1
Exhibit 10.9
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Equivalent of
$2,200,000
CREDIT AGREEMENT
DATED AS OF MARCH 4, 1997
AMONG
PROVISTA EINHUNDERTSECHSUNDFUNFZIGSTE
VERWALTUNGSGESELLSCHAFT MBH
(TO BE KNOWN AS WATERLINK (GERMANY) GMBH),
AS BORROWER
WATERLINK, INC.,
AS GUARANTOR,
AND
BANK OF AMERICA NATIONAL TRUST &
SAVINGS ASSOCIATION, FRANKFURT BRANCH
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TABLE OF CONTENTS
Section Page
ARTICLE I
DEFINITIONS..............................................................1
1.03 ACCOUNTING PRINCIPLES....................................................7
ARTICLE II
THE CREDITS..............................................................8
2.01 AMOUNTS AND TERMS OF COMMITMENTS............................................8
2.02 LOAN ACCOUNTS................................................................8
2.03 PROCEDURE FOR BORROWING.....................................................9
2.05 VOLUNTARY TERMINATION OR REDUCTION OF THE COMMITMENT.......................10
2.06 OPTIONAL PREPAYMENTS.......................................................10
2.07 MANDATORY PREPAYMENTS OF LOANS; MANDATORY COMMITMENT REDUCTIONS
.......................................................................10
2.08 REPAYMENT..................................................................10
2.09 INTEREST...................................................................10
2.11 COMPUTATION OF FEES AND INTEREST...........................................11
2.12 PAYMENTS BY THE BORROWER...................................................12
2.13 UTILIZATION OF APPROVED CURRENCIES.........................................12
ARTICLE III
[RESERVED]..............................................................13
ARTICLE IV
TAXES, YIELD PROTECTION AND ILLEGALITY..................................13
4.01 TAXES......................................................................13
4.02 ILLEGALITY.................................................................14
4.03 INCREASED COSTS AND REDUCTION OF RETURN....................................14
4.04 FUNDING LOSSES.............................................................15
4.05 INABILITY TO DETERMINE RATES...............................................15
4.06 RESERVES ON LOANS..........................................................16
4.07 CERTIFICATES OF THE BANK...................................................16
4.08 SURVIVAL....................................................................16
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Section Page
ARTICLE V
CONDITIONS PRECEDENT.........................................................................16
5.01 CONDITIONS OF INITIAL BORROWING........................................................16
(a) CREDIT AGREEMENT AND NOTES....................................................16
(b) RESOLUTIONS; INCUMBENCY.......................................................16
(c) ORGANIZATION DOCUMENTS; GOOD STANDING.........................................17
(d) LEGAL OPINIONS................................................................17
(e) PAYMENT OF FEES...............................................................17
(f) CERTIFICATE...................................................................17
(g) CONSENT LETTER................................................................18
(h) NORDIC ACQUISITION............................................................18
(i) SOLVENCY CERTIFICATE..........................................................18
(j) OTHER DOCUMENTS...............................................................18
5.02 CONDITIONS TO ALL BORROWINGS...........................................................18
(a) NOTICE, APPLICATION...........................................................18
(b) CONTINUATION OF REPRESENTATIONS AND WARRANTIES................................18
(c) NO EXISTING DEFAULT...........................................................18
ARTICLE VI
REPRESENTATIONS AND WARRANTIES......................................................19
ARTICLE VII
AFFIRMATIVE COVENANTS...............................................................19
ARTICLE VIII
NEGATIVE COVENANTS..................................................................19
ARTICLE IX
EVENTS OF DEFAULT...................................................................19
9.01 EVENT OF DEFAULT.......................................................................19
(a) NON-PAYMENT...................................................................19
(b) REPRESENTATION OR WARRANTY....................................................20
(c) WATERLINK CREDIT AGREEMENT DEFAULTS...........................................20
(d) GUARANTOR DEFAULTS............................................................20
9.02 REMEDIES...............................................................................20
9.03 RIGHTS NOT EXCLUSIVE...................................................................20
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Section Page
ARTICLE X
GUARANTY............................................................................20
ARTICLE XI
MISCELLANEOUS.......................................................................23
11.01 AMENDMENTS AND WAIVERS................................................................23
11.02 NOTICES...............................................................................24
11.03 NO WAIVER; CUMULATIVE REMEDIES........................................................24
11.04 COSTS AND EXPENSES....................................................................24
11.05 INDEMNIFICATION.......................................................................25
11.06 PAYMENTS SET ASIDE....................................................................25
11.07 SUCCESSORS AND ASSIGNS................................................................25
11.08 PARTICIPATIONS........................................................................25
11.09 CONFIDENTIALITY.......................................................................26
11.10 SET-OFF...............................................................................26
11.11 AUTOMATIC DEBITS OF FEES..............................................................27
11.12 JUDGMENT...............................................................................27
11.13 COUNTERPARTS..........................................................................27
11.14 SEVERABILITY..........................................................................27
11.15 NO THIRD PARTIES BENEFITED............................................................27
11.16 GOVERNING LAW AND JURISDICTION........................................................28
11.17 WAIVER OF JURY TRIAL..................................................................28
11.18 ENTIRE AGREEMENT......................................................................29
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SCHEDULES
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 German Counsel to
the Loan Parties
Exhibit D Form of Promissory Note
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CREDIT AGREEMENT
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This CREDIT AGREEMENT is entered into as of March 4, 1997, among
Provista Einhundertsechsundfunfzigste Verwaltungsgesellschaft mbH (to be known
as Waterlink (Germany) GmbH), a German corporation (the "Borrower"), Waterlink,
Inc., a Delaware corporation (the "Guarantor"), and Bank of America National
Trust and Savings Association, Frankfurt Branch (the "Bank").
WHEREAS, the Bank has agreed to make available to the Borrower a
revolving credit facility 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
Frankfurt 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. section 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
------------------------------------
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
Frankfurt interbank market at their request at approximately
11:00 a.m. (Frankfurt 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" means 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.
"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.
"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.
"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.
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"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.
"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.
"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:
(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.
"JUDGMENT CURRENCY" has the meaning specified in SECTION
11.12.
"KRONA" means the lawful currency of Sweden.
"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
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SCHEDULE 11.02, or such other office or offices as the Bank may from time to
time notify the Borrower.
"LOAN" means an extension of credit by the Bank to the
Borrower under Article II.
"LOAN DOCUMENTS" means this Agreement, the Note and all other
documents delivered to the Bank in connection herewith.
"LOAN PARTY" shall mean, collectively, the Guarantor and the
Borrower.
"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.
"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.
"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.
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"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.
"SWEDEN CREDIT AGREEMENT" means the Credit Agreement, dated as
of March 4, 1997, among the Guarantor, Gigantissimo 2061 AB (to be known as
Waterlink (Sweden) AB) and Bank of America National Trust and Savings
Association, London Branch.
"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 19, 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
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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.
(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.
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(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 such Loans) 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.
2.02 LOAN ACCOUNTS. (a) The Loans made 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
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.
(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.
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2.03 PROCEDURE FOR BORROWING. (a) Each 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. (Frankfurt 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.
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, 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. (Frankfurt 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
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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.
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, the Effective Amount of all Loans would exceed the amount of the
Commitment then in effect. Once reduced in accordance with this Section, the
Commitment may not be increased. All accrued commitment 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 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) 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.
(b) 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
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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 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. 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.
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17
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 (Frankfurt 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 Noon (Frankfurt 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.
(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 as of the last Business Day of each
month, and (iii) outstanding Loans 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 (Frankfurt 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 (Frankfurt 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.
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ARTICLE III
[RESERVED]
----------
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.
(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
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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.
(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 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, 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.
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(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:
(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
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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 circulates, additional costs 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 BORROWING. The obligation of the Bank to
make its initial Loan 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.
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(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 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 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 initial Borrowing; and
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(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 Systems,
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 Sweden
Credit Agreement has received proceeds from the initial Borrowing under, and as
defined in, the Sweden 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 BORROWINGS. The obligation of the Bank to make
any Loan (including its initial Loan) or to continue any Loan under Section 2.04
is subject to the satisfaction of the following conditions precedent on the
relevant Borrowing Date:
(a) NOTICE, APPLICATION. The Bank shall have received a Notice
of Borrowing a Notice of Continuation, as applicable;
(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 with the same effect as if made on and as of such
Borrowing 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
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(c) NO EXISTING DEFAULT. No Default or Event of Default shall
exist or shall result from such Borrowing.
Each Notice of Borrowing 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 that the conditions in this Section
5.02 are satisfied.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
------------------------------
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, 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, 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":
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(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 (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
(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 to be terminated, whereupon the
Commitment shall be terminated; and
(b) 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 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 (b) all other amounts from time to
time owing to the Bank by the Borrower under this Agreement, the Note 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 in connection with the Guaranteed Debt or this Guaranty, or to
take any other action required in
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27
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.
- 22 -
28
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.
- 23 -
29
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
Issuing Bank shall not be effective until actually received by the Issuing Bank
at the address specified for the "Issuing 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 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.
- 24 -
30
11.04 COSTS AND EXPENSES. The Borrower shall:
(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) 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 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.
- 25 -
31
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 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 Issuing 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,
- 26 -
32
as expressly permitted under the terms of any other document or agreement
regarding confidentiality 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, commitment
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).
- 27 -
33
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 SYSTEM, 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.
- 28 -
34
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.
* * *
- 29 -
35
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.
PROVISTA EINHUNDERTSECHSUNDFUNFZIGSTE
VERWALTUNGSGESELLSCHAFT mbH (to be known
as WATERLINK (GERMANY) GmbH)
By:
-----------------------------------
Title:
--------------------------------
WATERLINK, INC., as Guarantor
By:
-----------------------------------
Title:
--------------------------------
Commitment: $2,200,000 BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, FRANKFURT
BRANCH
By:
-----------------------------------
Title:
--------------------------------
- 30 -
36
SCHEDULE 11.02
--------------
BANK NOTICE INFORMATION
-----------------------
PAYMENT OFFICE:
---------------
Bank of America National Trust
and Savings Association, Frankfurt Branch
Xxxxxxxxxxxx 00
00000 Xxxxxxxxx
Xxxxxxx
NOTICES:
--------
Bank of America National Trust
and Savings Association, Frankfurt Branch
Xxxxxxxxxxxx 00
00000 Xxxxxxxxx
Xxxxxxx
Attn: Xxxx Xxxxxx
Tel. No.:
Fax No.: 000-00-00-0000-0000
BORROWER NOTICE INFORMATION
---------------------------
Waterlink (Germany) GmbH
[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
S2-1
