SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM 8-K
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (date of earliest event reported) September 2,1999
PENTAIR, INC.
(Exact Name of Registrant as specified in Its Charter)
MINNESOTA 001-11625 41-0907434
(State of Incorporation (Commission File (I.R.S. Employer
or Organization) Number) Identification No.)
1500 County Road B2 West, St. Paul, Minnesota 55113-3105
(Address of Principal Executive Offices)(Zip Code)
651.636.7920
(Registrant's Telephone Number, Including Area Code)
<PAGE>
Item 2. Acquisition and Disposition of Assets
Acquisition of DeVilbiss Air Power Company.
On September 3, 1999, Pentair, Inc. (the "Company")
acquired all of the outstanding shares of Falcon
Manufacturing, Inc., the parent company of DeVilbiss
Air Power Company (Falcon Manufacturing, Inc. and
DeVilbiss Air Power Company, together "DeVilbiss").
The acquisition price was approximately $460 million.
The DeVilbiss acquisition will be accounted for using
the purchase method of accounting. Sales and operating
income before corporate charges and interest expense of
DeVilbiss were $389 million and $32 million
respectively for the year ended December 31, 1998 and
were $269 million and $30 million respectively for
DeVilbiss' six months ended June 30, 1999.
DeVilbiss manufactures a broad line of air compressors,
portable generators, pressure washers and accessories.
Its products are sold to the retail, commercial,
contractor and "do-it-yourself" markets under brand
names such as Air America (registered mark), Charge Air
Pro (registered mark), Ex-Cell (registered mark) and
Pro Air II (registered mark). The acquisition of
DeVilbiss significantly expands the Company's tools
segment product line and reinforces the Company's
position in the rapidly growing retail channel.
The Company believes the acquisition of DeVilbiss
offers it multiple opportunities for revenue growth in
its tools segment, including:
- expanding the Company's tools segment product offerings;
- leveraging the Company's in-house retail
sales force, increase account penetration and
the number of accounts served and
- introducing certain acquired products through
into industrial and automotive service
markets not currently served by DeVilbiss.
<PAGE> 1
The Company expects to be able to generate significant
cost savings from this acquisition, including:
- consolidating physical distribution resulting
in significant freight and overhead cost
savings, as well as improved customer and
delivery services;
- combining headquarters and administrative
functions to reduce costs;
- using Pentair's purchasing and sourcing
capabilities through Delta and Porter-Cable's
existing organizations in the Far East to
lower product costs; and
- servicing DeVilbiss products through Porter-
Cable's existing network to increase service
and productivity and reduce costs.
The foregoing description of the DeVilbiss acquisition
does not purport to be complete and is qualified in its
entirety by reference to the Stock Purchase Agreement,
a copy of which was filed as Exhibit 2.4 to the
Company's Form 8-K filed August 25, 1999, incorporated
herein by reference. A copy of the press release,
dated August 13, 1999, issued by Pentair, Inc.
regarding the agreement to acquire DeVilbiss was filed
as Exhibit 99.4 to the Company's Form 8-K filed August
25, 1999, incorporated herein by reference
Item 5. Other Matters
Acquisition and Other Financings
New Revolving Credit Facilities
On September 2, 1999, the Company entered into two new
revolving credit facilities aggregating $800 million; a
new five-year $425 million revolving credit facility
(the "$425 Million Revolver") and a new 364-day $375
million revolving credit facility (the "$375 Million
Revolver") (the $425 Million Revolver and the $375
Million Revolver together, the "New Revolving Credit
Facilities"). The New Revolving Credit Facilities
replaced the Company's $390 million revolving credit
facilities and were entered into to partially fund the
acquisition of DeVilbiss and to support the Company's
operating needs. The $425 Million Revolver expires
September 2, 2004 and the $375 Million Revolver expires
on August 31, 2000.
<PAGE> 2
Inclusive of related facilities fees, the New Revolving
Credit Facilities accrue interest at a floating rate
equal to LIBOR plus 1.25% through December 1, 1999 and
thereafter based upon the rating of the Company's long
term senior unsecured debt assigned by Standard &
Poor's Ratings Group and Moody's Investor Service,
Inc., or if not in effect a leverage ratio. Copies of
the $425 Million Revolver and the $375 Million Revolver
are included herewith as Exhibits 4.1 and 10.1.
Effects of Recent Financings
The Company's increased debt levels as a result of its
recent $400 million bridge loan with Morgan Guaranty
Trust Company of New York and its loan with U.S. Bank
National Association, as agent, (both of which were
described in and filed as exhibits to the Company's
Form 8-K filed on August 25, 1999 incorporated herein
by reference) and as a result of the borrowings
described above may affect certain other five to seven
year fixed-rate term loan financing agreements entered
into by the Company in the years from 1992 to 1999.
Under the most restrictive of these agreements, the
Company will have to maintain its debt to total capital
ratio below 65%.
The Morgan bridge loan, the U.S. Bank loan and the New
Revolving Credit Facilities will be sufficient to fund
the Company's acquisition of Essef Corporation and of
DeVilbiss and for the Company to finance its normal
operating needs for the balance of the year, including
working capital, capital expenditures, dividends and
small acquisitions. The Morgan bridge loan and the
U.S. Bank Loan mature on March 30, 2000. The Company
currently intends to refinance these loans through the
completion of debt and/or equity offerings. If the
Company is unable to do so before maturity of these
loans, it will be required to seek alternative
financing arrangements.
<PAGE> 3
Item 7. Financial Statements and Exhibits.
(a) Financial Statements of Businesses Acquired
The financial statements required to be filed
for Falcon Manufacturing, Inc. were previously
reported in the Company's Form 8-K filed August
25, 1999 as Exhibit 99.2.
(b) Pro Forma Financial Information
The unaudited pro forma combined condensed
financial information of Pentair, Inc. and
subsidiaries, reflecting the acquisition of
Falcon Manufacturing, Inc., the parent of
DeVilbiss Air Power Company, required to be
filed were previously reported in the Company's
Form 8-K filed August 25, 1999.
(c) Exhibits:
See the Exhibit Index following the signature
page of this Report, which is incorporated
herein by reference.
<PAGE> 4
SIGNATURE
Pursuant to the requirements of the Securities
Exchange Act of 1934, the Registrant has duly caused
this Report to be signed on its behalf by the
undersigned hereunder duly authorized.
PENTAIR, INC.
Date: September 3, 1999
By:/s/ Roy T. Rueb
Roy T. Rueb, Vice President and Treasurer
<PAGE> 5
PENTAIR, INC.
EXHIBIT INDEX TO
FORM 8-K CURRENT REPORT
Date of Report: September 2, 1999
Incorporated
Exhibit Herein by Filed
Number Description Reference to Herewith
2.1 Stock Purchase Agreement Form 8-K filed
dated as of August 12, 1999 August 25, 1999
between Falcon Building
Products, Inc. and Pentair,
Inc. (In accordance with
SEC rules, certain
schedules to the Agreement,
which are listed in the
list of Schedules to the
Agreement, are omitted.
Such schedules will be
furnished supplementally to
the SEC upon request.)
4.1 Long Term Credit Agreement x
dated as of September 2,
1999, by and among Pentair,
Inc., Pentair U.K. Ltd.,
Pentair Canada Inc.,
EuroPentair GmbH, and Banc
One Capital Markets, Inc.,
as Syndication Agent, U.S.
Bank National Association
and Morgan Guaranty Trust
Company Of New York, as Co-
Documentation Agents, The
First National Bank of
Chicago, London Branch, as
UK Lender, First Chicago
NBD Bank, Canada, as
Canadian Lender, Bank of
America, N.A., as German
Lender, U.S. Bank National
Association, as Swing Line
Lender, and Bank of
America, N.A., as
Administrative Agent and
Issuing Bank, Banc of
America Securities, LLC and
Bank One Capital Markets,
Inc., as Co-Lead Arrangers
and Co-Book Managers.
10.1 364 Day Credit Agreement, x
dated as of September 2,
1999, by and among Pentair,
Inc., Pentair U.K. Ltd.,
Pentair Canada Inc.,
EuroPentair GmbH, and Banc
One Capital Markets, Inc.,
as Syndication Agent, U.S.
Bank National Association
and Morgan Guaranty Trust
Company Of New York, as Co-
Documentation Agents, The
First National Bank of
Chicago, London Branch, as
UK Lender, First Chicago
NBD Bank, Canada, as
Canadian Lender, Bank of
America, N.A., as German
Lender, U.S. Bank National
Association, as Swing Line
Lender, and Bank of
America, N.A., as
Administrative Agent and
Issuing Bank, Banc of
America Securities, LLC and
Bank One Capital Markets,
Inc., as Co-Lead Arrangers
and Co-Book Managers.
99.1 Press Release dated August Form 8-K filed
13, 1999 August 25, 1999
<PAGE> 6
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
MORGAN 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
<PAGE>
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)
<PAGE>
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 MORGAN 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 Morgan 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 Moody's 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 McGraw-Hill
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) Louis L.
Ainsworth, Senior Vice President and General Counsel of the
Company, and (b) Mayer, Brown & Platt, 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 Moody's 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
MORGAN 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
WELLS 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
<PAGE>
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 Level IV Level V Level VI Level VII
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 Moody's 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 Moody's 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%
Morgan 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%
Wells 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 2.50000%
Bank of Montreal $9,375,000 2.50000%
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.
1500 County Road B2 West
St. Paul, Minnesota 55113-3105
Attn: Roy Rueb
651-639-5258
651-639-5251 (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
1850 Gateway Blvd.
Concord, CA 94520-3282
Attn: Michele L. Widmer
925-675-8430
925-675-8500 (fax)
For notices regarding amendments, waivers, financial statements,
assignments and all other notices:
Agency Management 10831
Mail Code CA5-701-12-09
1455 Market Street
San Francisco, CA 94103-1399
Attn: Gary G. Flieger
415-436-3484
415-503-5005 (fax)
Bank of America, National Association, as a Committed Lender
Credit Contact:
231 South LaSalle Street- 9th Floor
Chicago, IL 60697
Attn: Lisa S. Donoghue
312-828-3898
312-987-7384 (fax)
The First National Bank of Chicago, as a Committed Lender
Credit Contact:
One First National Plaza, 14th Floor
Mail Code IL1-0364
Chicago, IL 60670
Attn: Lisa Whatley, Vice President
312-732-6503
312-732-1117 (fax)
Administrative/ Operations and Bid Loan Contact:
One First National Plaza
Mail Code IL1-0088
Chicago, IL 60670
Attn: Anthony Catron, Client Service Assoc.
312-732-6137
312-732-2715 (fax)
U.S. Bank National Association
Credit Contact:
601 2nd Avenue South
MPFP0702
Minneapolis, MN 55402-4302
Attn: Mark R. Olmon
612-973-1085
612-973-0825 (fax)
Administrative/ Operations Contact:
601 2nd Avenue South - MPFP0702
Minneapolis, MN 55402-4302
Attn: Karen Johnson
612-973-0546
612-973-0825 (fax)
Morgan Guaranty Trust Company of New York
Credit Contact:
60 Wall Street
New York, NY 10260-0060
Attn: David Stone
212-648-1291
212-648-5014 (fax)
Administrative/ Operations Contact:
Morgan Christiana Center
500 Stanton Christiana Road
Newark, DE 19713-2107
Attn: Andrew Lipsett, Associate
Telex Number: 177615 MGT UT or 620106 MGT UW
302-634-1872 (fax)
Banca di Roma - Chicago Branch
Credit and Bid Loan Contact:
225 West Washington - Suite 1200
Chicago, IL 60606
Attn: Joyce Montgomery
312-704-2648
312-726-3058 (fax)
Administrative/ Operations Contact:
225 West Washington, Suite 1200
Chicago, IL 60606
Attn: Ms. Enza Geraci
312-704-2603
312-726-3058 (fax)
Banca Nazionale del Lavoro S.p.A. New York Branch
Credit Contact:
New York Branch at Rockefeller Plaza
25 West 51st Street
New York, NY 10019
Attn: Mike Medida
212-314-0263
212-489-9088 (fax)
Banco Espirito Santo, S.A. New York Branch
Credit Contact:
320 Park Avenue
New York, NY 10022
Attn: Terry Hull
212-702-3430
212-750-3999 (fax)
Administrative/ Operations Contact:
320 Park Avenue
New York, NY 10022
Attn: Lori Thompson
212-702-3466
212-980-1777 (fax)
Bank Hapoalim B.M.
Credit Contact:
225 N. Michigan Ave., Suite 900
Chicago, IL 60601
Attn: Michael J. Kearney, Vice President
312-228-6425
312-228-6490 (fax)
and
Attn: Michael J. Byrne, Vice President, Sr. Lending Officer
312-228-6410
312-228-6490 (fax)
Administrative/ Operations Contact:
Attn: Karen M. Adams, Loan Administrator
312-228-6453
312-228-6490 (Fax)
Bank of Montreal
Credit Contact:
115 South LaSalle Street
13th Floor West
Chicago, IL 60603
Attn: Pamela Schwartz
312-750-4300
The Bank of New York
Credit Contact:
One Wall Street, 19th Floor
New York, NY 10286
Attn: Richard A. Raffetto, Vice President
212-635-8044
212-635-1208/09 (fax)
Administrative/ Operations and Bid Loan Contact:
Attn: Yvonne M. Forbes, Assitant Treasurer
212-635-6691
212-635-7926 (fax)
The Bank of Tokyo-Mitsubishi, Ltd., Chicago Branch
Credit Contact:
90 South Seventh Street
5100 Norwest Center
Minneapolis, MN 55402-4122
Attn: Jeffrey R. Arnold, Vice President and Manager
612-333-0505
612-333-3735 (fax)
Administrative/ Operations Contact:
Attn: Janice Henning, Loan Administration
312-696-4710
312-696-4532 (fax)
254009 BTMCGO
Bid Loan Contact:
Attn: Jeffrey R. Arnold
612-333-0505
612-333-3735 (fax)
BankBoston, N.A.
Credit and Bid Loan Contact:
100 Federal Street
Mail Stop 01-10-01
Boston, MA 02110
Attn: Esteban Arrondo, Vice President
617-434-8976
617-434-0601
[email protected] (e-mail)
Administrative/ Operations Contact:
100 Federal Street
Mail Stop 01-10-01
Boston, MA 02110
Attn: Monica Adler, Senior Account Manager
617-434-3119
617-434-0601 (fax)
Banque Nationale de Paris
Credit Contact:
209 South LaSalle Street
Chicago, IL 60604
Attn: Jo Ellen Bender, Senior Vice President
312-977-2225
312-977-1380 (fax)
Administrative/ Operations Contact:
209 South LaSalle Street
Chicago, IL 60604
Attn: Catherine Lui, Assistant Vice President
312-977-1386
312-977-2234 (fax)
Bid Loan Contact:
209 South LaSalle Street
Chicago, IL 60604
Attn: Tim Alvord, Loan Administrator
312-977-2250
312-977-2234 (fax)
Commerzbank Aktiengesellschaft,
New York and Grand Cayman Branches
Credit Contact:
20 South Clark Street - Suite 2700
Chicago, IL 60603
Attn: Mr. J. Timothy Shortly
(312) 795-1620
(312) 236-2827 (fax)
Administrative/ Operations Contact:
Two World Financial Center
New York, NY 10281-1050
Attn: Mr. Al Caputo
212-266-7694
212-266-7772 (fax)
Bid Loan Contact:
20 South Clark Street - Suite 2700
Chicago, IL 60603
Attn: Mr. J. Timothy Shortly
312-795-1620
312-236-2827 (fax)
Credit Agricole Indosuez
Credit Contact:
55 E. Monroe- Suite 4700
Chicago, IL 60603
Attn: Richard Drennan, Vice President
312-917-7441
312-372-9329 (fax)
Administrative/ Operations and Bid Loan Contact:
Credit Administration
55 E. Monroe, 47th Floor
Chicago, IL 60603
Attn: Susan Kolodziey
312-917-7560
312-372-4421 (fax)
Credit Lyonnais Chicago Branch
Credit Contact:
227 W. Monroe Street - Suite 3800
Chicago, IL 60606
Attn: Corey Billups
312-220-7309
312-641-0527 (fax)
Administrative/ Operations and Bid Loan Contact:
Credit Lyonnais Chicago Branch
227 W. Monroe Street, suite 3800
Chicago, IL 60606
Attn: Michelle Evans
312-220-7319
312-641-5834 (fax)
Credit Suisse First Boston
Credit Contact:
11 Madison Avenue - 20th Floor
New York, NY 10010
Attn: David Kratovil
212-325-9155
212-325-8615
[email protected]
Administrative/ Operations Contact:
5 World Trade Center, 8th Floor
New York New York 10048
Attn: Ron Davis
212-325-1965
212-335-0593 (fax)
Bid Loan Contact:
Janko Gogolja
11 Madison Avenue, 20th Floor
New York, NY 10010
212-325-0699
212-325-8319 (fax)
First Union National Bank
Credit and Bid Loan Contact:
301 S. College Street
Charlotte, NC 28288-0745
Attn: Peter D. Steffen
704-383-9214
704-383-7236 (fax)
Administrative/ Operations Contact:
201 S. College Street
Charlotte, NC 28288-1183
Attn: Todd Tucker, CSNA
704-383-0905
704-383-7999 (fax)
Firstar Bank of Minnesota, N.A.
Credit and Bid Loan Contact:
101 E. Fifth Street, 12th Floor
St. Paul, MN 55101-1860
Attn: Dennis Ruggles, Vice President
651-229-6641
651-298-6026 (fax)
Administrative/ Operations Contact:
Firstar Bank of Minnesota
101 E. Fifth Street, 12th Floor
St. Paul, MN 55101-1860
Attn: Patricia Hollier, Administrative Assistant
651-225-3843
651-298-6026 (fax)
Fleet National Bank
Credit Contact:
One Federal Street
Mail Stop MA-OF-DO7K
Boston, MA 02211
Attn: David Harnisch
617-346-0597
617-346-0145 (fax)
Administrative/ Operations Contact:
One Federal Street
MA OF DO7K
Boston, MA 02211
Attn: Jung Vetters, Loan Administrator
617-346-4928
617-346-0595 (fax)
The Industrial Bank of Japan, Limited
Credit Contact:
227 West Monroe Street - Suite 2600
Chicago, IL 60606
Attn: Koichi Zaiki
312-855-8254
312-855-8200 (fax)
Administrative/ Operations Contacts:
Credit Administration #1 Department
1251 Avenue of the Americas
New York, New York 10020-1104
Attn: Agnes Aberin
212-282-4061
212-282-4478 (fax)
and
Attn: Richard Emmich, Vice President
212-282-4092
212-282-4478 (fax)
Mellon Bank, N.A.
Credit Contact:
1 Mellon Bank Center
Room 370
Pittsburgh, PA 15258-0001
Attn: Louis Flori, Relationship Manager
412-234-7298
412-236-1914 (fax)
Administrative/ Operations Contact:
3 Mellon Bank Center
Pittsburgh, PA 15259
Attn: Richard Bouchard, Loan Administrator
412-234-5767
412-209-6117 (fax)
Michigan National Bank
Credit Contact:
27777 Inkster Road
Farmington Hills, MI 48333
Mail Code 10-36
Attn: Annette Gordon, Relationship Manager
248-473-4337
248-473-4345
[email protected] (e-mail)
Administrative/ Operations Contact:
27777 Inkster Road
Farmington Hills, MI 48333
Mail Code 10-36
Attn: Jessie Massey, Secretary
248-473-4379
248-473-4345 (fax)
National City Bank
Credit Contact:
20 N. Wacker Drive - Suite 3012
Chicago, IL 60606
Attn: Matthew R. Klinger, Asst. Vice President
312-739-0953
312-240-0301 (fax)
[email protected] (e-mail)
Administrative/ Operations and Bid Loan Contact:
23000 Mill Creek Blvd.
Highland Hills, OH 44122
Attn: Revette Vickerstaff, Manager
216-488-7080
216-488-7110
Sanwa Bank Limited
Credit Contact:
10 S. Wacker Drive
Chicago, IL 60606
Attn: Ken Eichwald, First Vice President
312-368-3006
312-346-6677 (fax)
Administrative/ Operations Contact:
55 East 52nd Street
24th Floor
New York, New York 10055
Attn: Renko Hara, Assistant Vice President
212-339-6390
212-754-2368 (fax)
SunTrust Bank, Central Florida, N.A.
Credit Contact:
200 South Orange Avenue
Orlando, FL 32801
Attn: Joseph B. Kabourek
407-237-4284
407-237-6894 (fax)
Administrative/ Operations and Bid Loan Contact:
Attn: Joanna Contreras
407-237-5283
407-237-5342 (fax)
Wells Fargo Bank, National Association
Credit Contact:
Sixth & Marquette
MAC-N9305-031
Minneapolis, MN 55479
Attn: Robert Carino
612-667-3751
612-667-4145 (fax)
Administrative/ Operations Contact:
201 Third St.
MAC-0187-081
San Francisco, CA 94103
Attn: Ginnie Padgett, VP/Manager
415-477-5374
415-979-0675 (fax)
Bid Loan Contact:
Sixth & Marquette
MAC N9305-031
Minneapolis, MN 55479
Attn: Ethel Phillips, Relationship Associate
612-667-0803
612-667-4145 (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 Morgan 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 Morgan 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:______________________
LONG TERM CREDIT AGREEMENT
dated as of September 2, 1999
among
PENTAIR, INC.,
PENTAIR UK LIMITED,
PENTAIR CANADA INC.,
EUROPENTAIR GMBH,
Various Financial Institutions,
BANC ONE CAPITAL MARKETS, INC.,
as Syndication Agent,
U.S. BANK NATIONAL ASSOCIATION
and
MORGAN GUARANTY TRUST COMPANY OF NEW YORK,
as Co-Documentation Agents,
THE FIRST NATIONAL BANK OF CHICAGO, LONDON BRANCH,
as UK Lender,
FIRST CHICAGO NBD BANK, CANADA,
as Canadian Lender,
BANK OF AMERICA, N.A.,
as German Lender,
U.S. BANK NATIONAL ASSOCIATION,
as Swing Line Lender,
and
BANK OF AMERICA, N.A.,
as Administrative Agent and Issuing Bank
BANC OF AMERICA SECURITIES, LLC
and
BANC ONE CAPITAL MARKETS, INC.
Co-Lead Arrangers and Co-Book Managers
<PAGE>
TABLE OF CONTENTS
ARTICLE IDefinitions and Terms 1
1.01 Definitions 1
1.02 Rules of Interpretation 16
ARTICLE IIThe Committed Facility 18
2.01 Commitments 18
2.02 Procedure for Committed Borrowings 18
2.03 Conversion and Continuation Elections for
Committed Borrowings 19
2.04 Interest on Committed Loans 20
2.05 Optional Prepayments 21
2.06 Reduction or Termination of the Commitments 21
2.07 Optional Increase in Total Commitment 21
ARTICLE IIIThe UK Subfacility 23
3.01 UK Commitment 23
3.02 Procedure for UK Borrowings 23
3.03 Continuation Elections for UK Loans 23
3.04 Interest on UK Loans 23
3.05 Prepayments of UK Loans 24
3.06 Participations in UK Loans 24
ARTICLE IVThe Canadian Subfacility 26
4.01 Canadian Commitment 26
4.02 Procedure for Canadian Borrowings 26
4.03 Conversion and Continuation Elections for
Canadian Loans 26
4.04 Interest on Canadian Loans 27
4.05 Prepayments of Canadian Loans 28
4.06 Participations in Canadian Loans 28
4.07 Maximum Rate of Return 29
ARTICLE VThe German Subfacility 30
5.01 German Commitment 30
5.02 Procedure for German Borrowings 30
5.03 Continuation Elections for German Loans 30
5.04 Interest on German Loans 31
5.05 Prepayments of German Loans 31
5.06 Participations in German Loans 31
ARTICLE VIThe Swing Line Subfacility 33
6.01 Swing Line Commitment 33
6.02 Procedure for Swing Line Borrowings 33
6.03 Interest on Swing Line Loans 33
6.04 Prepayments of Swing Line Loans 33
6.05 Participations in Swing Line Loans 34
6.06 Refunding of Swing Line Loans 34
6.07 Funding Participations in Swing Line Loans 34
ARTICLE VIIThe Letter of Credit Subfacility 36
7.01 Letters of Credit 36
7.02 Issuance, Amendment and Renewal of Letters of
Credit 37
7.03 Participations, Drawings and Reimbursements 39
7.04 Repayment of Participations 41
7.05 Role of the Issuing Bank 41
7.06 Obligations Absolute 42
7.07 Letter of Credit Fees 43
7.08 Uniform Customs and Practice 43
7.09 Letters of Credit for the Account of Subsidiaries 44
ARTICLE VIIICompetitive Bid Facility 45
8.01 Competitive Bid Loans 45
8.02 Procedures for Bid Borrowings 45
ARTICLE IXGeneral Credit Terms 49
9.01 Repayment 49
9.02 Payment of Interest 49
9.03 Payments 49
9.04 Adjustment of Sublimits 49
9.05 Loan Accounts 49
9.06 Notes 50
9.07 Fees 50
9.08 Computation of Fees and Interest 50
9.09 Currency Exchange Fluctuations 51
9.10 Participation Obligations Unconditional 51
9.11 Order and Proration of Payments 52
9.12 Judgment Currency 53
ARTICLE XChange in Circumstances 55
10.01 Increased Cost and Reduced Return 55
10.02 Limitation on Types of Loan 56
10.03 Changes in Law Rendering Eurocurrency Loans
Unlawful 56
10.04 Funding Losses 57
10.05 Taxes 58
10.06 Right of Lenders to Fund through Other Offices 60
10.07 Discretion of Lenders as to Manner of Funding 60
10.08 Mitigation of Circumstances; Replacement of
Affected Lender 60
10.09 Economic and Monetary Union in the European
Community 61
10.10 Conclusiveness of Statements; Survival of
Provisions 61
ARTICLE XIConditions To Credit Extensions 62
11.01 Initial Credit Extension 62
11.02 All Credit Extensions 63
11.03 Certain Credit Extensions 63
ARTICLE XIIRepresentations and Warranties 65
12.01 Corporate Existence and Power 65
12.02 Corporate and Governmental Authorization;
Contravention 65
12.03 Binding Effect 65
12.04 Financial Information 66
12.05 Litigation 66
12.06 Compliance with ERISA 66
12.07 Taxes 67
12.08 Subsidiaries 67
12.09 Not an Investment Company 67
12.10 Environmental Matters 67
12.11 Year 2000 67
12.12 Insurance 67
12.13 Default 67
12.14 Use of Proceeds 67
ARTICLE XIIICovenants 68
13.01 Information 68
13.02 Maximum Leverage Ratio 69
13.03 Minimum Interest Coverage Ratio 69
13.04 Negative Pledge 70
13.05 Consolidations, Mergers and Sales of Assets;
Acquisitions 71
13.06 Subsidiary Debt 71
13.07 Use of Proceeds 72
13.08 Compliance with Law 72
13.09 Securitization Transactions 72
13.10 Insurance 72
13.11 Opinions of Counsel 72
13.12 Ownership of Borrowers 72
ARTICLE XIVEvent of Default 73
14.01 Events of Default 73
14.02 Notice of Default 75
14.03 Cash Collateral for Letters of Credit 75
ARTICLE XVThe Administrative Agent 76
15.01 Appointment and Authorization 76
15.02 Delegation of Duties 76
15.03 Liability of Administrative Agent 77
15.04 Reliance by Administrative Agent 77
15.05 Notice of Default 77
15.06 Credit Decision 78
15.07 Indemnification of Administrative Agent 78
15.08 Administrative Agent in Individual Capacity 79
15.09 Successor Administrative Agent 79
15.10 Withholding Tax 80
15.11 Funding Reliance 80
15.12 Other Agents 81
ARTICLE XVIMiscellaneous 82
16.01 Notices 82
16.02 No Waiver 82
16.03 Expenses; Documentary Taxes; Indemnification 82
16.04 Amendments and Waivers 83
16.05 Collateral 84
16.06 Successors and Assigns 84
16.07 Governing Law 87
16.08 Counterparts; Effectiveness 87
16.09 Borrowers' Agent 87
16.10 Confidentiality 88
16.11 Waiver of Jury Trial 88
16.12 Consent to Jurisdiction 88
ARTICLE XVIIGuaranty 90
17.01 Guaranty 90
17.02 Guaranty Unconditional 90
17.03 Discharge only upon Payment in Full;
Reinstatement in Certain Circumstances 91
17.04 Waiver by Company 91
17.05 Subrogation 91
17.06 Stay of Acceleration 91
ARTICLE XVIII Termination of Existing Agreement 92
Schedules
Schedule 1.01 Pricing Schedule
Schedule 1.02 Associated Costs
Schedule 2.01 Commitments and Pro Rata Shares
Schedule 11.03 Matters To Be Included and Opinions of
Foreign Legal Council to Borrowers
Schedule 12.05 Litigation
Schedule 13.04 Liens
Schedule 16.01 Notice Addresses
Exhibits
Exhibit A Form of Note (Section 1.01)
Exhibit B Form of Notice of Committed Borrowing (Section 1.01)
Exhibit C-1 Form of Notice of Conversion/Continuation(Company)
(Section 1.01)
Exhibit C-2 Form of Notice of Conversion/Continuation (Pentair
Canada) (Section 1.01)
Exhibit D Form of Competitive Bid Request (Section 8.02)
Exhibit E Form of Invitation for Competitive Bids (Section 1.01)
Exhibit F Form of Competitive Bid (Section 8.02)
Exhibit G-1 Form of Request for Increase in Commitments (Section 2.07)
Exhibit G-2 Form of Request for Consent to Increase (Section 2.07)
Exhibit G-3 Form of Request for Additional Committed Lender
(Section 2.07)
Exhibit H Form of Assignment and Acceptance (Section 1.01)
<PAGE>
LONG TERM CREDIT AGREEMENT
THIS LONG TERM CREDIT AGREEMENT dated as of September
2, 1999 (this "Agreement") is among PENTAIR, INC. (the "Company");
PENTAIR UK LIMITED ("Pentair UK"); PENTAIR CANADA INC.
("Pentair Canada"); EUROPENTAIR GmbH ("EuroPentair"; the Company,
Pentair UK, Pentair Canada and EuroPentair are sometimes referred to
collectively as the "Borrowers" or each individually as a "Borrower"); the
financial institutions which from time to time are parties hereto as lenders
under the Committed Facility (collectively the "Committed Lenders" and
each individually a "Committed Lender"); THE FIRST NATIONAL BANK
OF CHICAGO, LONDON BRANCH, in its capacity as lender under the UK
subfacility (the "UK Lender"); FIRST CHICAGO NBD BANK, CANADA,
in its capacity as lender under the Canadian subfacility (the "Canadian
Lender"); BANK OF AMERICA, N.A., in its capacity as lender under the
German subfacility (the "German Lender"); BANK OF AMERICA, N.A., as
Issuing Bank; U.S. BANK NATIONAL ASSOCIATION, as Swing Line
Lender; BANK ONE CAPITAL MARKETS, INC., as Syndication Agent;
U.S. BANK NATIONAL ASSOCIATION and MORGAN 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$425,000,000, with
subfacilities for (i) loans to Pentair UK by the UK Lender, (ii) loans to
Pentair Canada by the Canadian Lender, (iii) loans to EuroPentair by the
German Lender, (iv) letters of credit issued by the Issuing Bank and (v) swing
line loans to the Company by the Swing Line Lender 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:
<PAGE>
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 8.02(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 Eurocurrency Rate means, for any Interest Period for a
Eurocurrency Loan made to the Company, a rate of interest per annum
determined pursuant to the following formula:
Adjusted Eurocurrency = Eurocurrency 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 XV.
Affected Lender means any Committed Lender which has made a
claim for compensation under Section 10.01 or 10.05 or has given a notice
(which has not been withdrawn) of the type described in Section 10.02 or
10.03.
Affected Loan - see Section 10.03.
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 Currency means, with respect to any Loan, the currency
in which such Loan is denominated.
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 16.06.
Assignment and Acceptance means an Assignment and Acceptance
substantially in the form of Exhibit H.
Associated Costs Rate means a rate per annum determined in
accordance with Schedule 1.02.
Available Currency means (i) with respect to Committed Loans to the
Company, British Pounds Sterling, Canadian Dollars, French Francs,
German Deutsche Marks and Euros, and (ii) with respect to the German
Loans, German Deutsche Marks, French Francs and Euros.
Bank of America means Bank of America, N.A.
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
Committed Lenders and having the same Interest Period.
Bid Loan means a Loan made in US Dollars by a Committed Lender
to the Company under Article VIII.
Borrower - see the Preamble.
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.
British Pounds Sterling means the lawful currency of the United
Kingdom of Great Britain and Northern Ireland.
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 Eurocurrency
Loan, any day that is also a day for trading by and between banks in the
Applicable Currency in the applicable interbank eurocurrency market; and (ii)
with respect to all matters relating to UK Loans, Canadian Loans or the
German Loans, a day on which the UK Lender, the Canadian Lender or the
German Lender, as the case may be, is open for business at its Payment
Office.
Canadian Dollars or CAN $ means the lawful currency of Canada.
Canadian Lender - see the Preamble.
Canadian Loan - see Section 4.01.
Canadian Participation Funding Notice means a written notice from
the Canadian Lender informing the Administrative Agent that an Event of
Default has occurred and is continuing and directing the Administrative
Agent to notify all Committed Lenders to fund their participations in the
Canadian Loans as provided in Section 4.06.
Canadian Sublimit means US$20,000,000, as such amount may be
adjusted from time to time pursuant to Section 9.04.
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 11.01 and 11.02 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 Committed
Lenders in accordance with their Pro Rata Shares and, in the case of a
borrowing of Eurocurrency Loans, in the same currency and having the same
Interest Period.
Committed Lender - see the Preamble.
Committed Loan means a loan made by a Committed Lender to the
Company pursuant to Article II.
Commitment means, with respect to any Committed Lender, its
commitment to make Committed Loans and to participate in the various
subfacilities 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 Committed Lender to make a
Bid Loan in accordance with subsection 8.02(c).
Competitive Bid Request - see Section 8.02.
Computation Date means the last Business Day of each calendar
month, each date on which a Borrower borrows, converts or continues any
Loan hereunder and each date on which the Dollar Equivalent principal
amount of an Affected Loan is required to be determined under Section
10.03.
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 or a Canadian Loan is converted from a Loan of any Type to the other
Type or is continued as a Eurocurrency Loan for a new Interest Period.
Credit Extension means the making of a Loan or the issuance of a
Letter of Credit hereunder.
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.
Euro - see Section 10.09.
Eurocurrency Loan means a Loan for which the rate of interest is
determined by reference to the Eurocurrency Rate or the Adjusted
Eurocurrency Rate.
Eurocurrency Rate means, for any Eurocurrency Loan for any Interest
Period,
(a) in the case of a US Dollar Eurocurrency Loan, 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 US Dollar Eurocurrency 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; and
(b) in the case of a UK Loan, (i) the rate per annum which appears
on the Reuters Screen LIBO Page as the London interbank offered rate for
deposits in British Pounds Sterling at approximately 11:00 A.M. (London,
England time) on the first day of such Interest Period for a term comparable
to such Interest Period; provided that if more than one applicable rate is
specified on the Reuters Screen LIBO Page, the rate shall be the arithmetic
mean of all such rates; or (ii) if for any reason the rate described in clause
(i) is not available, the rate per annum (carried to five decimal places)
determined by the UK Lender as the rate at which deposits in British Pounds
Sterling in the approximate amount of such UK Loan, and having a maturity
comparable to such Interest Period, are offered by the UK Lender to major
banks in the interbank market at approximately 11:00 A.M. (London,
England time) on the first day of such Interest Period.
(c) in the case of any other Eurocurrency Loan, the rate per annum
determined by the Administrative Agent (or, in the case of UK Loans,
Canadian Loans or German Loans, by the UK Lender, Canadian Lender or
German Lender, respectively) as (i) the rate which appears on Telerate Page
3750 or the other appropriate Telerate Page (or any successor page) as the
London interbank offered rate for deposits in the Applicable Currency at
approximately 11:00 A.M. (London, England time) two Business Days prior
to the first day of such Interest Period for a term comparable to such Interest
Period; or (ii) if for any reason the rate described in clause (i) is not
available, the rate per annum which appears on the Reuters Screen LIBO Page as
the London interbank offered rate for deposits in the Applicable Currency at
approximately 11:00 A.M. (London, England time) two Business Days prior
to the first day of such Interest Period for a term comparable to such Interest
Period; provided that if more than one applicable rate is specified on the
Reuters Screen LIBO Page, the rate shall be the arithmetic mean of all such
rates (carried to five decimal places).
EuroPentair - see the Preamble.
Event of Default means any event described in Section 14.01.
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 Morgan Guaranty Trust Company of
New York as G-7 Currency Administrative Agent.
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.
Fronting Margin means a rate determined in accordance with
Schedule 1.01.
Foreign Overnight Rate means, for any day with respect to any
amount in any currency (other than US Dollars), the rate of interest per
annum at which overnight deposits in such currency, in an amount
approximately equal to the amount with respect to which such rate is being
determined, would be offered for such day to major banks in the London or
other applicable offshore interbank market by (i) in the case of an amount
payable by or to the UK Lender, the Canadian Lender or the German Lender,
such Lender, and (ii) in the case of any other amount, Bank of America's
London Branch.
FRB means the Board of Governors of the Federal Reserve System
(or any successor).
French Francs means the official currency of the Republic of France.
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.
German Deutsche Marks or DM means lawful currency of Germany.
German Lender - see the Preamble.
German Loan - see Section 5.01.
German Participation Funding Notice means a written notice from the
German Lender informing the Administrative Agent that an Event of Default
has occurred and is continuing and directing the Administrative Agent to
notify all Committed Lenders to fund their participations in the German
Loans as provided in Section 5.06.
German Sublimit means US$50,000,000, as such amount may be
adjusted from time to time pursuant to Section 9.04.
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.
Honor Date - see subsection 7.03(b).
Indemnified Liabilities - see subsection 16.03(b).
Indemnified Person - see subsection 16.03(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 US Base Rate Loan or
Prime Rate Loan, the last Business Day of each calendar quarter; (b) as to any
Swing Line Loan, each Business Day (or, so long as the Committed Lenders
have not become obligated to purchase participations in Swing Line Loans
pursuant to Section 6.07, as otherwise agreed by the Company and the Swing
Line Lender), and (c) as to any other Loan, the last day of each Interest Period
applicable to such Loan and, in the case of any such Loan other than a Bid
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 Eurocurrency Loan, a period
commencing on the date such Eurocurrency Loan is made, continued or
converted and each subsequent period commencing on the last day of the
immediately preceding Interest Period for such Eurocurrency Loan and
ending, at the applicable Borrower'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 Eurocurrency 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.
Issue means, with respect to any Letter of Credit, to issue or to extend
the expiry of, or to renew or increase the amount of, such Letter of Credit;
and the terms "Issued," "Issuing" and "Issuance" have corresponding
meanings.
Issuing Bank means Bank of America in its capacity as issuer of one
or more Letters of Credit hereunder, together with any replacement therefor
in such capacity.
L/C Advance means each Lender's participation in any L/C
Borrowing in accordance with its Pro Rata Share.
L/C Amendment Application means an application form for
amendment of an outstanding Letters of Credit as shall at the relevant time
be in use by the Issuing Bank.
L/C Application means an application form for issuance of a standby
letter of credit as shall at the relevant time be in use by the Issuing Bank.
L/C Borrowing means an extension of credit resulting from a drawing
under any Letter of Credit which shall not have been reimbursed on the date
when made nor converted into an US Base Rate Loan under subsection
7.03(c).
L/C Fee Rate means a rate per annum determined in accordance with
Schedule 1.01.
L/C Obligations means at any time the sum of (a) the aggregate
undrawn Dollar Equivalent amount of all Letters of Credit then outstanding,
plus (b) the Dollar Equivalent amount of all unreimbursed drawings under all
Letters of Credit, including all outstanding L/C Borrowings.
L/C-Related Documents means the Letters of Credit, the L/C
Applications, the L/C Amendment Applications and any other document
relating to any Letter of Credit, including any of the Issuing Bank's standard
form documents for letter of credit issuances.
Lead Arranger means each of Banc of America Securities, LLC and
Banc One Capital Markets, Inc.
Lenders means the Committed Lenders, the UK Lender, the Canadian
Lender, the German Lender, the Swing Line Lender and the Issuing Bank;
and Lender means any of the foregoing.
Letter of Credit means any standby letter of credit Issued by the
Issuing Bank pursuant to Article VII.
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 13.01(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.
LIBO Rate means, for any Business Day, the offered rate for deposits
in US Dollars (rounded upwards, if necessary, to the nearest 1/16 of 1%), for
delivery of such deposits on such day, for a period of one month, which
appears on the Reuters Screen LIBO page as of the time selected by the
Swing Line Lender on such day. If at least two rates appear on the Reuters
Screen LIBO Page, the rate shall be the arithmetic mean of such rates
(rounded as provided above). If fewer than two rates appear, the rate may be
determined by the Swing Line Lender based on other services selected for
such purpose by the Swing Line Lender or based on rates offered to the
Swing Line Lender for US Dollar deposits in the interbank Eurodollar
market.
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, UK Loans, Canadian Loans, German
Loans, Swing Line Loans and Bid Loans; and Loan means any of the
foregoing.
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 any
Borrower 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 14.01(e)) lower than a Dollar Equivalent
amount of US$25,000,000, the lowest threshold amount under any such
financing.
Material Subsidiary means (a) each Borrower other than the Company
and (b) 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 (a) in the case of US Dollars,
US$5,000,000 or a higher integral multiple of US$1,000,000; and (b) in the
case of any Available Currency, an amount equal to US$5,000,000 or a
higher integral multiple of 1,000,000 units of such currency.
Moody's means Moody's Investors Service, Inc.
Note means a promissory note issued by a Borrower to a Lender
substantially in the form of Exhibit A, with appropriate insertions, evidencing
Loans by such Lender to such Borrower 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-1 of a continuation or conversion of Committed Loans
pursuant to subsection 2.03(b) or a notice substantially in the form of Exhibit
C-2 of the conversion or continuation of a Canadian Loan pursuant to
subsection 4.03(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 16.06(e).
Payment Office means, with respect to the Administrative Agent, the
UK Lender, the Canadian Lender, the German Lender and the Swing Line
Lender, as the context may require, the office of such Person specified on
Schedule 16.01 or such other office as such Person may from time to time
designate.
Payment Sharing Notice means any of (a) a Canadian Participation
Funding Notice, (b) a German Participation Funding Notice, (c) a UK
Participation Funding Notice or (d) a written notice from any Committed
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 9.11(b).
PBGC means the Pension Benefit Guaranty Corporation and any
successor thereto.
Pentair Canada - see the Preamble.
Pentair UK - see the Preamble.
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 13.02 and 13.03; 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.
Prime Rate means, for any day, the rate of interest per annum
designated by the Canadian Lender as its "prime rate" at its offices in
Toronto, Canada. The "prime rate" set by the Canadian Lender based upon
various factors including its 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 prime rate announced by the Canadian Lender shall take effect
at the opening of business on the day specified in the public announcement
of such change.
Prime Rate Loan means a Canadian Loan for which the rate of interest
is determined by reference to the Prime Rate.
Pro Rata Share means, with respect to any Committed 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
Committed Lender's Commitment divided by (ii) the Total
Commitment; and
(b) after termination of the Commitments, (i) the
aggregate Dollar Equivalent principal amount of such Committed
Lender's Loans plus the sum of the participations of such Committed
Lender in the aggregate Dollar Equivalent principal amount of all UK
Loans, Canadian Loans, German Loans, Swing Line Loans and
(without duplication) L/C Obligations, divided by (ii) the Total
Outstandings.
Required Lenders means Committed 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 Eurocurrency Loan
to the Company or any Swing Line 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).
Same Day Funds means (i) with respect to disbursements and
payments in US Dollars, immediately available funds, and (ii) with respect
to disbursements and payments in any other currency, same day or other
funds as may be determined by the Administrative Agent (or, with respect to
UK Loans, Canadian Loans and German Loans, the UK Lender, the Canadian
Lender or the German Lender, as the case may be) to be customary in the
place of disbursement or payment for the settlement of international banking
transactions in such currency.
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 McGraw-Hill
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.
Sublimit means each of the UK Sublimit, the Canadian Sublimit and
the German Sublimit.
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.
Swing Line Lender means U.S. Bank National Association in its
capacity as Swing Line Lender hereunder, together with any replacement
therefor in such capacity.
Swing Line Loan - see Section 6.01.
Swing Line Rate means for any day a rate per annum (rounded
upward, if necessary, to the nearest 1/16 of 1%) determined pursuant to the
following formula, which rate shall continue in effect until the next
succeeding Business Day:
Swing Line Rate = LIBO Rate
1.00 - Reserve Requirement
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) September ___,
2004 or (ii) the date on which the Commitments terminate or are reduced to
zero.
364-Day Credit Agreement means the 364-Day Credit Agreement
dated as of the date hereof among the Company, various financial institutions
and the Administrative Agent.
Total Commitment means the aggregate amount of the Commitments
of all Committed Lenders. The initial Total Commitment is
US$425,000,000.
Total Outstandings means at any time the aggregate US Dollar
Equivalent principal amount of all Loans plus (without duplication) the L/C
Obligations.
Type of Loan or Borrowing refers to the interest rate basis for a loan
or borrowing. The "Types" of Committed Loans or borrowings are US Base
Rate Loans or borrowings and Eurocurrency Loans or borrowings. The
"Types" of Canadian Loans are Prime Rate Loans and Eurocurrency Loans.
UK Deferral Date means the earlier of (a) March 3, 2000 or (b) the
date that is five Business Days after the date on which the Administrative
Agent and the Company shall have received notice from each Committed
Lender required under subsection 10.05(f) to submit a claim for relief from
United Kingdom income tax that such Committed Lender has been granted
such relief from United Kingdom income tax on (i) usage fees payable by
Pentair UK to such Committed Lender and (ii) interest which may at any
time be payable by Pentair UK to the UK Lender in which such Committed
Lender has a participating interest
UK Lender - see the Preamble.
UK Loan - see Section 3.01.
UK Participation Funding Notice means a written notice from the UK
Lender informing the Administrative Agent that an Event of Default has
occurred and is continuing and directing the Administrative Agent to notify
all Committed Lenders to fund their participations in the UK Loans as
provided in Section 3.06.
UK Sublimit means US$20,000,000, as such amount may be adjusted
from time to time pursuant to Section 9.04.
Unfunded Vested Liabilities means, with respect to any Plan at any
time, the amount (if any) by which (i) the present value of all vested
nonforfeitable benefits under such Plan exceeds (ii) the fair market value of
all Plan assets allocable to such benefits, all determined as of the then most
recent valuation date for such Plan, but only to the extent that such excess
represents a potential liability of the Company or any ERISA Affiliate to the
PBGC or such Plan under Title IV of ERISA.
Unmatured Event of Default means any event which if it continues
uncured will, with lapse of time or notice or both, constitute an Event of
Default.
Usage Fee Rate means a rate determined in accordance with Schedule
1.01.
US Base Rate means, for any day, the higher of: (a) 0.50% per
annum above the latest Federal Funds Rate; or (b) the rate of interest in
effect for such day as publicly announced from time to time by Bank of
America as its "reference rate." (The "reference rate" is a rate set by Bank of
America based upon various factors including Bank of America's costs and
desired return, general economic conditions and other factors, and is used as
a reference point for pricing some loans, which may be priced at, above or
below such announced rate.) Any change in the reference rate announced by
Bank of America shall take effect at the opening of business on the day
specified in the public announcement of such change.
US Base Rate Loan means a Committed Loan denominated in US
Dollars for which the rate of interest is determined by reference to the US
Base Rate.
US Dollar Eurocurrency Loans means Committed Loans which are
Eurocurrency Loans and are denominated in US Dollars.
US Dollars or US$ 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 XIII (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.
(g) In the event that pursuant to Section 10.09 hereof any amount
is borrowed and repaid in the Euro rather than any particular Applicable
Currency, then references to such Applicable Currency and all definitions
related to or derived from a reference to such Applicable Currency shall be
deemed to be, or be related to or derived from, references to the Euro, in the
sole discretion of the applicable Lender, and shall be deemed modified to the
extent necessary to effect the intent of this Agreement with respect to
borrowings in such Applicable Currency.
ARTICLE II
The Committed Facility
2.01 Commitments. Subject to the terms and conditions of this
Agreement, each Committed Lender severally agrees (a) to make Committed
Loans to the Company in US Dollars or any Available Currency from the
Closing Date until the Termination Date in such Committed Lender's Pro
Rata Share of such aggregate amounts as the Company may request from
time to time from all Committed Lenders; and (b) to participate in the various
subfacilities as more fully set forth below; provided that (i) the Total
Outstandings shall not at any time exceed the Total Commitment and (ii) the
aggregate Dollar Equivalent principal amount of all Committed Loans of any
Committed Lender plus such Committed Lender's Pro Rata Share of the
Dollar Equivalent principal amount of all UK Loans, Canadian Loans,
German Loans, Swing Line Loans and L/C Obligations shall not at any time
exceed such Committed 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 US Dollar Eurocurrency Loans; (ii) 11:00 A.M. (Chicago time)
three Business Days prior to the requested Borrowing Date, in the case of
Eurocurrency Loans in an Available Currency; and (iii) 11:00 A.M. (Chicago
time) on the requested Borrowing Date, in the case of US 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 Eurocurrency Loans, the
Applicable Currency (which shall be US Dollars or any Available
Currency) and the duration of the initial Interest Period therefor.
(b) Upon receipt of a Notice of Committed Borrowing, the
Administrative Agent will promptly notify each Committed Lender thereof
and of the amount of such Committed Lender's Pro Rata Share of the
Committed Borrowing.
(c) Each Committed 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 Administrative Agent's Payment
Office on the Borrowing Date requested by the Company in Same Day Funds
and in the requested currency (i) in the case of a Committed Borrowing
comprised of Committed Loans in US Dollars, by noon (Chicago time) and
(ii) in the case of a Committed Borrowing in any Available Currency, by such
time as the Administrative Agent may specify. 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 US Base
Rate Loans, or as of the last day of the applicable Interest Period, in
the case of US Dollar Eurocurrency Loans, to convert any Committed
Loans (or any part thereof in an amount not less than the Minimum
Tranche) into Committed Loans in US Dollars 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 and in
the same currency with a new Interest Period;
provided that if at any time the aggregate amount of US Dollar Eurocurrency
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 US Dollar Eurocurrency Loans shall automatically convert into
US 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 US Dollar Eurocurrency Loans are to be
continued for a new Interest Period or Committed Loans are to be converted
from US Base Rate Loans into US Dollar Eurocurrency Loans; (ii) 11:00
A.M. (Chicago time) three Business Days prior to the
Conversion/Continuation Date, if Committed Loans in any Available
Currency are to be continued as Eurocurrency Loans; and (iii) 10:00 A.M.
(Chicago time) on the Conversion/Continuation Date, if Committed Loans
are to be converted from US Dollar Eurocurrency Loans into US Base Rate
Loans. Each such notice shall specify:
(A) the proposed Conversion/Continuation Date;
(B) the aggregate amount and currency 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 US Base
Rate Loans, the duration of the requested Interest Period.
(c) If upon the expiration of any Interest Period applicable to US
Dollar Eurocurrency Loans, the Company has failed to timely select a new
Interest Period to be applicable to such US Dollar Eurocurrency Loans, the
Company shall be deemed to have elected to convert such US Dollar
Eurocurrency Loans into US Base Rate Loans effective as of the expiration
date of such Interest Period. If upon the expiration of any Interest Period
applicable to Committed Loans in any Available Currency, the Company has
failed to timely select a new Interest Period to be applicable to such
Committed Loans, the Company shall be deemed to have elected to continue
such Committed Loans as Eurocurrency Loans for a one-month Interest
Period.
(d) The Administrative Agent will promptly notify each
Committed Lender of its receipt of a Notice of Conversion/Continuation
pursuant to this Section 2.03 or, if no timely notice is provided by the
Company, the Administrative Agent will promptly notify each Committed
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 Committed 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 US Dollar Eurocurrency 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 US Base Rate Loan, at
a rate per annum equal to the US Base Rate; and
(b) so long as such Committed Loan is a Eurocurrency Loan, at
a rate per annum equal to the Adjusted Eurocurrency 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 Dollar
Equivalent principal amount of at least US$5,000,000 and an integral
multiple of 1,000,000 units of the Applicable Currency. 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 Eurocurrency Loans,
one Business Day in advance of the prepayment date, and (b) in the case of
US 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 Committed Lender of its
receipt of such notice and of such Committed Lender's Pro Rata Share of
such prepayment. Any prepayment of Eurocurrency 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 10.04.
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 Borrowers 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 (except pursuant to Section 2.07). Any reduction of the
Commitments shall be applied to reduce the Commitments of the Committed
Lenders pro rata in accordance with their respective Pro Rata Shares.
2.07 Optional Increase in Total Commitment.
(a) The Company may, no more than once a year, by
written notice to the Administrative Agent substantially in the form of
Exhibit G-1, request the Lenders to increase the Total Commitment, which
notice shall be accompanied by the resolutions of the board of directors of the
Company approving such increase certified by the Secretary or an Assistant
Secretary of the Company; provided that in no event shall the Total
Commitment be increased by more than US$50,000,000 in the aggregate (for
all increases pursuant to this Section 2.07) without the written consent of all
Lenders.
(b) Any optional increase shall be permitted only if (i) the
Company is in compliance with Sections 13.02 and 13.03 before and after
giving effect to such increase; and (ii) no Event of Default or Unmatured
Event of Default has occurred and is continuing.
(c) The Administrative Agent shall transmit any increase
request to each Committed Lender within one Business Day after its receipt
thereof. Each Committed Lender will have the option, in its sole discretion,
to subscribe for its Pro Rata Share of such requested increase. The
Committed Lenders shall respond in writing to the Company's request
through the Administrative Agent within 15 Business Days by submitting a
letter in the form of Attachment I to Exhibit G-1. Any Committed Lender not
responding within 15 Business Days shall be deemed to have declined to
participate in the increase request. At the option of the Company, any part of
the increase not so subscribed may be assumed, within 20 Business Days of
the Committed Lenders' response, by one or more existing Committed
Lenders or assumed by other financial institutions designated by the
Company and acceptable to the UK Lender, the Canadian Lender, the
German Lender, the Swing Line Lender, the Issuing Bank and the
Administrative Agent, which consents shall not be unreasonably withheld,
upon submission of a letter in the form of Exhibit G-2, in the case of an
existing Lender, or Exhibit G-3, in the case of a new party to this Agreement.
ARTICLE III
The UK Subfacility
3.01 UK Commitment. Subject to the terms and conditions of this
Agreement, the UK Lender agrees to make loans (each a "UK Loan" and
collectively the "UK Loans") in British Pounds Sterling to Pentair UK during
the period from the Closing Date to the Termination Date in a Dollar
Equivalent amount at any time outstanding not to exceed the UK Sublimit;
provided that the Total Outstandings shall not at any time exceed the Total
Commitment. Subject to the terms and conditions hereof, Pentair UK may
borrow under this Section 3.01, prepay under Section 3.05 and reborrow
under this Section 3.01 from time to time.
3.02 Procedure for UK Borrowings.
(a) Each UK Loan shall be made upon irrevocable written notice
from Pentair UK to the UK Lender and the Administrative Agent, which
notice must be received not later than 11:00 A.M. (London, England time) at
least two Business Days prior to the requested Borrowing Date (or such later
time as the UK Lender may approve in its sole discretion). Each such notice
shall specify (i) the amount of such UK Loan, which shall be British pounds
1,500,000 or higher integral multiple of British pounds 500,000;
(ii) the requested Borrowing Date, which shall be a Business Day; and
(iii) the duration of the initial Interest Period for such Loan.
(b) Unless the UK Lender has received (i) written notice from the
Administrative Agent prior to 9:00 A.M. (London, England time) on the
proposed Borrowing Date of any UK Loan directing the UK Lender not to
make such UK Loan because such UK Loan is not permitted under
Section 3.01 or (ii) written notice of the type and by the time described in
subsection 9.10(b) from any Committed Lender, the UK Lender may make
any requested UK Loan on the proposed Borrowing Date.
3.03 Continuation Elections for UK Loans. Pentair UK may elect
to continue any outstanding UK Loan for a new Interest Period by giving
irrevocable written notice to the Administrative Agent and the UK Lender not
later than 11:00 A.M. (London, England time) at least two Business Days
prior to the first day of such new Interest Period. Each such notice shall
specify the duration of such new Interest Period (or, if such UK Loan is to be
divided into two or more UK Loans which have different Interest Periods,
each such new Interest Period, provided that each such Loan shall be in the
principal amount of British pounds 1,500,000 or a higher integral multiple
of British pounds 500,000).
If upon the expiration of any Interest Period for a UK Loan, Pentair UK has
failed to timely select a new Interest Period for such UK Loan (and has not
given a timely notice of prepayment of such UK Loan), Pentair UK shall be
deemed to have elected to continue such UK Loan for a one-month Interest
Period.
3.04 Interest on UK Loans. Pentair UK shall pay interest on the
unpaid principal amount of each UK Loan, from the date such UK Loan is
made to the date such UK Loan is paid in full, at a rate per annum equal to
the Eurocurrency Rate for each applicable Interest Period plus the Associated
Costs Rate on the first day of such Interest Period plus the Fronting Margin.
3.05 Prepayments of UK Loans.
(a) If on any date the aggregate Dollar Equivalent principal
amount of all UK Loans exceeds the UK Sublimit, Pentair UK shall promptly
make a prepayment of UK Loans (in accordance with the procedures set forth
in subsection (b) below) in an amount equal to or greater than such excess.
(b) Pentair UK may from time to time prepay UK Loans in whole
or in part, in an amount equal to British pounds 1,500,000 or a higher
integral multiple of British pounds 500,000. Pentair UK will deliver a
notice of prepayment to be received by
the UK Lender not later than 10:00 A.M. (London, England time) two
Business Days in advance of the prepayment date, specifying the Loans to be
prepaid and the date and amount of such prepayment. Any prepayment of a
UK Loan 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 10.04.
3.06 Participations in UK Loans.
(a) Each Committed Lender agrees that it shall at all times have
a participation in, and acknowledges that it is irrevocably and unconditionally
obligated, upon receipt of notice that the Administrative Agent has received
a UK Participation Funding Notice, to fund (or to cause an Affiliate to fund)
its participation in, each outstanding UK Loan in an amount equal to its Pro
Rata Share of the amount of such UK Loan.
(b) The Administrative Agent shall promptly notify each
Committed Lender of its receipt of a UK Participation Funding Notice.
Promptly (and in any event within three Business Days) upon receipt of such
Notice, each Committed Lender shall (or shall cause an Affiliate to) make
available to the Administrative Agent for the account of the UK Lender an
amount in British Pounds Sterling and in Same Day Funds equal to its Pro
Rata Share of all outstanding UK Loans (it being understood that no
Committed Lender which is an Affiliate of the UK Lender shall be obligated
to make any amount available to the UK Lender unless otherwise required by
the UK Lender). If any Committed Lender so notified fails to make available
to the Administrative Agent for the account of the UK Lender the full amount
of such Committed Lender's participations in all UK Loans by the date which
is three Business Days after its receipt of such notice from the Administrative
Agent, then interest shall accrue on such Committed Lender's obligations to
fund such participations, from such date to the date such Committed Lender
pays such obligations in full, at a rate per annum equal to the Foreign
Overnight Rate in effect from time to time during such period.
(c) From and after the date on which the UK Lender has delivered
to the Administrative Agent a UK Participation Funding Notice, all funds
received by the UK Lender in payment of the UK Loans, interest accrued
thereon after the third Business Day following delivery of such notice and
other amounts payable in respect thereof shall be delivered by the UK Lender
to the Administrative Agent, in the same funds as those received by the UK
Lender, to be distributed to all Committed Lenders in accordance with their
Pro Rata Shares (i.e., giving effect to the funding of participations pursuant
to this Section 3.06), except that the Pro Rata Share of such funds of any
Committed Lender that has not funded its participations as provided herein
(and of any Committed Lender which is an Affiliate of the UK Lender) shall
be retained by the UK Lender.
(d) If the Administrative Agent or the UK Lender is required at
any time to return to Pentair UK, or to a trustee, receiver, liquidator or
custodian, or any official in any bankruptcy or insolvency proceeding, any
portion of any payment made by Pentair UK to the Administrative Agent or
the UK Lender in respect of any UK Loan or any interest or fee thereon, each
Committed Lender shall, on demand of the Administrative Agent, forthwith
return to the Administrative Agent for the account of the UK Lender the
amount of its Pro Rata Share of the amount so returned by the Administrative
Agent or the UK Lender plus interest thereon from the date such demand is
made to the date such amount is returned by such Committed Lender to the
Administrative Agent, at a rate per annum equal to the Foreign Overnight
Rate from time to time in effect.
(e) The Required Lenders, the UK Lender and the Administrative
Agent may agree on any other reasonable method (such as making
assignments of UK Loans) for sharing the risks of UK Loans ratably among
all Committed Lenders according to their Pro Rata Shares so long as such
method does not materially disadvantage any Committed Lender.
ARTICLE IV
The Canadian Subfacility
4.01 Canadian Commitment. Subject to the terms and conditions
of this Agreement, the Canadian Lender agrees to make loans (each a
"Canadian Loan" and collectively the "Canadian Loans") in Canadian Dollars
to Pentair Canada during the period from the Closing Date to the Termination
Date in a Dollar Equivalent amount at any time outstanding not to exceed the
Canadian Sublimit; provided that the Total Outstandings shall not at any time
exceed the Total Commitment. Subject to the terms and conditions hereof,
Pentair Canada may borrow under this Section 4.01, prepay under Section
4.05 and reborrow under this Section 4.01 from time to time.
4.02 Procedure for Canadian Borrowings.
(a) Each Canadian Loan shall be made upon irrevocable written
notice from Pentair Canada to the Canadian Lender and the Administrative
Agent, which notice must be received not later than (i) 10:00 A.M. (Toronto
time) at least two Business Days prior to the proposed date of such Loan, in
the case of a Eurocurrency Loan; and (ii) 10:00 A.M. (Toronto time) on the
proposed date of such Loan, in the case of a Prime Rate Loan (or, in each
case, such later time as the Canadian Lender may approve in its sole
discretion). Each such notice shall specify (i) the amount of such Canadian
Loan, which shall be CAN$1,000,000 or higher integral multiple of
CAN$100,000; (ii) the requested Borrowing Date, which shall be a Business
Day; (iii) the Type of Canadian Loan requested; and (iv) in the case of a
Eurocurrency Loan, the duration of the initial Interest Period for such Loan.
(b) Unless the Canadian Lender has received (i) written notice
from the Administrative Agent prior to 9:00 A.M. (Toronto time) on the
proposed Borrowing Date of any Canadian Loan directing the Canadian
Lender not to make such Canadian Loan because such Canadian Loan is not
permitted under Section 4.01 or (ii) written notice of the type and by the time
described in subsection 9.10(b) from any Committed Lender, the Canadian
Lender may make any requested Canadian Loan on the proposed Borrowing
Date.
(c) After giving effect to any Canadian Loan, there may not be
more than eight different Interest Periods for all Canadian Loans.
4.03 Conversion and Continuation Elections for Canadian Loans.
(a) Pentair Canada may, upon irrevocable written notice to the Canadian
Lender, in accordance with subsection 4.03(b):
(i) elect, as of any Business Day, in the case of a Prime Rate
Loan, or as of the last day of the applicable Interest Period, in the case of a
Eurocurrency Loan to Pentair Canada, to convert any Canadian Loan (or any
part thereof in an amount not less than CAN$1,000,000 and an integral
multiple of CAN$100,000) into a Canadian Loan of the other Type; or
(ii) elect, as of the last day of the applicable Interest
Period, to continue any Eurocurrency Loan to Pentair Canada having
an Interest Period expiring on such day (or any part thereof in an
amount not less than CAN$1,000,000 and an integral multiple of
CAN$100,000) as a Canadian Loan of the same Type with a new
Interest Period;
provided that if at any time the aggregate amount of any Canadian Loan
which is a Eurocurrency Loan is reduced, by payment, prepayment or
conversion of part thereof, to be less than the CAN$1,000,000, such
Eurocurrency Loan shall automatically convert into a Prime Rate Loan.
(b) Pentair Canada shall deliver a Notice of
Conversion/Continuation to be received by the Canadian Lender not later
than (i) 10:00 A.M. (Toronto time) two Business Days prior to the
Conversion/Continuation Date, if a Canadian Loan is to be converted from
a Prime Rate Loan into a Eurocurrency Loan; and (ii) 10:00 A.M. (Toronto
time) on the Conversion/Continuation Date, if a Canadian Loan is to be
converted from a Eurocurrency Loan into a Prime Rate Loan. Each such
notice shall specify:
(A) the proposed Conversion/Continuation Date;
(B) the amount of the Canadian Loan to be converted or
continued;
(C) the Type of Canadian Loan resulting from the
proposed conversion or continuation; and
(D) other than in the case of conversion into a Prime Rate
Loan, the duration of the requested Interest Period.
(c) If upon the expiration of any Interest Period applicable to a
Eurocurrency Loan to Pentair Canada, Pentair Canada has failed to timely
select a new Interest Period to be applicable to such Eurocurrency Loan,
Pentair Canada shall be deemed to have elected to convert such Eurocurrency
Loan into a Prime Rate Loan effective as of the expiration date of such
Interest Period. After giving effect to any conversion or continuation of a
Canadian Loan, there may not be more than eight different Interest Periods
for all Canadian Loans.
4.04 Interest on Canadian Loans. Pentair Canada shall pay interest
on the unpaid principal amount of each Canadian Loan, from the date such
Canadian Loan is made to the date such Canadian Loan is paid in full, as
follows:
(a) so long as such Canadian Loan is a Prime Rate Loan, at a rate
per annum equal to the Prime Rate; and
(b) so long as such Canadian Loan is a Eurocurrency Loan, at a
rate per annum equal to the Eurocurrency Rate for each
applicable Interest Period plus the Applicable Margin;
provided that, upon the request of the Canadian Lender at any time (and for
so long as) an Event of Default exists, the interest rate applicable to each
Canadian Loan shall be increased by 2%.
4.05 Prepayments of Canadian Loans.
(a) If on any date the aggregate Dollar Equivalent principal
amount of all Canadian Loans exceeds the Canadian Sublimit, Pentair
Canada shall promptly make a prepayment of Canadian Loans (in accordance
with the procedures set forth in subsection (b) below) in an amount equal to
or greater than such excess.
(b) Pentair Canada may from time to time prepay Canadian Loans
in whole or in part, in an amount equal to CAN$1,000,000 or a higher
integral multiple of CAN$100,000. Pentair Canada shall deliver a notice of
prepayment to be received by the Canadian Lender not later than 10:00 A.M.
(Toronto time) (a) in the case of a Eurocurrency Loan to Pentair Canada, two
Business Days in advance of the prepayment date, and (b) in the case of a
Prime Rate Loan, on the prepayment date. Each such notice shall specify the
Loan to be prepaid and the date and amount of such prepayment. Any
prepayment of a Eurocurrency Loan 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 10.04.
4.06 Participations in Canadian Loans.
(a) Each Committed Lender agrees that it shall at all times have
a participation in, and acknowledges that it is irrevocably and unconditionally
obligated, upon receipt of notice that the Administrative Agent has received
a Canadian Participation Funding Notice, to fund (or to cause an Affiliate to
fund) its participation in, each outstanding Canadian Loan in an amount equal
to its Pro Rata Share of the amount of such Canadian Loan.
(b) The Administrative Agent shall promptly notify each
Committed Lender of its receipt of a Canadian Participation Funding Notice.
Promptly (and in any event within three Business Days) upon receipt of such
Notice, each Committed Lender shall (or shall cause an Affiliate to) make
available to the Administrative Agent for the account of the Canadian Lender
an amount in Canadian Dollars and in Same Day Funds equal to its Pro Rata
Share of all outstanding Canadian Loans (it being understood that no
Committed Lender which is an Affiliate of the Canadian Lender shall be
obligated to make any amount available to the Canadian Lender unless
otherwise required by the Canadian Lender). If any Committed Lender so
notified fails to make available to the Administrative Agent for the account
of the Canadian Lender the full amount of such Committed Lender's
participations in all Canadian Loans by the date which is three Business Days
after its receipt of such notice from the Administrative Agent, then interest
shall accrue on such Committed Lender's obligations to fund such
participations, from such date to the date such Committed Lender pays such
obligations in full, at a rate per annum equal to the Foreign Overnight Rate
in effect from time to time during such period.
(c) From and after the date on which the Canadian Lender has
delivered to the Administrative Agent a Canadian Participation Funding
Notice, all funds received by the Canadian Lender in payment of the
Canadian Loans, interest accrued thereon after the third Business Day
following delivery of such notice and other amounts payable in respect
thereof shall be delivered by the Canadian Lender to the Administrative
Agent, in the same funds as those received by the Canadian Lender, to be
distributed to all Committed Lenders in accordance with their Pro Rata
Shares (i.e., giving effect to the funding of participations pursuant to this
Section 4.06), except that the Pro Rata Share of such funds of any Committed
Lender that has not funded its participations as provided herein (and of any
Committed Lender which is an Affiliate of the Canadian Lender) shall be
retained by the Canadian Lender.
(d) If the Administrative Agent or the Canadian Lender is required
at any time to return to Pentair Canada, or to a trustee, receiver, liquidator
or custodian, or any official in any bankruptcy or insolvency proceeding, any
portion of any payment made by Pentair Canada to the Administrative Agent
or the Canadian Lender in respect of any Canadian Loan or any interest or fee
thereon, each Committed Lender shall, on demand of the Administrative
Agent, forthwith return to the Administrative Agent for the account of the
Canadian Lender the amount of its Pro Rata Share of the amount so returned
by the Administrative Agent or the Canadian Lender plus interest thereon
from the date such demand is made to the date such amount is returned by
such Committed Lender to the Administrative Agent, at a rate per annum
equal to the Foreign Overnight Rate from time to time in effect.
(e) The Required Lenders, the Canadian Lender and the
Administrative Agent may agree on any other reasonable method (such as
making assignments of Canadian Loans) for sharing the risks of Canadian
Loans ratably among all Committed Lenders according to their Pro Rata
Shares so long as such method does not materially disadvantage any
Committed Lender.
4.07 Maximum Rate of Return. Notwithstanding any provision to
the contrary contained in this Agreement, in no event shall the aggregate
"interest" (as defined in Section 347 of the Criminal Code, Revised Statutes
of Canada, 1985, C. 46 as the same may be amended, replaced or re-enacted
from time to time) payable under this Agreement in respect of Canadian
Loans exceed the effective annual rate of interest on the "credit advanced" (as
defined in such Section 347) under this Agreement in respect of such Loans
lawfully permitted under such Section 347 and, if any payment, collection or
demand pursuant to this Agreement in respect of "interest" (as defined in
such Section 347) is determined to be contrary to the provisions of such
Section, such payment, collection or demand shall be deemed to have been
made by mutual mistake of Pentair Canada and the Canadian Lender and the
amount of such payment or collection shall be refunded to Pentair Canada;
for purposes of this Agreement, the effective annual rate of interest shall be
determined in accordance with generally accepted actuarial practices and
principles over the term of the applicable credit advanced on the basis of
annual compounding of the lawfully permitted rate of interest and, in the
event of dispute, a certificate of a Fellow of the Canadian Institute of
Actuaries appointed by the Canadian Lender will be conclusive for the
purposes of such determination.
ARTICLE V
The German Subfacility
5.01 German Commitment. Subject to the terms and conditions of
this Agreement, the German Lender agrees to make loans (each a "German
Loan" and collectively the "German Loans") in German Deutsche Marks,
French Francs or Euro to EuroPentair during the period from the Closing
Date to the Termination Date in a Dollar Equivalent amount at any time
outstanding not to exceed the German Sublimit; provided that the Total
Outstandings shall not at any time exceed the Total Commitment. Subject
to the terms and conditions hereof, EuroPentair may borrow under this
Section 5.01, prepay under Section 5.05 and reborrow under this Section
5.01 from time to time.
5.02 Procedure for German Borrowings.
(a) Each German Loan shall be made upon irrevocable written
notice from EuroPentair to the German Lender and the Administrative Agent,
which notice must be received not later than 11:00 A.M. (Frankfurt time) at
least three Business Days prior to the requested Borrowing Date (or such later
time as the German Lender may approve in its sole discretion). Each such
notice shall specify (i) the amount of such German Loan, which shall be a
Dollar Equivalent principal amount of US$5,000,000 or higher integral
multiple of 1,000,000 units of the Applicable Currency, (ii) the requested
Borrowing Date, which shall be a Business Day; (iii) the Applicable
Currency; and (iv) the duration of the initial Interest Period for such Loan.
(b) Unless the German Lender has received (i) written notice from
the Administrative Agent prior to 9:00 A.M. (Frankfurt time) on the proposed
Borrowing Date of any German Loan directing the German Lender not to
make such German Loan because such German Loan is not permitted under
Section 5.01 or (ii) written notice of the type and by the time described in
subsection 9.10(b) from any Committed Lender, the German Lender may
make any requested German Loan on the proposed Borrowing Date.
(c) After giving effect to any German Loan, there may not be
more than nine different Interest Periods for all German Loans.
5.03 Continuation Elections for German Loans. EuroPentair may
elect to continue any outstanding German Loan for a new Interest Period in
the same Applicable Currency by giving irrevocable written notice to the
Administrative Agent and the German Lender not later than 11:00 A.M.
(Frankfurt time) at least three Business Days prior to the first day of such
new Interest Period. Each such notice shall specify the duration of such new
Interest Period (or, if such German Loan is to be divided into two or more
German Loans which have different Interest Periods, each such new Interest
Period, provided that each such Loan shall be in the Dollar Equivalent
principal amount of US$5,000,000 or a higher integral multiple of 1,000,000
of the Applicable Currency) If upon the expiration of any Interest Period for
a German Loan, EuroPentair has failed to timely select a new Interest Period
for such German Loan (and has not given a timely notice of prepayment of
such German Loan), EuroPentair shall be deemed to have elected to continue
such German Loan for a one-month Interest Period. After giving effect to
any continuation of a German Loan, there may not be more than nine
different Interest Periods for all German Loans.
5.04 Interest on German Loans. EuroPentair shall pay interest on
the unpaid principal amount of each German Loan, from the date such
German Loan is made to the date such German Loan is paid in full, at a rate
per annum equal to the Eurocurrency Rate for each applicable Interest Period
plus the Fronting Margin.
5.05 Prepayments of German Loans.
(a) If on any date the aggregate Dollar Equivalent principal
amount of all German Loans exceeds the German Sublimit, EuroPentair shall
promptly make a prepayment of German Loans (in accordance with the
procedures set forth in subsection (b) below) in an amount equal to or greater
than such excess.
(b) EuroPentair may from time to time prepay German Loans in
whole or in part, in an Dollar Equivalent principal amount equal to
US$5,000,000 or a higher integral multiple of 1,000,000 units of the
Applicable Currency. EuroPentair will deliver a notice of prepayment to be
received by the German Lender not later than 11:00 A.M. (Frankfurt time)
one Business Day in advance of the prepayment date, specifying the Loans
to be prepaid and the date and amount of such prepayment. Any prepayment
of a German Loan 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 10.04.
5.06 Participations in German Loans.
(a) Each Committed Lender agrees that it shall at all times have
a participation in, and acknowledges that it is irrevocably and unconditionally
obligated, upon receipt of notice that the Administrative Agent has received
a German Participation Funding Notice, to fund (or to cause an Affiliate to
fund) its participation in, each outstanding German Loan in an amount equal
to its Pro Rata Share of the amount of such German Loan.
(b) The Administrative Agent shall promptly notify each
Committed Lender of its receipt of a German Participation Funding Notice.
Promptly (and in any event within three Business Days) upon receipt of such
Notice, each Committed Lender shall (or shall cause an Affiliate to) make
available to the Administrative Agent for the account of the German Lender
an amount in the Applicable Currency and in Same Day Funds equal to its
Pro Rata Share of all outstanding German Loans (it being understood that no
Committed Lender which is an Affiliate of the German Lender shall be
obligated to make any amount available to the German Lender unless
otherwise required by the German Lender). If any Committed Lender so
notified fails to make available to the Administrative Agent for the account
of the German Lender the full amount of such Committed Lender's
participations in all German Loans by the date which is three Business Days
after its receipt of such notice from the Administrative Agent, then interest
shall accrue on such Committed Lender's obligations to fund such
participations, from such date to the date such Committed Lender pays such
obligations in full, at a rate per annum equal to the Foreign Overnight Rate
in effect from time to time during such period.
(c) From and after the date on which the German Lender has
delivered to the Administrative Agent a German Participation Funding
Notice, all funds received by the German Lender in payment of the German
Loans, interest accrued thereon after the third Business Day following
delivery of such notice and other amounts payable in respect thereof shall be
delivered by the German Lender to the Administrative Agent, in the same
funds as those received by the German Lender, to be distributed to all
Committed Lenders in accordance with their Pro Rata Shares (i.e., giving
effect to the funding of participations pursuant to this Section 5.06), except
that the Pro Rata Share of such funds of any Committed Lender that has not
funded its participations as provided herein (and of any Committed Lender
which is an Affiliate of the German Lender) shall be retained by the German
Lender.
(d) If the Administrative Agent or the German Lender is required
at any time to return to EuroPentair, or to a trustee, receiver, liquidator or
custodian, or any official in any bankruptcy or insolvency proceeding, any
portion of any payment made by EuroPentair to the Administrative Agent or
the German Lender in respect of any German Loan or any interest or fee
thereon, each Committed Lender shall, on demand of the Administrative
Agent, forthwith return to the Administrative Agent for the account of the
German Lender the amount of its Pro Rata Share of the amount so returned
by the Administrative Agent or the German Lender plus interest thereon from
the date such demand is made to the date such amount is returned by such
Committed Lender to the Administrative Agent, at a rate per annum equal to
the Foreign Overnight Rate from time to time in effect.
(e) The Required Lenders, the German Lender and the
Administrative Agent may agree on any other reasonable method (such as
making assignments of German Loans) for sharing the risks of German Loans
ratably among all Committed Lenders according to their Pro Rata Shares so
long as such method does not materially disadvantage any Committed
Lender.
ARTICLE VI
The Swing Line Subfacility
6.01 Swing Line Commitment. Subject to the terms and conditions
of this Agreement, the Swing Line Lender agrees to make Loans to the
Company (each a "Swing Line Loan" and collectively the "Swing Line
Loans") in US Dollars from time to time on any Business Day during the
period from the Closing Date to the Termination Date in an aggregate
principal amount at any time outstanding not to exceed US$35,000,000;
provided that the Total Outstandings shall not at any time exceed the Total
Commitment. Subject to the terms and conditions hereof, the Company may
borrow under this Section 6.01, prepay under Section 6.04 and reborrow
under this Section 6.01 from time to time.
6.02 Procedure for Swing Line Borrowings.
(a) Each Swing Line Loan shall be made upon irrevocable written
notice from the Company to the Swing Line Lender and the Administrative
Agent, which notice must be received not later than 12:00 noon (Minneapolis
time) on the requested Borrowing Date (or such later time as the Swing Line
Lender may approve in its sole discretion). Each such notice shall specify (i)
the amount of such Swing Line Loan, which shall be a principal amount of
US$1,000,000 or higher integral multiple US$100,000 and (ii) the requested
Borrowing Date, which shall be a Business Day.
(b) Unless the Swing Line Lender has received (i) written notice
from the Administrative Agent prior to 8:00 A.M. (Minneapolis time) on the
proposed Borrowing Date of any Swing Line Loan directing the Swing Line
Lender not to make such Swing Line Loan because such Swing Line Loan is
not permitted under Section 6.01 or (ii) written notice of the type and by the
time described in subsection 9.10(b) from any Committed Lender, the Swing
Line Lender may make any requested Swing Line Loan on the proposed
Borrowing Date.
6.03 Interest on Swing Line Loans. The Company shall pay
interest on the unpaid principal amount of each Swing Line Loan, from the
date such Swing Line Loan is made to the date such Swing Line Loan is paid
in full, at a rate per annum equal to the Swing Line Rate from time to time in
effect plus the Applicable Margin; provided that (a) at any time that the
Committed Lenders have funded their participations in Swing Line Loans,
the interest rate applicable to Swing Line Loans shall not be less than the US
Base Rate; and (b) upon the request of the Swing Line Lender (or, if the
Committed Lenders have funded their participations in Swing Line Loans)
at any time (and for so long as) an Event of Default exists, the interest rate
applicable to each Swing Line Loan shall be increased by 2%.
6.04 Prepayments of Swing Line Loans. The Company may from
time to time prepay Swing Line Loans in whole or in part, in a principal
amount equal to US$1,000,000 or a higher integral multiple of US$100,000.
The Company will deliver a notice of prepayment to be received by the
Swing Line Lender not later than noon (Minneapolis time) on the Business
Days of such prepayment, specifying the Swing Line Loans to be prepaid and
the date and amount of such prepayment.
6.05 Participations in Swing Line Loans. Each Committed Lender
agrees that it shall at all times have a participation in, and acknowledges that
it is irrevocably and unconditionally obligated, as more fully set forth in
Section 6.07, to fund its participation in, each outstanding Swing Line Loan
in an amount equal to its Pro Rata Share of the amount of such Swing Line
Loan.
6.06 Refunding of Swing Line Loans. The Swing Line Lender
may, at any time in its sole and absolute discretion, on behalf of the Company
(which hereby irrevocably directs the Swing Line Lender to act on its behalf),
request each Committed Lender through the Administrative Agent to make
a Committed Loan in an amount equal to such Committed Lender's Pro Rata
Share of the principal amount of all Swing Line Loans outstanding on the
date such notice is given. Unless any of the events described in subsection
14.01(f) or 14.01(g) shall have occurred and be continuing (in which event
the procedures of Section 6.07 shall apply), and regardless of whether the
conditions precedent set forth in this Agreement to the making of a
Committed Loan are then satisfied or the aggregate amount of Swing Line
Loans is not in the minimum or integral amount otherwise required
hereunder, each Committed Lender shall make the proceeds of its Committed
Loan available to the Administrative Agent for the account of the Swing Line
Lender at its Payment Office, as directed by the Swing Line Lender, prior to
noon (Minneapolis time) in Same Day Funds on the Business Day next
succeeding the date such notice is given. The proceeds of such Committed
Loans shall be immediately applied to repay the outstanding Swing Line
Loans. All Committed Loans made pursuant to this Section 6.06 shall be US
Base Rate Loans (but, subject to the other provisions of this Agreement, may
be converted to US Dollar Eurocurrency Loans).
6.07 Funding Participations in Swing Line Loans.
(a) If an event described in subsection 14.01(f) or (g)
exists (or for any reason the Committed Lenders may not make
Committed Loans pursuant to Article II), each Committed Lender
will, upon notice from the Administrative Agent, purchase from the
Swing Line Lender (and the Swing Line Lender will sell to each
Committed Lender) an undivided participation interest in all
outstanding Swing Line Loans in an amount equal to its Pro Rata
Share of the outstanding principal amount of the Swing Line Loans
(and each Committed Lender will immediately transfer to the
Administrative Agent, for the account of the Swing Line Lender, in
immediately available funds, the amount of its participation).
(b) If the Administrative Agent or the Swing Line Lender
is required at any time to return to the Company, or to a trustee,
receiver, liquidator or custodian, or any official in any bankruptcy or
insolvency proceeding, any portion of any payment made by the
Company to the Administrative Agent or the Swing Line Lender in
respect of any Swing Line Loan or any interest or fee thereon, each
Committed Lender shall, on demand of the Administrative Agent,
forthwith return to the Administrative Agent for the account of the
Swing Line Lender the amount of its Pro Rata Share of the amount so
returned by the Administrative Agent or the Swing Line Lender plus
interest thereon from the date such demand is made to the date such
amount is returned by such Committed Lender to the Administrative
Agent, at a rate per annum equal to the Federal Funds Rate from time
to time in effect.
ARTICLE VII
The Letter of Credit Subfacility
7.01 Letters of Credit.
(a) On the terms and conditions set forth herein, (i) the
Issuing Bank agrees, (A) from time to time on any Business Day
during the period from the Closing Date to the Termination Date to
issue Letters of Credit for the account of the Company, and to amend
or renew Letters of Credit previously issued by it, in accordance with
Section 7.02, and (B) to honor properly drawn drafts under Letters of
Credit; and (ii) each Committed Lender severally agrees to participate
in Letters of Credit Issued for the account of the Company; provided
that the Issuing Bank shall not be obligated to Issue, and no
Committed Lender shall be obligated to participate in, any Letter of
Credit if as of the date of Issuance of such Letter of Credit (the
"Issuance Date"):
(i) the Total Outstandings would exceed the Total
Commitment; or
(ii) all L/C Obligations would exceed
$100,000,000.
Within the foregoing limits, and subject to the other terms and
conditions hereof, the Company's ability to obtain Letters of Credit
shall be fully revolving, and, accordingly, the Company may, during
the foregoing period, obtain Letters of Credit to replace Letters of
Credit which have expired or which have been drawn upon and
reimbursed. The Administrative Agent will determine the Dollar
Equivalent amount of the L/C Obligations with respect to any Letter
of Credit when issued, when drawn upon and as of the last Business
Day of each month.
(b) The Issuing Bank shall be under no obligation to Issue
any Letter of Credit if:
(i) any order, judgment or decree of any
Governmental Authority or arbitrator shall by its terms
purport to enjoin or restrain the Issuing Bank from Issuing
such Letter of Credit, or any Requirement of Law applicable
to the Issuing Bank or any request or directive (whether or not
having the force of law) from any Governmental Authority
with jurisdiction over the Issuing Bank shall prohibit, or
request that the Issuing Bank refrain from, the Issuance of
letters of credit generally or such Letter of Credit in particular
or shall impose upon the Issuing Bank with respect to such
Letter of Credit any restriction, reserve or capital requirement
(for which the Issuing Bank is not otherwise compensated
hereunder) not in effect on the Closing Date, or shall impose
upon the Issuing Bank any unreimbursed loss, cost or expense
which was not applicable on the Closing Date and which the
Issuing Bank in good faith deems material to it;
(ii) the Issuing Bank has received written notice
from any Committed Lender, the Administrative Agent or any
Borrower, on or prior to the Business Day prior to the
requested date of Issuance of such Letter of Credit, that one
or more of the applicable conditions contained in Article XI
is not then satisfied;
(iii) the expiry date of any requested Letter of
Credit is (A) more than 366 days after the date of such
Issuance, unless the Required Lenders have approved such
expiry date in writing, or (B) after the scheduled Termination
Date, unless all Committed Lenders have approved such
expiry date in writing;
(iv) any requested Letter of Credit does not provide
for drafts, or is not otherwise in form and substance
acceptable to the Issuing Bank, or the Issuance of a Letter of
Credit shall violate any applicable policies of the Issuing
Bank; or
(v) such Letter of Credit is denominated in a
currency other than US Dollars or an Available Currency.
7.02 Issuance, Amendment and Renewal of Letters of Credit.
(a) Each Letter of Credit shall be Issued upon the
irrevocable written request of the Company received by the Issuing
Bank (with a copy sent by the Company to the Administrative Agent)
at least three Business Days (or such shorter time as the Issuing Bank
may agree in a particular instance in its sole discretion) prior to the
proposed date of Issuance. Each such request for Issuance of a Letter
of Credit shall be by facsimile, confirmed immediately in an original
writing, in the form of an L/C Application, and shall specify in form
and detail reasonably satisfactory to the Issuing Bank: (i) the
proposed date of Issuance of the Letter of Credit (which shall be a
Business Day); (ii) the face amount of the Letter of Credit; (iii) the
expiry date of the Letter of Credit; (iv) the name and address of the
beneficiary thereof; (v) the documents to be presented by the
beneficiary of the Letter of Credit in case of any drawing thereunder;
(vi) the full text of any certificate to be presented by the beneficiary
in case of any drawing thereunder; and (vii) such other matters as the
Issuing Bank may require.
(b) At least two Business Days prior to the Issuance of any
Letter of Credit, the Issuing Bank will confirm with the
Administrative Agent (by telephone or in writing) that the
Administrative Agent has received a copy of the L/C Application or
L/C Amendment Application from the Company and, if not, the
Issuing Bank will provide the Administrative Agent with a copy
thereof. Unless the Issuing Bank has received, on or before the
Business Day immediately preceding the date the Issuing Bank is to
issue a requested Letter of Credit, (A) notice from the Administrative
Agent directing the Issuing Bank not to issue such Letter of Credit
because such issuance is not then permitted hereunder or (B) a notice
described in Section 9.10(b), then, subject to the terms and conditions
of this Agreement, the Issuing Bank shall, on the requested date, issue
a Letter of Credit for the account of the Company in accordance with
the Issuing Bank's usual and customary business practices.
(c) From time to time while a Letter of Credit is
outstanding and prior to the Termination Date, the Issuing Bank will,
upon the written request of the Company received by the Issuing
Bank (with a copy sent by the applicable Borrower to the
Administrative Agent) at least three Business Days (or such shorter
time as the Issuing Bank may agree in a particular instance in its sole
discretion) prior to the proposed date of amendment, amend any
Letter of Credit issued by it. Each such request for amendment of a
Letter of Credit shall be made by facsimile, confirmed immediately
in an original writing, made in the form of an L/C Amendment
Application and shall specify in form and detail reasonably
satisfactory to the Issuing Bank: (i) the Letter of Credit to be
amended; (ii) the proposed date of amendment of the Letter of Credit
(which shall be a Business Day); (iii) the nature of the proposed
amendment; and (iv) such other matters as the Issuing Bank may
reasonably require. The Issuing Bank shall be under no obligation to
amend any Letter of Credit if: (A) the Issuing Bank would have no
obligation at such time to issue such Letter of Credit in its amended
form under the terms of this Agreement; or (B) the beneficiary of
such Letter of Credit does not accept the proposed amendment to
such Letter of Credit. The Administrative Agent will promptly notify
the Committed Lenders of the receipt by it of any L/C Application or
L/C Amendment Application.
(d) The Issuing Bank and the Committed Lenders agree
that, while a Letter of Credit is outstanding and prior to the
Termination Date, at the option of the Company and upon the written
request of the Company received by the Issuing Bank (with a copy
sent by the Company to the Administrative Agent) at least three
Business Days (or such shorter time as the Issuing Bank may agree in
a particular instance in its sole discretion) prior to the proposed date
of notification of renewal, the Issuing Bank shall be entitled to
authorize the renewal of any Letter of Credit issued by it. Each such
request for renewal of a Letter of Credit shall be made by facsimile,
confirmed immediately in an original writing, in the form of an L/C
Amendment Application, and shall specify in form and detail
reasonably satisfactory to the Issuing Bank: (i) the Letter of Credit to
be renewed; (ii) the proposed date of notification of renewal of the
Letter of Credit (which shall be a Business Day); (iii) the revised
expiry date of the Letter of Credit; and (iv) such other matters as the
Issuing Bank may reasonably require. The Issuing Bank shall be
under no obligation to renew any Letter of Credit if: (A) the Issuing
Bank would have no obligation at such time to issue or amend such
Letter of Credit in its renewed form under the terms of this
Agreement; or (B) the beneficiary of such Letter of Credit does not
accept the proposed renewal of such Letter of Credit. If any
outstanding Letter of Credit shall provide that it shall be
automatically renewed unless the beneficiary thereof receives notice
from the Issuing Bank that such Letter of Credit shall not be renewed,
and if at the time of renewal the Issuing Bank would be entitled to
authorize the automatic renewal of such Letter of Credit in
accordance with this Section 7.02 upon the request of the Company
but the Issuing Bank shall not have received any L/C Amendment
Application from the Company with respect to such renewal or other
written direction by the Company with respect thereto, the Issuing
Bank shall nonetheless be permitted to allow such Letter of Credit to
renew, and the Company, the Committed Lenders and the
Administrative Agent hereby authorize such renewal, and,
accordingly, the Issuing Bank shall be deemed to have received an
L/C Amendment Application from the Company requesting such
renewal.
(e) The Issuing Bank may, at its election (or as required
by the Administrative Agent at the direction of the Required
Lenders), deliver any notice of termination or other communication
to any Letter of Credit beneficiary or transferee, and take any other
action as necessary or appropriate, at any time and from time to time,
in order to cause the expiry date of such Letter of Credit to be a date
not later than the scheduled Termination Date.
(f) This Agreement shall control in the event of any
conflict with any L/C-Related Document (other than any Letter of
Credit).
(g) The Issuing Bank will deliver to the Administrative
Agent, concurrently or promptly following its delivery of a Letter of
Credit, or an amendment to or renewal of a Letter of Credit, to an
advising bank or a beneficiary, a true and complete copy of such
Letter of Credit or such amendment or renewal.
7.03 Participations, Drawings and Reimbursements.
(a) Immediately upon the Issuance of each Letter of
Credit, each Committed Lender shall be deemed to, and hereby
irrevocably and unconditionally agrees to, purchase from the Issuing
Bank a participation in such Letter of Credit and each drawing
thereunder in an amount equal to the product of (i) such Committed
Lender's Pro Rata Share times (ii) the maximum amount available to
be drawn under such Letter of Credit and the amount of such drawing,
respectively.
(b) In the event of any request for a drawing under a Letter
of Credit by the beneficiary or a transferee thereof, the Issuing Bank
will promptly notify the Company. The Company shall reimburse the
Issuing Bank prior to 10:00 A.M. (Chicago time), on each date that
any amount is paid by the Issuing Bank under any Letter of Credit
(each such date, an "Honor Date"), in an amount equal to the amount
so paid by the Issuing Bank. If the Company fails to reimburse the
Issuing Bank for the full amount of any drawing under any Letter of
Credit by 10:00 A.M. (Chicago time) on the Honor Date, the Issuing
Bank will promptly notify the Administrative Agent and the
Administrative Agent will promptly notify each Committed Lender
thereof, and the Company shall be deemed to have requested that US
Base Rate Loans be made by the Committed Lenders to be disbursed
on the Honor Date under such Letter of Credit, subject to the amount
of the unutilized portion of the Commitments and subject to the
conditions set forth in subsections 11.02(b) and (c). Any notice given
by the Issuing Bank or the Administrative Agent pursuant to this
subsection 7.03(b) may be oral if immediately confirmed in writing
(including by facsimile); provided that the lack of such an immediate
confirmation shall not affect the conclusiveness or binding effect of
such notice.
(c) Each Committed Lender shall upon any notice
pursuant to subsection 7.03(b) make available to the Administrative
Agent for the account of the Issuing Bank an amount in US Dollars
and in Same Day Funds equal to its Pro Rata Share of the Dollar
Equivalent amount of the applicable drawing (as determined by the
Administrative Agent), whereupon such Committed Lender shall be
deemed to have made a US Base Rate Loan to the Company in such
amount. If any Committed Lender so notified fails to make available
to the Administrative Agent for the account of the Issuing Bank the
amount of such Committed Lender's Pro Rata Share of the amount of
the drawing by no later than noon (Chicago Time) on the Honor Date,
then interest shall accrue on such Committed Lender's obligation to
make such payment, from the Honor Date to the date such Committed
Lender makes such payment, at a rate per annum equal to the Federal
Funds Rate in effect from time to time during such period. The
Administrative Agent will promptly give notice of the occurrence of
the Honor Date, but failure of the Administrative Agent to give any
such notice on the Honor Date or in sufficient time to enable any
Committed Lender to effect such payment on such date shall not
relieve such Committed Lender of its obligations under this
subsection 7.03(c).
(d) With respect to any unreimbursed drawing that is not
converted into Committed Loans in whole or in part, because of the
Company's failure to satisfy any of the conditions set forth in
subsections 11.02(b) and (c) or for any other reason, the Company
shall be deemed to have incurred from the Issuing Bank an L/C
Borrowing in the amount of such drawing, which L/C Borrowing
shall be due and payable on demand (together with interest) and shall
bear interest at a rate per annum equal to the US Base Rate plus 2%,
and each Committed Lender's payment to the Issuing Bank pursuant
to subsection 7.03(c) shall be deemed payment in respect of its
participation in such L/C Borrowing and shall constitute an L/C
Advance from such Committed Lender in satisfaction of its
participation obligation in respect of the applicable Letter of Credit.
(e) Each Committed Lender's obligation in accordance
with this Agreement to make US Base Rate Loans or L/C Advances,
as contemplated by this Section 7.03, as a result of a drawing under
a Letter of Credit, shall be absolute and unconditional and without
recourse to the Issuing Bank and shall not be affected by any
circumstance, including (i) any set-off, counterclaim, recoupment,
defense or other right which such Committed Lender may have
against the Issuing Bank, the Company or any other Person for any
reason whatsoever; (ii) the occurrence or continuance of an Event of
Default, an Unmatured Event of Default or a Material Adverse Effect;
or (iii) any other circumstance, happening or event whatsoever,
whether or not similar to any of the foregoing; provided that each
Committed Lender's obligation to make US Base Rate Loans under
this Section 7.03 is subject to the conditions set forth in subsections
11.02(b) and (c).
7.04 Repayment of Participations.
(a) Upon (and only upon) receipt by the Administrative
Agent for the account of the Issuing Bank of Same Day Funds from
the Company (i) in reimbursement of any payment made by the
Issuing Bank under a Letter of Credit with respect to which any
Committed Lender has paid the Administrative Agent for the account
of the Issuing Bank for such Committed Lender's participation in
such Letter of Credit pursuant to Section 7.03 or (ii) in payment of
interest thereon, the Administrative Agent will pay to each
Committed Lender, in the same funds as those received by the
Administrative Agent for the account of the Issuing Bank, the amount
of such Committed Lender's Pro Rata Share of such funds, and the
Issuing Bank shall receive the amount of the pro rata share of such
funds of any Committed Lender that did not so pay the
Administrative Agent for the account of the Issuing Bank.
(b) If the Administrative Agent or the Issuing Bank is
required at any time to return to the Company, or to a trustee,
receiver, liquidator or custodian, or any official in any insolvency
proceeding, any portion of any payment made by the Company to the
Administrative Agent for the account of the Issuing Bank pursuant to
subsection (a) above in reimbursement of a payment made under any
Letter of Credit or interest or fee thereon, each Committed Lender
shall, on demand of the Administrative Agent, forthwith return to the
Administrative Agent or the Issuing Bank the amount of its pro rata
share of any amount so returned by the Administrative Agent or the
Issuing Bank plus interest thereon from the date such demand is made
to the date such amount is returned by such Committed Lender to the
Administrative Agent or the Issuing Bank, at a rate per annum equal
to the Federal Funds Rate (in the case of amounts in US Dollars) or
the Foreign Overnight Rate (in the case of other amounts), in each
case as in effect from time to time.
7.05 Role of the Issuing Bank.
(a) The Lenders and the Company agree that, in paying
any drawing under a Letter of Credit, the Issuing Bank shall not have
any responsibility to obtain any document (other than any sight draft
and certificates or other documents expressly required by such Letter
of Credit) or to ascertain or inquire as to the validity or accuracy of
any such document or the authority of the Person executing or
delivering any such document.
(b) Neither the Issuing Bank nor any of its correspondents,
participants or assignees shall be liable to any Lender for: (i) any
action taken or omitted in connection herewith at the request or with
the approval of the Committed Lenders (including the Required
Lenders), as applicable); (ii) any action taken or omitted in the
absence of gross negligence or willful misconduct; or (iii) the due
execution, effectiveness, validity or enforceability of any L/C-Related
Document.
(c) The Company hereby assumes all risks of the acts or
omissions of any beneficiary or transferee with respect to its use of
any Letter of Credit; provided that this assumption is not intended to,
and shall not, preclude the Company's pursuing such rights and
remedies as it may have against the beneficiary or transferee of any
Letter of Credit at law or under any other agreement. In furtherance
and not in limitation of the foregoing: (i) the Issuing Bank may accept
documents that appear on their face to be in order, without
responsibility for further investigation, regardless of any notice or
information to the contrary; and (ii) the Issuing Bank shall not be
responsible for the validity or sufficiency of any instrument
transferring or assigning or purporting to transfer or assign a Letter of
Credit or the rights or benefits thereunder or proceeds thereof, in
whole or in part, which may prove to be invalid or ineffective for any
reason.
7.06 Obligations Absolute. The obligations of the Company
under this Agreement and any L/C-Related Document to reimburse the
Issuing Bank for a drawing under a Letter of Credit, and to repay any L/C
Borrowing of such Borrower and any drawing under a Letter of Credit
converted into US Base Rate Loans, shall be unconditional and irrevocable,
and shall be paid strictly in accordance with the terms of this Agreement and
each such L/C-Related Document under all circumstances, including any of
the following:
(a) any lack of validity or enforceability of this Agreement
or any L/C-Related Document;
(b) the existence of any claim, set-off, defense or other
right that the Company may have at any time against any beneficiary
or any transferee of any Letter of Credit (or any Person for whom any
such beneficiary or any such transferee may be acting), the Issuing
Bank or any other Person, whether in connection with this
Agreement, the transactions contemplated hereby or by the L/C-Related
Documents or any unrelated transaction;
(c) any draft, demand, certificate or other document
presented under any Letter of Credit proving to be forged, fraudulent,
invalid or insufficient in any respect or any statement therein being
untrue or inaccurate in any respect; or any loss or delay in the
transmission or otherwise of any document required in order to make
a drawing under any Letter of Credit;
(d) any payment by the Issuing Bank under any Letter of
Credit against presentation of a draft or certificate that does not
strictly comply with the terms of any Letter of Credit; or any payment
made by the Issuing Bank under any Letter of Credit to any Person
purporting to be a trustee in bankruptcy, debtor-in-possession,
assignee for the benefit of creditors, liquidator, receiver or other
representative of or successor to any beneficiary or any transferee of
any Letter of Credit;
(e) any exchange, release or non-perfection of any
collateral, or any release or amendment or waiver of or consent to
departure from any guarantee, for all or any of the obligations of the
Company or any other Person in respect of any Letter of Credit; or
(f) any other circumstance or happening whatsoever,
whether or not similar to any of the foregoing, including any other
circumstance that might otherwise constitute a defense available to,
or a discharge of, a guarantor; provided that after paying in full its
reimbursement obligation hereunder, nothing herein shall adversely
affect the right of the Company to commence any proceeding against
the Issuing Bank for any wrongful disbursement made by the Issuing
Bank under a Letter of Credit as a result of any act or omission
constituting gross negligence or willful misconduct on the part of the
Issuing Bank.
7.07 Letter of Credit Fees.
(a) The Company shall pay to the Administrative Agent
for the account of the Committed Lenders a letter of credit fee with
respect to the Letters of Credit at a rate per annum equal to the L/C
Fee Rate (as in effect from time to time) on the daily maximum
Dollar Equivalent amount available to be drawn under the
outstanding Letters of Credit, computed on the last Business Day of
each calendar quarter and on the Termination Date (or such later date
on which all Letters of Credit have been terminated) based upon
Letters of Credit outstanding for the applicable period as calculated
by the Administrative Agent.
(b) The Company shall pay to the Administrative Agent
for the account of the Issuing Bank a letter of credit fronting fee for
each Letter of Credit Issued by the Issuing Bank at the rate per annum
separately agreed to by the Company and the Issuing Bank on the
daily maximum Dollar Equivalent amount available to be drawn
under the outstanding Letters of Credit, computed on the last
Business Day of each calendar quarter and on the Termination Date
(or such later date on which all Letters of Credit have been
terminated) based upon the Letters of Credit outstanding for the
applicable period as calculated by the Administrative Agent.
(c) The letter of credit fees payable under subsection (a)
and the fronting fees payable under subsection (b) shall be payable
quarterly in arrears on the last Business Day of each calendar quarter
during which Letters of Credit are outstanding and on the
Termination Date (or such later date upon which all outstanding
Letters of Credit shall have been terminated).
(d) The Company shall pay to the Issuing Bank from time
to time on demand the normal issuance, presentation, amendment and
other processing fees, and other standard costs and charges, of the
Issuing Bank relating to letters of credit as from time to time in effect.
7.08 Uniform Customs and Practice. The International Standby
Practices as published by the Institute for International Banking Law &
Practice, Inc. most recently at the time of issuance of any Letter of Credit
shall (unless otherwise expressly provided in such Letter of Credit) apply to
such Letter of Credit.
7.09 Letters of Credit for the Account of Subsidiaries. The
Company and the applicable Subsidiary shall be jointly and severally liable
for any Letter of Credit which is issued jointly for the account of the
Company and any Subsidiary.
ARTICLE VIII
Competitive Bid Facility
8.01 Competitive Bid Loans. Each Lender agrees that the
Company may from time to time prior to the Termination Date request the
Committed Lenders to submit offers to make Bid Loans to the Company.
Each Committed 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.
8.02 Procedures for Bid Borrowings.
(a) The Company may request the Committed 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 Committed Lenders
by facsimile transmission an Invitation for Competitive Bids, which
shall constitute an invitation by the Company to each Committed
Lender to submit Competitive Bids offering to make the Bid Loans
to which such Competitive Bid Request relates in accordance with
this Section 8.02.
(c) (i) Each Committed 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 8.02(c) and must be submitted to the Administrative Agent
by facsimile transmission at its office specified pursuant to Section
16.01 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 Committed
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 Committed
Lender.
A Competitive Bid may contain up to three separate offers by the
quoting Committed 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 8.02(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 8.02(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 Committed Lender that is in accordance with
subsection 8.02(c) and (ii) of any Competitive Bid that amends,
modifies or is otherwise inconsistent with a previous Competitive Bid
submitted by such Committed 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 8.02(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 XI 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 8.02(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 8.02(c)(iii) or that otherwise fails to
comply with the requirements of this Agreement.
(f) If offers are made by two or more Committed 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 Committed 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 Committed 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 Committed Lender which has received
notice pursuant to subsection 8.02(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 Same Day Funds for the account of
the Company at the Administrative Agent's Payment Office,
by noon (Chicago time) on the applicable Borrowing Date.
(iii) Promptly following each Bid Borrowing, the
Administrative Agent shall notify each Committed 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 IX
General Credit Terms
9.01 Repayment. All Loans and all other obligations of the
Borrowers hereunder shall be due and payable in full on September 2, 2004
(or such earlier date as shall be required pursuant hereto).
9.02 Payment of Interest. Interest on each Loan shall be paid in
arrears on each applicable Interest Payment Date; provided that any interest
on UK Loans which, absent this proviso, would be payable prior to the UK
Deferral Date shall be payable on the UK Deferral Date. Interest shall also
be paid on the date of any prepayment of Loans (other than US Base Rate
Loans and Prime 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.
9.03 Payments. (a) All payments by the Borrowers hereunder in
respect of UK Loans, Canadian Loans, German Loans and Swing Line Loans
shall be made to the UK Lender, the Canadian Lender, the German Lender or
the Swing Line Lender, as the case may be, at its Payment Office. All
payments by the Borrowers hereunder in respect of any amount payable under
Article X shall be made directly to the Lender entitled to receive such
payment. All other payments by the Borrowers 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 the currency required
herein 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 Eurocurrency 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).
9.04 Adjustment of Sublimits. So long as no Event of Default or
Unmatured Event of Default exists, the Company may from time to time
change the amount of each of the UK Sublimit, the Canadian Sublimit and
the German Sublimit by giving notice of such change to the Administrative
Agent and the respective UK Lender, Canadian Lender and German Lender
(which notice shall specify the effective date of such change, which shall not
be less than three Business Days after such notice is received); provided that
(a) the aggregate amount available under all such Sublimits shall not exceed
the lesser of US$150,000,000 or the Total Commitment; (b) the Canadian
Sublimit shall not exceed the lesser of US$40,000,000 or the Total
Commitment; and (c) the UK Lender, the Canadian Lender or the German
Lender, respectively, must consent to any increase in the UK Sublimit, the
Canadian Sublimit or the German Sublimit, as the case may be.
9.05 Loan Accounts. The Loans and the L/C Obligations shall be
evidenced by one or more accounts or records maintained by the
Administrative Agent, each Committed Lender, the UK Lender, the Canadian
Lender, the German Lender, the Issuing Bank or the Swing Line Lender, as
the case may be, in the ordinary course of business. The accounts or records
so maintained shall be rebuttable presumptive evidence of the amount of the
Loans and the L/C Obligations outstanding by each applicable Lender to each
applicable Borrower. Any failure to record or any error in recording any
such amount shall, not, however, limit or otherwise affect the obligation of
the applicable Borrower hereunder to pay any amount owing with respect to
any Loan or any other obligation hereunder, including the L/C Obligations.
9.06 Notes. Upon the request of any Lender made through the
Administrative Agent, the Loans made by such Lender to any Borrower may
be evidenced by one or more Notes issued by such Borrower, instead of loan
accounts. Each such Lender may endorse on the schedule annexed to the
applicable Note the date, amount and maturity of each applicable Loan made
by it and the amount of each payment of principal made by the applicable
Borrower with respect thereto. Each such Lender is irrevocably authorized
by each Borrower to endorse the applicable Note and each such Lender's
record shall be rebuttable presumptive evidence of the amount of the Loans
made by such Lender to such Borrower; provided that the failure of a Lender
to make, or an error in making, a notation on any Note with respect to any
Loan shall not limit or otherwise affect the obligations of the applicable
Borrower hereunder or under such Note.
9.07 Fees. In addition to certain fees described in Section 7.07:
(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 Committed 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.
(c) Usage Fee. Each of Pentair UK and EuroPentair shall pay to
the Administrative Agent for the account of each Committed Lender a usage
fee computed at a rate per annum equal to the Usage Fee Rate (plus, upon
request of the Required Lenders at any time an Event of Default exists, 2%)
on the principal amount of each UK Loan or German Loan, as the case may
be, outstanding from time to time. Such usage fee shall be payable with
respect to each UK Loan and German Loan on each date on which interest is
payable on such Loan.
9.08 Computation of Fees and Interest. (a) All computations of
interest for US Base Rate Loans when the interest rate is determined by the
"reference rate" of Bank of America and for Prime Rate Loans shall be made
on the basis of a year of 365 or 366 days, as the case may be, and actual days
elapsed. All computations of interest on UK Loans shall be made on the
basis of a year of 365 days 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 or a Dollar Equivalent
amount by the Administrative Agent, the UK Lender, the Canadian Lender,
the German Lender or the Swing Line Lender, as the case may be, shall be
conclusive and binding on the Borrowers and the Lenders in the absence of
manifest error. The Administrative Agent (or, if applicable, the UK Lender,
the Canadian Lender, the German Lender or the Swing Line Lender) will, at
the request of the applicable Borrower or any Committed Lender, deliver to
such Borrower or such Committed Lender, as the case may be, a statement
showing the quotations used by the Administrative Agent (or such Lender)
in determining any interest rate or Dollar Equivalent amount.
9.09 Currency Exchange Fluctuations. If on any Computation
Date the Administrative Agent shall have determined that the then
outstanding Dollar Equivalent principal amount of the Total Outstanding
exceeds the Total Commitment due to a change in applicable rates of
exchange between US Dollars, on the one hand, and any Applicable
Currency, on the other hand, then the Administrative Agent shall give notice
to the Company that a prepayment is required under this Section, and the
Borrowers agree thereupon to make prepayments of Loans such that, after
giving effect to such prepayment, the Total Outstandings will not exceed the
Total Commitment.
9.10 Participation Obligations Unconditional.
(a) Each Committed Lender's obligation to make Loans pursuant
to Section 6.06 to refund Swing Line Loans and/or to purchase participation
interests in UK Loans, Canadian Loans, German Loans and/or Swing Line
Loans pursuant to Section 3.06, 4.06, 5.06 and/or 6.07, as applicable, shall
be absolute and unconditional and shall not be affected by any circumstance
whatsoever, including (a) any set-off, counterclaim, recoupment, defense or
other right which such Committed Lender may have against any other Lender,
any Borrower or any other Person for any reason whatsoever; (b) the
occurrence or continuance of an Event of Default, an Unmatured Event of
Default or a Material Adverse Effect; (c) any breach of this Agreement by any
Borrower or any other Lender; (d) any inability of any Borrower to satisfy the
conditions precedent to borrowing set forth in this Agreement on the date
upon which any Swing Line Loan is to be refunded or any participation
interest in any Loan is to be purchased; or (e) any other circumstance,
happening or event whatsoever, whether or not similar to any of the
foregoing.
(b) Notwithstanding the provisions of subsection (a) above, no
Committed Lender shall be required to make any Loan to a Borrower to
refund a Swing Line Loan pursuant to Section 6.06 or to purchase a
participation interest in a UK Loan, Canadian Loan, German Loan and/or
Swing Line Loan pursuant to Section 3.06, 4.06, 5.06 or 6.07, as applicable,
if, at least two Business Days prior to the making of such UK Loan, Canadian
Loan, German Loan and/or Swing Line Loan, the Administrative Agent and
the UK Lender, the Canadian Lender, the German Lender or the Swing Line
Lender, as the case may be, received written notice from such Committed
Lender specifying that such Committed Lender believed in good faith that
one or more of the conditions precedent to the making of such Loan were not
satisfied (and detailing its basis for such good faith belief) and, in fact,
such conditions precedent to the making of such Loan were not satisfied at the
time of the making of such Loan; provided that the obligation of such
Committed Lender to make such Loan and/or to purchase such participation
interest shall be reinstated upon the earlier of (i) the date on which such
Committed Lender notifies the Swing Line Lender that its prior notice has
been withdrawn or (ii) the date on which all conditions precedent to the
making of such UK Loan, Canadian Loan, German Loan and/or Swing Line
Loan have been satisfied (or waived by the Required Lenders or all
Committed Lenders, as applicable).
9.11 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, Bid Loans and Swing Line Loans which are then due and
payable and to the reimbursement obligations of the Company then due in
respect of any Letter of Credit, ratably among the Lenders in accordance with
the aggregate principal amount of such Loans and reimbursement obligations
owed to each Lender; second, to the payment of interest then due and payable
on the Committed Loans, Bid Loans and Swing Line Loans and on the
reimbursement obligations of the Company in respect of Letters of Credit,
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
16.03, 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 Sections 7.07 and 9.07, 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 to the Company, the reimbursement obligations of the Company
in respect of Letters of Credit (including contingent obligations in respect of
undrawn Letters of Credit) and the obligations of the Company under Article
XVII, regardless of whether any such amount is then due and payable, ratably
among the Lenders in accordance with the aggregate amount of such Loans
and other obligations owed to such 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. Any
amount to be distributed pursuant to clause third of the first sentence of this
subsection (b) for application to contingent obligations in respect of undrawn
Letters of Credit shall be held by the Administrative Agent as cash collateral
hereunder. If any Letter of Credit is thereafter drawn upon, the
Administrative Agent shall distribute to the Issuing Bank an amount equal to
the lesser of the Dollar Equivalent amount of such draw and the amount of
the cash collateral held by the Administrative Agent pursuant to the preceding
sentence. If any Letter of Credit expires or terminates or the amount
available for drawing thereunder is reduced and, after giving effect to such
expiration, termination or reduction, the amount of cash collateral held by the
Administrative Agent pursuant to the second preceding sentence exceeds the
aggregate undrawn Dollar Equivalent amount of all then-outstanding Letters
of Credit, such excess shall promptly be applied by the Administrative Agent
in the manner and priority set forth in clauses first, second, third and fourth
of the first sentence of this subsection (b).
(c) If, other than as expressly provided elsewhere herein, any
Committed 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 participation therein, any participation in any Letter of
Credit or any fees in excess of the share of payments and other recoveries
(exclusive of payments or recoveries under Article X) such Committed
Lender would have received if such payment or recovery had been distributed
pursuant to the provisions of subsection 9.11(a) or (b) (whichever is
applicable at the time of such payment or other recovery), such Committed
Lender shall purchase from the other Committed Lenders, in a manner to be
reasonably specified by the Administrative Agent, such participations in the
Loans held by them (and, if applicable, such sub-participations in the
participations in Loans and L/C Obligations held by them) as shall be
necessary to cause such purchasing Committed 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 9.11(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 Committed Lender, the purchase
shall be rescinded and the purchase price restored to the extent of such
recovery, but without interest.
(d) The Dollar Equivalent amount of the principal of and accrued
and unpaid interest on each obligation of the Company denominated in a
currency other than US Dollars shall be determined by the Administrative
Agent as of (i) in the case of any distribution pursuant to subsection 9.11(a)
or (b), the date of such distribution, and (ii) in the case of receipt by any
Committed Lender of any payment or other recovery which may be subject
to subsection 9.11(c) (or any disgorgement by any Committed Lender
pursuant to the proviso to such subsection), as of the date of such receipt (or
such disgorgement).
9.12 Judgment Currency. If for the purposes of obtaining judgment
in any court it is necessary to convert a sum due from a Borrower hereunder
in the currency expressed to be payable herein (the "specified currency") into
another currency, the parties hereto agree, to the fullest extent that they may
effectively do so, that the rate of exchange used shall be that at which in
accordance with normal banking procedures the Administrative Agent (or, in
the case of any amount relating to a UK Loan, a Canadian Loan or a German
Loan, the UK Lender, the Canadian Lender or the German Lender,
respectively) could purchase the specified currency with such other currency
at the Administrative Agent's (or such Lender's) Payment Office on the
Business Day preceding that on which final judgment is given. The
obligation of any Borrower in respect of any sum due to any Lender or the
Administrative Agent hereunder shall, notwithstanding any judgment in a
currency other than the specified currency, be discharged only to the extent
that on the Business Day following receipt by such Lender or the
Administrative Agent, as the case may be, of any sum adjudged to be so due
in such other currency, such Lender or the Administrative Agent, as the case
may be, may in accordance with normal banking procedures purchase the
specified currency with such other currency. If the amount of the specified
currency so purchased is less than the sum originally due to such Lender or
the Administrative Agent, as the case may be, in the specified currency, the
applicable Borrower shall, to the fullest extent that it may effectively do so,
as a separate obligation and notwithstanding any such judgment, indemnify
such Lender or the Administrative Agent, as the case may be, against such
loss, and if the amount of the specified currency so purchased exceeds the
total of (a) the sum originally due to such Lender or the Administrative
Agent, as the case may be, in the specified currency and (b) any amount
shared with other Lenders as a result of allocations of such excess as a
disproportionate payment to such Lender under subsection 9.11(c), such
Lender or the Administrative Agent, as the case may be, agrees to remit such
excess to the applicable Borrower.
ARTICLE X
Change in Circumstances
10.01 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, any Note or its obligation to make or to
participate in Loans, or shall change the basis of taxation of
any amount payable to such Lender (or its Applicable Lending
Office) under this Agreement or any 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 Eurocurrency Rate or the
Associated Costs 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 or participating in any Loan or to reduce
any sum received or receivable by such Lender (or its Applicable
Lending Office) under this Agreement or any Note with respect to any
Loan, then the applicable Borrower 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 10.01
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.
10.02 Limitation on Types of Loan. If on or prior to the first day of
any Interest Period for any Eurocurrency Loan:
(a) the Administrative Agent (in the case of a Committed
Loan) or the applicable Lender (in the case of any other Eurocurrency
Loan) 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 Eurocurrency Rate
in the Applicable Currency, or
(b) the Required Lenders (in the case of Committed
Loans) notify the Administrative Agent that they have determined, or
the applicable Lender (in the case of any other Eurocurrency Loan)
determines (which determination shall, in each case, be conclusive),
that the applicable Eurocurrency Rate (or, in the case of Committed
Loans, the Adjusted Eurocurrency Rate) will not adequately and fairly
reflect the cost to such Lenders or Lender of funding such Loans or
Loan in the applicable currency for such Interest Period;
then the Administrative Agent or the applicable Lender, as the case may be,
shall give the applicable Borrower (and, if such notice is given by a Lender,
the Administrative Agent) prompt notice thereof, and so long as such
condition remains in effect, (i) the Committed Lenders or the applicable
Lender, as the case may be, shall be under no obligation to make
Eurocurrency Loans in the Applicable Currency and (ii) on the last day of the
then current Interest Period for each outstanding Eurocurrency Loan in the
Applicable Currency to such Borrower, such Borrower shall repay such
Loans or, in the case of the Company or Pentair Canada, convert such Loans
into the other Type of Loan available to such Borrower in accordance with
the terms of this Agreement.
10.03 Changes in Law Rendering Eurocurrency 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 Eurocurrency Loan in any Applicable Currency, then
such Lender shall promptly notify the applicable Borrower 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
Eurocurrency Loan in the Applicable Currency (but, in the case of a
Committed Lender, shall make a US Base Rate Loan concurrently with the
making of or conversion into Eurocurrency Loans in the Applicable Currency
by the Lenders which are not so affected, in each case in a Dollar Equivalent
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
Eurocurrency Loan of such Lender in the Applicable Currency (or, in any
event, on such earlier date as may be required by the relevant law, regulation
or interpretation), such Eurocurrency Loan shall be paid in full (or, in the
case of a Committed Loan (unless the Committed Borrowing of which such
Committed Loan is a part is paid in full), shall automatically convert to a US
Base Rate Loan in US Dollars in an amount equal to the Dollar Equivalent
amount of such Eurocurrency Loan). Each US Base Rate Loan made by a
Committed Lender which, but for the circumstances described in the
foregoing sentence, would be a Eurocurrency Loan (an "Affected Loan")
shall remain outstanding for the same period as the Borrowing of
Eurocurrency Loans of which such Affected Loan would be a part absent
such circumstances.
10.04 Funding Losses. The applicable Borrower 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 such Borrower to borrow, continue or
convert a Loan into a Eurocurrency Loan after such Borrower has
given (or is deemed to have given) a notice of such borrowing,
continuation or conversions;
(b) the failure of such Borrower to make any prepayment
of any Loan in accordance with any notice delivered pursuant hereto;
(c) the prepayment (including pursuant to Section 10.03)
or other payment (including after acceleration thereof) of the
principal of any Loan by such Borrower on a day that is not the last
day of an Interest Period; or
(d) the automatic conversion under subsection 2.03(a) or
4.03(a) of any Eurocurrency 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 a Borrower
to any Lender under this Section, (i) each Eurocurrency Loan made by a
Lender (and each related reserve, special deposit or similar requirement) shall
be conclusively deemed to have been funded at the Eurocurrency 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
and in the same Applicable Currency, whether or not such Eurocurrency
Loan is in fact so funded.
10.05 Taxes.
(a) Any and all payments by any Borrower 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, each Borrower shall pay all Other Taxes.
(b) If any Borrower 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 10.05), 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) such Borrower shall make such deductions and
withholdings; and
(iii) such Borrower shall pay the full amount
deducted or withheld to the relevant taxing authority or other
authority in accordance with applicable law.
(c) Each Borrower 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
applicable Borrower of Taxes or Other Taxes, such Borrower 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 Committed 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
Committed Lender listed on the signature pages hereof and on or
prior to the date on which it becomes a Committed Lender in the case
of any other such Committed Lender, and from time to time thereafter
if requested in writing by the Company (but only so long as such
Committed 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 Committed 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) Each Committed Lender that will not be funding its
participation in UK Loans out of, or will not be booking its portion
of usage fees payable by Pentair UK in, an office in the United
Kingdom (or another jurisdiction having an exemption from United
Kingdom income tax by treaty) shall submit a duly completed Form
FD13 double tax treaty form to the IRS (or the comparable form for
its jurisdiction to its jurisdiction's tax authorities) no later than
November 1, 1999 seeking exemption from United Kingdom income
tax on interest and fees payable under this Agreement by Pentair UK.
(g) 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 any Borrower or with respect to which any Borrower
has made any indemnity payment pursuant to this Section 10.05, or
any other tax benefit as a result of any payment by any Borrower
pursuant to this Section 10.05, then such Lender or the
Administrative Agent shall promptly repay the applicable Borrower
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 applicable Borrower will
indemnify and hold harmless such Lender or the Administrative
Agent in accordance with this Section 10.05. Nothing in this
subsection (g) 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 any
Borrower.
(h) Without prejudice to the survival of any other
agreement of any Borrower hereunder, the agreements and obligations
of each Borrower contained in this Section 10.05 shall survive the
termination of the Commitments and the payment in full of all
obligations of the Borrowers hereunder.
10.06 Right of Lenders to Fund through Other Offices. Each Lender
may, if it so elects, fulfill its commitment as to any Eurocurrency 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
applicable Borrower 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.
10.07 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 Eurocurrency 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 Eurocurrency Rate for such Interest Period.
10.08 Mitigation of Circumstances; Replacement of Affected
Lender.
(a) Each Lender shall promptly notify the applicable
Borrower 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 a Borrower to pay any amount pursuant to Section
10.01 or 10.05 or (ii) the occurrence of any circumstances of the
nature described in Section 10.02 or 10.03, 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 applicable Borrower 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 applicable Borrower 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 Committed 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, the
UK Lender, the Canadian Lender, the German Lender, the Swing
Line Lender and the Issuing Bank (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, usage fees and Letter of
Credit fees, any amounts payable under Section 10.04 as a result of
such Lender receiving payment of any Eurocurrency Loan prior to the
end of an Interest Period therefor and all other obligations owed to
such Affected Lender hereunder).
10.09 Economic and Monetary Union in the European Community.
(a) If, as a result of the implementation of the European
economic and monetary union ("EMU"), (i) any currency available
for borrowing under this Agreement (a "national currency") ceases to
be lawful currency of the state issuing the same and is replaced by a
European single or common currency (the "Euro") or (ii) any national
currency and the Euro are at the same time both recognized by the
central bank or comparable Governmental Authority of the state
issuing such currency as lawful currency of such state, then any
amount borrowed hereunder by any Borrower in such national
currency shall be payable in such national currency and any amount
borrowed hereunder in the Euro shall be payable in the Euro. After
the European Central Bank and/or the comparable Government
Authority ceases to recognize any national currency, then the amount
so payable shall be determined by redenominating or converting such
national currency into the Euro at the exchange rate officially fixed
by the European Central Bank for the purpose of implementing the
EMU. Prior to the occurrence of the event or events described in
clause (i) or (ii) above, each amount payable hereunder in any such
national currency will, except as otherwise provided herein, continue
to be payable only in that national currency.
(b) The applicable Borrower shall from time to time, at
the request of any Lender, pay to such Lender the amount of any
losses, damages, liabilities, claims, reduction in yield, additional
expense or increased cost incurred by, or of any reduction in any
amount payable to or in the effective return on its capital to, or any
decrease or delay in the payment of interest or other return foregone
by, such Lender or any of its affiliates as a result of any political, tax,
liquidity, currency exchange or market risk resulting from the
introduction of, changeover to or operation of the Euro in any
applicable nation or eurocurrency market.
(c) In addition, this Agreement will be amended to the
extent determined by the applicable Lender or Lenders and the
Administrative Agent (acting reasonably and in consultation with the
Company) to be necessary to reflect such implementation of the EMU
and change in currency and to put the Lenders and the Borrowers in
the same position, so far as possible, that they would have been in if
such implementation and change in currency had not occurred.
Except as provided in the foregoing provisions of this Section 10.09,
no such implementation or change in currency nor any economic
consequences resulting therefrom shall (i) give rise to any right to
terminate prematurely, contest, cancel, rescind, alter, modify or
renegotiate the provisions of this Agreement or (ii) discharge, excuse
or otherwise affect the performance of any obligation of any
Borrower under this Agreement or any Note.
10.10 Conclusiveness of Statements; Survival of Provisions.
Determinations and statements of any Lender pursuant to Section 10.01,
10.02, 10.03, 10.04 or 10.05 shall be conclusive absent demonstrable error.
Lenders may use reasonable averaging and attribution methods in
determining compensation under Sections 10.01, 10.04 and 10.05, and the
provisions of such Sections shall survive repayment of the Loans and any
termination of this Agreement.
ARTICLE XI
Conditions To Credit Extensions
The obligation of each Lender to make any Credit Extension is subject
to the satisfaction of the following conditions precedent:
11.01 Initial Credit Extension. The obligation of the Lenders to
make the initial Credit Extension 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 9.07 and (to the extent billed)
Section 16.03, (b) evidence, reasonably satisfactory to the Administrative
Agent that all obligations (other than contingent indemnity obligations) of the
Company, Pentair Canada and EuroPentair 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) each Borrower
authorizing or ratifying the execution, delivery and performance by
such Borrower of this Agreement and any Note to be issued by such
Borrower.
(c) Incumbency and Signature Certificates. A certificate
of the Secretary or an Assistant Secretary (or other appropriate
official) of each Borrower certifying the names of the officer or
officers of such entity authorized to sign this Agreement and any Note
to be issued by such entity, together with a sample of the true
signature of each such officer.
(d) Opinions of Counsel. The opinions of (a) Louis L.
Ainsworth, Senior Vice President and General Counsel of the
Company, and (b) Mayer, Brown & Platt, 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 certificate 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 or the issuance of the first Letter of Credit, whichever is earlier.
11.02 All Credit Extensions. The obligation of the applicable
Lender to make each Credit Extension (including the initial Credit Extension)
is subject to the conditions precedent that:
(a) the applicable Borrower shall have delivered timely
notice of such Credit Extension 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
Credit Extension;
(c) the representations and warranties of the Company
contained in this Agreement shall be true on and as of the date of such
Credit Extension; and
(d) after giving effect to such Credit Extension, (i) the
Total Outstandings will not exceed the Total Commitment and (ii)
no applicable Sublimit or other limitation on Credit Extension
hereunder will be exceeded.
Each request for a Credit Extension shall be deemed to be a representation
and warranty by the Company (and, if applicable, the Borrower requesting
such Credit Extension) that the conditions precedent specified in clauses (b),
(c) and (d) above have been satisfied.
11.03 Certain Credit Extensions. The obligation of:
(a) the UK Lender to make any UK Loan is subject to the
condition precedent that the Administrative Agent shall have received
(with sufficient copies for each Lender) an opinion of Feagre, Benson,
Hobson & Audley (or other UK counsel to Pentair UK reasonably
satisfactory to the Administrative Agent) as to the matters set forth on
Schedule 11.03 with respect to Pentair UK;
(b) the Canadian Lender to make any Canadian Loan
which would cause the aggregate principal amount of all Canadian
Loans to exceed CAN$9,000,000 is subject to the condition precedent
that the Administrative Agent shall have received (with sufficient
copies for each Lender) an opinion of Gowling, Strathy & Henderson
(or other Canadian counsel to Pentair Canada reasonably satisfactory
to the Administrative Agent) as to the matters set forth on Schedule
11.03 with respect to Pentair Canada; and
(c) the German Lender to make any German Loan which
would cause the aggregate principal amount of all German Loans to
exceed DM 40,500,000 is subject to the condition precedent that the
Administrative Agent shall have received (with sufficient copies for
each Lender) an opinion of Feagre & Benson (or other German
counsel to EuroPentair reasonably satisfactory to the Administrative
Agent) as to the matters set forth on Schedule 11.03 with respect to
EuroPentair.
ARTICLE XII
Representations and Warranties
The Borrowers represent and warrant that:
12.01 Corporate Existence and Power.
(a) 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.
(b) EuroPentair GmbH is a limited liability company duly
incorporated and validly existing under the laws of Germany, with its
seat in Straubenhardt, Germany and registered in the Handelsregister
in the Amtsgericht Pforzheim under file number HRB-3548, and has
all corporate powers and all material governmental licenses,
authorizations, consents and approvals required to carry on its
business as now conducted.
(c) Pentair Canada, Inc. is a corporation duly
incorporated, validly existing and in good standing under the laws of
Ontario, Canada and has all corporate powers and all material
governmental licenses, authorizations, consents and approvals
required to carry on its business as now conducted.
(d) Pentair UK is a limited company duly incorporated
under the laws of England and Wales, has been in continuous and
unbroken existence since the date of its incorporation, and no action
is currently being taken by the Registrar of Companies for striking
Pentair UK off the register and dissolving it as defunct, and has all
corporate powers and all material governmental licenses,
authorizations, consents and approvals required to carry on its
business as now conducted.
12.02 Corporate and Governmental Authorization; Contravention.
The execution, delivery and performance by the Borrowers of this Agreement
and the Notes are within their respective corporate powers, have been duly
authorized by all necessary corporate action, require no action by or in respect
of, or filing with, any governmental body, agency or official and do not
contravene, or constitute a default under, any provision of applicable law or
regulation or of the certificate of incorporation or by-laws or other
organizational documents of any Borrower or of any agreement, judgment,
injunction, order, decree or other instrument binding upon any Borrower or
result in the creation or imposition of any Lien on any asset of the Company
or any of its Subsidiaries (including any Borrower).
12.03 Binding Effect. This Agreement constitutes a valid and
binding agreement of each of the Borrowers, and the Notes, when executed
and delivered in accordance with this Agreement, will constitute valid and
binding obligations of the respective Borrowers.
12.04 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.
12.05 Litigation. Except as disclosed on Schedule 12.05, there is no
action, suit or proceeding pending, or to the knowledge of any of the
Borrowers threatened, against or affecting any of the Borrowers or any of
their respective Subsidiaries before any court or arbitrator or any
governmental body, agency or official in which there is a reasonable
possibility of an adverse decision which could materially adversely affect the
business, consolidated financial position or consolidated results of operations
of the Company and its Consolidated Subsidiaries, taken as a whole, or which
in any manner questions the validity of this Agreement or the Notes.
12.06 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).
12.07 Taxes. The Borrowers and their respective Subsidiaries have
filed all foreign, United States federal, state and local income, excise and
other tax returns which are required to be filed by them and have paid or
made provision for the payment of all taxes which have become due pursuant
to such returns or pursuant to any assessment in respect thereof received by
any Borrower or any of its Subsidiaries, except such taxes, if any, as are being
contested in good faith and for which adequate reserves have been provided.
The federal income tax liability, if any, of the Borrowers and their respective
Subsidiaries has been determined by the IRS and paid for all years prior to
and including the fiscal year ended December 31, 1996.
12.08 Subsidiaries. Each of the Borrowers' respective Subsidiaries
is a corporation duly incorporated, validly existing and in good standing
under the laws of its jurisdiction of incorporation and has all corporate
powers and all material governmental licenses, authorizations, consents and
approvals required to carry on its business as now conducted.
12.09 Not an Investment Company. None of the Borrowers is an
"investment company" within the meaning of the Investment Company Act
of 1940, as amended.
12.10 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.
12.11 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.
12.12 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.
12.13 Default. No Event of Default or Unmatured Event of Default
has occurred and is continuing.
12.14 Use of Proceeds. The Borrowers will use the proceeds of the
Credit Extensions solely for the purposes described in Section 13.07.
ARTICLE XIII
Covenants
The Borrowers agree that so long as any Lender has any Commitment
hereunder or any amount payable by any Borrower hereunder remains unpaid:
13.01 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 13.02
and 13.03 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 Moody's or S&P; and
(j) from time to time such additional information
regarding the financial position or business of the Borrowers as the
Administrative Agent, at the request of any Lender, may reasonably
request.
13.02 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.
13.03 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.
13.04 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 12.04 or
set forth in Schedule 13.04, 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.
13.05 Consolidations, Mergers and Sales of Assets; Acquisitions.
(a) No Borrower will merge or consolidate with any other
non-affiliated Person or sell, lease, transfer or otherwise dispose of
substantially all of its assets as an entirety to any other Person unless:
(i) the Person surviving the merger or
consolidation is the applicable Borrower; 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.
13.06 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.
13.07 Use of Proceeds. The proceeds of the Loans will be used by
the Borrowers 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.
13.08 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.
13.09 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.
13.10 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.
13.11 Opinions of Counsel. The Company shall cause to be
delivered to the Administrative Agent (with sufficient copies for each
Lender), on or before October 1, 1999, (a) an opinion of Gowling, Strathy &
Henderson (or other Canadian counsel to Pentair Canada reasonably
satisfactory to the Administrative Agent) as to the matters set forth on
Schedule 11.03 with respect to Pentair Canada and (b) an opinion of Feagre
& Benson (or other German counsel to EuroPentair reasonably satisfactory
to the Administrative Agent) as to the matters set forth on Schedule 11.03
with respect to EuroPentair.
13.12 Ownership of Borrowers. The Company shall at all times own
and control, directly or indirectly, all of the equity interests (other than
directors' qualifying shares) of each of the other Borrowers (unless, in the
case of any such Borrower, such Borrower has paid all of its obligations
hereunder and notified the Administrative Agent that it shall no longer be a
"Borrower" hereunder and shall cease to be a party hereto).
ARTICLE XIV
Event of Default
14.01 Events of Default. If one or more of the following events shall
have occurred and be continuing:
(a) any of the Borrowers shall fail to pay within two
Business Days of the date due any principal of any Loan; or any of the
Borrowers 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) any of the Borrowers shall fail to observe or perform
any covenant contained in Sections 13.02 to 13.07, inclusive, or
Section 13.09;
(c) any of the Borrowers 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 13.01(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 any of the Borrowers in this Agreement or in any certificate,
financial statement or other document delivered pursuant to this
Agreement shall prove to have been incorrect in any material respect
when made;
(e) 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 any Borrower or any of its respective Subsidiaries
and such judgment or order shall continue unsatisfied and unstayed
for a period of 60 days;
(j) any Person or two or more Persons acting in concert
shall have acquired beneficial ownership (within the meaning of Rule
13d-3 of the Securities and Exchange Commission under the
Securities Exchange Act of 1934) of 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 Borrowers 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 Borrowers 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
Borrowers; 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 Borrowers (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 Borrowers
(with a copy to all Lenders), declare the Loans and all other
obligations of the Borrowers 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 Borrowers.
14.02 Notice of Default. The Administrative Agent shall give
notice to the Borrowers under subsection 14.01(c) promptly upon being
requested to do so by any Lender and shall thereupon notify all the Lenders
thereof.
14.03 Cash Collateral for Letters of Credit. In addition to the
remedies specified above, if any Event of Default described in subsection
14.01(f) or (g) shall have occurred, or if any other Event of Default described
in Section 14.01 shall have occurred and be continuing and the
Administrative Agent shall (at the request of the Required Lenders) have
demanded that the Borrowers provide cash collateral for the L/C Obligations,
the Company shall pay to the Issuing Bank an amount equal to the then
outstanding L/C Obligations. Such payment shall be in Same Day Funds
which shall be held by such Administrative Agent in a cash collateral account
until all outstanding Letters of Credit are terminated without payment or are
paid. In the event the Company defaults in the payment of any L/C
Obligations, the proceeds of the cash collateral account shall be applied to the
payment thereof. The Company acknowledges and agrees that the Lenders
would not have an adequate remedy at law for failure by the Company to pay
immediately to the Administrative Agent the amount provided under this
Section, and that the Administrative Agent and the Lenders shall have the
right to require the Company to perform specifically such undertaking
whether or not any of the L/C Obligations are due and payable.
ARTICLE XV
The Administrative Agent
15.01 Appointment and Authorization. (a) Each Lender hereby
irrevocably (subject to Section 15.09) 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.
(b) The Issuing Bank shall act on behalf of the Lenders with
respect to any Letters of Credit Issued by it and the documents associated
therewith until such time and except for so long as the Administrative Agent
may agree at the request of the Required Lenders to act for the Issuing Bank
with respect thereto; provided that the Issuing Bank shall have all of the
benefits and immunities (i) provided to the Administrative Agent in this
Article XV with respect to any acts taken or omissions suffered by the Issuing
Bank in connection with Letters of Credit Issued by it or proposed to be
Issued by it and the L/C Related Documents as fully as if the term
"Administrative Agent", as used in this Article XV, included the Issuing
Bank with respect to such acts or omissions and (ii) as additionally provided
in this Agreement with respect to the Issuing Bank.
(c) Each of the UK Lender, the Canadian Lender, the German
Lender and the Swing Line Lender shall have all of the benefits and
immunities (i) provided to the Administrative Agent in this Article XV with
respect to any acts taken or omissions suffered by such Person in connection
with UK Loans, Canadian Loans, German Loans and Swing Line Loans, as
the case may be, made or proposed to be made by it as fully as if the term
"Administrative Agent", as used in this Article XV, included the UK Lender,
the Canadian Lender, the German Lender and the Swing Line Lender, as the
case may be, with respect to such acts or omissions and (ii) as additionally
provided in this Agreement with respect to the UK Lender, the Canadian
Lender, the German Lender and the Swing Line Lender.
15.02 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.
15.03 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, any other Borrower 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.
15.04 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 XI, 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.
15.05 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 a
Borrower 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 XIV; 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.
15.06 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 Borrowers 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 Borrowers. 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 Borrowers which may come into the
possession of any of the Agent-Related Persons.
15.07 Indemnification of Administrative Agent. Whether or not the
transactions contemplated hereby are consummated, the Committed Lenders
shall indemnify upon demand the Agent-Related Persons (to the extent not
reimbursed by or on behalf of the Borrowers and without limiting the
obligation of the Borrowers to do so), in accordance with their Pro Rata
Shares, from and against any and all Indemnified Liabilities; provided that no
Committed 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 Committed 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 Borrowers. The
undertakings in this Section shall survive the termination hereof and the
resignation or replacement of the Administrative Agent.
15.08 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 and the Issuing Bank,
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, the German Lender or the
Issuing Bank.
15.09 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 Committed 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 Committed
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 XV and
Section 16.03 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.
Notwithstanding the foregoing, however, Bank of America may not be
removed as the Agent at the request of the Required Lenders unless Bank of
America or any Affiliate of Bank of America shall also simultaneously be
replaced as German Lender and as Issuing Bank pursuant to documentation
in form and substance reasonably satisfactory to Bank of America and, if
applicable, such Affiliate.
15.10 Withholding Tax.
(a) If any Committed 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 Committed Lender sells, assigns, grants a participation in or otherwise
transfers all or part of the obligations of the Company to such Committed
Lender, such Committed 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 Committed Lender. To the extent of
such percentage amount, the Administrative Agent will treat such Committed
Lender's IRS Form 1001 (or such successor form) as no longer valid, and
such Committed 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 Committed 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
Committed Lender, such Committed 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 Committed Lender is entitled to a reduction in the
applicable withholding tax, the Administrative Agent may withhold from any
interest payment to such Committed Lender an amount equivalent to the
applicable withholding tax after taking into account such reduction. If any
forms or other documentation required by subsection 10.05(e) are not
delivered to the Administrative Agent by any Committed Lender, then the
Administrative Agent may withhold from any interest payment to such
Committed Lender an amount equivalent to the applicable withholding tax.
15.11 Funding Reliance. (a) Unless the Administrative Agent
receives notice from a Committed Lender by noon, Chicago time, on the day
of a proposed Committed Borrowing that such Committed 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 Committed 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
Committed Lender has not made such amount available to the Administrative
Agent, such Committed 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 Committed Lender
which repays such amount within three Business Days, (i) in the case of a
Loan in US Dollars, the Federal Funds Rate, or (ii) in the case of a Loan in
any Available Currency, the Foreign Overnight Rate (together with, in each
case, such other compensatory amounts as may be required to be paid by such
Committed 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 Committed
Lender of any obligation it may have to make any Loan hereunder.
(b) Unless the Administrative Agent receives notice from any
Borrower prior to the due date for any payment hereunder payable by such
Borrower to the Administrative Agent for the account of the Committed
Lenders that such Borrower does not intend to make such payment, the
Administrative Agent may assume that such Borrower has made such
payment and, in reliance upon such assumption, make available to each
Committed Lender its share of such payment. If and to the extent that such
Borrower has not made any such payment to the Administrative Agent, each
Committed 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 (i) in the case of any amount
denominated in US Dollars, the Federal Funds Rate, or (ii) in the case of any
amount denominated in any Available Currency, the Foreign Overnight Rate.
Nothing set forth in this clause (b) shall relieve any Borrower of any
obligation it may have to make any payment hereunder.
15.12 Other Agents. No Person identified herein as a "Co-Documenta-
tion 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 XVI
Miscellaneous
16.01 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 16.01 or such other address or facsimile number as such party may
hereafter specify for the purpose by notice to (i) in the case of any Borrower,
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, the UK Lender, the Canadian Lender, the German Lender, the Swing
Line Lender and the Issuing Bank 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 Borrowers. 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 applicable Borrower to give such notice, and the
Administrative Agent and the Lenders shall not have any liability to such
Borrower 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 Borrowers to repay the Loans and L/C
Obligations 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.
16.02 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.
16.03 Expenses; Documentary Taxes; Indemnification. (a) The
Borrowers 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 by any Borrower
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
respective Borrower 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
Credit Extension, 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 Borrowers hereunder.
16.04 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 Committed Lenders and delivered to the Administrative
Agent:
(a) increase the Commitment of any Lender (except
pursuant to Section 2.07) 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;
(e) release the guaranty set forth in Article XVII; or
(f) amend this Section 16.04;
and provided, further, that no provision hereof affecting the rights or
obligations of the Administrative Agent, the UK Lender, the Canadian
Lender, the German Lender, the Swing Line Lender or the Issuing Bank, in
its capacity as such, may be amended, modified or waived without the written
consent of such Person.
16.05 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.
16.06 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 Borrowers may not assign or
otherwise transfer any of their respective rights under this Agreement.
(b) Any Lender may, with the written consent of the
Company, the Administrative Agent, the UK Lender, the Canadian
Lender, the German Lender, the Swing Line Lender and the Issuing
Bank 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 any Borrower)),
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 364-Day Credit Agreement is in effect, any Committed Lender
shall concurrently assign to the same Assignee a proportionate share
of its rights and obligations under the 364-Day Credit Agreement; (ii)
except in the case of an assignment by a Committed Lender of all of
its Committed Loans, its Commitment and the other rights and
obligations of such Committed Lender hereunder and (if applicable)
under the 364-Day Credit Agreement, the sum of the amount of the
Commitment so assigned and the amount (if any) of the
"Commitment" of such Committed Lender under and as defined in
the 364-Day 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); (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
Borrowers and the Administrative Agent by such Lender and the
Assignee; (y) such Lender and its Assignee shall have delivered to the
Borrowers 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 364-Day Credit Agreement); and (iv) none of the UK
Lender, the Canadian Lender, the German Lender, the Swing Line
Lender or the Issuing Bank may assign its rights and obligations
hereunder unless arrangements satisfactory to the Company and the
Administrative Agent have been made for another Lender or an
affiliate of a Lender to act as UK Lender, Canadian Lender, German
Lender, Swing Line Lender or Issuing Bank, as the case may be.
(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 consents of the
Company, the UK Lender, the Canadian Lender, the German Lender,
the Swing Line Lender and the Issuing Bank 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 applicable Borrower 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 X, as though it were also a Lender hereunder
(provided that no Borrower shall be obligated to pay any amount
under Article X to any Participant which is greater than such
Borrower 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 Committed 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 16.06(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.
16.07 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.
16.08 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.
16.09 Borrowers' Agent. Each Borrower hereby irrevocably
appoints and authorizes the Company to take such action and deliver and
receive notices hereunder as agent on its behalf and to exercise such powers
under this Agreement as delegated to it by the terms hereof, together with all
such powers as are reasonably incidental thereto. In furtherance of and not
in limitation of the foregoing, for administrative convenience of the parties
hereto, the Administrative Agent and the Lenders shall send all notices and
communications to be sent to any Borrower solely to the Company and may
rely solely upon the Company to receive all such notices and other
communications for and on behalf of each Borrower. Neither the Company
nor any of its respective directors, officers, agents or employees shall be
liable to any other Borrower for any action taken or not taken by it in
connection herewith (ii) with the consent or at the request of such Borrower
or (ii) in the absence of its own gross negligence or willful misconduct. No
Person other than the Company (and its authorized officers and employees)
may act as agent for the Borrowers hereunder without the written consent of
the Administrative Agent.
16.10 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.
16.11 Waiver of Jury Trial. EACH BORROWER, 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.
16.12 Consent to Jurisdiction. EACH BORROWER 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. EACH BORROWER 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 ANY BORROWER 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, SUCH BORROWER HEREBY IRREVOCABLY
WAIVES SUCH IMMUNITY IN RESPECT OF ITS OBLIGATIONS
UNDER THIS AGREEMENT.
ARTICLE XVII
Guaranty
17.01 Guaranty. The Company hereby unconditionally and
irrevocably guarantees the full and punctual payment (whether at stated
maturity, upon acceleration or otherwise) of the principal of and interest on
each Loan made to each other Borrower pursuant to this Agreement, and the
full and punctual payment of all other amounts payable by each other
Borrower hereunder. Upon failure by any such Borrower to pay punctually
any such amount, the Company shall forthwith on demand pay the amount
not so paid at the place and in the manner specified in this Agreement.
17.02 Guaranty Unconditional. The obligations of the Company
under this Article XVII shall be irrevocable, unconditional and absolute and,
without limiting the generality of the foregoing, shall not be released,
discharged or otherwise affected by:
(a) any extension, renewal, settlement, compromise,
waiver or release in respect of any obligation of any Borrower (other
than the Company) under this Agreement or any Note, by operation
of law or otherwise;
(b) any modification or amendment of or supplement to
this Agreement or any Note;
(c) any release, impairment, non-perfection or invalidity
of any direct or indirect security for any obligation of any Borrower
(other than the Company) under this Agreement or any Note;
(d) any change in the corporate existence, structure or
ownership of any Borrower, or any insolvency, bankruptcy,
reorganization or other similar proceeding affecting any Borrower or
such Borrower's assets or any resulting release or discharge of any
obligation of any Borrower (other than the Company) contained in
this Agreement or any Note;
(e) the existence of any claim, set-off or other rights
which the Company may have at any time against any other
Borrower, the Administrative Agent, any Lender or any other Person,
whether in connection herewith or any unrelated transaction, provided
that nothing herein shall prevent the assertion of any such claim by
separate suit or compulsory counterclaim;
(f) any invalidity or unenforceability relating to or against
any Borrower (other than the Company) for any reason of this
Agreement or any Note, or any provision of applicable law or
regulation purporting to prohibit the payment by any Borrower (other
than the Company) of the principal of or interest on any Loan or any
other amount payable by any other Borrower under this Agreement;
or
(g) any other act or omission to act or delay of any kind by
any other Borrower, the Administrative Agent, any Lender or any
other Person or any other circumstance whatsoever which might, but
for the provisions of this paragraph, constitute a legal or equitable
discharge of the Company's obligations as guarantor hereunder.
17.03 Discharge only upon Payment in Full; Reinstatement in
Certain Circumstances. The Company's obligations as guarantor hereunder
shall remain in full force and effect until the Commitments shall have
terminated and the principal of and interest on the Loans and all other
amounts payable by the Borrowers under this Agreement shall have been paid
in full. If at any time any payment of the principal of or interest on any Loan
or any other amount payable by any Borrower (other than the Company)
under this Agreement is rescinded or must be otherwise restored or returned
upon the insolvency, bankruptcy or reorganization of such Borrower or
otherwise, the Company's obligations hereunder with respect to such
payment shall be reinstated as though such payment had been due but not
made at such time.
17.04 Waiver by Company. The Company irrevocably waives
acceptance hereof, presentment, demand, protest and any notice not provided
for herein, as well as any requirement that at any time any action be taken by
any Person against any Borrower or any other Person.
17.05 Subrogation. Notwithstanding any payment made by or for
the account of any other Borrower pursuant to this Article XVII, the
Company shall not be subrogated to any right of the Administrative Agent or
any Lender until such time as the Administrative Agent and the Lenders shall
have received final payment in cash of the full amount of all principal of and
interest on the Loans, all fees, all L/C Obligations and all other amounts
payable hereunder.
17.06 Stay of Acceleration. If acceleration of the time for payment
of any amount payable by any Borrower (other than the Company) under this
Agreement or any Note is stayed upon the insolvency, bankruptcy or
reorganization of such Borrower, all such amounts otherwise subject to
acceleration under the terms of this Agreement shall nonetheless be payable
by the Company hereunder forthwith on demand by the Administrative Agent
made at the request of the Required Lenders.
ARTICLE XVIII
Termination of Existing Agreement
Lenders which are parties to the Existing Agreement (and which
constitute "Required Banks" under and as defined in the Existing Agreement)
hereby waive the three business days' notice requirement set forth in
Section 2.8 of the Existing Agreement for terminating the commitments
under the Existing Agreement, and such Lenders and the Company agree that,
subject to the Company's payment of all amounts then payable under the
Existing Agreement (whether or not then due), the Existing Agreement shall
be terminated on the Closing Date (except for any provision of the Existing
Agreement which by its terms survives termination thereof).
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
PENTAIR UK LIMITED
By
Title
PENTAIR CANADA INC.
By
Title
EUROPENTAIR GMBH
By
Title
BANK OF AMERICA, N.A.,
as Administrative Agent
By
Title
BANK OF AMERICA, NA.,
as Issuing Bank and as a Committed Lender
By
Title
BANK OF AMERICA, NA., as German Lender
By
Title
THE FIRST NATIONAL BANK OF CHICAGO,
as a Committed Lender
By
Title
THE FIRST NATIONAL BANK OF CHICAGO,
LONDON BRANCH, as UK Lender
By
Title
FIRST CHICAGO NBD BANK,CANADA,
as Canadian Lender
By
Title
U.S. BANK NATIONAL ASSOCIATION,
as Co-Documentation Agent, as Swing
Line Lender and as a Committed
Lender
By
Title
MORGAN GUARANTY TRUST COMPANY OF
NEW YORK, as Co-Documentation
Agent and as a Committed Lender
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
WELLS 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, the Facility Fee Rate, the LC Fee Rate, the
Usage Fee Rate and the Fronting Margin shall be calculated based on the
table below and the other provisions of this Schedule 1.01.
Level I Level II Level III Level IV Level V Level VI Level VII
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 (bps)
35.0 45.0 55.0 66.25 77.5 100.0 120.0
Facility Fee
(bps) 15.0 17.5 20.0 21.25 22.5 25.0 30.0
LC Fee Rate
(bps) 35.0 45.0 55.0 66.25 77.5 100.0 120.0
Usage Fee
Rate (bps) 35.0 45.0 55.0 66.25 77.5 100.0 120.0
Fronting
Margin
(bps) 10.0 10.0 11.0 13.25 15.5 20.0 24.0
Initially, the Applicable Margin, the Facility Fee Rate, the LC Fee Rate, the
Usage Fee Rate and the Fronting Margin (collectively the "Pricing") shall be
1.00%, 0.25%, 1.00%, 1.00% and 0.20%, respectively.
If at any time after December 1, 1999 both Moody's 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 Moody's 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
13.01 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 1.02
ASSOCIATED COSTS
1. For the purposes of this Agreement, the cost of compliance with
existing requirements of the Bank of England and/or the Financial Services
Authority in respect of UK Loans will be calculated by the UK Lender in
relation to each relevant UK Loan by reference to the circumstances existing
on the first day of each Interest Period in respect of such UK Loan and, if any
such Interest Period exceeds three months, at three calendar monthly intervals
from the first day of such Interest Period during its duration in accordance
with the following formula:
AB + C(B - D) + E x 0.01) = ___ per cent, per annum
100 - (A + C)
Where:
A is the percentage of eligible liabilities which the UK Lender
is from time to time required to maintain as an interest free
cash ratio deposit with the Bank of England to comply with
cash ratio requirements.
B is the percentage rate per annum at which British Pound
Sterling deposits are offered by the UK Lender, in accordance
with its normal practice, for a period equal to (i) the relevant
Interest Period (or, as the case may be, remainder of such
Interest Period) in respect of the relevant UK Loan or (ii)
three months, whichever is shorter, to a leading bank in the
London interbank market at or about 11:00 A.M. (London,
England time) in a sum approximately equal to the amount of
such UK Loan.
C is the percentage of eligible liabilities which the UK Lender
is required from time to time to maintain as interest bearing
special deposits with the Bank of England.
D is the percentage rate per annum payable by the Bank of
England to the UK Lender on interest bearing special
deposits.
E is the rate payable by the UK Lender to the Financial Services
Authority pursuant to the Fees Regulations (but, for this
purpose, ignoring any minimum fee required pursuant to the
Fees Regulations) and expressed in pounds per British pounds
1,000,000 of the Fee Base of the UK Lender.
2. For the purposes of this Schedule, (a) "eligible liabilities" and
"special deposits" shall have the meanings ascribed to them from time to time
under or pursuant to the Bank of England Act 1988 or (as may be
appropriate) by the Bank of England; (b) "Fee Regulations" means the
Banking Supervision (Fees) Regulations 1998 or such other regulation as may
be in force from time to time in respect of the payment of fees for banking
supervision, and (c) "Fee Base" shall have the meaning ascribed to it and
shall be calculated in accordance with the Fees Regulations.
3. The percentages used in A and C above shall be those required to be
maintained on the first day of the relevant period as determined in accordance
with B above.
4. In application of the above formula, A, B, C and D will be included
in the formula as figures and not as percentages (e.g., if A is 0.5 per cent,
and B is 12 per cent, AB will be calculated as 0.5 x 12 and not as 0.5 per cent.
x 12 per cent).
5. Calculations will be made on the basis of a 365 day year.
6. A negative result obtained by subtracting D from B shall be taken as
zero.
7. The resulting figures shall be rounded upwards, if not already such a
multiple, to the nearest whole multiple of one-thirty-second of one per cent.
per annum.
8. Additional amounts calculated in accordance with this Schedule are
payable on each day on which interest is payable on the relevant UK Loan.
9. The determination of the Associated Costs Rate in relation to any
period shall, in the absence of manifest error, be conclusive and binding on
all of the parties hereto.
10. The UK Lender may from time to time, after consultation with Pentair
UK, the Administrative Agent and the Committed Lenders, determine and
notify to all the parties hereto any amendments or variations which are
required to be made to the formula set out above in order to comply with any
requirements from time to time imposed by the Bank of England or the
Financial Services Authority in relation to UK Loans (including any
requirements relating to sterling primary liquidity) and any such
determination shall, in the absence of manifest error, be conclusive and
binding on all of the parties hereto.
SCHEDULE 2.01
COMMITMENTS
AND PRO RATA SHARES
Pro
Rata
Lender Commitment Share
Bank of America, N.A. $37,187,500 8.75000%
The First National Bank of Chicago $37,187,500 8.75000%
Morgan Guaranty Trust Company of New York $37,187,500 8.75000%
U.S. Bank National Association $37,187,500 8.75000%
First Union National Bank $21,250,000 5.00000%
The Industrial Bank of Japan, Limited $21,250,000 5.00000%
The Bank of Tokyo - Mitsubishi, Ltd.,
Chicago Branch $21,250,000 5.00000%
Bank Hapoalim B.M. $12,484,375 2.93750%
Credit Agricole Indosuez $12,484,375 2.93750%
Credit Lyonnais Chicago Branch $12,484,375 2.93750%
SunTrust Bank, Central Florida, N.A. $12,484,375 2.93750%
Wells Fargo Bank, National Association $12,484,375 2.93750%
Banca di Roma - Chicago Branch $10,625,000 2.50000%
Banca Nazionale del Lavoro S.p.A. New York Branch $10,625,000 2.50000%
BankBoston, N.A. $10,625,000 2.50000%
Bank of Montreal $10,625,000 2.50000%
The Bank of New York $10,625,000 2.50000%
Banque Nationale de Paris $10,625,000 2.50000%
Credit Suisse First Boston $10,625,000 2.50000%
Firstar Bank of Minnesota, N.A. $10,625,000 2.50000%
Fleet National Bank $10,625,000 2.50000%
Mellon Bank, N.A. $10,625,000 2.50000%
Sanwa Bank Limited $10,625,000 2.50000%
Commerzbank Aktiengesellschaft, New York
and Grand Cayman Branches $9,296,875 2.18750%
Michigan National Bank $9,296,875 2.18750%
National City Bank $9,296,875 2.18750%
Banco Espirito Santo, S.A. New York Branch $5,312,500 1.25000%
TOTAL $425,000,000 100.00000%
SCHEDULE 11.03
MATTERS TO BE INCLUDED IN OPINIONS
OF
FOREIGN LEGAL COUNSEL TO BORROWERS
1. [Pentair UK Limited][Pentair Canada Inc.][EuroPentair Gmbh] (the
"Borrower") has been duly incorporated and is validly existing as a
[limited liability company][corporation] under the laws of [England
and Wales][The Federal Republic of Germany] [Canada]. The
[Borrower has been in continuous and unbroken existence since the
date of its incorporation and no action is currently being taken by the
Registrar of Companies for striking the Borrower off the register and
dissolving it as defunct and the] Borrower has all corporate power
and all material governmental licenses, authorizations, consents and
approvals required to carry on its business as now conducted.
2. The Borrower has the corporate power and corporate authority to
execute, deliver and perform all of its obligations under the Credit
Agreement, the Notes and the other documents executed in
connection therewith (the "Transaction Documents"). The execution
and delivery of the Transaction Documents by the Borrower and the
consummation of the transactions contemplated thereby have been
duly authorized by all necessary action of the Borrower.
3. The execution, delivery and performance by the Borrower of the
Transaction Documents will not contravene, result in a violation of,
or constitute an event of default under, (a) its articles of incorporation
or other constituting documents (if any), (b) any
[English][German][Canadian] Requirement of Law, or (c) to our
knowledge, any agreement, judgement, injunction, order, decree, or
other instrument binding upon the Borrower.
4. No approval, consent, exemption or authorization or other action by,
or notice to, or filing with, any Government Authority is necessary or
required in connection with the execution, delivery or performance
by, or enforcement against, the Borrower of the Transaction
Documents (except in the case of enforcement involving litigation or
similar proceedings, filings of complaints and other pleadings with
courts).
5. No withholding tax, stamp taxes or other taxes are payable in
connection with the implementation and enforcement of the
Transaction Documents.
6. Such other matters as may be reasonably requested by the
Administrative Agent and which are customary to be given by
borrower's counsel in the country from which the opinion is being
given.
All opinions should be addressed to each financial institution and
each agent party to the Long Term Credit Agreement dated as of September
2, 1999. Customary qualifications, assumptions and limitations will be
permitted.
SCHEDULE 12.05
LITIGATION
1. Horizon Cruise Ship Litigation.
Twenty-eight lawsuits have been brought against Essef Corporation,
("Essef"), before the United States District Court of the Southern District of
New York, including a class action on behalf of passengers, various
individual passenger actions, and claims by Celebrity Cruises, Inc.
("Celebrity"), concerning alleged exposure by passengers to Legionnaire's
bacteria aboard the cruise ship M/V Horizon, a ship operated by Celebrity.
The claims against Essef are based on allegations that Essef designed,
manufactured and marketed sand filters that were installed in a spa on the
Horizon and allegations that the spa contained bacteria that infected certain
passengers on cruises from December, 1993 through July, 1994. Claims have
also been asserted against Celebrity; Fantasia Cruising, Inc. (the Horizon's
owner); the German company that designed the spa; and several companies
that designed, manufactured and marketed other component parts of the spa.
Plaintiffs in the individual passenger actions, and Celebrity have recently
amended their claims to include claims for punitive damages. The aggregate
claims in the class action and other actions against Essef and the other
defendants exceed $200 million. Essef is vigorously defending these matters
and believes it has meritorious defenses. Subject to reservations of rights
served on Essef by involved insurance carriers, and the outcome of a
declaratory judgment action brought by Fidelity & Casualty Insurance
Company against Essef and other potentially involved insurance carriers,
Essef anticipates that costs incurred in these matters, including defense costs
as well as payments made to plaintiffs, if any, will be paid by the involved
insurance carriers.
Essef and other defendants entered into an agreement, subject to court
approval, to settle the class action portion of the aforementioned litigation.
Claims in the class action exceed $100 Million, and Essef's portion of the
settlement will not exceed $535,000. In November, 1998, the Court issued
an order that preliminarily approved the settlement, subject to final court
approval. Essef's portion of this settlement will be paid by one of its
insurance carriers.
SCHEDULE 13.04
LIENS
- None -
SCHEDULE 16.01
NOTICE ADDRESSES
Borrowers
Pentair, Inc.
1500 County Road B2 West
St. Paul, Minnesota 55113-3105
Attn: Roy Rueb
651-639-5258
651-639-5251 (fax)
Pentair UK Limited
c/o Pentair, Inc.
1500 County Road B2 West
St. Paul, Minnesota 55113-3105
Attn: Roy Rueb
651-639-5258
651-639-5251 (fax)
Pentair Canada Inc.
c/o Pentair, Inc.
1500 County Road B2 West
St. Paul, Minnesota 55113-3105
Attn: Roy Rueb
651-639-5258
651-639-5251 (fax)
EuroPentair Gmbh
c/o Pentair, Inc.
1500 County Road B2 West
St. Paul, Minnesota 55113-3105
Attn: Roy Rueb
651-639-5258
651-639-5251 (fax)
Bank of America, N.A, as Administrative Agent
For administrative notices regarding borrowings, payments, conversions,
continuations, letters of credit, fees, interest and similar notices:
Agency Administrative Services 5596
Mail Code CA4-706-05-09
1850 Gateway Blvd.
Concord, CA 94520-3282
Attn: Michele L. Widmer
925-675-8430
925-675-8500 (fax)
For notices regarding amendments, waivers, financial statements,
assignments and all other notices:
Agency Management 10831
Mail Code CA5-701-12-09
1455 Market Street
San Francisco, CA 94103-1399
Attn: Gary G. Flieger
415-436-3484
415-503-5005 (fax)
Bank of America, N.A., as a Committed Lender
231 South LaSalle Street- 9th Floor
Chicago, IL 60697
Attn: Lisa S. Donoghue
312-828-3898
312-987-7384 (fax)
Bank of America, N.A., as Issuing Bank
333 Beaudry Avenue
Los Angeles, CA 90017-1466
Attn: Sandra Leon
213-345-5231
213-345-6694 (fax)
Bank of America, N.A., as German Lender
Ulmenstrasse 30
D-60325 Frankfurt
Germany
Attn: Karl R. Kerr
011-49-69-71001325
011-49-69-71001404
The First National Bank of Chicago, as a Committed Lender
Credit Contact:
One First National Plaza, 14th Floor
Mail Code IL1-0364
Chicago, IL 60670
Attn: Lisa Whatley, Vice President
312-732-6503
312-732-1117 (fax)
Administrative/ Operations and Bid Loan Contact:
One First National Plaza
Mail Code IL1-0088
Chicago, IL 60670
Attn: Anthony Catron, Client Service Assoc.
312-732-6137
312-732-2715 (fax)
L/C Contact:
300 S. Riverside
IL1-0236, 7th Floor
Chicago, IL 60670
Attn: Marnetta Harris, Documentary Product Associate
312-954-1948
312-954-1964 (fax)
The First National Bank of Chicago, London Branch, as UK Lender
1 Triton Square, NW1 3fn
Mail Code IL1-5000
London, England
Attn: Dot O'Flaherty
011-44-171-903-4150
011-44-171-903-4148 (fax)
First Chicago, NBD Bank, Canada, as Canadian Lender
161 Bay Street
Suite 4240
Toronto, Ontario
Attn: Indrani Lazarus
416-365-8262
416-363-7574
U.S. Bank National Association
Credit Contact:
601 2nd Avenue South
MPFP0702
Minneapolis, MN 55402-4302
Attn: Mark R. Olmon
612-973-1085
612-973-0825 (fax)
Administrative/ Operations Contact:
601 2nd Avenue South - MPFP0702
Minneapolis, MN 55402-4302
Attn: Karen Johnson
612-973-0546
612-973-0825 (fax)
Morgan Guaranty Trust Company of New York
Credit Contact:
60 Wall Street
New York, NY 10260-0060
Attn: David Stone
212-648-1291
212-648-5014 (fax)
Administrative/ Operations Contact:
Morgan Christiana Center
500 Stanton Christiana Road
Newark, DE 19713-2107
Attn: Andrew Lipsett, Associate
Telex Number: 177615 MGT UT or 620106 MGT UW
302-634-1872 (fax)
Banca di Roma - Chicago Branch
Credit and Bid Loan Contact:
225 West Washington - Suite 1200
Chicago, IL 60606
Attn: Joyce Montgomery
312-704-2648
312-726-3058 (fax)
Administrative/ Operations Contact:
225 West Washington, Suite 1200
Chicago, IL 60606
Attn: Ms. Enza Geraci
312-704-2603
312-726-3058 (fax)
Banca Nazionale del Lavoro S.p.A. New York Branch
Credit Contact:
Rockefeller Plaza
25 West 51st Street
New York, NY 10019
Attn: Mike Medida
212-314-0263
212-489-9088 (fax)
Banco Espirito Santo, S.A. New York Branch
Credit Contact:
320 Park Avenue
New York, NY 10022
Attn: Terry Hull
212-702-3430
212-750-3999 (fax)
Administrative/ Operations Contact:
320 Park Avenue
New York, NY 10022
Attn: Lori Thompson
212-702-3466
212-980-1777 (fax)
Bank Hapoalim B.M.
Credit Contact:
225 N. Michigan Ave., Suite 900
Chicago, IL 60601
Attn: Michael J. Kearney, Vice President
312-228-6425
312-228-6490 (fax)
and
Attn: Michael J. Byrne, Vice President, Sr. Lending Officer
312-228-6410
312-228-6490 (fax)
Administrative/ Operations Contact:
Attn: Karen M. Adams, Loan Administrator
312-228-6453
312-228-6490 (Fax)
Bank of Montreal
Credit Contact:
115 South LaSalle Street
13th Floor West
Chicago, IL 60603
Attn: Ed McGuire
312-750-3755
312-750-4314 (fax)
Administrative/Operations Contact:
115 South LaSalle Street
Chicago, IL 60603
Attn: Sonda Maloy, Deal Specialist
312-750-4334
312-750-4314 (fax)
L/C Contact:
115 South LaSalle Street
Chicago, IL 60603
Attn: Frank Petrassi
312-461-3890
312-461-7394 (fax)
The Bank of New York
Credit Contact:
One Wall Street, 19th Floor
New York, NY 10286
Attn: Richard A. Raffetto, Vice President
212-635-8044
212-635-1208/09 (fax)
Administrative/ Operations and Bid Loan Contact:
Attn: Yvonne M. Forbes, Assistant Treasurer
212-635-6691
212-635-7926 (fax)
The Bank of Tokyo-Mitsubishi, Ltd., Chicago Branch
Credit Contact:
90 South Seventh Street
5100 Norwest Center
Minneapolis, MN 55402-4122
Attn: Jeffrey R. Arnold, Vice President and Manager
612-333-0505
612-333-3735 (fax)
Administrative/ Operations Contact:
Attn: Janice Henning, Loan Administration
312-696-4710
312-696-4532 (fax)
254009 BTMCGO
Bid Loan Contact:
Attn: Jeffrey R. Arnold
612-333-0505
612-333-3735 (fax)
BankBoston, N.A.
Credit and Bid Loan Contact:
100 Federal Street
Mail Stop 01-10-01
Boston, MA 02110
Attn: Esteban Arrondo, Vice President
617-434-8976
617-434-0601
[email protected] (e-mail)
Administrative/ Operations Contact:
100 Federal Street
Mail Stop 01-10-01
Boston, MA 02110
Attn: Monica Adler, Senior Account Manager
617-434-3119
617-434-0601 (fax)
L/C Contact:
100 Federal Street
Mail Stop 50-04-01
Boston, MA 02110
Attn: Anne Tollis
617-434-2385
617-434-5414 (fax)
Banque Nationale de Paris
Credit Contact:
209 South LaSalle Street
Chicago, IL 60604
Attn: Jo Ellen Bender, Senior Vice President
312-977-2225
312-977-1380 (fax)
Administrative/ Operations Contact:
209 South LaSalle Street
Chicago, IL 60604
Attn: Catherine Lui, Assistant Vice President
312-977-1386
312-977-2234 (fax)
Bid Loan Contact:
209 South LaSalle Street
Chicago, IL 60604
Attn: Tim Alvord, Loan Administrator
312-977-2250
312-977-2234 (fax)
L/C Contact:
209 South LaSalle St.
Chicago, IL 60604
Attn: Jeffrey Wykowski, Assistant Vice President
312-977-2226
312-977-1380 (fax)
Commerzbank Aktiengesellschaft,
New York and Grand Cayman Branches
Credit Contact:
20 South Clark Street - Suite 2700
Chicago, IL 60603
Attn: Mr. J. Timothy Shortly
(312) 795-1620
(312) 236-2827 (fax)
Administrative/ Operations Contact:
Two World Financial Center
New York, NY 10281-1050
Attn: Mr. Al Caputo
212-266-7694
212-266-7772 (fax)
Bid Loan Contact:
20 South Clark Street - Suite 2700
Chicago, IL 60603
Attn: Mr. J. Timothy Shortly
312-795-1620
312-236-2827 (fax)
Credit Agricole Indosuez
Credit Contact:
55 E. Monroe- Suite 4700
Chicago, IL 60603
Attn: Richard Drennan, Vice President
312-917-7441
312-372-9329 (fax)
Administrative/ Operations, Bid Loan and L/C Contact:
Credit Administration
55 E. Monroe, 47th Floor
Chicago, IL 60603
Attn: Susan Kolodziey
312-917-7560
312-372-4421 (fax)
Credit Lyonnais Chicago Branch
Credit Contact:
227 W. Monroe Street - Suite 3800
Chicago, IL 60606
Attn: Corey Billups
312-220-7309
312-641-0527 (fax)
Administrative/ Operations and Bid Loan Contact:
Credit Lyonnais Chicago Branch
227 W. Monroe Street, suite 3800
Chicago, IL 60606
Attn: Michelle Evans
312-220-7319
312-641-5834 (fax)
Credit Suisse First Boston
Credit Contact:
11 Madison Avenue - 20th Floor
New York, NY 10010
Attn: David Kratovil
212-325-9155
212-325-8615
[email protected]
Administrative/ Operations Contact:
5 World Trade Center, 8th Floor
New York New York 10048
Attn: Ron Davis
212-325-1965
212-335-0593 (fax)
Bid Loan Contact:
Janko Gogolja
11 Madison Avenue, 20th Floor
New York, NY 10010
212-325-0699
212-325-8319 (fax)
First Union National Bank
Credit, Bid Loan and L/C Contact:
301 S. College Street
Charlotte, NC 28288-0745
Attn: Peter D. Steffen
704-383-9214
704-383-7236 (fax)
Administrative/ Operations Contact:
201 S. College Street
Charlotte, NC 28288-1183
Attn: Todd Tucker, CSNA
704-383-0905
704-383-7999 (fax)
Firstar Bank of Minnesota, N.A.
Credit and Bid Loan Contact:
101 E. Fifth Street, 12th Floor
St. Paul, MN 55101-1860
Attn: Dennis Ruggles, Vice President
651-229-6641
651-298-6026 (fax)
Administrative/ Operations Contact:
Firstar Bank of Minnesota
101 E. Fifth Street, 12th Floor
St. Paul, MN 55101-1860
Attn: Patricia Hollier, Administrative Assistant
651-225-3843
651-298-6026 (fax)
L/C Contacts:
Manager
Firstar Bank, N.A.
777 East Wisconsin Avenue
P.O. Box 532
Milwaukee, WI 53201
Attn: Margie Greiner, Assistant Vice President
414-765-4203
414-765-6207 (fax)
Attn: Margie Greiner, Assistant Vice President
414-765-4203
414-765-6207 (fax)
Attn: Jean Hartman
414-765-6849
414-765-6207 (fax)
Attn: Kay Bremser
414-765-5626
414-765-6207 (fax)
Fleet National Bank
Credit Contact:
One Federal Street
Mail Stop MA-OF-DO7K
Boston, MA 02211
Attn: David Harnisch
617-346-0597
617-346-0145 (fax)
Administrative/ Operations and L/C Contact:
One Federal Street
MA OF DO7K
Boston, MA 02211
Attn: Jung Vetters, Loan Administrator
617-346-4928
617-346-0595 (fax)
The Industrial Bank of Japan, Limited
Credit Contact:
227 West Monroe Street - Suite 2600
Chicago, IL 60606
Attn: Koichi Zaiki
312-855-8254
312-855-8200 (fax)
Administrative/ Operations Contacts:
Credit Administration #1 Department
1251 Avenue of the Americas
New York, New York 10020-1104
Attn: Agnes Aberin
212-282-4061
212-282-4478 (fax)
and
Attn: Richard Emmich, Vice President
212-282-4092
212-282-4478 (fax)
Mellon Bank, N.A.
Credit Contact:
1 Mellon Bank Center
Room 370
Pittsburgh, PA 15258-0001
Attn: Louis Flori, Relationship Manager
412-234-7298
412-236-1914 (fax)
Administrative/ Operations Contact:
3 Mellon Bank Center
Pittsburgh, PA 15259
Attn: Richard Bouchard, Loan Administrator
412-234-5767
412-209-6117 (fax)
L/C Contact:
3 Mellon Bank Center
Room 2329
Pittsburgh, PA 15259
Attn: Joe Borello, Manager
412-234-2194
412-234-2733 (fax)
Michigan National Bank
Credit Contact:
27777 Inkster Road
Farmington Hills, MI 48333
Mail Code 10-36
Attn: Annette Gordon, Relationship Manager
248-473-4337
248-473-4345
[email protected] (e-mail)
Administrative/ Operations Contact:
27777 Inkster Road
Farmington Hills, MI 48333
Mail Code 10-36
Attn: Jessie Massey, Secretary
248-473-4379
248-473-4345 (fax)
National City Bank
Credit Contact:
20 N. Wacker Drive - Suite 3012
Chicago, IL 60606
Attn: Matthew R. Klinger, Asst. Vice President
312-739-0953
312-240-0301 (fax)
[email protected] (e-mail)
Administrative/ Operations, Bid Loan and L/C Contact:
23000 Mill Creek Blvd.
Highland Hills, OH 44122
Attn: Revette Vickerstaff, Manager
216-488-7080
216-488-7110
Sanwa Bank Limited
Credit Contact:
10 S. Wacker Drive
Chicago, IL 60606
Attn: Ken Eichwald, First Vice President
312-368-3006
312-346-6677 (fax)
Administrative/ Operations and L/C Contact:
55 East 52nd Street
24th Floor
New York, New York 10055
Attn: Renko Hara, Assistant Vice President
212-339-6390
212-754-2368 (fax)
SunTrust Bank, Central Florida, N.A.
Credit Contact:
200 South Orange Avenue
Orlando, FL 32801
Attn: Joseph B. Kabourek
407-237-4284
407-237-6894 (fax)
Administrative/ Operations and Bid Loan Contact:
Attn: Joanna Contreras
407-237-5283
407-237-5342 (fax)
Wells Fargo Bank, National Association
Credit Contact:
Sixth & Marquette
MAC-N9305-031
Minneapolis, MN 55479
Attn: Robert Carino
612-667-3751
612-667-4145 (fax)
Administrative/ Operations Contact:
201 Third St.
MAC-0187-081
San Francisco, CA 94103
Attn: Ginnie Padgett, VP/Manager
415-477-5374
415-979-0675 (fax)
Bid Loan and L/C Contact:
Sixth & Marquette
MAC N9305-031
Minneapolis, MN 55479
Attn: Ethel Phillips, Relationship Associate
612-667-0803
612-667-4145 (fax)
