later than
Noon (London time) on the date specified herein. Principal of, interest on, and
any other amounts relating to, any Loan, shall be made in the Approved Currency
in which such Loan is denominated or payable, and, with respect to all other
amounts payable hereunder, shall be made in Dollars. Any payment received by the
Bank later than 12:00 Noon (London time) shall be deemed to have been received
on the following Business Day and any applicable interest or fee shall continue
to accrue for the day actually received.
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(b) Subject to the provisions set forth in the definition of
"Interest Period" herein, whenever any payment is due on a day other than a
Business Day, such payment shall be made on the following Business Day, and such
extension of time shall in such case be included in the computation of interest
or fees, as the case may be.
2.13 UTILIZATION OF APPROVED CURRENCIES. (a) The Bank will determine
the Equivalent amount with respect to any (i) Borrowing as of the requested
Borrowing Date, (ii) outstanding Loans and L/C Obligations as of the last
Business Day of each month, and (iii) outstanding Loans and L/C Obligations as
of any redenomination date pursuant to this Section 2.13 or Section 4.05 (each
such date under clauses (i) through (iii), a "COMPUTATION DATE").
(b) In the case of a proposed Borrowing, the Bank shall be
under no obligation to make Loans in the requested Approved Currency as part of
such Borrowing if the Bank cannot provide Loans in the requested Approved
Currency, in which event the Bank will give notice to the Borrower no later than
Noon (London time) on the second Business Day prior to the requested date of
such Borrowing that the Borrowing in the requested Approved Currency is not then
available. If the Bank shall have so notified the Borrower that any such
Borrowing in a requested Approved Currency is not then available, the Borrowing
requested therein shall not occur.
(c) In the case of a proposed continuation of any Loan for an
additional Interest Period pursuant to Section 2.04, the Bank shall be under no
obligation to continue such Loan if the Borrower has received notice from the
Bank by Noon (London time) two Business Days prior to the day of such
continuation that the Bank cannot continue to provide Loans in the relevant
Approved Currency. If the Bank shall have so notified the Borrower that any such
continuation of such Loan is not then available, any Notice of Continuation with
respect thereto shall be deemed withdrawn and such Loan shall be redenominated
into an available Approved Currency with effect from the last day of the
Interest Period with respect to any such Loans. The Bank will promptly notify
the Borrower of any such redenomination and in such notice will state the
aggregate Equivalent amount of the redenominated Loan as of the Computation Date
with respect thereto.
ARTICLE III
THE LETTERS OF CREDIT
---------------------
3.01 THE LETTER OF CREDIT SUBFACILITY. (a) On the terms and conditions
set forth herein the Bank agrees, (A) from time to time on any Business Day
during the period from the Closing Date to the Termination Date to issue Letters
of Credit for the account of the Borrower, and to amend or renew Letters of
Credit previously issued by it, in accordance with Sections 3.02(c) and (d), and
(B) to honor drafts under the Letters of Credit; PROVIDED, that the Bank shall
not be obligated to Issue any Letter of Credit if as of the date of Issuance of
such Letter of Credit (the "ISSUANCE DATE") (1) the Effective Amount of all L/C
Obligations plus the Effective Amount of all Loans exceeds the Commitment or (2)
the Effective Amount of L/C Obligations exceeds the L/C Commitment. Within the
foregoing limits, and subject to the other terms and conditions hereof, the
Borrower's ability to obtain Letters of Credit shall be fully revolving, and,
accordingly, the Borrower may, during the
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foregoing period, obtain Letters of Credit to replace Letters of Credit which
have expired or which have been drawn upon and reimbursed.
(b) The Bank is under no obligation to Issue any Letter of
Credit if:
(i) any order, judgment or decree of any Governmental
Authority or arbitrator shall by its terms purport to enjoin or
restrain the Bank from such Letter of Credit, or any Requirement of Law
applicable to the Bank or any request or directive (whether or not
having the force of law) from any Governmental Authority with
jurisdiction over the Bank shall prohibit, or request that the Bank
refrain from, the Issuance of letters of credit generally or such
Letter of Credit in particular or shall impose upon the Bank with
respect to such Letter of Credit any restriction, reserve or capital
requirement (for which the Bank is not otherwise compensated hereunder)
not in effect on the Closing Date, or shall impose upon the Bank any
unreimbursed loss, cost or expense which was not applicable on the
Closing Date and which the Bank in good xxxxx xxxxx material to it;
(ii) the Bank has received written notice from the
Borrower, on or prior to the Business Day prior to the requested date
of Issuance of such Letter of Credit, that one or more of the
applicable conditions contained in Article V is not then satisfied;
(iii) the expiry date of any requested Letter of
Credit is after the Termination Date, unless the Borrower has Cash
Collateralized, in form and substance satisfactory to the Bank, its L/C
Obligations under such Letter of Credit on or prior to the date of the
Issuance of such Letter of Credit;
(iv) any requested Letter of Credit does not
provide for drafts, or is not otherwise in form and substance
acceptable to the Issuing Bank, or the Issuance of a Letter of
Credit shall violate any applicable policies of the Issuing
Bank; or
(v) such Letter of Credit is in a face amount less
than the Equivalent of $25,000, unless such lesser amount is approved
by the Bank, or to be denominated in a currency other an Approved
Currency.
3.02 ISSUANCE, AMENDMENT AND RENEWAL OF LETTERS OF CREDIT. (a) Each
Letter of Credit shall be issued upon the irrevocable written request of the
Borrower received by the Bank at least three days (or such shorter time as the
Bank may agree in a particular instance in its sole discretion) prior to the
proposed date of issuance. Each such request for issuance of a Letter of Credit
shall be by facsimile, confirmed immediately in an original writing, in the form
of an L/C Application, and shall specify in form and detail satisfactory to the
Bank: (i) the proposed date of issuance of the Letter of Credit (which shall be
a Business Day); (ii) the face amount of the Letter of Credit; (iii) the expiry
date of the Letter of Credit; (iv) the name and address of the beneficiary
thereof; (v) the documents to be presented by the beneficiary of the Letter of
Credit in case of any drawing thereunder; (vi) the full text of any certificate
to be presented by the beneficiary in case of any drawing thereunder; and (vii)
such other matters as the Bank may require.
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(b) Unless the Bank determines that (A) it should not to issue
such Letter of Credit because such issuance is not then permitted under Section
3.01(a) as a result of the limitations set forth in clauses (1) or (2) thereof
or Section 3.01(b)(ii); or (B) that one or more conditions specified in Article
V are not then satisfied; then, subject to the terms and conditions hereof, the
Bank shall, on the requested date, issue a Letter of Credit for the account of
the Borrower in accordance with the Bank's usual and customary business
practices.
(c) From time to time while a Letter of Credit is outstanding
and prior to the Termination Date, the Bank will, upon the written request of
the Borrower received by the Bank at least three days (or such shorter time as
the Bank may agree in a particular instance in its sole discretion) prior to the
proposed date of amendment, amend any Letter of Credit issued by it. Each such
request for amendment of a Letter of Credit shall be made by facsimile,
confirmed immediately in an original writing, made in the form of an L/C
Amendment Application and shall specify in form and detail satisfactory to the
Bank: (i) the Letter of Credit to be amended; (ii) the proposed date of
amendment of the Letter of Credit (which shall be a Business Day); (iii) the
nature of the proposed amendment; and (iv) such other matters as the Issuing
Bank may require. The Bank shall be under no obligation to amend any Letter of
Credit if: (A) the Bank would have no obligation at such time to issue such
Letter of Credit in its amended form under the terms of this Agreement; or (B)
the beneficiary of any such letter of Credit does not accept the proposed
amendment to the Letter of Credit.
(d) The Bank agrees that, while a Letter of Credit is
outstanding and prior to the Termination Date, at the option of the Borrower and
upon the written request of the Borrower received by the Bank at least five days
(or such shorter time as the Bank may agree in a particular instance in its sole
discretion) prior to the proposed date of notification of renewal, the Bank
shall be entitled to authorize the automatic renewal of any Letter of Credit
issued by it. Each such request for renewal of a Letter of Credit shall be made
by facsimile, confirmed immediately in an original writing, in the form of an
L/C Amendment Application, and shall specify in form and detail satisfactory to
the Bank: (i) the Letter of Credit to be renewed; (ii) the proposed date of
notification of renewal of the Letter of Credit (which shall be a Business Day);
(iii) the revised expiry date of the Letter of Credit; and (iv) such other
matters as the Bank may require. The Bank shall be under no obligation so to
renew any Letter of Credit if: (A) the Bank would have no obligation at such
time to issue or amend such Letter of Credit in its renewed form under the terms
of this Agreement; or (B) the beneficiary of any such Letter of Credit does not
accept the proposed renewal of the Letter of Credit. If any outstanding Letter
of Credit shall provide that it shall be automatically renewed unless the
beneficiary thereof receives notice from the Bank that such Letter of Credit
shall not be renewed, and if at the time of renewal the Bank would be entitled
to authorize the automatic renewal of such Letter of Credit in accordance with
this clause (d) upon the request of the Borrower but the Bank shall not have
received any L/C Amendment Application from the Borrower with respect to such
renewal or other written direction by the Borrower with respect thereto, the
Bank shall nonetheless be permitted to allow such Letter of Credit to renew, and
the Borrower hereby authorizes such renewal, and, accordingly, the Bank shall be
deemed to have received an L/C Amendment Application from the Borrower
requesting such renewal.
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(e) The Bank may, at its election, deliver any notices of
termination or other communications to any Letter of Credit beneficiary or
transferee, and take any other action as necessary or appropriate, at any time
and from time to time, in order to cause the expiry date of such Letter of
Credit to be a date not later than the Termination Date.
(f) This Agreement shall control in the event of any conflict
with any L/C-Related Document (other than any Letter of Credit).
3.03 DRAWINGS AND REIMBURSEMENTS. (a) In the event of any request for a
drawing under a Letter of Credit by the beneficiary or transferee thereof, the
Bank will promptly notify the Borrower. The Borrower shall reimburse the Bank
(by an L/C Borrowing or otherwise) prior to 12:00 Noon (London time), on each
date that any amount is paid by the Bank under any Letter of Credit (each such
date, an "HONOR DATE"), in an amount equal to the amount so paid by the Bank. In
the event the Borrower fails to reimburse the Bank for the full amount of any
drawing under any Letter of Credit by 12:00 Noon (London time) on the Honor
Date, the Borrower shall be deemed to have requested that Base Rate Loans be
made by the Bank to be disbursed on the Honor Date under such Letter of Credit,
subject to the amount of the unutilized portion of the Commitment and subject to
the conditions set forth in Section 5.02. Any notice given by the Bank pursuant
to this clause (b) may be oral if immediately confirmed in writing (including by
facsimile); provided that the lack of such an immediate confirmation shall not
affect the conclusiveness or binding effect of such notice.
(b) With respect to any unreimbursed drawing that is not
converted into Loans consisting of Base Rate Loans to the Borrower in whole or
in part, because of the Borrower's failure to satisfy the conditions set forth
in Section 5.02 or for any other reason, the Borrower shall be deemed to have
incurred from the Bank an L/C Borrowing in the amount of such drawing, which L/C
Borrowing shall be due and payable on demand (together with interest) and shall
bear interest at a rate per annum equal to the rate of interest in effect for
such day as publicly announced by the Bank as its "base rate" with respect to
the relevant Approved Currency of such unreimbursed drawing plus 2% per annum.
3.04 ROLE OF THE ISSUING BANK. (a) The Borrower agrees that, in paying
any drawing under a Letter of Credit, the Bank shall not have any responsibility
to obtain any document (other than any sight draft and certificates expressly
required by the Letter of Credit) or to ascertain or inquire as to the validity
or accuracy of any such document or the authority of the Person executing or
delivering any such document.
(b) The Borrower hereby assumes all risks of the acts or
omissions of any beneficiary or transferee with respect to its use of any Letter
of Credit; PROVIDED, however, that this assumption is not intended to, and shall
not, preclude the Borrower's pursuing such rights and remedies as it may have
against the beneficiary or transferee at law or under any other agreement. No
correspondents, participants or assignees of the Bank shall be liable or
responsible for any of the matters described in clauses (i) through (vii) of
Section 3.05; PROVIDED, however, anything in such clauses to the contrary
notwithstanding, that the Borrower may have a claim against the Bank, and the
Bank may be liable to the Borrower, to the extent, but only to the extent, of
any direct, as opposed to consequential or exemplary, damages suffered by the
Borrower which the Borrower proves were
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caused by the Bank's willful misconduct or gross negligence or the Bank's
willful failure to pay under any Letter of Credit after the presentation to it
by the beneficiary of a sight draft and certificate(s) strictly complying with
the terms and conditions of a Letter of Credit. In furtherance and not in
limitation of the foregoing: (i) the Bank may accept documents that appear on
their face to be in order, without responsibility for further investigation,
regardless of any notice or information to the contrary; and (ii) the Bank shall
not be responsible for the validity or sufficiency of any instrument
transferring or assigning or purporting to transfer or assign a Letter of Credit
or the rights or benefits thereunder or proceeds thereof, in whole or in part,
which may prove to be invalid or ineffective for any reason.
3.05 OBLIGATIONS ABSOLUTE. The obligations of the Borrower under this
Agreement and any L/C-Related Document to reimburse the Bank for a drawing under
a Letter of Credit, and to repay any L/C Borrowing and any drawing under a
Letter of Credit converted into Loans, shall be unconditional and irrevocable,
and shall be paid strictly in accordance with the terms of this Agreement and
each such other L/C-Related Document under all circumstances, including the
following:
(i) any lack of validity or enforceability of this
Agreement or any L/C-Related Document;
(ii) any change in the time, manner or place of
payment of, or in any other term of, all or any of the obligations of
the Borrower in respect of any Letter of Credit or any other amendment
or waiver of or any consent to departure from all or any of the
L/C-Related Documents;
(iii) the existence of any claim, set-off, defense or
other right that the Borrower may have at any time against any
beneficiary or any transferee of any Letter of Credit (or any Person
for whom any such beneficiary or any such transferee may be acting),
the Bank or any other Person, whether in connection with this
Agreement, the transactions contemplated hereby or by the L/C-Related
Documents or any unrelated transaction;
(iv) any draft, demand, certificate or other document
presented under any Letter of Credit proving to be forged, fraudulent,
invalid or insufficient in any respect or any statement therein being
untrue or inaccurate in any respect; or any loss or delay in the
transmission or otherwise of any document required in order to make a
drawing under any Letter of Credit;
(v) any payment by the Bank under any Letter of
Credit against presentation of a draft or certificate that does not
strictly comply with the terms of any Letter of Credit; or any payment
made by the Bank under any Letter of Credit to any Person purporting to
be a trustee in bankruptcy, debtor-in-possession, assignee for the
benefit of creditors, liquidator, receiver or other representative of
or successor to any beneficiary or any transferee of any Letter of
Credit, including any arising in connection with any Insolvency
Proceeding;
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(vi) any exchange, release or non-perfection of any
collateral, or any release or amendment or waiver of or consent to
departure from any other guarantee, for all or any of the obligations
of the Borrower in respect of any Letter of Credit; or
(vii) any other circumstance or happening whatsoever,
whether or not similar to any of the foregoing, including any other
circumstance that might otherwise constitute a defense available to, or
a discharge of, the Borrower or a guarantor.
3.06 CASH COLLATERAL PLEDGE. Upon (i) the request of the Bank, (A) if
the Bank has honored any full or partial drawing request on any Letter of Credit
and such drawing has resulted in an L/C Borrowing hereunder, or (B) if, as of
the Termination Date, any Letters of Credit may for any reason remain
outstanding and partially or wholly undrawn, or (ii) the occurrence of the
circumstances described in Section 2.07(a) requiring the Borrower to Cash
Collateralize Letters of Credit, then, the Borrower shall immediately Cash
Collateralize the L/C Obligations in an amount equal to such L/C Obligations.
3.07 LETTER OF CREDIT FEES. (a) The Borrower shall pay to the Bank a
letter of credit fee with respect to the Letters of Credit equal to 2.25% per
annum of the average daily maximum amount available to be drawn of the
outstanding Letters of Credit, computed on a quarterly basis in arrears on the
last Business Day of each March, June, September and December based upon Letters
of Credit outstanding for that quarter as calculated by the Bank. Such letter of
credit fees shall be due and payable quarterly in arrears on the last Business
Day of each calendar quarter during which Letters of Credit are outstanding,
commencing on the first such quarterly date to occur after the Closing Date,
through the Termination Date (or such later date upon which the outstanding
Letters of Credit shall expire), with the final payment to be made on the
Termination Date (or such later expiration date).
(b) The Borrower shall pay to the Bank from time to time on
demand the normal issuance, presentation, amendment and other processing fees,
and other standard costs and charges, of the Bank relating to letters of credit
as from time to time in effect.
3.08 UNIFORM CUSTOMS AND PRACTICE. The Uniform Customs and Practice for
Documentary Credits as published by the International Chamber of Commerce most
recently at the time of issuance of any Letter of Credit shall (unless otherwise
expressly provided in the Letters of Credit) apply to the Letters of Credit.
ARTICLE IV
TAXES, YIELD PROTECTION AND ILLEGALITY
--------------------------------------
4.01 TAXES. (a) Any and all payments by the Borrower to the Bank under
this Agreement and any other Loan Document shall be made free and clear of, and
without deduction or withholding for, any Taxes. In addition, the Borrower shall
pay all Other Taxes.
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(b) If the Borrower shall be required by law to deduct or
withhold any Taxes, Other Taxes or Further Taxes from or in respect of any sum
payable hereunder to the Bank, then:
(i) the sum payable shall be increased as necessary
so that, after making all required deductions and withholdings
(including deductions and withholdings applicable to additional sums
payable under this Section), the Bank receives and retains an amount
equal to the sum it would have received and retained had no such
deductions or withholdings been made;
(ii) the Borrower shall make such deductions and
withholdings;
(iii) the Borrower shall pay the full amount deducted
or withheld to the relevant taxing authority or other authority in
accordance with applicable law; and
(iv) the Borrower shall also pay to the Bank, at the
time interest is paid, Further Taxes in the amount that the Bank
specifies as necessary to preserve the after-tax yield the Bank would
have received if such Taxes, Other Taxes or Further Taxes had not been
imposed.
(c) The Borrower agrees to indemnify and hold harmless and the
Bank for the full amount of i) Taxes, ii) Other Taxes, and iii) Further Taxes in
the amount that the Bank specifies as necessary to preserve the after-tax yield
the Bank would have received if such Taxes, Other Taxes or Further Taxes had not
been imposed, and any liability (including penalties, interest, additions to tax
and expenses) arising therefrom or with respect thereto, whether or not such
Taxes, Other Taxes or Further Taxes were correctly or legally asserted. Payment
under this indemnification shall be made within 30 days after the date the Bank
makes written demand therefor.
(d) Within 30 days after the date of any payment pursuant to
this Section by the Borrower of Taxes, Other Taxes or Further Taxes, the
Borrower shall furnish to the Bank the original or a certified copy of a receipt
evidencing payment thereof, or other evidence of payment satisfactory to the
Bank.
(e) If the Borrower is required to pay any amount to the Bank
pursuant to clauses (b) or (c) of this Section, then the Bank shall use
reasonable efforts (consistent with legal and regulatory restrictions) to change
the jurisdiction of its Lending Office so as to eliminate any such additional
payment by the Borrower which may thereafter accrue, if such change in the sole
judgment of the Bank is not otherwise disadvantageous to the Bank.
4.02 ILLEGALITY. (a) If the Bank determines that the introduction of
any Requirement of Law, or any change in any Requirement of Law, or in the
interpretation or administration of any Requirement of Law, has made it
unlawful, or that any central bank or other Governmental Authority has asserted
that it is unlawful, for the Bank or its applicable Lending Office to make Loans
in an Approved Currency, then, on notice thereof by the Bank to the Borrower,
any obligation of the Bank to make Loans in such Approved Currency shall be
suspended until the Bank notifies the Borrower that the circumstances giving
rise to such determination no longer exist.
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(b) If the Bank determines that it is unlawful to maintain any
Loan in an Approved Currency, the Borrower shall, upon its receipt of notice of
such fact and demand from the Bank, prepay in full such Loans in such Approved
Currency of the Bank then outstanding, together with interest accrued thereon
and amounts required under Section 4.04, either on the last day of the Interest
Period thereof, if the Bank may lawfully continue to maintain such Loans to such
day, or immediately, if the Bank may not lawfully continue to maintain such
Loan. If the Borrower is required to so prepay any such Loan, then concurrently
with such prepayment, the Borrower may borrow from the Bank, in the amount of
such repayment, a Loan in an unaffected Approved Currency with an Interest
Period of one month.
(c) If the obligation of the Bank to make or maintain Loans in
an Approved Currency has been so terminated or suspended, the Borrower may
elect, by giving notice to the Bank that all Loans in such Approved Currency
which would otherwise be made by the Bank shall be instead Loans in an
unaffected Approved Currency.
(d) Before giving any notice to the Borrower under this
Section, the Bank shall designate a different Lending Office with respect to its
Loans in an Approved Currency if such designation will avoid the need for giving
such notice or making such demand and will not, in the judgment of the Bank, be
illegal or otherwise disadvantageous to the Bank.
4.03 INCREASED COSTS AND REDUCTION OF RETURN. (a) If the Bank
determines that, due to either (i) the introduction of or any change in or in
the interpretation of any law or regulation or (ii) the compliance by the Bank
with any guideline or request from any central bank or other Governmental
Authority (whether or not having the force of law), there shall be any increase
in the cost to the Bank of agreeing to make or making, funding or maintaining
any Loans or any increase in the cost to the Bank of agreeing to issue, or
maintaining any Letter of Credit or of agreeing to make or making, funding or
maintaining any unpaid drawing under any Letter of Credit, then the Borrower
shall be liable for, and shall from time to time, upon demand, pay to the Bank,
additional amounts as are sufficient to compensate such Bank for such increased
costs.
(b) If the Bank shall have determined that (i) the
introduction of any Capital Adequacy Regulation, (ii) any change in any Capital
Adequacy Regulation, (iii) any change in the interpretation or administration of
any Capital Adequacy Regulation by any central bank or other Governmental
Authority charged with the interpretation or administration thereof, or (iv)
compliance by the Bank (or its Lending Office) or any corporation controlling
the Bank with any Capital Adequacy Regulation, affects or would affect the
amount of capital required or expected to be maintained by the Bank or any
corporation controlling the Bank and (taking into consideration the Bank's or
such corporation's policies with respect to capital adequacy and the Bank's
desired return on capital) determines that the amount of such capital is
increased as a consequence of its Commitment, loans, credits or obligations
under this Agreement, then, upon demand of the Bank to the Borrower through the
Bank, the Borrower shall pay to the Bank, from time to time as specified by the
Bank, additional amounts sufficient to compensate the Bank for such increase.
4.04 FUNDING LOSSES. The Borrower shall reimburse the Bank and hold the
Bank harmless from any loss or expense which the Bank may sustain or incur as a
consequence of:
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(i) the failure of the Borrower to make on a timely basis any
payment of principal of any Loan;
(ii) the failure of the Borrower to borrow, continue or
convert a Loan after the Borrower has given (or is deemed to have
given) a Notice of Borrowing or a Notice of Conversion/ Continuation;
(iii) the failure of the Borrower to make any prepayment in
accordance with any notice delivered under Section 2.06; or
(iv) the prepayment (including pursuant to Section 2.07) or
other payment (including after acceleration thereof) of an Loan on a
day that is not the last day of the relevant Interest Period.
including any such loss or expense arising from the liquidation or reemployment
of funds obtained by it to maintain its Loans or from fees payable to terminate
the deposits from which such funds were obtained. For purposes of calculating
amounts payable by the Borrower to the Bank under this Section and under Section
4.03(a), each Loan made by a Bank (and each related reserve, special deposit or
similar requirement) shall be conclusively deemed to have been funded at the
LIBOR used in determining the for such Loan by a matching deposit or other
borrowing in the interbank eurodollar market for a comparable amount and for a
comparable period, whether or not such Loan is in fact so funded.
4.05 INABILITY TO DETERMINE RATES. If the Bank determines that for any
reason adequate and reasonable means do not exist for determining the Base Rate
for any requested Interest Period with respect to a proposed Loan, or that the
Base Rate applicable pursuant to Section 2.09(a) for any requested Interest
Period with respect to a proposed Loan does not adequately and fairly reflect
the cost to the Bank of funding such Loan, the Bank will promptly so notify the
Borrower and each Bank. Thereafter, the obligation of the Bank to make or
maintain Loans hereunder shall be suspended until the Bank revokes such notice
in writing. Upon receipt of such notice, the Borrower may revoke any Notice of
Borrowing or Notice of Continuation then submitted by it. If the Borrower does
not revoke such Notice, the Bank shall make or continue the Loans, as proposed
by the Borrower, in the amount specified in the applicable notice submitted by
the Borrower, but such Loans shall be made or continued as Loans in an available
Approved Currency. In the case of any Loan, the Borrowing or continuation shall
be in an aggregate amount equal to the Equivalent of the originally requested
Borrowing or continuation in the available Approved Currency, and to that end
any outstanding Loans which are the subject of any continuation shall be
redenominated and converted into the available Approved Currency with effect
from the last day of the Interest Period with respect to any such Loan.
4.06 RESERVES ON LOANS. The Borrower shall pay to the Bank, as long as
the Bank shall be required under regulations of a relevant Governmental
Authority to maintain reserves with respect to liabilities or assets consisting
of or including Eurocurrency funds or deposits (currently known as "Eurocurrency
liabilities"), and, in respect of any Loans, under any applicable regulations of
a relevant Governmental Authority in the country in which the Approved Currency
of such Loan
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circulates, additional costs (including, without limitation, any MLA Cost) on
the unpaid principal amount of each Loan equal to the actual costs of such
reserves allocated to such Loan by the Bank (as determined by the Bank in good
faith, which determination shall be conclusive), payable on each date on which
interest is payable on such Loan, provided the Borrower shall have received at
least 15 days' prior written notice (with a copy to the Bank) of such additional
interest from the Bank. If a Bank fails to give notice 15 days prior to the
relevant Interest Payment Date, such additional interest shall be payable 15
days from receipt of such notice.
4.07 CERTIFICATES OF THE BANK. The Bank shall deliver to the Borrower a
certificate setting forth in reasonable detail the amount payable to the Bank
under this Article IV and such certificate shall be conclusive and binding on
the Borrower in the absence of manifest error.
4.08 SURVIVAL. The agreements and obligations of the Borrower in this
Article IV shall survive the payment of all other Obligations.
ARTICLE V
CONDITIONS PRECEDENT
--------------------
5.01 CONDITIONS OF INITIAL CREDIT EXTENSIONS. The obligation of the
Bank to make its initial Credit Extension hereunder is subject to the condition
that the Bank shall have received on or before the Closing Date all of the
following, in form and substance satisfactory to the Bank:
(a) CREDIT AGREEMENT AND NOTES. This Agreement and the Note
executed by each party thereto;
(b) RESOLUTIONS; INCUMBENCY.
(i) Copies of the resolutions of the board of
directors of each Loan Party authorizing the transactions contemplated
hereby, certified as of the Closing Date by the Secretary or an
Assistant Secretary of such Person; and
(ii) A certificate of an authorized officer of each
Loan Party certifying the names and true signatures of such Person
authorized to execute, deliver and perform, as applicable, this
Agreement, and all other Loan Documents to be delivered by it
hereunder;
(c) ORGANIZATION DOCUMENTS; GOOD STANDING. Each of the
following documents:
(i) the articles or certificate of incorporation, the
bylaws, minutes and board of directors resolutions of each Loan Party
as in effect on the Closing Date, certified by the Secretary or
Assistant Secretary of such Person as of the Closing Date; and
(ii) a good standing certificate, to the extent
available, for each Loan Party from the Secretary of State (or similar,
applicable Governmental Authority) of its jurisdiction
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of incorporation and each jurisdiction where such Person is qualified
to do business as a foreign corporation as of a recent date, together
with a bring-down certificate by facsimile, dated the Closing Date;
(d) LEGAL OPINIONS. An opinion addressed to the Bank, (i) of
Benesch, Friedlander, Xxxxxx & Xxxxxxx, P.L.L., counsel to the Loan Parties,
substantially in the form of EXHIBIT C-1, (ii) from Warshaw, Burnstein, Xxxxx,
Xxxxxxxxxxx & Kuh, LLP, special New York counsel to the Loan Parties,
substantially in the form of EXHIBIT C-2, and (iii) from local counsel in such
jurisdictions as the Bank may request, such opinion to be in form and substance
acceptable to the Bank.
(e) PAYMENT OF FEES. Evidence of payment by each Loan Party of
all accrued and unpaid fees, costs and expenses to the extent then due and
payable on the Closing Date, together with Attorney Costs of the Bank to the
extent invoiced prior to or on the Closing Date, plus such additional amounts of
Attorney Costs as shall constitute the Bank's reasonable estimate of Attorney
Costs incurred or to be incurred by it through the closing proceedings (provided
that such estimate shall not thereafter preclude final settling of accounts
between each Loan Party and the Bank); including any such costs, fees and
expenses arising under or referenced in Sections 2.10 and 10.04;
(f) CERTIFICATE. A certificate signed by an authorized officer
of each Loan Party, dated as of the Closing Date:
(i) stating that the representations and warranties
contained in Article VI are true and correct on and as of such date, as
though made on and as of such date;
(ii) stating that no Default or Event of Default
exists or would result from the Credit Extension; and
(iii) stating that there has occurred since September
30, 1996, no event or circumstance that has resulted or could
reasonably be expected to result in a Material Adverse Effect; and
(iv) certifying the names and true signatures of the
officers of such Person authorized to execute, deliver and perform, as
applicable, this Agreement and the other Loan Documents to which it is
a party, and all other Loan Documents to be delivered hereunder.
(g) CONSENT LETTER. Letter from CT Corporation System,
presently located at 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, indicating its
consent to its appointment by each Loan Party as their agent to receive service
of process.
(h) NORDIC ACQUISITION A certificate signed by a Responsible
Officer of the Guarantor, dated as of the Closing Date, stating that (x) the
Guarantor has received proceeds from a Borrowing under, and as defined in, the
Waterlink Credit Agreement and the Borrower under, and as defined in, the German
Credit Agreement has received proceeds from the initial
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Borrowing under, and as defined in, the German Credit Agreement, and such
proceeds, when aggregated with proceeds from the initial Borrowing under this
Agreement, will be sufficient to consummate the Nordic Acquisition, as defined
in the Waterlink Credit Agreement, and (y) 100% of the proceeds referred to in
the preceding clause (x) were utilized in connection with the consummation of
the Nordic Acquisition.
(i) SOLVENCY CERTIFICATE. A written solvency certificate from
the chief financial officer of the Borrower in form and content satisfactory to
the Bank, dated the initial Borrowing Date, with respect to the value, Solvency
and other factual information of, or relating to, as the case may be, the
Borrower, after giving effect to the initial Borrowing.
(j) OTHER DOCUMENTS. Such other approvals, opinions, documents
or materials as the Bank or any Bank may request.
5.02 CONDITIONS TO ALL CREDIT EXTENSIONS. The obligation of the Bank to
make any Loan (including its initial Loan) or to continue any Loan under Section
2.04 and the obligation of the Bank to Issue any Letter of Credit (including the
initial Letter of Credit) is subject to the satisfaction of the following
conditions precedent on the relevant Borrowing Date or Issuance Date:
(a) NOTICE, APPLICATION. The Bank shall have received a Notice
of Borrowing a Notice of Continuation, as applicable, or, in the case of any
Issuance of any Letter of Credit, the Bank shall have received an L/C
Application or L/C Amendment Application, as required under Section 3.02;
(b) CONTINUATION OF REPRESENTATIONS AND WARRANTIES. The
representations and warranties in Article VI shall be true and correct on and as
of such Borrowing Date or Issuance Date with the same effect as if made on and
as of such Borrowing Date or Issuance Date (except to the extent such
representations and warranties expressly refer to an earlier date, in which case
they shall be true and correct as of such earlier date); and
(c) NO EXISTING DEFAULT. No Default or Event of Default shall
exist or shall result from such Borrowing or continuation or Issuance.
Each Notice of Borrowing, L/C Application or L/C Amendment Application submitted
by the Borrower hereunder shall constitute a representation and warranty by the
Borrower hereunder, as of the date of each such notice and as of each Borrowing
Date or Issuance Date, as applicable, that the conditions in this Section 5.02
are satisfied.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
------------------------------
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Each Loan Party makes the representations and warranties contained in
SECTION 6 of Waterlink Credit Agreement to the Bank, which representations and
warrants are incorporated herein by reference, each and all of which shall
survive the execution and delivery of this Agreement.
ARTICLE VII
AFFIRMATIVE COVENANTS
---------------------
So long as the Bank shall have a Commitment hereunder, or any Loan or
other Obligation shall remain unpaid or unsatisfied, or any Letter of Credit
shall remain outstanding, unless the Bank waives compliance in writing, each
Loan Party agrees to perform, comply with and be bound by the covenants
contained in Section 7 of the Waterlink Credit Agreement, which covenants are
incorporated herein by reference.
ARTICLE VIII
NEGATIVE COVENANTS
------------------
So long as the Bank shall have a Commitment hereunder, or any Loan or
other Obligation shall remain unpaid or unsatisfied, or any Letter of Credit
shall remain outstanding, unless the Bank waives compliance in writing, each
Loan Party agrees to perform, comply with and be bound by the covenants
contained in Section 8 of the Waterlink Credit Agreement which covenants are
incorporated herein by reference.
ARTICLE IX
EVENTS OF DEFAULT
-----------------
9.01 EVENT OF DEFAULT. Any of the following shall constitute an "EVENT
OF DEFAULT":
(a) NON-PAYMENT. The Borrower fails to pay, (i) when and as
required to be paid herein, any amount of principal of any Loan or of any L/C
Obligation, or (ii) within five days after the same becomes due, any interest,
fee or any other amount payable hereunder or under any other Loan Document; or
(b) REPRESENTATION OR WARRANTY. Any representation or warranty
by either Loan Party or any of its Subsidiaries made or deemed made herein, in
any other Loan Document, or which is contained in any certificate, document or
financial or other statement by such Person, or any Responsible Officer,
furnished at any time under this Agreement, or in or under any other Loan
Document, is incorrect in any material respect on or as of the date made or
deemed made; or
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(c) WATERLINK CREDIT AGREEMENT DEFAULTS. An Event of Default
under, and as defined in, the Waterlink Credit Agreement shall have occurred and
be continuing;
(d) GUARANTOR DEFAULTS. The Guarantor fails in any material
respect to perform or observe any term, covenant or agreement in Article X; or
Article X is for any reason partially (including with respect to future
advances) or wholly revoked or invalidated, or otherwise ceases to be in full
force and effect, or the Guarantor or any other Person contests in any manner
the validity or enforceability thereof or denies that it has any further
liability or obligation thereunder.
9.02 REMEDIES. If any Event of Default occurs, the Bank may:
(a) declare the Commitment and any obligation of the Bank to
Issue Letters of Credit to be terminated, whereupon the Commitment and
obligation shall be terminated;
(b) declare an amount equal to the maximum aggregate amount
that is or at any time thereafter may become available for drawing under any
outstanding Letters of Credit (whether or not any beneficiary shall have
presented, or shall be entitled at such time to present, the drafts or other
documents required to draw under such Letters of Credit) to be immediately due
and payable, and declare the unpaid principal amount of all outstanding Loans,
all interest accrued and unpaid thereon, and all other amounts owing or payable
hereunder or under any other Loan Document to be immediately due and payable,
without presentment, demand, protest or other notice of any kind, all of which
are hereby expressly waived by each Loan Party; and
(c) exercise all rights and remedies available to it under the
Loan Documents or applicable law;
PROVIDED, HOWEVER, that upon the occurrence of any event specified in Sections
9.01(f) or (g) (in the case of clause (i) of Section 9.01 (g) upon the
expiration of the 60-day period mentioned therein) of the Waterlink Credit
Agreement, the obligation of the Bank to make Loans and Issue Letters of Credit
shall automatically terminate and the unpaid principal amount of all outstanding
Loans and all interest and other amounts as aforesaid shall automatically become
due and payable without further act of the Bank.
9.03 RIGHTS NOT EXCLUSIVE. The rights provided for in this Agreement
and the other Loan Documents are cumulative and are not exclusive of any other
rights, powers, privileges or remedies provided by law or in equity, or under
any other instrument, document or agreement now existing or hereafter arising.
ARTICLE X
GUARANTY
--------
10.01 Guarantor hereby absolutely, irrevocably and unconditionally
guarantees prompt, full and complete payment when due, whether at stated
maturity, upon acceleration or otherwise, and at all times thereafter, of (a)
the principal of and interest on the Loans made by the Bank to, and the
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Note held by the Bank of, the Borrower, and all L/C Obligations and (b) all
other amounts from time to time owing to the Bank by the Borrower under this
Agreement, the Note, any Letter of Credit and the other Loan Documents,
including without limitation all Obligations of the Borrower (solely for
purposes of this ARTICLE X, collectively referred to as the "Guaranteed Debt").
This is a guaranty of payment, not a guaranty of collection.
10.02 The Guarantor waives notice of the acceptance of this ARTICLE X
(referred to as the "Guaranty") and of the extension or incurrence of the
Guaranteed Debt or any part thereof. The Guarantor further waives all setoffs
and counterclaims and presentment, protest, notice, filing of claims with a
court in the event of receivership, bankruptcy or reorganization of the
Borrower, demand or action on delinquency in respect of the Guaranteed Debt or
any part thereof, including any right to require the Bank to xxx the Borrower,
or any other person obligated with respect to the Guaranteed Debt or any part
thereof, or otherwise to enforce payment thereof against any collateral securing
the Guaranteed Debt or any part thereof.
10.03 The Guarantor hereby agrees that, to the fullest extent permitted
by law, its obligations hereunder shall be continuing, absolute and
unconditional under any and all circumstances and not subject to any reduction,
limitation, impairment, termination, defense (other than indefeasible payment in
full), setoff, counterclaim or recoupment whatsoever (all of which are hereby
expressly waived by it to the fullest extent permitted by law), whether by
reason of any claim of any character whatsoever, including, without limitation,
any claim of waiver, release, surrender, alteration or compromise. The validity
and enforceability of this Guaranty shall not be impaired or affected by any of
the following: (a) any extension, modification or renewal of, or indulgence with
respect to, or substitution for, the Guaranteed Debt or any part thereof or any
agreement relating thereto at any time; (b) any failure or omission to perfect
or maintain any lien on, or preserve rights to, any security or collateral or to
enforce any right, power or remedy with respect to the Guaranteed Debt or any
part thereof or any agreement relating thereto, or any collateral securing the
Guaranteed Debt or any part thereof; (c) any waiver of any right, power or
remedy or of any default with respect to the Guaranteed Debt or any part thereof
or any agreement relating thereto or with respect to any collateral securing the
Guaranteed Debt or any part thereof; (d) any release, surrender, compromise,
settlement, waiver, subordination or modification, with or without
consideration, of any collateral securing the Guaranteed Debt or any part
thereof, any other guaranties with respect to the Guaranteed Debt or any part
thereof, or any other obligations of any person or entity with respect to the
Guaranteed Debt or any part thereof; (e) the enforceability or validity of the
Guaranteed Debt or any part thereof or the genuineness, enforceability or
validity of any agreement relating thereto or with respect to any collateral
securing the Guaranteed Debt or any part thereof; (f) the application of
payments received from any source to the payment of indebtedness other than the
Guaranteed Debt, any part thereof or amounts which are not covered by this
Guaranty even though the Bank might lawfully have elected to apply such payments
to any part or all of the Guaranteed Debt or to amounts which are not covered by
this Guaranty; (g) any change of ownership of the Borrower or the insolvency,
bankruptcy or any other change in the legal status of the Borrower; (h) any
change in, or the imposition of, any law, decree, regulation or other
governmental act which does or might impair, delay or in any way affect the
validity, enforceability or the payment when due of the Guaranteed Debt; (i) the
failure of the Borrower to maintain in full force, validity or effect or to
obtain or renew when required all governmental and other approvals, licenses or
consents required
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in connection with the Guaranteed Debt or this Guaranty, or to take any other
action required in connection with the performance of all obligations pursuant
to the Guaranteed Debt or this Guaranty; (j) the existence of any claim, setoff
or other rights which the Guarantor may have at any time against the Borrower in
connection herewith or with any unrelated transaction; (k) the Bank's election,
in any case or proceeding instituted under chapter 11 of the Bankruptcy Code, of
the application of section 1111(b)(2) of the Bankruptcy Code; (l) any borrowing,
use of cash collateral, or grant of a security interest by the Borrower, as
debtor in possession, under section 363 or 364 of the Bankruptcy Code; (m) the
disallowance of all or any portion of the Bank's claims for repayment of the
Guaranteed Debt under section 502 or 506 of the Bankruptcy Code; or (n) any
other fact or circumstance which might otherwise constitute grounds at law or
equity for the discharge or release of the Guarantor from its obligations
hereunder, all whether or not the Guarantor shall have had notice or knowledge
of any act or omission referred to in the foregoing CLAUSES (A) THROUGH (N) of
this paragraph. It is agreed that the Guarantor's liability hereunder is
independent of any other guaranties or other obligations at any time in effect
with respect to the Guaranteed Debt or any part thereof and that the Guarantor's
liability hereunder may be enforced regardless of the existence, validity,
enforcement or non-enforcement of any such other guaranties or other obligations
or any provision of any applicable law or regulation purporting to prohibit
payment by the Borrower of the Guaranteed Debt in the manner agreed upon between
the Bank and the Borrower.
10.04 Credit may be granted or continued from time to time by the Bank
to the Borrower without notice to or authorization from the Guarantor regardless
of the Borrower's financial or other condition at the time of any such grant or
continuation. The Bank shall not have any obligation to disclose or discuss with
the Guarantor its assessment of the financial condition of the Borrower.
10.05 Until the irrevocable payment in full of the Obligations and
termination of the Commitment which could give rise to any Obligation, the
Guarantor shall have no right of subrogation with respect to the Guaranteed Debt
and hereby waives any right to enforce any remedy which the Bank now has or may
hereafter have against the Borrower, any endorser or any other guarantor of all
or any part of the Guaranteed Debt, and the Guarantor hereby waives any benefit
of, and any right to participate in, any security or collateral given to the
Bank to secure payment of the Guaranteed Debt or any part thereof or any other
liability of the Borrower to the Bank.
10.06 The Guarantor authorizes the Bank to take any action or exercise
any remedy with respect to any collateral from time to time securing the
Guaranteed Debt, which the Bank in its sole discretion (but subject, as
applicable, to the terms of this Agreement and of any documentation pursuant to
which a Lien in such collateral is granted) shall determine, without notice to
the Guarantor.
10.07 In the event the Bank in its sole discretion elects to give
notice of any action with respect to any collateral securing the Guaranteed Debt
or any part thereof, ten (10) days' written notice mailed to the Guarantor by
ordinary mail at the address shown hereon shall be deemed reasonable notice of
any matters contained in such notice. The Guarantor consents and agrees that the
Bank shall not be under any obligation to xxxxxxxx any assets in favor of the
Guarantor or against or in payment of any or all of the Guaranteed Debt.
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10.08 In the event that acceleration of the time for payment of any of
the Guaranteed Debt is stayed upon the insolvency, bankruptcy or reorganization
of the Borrower, or otherwise, all such amounts shall nonetheless be payable by
the Guarantor forthwith upon demand by the Bank. The Guarantor further agrees
that, to the extent that the Borrower makes a payment or payments to the Bank on
the Guaranteed Debt, or the Bank receives any proceeds of collateral securing
the Guaranteed Debt, which payment or receipt of proceeds or any part thereof is
subsequently invalidated, declared to be fraudulent or preferential, set aside
or required to be returned or repaid to the Borrower, its estate, trustee,
receiver, debtor in possession or any other party, including, without
limitation, the Guarantor, under any insolvency or bankruptcy law, state or
federal law, common law or equitable cause, then to the extent of such payment,
return or repayment, the obligation or part thereof which has been paid, reduced
or satisfied by such amount shall be reinstated and continued in full force and
effect as of the date when such initial payment, reduction or satisfaction
occurred.
10.09 No delay on the part of the Bank in the exercise of any right,
power or remedy shall operate as a waiver thereof, and no single or partial
exercise by the Bank of any right, power or remedy shall preclude any further
exercise thereof; nor shall any amendment, supplement, modification or waiver of
any of the terms or provisions of this Guaranty be binding upon the Bank, except
as expressly set forth in a writing duly signed and delivered by the Bank. The
failure by the Bank at any time or times hereafter to require strict performance
by the Borrower or the Guarantor of any of the provisions, warranties, terms and
conditions contained in any promissory note, security agreement, agreement,
guaranty, instrument or document now or at any time or times hereafter executed
pursuant to the terms of, or in connection with, this Agreement by the Borrower
or the Guarantor and delivered to the Bank shall not waive, affect or diminish
any right of the Bank at any time or times hereafter to demand strict
performance thereof, and such right shall not be deemed to have been waived by
any act or knowledge of the Bank, its agents, officers or employees, unless such
waiver is contained in an instrument in writing duly signed and delivered by the
Bank. No waiver by the Bank of any default shall operate as a waiver of any
other default or the same default on a future occasion, and no action by the
Bank permitted hereunder shall in any way affect or impair the Bank's rights or
powers, or the obligations of the Guarantor under this Guaranty. Any
determination by a court of competent jurisdiction of the amount of any
Guaranteed Debt owing by the Borrower to the Bank shall be conclusive and
binding on the Guarantor irrespective of whether the Guarantor was a party to
the suit or action in which such determination was made.
10.10 Subject to the provisions of Section 10.08, this Guaranty shall
continue in effect until this Agreement has terminated, the Guaranteed Debt has
been paid in full and the other conditions of this Guaranty have been satisfied.
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ARTICLE XI
MISCELLANEOUS
-------------
11.01 AMENDMENTS AND WAIVERS. No amendment or waiver of any provision
of this Agreement or any other Loan Document, and no consent with respect to any
departure by either Loan Party therefrom, shall be effective unless the same
shall be in writing and signed by the Bank and the Loan Party effected thereby,
and then any such waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given.
11.02 NOTICES. (a) All notices, requests, consents, approvals, waivers
and other communications shall be in writing (including, unless the context
expressly otherwise provides, by facsimile transmission, provided that any
matter transmitted by facsimile (i) shall be immediately confirmed by a
telephone call to the recipient at the number specified on SCHEDULE 11.02, and
(ii) shall be followed promptly by delivery of a hard copy original thereof) and
mailed, faxed or delivered, to the address or facsimile number specified for
notices on SCHEDULE 11.02; or, as directed to a Loan Party or the Bank, to such
other address as shall be designated by such party in a written notice to the
other parties, and as directed to any other party, at such other address as
shall be designated by such party in a written notice to such Loan Party and the
Bank.
(b) All such notices, requests and communications shall, when
transmitted by overnight delivery, or faxed, be effective when delivered for
overnight (next-day) delivery, or transmitted in legible form by facsimile
machine, respectively, or if mailed, upon the third Business Day after the date
deposited into the mail, or if delivered, upon delivery; except that notices
pursuant to Article II, III or X to the Bank shall not be effective until
actually received by the Bank, and notices pursuant to Article III to the Bank
shall not be effective until actually received by the Bank at the address
specified for the " Bank" on the applicable signature page hereof.
(c) Any agreement of the Bank herein to receive certain
notices by telephone or facsimile is solely for the convenience and at the
request of a Loan Party. The Bank shall be entitled to rely on the authority of
any Person purporting to be a Person authorized by a Loan Party to give such
notice and the Bank shall not have any liability to either Loan Party or other
Person on account of any action taken or not taken by the Bank in reliance upon
such telephonic or facsimile notice. The obligation of the Borrower to repay the
Loans and L/C Obligations shall not be affected in any way or to any extent by
any failure by the Bank to receive written confirmation of any telephonic or
facsimile notice or the receipt by the Bank of a confirmation which is at
variance with the terms understood by the Bank to be contained in the telephonic
or facsimile notice.
11.03 NO WAIVER; CUMULATIVE REMEDIES. No failure to exercise and no
delay in exercising, on the part of the Bank, any right, remedy, power or
privilege hereunder, shall operate as a waiver thereof; nor shall any single or
partial exercise of any right, remedy, power or privilege hereunder preclude any
other or further exercise thereof or the exercise of any other right, remedy,
power or privilege.
11.04 COSTS AND EXPENSES. The Borrower shall:
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(a) whether or not the transactions contemplated hereby are
consummated, pay or reimburse the Bank within five Business Days after demand
(subject to Section 5.01(e)) for all costs and expenses incurred by the Bank in
connection with the development, preparation, delivery, administration and
execution of, and any amendment, supplement, waiver or modification to (in each
case, whether or not consummated), this Agreement, any Loan Document and any
other documents prepared in connection herewith or therewith, and the
consummation of the transactions contemplated hereby and thereby, including
reasonable Attorney Costs incurred by the Bank with respect thereto; and
(b) pay or reimburse the Bank within five Business Days after
demand (subject to Section 5.01(e)) for all costs and expenses (including
Attorney Costs) incurred by the Bank in connection with the enforcement,
attempted enforcement, or preservation of any rights or remedies under this
Agreement or any other Loan Document during the existence of an Event of Default
or after acceleration of the Loans (including in connection with any "workout"
or restructuring regarding the Loans, and including in any Insolvency Proceeding
or appellate proceeding).
11.05 INDEMNIFICATION. Whether or not the transactions contemplated
hereby are consummated, the Borrower shall indemnify, defend and hold the Bank
and each of its officers, directors, employees, counsel, agents and
attorneys-in-fact (each, an "INDEMNIFIED PERSON") harmless from and against any
and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, charges, expenses and disbursements (including Attorney
Costs) of any kind or nature whatsoever which may at any time (including at any
time following repayment of the Loans, the termination of the Letters of Credit
and replacement of the Bank) be imposed on, incurred by or asserted against any
such Person in any way relating to or arising out of the Borrower entering into
this Agreement or any document contemplated by or referred to herein, or the
transactions contemplated hereby, or any action taken or omitted by any such
Person under or in connection with any of the foregoing, including with respect
to any investigation, litigation or proceeding (including any Insolvency
Proceeding or appellate proceeding) related to or arising out of this Agreement
or the Loans or Letters of Credit or the use of the proceeds thereof, whether or
not any Indemnified Person is a party thereto (all the foregoing, collectively,
the "INDEMNIFIED LIABILITIES"); PROVIDED, that the Borrower shall have no
obligation hereunder to any Indemnified Person with respect to Indemnified
Liabilities resulting solely from the gross negligence or willful misconduct of
such Indemnified Person. The agreements in this Section shall survive payment of
all other Obligations.
11.06 PAYMENTS SET ASIDE. To the extent that the Borrower makes a
payment to the Bank, or the Bank exercises its right of set-off, and such
payment or the proceeds of such set-off or any part thereof are subsequently
invalidated, declared to be fraudulent or preferential, set aside or required
(including pursuant to any settlement entered into by the Bank in its
discretion) to be repaid to a trustee, receiver or any other party, in
connection with any Insolvency Proceeding or otherwise, then to the extent of
such recovery the obligation or part thereof originally intended to be satisfied
shall be revived and continued in full force and effect as if such payment had
not been made or such set-off had not occurred.
11.07 SUCCESSORS AND ASSIGNS. The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns, except that no
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Loan Party may assign or transfer any of its rights or obligations under this
Agreement without the prior written consent of the Bank.
11.08 PARTICIPATIONS. The Bank may at any time sell to one or more
commercial banks or other Persons not Affiliates of a Loan Party (a
"PARTICIPANT") participating interests in the Loans, the Commitment and the
other interests of the Bank (the "originating Bank") hereunder and under the
other Loan Documents; PROVIDED, HOWEVER, that (i) the originating Bank's
obligations under this Agreement shall remain unchanged, (ii) the originating
Bank shall remain solely responsible for the performance of such obligations,
(iii) each Loan Party and the Bank shall continue to deal solely and directly
with the originating Bank in connection with the originating Bank's rights and
obligations under this Agreement and the other Loan Documents, and (iv) the Bank
shall not transfer or grant any participating interest under which the
Participant has rights to approve any amendment to, or any consent or waiver
with respect to, this Agreement or any other Loan Document, except to the extent
such amendment, consent or waiver would require unanimous consent of the Bank as
described in the FIRST PROVISO to Section 11.01. In the case of any such
participation, the Participant shall not have any rights under this Agreement,
or any of the other Loan Documents, and all amounts payable by the Borrower
hereunder shall be determined as if the Bank had not sold such participation;
except that, if amounts outstanding under this Agreement are due and unpaid, or
shall have been declared or shall have become due and payable upon the
occurrence of an Event of Default, each Participant shall be deemed to have the
right of set-off in respect of its participating interest in amounts owing under
this Agreement to the same extent as if the amount of its participating interest
were owing directly to it as the Bank under this Agreement.
11.09 CONFIDENTIALITY. The Bank agrees to take and to cause its
Affiliates to take normal and reasonable precautions and exercise due care to
maintain the confidentiality of all information identified as "confidential" or
"secret" by a Loan Party and provided to it by a Loan Party or any of its
Subsidiaries, under this Agreement or any other Loan Document, and neither it
nor any of its Affiliates shall use any such information other than in
connection with or in enforcement of this Agreement and the other Loan Documents
or in connection with other business now or hereafter existing or contemplated
with either Loan Party of any of its Subsidiaries; except to the extent such
information (i) was or becomes generally available to the public other than as a
result of disclosure by the Bank, or (ii) was or becomes available on a
non-confidential basis from a source other than a Loan Party, provided that such
source is not bound by a confidentiality agreement with a Loan Party known to
the Bank; PROVIDED, HOWEVER, that the Bank may disclose such information (A) at
the request or pursuant to any requirement of any Governmental Authority to
which the Bank is subject or in connection with an examination of such Bank by
any such authority; (B) pursuant to subpoena or other court process; (C) when
required to do so in accordance with the provisions of any applicable
Requirement of Law; (D) to the extent reasonably required in connection with any
litigation or proceeding to which the Bank or its Affiliates may be party; (E)
to the extent reasonably required in connection with the exercise of any remedy
hereunder or under any other Loan Document; (F) to the Bank's independent
auditors and other professional advisors; (G) to any Participant, actual or
potential, provided that such Person agrees in writing to keep such information
confidential to the same extent required of the Bank hereunder; (H) as to the
Bank or its Affiliate, as expressly permitted under the terms of any other
document or agreement regarding confidentiality
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to which the Company or any Subsidiary is party or is deemed party with the Bank
or such Affiliate; and (I) to its Affiliates.
11.10 SET-OFF. In addition to any rights and remedies of the Bank
provided by law, if an Event of Default exists or the Loans have been
accelerated, the Bank is authorized at any time and from time to time, without
prior notice to the Borrower, any such notice being waived by the Borrower to
the fullest extent permitted by law, to set off and apply any and all deposits
(general or special, time or demand, provisional or final) at any time held by,
and other indebtedness at any time owing by, the Bank to or for the credit or
the account of the Borrower against any and all Obligations owing to the Bank,
now or hereafter existing, irrespective of whether or not the Bank shall have
made demand under this Agreement or any Loan Document and although such
Obligations may be contingent or unmatured. The Bank agrees promptly to notify
the Borrower after any such set-off and application made by the Bank; PROVIDED,
HOWEVER, that the failure to give such notice shall not affect the validity of
such set-off and application.
11.11 AUTOMATIC DEBITS OF FEES. With respect to any Loan, any
unreimbursed drawing under a Letter of Credit, commitment fee, letter of credit
fee or other fee, or any other cost or expense (including Attorney Costs) due
and payable to the Bank under the Loan Documents, the Borrower hereby
irrevocably authorizes the Bank to debit any deposit account of the Borrower
with the Bank in an amount such that the aggregate amount debited from all such
deposit accounts does not exceed such fee or other cost or expense. If there are
insufficient funds in such deposit accounts to cover the amount of the fee or
other cost or expense then due, such debits will be reversed (in whole or in
part, in the Bank's sole discretion) and such amount not debited shall be deemed
to be unpaid. No such debit under this Section shall be deemed a set-off.
11.12 JUDGMENT. If, for the purposes of obtaining judgment in any
court, it is necessary to convert a sum due under this Agreement or any other
Loan Document in one currency into another currency, the rate of exchange used
shall be that at which in accordance with normal banking procedures the Bank
could purchase the first currency with such other currency on the Business Day
preceding that on which final judgment is given. The obligation of the either
Loan Party in respect of any such sum due from it to the Bank under this
Agreement or under the other Loan Documents shall, notwithstanding any judgment
in a currency (the "Judgment Currency") other than that in which such sum is
denominated in accordance with the applicable provisions of this Agreement (the
"Agreement Currency"), be discharged only to the extent that on the Business Day
following receipt by the Bank of any sum adjudged to be so due in the Judgment
Currency, the Bank may in accordance with normal banking procedures purchase the
Agreement Currency with the Judgment Currency. If the amount of the Agreement
Currency so purchased is less than the sum originally due to the Bank in the
Agreement Currency, each Loan Party agrees, as a separate obligation and
notwithstanding any such judgment, to indemnify the Bank or the Person to whom
such obligation was owing against such loss. If the amount of the Agreement
Currency so purchased is greater than the sum originally due to the Bank in such
currency, the Bank agrees to return the amount of any excess to the relevant
Loan Party (or to any other Person who may be entitled thereto under applicable
law).
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11.13 COUNTERPARTS. This Agreement may be executed in any number of
separate counterparts, each of which, when so executed, shall be deemed an
original, and all of said counterparts taken together shall be deemed to
constitute but one and the same instrument.
11.14 SEVERABILITY. The illegality or unenforceability of any provision
of this Agreement or any instrument or agreement required hereunder shall not in
any way affect or impair the legality or enforceability of the remaining
provisions of this Agreement or any instrument or agreement required hereunder.
11.15 NO THIRD PARTIES BENEFITED. This Agreement is made and entered
into for the sole protection and legal benefit of each Loan Party and the Bank,
and their permitted successors and assigns, and no other Person shall be a
direct or indirect legal beneficiary of, or have any direct or indirect cause of
action or claim in connection with, this Agreement or any of the other Loan
Documents.
11.16 GOVERNING LAW AND JURISDICTION. (a) THIS AGREEMENT AND THE NOTES
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF
NEW YORK; PROVIDED THAT THE PARTIES SHALL RETAIN ALL RIGHTS ARISING UNDER
FEDERAL LAW.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE
OF NEW YORK OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK, AND
BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH LOAN PARTY AND THE BANK
CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE NON-EXCLUSIVE
JURISDICTION OF THOSE COURTS. EACH LOAN PARTY HEREBY IRREVOCABLY DESIGNATE,
APPOINT AND EMPOWER CT CORPORATION SYSTEMS, WITH OFFICES ON THE DATE HEREOF AT
0000 XXXXXXXX, XXX XXXX, XXX XXXX 00000, AS ITS DESIGNEE, APPOINTEE AND AGENT TO
RECEIVE, ACCEPT AND ACKNOWLEDGE FOR AND ON ITS BEHALF, AND IN RESPECT OF ITS
PROPERTY, SERVICE OF ANY AND ALL LEGAL PROCESS, SUMMONS, NOTICES AND DOCUMENTS
WHICH MAY BE SERVED IN ANY SUCH ACTION OR PROCEEDINGS. IF FOR ANY REASON SUCH
DESIGNEE, APPOINTEE AND AGENT SHALL CEASE TO BE AVAILABLE TO ACT AS SUCH, EACH
LOAN PARTY AGREES TO DESIGNATE A NEW DESIGNEE, APPOINTEE AND AGENT IN NEW YORK
CITY ON THE TERMS AND FOR THE PURPOSES OF THIS PROVISION SATISFACTORY TO THE
AGENT UNDER THIS AGREEMENT. EACH LOAN PARTY AND THE BANK IRREVOCABLY WAIVES ANY
OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE
GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE
BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF THIS
AGREEMENT OR ANY DOCUMENT RELATED HERETO. EACH LOAN PARTY AND THE BANK WAIVES
PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER PROCESS, WHICH MAY BE MADE
BY ANY OTHER MEANS PERMITTED BY NEW YORK LAW.
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11.17 WAIVER OF JURY TRIAL. EACH LOAN PARTY AND THE BANK WAIVE THEIR
RESPECTIVE RIGHTS TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION BASED UPON
OR ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE OTHER LOAN DOCUMENTS, OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, IN ANY ACTION, PROCEEDING OR OTHER
LITIGATION OF ANY TYPE BROUGHT BY ANY OF THE PARTIES AGAINST ANY OTHER PARTY OR
PARTICIPANT, WHETHER WITH RESPECT TO CONTRACT CLAIMS, TORT CLAIMS, OR OTHERWISE.
EACH LOAN PARTY AND THE BANK AGREE THAT ANY SUCH CLAIM OR CAUSE OF ACTION SHALL
BE TRIED BY A COURT TRIAL WITHOUT A JURY. WITHOUT LIMITING THE FOREGOING, THE
PARTIES FURTHER AGREE THAT THEIR RESPECTIVE RIGHT TO A TRIAL BY JURY IS WAIVED
BY OPERATION OF THIS SECTION AS TO ANY ACTION, COUNTERCLAIM OR OTHER PROCEEDING
WHICH SEEKS, IN WHOLE OR IN PART, TO CHALLENGE THE VALIDITY OR ENFORCEABILITY OF
THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS OR ANY PROVISION HEREOF OR THEREOF.
THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR
MODIFICATIONS TO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS.
11.18 ENTIRE AGREEMENT. This Agreement, together with the other Loan
Documents, embodies the entire agreement and understanding among each Loan Party
and the Bank and supersedes all prior or contemporaneous agreements and
understandings of such Persons, verbal or written, relating to the subject
matter hereof and thereof.
* * *
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their proper and duly authorized officers as of
the day and year first above written.
GIGANTISSIMO 2061 AB (to be known as
WATERLINK (SWEDEN) AB)
By:
---------------------------------------
Title:
------------------------------------
WATERLINK, INC., as Guarantor
By:
---------------------------------------
Title:
------------------------------------
Commitment: $3,800,000 BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, LONDON BRANCH
By:
---------------------------------------
Title:
------------------------------------
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SCHEDULE 1
CALCULATION OF THE MLA COST
FOR ANY LOANS DENOMINATED IN STERLING
(a) The MLA Cost for a Loan denominated in Sterling for each
Interest Period for that Loan is calculated in accordance with
the following formula:
BY + L(Y-X) + S(Y-Z) % PER ANNUM
-------------------
100 - (B+S)
where on the day of the application of the formula:
B is the percentage of the Bank's eligible liabilities which
the Bank of England then requires the Bank to hold on a
non-interest-bearing deposit account in accordance with
its cash ratio requirements;
Y is the rate at which Sterling deposits are offered by the
Bank to leading banks in the London interbank market at or
about 11:00 a.m. on that day for the relevant period;
L is the percentage of eligible liabilities which (as a
result of the requirements of the Bank of England) the
Bank maintains as secured money with members of the London
Discount Market Association or in certain marketable or
callable securities approved by the Bank of England, which
percentage shall (in the absence of evidence that any
other figure is appropriate) be conclusively presumed to
be 5 per cent;
X is the rate at which secured Sterling deposits may be
placed by the Bank with members of the London Discount
Market Association at or about 11:00 a.m. on that day for
the relevant period or, if greater, the rate at which
Sterling bills of exchange (of a tenor equal to the
duration of the relevant period) eligible for
rediscounting at the Bank of England can be discounted in
the London Discount Market at or about 11:00 a.m. on that
day;
S is the percentage for the Bank's eligible liabilities
which the Bank of England requires the Agent to place as a
special deposit; and
Z is the interest rate per annum allowed by the Bank of
England on special deposits.
(b) For the purposes of this Schedule:
(i) "ELIGIBLE LIABILITIES" and "SPECIAL DEPOSITS" have
the meanings given to them at the time of application
of the formula by the Bank of England; and
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(ii) "RELEVANT PERIOD" in relation to each Interest Period
means:
(A) if it is 3 months or less, that Interest
Period or
(B) if it is 3 months, 3 months.
(c) In the application of the formula, B, Y, L, X, S and Z are
included in the formula as figures and not as percentages,
e.g. if B=0.5% and Y = 15% BY is calculated as 0.5 x 15.
(d) The formula is applied on the first day of each relevant
period. Each amount is rounded up to the nearest one-sixteenth
of one per cent.
(e) If the Bank determines that a change in circumstances has
rendered, or will render, the formula inappropriate, the Bank
shall notify the Borrower of the manner in which the MLA Cost
for such Loans will subsequently be calculated. The manner of
calculation so notified by the Bank shall, in the absence of
manifest error, be binding on the Borrower.
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SCHEDULE 11.02
--------------
BANK NOTICE INFORMATION
-----------------------
PAYMENT OFFICE:
---------------
Bank of America National Trust
and Savings Association,
London Branch
One Xxxx Xxxxxx
0xx Xxxxx
Xxxxxx, X0 0XX
Xxxxxxx
NOTICES:
--------
All notices (other than Letters of Credit):
Bank of America National Trust
and Savings Association,
London Branch
0 Xxxx Xxxxxx
Xxxxxx, X0 0XX
Xxxxxxx
Attn: Xxxxxxx Xxxxxx, Customer Service
Tel. No.: 000-00-000-000-0000
Fax No.: 000-00-000-000-0000
Notices for Letters of Credit:
Bank of America National Trust
and Savings Association,
London Branch
0 Xxxx Xxxxxx
Xxxxxx, X0 0XX
Xxxxxxx
Attn: Xxxxx Xxxxxx/Xxxxx Xxxxxxxx,
Trade Finance Services
Tel. No.: 000-00-000-000-0000/2576
Fax No.: 000-00-000-000-0000/8
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BORROWER NOTICE INFORMATION
---------------------------
Waterlink (Sweden) AB
[Address]
Attn:
Tel. No.:
Fax No.:
GUARANTOR NOTICE INFORMATION
----------------------------
Waterlink, Inc.
0000 Xxxxxxx Xxxxxx X.X.
Xxxxxx, Xxxx 00000
Attn: Chief Financial Officer
Tel. No.: 000-000-0000
Fax No.: 000-000-0000
2
