364-DAY CREDIT AGREEMENT
dated as of September 2, 1999
among
PENTAIR, INC.,
Various Financial Institutions,
BANC ONE CAPITAL MARKETS, INC.,
as Syndication Agent,
U.S. BANK NATIONAL ASSOCIATION
and
XXXXXX GUARANTY TRUST COMPANY OF NEW YORK,
as Co-Documentation Agents,
and
BANK OF AMERICA, N.A.,
as Administrative Agent
BANC OF AMERICA SECURITIES, LLC
and
BANC ONE CAPITAL MARKETS, INC.
Co-Lead Arrangers and Co-Book Managers
TABLE OF CONTENTS
ARTICLE I Definitions and Terms 1
1.01 Definitions 1
1.02 Rules of Interpretation 11
ARTICLE II The Committed Facility 12
2.01 Commitments 12
2.02 Procedure for Committed Borrowings 12
2.03 Conversion and Continuation Elections for
Committed Borrowings 13
2.04 Interest on Committed Loans 14
2.05 Optional Prepayments 14
2.06 Reduction or Termination of the Commitments 14
2.07 Extension of Termination Date 15
ARTICLE III Competitive Bid Facility 16
3.01 Competitive Bid Loans 16
3.02 Procedures for Bid Borrowings 16
ARTICLE IV General Credit Terms 20
4.01 Repayment 20
4.02 Payment of Interest 20
4.03 Payments 20
4.04 Loan Accounts 20
4.05 Notes 20
4.06 Fees 21
4.07 Computation of Fees and Interest 21
4.08 Order and Proration of Payments 21
ARTICLE V Change in Circumstances 23
5.01 Increased Cost and Reduced Return 23
5.02 Limitation on Types of Loan 24
5.03 Changes in Law Rendering Eurodollar Loans Unlawful 24
5.04 Funding Losses 25
5.05 Taxes 25
5.06 Right of Lenders to Fund through Other Offices 27
5.07 Discretion of Lenders as to Manner of Funding 27
5.08 Mitigation of Circumstances; Replacement of
Affected Lender 27
5.09 Conclusiveness of Statements; Survival of
Provisions 28
ARTICLE VI Conditions To Loans 29
6.01 Initial Loans 29
6.02 All Loans 30
ARTICLE VII Representations and Warranties 31
7.01 Corporate Existence and Power 31
7.02 Corporate and Governmental Authorization;
Contravention 31
7.03 Binding Effect 31
7.04 Financial Information 31
7.05 Litigation 32
7.06 Compliance with ERISA 32
7.07 Taxes 32
7.08 Subsidiaries 32
7.09 Not an Investment Company 32
7.10 Environmental Matters 32
7.11 Year 2000 33
7.12 Insurance 33
7.13 Default 33
7.14 Use of Proceeds 33
ARTICLE VIII Covenants 34
8.01 Information 34
8.02 Maximum Leverage Ratio 35
8.03 Minimum Interest Coverage Ratio 35
8.04 Negative Pledge 36
8.05 Consolidations, Mergers and Sales of Assets;
Acquisitions 37
8.06 Subsidiary Debt 37
8.07 Use of Proceeds 38
8.08 Compliance with Law 38
8.09 Securitization Transactions 38
8.10 Insurance 38
ARTICLE IX Event of Default 39
9.01 Events of Default 39
9.02 Notice of Default 41
ARTICLE X The Administrative Agent 42
10.01 Appointment and Authorization 42
10.02 Delegation of Duties 42
10.03 Liability of Administrative Agent 42
10.04 Reliance by Administrative Agent 42
10.05 Notice of Default 43
10.06 Credit Decision 43
10.07 Indemnification of Administrative Agent 44
10.08 Administrative Agent in Individual Capacity 44
10.09 Successor Administrative Agent 45
10.10 Withholding Tax 45
10.11 Other Agents 46
ARTICLE XI Miscellaneous 47
11.01 Notices 47
11.02 No Waiver 47
11.03 Expenses; Documentary Taxes; Indemnification47
11.04 Amendments and Waivers 48
11.05 Collateral 49
11.06 Successors and Assigns 49
11.07 Governing Law 52
11.08 Counterparts; Effectiveness 52
11.09 Confidentiality 52
11.10 Waiver of Jury Trial 52
11.11 Consent to Jurisdiction 53
Schedules
Schedule 1.01 Pricing Schedule
Schedule 2.01 Commitments and Pro Rata Shares
Schedule 7.05 Litigation
Schedule 8.04 Liens
Schedule 11.01 Addresses
Exhibits
Exhibit A Form of Note (Section 1.01)
Exhibit B Form of Notice of Committed Borrowing (Section 1.01)
Exhibit C Form of Notice of Conversion/Continuation (Section 1.01)
Exhibit D Form of Competitive Bid Request (Section 3.02)
Exhibit E Form of Invitation for Competitive Bids (Section 1.01)
Exhibit F Form of Competitive Bid (Section 3.02)
Exhibit G Form of Extension Request (Section 2.07)
Exhibit H Form of Assignment and Acceptance (Section 1.01)
364-DAY CREDIT AGREEMENT
THIS 364-DAY CREDIT AGREEMENT dated as of September 2,
1999 (this "Agreement") is among PENTAIR, INC. (the "Company"); the
financial institutions which from time to time are parties hereto as lenders
(collectively the "Lenders" and each individually a "Lender"); BANK ONE
CAPITAL MARKETS, INC., as Syndication Agent; U.S. BANK
NATIONAL ASSOCIATION and XXXXXX GUARANTY TRUST
COMPANY OF NEW YORK, as Co-Documentation Agents; and BANK OF
AMERICA, N.A., as Administrative Agent.
WITNESSETH:
WHEREAS, the Lenders are willing to make available (a) a
committed revolving credit facility of up to US$375,000,000 and (b) an
uncommitted competitive bid facility, in each case subject to the terms and
conditions set forth herein;
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
Definitions and Terms
1.01 Definitions. For the purposes of this Agreement, in addition
to the definitions set forth above, the following terms shall have the
respective meanings set forth below:
Absolute Rate - see subsection 3.02(c)(ii)(C).
Acquisition means any transaction or series of related transactions for
the purpose of or resulting, directly or indirectly, in (a) the acquisition of
all or substantially all of the assets of a Person, or of all or substantially
all of any business or division of a Person, (b) the acquisition of in excess of
50% of the capital stock, partnership interests, membership interests or equity
of any Person, or otherwise causing any Person to become a Subsidiary, or (c) a
merger or consolidation or any other combination with another Person (other
than a Person that is a Subsidiary) provided that the Company or the
Subsidiary is the surviving entity.
Adjusted Eurodollar Rate means, for any Interest Period for a
Eurodollar Loan, a rate of interest per annum determined pursuant to the
following formula:
Adjusted Eurodollar = Eurodollar Rate
Rate 1 - Reserve Requirement
Administrative Agent means Bank of America in its capacity as
administrative agent for the Lenders hereunder, together with any
replacement administrative agent arising under Article X.
Affected Lender means any Lender which has made a claim for
compensation under Section 5.01 or 5.05 or has given a notice (which has not
been withdrawn) of the type described in Section 5.02 or 5.03.
Affected Loan - see Section 5.03.
Affiliate means, as to any Person, any other Person which, directly or
indirectly, is in control of, is controlled by, or is under common control with
such Person. A Person shall be deemed to control another Person if the
controlling Person possesses, directly or indirectly, the power to direct or
cause the direction of the management and policies of such other Person,
whether through the ownership of voting securities or membership interests,
by contract or otherwise.
Agent-Related Persons means the Administrative Agent and any
successor thereto in such capacity hereunder, together with their respective
Affiliates and the officers, directors, trustees, employees, agents and
attorneys-in-fact of such Persons and Affiliates.
Agreement - see the Preamble.
Applicable Lending Office means, as to any Lender, the office or
offices of such Lender (or of an Affiliate of such Lender) which shall be
making or maintaining any Loan hereunder as specified from time to time by
such Lender to the Company and the Administrative Agent.
Applicable Margin means a rate per annum determined in accordance
with Schedule 1.01.
Assignee - see Section 11.06.
Assignment and Acceptance means an Assignment and Acceptance
substantially in the form of Exhibit H.
Bank of America means Bank of America, N.A.
Base Rate means, for any day, the higher of: (a) 0.50% per annum
above the latest Federal Funds Rate; or (b) the rate of interest in effect for
such day as publicly announced from time to time by Bank of America as its
"reference rate." (The "reference rate" is a rate set by Bank of America based
upon various factors including Bank of America's costs and desired return,
general economic conditions and other factors, and is used as a reference
point for pricing some loans, which may be priced at, above or below such
announced rate.) Any change in the reference rate announced by Bank of
America shall take effect at the opening of business on the day specified in
the public announcement of such change.
Base Rate Loan means a Committed Loan for which the rate of
interest is determined by reference to the Base Rate.
Bid Borrowing means a borrowing hereunder consisting of one or
more Bid Loans made to the Company on the same day by one or more
Lenders and having the same Interest Period.
Bid Loan means a Loan made in US Dollars by a Lender to the
Company under Article III.
Borrowing means a Bid Borrowing or a Committed Borrowing.
Borrowing Date means, with respect to any Loan, the date on which
such Loan is to be made.
Business Day means any day other than a Saturday or Sunday or a day
on which commercial banking institutions located in Charlotte, Chicago,
Minneapolis, New York or San Francisco are authorized or required by law
or other governmental action to close and (i) with respect to all notices,
determinations, fundings and payments in connection with any Eurodollar
Loan, any day that is also a day for trading by and between banks in US
Dollars in the applicable interbank eurocurrency market.
Closing Date means the date on which this Agreement has been
executed by all of the parties hereto and on which the conditions set forth in
Section 6.01 and 6.02 have been satisfied.
Code means the Internal Revenue Code of 1986, as amended, and any
regulations promulgated thereunder.
Committed Borrowing means a borrowing hereunder consisting of
Committed Loans made to the Company on the same day by the Lenders in
accordance with their Pro Rata Shares and, in the case of a borrowing of
Eurodollar Loans, having the same Interest Period.
Committed Loan means a loan made by a Lender to the Company
pursuant to Article II.
Commitment means, with respect to any Lender, its commitment to
make Committed Loans hereunder in the amount set forth on Schedule 2.01,
as adjusted from time to time in accordance with the terms hereof.
Company - see the Preamble.
Competitive Bid means an offer by a Lender to make a Bid Loan in
accordance with subsection 3.02(c).
Competitive Bid Request - see Section 3.02.
Consolidated Shareholders' Equity means, at any date, the
consolidated shareholders' equity of the Company and the Consolidated
Subsidiaries.
Consolidated Subsidiary means, as of any date, any Subsidiary or
other entity the accounts of which would be consolidated with those of the
Company in its consolidated financial statements as of such date.
Conversion/Continuation Date means the date on which a Committed
Loan is converted from a Loan of one Type to the other Type or is continued
as a Eurodollar Loan for a new Interest Period.
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 aggregate
outstanding investment or claim held by purchasers, assignees or transferees
of (or of interests in) receivables of such Person in connection with any
Securitization Transaction, (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.
Dollar Equivalent means, with respect to a specified amount of any
currency, the amount of US Dollars into which such amount of such currency
would be converted, based on the applicable Spot Rate of Exchange.
EBITDA means, for any period, the sum of the consolidated net
income of the Company for such period excluding the effect of (i) to the
extent taken in such period, the special US$38,000,000 restructuring charge
taken in the first fiscal quarter of 1999 and (ii) any extraordinary or non-
recurring gains and any extraordinary or non-recurring non-cash losses in
such period plus, to the extent deducted in determining such consolidated net
income, Interest Expense, income tax expense, depreciation and amortization
for such period.
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.
ERISA means the Employee Retirement Income Security Act of
1974, as amended from time to time, and any successor statute and all rules
and regulations promulgated thereunder.
ERISA Affiliate, as applied to the Company, means any Person or
trade or business which is a member of a group which is under common
control with the Company, who, together with the Company, is treated as a
single employer within the meaning of Section 414(b) or (c) of the Code or,
for purposes of Section 412 of the Code, Section 414(m) or (o) of the Code.
Eurodollar Loan means a Loan for which the rate of interest is
determined by reference to the Adjusted Eurodollar Rate.
Eurodollar Rate means, for any Eurodollar Loan for any Interest
Period, the rate of interest per annum (carried to five decimal places)
determined by the Administrative Agent as the rate at which deposits in US
Dollars in the approximate amount of the Eurodollar Loan of Bank of
America included in the applicable Borrowing, and having a maturity
comparable to such Interest Period, are offered by Bank of America's Grand
Cayman Branch, Grand Cayman, B.W.I. (or such other office as may be
designated by Bank of America from time to time) to major banks in the
offshore interbank market at approximately 10:00 a.m. (Chicago time) two
Business Days prior to the commencement of such Interest Period.
Event of Default means any event described in Section 9.01.
Existing Agreement means the Amended and Restated Credit
Agreement dated as of August 1, 1997 among the Company, Pentair Canada,
EuroPentair and various financial institutions, including Bank of America as
U.S. Dollar Administrative Agent and Xxxxxx Guaranty Trust Company of
New York as G-7 Currency Administrative Agent.
Extension Request - see Section 2.07.
Facility Fee Rate means a rate determined in accordance with
Schedule 1.01.
Federal Funds Rate means, for any day, the 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 on such day, as published by the Federal Reserve Bank of New York
on the Business Day next succeeding such day; provided that (a) if such day
is not a Business Day, the Federal Funds Rate for such day shall be such rate
on such transactions on the next preceding Business Day as so published on
the next succeeding Business Day, and (b) if no such rate is so published on
such next succeeding Business Day, the Federal Funds Rate for such day shall
be the average rate charged to the Administrative Agent (in its individual
capacity) on such day on such transactions as determined by the
Administrative Agent.
FRB means the Board of Governors of the Federal Reserve System
(or any successor).
GAAP means generally accepted accounting principles set forth in
pronouncements of the Financial Accounting Standards Board, the
Accounting Principles Board or the American Institute of Certified Public
Accountants or which have other substantial authoritative support and are
applicable in the circumstances as of the date of a report, as such principles
are from time to time supplemented and amended.
Governmental Authority means any federal, state, municipal, national
or other governmental department, commission, board, bureau, court, agency
or instrumentality or political subdivision thereof or any entity or officer
exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to any government or any court, in each case
whether associated with a state of the United States, the United States, or a
foreign entity or government.
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. The term "Guarantee" used as a verb has a correlative meaning.
Indemnified Liabilities - see subsection 11.03(b).
Indemnified Person - see subsection 11.03(b).
Interest Coverage Ratio means, for any period, the ratio of (i)
EBITDA plus rent expense for such period to (ii) Interest Expense plus rent
expense of the Company and its Subsidiaries for such period.
Interest Expense means the sum, without duplication, of consolidated
interest expense (including the interest component of capital leases, the
interest component of Synthetic Lease Obligations, facility, commitment and
usage fees, and fees for standby letters of credit) plus consolidated yield or
discount accrued on the aggregate outstanding investment or claim held by
purchasers, assignees or other transferees of (or of interests in) receivables
of the Company and its Subsidiaries in connection with any Securitization
Transaction (regardless of the accounting treatment of such Securitization
Transaction).
Interest Payment Date means (a) as to any Base Rate Loan, the last
Business Day of each calendar quarter; and (b) as to any Eurodollar Loan, the
last day of each Interest Period applicable to such Loan and, in the case of any
such Loan which has an Interest Period which exceeds three months, the
three-month anniversary of the first day of such Interest Period.
Interest Period means (a) for any Eurodollar Loan, a period
commencing on the date such Eurodollar Loan is made, continued or
converted and each subsequent period commencing on the last day of the
immediately preceding Interest Period for such Eurodollar Loan and ending,
at the Company's option in accordance with the terms hereof, on the date one,
two, three or six months thereafter; and (b) for any Bid Loan, a period of not
less than 7 nor more than 183 days; provided that:
(i) if an Interest Period would end on a day which is not
a Business Day, such Interest Period shall be extended to the next
Business Day (unless, in the case of a Eurodollar Loan, such
extension would cause such Interest Period to end in the succeeding
calendar month, in which case such Interest Period shall end on the
next preceding Business Day); and
(ii) no Interest Period shall extend past the scheduled
Termination Date.
Invitation for Competitive Bids means a notice substantially in the
form of Exhibit E.
IRS means the Internal Revenue Service of the United States.
Lead Arranger means each of Banc of America Securities, LLC and
Banc One Capital Markets, Inc.
Lender - see the Preamble.
Leverage Ratio means, as of any date, the ratio of (a) the sum (without
duplication) of (i) all Debt of the Company and its Consolidated Subsidiaries
plus (ii) all Synthetic Lease Obligations of the Company and its Consolidated
Subsidiaries, all determined on a consolidated basis, to (b) EBITDA for the
period of four consecutive fiscal quarters most recently ended on or before
such date for which financial statements have been delivered pursuant to
subsection 8.01(a) or (b); provided that for purposes of calculating EBITDA
pursuant to this clause (b), the consolidated net income of any Person or
business unit acquired by the Company or any Subsidiary during such period
(plus, to the extent deducted in determining such consolidated net income,
Interest Expense, income tax expense, depreciation and amortization of such
Person or business unit) shall be included on a pro forma basis for such
period (assuming the consummation of each such acquisition and the
incurrence or assumption of any Debt in connection therewith occurred on the
first day of such period) in accordance with Article 11 of Regulation S-X of
the Securities and Exchange Commission.
Lien means any interest in property securing any obligation owed to,
or a claim by, a Person other than the owner of the property, whether such
interest is based on the common law, statute or contract, and including but
not limited to the lien or security interest arising from a mortgage,
encumbrance, pledge, security agreement, conditional sale or trust receipt or
a lease, consignment or bailment for security purposes.
Loans means Committed Loans and Bid Loans; and Loan means any
of the foregoing.
Long Term Credit Agreement means the Long Term Credit
Agreement dated as of the date hereof among the Company, various financial
institutions and the Administrative Agent.
Material Adverse Effect means a material adverse effect on (i) the
business, assets, operations or condition (financial or otherwise) of the
Company and its Subsidiaries taken as a whole or (ii) the ability of the
Company to perform its obligations hereunder.
Material Financial Obligations means Debt or Synthetic Lease
Obligations of the Company or any Subsidiary in an aggregate amount (for
all applicable Debt and Synthetic Lease Obligations, but without duplication)
equal to or greater than the lesser of (i) a Dollar Equivalent amount of
US$25,000,000 or (ii) at any time the Company or any Subsidiary has Debt
outstanding, obtained through one or more public or private placements
thereof to institutional investors, with a Dollar Equivalent principal amount
of US$25,000,000 or more outstanding, which has a threshold for cross-default
(similar to subsection 9.01(e)) lower than a Dollar Equivalent amount
of US$25,000,000, the lowest threshold amount under any such financing.
Material Subsidiary means Pentair U.K. Ltd., Pentair Canada Inc.,
EuroPentair GmbH and each other Subsidiary of the Company 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).
Minimum Tranche means US$5,000,000 or a higher integral multiple
of US$1,000,000.
Moody's means Xxxxx'x Investors Service, Inc.
Note means a promissory note issued by the Company to a Lender
substantially in the form of Exhibit A, with appropriate insertions, evidencing
Loans by such Lender to the Company hereunder.
Notice of Committed Borrowing means a notice substantially in the
form of Exhibit B.
Notice of Conversion/Continuation means a notice substantially in the
form of Exhibit C of a continuation or conversion of Committed Loans
pursuant to subsection 2.03(b).
Other Taxes means any present or future stamp, court or documentary
taxes or any other excise or property taxes, charges or similar levies which
arise from any payment made hereunder or from the execution, delivery,
performance, enforcement or registration of, or otherwise with respect to, this
Agreement or any Note.
Participant see subsection 11.06(e).
Payment Office means the office of the Administrative Agent
specified on Schedule 11.01 or such other office as the Administrative Agent
may from time to time designate.
Payment Sharing Notice means a written notice from any Lender to
the Administrative Agent and the Company (i) advising them that an Event
of Default has occurred and is continuing and (ii) directing the
Administrative Agent to allocate all payments and other recoveries received
from or on behalf of the Company in accordance with subsection 4.08(b).
PBGC means the Pension Benefit Guaranty Corporation and any
successor thereto.
Permitted Acquisition means any Acquisition by the Company or a
Subsidiary which satisfies each of the following requirements: (i) no Event
of Default or Unmatured Event of Default has occurred and is continuing at
the time of, or will result from, such Acquisition; (ii) if the aggregate
consideration to be paid by the Company and its Subsidiaries in connection
with such Acquisition (including Debt assumed, but excluding capital stock
of the Company) exceeds US$10,000,000, the Company shall have delivered
to the Administrative Agent a certificate demonstrating that, after giving
effect to such Acquisition, the Company will be in pro forma compliance
with Sections 8.02 and 8.03; and (iii) in the case of the Acquisition of any
Person, the Board of Directors (or equivalent governing body) of the Person
being acquired shall have approved such Acquisition.
Person means an individual, limited liability company, partnership,
corporation, trust, unincorporated organization, association, joint venture or
other entity or a government or agency or political subdivision 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 the Company
or any ERISA Affiliate for employees of the Company or such ERISA
Affiliate or (ii) maintained pursuant to a collective bargaining agreement or
any other arrangement under which more than one employer makes
contributions and to which the Company or any ERISA Affiliate is then
making or accruing an obligation to make contributions or has within the
preceding five plan years made contributions.
Pro Rata Share means, with respect to any Lender at any time, the
percentage equivalent (expressed as a decimal, rounded to the ninth decimal
place) at such time of
(a) prior to termination of the Commitments, (i) such
Lender's Commitment divided by (ii) the Total Commitment; and
(b) after termination of the Commitments, (i) the
aggregate principal amount of such Lender's Loans divided by (ii) the
Total Outstandings.
Required Lenders means Lenders having Pro Rata Shares of more
than 50%.
Requirement of Law means, as to any Person, any law (statutory or
common), treaty, rule or regulation or determination of an arbitrator or of a
Governmental Authority, in each case applicable to or binding upon the
Person or any of its property or to which the Person or any of its property is
subject.
Reserve Requirement means, for any day for any Eurodollar Loan, the
maximum reserve percentage (expressed as a decimal, rounded upward, if
necessary, to an integral multiple of 1/100th of 1%) in effect on such day
(whether or not applicable to any Lender) under regulations issued from time
to time by the FRB for determining the maximum reserve requirement
(including any emergency, special, supplemental or other marginal reserve
requirement) with respect to Eurocurrency funding (currently referred to as
"Eurocurrency liabilities" in Regulation D of the FRB).
Securitization Transaction means any sale, assignment or other
transfer by the Company or any Subsidiary of accounts receivable, lease
receivables or other payment obligations owing to the Company or such
Subsidiary or any interest in any of the foregoing (other than sales of
defaulted receivables, foreign receivables or similar items in the ordinary
course of business consistent with past practice), together in each case with
any collections and other proceeds thereof, any collection or deposit accounts
related thereto, and any collateral, guaranties or other property or claims in
favor of the Company or such Subsidiary supporting or securing payment by
the obligor thereon of, or otherwise related to, any such receivables.
S&P means Standard & Poor's Ratings Group, a division of XxXxxx-Xxxx
Companies, Inc.
Spot Rate of Exchange means for any amount denominated in any
currency other than US Dollars, an amount of US Dollars into which the
Administrative Agent could convert such currency by using the applicable
quoted spot rate as reported on the appropriate page of the Reuters Screen at
11:00 A.M. (London, England time) two Business Days preceding the day
such determination is requested to be made.
Subsidiary means any Person in which more than 50% of its
outstanding voting stock or rights or more than 50% of all equity interest is
owned directly or indirectly by the Company.
Synthetic Lease Obligations means obligations under operating leases
(as determined pursuant to Statement of Financial Accounting Standards No.
13) of properties which are reported for United States income tax purposes
as owned by the Company or a Consolidated Subsidiary. The amount of
Synthetic Lease Obligations under any such lease shall be determined in
accordance with GAAP as if such operating lease were a capital lease.
Taxes means any and all present or future taxes, levies, assessments,
imposts, duties, deductions, fees, withholdings or similar charges, and all
liabilities with respect thereto, excluding, in the case of each Lender and each
Agent, respectively, taxes imposed on or measured by its net income by the
jurisdiction (or any political subdivision thereof) under the laws of which
such Lender or such Agent, as the case may be, is organized or maintains a
lending office.
Termination Date means the earlier to occur of (i) August 31, 2000
or such later date as may be specified as the scheduled Termination Date
pursuant to Section 2.07 or (ii) the date on which the Commitments terminate
or are reduced to zero.
Total Commitment means the aggregate amount of the Commitments
of all Lenders. The initial Total Commitment is US$375,000,000.
Total Outstandings means at any time the aggregate principal amount
of all Loans.
Type of Loan or Borrowing refers to the interest rate basis for a loan
or borrowing. The "Types" of Committed Loans or borrowings are Base Rate
Loans or borrowings and Eurodollar Loans or borrowings.
Unfunded Vested Liabilities means, with respect to any Plan at any
time, the amount (if any) by which (i) the present value of all vested
nonforfeitable benefits under such Plan exceeds (ii) the fair market value of
all Plan assets allocable to such benefits, all determined as of the then most
recent valuation date for such Plan, but only to the extent that such excess
represents a potential liability of the Company or any ERISA Affiliate to the
PBGC or such Plan under Title IV of ERISA.
Unmatured Event of Default means any event which if it continues
uncured will, with lapse of time or notice or both, constitute an Event of
Default.
US Dollars or US$ means dollars constituting legal tender for the
payment of public and private debts in the United States of America.
1.02 Rules of Interpretation.
(a) All accounting terms not specifically defined herein shall have
the meanings assigned to such terms and shall be interpreted in accordance
with GAAP applied on a consistent basis; provided that if the Company
notifies the Administrative Agent that the Company desires to amend any
covenant in Article VIII (or any related definition) to eliminate the effect of
any change in GAAP on the operation of such covenant (or such definition),
or the Administrative Agent notifies the Company that the Required Lenders
desire to amend any such covenant (or any such definition) for such purpose,
then the Company's compliance with such covenant shall be determined (or
such definition shall be interpreted) on the basis of GAAP as 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 the Company and the Required Lenders.
(b) The headings, subheadings and table of contents herein are
solely for convenience of reference and shall not affect the meaning,
construction or effect of any provision hereof.
(c) Except as otherwise expressly provided, references herein to
articles, sections, paragraphs, clauses, annexes, exhibits and schedules are
references to articles, sections, paragraphs, clauses, annexes, exhibits and
schedules in or to this Agreement.
(d) All definitions set forth herein shall apply to the singular as
well as the plural form of the applicable defined term, and all references to
the masculine gender shall include reference to the feminine or neuter gender,
and vice versa, as the context may require.
(e) References to "including" means including without limiting
the generality of any description preceding such term.
(f) All references to any agreement or document as amended,
modified or supplemented, or words of similar effect, shall mean such
agreement or document as amended, modified or supplemented from time to
time.
ARTICLE II
The Committed Facility
2.01 Commitments. Subject to the terms and conditions of this
Agreement, each Lender severally agrees to make Committed Loans to the
Company in US Dollars from the Closing Date until the Termination Date in
such Lender's Pro Rata Share of such aggregate amounts as the Company
may request from time to time from all Lenders; provided that (i) the Total
Outstandings shall not at any time exceed the Total Commitment and (ii) the
aggregate principal amount of all Committed Loans of any Lender shall not
at any time exceed such Lender's Commitment.
2.02 Procedure for Committed Borrowings.
(a) Each Committed Borrowing shall be made upon irrevocable
written notice from the Company to the Administrative Agent, which notice
must be received by the Administrative Agent not later than (i) 10:00 A.M.
(Chicago time) two Business Days prior to the requested Borrowing Date, in
the case of Eurodollar Loans; and (ii) 11:00 A.M. (Chicago time) on the
requested Borrowing Date, in the case of Base Rate Loans. Each such notice
shall specify:
(A) the amount of the Committed Borrowing, which shall
be in an aggregate amount not less than the Minimum Tranche;
(B) the requested Borrowing Date, which shall be a
Business Day;
(C) the Type of Loans comprising the Committed
Borrowing ; and
(D) in the case of a Borrowing of Eurodollar Loans, the
duration of the initial Interest Period therefor.
(b) Upon receipt of a Notice of Committed Borrowing, the
Administrative Agent will promptly notify each Lender thereof and of the
amount of such Lender's Pro Rata Share of the Committed Borrowing.
(c) Each Lender will make the amount of its Pro Rata Share of
each Committed Borrowing available to the Administrative Agent for the
account of the Company at the Payment Office in immediately available
funds by noon (Chicago time) on the Borrowing Date requested by the
Company. The proceeds of all such Loans will promptly be made available
to the Company by the Administrative Agent in like funds as received by the
Administrative Agent.
(d) After giving effect to any Committed Borrowing, there may
not be more than 12 different Interest Periods for all Committed Borrowings.
2.03 Conversion and Continuation Elections for Committed
Borrowings.
(a) The Company may, upon irrevocable written notice to the
Administrative Agent in accordance with subsection 2.03(b):
(i) elect, as of any Business Day, in the case of Base Rate
Loans, or as of the last day of the applicable Interest Period, in the
case of Eurodollar Loans, to convert any Committed Loans (or any
part thereof in an amount not less than the Minimum Tranche) into
Committed Loans of the other Type; or
(ii) elect, as of the last day of the applicable Interest
Period, to continue any Committed Loans having Interest Periods
expiring on such day (or any part thereof in an amount not less than
the Minimum Tranche) as Committed Loans of the same Type with
a new Interest Period;
provided that if at any time the aggregate amount of Eurodollar Loans in
respect of any Committed Borrowing is reduced, by payment, prepayment or
conversion of part thereof, to be less than the Minimum Tranche, such
Eurodollar Loans shall automatically convert into Base Rate Loans.
(b) The Company shall deliver a Notice of
Conversion/Continuation to be received by the Administrative Agent not later
than (i) 10:00 A.M. (Chicago time) two Business Days prior to the
Conversion/Continuation Date, if Eurodollar Loans are to be continued as, or
converted from Base Rate Loans into, Eurodollar Loans; and (ii) 10:00 A.M.
(Chicago time) on the Conversion/Continuation Date, if Eurodollar Loans are
to be converted into Base Rate Loans. Each such notice shall specify:
(A) the proposed Conversion/Continuation Date;
(B) the aggregate amount of the Committed Loans to be
converted or continued;
(C) the Type of Committed Loans resulting from the
proposed conversion or continuation; and
(D) other than in the case of conversions into Base Rate
Loans, the duration of the requested Interest Period.
(c) If upon the expiration of any Interest Period applicable to
Eurodollar Loans, the Company has failed to timely select a new Interest
Period to be applicable to such Eurodollar Loans, the Company shall be
deemed to have elected to convert such Eurodollar Loans into Base Rate
Loans effective as of the expiration date of such Interest Period.
(d) The Administrative Agent will promptly notify each Lender
of its receipt of a Notice of Conversion/Continuation or, if no timely notice
is provided by the Company, the Administrative Agent will promptly notify
each Lender of the details of any automatic conversion or continuation. All
conversions and continuations of Committed Loans shall be made ratably
according to the respective Pro Rata Shares of the Lenders.
(e) Unless the Required Lenders otherwise agree, during the
existence of an Event of Default or Unmatured Event of Default, the
Company may not elect to have a Committed Loan converted into or
continued as a Eurodollar Loan.
(f) After giving effect to any conversion or continuation of
Committed Loans, there may not be more than 12 different Interest Periods
for all Committed Loans.
2.04 Interest on Committed Loans. The Company shall pay interest
on the unpaid principal amount of each Committed Loan, from the date such
Committed Loan is made to the date such Committed Loan is paid in full, as
follows:
(a) so long as such Committed Loan is a Base Rate Loan, at a rate
per annum equal to the Base Rate; and
(b) so long as such Committed Loan is a Eurodollar Loan, at a
rate per annum equal to the Adjusted Eurodollar Rate for each
applicable Interest Period plus the Applicable Margin;
provided that, upon the request of the Required Lenders at any time (and for
so long as) an Event of Default exists, the interest rate applicable to each
Committed Loan shall be increased by 2%.
2.05 Optional Prepayments. The Company may from time to time
prepay Committed Loans in whole or in part, in an aggregate principal
amount of US$5,000,000 or a higher integral multiple of US$1,000,000. The
Company shall deliver a notice of prepayment to be received by the
Administrative Agent not later than 10:00 A.M. (Chicago time) (a) in the case
of Eurodollar Loans, one Business Day in advance of the prepayment date,
and (b) in the case of Base Rate Loans, on the prepayment date. Each such
notice shall specify the Loans to be prepaid and the date and amount of such
prepayment. The Administrative Agent will promptly notify each Lender of
its receipt of such notice and of such Lender's Pro Rata Share of such
prepayment. Any prepayment of Eurodollar Loans shall include accrued
interest on the principal amount prepaid and, unless made on the last day of
an Interest Period therefor, shall be subject to the provisions of Section 5.04.
2.06 Reduction or Termination of the Commitments. (a) The
Company may, upon not less than three Business Days' prior written notice
to the Administrative Agent, (i) terminate the Commitments upon payment
in full by the Company of all outstanding obligations hereunder or (ii)
permanently reduce the amount of the Commitments, by an amount equal to
US$10,000,000 or a higher integral multiple of US$1,000,000, to an amount
which is not less than the Total Outstandings.
(b) Once reduced pursuant to this Section, no Commitment may
be increased. Any reduction of the Commitments shall be applied to reduce
the Commitments of the Lenders pro rata in accordance with their respective
Pro Rata Shares.
2.07 Extension of Termination Date. The Company may request
an extension of the Termination Date by submitting a request for an extension
to the Administrative Agent (an "Extension Request") no more than 60 and
not less than 30 days prior to the then-scheduled Termination Date. The
Extension Request must specify the new scheduled Termination Date
requested by the Company, which shall be no more than 364 days after the
Termination Date in effect at the time the Extension Request is received.
Promptly upon receipt of an Extension Request, the Administrative Agent
shall notify each Lender of the contents thereof and shall request each Lender
to approve the Extension Request. Each Lender approving the Extension
Request shall deliver its written consent no later than 15 days after the date
such Extension Request is received by the Administrative Agent. If the
consent of all of the Lenders is timely received by the Administrative Agent,
the new scheduled Termination Date specified in the Extension Request shall
become effective on the existing scheduled Termination Date and the
Administrative Agent shall promptly notify the Company and each Lender of
the new scheduled Termination Date. No Lender shall be under any
obligation to approve any Extension Request.
ARTICLE III
Competitive Bid Facility
3.01 Competitive Bid Loans. Each Lender agrees that the
Company may from time to time prior to the Termination Date request the
Lenders to submit offers to make Bid Loans to the Company. Each Lender
may, but shall have no obligation to, submit such offers and the Company
may, but shall have no obligation to, accept any such offers; provided that at
no time shall the Total Outstandings exceed the Total Commitments.
3.02 Procedures for Bid Borrowings.
(a) The Company may request the Lenders to submit
offers to make Bid Loans by sending the Administrative Agent by
facsimile a written notice substantially in the form of Exhibit D (a
"Competitive Bid Request") so as to be received no later than 10:00
A.M. (Chicago time) one Business Day prior to the date of a proposed
Bid Borrowing, specifying:
(i) the date of the proposed Bid Borrowing, which
shall be a Business Day;
(ii) the aggregate amount of such Bid Borrowing,
which shall be a minimum amount of US$5,000,000 or a
higher integral multiple of US$1,000,000; and
(iii) the duration of the Interest Period applicable
thereto
The Company may not request the Administrative Agent to solicit
offers for Competitive Bids for more than three Interest Periods in a
single Competitive Bid Request and may not request Competitive
Bids more than once in any period of five Business Days.
(b) Upon receipt of a Competitive Bid Request, the
Administrative Agent will promptly send to the Lenders by facsimile
transmission an Invitation for Competitive Bids, which shall
constitute an invitation by the Company to each Lender to submit
Competitive Bids offering to make the Bid Loans to which such
Competitive Bid Request relates in accordance with this Section 3.02.
(c) (i) Each Lender may in its discretion submit a
Competitive Bid containing an offer or offers to make Bid Loans in
response to any Invitation for Competitive Bids. Each Competitive
Bid must comply with the requirements of this subsection 3.02(c) and
must be submitted to the Administrative Agent by facsimile
transmission at its office specified pursuant to Section 11.01 not later
than 8:45 A.M. (Chicago time) on the proposed Borrowing Date;
provided that Competitive Bids submitted by the Administrative
Agent (in its individual capacity) or any Affiliate thereof may only be
submitted if such entity notifies the Company of the terms of the offer
or offers contained therein not later than 8:30 A.M. (Chicago time) on
the proposed Borrowing Date.
(ii) Each Competitive Bid shall be in substantially the
form of Exhibit F, specifying therein:
(A) the proposed Borrowing Date;
(B) the principal amount of each Bid Loan
for which such Competitive Bid is being made, which
principal amount (x) may be equal to, greater than or
less than the Commitment of the quoting Lender, (y)
must be $5,000,000 or a higher integral multiple of
$1,000,000 and (z) may not exceed the principal
amount of Bid Loans for which Competitive Bids
were requested;
(C) the rate of interest per annum
expressed in multiples of 1/100th of one basis point
(the "Absolute Rate") offered for each such Bid Loan
and the Interest Period applicable thereto; and
(D) the identity of the quoting Lender.
A Competitive Bid may contain up to three separate offers by the
quoting Lender with respect to each Interest Period specified in the
related Invitation for Competitive Bids.
(iii) Any Competitive Bid shall be disregarded if it:
(A) is not substantially in conformity with
Exhibit F or does not specify all of the information
required by subsection 3.02(c)(ii);
(B) contains qualifying, conditional or
similar language;
(C) proposes terms other than or in
addition to those set forth in the applicable Invitation
for Competitive Bids; or
(D) arrives after the time set forth in
subsection 3.02(c)(i).
(d) Promptly on receipt and not later than 9:00 A.M.
(Chicago time) on the proposed Borrowing Date, the Administrative
Agent will notify the Company of the terms (i) of any Competitive
Bid submitted by a Lender that is in accordance with subsection
3.02(c) and (ii) of any Competitive Bid that amends, modifies or is
otherwise inconsistent with a previous Competitive Bid submitted by
such Lender with respect to the same Competitive Bid Request. Any
such subsequent Competitive Bid shall be disregarded by the
Administrative Agent unless such subsequent Competitive Bid is
submitted solely to correct a manifest error in such former
Competitive Bid and only if received within the times set forth in
subsection 3.02(c). The Administrative Agent's notice to the
Company shall specify (1) the aggregate principal amount of Bid
Loans for which offers have been received for each Interest Period
specified in the related Competitive Bid Request; (2) the respective
principal amounts and Absolute Rates offered for each Interest Period
and (3) any other information regarding such Competitive Bid
reasonably requested by the Company. Subject only to the provisions
of Article VI and the provisions of this subsection (d), any
Competitive Bid shall be irrevocable except with the written consent
of the Administrative Agent given on the written instructions of the
Company.
(e) Not later than 9:15 A.M. on the proposed Borrowing
Date, the Company shall notify the Administrative Agent, in writing
and in a form reasonably acceptable to the Administrative Agent, of
its acceptance or non-acceptance of the offers notified to it pursuant
to subsection 3.02(d). The Company shall be under no obligation to
accept any offer and may choose to accept or reject some or all of
such offers. In the case of acceptance, such notice shall specify the
aggregate principal amount of offers for each Interest Period that is
accepted. The Company may accept any Competitive Bid in whole
or in part; provided that:
(i) the aggregate principal amount of each Bid
Borrowing may not exceed the applicable amount set forth in
the related Competitive Bid Request;
(ii) the principal amount of each Bid Borrowing
must be US$5,000,000 or a higher integral multiple of
US$1,000,000;
(iii) acceptance of offers may only be made on the
basis of ascending Absolute Rates within each Interest Period;
and
(iv) the Company may not accept any offer that is
described in subsection 3.02(c)(iii) or that otherwise fails to
comply with the requirements of this Agreement.
(f) If offers are made by two or more Lenders with the
same Absolute Rates for a greater aggregate principal amount than
the amount in respect of which such offers are accepted for the related
Interest Period, the principal amount of Bid Loans in respect of which
such offers are accepted shall be allocated by the Administrative
Agent among such Lenders (in such multiples, not less than
US$1,000,000, as the Administrative Agent may deem appropriate)
as nearly as practicable in proportion to the aggregate principal
amounts of such offers. Determination by the Administrative Agent
of the amounts of Bid Loans shall be conclusive in the absence of
demonstrable error.
(g) (i) The Administrative Agent will promptly notify
each Lender having submitted a Competitive Bid if its offer has been
accepted and, if its offer has been accepted, of the amount of the Bid
Loan or Bid Loans to be made by it on the date of the Bid Borrowing.
(ii) Each Lender which has received notice
pursuant to subsection 3.02(g)(i) that its Competitive Bid has
been accepted with respect to any Bid Loan shall make the
amount of such Bid Loan available to the Administrative
Agent in immediately available funds for the account of the
Company at the Payment Office, by noon (Chicago time) on
the applicable Borrowing Date.
(iii) Promptly following each Bid Borrowing, the
Administrative Agent shall notify each Lender of the range of
bids submitted and the highest and lowest bids accepted for
each Interest Period requested by the Company and the
aggregate amount borrowed pursuant to such Bid Borrowing.
ARTICLE IV
General Credit Terms
4.01 Repayment. All Loans and all other obligations of the
Company hereunder shall be due and payable in full on August 31, 2000 (or
such earlier date as shall be required pursuant hereto).
4.02 Payment of Interest. Interest on each Loan shall be paid in
arrears on each applicable Interest Payment Date. Interest shall also be paid
on the date of any prepayment of Loans (other than Base Rate Loans) for the
portion of the Loans so prepaid. In addition, during the existence of any
Event of Default, interest on all Loans shall be paid on demand of the
Administrative Agent at the request or with the consent of the Required
Lenders.
4.03 Payments. (a) All payments by the Company hereunder in
respect of any amount payable under Article V shall be made directly to the
Lender entitled to receive such payment. All other payments by the Company
hereunder shall be made to the Administrative Agent at its Payment Office.
All such payments shall be made prior to noon (local time at the place of
payment) on the date due, and funds received after that time shall be deemed
received on the following Business Day. All such payments shall be made
in US Dollars and without setoff or counterclaim.
(b) If any payment hereunder falls due on a day which is not a
Business Day, then such due date shall be extended to the immediately
following Business Day (unless, in the case of a Eurodollar Loan, such
immediately following Business Day is the first Business Day of a calendar
month, in which case such due date shall be the immediately preceding
Business Day).
4.04 Loan Accounts. The Loans shall be evidenced by one or more
accounts or records maintained by the Administrative Agent and each Lender
in the ordinary course of business. The accounts or records so maintained
shall be rebuttable presumptive evidence of the amount of the Loans
outstanding by each applicable Lender to the Company. Any failure to record
or any error in recording any such amount shall, not, however, limit or
otherwise affect the obligation of the Company hereunder to pay any amount
owing with respect to any Loan or any other obligation hereunder.
4.05 Notes. Upon the request of any Lender made through the
Administrative Agent, the Loans made by such Lender may be evidenced by
one or more Notes issued by the Company, instead of loan accounts. Each
such Lender may endorse on the schedule annexed to the applicable Note the
date, amount and maturity of each Loan made by it and the amount of each
payment of principal made by the Company with respect thereto. Each such
Lender is irrevocably authorized by the Company to endorse such Note and
each such Lender's record shall be rebuttable presumptive evidence of the
amount of the Loans made by such Lender; provided that the failure of a
Lender to make, or an error in making, a notation on its Note with respect to
any Loan shall not limit or otherwise affect the obligations of the Company
hereunder or under such Note.
4.06 Fees.
(a) Arrangement, Agency Fees. The Company shall pay
arrangement fees to each Lead Arranger for such Lead Arranger's own
account, and shall pay agency and other fees to the Administrative Agent for
the Administrative Agent's own account, as mutually agreed to in writing
from time to time by the Company, the Lead Arrangers and the
Administrative Agent.
(b) Facility Fees. The Company shall pay to the Administrative
Agent for the account of each Lender a facility fee computed at a rate per
annum equal to the Facility Fee Rate on the amount such Lender's
Commitment. Such facility fee shall accrue from the date of this Agreement
to the Termination Date, and shall be due and payable quarterly in arrears on
the last Business Day of each calendar quarter and on the Termination Date.
4.07 Computation of Fees and Interest. (a) All computations of
interest for Base Rate Loans when the interest rate is determined by the
"reference rate" of Bank of America shall be made on the basis of a year of
365 or 366 days, as the case may be, and actual days elapsed. All other
computations of interest and fees shall be made on the basis of a 360-day year
and actual days elapsed (which results in more interest and fees being paid
than if computed on the basis of a 365-day year). Interest and fees shall
accrue during each period during which interest or fees are computed from
the first day thereof to the last day thereof.
(b) Each determination of an interest rate by the Administrative
Agent shall be conclusive and binding on the Company and the Lenders in
the absence of manifest error. The Administrative Agent will, at the request
of the Company or any Lender, deliver to the Company or such Lender, as the
case may be, a statement showing the quotations used by the Administrative
Agent in determining any interest rate.
4.08 Order and Proration of Payments.
(a) If any payment received by the Administrative Agent by or on
behalf of the Company hereunder is insufficient to pay in full the amounts
then due and payable by the Company hereunder and the Administrative
Agent has not received a Payment Sharing Notice, such payment shall be
distributed to the Lenders (and for purposes of this Agreement shall be
deemed to have been applied by the Lenders, notwithstanding the fact that
any Lender 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
Committed Loans and Bid Loans which are then due and payable, ratably
among the Lenders in accordance with the aggregate principal amount of such
Loans owed to each Lender; second, to the payment of interest then due and
payable on the Committed Loans and Bid Loans, ratably among the Lenders
in accordance with the aggregate amount of interest owed to each Lender;
third, to the payment of the fees then due and payable by the Company
hereunder, ratably among the Lenders in accordance with the aggregate
amount of such fees owed to each Lender; and fourth, to the payment of any
other amounts payable by the Company under this Agreement, ratably among
the Lenders in accordance with the aggregate amount of such payments owed
to each Lender.
(b) After the Administrative Agent has received a Payment
Sharing Notice, all payments received by the Administrative Agent by or on
behalf of the Company to be distributed to Lenders shall be distributed to the
Lenders (and for purposes of this Agreement shall be deemed to have been
applied by the Lenders, notwithstanding the fact that any Lender may have
made a different application in its books and records) in the following order:
first, to the payment of amounts payable by the Company under Section
11.03, ratably among the Administrative Agent and the Lenders in
accordance with the aggregate amount of such payments owed to the
Administrative Agent and each Lender; second, to the payment of fees
payable by the Company under Section 4.06, ratably among the Lenders in
accordance with the aggregate amount of such fees owed to each Lender;
third, to the payment of the principal amount of and interest accrued on the
Loans, regardless of whether any such amount is then due and payable,
ratably among the Lenders in accordance with the aggregate amount of
principal and interest owed to the Lenders; and fourth, to the payment of any
other amount payable by the Company under this Agreement, ratably among
the Lenders in accordance with the amount owed to each Lender.
(c) If, other than as expressly provided elsewhere herein, any
Lender 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 (including any Bid Loan)
or any fees in excess of the share of payments and other recoveries (exclusive
of payments or recoveries under Article V) such Lender would have received
if such payment or recovery had been distributed pursuant to the provisions
of subsection 4.08(a) or (b) (whichever is applicable at the time of such
payment or other recovery), such Lender shall purchase from the other
Lenders, in a manner to be reasonably specified by the Administrative Agent,
such participations in the Loans held by them as shall be necessary to cause
such purchasing Lender to share the excess payment or other recovery ratably
with each of them in accordance with the order of payments set forth in
subsection 4.08(a) or (b), as applicable; provided that if all or any portion of
the excess payment or other recovery is thereafter recovered from such
purchasing Lender, the purchase shall be rescinded and the purchase price
restored to the extent of such recovery, but without interest.
ARTICLE V
Change in Circumstances
5.01 Increased Cost and Reduced Return.
(a) If, after the date hereof, any change in, the adoption of
any new applicable law, rule or regulation, 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 Lender
(or its Applicable Lending Office) with any request or directive
(whether or not having the force of law) of any such Governmental
Authority, central bank or comparable agency:
(i) shall subject such Lender (or its Applicable
Lending Office) to any tax, duty or other charge with respect
to any Loans, its Note or its obligation to make Loans, or shall
change the basis of taxation of any amount payable to such
Lender (or its Applicable Lending Office) under this
Agreement or its Note in respect of any Loans (other than
taxes imposed on the overall net income of such Lender by
the jurisdiction in which such Lender has its principal office
or such Applicable Lending Office);
(ii) shall impose, modify, or deem applicable any
reserve, special deposit, assessment, compulsory advance, or
similar requirement (other than the Reserve Requirement
utilized in the determination of the Eurodollar Rate) relating
to any extensions of credit or other assets of, or any deposits
with or other liabilities or commitments of, such Lender (or
its Applicable Lending Office) hereunder; or
(iii) shall impose on such Lender (or its Applicable
Lending Office) or the applicable offshore interbank market
any other condition affecting this Agreement or any Loan;
and the result of any of the foregoing is to increase the cost to such
Lender (or its Applicable Lending Office) of making, converting into,
continuing or maintaining any Loan or to reduce any sum received or
receivable by such Lender (or its Applicable Lending Office) under
this Agreement or its Note with respect to any Loan, then the
Company shall pay to such Lender on demand such amount or
amounts as will compensate such Lender for such increased cost or
reduction.
(b) If, after the date hereof, any Lender shall have
determined that any change in, the adoption of any new, applicable
law, rule or regulation regarding capital adequacy, or in the
interpretation or administration thereof by any Governmental
Authority, central bank or comparable agency charged with the
interpretation or administration thereof, or any request or directive
regarding capital adequacy (whether or not having the force of law)
of any such Governmental Authority, central bank or comparable
agency, has or would have the effect of reducing the rate of return on
the capital of such Lender or any corporation controlling such Lender
as a consequence of such Lender's obligations hereunder to a level
below that which such Lender or such corporation could have
achieved but for such adoption, change, request, or directive (taking
into consideration its policies with respect to capital adequacy), then
from time to time upon demand the Company shall pay to such
Lender such additional amount or amounts as will compensate such
Lender for such reduction.
(c) Any Lender claiming compensation under this Section 5.01
shall furnish to the Company and the Administrative Agent a statement
setting forth the basis for, and a calculation in reasonable detail of, the
additional amount or amounts to be paid to it hereunder which shall be
conclusive in the absence of manifest error. In determining such amount, any
Lender may use any reasonable averaging and attribution methods.
5.02 Limitation on Types of Loan. If on or prior to the first day of
any Interest Period for any Eurodollar Loan:
(a) the Administrative Agent determines (which
determination shall be conclusive) that by reason of circumstances
affecting the relevant market, adequate and reasonable means do not
exist for ascertaining the Eurodollar Rate, or
(b) the Required Lenders notify the Administrative Agent
that they have determined (which determination shall be conclusive)
that the Adjusted Eurodollar Rate will not adequately and fairly
reflect the cost to such Lenders of funding their Loans for such
Interest Period;
then the Administrative Agent shall give the Company prompt notice thereof,
and so long as such condition remains in effect, (i) the Lenders shall be under
no obligation to make Eurodollar Loans and (ii) on the last day of the then
current Interest Period for each outstanding Eurodollar Loan, such Loans
shall (unless then repaid in full) convert Base Rate Loans.
5.03 Changes in Law Rendering Eurodollar Loans Unlawful. If any
change in any, or the adoption of any new, applicable law, rule or regulation,
or any change in the interpretation or administration thereof by any
Governmental Authority, central bank or comparable agency or other
regulatory body charged with the administration or interpretation thereof,
should make it (or in the good faith judgment of any Lender cause a
substantial question as to whether it is) unlawful for any Lender to make,
maintain or fund any Eurodollar Loan, then such Lender shall promptly notify
the Company and the Administrative Agent and, so long as such
circumstances shall continue, (a) such Lender shall have no obligation to
make or convert into any Eurodollar Loan (but shall make a Base Rate Loan
concurrently with the making of or conversion into Eurodollar Loans by the
Lenders which are not so affected, in each case in an amount equal to such
Lender's Pro Rata Share of the applicable Committed Borrowing) and (b) on
the last day of the current Interest Period for each Eurodollar Loan of such
Lender (or, in any event, on such earlier date as may be required by the
relevant law, regulation or interpretation), such Eurodollar Loan shall (unless
then paid in full) automatically convert to a Base Rate Loan. Each Base Rate
Loan made by a Lender which, but for the circumstances described in the
foregoing sentence, would be a Eurodollar Loan (an "Affected Loan") shall
remain outstanding for the same period as the Borrowing of Eurodollar Loans
of which such Affected Loan would be a part absent such circumstances.
5.04 Funding Losses. The Company shall reimburse each Lender
and hold each Lender harmless from any loss or expense which such Lender
may sustain or incur as a consequence of:
(a) the failure of the Company to borrow, continue or
convert a Loan into a Eurodollar Loan after the Company has given
(or is deemed to have given) a notice of such borrowing, continuation
or conversions;
(b) the failure of the Company to make any prepayment
of any Loan in accordance with any notice delivered pursuant hereto;
(c) the prepayment (including pursuant to Section 5.03)
or other payment (including after acceleration thereof) of the
principal of any Loan on a day that is not the last day of an Interest
Period; or
(d) the automatic conversion under subsection 2.03(a) of
any Eurodollar Loan on a day that is not the last day of an Interest
Period;
including any such loss or expense arising from the liquidation or
reemployment of funds obtained by such Lender to maintain the applicable
Loan or from fees payable to terminate the deposits from which such funds
were obtained. For purposes of calculating amounts payable by the Company
to any Lender under this Section, (i) each Eurodollar Loan made by a Lender
(and each related reserve, special deposit or similar requirement) shall be
conclusively deemed to have been funded at the Eurodollar Rate used in
determining the interest rate for the applicable (including any proposed)
Interest Period by a matching deposit or other borrowing in the interbank
eurocurrency market for a comparable amount and for a comparable period,
whether or not such Eurodollar Loan is in fact so funded.
5.05 Taxes.
(a) Any and all payments by the Company to any Lender
or the Administrative Agent under this Agreement shall be made free
and clear of, and without deduction or withholding for, any Taxes.
In addition, the Company shall pay all Other Taxes.
(b) If the Company shall be required by law to deduct or
withhold any Taxes or Other Taxes from or in respect of any sum
payable hereunder to any Lender or the Administrative Agent, then:
(i) the sum payable shall be increased as
necessary so that, after making all required deductions and
withholdings (including deductions and withholdings
applicable to additional sums payable under this
Section 5.05), such Lender or Administrative Agent, as the
case may be, receives and retains an amount equal to the sum
it would have received and retained had no such deductions
or withholdings been made;
(ii) the Company shall make such deductions and
withholdings; and
(iii) the Company shall pay the full amount
deducted or withheld to the relevant taxing authority or other
authority in accordance with applicable law.
(c) The Company agrees to indemnify and hold harmless
each Lender and the Administrative Agent for the full amount of
Taxes or Other Taxes in the amount that such Lender or the
Administrative Agent specifies is necessary to preserve the after-tax
yield such Lender or the Administrative Agent would have received
if such Taxes or Other Taxes had not been imposed, and any liability
(including penalties, interest, additions to tax and expenses) arising
therefrom or with respect thereto, whether or not such Taxes or Other
Taxes were correctly or legally asserted. Payment under this
indemnification shall be made within 30 days after the date the
applicable Lender or the Administrative Agent makes written demand
therefor.
(d) Within 30 days after the date of any payment by the
Company of Taxes or Other Taxes, the Company shall furnish to the
applicable Lender and the Administrative Agent the original or a
certified copy of a receipt evidencing payment thereof, or other
evidence of payment satisfactory to such Lender or Administrative
Agent.
(e) Each Lender organized under the laws of a jurisdiction
outside the United States, on or prior to the date of its execution and
delivery of this Agreement in the case of each Lender listed on the
signature pages hereof and on or prior to the date on which it
becomes a Lender in the case of any other such Lender, and from time
to time thereafter if requested in writing by the Company (but only so
long as such Lender remains lawfully able to do so), shall provide the
Company and the Administrative Agent with (i) IRS Form 1001 or
4224, as appropriate, or any successor form prescribed by the IRS,
certifying that such Lender is entitled to benefits under an income tax
treaty to which the United States is a party which reduces the rate of
withholding tax on payments of interest or certifying that the income
receivable pursuant to this Agreement is effectively connected with
the conduct of a trade or business in the United States, (ii) IRS Form
W-8 or W-9, as appropriate, or any successor form prescribed by the
IRS, and (iii) any other form or certificate required by any taxing
authority (including any certificate required by Sections 871(h) and
881(c) of the Internal Revenue Code), certifying that such Lender is
entitled to an exemption from or a reduced rate of tax on payments
pursuant to this Agreement.
(f) If any Lender or the Administrative Agent determines
in its reasonable discretion that it has received a refund or credit of
Taxes or Other Taxes (or of any liability, including penalties, interest,
additions to tax and expenses, arising therefrom or with respect
thereto) paid by the Company or with respect to which the Company
has made any indemnity payment pursuant to this Section 5.05, or any
other tax benefit as a result of any payment by the Company pursuant
to this Section 5.05, then such Lender or the Administrative Agent
shall promptly repay the Company to the extent of such refund, credit
or benefit; provided that if, due to any adjustment of such Taxes or
Other Taxes (or of any liability, including penalties, interest,
additions to tax and expenses, arising therefrom or with respect
thereto), or of such other tax benefit, such Lender or the
Administrative Agent loses the benefit of all or any portion of such
refund, credit or benefit, the Company will indemnify and hold
harmless such Lender or the Administrative Agent in accordance with
this Section 5.05. Nothing in this subsection (f) shall require the
Administrative Agent or any Lender to utilize any such credits ahead
of other credits that may be available to the Administrative Agent or
such Lender from other sources. Moreover, nothing shall require the
Administrative Agent or any Lender to make its books and records
available for inspection by the Company.
(g) Without prejudice to the survival of any other
agreement of the Company hereunder, the agreements and obligations
of the Company contained in this Section 5.05 shall survive the
termination of the Commitments and the payment in full of all
obligations of the Company hereunder.
5.06 Right of Lenders to Fund through Other Offices. Each Lender
may, if it so elects, fulfill its commitment as to any Eurodollar Loan by
causing a foreign branch or affiliate of such Lender to make such Loan,
provided that in such event for the purposes of this Agreement such Loan
shall be deemed to have been made by such Lender and the obligation of the
Company to repay such Loan shall nevertheless be to such Lender and shall
be deemed held by it, to the extent of such Loan, for the account of such
branch or affiliate.
5.07 Discretion of Lenders as to Manner of Funding.
Notwithstanding any provision of this Agreement to the contrary, each
Lender shall be entitled to fund and maintain its funding of all or any part of
its Loans in any manner it sees fit, it being understood, however, that for the
purposes of this Agreement all determinations hereunder shall be made as if
such Lender had actually funded and maintained each Eurodollar Loan during
each Interest Period for such Loan through the purchase of deposits having
a maturity corresponding to such Interest Period and bearing an interest rate
equal to the Eurodollar Rate for such Interest Period.
5.08 Mitigation of Circumstances; Replacement of Affected
Lender.
(a) Each Lender shall promptly notify the Company and
the Administrative Agent of any event of which it has knowledge
which will result in, and will use reasonable commercial efforts
available to it (and not, in such Lender's good faith judgment,
otherwise disadvantageous to such Lender) to mitigate or avoid, (i)
any obligation of the Company to pay any amount pursuant to Section
5.01 or 5.05 or (ii) the occurrence of any circumstances of the nature
described in Section 5.02 or 5.03, and, if any Lender has given notice
of any such event described in clause (i) or (ii) above and thereafter
such event ceases to exist, such Lender shall promptly so notify the
Company and the Administrative Agent. Without limiting the
foregoing, each Lender will designate a different Applicable Lending
Office if such designation will avoid (or reduce the cost to the
Company of) any event described in clause (i) or (ii) of the preceding
sentence and such designation will not, in such Lender's sole
judgment, be otherwise disadvantageous to such Lender.
(b) At any time any Lender is an Affected Lender, the
Company may replace such Affected Lender as a party to this
Agreement with one or more other bank(s) or financial institution(s)
reasonably satisfactory to the Administrative Agent (and upon notice
from the Company such Affected Lender shall assign pursuant to an
Assignment Agreement, and without recourse or warranty, its
Commitment, its Loans and all of its other rights and obligations
hereunder to such replacement bank(s) or other financial institution(s)
for a purchase price equal to the sum of the principal amount of the
Loans so assigned, all accrued and unpaid interest thereon, its ratable
share of all accrued and unpaid facility fees, any amounts payable
under Section 5.04 as a result of such Lender receiving payment of
any Eurodollar Loan prior to the end of an Interest Period therefor and
all other obligations owed to such Affected Lender hereunder).
5.09 Conclusiveness of Statements; Survival of Provisions.
Determinations and statements of any Lender pursuant to Section 5.01, 5.02,
5.03, 5.04 or 5.05 shall be conclusive absent demonstrable error. Lenders
may use reasonable averaging and attribution methods in determining
compensation under Sections 5.01, 5.04 and 5.05, and the provisions of such
Sections shall survive repayment of the Loans and any termination of this
Agreement.
ARTICLE VI
Conditions To Loans
The obligation of each Lender to make any Loan is subject to the
satisfaction of the following conditions precedent:
6.01 Initial Loans. The obligation of the Lenders to make the initial
Loans is subject to the conditions precedent that the Administrative Agent
shall have received (a) all amounts which are then due and payable pursuant
to Section 4.06 and (to the extent billed) Section 11.03, (b) evidence,
reasonably satisfactory to the Administrative Agent that all obligations (other
than contingent indemnity obligations) of the Company, Pentair Canada Inc.
and EuroPentair GmbH under the Existing Agreement have been (or
concurrently will be) paid in full, and (c) all of the following, each duly
executed and dated the Closing Date (or such earlier date as shall be
satisfactory to the Administrative Agent), in form and substance satisfactory
to the Administrative Agent, and each (except for the Notes, of which only
the originals shall be signed) in sufficient number of signed counterparts to
provide one for each Lender:
(a) Notes. Any Notes.
(b) Resolutions. Certified copies of resolutions of the
Board of Directors (or other appropriate body) the Company
authorizing or ratifying the execution, delivery and performance by
the Company of this Agreement and each Note.
(c) Incumbency and Signature Certificates. A certificate
of the Secretary or an Assistant Secretary (or other appropriate
official) of the Company certifying the names of the officer or officers
of the Company authorized to sign this Agreement and each Note,
together with a sample of the true signature of each such officer.
(d) Opinions of Counsel. The opinions of (a) Xxxxx X.
Xxxxxxxxx, Senior Vice President and General Counsel of the
Company, and (b) Xxxxx, Xxxxx & Xxxxx, special Illinois counsel to
the Lead Arrangers.
(e) Closing Certificate. A certificate of the President, the
chief financial officer, the chief accounting officer or the vice
president-treasurer of the Company to the effect that, except as
disclosed in the Company's Form 10-Q filed on May 11, 1999, since
December 31, 1998 no material adverse change has occurred in the
business, assets, liabilities (actual or contingent), operations,
condition (financial or otherwise) or prospects of the Company and
its Subsidiaries (including, to the extent applicable, Essef Corporation
and DeVilbiss Air Power Company) taken as a whole.
(f) Other. Such other documents as the Administrative
Agent or any Lender may reasonably request.
The certificates and opinions referred to in subsections (c) and (d) above shall
be dated no more than ten Business Days before the date of the first
Borrowing.
6.02 All Loans. The obligation of the applicable Lender to make
any Loan (including the initial Loan) is subject to the conditions precedent
that:
(a) the Company shall have delivered timely notice of
such Loan in accordance with the terms hereof;
(b) no Event of Default or Unmatured Event of Default
shall have occurred and be continuing or would result from such
Loan;
(c) the representations and warranties of the Company
contained in this Agreement shall be true on and as of the date of such
Loan; and
(d) after giving effect to such Loan, the Total
Outstandings will not exceed the Total Commitment.
Each request for a Loan shall be deemed to be a representation and warranty
by the Company that the conditions precedent specified in clauses (b), (c) and
(d) above have been satisfied.
ARTICLE VII
Representations and Warranties
The Company represents and warrants that:
7.01 Corporate Existence and Power. The Company 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.
7.02 Corporate and Governmental Authorization; Contravention.
The execution, delivery and performance by the Company of this Agreement
and the Notes are within its 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 of the Company or of any
agreement, judgment, injunction, order, decree or other instrument binding
upon the Company or result in the creation or imposition of any Lien on any
asset of the Company or any of its Subsidiaries.
7.03 Binding Effect. This Agreement constitutes a valid and
binding agreement of the Company, and the Notes, when executed and
delivered in accordance with this Agreement, will constitute valid and
binding obligations of the Company.
7.04 Financial Information.
(a) The audited consolidated balance sheet of the
Company and its Consolidated Subsidiaries at December 31, 1998
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 the Company's annual report for the year ended December
31, 1998 as filed with the Securities and Exchange Commission on
Form 10-K, a copy of which has been delivered to each Lender, fairly
present, in conformity with GAAP, the consolidated financial
position of the Company 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 the
Company and its Consolidated Subsidiaries at June 26, 1999 and the
related unaudited consolidated statements of income and cash flows
for the six months then ended, set forth in the Company's quarterly
report for the fiscal quarter ended June 26, 1999 as filed with the
Securities and Exchange Commission on Form 10-Q, a copy of which
has been delivered to each Lender, fairly present, in conformity with
GAAP applied on a basis consistent with the financial statements
referred to in paragraph (a) of this Section, the consolidated financial
position of the Company and its Consolidated Subsidiaries at such
date and their consolidated results of operations and cash flows for
such six-month period (subject to normal year-end adjustments and
the absence of footnotes).
(c) Except as disclosed in the Company's Form 10-Q filed
on May 11, 1999, since December 31, 1998 there has been no
material adverse change in the business, financial position, results of
operations or prospects of the Company and its Consolidated
Subsidiaries, considered as a whole.
7.05 Litigation. Except as disclosed on Schedule 7.05, there is no
action, suit or proceeding pending, or to the knowledge of any of the
Company threatened, against or affecting the Company or any of its
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 the Company and its
Consolidated Subsidiaries, taken as a whole, or which in any manner
questions the validity of this Agreement or the Notes.
7.06 Compliance with ERISA. Each of the Company and each
ERISA Affiliate has fulfilled its obligations under the minimum funding
standards of ERISA and the Code with respect to each applicable Plan and
is in compliance in all material respects with the presently applicable
provisions of ERISA and the Code, and has not incurred any liability to the
PBGC or a Plan under Title IV of ERISA (other than premiums which have
been timely paid or for which an extension of the time for payment has been
granted).
7.07 Taxes. The Company and its 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 the
Company 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 Company and its Subsidiaries
has been determined by the IRS and paid for all years prior to and including
the fiscal year ended December 31, 1996.
7.08 Subsidiaries. Each of the Company's 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.
7.09 Not an Investment Company. The Company is not an
"investment company" within the meaning of the Investment Company Act
of 1940, as amended.
7.10 Environmental Matters. The Company 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 the Company and its Subsidiaries, and as a result thereof the
Company 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 the Company and
its Subsidiaries taken as a whole.
7.11 Year 2000. The Company and its Subsidiaries have reviewed
the areas within their business and operations which could be adversely
affected by, and have developed a program to address on a timely basis, the
"Year 2000 Problem" (that is the risk that computer applications used by the
Company and its Subsidiaries may be unable to recognize and perform
properly date-sensitive functions involving certain dates prior to and any date
after December 31, 1999). Based on such review and program, the Company
reasonably believes that the "Year 2000 Problem" could not reasonably be
expected to have a Material Adverse Effect.
7.12 Insurance. The properties of the Company and its Subsidiaries
are insured with financially sound and reputable insurance companies (and/or
pursuant to a self-insurance program) in such amounts, with such deductibles
and covering such risks as are customarily carried by companies engaged in
similar businesses and owning similar properties in localities where the
Company or the applicable Subsidiary operates.
7.13 Default. No Event of Default or Unmatured Event of Default
has occurred and is continuing.
7.14 Use of Proceeds. The Company will use the proceeds of the
Loans solely for the purposes described in Section 8.07.
ARTICLE VIII
Covenants
The Company agrees that so long as any Lender has any Commitment
hereunder or any amount payable by the Company hereunder remains unpaid:
8.01 Information. The Company will deliver to the Administrative
Agent and each of the Lenders:
(a) as soon as available and in any event within 90 days
after the end of each fiscal year of the Company, a consolidated
balance sheet of the Company 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
the Company, a consolidated balance sheet of the Company 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 the Company'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 the Company's previous fiscal year, all certified (subject to normal
year-end adjustments and the absence of footnotes) as to fairness of
presentation, GAAP and consistency by the chief financial officer, the
chief accounting officer or the vice president - treasurer of the
Company;
(c) simultaneously with the delivery of each set of
financial statements referred to in subsections (a) and (b) above, a
certificate of the chief financial officer, the chief accounting officer
or the vice president-treasurer of the Company (i) setting forth in
reasonable detail the calculations required to establish whether the
Company was in compliance with the requirements of Sections 8.02
and 8.03 on the date of such financial statements and (ii) stating
whether there exists on the date of such certificate any Event of
Default or Unmatured Event of Default and, if any such event then
exists, setting forth the details thereof and the action which the
Company is taking or proposes to take with respect thereto;
(d) forthwith upon the occurrence of any Event of Default
or Unmatured Event of Default, a certificate of the chief financial
officer, the chief accounting officer or the vice president-treasurer of
the Company setting forth the details thereof and the action which the
Company is taking or proposes to take with respect thereto;
(e) promptly upon the mailing thereof to the shareholders
of the Company generally, copies of all financial statements, reports
and proxy statements so mailed;
(f) 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 the Company shall have filed with
the Securities and Exchange Commission;
(g) if and when the Company or ERISA Affiliate 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;
(h) promptly upon obtaining knowledge thereof, the
commencement of, or any material development in, any material
litigation or governmental proceeding affecting the Company or any
Subsidiary, including pursuant to any applicable Environmental Law;
(i) promptly upon the occurrence thereof, notice of any
change in the Company's credit rating by Xxxxx'x or S&P; and
(j) from time to time such additional information
regarding the financial position or business of the Company as the
Administrative Agent, at the request of any Lender, may reasonably
request.
8.02 Maximum Leverage Ratio. The Company shall not at any
time permit the Leverage Ratio to exceed the applicable ratio set forth below
during any period set forth below:
Fiscal Quarter Ending:
Leverage Ratio
Prior to 7/1/00
3.90 to 1.0
7/1/00 through 12/30/00
3.25 to 1.0
12/31/00 and thereafter
3.00 to 1.0.
8.03 Minimum Interest Coverage Ratio. The Company shall not
permit the Interest Coverage Ratio (i) for any Computation Period ending
prior to April 1, 2000 to be less than 2.5 to 1 and (ii) for any Computation
Period ending on or after April 1, 2000 to be less than 3.00 to 1. For
purposes of the foregoing, a "Computation Period" is any period of four
consecutive fiscal quarters of the Company ending on the last day of a fiscal
quarter.
8.04 Negative Pledge. Neither the Company nor any Subsidiary
will create, assume or suffer to exist any Lien on any asset now owned or
hereafter acquired by any of them, except:
(a) any Lien existing on the date of this Agreement and
disclosed in the financial statements referred to in Section 7.04 or set
forth in Schedule 8.04, and any extension, renewal or replacement of
any such Lien so long as the principal amount secured thereby is not
increased and the scope of the property subject to such Lien is not
extended;
(b) Liens imposed by law for taxes, assessments or
charges of any Governmental Authority for claims not yet due, or to
the extent that such Lien is being contested in good faith by
appropriate proceedings and adequate reserves in accordance with
GAAP are being maintained therefor, provided that no notice of Lien
has been filed or recorded under the Code;
(c) statutory Liens of landlords and Liens of carriers,
warehousemen, mechanics, materialmen and other Liens imposed by
law or created in the ordinary course of business which are not
delinquent or remain payable without penalty or which are being
contested in good faith by appropriate proceedings, which
proceedings have the effect of preventing the forfeiture or sale of the
property subject thereto;
(d) Liens (other than any Lien imposed by ERISA)
consisting of pledges or deposits required in the ordinary course of
business in connection with workers' compensation, unemployment
insurance and other social security legislation;
(e) Liens on property of the Company or any Subsidiary
securing (i) the non-delinquent performance of bids, trade contracts
(other than for borrowed money), leases or statutory obligations, (ii)
surety bonds (excluding appeal bonds and other bonds posted in
connection with court proceedings or judgments) and (iii) other non-
delinquent obligations of a like nature in each case incurred in the
ordinary course of business;
(f) Liens consisting of judgment or judicial attachment
liens and Liens securing contingent obligations on appeal bonds and
other bonds posted in connection with court proceedings or
judgments, provided that (i) in the case of judgment and judicial
attachment liens, the enforcement of such Liens is effectively stayed,
and (ii) all such Liens in the aggregate at any time outstanding for the
Company and its Subsidiaries do not exceed US$10,000,000;
(g) easements, rights-of-way, restrictions and other similar
encumbrances incurred in the ordinary course of business which,
individually or in the aggregate, do not materially detract from the
value of the property subject thereto or materially interfere with the
ordinary conduct of the businesses of the Company and its
Subsidiaries;
(h) Liens securing obligations in respect of capital leases
on assets subject to such leases, provided that such capital leases are
otherwise permitted hereunder;
(i) Liens arising solely by virtue of any statutory or
common law provision relating to banker's liens, rights of set-off or
similar rights and remedies as to deposit accounts or other funds
maintained with a creditor depository institution; provided that (i)
such deposit account is not a dedicated cash collateral account and is
not subject to restrictions against access by the Company or the
applicable Subsidiary in excess of those set forth by regulations
promulgated by the FRB and (ii) such deposit account is not intended
by the Company or any Subsidiary to provide collateral to the
depository institution;
(j) Liens arising in connection with Securitization
Transactions; provided that the aggregate investment or claim held at
any time by all purchasers, assignees or other transferees of (or of
interests in) receivables and other rights to payment in all
Securitization Transactions shall not at any time exceed in the
aggregate US$150,000,000; and
(k) in addition to Liens permitted by subsections (a)
through (j) above, other Liens securing Debt in a Dollar Equivalent
amount not exceeding 12.5% of Consolidated Shareholders' Equity.
8.05 Consolidations, Mergers and Sales of Assets; Acquisitions.
(a) The Company will not 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:
(i) the Person surviving the merger or
consolidation is the Company; and
(ii) immediately after giving effect to any such
action, no Event of Default or Unmatured Event of Default
shall have occurred and be continuing.
(b) The Company will not, and will not permit any
Subsidiary to, make any Acquisition other than (i) the acquisition of
DeVilbiss Air Power Company; and (ii) Permitted Acquisitions.
8.06 Subsidiary Debt. The Company will not at any time permit
the aggregate amount of all outstanding Debt of its Subsidiaries, excluding:
(a) Debt arising under Securitization Transactions in an
aggregate amount not exceeding US$150,000,000;
(b) Debt under this Agreement; and
(c) Debt of Pentair Nova Scotia Co. under the existing
6.68% Senior Notes due October 1, 2003 issued pursuant to a Note
Purchase Agreement dated as of October 1, 1997;
to exceed fifteen percent (15%) of Consolidated Shareholders' Equity.
8.07 Use of Proceeds. The proceeds of the Loans will be used by
the Company to refinance indebtedness, for commercial paper back-up, for
working capital and for other general corporate purposes (including
Acquisitions permitted hereunder). 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" in violation of
Regulation U of the FRB.
8.08 Compliance with Law. The Company shall, and shall cause
each Subsidiary to, comply with all Requirements of Law of any
Governmental Authority having jurisdiction over it or its business the non-
compliance with which might have a Material Adverse Effect. Without
limiting the foregoing, the Company 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 the
Company and its Subsidiaries taken as a whole.
8.09 Securitization Transactions. The Company shall not, and shall
not permit any Subsidiary to, permit the aggregate outstanding investment or
claim held by purchasers, assignees or transferees of (or of interests in)
receivables of the Company and its Subsidiaries in connection with
Securitization Transactions to exceed a Dollar Equivalent amount of
US$150,000,000.
8.10 Insurance. The Company shall, and shall cause each
Subsidiary to, maintain, with financially sound and reputable insurers (and/or
pursuant to a self-insurance program), insurance with respect to its properties
and business against loss or damage of the kinds customarily insured against
by Persons engaged in the same or similar businesses, of such types and in
such amounts as are customarily carried under similar circumstances by such
other Persons.
ARTICLE IX
Event of Default
9.01 Events of Default. If one or more of the following events shall
have occurred and be continuing:
(a) the Company shall fail to pay within two Business
Days of the date due any principal of any Loan; or the Company shall
fail to pay within five days of the date due any interest on any Loan,
any fee or any other amount payable hereunder;
(b) the Company shall fail to observe or perform any
covenant contained in Sections 8.02 to 8.07, inclusive, or Section
8.09;
(c) the Company shall fail to observe or perform any other
covenant or agreement contained in this Agreement for 30 days after
the earlier of (i) the date on which written notice thereof has been
given to the Company by the Administrative Agent at the request of
any Lender or (ii) if the Company fails to promptly notify the
Administrative Agent and the Lenders of such failure as required by
Section 8.01(d), the date on which the chief executive officer, the
chief financial officer, the chief accounting officer or the vice
president-treasurer of the Company had actual knowledge of such
failure;
(d) any representation, warranty, certification or statement
made by the Company 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) the Company or any Subsidiary (i) fails to make any
payment of Material Financial Obligations when due (whether by
scheduled maturity, required prepayment, acceleration, demand or
otherwise, but after giving effect to any applicable grace or cure
period); or (ii) fails to perform or observe any other condition or
covenant, or any other event shall occur or condition exist, under one
or more agreements or instruments relating to Material Financial
Obligations, if the effect of such failure, event or condition is to cause
(or require), or to permit the holder or holders of such Material
Financial Obligations (or the beneficiary or beneficiaries of such
Material Financial Obligations (or a trustee or agent on behalf of such
holder or holders or beneficiary or beneficiaries)) to cause (or
require), such Material Financial Obligations to become due and
payable (or to be purchased, repurchased, defeased or cash
collateralized) prior to the stated maturity thereof;
(f) the Company or any Material Subsidiary 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 the Company or any Material Subsidiary 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 the Company or any Material
Subsidiary under the federal bankruptcy laws or similar bankruptcy
or insolvency laws of any other applicable jurisdiction as now or
hereafter in effect;
(h) the Company or any ERISA Affiliate shall fail to pay
when due an amount or amounts aggregating in excess of
US$10,000,000 which it shall have become liable to pay to the PBGC
or to a Plan under Title IV of ERISA; or the Company or ERISA
Affiliate shall file a distress termination notice with the PBGC and
the amount of the Unfunded Vested Liabilities under that filing
exceeds US$5,000,000; or the PBGC shall institute judicial
proceedings under Title IV of ERISA to terminate or to cause a
trustee to be appointed to administer any such Plan or Plans which
have Unfunded Vested Liabilities in an aggregate amount exceeding
US$5,000,000; or a judicial proceeding shall be instituted by a
fiduciary of any such Plan or Plans to enforce Section 515 of ERISA,
the aggregate amount of delinquent contributions claimed to be owed
pursuant to such Section 515 in such proceeding shall exceed
US$5,000,000, and such proceeding shall not have been dismissed
within 30 days;
(i) a judgment or order for the payment of money in
excess of a Dollar Equivalent amount of US $25,000,000 shall be
rendered against the Company or any of its 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 30% or more of the outstanding
shares of voting stock of the Company; or
(k) within a period of twelve consecutive months,
three-fourths of the directors of the board of directors of the Company
shall have changed;
then, and in any such event,
(1) in the case of any Event of Default specified in
subsection (f) or (g) above, without any notice to the Company or
any other act by the Administrative Agent or any Lender, the
Commitments shall immediately terminate and the Loans and all
other obligations of the Company hereunder shall become
immediately due and payable without presentment, demand, protest
or other notice of any kind, all of which are hereby waived by the
Company; and
(2) in the case of any other Event of Default, the
Administrative Agent shall (i) if requested by the Required Lenders,
by notice to the Company (with a copy to all Lenders), terminate the
Commitments, which shall thereupon immediately terminate, and/or
(ii) if requested by the Required Lenders, by notice to the Company
(with a copy to all Lenders), declare the Loans and all other
obligations of the Company hereunder to be, and the Loans and such
obligations shall thereupon become, immediately due and payable, in
each case without presentment, demand, protest or other notice of any
kind, all of which are hereby waived by the Company.
9.02 Notice of Default. The Administrative Agent shall give
notice to the Company under subsection 9.01(c) promptly upon being
requested to do so by any Lender and shall thereupon notify all the Lenders
thereof.
ARTICLE X
The Administrative Agent
10.01 Appointment and Authorization. Each Lender hereby
irrevocably (subject to Section 10.09) appoints, designates and authorizes the
Administrative Agent to take such action on its behalf under the provisions
of this Agreement and to exercise such powers and perform such duties as are
expressly delegated to it by the terms of this Agreement, together with such
powers as are reasonably incidental thereto. Notwithstanding any provision
to the contrary contained elsewhere in this Agreement, the Administrative
Agent shall not have any duties or responsibilities, except those expressly set
forth herein, nor shall the Administrative Agent have or be deemed to have
any fiduciary relationship with any Lender, and no implied covenants,
functions, responsibilities, duties, obligations or liabilities shall be read
into this Agreement or otherwise exist against the Administrative Agent. With-
out limiting the generality of the foregoing sentence, the use of the term
"agent" in this Agreement with reference to the Administrative Agent is not in-
tended to connote any fiduciary or other implied (or express) obligations
arising under agency doctrine of any applicable law. Instead, such term is used
merely as a matter of market custom, and is intended to create or reflect only
an administrative relationship between independent contracting parties.
10.02 Delegation of Duties. The Administrative Agent may execute
any of its duties under this Agreement by or through agents, employees or
attorneys-in-fact and shall be entitled to advice of counsel concerning all
matters pertaining to such duties. The Administrative Agent shall not be
responsible for the negligence or misconduct of any agent or attorney-in-fact
that it selects with reasonable care.
10.03 Liability of Administrative Agent. 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 the transactions
contemplated hereby (except for its own gross negligence or willful
misconduct) or (ii) be responsible in any manner to any of the Lenders for any
recital, statement, representation or warranty made by the Company or any
Subsidiary or Affiliate of the Company, 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 the Administrative Agent under
or in connection with, this Agreement, or the validity, effectiveness,
genuineness, enforceability or sufficiency of this Agreement or any Note, or
for any failure of the Company or any other Person to perform its obligations
hereunder. No Agent-Related Person shall be under any obligation to any
Lender to ascertain or to inquire as to the observance or performance of any
of the agreements contained in, or conditions of, this Agreement or to inspect
the properties, books or records of the Company or any of its Subsidiaries or
Affiliates.
10.04 Reliance by Administrative Agent.
(i) The Administrative 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 the Company),
independent accountants and other experts selected by the
Administrative Agent. The Administrative Agent shall be
fully justified in failing or refusing to take any action under
this Agreement unless it shall first receive such advice or
concurrence of the Required Lenders as it deems appropriate
and, if it so requests, it shall first be indemnified to its
satisfaction by the Lenders against any and all liability and
expense which may be incurred by it by reason of taking or
continuing to take any such action. The Administrative Agent
shall in all cases be fully protected in acting, or in refraining
from acting, under this Agreement in accordance with a
request or consent of the Required Lenders, and such request
and any action taken or failure to act pursuant thereto shall be
binding upon all of the Lenders.
(ii) For purposes of determining compliance with
the conditions specified in Article VI, each Lender that has
executed this Agreement and funded its initial Loans on the
Closing Date shall be deemed to have consented to, approved
or accepted, or to be satisfied with, each document or other
matter either sent by the Administrative Agent to such Lender
for consent, approval, acceptance or satisfaction, or required
hereunder to be consented to or approved by or acceptable or
satisfactory to such Lender.
10.05 Notice of Default. The Administrative Agent shall not be
deemed to have knowledge or notice of the occurrence of any Event of
Default or Unmatured Event of Default, except with respect to defaults in the
payment of principal, interest and fees required to be paid to the
Administrative Agent for the account of the Lenders, unless the
Administrative Agent shall have received written notice from a Lender or the
Company referring to this Agreement, describing such Event of Default or
Unmatured Event of Default and stating that such notice is a "notice of
default". If the Administrative Agent receives such a notice, the
Administrative Agent will promptly notify the Lenders of its receipt thereof.
The Administrative Agent shall take such action with respect to such Event
of Default or Unmatured Event of Default as may be requested by the
Required Lenders in accordance with Article IX; provided that unless and
until the Administrative Agent has received any such request, the
Administrative Agent may (but shall not be obligated to) take such action, or
refrain from taking such action, with respect to such Event of Default or
Unmatured Event of Default as it shall deem advisable or in the best interest
of the Lenders.
10.06 Credit Decision. Each Lender acknowledges that none of the
Agent-Related Persons has made any representation or warranty to it, and that
no act by the Administrative Agent hereafter taken, including any review of
the affairs of Company and its Subsidiaries, shall be deemed to constitute any
representation or warranty by any Agent-Related Person to any Lender. Each
Lender represents to the Administrative 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 Company 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 Company hereunder. Each Lender
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 Company. Except for notices, reports and other
documents expressly herein required to be furnished to the Lenders by the
Administrative Agent, the Administrative Agent shall have no duty or
responsibility to provide any Lender with any credit or other information
concerning the business, prospects, operations, property, financial and other
condition or creditworthiness of the Company which may come into the
possession of any of the Agent-Related Persons.
10.07 Indemnification of Administrative Agent. Whether or not the
transactions contemplated hereby are consummated, the Lenders shall
indemnify upon demand the Agent-Related Persons (to the extent not
reimbursed by or on behalf of the Company and without limiting the
obligation of the Company to do so), in accordance with their Pro Rata
Shares, from and against any and all Indemnified Liabilities; provided that no
Lender shall be liable for the payment to any Agent-Related Person of any
portion of the Indemnified Liabilities to the extent resulting from such
Person's gross negligence or willful misconduct. Without limitation of the
foregoing, each Lender shall reimburse the Administrative Agent upon
demand for its Pro Rata Share of any costs or out-of-pocket expenses
(including the reasonable fees and changes of counsel for the Administrative
Agent) incurred by the Administrative Agent in connection with the
preparation, execution, delivery, administration, modification, amendment or
enforcement (whether through negotiations, legal proceedings or otherwise)
of, or legal advice in respect of rights or responsibilities under, this
Agreement or any document contemplated by or referred to herein, to the
extent that the Administrative Agent is not reimbursed for such expenses by
or on behalf of the Company. The undertakings in this Section shall survive
the termination hereof and the resignation or replacement of the
Administrative Agent.
10.08 Administrative Agent in Individual Capacity. Bank of
America 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 the Company and its Subsidiaries and Affiliates as though
Bank of America were not the Administrative Agent, in each case without
notice to or consent of the Lenders. The Lenders acknowledge that, pursuant
to such activities, Bank of America or its Affiliates may receive information
regarding the Company or its Affiliates (including information that may be
subject to confidentiality obligations in favor of the Company or an Affiliate)
and acknowledge that Bank of America and its Affiliates shall be under no
obligation to provide such information to them. With respect to its Loans,
Bank of America (and any of its Affiliates which is or may become a Lender)
shall have the same rights and powers under this Agreement as any other
Lender and may exercise the same as though it were not the Administrative
Agent.
10.09 Successor Administrative Agent. The Administrative Agent
may, and at the request of the Required Lenders shall, resign as the
Administrative Agent upon 30 days' notice to the Lenders. If the
Administrative Agent resigns under this Agreement, the Required Lenders
shall appoint from among the Lenders a successor Administrative Agent,
which successor agent shall, so long as no Event of Default exists, be subject
to the approval of the Company (which approval shall not be unreasonably
withheld or delayed). If no successor agent is appointed prior to the effective
date of the resignation of the Administrative Agent, the Administrative Agent
may appoint, after consulting with the Lenders and the Company, a successor
Administrative Agent from among the Lenders and the Company. Upon the
acceptance of its appointment as successor agent hereunder, such successor
agent shall succeed to all the rights, powers and duties of the applicable
retiring Administrative Agent and the term "Administrative Agent" shall
mean such successor agent and the retiring Agent's appointment, powers and
duties as Administrative Agent shall be terminated. After any retiring
Administrative Agent's resignation hereunder as Administrative Agent, the
provisions of this Article X and Section 11.03 shall inure to its benefit as to
any actions taken or omitted to be taken by it while it was the Administrative
Agent under this Agreement. If no successor agent has accepted appointment
as the Administrative Agent by the date which is 30 days following a retiring
Administrative Agent's notice of resignation, such retiring Administrative
Agent's resignation shall nevertheless thereupon become effective and the
Lenders shall perform all of the duties of the Administrative Agent hereunder
until such time, if any, as the Required Lenders appoint a successor agent as
provided for above.
10.10 Withholding Tax.
(a) If any Lender claims exemption from, or reduction of,
withholding tax under a United States tax treaty by providing IRS Form 1001
(or any applicable successor form) to the Administrative Agent and such
Lender sells, assigns, grants a participation in or otherwise transfers all or
part of the obligations of the Company to such Lender, such Lender agrees
to notify the Administrative Agent of the percentage amount in which it is no
longer the beneficial owner of the obligations of the Company to such
Lender. To the extent of such percentage amount, the Administrative Agent
will treat such Lender's IRS Form 1001 (or such successor form) as no longer
valid, and such Lender agrees to undertake sole responsibility for complying
with the withholding tax requirements imposed by Sections 1441 and 1442
of the Code.
(b) If any Lender claiming exemption from United States
withholding tax by filing IRS Form 4224 (or any applicable successor form)
with the Administrative Agent sells, assigns, grants a participation in or
otherwise transfers all or part of the obligations of the Company to such
Lender, such Lender agrees to undertake sole responsibility for complying
with the withholding tax requirements imposed by Sections 1441 and 1442
of the Code.
(c) If any Lender is entitled to a reduction in the applicable
withholding tax, the Administrative Agent may withhold from any interest
payment to such Lender an amount equivalent to the applicable withholding
tax after taking into account such reduction. If any forms or other
documentation required by subsection 5.05(e) are not delivered to the
Administrative Agent by any Lender, then the Administrative Agent may
withhold from any interest payment to such Lender an amount equivalent to
the applicable withholding tax.
10.11 Funding Reliance. (a) Unless the Administrative Agent
receives notice from a Lender by noon, Chicago time, on the day of a
proposed Committed Borrowing that such Lender will not make available to
the Administrative Agent an amount equal to its Pro Rata Share of such
Committed Borrowing, the Administrative Agent may assume that such
Lender has made such amount available to the Administrative Agent and, in
reliance upon such assumption, make a corresponding amount available to
the Company. If and to the extent such Lender has not made such amount
available to the Administrative Agent, such Lender and the Company jointly
and severally agree to repay such amount to the Administrative Agent
forthwith on demand, together with interest thereon at the interest rate
applicable to Loans included in such Committed Borrowing or, in the case of
any Lender which repays such amount within three Business Days, the
Federal Funds Rate (together with such other compensatory amounts as may
be required to be paid by such Lender to the Administrative Agent pursuant
to the Rules for Interbank Compensation of the Council on International
Banking or the Clearinghouse Compensation Committee, as applicable, as in
effect from time to time). Nothing set forth in this clause (a) shall relieve
any Lender of any obligation it may have to make any Loan hereunder.
(b) Unless the Administrative Agent receives notice from the
Company prior to the due date for any payment hereunder that the Company
does not intend to make such payment, the Administrative Agent may assume
that the Company has made such payment and, in reliance upon such
assumption, make available to each Lender its share of such payment. If and
to the extent that the Company has not made any such payment to the
Administrative Agent, each Lender which received a share of such payment
shall repay such share (or the relevant portion thereof) to the Administrative
Agent forthwith on demand, together with interest thereon at the Federal
Funds Rate. Nothing set forth in this clause (b) shall relieve the Company of
any obligation it may have to make any payment hereunder.
10.12 Other Agents. No Person identified herein as a
"Co-Documentation Agent" or a "Syndication Agent" shall have any right, power,
obligation, liability, responsibility or duty under this Agreement other than
those applicable to all Persons as such. Without limiting the foregoing, no
Person so identified as a "Co-Documentation Agent" or a "Syndication
Agent" shall have or be deemed to have any fiduciary relationship with any
Person. Each Person acknowledges that it has not relied, and will not rely,
on any Person so identified in deciding to enter into this Agreement or in
taking or not taking action hereunder.
ARTICLE XI
Miscellaneous
11.01 Notices. All notices, requests and other communications to
any party hereunder shall be in writing (including facsimile transmission 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
Schedule 11.01 or such other address or facsimile number as such party may
hereafter specify for the purpose by notice to (i) in the case of the Company,
the Administrative Agent and the Lenders, and (ii) in the case of any Lender,
the Administrative Agent and (iii) in the case of the Administrative Agent,
the other parties hereto. 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, four Business Days 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 Administrative
Agent shall not be effective until received. Any agreement of the
Administrative Agent and the Lenders herein to receive certain notices by
telephone or facsimile is solely for the convenience and at the request of the
Company. The Administrative Agent and the Lenders shall be entitled to rely
on the authority of any Person purporting to be a Person authorized by the
Company to give such notice, and the Administrative Agent and the Lenders
shall not have any liability to the Company or any other Person on account
of any action taken or not taken by the Administrative Agent or any Lender
in reliance upon such telephonic or facsimile notice. The obligation of the
Company to repay the Loans shall not be affected in any way or to any extent
by any failure by the Administrative Agent or any Lender to receive written
confirmation of any telephonic or facsimile notice or the receipt by the
Administrative Agent or any Lender of a confirmation which is at variance
with the terms understood by the Administrative Agent or such Lender to be
contained in any telephonic or facsimile notice.
11.02 No Waiver. No failure or delay by the Administrative Agent
or any Lender 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.
11.03 Expenses; Documentary Taxes; Indemnification. (a) The
Company shall pay upon demand (i) all reasonable expenses of the
Administrative Agent and the Lead Arrangers, including the reasonable fees
and charges of a single joint counsel for the Administrative Agent and the
Lead Arrangers, in connection with the preparation, execution and delivery
of this Agreement, any waiver or consent hereunder or any amendment hereof
and any Event of Default or Unmatured Event of Default hereunder and (ii)
if an Event of Default occurs, all reasonable out-of-pocket expenses incurred
by the Administrative Agent and each Lender, including fees and
disbursements of counsel for the Administrative Agent and each Lender (who
may be employees of the Administrative Agent or such Lender), in
connection with such Event of Default or Unmatured Event of Default and
collection and other enforcement proceedings resulting therefrom. The
Company shall indemnify each Lender 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 any
Note.
(b) Whether or not the transactions contemplated hereby are
consummated, the Company agrees to indemnify and hold the Agent-Related
Persons and each Lender and their respective officers, directors, employees,
counsel, agents and attorneys-in-fact (each an "Indemnified Person")
harmless from and against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, charges, expenses and
disbursements (including reasonable attorney's fees and charges) of any kind
or nature whatsoever which may at any time (including at any time following
repayment of the Loans and the resignation or replacement of the
Administrative Agent or the replacement of any Lender) arise out of or result
from an action, suit, proceeding (including any insolvency or appellate
proceeding) or claim asserted against any such Indemnified Person directly
relating to this Agreement or any document contemplated by or referred to
herein, the transactions contemplated hereby or the use of the proceeds of any
Loan, whether or not any Indemnified Person is a party thereto (all the
foregoing, collectively, the "Indemnified Liabilities"); provided that the
Company shall not be liable to any Indemnified Person for any portion of
such Indemnified Liabilities resulting from such Indemnified Person's gross
negligence or willful misconduct. In the event this indemnity is
unenforceable as a matter of law as to a particular matter or consequence
referred to herein, it shall be enforceable to the full extent permitted by law.
The agreements in this Section shall survive termination of this Agreement
and payment of all other obligations of the Company hereunder.
11.04 Amendments and Waivers. Any provision of this Agreement
or any Note may be amended, modified or waived if, but only if, such
amendment, modification or waiver is in writing and is signed by the
Company and the Required Lenders and acknowledged by the Administrative
Agent; provided that no such amendment, modification or waiver shall,
unless signed by all Lenders and delivered to the Administrative Agent:
(a) increase the Commitment of any Lender or subject any
Lender to any additional obligations;
(b) reduce the principal of or rate of interest on any Loan
or any fee hereunder;
(c) postpone the date fixed for any payment of principal
of or interest on any Loan or any fee hereunder;
(d) change the definition of "Required Lenders" or the
percentage of the Commitments or of the aggregate unpaid principal
amount of the Loans which shall be required for the Lenders or any
of them to take any action under this Agreement; or
(e) amend this Section 11.04;
and provided, further, that no provision hereof affecting the rights or
obligations of the Administrative Agent, in its capacity as such, may be
amended, modified or waived without the written consent of the
Administrative Agent.
11.05 Collateral. Each of the Lenders represents that it in good faith
is not relying upon any "margin stock" (as defined in Regulation U of the
FRB) as collateral in the extension or maintenance of the credit provided for
in this Agreement.
11.06 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 Company may not assign or
otherwise transfer any of its rights under this Agreement.
(b) Any Lender may, with the written consent of the
Company and the Administrative Agent, which consents shall not be
unreasonably withheld or delayed (and provided that (i) no written
consent of the Company shall be required if an Event of Default then
exists and (ii) no such written consents shall be required in
connection with any assignment and delegation by a Lender to a bank
or other financial institution that is an Affiliate of such Lender or to
another Lender (so long as such assignment will not result in any
increased costs to the Company)), at any time assign and delegate to
one or more banks or other financial institutions (each an "Assignee")
all or any ratable part of all of the Committed Loans, its Commitment
and the other rights and obligations of such Lender hereunder;
provided, however, that (i) if the Long Term Credit Agreement is in
effect, any Lender shall concurrently assign to the same Assignee a
proportionate share of its rights and obligations under the Long Term
Credit Agreement; (ii) except in the case of an assignment by a
Lender of all of its Committed Loans, its Commitment and the other
rights and obligations of such Lender hereunder and (if applicable)
under the Long Term Credit Agreement, the sum of the amount of the
Commitment so assigned and the amount (if any) of the
"Commitment" of such Lender under and as defined in the Long
Term Credit Agreement concurrently assigned to the same Assignee
shall not be less than US$5,000,000 (or such lesser amount as may be
agreed to by the Company and the Administrative Agent in their sole
discretion in the case of an assignment to an Affiliate of such
Lender); and (iii) the other parties hereto may continue to deal solely
and directly with such Lender 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 the Assignee, shall have been given to the Company
and the Administrative Agent by such Lender and the Assignee;
(y) such Lender and its Assignee shall have delivered to the Company
and the Administrative Agent an Assignment and Acceptance
together with any Note subject to such assignment and (z) the
assignor Lender or Assignee shall have paid to the Administrative
Agent a processing fee in the amount of US$3,500 (which fee shall
cover both the assignment hereunder and any concurrent assignment
under the Long Term Credit Agreement).
(c) From and after the date that the Administrative Agent
notifies the assignor Lender that it has received (and, to the extent
required, provided its consent and received the consent of the
Company with respect to) an executed Assignment and Acceptance
and payment of the above-referenced processing fee, (i) the Assignee
thereunder 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 pursuant to such Assignment and Acceptance,
shall have the rights and obligations of a Lender hereunder and (ii)
the assignor Lender shall, to the extent that rights and obligations
hereunder have been assigned by it pursuant to such Assignment and
Acceptance, relinquish its rights and be released from its obligations
under this Agreement.
(d) Within five Business Days after the Administrative
Agent notifies the Company that it has received (and to the extent
required, provided its consent and any other consents with respect to)
an executed Assignment and Acceptance and payment of the above-referenced
processing fee, the Company shall, if requested by the
Assignee and/or the assignor Lender, as applicable, execute and
deliver to the Administrative Agent a new Note evidencing such
Assignee's assigned Loans and, if the assignor Lender has retained a
portion of its Loans and its Commitment, a replacement Note
evidencing the Loans retained by the assignor Lender (such Note to
be in exchange for, but not in payment of, the Note held by such
assignor Lender). The Company designates the Administrative Agent
as its agent for maintaining a book entry record of ownership
identifying the Lenders, their respective addresses and the amount of
the respective Loans and Notes which they own. The foregoing
provisions are intended to comply with the registration requirements
in Treasury Regulation Section 5f.103-1 so that the Loans and Notes
are considered to be in "registered form" pursuant to such regulation.
The entries in such book entry record shall be conclusive and binding,
absent manifest error, regarding ownership of the Loans and Notes.
(e) Any Lender may at any time sell to one or more
commercial banks or other Persons not Affiliates of the Company (a
"Participant") participating interests in any Loan, the Commitment of
such Lender and the other interests of such Lender (the "originating
Lender") hereunder; provided, however, that (i) the originating
Lender's obligations under this Agreement shall remain unchanged,
(ii) the originating Lender shall remain solely responsible for the
performance of such obligations, (iii) the Administrative Agent and
the other parties hereto shall continue to deal solely and directly with
the originating Lender in connection with the originating Lender's
rights and obligations under this Agreement, and (iv) no Lender 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, except to the extent such amendment,
consent or waiver would require unanimous consent of the Lenders.
In the case of any such participation, the Participant shall be entitled
to the benefit of Article V, as though it were also a Lender hereunder
(provided that the Company shall not be obligated to pay any amount
under Article V to any Participant which is greater than the Company
would have been required to pay to the originating Lender 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 Lender under this Agreement.
Each Lender that sells a participation will maintain a book entry
record of ownership identifying each of its Participants and the
amount of the participation owned by each such Participant. Such
book entry record of ownership shall be maintained by the Lender as
agent for the Company and the Administrative Agent. This provision
is intended to comply with the registration requirements in Treasury
Regulation Section 5f.103-1 so that the Loans and Notes are
considered to be in "registered form" pursuant to such regulation.
The entries in such book entry record shall be conclusive and binding,
absent manifest error, regarding ownership of such participations.
(f) Any Lender (a "Granting Lender") may grant to a
special purpose funding vehicle (an "SPC"), identified as such in
writing from time to time by such Granting Lender to the
Administrative Agent and the Company, the option to provide all or
any part of any Committed Loan that such Granting Lender would
otherwise be obligated to make to the Company pursuant to this
Agreement; provided that (i) nothing herein shall constitute a
commitment by any SPC to make any Committed Loan and (ii) if an
SPC elects not to exercise such option or otherwise fails to provide
all or any part of any Committed Loan, the Granting Lender shall be
obligated to make such Committed Loan pursuant to the terms hereof.
The making of a Committed Loan by an SPC hereunder shall utilize
the Commitment of the Granting Lender to the same extent, and as if,
such Committed Loan were made by such Granting Lender. Each
party hereto hereby agrees that no SPC shall be liable for any
indemnity or similar payment obligation under this Agreement (all
liability for which shall remain with the Granting Lender). In
furtherance of the foregoing, each party hereto hereby agrees (which
agreement shall survive the termination of this Agreement) that, prior
to the date that is one year and one day after the payment in full of all
outstanding commercial paper or other senior indebtedness of any
SPC, it will not institute, or join any other Person in instituting,
against such SPC any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceeding under the laws of the United
States or any State thereof with respect to any claim arising out of this
Agreement. In addition, notwithstanding anything to the contrary
contained in this subsection 11.06(f), any SPC may (i) with notice to,
but without the prior written consent of, the Company and the
Administrative Agent and without paying any processing fee therefor,
assign all or a portion of its interests in any Committed Loans to the
Granting Lender or to any financial institution providing liquidity
and/or credit support to or for the account of such SPC to support the
funding or maintenance of Committed Loans and (ii) disclose on a
confidential basis any non-public information relating to its
Committed Loans to any rating agency, commercial paper dealer or
provider of any surety, guarantee or credit or liquidity enhancement
to such SPC.
(g) Notwithstanding any other provision in this
Agreement, (i) any Lender 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 FRB 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; provided that any foreclosure or similar action
by such holders, trustee or representative shall be subject to the
provisions of this Section concerning assignments.
11.07 Governing Law. This Agreement and each Note shall be
construed in accordance with and governed by the substantive laws of the
State of Illinois without regard to the choice of law provisions thereof.
11.08 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 the Administrative Agent shall have
received counterparts hereof signed by all of the parties hereto, and the
Administrative Agent shall promptly notify the other parties hereto of such
effectiveness.
11.09 Confidentiality. Each Lender agrees to take, and to cause its
Affiliates to take, normal and reasonable precautions and exercise due care
to maintain the confidentiality of all non-public information provided to it by
the Company or any Subsidiary, or by the Administrative Agent on the
Company's or such Subsidiary's behalf, under this Agreement, and neither
such Lender nor any of its Affiliates shall use any such information other than
in connection with or in enforcement of this Agreement or in connection with
other business now or hereafter existing or contemplated with the Company
or any Subsidiary; except to the extent such information (i) was or becomes
generally available to the public other than as a result of disclosure by such
Lender or (ii) was or becomes available on a non-confidential basis from a
source other than the Company and its Subsidiaries, provided that such
source is not bound by a confidentiality agreement with the Company or any
Subsidiary known to such Lender; provided, however, that any Lender may
disclose such information (A) at the request or pursuant to any requirement
of any Governmental Authority to which such Lender is subject or in
connection with an examination of such Lender by any such authority; (B)
pursuant to subpoena or other court process; (C) when required to do so in
accordance with the provisions of any applicable Requirement of Law; (D)
to the extent reasonably required in connection with any litigation or
proceeding to which the Administrative Agent or any Lender or any of their
respective Affiliates may be party; (E) to the extent reasonably required in
connection with the exercise of any remedy hereunder; (F) to such Lender's
independent auditors and other professional advisors; (G) to any Participant
or Assignee, actual or potential, provided that such Person agrees in writing
to keep such information confidential to the same extent required of the
Lenders hereunder; (H) as expressly permitted under the terms of any other
document or agreement to which the Company or any Subsidiary is party with
such Lender or such Affiliate; and (i) to its Affiliates.
11.10 Waiver of Jury Trial. THE COMPANY, THE
ADMINISTRATIVE AGENT AND EACH LENDER HEREBY
WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR
PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER
THIS AGREEMENT, ANY NOTE AND ANY AMENDMENT,
INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR
WHICH MAY IN THE FUTURE BE DELIVERED IN CONNECTION
HEREWITH OR ARISING FROM ANY BANKING RELATIONSHIP
EXISTING IN CONNECTION WITH ANY OF THE FOREGOING,
AND AGREES THAT ANY SUCH ACTION OR PROCEEDING
SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY.
11.11 Consent to Jurisdiction. THE COMPANY HEREBY
EXPRESSLY AND IRREVOCABLY SUBMITS TO THE
JURISDICTION OF THE COURTS OF THE STATE OF ILLINOIS
AND OF THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ILLINOIS FOR THE PURPOSE OF ANY
LITIGATION ARISING OUT OF OR IN CONNECTION WITH THIS
AGREEMENT. THE COMPANY FURTHER IRREVOCABLY
CONSENTS TO THE SERVICE OF PROCESS IN ANY SUCH
LITIGATION BY REGISTERED MAIL, POSTAGE PREPAID, OR BY
PERSONAL SERVICE WITHIN OR WITHOUT THE STATE OF
ILLINOIS. TO THE EXTENT THAT THE COMPANY HAS OR
HEREAFTER MAY ACQUIRE ANY IMMUNITY FROM
JURISDICTION OF ANY COURT OR FROM ANY LEGAL
PROCESS (WHETHER THROUGH SERVICE OR NOTICE,
ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN AID
OF EXECUTION OR OTHERWISE) WITH RESPECT TO ITSELF
OR ITS PROPERTY, THE COMPANY HEREBY IRREVOCABLY
WAIVES SUCH IMMUNITY IN RESPECT OF ITS OBLIGATIONS
UNDER 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.
PENTAIR, INC.
By
Title
BANK OF AMERICA, N.A., as Administrative Agent
By
Title
BANK OF AMERICA, N.A.
By
Title
THE FIRST NATIONAL BANK OF CHICAGO
By
Title
U.S. BANK NATIONAL ASSOCIATION
By
Title
XXXXXX GUARANTY TRUST COMPANY OF
NEW YORK
By
Title
FIRST UNION NATIONAL BANK
By
Title
THE INDUSTRIAL BANK OF JAPAN, LIMITED
By
Title
By
Title
THE BANK OF TOKYO - MITSUBISHI, LTD.,
CHICAGO BRANCH
By
Title
By
Title
BANK HAPOALIM B.M.
By
Title
By
Title
CREDIT AGRICOLE INDOSUEZ
By
Title
By
Title
CREDIT LYONNAIS CHICAGO BRANCH
By
Title
By
Title
SUNTRUST BANK, CENTRAL FLORIDA, N.A.
By
Title
XXXXX FARGO BANK, NATIONAL
ASSOCIATION
By
Title
BANCA DI ROMA - CHICAGO BRANCH
By
Title
By
Title
BANCA NAZIONALE DEL LAVORO S.p.A. NEW
YORK BRANCH
By
Title
By
Title
BANKBOSTON, N.A.
By
Title
BANK OF MONTREAL
By
Title
THE BANK OF NEW YORK
By
Title
BANQUE NATIONALE DE PARIS
By
Title
By
Title
CREDIT SUISSE FIRST BOSTON
By
Title
By
Title
FIRSTAR BANK OF MINNESOTA, N.A.
By
Title
FLEET NATIONAL BANK
By
Title
MELLON BANK, N.A.
By
Title
SANWA BANK LIMITED
By
Title
By
Title
COMMERZBANK AKTIENGESELLSCHAFT,
NEW YORK AND GRAND CAYMAN BRANCHES
By
Title
By
Title
MICHIGAN NATIONAL BANK
By
Title
NATIONAL CITY BANK
By
Title
BANCO ESPIRITO SANTO, S.A. NEW YORK
BRANCH
By
Title
By
Title
SCHEDULE 1.01
PRICING SCHEDULE
The Applicable Margin and the Facility Fee Rate shall be calculated
based on the table below and the other provisions of this Schedule 1.01.
Level I Level II Level III Xxxxx XX Xxxxx X Xxxxx XX Xxxxx XXX
Senior Debt
Ratings A-A3 or
Higher BBB+/Baal BBB/Baa2 BBB&Baa3
or
BBB-&Baa2 BBB-/Baa3
BB+/Bal
BB/Ba2
or
Lower
Total Debt/
EBITDA <=1.5
>1.5 but <=2.0
>2.0 but <=2.25
>2.25 but <=2.5
>2.5 but <=3.0
>3.0 but <=3.5
>=3.5
Applicable
Margin 37.5 47.5 57.5 68.75 80.0 102.5 122.5
Facility Fee
(bps) 12.5 15.0 17.5 18.75 20.0 22.5 27.5
Initially, the Applicable Margin and the Facility Fee Rate (collectively the
"Pricing") shall be 1.025%, and 0.225%, respectively.
If at any time after December 1, 1999 both Xxxxx'x and S&P have issued a
credit rating for the Company's long term senior unsecured Debt (a "Senior
Debt Rating"), the Pricing shall be determined based such Senior Debt
Ratings (as shown in the table above). If one Senior Debt Rating is higher
than the other, the lower Senior Debt Rating shall determine the Pricing
unless Level IV above applies. If the Pricing is determined based on the
Senior Debt Ratings, the Pricing shall be adjusted two Business Days after
any applicable change in any Senior Debt Rating.
If at any time after December 1, 1999, either Xxxxx'x or S&P does not have
in effect a Senior Debt Rating, the Pricing shall be determined based upon the
Leverage Ratio (as shown in the table above) as of the last day of the most
recent Fiscal Quarter for which financial statements have been delivered and
shall be adjusted, to the extent applicable, 45 days (or, in the case of the
last fiscal quarter of any fiscal year, 90 days) after the end of each Fiscal
Quarter; provided that if the Pricing is determined pursuant to this paragraph
and the Company fails to deliver the financial statements required by Section
8.01 by the due date therefor, the Pricing that would apply if the Leverage
Ratio were greater than or equal to 3.5 to 1 shall apply from such due date
until such financial statements are delivered.
SCHEDULE 2.01
COMMITMENTS
AND PRO RATA SHARES
Pro Rata
Lender Commitment Share
Bank of America, N.A. $32,812,500 8.75000%
The First National Bank of Chicago $32,812,500 8.75000%
Xxxxxx Guaranty Trust Company of New York $32,812,500 8.75000%
U.S. Bank National Association $32,812,500 8.75000%
First Union National Bank $18,750,000 5.00000%
The Industrial Bank of Japan, Limited $18,750,000 5.00000%
The Bank of Tokyo - Mitsubishi, Ltd.,
Chicago Branch $18,750,000 5.00000%
Bank Hapoalim B.M. $11,015,625 2.93750%
Credit Agricole Indosuez $11,015,625 2.93750%
Credit Lyonnais Chicago Branch $11,015,625 2.93750%
SunTrust Bank, Central Florida, N.A. $11,015,625 2.93750%
Xxxxx Fargo Bank, National Association $11,015,625 2.93750%
Banca di Roma - Chicago Branch $9,375,000 2.50000%
Banca Nazionale del Lavoro S.p.A.
New York Branch $9,375,000 2.50000%
BankBoston, N.A. $9,375,000 2.00000%
Bank of Montreal $9,375,000 2.00000%
The Bank of New York $9,375,000 2.50000%
Banque Nationale de Paris $9,375,000 2.50000%
Credit Suisse First Boston $9,375,000 2.50000%
Firstar Bank of Minnesota, N.A. $9,375,000 2.50000%
Fleet National Bank $9,375,000 2.50000%
Mellon Bank, N.A. $9,375,000 2.50000%
Sanwa Bank Limited $9,375,000 2.50000%
Commerzbank Aktiengesellschaft, New York
and Grand Cayman Branches $8,203,125 2.18750%
Michigan National Bank $8,203,125 2.18750%
National City Bank $8,203,125 2.18750%
Banco Espirito Santo, S.A. New York Branch $4,687,500 1.25000%
TOTAL $375,000,000 100.00000%
SCHEDULE 8.04
LIENS
- None -
SCHEDULE 11.01
NOTICE ADDRESSES
Pentair, Inc.
0000 Xxxxxx Xxxx X0 Xxxx
Xx. Xxxx, Xxxxxxxxx 00000-0000
Attn: Xxx Xxxx
000-000-0000
000-000-0000 (fax)
Bank of America, N.A, as Administrative Agent
For administrative notices regarding borrowings, payments, conversions,
continuations, fees, interest and similar notices:
Agency Administrative Services 5596
Mail Code CA4-706-05-09
0000 Xxxxxxx Xxxx.
Xxxxxxx, XX 00000-0000
Attn: Xxxxxxx X. Xxxxxx
000-000-0000
000-000-0000 (fax)
For notices regarding amendments, waivers, financial statements,
assignments and all other notices:
Agency Management 10831
Mail Code CA5-701-12-09
0000 Xxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000-0000
Attn: Xxxx X. Xxxxxxx
000-000-0000
000-000-0000 (fax)
Bank of America, National Association, as a Committed Lender
Credit Contact:
000 Xxxxx XxXxxxx Xxxxxx- 0xx Xxxxx
Xxxxxxx, XX 00000
Attn: Xxxx X. Xxxxxxxx
000-000-0000
000-000-0000 (fax)
The First National Bank of Chicago, as a Committed Lender
Credit Contact:
One First National Plaza, 14th Floor
Mail Code IL1-0364
Xxxxxxx, XX 00000
Attn: Xxxx Xxxxxxx, Vice President
000-000-0000
000-000-0000 (fax)
Administrative/ Operations and Bid Loan Contact:
One First National Plaza
Mail Code IL1-0088
Xxxxxxx, XX 00000
Attn: Xxxxxxx Xxxxxx, Client Service Assoc.
000-000-0000
000-000-0000 (fax)
U.S. Bank National Association
Credit Contact:
000 0xx Xxxxxx Xxxxx
XXXX0000
Xxxxxxxxxxx, XX 00000-0000
Attn: Xxxx X. Xxxxx
000-000-0000
000-000-0000 (fax)
Administrative/ Operations Contact:
000 0xx Xxxxxx Xxxxx - XXXX0000
Xxxxxxxxxxx, XX 00000-0000
Attn: Xxxxx Xxxxxxx
000-000-0000
000-000-0000 (fax)
Xxxxxx Guaranty Trust Company of New York
Credit Contact:
00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Attn: Xxxxx Xxxxx
000-000-0000
000-000-0000 (fax)
Administrative/ Operations Contact:
Xxxxxx Xxxxxxxxxx Center
000 Xxxxxxx Xxxxxxxxxx Xxxx
Xxxxxx, XX 00000-0000
Attn: Xxxxxx Xxxxxxx, Associate
Telex Number: 177615 MGT UT or 620106 MGT UW
000-000-0000 (fax)
Banca di Roma - Chicago Branch
Credit and Bid Loan Contact:
000 Xxxx Xxxxxxxxxx - Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Xxxxx Xxxxxxxxxx
000-000-0000
000-000-0000 (fax)
Administrative/ Operations Contact:
000 Xxxx Xxxxxxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Xx. Xxxx Xxxxxx
000-000-0000
000-000-0000 (fax)
Banca Nazionale del Lavoro S.p.A. New York Branch
Credit Contact:
New York Branch at Rockefeller Plaza
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxx Medida
000-000-0000
000-000-0000 (fax)
Banco Espirito Santo, S.A. New York Branch
Credit Contact:
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx Xxxx
000-000-0000
000-000-0000 (fax)
Administrative/ Operations Contact:
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxx Xxxxxxxx
000-000-0000
000-000-0000 (fax)
Bank Hapoalim B.M.
Credit Contact:
000 X. Xxxxxxxx Xxx., Xxxxx 000
Xxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxx, Vice President
000-000-0000
000-000-0000 (fax)
and
Attn: Xxxxxxx X. Xxxxx, Vice President, Sr. Lending Officer
000-000-0000
000-000-0000 (fax)
Administrative/ Operations Contact:
Attn: Xxxxx X. Xxxxx, Loan Administrator
000-000-0000
000-000-0000 (Fax)
Bank of Montreal
Credit Contact:
000 Xxxxx XxXxxxx Xxxxxx
00xx Xxxxx Xxxx
Xxxxxxx, XX 00000
Attn: Xxxxxx Xxxxxxxx
000-000-0000
The Bank of New York
Credit Contact:
Xxx Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxxx, Vice President
000-000-0000
000-000-0000/09 (fax)
Administrative/ Operations and Bid Loan Contact:
Attn: Xxxxxx X. Xxxxxx, Assitant Treasurer
000-000-0000
000-000-0000 (fax)
The Bank of Tokyo-Mitsubishi, Ltd., Chicago Branch
Credit Contact:
00 Xxxxx Xxxxxxx Xxxxxx
0000 Xxxxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000-0000
Attn: Xxxxxxx X. Xxxxxx, Vice President and Manager
000-000-0000
000-000-0000 (fax)
Administrative/ Operations Contact:
Attn: Xxxxxx Xxxxxxx, Loan Administration
000-000-0000
000-000-0000 (fax)
254009 BTMCGO
Bid Loan Contact:
Attn: Xxxxxxx X. Xxxxxx
000-000-0000
000-000-0000 (fax)
BankBoston, N.A.
Credit and Bid Loan Contact:
000 Xxxxxxx Xxxxxx
Mail Stop 01-10-01
Xxxxxx, XX 00000
Attn: Xxxxxxx Xxxxxxx, Vice President
000-000-0000
000-000-0000
xxxxxxxxx@xxx.xxx (e-mail)
Administrative/ Operations Contact:
000 Xxxxxxx Xxxxxx
Mail Stop 01-10-01
Xxxxxx, XX 00000
Attn: Xxxxxx Xxxxx, Senior Account Manager
000-000-0000
000-000-0000 (fax)
Banque Nationale de Paris
Credit Contact:
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, XX 00000
Attn: Jo Xxxxx Xxxxxx, Senior Vice President
000-000-0000
000-000-0000 (fax)
Administrative/ Operations Contact:
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, XX 00000
Attn: Xxxxxxxxx Xxx, Assistant Vice President
000-000-0000
000-000-0000 (fax)
Bid Loan Contact:
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, XX 00000
Attn: Xxx Xxxxxx, Loan Administrator
000-000-0000
000-000-0000 (fax)
Commerzbank Aktiengesellschaft,
New York and Grand Cayman Branches
Credit Contact:
00 Xxxxx Xxxxx Xxxxxx - Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Mr. J. Xxxxxxx Shortly
(000) 000-0000
(000) 000-0000 (fax)
Administrative/ Operations Contact:
Xxx Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Attn: Xx. Xx Xxxxxx
000-000-0000
000-000-0000 (fax)
Bid Loan Contact:
00 Xxxxx Xxxxx Xxxxxx - Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Mr. J. Xxxxxxx Shortly
000-000-0000
000-000-0000 (fax)
Credit Agricole Indosuez
Credit Contact:
00 X. Xxxxxx- Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Xxxxxxx Xxxxxxx, Vice President
000-000-0000
000-000-0000 (fax)
Administrative/ Operations and Bid Loan Contact:
Credit Administration
00 X. Xxxxxx, 00xx Xxxxx
Xxxxxxx, XX 00000
Attn: Xxxxx Xxxxxxxxx
000-000-0000
000-000-0000 (fax)
Credit Lyonnais Chicago Branch
Credit Contact:
000 X. Xxxxxx Xxxxxx - Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Xxxxx Xxxxxxx
000-000-0000
000-000-0000 (fax)
Administrative/ Operations and Bid Loan Contact:
Credit Lyonnais Chicago Branch
000 X. Xxxxxx Xxxxxx, xxxxx 0000
Xxxxxxx, XX 00000
Attn: Xxxxxxxx Xxxxx
000-000-0000
000-000-0000 (fax)
Credit Suisse First Boston
Credit Contact:
00 Xxxxxxx Xxxxxx - 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx Xxxxxxxx
000-000-0000
000-000-0000
Xxxxx.Xxxxxxxx@xxxx.xxx
Administrative/ Operations Contact:
0 Xxxxx Xxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx Xxx Xxxx 00000
Attn: Xxx Xxxxx
000-000-0000
000-000-0000 (fax)
Bid Loan Contact:
Janko Gogolja
00 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
000-000-0000
000-000-0000 (fax)
First Union National Bank
Credit and Bid Loan Contact:
000 X. Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000-0000
Attn: Xxxxx X. Xxxxxxx
000-000-0000
000-000-0000 (fax)
Administrative/ Operations Contact:
000 X. Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000-0000
Attn: Xxxx Xxxxxx, CSNA
000-000-0000
000-000-0000 (fax)
Firstar Bank of Minnesota, N.A.
Credit and Bid Loan Contact:
000 X. Xxxxx Xxxxxx, 00xx Xxxxx
Xx. Xxxx, XX 00000-0000
Attn: Xxxxxx Xxxxxxx, Vice President
000-000-0000
000-000-0000 (fax)
Administrative/ Operations Contact:
Firstar Bank of Minnesota
000 X. Xxxxx Xxxxxx, 00xx Xxxxx
Xx. Xxxx, XX 00000-0000
Attn: Xxxxxxxx Xxxxxxx, Administrative Assistant
000-000-0000
000-000-0000 (fax)
Fleet National Bank
Credit Contact:
One Federal Street
Mail Stop MA-OF-DO7K
Xxxxxx, XX 00000
Attn: Xxxxx Xxxxxxxx
000-000-0000
000-000-0000 (fax)
Administrative/ Operations Contact:
Xxx Xxxxxxx Xxxxxx
XX XX XX0X
Xxxxxx, XX 00000
Attn: Xxxx Xxxxxxx, Loan Administrator
000-000-0000
000-000-0000 (fax)
The Industrial Bank of Japan, Limited
Credit Contact:
000 Xxxx Xxxxxx Xxxxxx - Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Xxxxxx Xxxxx
000-000-0000
000-000-0000 (fax)
Administrative/ Operations Contacts:
Credit Administration #1 Department
1251 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000-0000
Attn: Xxxxx Xxxxxx
000-000-0000
000-000-0000 (fax)
and
Attn: Xxxxxxx Xxxxxx, Vice President
000-000-0000
000-000-0000 (fax)
Mellon Bank, N.A.
Credit Contact:
1 Mellon Xxxx Xxxxxx
Xxxx 000
Xxxxxxxxxx, XX 00000-0000
Attn: Xxxxx Xxxxx, Relationship Manager
000-000-0000
000-000-0000 (fax)
Administrative/ Operations Contact:
0 Xxxxxx Xxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attn: Xxxxxxx Xxxxxxxx, Loan Administrator
000-000-0000
000-000-0000 (fax)
Michigan National Bank
Credit Contact:
00000 Xxxxxxx Xxxx
Xxxxxxxxxx Xxxxx, XX 00000
Mail Code 10-36
Attn: Xxxxxxx Xxxxxx, Relationship Manager
000-000-0000
000-000-0000
xxxxxxx.xxxxxx@xxxx.xxx (e-mail)
Administrative/ Operations Contact:
00000 Xxxxxxx Xxxx
Xxxxxxxxxx Xxxxx, XX 00000
Mail Code 10-36
Attn: Xxxxxx Xxxxxx, Secretary
000-000-0000
000-000-0000 (fax)
National City Bank
Credit Contact:
00 X. Xxxxxx Xxxxx - Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxx, Asst. Vice President
000-000-0000
000-000-0000 (fax)
xxxxxxxx@xxxxxxx.xxx (e-mail)
Administrative/ Operations and Bid Loan Contact:
00000 Xxxx Xxxxx Xxxx.
Xxxxxxxx Xxxxx, XX 00000
Attn: Xxxxxxx Xxxxxxxxxxx, Manager
000-000-0000
000-000-0000
Sanwa Bank Limited
Credit Contact:
00 X. Xxxxxx Xxxxx
Xxxxxxx, XX 00000
Attn: Xxx Xxxxxxxx, First Vice President
000-000-0000
000-000-0000 (fax)
Administrative/ Operations Contact:
00 Xxxx 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 10055
Attn: Xxxxx Hara, Assistant Vice President
000-000-0000
000-000-0000 (fax)
SunTrust Bank, Central Florida, N.A.
Credit Contact:
000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxxx
000-000-0000
000-000-0000 (fax)
Administrative/ Operations and Bid Loan Contact:
Attn: Xxxxxx Xxxxxxxxx
000-000-0000
000-000-0000 (fax)
Xxxxx Fargo Bank, National Association
Credit Contact:
Sixth & Marquette
XXX-X0000-000
Xxxxxxxxxxx, XX 00000
Attn: Xxxxxx Xxxxxx
000-000-0000
000-000-0000 (fax)
Administrative/ Operations Contact:
000 Xxxxx Xx.
XXX-0000-000
Xxx Xxxxxxxxx, XX 00000
Attn: Xxxxxx Xxxxxxx, VP/Manager
000-000-0000
000-000-0000 (fax)
Bid Loan Contact:
Sixth & Marquette
MAC X0000-000
Xxxxxxxxxxx, XX 00000
Attn: Xxxxx Xxxxxxxx, Relationship Associate
000-000-0000
000-000-0000 (fax)
EXHIBIT G
FORM OF
REQUEST FOR EXTENSION
___________________________, _____
Bank of America, N.A.,
as Administrative Agent, and the
Lenders party to the Credit Agreement
referred to below
[address]
Ladies and Gentlemen:
Reference is made to the 364-Day Credit
Agreement, dated as of September 2, 1999 (as
amended from time to time, the "Credit
Agreement"), among Pentair, Inc. (the "Company"),
the financial institutions party thereto as
Lenders, Bank One Capital Markets, Inc., as
Syndication Agent, U.S. Bank National Association
and Xxxxxx Guaranty Trust Company of New York, as
Co-Documentation Agents, and Bank of America,
N.A., as Administrative Agent. Terms used but not
otherwise defined herein are used herein as
defined in the Credit Agreement.
In accordance with Section 2.07 of the Credit
Agreement, the Company hereby requests an
extension of the Termination Date from
___________, ____ to ___________, ____ (the
"Extension").
Please indicate on Attachment I hereto
whether or not you agree to extend the Termination
Date pursuant to Section 2.07 of the Credit
Agreement. Please complete and return Attachment
I to the Administrative Agent within 15 Business
Days of the date hereof.
Very truly yours,
PENTAIR, INC.
By:_________________________
Title:______________________
ATTACHMENT I TO EXHIBIT G
Bank of America, N.A.,
as Administrative Agent
[address]
Ladies and Gentlemen:
Please refer to the letter dated as of
[_________, ____], from Pentair, Inc. (the
"Company") requesting an extension of the
Termination Date from __________, ____ to
__________, ____, pursuant to Section 2.07 of the
364-Day Credit Agreement, dated as of September 2,
1999 (as amended from time to time, the "Credit
Agreement"), among the Company, the financial
institutions party thereto as Lenders, Bank One
Capital Markets, Inc., as Syndication Agent, U.S.
Bank National Association and Xxxxxx Guaranty
Trust Company of New York, as Co-Documentation
Agents, and Bank of America, N.A., as
Administrative Agent. Terms used but not
otherwise defined herein are used herein as
defined in the Credit Agreement.
In response to the Company's request, the
undersigned Lender hereby [agrees to extend the
Termination Date from __________, ____ to
__________, ____][declines to extend the
Termination Date].
Very truly yours,
[NAME OF LENDER]
By:_________________________
Title:______________________
