MULTI-FACILITY
CREDIT AGREEMENT
among
PENTAIR, INC.,
for itself as Borrower,
as agent for all Borrowers
and as Guarantor,
EuroPentair GmbH,
Pentair Canada, Inc.,
Borrowers
and
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
for itself and as U.S. Dollar
Administrative Agent,
FIRST BANK NATIONAL
ASSOCIATION,
for itself and as Overnight
Administrative Agent,
XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK,
for itself and as G-7 Currency
Administrative Agent,
NBD BANK,
DRESDNER BANK AG,
ABN AMRO BANK N.V.
and
THE BANK OF TOKYO - MITSUBISHI,
LTD.
Banks
and various affiliates of the
Banks
which are parties to the
Canadian Facility
Dated as of November 15, 1996
MULTI-FACILITY
CREDIT AGREEMENT
This Agreement dated as of
November 15, 1996 is among
PENTAIR, INC., EUROPENTAIR GMBH
and PENTAIR CANADA, INC., and
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as a
Bank and as U.S. Dollar
Administrative Agent, FIRST BANK
NATIONAL ASSOCIATION, as a Bank
and as Overnight Administrative
Agent, XXXXXX GUARANTY TRUST
COMPANY OF NEW YORK, as a Bank
and as a G-7 Currency
Administrative Agent, and NBD
BANK, DRESDNER BANK AG, ABN AMRO
BANK N.V. and THE BANK OF
TOKYO-MITSUBISHI, LTD, as Banks,
and various affiliates of the
Banks which are parties to the
Canadian Facility described
herein.
The parties hereto agree as
follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 Definitions.
The following terms, as used
herein, have the following
meanings:
"Absolute Rate means a rate
of interest per annum, rounded
to the nearest one-hundredth of
one percent, for a particular
Bid Loan amount and a particular
Interest Period.
"Absolute Rate Bid means the
Absolute Rate specified with
respect to a particular Bid Loan
amount and a particular Interest
Period in a Bid submitted in
response to a Bid Loan Request.
"Absolute Rate Bid Loan
means an amount loaned to any of
the Borrowers under this
Agreement that bears interest by
reference to an Absolute Rate
determined pursuant to
Article VII.
"Absolute Rate Bid Request
means a Bid Loan Request
requesting an Absolute Rate Bid.
"Adjusted CD Rate applicable
to any Interest Period means a
rate per annum determined
pursuant to the following
formula:
ACDR = [CDBR]* plus AR
[1.0 - RP ]
ACDR = Adjusted CD Rate
CDBR = CD Base Rate
RP = CD Reserve Percentage
AR = Assessment Rate
* The amount in brackets being
rounded upwards, if necessary,
to the next higher 1/100 of 1%.
"Adjusted Debt to Total
Capital Ratio means the ratio
obtained by dividing (i)
Consolidated Debt, excluding any
Debt arising pursuant to a Sale
of Receivables, by (ii) an
amount equal to the sum of
Consolidated Debt, excluding any
Debt arising pursuant to a Sale
of Receivables, and Consolidated
Shareholders' Equity.
"Agent means any of BofA,
First Bank, Xxxxxx or BA Canada
in its capacity as an agent for
the Banks (or, in the case of BA
Canada, for the Canadian Banks)
hereunder, and any successor
thereto pursuant to Section
14.9; "Agents means all such
institutions.
"Agent-Related Persons"
means any Agent and any
successor thereto in such
capacity hereunder, together
with their respective affiliates
and the officers, directors,
employees, agents and
attorneys-in-fact of such
Persons and affiliates.
"Agreement means this
Multi-Facility Credit Agreement
dated as of November 15, 1996,
as amended or otherwise modified
from time to time.
"Assessment Rate means, for
any day of any Interest Period
for a CD Loan, the rate (rounded
upwards, if necessary, to the
next higher 1/100 of 1%)
determined by the U.S. Dollar
Administrative Agent as equal to
the annual assessment rate in
effect on such day payable to
the Federal Deposit Insurance
Corporation (the "FDIC") by a
member of the Bank Insurance
Fund that is classified as
adequately capitalized and
within supervisory subgroup "A"
(or a comparable successor
assessment risk classification
within the meaning of 12 C.F.R.
section 327.3) for insuring time
deposits at offices of such
member in the United States; or,
if the FDIC shall at any time
cease to assess time deposits
based upon such classifications
or successor classifications,
equal to the maximum annual
assessment rate in effect on
such day that is payable to the
FDIC by commercial banks
(whether or not applicable to
any particular Bank) for
insuring time deposits at
offices of such banks in the
United States.
"BA Canada means Bank of
America Canada, a bank chartered
under the laws of Canada.
"BA Loan means an amount
loaned to Pentair Canada under
this Agreement bearing interest
at the Fixed BA Rate for the
applicable Interest Period
pursuant to the applicable
Notice of Borrowing. Borrowings
of BA Loans shall be in an
aggregate principal amount of
Cdn.$2,000,000 or any larger
integral multiple of
Cdn.$100,000.
"BA Rate means, for any
Interest Period for a BA Loan,
the rate of interest per annum
(rounded upwards, if necessary,
to the next higher 1/100 of 1%)
equal to the market bid rate
determined by the Canadian
Administrative Agent for
banker's acceptances (with a
tenor comparable to such
Interest Period and in an amount
comparable to the BA Loan of BA
Canada for such Interest Period)
accepted by BA Canada on the
first day of such Interest
Period.
"Banks means the financial
institutions listed on the
signature pages hereof as
"Banks" and their respective
successors and assigns. The
term Bank shall, whenever
appropriate, include any branch
or affiliate of a Bank which is
acting as a Canadian Bank
hereunder.
"Bid means one or more
offers by any Bank to make one
or more Bid Loans submitted in
the manner provided in Section
7.3 (in the case of Domestic Bid
Loans) or 8.3 (in the case of
G-7 Currency Bid Loans).
"Bid Loan means a Domestic
Bid Loan or a G-7 Currency Bid
Loan.
"Bid Loan Request means a
request by a Borrower for Bids
submitted in the manner provided
in Section 7.1 (in the case of
Bids for Domestic Bid Loans) or
8.1 (in the case of Bids for G-7
Currency Bid Loans).
"BofA" means Bank of America
National Trust and Savings
Association.
"Borrower or "Borrowers
means any one or more of
Pentair, Inc., a Minnesota
corporation, EuroPentair GmbH, a
German limited liability
company, and Pentair Canada, and
their respective successors and
permitted assigns.
"Borrowing means a borrowing
of funds under Section 2.1,
consisting of one or more Loans
of the same type made at the
same time. Borrowings hereunder
shall be in the form of U.S.
Dollar Loans (pursuant to
Article III hereof), G-7
Currency Loans (pursuant to
Article IV hereof), Overnight
Loans (pursuant to Article V
hereof), Canadian Loans
(pursuant to Article VI hereof),
Domestic Bid Loans (pursuant to
Article VII hereof) or G-7
Currency Bid Loans (pursuant to
Article VIII hereof).
"Business Day means
(i) with respect
to an Overnight
Loan, any day
except a Saturday,
Sunday or other day
on which commercial
banks in
Minneapolis,
Minnesota are
required or
authorized by law
to close; and
(ii) for any other
purpose, any day
except a Saturday,
Sunday or other day
on which commercial
banks in New York
City, Chicago,
Illinois,
Minneapolis,
Minnesota and San
Francisco,
California (and, in
the case of
disbursements and
payments in
Canadian Dollars,
in Toronto,
Ontario) are
required or
authorized by law
to close and (a) in
the case of a
Eurodollar Loan,
G-7 Currency Loan
or G-7 Currency Bid
Loan, a day on
which commercial
banks are open for
foreign exchange
business in London,
England, and (b) in
the case of a G-7
Currency Loan or
G-7 Currency Bid
Loan, a day on
which dealings in
the relevant G-7
Currency are
carried on in the
applicable offshore
foreign exchange
interbank market in
which disbursement
or payment in such
G-7 Currency will
be made or received
hereunder.
"Canadian Administrative
Agent means BA Canada in its
capacity as agent for the Banks
hereunder in respect of Canadian
Loans, and any successor thereto
pursuant to Section 14.9.
"Canadian Bank means BofA
and Xxxxxx and any other Bank
which, with the consent of the
Borrowers and the Agents, agrees
to become a Canadian Bank
hereunder; provided that each
such Bank shall designate a
Canadian branch or affiliate of
such Bank which will have all
rights, and perform all
obligations, of such Bank
hereunder in respect of Canadian
Loans, such designation to be
made either (i) by causing such
branch or affiliate to execute a
signature page hereof or (ii) by
written notice to Pentair and
the Agents (including any notice
changing the designation of such
Bank's branch or affiliate which
will act as a Canadian Bank
hereunder); provided that no
affiliate of a Bank may be so
designated pursuant to clause
(ii) unless such affiliate has
executed an agreement
satisfactory to Pentair and the
Agents agreeing to become a
party hereto.
"Canadian Commitment means
Cdn. $40,000,000, as such amount
may be revised from time to time
pursuant to Section 2.8. The
Canadian Commitment is a subset
of the Total Commitment and does
not increase the total amount
available for borrowing
hereunder.
"Canadian Dollars and the
sign "Cdn.$ mean lawful money of
Canada.
"Canadian Loan" means any
Prime Loan, BA Loan or
Eurodollar Loan made to Pentair
Canada under Articles II and VI
of this Agreement. All Canadian
Loans shall be made in Canadian
Dollars.
"Canadian Percentage means,
for any Bank, the percentage
which such Bank's Commitment is
of the aggregate amount of the
Commitments of all Canadian
Banks. The Canadian Percentage
for each Canadian Bank as of the
date of this Agreement is set
forth under the heading
"Canadian Percentage on Schedule
1 opposite such Bank's name.
"CD Base Rate applicable to
any Interest Period means the
average rate per annum (rounded
upwards, if necessary, to the
next higher 1/100 of 1%) bid at
10:00 A.M. (Chicago time) (or as
soon thereafter as practicable)
on the first day of such
Interest Period offered by two
or more New York or Chicago
certificate of deposit dealers
of recognized standing for the
purchase at face value from the
U.S. Dollar Administrative Agent
of its certificates of deposit
in an amount comparable to such
Agent's portion of the principal
amount of the CD Borrowing to
which such Interest Period
applies and having a maturity
comparable to such Interest
Period.
"CD Loan means an amount
loaned to a Borrower under this
Agreement bearing interest at
the Fixed CD Rate for the
applicable Interest Period
pursuant to the applicable
Notice of Borrowing. Borrowings
of CD Loans shall be in an
aggregate principal amount of
U.S.$1,000,000 or any larger
integral multiple of
U.S.$100,000.
"CD Margin means a
percentage determined in
accordance with the table below:
Adjusted
Debt to Total CD
Capital Ratio Margin:
.40 or less .325 of 1%
over .40 but
not over .55 .400 of 1%
over .55 .525 of 1%
"CD Reserve Percentage means
for any day the maximum reserve
percentage (expressed as a
decimal, rounded upwards, if
necessary, to the next higher
1/100th of 1%), as determined by
the U.S. Dollar Administrative
Agent, in effect on such day
(including any ordinary,
marginal, emergency,
supplemental, special and other
reserve percentages), as
prescribed by the Federal
Reserve Board (or any successor)
for determining the maximum
reserves to be maintained by
member banks of the Federal
Reserve System with deposits
exceeding $1,000,000,000 for new
non-personal time deposits for a
period comparable to the
applicable Interest Period and
in an amount of U.S. $100,000 or
more. The Fixed CD Rate shall
be adjusted automatically on and
as of the effective date of any
change in the CD Reserve
Percentage.
"Code means the Internal
Revenue Code of 1986, as
amended.
"Commitment means, with
respect to any Bank, the amount
set forth under the heading
"Commitment" on Schedule 1
opposite such Bank's name, as
such amount may be revised from
time to time pursuant to Section
2.3(c), 2.8 or 15.6.
"Commitment Percentage
means, for any Bank, the
percentage which such Bank's
Commitment is of the Total
Commitment. The Commitment
Percentage for each Bank as of
the date of this Agreement is
set forth under the heading
"Commitment Percentage" on
Schedule 1 opposite such Bank's
name.
"Computation Date means each
date on which an Agent
determines the Equivalent Amount
of any Loan or Letter of Credit
Obligation pursuant to Section
2.15.
"Consolidated Cumulative Net
Income means the sum of the net
income of Pentair and its
Consolidated Subsidiaries for
(i) the period from July 1, 1996
through December 31, 1996; and
(ii) each fiscal year of Pentair
thereafter; provided that (x)
net income for any period shall
be added to Consolidated
Cumulative Net Income only when
such period is completed and (y)
if net income for any period is
not positive, such period shall
be excluded in calculating
Consolidated Cumulative Net
Income.
"Consolidated Debt means, at
any date, the Debt of Pentair
and its Consolidated
Subsidiaries, determined on a
consolidated basis as of such
date.
"Consolidated Shareholders'
Equity means, at any date, the
consolidated shareholders'
equity of Pentair and its
Consolidated Subsidiaries.
"Consolidated Subsidiary
means, at any date, any
Subsidiary or other entity the
accounts of which would be
consolidated with those of
Pentair in its consolidated
financial statements as of such
date.
"Controlled Group means all
members of a controlled group of
corporations and all trades or
businesses (whether or not
incorporated) under common
control which, together with
Pentair, are treated as a single
employer under Sections 414(b)
or 414(c) of the Code.
"Daily Pricing Loan means an
amount loaned to Pentair under
this Agreement bearing interest
at the applicable Daily Pricing
Rate for the applicable Interest
Period pursuant to the
applicable Notice of Borrowing.
Daily Pricing Loans shall be in
a principal amount of the lesser
of either (ii) U.S.$1,000,000 or
any larger integral multiple of
U.S.$100,000 or (ii) the amount
of any unused Overnight
Commitment.
"Daily Pricing Rate means
for any day a rate per annum
(rounded upward, if necessary,
to the nearest 1/16 of 1%)
determined pursuant to the
following formula, which rate
shall continue in effect until
the next succeeding Business
Day:
Daily Pricing Rate =
LIBO Rate
1.00 - Eurocurrency
Reserve Percentage
plus 0.50%
"Debt of any Person means at
any date, without duplication,
(i) all obligations of such
Person for borrowed money, (ii)
all obligations of such Person
evidenced by bonds, debentures,
notes or other similar
instruments, (iii) all
obligations of such Person to
pay the deferred purchase price
of property or services, except
trade accounts payable arising
in the ordinary course of
business, (iv) all obligations
of such Person as lessee under
capital leases, (v) all Debt of
others secured by a Lien on any
asset of such Person, whether or
not such Debt is assumed by such
Person, (vi) the amount of any
proceeds of a Sale of
Receivables less amounts
collected on the receivables
sold in such Sale of
Receivables, (vii) all
non-contingent reimbursement
obligations of such Person under
letters of credit, and (viii)
all Debt (as defined above) of
others Guaranteed by such
Person.
"Debt to Total Capital Ratio
means the ratio obtained by
dividing (i) Consolidated Debt
by (ii) an amount equal to the
sum of Consolidated Debt and
Consolidated Shareholders'
Equity.
"Default means any condition
or event which constitutes an
Event of Default or which with
the giving of notice or lapse of
time or both would, unless cured
or waived, become an Event of
Default.
"Domestic Bid Loan means a
Domestic Margin Rate Bid Loan or
an Absolute Rate Bid Loan.
"Domestic Margin Bid means
the Margin specified in basis
points with respect to a
particular Interest Period in a
Bid submitted in response to a
Bid Loan Request for a Domestic
Margin Rate Bid Loan.
"Domestic Margin Bid Request
means a Bid Loan Request
requesting a Domestic Margin
Bid.
"Domestic Margin Rate Bid
Loan means an amount loaned to
any of the Borrowers under this
Agreement that bears interest by
reference to a Margin Rate
determined pursuant to
Article VII.
"Domestic Submission
Deadline has the meaning set
forth in Section 7.3.
"Environmental Claims means
all claims, however asserted, by
any governmental authority or
other Person alleging potential
liability or responsibility for
violation of any Environmental
Law, or for release or injury to
the environment.
"Environmental Laws means
all federal, state and local
laws, statutes, common law
duties, rules, regulations,
ordinances and codes, together
with all administrative orders,
directed duties, requests,
licenses, authorizations and
permits of, and agreements with,
any judicial, regulating or
other governmental authority, in
each case relating to
environmental, health, safety
and land use matters.
"Equivalent Amount means, on
any date, (a) in the case of any
amount denominated in U.S.
Dollars, such amount, (b) in the
case of any amount denominated
in Canadian Dollars which
relates to Canadian Loans, the
amount of U.S. Dollars into
which such amount could be
converted at the Canadian
Administrative Agent's spot
selling rate through its FX
trading office at approximately
10:00 a.m. (Chicago time) on
such date, and (c) in the case
of any amount denominated in a
G-7 Currency (excluding any
amount referred to in clause (b)
above), the amount of U.S.
Dollars into which such amount
could be converted at the G-7
Currency Administrative Agent's
spot buying rate (based on the
London interbank market rate
then prevailing) as of
approximately 11:00 a.m. (London
time) three Business Days before
such date.
"ERISA means the Employee
Retirement Income Security Act
of 1974, as amended, or any
successor statute.
"Eurocurrency Margin means a
percentage determined in
accordance with the table below:
Adjusted
Debt to Total Eurocurrency
Capital Ratio Margin:
.40 or less .200 of 1%
over .40 but
not over .55 .275 of 1%
over .55 .400 of 1%
"Eurocurrency Reserve
Percentage means, for any day
for any Eurodollar Loan or G-7
Currency Loan (or for any
overdue G-7 Currency Bid Loan),
the percentage (expressed as a
decimal and rounded upward, if
necessary, to an integral
multiple of 1/100 of 1%) in
effect on such day, as
prescribed by the Board of
Governors of the Federal Reserve
System (or any successor), for
determining the aggregate
maximum reserve requirements
(including, without limitation,
any emergency, supplemental,
marginal and other reserve
requirements and taking into
account any transitional
adjustments or other scheduled
changes in reserve requirements)
for the applicable Agent in
respect of new deposits in the
applicable currency having a
maturity comparable to the
Interest Period for such Loan
and in an Equivalent Amount of
U.S.$100,000 or more.
"Eurodollar Loan means an
amount loaned to any of the
Borrowers under this Agreement
bearing interest at the Fixed
Eurodollar Rate for the
applicable Interest Period
pursuant to the applicable
Notice of Borrowing. Borrowings
of Eurodollar Loans shall be in
an aggregate principal amount of
U.S.$2,000,000 or any larger
integral multiple of
U.S.$100,000.
"Event of Default has the
meaning set forth in Section
13.1.
"Expense Ratio has the
meaning set forth in Section
12.4.
"Facility Fee has the
meaning set forth in Section
2.6.
"Federal Funds Effective
Rate means, for any day, an
interest rate per annum equal to
the weighted average of the
rates on overnight Federal funds
transactions with members of the
Federal Reserve System arranged
by Federal funds brokers, as
published for such day by the
Federal Reserve Bank of New
York, or, if such rate is not so
published for any day which is a
Business Day, the average of the
quotations for such day on such
transactions received by BofA
from three Federal funds brokers
of recognized standing selected
by it. In the case of a day
which is not a Business Day, the
Federal Funds Effective Rate for
such day shall be the Federal
Funds Effective Rate for the
next preceding Business Day.
"First Bank means First Bank
National Association.
"Fixed BA Rate means, for
any BA Loan, a rate per annum
equal to the sum of the BA Rate
for such Loan plus the
Eurocurrency Margin.
"Fixed CD Rate means, for
any CD Loan, a rate per annum
equal to the sum of the
applicable Adjusted CD Rate plus
the CD Margin. The Adjusted CD
Rate and, therefore, the Fixed
CD Rate shall be adjusted
automatically on and as of the
effective date of any change in
the CD Reserve Percentage or the
CD Margin.
The following example will
illustrate the calculation of a
Fixed CD Rate. Assuming a CD
Base Rate for a 30-day Interest
Period of 5.27%, a CD Reserve
Percentage of 0%, an Assessment
Rate of 0%, and a CD Margin of
.325 of 1%, the Fixed CD Rate
would equal:
.0527
----------- + 0 + .00325 =
1.00 - 0
.05595 = 5.60%
"Fixed Eurodollar Rate
means, for any Eurodollar Loan,
a rate per annum equal to the
sum of (a) the quotient obtained
(rounded upwards, if necessary,
to the next higher 1/100 of 1%)
by dividing (i) the applicable
Interbank Offered Rate by
(ii) 1.00 minus the Eurocurrency
Reserve Percentage, plus (b) the
Eurocurrency Margin. The Fixed
Eurodollar Rate shall be
adjusted automatically on and as
of the effective date of any
change in the Eurocurrency
Reserve Percentage or the
Eurocurrency Margin.
The following example will
illustrate the calculation of a
Fixed Eurodollar Rate. Assuming
an Interbank Offered Rate for a
one month Interest Period of
5.375%, a Eurocurrency Reserve
Percentage of 0%, and a
Eurocurrency Margin of .200 of
1%, the Fixed Eurodollar Rate
would equal:
.05375
----------- + .00200 = .05575
1.00 - 0
= 5.58%
"Fixed G-7 Rate means, for
any G-7 Currency Loan, a rate
per annum equal to the sum of
(a) the quotient obtained
(rounded upwards, if necessary,
to the next higher 1/100 of 1%)
by dividing (i) the applicable
Interbank Offered Rate by (ii)
1.00 minus the Eurocurrency
Reserve Percentage plus (b) the
Eurocurrency Margin. The Fixed
G-7 Rate shall be adjusted
automatically on and as of the
effective date of any change in
the Eurocurrency Reserve
Percentage or the Eurocurrency
Margin.
The following example will
illustrate the calculation of a
Fixed G-7 Rate. Assuming an
Interbank Offered Rate for a one
month Interest Period of 3%, a
Eurocurrency Reserve Percentage
of 0%, and a Eurocurrency Margin
of .200 of 1%, the Fixed G-7
Rate would equal:
.03
----------- + .00200 = .03200 =
1.00 - 0
3.2%
"Fixed Rate Loans means CD
Loans, Eurodollar Loans, G-7
Currency Loans and BA Loans.
"Funding Date means any day
designated by a Borrower as the
Business Day on which a Bid Loan
shall, subject to the terms and
conditions hereof, be made by
any Bank.
"G-7 Currency means any of
German Deutschmarks, French
Francs, British Pounds Sterling,
Japanese Yen, Canadian Dollars
or Italian Lira.
"G-7 Currency Administrative
Agent means Xxxxxx in its
capacity as agent for the Banks
hereunder with respect to
Borrowings denominated in G-7
Currencies, and any successor
thereto pursuant to Section
14.9.
"G-7 Currency Bid" means the
Margin specified in basis points
with respect to a particular
Interest Period in a Bid
submitted in response to a Bid
Loan Request for a G-7 Currency
Bid Loan.
"G-7 Currency Bid Loan means
an amount loaned to any of the
Borrowers in a G-7 Currency
under this Agreement that bears
interest at a rate determined
pursuant to Article VIII.
"G-7 Currency Letters of
Credit has the meaning set
forth in Section 9.1.
"G-7 Currency Loan means an
amount loaned to any of the
Borrowers under this Agreement
bearing interest at the Fixed
G-7 Rate for the applicable
Interest Period pursuant to the
applicable Notice of Borrowing;
provided that Canadian Loans
shall not be G-7 Currency Loans.
Borrowings of G-7 Currency Loans
shall be in an aggregate
Equivalent Amount of at least
U.S. $2,000,000 and an integral
multiple of 100,000 units of the
applicable G-7 Currency.
"G-7 Currency Submission
Deadline has the meaning set
forth in Section 8.3.
"Guarantee by any Person
means any obligation, contingent
or otherwise, of such Person
directly or indirectly
guaranteeing any Debt of any
other Person or in any manner
providing for the payment of any
Debt of any other Person or
otherwise protecting the holder
of such Debt against loss
(whether by agreement to
keep-well, to purchase assets,
goods, securities, services, or
to take-or-pay or otherwise);
provided that the term Guarantee
shall not include endorsements
for collection or deposit in the
ordinary course of business or
amounts due contingently or
otherwise with respect to
obligations of Lake Superior
Paper Industries, a former joint
venture of Pentair, or Flambeau
Paper Corp., a former subsidiary
of Pentair. The term
"Guarantee" used as a verb has a
correlative meaning.
"Guarantor means Pentair, in
its capacity as guarantor of
Loans and Letter of Credit
Obligations of any other
Borrower pursuant to Article XVI
hereof.
"Interbank Offered Rate
means, with respect to each
Interest Period:
(i) in the case of a
Loan denominated in U.S.
Dollars or a Canadian
Loan, the average rate per
annum (rounded upwards, if
necessary, to the next
higher 1/100 of 1%)
determined by the
applicable Agent at which
deposits in U.S. Dollars
or Canadian Dollars, as
applicable, are offered to
BofA or BA Canada, as
applicable, by major banks
in the interbank
eurocurrency market at
approximately 10:00 a.m.
(Chicago time), or as soon
thereafter as practicable,
two Business Days before
the first day of such
Interest Period in an
amount approximately equal
to BofA's or BA Canada's
portion of the principal
amount of the Borrowing to
which such Interest Period
is to apply (or, in the
case of a Domestic Margin
Rate Bid Loan, in an
amount equal to the
largest Domestic Margin
Rate Bid Loan to be made
by any Bank as part of
such Borrowing) and for a
period of time comparable
to such Interest Period;
and
(ii) in the case of a
Loan denominated in a G-7
Currency, (x) the per
annum rate for deposits in
the relevant G-7 Currency
for a period of time
comparable to such
Interest Period which
appears on Telerate Page
3740 or 3750, whichever is
applicable, at
approximately 11:00 a.m.
(London time) two Business
Days before the first day
of such Interest Period or
(y) if such rate does not
appear on Telerate Page
3740 or 3750 on such day,
the average rate per annum
(rounded upwards, if
necessary, to the next
higher 1/100 of 1%)
determined by the G-7
Currency Administrative
Agent at which deposits in
such G-7 Currency are
offered to the G-7
Currency Administrative
Agent by major banks in
the London interbank
market at approximately
11:00 a.m. (London time)
two Business Days before
the first day of such
Interest Period in an
amount approximately equal
to the G-7 Currency
Administrative Agent's
portion of the principal
amount of the Borrowing to
which such Interest Period
is to apply (or, in the
case of a G-7 Currency Bid
Loan, in an amount equal
to the largest G-7
Currency Bid Loan to be
made by any Bank as part
of such Borrowing) and for
a period of time
comparable to such
Interest Period.
The references to Telerate
Page 3740 or 3750 in this
definition shall be construed to
be a reference to the relevant
page on the Telerate service or
any other service that may be
designated by the British
Bankers' Association as the
information vendor for the
purpose of displaying British
Bankers' Association Interest
Settlement Rates for the
relevant G-7 Currency.
"Interest Expense means, for
any period, the sum, without
duplication, of the consolidated
interest expense of Pentair and
its Consolidated Subsidiaries
for such period.
"Interest Period means:
(i) with respect to
each Reference Loan or
Prime Loan: a period
commencing on the date of
such Loan and ending on
the Termination Date,
provided that any Interest
Period which would
otherwise end on a day
which is not a Business
Day shall be extended to
the next succeeding
Business Day.
(ii) with respect to
each CD or BA Loan: the
period commencing on the
date of such Loan and
ending 30, 60, 90 or 180
days thereafter, as the
applicable Borrower may
elect in the applicable
Notice of Borrowing,
provided that any Interest
Period which would
otherwise end on a day
which is not a Business
Day shall be extended to
the next succeeding
Business Day.
(iii) with respect to
each Eurodollar Loan, G-7
Currency Loan, Domestic
Margin Rate Bid Loan or
G-7 Currency Bid Loan:
the period commencing on
the date of such Loan and
ending one, two, three or
six months thereafter, as
the applicable Borrower
may elect in the
applicable Notice of
Borrowing, provided that:
(A) any
Interest Period
which would
otherwise end on a
day which is not a
Business Day shall
be extended to the
next succeeding
Business Day unless
such Business Day
falls in another
calendar month, in
which case such
Interest Period
shall end on the
next preceding
Business Day; and
(B) any
Interest Period
which 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 a
calendar month.
(iv) with respect to
each Absolute Rate Bid
Loan: the period
commencing on the date of
such Loan and ending not
less than 7 or more than
180 days thereafter, as
the applicable Borrower
may elect in the
applicable Notice of
Borrowing, provided that
any Interest Period which
would otherwise end on a
day which is not a
Business Day shall be
extended to the next
succeeding Business Day.
(v) with respect to
each Daily Pricing Loan: a
period commencing on the
date of such Loan and
ending five (5) Business
Days thereafter.
"Issuing Bank shall mean any
of the Banks in its capacity as
issuer of one or more Letters of
Credit. If any letter of credit
shall be issued by any other
issuer, but confirmed by any
Bank, such Bank shall be deemed
to be the Issuing Bank with
respect to such letter of
credit.
"Lending Office means, as to
each Bank, any office, branch or
affiliate of such Bank which
shall be making or maintaining
any Loan.
"Letters of Credit shall
have the meaning set forth in
Section 9.1, and shall include
specifically any standby letter
of credit issued by another
issuer but which is confirmed by
an Issuing Bank.
"Letter of Credit
Agreements shall have the
meaning set forth in
Section 9.6.
"Letter of Credit
Obligations shall mean the
aggregate amount of all possible
drawings under all Letters of
Credit plus all amounts drawn
under any Letter of Credit and
not reimbursed by the Borrower
under the applicable Letter of
Credit Agreement.
"LIBO Rate means the offered
rate for deposits in U.S.
Dollars (rounded upwards, if
necessary, to the nearest 1/16
of 1%), for delivery of such
deposits on such day, for an
interest period of one month,
which appears on the Reuters
Screen LIBO Page as of the time
selected by the Overnight Bank
on such day. If at least two
rates appear on the Reuters
Screen LIBO Page, the rate shall
be the arithmetic mean of such
rates (rounded as provided
above). If fewer than two rates
appear, the rate may be
determined by the Overnight Bank
based on other services selected
for such purpose by the
Overnight Bank or based on rates
offered to the Overnight Bank
for U.S. Dollar deposits in the
interbank Eurodollar market.
"Reuters Screen LIBO Page for
the purpose of this definition
means the display designated as
page "LIBO on the Reuters
Monitor Money Rates Service (or
such other page as may replace
the LIBO Page on that service
for the purpose of displaying
London interbank offered rates
of major banks for U.S. Dollar
deposits).
"Lien means, with respect to
any asset, any mortgage, lien,
pledge, charge, security
interest or encumbrance of any
kind in respect of such asset.
For the purposes of this
Agreement, a Borrower or any
Subsidiary thereof shall be
deemed to own subject to a Lien
any asset which it has acquired
or holds subject to the interest
of a vendor or lessor under any
conditional sale agreement,
capital lease or other title
retention agreement relating to
such asset.
"Loan or "Loans means one or
more Loans to be made by a Bank
pursuant to Article II,
consisting of U.S. Dollar Loans
(which may be Reference Loans,
CD Loans, or Eurodollar Loans),
G-7 Currency Loans, Overnight
Loans (which may be Reference
Loans or Daily Pricing Loans),
Canadian Loans (which may be
Prime Loans, BA Loans or
Eurodollar Loans) or Bid Loans.
Because each Bank's
participation interest in each
Letter of Credit represents an
extension of credit hereunder,
whether or not drawings have
occurred under any such Letter
of Credit, the term "Loan shall
also include, for purposes of
utilization of the Commitments,
reduction of the Commitments
under Section 2.8 and all other
purposes hereunder, the
participation interest of each
Bank in each Letter of Credit.
"Majority Canadian Banks
means any group of two or more
Canadian Banks having total
Canadian Percentages of more
than 50%.
"Margin means the margin,
rounded to the nearest 1/100 of
1%, above or, if a negative
number, below the applicable
Interbank Offered Rate for a
particular Interest Period and
for a particular Domestic Margin
Rate Bid Loan amount or G-7
Currency Bid Loan amount, as the
case may be.
"Margin Rate for a Domestic
Margin Rate Bid Loan or a G-7
Currency Bid Loan means the rate
of interest per annum determined
for such Bid Loan pursuant to
Section 7.8(b) or 8.8, as
applicable.
"Material Subsidiary means
(a) each Borrower other than
Pentair and (b) each other
Subsidiary of Pentair that at
the time of determination
constitutes a "significant
subsidiary" (as such term is
defined in Regulation S-X of the
Securities and Exchange
Commission as in effect on the
date of this Agreement).
"Maximum Offer means the
maximum aggregate amount of Bid
Loans for all Interest Periods
which are offered by a Bank
pursuant to a particular Bid.
"Maximum Request means the
maximum aggregate amount of Bid
Loans requested by a Borrower
for all Interest Periods in a
single Bid Loan Request pursuant
to Section 7.1 or 8.1 (which
amount shall not be greater than
the amount permitted by Section
7.2 or 8.2, as the case may be).
"Xxxxxx" means Xxxxxx
Guaranty Trust Company of New
York.
"Non-Canadian Bank has the
meaning set forth in Section
6.5(a).
"Notes means the promissory
notes of the Borrowers in the
form of Exhibit A, evidencing
Loans hereunder. Because each
Bank's participation interest in
each Letter of Credit represents
an extension of credit
hereunder, whether or not
drawings have occurred under any
such Letter of Credit, each
Bank's participation interest
therein shall be deemed the
holding of a Note hereunder for
purposes of this Agreement
(including without limitation
Section 2.13), whether or not a
Loan is deemed to be made to
fund drawings thereunder as
contemplated by Section 9.4.
"Notice of Borrowing means a
notice complying with the
requirements of Section 3.1 with
respect to a U.S. Dollar Loan,
Section 4.1 with respect to a
G-7 Currency Loan, Section 5.1
with respect to an Overnight
Loan, Section 6.1 with respect
to Canadian Loans or a notice
accepting one or more Bids
pursuant to Section 7.4 or 8.4.
"Overnight Administrative
Agent means First Bank in its
capacity as agent with respect
to Overnight Loans, and any
successor thereto pursuant to
Section 14.9.
"Overnight Bank means First
Bank in its capacity as lender
under the Overnight Commitment.
"Overnight Commitment means
U.S.$25,000,000, as such amount
may be revised from time to time
pursuant to Section 2.8. The
Overnight Commitment is a subset
of the Total Commitment and does
not increase the total amount
available for borrowing
hereunder.
"Overnight Loan means any
Reference Loan or Daily Pricing
Loan made under Articles II and
V of this Agreement.
"Participant has the meaning
set forth in Section 15.6(d).
"Payment Office means, in
the case of each of the U.S.
Dollar Administrative Agent, the
G-7 Currency Administrative
Agent, the Overnight Bank and
the Canadian Administrative
Agent, the office or account of
such entity through which
payments are to be made and
received hereunder, as notified
to the Borrowers and the Banks
from time to time (it being
understood that an Agent may
designate different offices for
different types of Loans and/or
different currencies).
"Payment Sharing Notice
means a written notice from any
Bank to the Agents and Pentair
(i) advising them that an Event
of Default has occurred and is
continuing and (ii) directing
the Agents to allocate all
payments and other recoveries
received from or on behalf of
the Borrowers in accordance with
Section 2.18(b).
"PBGC means the Pension
Benefit Guaranty Corporation or
any entity succeeding to any or
all of its functions under
ERISA.
"Pentair means Pentair,
Inc., acting as a separate
Borrower (or as Guarantor)
hereunder, and, as the context
demands, acting as the agent for
any other Borrowers for
administrative purposes as
provided for in Section 15.9
hereof.
"Pentair Canada means
Pentair Canada, Inc., an
Ontario, Canada corporation.
"Person means an individual,
a corporation, a partnership, an
association, a trust or any
other entity or organization,
including a government or
political subdivision or an
agency or instrumentality
thereof.
"Plan means at any time an
employee pension benefit plan
which is covered by Title IV of
ERISA or subject to the minimum
funding standards under Section
412 of the Code and is either
(i) maintained by any Borrower
or any member of the Controlled
Group for employees of such
Borrower or any member of the
Controlled Group or (ii)
maintained pursuant to a
collective bargaining agreement
or any other arrangement under
which more than one employer
makes contributions and to which
any Borrower or any member of
the Controlled Group is then
making or accruing an obligation
to make contributions or has
within the preceding five plan
years made contributions.
"Prime Loan means an amount
loaned to Pentair Canada under
this Agreement bearing interest
at the Prime Rate. Borrowings
of Prime Loans shall be in an
aggregate principal amount of
Cdn.$1,000,000 or any larger
integral multiple of
Cdn.$100,000.
"Prime Rate means, for any
Prime Loan, for any day, the per
annum rate of interest in effect
for such day as publicly
announced from time to time by
BA Canada in Toronto, Ontario as
its "prime rate.
"Prior Agreements has the
meaning set forth in Section
10.3.
"Reference Loan means an
amount loaned to any of the
Borrowers under this Agreement
bearing interest at the
applicable Reference Rate.
Borrowings of Reference Loans
shall be in an aggregate
principal amount of the lesser
of (ii) U.S.$1,000,000 or any
larger integral multiple of
U.S.$100,000 or (ii) the unused
amount of the Total Commitment
or the Overnight Commitment, as
the case may be.
"Reference Rate means, for
any Reference Loan made by the
Overnight Bank as an Overnight
Loan, the rate publicly
announced from time to time by
such bank as its reference rate,
which rate may be at, above or
below the rate or rates at which
such bank lends to other
Persons. "Reference Rate means,
for any other Reference Loan or
for any other purpose herein,
for any day, a fluctuating rate
per annum equal to the greater
of (1) the rate of interest then
most recently announced by BofA
at San Francisco, California, as
its reference rate, or (2) a
rate per annum (rounded upward
to the next highest 1/8 of 1% if
not already an integral multiple
of 1/8 of 1%) equal to the
Federal Funds Effective Rate in
effect on such day plus 1/2% of
1%. If for any reason BofA
shall have determined (which
determination shall be
conclusive in the absence of
manifest error) that it is
unable to ascertain the Federal
Funds Effective Rate for any
reason (including, without
limitation, the inability or
failure of BofA to obtain
sufficient bids or publications
in accordance with the terms
hereof), the Reference Rate
shall be the rate referred to in
clause (1) until the
circumstances giving rise to
such inability no longer exist.
For purposes of this
Agreement and the Notes, each
change in the Reference Rate due
to a change in the Federal Funds
Effective Rate shall take effect
on the effective date of such
change in the Federal Funds
Effective Rate.
"Refinancing Loan means a
U.S. Dollar Loan, a G-7 Currency
Loan, an Overnight Loan or a
Canadian Loan made by a Bank
with respect to which, after
giving effect to such Loan and
the application of the proceeds
thereof, no increase results in
the aggregate outstanding
principal amount of all U.S.
Dollar Loans, G-7 Currency
Loans, Overnight Loans or
Canadian Loans, as the case may
be, made by such Bank.
"Regulatory Change means,
after the date hereof, the
adoption of any applicable law,
rule or regulation, or any
change therein, or any change in
the interpretation or
administration thereof by any
governmental authority, central
bank or comparable agency
charged with the interpretation
or administration thereof or
compliance by any Bank with any
request or directive (whether or
not having the force of law) of
any such authority, central bank
or comparable agency.
"Required Banks means at any
time Banks having at least
66-2/3% of the aggregate amount
of the Commitments or, if the
Commitments shall have been
terminated, holding at least
66-2/3% of the aggregate
Equivalent Amount of all Loans
outstanding.
"Sale of Receivables means a
sale by Pentair or a
Consolidated Subsidiary, with or
without recourse or discount, of
an interest in trade receivables
of Pentair or a Consolidated
Subsidiary pursuant to a
receivables purchase program or
a loan secured by such
receivables.
"Subsidiary means any
corporation or other entity of
which securities or other
ownership interests having
ordinary voting power to elect a
majority of the board of
directors or other persons
performing similar functions are
at the time directly or
indirectly owned by Pentair.
"Taxes has the meaning set
forth in Section 2.16.
"Termination Date means June
30, 2001 (or if such date is not
a Business Day, the next
succeeding day which is a
Business Day), as the same may
be extended pursuant to Section
2.3, or such earlier date on
which the Commitments are
terminated pursuant to Section
13.1.
"Total Commitment shall mean
the aggregate amount of the
Commitments of the Banks.
"Unfunded Vested Liabilities
means, with respect to any Plan
at any time, the amount (if any)
by which (i) the present value
of all vested nonforfeitable
benefits under such Plan exceeds
(ii) the fair market value of
all Plan assets allocable to
such benefits, all determined as
of the then most recent
valuation date for such Plan,
but only to the extent that such
excess represents a potential
liability of Pentair or any
member of the Controlled Group
to the PBGC or the Plan under
Title IV of ERISA.
"U.S. Dollar Administrative
Agent means BofA in its
capacity as agent for the Banks
hereunder with respect to U.S.
Dollar Loans, and any successor
thereto pursuant to Section
14.9.
"U.S. Dollar Letters of
Credit has the meaning set
forth in Section 9.1.
"U.S. Dollar Loans means any
Reference Loan, CD Loan or
Eurodollar Loan made under
Articles II and III of this
Agreement.
"U.S. Dollars and the sign
"U.S.$ mean lawful money of the
United States of America.
SECTION 1.2 Accounting
Terms and Determinations.
Unless otherwise specified
herein, all accounting terms
used herein shall be
interpreted, all accounting
determinations hereunder shall
be made, and all financial
statements required to be
delivered hereunder shall be
prepared in accordance with
generally accepted accounting
principles as in effect for U.S.
domiciled companies from time to
time, applied on a basis
consistent (except for changes
approved by Pentair's
independent public accountants)
with the most recent audited
consolidated financial
statements of Pentair and its
Consolidated Subsidiaries
delivered to the Banks; provided
that if Pentair notifies the
U.S. Dollar Administrative Agent
that Pentair desires to amend
any covenant in Article XII (or
any related definition) to
eliminate the effect of any
change in generally accepted
accounting principles on the
operation of such covenant (or
such definition), or the U.S.
Dollar Administrative Agent
notifies Pentair that the
Required Banks wish to amend any
such covenant (or any such
definition) for such purpose,
then Pentair's compliance with
such covenant shall be
determined (or such definition
shall be interpreted) on the
basis of generally accepted
accounting principles in effect
immediately before such change
became effective, until either
such notice is withdrawn or such
covenant (or such definition) is
amended in a manner satisfactory
to Pentair and the Required
Banks. For Borrowers who are
domiciled outside the United
States, financial statements
provided hereunder pursuant to
Section 12.1(k) shall have been
prepared in accordance with
generally accepted accounting
principles as in effect from
time to time for the
jurisdictions in which they are
domiciled, which financial
statements may, however, be
conformed to the accounting
treatment specified in the
preceding sentence.
ARTICLE II
LOANS AND ADMINISTRATION
SECTION 2.1 Application of
Articles II through IX. The
provisions of this Article II
shall apply to all Loans made by
the Banks hereunder. In
addition, the provisions of
Article III shall apply to U.S.
Dollar Loans; the provisions of
Article IV shall apply to G-7
Currency Loans; the provisions
of Article V shall apply to
Overnight Loans; the provisions
of Article VI shall apply to
Canadian Loans; the provisions
of Article VII shall apply to
Domestic Bid Loans; the
provisions of Article VIII shall
apply to G-7 Currency Bid Loans;
and the provisions of Article IX
shall apply to Letters of
Credit. The Borrowers shall
have the sole discretion,
exercisable without limitation,
to determine whether and which
kinds or types of Loans to
obtain under this Agreement,
without regard to which Banks or
which Agents may be requested to
participate as a result of the
exercise of that discretion.
SECTION 2.2 Commitments to
Lend.
(a) During the term
hereof until the
Termination Date, each
Bank severally agrees, on
the terms and conditions
set forth in this
Agreement, to make Loans
to the Borrowers, or to
permit an Issuing Bank to
issue Letters of Credit
for or on behalf of the
Borrowers, from time to
time in Equivalent Amounts
not to exceed in the
aggregate at any one time
outstanding (excluding, in
the case of the Overnight
Bank, the Overnight Loans)
the amount of its
Commitment (and, as more
fully set forth in Section
6.5 and 6.6, each
Non-Canadian Bank agrees
to purchase participations
in Canadian Loans).
(b) During the term
hereof until the
Termination Date, (i) the
Overnight Bank severally
agrees, on the terms and
conditions set forth in
this Agreement, to make
Overnight Loans to
Pentair, from time to time
in amounts not to exceed
in the aggregate at any
one time outstanding the
amount of the Overnight
Commitment and (ii) each
other Bank agrees to fund
its pro rata share of, or
purchase a participation
in, each Overnight Loan
under the circumstances,
and as more fully set
forth in, Sections 5.5,
5.6 and 5.7. Only Pentair
may be the Borrower of an
Overnight Loan.
(c) Each Borrowing
or Letter of Credit
Obligation denominated in
a G-7 Currency shall be
deemed a utilization of
the Commitments in an
amount equal to the
Equivalent Amount thereof
as determined from time to
time pursuant to Section
2.15(a).
(d) With the
exception of Overnight
Loans described in Article
V hereof and Bid Loans
described in Articles VII
and VIII hereof, each
Borrowing shall be made
from the several Banks
ratably in proportion to
their respective
Commitment Percentages;
provided that Borrowings
of Canadian Loans shall be
made from the several
Canadian Banks ratably in
accordance with their
Canadian Percentages.
(e) At no time shall
the sum of the principal
Equivalent Amount of all
Loans and Letter of Credit
Obligations exceed the
Total Commitment; at no
time shall the principal
Equivalent Amount of all
Canadian Loans exceed the
Canadian Commitment; and
at no time shall the
principal amount of all
Overnight Loans exceed the
Overnight Commitment.
(f) At no time shall
the sum of the principal
amount of all U.S. Dollar
Loans plus the principal
amount of all Domestic Bid
Loans plus the amount of
all Letter of Credit
Obligations with respect
to U.S. Dollar Letters of
Credit plus the principal
Equivalent Amount of all
Canadian Loans (determined
as of the most recent
applicable Computation
Date) plus the principal
amount of all Overnight
Loans exceed the North
American Sublimit (and
each of the U.S. Dollar
Administrative Agent, the
Overnight Administrative
Agent and the Canadian
Administrative Agent
agrees that it will,
promptly upon the request
of any other Agent,
provide such other Agent
with a calculation of the
outstanding Equivalent
Amount of all Loans and
Letter of Credit
Obligations administered
by such Agent). At no
time shall the sum of the
principal Equivalent
Amount of all G-7 Currency
Loans plus the principal
Equivalent Amount of all
G-7 Currency Bid Loans
plus the Equivalent Amount
of all Letter of Credit
Obligations with respect
to G-7 Currency Letters of
Credit, in each case
determined as of the most
recent applicable
Computation Date, exceed
the G-7 Currency Sublimit.
For purposes of the
foregoing, (i) the North
American Sublimit shall
initially be
U.S.$150,000,000, (ii) the
G-7 Currency Sublimit
shall initially be
U.S.$125,000,000 and
(iii) subject to the first
two sentences of this
clause (f), Pentair may
from time to time change
the amount of each such
Sublimit by giving notice
of such change to the
Agents (which notice shall
specify the effective date
of such change); provided
that (x) any such change
shall become effective
only upon receipt by all
of the Agents of such
notice; (y) each such
Sublimit shall at all
times be an integral
multiple of
U.S.$1,000,000; and (z)
the total of such
Sublimits shall at all
times be equal to the
Total Commitment.
Within the foregoing limits, the
Borrowers may borrow under this
Section 2.2, repay Loans under
Section 2.4, and reborrow at any
time during the term hereof.
SECTION 2.3 Extension of
Termination Date. On or not
more than 30 days before May 1,
1998, and on or not more than 30
days before May 1 of every
second year thereafter, Pentair
may, by written notice to each
Bank (with copies to the
Agents), request that the
Termination Date be extended for
an additional two years,
effective as of the following
June 30; provided, however, that
no such request will be
considered if the Termination
Date was not extended upon any
previous request. The Banks
will indicate their acceptance
or rejection of any requested
extension as follows:
(a) If all Banks
notify Pentair (with
copies to the Agents) in
writing within 30 days
after receipt of notice of
a requested extension of
their acceptance of the
requested extension, the
extension shall be deemed
to have been granted.
(b) If Banks which
hold in the aggregate less
than one-third of the
outstanding Commitments of
all of the Banks notify
Pentair (with copies to
the Agents) in writing
within 30 days after
receipt of notice of a
requested extension that
they consent to the
requested extension, the
extension shall be deemed
to have been rejected.
(c) If Banks which
hold in the aggregate
one-third or more but less
than all of the
outstanding Commitments of
all of the Banks notify
Pentair (with copies to
the Agents) in writing
within 30 days after
receipt of notice of a
requested extension that
they consent to the
requested extension, the
extension shall be deemed
to have been rejected
unless the Banks which
consented to the requested
extension, or any
combination of the
consenting Banks, agree,
within 15 days after
receipt from Pentair of
written notice that one or
more Banks have consented
to the extension, to
increase their
Commitment(s) by the
amount of the aggregate
Commitments of the
non-consenting Banks. If
the consenting Banks, or
any combination of them,
agree to increase their
Commitments by the
aggregate amount of the
Commitments of the
non-consenting Banks, the
requested extension shall
be deemed to have been
granted and the
Commitments of the Banks
altered as follows:
(1) If only
one Bank agrees to
increase its
Commitment, the
Commitment of such
Bank shall be
increased as of the
effective date of
the extension by
the amount of the
Commitments of the
non-consenting
Banks. If more
than one Bank
agrees to increase
their Commitments,
the Commitments of
the non-consenting
Banks shall be
allocated among the
Banks desiring
increased
Commitments in such
proportion or
proportions as
Pentair in its sole
discretion elects;
provided, however,
that no Bank shall
be required to
accept an increase
in its Commitment
which is larger
than the increase
to which it has
previously agreed.
(2) On the
effective date of
the extension of
the Termination
Date, the Banks
which have elected
to increase their
Commitments shall
make Loans to the
Borrowers, subject
to the terms of
Section 10.1, in
the amounts and in
the currencies of
the aggregate
principal balance
of the Notes
payable to the
non-consenting
Banks. Each
consenting Bank
shall share in such
Loans in the same
proportion as the
amount by which its
Commitment is
increased bears to
the aggregate
increases in the
Commitments of all
of the consenting
Banks. The
proceeds of all
Loans made pursuant
to this Section
2.3(c) shall be
paid by the Banks
making the same to
the applicable
Agent which shall
promptly remit the
proceeds of such
Loans to the
non-consenting
Banks in repayment
of the Notes
payable to such
Banks (and the
applicable
Borrowers shall
concurrently pay to
the non-consenting
Banks any amount
payable pursuant to
Section 2.9 as if
such Borrowers had
prepaid the Loans
of such
non-consenting
Banks on such
date). Effective
as of the effective
date of the
extension of the
Termination Date,
the Commitment(s)
of the
non-consenting
Bank(s) shall
terminate.
SECTION 2.4 Maturity. Each
Loan shall be paid in full by
the applicable Borrower on the
earlier of (i) the last day of
the Interest Period applicable
thereto or (ii) the Termination
Date.
SECTION 2.5 Notes.
(a) The Loans of
each Bank shall be
evidenced by Notes
executed by the Borrowers
and payable to the order
of such Bank for the
account of its Lending
Office. If requested by
any Bank, Pentair Canada
will execute a separate
Note payable to the branch
or affiliate of such Bank
which is acting as a
Canadian Lender hereunder.
(b) Each Bank may
record, and prior to any
transfer of its Notes may
endorse, on the schedules
forming a part of its Note
appropriate notations to
evidence the date and
amount of each Loan made
by it and the date and
amount of each payment of
principal made by the
Borrowers with respect
thereto and, in the case
of Loans denominated in a
G-7 Currency, the currency
of such Loans. Each Bank
is hereby irrevocably
authorized by the
Borrowers so to record and
endorse and to attach to
and make a part of its
Note a continuation of any
such schedule as and when
required, but failure to
so record or endorse any
notation shall not affect
the Borrowers' obligations
hereunder or under the
Notes.
SECTION 2.6 Facility Fees.
(a) During the term
of this Agreement, the
Borrowers shall pay to the
U.S. Dollar Administrative
Agent for the account of
each Bank a Facility Fee
on such Bank's Commitment
in U.S. Dollars at a rate
per annum determined as
follows:
Adjusted
Debt to Facility
Total Capital Fee
.40 or less .100 of 1%
.40 but
not over .55 .125 of 1%
over .55 .150 of 1%
(b) The Borrowers
shall make each payment of
Facility Fees hereunder
not later than 11:00 a.m.
(Chicago time) on the date
when due, in federal or
other funds immediately
available to the U.S.
Dollar Administrative
Agent, at its Payment
Office. Such Facility
Fees shall accrue from and
including the date of the
first Borrowing under this
Agreement to but excluding
the Termination Date and
shall be payable quarterly
in arrears on the last day
of each calendar quarter
during the term hereof.
Facility Fees shall be
computed on the basis of a
year of 365 days (or 366
days in a leap year) and
paid for the actual number
of days elapsed, including
the first day but
excluding the last day.
SECTION 2.7 Duration of
Interest Periods. The duration
of each Interest Period shall be
as specified in the applicable
Notice of Borrowing.
SECTION 2.8 Termination or
Reduction of Commitments.
(a) Pentair may,
upon at least three
Business Days' notice to
the Agents, terminate
entirely at any time, or
proportionately reduce
from time to time by an
aggregate amount of
U.S.$5,000,000 or any
larger multiple of
U.S.$1,000,000, the
aggregate amount of the
Commitments in excess of
the sum of (i) the
principal Equivalent
Amount of all outstanding
Loans and (ii) the
Equivalent Amount of all
Letter of Credit
Obligations then
outstanding.
(b) If, after giving
effect to any reduction of
the Commitments pursuant
to clause (a) above, the
Overnight Commitment would
exceed the Total
Commitment, the Overnight
Commitment shall be
immediately and
automatically reduced to
the amount of the Total
Commitment.
(c) If, after giving
effect to any reduction of
the Commitments pursuant
to clause (a) above, the
Canadian Commitment would
exceed the Total
Commitment, the Canadian
Commitment shall be
automatically and
immediately reduced to the
amount of the Total
Commitment.
(d) If the
Commitments are terminated
in their entirety, all
accrued Facility Fees
shall be payable on the
effective date of such
termination. After a
Commitment has been
reduced or terminated, it
may not be reinstated,
except as provided in
Section 2.3(c).
SECTION 2.9 Funding Losses.
If a Borrower makes any payment
of principal with respect to any
CD, Eurodollar, G-7 Currency, BA
or Bid Loan, as the case may be,
for any reason on any day other
than the last day of an Interest
Period applicable thereto, or if
a Borrower fails to borrow any
CD, Eurodollar, G-7 Currency, BA
or Bid Loan after a Notice of
Borrowing has been given to any
Bank in accordance with Section
3.1, 4.1, 5.1, 6.1, 7.4 or 8.4,
such Borrower shall reimburse
each applicable Bank on demand
for any resulting loss or
expense incurred by it,
including without limitation any
loss incurred in obtaining,
liquidating or employing
deposits from third parties, but
excluding loss of margin for the
period after any such payment;
provided that such Bank shall
have delivered to Pentair a
certificate as to the amount of
such loss or expense, which
certificate shall be conclusive
in the absence of manifest
error.
SECTION 2.10 Computation of
Interest. Interest on
Reference, Prime and BA Loans
shall be computed on the basis
of a year of 365 days (or 366
days in a leap year) and paid
for the actual number of days
elapsed and including the first
day but excluding the last day
thereof. Interest on CD, Daily
Pricing, Eurodollar, G-7
Currency and Bid Loans shall be
computed on the basis of a year
of 360 days and paid for the
actual number of days elapsed,
calculated as to each Interest
Period from and including the
first day thereof to but
excluding the last day thereof.
For purposes of the Interest Act
(Canada), where in this
Agreement a rate of interest on
a Loan to Pentair Canada is to
be calculated on a year of 360
days, the yearly rate of
interest to which such rate is
equivalent is such rate
multiplied by the number of days
in the year for which such
calculation is made and divided
by 360.
SECTION 2.11 Lending
Unlawful. In the event that any
Regulatory Change shall make it
unlawful or impossible for any
Bank to make, maintain or fund
any Loan as a Eurodollar Loan, a
G-7 Currency Loan, a Domestic
Margin Rate Bid Loan, a G-7
Currency Bid Loan or a BA Loan,
the obligation of such Bank
under Section 2.2 to make or
maintain any Loan as a
Eurodollar Loan, a G-7 Currency
Loan, a Domestic Margin Rate Bid
Loan, a G-7 Currency Bid Loan or
a BA Loan shall, upon the
happening of such Regulatory
Change, forthwith terminate and
such Bank shall, by telephonic
notice confirmed in writing to
the applicable Borrower and the
Agents, declare that such
obligation has so terminated.
Upon receipt of such notice, the
applicable Borrower shall
immediately prepay in full the
then outstanding principal
amount of each such Eurodollar
Loan, G-7 Currency Loan,
Domestic Margin Rate Bid Loan,
G-7 Currency Bid Loan or BA Loan
together with accrued interest.
Concurrently with prepaying any
such Eurodollar Loan, G-7
Currency Loan or BA Loan, such
Borrower shall borrow (a) in the
case of prepayment of a
Eurodollar Loan, a Reference
Loan (or, if such Loan is to
Pentair Canada, a Prime Loan) in
an equal principal amount, (b)
in the case of prepayment of a
G-7 Currency Loan, a replacement
Loan in the applicable G-7
Currency bearing interest at a
rate equal to the sum of the
Eurocurrency Margin plus such
Bank's cost of funds for
obtaining such G-7 Currency to
make such Loan for the
applicable Interest Period, as
determined by such Bank in its
discretion, and (c) in the case
of prepayment of a BA Loan, a
Prime Loan in an equal principal
amount. In addition, so long as
such circumstances shall
continue, concurrently with any
Borrowing of Eurodollar Loans,
G-7 Currency Loans or BA Loans,
as the case may be, such Bank
shall (a) in the case of a
Borrowing of Eurodollar Loans,
make a Reference Loan (or if
such Loan is to Pentair Canada,
a Prime Loan) in an amount equal
to its pro rata share of such
Borrowing, (b) in the case of a
Borrowing of G-7 Currency Loans,
make a replacement Loan in the
applicable G-7 Currency at a
rate per annum equal to the sum
of the Eurocurrency Margin plus
such Bank's cost of funds for
obtaining such G-7 Currency to
make such Loan for the
applicable Interest Period, as
determined by such Bank in its
discretion, and (c) in the case
of a Borrowing of BA Loans, make
a Prime Loan in an amount equal
to its pro rata share of such
Borrowing. If circumstances
subsequently change so that such
Bank shall no longer be so
affected, it shall so notify
Pentair and the other Banks,
whereupon the obligation of such
Bank under Section 2.2 to make
or maintain Eurodollar Loans,
G-7 Currency Loans or BA Loans
shall be reinstated.
SECTION 2.12 Funds
Unavailable. Notwithstanding
any other provision of this
Agreement, if, prior to the
first day of the Interest Period
for a CD, Eurodollar, G-7
Currency or BA Loan, any Bank
(or, in the case of clause (b)
below, the applicable Agent)
shall determine for any reason
whatsoever (which determination
shall be conclusive and binding
on the applicable Borrower),
that:
(a) deposits in the
applicable currency in the
relevant amount and for
the relevant Interest
Period are not available
to such Bank in the
relevant market, or
(b) by reason of
circumstances affecting
the relevant market,
adequate means do not
exist for ascertaining the
interest rate applicable
hereunder to such CD,
Eurodollar, G-7 Currency
or BA Loan,
then such Bank shall promptly
give notice to the applicable
Borrower and the other Banks of
such determination, and the
obligation of such Bank (or, in
the case of clause (b) above, of
all Banks) under Section 2.2 to
make or maintain any Loan as a
CD, Eurodollar, G-7 Currency or
BA Loan, as the case may be,
shall, upon such notification,
forthwith terminate. So long as
the circumstances described in
clause (a) above shall continue,
concurrently with any Borrowing
of CD, Eurodollar or G-7
Currency Loans, as the case may
be, the affected Bank shall (a)
in the case of a Borrowing of CD
or Eurodollar Loans, make a
Reference Loan (or, if such Loan
is to Pentair Canada, a Prime
Loan) in an amount equal to its
pro rata share of such
Borrowing, (b) in the case of a
Borrowing of G-7 Currency Loans,
make a replacement Loan in the
applicable G-7 Currency at a
rate per annum equal to the sum
of the Eurocurrency Margin plus
such Bank's cost of funds for
obtaining such G-7 Currency to
make such Loan for the
applicable Interest Period, as
determined by such Bank in its
discretion, and (c) in the case
of a Borrowing of BA Loans, make
a Prime Loan in an amount equal
to its pro rata share of such
Borrowing. If circumstances
subsequently change so that such
Bank shall no longer be so
affected, such Bank shall so
notify Pentair and the other
Banks, whereupon the obligation
of such Bank under Section 2.2
to make or maintain CD,
Eurodollar or G-7 Currency Loans
(whichever was so terminated and
is then available) shall be
reinstated.
SECTION 2.13 Increased
Costs and Reduced Returns.
(a) If, after the
date hereof, the adoption
of any applicable law,
rule or regulation, or any
change therein, or any
change in the
interpretation or
administration thereof by
any governmental
authority, central bank or
comparable agency charged
with the interpretation or
administration thereof or
compliance by the Banks
(or their Lending Offices)
with any request or
directive (whether or not
having the force of law)
of any such authority,
central bank or comparable
agency:
(i) shall subject
any Bank to any
tax, duty or other
charge with respect
to (1) its
obligation to make
Fixed Rate Loans,
(2) such Loans, or
(3) its Notes, or
shall change the
basis of taxation
of payments to such
Bank of the
principal of or
interest on its
Fixed Rate Loans or
in respect of any
other amount due
under this
Agreement in
respect of such
Loans or its
obligation to make
Fixed Rate Loans
(except for changes
in the taxation of
the overall net
income of such
Bank); or
(ii) shall impose,
modify or deem
applicable any
reserve (including,
without limitation,
any imposed by the
Board of Governors
of the Federal
Reserve System, but
excluding any
included in the
Eurocurrency
Reserve
Percentage),
special deposit or
similar requirement
against assets of,
or deposits with or
for the account of,
or credit extended
by, such Bank or
shall impose on
such Bank or the
interbank
eurocurrency market
any other condition
affecting (1) its
obligation to make
Fixed Rate Loans,
(2) its Loans or
(3) its Notes; or
(iii) shall impose,
modify or deem
applicable any tax,
reserve, special
deposit or similar
requirement against
or with respect to
or measured by
reference to
Letters of Credit
issued or to be
issued hereunder or
participations in
such Letters of
Credit;
and the result of any of
the foregoing is to
increase the cost to such
Bank of making or
maintaining any such Loan
or issuing, maintaining or
participating in any
Letter of Credit, or to
reduce the amount of any
sum received or receivable
by such Bank under this
Agreement or under its
Notes with respect any
such Loan or any Letter of
Credit, by an amount
deemed by such Bank to be
material, then, within 15
days after demand by such
Bank, the Borrowers agree
to pay to such Bank such
additional amount or
amounts as will compensate
it for such increased cost
or reduction.
(b) If, after the
date hereof, any Bank
shall have determined that
the adoption of any
applicable law, rule or
regulation regarding
capital adequacy, or any
change therein, or any
change in the
interpretation or
administration thereof by
any governmental
authority, central bank or
comparable agency charged
with the interpretation or
administration thereof, or
compliance by such Bank
(or any corporation
controlling such Bank)
with any request or
directive regarding
capital adequacy (whether
or not having the force of
law) of any such
authority, central bank or
comparable agency, has or
would have the effect of
reducing the rate of
return on such Bank's (or
such controlling
corporation's) capital as
a consequence of its
obligations hereunder to a
level below that which
such Bank (or such
controlling corporation)
could have achieved but
for such adoption, change
or compliance (taking into
consideration such Bank's
(or such controlling
corporation's) policies
with respect to capital
adequacy) by an amount
deemed by such Bank to be
material, then from time
to time, within 15 days
after demand by such Bank,
the Borrowers shall pay to
such Bank such additional
amount or amounts as will
compensate for such
reduction.
(c) Each Bank will
promptly notify Pentair of
any event of which it has
knowledge, occurring after
the date hereof, which
will entitle such Bank to
compensation pursuant to
this Section 2.13 and will
designate a different
Lending Office (with
notice of such designation
provided to the Agents) if
such designation will
avoid the need for, or
reduce the amount of, such
compensation and will not,
in the sole judgment of
such Bank, be otherwise
disadvantageous to such
Bank. A certificate of
each Bank claiming
compensation under this
Section 2.13 and setting
forth the additional
amount or amounts to be
paid to it hereunder shall
be conclusive in the
absence of manifest error.
In determining such
amount, each Bank may use
any reasonable averaging
and attribution methods.
SECTION 2.14 Adjustments to
Margins and Facility Fees. The
CD Margin, the Eurocurrency
Margin and the percentage
applicable for calculating
Facility Fees shall (i)
initially be based upon the
Adjusted Debt to Total Capital
Ratio as of June 30, 1996 and
(ii) thereafter be adjusted, to
the extent applicable, 50 days
(or, in the case of the last
fiscal quarter of any fiscal
year, 95 days) after the end of
each fiscal quarter of Pentair
based on the Adjusted Debt to
Total Capital Ratio as of the
last day of such fiscal quarter;
provided that if Pentair fails
to deliver the financial
statements and compliance
statement required by Section
12.1(a) or (b) and Section
12.1(c) by the 50th (or, if
applicable, the 95th) day after
any fiscal quarter, the Adjusted
Debt to Total Capital Ratio
shall be deemed to be greater
than 0.55 until such statements
and certificate are delivered.
SECTION 2.15 Currency
Exchange Fluctuations.
(a) The G-7 Currency
Administrative Agent will
determine the Equivalent
Amount of (i) any
Borrowing of G-7 Currency
Loans and G-7 Currency Bid
Loans as of the requested
Borrowing Date, (ii) any
G-7 Letter of Credit as of
the requested date of
issuance thereof and (iii)
each outstanding Borrowing
of G-7 Currency Loans and
G-7 Currency Bid Loans and
all Letter of Credit
Obligations in respect of
G-7 Currency Letters of
Credit as of the last
Business Day of each
month.
(b) The U.S. Dollar
Administrative Agent will
determine the Equivalent
Amount of (i) any
borrowing of Canadian
Loans as of the requested
Borrowing Date and
(ii) each outstanding
Borrowing of Canadian
Loans as of the last
Business Day of each
month.
(c) On the last
Business Day of each
month, each Agent will
notify the U.S. Dollar
Administrative Agent of
the aggregate Equivalent
Amount of all Loans and
Letters of Credit
outstanding under the
facilities administered by
such Agent.
(d) If on any
Computation Date the
aggregate Equivalent
Amount of all outstanding
Loans plus the aggregate
Equivalent Amount of all
Letter of Credit
Obligations exceeds the
Total Commitment, one or
more of the Borrowers
shall immediately prepay
one or more Loans in an
amount sufficient to
eliminate such excess.
SECTION 2.16 Taxes.
(a) All payments
made by any Borrower or
the Guarantor, as the case
may be, of principal of
and interest on any Loans
or of fees or other
amounts payable hereunder
are payable without
deduction for or on
account of any present or
future taxes, duties or
other charges (except for
franchise taxes and taxes
based on income levied by
the jurisdiction in which
the applicable Lending
Office of a Bank is
located or under whose law
such Bank is incorporated)
levied or imposed by the
government of any
jurisdiction or by any
political subdivision or
taxing authority thereof
or therein through
withholding or deduction
with respect to any such
taxes, duties or other
charges (hereinafter
called, with such
exceptions, "Taxes"). If
any Taxes are so levied or
imposed, the applicable
Borrower or the Guarantor,
as the case may be, will
pay additional interest or
will make additional
payments in such amounts
so that every net payment
of principal of and
interest on such Loans and
of other amounts payable
hereunder, after
withholding or deduction
for or on account of any
Taxes (including Taxes on
any additional amounts
payable hereunder), will
not be less than the
amount otherwise payable
but for such withholding
or deduction. The
applicable Borrower or the
Guarantor, as the case may
be, shall furnish to each
Bank certified copies of
official receipts
evidencing the payment by
such Borrower or the
Guarantor, as the case may
be, of all Taxes so levied
or imposed within 45 days
after the date any such
payment is due pursuant to
applicable law. In
addition, each Borrower
and the Guarantor, as the
case may be, will
indemnify and hold
harmless each Bank against
and reimburse each Bank
upon demand for the amount
of any Taxes so levied or
imposed on and paid by
such Bank. The agreements
of the Borrowers and the
Guarantor under this
subsection (a) shall
survive the repayment and
cancellation of all Loans
and the termination of
this Agreement.
(b) Each Canadian
Bank agrees that it will,
no later than the date of
the first payment of
interest by Pentair Canada
hereunder (or, in the case
of a Canadian Bank which
becomes a party hereto
after such date, the date
upon which such Bank
becomes a party hereto),
deliver to the Canadian
Administrative Agent and
to Pentair Canada an
instrument in writing
certifying one of the
following:
(i) that such
Canadian Bank is
not a non-resident
of Canada for the
purposes of Part
XIII of the Income
Tax Act (Canada)
and that it is the
sole beneficial
owner of payments
of principal of and
interest on its
Canadian Loans
under this
Agreement;
(ii) its
jurisdiction of
incorporation and
residence for tax
purposes, that it
is the sole
beneficial owner of
payments of
principal of and
interest on its
Canadian Loans
under this
Agreement and the
rate of withholding
tax applicable to
any payment of
interest to it
pursuant to any
applicable tax
conventions between
Canada, on the one
hand, and its
jurisdiction of
residence for tax
purposes, on the
other hand; or
(iii) its
jurisdiction of
incorporation and
residence for tax
purposes, the names
of the beneficial
owners of payments
of principal of and
interest on its
Canadian Loans
under this
Agreement, the
residence for tax
purposes of each of
such beneficial
owners and the rate
of withholding tax
applicable to any
payment of interest
in respect of each
beneficial owner
pursuant to any
applicable tax
convention between
Canada, on the one
hand, and the
jurisdiction of
residence for tax
purposes of each
beneficial owner,
on the other hand;
and undertaking to advise
Pentair Canada and the
Canadian Administrative
Agent of any changes in
respect of (i), (ii) or
(iii), as the case may be
(provided that no Canadian
Bank shall be required to
notify Pentair Canada or
the Canadian
Administrative Agent of
any change resulting
solely from the purchase
of participations in
Canadian Loans pursuant to
Section 6.5). In
addition, each Canadian
Bank shall, promptly upon
Pentair Canada's or the
Canadian Administrative
Agent's reasonable request
to that effect, deliver to
Pentair Canada or the
Canadian Administrative
Agent (as the case may be)
such other instruments in
writing, forms or similar
documentation as may be
required from time to time
by any applicable law,
treaty, rule or regulation
or the official
interpretation of any such
law, treaty, rule or
regulation by any
governmental authority
charged with the
interpretation or
administration thereof
(whether or not having the
force of law) in order to
establish such Canadian
Bank's tax status for
withholding purposes. If
the Canadian
Administrative Agent
receives a request from
Revenue Canada Customs,
Excise and Taxation or
another taxing authority
to provide additional
information concerning the
withholding tax status of
any Canadian Bank, such
Canadian Bank shall (upon
notice of such request
from the Canadian
Administrative Agent) use
reasonable efforts to
obtain and deliver such
information to such taxing
authority and the Canadian
Administrative Agent.
SECTION 2.17 Substitution
of Banks. Upon the receipt by
any Borrower from any Bank of a
claim for compensation under
Section 2.13, 2.16(a) or 4.6 or
a notice of the type described
in Section 2.11 or 2.12, Pentair
may: (i) designate a
replacement bank or financial
institution (a "Replacement
Bank") to acquire and assume all
or a ratable part of all of such
affected Bank's Loans and
Commitment; and/or (ii) request
one or more of the other Banks
to acquire and assume all or
part of such affected Bank's
Loans and Commitment. Any
designation of a Replacement
Bank under clause (i) shall be
subject to the prior written
consent of each Agent and each
Issuing Bank which has any
Letter of Credit outstanding
(which consents shall not be
unreasonably withheld).
SECTION 2.18 Order and
Proration of Payments.
(a) Whenever any
payment received by any
Agent by or on behalf of
any Borrower to be
distributed to the Banks
(or any of them) is
insufficient to pay in
full the amounts then due
and payable to the Banks,
and such Agent has not
received a Payment Sharing
Notice, such payment shall
be distributed to the
Banks (and for purposes of
this Agreement shall be
deemed to have been
applied by the Banks,
notwithstanding the fact
that any Bank may have
made a different
application in its books
and records) in the
following order: first,
to the payment of the
principal amount of the
Loans made to such
Borrower which are then
due and payable and to the
reimbursement obligations
of such Borrower then due
in respect of any Letter
of Credit, ratably among
the Banks in accordance
with the aggregate
principal amount of such
Loans and reimbursement
obligations owed to each
Bank; second, to the
payment of interest then
due and payable on the
Loans made to such
Borrower and on the
reimbursement obligations
of such Borrower in
respect of Letters of
Credit, ratably among the
Banks in accordance with
the aggregate amount of
interest owed by such
Borrower to each Bank;
third, to the payment of
the fees payable by such
Borrower under Section
2.6, ratably among the
Banks in accordance with
the aggregate amount of
such fees owed to each
Bank; and fourth, to the
payment of any other
amounts payable by such
Borrower under this
Agreement, ratably among
the Banks in accordance
with the aggregate amount
of such payments owed to
each Bank.
(b) After any Agent
has received a Payment
Sharing Notice, all
payments received by such
Agent by or on behalf of
any Borrower to be
distributed to the Banks
shall be distributed to
the Banks (and for
purposes of this Agreement
shall be deemed to have
been applied by the Banks,
notwithstanding the fact
that any Bank may have
made a different
application in its books
and records) in the
following order: first,
to the payment of amounts
payable by such Borrower
under Section 15.3,
ratably among the Agents
and the Banks in
accordance with the
aggregate amount of such
payments owed to each
Agent and each Bank;
second, to the payment of
fees payable by such
Borrower under Section
2.6, ratably among the
Banks in accordance with
the aggregate amount of
such fees owed to each
Bank; third, to the
payment of the principal
amount of and interest
accrued on the Loans to
such Borrower, the
reimbursement obligations
of such Borrower in
respect of Letters of
Credit (including
contingent obligations in
respect of undrawn Letters
of Credit) and, in the
case of Pentair, its
obligations as Guarantor
pursuant to Article XVI
hereof, regardless of
whether any such amount is
then due and payable,
ratably among the Banks in
accordance with the
aggregate amount of Loans,
reimbursement obligations
and accrued interest owed
by such Borrower
(including, in the case of
Pentair, its obligations
as Guarantor) to each
Bank; and fourth, to the
payment of any other
amount payable by such
Borrower under this
Agreement, ratably among
the Banks in accordance
with the amount owed by
such Borrower to each
Bank. Any amount to be
distributed pursuant to
clause third of the first
sentence of this
subsection (b) for
application to contingent
obligations in respect of
undrawn Letters of Credit
shall be held by the U.S.
Dollar Administrative
Agent (in the case of U.S.
Dollar Letters of Credit)
or the G-7 Currency
Administrative Agent (in
the case of G-7 Currency
Letters of Credit) as cash
collateral hereunder. If
any Letter of Credit is
thereafter drawn upon, the
applicable Agent shall
distribute to the Issuing
Bank an amount equal to
the lesser of the
Equivalent Amount of such
draw and the amount of the
cash collateral held by
such Agent pursuant to the
preceding sentence. If
any Letter of Credit
expires or terminates or
the amount available for
drawing thereunder is
reduced and, after giving
effect to such expiration,
termination or reduction,
the amount of cash
collateral held by the
applicable Agent pursuant
to the second preceding
sentence exceeds the
aggregate undrawn
Equivalent Amount of all
then-outstanding Letters
of Credit, such excess
shall promptly be applied
by the applicable Agent in
the manner and priority
set forth in clauses
first, second, third and
fourth of the first
sentence of this
subsection (b).
(c) If, other than
as expressly provided
elsewhere herein, any Bank
shall obtain any payment
or other recovery (whether
voluntary, involuntary, by
application of offset,
enforcement of security or
otherwise) on account of
principal of or interest
on any Loan or any
participation therein, any
participation in any
Letter of Credit or any
fees in excess of the
share of payments and
other recoveries
(exclusive of payments or
recoveries under Section
2.13, 2.16(a) or 4.6) such
Bank would have received
if such payment or
recovery had been
distributed pursuant to
the provisions of
subsection 2.18(a) or (b)
(whichever is applicable
at the time of such
payment or other
recovery), such Bank shall
purchase from the other
Banks, in a manner to be
reasonably specified by
the Agents, such
participations in the
Loans held by them (and,
if applicable, such
sub-participations in the
Letters of Credit) as
shall be necessary to
cause such purchasing Bank
to share the excess
payment or other recovery
ratably with each of them
in accordance with the
order of payments set
forth in
subsection 2.18(a) or (b),
as applicable; provided,
however, that if all or
any portion of the excess
payment or other recovery
is thereafter recovered
from such purchasing Bank,
the purchase shall be
rescinded and the purchase
price restored to the
extent of such recovery,
but without interest.
(d) The Equivalent
Amount of the principal of
and accrued and unpaid
interest on each G-7
Currency Loan and each
Canadian Loan, any
obligation in respect of a
G-7 Currency Letter of
Credit and any other
amount payable by any
Borrower in a G-7 Currency
shall be determined by the
G-7 Currency
Administrative Agent (or,
in the case of a Canadian
Loan, the U.S. Dollar
Administrative Agent) as
of (i) in the case of any
distribution pursuant to
subsection 2.18(a) or (b),
the date of such
distribution, and (ii) in
the case of receipt by any
Bank of any payment or
other recovery which may
be subject to subsection
2.18(c) (or any
disgorgement by any Bank
pursuant to the proviso to
such subsection), as of
the date of such receipt
(or such disgorgement).
SECTION 2.19 Judgment
Currency. If for the purposes
of obtaining judgment in any
court it is necessary to convert
a sum due from a Borrower
hereunder or under any of the
Notes in the currency expressed
to be payable herein or under
such Note (the "specified
currency") into another
currency, the parties hereto
agree, to the fullest extent
that they may effectively do so,
that the rate of exchange used
shall be that at which in
accordance with normal banking
procedures the G-7 Currency
Agent (or, in the case of any
amount relating to a Canadian
Loan, the U.S. Dollar
Administrative Agent) could
purchase the specified currency
with such other currency at the
G-7 Currency Agent's London
office (or, in the case of any
amount relating to a Canadian
Loan, the U.S. Dollar
Administrative Agent's FX
Trading Office) on the Business
Day preceding that on which
final judgment is given. The
obligations of any Borrower in
respect of any sum due to any
Bank or the applicable Agent
hereunder or under any Note
shall, notwithstanding any
judgment in a currency other
than the specified currency, be
discharged only to the extent
that on the Business Day
following receipt by such Bank
or the applicable Agent, as the
case may be, of any sum adjudged
to be so due in such other
currency such Bank or the
applicable Agent, as the case
may be, may in accordance with
normal banking procedures
purchase the specified currency
with such other currency. If
the amount of the specified
currency so purchased is less
than the sum originally due to
such Bank or the applicable
Agent, as the case may be, in
the specified currency, the
applicable Borrower shall, to
the fullest extent that it may
effectively do so, as a separate
obligation and notwithstanding
any such judgment, indemnify
such Bank or the applicable
Agent, as the case may be,
against such loss, and if the
amount of the specified currency
so purchased exceeds (a) the sum
originally due to any Bank or
the applicable Agent, as the
case may be, in the specified
currency and (b) any amounts
shared with other Banks as a
result of allocations of such
excess as a disproportionate
payment to such Bank under
Section 2.18, such Bank or the
applicable Agent, as the case
may be, agrees to remit such
excess to the applicable
Borrower.
SECTION 2.20 Payments.
(a) Unless the
applicable Agent receives
notice from the applicable
Borrower prior to the date
on which any payment is
due to any Bank that such
Borrower will not make
such payment in full as
and when required, such
Agent may assume that such
Borrower has made such
payment in full to such
Agent on such date in
immediately available
funds and such Agent may
(but shall not be so
required), in reliance
upon such assumption,
distribute to such Bank on
such due date an amount
equal to the amount then
due such Bank. If and to
the extent the applicable
Borrower has not made such
payment in full to such
Agent, such Bank shall
repay to such Agent on
demand such amount
distributed to such Bank,
together with interest
thereon at (a) in the case
of a payment in U.S.
Dollars, (i) for the first
three Business Days after
demand, the Federal Funds
Effective Rate, and (ii)
thereafter, the Reference
Rate, and (b) in the case
of a payment in a G-7
Currency, (i) for the
first three Business Days
after demand, the rate
specified by such Agent as
its cost for overnight
funds in the applicable
currency, and (ii)
thereafter, the rate
specified in clause (b)
(i) plus 1%.
(b) Unless the
applicable Agent receives
notice from a Bank at
least one Business Day
prior to the date of any
Borrowing that such Bank
will not make available as
and when required
hereunder to such Agent
for the account of the
applicable Borrower the
amount of such Bank's
ratable share of such
Borrowing, such Agent may
assume that such Bank has
made such amount available
to such Agent in
immediately available
funds on the date of such
Borrowing and such Agent
may (but shall not be so
required), in reliance
upon such assumption, make
available to the
applicable Borrower on
such date a corresponding
amount. If and to the
extent any Bank shall not
have made its full amount
available to the
applicable Agent in
immediately available
funds and such Agent has
made available to the
applicable Borrower such
amount, such Bank shall on
the Business Day following
the date of such Borrowing
make such amount available
to such Agent, together
with interest at (a) in
the case of a Borrowing in
U.S. Dollars, the Federal
Funds Effective Rate, and
(b) in the case of a
Borrowing in a G-7
Currency, the rate
specified by such Agent as
its cost for overnight
funds in the applicable
currency. A notice by the
applicable Agent submitted
to any Bank with respect
to amounts owing under
this clause (b) shall be
conclusive, absent
manifest error. If such
amount is so made
available, such payment to
such Agent shall
constitute such Bank's
Loan on the date of
Borrowing for all purposes
of this Agreement. If
such amount is not made
available to the Agent on
the Business Day following
the date of Borrowing, the
applicable Agent will
notify the applicable
Borrower of such failure
to fund and, upon demand
by such Agent, such
Borrower shall pay such
amount to such Agent for
such Agent's account,
together with interest
thereon for each day
elapsed since the date of
such Borrowing, at a rate
per annum equal to the
interest rate applicable
at the time to the Loans
comprising such Borrowing.
ARTICLE III
U.S. DOLLAR LOANS
SECTION 3.1 Method of
Borrowing.
(a) The Borrowers
shall give the U.S. Dollar
Administrative Agent a
Notice of Borrowing (which
may be given orally, but
if so, shall be promptly
confirmed by facsimile) no
later than 12:00 noon
(Chicago time) on the day
of each Reference
Borrowing, at least one
Business Day before each
CD Borrowing and at least
three Business Days before
each Eurodollar Borrowing
specifying:
(i) the date
of such Borrowing,
which shall be a
Business Day,
(ii) the
aggregate amount of
such Borrowing,
(iii) whether
the Loans
comprising such
Borrowing are to be
CD Loans, Reference
Loans or Eurodollar
Loans, and
(iv) if a CD
Borrowing or
Eurodollar
Borrowing, the
duration of the
Interest Period
applicable to such
Borrowing.
In the event that a
Borrower does not request
a new borrowing prior to
the last day of any
Interest Period and does
not otherwise provide
funds to pay Loans
maturing on such day, the
Borrower shall be deemed
to have given the U.S.
Dollar Administrative
Agent a Notice of
Borrowing requesting
Reference Loans on such
day in the principal
amount of the Loans coming
due on such day.
(b) Upon receipt of
a Notice of Borrowing, the
U.S. Dollar Administrative
Agent shall promptly
notify each Bank of the
contents thereof and of
such Bank's ratable share
of such Borrowing and such
Notice of Borrowing shall
not thereafter be
revocable by the
applicable Borrower.
(c) Not later than
1:00 p.m. (Chicago time)
on the date of each
Borrowing of a Reference,
CD or Eurodollar Loan,
each Bank shall make
available its ratable
share of such Borrowing,
in federal or other funds
immediately available to
the U.S. Dollar
Administrative Agent at
the U.S. Dollar
Administrative Agent's
Payment Office. Unless
the U.S. Dollar
Administrative Agent
receives notice or
otherwise determines that
any applicable condition
specified in Article X has
not been satisfied, the
U.S. Dollar Administrative
Agent will make the funds
so received from the Banks
available to the Borrower
at the U.S. Dollar
Administrative Agent's
Payment Office.
Notwithstanding the
foregoing provisions of
this Section, to the
extent that a U.S. Dollar
Loan made by a Bank
matures on the date of a
requested U.S. Dollar
Loan, such Bank shall
apply the proceeds of the
Loan it is then making to
the repayment of the
maturing Loan.
SECTION 3.2 Rate and
Payment of Interest.
(a) Reference Loans.
Each Reference Loan shall
bear interest on the
outstanding principal
amount thereof for each
day from the date such
Loan is made until it
becomes due at a rate per
annum equal to the
Reference Rate for such
day. Such interest shall
be payable on the last day
of each calendar quarter
and on the Termination
Date. Any overdue
principal of and, to the
extent permitted by law,
overdue interest on any
Reference Loan shall bear
interest, payable on
demand, for each day until
paid at a rate per annum
equal to the sum of 1%
plus the Reference Rate
for such day.
(b) CD Loans. Each
CD Loan shall bear
interest on the
outstanding principal
amount thereof at a rate
per annum equal to the
applicable Fixed CD Rate.
Such interest shall be
payable on the last day of
the Interest Period
therefor and, if such
Interest Period is longer
than 90 days, at intervals
of 90 days after the first
day thereof. Any overdue
principal of and, to the
extent permitted by law,
overdue interest on any CD
Loan shall bear interest,
payable on demand, for
each day until paid at a
rate per annum equal to
the sum of 1% plus the
higher of (i) the Fixed CD
Rate for such CD Loan and
(ii) the rate applicable
to Reference Loans for
such day.
(c) Eurodollar
Loans. Each Eurodollar
Loan shall bear interest
on the outstanding
principal amount thereof
at a rate per annum equal
to the applicable Fixed
Eurodollar Rate. Such
interest shall be payable
on the last day of the
Interest Period therefor
and, if such Interest
Period is longer than
three months, at intervals
of three months after the
first day thereof. Any
overdue principal of and,
to the extent permitted by
law, overdue interest on
any Eurodollar Loan shall
bear interest, payable on
demand, for each day from
and including the date
payment thereof was due to
but excluding the date of
actual payment, at a rate
per annum equal to the sum
of 1% plus the
Eurocurrency Margin plus
the quotient obtained
(rounded upward, if
necessary, to the next
higher 1/100 of 1%) by
dividing (i) the interest
rate per annum at which
one day (or, if such
amount due remains unpaid
more than three Business
Days, then for such other
period of time not longer
than six months as the
U.S. Dollar Administrative
Agent may elect) deposits
in U.S. Dollars, in an
amount approximately equal
to the U.S. Dollar
Administrative Agent's
overdue Eurodollar Loan
which is part of the
applicable Borrowing, are
offered to the U.S. Dollar
Administrative Agent in
the London interbank
market for the applicable
period determined as
provided above, by
(ii) 1.00 minus the
Eurocurrency Reserve
Percentage.
(d) The U.S. Dollar
Administrative Agent shall
determine each interest
rate applicable to the
U.S. Dollar Loans
hereunder and shall give
prompt notice to Pentair
and the other Banks by
telex, facsimile or cable
of each rate of interest
so determined, and its
determination thereof
shall be conclusive in the
absence of manifest error.
SECTION 3.3 Prepayment.
(a) The Borrowers
may, upon notice to the
U.S. Dollar Administrative
Agent not later than one
Business Day prior to the
date of prepayment in the
case of Reference Loans
and CD Loans and three
Business Days prior to the
date of prepayment in the
case of Eurodollar Loans,
prepay any Borrowing of
U.S. Dollar Loans in whole
at any time, or from time
to time in part in amounts
aggregating U.S.$1,000,000
or any larger multiple of
U.S.$100,000 (provided
that after any such
prepayment the aggregate
outstanding Reference
Loans are in an aggregate
amount of at least
U.S.$1,000,000, each
Borrowing of CD Loans is
in an aggregate amount of
at least U.S.$1,000,000
and each Borrowing of
Eurodollar Loans is in an
aggregate amount of at
least U.S.$2,000,000), by
paying the principal
amount to be prepaid
together with accrued
interest thereon to the
date of prepayment. Each
such optional prepayment
shall be applied ratably
to prepay the applicable
Loans of the several Banks
in proportion to their
Commitment Percentages.
(b) Any prepayment
of a CD Loan or Eurodollar
Loan prior to the last day
of the Interest Period
therefor shall be subject
to Section 2.9.
(c) Upon receipt of
a notice of prepayment
pursuant to this Section
(which may be given
orally, but if so, shall
be promptly confirmed by
facsimile), the U.S.
Dollar Administrative
Agent shall promptly
notify each Bank of the
contents thereof and of
such Bank's ratable share
of such prepayment, and
such notice shall not
thereafter be revocable by
the Borrowers.
SECTION 3.4 General
Provisions as to Payments. The
Borrowers shall make each
payment of principal of, and
interest on, U.S. Dollar Loans
hereunder not later than 11:00
a.m. (Chicago time) on the date
when due, in federal or other
funds immediately available to
the U.S. Dollar Administrative
Agent at its Payment Office.
The U.S. Dollar Administrative
Agent will promptly distribute
to each Bank its ratable share
of each such payment received by
the U.S. Dollar Administrative
Agent for the account of the
Banks. Whenever any payment of
Facility Fees or principal of,
or interest on, any Reference
Loans or CD Loans shall be due
on a day which is not a Business
Day, the date for payment
thereof shall be extended to the
next succeeding Business Day.
Whenever any payment of
principal of, or interest on,
any Eurodollar Loans shall be
due on a day which is not a
Business Day, the date for
payment thereof shall be
extended to the next succeeding
Business Day unless as a result
thereof it would fall in the
next calendar month, in which
case it shall be advanced to the
next preceding Business Day. If
the date for any payment of
principal is extended by
operation of law or otherwise,
interest thereon shall be
payable for such extended time.
ARTICLE IV
G-7 CURRENCY LOANS
SECTION 4.1 Method of
Borrowing.
(a) The applicable
Borrower shall give the
G-7 Currency
Administrative Agent a
Notice of Borrowing by
9:00 a.m. (London time) at
least three Business Days
before each G-7 Currency
Borrowing specifying:
(i) the date
of such Borrowing,
which shall be a
Business Day,
(ii) the G-7
Currency in which
the Loan is to be
made,
(iii) the
aggregate amount
(in such G-7
Currency) of such
Borrowing, and
(iv) the
duration of the
Interest Period
applicable to such
Borrowing.
(b) Upon receipt of
a Notice of Borrowing, the
G-7 Currency
Administrative Agent shall
promptly notify each Bank
of the contents thereof
and of such Bank's ratable
share of such Borrowing
and such Notice of
Borrowing shall not
thereafter be revocable by
the applicable Borrower.
(c) Not later than
12:00 noon (London time)
on the date of each G-7
Currency Borrowing, each
Bank shall make available
its ratable share of such
Borrowing, in the
applicable currency,
immediately available to
the G-7 Currency
Administrative Agent at
its Payment Office.
Unless the G-7 Currency
Administrative Agent
receives notice or
otherwise determines that
any applicable condition
specified in Article X has
not been satisfied, the
G-7 Currency
Administrative Agent will
make the funds so received
from the Banks available
to the applicable Borrower
at the G-7 Currency
Administrative Agent's
Payment Office.
Notwithstanding the
foregoing provisions of
this Section, to the
extent that a G-7 Currency
Loan made by a Bank
matures on the date of a
requested G-7 Currency
Loan in the same currency,
such Bank shall apply the
proceeds of the Loan it is
then making to the
repayment of the maturing
Loan.
SECTION 4.2 Rate and
Payment of Interest.
(a) G-7 Currency
Loans. Each G-7 Currency
Loan shall bear interest
on the outstanding
principal amount thereof
at a rate per annum equal
to the applicable Fixed
G-7 Rate. Such interest
shall be payable on the
last day of the Interest
Period therefor and, if
such Interest Period is
longer than three months,
at intervals of three
months after the first day
thereof. Any overdue
principal of and, to the
extent permitted by law,
overdue interest on any
G-7 Currency Loan shall
bear interest, payable on
demand, for each day from
and including the date
payment thereof was due to
but excluding the date of
actual payment, at a rate
per annum equal to the sum
of 1% plus the
Eurocurrency Margin plus
the quotient obtained
(rounded upward, if
necessary, to the next
higher 1/100 of 1%) by
dividing (i) the interest
rate per annum at which
one day (or, if such
amount due remains unpaid
more than three Business
Days, then for such other
period of time not longer
than six months as the G-7
Currency Administrative
Agent may elect) deposits
in the applicable G-7
Currency in an amount
approximately equal to the
G-7 Currency
Administrative Agent's
overdue G-7 Currency Loan
which is a part of the
applicable Borrowing, are
offered to the G-7
Currency Administrative
Agent in the London
interbank market for the
applicable period
determined as provided
above by (ii) 1.00 minus
the Eurocurrency Reserve
Percentage.
(b) The G-7
Administrative Agent shall
determine the interest
rate applicable to the G-7
Currency Loans hereunder
and shall give prompt
notice to Pentair and the
other Banks by telex,
facsimile or cable of each
rate of interest so
determined, and its
determination thereof
shall be conclusive in the
absence of manifest error.
SECTION 4.3 Prepayment.
(a) The Borrowers
may, upon not less than
four Business Days' prior
notice to the G-7 Currency
Administrative Agent,
prepay any Borrowing of
G-7 Currency Loans in
whole at any time, or from
time to time in part in an
aggregate Equivalent
Amount of at least
U.S.$1,000,000 and an
integral multiple of
100,000 units of the
applicable G-7 Currency
(provided that after any
such prepayment, each
Borrowing of G-7 Currency
Loans is in an aggregate
Equivalent Amount of at
least U.S.$2,000,000), by
paying the principal
amount to be prepaid
together with accrued
interest thereon to the
date of prepayment. Each
such optional prepayment
shall be applied ratably
to the several Banks in
proportion to their
Commitment Percentages.
(b) Any prepayment
of a G-7 Currency Loan
prior to the last day of
the Interest Period
therefor shall be subject
to Section 2.9.
(c) Upon receipt of
a notice pursuant to this
Section (which may be
given orally, but if so,
shall be promptly
confirmed by facsimile),
the G-7 Currency
Administrative Agent shall
promptly notify each Bank
of the contents thereof
and of such Bank's ratable
share of such prepayment,
and such notice shall not
thereafter be revocable by
the Borrowers.
SECTION 4.4 General
Provisions as to Payments. The
Borrowers shall make each
payment to be made in a G-7
Currency of principal of, and
interest on, the G-7 Currency
Loans hereunder not later than
12:00 noon (London time) on the
date when due, in the applicable
G-7 Currency funds as may then
be customary for settlement of
international transactions in
such G-7 Currency immediately
available to the G-7 Currency
Administrative Agent at its
Payment Office. The G-7
Currency Administrative Agent
will promptly distribute to each
Bank its ratable share of each
such payment received by the G-7
Currency Administrative Agent
for the account of the Banks in
like funds. Whenever any
payment of principal of, or
interest on, any G-7 Currency
Loans shall be due on a day
which is not a Business Day, the
date for payment thereof shall
be extended to the next
succeeding Business Day unless
as a result thereof it would
fall in the next calendar month,
in which case it shall be
advanced to the next preceding
Business Day. If the date for
any payment of principal is
extended by operation of law or
otherwise, interest thereon
shall be payable for such
extended time.
SECTION 4.5
Impracticability of Funding.
Notwithstanding the satisfaction
of all conditions referred to in
this Agreement with respect to
any Borrowing to be denominated
in a G-7 Currency, if there
shall occur on or prior to the
date of such borrowing any
change in national or
international financial,
political or economic conditions
or currency exchange rates or
exchange controls which would in
the opinion of the G-7 Currency
Administrative Agent make it
impracticable for the Loans
comprising such borrowing to be
denominated in such G-7
Currency, then the G-7 Currency
Administrative Agent shall
forthwith give notice thereof to
Pentair and the Banks, and such
Loans shall not be made.
SECTION 4.6 Costs.
(a) If the cost to
any Bank of making or
maintaining any G-7
Currency Loan is
increased, or the amount
of any sum received or
receivable by any Bank (or
its Lending Office) in
respect of any such Loan
is reduced, by an amount
deemed by such Bank to be
material, by reason of the
fact that a Borrower is
incorporated in, or
conducts business in, a
jurisdiction outside the
United States, such
Borrower shall indemnify
such Bank for the
increased cost or
reduction within 15 days
of demand by such Bank
(with a copy to the G-7
Currency Administrative
Agent). A certificate of
any Bank claiming
compensation under this
Section 4.6 and setting
forth the additional
amount or amounts to be
paid to it hereunder shall
be conclusive in the
absence of manifest error.
(b) Each Bank will
promptly notify Pentair of
any event of which it has
knowledge, occurring after
the date hereof, which
will entitle such Bank to
compensation or the
payment of additional
amounts pursuant to this
Section 4.6 and will
designate a different
Lending Office if such
designation will avoid the
need for, or reduce the
amount of, such
compensation or additional
amounts and will not, in
the sole judgment of such
Bank, be otherwise
disadvantageous to such
Bank.
ARTICLE V
OVERNIGHT LOANS
SECTION 5.1 Method of
Borrowing.
(a) Pentair shall
give the Overnight Bank a
Notice of Borrowing (which
may be given orally, but
if so, shall be promptly
confirmed by facsimile) no
later than 12:00 noon
(Minneapolis time) on the
day of each Borrowing of
Reference and Daily
Pricing Loans, specifying:
(i) the date
of such Borrowing,
which shall be a
Business Day,
(ii) the amount
of such Borrowing,
and
(iii) whether
the Loans
comprising such
Borrowing are to be
Reference Loans or
Daily Pricing
Loans.
In the event that Pentair
does not request a new
borrowing prior to the
last day of any Interest
Period and does not
otherwise provide funds to
pay Overnight Loans
maturing on such day,
(x) if the
Loans maturing on
such day are
Reference Loans,
Pentair shall be
deemed to have
given the Overnight
Bank a Notice of
Borrowing
requesting
Reference Loans on
such day in the
principal amount of
the Loans coming
due on such day;
and
(y) if the
Loans maturing on
such day are Daily
Pricing Loans,
Pentair shall be
deemed to have
given the Overnight
Bank a Notice of
Borrowing
requesting Daily
Pricing Loans on
such day in the
principal amount of
the Loans coming
due on such day.
(b) Not later than
2:00 p.m. (Minneapolis
time) on the date of each
Borrowing of Overnight
Loans, the Overnight Bank
shall deposit the amount
of such Borrowing, in
federal or other funds
immediately available, in
Pentair's deposit account
maintained with the
Overnight Bank unless the
Overnight Bank receives
notice or otherwise
determines that any
applicable condition
specified in Article X has
not been satisfied.
Notwithstanding the
foregoing provisions of
this Section, to the
extent that an Overnight
Loan matures on the date
of a requested Overnight
Loan, the Overnight Bank
shall apply the proceeds
of the Overnight Loan it
is then making to the
repayment of the maturing
Overnight Loan.
SECTION 5.2 Rate and
Payment of Interest.
(a) Reference Loans.
Each Reference Loan shall
bear interest on the
outstanding principal
amount thereof for each
day from the date such
Loan is made until it
becomes due at a rate per
annum equal to the
Reference Rate for such
day. Such interest shall
be payable on the last day
of each calendar quarter
and on the Termination
Date. Any overdue
principal of and, to the
extent permitted by law,
overdue interest on any
Reference Loan shall bear
interest, payable on
demand, for each day until
paid at a rate per annum
equal to the sum of 1%
plus the Reference Rate
for such day.
(b) Daily Pricing
Loans. Each Daily Pricing
Loan shall bear interest
on the outstanding
principal amount thereof
for each day from the date
such Loan is made until it
becomes due at a rate per
annum equal to the Daily
Pricing Rate for such day.
Such interest shall be
payable on the last day of
the Interest Period
therefor and on the day of
any prepayment thereof.
Any overdue principal of
and, to the extent
permitted by law, overdue
interest on any Daily
Pricing Loan shall bear
interest, payable on
demand, for each day until
paid at a rate per annum
equal to the sum of 1%
plus the otherwise
applicable Daily Pricing
Rate for such day.
(c) Rate of
Interest. The Overnight
Administrative Agent shall
determine each interest
rate applicable to the
Overnight Loans hereunder
and shall give prompt
notice to Pentair by
telex, facsimile or cable
of each rate of interest
so determined, and its
determination thereof
shall be conclusive in the
absence of manifest error.
SECTION 5.3 Prepayment.
(a) Pentair may, by
notice to the Overnight
Bank not later than 4:00
p.m. on any Business Day,
prepay Overnight Loans in
whole at any time, or from
time to time in part in
the amount of
U.S.$1,000,000 or any
larger multiple of
U.S.$100,000 (provided
that after such prepayment
the outstanding Overnight
Reference Loans are in an
aggregate amount of at
least U.S.$1,000,000 and
each Daily Pricing Loan is
in an amount permitted by
the definition thereof),
by paying the principal
amount to be prepaid
together with accrued
interest thereon to the
date of prepayment.
(b) Upon receipt of
a notice of prepayment
pursuant to this Section
(which may be given
orally, but if so, shall
be promptly confirmed by
facsimile), such notice
shall not thereafter be
revocable by Pentair.
SECTION 5.4 General
Provisions as to Payments.
Pentair shall make each payment
of principal of, and interest
on, Overnight Loans not later
than 12:00 noon (Minneapolis
time) on the date when due, in
federal or other funds
immediately available to the
Overnight Bank at its Payment
Office. Whenever any payment of
facility fees or principal of,
or interest on, any Overnight
Loans shall be due on a day
which is not a Business Day, the
date for payment thereof shall
be extended to the next
succeeding Business Day. If the
date for any payment of
principal is extended by
operation of law or otherwise,
interest thereon shall be
payable for such extended time.
SECTION 5.5 Refunding of
Overnight Loans. The Overnight
Bank may, in its sole and
absolute discretion at any time
that a Default exists, on behalf
of Pentair (which hereby
irrevocably directs the
Overnight Bank to act on its
behalf), request each Bank to
make a U.S. Dollar Loan in an
amount equal to such Bank's
Commitment Percentage of the
principal amount of the
Overnight Loans outstanding on
the date such notice is given.
Unless any of the events
described in paragraph (f) or
(g) of Section 13.1 shall have
occurred (in which event the
procedures of Section 5.6 shall
apply), and regardless of
whether the conditions precedent
set forth in this Agreement to
the making of a Loan are then
satisfied or the aggregate
amount of such Loans is not in
the minimum or integral amount
otherwise required hereunder for
U.S. Dollar Loans, each Bank
shall make the proceeds of its
Loan available to the U.S.
Dollar Administrative Agent for
the account of the Overnight
Bank at the office of BofA in
San Francisco prior to 11:00
a.m. (Chicago time) in
immediately available funds on
the Business Day next succeeding
the date such notice is given.
The proceeds of such Loans shall
be immediately applied to repay
the outstanding Overnight Loans.
All Loans made pursuant to this
Section 5.5 shall be Reference
Loans.
SECTION 5.6 Participations
in Overnight Loans.
(a) If an event
described in paragraph (f)
or (g) of Section 13.1
exists (or for any reason
the Banks may not make
U.S. Dollar Loans pursuant
to Section 5.5), each Bank
will, upon notice from the
Overnight Bank, purchase
from the Overnight Bank
(and the Overnight Bank
will sell to each other
Bank) an undivided
participation interest in
all outstanding Overnight
Loans in an amount equal
to its Commitment
Percentage of the
outstanding principal
amount of the Overnight
Loans (and each Bank will
immediately transfer to
the Overnight Bank, in
immediately available
funds, the amount of its
participation).
(b) Whenever, at any
time after the Overnight
Bank has received payment
for any other Bank's
participation interest in
Overnight Loans pursuant
to clause (a), the
Overnight Bank receives
any payment on account
thereof, the Overnight
Bank will distribute to
such Bank its
participation interest in
such amount (appropriately
adjusted, in the case of
interest payments, to
reflect the period of time
during which such Bank's
participation interest was
outstanding and funded) in
like funds as received;
provided, however, that in
the event that such
payment received by the
Overnight Bank is required
to be returned, such other
Bank will return to the
Overnight Bank any portion
thereof previously
distributed by the
Overnight Bank to it in
like funds as such payment
is required to be returned
by the Overnight Bank.
SECTION 5.7 Overnight
Participation Obligations
Unconditional.
(a) Each Bank's
obligation to make Loans
pursuant to Section 5.5
and/or to purchase
participation interests in
Overnight Loans pursuant
to Section 5.6 shall be
absolute and unconditional
and shall not be affected
by any circumstance
whatsoever, including (a)
any set-off, counterclaim,
recoupment, defense or
other right which such
Bank may have against the
Overnight Bank, any
Borrower or any other
Person for any reason
whatsoever; (b) the
occurrence or continuance
of a Default; (c) any
adverse change in the
condition (financial or
otherwise) of any Borrower
or any other Person; (d)
any breach of this
Agreement by any Borrower
or any other Bank; (e) any
inability of Pentair to
satisfy the conditions
precedent to borrowing set
forth in this Agreement on
the date upon which any
Overnight Loan is to be
refunded or any
participation interest
therein is to be
purchased; or (f) any
other circumstance,
happening or event
whatsoever, whether or not
similar to any of the
foregoing.
(b) Notwithstanding
the provisions of
clause (a) above, no Bank
shall be required to make
any Loan to Pentair to
refund an Overnight Loan
pursuant to Section 5.5 or
to purchase a
participation interest in
an Overnight Loan pursuant
to Section 5.6 if, prior
to the making by the
Overnight Bank of such
Overnight Loan, the
Overnight Bank received
written notice from any
Agent or any Bank
specifying that such Agent
or such Bank believed in
good faith that one or
more of the conditions
precedent to the making of
such Overnight Loan were
not satisfied and, in
fact, such conditions
precedent were not
satisfied at the time of
the making of such
Overnight Loan.
ARTICLE VI
CANADIAN LOANS
SECTION 6.1 Method of
Borrowing.
(a) Pentair (on behalf of
Pentair Canada) shall give the
Canadian Administrative Agent a
Notice of Borrowing (which may
be given orally, but if so,
shall be promptly confirmed by
facsimile) no later than 9:00
a.m. (Chicago time) on the day
of each Prime Borrowing, at
least two Business Days before
each BA Borrowing and at least
three Business Days before each
Eurodollar Borrowing specifying:
(i) the date
of such Borrowing,
which shall be a
Business Day,
(ii) the
aggregate amount of
such Borrowing,
(iii) whether
the Loans
comprising such
Borrowing are to be
Prime Loans, BA
Loans or Eurodollar
Loans, and
(iv) if a BA
Borrowing or
Eurodollar
Borrowing, the
duration of the
Interest Period
applicable to such
Borrowing.
In the event that Pentair
(on behalf of Pentair
Canada) does not request a
new borrowing prior to the
last day of any Interest
Period and Pentair Canada
does not otherwise provide
funds to pay Canadian
Loans maturing on such
day, Pentair Canada shall
be deemed to have given
the Canadian
Administrative Agent a
Notice of Borrowing
requesting Prime Loans on
such day in the principal
amount of the Canadian
Loans coming due on such
day.
(b) Upon receipt of
a Notice of Borrowing, the
Canadian Administrative
Agent shall promptly
notify each Canadian Bank
of the contents thereof
and of such Canadian
Bank's ratable share of
such Borrowing and such
Notice of Borrowing shall
not thereafter be
revocable by Pentair
Canada.
(c) Not later than
11:00 a.m. (Chicago time)
on the date of each
Borrowing of a Prime, BA
or Eurodollar Loan, each
Canadian Bank shall make
available its ratable
share of such Borrowing,
in immediately available
funds, to the Canadian
Administrative Agent at
the Canadian
Administrative Agent's
Payment Office. Unless
the Canadian
Administrative Agent
receives notice or
otherwise determines that
any applicable condition
specified in Article X has
not been satisfied, the
Canadian Administrative
Agent will make the funds
so received from the
Canadian Banks available
to Pentair Canada at the
Canadian Administrative
Agent's Payment Office.
Notwithstanding the
foregoing provisions of
this Section, to the
extent that a Canadian
Loan made by a Canadian
Bank matures on the date
of a requested Canadian
Loan, such Canadian Bank
shall apply the proceeds
of the Loan it is then
making to the repayment of
the maturing Canadian
Loan.
SECTION 6.2 Rate and
Payment of Interest.
(a) Prime Loans.
Each Prime Loan shall bear
interest on the
outstanding principal
amount thereof for each
day from the date such
Loan is made until it
becomes due at a rate per
annum equal to the Prime
Rate for such day. Such
interest shall be payable
on the last day of each
calendar quarter and on
the Termination Date. Any
overdue principal of and,
to the extent permitted by
law, overdue interest on
any Prime Loan shall bear
interest, payable on
demand, for each day until
paid at a rate per annum
equal to the sum of 1%
plus the Prime Rate for
such day.
(b) BA Loans. Each
BA Loan shall bear
interest on the
outstanding principal
amount thereof at a rate
per annum equal to the
applicable Fixed BA Rate.
Such interest shall be
payable on the last day of
the Interest Period
therefor and, if such
Interest Period is longer
than 90 days, at intervals
of 90 days after the first
day thereof. Any overdue
principal of and, to the
extent permitted by law,
overdue interest on any BA
Loan shall bear interest,
payable on demand, for
each day until paid at a
rate per annum equal to
the sum of 1% plus the
higher of (i) the Fixed BA
Rate for such BA Loan and
(ii) the rate applicable
to Prime Loans for such
day.
(c) Eurodollar
Loans. Each Eurodollar
Loan shall bear interest
on the outstanding
principal amount thereof
at a rate per annum equal
to the applicable Fixed
Eurodollar Rate. Such
interest shall be payable
on the last day of the
Interest Period therefor
and, if such Interest
Period is longer than
three months, at intervals
of three months after the
first day thereof. Any
overdue principal of and,
to the extent permitted by
law, overdue interest on
any Eurodollar Loan shall
bear interest, payable on
demand, for each day from
and including the date
payment thereof was due to
but excluding the date of
actual payment, at a rate
per annum equal to the sum
of 1% plus the
Eurocurrency Margin plus
the quotient obtained
(rounded upward, if
necessary, to the next
higher 1/100 of 1%) by
dividing (i) the interest
rate per annum at which
one day (or, if such
amount due remains unpaid
more than three Business
Days, then for such other
period of time not longer
than six months as the
Canadian Administrative
Agent may elect) deposits
in dollars, in an amount
approximately equal to the
Canadian Administrative
Agent's overdue Eurodollar
Loan which is part of the
applicable Borrowing, are
offered to the Canadian
Administrative Agent in
the London interbank
market for the applicable
period determined as
provided above, by
(ii) 1.00 minus the
Eurocurrency Reserve
Percentage.
(d) The Canadian
Administrative Agent shall
determine each interest
rate applicable to the
Canadian Loans hereunder
and shall give prompt
notice to Pentair and the
other Canadian Banks by
telex, facsimile or cable
of each rate of interest
so determined, and its
determination thereof
shall be conclusive in the
absence of manifest error.
SECTION 6.3 Prepayment.
(a) Pentair Canada
may, upon notice to the
Canadian Administrative
Agent (which may be given
by Pentair) not later than
one Business Day prior to
the date of prepayment in
the case of Prime Loans,
not later than two
Business Days prior to the
date of prepayment in the
case of BA Loans and not
later than three Business
Days prior to the date of
prepayment in the case of
Eurodollar Loans, prepay
any Borrowing of Canadian
Loans in whole at any
time, or from time to time
in part in amounts
aggregating Cdn.
$1,000,000 or any larger
multiple of Cdn. $100,000
(provided that after any
such prepayment the
aggregate outstanding
Prime Loans are in an
aggregate amount of at
least Cdn. $1,000,000,
each Borrowing of BA Loans
is in an aggregate amount
of at least Cdn.
$1,000,000 and each
Borrowing of Eurodollar
Loans is in an aggregate
amount of at least Cdn.
$2,000,000), by paying the
principal amount to be
prepaid together with
accrued interest thereon
to the date of prepayment.
Each such optional
prepayment shall be
applied ratably to prepay
the applicable Loans of
the several Canadian Banks
in proportion to their
Canadian Percentages.
(b) Any prepayment
of a BA Loan or Eurodollar
Loan prior to the last day
of the Interest Period
therefor shall be subject
to Section 2.9.
(c) Upon receipt of
a notice of prepayment
pursuant to this Section
(which may be given
orally, but if so, shall
be promptly confirmed by
facsimile), the Canadian
Administrative Agent shall
promptly notify each
Canadian Bank of the
contents thereof and of
such Canadian Bank's
ratable share of such
prepayment, and such
notice shall not
thereafter be revocable by
the Pentair Canada.
SECTION 6.4 General
Provisions as to Payments.
Pentair Canada shall make each
payment of principal of, and
interest on, Canadian Loans
hereunder not later than 11:00
a.m. (Chicago time) on the date
when due, in funds immediately
available to the Canadian
Administrative Agent at its
Payment Office. The Canadian
Administrative Agent will
promptly distribute to each
Canadian Bank its ratable share
of each such payment received by
the Canadian Administrative
Agent for the account of the
Canadian Banks. Whenever any
payment of principal of, or
interest on, any Prime Loans or
BA Loans shall be due on a day
which is not a Business Day, the
date for payment thereof shall
be extended to the next
succeeding Business Day.
Whenever any payment of
principal of, or interest on,
any Eurodollar Loans shall be
due on a day which is not a
Business Day, the date for
payment thereof shall be
extended to the next succeeding
Business Day unless as a result
thereof it would fall in the
next calendar month, in which
case it shall be advanced to the
next preceding Business Day. If
the date for any payment of
principal is extended by
operation of law or otherwise,
interest thereon shall be
payable for such extended time.
SECTION 6.5 Participations
in Canadian Loans.
(a) The Majority
Canadian Banks may, in
their sole and complete
discretion at any time a
Default exists, require
each Bank which is not,
and has not designated a
branch or affiliate as, a
Canadian Bank (a
"Non-Canadian Bank") to,
and each Non-Canadian Bank
agrees that promptly upon
notice from the Majority
Canadian Banks it will,
purchase from each
Canadian Bank (and each
Canadian Bank will sell to
each Non-Canadian Bank) an
undivided participation
interest in all
outstanding Canadian Loans
in an amount so that,
after giving effect to all
such purchases and sales,
each Bank will have a
direct or participation
interest in all
outstanding Canadian Loans
in an amount equal to its
Commitment Percentage of
such Loans. In
furtherance of the
foregoing, each Bank
agrees that promptly upon
receipt of such notice it
will transfer to the
Canadian Administrative
Agent, in immediately
available funds, an amount
equal to its Commitment
Percentage of all
outstanding Canadian
Loans, and promptly upon
receipt of such funds the
Canadian Administrative
Agent will transfer to
each Canadian Bank its pro
rata share thereof.
(b) Whenever, at any
time after the Canadian
Administrative Agent has
received funds from a
Non-Canadian Bank in
payment of its
participation interest in
the Canadian Loans
pursuant to clause (a),
the Canadian
Administrative Agent
receives any payment on
account of any Canadian
Loans, the Canadian
Administrative Agent will
distribute such funds in a
manner which gives effect
to the purchase of such
participation interests
(appropriately adjusted,
in the case of interest
payments, to reflect the
period of time during
which such Non-Canadian
Bank's participation
interest was outstanding
and funded and to reflect
any amounts withheld on
account of withholding
taxes attributable to any
particular Bank) in like
funds as received (and if
any Canadian Bank receives
any payment directly on
account of any Canadian
Loan, such Canadian Bank
shall promptly deliver the
proceeds thereof to the
Canadian Administrative
Agent for distribution as
provided above); provided,
however, that in the event
any such payment is
required to be returned by
the Canadian
Administrative Agent or
any Canadian Bank, such
Non-Canadian Bank will
return to the Canadian
Administrative Agent or
such Canadian Bank any
portion thereof previously
distributed by the
Canadian Administrative
Agent to it in like funds
as is required to be
returned by the Canadian
Administrative Agent or
such Canadian Bank.
SECTION 6.6 Canadian
Participation Obligations
Unconditional.
(a) Each
Non-Canadian Bank's
obligation to purchase
participation interests in
Canadian Loans pursuant to
Section 6.5 shall be
absolute and unconditional
and shall not be affected
by any circumstance
whatsoever, including (a)
any set-off, counterclaim,
recoupment, defense or
other right which such
Non-Canadian Bank may have
against the Canadian
Administrative Agent, any
Canadian Bank, any
Borrower or any other
Person for any reason
whatsoever; (b) the
occurrence or continuance
of a Default; (c) any
adverse change in the
condition (financial or
otherwise) of any Borrower
or any other Person; (d)
any breach of this
Agreement by any Borrower
or any other Bank; (e) any
inability of Pentair
Canada to satisfy the
conditions precedent to
borrowing set forth in
this Agreement on the date
upon which any
participation interest in
any Canadian Loan is to be
purchased; or (f) any
other circumstance,
happening or event
whatsoever, whether or not
similar to any of the
foregoing.
(b) Notwithstanding
the provisions of
clause (a) above, no
Non-Canadian Bank shall be
required to purchase a
participation interest in
a Canadian Loan pursuant
to Section 6.5 if, prior
to the making by the
Canadian Banks of such
Canadian Loan, the
Canadian Banks received
written notice from any
Agent or any Bank
specifying that such Agent
or such Bank believed in
good faith that one or
more of the conditions
precedent to the making of
such Canadian Loan were
not satisfied and, in
fact, such conditions
precedent were not
satisfied at the time of
the making of such
Canadian Loan.
ARTICLE VII
DOMESTIC BID LOANS
SECTION 7.1 Domestic Bid
Loan Request. Any Borrower,
acting (in the case of a
Borrower other than Pentair)
through Pentair as its agent,
may submit a Bid Loan Request to
the U.S. Dollar Administrative
Agent for Domestic Bid Loans
corresponding to up to three
different Interest Periods.
Such submission shall be made
not later than 10:00 a.m.
(Chicago time) by telephone,
(a) in the case of a
Domestic Margin Bid
Request, four Business
Days prior to the Funding
Date, and
(b) in the case of
an Absolute Rate Bid
Request, one Business Day
prior to the Funding Date,
promptly followed by written
confirmation, substantially in
the form of Exhibit B-1,
personally delivered, or
transmitted by telex or
facsimile, to the U.S. Dollar
Administrative Agent.
Each Bid Loan Request under
this Article VII shall designate
the following:
(i) the name of the
Borrower;
(ii) the Maximum
Request;
(iii) a single type of
interest rate for all Bid
Loans requested, i.e., an
Absolute Rate or a Margin
Rate;
(iv) the number of
Bid Loans requested, up to
three, and the Interest
Period applicable to each
thereof; and
(v) a single
Funding Date for all Bid
Loans requested.
The U.S. Dollar
Administrative Agent shall
promptly inform each Bank of its
receipt of such Bid Loan Request
and the substance thereof. The
Borrowers may not make more than
four Bid Loan Requests under
this Article VII in any calendar
month, and there shall be at
least five Business Days between
each Funding Date requested by
the Borrowers under this
Article VII.
SECTION 7.2 Amount and
Increments of Loans. Each Bid
Loan Request under this
Article VII shall request Bid
Loans in a minimum amount, in
the aggregate for all Interest
Periods, of U.S.$5,000,000 or an
integral multiple of
U.S.$1,000,000 over such amount,
not to exceed, however, the
amount by which
(a) the Total
Commitment
exceeds
(b) the sum of the
aggregate outstanding
principal amount of all
outstanding Loans plus all
Letter of Credit
Obligations,
calculated by the U.S. Dollar
Administrative Agent as of the
relevant Funding Date, assuming
that the Borrowers will pay,
when due, all Loans maturing
prior to or on such Funding
Date, and that all Loans for
which Notices of Borrowing have
been given and not yet funded
will be made prior to such
Funding Date.
SECTION 7.3 Bidding
Procedure. Each Bank shall have
the right, but not the
obligation, to offer to make all
or any part of any Domestic Bid
Loan or Loans described on any
Bid Loan Request under this
Article VII at an interest rate
of the type specified therein in
a minimum amount of
U.S.$1,000,000, or an integral
multiple thereof, in the
aggregate for all Interest
Periods and for all interest
rates corresponding to each
thereof. Any Bank desiring to
make such an offer shall submit
to the U.S. Dollar
Administrative Agent by
telephone its Bid:
(a) with respect to
a Domestic Margin Bid
Request, not later than
10:00 a.m. (Chicago time)
three Business Days prior
to the Funding Date
specified in such Request,
and
(b) with respect to
an Absolute Rate Bid
Request, by 8:45 a.m.
(Chicago time) on the
Funding Date specified in
such Request
(such 10:00 a.m. or 8:45 a.m.
time, as applicable, herein
called the "Domestic Submission
Deadline ) promptly followed by
written confirmation,
substantially in the form of
Exhibit C-1, personally
delivered, or transmitted by
facsimile, to the U.S. Dollar
Administrative Agent; provided
that any Bid submitted by the
U.S. Dollar Administrative Agent
(or any Affiliate thereof) in
its capacity as a Bank shall be
submitted not later than 15
minutes prior to the Domestic
Submission Deadline. Each Bank
may offer to make all or any
part of any Domestic Bid Loan or
Loans for a single Interest
Period at more than one interest
rate so long as:
(i) such offers are
made in accordance with
the procedures described
herein;
(ii) each interest
rate applies to a portion
of a Bid Loan in a minimum
amount of U.S.$1,000,000
or an integral multiple
thereof;
(iii) such Bank does
not offer to make Bid
Loans with more than four
interest rates for any
single Interest Period,
and
(iv) all such
interest rates are of the
single type designated in
such Bid Loan Request.
The aggregate amount of Bid
Loans (whether for a single
Interest Period or for all
Interest Periods) offered in a
Bid may exceed the Maximum
Request of the corresponding Bid
Loan Request. However, each Bid
shall set forth the Maximum
Offer which the applicable
Borrower may accept pursuant to
such Bid, and such Maximum Offer
shall not exceed the Maximum
Request.
If any Bid omits information
required by the form provided as
Exhibit C-1, the U.S. Dollar
Administrative Agent will
promptly attempt to notify the
Bank submitting such Bid and
such Bank may resubmit such Bid
if it is able to do so prior to
the Domestic Submission Deadline
but without modifying any
Absolute Rate Bid or Domestic
Margin Bid originally set forth
therein.
SECTION 7.4 Acceptance of
Bids.
(a) Domestic Margin
Bids. At or prior to
10:30 a.m. (Chicago time)
on the day of the Domestic
Submission Deadline, the
U.S. Dollar Administrative
Agent will give telephonic
notice (promptly confirmed
in writing) to Pentair of
all Domestic Margin Bids
received and the substance
thereof. The applicable
Borrower, acting (in the
case of a Borrower other
than Pentair) through
Pentair as its agent,
shall, in its sole
discretion but subject to
the provisions of Section
7.4(c), irrevocably accept
or reject any Domestic
Margin Bid (or portion of
the principal amount of
any Bid Loan offered with
such Domestic Margin Bid)
by telephonic notice
(promptly confirmed in
writing) to the U.S.
Dollar Administrative
Agent, to be given at or
prior to 10:45 a.m.
(Chicago time) on such
day. The U.S. Dollar
Administrative Agent will
promptly notify each Bank
that has submitted a
Domestic Margin Bid by
telephone, at or prior to
11:15 a.m. (Chicago time)
on such day (promptly
confirmed in writing), to
what extent such Bank's
Domestic Margin Bid has
been accepted and the
details of such
acceptance, together with
instructions regarding the
funding of the Bid Loans
contemplated thereby. In
the event Pentair fails to
provide such telephonic
notice to the U.S. Dollar
Administrative Agent at or
prior to 10:45 a.m.
(Chicago time) on such
day, the U.S. Dollar
Administrative Agent may
presume conclusively that
the applicable Borrower
has totally rejected all
such Domestic Margin Bids
and the U.S. Dollar
Administrative Agent will
notify each Bank that has
submitted a Domestic
Margin Bid of such
rejection by telephone on
such day (promptly
confirmed in writing). At
or prior to 11:00 a.m.
(Chicago time) two
Business Days prior to the
proposed Funding Date for
any Domestic Margin Rate
Bid Loans, the U.S. Dollar
Administrative Agent shall
notify Pentair and each
Bank with respect to which
any portion of such Bank's
Domestic Margin Bid has
been accepted of the
Interbank Offered Rate
applicable to such Bid
Loans as determined
pursuant to the definition
of "Interbank Offered
Rate.
(b) Absolute Rate
Bids. At or prior to 9:00
a.m. (Chicago time) on the
Funding Date proposed in
an Absolute Rate Bid
Request, the U.S. Dollar
Administrative Agent will
give telephonic notice
(promptly confirmed in
writing) to Pentair of all
Absolute Rate Bids
received and the substance
thereof. The applicable
Borrower, acting (in the
case of a Borrower other
than Pentair) through
Pentair as its agent,
shall, in its sole
discretion but subject to
the provisions of Section
7.4(c), irrevocably accept
or reject any Absolute
Rate Bid (or portion of
the principal amount of
any Bid Loan offered with
such Absolute Rate Bid) by
telephonic notice
(promptly confirmed in
writing) to the U.S.
Dollar Administrative
Agent to be given at or
prior to 9:15 a.m.
(Chicago time) on such
day. The U.S. Dollar
Administrative Agent will
notify each Bank that has
submitted an Absolute Rate
Bid by telephone, at or
prior to 9:30 a.m.
(Chicago time) on such day
(promptly confirmed in
writing), to what extent
such Bank's Absolute Rate
Bid has been accepted and
the details of such
acceptance, together with
instructions regarding the
funding of the Bid Loans
contemplated thereby. In
the event Pentair fails to
provide such telephonic
notice to the U.S. Dollar
Administrative Agent at or
prior to 9:15 a.m.
(Chicago time) on the same
day as the Domestic
Submission Deadline, the
U.S. Dollar Administrative
Agent may presume
conclusively that the
applicable Borrower has
totally rejected all such
Absolute Rate Bids and the
U.S. Dollar Administrative
Agent will notify each
Bank that has submitted an
Absolute Rate Bid of such
rejection by telephone on
such day (promptly
confirmed in writing).
(c) Acceptance
Guidelines.
(i) Portion
Size. When a
Borrower accepts a
portion, but not
all, of the
principal amount of
any Domestic Bid
Loan offered for
any single Interest
Period at a single
interest rate in
any Bank's Bid,
such Borrower shall
accept such portion
in an amount of not
less than
U.S.$1,000,000 or
an integral
multiple of
U.S.$100,000 over
such amount for any
such Bank.
(ii) Aggregate
Amount. The amount
of all Domestic Bid
Loans accepted by
the Borrowers, in
the aggregate for
all Interest
Periods and
interest rates:
(i) from all Banks,
pursuant to a
single Bid Loan
Request shall not
exceed the Maximum
Request and (ii)
from each Bank,
pursuant to a
single Bid Loan
Request shall not
exceed the Maximum
Offer of the
corresponding Bid
from such Bank.
(iii) Allocation
among Banks. If a
Borrower accepts
any Bid (or any
portion thereof
referred to in
paragraph (i) above
in this Section
7.4(c)), it must
accept offers based
exclusively upon
pricing (from
lowest to highest)
of interest rate
and no other
criteria. If two
or more Banks
submit offers for
identical Interest
Periods at
identical pricing
and a Borrower
accepts any such
offer (or any such
portion), the
principal amount of
Bid Loans in
respect of which
such offers are
accepted shall be
allocated among
such Banks as
nearly as possible
(in such multiples,
not greater than
U.S.$100,000, as
such Borrower may
deem appropriate),
in proportion to
the principal
amounts offered by
such Banks at such
pricing. The Bid
Loans resulting
from such
allocation need not
be in integral
multiples of
U.S.$1,000,000.
SECTION 7.5 No Prepayment.
Domestic Bid Loans may not be
prepaid prior to the last day of
their respective Interest
Periods (except pursuant to
Section 2.11).
SECTION 7.6 General
Provisions as to Payments. The
Borrowers shall make each
payment of principal of, and
interest on, the Domestic Bid
Loans hereunder not later than
12:00 noon (Chicago time) on the
date when due, in federal or
other funds immediately
available in Chicago to the U.S.
Dollar Administrative Agent at
its Payment Office. The U.S.
Dollar Administrative Agent will
promptly distribute to any Bank
each such payment made with
respect to a Domestic Bid Loan
made by such Bank. Whenever any
payment of principal of, or
interest on, any Absolute Rate
Bid Loan shall be due on a day
which is not a Business Day, the
date for payment thereof shall
be extended to the next
succeeding Business Day.
Whenever any payment of
principal of, or interest on,
any Domestic Margin Rate Bid
Loan shall be due on a day which
is not a Business Day, the date
for payment thereof shall be
extended to the next succeeding
Business Day unless as a result
thereof it would fall in the
next calendar month, in which
case it shall be advanced to the
next preceding Business Day. If
the date for any payment of
principal is extended by
operation of law or otherwise,
interest thereon shall be
payable for such extended time.
SECTION 7.7 Funding of
Domestic Bid Loans. Not later
than 12:00 noon (Chicago time)
on the Funding Date of one or
more Domestic Bid Loans, each
Bank with respect to which any
portion of a Bid has been
accepted shall make available
funds covering such Bank's Bid
Loan or Loans in federal or
other funds immediately
available in Chicago to the U.S.
Dollar Administrative Agent at
its Payment Office. Unless the
U.S. Dollar Administrative Agent
receives notice or otherwise
determines that any applicable
condition specified in Article X
has not been satisfied, the U.S.
Dollar Administrative Agent will
make the funds so received from
the Banks available to the
applicable Borrower at the U.S.
Dollar Administrative Agent's
Payment Office. Notwithstanding
the foregoing provisions of this
Section, to the extent that a
Domestic Bid Loan made by a Bank
matures on the Funding Date for
another Domestic Bid Loan to be
made by such Bank, such Bank
shall apply the proceeds of the
Domestic Bid Loan it is then
making to the repayment of the
maturing Domestic Bid Loan.
SECTION 7.8 Rate and
Payment of Interest.
(a) Absolute Rate Bid
Loans. Each Absolute Rate Bid
Loan shall bear interest on the
outstanding principal amount
thereof for each day from the
date such Bid Loan is made until
it becomes due at a rate per
annum equal to the Absolute Rate
Bid offered by the Bank making
such Bid Loan and accepted by
the applicable Borrower as the
rate applicable to such Absolute
Rate Bid Loan, pursuant to
Section 7.4(b). Such interest
shall be payable for each
Interest Period on the last day
thereof. Any overdue principal
of and, to the extent permitted
by law, overdue interest on any
Absolute Rate Bid Loan shall
bear interest, payable on
demand, for each day until paid
at a rate per annum equal to the
sum of 1% plus the higher of (i)
the Absolute Rate for such Loan
and (ii) the rate applicable to
Reference Loans for such day.
(b) Domestic Margin Rate
Bid Loans. Each Domestic Margin
Rate Bid Loan shall bear
interest on the outstanding
principal amount thereof, for
the Interest Period applicable
thereto, at a rate per annum
equal to the sum of the
Interbank Offered Rate for such
Interest Period plus (or minus)
the Domestic Margin Bid offered
by the Bank making such Bid Loan
and accepted by the Borrower as
the Margin Rate applicable to
such Domestic Margin Rate Bid
Loan pursuant to Section 7.4(a).
Such interest shall be payable
for each Interest Period on the
last day thereof. Any overdue
principal of and, to the extent
permitted by law, overdue
interest on, any Domestic Margin
Rate Bid Loan shall bear
interest, payable on demand, for
each day until paid at a rate
per annum equal to the sum of 1%
plus the higher of (i) the rate
otherwise applicable pursuant to
the first sentence of this
clause (b) and (ii) the rate
applicable to Reference Loans
for such day.
ARTICLE VIII
G-7 CURRENCY BID LOANS
SECTION 8.1 G-7 Currency
Bid Loan Request. Any Borrower,
acting (in the case of a
Borrower other than Pentair)
through Pentair as its agent,
may submit a Bid Loan Request to
the G-7 Currency Administrative
Agent for G-7 Currency Bid Loans
corresponding to up to three
different Interest Periods.
Such submission shall be made
not later than 3:00 p.m. (London
time) by telephone, five
Business Days prior to the
Funding Date, promptly followed
by written confirmation,
substantially in the form of
Exhibit B-2, personally
delivered, or transmitted by
telex or facsimile, to the G-7
Currency Administrative Agent.
Each Bid Loan Request under
this Article VIII shall
designate the following:
(i) the name of the
Borrower;
(ii) the G-7 Currency of
the requested Bid Loans;
(iii) the Maximum Request;
(iv) the number of Bid
Loans requested, up to three,
and the Interest Period
applicable to each thereof; and
(v) a single Funding Date
for all Bid Loans requested.
The G-7 Currency
Administrative Agent shall
promptly inform each Bank of its
receipt of such Bid Loan Request
and the substance thereof. The
Borrowers may not make more than
four Bid Loan Requests under
this Article VIII in any
calendar month, and there shall
be at least five Business Days
between each Funding Date
requested by the Borrowers under
this Article VIII.
SECTION 8.2 Amount and
Increments of Loans. Each Bid
Loan Request under this Article
VIII shall request Bid Loans in
a minimum Equivalent Amount, in
the aggregate for all Interest
Periods, of U.S.$5,000,000 and
an integral multiple of
1,000,000 units of the
applicable G-7 Currency, not to
exceed, however, the amount by
which
(a) the Total
Commitment
exceeds
(b) the sum of the
aggregate outstanding
principal amount of all
outstanding Loans plus all
Letter of Credit
Obligations,
calculated by the G-7 Currency
Administrative Agent as of the
relevant Funding Date, assuming
that the Borrowers will pay,
when due, all Loans maturing
prior to or on such Funding
Date, and that all Loans for
which Notices of Borrowing have
been given and not yet funded
will be made prior to such
Funding Date.
SECTION 8.3 Bidding
Procedure. Each Bank shall have
the right, but not the
obligation, to offer to make all
or any part of any G-7 Currency
Bid Loan or Loans described on
any Bid Loan Request under this
Article VIII in a minimum
Equivalent Amount of
U.S.$1,000,000 and an integral
multiple of 100,000 units of the
applicable G-7 Currency. Any
Bank desiring to make such an
offer shall submit to the G-7
Currency Administrative Agent by
telephone its Bid not later than
10:00 a.m. (London time) four
Business Days prior to the
Funding Date specified in such
Request (such 10:00 a.m. time
herein called the "G-7 Currency
Submission Deadline ) promptly
followed by written
confirmation, substantially in
the form of Exhibit C-2,
personally delivered, or
transmitted by facsimile, to the
G-7 Currency Administrative
Agent; provided that any Bid
submitted by the G-7 Currency
Administrative Agent (or any
Affiliate thereof) in its
capacity as a Bank shall be
submitted not later than 15
minutes prior to the G-7
Currency Submission Deadline.
Each Bank may offer to make all
or any part of any G-7 Currency
Bid Loan or Loans for a single
Interest Period at more than one
interest rate so long as:
(i) such offers are
made in accordance with
the procedures described
herein;
(ii) each interest
rate applies to a portion
of a Bid Loan in a minimum
Equivalent Amount of
U.S.$1,000,000 and an
integral multiple of
100,000 units of the
applicable G-7 Currency;
and
(iii) such Bank does
not offer to make Bid
Loans with more than four
interest rates for any
single Interest Period.
The aggregate amount of Bid
Loans (whether for a single
Interest Period or for all
Interest Periods) offered in a
Bid may exceed the Maximum
Request of the corresponding Bid
Loan Request. However, each Bid
shall set forth the Maximum
Offer which the applicable
Borrower may accept pursuant to
such Bid, and such Maximum Offer
shall not exceed the Maximum
Request.
If any Bid omits information
required by the form provided as
Exhibit C-2, the G-7 Currency
Administrative Agent will
promptly attempt to notify the
Bank submitting such Bid and
such Bank may resubmit such Bid
if it is able to do so prior to
the G-7 Currency Submission
Deadline but without modifying
any G-7 Currency Bid originally
set forth therein.
SECTION 8.4 Acceptance of
Bids.
(a) At or prior to
1:30 p.m. (London time) on
the day of the G-7
Currency Submission
Deadline, the G-7 Currency
Administrative Agent will
give telephonic notice
(promptly confirmed in
writing) to Pentair of all
G-7 Currency Bids received
and the substance thereof.
The applicable Borrower,
acting (in the case of a
Borrower other than
Pentair) through Pentair
as its agent, shall, in
its sole discretion but
subject to the provisions
of Section 8.4(b),
irrevocably accept or
reject any G-7 Currency
Bid (or portion of the
principal amount of any
Bid Loan offered with such
G-7 Currency Bid) by
telephonic notice
(promptly confirmed in
writing) to the G-7
Currency Administrative
Agent, to be given at or
prior to 3:00 p.m. (London
time) on such day. The
G-7 Currency
Administrative Agent will
promptly notify each Bank
that has submitted a G-7
Currency Bid by telephone,
at or prior to 5:00 p.m.
(London time) on such day
(promptly confirmed in
writing), to what extent
such Bank's G-7 Currency
Bid has been accepted and
the details of such
acceptance, together with
instructions regarding the
funding of the G-7
Currency Bid Loans
contemplated thereby. In
the event Pentair fails to
provide such telephonic
notice to the G-7 Currency
Administrative Agent at or
prior to 5:00 p.m. (London
time) on such day, the G-7
Currency Administrative
Agent may presume
conclusively that the
applicable Borrower has
totally rejected all such
G-7 Currency Bids and the
G-7 Currency
Administrative Agent will
notify each Bank that has
submitted a G-7 Currency
Bid of such rejection by
telephone on such day
(promptly confirmed in
writing). At or prior to
noon (London time) two
Business Days prior to the
proposed Funding Date for
any G-7 Currency Bid
Loans, the G-7 Currency
Administrative Agent shall
notify Pentair and each
Bank with respect to which
any portion of such Bank's
G-7 Currency Bid has been
accepted of the Interbank
Offered Rate applicable to
such G-7 Currency Bid
Loans as determined
pursuant to the definition
of "Interbank Offered
Rate.
(b) Acceptance
Guidelines.
(i) Portion Size.
When a Borrower accepts a
portion, but not all, of
the principal amount of
any G-7 Currency Bid Loan
offered for any single
Interest Period at a
single interest rate in
any Bank's Bid, such
Borrower shall accept such
portion in an Equivalent
Amount of not less than
U.S.$1,000,000 and an
integral multiple of
100,000 units of the
applicable G-7 Currency.
(ii) Aggregate
Amount. The amount of all
G-7 Currency Bid Loans
accepted by the Borrowers,
in the aggregate for all
Interest Periods and
interest rates: (i) from
all Banks, pursuant to a
single Bid Loan Request
shall not exceed the
Maximum Request and (ii)
from each Bank, pursuant
to a single Bid Loan
Request shall not exceed
the Maximum Offer of the
corresponding Bid from
such Bank.
(iii) Allocation among
Banks. If a Borrower
accepts any Bid (or any
portion thereof referred
to in paragraph (i) above
in this Section 8.4(b)),
it must accept offers
based exclusively upon
pricing (from lowest to
highest) of interest rate
and no other criteria. If
two or more Banks submit
offers for identical
Interest Periods at
identical pricing and a
Borrower accepts any such
offer (or any such
portion), the principal
amount of Bid Loans in
respect of which such
offers are accepted shall
be allocated among such
Banks as nearly as
possible (in such
multiples, not greater
than 100,000 units of the
applicable G-7 Currency,
as such Borrower may deem
appropriate), in
proportion to the
principal amounts offered
by such Banks at such
pricing.
SECTION 8.5 No Prepayment.
G-7 Currency Bid Loans may not
be prepaid prior to the last day
of their respective Interest
Periods.
SECTION 8.6 General
Provisions as to Payments. The
Borrowers shall make each
payment of principal of, and
interest on, the G-7 Currency
Bid Loans hereunder not later
than 12:00 noon (London time) on
the date when due, in funds
immediately available in London
to the G-7 Currency
Administrative Agent at its
Payment Office. The G-7
Currency Administrative Agent
will promptly distribute to any
Bank each such payment made with
respect to a G-7 Currency Bid
Loan made by such Bank.
Whenever any payment of
principal of, or interest on,
any G-7 Currency Bid Loan shall
be due on a day which is not a
Business Day, the date for
payment thereof shall be
extended to the next succeeding
Business Day unless as a result
thereof it would fall in the
next calendar month, in which
case it shall be advanced to the
next preceding Business Day. If
the date for any payment of
principal is extended by
operation of law or otherwise,
interest thereon shall be
payable for such extended time.
SECTION 8.7 Funding of G-7
Currency Bid Loans. Not later
than 10:00 a.m. (London time) on
the Funding Date of one or more
G-7 Currency Bid Loans, each
Bank with respect to which any
portion of a Bid has been
accepted shall make available
funds covering such Bank's Bid
Loan or Loans in funds
immediately available in London
to the G-7 Currency
Administrative Agent at its
Payment Office. Unless the G-7
Currency Administrative Agent
receives notice or otherwise
determines that any applicable
condition specified in Article X
has not been satisfied, the G-7
Currency Administrative Agent
will make the funds so received
from the Banks available to the
applicable Borrower at the G-7
Currency Administrative Agent's
Payment Office. Notwithstanding
the foregoing provisions of this
Section, to the extent that a
G-7 Currency Bid Loan made by a
Bank matures on the Funding Date
for another G-7 Currency Bid
Loan to be made by such Bank in
the same G-7 Currency, such Bank
shall apply the proceeds of the
G-7 Currency Bid Loan it is then
making to the repayment of the
maturing G-7 Currency Bid Loan.
SECTION 8.8 Rate and
Payment of Interest. Each G-7
Currency Bid Loan shall bear
interest on the outstanding
principal amount thereof, for
the Interest Period applicable
thereto, at a rate per annum
equal to the sum of the
Interbank Offered Rate for such
Interest Period plus (or minus)
the G-7 Currency Bid offered by
the Bank making such Bid Loan
and accepted by the Borrower as
the Margin Rate applicable to
such G-7 Currency Bid Loan
pursuant to Section 8.4(a).
Such interest shall be payable
for each Interest Period on the
last day thereof. Any overdue
principal of and, to the extent
permitted by law, overdue
interest on, any G-7 Currency
Bid Loan shall bear interest,
payable on demand, for each day
from and including the date
payment thereof was due to but
excluding the date of actual
payment, at a rate per annum
equal to the sum of 1% plus the
Eurocurrency Margin plus the
quotient obtained (rounded
upward, if necessary, to the
next higher 1/100 of 1%) by
dividing (i) the interest rate
per annum at which one day (or,
if such amount due remains
unpaid more than three Business
Days, then for such other period
of time not longer than six
months as the G-7 Currency
Administrative Agent may elect)
deposits in the applicable G-7
Currency in an amount
approximately equal to the G-7
Currency Administrative Agent's
such overdue G-7 Currency Bid
Loan, are offered to the G-7
Currency Administrative Agent in
the London interbank market for
the applicable period determined
as provided about by (ii) 1.00
minus the Eurocurrency Reserve
Percentage.
ARTICLE IX
LETTERS OF CREDIT
SECTION 9.1 Letters of
Credit.
(a) Subject to the
terms and conditions of
this Agreement, and on the
condition that the sum of
the aggregate Equivalent
Amount of all Letter of
Credit Obligations and all
Loans outstanding at any
one time shall never
exceed the Total
Commitment, the Borrowers
may, in addition to Loans
provided for in Section
2.2 hereof, request upon
not less than two Business
Days' (or such lesser
period of time as the
applicable Agent and the
applicable Issuing Bank
shall agree) notice from
Pentair to the applicable
Agent and the applicable
Issuing Bank that any
Issuing Bank issue standby
letters of credit for the
account of the Borrowers,
by making such request as
provided in Section 9.6
hereof (such standby
letters of credit, as
amended, supplemented or
extended from time to
time, being herein
collectively called the
"Letters of Credit ).
Each Letter of Credit
shall be in form and
substance, and shall name
a beneficiary,
satisfactory to the
applicable Issuing Bank.
Letters of Credit may be
denominated in any
currency in which Loans
may be made and shall be
in a minimum Equivalent
Amount (at the time of
issuance thereof) of
U.S.$1,000,000. Letters
of Credit denominated in
U.S. Dollars ("U.S. Dollar
Letters of Credit ) shall
be administered by the
U.S. Dollar Administrative
Agent, and Letters of
Credit denominated in any
G-7 Currency ("G-7
Currency Letters of
Credit ) shall be
administered by the G-7
Currency Administrative
Agent. No Letter of
Credit issued pursuant to
this Agreement shall have
an expiration date later
than one year from date of
issuance or later than 25
days before the
Termination Date. No
Letter of Credit shall be
issued if the conditions
to borrowing set forth in
Section 10.1 shall have
not been met.
Notwithstanding any other
provision of this
Agreement, the aggregate
amount of all Letter of
Credit Obligations shall
not at any time exceed an
Equivalent Amount of
U.S.$100,000,000.
(b) The Borrowers
may from time to time,
upon not less than two
Business Days' (or such
lesser period of time as
the applicable Agent and
the applicable Issuing
Bank shall agree) notice
from Pentair to the
applicable Agent and the
applicable Issuing Bank,
request that such Issuing
Bank amend or otherwise
modify any Letter of
Credit. Any Issuing Bank
may agree to so amend or
otherwise modify any
Letter of Credit issued by
such Issuing Bank;
provided that (i) such
Issuing Bank shall give
prompt notice to the
applicable Agent (which
shall notify each other
Bank) of the details of
such amendment or other
modification and (ii) any
amendment or other
modification which would
increase the amount of, or
extend the term of, any
Letter of Credit shall be
deemed to constitute, and
shall be subject to the
terms and conditions
applicable to, the
issuance of a new Letter
of Credit hereunder.
SECTION 9.2 Effect upon
Commitment. Upon the date of
the issuance of a Letter of
Credit, (a) the Issuing Bank
shall notify the applicable
Agent of the issuance thereof,
(b) such Agent shall notify each
other Bank of such issuance and
of such Bank's Commitment
Percentage of the amount of such
Letter of Credit and (c) the
Issuing Bank shall be deemed,
without further action by any
party hereto, to have sold to
each Bank, and each Bank shall
be deemed, without further
action by any party hereto, to
have purchased from the Issuing
Bank, a participation, in a
percentage equal to its
Commitment Percentage, in such
Letter of Credit and the related
Letter of Credit Obligations.
The Commitment of each Bank
shall be deemed to be utilized
for all purposes hereof in an
Equivalent Amount equal to such
Bank's Commitment Percentage of
Letter of Credit Obligations.
SECTION 9.3 Payment under
Letters of Credit. Upon receipt
from the beneficiary of any
Letter of Credit of any demand
for payment thereunder, the
Issuing Bank shall promptly
notify Pentair and each Bank
(with a copy to the applicable
Agent) as to the amount to be
paid as a result of such demand
and the payment date. The
applicable Borrower shall
promptly reimburse the
applicable Issuing Bank for any
payment under a Letter of
Credit. If at any time an
Issuing Bank shall have made a
payment under a Letter of Credit
and the applicable Borrower
shall not have reimbursed the
Issuing Bank, each Bank will pay
to such Issuing Bank,
immediately upon demand by such
Issuing Bank, an amount equal to
such Bank's Commitment
Percentage of such payment,
together with interest on such
amount for each day from the
date of demand for such payment
(or, if such demand is made
after 1:00 p.m. Chicago time on
such date, from the next
succeeding Business Day) to the
date of payment by such Bank of
such amount at a rate of
interest per annum equal to (a)
in the case of a U.S. Dollar
Letter of Credit, (i) for the
first three Business Days after
demand, the Federal Funds
Effective Rate, and (ii)
thereafter, the Reference Rate,
and (b) in the case of a G-7
Currency Letter of Credit, (i)
for the first three Business
Days after demand, the rate
specified by the Issuing Bank as
its cost for overnight funds in
the applicable currency, and
(ii) thereafter, the rate
specified in clause (b)(i) plus
1%.
SECTION 9.4 Reimbursement
of Payments. The applicable
Borrower shall be irrevocably
and unconditionally obligated
forthwith to reimburse the
Issuing Bank for any amount paid
by the Issuing Bank upon any
drawing under any Letter of
Credit, without presentment,
demand, protest or other
formalities of any kind, all of
which are hereby waived. Such
reimbursement may, subject to
satisfaction of the conditions
in Article X hereof and to the
extent of the available
Commitments (after adjustment in
the same to reflect the
elimination of the corresponding
Letter of Credit Obligation), be
made by the borrowing of Loans.
The Issuing Bank will pay
through the applicable Agent to
each Bank such Bank's Commitment
Percentage of all amounts
received from the applicable
Borrower for application in
payment, in whole or in part, of
a Letter of Credit Obligation,
but only to the extent such Bank
has made payment to the Issuing
Bank in respect of such Letter
of Credit pursuant to Section
9.3 above.
SECTION 9.5 Letter of
Credit Fee. The Borrowers will
pay to the applicable Agent for
the account of the Banks
(ratably according to their
Commitment Percentages) a Letter
of Credit fee with respect to
each Letter of Credit,
calculated on the basis of the
amount available for drawing
under such Letter of Credit for
the period from and including
the date of issuance of such
Letter of Credit to and
including the date of expiration
or termination thereof, at a per
annum rate equal to the
Eurocurrency Margin applicable
from time to time, such fee to
be due and payable quarterly in
arrears on the last day of each
calendar quarter and on the
Termination Date (and
thereafter, if applicable, on
demand). All Letter of Credit
fees shall be computed on the
basis of a year of 360 days and
paid for the actual number of
days elapsed until expiration of
such Letter of Credit.
SECTION 9.6 Letter of
Credit Agreements. The issuance
by an Issuing Bank of a Letter
of Credit shall, in addition to
the discretionary nature of this
Facility, be subject to the
conditions precedent that the
Borrowers shall have executed
and delivered such applications
and other instruments and
agreements relating to such
Letter of Credit as the Issuing
Bank shall have reasonably
requested and are not
inconsistent with the terms of
this Agreement (the "Letter of
Credit Agreements'). In the
event of a conflict between the
terms of this Agreement and the
terms of any Letter of Credit
Agreement, the terms hereof
shall control (it being
understood that any Letter of
Credit Agreement may provide for
a fronting fee and other
customary fees and charges to be
paid in connection with any
Letter of Credit issued
thereunder).
SECTION 9.7
Indemnification; Release. Each
Borrower hereby indemnifies and
holds harmless each Agent, each
Issuing Bank and each Bank from
and against any and all claims,
damages, losses, liabilities,
costs or expenses which such
Agent, such Issuing Bank or such
Bank may incur (or which may be
claimed against such Agent, such
Issuing Bank or such Bank by any
Person whatsoever), REGARDLESS
OF WHETHER CAUSED IN WHOLE OR IN
PART BY THE NEGLIGENCE OF ANY OF
THE INDEMNIFIED PARTIES, in
connection with, and releases
each Agent, each Issuing Bank
and each Bank from any claim
relating to, the execution and
delivery of any Letter of Credit
or transfer of or payment or
failure to pay under such Letter
of Credit; provided that the
Borrowers shall not be required
to indemnify any party seeking
indemnification for any claims,
damages, losses, liabilities,
costs or expenses to the extent,
but only to the extent, caused
by (ii) the willful misconduct
or gross negligence of the party
seeking indemnification, or (ii)
the failure by the party seeking
indemnification to pay under any
Letter of Credit after the
presentation to it of a request
required to be paid under
applicable law.
ARTICLE X
CONDITIONS TO BORROWINGS
The obligation of each Bank
to make a Loan on the occasion
of any Borrowing pursuant
hereto, and the right of any
Borrower to request the issuance
of any Letter of Credit
hereunder, is subject to the
satisfaction of the following
conditions:
SECTION 10.1 All Borrowings
and Issuances of Letters of
Credit. In the case of each
Borrowing or issuance of a
Letter of Credit:
(a) receipt (i) by
the applicable Agent of a
Notice of Borrowing as
required by Section 3.1,
4.1, 5.1, 6.1, 7.4 or 8.4,
as the case may be, or
(ii) of a request to issue
a Letter of Credit as
required by Section 9.1;
(b) the fact that,
as of the time of and
immediately after such
Borrowing or the issuance
of such Letter of Credit,
no Default (or, in the
case of a Borrowing of
Refinancing Loans, no
Event of Default) shall
have occurred and be
continuing;
(c) the fact that
the representations and
warranties of the
Borrowers and the
Guarantor contained in
this Agreement (excluding,
in the case of a
Refinancing Borrowing, the
representations and
warranties set forth in
Sections 11.4(c) and 11.5)
shall be true on and as of
the date of such Borrowing
or the issuance of such
Letter of Credit; and
(d) the fact that,
as of the time immediately
after such Borrowing or
the issuance of such
Letter of Credit, the
aggregate principal
Equivalent Amount of all
Loans and all Letter of
Credit Obligations
outstanding shall not
exceed the Total
Commitment, the aggregate
principal Equivalent
Amount of all Canadian
Loans will not exceed the
Canadian Commitment and
the aggregate principal
amount of all Overnight
Loans outstanding shall
not exceed the Overnight
Commitment.
Each Notice of Borrowing and
Borrowing hereunder and the
request for issuance of, and the
issuance of, each Letter of
Credit shall be deemed to be a
representation and warranty by
the Borrowers on such date as to
the facts specified in clauses
(b), (c) and (d) of this
Section.
SECTION 10.2 First
Borrowing. On or before the
date of the first Borrowing (or
the issuance of any Letter of
Credit):
(a) receipt by each
Bank for the account of
such Bank of duly executed
Notes, dated on or before
the date of such Borrowing
or the issuance of such
Letter of Credit,
complying with the
provisions of Section 2.5.
(b) receipt by each
Bank of opinions of Xxxxxx
& Efron, counsel for the
Borrowers, and Gowling,
Strathy & Xxxxxxxxx,
Canadian counsel for
Pentair Canada,
substantially in the form
of Exhibits D-1 and D-2
hereto, respectively;
(c) receipt by each
Bank of a certificate
signed by an officer of
each of the Borrowers, to
the effect set forth in
clauses (b), (c) and (d)
of Section 10.1, and
containing the resolutions
of the Borrowers
authorizing the execution,
delivery and performance
of this Agreement and the
Notes; and
(d) receipt by each
Bank of an incumbency
certificate which shall
identify by name and title
and bear the signatures of
the officers of the
Borrowers authorized to
sign this Agreement and
the Notes, upon which
certificate the Banks
shall be entitled to rely
until informed in writing
by Pentair of any change.
The certificate and opinions
referred to in clauses (b), (c)
and (d) above shall be dated no
more than ten Business Days
before the date of the first
Borrowing or the issuance of the
first Letter of Credit,
whichever is earlier.
SECTION 10.3 Use of
Proceeds of First Borrowing and
Transition. Pentair and, in one
instance, EuroPentair GmbH, are
parties to the following
agreements (the "Prior
Agreements ):
(a) Facility
Agreements dated as of
February 11, 1994, as
amended as of November 1,
1994, and October 31,
1995, among (i) Pentair,
Bank of America Illinois
and Xxxxxx, for themselves
and as Agents, and NBD
Bank, (ii) Pentair and
First Bank, for itself and
as Agent, and Norwest Bank
Minnesota, N.A., and
(iii) EuroPentair GmbH and
Pentair, and Xxxxxx and
Bank of America Illinois,
for themselves and as
Agents, NBD Bank - First
Chicago, and Dresdner Bank
AG;
(b) Restatement of
Credit Agreement dated as
of July 11, 1989, as
amended as of September 1,
1991, January 19, 1993,
and December 31, 1994,
between Pentair and First
Bank; and
(c) Bid Loan
Agreement dated as of
December 14, 1988, as
amended as of January 1,
1991 and February 11,
1994, among Pentair, Bank
of America Illinois, for
itself and as Agent,
Xxxxxx, X.X. Xxxxxx
Delaware, First Bank
National Association,
Norwest Bank Minnesota,
N.A., and NBD Bank -
First Chicago.
All or a portion of the first
Borrowing shall be used to pay
in full all outstanding
obligations, if any, of the
Borrowers under the Prior
Agreements; provided, however,
that each "Bid Loan" which is
outstanding under the Bid Loan
Agreement referred to in clause
(c) above shall, concurrently
with the first Borrowing
hereunder (and without any other
action by any Person), be deemed
to be a Domestic Bid Loan
hereunder and to be subject to
the terms and provisions hereof.
Upon satisfaction in full of all
obligations, if any, of each
Borrower under the Prior
Agreements (excluding
obligations in respect of
existing "Bid Loans" which are
deemed to have become Domestic
Bid Loans hereunder), each Bank
which is the holder of any note
issued by the Borrowers under
the Prior Agreements shall
deliver each such note, marked
paid, to the applicable
Borrower, and the Prior
Agreements shall terminate.
From and after the execution of
this Agreement, the Borrowers
shall have no further right to
borrow funds under the Prior
Agreements.
ARTICLE XI
REPRESENTATIONS AND WARRANTIES
The Borrowers represent and
warrant that:
SECTION 11.1 Corporate
Existence and Power.
(a) Pentair is a
corporation duly
incorporated, validly
existing and in good
standing under the laws of
Minnesota and has all
corporate powers and all
material governmental
licenses, authorizations,
consents and approvals
required to carry on its
business as now conducted.
(b) EuroPentair GmbH
is a limited liability
company duly incorporated
and validly existing under
the laws of Germany, with
its seat in Straubenhardt,
Germany and registered in
the Handelsregister in the
Amtsgericht Pforzheim
under file number
HRB-3548, and has all
corporate powers and all
material governmental
licenses, authorizations,
consents and approvals
required to carry on its
business as now conducted.
(c) Pentair Canada
is a corporation duly
incorporated, validly
existing and in good
standing under the laws of
Ontario, Canada and has
all corporate powers and
all material governmental
licenses, authorizations,
consents and approvals
required to carry on its
business as now conducted.
SECTION 11.2 Corporate and
Governmental Authorization;
Contravention. The execution,
delivery and performance by the
Borrowers of this Agreement and
the Notes are within their
respective corporate powers,
have been duly authorized by all
necessary corporate action,
require no action by or in
respect of, or filing with, any
governmental body, agency or
official and do not contravene,
or constitute a default under,
any provision of applicable law
or regulation or of the
certificate of incorporation or
by-laws or other organizational
documents of any Borrower or of
any agreement, judgment,
injunction, order, decree or
other instrument binding upon
any Borrower or result in the
creation or imposition of any
Lien on any asset of any
Borrower or any of Pentair's
Subsidiaries.
SECTION 11.3 Binding
Effect. This Agreement
constitutes a valid and binding
agreement of each of the
Borrowers, and the Notes, when
executed and delivered in
accordance with this Agreement,
will constitute valid and
binding obligations of the
respective Borrowers.
SECTION 11.4 Financial
Information.
(a) The consolidated
balance sheet of Pentair
and its Consolidated
Subsidiaries at December
31, 1995 and the related
consolidated statements of
income and cash flows for
the fiscal year then
ended, reported on by
Deloitte & Touche LLP and
set forth in Pentair's
annual report for the year
ended December 31, 1995 as
filed with the Securities
and Exchange Commission on
Form 10-K, a copy of which
has been delivered to each
Bank, fairly present, in
conformity with generally
accepted accounting
principles, the
consolidated financial
position of Pentair and
its Consolidated
Subsidiaries at such date
and their consolidated
results of operations and
cash flows for such fiscal
year.
(b) The unaudited
consolidated balance sheet
of Pentair and its
Consolidated Subsidiaries
at June 30, 1996 and the
related unaudited
consolidated statements of
income and cash flows for
the three months then
ended, set forth in
Pentair's quarterly report
for the fiscal quarter
ended June 30, 1996 as
filed with the Securities
and Exchange Commission on
Form 10-Q, a copy of which
has been delivered to each
Bank, fairly present, in
conformity with generally
accepted accounting
principles applied on a
basis consistent with the
financial statements
referred to in paragraph
(a) of this Section, the
consolidated financial
position of Pentair and
its Consolidated
Subsidiaries at such date
and their consolidated
results of operations and
cash flows for such
three-month period
(subject to normal
year-end adjustments).
(c) Since December
31, 1995 there has been no
material adverse change in
the business, financial
position, results of
operations or prospects of
Pentair and its
Consolidated Subsidiaries,
considered as a whole.
SECTION 11.5 Litigation.
There is no action, suit or
proceeding pending, or to the
knowledge of any of the
Borrowers threatened, against or
affecting any of the Borrowers
or any of their respective
Subsidiaries before any court or
arbitrator or any governmental
body, agency or official in
which there is a reasonable
possibility of an adverse
decision which could materially
adversely affect the business,
consolidated financial position
or consolidated results of
operations of Pentair and its
Consolidated Subsidiaries, taken
as a whole, or which in any
manner questions the validity of
this Agreement or the Notes.
SECTION 11.6 Compliance
with ERISA. Pentair and each
member of the Controlled Group
have fulfilled their obligations
under the minimum funding
standards of ERISA and the Code
with respect to each Plan and
are in compliance in all
material respects with the
presently applicable provisions
of ERISA and the Code, and have
not incurred any liability to
the PBGC or a Plan under Title
IV of ERISA.
SECTION 11.7 Taxes. The
Borrowers and their respective
Subsidiaries have filed all
foreign, United States federal,
state and local income, excise
and other tax returns which are
required to be filed by them and
have paid or made provision for
the payment of all taxes which
have become due pursuant to such
returns or pursuant to any
assessment in respect thereof
received by any Borrower or any
of its Subsidiaries, except such
taxes, if any, as are being
contested in good faith and for
which adequate reserves have
been provided. The federal
income tax liability, if any, of
the Borrowers and their
respective Subsidiaries has been
determined by the Internal
Revenue Service and paid for all
years prior to and including the
fiscal year ended December 31,
1984.
SECTION 11.8 Subsidiaries.
Each of the Borrowers'
respective Subsidiaries is a
corporation duly incorporated,
validly existing and in good
standing under the laws of its
jurisdiction of incorporation
and has all corporate powers and
all material governmental
licenses, authorizations,
consents and approvals required
to carry on its business as now
conducted.
SECTION 11.9 Not an
Investment Company. None of the
Borrowers is an "investment
company" within the meaning of
the Investment Company Act of
1940, as amended.
SECTION 11.10 Environmental
Matters. Pentair conducts in
the ordinary course of business
a review of the effect of
existing Environmental Laws and
existing Environmental Claims on
business, operations and
properties of Pentair and its
Subsidiaries, and as a result
thereof Pentair has reasonably
concluded that such
Environmental Laws and
Environmental Claims could not,
individually or in the
aggregate, reasonably be
expected to have a material
adverse effect on the business,
consolidated financial position
or consolidated results of
operations of Pentair and its
Subsidiaries taken as a whole.
ARTICLE XII
COVENANTS
The Borrowers agree that so
long as any Bank has any
Commitment hereunder or any
amount payable under any Note
remains unpaid:
SECTION 12.1 Information.
Pentair will deliver to each of
the Banks:
(a) as soon as
available and in any event
within 90 days after the
end of each fiscal year of
Pentair, a consolidated
balance sheet of Pentair
and its Consolidated
Subsidiaries at the end of
such fiscal year and the
related consolidated
statements of income and
cash flows for such fiscal
year, setting forth in
each case in comparative
form the figures for the
previous fiscal year, all
reported on in accordance
with the rules and
regulations of the
Securities and Exchange
Commission and audited by
Deloitte & Touche LLP or
other independent public
accountants of nationally
recognized standing;
(b) as soon as
available and in any event
within 45 days after the
end of each of the first
three quarters of each
fiscal year of Pentair, a
consolidated balance sheet
of Pentair and its
Consolidated Subsidiaries
at the end of such quarter
and the related
consolidated statements of
income and cash flows for
such quarter and for the
portion of Pentair's
fiscal year ended at the
end of such quarter,
setting forth in each case
in comparative form the
figures for the
corresponding quarter and
the corresponding portion
of Pentair's previous
fiscal year, all certified
(subject to normal
year-end adjustments) as
to fairness of
presentation, generally
accepted accounting
principles and consistency
by the chief financial
officer, the chief
accounting officer or the
vice president - treasurer
of Pentair;
(c) simultaneously
with the delivery of each
set of financial
statements referred to in
clauses (a) and (b) above,
a certificate of the chief
financial officer or the
chief accounting officer
of Pentair (i) setting
forth in reasonable detail
the calculations required
to establish whether
Pentair was in compliance
with the requirements of
Sections 12.2 to 12.7,
inclusive, on the date of
such financial statements
and (ii) stating whether
there exists on the date
of such certificate any
Default and, if any
Default then exists,
setting forth the details
thereof and the action
which Pentair is taking or
proposes to take with
respect thereto;
(d) simultaneously
with the delivery of each
set of financial
statements referred to in
clause (a) above, a
statement of the firm of
independent public
accountants which reported
on such statements (i)
whether anything has come
to their attention to
cause them to believe that
there existed on the date
of such statements any
Default and (ii)
confirming the
calculations set forth in
the officer's certificate
delivered simultaneously
therewith pursuant to
clause (c) above;
(e) forthwith upon
the occurrence of any
Default, a certificate of
the chief financial
officer or the chief
accounting officer of
Pentair setting forth the
details thereof and the
action which Pentair is
taking or proposes to take
with respect thereto;
(f) promptly upon
the mailing thereof to the
shareholders of Pentair
generally, copies of all
financial statements,
reports and proxy
statements so mailed;
(g) promptly upon
the filing thereof, copies
of all registration
statements (other than the
exhibits thereto and any
registration statements on
Form S-8 or its
equivalent) and annual,
quarterly or monthly
reports which Pentair
shall have filed with the
Securities and Exchange
Commission;
(h) if and when
Pentair or any member of
the Controlled Group gives
or is required to give
notice to the PBGC of any
"reportable event" (as
defined in Section 4043 of
ERISA) with respect to any
Plan which might
constitute grounds for a
termination of such Plan
under Title IV of ERISA,
or knows that the plan
administrator of any Plan
has given or is required
to give notice of any such
reportable event, a copy
of the notice of such
reportable event given or
required to be given to
the PBGC;
(i) from time to
time such additional
information regarding the
financial position or
business of the Borrowers
as an Agent, at the
request of any Bank, may
reasonably request;
(j) as soon as
available and in any event
(i) within 90 days after
the end of each fiscal
year of Pentair and (ii)
within 45 days of the end
of each of the first three
quarters of each fiscal
year of Pentair, a
consolidating balance
sheet and the related
consolidating statement of
income, with respect only
to Pentair's operating
businesses, for the
relevant fiscal period
(and, for interim fiscal
quarters, for the portion
of the year ended at the
end of such quarter),
certified as to fairness
of presentation, generally
accepted accounting
principles and consistency
by the chief financial
officer, the chief
accounting officer or the
vice president - treasurer
of Pentair;
(k) as soon as
available and in any event
within 360 days after the
end of each fiscal year of
each Borrower other than
Pentair, a balance sheet
of such Borrower at the
end of such fiscal year
and the related statement
of income for such fiscal
year, setting forth in
each case in comparative
form the figures for the
previous fiscal year,
certified as to fairness
of presentation, generally
accepted accounting
principles applicable in
such Borrower's country of
domicile and consistency
in accordance with
applicable local law; and
(l) simultaneously
with the delivery of the
financial statements
referred to in clause (k)
above, a certificate of an
officer of each such
Borrower stating whether
there exists on the date
of such certificate any
Default and, if any
Default then exists,
setting forth the details
thereof and the action
which such Borrower is
taking or proposes to take
with respect thereto.
SECTION 12.2 Debt to Total
Capital Ratio. The Debt to
Total Capital Ratio will at no
time exceed .60.
SECTION 12.3 Minimum
Consolidated Shareholders'
Equity. Consolidated
Shareholders' Equity will at no
time be less than the sum of (a)
U.S.$425,000,000 plus (b) 50% of
Consolidated Cumulative Net
Income plus (c) 50% of the
proceeds of all classes of
equity securities issued by
Pentair after June 30, 1996.
SECTION 12.4 Expense Ratio.
At any time when the Debt to
Total Capital Ratio exceeds .50,
as of the end of each quarter of
each of Pentair's fiscal years,
the ratio of
(a) consolidated net
income before taxes plus
(to the extent deducted in
calculating net income
before taxes) Interest
Expense and rent expense
to
(b) Interest Expense
and rent expense,
(the "Expense Ratio ) calculated
on a cumulative basis for the
four most recent fiscal quarters
(excluding in each case interest
and rent expense of any joint
venture or other entity in which
Pentair or a Consolidated
Subsidiary has an ownership
interest but which is not a
Subsidiary), will not be less
than 1.5:1.0.
SECTION 12.5 Negative
Pledge. Neither the Borrowers
nor any Consolidated Subsidiary
will create, assume or suffer to
exist any Lien securing Debt on
any asset now owned or hereafter
acquired by any of them, except:
(a) Liens existing
on the date of this
Agreement (it being
understood that each such
Lien which secures Debt in
an aggregate principal
amount of more than
U.S.$1,000,000 is
disclosed in the financial
information referred to in
Section 11.4);
(b) any Lien
existing on any asset of
any corporation at the
time such corporation
becomes a Consolidated
Subsidiary and not created
in contemplation of such
event;
(c) any Lien on any
asset securing Debt
incurred or assumed for
the purpose of financing
all or any part of the
cost of acquiring such
asset, provided that such
Lien attaches to such
asset concurrently with or
within 90 days after the
acquisition thereof;
(d) any Lien on any
asset of any corporation
existing at the time such
corporation is merged into
or consolidated with a
Borrower or a Consolidated
Subsidiary and not created
in contemplation of such
event;
(e) any Lien
existing on any asset
prior to the acquisition
thereof by a Borrower or a
Consolidated Subsidiary
and not created in
contemplation of such
acquisition;
(f) any Lien arising
out of the refinancing,
extension, renewal or
refunding of any Debt
secured by any Lien
permitted by any of the
foregoing clauses of this
Section, provided that
such Debt is not increased
and is not secured by any
additional assets;
(g) any Lien arising
pursuant to any order of
attachment, distraint or
similar legal process
arising in connection with
court proceedings so long
as the execution or other
enforcement thereof is
effectively stayed and the
claims secured thereby are
being contested in good
faith by appropriate
proceedings;
(h) any Lien on
trade receivables arising
out of a Sale of
Receivables; and
(i) Liens not
otherwise permitted by the
foregoing clauses of this
Section securing Debt in
an aggregate principal
amount at any time
outstanding not exceeding
12.5% of Consolidated
Shareholders' Equity.
SECTION 12.6
Consolidations, Mergers and
Sales of Assets. No Borrower
will merge or consolidate with
any other non-affiliated Person
or sell, lease, transfer or
otherwise dispose of
substantially all of its assets
as an entirety to any other
Person unless:
(a) the Person
surviving the merger or
consolidation is the
applicable Borrower; and
(b) immediately
after giving effect to any
such action, no Default
shall have occurred and be
continuing.
SECTION 12.7 Subsidiary
Debt. Pentair will not at any
time permit the aggregate amount
of all outstanding Debt of its
Subsidiaries, excluding:
(a) obligations
assumed in connection with
acquisitions;
(b) Debt under this
Agreement; and
(c) Debt incurred in
respect of any Sale of
Receivables;
to exceed twenty percent (20%)
of Consolidated Shareholders'
Equity.
SECTION 12.8 Use of
Proceeds. The proceeds of the
Loans made and the issued under
this Agreement will be used by
the Borrowers to refinance the
promissory notes executed and
delivered by the Borrowers under
the Prior Agreements and
otherwise for general corporate
purposes. None of such proceeds
will be used, directly or
indirectly, for the purpose,
whether immediate, incidental or
ultimate, of purchasing or
carrying any "margin stock"
within the meaning of Regulation
U of the Board of Governors of
the Federal Reserve System.
None of the Borrowers will
engage principally, or as one of
its important activities, in the
business of extending credit for
the purpose of purchasing or
carrying any such margin stock
within the meaning of such
Regulation U.
SECTION 12.9 Environmental
Laws. Pentair shall, and shall
cause each of its Subsidiaries
to, conduct its operations in
compliance with all
Environmental Laws, except for
such noncompliance which
individually or in the aggregate
would not be reasonably expected
to result in material liability
to Pentair and its Subsidiaries
taken as a whole.
SECTION 12.10 Sales of
Receivables. Pentair shall not,
and shall not permit any
Subsidiary to, engage in any
Sale of Receivables if the
outstanding principal Equivalent
Amount of loans secured in
connection with all Sales of
Receivables plus (without
duplication) the outstanding
investment all receivables sold
pursuant to Sales of Receivables
would at any time exceed an
Equivalent Amount of
U.S.$50,000,000.
ARTICLE XIII
DEFAULTS
SECTION 13.1 Events of
Default. If one or more of the
following events ("Events of
Default") shall have occurred
and be continuing:
(a) any of the
Borrowers shall fail to
pay within three days of
the date due any principal
of any Loan; or any of the
Borrowers shall fail to
pay within five (5) days
of the date due any
interest on any Loan, any
fee or any other amount
payable hereunder;
(b) any of the
Borrowers shall fail to
observe or perform any
covenant contained in
Sections 12.2 to 12.9,
inclusive;
(c) any of the
Borrowers shall fail to
observe or perform any
other covenant or
agreement contained in
this Agreement for 30 days
after written notice
thereof has been given to
Pentair by the U.S. Dollar
Administrative Agent at
the request of any Bank;
(d) any
representation, warranty,
certification or statement
made by any of the
Borrowers in this
Agreement or in any
certificate, financial
statement or other
document delivered
pursuant to this Agreement
shall prove to have been
incorrect in any material
respect when made;
(e) any event or
condition shall occur
which results in the
acceleration of the
maturity of any Debt
(other than the Notes) of
any of the Borrowers or
any of their respective
Subsidiaries equal to or
exceeding an Equivalent
Amount of U.S.$20,000,000
in the aggregate for all
such Debt or enables (or,
with the giving of notice
or lapse of time or both,
would enable) the holder
of any such Debt or any
Person acting on such
holder's behalf to
accelerate the maturity
thereof or any of the
Borrowers or any of their
respective Subsidiaries
shall fail to pay when due
(subject to any applicable
grace period) Debt which
in the aggregate exceeds
such Equivalent Amount;
provided, however, that at
any time Pentair has Debt
outstanding, obtained
through one or more public
or private placements
thereof to institutional
investors, with a
principal amount of an
Equivalent Amount of
U.S.$25,000,000 or more
outstanding, which has a
threshold for
cross-default similar to
this subparagraph 12.1(e)
lower than an Equivalent
Amount of U.S.$20,000,000,
the threshold for the
purposes of this
subparagraph 12.1 (e)
shall be the lowest
threshold amount under any
such financing;
(f) Pentair or any
of its Material
Subsidiaries shall
commence a voluntary case
or other proceeding
seeking liquidation,
reorganization or other
relief with respect to
itself or its debts under
any bankruptcy, insolvency
or other similar law now
or hereafter in effect or
seeking the appointment of
a trustee, receiver,
liquidator, custodian or
other similar official of
it or any substantial part
of its property or shall
consent to any such relief
or to the appointment of
or taking possession by
any such official in an
involuntary case or other
proceeding commenced
against it or shall make a
general assignment for the
benefit of creditors or
shall commence or consent
to a proceeding for
approval of a plan of
arrangement with respect
to its debts or shall fail
generally to pay its debts
as they become due or
shall take any corporate
action to authorize any of
the foregoing;
(g) an involuntary
case or other proceeding
shall be commenced against
Pentair or any of its
Material Subsidiaries
seeking liquidation,
reorganization or other
relief with respect to it
or its debts under any
bankruptcy, insolvency or
other similar law now or
hereafter in effect or
seeking the appointment of
a trustee, receiver,
liquidator, custodian or
other similar official of
it or any substantial part
of its property and such
involuntary case or other
proceeding shall remain
undismissed and unstayed
for a period of 60 days;
or an order for relief
shall be entered against
Pentair or any of its
Material Subsidiaries
under the federal
bankruptcy laws or similar
bankruptcy or insolvency
laws of any other
applicable jurisdiction as
now or hereafter in
effect;
(h) Pentair or any
member of the Controlled
Group shall fail to pay
when due an amount or
amounts aggregating in
excess of U.S.$10,000,000
which it shall have become
liable to pay to the PBGC
or to a Plan under Title
IV of ERISA; or Pentair or
any member of the
Controlled Group shall
file a distress
termination notice with
the PBGC and the amount of
the Unfunded Vested
Liabilities under that
filing exceeds
U.S.$5,000,000; or the
PBGC shall institute
proceedings under Title IV
of ERISA to terminate or
to cause a trustee to be
appointed to administer
any such Plan or Plans or
a proceeding shall be
instituted by a fiduciary
of any such Plan or Plans
to enforce Section 515 of
ERISA and such proceeding
shall not have been
dismissed within 30 days
thereafter; or a condition
shall exist by reason of
which the PBGC would be
entitled to obtain a
decree adjudicating that
any such Plan or Plans
must be terminated;
(i) a judgment or
order for the payment of
money in excess of an
Equivalent Amount of
U.S.$10,000,000 shall be
rendered against any
Borrower or any of its
respective Subsidiaries
and such judgment or order
shall continue unsatisfied
and unstayed for a period
of 60 days;
(j) any Person or
two or more Persons acting
in concert shall have
acquired beneficial
ownership (within the
meaning of Rule 13d-3 of
the Securities and
Exchange Commission under
the Securities Exchange
Act of 1934) of 50% or
more of the outstanding
shares of voting stock of
Pentair; or
(k) within a period
of twelve consecutive
months, three-fourths of
the directors of the board
of directors of Pentair
shall have changed;
then, and in every such event,
(1) in the case of
any of the Events of
Default specified in
paragraphs (a) through
(e), or (h) through (k)
above, the Agents or any
one or more of them shall
(i) if requested by Banks
having 50% or more in
aggregate amount of the
Commitments, by notice to
the Borrowers (with a copy
to all Banks and all
Agents), terminate the
Commitments and they shall
thereupon terminate,
and/or (ii) if requested
by Banks holding Notes
evidencing 50% or more in
aggregate principal amount
of the Loans, by notice to
the Borrowers (with a copy
to all Banks and all
Agents) declare the Notes
(together with accrued
interest thereon) to be,
and the Notes shall
thereupon become,
immediately due and
payable without
presentment, demand,
protest or other notice of
any kind, all of which are
hereby waived by the
Borrowers; and
(2) in the case of
any of the Events of
Default specified in
paragraph (f) or (g)
above, without any notice
to the Borrowers or any
other act by any Agent or
the Banks, the Commitments
shall thereupon terminate
and the Notes (together
with accrued interest
thereon) shall become
immediately due and
payable without
presentment, demand,
protest or other notice of
any kind, all of which are
hereby waived by the
Borrowers.
SECTION 13.2 Notice of
Default. The U.S. Dollar
Administrative Agent shall give
notice to the Borrowers under
Section 13.1(c) promptly upon
being requested to do so by any
Bank and shall thereupon notify
all the Banks thereof.
SECTION 13.3 Letters of
Credit. In addition to the
foregoing remedies, if any Event
of Default described in Section
13.1 (f) or (g) shall have
occurred, or if any other Event
of Default described in Section
13.1 shall have occurred and the
Agents or any one or more of
them shall have demanded that
the Borrowers provide cash
collateral for the Letters of
Credit, each Borrower shall pay
to the applicable Agent, as
agent and bailee for the benefit
of the Banks, in respect of each
Letter of Credit issued for the
account of such Borrower an
amount equal to all of the then
outstanding Letter of Credit
Obligations of such Borrower.
Such payment shall be in
immediately available funds or
in similar cash collateral
acceptable to the applicable
Agent. Such amount shall be
held by such Agent in a cash
collateral account until the
outstanding Letters of Credit
are terminated without payment
or are paid. In the event the
applicable Borrower defaults in
the payment of any Letter of
Credit Obligations, the proceeds
of the cash collateral account
shall be applied to the payment
thereof. The Borrowers
acknowledge and agree that the
Banks would not have an adequate
remedy at law for failure by a
Borrower to pay immediately to
the applicable Agent the amount
provided under this Section, and
that such Agent and the Banks
shall have the right to require
such Borrower to perform
specifically such undertaking
whether or not any of the Letter
of Credit Obligations are due
and payable. Upon the failure
of any Borrower to make any
payment required under this
Section, the Agents, on behalf
of the Banks, may proceed to use
all remedies available at law or
in equity to enforce the
obligation of such Borrower to
pay or reimburse such Agent,
including without limitation any
right the Agent, any Issuing
Bank or any Bank may have to
enforce any security interest in
any collateral for such
obligations. The balance of any
payment due under this Section
13.3 shall bear interest payable
on demand until paid in full at
a per annum rate equal to the
Reference Rate plus 2% (or, in
the case of a G-7 Currency
Letter of Credit, the rate that
would be applicable to overdue
principal of a Loan as
determined by the G-7 Currency
Administrative Agent in
accordance with the second
sentence of Section 4.2(a).
ARTICLE XIV
THE AGENTS
SECTION 14.1 Appointment
and Authorization. Each Bank
hereby irrevocably (subject to
Section 14.9) appoints,
designates and authorizes each
Agent to take such action on its
behalf under the provisions of
this Agreement and the Notes and
to exercise such powers and
perform such duties as are
expressly delegated to it by the
terms of this Agreement or the
Notes, together with such powers
as are reasonably incidental
thereto. Notwithstanding any
provision to the contrary
contained elsewhere in this
Agreement or in any Note, no
Agent shall have any duties or
responsibilities, except those
expressly set forth herein, nor
shall any Agent have or be
deemed to have any fiduciary
relationship with any Bank, and
no implied covenants, functions,
responsibilities, duties,
obligations or liabilities shall
be read into this Agreement or
any Note or otherwise exist
against any Agent.
SECTION 14.2 Delegation of
Duties. Each Agent may execute
any of its duties under this
Agreement or any Note by or
through agents, employees or
attorneys-in-fact and shall be
entitled to advice of counsel
concerning all matters
pertaining to such duties.
Without limiting the foregoing,
the Canadian Administrative
Agent may delegate certain of
its duties hereunder to the U.S.
Dollar Administrative Agent. No
Agent shall be responsible for
the negligence or misconduct of
any agent or attorney-in-fact
that it selects with reasonable
care.
SECTION 14.3 Liability of
Agents. None of the
Agent-Related Persons shall (i)
be liable for any action taken
or omitted to be taken by any of
them under or in connection with
this Agreement or any Note or
the transactions contemplated
hereby (except for its own gross
negligence or willful
misconduct), or (ii) be
responsible in any manner to any
of the Banks for any recital,
statement, representation or
warranty made by any Borrower,
or any officer thereof,
contained in this Agreement or
in any certificate, report,
statement or other document
referred to or provided for in,
or received by any Agent under
or in connection with, this
Agreement or any Note, or the
validity, effectiveness,
genuineness, enforceability or
sufficiency of this Agreement or
any Note, or for any failure of
Pentair or any other Borrower to
perform any of its obligations
hereunder. No Agent-Related
Person shall be under any
obligation to any Bank to
ascertain or to inquire as to
the observance or performance of
any of the agreements contained
in, or conditions of, this
Agreement or any Note, or to
inspect the properties, books or
records of any Borrower or any
Subsidiaries or affiliates of
any Borrower.
SECTION 14.4 Reliance by
Agents. Each Agent shall be
entitled to rely, and shall be
fully protected in relying, upon
any writing, resolution, notice,
consent, certificate, affidavit,
letter, telegram, facsimile,
telex or telephone message,
statement or other document or
conversation believed by it to
be genuine and correct and to
have been signed, sent or made
by the proper Person or Persons,
and upon advice and statements
of legal counsel (including
counsel to any Borrower),
independent accountants and
other experts selected by any
Agent. Each Agent shall be
fully justified in failing or
refusing to take any action
under this Agreement or any Note
unless it shall first receive
such advice or concurrence of
the Required Banks as it deems
appropriate and, if it so
requests, it shall first be
indemnified to its satisfaction
by the Banks against any and all
liability and expense which may
be incurred by it by reason of
taking or continuing to take any
such action. Each Agent shall
in all cases be fully protected
in acting, or in refraining from
acting, under this Agreement or
any Note in accordance with a
request or consent of the
Required Banks, and such request
and any action taken or failure
to act pursuant thereto shall be
binding upon all of the Banks.
SECTION 14.5 Notice of
Default. No Agent shall be
deemed to have knowledge or
notice of the occurrence of any
Default or Event of Default,
except with respect to defaults
in the payment of principal,
interest and fees required to be
paid to such Agent for the
account of the Banks, unless
such Agent shall have received
written notice from a Bank or a
Borrower referring to this
Agreement, describing such
Default or Event of Default and
stating that such notice is a
"notice of default". If any
Agent receives such a notice,
such Agent will notify the other
Agents and the Banks of its
receipt thereof. Each Agent
shall take such action with
respect to such Default or Event
of Default as may be requested
by the Required Banks in
accordance with Article XIII;
provided, however, that unless
and until such Agent has
received any such request, such
Agent may (but shall not be
obligated to) take such action,
or refrain from taking such
action, with respect to such
Default or Event of Default as
it shall deem advisable or in
the best interest of the Banks.
SECTION 14.6 Credit
Decision. Each Bank
acknowledges that none of the
Agent-Related Persons has made
any representation or warranty
to it, and that no act by any
Agent hereinafter taken,
including any review of the
affairs of the Borrowers, shall
be deemed to constitute any
representation or warranty by
any Agent-Related Person to any
Bank. Each Bank represents to
each Agent that it has,
independently and without
reliance upon any Agent-Related
Person and based on such
documents and information as it
has deemed appropriate, made its
own appraisal of and
investigation into the business,
prospects, operations, property,
financial and other condition
and creditworthiness of Pentair
and its Subsidiaries, and all
applicable bank regulatory laws
relating to the transactions
contemplated hereby, and made
its own decision to enter into
this Agreement and to extend
credit to the Borrowers
hereunder. Each Bank also
represents that it will,
independently and without
reliance upon any Agent-Related
Person and based on such
documents and information as it
shall deem appropriate at the
time, continue to make its own
credit analysis, appraisals and
decisions in taking or not
taking action under this
Agreement, and to make such
investigations as it deems
necessary to inform itself as to
the business, prospects,
operations, property, financial
and other condition and
creditworthiness of the
Borrowers. Except for notices,
reports and other documents
expressly herein required to be
furnished to the Banks by an
Agent, no Agent shall have any
duty or responsibility to
provide any Bank with any credit
or other information concerning
the business, prospects,
operations, property, financial
and other condition or
creditworthiness of the
Borrowers which may come into
the possession of any of the
Agent-Related Persons.
SECTION 14.7
Indemnification of Agents.
Whether or not the transactions
contemplated hereby are
consummated, the Banks shall
indemnify upon demand each
Agent-Related Persons (to the
extent not reimbursed by or on
behalf of the Borrowers and
without limiting the obligation
of the Borrowers to do so), pro
rata (determined on the same
basis used in determining
Required Banks), from and
against any cost, expense
(including reasonable attorney's
fees and charges) claim, demand,
action, loss or liability that
such Agent-Related Person may
suffer or incur in connection
with this Agreement or any
action taken or omitted by such
Agent hereunder; provided,
however, that no Bank shall be
liable for the payment to any
Agent-Related Person of any
portion of the foregoing
resulting solely from such
Person's gross negligence or
willful misconduct. The
undertaking in this Section
shall survive the resignation or
replacement of any Agent and any
termination of this Agreement.
SECTION 14.8 Agents in
Individual Capacity. Each of
BofA and its affiliates
(including BA Canada), Xxxxxx
and its affiliates and First
Bank and its affiliates may make
loans to, issue letters of
credit for the account of,
accept deposits from, acquire
equity interests in and
generally engage in any kind of
banking, trust, financial
advisory, underwriting or other
business with Pentair and its
Subsidiaries and affiliates as
though, in the case of BofA,
BofA were not the U.S. Dollar
Administrative Agent and BA
Canada were not the Canadian
Administrative Agent, in the
case of Xxxxxx, Xxxxxx were not
the G-7 Currency Administrative
Agent, and, in the case of First
Bank, First Bank were not the
Overnight Administrative Agent,
in each case without notice to
or consent of the Banks. The
Banks acknowledge that, pursuant
to such activities, BofA or its
affiliates (including BA Canada)
or Xxxxxx or its affiliates or
First Bank or its affiliates may
receive information regarding
Pentair or its affiliates
(including information that may
be subject to confidentiality
obligations in favor of Pentair
or such affiliate) and
acknowledge that none of BofA,
Xxxxxx, First Bank or any of
their respective affiliates
shall have any obligation to
provide such information to
them. With respect to its
Loans, each of BofA, BA Canada,
Xxxxxx and First Bank (and any
of their respective affiliates
which may become a Bank) shall
have the same rights and powers
under this Agreement as any
other Bank and may exercise the
same as though it were not an
Agent.
SECTION 14.9 Successor
Agents. Any Agent may, and at
the request of the Required
Banks shall, resign as an Agent
upon 30 days' notice to the
Borrowers and the Banks. Upon
any such resignation or removal,
provided no Default exists, the
Borrowers shall have the right
to appoint another Bank as
successor Agent subject to the
consent of the Required Banks,
which consent shall not be
unreasonably withheld. If such
consent is not obtained within
30 days, or if a Default exists,
then the Required Banks shall
have the right to appoint, on
behalf of the Borrowers and the
Banks, a successor Agent. Upon
the acceptance of any
appointment as an Agent
hereunder by a successor Agent,
such successor Agent shall
thereupon succeed to and become
vested with all the rights,
powers, privileges and duties of
the retiring Agent, and the
retiring Agent shall be
discharged from its duties and
obligations hereunder. After
any retiring Agent's resignation
hereunder as Agent, the
provisions of this Article XIV
shall continue in effect for its
benefit in respect of any
actions taken or omitted to be
taken by it while it was acting
as an Agent hereunder. If no
successor Agent has accepted
appointment as the applicable
successor Agent by the date
which is 30 days following a
retiring Agent's notice of
resignation, such retiring
Agent's resignation shall
nevertheless thereupon become
effective and the Banks shall
perform all of the duties of
such Agent hereunder until such
time, if any, as the Required
Banks appoint a successor Agent
as provided above.
SECTION 14.10 Withholding
Tax.
(a) If any Bank
(other than a Canadian
Bank) is a "foreign
corporation, partnership
or trust" within the
meaning of the Code and
such Bank claims exemption
from, or a reduction of,
U.S. withholding tax under
Section 1441 or 1442 of
the Code, such Bank agrees
with and in favor of each
of the U.S. Dollar
Administrative Agent and
the G-7 Currency
Administrative Agent to
deliver to such Agent:
(i) if such Bank
claims an exemption
from, or a
reduction of,
withholding tax
under a United
States tax treaty,
two properly
completed and
executed copies of
IRS Form 1001
before the payment
of any interest in
the first calendar
year and before the
payment of any
interest in each
third succeeding
calendar year
during which
interest may be
paid under this
Agreement;
(ii) if such
Bank claims that
interest paid under
this Agreement is
exempt from United
States withholding
tax because it is
effectively
connected with a
United States trade
or business of such
Bank, two properly
completed and
executed copies of
IRS Form 4224
before the payment
of any interest is
due in the first
taxable year of
such Bank and in
each succeeding
taxable year of
such Bank during
which interest may
be paid under this
Agreement; and
(iii) such other
form or forms as
may be required
under the Code or
other laws of the
United States as a
condition to
exemption from, or
reduction of,
United States
withholding tax.
Such Bank agrees to
promptly notify each of
the U.S. Dollar
Administrative Agent and
the G-7 Currency
Administrative Agent of
any change in
circumstances which would
modify or render invalid
any claimed exemption or
reduction.
(b) If any Bank
claims exemption from, or
reduction of, withholding
tax under a United States
tax treaty by providing
IRS Form 1001 and such
Bank sells, assigns,
grants a participation in
or otherwise transfers all
or part of the obligations
of any Borrower to such
Bank, such Bank agrees to
notify each of the U.S.
Dollar Administrative
Agent and the G-7 Currency
Administrative Agent of
the percentage amount in
which it is no longer the
beneficial owner of such
obligations. To the
extent of such percentage
amount, the U.S. Dollar
Administrative Agent and
the G-7 Currency
Administrative Agent will
treat such Bank's IRS Form
1001 as no longer valid.
(c) If any Bank
claims exemption from
United States withholding
tax by providing IRS Form
4224 and such Bank sells,
assigns, grants a
participation in or
otherwise transfers all or
part of the obligations of
any Borrower to such Bank,
such Bank agrees to
undertake sole
responsibility for
complying with the
withholding tax
requirements imposed by
Sections 1441 and 1442 of
the Code.
(d) If any Bank is
entitled to a reduction in
any applicable withholding
tax, the applicable Agent
may withhold from any
interest payment to such
Bank an amount equivalent
to the applicable
withholding tax after
taking into account such
reduction. However, if
any form or other
documentation with respect
to any applicable
withholding tax required
by this Agreement or any
applicable law is not
delivered by any Bank to
any Agent, then such Agent
may withhold from any
interest payment to such
Bank from any applicable
Borrower an amount
equivalent to the
applicable withholding
tax, without reduction.
(e) If the Internal
Revenue Service or Revenue
Canada or any other
governmental authority of
the United States, Canada
or any other jurisdiction
asserts a claim that any
Agent did not properly
withhold tax from amounts
paid to or for the account
of any Bank (because an
appropriate form was not
delivered to such Agent or
was not properly executed,
or because such Bank
failed to notify such
Agent of a change in
circumstances which
rendered the exemption
from, or reduction of,
withholding tax
ineffective, or for any
other reason), such Bank
shall indemnify such Agent
fully for all amounts
paid, directly or
indirectly, by such Agent
as tax or otherwise,
including penalties and
interest, and including
any taxes imposed by any
jurisdiction on amounts
payable to such Agent
under this Section,
together with all costs
and expenses (including
reasonable attorneys'
fees). The obligation of
the Banks under this
subsection shall survive
the repayment of all
Loans, the resignation of
any Agent and the
termination of this
Agreement.
SECTION 14.11 Agents' Fees.
The Borrowers shall pay to each
Agent such fees as are agreed to
from time to time by the
Borrowers and such Agent.
ARTICLE XV
MISCELLANEOUS
SECTION 15.1 Notices. All
notices, requests and other
communications to any party
hereunder shall be in writing
(including bank wire, telex,
facsimile or similar writing),
except where specifically
permitted to be given orally,
and shall be given to such party
at its address or facsimile
number set forth on the
signature pages hereof or such
other address or telex number as
such party may hereafter specify
for the purpose by notice to the
applicable Agents and the
Borrowers. Each such notice,
request or other communication
shall be effective (i) if given
by facsimile, when such
facsimile is transmitted to the
facsimile number specified in
this Section and the appropriate
confirmation is received, (ii)
if given by mail, 72 hours after
such communication is deposited
in the mails with first class
postage prepaid, addressed as
aforesaid or (iii) if given by
any other means, when delivered
at the address specified in this
Section; provided that notices
to any Agent under Articles II
through IX shall not be
effective until received. Any
agreement of the Agents and the
Banks herein to receive certain
notices by telephone or
facsimile is solely for the
convenience and at the request
of the Borrowers. The Agents
and the Banks shall be entitled
to rely on the authority of any
Person purporting to be a Person
authorized by the applicable
Borrower to give such notice,
and the Agents and the Banks
shall not have any liability to
such Borrower or any other
Person on account of any action
taken or not taken by any Agent
or any Banks in reliance upon
such telephonic or facsimile
notice. The obligation of the
Borrowers to repay the Loans and
Letter of Credit Obligations
shall not be affected in any way
or to any extent by any failure
by any Agent or any Banks to
receive written confirmation of
any telephonic or facsimile
notice or the receipt by any
Agent or any Banks of a
confirmation which is at
variance with the terms
understood by such Agent or such
Banks to be contained in the
telephonic or facsimile notice.
SECTION 15.2 No Waiver. No
failure or delay by any Agent or
any Bank in exercising any
respective right, power or
privilege hereunder or under any
Note shall operate as a waiver
thereof, nor shall any single or
partial exercise thereof
preclude any other or further
exercise thereof or the exercise
of any other right, power or
privilege. The rights and
remedies herein provided shall
be cumulative and not exclusive
of any rights or remedies
provided by law.
SECTION 15.3 Expenses;
Documentary Taxes. The
Borrowers shall pay upon demand
(i) all reasonable expenses of
each Agent, including fees and
disbursements of a single joint
counsel for the Agents and the
Banks, in connection with the
review of this Agreement, any
waiver or consent hereunder or
any amendment hereof or any
Default or alleged Default by
any of the Borrowers hereunder
and (ii) if an Event of Default
occurs, all reasonable
out-of-pocket expenses incurred
by each Agent and each Bank,
including fees and disbursements
of attorneys for each Agent and
each Bank (who may be employees
of such Agent or such Bank), in
connection with such Event of
Default and collection and other
enforcement proceedings
resulting therefrom. The
respective Borrowers shall
indemnify each Bank against any
transfer taxes, documentary
taxes, assessments or charges
made by any governmental
authority by reason of the
execution and delivery of this
Agreement or the Notes.
SECTION 15.4 Amendments and
Waivers. Any provision of this
Agreement or the Notes may be
amended or waived if, but only
if, such amendment or waiver is
in writing and is signed by the
Borrowers' Agent and the
Required Banks (and, if the
rights or duties of any Agent
are affected thereby, by such
Agent), and acknowledged by the
Agents; provided that no such
amendment or waiver shall,
unless signed by all the Banks
and delivered to the Agents:
(a) increase the
Commitment of any Bank
(except pursuant to
Section 2.3 (c)) or
subject any Bank to any
additional obligations;
(b) reduce the
principal of or rate of
interest on any Loan or
any fee (other than fees
provided for in Section
14.11) hereunder;
(c) postpone the
date fixed for any payment
of principal of or
interest on any Loan or
any fees (other than fees
provided for in Section
14.11) hereunder;
(d) change the
percentage of the
Commitments or of the
aggregate unpaid principal
amount of the Notes, or
the number of Banks, which
shall be required for the
Banks or any of them to
take any action under this
Agreement;
(e) amend Section
2.18 or this Section 15.4.
SECTION 15.5 Collateral.
Each of the Banks represents
that it in good faith is not
relying upon any "margin stock"
(as defined in Regulation U of
the Board of Governors of the
Federal Reserve System) as
collateral in the extension or
maintenance of the credit
provided for in this Agreement.
SECTION 15.6 Successors and
Assigns.
(a) 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 the
Borrowers may not assign
or otherwise transfer any
of their respective rights
under this Agreement.
(b) Any Bank may,
with the written consent
of Pentair (which consent
shall not be unreasonably
withheld), the Agents and
each Issuing Bank which
has a Letter of Credit
outstanding (provided
that, so long as such
assignment will not result
in any increased costs to
the Borrowers, no written
consent of Pentair, any
Agent or any Issuing Bank
shall be required in
connection with any
assignment and delegation
by a Bank to an affiliate
of such Bank), at any time
assign and delegate to one
or more financial
institutions (each an
"Assignee") all or any
ratable part of its Loans,
its Commitment, and the
other rights and
obligations of such Bank
hereunder, in a minimum
Equivalent Amount of
U.S.$10,000,000 or, if
less, the entire amount of
its Loans, its Commitment
and the other rights and
obligations of such Bank
hereunder; provided,
however, that the
Borrowers and the Agents
may continue to deal
solely and directly with
such Bank in connection
with the interest so
assigned to an Assignee
until (x) written notice
of such assignment,
together with payment
instructions, addresses
and related information
with respect to such
Assignee, shall have been
given to the Borrowers and
the Agents by such Bank
and the Assignee; and (y)
such Bank or its Assignee
shall have paid to each of
the U.S. Dollar
Administrative Agent and
the G-7 Currency
Administrative Agent a
processing fee in the
amount of U.S.$1,000; and
provided, further, that no
Bank which is (or which
has designated a Canadian
branch or affiliate as) a
Canadian Bank may assign
all of its rights and
obligations hereunder
unless arrangements
reasonably satisfactory to
the Agents and the
Borrowers have been made
for one or more Banks to
act (or to cause their
respective Canadian
branches or affiliates to
act) as Canadian Banks
hereunder in the full
amount of the Canadian
Commitment.
(c) From and after
the date that the Agents
notify the assignor Bank
that they have consented
to, and received the
consents of Pentair and,
if applicable, the Issuing
Banks to a proposed
assignment and received
payment of the
above-referenced
processing fee, (i) the
applicable Assignee shall
be a party hereto and, to
the extent that rights
hereunder have been
assigned to it and
obligations hereunder have
been assumed by it, shall
have the rights and
obligations of a Bank
under this Agreement, and
(ii) the assignor Bank
shall, to the extent that
rights and obligations
hereunder have been
assigned by it, relinquish
its rights and be released
from its obligations under
this Agreement.
(d) Any Bank may at
any time sell to one or
more commercial banks or
other Persons not
affiliates of Pentair
(each a "Participant")
participating interests in
any Loan, the Commitment
of such Bank and the other
interests of such Bank
(the "originating Bank")
hereunder and under its
Note(s); 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) the Borrowers, the
Issuing Banks and the
Agents 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 Notes
and (iv) no Bank shall
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 Note,
except to the extent such
amendment, consent or
waiver would require
unanimous consent of the
Banks as described in the
proviso to Section 15.4.
In the case of any such
participation, the
Participant shall be
entitled to the benefit of
Sections 2.9, 2.13,
2.16(a), 4.6 and 15.3 as
though it were also a Bank
hereunder (provided that
no Borrower shall be
obligated to pay any
amount under Section 2.9,
2.13, 2.16(a) or 4.6 to
any Participant which is
greater than such Borrower
would have been required
to pay to the originating
Bank if no such
participation had been
sold), and 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, the
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 a Bank under this
Agreement.
(e) Notwithstanding
any other provision in
this Agreement, any Bank
may at any time create a
security interest in, or
pledge, all or any portion
of its rights under and
interest in this Agreement
and any Note held by it in
favor of any Federal
Reserve Bank in accordance
with Regulation A of the
Board of Governors of the
Federal Reserve System or
U.S. Treasury Regulation
31 CFR section 203.14, and such
Federal Reserve Bank may
enforce such pledge or
security interest in any
manner permitted under
applicable law.
SECTION 15.7 Minnesota Law.
This Agreement and each Note
shall be construed in accordance
with and governed by the
substantive laws of the State of
Minnesota without regard to the
choice of law provisions
thereof.
SECTION 15.8 Counterparts;
Effectiveness. This Agreement
may be signed in any number of
counterparts, each of which
shall be an original, and all of
which taken together shall
constitute a single agreement,
with the same effect as if the
signatures thereto and hereto
were upon the same instrument.
This Agreement shall become
effective when each Agent shall
have received counterparts
hereof signed by all of the
parties hereto.
SECTION 15.9 Borrowers'
Agent. Each Borrower hereby
irrevocably appoints and
authorizes Pentair to take such
action and receive notices
hereunder as agent on its behalf
and to exercise such powers
under this Agreement as
delegated to it by the terms
hereof, together with all such
powers as are reasonably
incidental thereto. In
furtherance of and not in
limitation of the foregoing, for
administrative convenience of
the parties hereto, the Agents
and the Banks shall send all
notices and communications to be
sent to any Borrower solely to
Pentair and may rely solely upon
Pentair to receive all such
notices and other communications
for and on behalf of each
Borrower. Neither Pentair nor
any of its respective directors,
officers, agents or employees
shall be liable to any other
Borrower for any action taken or
not taken by it in connection
herewith (ii) with the consent
or at the request of such
Borrower or (ii) in the absence
of its own gross negligence or
willful misconduct. No Person
other than Pentair may act as
agent for the Borrowers
hereunder without the consent of
all of the Agents hereunder.
SECTION 15.10 Sharing of
Information. The Borrowers
authorize the Agents and the
Banks to share among each other
any information now or hereafter
possessed by any of them
regarding any Borrower.
ARTICLE XVI
GUARANTY
SECTION 16.1 Guaranty. The
Guarantor hereby unconditionally
and irrevocably guarantees the
full and punctual payment
(whether at stated maturity,
upon acceleration or otherwise)
of the principal of and interest
on each Note issued by each of
the other Borrowers pursuant to
this Agreement, and the full and
punctual payment of all other
amounts payable by each of the
other Borrowers under this
Agreement. Upon failure by any
such Borrower to pay punctually
any such amount, the Guarantor
shall forthwith on demand pay
the amount not so paid at the
place and in the manner
specified in this Agreement. In
addition (and without limiting
the foregoing), upon any Note of
any such Borrower being declared
or otherwise becoming
immediately due and payable
pursuant to Section 13.1, the
Guarantor shall forthwith on
demand pay all amounts payable
under such Note at the place and
in the manner specified in this
Agreement.
SECTION 16.2 Guaranty
Unconditional. The obligations
of the Guarantor hereunder shall
be unconditional and absolute
and, without limiting the
generality of the foregoing,
shall not be released,
discharged or otherwise affected
by:
(a) any extension,
renewal, settlement,
compromise, waiver or
release in respect of any
obligation of any Borrower
(other than the Guarantor)
under this Agreement or
any Note, by operation of
law or otherwise;
(b) any modification
or amendment of or
supplement to this
Agreement or any Note;
(c) any release,
impairment, non-perfection
or invalidity of any
direct or indirect
security for any
obligation of any Borrower
(other than the Guarantor)
under this Agreement or
any Note;
(d) any change in
the corporate existence,
structure or ownership of
any Borrower (other than
the Guarantor), or any
insolvency, bankruptcy,
reorganization or other
similar proceeding
affecting any Borrower
(other than the Guarantor)
or such Borrower's
respective assets or any
resulting release or
discharge of any
obligation of any Borrower
(other than the Guarantor)
contained in this
Agreement or any Note;
(e) the existence of
any claim, set-off or
other rights which the
Guarantor may have at any
time against any other
Borrower, any Agent, any
Bank or any other
corporation or person,
whether in connection
herewith or any unrelated
transaction, provided that
nothing herein shall
prevent the assertion of
any such claim by separate
suit or compulsory
counterclaim;
(f) any invalidity
or unenforceability
relating to or against any
Borrower (other than the
Guarantor) for any reason
of this Agreement or any
Note, or any provision of
applicable law or
regulation purporting to
prohibit the payment by
any Borrower (other than
the Guarantor) of the
principal of or interest
on any Note or any other
amount payable by any
Borrower (other than the
Guarantor) under this
Agreement; or
(g) any other act or
omission to act or delay
of any kind by any
Borrower, any Agent, any
Bank or any other
corporation or person or
any other circumstance
whatsoever which might,
but for the provisions of
this paragraph, constitute
a legal or equitable
discharge of the
Guarantor's obligations as
guarantor hereunder.
SECTION 16.3 Discharge only
upon Payment in Full;
Reinstatement in Certain
Circumstances. The Guarantor's
obligations as guarantor
hereunder shall remain in full
force and effect until the
Commitments shall have
terminated and the principal of
and interest on the Notes and
all other amounts payable by the
Borrowers under this Agreement
shall have been paid in full.
If at any time any payment of
the principal of or interest on
any Note or any other amount
payable by any Borrower (other
than the Guarantor) under this
Agreement is rescinded or must
be otherwise restored or
returned upon the insolvency,
bankruptcy or reorganization of
such Borrower or otherwise, the
Guarantor's obligations
hereunder with respect to such
payment shall be reinstated as
though such payment had been due
but not made at such time.
SECTION 16.4 Waiver by
Guarantor. The Guarantor
irrevocably waives
acceptance hereof, presentment,
demand, protest and any notice
not provided for herein, as well
as any requirement that at any
time any action be taken by any
corporation or person against
any Borrower or any other
corporation or person.
SECTION 16.5 Subrogation.
Notwithstanding any payment made
by or for the account of any
other Borrower pursuant to this
Article XVI, Pentair shall not
be subrogated to any right of
any Agent or any Bank until such
time as the Agents and the Banks
shall have received final
payment in cash of the full
amount of all principal of and
interest on the Loans, all fees,
all Letter of Credit Obligations
and all other amounts payable
hereunder.
SECTION 16.6 Stay of
Acceleration. If acceleration
of the time for payment of any
amount payable by any Borrower
(other than the Guarantor) under
this Agreement or the Notes is
stayed upon the insolvency,
bankruptcy or reorganization of
such Borrower, all such amounts
otherwise subject to
acceleration under the terms of
this Agreement shall nonetheless
be payable by the Guarantor
hereunder forthwith on demand by
the applicable Agent made at the
request of the requisite
proportion of the Banks
specified in Article XIII of
this Agreement.
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.
BORROWERS:
PENTAIR, INC., for itself, as
guarantor
PENTAIR CANADA, INC.
and as agent for the Borrowers
By____________________________
By______________________________
Title: Chief Financial Officer
Title__________________________
Waters Edge Plaza
0000 Xxxxxx Xxxx X0 Xxxx
Xx. Xxxx, Xxxxxxxxx 00000
Attention: Chief Financial
Officer
Telecopy: (000) 000-0000 Telephone: (000) 000-0000
EUROPENTAIR GmbH
By_____________________________
Title: Geschaftsfuhrer
Waters Edge Plaza
0000 Xxxxxx Xxxx X0 Xxxx
Xx. Xxxx, Xxxxxxxxx 00000
Attention: Chief Financial
Officer
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
AGENTS:
BANK OF AMERICA NATIONAL
TRUST AND SAVINGS ASSOCIATION,
as U.S. Dollar Administrative
Agent
By_____________________________
Title: Vice President
0000 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attn: Xxxx Xxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
FIRST BANK NATIONAL ASSOCIATION,
as Overnight Administrative
Agent
By_____________________________
Title__________________________
First Bank Place
000 Xxxxxx Xxxxxx Xxxxx
Xxxxxxxxxxx, Xxxxxxxxx
00000-0000
Attn: Xxxx X. Xxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK, as G-7 Currency
Administrative Agent
By_____________________________
Title: Vice President
00 Xxxxxxxx Xxxxxxxxxx
Xxxxxx XX0X OJP
Attn: Global Credit Middle
Office
Telex number: 896631 MGT G
Telecopy: (000) 000-0000
Telephone: (000) 000-0000 or
5301
with a copy to:
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Loan Capital Markets
Telex number: 177615 MGT UT
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
BANK OF AMERICA
CANADA, as Canadian
Administrative Agent
By_____________________________
Title__________________________
000 Xxxxx Xxxxxx Xxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx X0X 0X0
Attn: Xxxxxx X. Xxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
BANKS:
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
By_________________________
Title__________________________
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxx Xxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
BANK OF AMERICA
CANADA, as a Canadian Bank
(designated by Bank of America
National Trust and Savings
Association)
By______________________________
Title:_________________________
000 Xxxxx Xxxxxx Xxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx X0X 0X0
Attn: Xxxxxx Xxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
FIRST BANK NATIONAL ASSOCIATION
By_____________________________
Title:__________________________
First Bank Place
000 Xxxxxx Xxxxxx Xxxxx
Xxxxxxxxxxx, Xxxxxxxxx
00000-0000
Attn: Xxxx X. Xxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK
By_____________________________
Title:__________________________
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Loan Capital Markets
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Telex Number: 177615 MGT UT
X.X. XXXXXX CANADA, as a
Canadian Bank
(designated by Xxxxxx Guaranty
Trust Company of New York)
By____________________________
Title:_________________________
Xxxxx Xxxx Xxxxx
Xxxxx 0000, Xxxxx Xxxxx
Xxxxxxx, Xxxxxx X0X 0X0
Attn: Xxxxx Xxxxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
NBD BANK
By_____________________________
Title:__________________________
000 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
DRESDNER BANK AG CHICAGO
AND GRAND CAYMAN BRANCHES
By:_____________________________
Title: Senior Vice President
By:____________________________
Title: Vice President
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Operations Contact:
Ms. Feixiao Xxx
Xxxxxxxx Bank AG
00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
ABN AMRO BANK N.V., CHICAGO
BRANCH
By______________________________
Title:_________________________
By______________________________
Title:__________________________
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxxxx Xxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
THE BANK OF TOKYO-MITSUBISHI,
LTD., CHICAGO BRANCH
By_____________________________
Title:_________________________
0000 Xxxxxxx Xxxxxx
00 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Operations Contact:
Xx. Xxxxxx Xxxxxx
The Bank of Tokyo-Mitsubishi,
Ltd., Chicago Branch
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
SCHEDULE 1
Bank
Commitment
Commitment Percentage
Canadian Percentage
Xxxxxx Guaranty Trust Company of
New York U.S.
$55,000,000
20.000000000%
50%
Bank of America National Trust
and Savings Association
55,000,000
20.000000000
50%
First Bank National Association
30,000,000
10.909090909
N/A
NBD Bank
45,000,000
16.363636364
N/A
Dresdner Bank AG
30,000,000
10.909090909
N/A
ABN AMRO Bank N.V.
30,000,000
10.909090909
N/A
The Bank of Tokyo - Mitsubishi,
Ltd.
30,000,000
10.909090909
N/A
Totals
U.S.$275,000,000
100%
100%
EXHIBIT A
NOTE
Minneapolis, Minnesota
_______________, 199_
For value received,
_______________________________________________ (the "Borrower )
promises to pay to the order of
_________________________________________________________ (the
"Bank ) the aggregate unpaid
principal amount of all Loans
made by the Bank to the Borrower
pursuant to the Facility
Agreement referred to below,
together with interest on the
unpaid principal amounts thereof
at the rates and on the dates
set forth in the Facility
Agreement. The Borrower shall
pay each Loan in full on the
earlier of (i) the last day of
its Interest Period or (ii) the
Termination Date.
All payments of principal
and interest shall be made (i)
if in U.S. Dollars, in lawful
money of the United States in
federal or other immediately
available funds at the place
specified for payment thereof
pursuant to the Facility
Agreement, or (ii) if in a G-7
Currency, in such funds as may
then be customary for the
settlement of international
transactions in such G-7
Currency at the place specified
for payment thereof pursuant to
the Facility Agreement.
All Loans made by the Bank
to the Borrower pursuant to the
Facility Agreement and all
payments of the principal
thereof may be recorded by the
Bank and, prior to any transfer
hereof, endorsed by the Bank on
the schedule attached hereto, or
on a continuation of such
schedule attached to and made a
part hereof.
This Note is one of the
Notes referred to in the
Multi-Facility Credit Agreement
dated November 15, 1996 among
Pentair, Inc., EuroPentair GmbH,
Pentair Canada, Inc., the banks
party thereto and Xxxxxx
Guaranty Trust Company of New
York, Bank of America National
Trust and Savings Association
and First Bank National
Association, as Agents (as
amended from time to time, the
"Facility Agreement ). Reference
is made to such Facility
Agreement for definitions of
capitalized terms contained
herein, provisions for the
prepayment hereof and the
acceleration of the maturity
hereof.
_______________________________________
By_______________________________________
Title:__________________________________
EXHIBIT B-1
FORM OF
DOMESTIC BID LOAN REQUEST
__________, ____
VIA FACSIMILE
Bank of America National Trust
and Savings Association,
as U.S. Dollar Administrative
Agent
0000 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxx Xxxxxx
Ladies and Gentlemen:
Reference is made to the
Multi-Facility Credit Agreement,
dated as of November 15, 1996
(as amended or otherwise
modified from time to time, the
"Agreement"), among Pentair,
Inc., EuroPentair GmbH and
Pentair Canada, Inc., as
Borrowers, Bank of America
National Trust and Savings
Association, as a Bank and as
U.S. Dollar Administrative
Agent, First Bank National
Association, as a Bank and as
Overnight Administrative Agent,
Xxxxxx Guaranty Trust Company of
New York, as a Bank and as G-7
Currency Administrative Agent,
NBD Bank, Dresdner Bank AG, ABN
AMRO Bank N.V. and The Bank of
Tokyo - Mitsubishi, Ltd., as
Banks, and various affiliates of
the Banks which are parties to
the Canadian Facility described
therein. Capitalized terms used
herein have the meanings
specified in the Agreement.
This is a Bid Loan Request
for Domestic Bid Loans pursuant
to Section 7.1 of the Agreement
as follows:
1. The name of the
proposed Borrower is
.
2. The Maximum Request
is U.S.$
.
3. This is [an
Absolute Rate][a Domestic
Margin Rate] Bid Request.
4. The Borrower
requests [one][two][three]
Bid Loans and the Interest
Period[s] for the Bid
Loan[s] comprising the
Borrowing shall be
[,
and
].
5. The Funding Date of
the proposed Borrowing is
, .
The Borrower certifies that
the following statements are
true on the date hereof, and
will be true on the date of the
proposed Borrowing, before and
after giving effect thereto and
to the application of the
proceeds therefrom:
(a) the Bid Loans
requested hereby in
the aggregate equal
U.S.$5,000,000 or an
integral multiple of
U.S.$1,000,000 over
such amount and do
not exceed the limit
set forth in Section
7.2 of the Agreement;
(b) no Default shall
have occurred and be
continuing;
(c) the
representations and
warranties of the
Borrowers and the
Guarantor contained in the
Agreement shall be true;
(d) the aggregate
principal Equivalent
Amount of all Loans and
all Letter of Credit
Obligations shall not
exceed the Total
Commitment; and
(e) the principal
amount of all U.S. Dollar
Loans plus the principal
amount of all Domestic Bid
Loans plus the amount of
all Letter of Credit
Obligations with respect
to U.S. Dollar Letters of
Credit plus the principal
Equivalent Amount of all
Canadian Loans (determined
as of the most recent
applicable Computation
Date) plus the principal
amount of all Overnight
Loans will not exceed the
North American Sublimit
(as defined in Section
2.2(f) of the Agreement).
PENTAIR, INC. [on behalf
of]
[EUROPENTAIR GMBH]
[PENTAIR CANADA, INC.]
By:
Name:
Title:
EXHIBIT B-2
FORM OF
G-7 CURRENCY BID LOAN
REQUEST
__________, ____
VIA FACSIMILE
Xxxxxx Guaranty Trust
Company of New York,
as G-7 Currency
Administrative Agent
00 Xxxxxxxx Xxxxxxxxxx
Xxxxxx, Xxxxxxx
Xxxxxx Xxxxxxx XX0X OJP
Attn: Global Credit
Middle Office
Ladies and Gentlemen:
Reference is made to
the Multi-Facility Credit
Agreement, dated as of
November 15, 1996 (as
amended or otherwise
modified from time to
time, the "Agreement"),
among Pentair, Inc.,
EuroPentair GmbH and
Pentair Canada, Inc., as
Borrowers, Bank of America
National Trust and Savings
Association, as a Bank and
as U.S. Dollar
Administrative Agent,
First Bank National
Association, as a Bank and
as Overnight
Administrative Agent,
Xxxxxx Guaranty Trust
Company of New York, as a
Bank and as G-7 Currency
Administrative Agent, NBD
Bank, Dresdner Bank AG,
ABN AMRO Bank N.V. and The
Bank of Tokyo -
Mitsubishi, Ltd., as
Banks, and various
affiliates of the Banks
which are parties to the
Canadian Facility
described therein.
Capitalized terms used
herein have the meanings
specified in the
Agreement.
This is a Bid Loan
Request for G-7 Currency
Bid Loans pursuant to
Section 8.1 of the
Agreement as follows:
1. The name of the
Borrower is
.
2. The G-7 Currency
for [each][the] Bid Loan
shall be [German
Deutschmarks][French
Francs][British Pounds
Sterling][Japanese
Yen][Canadian
Dollars][Italian Lira].
3. The Maximum Request
is
[Deutschmarks][Francs][Pounds][Yen][Canadian
Dollars][Lira].
4. The Borrower
requests [one][two][three]
Bid Loans and the Interest
Period[s] for the Bid
Loan[s] comprising the
Borrowing shall be
[,
and
].
5. The Funding Date of
the proposed Borrowing is
, .
The Borrower certifies that
the following statements are
true on the date hereof, and
will be true on the date of the
proposed Borrowing, before and
after giving effect thereto and
to the application of the
proceeds therefrom:
(a) the Equivalent
Amount of the Bid
Loans requested
hereby in the
aggregate (i) equals
or exceeds
U.S.$5,000,000, (ii)
is an integral
multiple of 1,000,000
units of the
applicable G-7
Currency and (iii)
does not exceed the
limit set forth in
Section 8.2 of the
Agreement;
(b) no Default shall
have occurred and be
continuing;
(c) the
representations and
warranties of the
Borrowers and the
Guarantor contained in the
Agreement shall be true;
and
(d) the aggregate
principal Equivalent
Amount of all Loans and
all Letter of Credit
Obligations shall not
exceed the Total
Commitment; and
(e) the principal
Equivalent Amount of all
G-7 Currency Loans plus
the principal Equivalent
Amount of all G-7 Currency
Bid Loans plus the
Equivalent Amount of all
Letter of Credit
Obligations with respect
to G-7 Currency Letters of
Credit, in each case
determined as of the most
recent applicable
Computation Date, will not
exceed the G-7 Currency
Sublimit (as defined in
Section 2.2(f) of the
Agreement).
PENTAIR, INC. [on behalf of]
[EUROPENTAIR GMBH]
[PENTAIR CANADA, INC.]
By:
Name:
Title:
EXHIBIT C-1
FORM OF DOMESTIC BID
__________, ____
VIA FACSIMILE
Bank of America National Trust
and Savings Association,
as U.S. Dollar Administrative
Agent
0000 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxx Xxxxxx
Ladies and Gentlemen:
Reference is made to the
Multi-Facility Credit Agreement,
dated as of November 15, 1996
(as amended or otherwise
modified from time to time, the
"Agreement"), among Pentair,
Inc., EuroPentair GmbH and
Pentair Canada, Inc., as
Borrowers, Bank of America
National Trust and Savings
Association, as a Bank and as
U.S. Dollar Administrative
Agent, First Bank National
Association, as a Bank and as
Overnight Administrative Agent,
Xxxxxx Guaranty Trust Company of
New York, as a Bank and as G-7
Currency Administrative Agent,
NBD Bank, Dresdner Bank AG, ABN
AMRO Bank N.V. and The Bank of
Tokyo - Mitsubishi, Ltd., as
Banks, and various affiliates of
the Banks which are parties to
the Canadian Facility described
therein. Capitalized terms used
herein have the meanings
specified in the Agreement.
In response to the Domestic
Bid Loan Request of [PENTAIR,
INC.][EUROPENTAIR GMBH][PENTAIR
CANADA, INC.], dated
, , and in accordance with
Section 7.3 of the Agreement,
the undersigned Bank offers to
make [a] Domestic Bid Loan[s] in
the following principal
amount[s] at the following
interest rate[s] for the
following Interest Period[s]:
Funding Date: ,
Maximum Offer: $
Principal Principal Principal Principal
Amount $ Amount $ Amount $ Amount $
[Absolute [Absolute [Absolute [Absolute
Rate %] Rate %] Rate %] Rate %]
[Margin %] [Margin %] [Margin %] [Margin %]
Interest Interest Interest Interest
Period Period Period Period
[NAME OF BANK]
By:
Name:
Title:
EXHIBIT C-2
FORM OF G-7 CURRENCY BID
__________, ____
VIA FACSIMILE
Xxxxxx Guaranty Trust Company of
New York,
as G-7 Currency Administrative
Agent
00 Xxxxxxxx Xxxxxxxxxx
Xxxxxx, Xxxxxxx
Xxxxxx Xxxxxxx XX0X OJP
Attn: Global Credit Middle
Office
Ladies and Gentlemen:
Reference is made to the
Multi-Facility Credit Agreement,
dated as of November 15, 1996
(as amended or otherwise
modified from time to time, the
"Agreement"), among Pentair,
Inc., EuroPentair GmbH and
Pentair Canada, Inc., as
Borrowers, Bank of America
National Trust and Savings
Association, as a Bank and as
U.S. Dollar Administrative
Agent, First Bank National
Association, as a Bank and as
Overnight Administrative Agent,
Xxxxxx Guaranty Trust Company of
New York, as a Bank and as G-7
Currency Administrative Agent,
NBD Bank, Dresdner Bank AG, ABN
AMRO Bank N.V. and The Bank of
Tokyo - Mitsubishi, Ltd., as
Banks, and various affiliates of
the Banks which are parties to
the Canadian Facility described
therein. Capitalized terms used
herein have the meanings
specified in the Agreement.
In response to the G-7
Currency Bid Loan Request of
[PENTAIR, INC.][EUROPENTAIR
GMBH][PENTAIR CANADA, INC.],
dated , , and
in accordance with Section 8.3
of the Agreement, the
undersigned Bank offers to make
[a] G-7 Currency Bid Loan[s]
thereunder in the following
principal amount[s] at the
following interest rate[s] for
the following Interest
Period[s]:
Funding Date: ,
G-7 Currency =
Maximum Offer: $
Principal Principal Principal Principal
Amount Amount Amount Amount
[currency units] [currency units] [currency units] [currency units]
Margin % Margin % Margin % Margin %
Interest Interest Interest Interest
Period Period Period Period
[NAME OF BANK]
By:
Name:
Title:
