Exhibit 10.9(i)
FIRST AMENDMENT TO CREDIT AGREEMENT
Dated as of March 15, 2004
This FIRST AMENDMENT TO CREDIT AGREEMENT (this "Agreement") is
among IONICS, INCORPORATED, a Massachusetts corporation (the "Borrower"), UBS
AG, STAMFORD BRANCH, in its capacity as administrative agent for the Lenders (in
such capacity, the "Administrative Agent") and as collateral agent for the
Secured Parties (in such capacity, the "Collateral Agent") and the Lenders
signatory hereto, and is made pursuant to that certain Credit Agreement dated as
February 13, 2004 (as amended, modified, restated or supplemented from time to
time, the "Credit Agreement"), among IONICS, INCORPORATED, a Massachusetts
corporation, the Subsidiary Guarantors, the Lenders, the Administrative Agent,
the Collateral Agent, UBS SECURITIES LLC, as lead arranger (in such capacity,
the "Arranger"), sole bookmanager and documentation agent (in such capacity, the
"Documentation Agent"), FLEET SECURITIES, INC. and BANK OF AMERICA, N.A., as
syndication agents (in such capacity, the "Syndication Agents"), WACHOVIA BANK,
N.A. and GENERAL ELECTRIC CAPITAL CORPORATION, as co-documentation agents (in
such capacity, the "Co-Documentation Agents"), UBS LOAN FINANCE LLC, as
swingline lender (in such capacity, "Swingline Lender"), and HSBC BANK USA, as
issuing bank (in such capacity, the "Issuing Bank").
Terms used but not otherwise defined in this Agreement shall
have the meaning ascribed to such terms in the Credit Agreement.
PRELIMINARY STATEMENTS:
1. The Borrower has requested that the Required Lenders agree to extend the time
period within which certain of the items set forth on Schedule 5.16 of the
Credit Agreement are required to be delivered pursuant to Section 5.16 to the
Credit Agreement; and
2. Subject to the terms and conditions set forth below, the Required Lenders,
the Administrative Agent, and the Collateral Agent are willing to so amend the
Credit Agreement.
NOW, THEREFORE, in consideration of the premises and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Amendments to Credit Agreement. Upon the terms and subject to the conditions
set forth in this Agreement and in reliance on the representations and
warranties of the Loan Parties set forth in this Agreement, the Credit Agreement
is hereby amended such that Schedule 5.16 to the Credit Agreement shall be
deleted in its entirety and replaced with the replacement Schedule 5.16 attached
hereto as Exhibit A.
2. Conditions to Effectiveness. The effectiveness of this Agreement is
conditioned upon satisfaction of the following conditions precedent on or before
March 19, 2004; provided that once such conditions precedent have been satisfied
this Agreement shall be deemed to be effective as of March 15, 2004 (such date,
the "Amendment Effective Date"):
a. the Administrative Agent shall have received counterparts of this
Agreement signed by the Borrower, the Subsidiary Guarantors, the Required
Lenders, the Administrative Agent and the Collateral Agent;
b. each of the representations and warranties in Section 3 below shall be
true and correct in all material respects as of the Amendment Effective Date;
c. after giving effect to the amendment set forth in Section 1 hereof, no
Default or Event of Default shall have occurred and be continuing under the
Credit Agreement or any other Loan Document;
d. the Administrative Agent shall have received payment in immediately
available funds of all expenses incurred by the Administrative Agent (including,
without limitation, legal fees) for which invoices have been presented, on or
before the Amendment Effective Date; and
e. the Administrative Agent shall have received satisfactory evidence that
the execution, delivery and performance of this Agreement have been duly
approved by all necessary corporate action of each Loan Party.
3. Representations and Warranties. The Borrower and each of the other Loan
Parties represents and warrants to the Administrative Agent, the Collateral
Agent and each Lender as of the date hereof as follows:
a. Authority. Each of the Loan Parties has the requisite corporate power
and authority to execute and deliver this Agreement and to perform its
obligations hereunder and under the Credit Agreement (as modified hereby). The
execution, delivery and performance by the Borrower and each other Loan Party of
this Agreement, the Credit Agreement (as modified hereby) and the transactions
contemplated hereby and thereby have been duly approved by all necessary
corporate action of such person and no other corporate proceedings on the part
of each such person are necessary to consummate such transactions (except as
expressly contemplated hereby and thereby).
b. Due Execution; Enforceability. This Agreement has been duly executed and
delivered by the Borrower and the other Loan Parties. Each of this Agreement
and, after giving effect to this Agreement, the Credit Agreement and the other
Loan Documents is the legal, valid and binding obligation of each Loan Party
hereto and thereto, enforceable against such Loan Party in accordance with its
terms, and is in full force and effect. Neither the execution, delivery or
performance of this Agreement or of the Credit Agreement (as modified hereby),
nor the performance of the transactions contemplated hereby or thereby, will
adversely affect the validity, perfection or priority of the Collateral Agent's
Lien, for the benefit of the Secured Parties, on any of the Collateral.
c. Representations and Warranties. After giving effect to this Agreement,
the representations and warranties contained in the Credit Agreement and the
other Loan Documents (other than any such representations and warranties that,
by their terms, are specifically made as of a date other than the date hereof)
are true and correct on and as of the date hereof as though made on and as of
the date hereof.
d. No Conflicts. Neither the execution and delivery of this Agreement, nor
the consummation of the transactions contemplated hereby, nor performance of and
compliance with the terms and provisions hereof by the Borrower or any Loan
Party will, at the time of such performance, (a) violate or conflict with any
provision of its articles or certificate of incorporation or bylaws or other
organizational or governing documents of such Person, (b) violate, contravene or
materially conflict with any Requirement of Law or any other law, regulation
(including, without limitation, Regulation U or Regulation X), order, writ,
judgment, injunction, decree or permit applicable to it, except for any
violation, contravention or conflict which could not reasonably be expected to
have a Material Adverse Effect, (c) violate, contravene or conflict with
contractual provisions of, or cause an event of default under, any indenture,
loan agreement, mortgage, deed of trust, contract or other agreement or
instrument to which it is a party or by which it may be bound, or (d) result in
or require the creation of any Lien (other than those contemplated in or created
in connection with the Loan Documents) upon or with respect to its properties.
e. No Default. After giving effect to the amendments set forth in Section 1
hereof, no Default or Event of Default has occurred and is continuing under the
Credit Agreement or any other Loan Document.
4. Reference to and Effect on Credit Agreement.
a. Upon and after the effectiveness of this Agreement, each reference in
the Credit Agreement to "this Agreement", "hereunder", "hereof" or words of like
import referring to the Credit Agreement, and each reference in the other Loan
Documents to "the Credit Agreement", "thereunder", "thereof" or words of like
import referring to the Credit Agreement, shall mean and be a reference to the
Credit Agreement as modified hereby.
b. Except as specifically modified above, the Credit Agreement and the
other Loan Documents are and shall continue to be in full force and effect and
are hereby in all respects ratified and confirmed. Without limiting the
generality of the foregoing, the Security Documents and all of the Collateral
described therein do and shall continue to secure the payment of all Obligations
under and as defined therein, in each case as modified hereby.
c. The execution, delivery and effectiveness of this Agreement shall not,
except as expressly provided herein, operate as a waiver of any right, power or
remedy of any Secured Party under any of the Loan Documents, nor, except as
expressly provided herein, constitute a waiver or amendment of any provision of
any of the Loan Documents.
5. Counterparts. This Agreement may be executed in any number of counterparts
and by different parties hereto in separate counterparts, each of which when so
executed and delivered shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement. Delivery of an executed
counterpart of a signature page to this Agreement by facsimile shall be
effective as delivery of a manually executed counterpart of this Agreement.
6. Severability. Any provision of this Agreement that is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
7. Governing Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York.
[Signature Pages Follow]
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective authorized officers as of the
day and year first above written.
IONICS, INCORPORATED
By: /s/Xxxxxx X. Xxxxxx
-----------------------
Name: Xxxxxx X. Xxxxxx
Title: Chief Financial Officer
SUBSIDIARY GUARANTORS:
AQUA DESIGN, INC.
FIDELITY PUREWATER, INC.
FIDELITY WATER SYSTEMS, INC.
IONICS KOREA, INC.
IONICS LIFE SCIENCES, INC.
IONICS SECURITIES CORPORATION
IONICS ULTRAPURE WATER CORPORATION
RESOURCES CONSERVATION CO. INTERNATIONAL
SEPARATION TECHNOLOGY, INC.
XXXXXXX INSTRUMENTS, INC.
ECOLOCHEM, INC.
ECOLOCHEM HOLDINGS, INC.
ECOLOCHEM INTERNATIONAL, INC.
ECOLOCHEM JV HOLDINGS, INC.
By: /s/Xxxxxxx Xxxx
-------------------
Name: Xxxxxxx Xxxx
Title: Secretary/Clerk
ECOLOCHEM SERVICES - MEXICO, LLC
MOSON HOLDINGS, LLC
By: Ionics, Incorporated as Managing Member
By: /s/Xxxxxxx Xxxx
-------------------
Name: Xxxxxxx Xxxx
Title: Secretary/Clerk
UBS AG, STAMFORD BRANCH, as Administrative Agent
and Collateral Agent
By: /s/Xxxxxxx Xxxxx-XxXxxxxxx
------------------------------
Name: Xxxxxxx Xxxxx-XxXxxxxxx
Title: Associate Director
Banking Product Services, US
By: /s/Xxxxxx X. Xxxxxxxx
-------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Associate Director
Banking Products Services, US
LENDERS:
UBS LOAN FINANCE LLC, as a Lender
By: /s/Xxxxxxx Xxxxx-XxXxxxxxx
------------------------------
Name: Xxxxxxx Xxxxx-XxXxxxxxx
Title: Associate Director
Banking Product Services, US
By: /s/Xxxxxx X. Xxxxxxxx
-------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Associate Director
Banking Products Services, US
BANK OF AMERICA, N.A., as a Lender
By: /s/Xxxxxxxx X. Xxxxxx
-------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Vice President
WACHOVIA BANK, N.A., as a Lender
By: /s/Xxxx Xxxxxx
------------------
Name: Xxxx Xxxxxx
Title: Vice President
SOVEREIGN BANK, as a Lender
By: /s/Xxxxxx X. Xxxxxxx
------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Senior Vice President
GENERAL ELECTRIC CAPITAL CORPORATION, as a
Lender
By: /s/Xxxx Xxxx
----------------
Name: Xxxx Xxxx
Title: Duly Authorized Signatory
HSBC BANK USA, as a Lender
By: /s/Xxxxxxx X. Xxxxxx
------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President
FLEET NATIONAL BANK, as a Lender
By: /s/Xxxxxx X. Xxxxx
----------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
