AMENDED AND RESTATED SUBORDINATION AGREEMENT
SUBORDINATION AGREEMENT (as the same may be amended, modified,
supplemented, waived, extended or restated from time to time, this
"Agreement"), dated as of March 10, 1995, as amended and restated as of
November 30, 1995, among (i) COMPAGNIE GENERALE DES EAUX, a corporation duly
organized and validly existing under the laws of France, (ii) AIR & WATER
TECHNOLOGIES CORPORATION ("AWT"), a corporation duly organized and validly
existing under the laws of the State of Delaware, (iii) THE FIRST NATIONAL
BANK OF CHICAGO, as Administrative Agent (the "Administrative Agent"),
under the Secured Guaranteed Credit Agreement, dated as of the date hereof
(as the same may be amended, modified, supplemented, waived or extended
from time to time, the "Credit Agreement"), among AWT and the Persons
listed on Annex B thereto, as Borrowers and Guarantors, the Banks listed on
the signature pages thereof, The First National Bank of Chicago and Societe
Generale, New York Branch, as Arranging Agents, The First National Bank of
Chicago, as Administrative Agent, and Societe Generale, New York Branch, as
Collateral Agent and Issuing Bank (together with the Arranging Agents, the
Administrative Agent and the Banks, the "Senior Bank Lenders"), and (iv)
UNITED STATES FIDELITY AND GUARANTY COMPANY, FIDELITY AND GUARANTY
INSURANCE COMPANY and FIDELITY AND GUARANTY INSURANCE UNDERWRITERS, INC.,
any AFFILIATE of any of the foregoing who provides any bond, surety
agreement, surety undertaking or other instrument of guaranty (a "Surety
Undertaking") to, on behalf of, or for the benefit of, AWT or any of its
subsidiaries, and any other PERSON who provides, or intends to provide, any
Surety Undertaking to, on behalf of, or for the account of, AWT or any of
its subsidiaries and who is designated by AWT as a "Surety" in a written
instrument delivered to the Administrative Agent (each of the foregoing a
"Surety" and collectively the "Sureties" and, together with the Senior Bank
Lenders, the "Senior Creditors").
To induce the Senior Bank Lenders to enter into the Credit
Agreement and the Swap Agreements and to induce certain Sureties to enter into
the Master Surety Agreement (as hereinafter defined), and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the undersigned hereby agree that certain obligations of AWT to
the Subordinated Lender shall be subordinate in right of payment to the Senior
Obligations (as herein defined) to the extent and in the manner provided for
in this Agreement. Accordingly, the undersigned hereby agree as follows:
Section 1. Definitions. Capitalized terms used but not
defined herein shall have the meanings assigned to such terms in the Credit
Agreement. The following terms, as used herein, shall have the following
meanings:
"Master Surety Agreement" means the Master Surety Agreement
dated as of October 31, 1995 among the Sureties party thereto, AWT, and the
Principals, as the same may be amended from time to time.
"Principals" has the meaning assigned to such term in the
Master Surety Agreement or any other underwriting, surety or indemnity
agreement between AWT or any of its subsidiaries and any Surety.
"Senior Credit Agreements" shall mean the Credit Agreement, the
Notes, the Master Surety Agreement, any underwriting, surety or indemnity
agreement between any Principal and any Surety and any Swap Agreements between
any Borrower and any Bank.
"Senior Creditors" shall have the meaning assigned to such term
in the preamble to this Agreement.
"Senior Bank Lenders" shall have the meaning assigned to such
term in the preamble to this Agreement.
"Senior Obligations" shall mean, collectively, (i) all rights
to payment of principal, premium, interest (including interest accruing after
the commencement of any proceeding under any Federal or state bankruptcy,
insolvency, receivership or similar law, regardless of whether a claim
therefor is allowable as a claim in such proceeding under applicable law),
fees, expenses and other sums payable, however denominated, of the
Administrative Agent, the Arranging Agents, the Collateral Agent, the Issuing
Bank and the Banks under the Credit Agreement, the Notes and any Swap
Agreement between any Borrower and any Bank, and any extensions or renewals of
any of the Credit Agreement, the Notes and such Swap Agreements, and any and
all other past, present or future Liabilities of any Borrower to the
Administrative Agent, the Arranging Agents, the Collateral Agent, the Issuing
Bank or the Senior Bank Lenders under the Loan Documents and (ii) any and all
indebtedness, liabilities, and obligations of any or all of the Principals
from time to time payable to the Sureties under the Master Surety Agreement or
any underwriting, surety or indemnity agreement between any Principal and any
Surety, whether matured or unmatured, liquidated or unliquidated, direct or
indirect, absolute or contingent, joint or several, due or to become due, now
existing or hereafter arising.
"Subordinated Obligations" shall mean all Indebtedness, whether
principal or interest, from time to time owing by AWT or any of its
Subsidiaries to the Subordinated Lender, direct or contingent, joint, several
or independent, now or hereafter existing, due or to become due, and held or
to be held by the Subordinated Lender, whether created directly or acquired by
assignment or otherwise, including, without limitation, any amounts payable to
the Subordinated Lender in consideration for the delivery of the Comfort
Letter.
"Subordinated Lender" means Compagnie Generale de Eaux, a
corporation organized and existing under the laws of France.
"Sureties" has the meaning set forth in the preamble hereto.
"Swap Agreements" means any swap agreement that has been or may
be entered into from time to time between any Bank and any Borrower.
Section 2. Representations and Warranties. The Subordinated
Lender represents and warrants to the Administrative Agent for the benefit of
the Senior Creditors that:
Section 2.01. Existence. The Subordinated Lender is an entity
duly organized and validly existing in good standing under the laws of the
jurisdiction of its formation.
Section 2.02. Authority. The execution, delivery and
performance in accordance with its terms by the Subordinated Lender of this
Agreement have been duly authorized by all necessary corporate or other entity
action and do not and will not violate any provision of law, rules,
regulations, or orders or any provision of the charter or by-laws or other
organizational documents of the Subordinated Lender or violate, result in the
breach of, constitute a default or require any consent under, any material
Contract to which the Subordinated Lender is a party or by which the
Subordinated Lender or its property may be bound. This Agreement has been
duly and validly executed and delivered by the Subordinated Lender and
constitutes the legal, valid and binding obligation of the Subordinated
Lender, enforceable in accordance with its terms, subject as to enforceability
(i) to bankruptcy, insolvency, reorganization or moratorium and other similar
laws affecting creditors' rights generally and (ii) to the application of
general principles of equity (regardless of whether considered in a proceeding
in equity or at law).
Section 2.03. Approvals. No Governmental Approval is required
in connection with the execution, delivery and performance in accordance with
its terms by the Subordinated Lender of this Agreement.
Section 3. Subordinated Provisions. It is intended by the
Senior Creditors that the subordination provisions contained in this Agreement
shall benefit the Senior Creditors equally (in priority) and ratably in order
that the Senior Obligations rank equally in right of payment over the
Subordinated Obligations. To implement the foregoing (but without limiting
the generality thereof as it may apply to other provisions of this Agreement)
the Subordinated Lender agrees as follows:
Section 3.01. Subordination. The Subordinated Lender hereby
agrees that, except as and to the extent hereinafter provided, the
Subordinated Obligations are and shall be subordinate and subject in right of
payment to the prior payment in full of all of the Senior Obligations, whether
or not such Senior Obligations have been voided, disallowed or subordinated
pursuant to Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code of any applicable
state fraudulent conveyance laws, whether asserted directly or under Xxxxxxx
000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code it being understood that for purposes
of this Agreement, "payment in full" shall not require payment of indemnities
for which no request for payment has been made and, in the case of Senior
Obligations owing to any Surety, with respect to which no bonds remain
outstanding. Without limiting the foregoing, the Subordinated Lender also
hereby agrees that, (a) except as otherwise provided in Section 3.02 of this
Agreement, it will not accept or receive from AWT (other than directing AWT to
make payment directly to the holders of the Senior Obligations for the purpose
of causing the Senior Obligations to be paid), by set-off or in any other
manner, payment of the whole or any part of the Subordinated Obligations, or
any security therefor and (b) without limiting the exception in clause (a) of
this Section 3.01, it will not commence any action or proceeding against
AWT to recover all or any portion of the Subordinated Obligations (provided
that the Subordinated Lender may file appropriate proofs of claim in
respect of the Subordinated Obligations in any bankruptcy or insolvency
proceeding of AWT) or foreclose or otherwise realize upon any security
therefor, in each case unless and until all of the Senior Obligations shall
have been fully paid in cash, whether or not such Senior Obligations have
been voided, disallowed or subordinated pursuant to Xxxxxxx 000 xx xxx
Xxxxxx Xxxxxx Bankruptcy Code or any applicable state fraudulent conveyance
laws, whether asserted directly or under Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx
Bankruptcy Code. The Subordinated Lender hereby irrevocably directs AWT to
make such prior payment. The Subordinated Lender further agrees that it
will not institute against AWT any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings, or other proceedings under any
United States Federal or state bankruptcy or similar law, until such time
as the Senior Obligations have been fully paid in cash, provided that the
Subordinated Lender shall be permitted to join any creditor in instituting
such proceedings if the Required Banks have also joined in instituting such
proceedings.
Section 3.02. Certain Payments Permitted. The Subordinated
Lender may from time to time (to the extent not prohibited by the provisions
of any of the Senior Credit Agreements) (a) so long as no Default under the
Credit Agreement or Event of Default under the Master Surety Agreement has
occurred and is continuing and no such Default or Event of Default would
result therefrom, receive from AWT (i) payments of interest on or in respect
of the Subordinated Obligations and (ii) payments in consideration for the
delivery of the Comfort letter in accordance with Section 4.10 of the Credit
Agreement, (b) so long as (i) no Event of Default under the Master Surety
Agreement has occurred and is continuing and (ii) all Senior Obligations owing
to the Senior Bank Lenders have been paid in full and all Commitments (as
defined in the Credit Agreement) of the Senior Bank Lenders shall have been
terminated, receive from AWT all payments of or in respect of the Subordinated
Obligations then due and payable pursuant to the terms of such Subordinated
Obligations (including without limitation payments of principal) and (c) upon
or after the waiver or cure of any such Default or Event of Default in
accordance with the provisions of the Credit Agreement and the Master Surety
Agreement, receive from AWT (i) any payments of interest on or in respect of
the Subordinated Obligations, (ii) any payments in consideration for the
delivery of the Comfort Letter and (iii) so long as all Senior Obligations
owing to the Senior Bank Lenders have been paid in full and all Commitments of
the Senior Bank Lenders shall have been terminated, any other payments in
respect of the Subordinated Obligations (including without limitation payments
of principal), in each case, previously deferred upon the occurrence or during
the continuance of such Default or Event of Default, as the case may be.
Section 3.03. Distributions, etc. In furtherance of, and to
make effective, the subordination provided for herein, the Subordinated Lender
further agrees as follows:
(a) In the event of any distribution, division or
application, partial or complete, voluntary or involuntary, by
operation of law or otherwise, of all or any part of the assets of
AWT or the proceeds thereof, to creditors of AWT, or upon any
indebtedness of AWT, by reason of (1) the liquidation, dissolution
or other winding up, partial or complete, of AWT or AWT's business,
(2) any receivership, insolvency or bankruptcy proceeding, or
assignment for the benefit of creditors or (3) any proceeding by or
against AWT for any relief under any bankruptcy or insolvency law or
laws relating to the relief of debtors, readjustment of indebtedness,
arrangements, reorganizations, compositions or extensions, then and
in any such event:
(i) any payment or distribution of any kind or
character, whether in cash, securities or other property which
but for this Agreement would be payable or deliverable upon or
with respect to any or all of the Subordinated Obligations,
shall instead be paid or delivered directly to the
Administrative Agent for application to the Senior Obligations,
whether then due or not due, until the Senior Obligations shall
have first been fully paid in cash and satisfied; and
(ii) to the extent permitted by Applicable Law, the
Subordinated Lender hereby irrevocably authorizes and empowers
the Administrative Agent to demand, xxx for, collect and
receive every such payment or distribution and give acquittance
therefor, and to file and/or vote claims and take such other
proceedings, in the Administrative Agent's own name or in the
name of the Subordinated Lender, or otherwise, as the
Administrative Agent may deem necessary or advisable for the
enforcement of this Agreement (including, without limitation,
the filing of any proof of claim in respect of the Subordinated
Obligations in any bankruptcy or insolvency proceeding of AWT).
In furtherance of the foregoing, the Subordinated Lender
agrees, to the extent permitted by Applicable Law, duly and
promptly to take such action as may be reasonably requested by
the Administrative Agent to assist in the collection of the
Subordinated Obligations for the account of the Administrative
Agent and/or to file appropriate proofs of claim in respect of
the Subordinated Obligations, and to execute and deliver to the
Administrative Agent on demand such powers of attorney, proofs
of claim, assignments of claim or other instruments as may be
reasonably requested by the Administrative Agent to enable the
Administrative Agent to enforce any and all claims upon or with
respect to the Subordinated Obligations, and to collect and
receive any and all payments or distributions which may be
payable or deliverable at any time upon or with respect to the
Subordinated Obligations.
(b) If any payment, distribution of security or proceeds
of any security are received by the Subordinated Lender upon or in
respect of the Subordinated obligations in contravention of the
provisions hereof, the Subordinated Lender will forthwith deliver the
same to the Administrative Agent in precisely the form received
(except for the endorsement or assignment of the Subordinated Lender
where necessary), for application to the Senior Obligations, whether
then due or not due, and, until so delivered, the same shall be held
in trust by the Subordinated Lender as property of the Administrative
Agent. In the event of the failure of the Subordinated Lender to
make any such endorsement or assignment, the Administrative Agent, or
any of its officers or employees, are, to the extent permitted by
Applicable Law, hereby irrevocably authorized to make the same.
(c) The Subordinated Lender agrees that it will not
transfer, assign, pledge or encumber the Subordinated Obligations or
any part thereof or any instrument evidencing the same unless the
respective instrument of assignment specifically provides that the
assignee takes such Subordinated Obligations subject to the
provisions of this Agreement and such assignee executes and delivers
to the Administrative Agent an instrument in form and substance
reasonably satisfactory to the Administrative Agent pursuant to which
such assignee agrees to be bound by the provisions of this Agreement.
From and after the occurrence of any Default under the Credit
Agreement or Event of Default under the Master Surety Agreement of
which the Subordinated Lender has or should reasonably be expected to
have knowledge, and for so long as the same shall be continuing, the
Subordinated lender agrees that it will not exchange, forgive, waive
or cancel the Subordinated Obligations or any part thereof or reduce
the principal amount of the Subordinated Obligations in whole or in
part.
(d) Without limiting the effect of any of the other
provisions hereof, during the continuance of any Default under the
Credit Agreement or Event of Default under the Master Surety
Agreement with respect to any Senior Obligation or any default in the
payment of any Senior Obligations, no payment of principal, sinking
fund, interest or premium (or any other amount) shall be made on or
with respect to the Subordinated Obligations or any renewals or
extensions thereof.
Section 3.04. Continuing Subordination, Etc. The
subordination effected by this Agreement is a continuing subordination, and
the Subordinated Lender hereby agrees that at any time and from time to time,
without notice to it:
(a) the time for AWT's performance of or compliance with
any of its agreements contained in any of the Senior Credit
Agreements may be extended or such performance or compliance may be
waived by the applicable Senior Creditors;
(b) any of the acts mentioned in any of the Senior
Credit Agreements may be done;
(c) any of the Senior Credit Agreements may be amended
for the purpose of adding any provisions thereto or increasing the
amount of, or changing the terms of, the Senior Obligations or
changing in any manner the rights of the Administrative Agent, any of
the Senior Creditors or any Borrower or Principal thereunder;
(d) payment of any of the Senior Obligations or any
portion thereof may be extended; and
(e) the maturity of any of the Senior Obligations may be
accelerated, and any collateral security therefor may be exchanged,
sold, surrendered, released or otherwise dealt with, in accordance
with the terms of any of the Senior Credit Agreements or any other
present or future agreement between the applicable Borrower or
Principal and the applicable Senior Creditors;
all without impairing or affecting the obligations of the Subordinated Lender
hereunder.
Section 3.05. Waiver of Notice. The Subordinated Lender
hereby unconditionally waives notice of the incurring of the Senior
Obligations or any part thereof and reliance by any Senior Creditor upon the
subordination of the Subordinated Obligations to the Senior Obligations.
Section 3.06. Application of Payments. Whenever any payment
or distribution shall be paid or delivered to the Administrative Agent
pursuant to the provisions of this Section 3 for application to the Senior
Obligations, (i) such payment or distribution shall be made to the Senior
Creditors, pro rata, as their interests may appear, up to the aggregate amount
of the Senior Obligations and (ii) the Administrative Agent shall have no
liability to any of the Senior Creditors for actions taken in reliance on
information supplied by the Senior Creditors as to the amounts of Senior
Obligations held by them.
Section 3.07. Subrogation. Subject to the prior payment in
full in cash of the Senior Obligations, the Subordinated Lender shall be
subrogated to the rights of the Administrative Agent and the Senior Creditors
to receive payments or distributions in cash, property or securities of AWT
applicable to the Senior Obligations until all amounts owing on the
Subordinated Obligations shall be paid in full in cash, and as between and
among AWT, its creditors other than the Administrative Agent and the Senior
Creditors, and the Subordinated Lender:
(i) no such payment or distribution made to the
Administrative Agent or the Senior Creditors by virtue of this
Agreement which otherwise would have been made to the Subordinated
Lender shall be deemed, as between and among AWT, its creditors other
than the Administrative Agent and the Senior Creditors, and the
Subordinated Lender, to be a payment by AWT on account of the Senior
Obligations; and
(ii) no such payment or distribution made to the
Subordinated Lender by virtue of the subrogation herein provided
which otherwise would have been made to the Administrative Agent
and/or the Senior Creditors shall be deemed, as between and among
AWT, its creditors other than the Administrative Agent and the Senior
Creditors, and the Subordinated Lender, to be a payment by AWT on
account of the Subordinated Obligations;
it being understood that the provisions of this Section 3 are intended solely
for the purpose of defining the relative rights of the Subordinated Lender,
the Administrative Agent and the Senior Creditors.
Section 3.08. Certain Agreements. The Subordinated Lender
agrees that:
(a) all holders of Senior Obligations, in determining to
acquire and retain Senior Obligations, have relied upon the
subordination of the Subordinated Obligations to the Senior
Obligations as provided herein;
(b) the Subordinated Obligations shall be evidenced by a
promissory note of AWT payable to the Subordinated Lender which
promissory note shall bear on its face a legend stating that the
Subordinated Obligations are subject to this Agreement and
subordinated to the Senior Obligations; and
(c) promptly upon the written request of the
Administrative Agent, the Subordinated Lender shall take such other
action as may be reasonably requested by the Administrative Agent to
protect the rights of the Administrative Agent or the Senior
Creditors under this Agreement or effectuate the subordination
provided herein.
Section 3.09. Relative Rights. This Agreement defines the
relative rights of the Administrative Agent, the Senior Creditors and the
Subordinated Lender. Nothing in this Agreement shall:
(a) impair, as between AWT and the Subordinated Lender,
the obligations of AWT, which are absolute and unconditional, to pay
the principal of and interest on the Subordinated Obligations in
accordance with their terms; or
(b) affect the relative rights of the Subordinated
Lender and creditors of AWT other than their rights in relation to
the Administrative Agent and the Senior Creditors.
Section 3.10. Rescinded Payments. Notwithstanding anything to
the contrary contained in this Agreement, if at any time any payment to the
Administrative Agent or the Senior Creditors is rescinded or must otherwise be
returned by the Administrative Agent or the Senior Creditors upon the
insolvency, bankruptcy, reorganization, dissolution or liquidation of AWT or
otherwise, the Subordinated lender shall promptly upon demand pay or deliver
any payments or distributions received by the Subordinated Lender upon or in
respect of the Subordinated Obligations to the Administrative Agent up to the
amount so rescinded or otherwise returned by the Administrative Agent or the
Senior Creditors.
Section 4. Miscellaneous.
Section 4.01. Governing Law. This Agreement shall be governed
by and construed in accordance with the law of the State of New York (without
giving effect to its choice of law principles).
Section 4.02. Notices. Notices and other communications
provided for herein shall be in writing and shall be delivered or mailed (or
delivered by facsimile equipment, the receipt of which is promptly confirmed
by telephone) addressed,
(a) if to the Subordinated Lender, to it at 00 xxx
x'Xxxxx, 00000 Xxxxx XXXXX00, Xxxxxx (fax no. 000-000-000-00000),
Attention: Xxxxxx XxXxxx L'Hotelain (tel. no. 000-000-000-00000);
(b) if to any other party hereto and party to the Credit
Agreement, to it at its address set forth in or determined pursuant
to the Credit Agreement;
(c) if to any other party hereto and party to the Master
Surety Agreement, to it at its address set forth in or determined
pursuant to the Master Surety Agreement; and
(d) if to any other party hereto and not
party to the Master Surety Agreement or the Credit Agreement, to it
at its address as notified to each of the other parties hereto.
Except as specifically provided in Section 4.06 of this Agreement, all notices
and other communications given to any party hereto in accordance with the
provisions of this Agreement shall be deemed to have been given (A) if sent by
registered or certified mail, postage prepaid, return receipt requested, on
the third Business Day after such notice or communication, addressed as above
provided, is delivered to a United States post office and a receipt therefor
is issued thereby, (B) if sent by any other means of physical delivery, when
such notice or communication is delivered to the appropriate address as above
provided, (C) if sent by facsimile, when such notice or communication is
transmitted to the appropriate fax number as above provided and is received at
such number and (D) if given by telephone, when communicated to the individual
or any member of the department specified as the individual or department to
whose attention notices, communications and materials are to be given or
delivered, except that (1) notices of a change of address, fax or telephone
number or individual or department to whose attention notices and
communications are to be given or delivered shall not be deemed given until
received.
Section 4.03. Waivers, etc. The terms of this Agreement may
be waived, altered or amended only by an instrument in writing duly executed
by the Subordinated Lender and by the Administrative Agent in accordance with
the Credit Agreement and by the Sureties. Any such amendment or waiver shall
be binding upon all Senior Creditors and each other party to this Agreement.
Section 4.04. Successors and Assigns. This Agreement shall be
binding upon and inure to the benefit of the respective successors and assigns
of the Subordinated Lender, AWT, the Administrative Agent and each of the
Senior Creditors (provided, however, that neither the Subordinated Lender nor
AWT shall assign or transfer their rights hereunder without the prior written
consent of the Administrative Agent (except as provided under Section 3.03(c)
of this Agreement)).
Section 4.05. Counterparts. This Agreement may be executed in
one or more counterparts and all of such counterparts taken together shall
constitute one and the same instrument.
Section 4.06. Judicial Proceedings; Waiver of Jury Trial. Any
judicial proceeding brought against the Subordinated Lender with respect to
any claim in any way arising out of, related to or connected with this
Agreement may be brought in any court of competent jurisdiction in the City of
New York, and, by execution and delivery of this Agreement, the Subordinated
Lender (a) accepts, generally and unconditionally, the nonexclusive
jurisdiction of such courts and any related appellate court and irrevocably
agrees to be bound by any judgment rendered thereby in connection with any
such claim and (b) to the extent permitted by Applicable Law, irrevocably
waives any objection it may now or hereafter have as to the venue of any such
proceeding brought in such a court or that such a court is an inconvenient
forum. The Subordinated Lender hereby waives personal service of process and
consents that service of process upon it may be made by certified or
registered mail, return receipt requested, at its address specified or
determined in accordance with the provisions of Section 4.02, and service so
made shall be deemed completed on the third business day after such service is
deposited in the mail. Nothing herein shall affect the right of the
Administrative Agent or any Senior Creditor to serve process in any other
manner permitted by law or shall limit the right of the Administrative Agent
or any Senior Creditor to bring proceedings against the Subordinated Lender in
the courts of any other jurisdiction. THE SUBORDINATED LENDER, THE
ADMINISTRATIVE AGENT AND EACH SENIOR CREDITOR HEREBY WAIVE TRIAL BY JURY IN
ANY JUDICIAL PROCEEDING INVOLVING ANY SUCH CLAIM.
Section 4.07. Severability. Any provision of this Agreement
which is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof in such
jurisdiction, and any such prohibition or unenforceability in any jurisdiction
shall not invalidate or render unenforceable such provision in any other
jurisdiction.
Section 4.08. Immunities of Administrative Agent. The
Administrative Agent's duties hereunder shall be purely ministerial and the
Administrative Agent shall have no duties or responsibilities except those
expressly set forth herein. The Administrative Agent shall not be required
under any circumstances to take any action that, in its judgment, (a) is
contrary to any provision of the Credit Agreement or any of the documents
executed in connection therewith or applicable law or (b) would expose it to
any liability or expense against which it has not been indemnified to its
satisfaction. Neither the Administrative Agent nor any of its directors,
officers, employees or agents shall be liable or responsible for any action
taken or omitted to be taken by it or them under or in connection with this
Agreement, except for its or their own gross negligence, willful misconduct or
knowing violations of law. The Administrative Agent may employ agents and
attorneys-in-fact and shall not be responsible for the negligence or
misconduct of any such agents or attorneys-in-fact so long as the
Administrative Agent was not grossly negligent in selecting or directing such
agents or attorneys-in-fact.
IN WITNESS WHEREOF, the parties hereto have caused this
Subordination Agreement to be duly executed as of the day and year first above
written.
COMPAGNIE GENERAL DES EAUX
By: ________________________
Name:
Title:
AIR & WATER TECHNOLOGIES
CORPORATION
By: ________________________
Name:
Title:
THE FIRST NATIONAL BANK OF CHICAGO,
as Administrative Agent
By: ________________________
Name:
Title:
UNITED STATES FIDELITY AND GUARANTY
COMPANY
By: ________________________
Name:
Title:
FIDELITY AND GUARANTY INSURANCE
COMPANY
By: ________________________
Name:
Title:
FIDELITY AND GUARANTY INSURANCE
UNDERWRITERS
By: ________________________
Name:
Title:
