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EXHIBIT 4.5
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CREDIT AGREEMENT
DATED AS OF JUNE 8, 2001
AMONG
IDEX CORPORATION
BANK OF AMERICA, N.A.,
AS AGENT AND ISSUING BANK
AND
THE OTHER FINANCIAL INSTITUTIONS PARTY HERETO
BANC OF AMERICA SECURITIES LLC,
AS SOLE LEAD ARRANGER AND SOLE BOOK MANAGER
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TABLE OF CONTENTS
Page
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ARTICLE I - DEFINITIONS...........................................................................................1
1.01 Certain Defined Terms. ..............................................................................1
1.02 Other Interpretive Provisions........................................................................29
1.03 Accounting Principles................................................................................30
1.04 Currency Equivalents Generally.......................................................................30
1.05 Rounding.............................................................................................30
1.06 References to Agreements and Laws....................................................................30
ARTICLE II - THE CREDITS.........................................................................................31
2.01 Amounts and Terms of Commitments.....................................................................31
2.02 Loan Accounts, Evidence of Debt......................................................................31
2.03 Procedure for Committed Borrowing....................................................................32
2.04 Conversion and Continuation Elections for Committed Loans............................................33
2.05 Utilization of Revolving Commitments in Offshore Currencies..........................................35
2.06 Bid Borrowings.......................................................................................37
(a) General......................................................................................37
(b) Procedure for Bid Borrowings.................................................................37
(c) Submitting Competitive Bids..................................................................38
(d) Notice to Company of Competitive Bids........................................................39
(e) Acceptance of Competitive Bids...............................................................40
(f) Procedures for Identical Bids................................................................40
(g) Notice to Banks of Acceptance or Rejection of Bids...........................................40
2.07 Voluntary Termination or Reduction of Commitments....................................................41
2.08 Optional Prepayments.................................................................................41
2.09 Currency Exchange Fluctuations.......................................................................42
2.10 Mandatory Prepayments and Repayment..................................................................42
(a) Mandatory Prepayments of Loans...............................................................42
(b) Repayment....................................................................................42
(c) Mandatory Prepayment of Excess Receivables Sale Proceeds
or Subsidiary Debt...........................................................................43
2.11 Interest.............................................................................................43
2.12 Fees.................................................................................................44
(a) Arrangement, Agency Fees.....................................................................44
(b) Facility Fees................................................................................44
(c) Utilization Fees.............................................................................44
2.13 Computation of Fees and Interest.....................................................................45
2.14 Payments by the Company..............................................................................45
2.15 Payments by the Banks to the Agent...................................................................46
2.17 Increase in Commitments..............................................................................47
2.18 Termination of Existing Credit Agreement.............................................................49
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ARTICLE III - THE LETTERS OF CREDIT..............................................................................49
3.01 The Letter of Credit Subfacility.....................................................................49
3.02 Issuance, Amendment and Renewal of Letters of Credit.................................................50
3.03 Risk Participations, Drawings and Reimbursements.....................................................52
3.04 Repayment of Participations..........................................................................54
3.05 Role of the Issuing Bank.............................................................................54
3.06 Obligations Absolute.................................................................................55
3.07 Letter of Credit Fees................................................................................56
3.08 Applicability of ISP98 and UCP.......................................................................57
3.09 Outstanding Letters of Credit........................................................................57
ARTICLE IV - TAXES, YIELD PROTECTION AND ILLEGALITY..............................................................58
4.01 Taxes................................................................................................58
4.02 Illegality...........................................................................................59
4.03 Increased Costs and Reduction of Return..............................................................60
4.04 Funding Losses.......................................................................................61
4.05 Inability to Determine Rates.........................................................................61
4.06 Reserves on Offshore Rate Loans......................................................................62
4.07 Certificates of Banks................................................................................62
4.08 Substitution of Banks................................................................................63
4.09 Survival.............................................................................................63
ARTICLE V - CONDITIONS PRECEDENT.................................................................................63
5.01 Conditions of Initial Loans..........................................................................63
(a) Loan Documents...............................................................................63
(b) Resolutions; Incumbency......................................................................63
(c) Organization Documents; Good Standing........................................................64
(d) Legal Opinions...............................................................................64
(e) Payment of Fees..............................................................................64
(f) Certificate..................................................................................64
(g) Cancellation of the German Facility..........................................................64
(h) Other Documents..............................................................................64
5.02 Conditions to All Credit Extensions..................................................................64
(a) Notice of Borrowing or Issuance..............................................................65
(b) Continuation of Representations and Warranties...............................................65
(c) No Existing Default..........................................................................65
ARTICLE VI - REPRESENTATIONS AND WARRANTIES......................................................................65
6.01 Corporate Existence and Power........................................................................65
6.02 Corporate Authorization; No Contravention............................................................66
6.03 Governmental Authorization...........................................................................66
6.04 Binding Effect.......................................................................................66
6.05 Litigation...........................................................................................66
6.06 No Default...........................................................................................67
6.07 ERISA Compliance.....................................................................................67
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6.08 Use of Proceeds; Margin Regulations..................................................................68
6.09 Title to Properties..................................................................................68
6.10 Taxes................................................................................................68
6.11 Financial Condition..................................................................................68
6.12 Environmental Matters................................................................................69
6.13 Regulated Entities...................................................................................69
6.14 Subsidiaries.........................................................................................69
6.15 Insurance............................................................................................69
6.16 Swap Obligations.....................................................................................69
6.17 Full Disclosure......................................................................................69
ARTICLE VII - AFFIRMATIVE COVENANTS..............................................................................70
7.01 Financial Statements.................................................................................70
7.02 Certificates; Other Information......................................................................71
7.03 Notices..............................................................................................72
7.04 Preservation of Corporate Existence, Etc. ..........................................................72
7.05 Maintenance of Property..............................................................................73
7.06 Insurance............................................................................................73
7.07 Payment of Tax Obligations...........................................................................73
7.08 Compliance with Laws.................................................................................73
7.09 Compliance with ERISA................................................................................74
7.10 Inspection of Property and Books and Records.........................................................74
7.11 Environmental Laws...................................................................................74
7.12 Use of Proceeds......................................................................................74
ARTICLE VIII - NEGATIVE AND FINANCIAL COVENANTS..................................................................74
8.01 Limitation on Liens..................................................................................75
8.02 Disposition of Assets................................................................................77
8.03 Consolidations and Mergers...........................................................................78
8.04 Loans and Investments................................................................................78
8.05 Limitation on Indebtedness...........................................................................80
8.06 Transactions with Affiliates.........................................................................81
8.07 Contingent Obligations...............................................................................81
8.08 Restricted Payments..................................................................................82
8.09 ERISA................................................................................................82
8.10 Change in Business...................................................................................83
8.11 Accounting Changes...................................................................................83
8.12 Modifications, etc. of Subordinated Debt and Related Documents.......................................83
8.13 Sale-Leasebacks......................................................................................83
8.14 No Negative Pledges; Subsidiary Payments.............................................................83
8.15 Foreign Operations...................................................................................83
8.16 Financial Covenants..................................................................................84
(a) Consolidated Net Worth.......................................................................84
(b) Interest Coverage Ratio......................................................................84
(c) Leverage Ratio...............................................................................84
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ARTICLE IX - EVENTS OF DEFAULT...................................................................................84
9.01 Event of Default.....................................................................................84
(a) Non-Payment..................................................................................84
(b) Representation or Warranty...................................................................84
(c) Specific Defaults............................................................................84
(d) Other Defaults...............................................................................84
(e) Cross-Default................................................................................85
(f) Insolvency; Voluntary Proceedings............................................................85
(g) Involuntary Proceedings......................................................................85
(h) ERISA........................................................................................86
(i) Monetary Judgments...........................................................................86
(j) Change of Control............................................................................86
(k) Invalidity of Subordination Provisions.......................................................86
9.02 Remedies.............................................................................................86
9.03 Rights Not Exclusive.................................................................................87
ARTICLE X - THE AGENT............................................................................................87
10.01 Appointment and Authorization; "Agent"...............................................................87
10.02 Delegation of Duties.................................................................................88
10.03 Liability of Agent...................................................................................88
10.04 Reliance by Agent....................................................................................88
10.05 Notice of Default....................................................................................89
10.06 Credit Decision......................................................................................89
10.07 Indemnification of Agent.............................................................................90
10.08 Agent in Individual Capacity.........................................................................90
10.09 Successor Agent......................................................................................91
ARTICLE XI - MISCELLANEOUS.......................................................................................91
11.01 Amendments and Waivers...............................................................................91
11.02 Notices..............................................................................................92
11.03 No Waiver; Cumulative Remedies.......................................................................93
11.04 Costs and Expenses...................................................................................93
11.05 Company Indemnification..............................................................................94
11.06 Payments Set Aside...................................................................................94
11.07 Successors and Assigns...............................................................................94
11.08 Assignments, Participations, etc.....................................................................95
11.09 Designated Bidders...................................................................................97
11.10 Confidentiality......................................................................................97
11.11 Set-off..............................................................................................98
11.12 Automatic Debits of Fees.............................................................................98
11.13 Notification of Addresses, Lending Offices, Etc. ...................................................98
11.14 Counterparts.........................................................................................99
11.15 Severability.........................................................................................99
11.16 Foreign Lenders......................................................................................99
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11.17 No Third Parties Benefited..........................................................................100
11.18 Governing Law and Jurisdiction......................................................................100
11.19 Waiver of Jury Trial................................................................................100
11.20 Judgment............................................................................................101
11.21 Entire Agreement....................................................................................101
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SCHEDULES
Schedule 2.01 Commitments
Schedule 3.09 Outstanding Letters of Credit
Schedule 6.05 Litigation
Schedule 6.07 ERISA
Schedule 6.11 Permitted Liabilities
Schedule 6.12 Environmental Matters
Schedule 6.14 Subsidiaries and Minority Interests
Schedule 6.15 Insurance Matters
Schedule 8.01 Permitted Liens
Schedule 8.04 Permitted Investments
Schedule 8.05 Permitted Indebtedness
Schedule 8.07 Contingent Obligations
Schedule 11.02 Lending Offices; Addresses for Notices
EXHIBITS
Exhibit 2.02 Form of Promissory Note
Exhibit 2.03(a) Form of Notice of Borrowing
Exhibit 2.04 Form of Notice of Conversion/Continuation
Exhibit 2.06(b)(i) Form of Competitive Bid Request
Exhibit 2.06(b)(ii) Form of Invitation for Competitive Bids
Exhibit 2.06(c) Form of Competitive Bid
Exhibit 5.01(d) Form of Legal Opinion of Company's Counsel
Exhibit 7.02(b) Form of Compliance Certificate
Exhibit 11.08 Form of Assignment and Assumption Agreement
Exhibit 11.09 Form of Designation Agreement
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CREDIT AGREEMENT
CREDIT AGREEMENT is entered into as of June 8, 2001, among IDEX
Corporation, a Delaware corporation (the "Company"), the several financial
institutions from time to time party to this Agreement (collectively, the
"Banks"; individually, a "Bank"), and Bank of America, N.A., as agent for the
Banks.
The Company has requested that the Banks provide a revolving credit
facility and the Banks are willing to do so on the terms and conditions set
forth herein.
Accordingly, in consideration of the mutual agreements contained
herein, and subject to the terms and conditions hereof, the parties hereto
agree, as follows:
ARTICLE I
DEFINITIONS
1.01 Certain Defined Terms. The following terms have the following
meanings:
"Absolute Rate" has the meaning specified in subsection
2.06(c)(iii)(D).
"Absolute Rate Auction" means a solicitation of Competitive
Bids setting forth Absolute Rates pursuant to Section 2.06.
"Absolute Rate Bid Loan" means a Bid Loan that bears interest
at a rate determined with reference to the Absolute Rate.
"Accounts Receivable" means presently existing and hereafter
arising or acquired accounts receivable, general intangibles, choses in
action and other forms of obligations and receivables relating in any
way to Inventory or arising from the sale of Inventory or the rendering
of services or howsoever otherwise arising, and, with respect to any of
the foregoing receivables or obligations, (a) all of the interest of
the Company or any of its Subsidiaries in the goods (including returned
goods) the sale of which gave rise to such receivable or obligation
after the passage of title thereto to any obligor, (b) all other Liens
and property subject thereto from time to time purporting to secure
payment of such receivables or obligations, (c) all guarantees,
insurance, letters of credit and other agreements or arrangements of
whatever character from time to time supporting or securing payment of
any such receivables or obligations, (d) all interests of the
Receivables Subsidiary under the documents evidencing a Permitted
Receivables Purchase Facility and any permitted performance guaranty
given in connection therewith, and (e) all records relating to any of
the foregoing and all proceeds and products of any of the foregoing.
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"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 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.
"Affected Bank" has the meaning specified in Section 4.08.
"Affiliate" means, as to any Person, any other Person which,
directly or indirectly, is in control of, is controlled by, or is under
common control with, such Person. A Person shall be deemed to control
another Person if the controlling Person possesses, directly or
indirectly, the power to direct or cause the direction of the
management and policies of the other Person, whether through the
ownership of voting securities, membership interests, by contract, or
otherwise.
"Agent" means BofA in its capacity as agent for the Banks and
the Designated Bidders hereunder, and any successor agent arising under
Section 10.09.
"Agent-Related Persons" means at any time, the Agent at such
time, together with its Affiliates (including, in the case of BofA, the
Arranger), and the officers, directors, employees, agents and
attorneys-in-fact of such Persons and Affiliates.
"Agent's Payment Office" means (i) in respect of payments in
Dollars, the address for payments set forth on Schedule 11.02 or such
other address as the Agent may from time to time specify in accordance
with Section 11.02, and (ii) in the case of payments in any Offshore
Currency, such address as the Agent may from time to time specify in
accordance with Section 11.02.
"Aggregate Commitments" has the meaning set forth in the
definition of "Commitment".
"Agreed Alternative Currency" has the meaning specified in
subsection 2.05(e).
"Agreement" means this Credit Agreement as the same may be
amended, supplemented, amended and restated or otherwise modified from
time to time.
"Agreement Currency" has the meaning specified in Section
11.20.
"Applicable Currency" means, as to any particular payment or
Loan, Dollars or the Offshore Currency in which it is denominated or is
payable.
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"Applicable Rate" means, from time to time, the following
percentages per annum, based upon the Debt Rating as set forth below:
APPLICABLE RATE
OFFSHORE
RATE
----------
DEBT RATINGS LETTERS OF
PRICING LEVEL S&P/XXXXX'X FACILITY FEE CREDIT BASE RATE
------------- ---------------- ------------ ---------- ---------
1 A-/A3 12.5 25.0 0
2 BBB+/Baa1 15.0 35.0 0
3 BBB/Baa2 17.5 57.5 0
4 BBB-/Baa3 20.0 80.0 0
5 BB+/Ba1 or worse 25.0 100.0 0
"Debt Rating" means, as of any date of determination, the rating as
determined by either S&P or Xxxxx'x (collectively, the "Debt Ratings")
of the Company's non-credit-enhanced, senior unsecured long-term debt;
provided that if a Debt Rating is issued by each of the foregoing
rating agencies, then the higher of such Debt Ratings shall apply (with
Pricing Level 1 being the highest and Pricing Level 5 being the
lowest), unless there is a split in Debt Ratings of more than one
level, in which case the level that is one level higher than the lower
Debt Rating shall apply.
Initially, the Applicable Rate shall be determined based upon the Debt Rating
specified in the certificate delivered pursuant to subsection 5.01(f).
Thereafter, each change in the Applicable Rate resulting from a publicly
announced change in the Debt Rating shall be effective during the period
commencing on the date of the public announcement thereof and ending on the date
immediately preceding the effective date of the next such change.
"Arranger" means Banc of America Securities LLC.
"Assignee" has the meaning specified in subsection 11.08(a).
"Assignment and Assumption Agreement" has the meaning
specified in subsection 11.08(a).
"Attorney Costs" means and includes all reasonable
out-of-pocket fees and disbursements of any law firm or other external
counsel, the allocated cost of internal legal services and all
disbursements of internal counsel.
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"Attributable Indebtedness" means, without duplication, on any
date, (a) in respect of any Capital Lease of any Person, the
capitalized amount thereof that would appear on a balance sheet of such
Person prepared as of such date in accordance with GAAP, (b) in respect
of any Off Balance Sheet Obligation which is a lease, the capitalized
amount of the remaining lease payments under the relevant lease that
would appear on a balance sheet of such Person prepared as of such date
in accordance with GAAP if such lease were accounted for as a capital
lease, (c) in respect of any Permitted Receivables Purchase Facility,
the amount of Receivables Facility Attributed Indebtedness and (d) in
respect of any other Off Balance Sheet Obligation, the amount of such
Obligations which would reasonably be expected to be characterized as
indebtedness upon the insolvency or bankruptcy of such Person.
"Bank" has the meaning specified in the introductory clause
hereto.
"Banking Day" means any Business Day and (i) with respect to
disbursements and payments in Dollars with respect to any Loan bearing
interest based upon a LIBO Rate or the Offshore Rate, a day on which
dealings are carried on in the applicable offshore Dollar interbank
market, (ii) with respect to disbursements and payments in the euro or
NCU, a TARGET Business Day, and (iii) with respect to any disbursements
and payments in and calculations pertaining to any other Offshore
Currency Loan, a day on which commercial banks are open for foreign
exchange business in London, England, and on which dealings in the
relevant Offshore Currency are carried on in the applicable offshore
foreign exchange interbank market in which disbursement of or payment
in such Offshore Currency will be made or received hereunder.
"Bankruptcy Code" means the Federal Bankruptcy Reform Act of
1978 (11 U.S.C. Section 101, et seq.).
"Base Rate" means, for any day, a fluctuating rate per annum
equal to the higher of: (a) 0.50% per annum above the latest Federal
Funds Rate; and (b) the rate of interest in effect for such day as
publicly announced from time to time by BofA in Charlotte, North
Carolina, as its "prime rate." Such rate is a rate set by BofA based
upon various factors including BofA'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 such rate announced by BofA shall take
effect at the opening of business on the day specified in the public
announcement of such change.
"Base Rate Committed Loan" means a Committed Loan that bears
interest based on the Base Rate.
"Base Rate Loan" means a Loan that bears interest based on the
Base Rate.
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"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
Banks or Designated Bidders.
"Bid Loan" means a Loan by a Bank or a Designated Bidder to
the Company under Section 2.06, which may be a LIBOR Bid Loan or an
Absolute Rate Bid Loan.
"Bid Loan Lender" means, in respect of any Bid Loan, the Bank
or Designated Bidder making such Bid Loan to the Company.
"Bid Loan Notes" has the meaning specified in Section 2.02.
"BofA" means Bank of America, N.A.
"Borrowing" means a borrowing hereunder consisting of Loans of
the same Type, in the same Applicable Currency and, other than in the
case of Base Rate Committed Loans, having the same Interest Period,
made to the Company on the same day by the Banks or (in the case of Bid
Borrowings) Designated Bidders under Article II, and may be a Committed
Borrowing or a Bid Borrowing.
"Borrowing Date" means any date on which a Borrowing occurs
under Section 2.03.
"Business Day" means any day other than a Saturday, Sunday or
other day on which commercial banks in Chicago or San Francisco are
authorized or required by law to close and, if the applicable Business
Day relates to any Offshore Rate Loan, means a Banking Day.
"Capital Adequacy Regulation" means any guideline, request or
directive of any central bank or other Governmental Authority, or any
other law, rule or regulation, whether or not having the force of law,
in each case, regarding capital adequacy of any bank or of any
corporation controlling a bank.
"Capital Lease" has the meaning specified in the definition of
"Capital Lease Obligations."
"Capital Lease Obligations" means the principal component of
all monetary obligations of the Company or any of its Subsidiaries
under any leasing or similar arrangement which, in accordance with
GAAP, is classified as a capital lease ("Capital Lease").
"Cash Collateralize" means to pledge and deposit with or
deliver to the Agent, for the benefit of the Agent, the Issuing Bank
and the Banks, as collateral for the L/C Obligations, cash or deposit
account balances pursuant to documentation in form and
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substance reasonably satisfactory to the Agent and the Issuing Bank
(which documents are hereby consented to by the Banks). Derivatives of
such term shall have corresponding meanings. The Company hereby grants
the Agent, for the benefit of the Agent, the Issuing Bank and the
Banks, a security interest in all such cash and deposit account
balances. Cash collateral shall be maintained in blocked, non-interest
bearing deposit accounts at BofA.
"Change of Control" means any of the following: (i) any person
or group of persons (within the meaning of the Exchange Act) shall have
acquired beneficial ownership (within the meaning of Rule 13d-3
promulgated by the SEC under the Exchange Act) of 30% or more of the
issued and outstanding shares of the Company's capital stock having the
right to vote for the election of directors of the Company under
ordinary circumstances; or (ii) during any period of twelve consecutive
calendar months, individuals who at the beginning of such period
constituted the Company's board of directors (together with any new
directors whose election by the Company's board of directors or whose
nomination for election by the Company's stockholders was approved by a
vote of a majority of the directors then still in office who either
were directors at the beginning of such period or whose election or
nomination for election was previously so approved) cease for any
reason other than death or disability to constitute a majority of the
directors then in office.
"Closing Date" means the date on which all conditions
precedent set forth in Section 5.01 are satisfied or waived by all
Banks (or, in the case of subsection 5.01(e), waived by the Person
entitled to receive such payment).
"Code" means the Internal Revenue Code of 1986, and all rules
and regulations promulgated thereunder.
"Commitment" means, as to each Bank, its obligation to (a)
make Committed Loans to the Company pursuant to Section 2.01, and (b)
purchase participations in L/C Obligations, in an aggregate principal
amount at any one time outstanding not to exceed the amount set forth
opposite such Bank's name on Schedule 2.01, as such amount may be
reduced or adjusted from time to time in accordance with this Agreement
(collectively, the "Aggregate Commitments").
"Committed Borrowing" means a Borrowing hereunder consisting
of simultaneous Committed Loans of the same type and having the same
Interest Period made by each of the Banks pursuant to Section 2.01.
"Committed Loan" means a Loan by a Bank to the Company under
Section 2.01, and may be an Offshore Rate Committed Loan or a Base Rate
Committed Loan (each, a "Type" of Committed Loan).
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"Committed Loan Notes" has the meaning specified in Section
2.02.
"Competitive Bid" means an offer by a Bank or a Designated
Bidder to make a Bid Loan in accordance with subsection 2.06(b).
"Competitive Bid Request" has the meaning specified in
subsection 2.06(b).
"Compliance Certificate" means a certificate substantially in
the form of Exhibit 7.02(b).
"Computation Date" has the meaning specified in subsection
2.05(a).
"Consolidated Debt" means, as of any date of determination,
for the Company and its Subsidiaries, without duplication, the sum of
(a) all Indebtedness of the Company determined on a consolidated basis
in accordance with GAAP, (b) Attributable Indebtedness in respect of
capital leases, Off Balance Sheet Obligations and a Permitted
Receivables Purchase Facility, and (c) all Guaranty Obligations with
respect to debt of the types specified in subsections (a), (b) and (c)
above of Persons other than the Company or any Subsidiary.
"Consolidated Interest Expense" means, for any period, the sum
of total interest expense (including that attributable to Capital
Leases in accordance with GAAP) of the Company and its Subsidiaries on
a consolidated basis with respect to all outstanding Indebtedness of
the Company and its Subsidiaries, including, without limitation, all
commissions, discounts and other fees and charges owed with respect to
letters of credit and bankers' acceptance financing, but excluding,
however, any amortization of deferred financing costs, all as
determined on a consolidated basis for the Company and its consolidated
Subsidiaries in accordance with GAAP plus the interest component of Off
Balance Sheet Obligations. Any calculation of pro forma Consolidated
Interest Expense with respect to an Acquisition shall be done on the
basis that (A) any Indebtedness incurred or assumed in connection with
such Acquisition was incurred or assumed at the beginning of the pro
forma period, (B) such Indebtedness was repaid from operating cash flow
over the pro forma period at the intervals and in the amounts
reasonably projected to be paid in respect of such Indebtedness over
the 12-month period immediately following the Acquisition and (C) if
such Indebtedness bears a floating interest rate, such interest shall
be paid over the pro forma period at the rate in effect on the date of
such Acquisition.
"Consolidated Net Income" and "Consolidated Net Loss" mean,
respectively, with respect to any period for any Person, the aggregate
of the net income (loss) of such Person for such period, determined in
accordance with GAAP on a consolidated basis, provided that (i) the net
income (loss) of any other Person which is not a Subsidiary shall be
included in the Consolidated Net Income of such Person only to the
extent of the
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amount of cash dividends or distributions paid to such Person or to a
consolidated Subsidiary of such Person and (ii) the net income (loss)
of any other Person acquired in a pooling of interests transaction for
any period prior to the date of such acquisition shall be excluded from
the Consolidated Net Income of such Person. There shall be excluded
from Consolidated Net Income (a) with respect to the Company for the
first quarter of 2001, the Restructuring Charge, (b) non-cash
extraordinary losses as long as no reserve is required to be
established in accordance with GAAP, and (c) the excess (but not the
deficit), if any, of (i) any gain which must be treated as an
extraordinary item under GAAP or any gain realized upon the sale or
other disposition of any real property or equipment that is not sold in
the ordinary course of business or of any capital stock of a Subsidiary
of such Person over (ii) any loss which is not excluded pursuant to
clause (b) above.
"Consolidated Net Worth" means, as of any date of
determination, for the Company and its Subsidiaries on a consolidated
basis, Shareholders' Equity of the Company and its Subsidiaries on that
date.
"Contingent Obligation" means, as to any Person, any direct or
indirect liability of that Person, whether or not contingent, with or
without recourse, (a) with respect to any Indebtedness, lease,
dividend, letter of credit or other obligation (the "primary
obligations") of another Person (the "primary obligor"), including any
obligation of that Person (i) to purchase, repurchase or otherwise
acquire such primary obligations or any security therefor, (ii) to
advance or provide funds for the payment or discharge of any such
primary obligation, or to maintain working capital or equity capital of
the primary obligor or otherwise to maintain the net worth or solvency
or any balance sheet item, level of income or financial condition of
the primary obligor, (iii) to purchase property, securities or services
primarily for the purpose of assuring the owner of any such primary
obligation of the ability of the primary obligor to make payment of
such primary obligation, or (iv) otherwise to assure or hold harmless
the holder of any such primary obligation against loss in respect
thereof (each, a "Guaranty Obligation"); (b) with respect to any Surety
Instrument issued for the account of that Person or as to which that
Person is otherwise liable for reimbursement of drawings or payments;
(c) to purchase any materials, supplies or other property from, or to
obtain the services of, another Person if the relevant contract or
other related document or obligation requires that payment for such
materials, supplies or other property, or for such services, shall be
made regardless of whether delivery of such materials, supplies or
other property is ever made or tendered, or such services are ever
performed or tendered, or (d) in respect of any Swap Contract. The
amount of any Contingent Obligation shall (a) in the case of Guaranty
Obligations, be deemed equal to the stated or determinable amount of
the primary obligation in respect of which such Guaranty Obligation is
made or, if not stated or if indeterminable, the maximum reasonably
anticipated liability in respect thereof provided, that if any Guaranty
Obligation (i) is limited to an amount less than the obligations
8
Credit Agreement - Idex Corporation
16
guaranteed or supported the amount of the corresponding Contingent
Obligation shall be equal to the lesser of the amount determined
pursuant to the initial clause of this sentence and the amount to which
such guaranty is so limited or (ii) is limited to recourse against a
particular asset or assets of such Person the amount of the
corresponding Contingent Obligation shall be equal to the lesser of the
amount determined pursuant to the initial clause of this sentence and
the fair market value of such asset or assets at the date for
determination of the amount of the Contingent Obligation, (b) in the
case of other Contingent Obligations other than in respect of Swap
Contracts, be equal to the maximum reasonably anticipated liability in
respect thereof, and (c) in the case of Contingent Obligations in
respect of Swap Contracts, be equal to the Swap Termination Value.
"Contractual Obligation" means, as to any Person, any
provision of any security issued by such Person or of any agreement,
undertaking, contract, indenture, mortgage, deed of trust or other
instrument, document or agreement to which such Person is a party or by
which it or any of its property is bound.
"Conversion/Continuation Date" means any date on which, under
Section 2.04, the Company (a) converts Committed Loans of one Type to
another Type, or (b) continues as Committed Loans of the same Type, but
with a new Interest Period, Committed Loans having Interest Periods
expiring on such date.
"Credit Extension" means and includes (a) the making of any
Loans hereunder and (b) the Issuance of any Letters of Credit
hereunder.
"Debt Rating" has the meaning set forth in the definition of
"Applicable Rate."
"Default" means any event or circumstance which, with the
giving of notice pursuant to this Agreement, the lapse of any cure
period specified herein, or both, would (if not cured or otherwise
remedied during such time) constitute an Event of Default.
"Designated Bidder" means an Affiliate of a Bank that is an
entity described in clause (a) or (b) of the definition of "Eligible
Assignee" and that has become a party hereto pursuant to Section 11.09.
"Designation Agreement" means a designation agreement entered
into by a Bank and a Designated Bidder and accepted by the Agent, in
substantially the form of Exhibit 11.09.
"Disposition" has the meaning specified in Section 8.02.
"Dollar Equivalent" means, at any time, (a) as to any amount
denominated in Dollars, the amount thereof at such time, (b) as to any
amount denominated in an
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Credit Agreement - Idex Corporation
17
Offshore Currency, the equivalent amount in Dollars as determined by
the Agent at such time on the basis of the Spot Rate for the purchase
of Dollars with such Offshore Currency on the most recent Computation
Date provided for in subsection 2.05(a) and (c) as to any amount
denominated in an Offshore L/C Currency, the equivalent amount in
Dollars as determined by the Issuing Bank at such time on the basis of
the Spot Rate for the purchase of Dollars with such Offshore L/C
Currency.
"Dollars", "dollars" and "$" each mean lawful money of the
United States.
"Domestic EBITDA" means EBITDA less Foreign EBITDA.
"Domestic Subsidiary" means any Subsidiary of the Company that
is not a Foreign Subsidiary.
"EBIT" means, for any period, for the Company and its
Subsidiaries on a consolidated basis, determined in accordance with
GAAP, the sum of (a) Consolidated Net Income for such period plus (b)
all amounts treated as expenses for interest plus (c) all accrued taxes
plus (d) the interest component with respect to Off Balance Sheet
Obligations, in each case to the extent included in the determination
of such Consolidated Net Income.
"EBITDA" means, for any period, for the Company and its
Subsidiaries on a consolidated basis, determined in accordance with
GAAP, the sum of (a) EBIT plus (b) all amounts treated as expenses for
depreciation or the amortization of intangibles of any kind to the
extent included in the determination of Consolidated Net Income,
provided that in the event of the occurrence of any Acquisition or
Disposition during such period, EBITDA shall be calculated on a pro
forma basis as if such Acquisition or Disposition occurred on the first
day of the relevant period such that, in the case of an Acquisition,
all income and expense associated with the assets or entity acquired in
connection with such Acquisition for the most recently ended four
fiscal quarter period for which such income and expense amounts are
available shall be treated as earned or incurred by the Company over
the applicable period and, in the case of a Disposition, all income and
expense associated with the assets or entity sold or transferred during
such period shall be eliminated over the applicable period.
"Effective Amount" means (a) with respect to any Loans on any
date, the aggregate outstanding principal Dollar Equivalent amount
thereof after giving effect to any Borrowings and prepayments or
repayments of Loans occurring on such date; and (b) with respect to any
outstanding L/C Obligations on any date, the Dollar Equivalent amount
of such L/C Obligations on such date after giving effect to any
Issuances of Letters of Credit occurring on such date and any other
changes in the aggregate amount of the L/C Obligations as of such date,
including as a result of any reimbursements of outstanding unpaid
drawings under any Letters of Credit or any reductions in the
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Credit Agreement - Idex Corporation
18
maximum amount available for drawing under Letters of Credit taking
effect on such date.
"Eligible Assignee" means (a) a commercial bank organized
under the laws of the United States, or any state thereof, and having a
combined capital and surplus of at least $200,000,000; (b) a commercial
bank organized under the laws of any other country which is a member of
the Organization for Economic Cooperation and Development (the "OECD"),
or a political subdivision of any such country, and having a combined
capital and surplus of at least $200,000,000, provided that such bank
is acting through a branch or agency located in the country in which it
is organized or another country which is also a member of the OECD; and
(c) a Person that is primarily engaged in the business of commercial
banking and that is (i) a Subsidiary of a Bank, (ii) a Subsidiary of a
Person of which a Bank is a Subsidiary, or (iii) a Person of which a
Bank is a Subsidiary.
"EMU Legislation" means (a) the Treaty on European Union (the
Treaty of Rome of March 25, 1957, as amended by the Single Xxxxxxxx Xxx
0000 and the Maastricht Treaty (which was signed at Maastricht on
February 1, 1992 and came into force on November 1, 1993)), and (b)
legislative measures of the European Council (including without
limitation European Council regulations) for the introduction of,
changeover to or operation of the euro, in each case as amended or
supplemented from time to time.
"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 or 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
Governmental Authorities, in each case relating to environmental,
health, safety and land use matters.
"ERISA" means the Employee Retirement Income Security Act of
1974, and all rules and regulations promulgated thereunder.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) under common control with the Company within the meaning
of Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of
the Code for purposes of provisions relating to Section 412 of the
Code).
"ERISA Event" means (a) a Reportable Event with respect to a
Pension Plan; (b) a withdrawal by the Company or any ERISA Affiliate
from a Pension Plan subject to Section 4063 of ERISA during a plan year
in which it was a substantial employer (as defined in Section
4001(a)(2) of ERISA) or a cessation of operations which is treated as
11
Credit Agreement - Idex Corporation
19
such a withdrawal under Section 4062(e) of ERISA; (c) a complete or
partial withdrawal by the Company or any ERISA Affiliate from a
Multiemployer Plan or notification that a Multiemployer Plan is in
reorganization; (d) the filing of a notice of intent to terminate, the
treatment of a Plan amendment as a termination under Section 4041 or
4041A of ERISA, or the commencement of proceedings by the PBGC to
terminate a Pension Plan or Multiemployer Plan; (e) an event or
condition which might reasonably be expected to constitute grounds
under Section 4042 of ERISA for the termination of, or the appointment
of a trustee to administer, any Pension Plan or Multiemployer Plan; or
(f) the imposition of any liability under Title IV of ERISA, other than
PBGC premiums due but not delinquent under Section 4007 of ERISA, upon
the Company or any ERISA Affiliate.
"euro" means the single currency of Participating Member
States.
"Euro Transition Cutoff Date" means December 31, 2001, or such
other date as may be established by EMU Legislation.
"Eurodollar Reserve Percentage" has the meaning specified in
the definition of "Offshore Rate".
"Event of Default" means any of the events or circumstances
specified in Section 9.01.
"Exchange Act" means the Securities Exchange Act of 1934, and
regulations promulgated thereunder, in each case, as amended from time
to time.
"Existing Credit Agreement" means that certain Third Amended
and Restated Credit Agreement among the Company, BofA, as Agent, and
the other financial institutions party thereto, dated July 17, 1996 (as
the same have been amended and modified from time to time).
"Existing Obligations" has the meaning specified in Section
2.18.
"FDIC" means the Federal Deposit Insurance Corporation, and
any Governmental Authority succeeding to any of its principal
functions.
"Federal Funds Rate" means, for any day, the rate set forth in
the weekly statistical release designated as H.15(519), or any
successor publication, published by the Federal Reserve Bank of New
York (including any such successor, "H.15(519)") on the preceding
Business Day opposite the caption "Federal Funds (Effective)"; or, if
for any relevant day such rate is not so published on any such
preceding Business Day, the rate for such day will be the arithmetic
mean as determined by the Agent of the rates for the last transaction
in overnight Federal funds arranged prior to 9:00 a.m. (New York City
12
Credit Agreement - Idex Corporation
20
time) on that day by each of three leading brokers of Federal funds
transactions in New York City selected by the Agent.
"Fee Letter" has the meaning specified in subsection 2.12(a).
"Foreign EBITDA" means, for any period, for the Foreign
Subsidiaries and their Subsidiaries on a consolidated basis (as if one
corporation), determined in accordance with GAAP, the sum of (a)
Consolidated Net Income of such Persons for such period plus (b) all
amounts treated as expenses for interest to the extent included in the
determination of such Consolidated Net Income plus (c) all accrued
taxes to the extent included in the determination of such Consolidated
Net Income plus (d) all amounts treated as expenses for depreciation or
the amortization of intangibles of any kind to the extent included in
the determination of Consolidated Net Income.
"Foreign Lender" has the meaning specified in Section 11.16.
"Foreign Subsidiary" means any Subsidiary of the Company that
(A) is incorporated under the laws of a jurisdiction other than any
State of the U.S., the District of Columbia or any territory,
commonwealth or possession of the U.S. and (B) maintains the major
portion of its assets outside the U.S.
"FRB" means the Board of Governors of the Federal Reserve
System, and any Governmental Authority succeeding to any of its
principal functions.
"FX Trading Office" means the Foreign Exchange Trading Center
#5193, San Francisco, California, of BofA, or such other of BofA's
offices as BofA may designate from time to time.
"Further Taxes" means any and all present or future taxes,
levies, assessments, imposts, duties, deductions, fees, withholdings or
similar charges (including, without limitation, net income taxes and
franchise taxes), and all liabilities with respect thereto, imposed by
any jurisdiction on account of amounts payable or paid pursuant to
Section 4.01.
"GAAP" means generally accepted accounting principles set
forth from time to time in the opinions and pronouncements of the
Accounting Principles Board and the American Institute of Certified
Public Accountants and statements and pronouncements of the Financial
Accounting Standards Board (or agencies with similar functions of
comparable stature and authority within the U.S. accounting
profession), which are applicable to the circumstances as of (a) in the
case of any computation pursuant to Section 8.16, the date of this
Agreement and (b) in all other cases, the applicable date.
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Credit Agreement - Idex Corporation
21
"German Facility" means that certain loan agreement dated
September 29, 1995 between Xxxx Products Beteilgungsgescekkscgaft nbH
(formerly DUNJA Verwaltungsgesellschaft mgH), LUKAS Hydraulik GmbH und
Co. KG and BofA, as amended on April 22, 1997 and December 9, 1998.
"Governmental Authority" means any nation or government, any
state or other political subdivision thereof, any central bank (or
similar monetary or regulatory authority) thereof or any entity
exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government.
"Guaranty Obligation" has the meaning specified in the
definition of "Contingent Obligation."
"Honor Date" has the meaning specified in subsection 3.03(b).
"IBOR" has the meaning specified in the definition of
"Offshore Rate".
"Increase Effective Date" has the meaning specified in
subsection 2.17(b).
"Indebtedness" of any Person means, without duplication, (a)
all indebtedness for borrowed money; (b) all obligations issued,
undertaken or assumed as the deferred purchase price of property or
services (other than trade payables entered into in the ordinary course
of business on ordinary terms); (c) all non-contingent reimbursement or
payment obligations with respect to Surety Instruments; (d) all
obligations evidenced by notes, bonds, debentures or similar
instruments, including obligations so evidenced incurred in connection
with the acquisition of property, assets or businesses; (e) all
indebtedness created or arising under any conditional sale or other
title retention agreement, or incurred as financing, in either case
with respect to property acquired by the Person (even though the rights
and remedies of the seller or bank under such agreement in the event of
default are limited to repossession or sale of such property); (f) all
Capital Lease Obligations and Off Balance Sheet Obligations including
all Receivables Facility Attributed Indebtedness; (g) all indebtedness
referred to in clauses (a) through (f) above secured by (or for which
the holder of such Indebtedness has an existing right, contingent or
otherwise, to be secured by) any Lien upon or in property (including
accounts and contracts rights) owned by such Person, even though such
Person has not assumed or become liable for the payment of such
Indebtedness; and (h) all Guaranty Obligations in respect of
indebtedness or obligations of others of the kinds referred to in
clauses (a) through (g) above. In the event any of the foregoing
Indebtedness is limited to recourse against a particular asset or
assets of such Person, the amount of the corresponding Indebtedness
shall be equal to the lesser of the amount of such Indebtedness and the
fair market value of such asset or assets at the date for determination
of the amount of such Indebtedness. In addition, the amount of any
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Credit Agreement - Idex Corporation
22
Indebtedness which is also a Contingent Obligation shall be determined
as provided in the definition of "Contingent Obligation."
For all purposes of this Agreement, the Indebtedness of any Person
shall include all Indebtedness of any partnership or Joint Venture or
limited liability company in which such Person is a general partner or
a joint venturer or a member, but in any such case, only to the extent
any such Indebtedness is recourse to such Person. The amount of any
Capital Lease or Off Balance Sheet Obligation as of any date shall be
deemed to be the amount of Attributable Indebtedness in respect thereof
as of such date.
"Indemnified Liabilities" has the meaning specified in Section
11.05.
"Indemnified Person" has the meaning specified in Section
11.05.
"Independent Auditor" has the meaning specified in subsection
7.01(a).
"Insolvency Proceeding" means, with respect to any Person, (a)
any case, action or proceeding with respect to such Person before any
court or other Governmental Authority relating to bankruptcy,
reorganization, insolvency, liquidation, receivership, dissolution,
winding-up or relief of debtors, or (b) any general assignment for the
benefit of creditors, composition, marshalling of assets for creditors,
or other, similar arrangement in respect of its creditors generally or
any substantial portion of its creditors; undertaken under U.S.
Federal, state or foreign law, including the Bankruptcy Code.
"Intercompany Indebtedness" means Indebtedness of the Company
or any of its Subsidiaries which, in the case of the Company, is owing
to any Subsidiary of the Company and which, in the case of any
Subsidiary, is owing to the Company or any of the Company's other
Subsidiaries.
"Interest Coverage Ratio" means, as of any date of
determination, the ratio of EBITDA for the period of the four prior
fiscal quarters ending on such date to Consolidated Interest Expense
for such period.
"Interest Payment Date" means, as to any Loan other than a
Base Rate Committed Loan, the last day of each Interest Period
applicable to such Loan and, as to any Base Rate Committed Loan, the
last Business Day of each calendar quarter, provided, however, that (a)
if any Interest Period for an Offshore Rate Loan exceeds three months,
the date that falls three months after the beginning of such Interest
Period and after each Interest Payment Date thereafter is also an
Interest Payment Date, and (b) as to any Absolute Rate Bid Loan, such
intervening dates prior to the maturity thereof as may be specified by
the Company and agreed to by the applicable Bid Loan Lender in the
applicable Competitive Bid shall also be Interest Payment Dates.
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Credit Agreement - Idex Corporation
23
"Interest Period" means, (a) as to any Offshore Rate Loan, the
period commencing on the Borrowing Date of such Loan or (in the case of
any Offshore Rate Committed Loan) on the Conversion/Continuation Date
on which the Loan is converted into or continued as an Offshore Rate
Committed Loan, and ending on the date one, two, three, six or, if
available to each Bank, 12 months thereafter (or in the case of any
Offshore Rate Committed Loan, any other period that is 12 months or
less and is consented to by each of the Banks in the given instance) as
selected by the Company in its Notice of Borrowing or Notice of
Conversion/Continuation or Competitive Bid Request, as the case may be;
and (b) as to any Absolute Rate Bid Loan, a period of not less than 7
days and not more than 183 days as selected by the Company in the
applicable Competitive Bid Request;
provided that:
(i) if any Interest Period would otherwise end on a
day that is not a Business Day, that Interest Period shall be
extended to the following Business Day unless, in the case of
an Offshore Rate Loan, the result of such extension would be
to carry such Interest Period into another calendar month, in
which event such Interest Period shall end on the preceding
Business Day;
(ii) any Interest Period pertaining to an Offshore
Rate Loan that begins on a day for which there is no
numerically corresponding day in the calendar month at the end
of such Interest Period shall end on the last Business Day of
the calendar month at the end of such Interest Period; and
(iii) no Interest Period for any Loan shall extend
beyond the Revolving Termination Date;
"Inventory" means, inclusively, all inventory as defined in
the Uniform Commercial Code in effect in the State of
Illinois from
time to time and all goods, merchandise and other personal property
wherever located, now owned or hereafter acquired by the Company or any
of its Subsidiaries of every kind or description which are held for
sale or lease or are furnished or to be furnished under a contract of
service or are raw materials, work-in-process or materials used or
consumed or to be used or consumed in the Company's or any of its
Subsidiaries' business.
"Investments" has the meaning specified in Section 8.04.
"Invitation for Competitive Bids" means a solicitation for
Competitive Bids, substantially in the form of Exhibit 2.06(b)(ii).
"IRS" means the Internal Revenue Service, and any Governmental
Authority succeeding to any of its principal functions under the Code.
16
Credit Agreement - Idex Corporation
24
"Issuance Date" has the meaning specified in subsection
3.01(a).
"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, with respect to any Letter of Credit,
BofA or any Bank which at the request of the Company (and with the
consent of the Agent, which will not be unreasonably withheld) agrees,
in such Bank's sole discretion, to become an Issuing Bank for purposes
of Issuing Letters of Credit pursuant to Article III.
"Joint Venture" means a single-purpose corporation,
partnership, limited liability company, joint venture or other similar
legal arrangement (whether created by contract or conducted through a
separate legal entity) now or hereafter formed by the Company or any of
its Subsidiaries with another Person in order to conduct a common
venture or enterprise with such Person.
"Judgment Currency" has the meaning specified in Section
11.20.
"KKR" shall mean Kohlberg Kravis Xxxxxxx & Co., a Delaware
limited partnership.
"Laws" means, collectively, all international, foreign,
federal, state and local statutes, treaties, rules, guidelines,
regulations, ordinances, codes and administrative or judicial
precedents or authorities, including the interpretation or
administration thereof by any Governmental Authority charged with the
enforcement, interpretation or administration thereof, and all
applicable administrative orders, licenses, authorizations and permits
of, and agreements with, any Governmental Authority, in each case
whether or not having the force of law.
"L/C Advance" means each Bank'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 outstanding standby or commercial documentary letters of
credit as shall at any time be in use at the Issuing Bank, as the
Issuing Bank shall request.
"L/C Application" means an application form for issuances of
standby or commercial documentary letters of credit as shall at any
time be in use at the Issuing Bank, as the Issuing Bank shall request.
17
Credit Agreement - Idex Corporation
25
"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 a Borrowing of Loans under
subsection 3.03(b).
"L/C Commitment" means the commitment of the Issuing Bank to
Issue, and the commitment of the Banks severally to participate in,
Letters of Credit from time to time Issued or outstanding under Article
III; provided that the L/C Commitment is a part of the combined
Commitments, rather than a separate, independent commitment.
"L/C Credit Extension" means, with respect to any Letter of
Credit, the Issuance thereof or extension of the expiry date thereof,
or the renewal or increase of the amount thereof.
"L/C Obligations" means at any time the sum of (a) the
aggregate undrawn amount of all Letters of Credit then outstanding,
plus (b) the 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.
"Lending Office" means, as to any Bank, the office or offices
of such Bank specified as its "Lending Office" or "Domestic Lending
Office" or "Offshore Lending Office", as the case may be, on Schedule
11.02, or such other office or offices as such Bank may from time to
time notify the Company and the Agent.
"Letters of Credit" means any letters of credit (whether
standby letters of credit or commercial documentary letters of credit)
Issued by the Issuing Bank pursuant to Article III.
"Leverage Ratio" means, as of any date of determination, for
the Company and its Subsidiaries, the ratio of (a) Consolidated Debt as
of such date to (b) EBITDA for the period of the four fiscal quarters
ending on such date.
"LIBO Rate" means, for any Interest Period with respect to a
LIBOR Bid Loan the rate of interest per annum determined by the Agent
to be (rounded upward to the nearest 1/100th of 1%) the rate of
interest at which dollar deposits in the approximate amount of the
LIBOR Bid Loans to be borrowed in such Bid Loan Borrowing, and having a
maturity comparable to such Interest Period, would be offered to major
banks in the London interbank market at their request at approximately
11:00 a.m. (London time) two Business Days prior to the commencement of
such Interest Period.
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Credit Agreement - Idex Corporation
26
"LIBOR Auction" means a solicitation of Competitive Bids
setting forth a LIBOR Bid Margin pursuant to Section 2.06.
"LIBOR Bid Loan" means any Bid Loan that bears interest at a
rate based upon the LIBO Rate.
"LIBOR Bid Margin" has the meaning specified in subsection
2.06(c)(iii)(C).
"Lien" means any security interest, mortgage, deed of trust,
pledge, hypothecation, assignment, charge or deposit arrangement,
encumbrance, lien (statutory or other), any conditional sale or other
title retention agreement, the interest of a lessor under a capital
lease, any financing lease having substantially the same economic
effect as any of the foregoing, or the filing of any financing
statement (other than in connection with a proposed refinancing of this
Agreement) naming the owner of the asset to which such lien relates as
debtor, under the Uniform Commercial Code or any comparable law and any
contingent or other agreement to provide any of the foregoing, but, in
any such case, not including the interest of a lessor under an
operating lease which does not constitute Off Balance Sheet Obligations
or the interest of a purchaser of Accounts Receivable under any
Permitted Receivables Purchase Facility.
"Loan" means an extension of credit by a Bank or a Designated
Bidder to the Company under Article II, and may be a Committed Loan or
a Bid Loan.
"Loan Documents" means this Agreement, any Notes, the Fee
Letters, the L/C-Related Documents and all other documents delivered to
the Agent or any Bank or Designated Bidder in connection herewith or
therewith.
"Majority Banks" means at any time Banks then holding in
excess of 50% of the Aggregate Commitments, or, if the Commitments have
been terminated, Banks holding in excess of 50% of the outstanding
Loans plus participations in L/C Obligations.
"Margin Stock" means "margin stock" as such term is defined in
Regulation T, U or X of the FRB.
"Material Adverse Effect" means (a) a material adverse change
in, or a material adverse effect upon, the operations, business,
properties, or financial condition of the Company and its Subsidiaries
taken as a whole; (b) a material impairment of the ability of the
Company and its Subsidiaries to perform under any material Loan
Document; or (c) a material adverse effect upon the legality, validity,
binding effect or enforceability against the Company or any Subsidiary
of any material Loan Document.
"Material Subsidiary" means, at any time, any Subsidiary
having at such time total assets, as of the last day of the preceding
fiscal quarter, having a net book value in
19
Credit Agreement - Idex Corporation
27
excess of 10% of the consolidated total assets of the Company, based
upon the Company's most recent annual or quarterly financial statements
delivered to the Agent under Section 7.01.
"Minimum Tranche" means, in respect of Loans comprising part
of the same Borrowing, or to be converted or continued under Section
2.04, (a) in the case of Base Rate Committed Loans, $1,000,000 or any
multiple of $500,000 in excess thereof, and (b) in the case of Offshore
Rate Loans, the Dollar Equivalent amount of $3,000,000 or any multiple
of 1,000,000 units of the Applicable Currency in excess thereof.
"Moody's" means Xxxxx'x Investors Service, Inc. and any
successor thereto.
"Multiemployer Plan" means a "multiemployer plan", within the
meaning of Section 4001(a)(3) of ERISA, to which the Company or any
ERISA Affiliate makes, is making, or is obligated to make contributions
or, during the preceding three calendar years, has made, or been
obligated to make, contributions.
"NCU" means the national currency unit (other than the euro)
of a Participating Member State. From and after the Euro Transition
Cutoff Date, all references to NCU shall mean instead the euro.
"Notes" means the Committed Loan Notes and the Bid Loan Notes.
"Notice of Borrowing" means a notice in substantially the form
of Exhibit 2.03(a).
"Notice of Conversion/Continuation" means a notice in
substantially the form of Exhibit 2.04.
"Obligations" means all advances, debts, liabilities,
obligations, covenants and duties arising under any Loan Document owing
by the Company to any Bank, Designated Bidder, the Agent, or any
Indemnified Person, whether direct or indirect (including those
acquired by assignment pursuant to subsection 11.08(a) hereof),
absolute or contingent, due or to become due, now existing or hereafter
arising.
"Off Balance Sheet Obligation" means the monetary obligation
of a Person under (a) a so-called synthetic, off-balance sheet or tax
retention lease, (b) an agreement for the use or possession of property
creating obligations that do not appear on the balance sheet of such
Person but which, upon the insolvency or bankruptcy of such Person,
would be characterized as the indebtedness of such Person (without
regard to accounting treatment), or (c) Attributable Indebtedness and
other obligations in respect of a Permitted Receivables Purchase
Facility. The interest component of Off Balance Sheet Obligations shall
mean in the case of a lease, those monetary obligations which would, in
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28
accordance with GAAP, be treated as interest if such lease was a
Capital Lease, and in all other cases shall be the amount which would
be characterized as interest upon the insolvency or bankruptcy of such
Person (assuming, for purposes of the Permitted Receivables Purchase
Facility, that such sale does not constitute a true sale).
"Offshore Currency" means at any time euros, British pounds
sterling, Canadian dollars, Swiss francs, Japanese yen and any Agreed
Alternative Currency. From and after the Euro Transition Cutoff Date,
Loans denominated in an NCU shall be automatically redenominated into
the euro as of the close of business on such date at the applicable
rate adopted and irrevocably fixed by the European Council (in
accordance with Article 1091(4) of the Treaty on European Union) on
December 31, 1998 as the official exchange rate between the euro and
such NCU.
"Offshore Currency Loan" means any Offshore Rate Loan
denominated in an Offshore Currency.
"Offshore Currency Loan Sublimit" means, as to all Offshore
Currencies in the aggregate, an amount equal to 50% of the Aggregate
Commitments.
"Offshore L/C Currency" means, with respect to any Letter of
Credit, any Offshore Currency and any other currency agreed to by the
Issuing Bank thereof.
"Offshore Rate" means, for any Interest Period, with respect
to Offshore Rate Committed Loans comprising part of the same Borrowing,
the rate of interest per annum (rounded upward to the next 1/100th of
1%) determined by the Agent as follows:
Offshore Rate = IBOR
------------------------------------
1.00 - Eurodollar Reserve Percentage
Where,
"Eurodollar Reserve Percentage" means for any day for
any Interest Period the maximum reserve percentage (expressed
as a decimal, rounded upward to the next 1/100th of 1%) in
effect on such day (whether or not applicable to any Bank)
under regulations issued from time to time by the FRB for
determining the maximum reserve requirement (including any
emergency, supplemental or other marginal reserve requirement)
with respect to Eurocurrency funding (currently referred to as
"Eurocurrency liabilities"); and
"IBOR" means the rate of interest per annum
determined by the Agent as the rate at which deposits in the
Applicable Currency, in the approximate amount of BofA's
Offshore Rate Loan for such Interest Period would be offered
by BofA's Grand Cayman Branch, Grand Cayman B.W.I. (or such
other office as
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29
may be designated for such purpose by BofA), to major banks in
the offshore currency interbank market at their request at
approximately 11:00 a.m. (New York City time) two Business
Days prior to the commencement of such Interest Period.
The Offshore Rate shall be adjusted automatically as
to all Offshore Rate Loans then outstanding as of the
effective date of any change in the Eurodollar Reserve
Percentage.
The determination of the Eurodollar Reserve
Percentage and IBOR by Agent shall be conclusive in the
absence of manifest error.
"Offshore Rate Committed Loan" means a Committed Loan that
bears interest based on the Offshore Rate.
"Offshore Rate Loan" means any LIBOR Bid Loan or any Offshore
Rate Committed Loan.
"Organization Documents" means, for any corporation, the
certificate or articles of incorporation, the bylaws, any certificate
of determination or instrument relating to the rights of preferred
shareholders of such corporation, any shareholder rights agreement, and
all applicable resolutions of the board of directors (or any committee
thereof) of such corporation.
"Originator" has the meaning specified in subsection 11.08(d).
"Other Taxes" means any present or future stamp, court or
documentary taxes or any other excise or property taxes, charges or
similar levies which arise from any payment made hereunder or from the
execution, delivery, performance, enforcement or registration of, or
otherwise with respect to, this Agreement or any other Loan Documents.
"Outstanding Amount" means (i) with respect to Committed Loans
and Bid Loans on any date, the aggregate outstanding principal amount
thereof after giving effect to any borrowings and prepayments or
repayments of Committed Loans and Bid Loans, as the case may be,
occurring on such date; and (ii) with respect to any L/C Obligations on
any date, the amount of such L/C Obligations on such date after giving
effect to any L/C Credit Extension occurring on such date and any other
changes in the aggregate amount of the L/C Obligations as of such date,
including as a result of any reimbursements of outstanding unpaid
drawings under any Letters of Credit or any reductions in the maximum
amount available for drawing under Letters of Credit taking effect on
such date.
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30
"Outstanding Letters of Credit" has the meaning specified in
Section 3.09.
"Overnight Rate" means, for any day, the rate of interest per
annum at which overnight deposits in the Applicable Currency, in an
amount approximately equal to the amount with respect to which such
rate is being determined, would be offered for such day by BofA's
London Branch to major banks in the London or other applicable offshore
interbank market.
"Participant" has the meaning specified in subsection
11.08(d).
"Participating Member State" means each country which from
time to time becomes a Participating Member State as described in EMU
Legislation.
"Participating Subsidiary" means any Subsidiary of the Company
that is a participant in a Permitted Receivables Purchase Facility.
"PBGC" means the Pension Benefit Guaranty Corporation, or any
Governmental Authority succeeding to any of its principal functions
under ERISA.
"Pension Plan" means any "employee pension benefit plan" (as
such term is defined in Section 3(2) of ERISA), other than a
Multiemployer Plan, that is subject to Title IV of ERISA and is
sponsored or maintained by the Company or any ERISA Affiliate or to
which the Company or any ERISA Affiliate contributes or has an
obligation to contribute, or in the case of a multiple employer plan
(as described in Section 4064(a) of ERISA) has made contributions at
any time during the immediately preceding five plan years.
"Permitted Acquisition" means any Acquisition by the Company
or a Subsidiary of the Company if all of the following conditions are
met:
(a) no Default or Event of Default has occurred and
is continuing or would result therefrom;
(b) after giving effect to such Acquisition at least
$10,000,000 of the Aggregate Commitment shall be unused on the date
such Acquisition is consummated;
(c) if the Person to be acquired would be a Material
Subsidiary of the Company upon completion of the Acquisition or if the
assets to be acquired have a net book value in excess of 10% of the
consolidated total assets of the Company, based upon the Company's most
recent annual or quarterly financial statements delivered to the Agent
under Section 7.01, then not less than 10 days prior to the
consummation of such Acquisition, the Company shall provide to the
Agent annual financial statements (audited, if available) and unaudited
interim financial statements for such Person, pro
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31
forma financial statements and projections for such Person and for the
Company on a consolidated basis giving effect to such Acquisition, all
in such detail as shall be reasonably satisfactory to the Agent;
(d) the prior, effective written consent or approval
of such Acquisition by the board of directors or equivalent governing
body of the acquiree is obtained;
(e) if the Person to be acquired would be a Material
Subsidiary of the Company upon completion of the Acquisition or if the
assets to be acquired have a net book value in excess of 10% of the
consolidated total assets of the Company, based upon the Company's most
recent annual or quarterly financial statements delivered to the Agent
under Section 7.01, after giving effect thereto on a pro forma basis
(without giving effect to any cost-savings) for the period of four
fiscal quarters ending with the fiscal quarter for which financial
statements have most recently been delivered (or were required to be
delivered) under Section 7.01, no Default or Event of Default would
exist hereunder; and
(f) Promptly following the consummation of any
Acquisition where the Person to be acquired is a Material Subsidiary of
the Company upon completion of the Acquisition or the assets to be
acquired have a net book value in excess of 10% of the consolidated
total assets of the Company, based upon the Company's most recent
annual or quarterly financial statements delivered to the Agent under
Section 7.01, the Company shall provide to the Agent a copy of the
agreement or agreements setting forth the terms and conditions of such
Acquisition in its then current form, including all material exhibits
and other material agreements executed and delivered, or required to be
executed and delivered in connection therewith, certified by a
Responsible Officer to be true, correct and complete.
"Permitted Liens" has the meaning specified in Section 8.01.
"Permitted Receivables Purchase Facility" means any
receivables financing program providing for the sale or contribution of
Accounts Receivable by the Company and its Participating Subsidiaries
directly or indirectly to the Receivables Subsidiary in transactions
purporting to be sales (and treated as sales for GAAP purposes), which
Receivables Subsidiary shall finance the purchase of such Accounts
Receivable by the sale, transfer, conveyance, lien or pledge of such
Accounts Receivable to one or more limited purpose financing companies,
special purpose entities and/or other financial institutions, in each
case, on a basis that does not provide, directly or indirectly, for
recourse against the seller of such Accounts Receivable (or against any
of such seller's Affiliates other than the Receivables Subsidiary) by
way of a guaranty or any other support arrangement, with respect to the
amount of such Accounts Receivable (based on the financial condition or
circumstances of the obligor thereunder), other than such
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32
limited recourse as is reasonable given market standards for
transactions of a similar type, taking into account such factors as
historical bad debt loss experience and obligor concentration levels;
provided that any such transaction described in the foregoing clause
shall be consummated pursuant to documentation in form and substance
reasonably satisfactory to Agent, as evidenced by its written approval
thereof.
"Permitted Swap Obligations" means all obligations (contingent
or otherwise) of the Company or any Subsidiary existing or arising
under Swap Contracts, provided that each of the following criteria is
satisfied: (a) such obligations are (or were) entered into by such
Person in the ordinary course of business for the purpose of directly
mitigating risks associated with liabilities, commitments or assets
held or reasonably anticipated by such Person, or changes in the value
of securities issued by such Person in conjunction with a securities
repurchase program not otherwise prohibited hereunder, and not for
purposes of speculation or taking a "market view;" and (b) such Swap
Contracts do not contain any provision ("walk-away" provision)
exonerating the non-defaulting party from its obligation to make
payments on outstanding transactions to the defaulting party.
"Person" means an individual, partnership, corporation,
limited liability company, business trust, joint stock company, trust,
unincorporated association, joint venture or Governmental Authority.
"Plan" means an employee benefit plan (as defined in Section
3(3) of ERISA) which the Company or an ERISA Affiliate sponsors or
maintains or to which the Company or an ERISA Affiliate makes, is
making, or is obligated to make contributions and includes any Pension
Plan.
"Pro Rata Share" means, as to any Bank at any time, the
percentage equivalent (expressed as a decimal, rounded to the ninth
decimal place) at such time of such Bank's Commitment divided by the
Aggregate Commitments of all Banks.
"Receivables Facility Attributed Indebtedness" at any time
shall mean the aggregate net outstanding amount theretofore paid to the
Receivables Subsidiary in respect of the Accounts Receivable sold or
transferred by it in connection with a Permitted Receivables Purchase
Facility (it being the intent of the parties that the amount of
Receivables Facility Attributed Indebtedness at any time outstanding
approximate as closely as possible the principal amount of Indebtedness
which would be outstanding at such time under the Permitted Receivables
Purchase Facility if the same were structured as a secured lending
agreement rather than a purchase agreement).
"Receivables Subsidiary" means a special purpose, bankruptcy
remote Wholly-Owned Subsidiary of the Company which may be formed for
the sole and exclusive purpose of engaging in activities in connection
with the purchase, sale and financing of
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33
Accounts Receivable in connection with and pursuant to a Permitted
Receivables Purchase Facility.
"Refinancing Indebtedness" means Indebtedness incurred to
refinance other Indebtedness as long as such refinancing does not (i)
result in an increase in the total principal amount thereof or (ii)
create Indebtedness with a weighted average life to maturity that is
less than the weighted average life to maturity of the Indebtedness
being refinanced or shorten the final maturity of the Indebtedness
being refinanced, provided that if such Indebtedness being refinanced
is Indebtedness of the Company, then such Refinancing Indebtedness
shall be Indebtedness solely of the Company.
"Replacement Bank" has the meaning specified in Section 4.08.
"Reportable Event" means, any of the events set forth in
Section 4043(c) of ERISA or the regulations thereunder, other than any
such event for which the 30-day notice requirement under ERISA has been
waived in regulations issued by the PBGC.
"Requirement of Law" means, as to any Person, any law
(statutory or common), treaty, rule or regulation or determination of
an arbitrator or of a Governmental Authority, in each case applicable
to or binding upon the Person or any of its property or to which the
Person or any of its property is subject.
"Responsible Officer" means the chief executive officer, the
chief operating officer, the president, the chief financial officer,
the controller or the treasurer of the Company, or any other officer
having substantially the same authority and responsibility.
"Restricted Payment" has the meaning specified in Section
8.08.
"Restructuring Charge" means the $5,661,000 pre-tax charge of
the Company for the first fiscal quarter of 2001 relating to the
elimination of workforce and consolidation of operations in southwest
Michigan.
"Revolving Loan" has the meaning specified in Section 2.01.
"Revolving Termination Date" means the earlier to occur of:
(a) June 8, 2006; and
(b) the date on which the Commitments terminate in
accordance with the provisions of this Agreement.
"S&P" means Standard & Poor's Ratings Services, a division of
The XxXxxx-Xxxx Companies, Inc. and any successor thereto.
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34
"Sale and Leaseback Transaction" means any arrangement,
directly or indirectly, whereby a seller or transferor shall sell or
otherwise transfer any real or personal property and then or thereafter
lease, or repurchase under an extended purchase contract, conditional
sales or other title retention agreement, the same or similar property.
"Same Day Funds" means (i) with respect to disbursements and
payments in Dollars, immediately available funds, and (ii) with respect
to disbursements and payments in an Offshore Currency, same day or
other funds as may be determined by the Agent to be customary in the
place of disbursement or payment for the settlement of international
banking transactions in the relevant Offshore Currency.
"SEC" means the Securities and Exchange Commission, or any
Governmental Authority succeeding to any of its principal functions.
"Shareholders' Equity" means, as of any date of determination
for the Company and its Subsidiaries on a consolidated basis,
shareholders' equity as of that date determined in accordance with
GAAP.
"Spot Rate" for a currency means the rate quoted by BofA as
the spot rate for the purchase by BofA of such currency with another
currency through its FX Trading Office at approximately 10:00 a.m.
(Chicago time) on the date two Banking Days prior to the date as of
which the foreign exchange computation is made.
"Sterling" means the lawful currency of the United Kingdom.
"Subordinated Debt" shall mean all unsecured Indebtedness of
the Company for money borrowed which is subordinated in form and
substance to the Obligations, and which has terms of payment, covenants
and remedies, all satisfactory to the Majority Banks as evidenced by
their written approval thereof.
"Subsequent Participant" means each country that adopts the
euro as its lawful currency after January 1, 1999.
"Subsidiary" of a Person means any corporation, association,
partnership, limited liability company, joint venture or other business
entity of which more than 50% of the securities, membership interests
or other equity interests having ordinary voting power for the election
of directors or other governing body are at the time beneficially owned
or controlled directly or indirectly by the Person, or one or more of
the Subsidiaries of the Person, or a combination thereof. Unless the
context otherwise clearly requires, references herein to a "Subsidiary"
refer to a Subsidiary of the Company.
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35
"Surety Instruments" means all letters of credit (including
standby and commercial), banker's acceptances, bank guaranties,
shipside bonds, surety bonds and similar instruments.
"Swap Contract" means any agreement, whether or not in
writing, relating to any transaction that is a rate swap, basis swap,
forward rate transaction, commodity swap, commodity option, equity or
equity index swap or option, bond, note or xxxx option, interest rate
option, forward foreign exchange transaction, cap, collar or floor
transaction, currency swap, cross-currency rate swap, swaption,
currency option or any other, similar transaction (including any option
to enter into any of the foregoing) or any combination of the
foregoing, and, unless the context otherwise clearly requires, any
master agreement relating to or governing any or all of the foregoing.
"Swap Termination Value" means, in respect of any one or more
Swap Contracts, after taking into account the effect of any legally
enforceable netting agreement relating to such Swap Contracts, (a) for
any date on or after the date such Swap Contracts have been closed out
and termination value(s) determined in accordance therewith, such
termination value(s), and (b) for any date prior to the date referenced
in clause (a) the amount(s) determined as the xxxx-to-market value(s)
for such Swap Contracts, as determined by the Company based upon one or
more mid-market or other readily available quotations provided by any
recognized dealer in such Swap Contracts (which may include any Bank).
"TARGET Business Day" is a day when TARGET (Trans-European
Automated Real-time Gross settlement Express Transfer system), or any
successor thereto, is scheduled to be open for business.
"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 Bank and the 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 Bank or the Agent, as
the case may be, is organized or maintains a lending office.
"Type" has the meaning specified in the definition of
"Committed Loan."
"Unfunded Pension Liability" means the excess of a Plan's
benefit liabilities under Section 4001(a)(16) of ERISA, over the
current value of that Plan's assets, determined in accordance with the
assumptions used for funding the Pension Plan pursuant to Section 412
of the Code for the applicable plan year.
"United States" and "U.S." each means the United States of
America.
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36
"Wholly-Owned Subsidiary" means any corporation in which
(other than directors' qualifying shares required by law) 100% of the
capital stock of each class having ordinary voting power, and 100% of
the capital stock of every other class, in each case, at the time as of
which any determination is being made, is owned, beneficially and of
record, by the Company, or by one or more of the other Wholly-Owned
Subsidiaries, or both.
1.02 Other Interpretive Provisions.
(a) The meanings of defined terms are equally applicable to
the singular and plural forms of the defined terms.
(b) The words "hereof", "herein", "hereunder" and similar
words refer to this Agreement as a whole and not to any particular provision of
this Agreement; and subsection, Section, Schedule and Exhibit references are to
this Agreement unless otherwise specified.
(c) (i) The term "documents" includes any and all instruments,
documents, agreements, certificates, indentures, notices and other writings,
however evidenced.
(ii) The term "including" is not limiting and means
"including without limitation."
(iii) In the computation of periods of time from a
specified date to a later specified date, the word "from" means "from and
including"; the words "to" and "until" each mean "to but excluding", and the
word "through" means "to and including."
(d) Unless otherwise expressly provided herein, (i) references
to agreements (including this Agreement) and other contractual instruments shall
be deemed to include all subsequent amendments and other modifications thereto,
but only to the extent such amendments and other modifications are not
prohibited by the terms of any Loan Document, and (ii) references to any statute
or regulation are to be construed as including all statutory and regulatory
provisions consolidating, amending, replacing, supplementing or interpreting the
statute or regulation.
(e) The captions and headings of this Agreement are for
convenience of reference only and shall not affect the interpretation of this
Agreement.
(f) This Agreement and other Loan Documents may use several
different limitations, tests or measurements to regulate the same or similar
matters. All such limitations, tests and measurements are cumulative and shall
each be performed in accordance with their terms.
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37
(g) This Agreement and the other Loan Documents are the result
of negotiations among and have been reviewed by counsel to the Agent, the
Company and the other parties, and are the products of all parties. Accordingly,
they shall not be construed against the Banks or the Agent merely because of the
Agent's or Banks' involvement in their preparation.
1.03 Accounting Principles.
(a) Unless the context otherwise clearly requires, all
accounting terms not expressly defined herein shall be construed, and all
financial computations required under this Agreement shall be made, in
accordance with GAAP, consistently applied.
(b) References herein to "fiscal year" and "fiscal quarter"
refer to such fiscal periods of the Company.
(c) If at any time any change in GAAP would affect the
computation of any financial ratio or requirement set forth in any Loan
Document, and either the Company or the Majority Banks shall so request, the
Agent, the Banks and the Company shall negotiate in good faith to amend such
ratio or requirement to preserve the original intent thereof in light of such
change in GAAP (subject to the approval of the Majority Banks); provided that,
until so amended, (i) such ratio or requirement shall continue to be computed in
accordance with GAAP prior to such change therein and (ii) in the event of any
request to negotiate to amend pursuant to this Section 1.03(c), the Company
shall provide to the Agent and the Banks financial statements and other
documents required under this Agreement or as reasonably requested hereunder
setting forth a reconciliation between calculations of such ratio or requirement
made before and after giving effect to such change in GAAP.
1.04 Currency Equivalents Generally. For all purposes of this Agreement
(but not for purposes of the preparation of any financial statements delivered
pursuant hereto or calculating financial covenants hereunder), the equivalent in
any Offshore Currency or other currency of an amount in Dollars, and the
equivalent in Dollars of an amount in any Offshore Currency or other currency,
shall be determined at the Spot Rate.
1.05 Rounding. Any financial ratios required to be maintained by the
Banks pursuant to this Agreement shall be calculated by dividing the appropriate
component by the other component, carrying the result to one place more than the
number of places by which such ratio is expressed herein and rounding the result
up or down to the nearest number (with a rounding-up if there is no nearest
number).
1.06 References to Agreements and Laws. Unless otherwise expressly
provided herein, (a) references to agreements (including the Loan Documents) and
other contractual instruments shall be deemed to include all subsequent
amendments, restatements, extensions, supplements and other modifications
thereto, but only to the extent that such amendments,
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Credit Agreement - Idex Corporation
38
restatements, extensions, supplements and other modifications are not prohibited
by any Loan Document; and (b) references to any Law shall include all statutory
and regulatory provisions consolidating, amending, replacing, supplementing or
interpreting such Law.
ARTICLE II
THE CREDITS
2.01 Amounts and Terms of Commitments. Each Bank severally agrees, on
the terms and conditions set forth herein, to make loans to the Company (each
such loan, a "Revolving Loan") from time to time on any Business Day during the
period from the Closing Date to the Revolving Termination Date, in an aggregate
principal Dollar Equivalent amount not to exceed at any time outstanding the
amount set forth opposite the Bank's name in Schedule 2.01 under the heading
"Commitment" (as the same may be reduced pursuant to Section 2.07 or as a result
of one or more assignments pursuant to Section 11.08 or increased pursuant to
Section 2.17); provided, however, that, after giving effect to any Borrowing of
Revolving Loans, the aggregate principal Dollar Equivalent amount of all
outstanding Loans and L/C Obligations shall not exceed the combined Commitments;
and provided further that, after giving effect to any Borrowing of Offshore
Currency Loans, the aggregate principal Dollar Equivalent amount of all
outstanding Offshore Currency Loans and L/C Obligations denominated in an
Offshore L/C Currency shall not exceed the Offshore Currency Loan Sublimit.
Within the limits of each Bank's Commitment, and subject to the other terms and
conditions hereof, the Company may borrow under this Section 2.01, prepay
pursuant to Section 2.08 and reborrow pursuant to this Section 2.01.
2.02 Loan Accounts, Evidence of Debt.
(a) The Loans made by each Bank or Designated Bidder shall be
evidenced by one or more loan accounts or records maintained by such Bank or
Designated Bidder in the ordinary course of business. The loan accounts or
records maintained by the Agent and each Bank or Designated Bidder shall be
rebuttably presumptive evidence of the amount of the Loans made by the Banks and
Designated Bidders to the Company and the interest and payments thereon. Any
failure so to record or any error in doing so shall not, however, limit or
otherwise affect the obligation of the Company hereunder to pay any amount owing
with respect to the Loans.
(b) Upon the request of any Bank or Designated Bidder made
through the Agent, the Committed Loans made by such Bank may be evidenced by one
or more notes in substantially the form of Exhibit 2.02 ("Committed Loan Notes")
and the Bid Loans made by such Bank or Designated Bidder may be evidenced by one
or more notes ("Bid Loan Notes"), instead of or in addition to loan accounts.
Each such Bank or Designated Bidder shall endorse on the schedules annexed to
its Note(s) the date, amount and maturity of each Loan made by it and the amount
of each payment of principal made by the Company with respect thereto. Each
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Credit Agreement - Idex Corporation
39
such Bank and Designated Bidder is irrevocably authorized by the Company to
endorse its Note(s) and each Bank's or Designated Bidder's record shall be
rebuttably presumptive evidence of the matters set forth therein absent manifest
error; provided, however, that the failure of a Bank or Designated Bidder to
make, or an error in making, a notation thereon with respect to any Loan shall
not limit or otherwise affect the obligations of the Company hereunder or under
any such Note to such Bank or Designated Bidder.
2.03 Procedure for Committed Borrowing.
(a) Each Committed Borrowing shall be made upon the Company's
irrevocable written notice delivered to the Agent in the form of a Notice of
Borrowing (which notice must be received by the Agent prior to 10:30 a.m.
(Chicago time) (i) four Business Days prior to the requested Borrowing Date, in
the case of Offshore Currency Loans; (ii) three Business Days prior to the
requested Borrowing Date, in the case of Offshore Rate Loans denominated in
Dollars; provided, however, that if the Company wishes to request Offshore Rate
Loans having an Interest Period other than one, two, three or six months in
duration as provided in the definition of "Interest Period", the applicable
notice must be received by the Agent not later than 10:30 a.m. (Chicago time),
four (4) Business Days prior to the requested date of Committed Borrowing,
conversion or continuation; and (iii) on the requested Borrowing Date, in the
case of Base Rate Loans, in any such case, specifying:
(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;
(D) the duration of the Interest Period applicable to
any Offshore Rate Loan included in such notice. If the Notice of
Borrowing fails to specify the duration of the Interest Period for any
Committed Borrowing comprised of Offshore Rate Loans, such Interest
Period shall be one month; and
(E) in the case of a Committed Borrowing comprised of
Offshore Currency Loans, the Applicable Currency.
provided, however, that with respect to the Borrowing to be made on the Closing
Date, the Notice of Borrowing shall be delivered to the Agent not later than
10:30 a.m. (Chicago time) on the Closing Date and unless the Company has
provided the applicable advance notice for Offshore Rate Loans and has agreed to
pay funding losses in the same manner as set forth in Section 4.04 hereof, such
Borrowing will consist of Base Rate Loans only.
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Credit Agreement - Idex Corporation
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(b) The Dollar Equivalent amount of any Committed Borrowing in
an Offshore Currency will be determined by the Agent for such Committed
Borrowing on the Computation Date therefor in accordance with subsection
2.05(a). Upon receipt of the Notice of Borrowing, the Agent will promptly notify
each Bank thereof and of the amount of such Bank's Pro Rata Share of the
Committed Borrowing.
(c) Each Bank will make the amount of its Pro Rata Share of
each Committed Borrowing available to the Agent for the account of the Company
at the 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 Loans in Dollars, by 12:00 noon (Chicago time), and (ii)
in the case of a Committed Borrowing comprised of Offshore Currency Loans, by
such time as the Agent may reasonably specify. The proceeds of all such
Committed Loans will then be made available to the Company by the Agent at such
office by crediting the account of the Company on the books of BofA with the
aggregate of the amounts made available to the Agent by the Banks and in by wire
transfer in accordance with written instructions provided to the Agent by the
Company of like funds as received by the Agent.
(d) After giving effect to any Borrowing, unless the Agent
shall otherwise consent, there may not be more than ten different Interest
Periods in effect in respect of all Committed Loans and Bid Loans together then
outstanding.
2.04 Conversion and Continuation Elections for Committed Loans.
(a) The Company may, upon irrevocable written notice to the
Agent in accordance with subsection 2.04(b):
(i) elect, as of any Business Day, in the case of
Base Rate Committed Loans, or as of the last day of the applicable Interest
Period, in the case of any other Type of Committed Loans denominated in Dollars,
to convert any such Loans (or any part thereof in an amount not less than the
Minimum Tranche) into Loans in Dollars of any 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);
provided, that if at any time the aggregate amount of Offshore Rate Committed
Loans denominated in Dollars in respect of any Committed Borrowing is reduced,
by payment, prepayment, or conversion of part thereof to be less than the
Minimum Tranche, such Offshore Rate Committed Loans denominated in Dollars shall
automatically convert into Base Rate Loans.
(b) The Company shall deliver a Notice of
Conversion/Continuation to be received by the Agent not later than 10:30 a.m.
(Chicago time) at least (i) subject to Section
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Credit Agreement - Idex Corporation
41
2.03(a), three Business Days in advance of the Conversion/Continuation Date, if
the Committed Loans are to be converted into or continued as Offshore Rate
Committed Loans denominated in Dollars; (ii) four Business Days in advance of
the Conversion/Continuation Date, if the Committed Loans are to be converted
into or continued as Offshore Currency Loans; and (iii) on the
Conversion/Continuation Date, if the Committed Loans are to be converted into
Base Rate Committed Loans, specifying:
(A) the proposed Conversion/Continuation
Date;
(B) the aggregate amount of 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 Committed Loans, the duration of the requested
Interest Period.
(c) If upon the expiration of any Interest Period applicable
to Offshore Rate Committed Loans in Dollars, the Company has failed to select
timely a new Interest Period to be applicable to such Offshore Rate Committed
Loans or if any Default or Event of Default then exists, unless, in either case,
the Company has elected to repay such Committed Loan, the Company shall be
deemed to have elected to convert such Offshore Rate Committed Loans into Base
Rate Loans effective as of the expiration date of such Interest Period. If the
Company has failed to select a new Interest Period to be applicable to Offshore
Currency Loans prior to the fourth Business Day in advance of the expiration
date of the current Interest Period applicable thereto as provided in subsection
2.04(b), or if any Default or Event of Default shall then exist, subject to the
provisions of subsection 2.05(d), the Company shall be deemed to have elected to
continue such Offshore Currency Loans on the basis of a one month Interest
Period.
(d) The Agent will promptly notify each Bank of its receipt of
a Notice of Conversion/Continuation, or, if no timely notice is provided by the
Company, the Agent will promptly notify each Bank of the details of any
automatic conversion. All conversions and continuations shall be made ratably
according to the respective outstanding principal amounts of the Committed Loans
held by each Bank with respect to which the notice was given.
(e) Unless the Majority Banks otherwise consent, during the
existence of a Default or Event of Default, the Company may not elect to have a
Committed Loan denominated in Dollars converted into or continued as an Offshore
Rate Committed Loan denominated in Dollars or an Offshore Currency Loan
continued on the basis of an Interest Period exceeding one month.
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42
(f) After giving effect to any conversion or continuation of
Committed Loans, unless the Agent shall otherwise consent, there may not be more
than ten different Interest Periods in effect.
(g) Without prejudice and in addition to any method of
conversion or rounding prescribed by any EMU Legislation and without prejudice
to (i) the liabilities for indebtedness of the Company to the Banks under or
pursuant to this Agreement or (ii) the Banks' Commitments, any reference in this
Agreement to a minimum amount (or an integral multiple thereof) in a national
currency of a Subsequent Participant to be paid to or by the Agent shall
immediately, upon it becoming a Subsequent Participant, be replaced by a
reference to such reasonably comparable and convenient amount (or an integral
multiple thereof) in the euro unit as the Agent may specify.
(h) The Agent may from time to time further modify the terms
of, and practices contemplated by, this Agreement with respect to the euro to
the extent the Agent determines, in its reasonable discretion, that such
modifications are necessary or convenient to reflect new laws, regulations,
customs or practices developed in connection with the euro. The Agent may effect
such modifications, and this Agreement shall be deemed so amended, without the
consent of the Company or the Banks, effective upon receipt of written notice to
the Company, a copy of which notice the Agent shall provide to each Bank, to the
extent such modifications are not materially disadvantageous to the Company or
any Bank.
2.05 Utilization of Revolving Commitments in Offshore Currencies.
(a) The Agent will determine the Dollar Equivalent amount with
respect to any (i) Committed Borrowing comprised of Offshore Currency Loans as
of the requested Borrowing Date, (ii) outstanding Offshore Currency Loans as of
the last Banking Day of each month, and (iii) outstanding Offshore Currency
Loans as of any redenomination date pursuant to this Section 2.05 or Section
4.05 (each such date under clauses (i) through (iii), a "Computation Date").
(b) In the case of a proposed Committed Borrowing comprised of
Offshore Currency Loans, the Banks shall be under no obligation to make Offshore
Currency Loans in the requested Offshore Currency as part of such Committed
Borrowing if the Agent has received notice from any of the Banks by 3:00 p.m.
(Chicago time) four Business Days prior to the day of such Committed Borrowing
that such Bank cannot provide Loans in the requested Offshore Currency, in which
event the Agent will give notice to the Company no later than 10:30 a.m.
(Chicago time) on the third Business Day prior to the requested date of such
Borrowing that the Committed Borrowing in the requested Offshore Currency is not
then available, and notice thereof also will be given promptly by the Agent to
the Banks. If the Agent shall have so notified the Company that any such
Committed Borrowing in a requested Offshore Currency is not then available, the
Company may, by notice to the Agent not later than 4:30 p.m. (Chicago
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Credit Agreement - Idex Corporation
43
time) three Business Days prior to the requested date of such Committed
Borrowing, withdraw the Notice of Borrowing relating to such requested Committed
Borrowing. If the Company does so withdraw such Notice of Borrowing, the
Committed Borrowing requested therein shall not occur and the Agent will
promptly so notify each Bank. If the Company does not so withdraw such Notice of
Borrowing, the Agent will promptly so notify each Bank and such Notice of
Borrowing shall be deemed to be a Notice of Borrowing that requests a Committed
Borrowing comprised of Base Rate Committed Loans in an aggregate amount equal to
the amount of the originally requested Borrowing as expressed in Dollars in the
Notice of Borrowing; and in such notice by the Agent to each Bank the Agent will
state such aggregate amount of such Committed Borrowing in Dollars and such
Bank's Pro Rata Share thereof.
(c) In the case of a proposed continuation of Offshore
Currency Loans for an additional Interest Period pursuant to Section 2.04, the
Banks shall be under no obligation to continue such Offshore Currency Loans if
the Agent has received notice from any of the Banks by 3:00 p.m. (Chicago time)
four Business Days prior to the day of such continuation that such Bank cannot
continue to provide Committed Loans in the relevant Offshore Currency, in which
event the Agent will give notice to the Company not later than 10:30 a.m.
(Chicago time) on the third Business Day prior to the requested date of such
continuation that the continuation of such Offshore Currency Loans in the
relevant Offshore Currency is not then available, and notice thereof also will
be given promptly by the Agent to the Banks. If the Agent shall have so notified
the Company that any such continuation of Offshore Currency Loans is not then
available, any Notice of Continuation/Conversion with respect thereto shall be
deemed withdrawn and such Offshore Currency Loans shall be redenominated into
Base Rate Committed Loans in Dollars with effect from the last day of the
Interest Period with respect to any such Offshore Currency Loans. The Agent will
promptly notify the Company and the Banks of any such redenomination and in such
notice by the Agent to each Bank the Agent will state the aggregate Dollar
Equivalent amount of the redenominated Offshore Currency Loans as of the
Computation Date with respect thereto and such Bank's Pro Rata Share thereof.
(d) Notwithstanding anything herein to the contrary, during
the existence of an Event of Default, upon the request of the Majority Banks,
all or any part of any outstanding Offshore Currency Loans shall be
redenominated and converted into Base Rate Committed Loans in Dollars with
effect from the last day of the Interest Period with respect to any such
Offshore Currency Loans. The Agent will promptly notify the Company of any such
redenomination and conversion request.
(e) The Company shall be entitled to request that Revolving
Loans hereunder also be permitted to be made in any other lawful currency (other
than Dollars), in addition to the eurocurrencies specified in the definition of
"Offshore Currency" herein, that in the opinion of the Majority Banks is at such
time freely traded in the offshore interbank foreign exchange markets and is
freely transferable and freely convertible into Dollars (an "Agreed Alternative
Currency"). The Company shall deliver to the Agent any request for designation
of an Agreed
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Credit Agreement - Idex Corporation
44
Alternative Currency in accordance with Section 11.02, to be received by the
Agent not later than 12:00 p.m. (Chicago time) at least ten Business Days in
advance of the date of any Committed Borrowing hereunder proposed to be made in
such Agreed Alternative Currency. Upon receipt of any such request the Agent
will promptly notify the Banks thereof, and each Bank will use its best efforts
to respond to such request within two Business Days of receipt thereof. Each
Bank may grant or accept such request in its sole discretion. The Agent will
promptly notify the Company of the acceptance or rejection of any such request.
2.06 Bid Borrowings.
(a) General. In addition to Committed Borrowings pursuant to
Section 2.03, each Bank severally agrees that the Company may, as set forth in
this Section 2.06, from time to time request the Banks prior to the Revolving
Termination Date to submit offers to make Bid Loans in Dollars to the Company;
provided, however, that the Banks may, but shall have no obligation to, submit
such offers and the Company may, but shall have no obligation to, accept any
such offers, and any Bank may designate a Designated Bidder to make such offers
from time to time and, if such offers are accepted by the Company, to make such
Bid Loans; and provided, further, that at no time shall (a) the outstanding
aggregate principal amount of all Bid Loans made by all Banks and Designated
Bidders, plus the outstanding aggregate Dollar Equivalent principal amount of
all Committed Loans made by all Banks exceed the combined Commitments; (b) the
outstanding aggregate principal Dollar amount of all Bid Loans made by all Banks
and Designated Bidders exceed the lesser of $75,000,000 or 50% of the combined
Commitments; or (c) unless the Agent shall otherwise consent, the number of
Interest Periods for Bid Loans then outstanding plus the number of Interest
Periods for Committed Loans then outstanding exceed ten.
(b) Procedure for Bid Borrowings. When the Company wishes to
request the Banks to submit offers to make Bid Loans hereunder, it shall
transmit to the Agent by telephone call followed promptly by facsimile
transmission a notice in substantially the form of Exhibit 2.06(b)(i) (a
"Competitive Bid Request") so as to be received no later than 9:00 a.m. (Chicago
time) (x) four Business Days prior to the date of a proposed Bid Borrowing in
the case of a LIBOR Auction, or (y) two Business Days prior to the date of a
proposed Bid Borrowing in the case of an Absolute Rate Auction, specifying:
(i) the date of such Bid Borrowing, which shall be a
Business Day;
(ii) the aggregate amount of such Bid Borrowing,
which shall be a minimum amount of $5,000,000 or in multiples of $1,000,000 in
excess thereof;
(iii) whether the Competitive Bids requested are to
be for LIBOR Bid Loans or Absolute Rate Bid Loans or both; and
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Credit Agreement - Idex Corporation
45
(iv) the duration of the Interest Period applicable
thereto, subject to the provisions of the definition of "Interest Period"
herein.
Subject to subsection 2.06(c), the Company may not request 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.
(c) Submitting Competitive Bids.
(i) Upon receipt of a Competitive Bid Request, the
Agent will promptly send to the Banks and Designated Bidders by facsimile
transmission an Invitation for Competitive Bids, which shall constitute an
invitation by the Company to each Bank and Designated Bidder to submit
Competitive Bids offering to make the Bid Loans to which such Competitive Bid
Request relates in accordance with this Section 2.06.
(ii) Each Bank and Designated Bidder may at 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 2.06(c) and must be
submitted to the Agent by facsimile transmission at the Agent's office for
notices set forth on the signature pages hereto not later than (a) 8:30 a.m.
(Chicago time) three Business Days prior to the proposed date of Borrowing, in
the case of a LIBOR Auction or (2) 8:30 a.m. (Chicago time) on the proposed date
of Borrowing, in the case of an Absolute Rate Auction; provided that Competitive
Bids submitted by the Agent (or any Affiliate of the Agent) in the capacity of a
Bank or Designated Bidder may be submitted, and may only be submitted, if the
Agent or such Affiliate notifies the Company of the terms of the offer or offers
contained therein not later than (A) 8:15 a.m. (Chicago time) three Business
Days prior to the proposed date of Borrowing, in the case of a LIBOR Auction or
(B) 8:15 a.m. (Chicago time) on the proposed date of Borrowing, in the case of
an Absolute Rate Auction.
(iii) Each Competitive Bid shall be in substantially
the form of Exhibit 2.06(c), specifying therein:
(A) the proposed date of Borrowing;
(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 Bank, (y) must be $5,000,000 or in
multiples of $1,000,000 in excess thereof, and (z) may not
exceed the principal amount of Bid Loans for which Competitive
Bids were requested;
(C) in case the Company elects a LIBOR
Auction, the margin above or below LIBOR (the "LIBOR Bid
Margin") offered for each such Bid
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Credit Agreement - Idex Corporation
46
Loan, expressed in multiples of 1/1000th of one basis point to
be added to or subtracted from the applicable LIBOR and the
Interest Period applicable thereto;
(D) in case the Company elects an Absolute
Rate Auction, the rate of interest per annum expressed in
multiples of 1/1000th of one basis point (the "Absolute Rate")
offered for each such Bid Loan; and
(E) the identity of the quoting Bank or
Designated Bidder.
A Competitive Bid may contain up to three separate offers by the quoting Bank or
Designated Bidder with respect to each Interest Period specified in the related
Invitation for Competitive Bids.
(iv) Any Competitive Bid shall be disregarded if it:
(A) is not substantially in conformity with
Exhibit 2.06(c) or does not specify all of the information
required by subsection (c)(iii) of this Section;
(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 (c)(ii).
(d) Notice to Company of Competitive Bids. Promptly on receipt
and not later than 9:00 a.m. (Chicago time) three Business Days prior to the
proposed date of Borrowing in the case of a LIBOR Auction, or 9:00 a.m. (Chicago
time) on the proposed date of Borrowing, in the case of an Absolute Rate
Auction, the Agent will notify the Company of the terms (i) of any Competitive
Bid submitted by a Bank or Designated Bidder that is in accordance with
subsection 2.06(c), and (ii) of any Competitive Bid that amends, modifies or is
otherwise inconsistent with a previous Competitive Bid submitted by such Bank or
Designated Bidder with respect to the same Competitive Bid Request. Any such
subsequent Competitive Bid shall be disregarded by the 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 2.06(c). The 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; and (2)
the respective principal amounts and LIBOR Bid Margins or Absolute Rates, as the
case may be, so offered. Subject only to the provisions of Sections 4.02, 4.05
and 5.02 hereof and the provisions of this subsection (d), any Competitive Bid
shall be irrevocable except with the written consent of the Agent given on the
written instructions of the Company.
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Credit Agreement - Idex Corporation
47
(e) Acceptance of Competitive Bids. Not later than 9:30 a.m.
(Chicago time) three Business Days prior to the proposed date of Borrowing, in
the case of a LIBOR Auction, or 9:30 a.m. (Chicago time) on the proposed date of
Borrowing, in the case of an Absolute Rate Auction, the Company shall notify the
Agent of its acceptance or non-acceptance of the offers so notified to it
pursuant to subsection 2.06(d). The Company shall be under no obligation to
accept any offer and may choose to reject all 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 $5,000,000 or in any multiple of $1,000,000 in excess thereof;
(iii) acceptance of offers may only be made on the
basis of ascending LIBOR Bid Margins or Absolute Rates within each Interest
Period, as the case may be; and
(iv) the Company may not accept any offer that is
described in subsection 2.06(c)(iv) or that otherwise fails to comply with the
requirements of this Agreement.
(f) Procedures for Identical Bids. If offers are made by two
or more Banks or Designated Bidders with the same LIBOR Bid Margins or Absolute
Rates, as the case may be, 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 Agent among such Banks or Designated Bidders
as nearly as possible (in such multiples, not less than $1,000,000, as the Agent
may deem appropriate) in proportion to the aggregate principal amounts of such
offers. Determination by the Agent of the amounts of Bid Loans shall be
conclusive in the absence of manifest error.
(g) Notice to Banks of Acceptance or Rejection of Bids.
(i) The Agent will promptly notify each Bank or
Designated Bidder 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 Bank or Designated Bidder which has
received notice pursuant to subsection 2.06(g)(i) that its Competitive Bid has
been accepted shall make the amounts of such Bid Loans available to the Agent
for the account of the Company at the Agent's Payment Office, by 1:00 p.m.
(Chicago time) in the case of Absolute Rate Bid Loans, and by
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Credit Agreement - Idex Corporation
48
1:00 p.m. (Chicago time) in the case of LIBOR Bid Loans, on such date of Bid
Borrowing, in funds immediately available to the Agent for the account of the
Company at the Agent's Payment Office.
(iii) Promptly following each Bid Borrowing, the
Agent shall notify each Bank and Designated Bidder of the ranges of bids
submitted and the highest and lowest Competitive Bids accepted for each Interest
Period requested by the Company and the aggregate amount borrowed pursuant to
such Bid Borrowing.
(iv) From time to time, the Company and the Banks and
Designated Bidders shall furnish such information to the Agent as the Agent may
request relating to the making of Bid Loans, including the amounts, interest
rates, dates of borrowings and maturities thereof, for purposes of the
allocation of amounts received from the Company for payment of all amounts owing
hereunder.
(h) If, on or prior to the proposed date of Borrowing, the
Commitments have not been terminated and if, on such proposed date of Borrowing
all applicable conditions to funding referenced in Sections 4.02, 4.05 and 5.02
hereof are satisfied, the Banks and Designated Bidders whose offers the Company
has accepted will fund each Bid Loan so accepted. Nothing in this Section 2.06
shall be construed as a right of first offer in favor of the Banks or Designated
Bidders or to otherwise limit the ability of the Company to request and accept
credit facilities from any Person (including any of the Banks or Designated
Bidders), provided that no Default or Event of Default would otherwise arise or
exist as a result of the Company executing, delivering or performing under such
credit facilities.
2.07 Voluntary Termination or Reduction of Commitments. The Company
may, upon not less than five Business Days' prior notice to the Agent, terminate
the Commitments, or permanently reduce the Commitments by an aggregate minimum
Dollar Equivalent amount of $5,000,000 or any Dollar Equivalent multiple of
$1,000,000 in excess thereof; unless, after giving effect thereto and to any
prepayments of Loans made on the effective date thereof, the then-outstanding
principal Dollar Equivalent amount of the Loans and L/C Obligations would exceed
the amount of the combined Commitments then in effect. Once reduced in
accordance with this Section, the Commitments may not be increased except
pursuant to Section 2.17 or 11.01. Any reduction of the Commitments shall be
applied to each Bank according to its Pro Rata Share. All accrued commitment
fees to, but not including the effective date of any reduction or termination of
Commitments, shall be paid on the effective date of such reduction or
termination.
2.08 Optional Prepayments.
(a) Subject to Section 4.04, unless waived by the Agent, the
Company may, at any time or from time to time, upon irrevocable notice to the
Agent (which notice must be received by the Agent prior to 10:30 a.m. (Chicago
time)) (i) four Business Days prior to the date
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Credit Agreement - Idex Corporation
49
of prepayment, in the case of Offshore Currency Loans; (ii) three Business Days
prior to the date of prepayment, in the case of Offshore Rate Loans denominated
in Dollars, (iii) on the date of prepayment, in the case of Base Rate Loans,
ratably prepay Loans in whole or in part, in minimum Dollar Equivalent amounts
of $3,000,000 or any Dollar Equivalent multiple of $1,000,000 in excess thereof
or such other amount necessary to repay in full any Offshore Rate Loan or, in
the case of Base Rate Loans, in minimum amounts of $1,000,000 or any multiple of
$500,000 in excess thereof or such other amount necessary to repay in full any
Base Rate Loan. Such notice of prepayment shall specify the date and amount of
such prepayment and whether such prepayment is of Base Rate Committed Loans,
Offshore Rate Committed Loans, or any combination thereof, and the Applicable
Currency. Such notice shall not thereafter be revocable by the Company and the
Agent will promptly notify each Bank thereof and of such Bank's Pro Rata Share
of such prepayment. If such notice is given by the Company, the Company shall
make such prepayment and the payment amount specified in such notice shall be
due and payable on the date specified therein, together with any amounts
required pursuant to Section 4.04.
(b) Bid Loans may not be voluntarily prepaid other than with
the consent of the applicable Bid Loan Lender.
2.09 Currency Exchange Fluctuations. Subject to Section 4.04, if on any
Computation Date the Agent shall have determined that the aggregate Dollar
Equivalent principal amount of all Loans and L/C Obligations then outstanding
exceeds the Aggregate Commitments by more than $500,000, due to a change in
applicable rates of exchange between Dollars and Offshore Currencies, then the
Agent shall give notice to the Company that a prepayment is required under this
Section, and the Company agrees to promptly (and in any event within three
Business Days of such notice) make prepayments of Loans such that, after giving
effect to such prepayment the aggregate Dollar Equivalent amount of all Loans
and L/C Obligations does not exceed the Aggregate Commitments.
2.10 Mandatory Prepayments and Repayment.
(a) Mandatory Prepayments of Loans. Subject to Section 4.04,
if on any date the Effective Amount of all Loans then outstanding plus the
Effective Amount of all L/C Obligations exceeds the Aggregate Commitments (other
than as a result of currency exchange fluctuations), the Company shall
immediately, and without notice or demand, prepay the outstanding principal
amount of the Loans in an amount equal to the lesser of such excess and the
amount of the outstanding Loans and, if any excess shall still remain, shall
Cash Collateralize the L/C Obligations to the extent of such remaining excess.
(b) Repayment. The Company shall repay to the Banks on the
Revolving Termination Date the aggregate principal amount of Loans outstanding
on such date. The Company shall repay each Bid Loan on the last day of the
relevant Interest Period.
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Credit Agreement - Idex Corporation
50
(c) Mandatory Prepayment of Excess Receivables Sale Proceeds
or Subsidiary Debt. If on any date the sum of (i) Receivables Facility
Attributed Indebtedness, (ii) Indebtedness of Subsidiaries of the Company which
is outstanding and permitted solely by Section 8.05(g), and (iii) Indebtedness
consisting of Contingent Obligations of any Subsidiary which are outstanding and
permitted solely by Section 8.07(h), exceed the greater of (i) $65,000,000 or
(ii) 15% of Consolidated Net Worth, then, on the third Business Day after such
date, to the extent such Indebtedness or Receivables Facility Attributed
Indebtedness is not reduced to or below the greater of (i) $65,000,000 or (ii)
15% of Consolidated Net Worth, the revolving Commitments shall be permanently
reduced by an amount equal to such excess, and to the extent the Effective
Amount of all Loans then outstanding and the Effective Amount of all L/C
Obligations exceeds the Aggregate Commitments as so reduced, the Company shall
immediately, and without notice or demand, prepay the outstanding principal
amount of the Loans in an amount equal to the lesser of such excess and the
amount of the outstanding Loans and, if any excess shall still remain, shall
Cash Collateralize the L/C Obligations to the extent of such remaining excess.
2.11 Interest.
(a) Each Committed Loan shall bear interest on the outstanding
principal amount thereof from the applicable Borrowing Date at a rate per annum
equal to the Offshore Rate plus the Applicable Rate or the Base Rate, as the
case may be (and subject to the Company's right to convert to other Types of
Committed Loans under Section 2.04). Each Bid Loan shall bear interest on the
outstanding principal amount thereof from the relevant Borrowing Date at the
rate per annum equal to the LIBO Rate plus (or minus) the LIBOR Bid Margin, or
at the Absolute Rate, as the case may be.
(b) Interest on each Loan shall be paid in arrears on each
Interest Payment Date. Interest shall also be paid on the date of any prepayment
of Loans (other than prepayments of Base Rate Loans) under Section 2.08 or 2.10
for the portion of the Loans so prepaid and upon payment (including prepayment)
in full thereof and, during the existence of any Event of Default, interest
shall be paid on demand of the Agent at the request or with the consent of the
Majority Banks.
(c) Notwithstanding subsection (a) of this Section, if any
amount of principal of or interest on any Loan, or any other amount payable
hereunder or under any other Loan Document is not paid in full when due (whether
at stated maturity, by acceleration, demand or otherwise), the Company agrees to
pay interest on such unpaid principal or other amount, from the date such amount
becomes due until the date such amount is paid in full, and after as well as
before any entry of judgment thereon to the extent permitted by law, payable on
demand, at a fluctuating rate per annum equal to the Base Rate plus 2%.
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(d) Anything herein to the contrary notwithstanding, the
obligations of the Company to any Bank or Designated Bidder hereunder shall be
subject to the limitation that payments of interest shall not be required for
any period for which interest is computed hereunder, to the extent (but only to
the extent) that contracting for or receiving such payment by such Bank or
Designated Bidder would be contrary to the provisions of any law applicable to
such Bank or Designated Bidder limiting the highest rate of interest that may be
lawfully contracted for, charged or received by such Bank, and in such event the
Company shall pay such Bank or Designated Bidder interest at the highest rate
permitted by applicable law.
2.12 Fees.
(a) Arrangement, Agency Fees. The Company shall pay an
arrangement fee to the Arranger for the Arranger's own account, and shall pay an
agency fee to the Agent for the Agent's own account, as required by the letter
agreement ("Fee Letter") between the Company and the Arranger and Agent dated
April 11, 2001. On the date of each Competitive Bid Request, the Company shall
pay to the Agent for the Agent's own account a bid auction fee of $150 per Bank
per Competitive Bid Request.
(b) Facility Fees. The Company shall pay to the Agent for the
account of each Bank a facility fee on the actual daily Commitment for such
Bank, computed on a quarterly basis in arrears on the last Business Day of each
calendar quarter based upon the daily Commitments for that quarter as calculated
by the Agent, equal to the Applicable Rate. Such facility fee shall accrue from
the Closing Date to the Revolving Termination Date and shall be due and payable
quarterly in arrears on the last Business Day of each fiscal quarter commencing
on June 30, 2001 through the Revolving Termination Date, with the final payment
to be made on the Revolving Termination Date; provided that, in connection with
any reduction or termination of Commitments under Section 2.07, the accrued
facility fee calculated for the period ending on such date shall also be paid on
the date of such reduction or termination, with the following quarterly payment
being calculated on the basis of the period from such reduction or termination
date to such quarterly payment date. The facility fees provided in this
subsection shall accrue at all times after the above-mentioned commencement
date, including at any time during which one or more conditions in Article V are
not met.
(c) Utilization Fees. The Company shall pay to the Agent for
the account of each Bank in accordance with its Pro Rata Share, a utilization
fee of .125% per annum times the actual daily aggregate outstanding Dollar
Equivalent amount of Loans and L/C Obligations on each day that such aggregate
outstanding amount exceeds 33% of the Aggregate Commitments and, without
duplication of the preceding fee, .25% per annum times the actual daily
aggregate outstanding amount of Loans and L/C Obligations on each day that such
aggregate outstanding amount exceeds 66% of the Aggregate Commitments. The
utilization fee shall be due and payable quarterly in arrears on the last
Business Day of each March, June, September and December, commencing with the
first such date to occur after the Closing Date, and on the
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Revolving Termination Date. The utilization fee shall be calculated quarterly in
arrears. The utilization fee shall accrue at all times, including at any time
during which one or more of the conditions in Article V is not met.
2.13 Computation of Fees and Interest.
(a) All computations of interest for Base Rate Committed
Loans, Offshore Currency Loans denominated in Sterling and of fees 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 shall be made on the basis of a
360-day year and actual days elapsed (which results in more interest being paid
than if computed on the basis of a 365-day year). Interest and fees shall accrue
during each period during which interest or such fees are computed from the
first day thereof to the last day thereof.
(b) Each determination of an interest rate or a Dollar
Equivalent amount by the Agent shall be rebuttably presumptive evidence thereof
in the absence of manifest error. The Agent will, at the request of the Company
or any Bank, deliver to the Company or any Bank or Designated Bidder, as the
case may be, a statement showing the quotations used by the Agent in determining
any interest rate or Dollar Equivalent amount.
2.14 Payments by the Company.
(a) All payments to be made by the Company shall be made
without set-off, recoupment or counterclaim. Except as otherwise expressly
provided herein, all payments by the Company shall be made to the Agent for the
account of the Banks and Designated Bidders at the Agent's Payment Office, and,
with respect to principal of, interest on, and any other amounts relating to,
any Offshore Currency Loan, shall be made in the Offshore Currency in which such
Loan is denominated or payable, and, with respect to all other amounts payable
hereunder, shall be made in Dollars. Such payments shall be made in Same Day
Funds, and (i) in the case of Offshore Currency payments, no later than such
time on the dates specified herein as may be determined by the Agent to be
necessary for such payment to be credited on such date in accordance with normal
banking procedures in the place of payment, and (ii) in the case of any Dollar
payments, no later than 12:00 noon (Chicago time) on the date specified herein.
The Agent will promptly distribute to each Bank (or Designated Bidder) its Pro
Rata Share (or other applicable share as expressly provided herein) of such
principal, interest, fees or other amounts, in like funds as received. Any
payment which is received by the Agent later than 12:00 noon (Chicago time), or
later than the time specified by the Agent as provided in clause (i) above (in
the case of Offshore Currency payments), shall be deemed to have been received
on the following Business Day and any applicable interest or fee shall continue
to accrue.
(b) Subject to the provisions set forth in the definition of
"Interest Period" herein, whenever any payment is due on a day other than a
Business Day, such payment shall be
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53
made on the following Business Day, and such extension of time shall in such
case be included in the computation of interest or fees, as the case may be.
(c) Unless the Agent receives notice from the Company prior to
the date on which any payment is due to the Banks or Designated Bidders that the
Company will not make such payment in full as and when required, the Agent may
assume that the Company has made such payment in full to the Agent on such date
in Same Day Funds and the Agent may (but shall not be so required), in reliance
upon such assumption, distribute to each Bank or Designated Bidder on such due
date an amount equal to the amount then due such Bank or Designated Bidder. If
and to the extent the Company has not made such payment in full to the Agent,
each Bank or Designated Bidder shall repay to the Agent on demand such amount
distributed to such Bank or Designated Bidder, together with interest thereon at
the Federal Funds Rate or, in the case of a payment in an Offshore Currency, the
Overnight Rate, for each day from the date such amount is distributed to such
Bank or Designated Bidder until the date repaid.
(d) If at any time insufficient funds are received by and
available to the Agent to pay fully all amounts of principal, L/C Borrowings,
interest and fees then due hereunder, such funds shall be applied (i) first,
toward costs and expenses (including Attorney Costs and amounts payable under
Article IV) incurred by the Agent and each Bank, (ii) second, toward repayment
of interest and fees then due hereunder, ratably among the parties entitled
thereto in accordance with the amounts of interest and fees then due to such
parties, and (iii) third, toward repayment of principal and L/C Borrowings then
due hereunder, ratably among the parties entitled thereto in accordance with the
amounts of principal and L/C Borrowings then due to such parties.
2.15 Payments by the Banks to the Agent.
(a) Unless the Agent receives notice from a Bank on or prior
to the Closing Date or, with respect to any Borrowing after the Closing Date, at
least one Business Day prior to the date of such Borrowing (or in the case of
same day Borrowings, on or before 11:30 a.m. (Chicago time) on such day), that
such Bank will not make available as and when required hereunder to the Agent
for the account of the Company the amount of that Bank's Pro Rata Share of the
Committed Borrowing, the Agent may assume that each Bank has made such amount
available to the Agent in Same Day Funds on the Borrowing Date and the Agent may
(but shall not be so required), in reliance upon such assumption, make available
to the Company on such date a corresponding amount. If and to the extent any
Bank shall not have made its full amount available to the Agent in Same Day
Funds and the Agent in such circumstances has made available to the Company such
amount, that Bank shall on the Business Day following such Borrowing Date make
such amount available to the Agent, together with interest at the Federal Funds
Rate or, in the case of any Borrowing consisting of Offshore Currency Loans, the
Overnight Rate, for each day during such period. A notice of the Agent submitted
to any Bank with respect to amounts owing under this subsection 2.15(a) shall be
conclusive, absent manifest error. If such amount is so made available, such
payment to the Agent shall constitute such
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54
Bank's Loan on the date of Borrowing for all purposes of this Agreement. If such
amount is not made available to the Agent on the Business Day following the
Borrowing Date, the Agent will notify the Company of such failure to fund and,
upon demand by the Agent, the Company shall pay such amount to the Agent for the
Agent's account, together with interest thereon for each day elapsed since the
date of such Committed Borrowing, at a rate per annum equal to the interest rate
applicable at the time to the Committed Loans comprising such Committed
Borrowing.
(b) The failure of any Bank to make any Committed Loan on any
Borrowing Date shall not relieve any other Bank of any obligation hereunder to
make a Committed Loan on such Borrowing Date, but no Bank shall be responsible
for the failure of any other Bank to make the Committed Loan to be made by such
other Bank on any Borrowing Date.
2.16 Sharing of Payments, Etc. If, other than as expressly provided
elsewhere herein, any Bank shall obtain on account of the Committed Loans made
by it any payment (whether voluntary, involuntary, through the exercise of any
right of set-off, or otherwise) in excess of its ratable share (or other share
contemplated hereunder), such Bank shall immediately (a) notify the Agent of
such fact, and (b) purchase from the other Banks such participations in the
Committed Loans made by them as shall be necessary to cause such purchasing Bank
to share the excess payment pro rata with each of them; provided, however, that
if all or any portion of such excess payment is thereafter recovered from the
purchasing Bank, such purchase shall to that extent be rescinded and each other
Bank shall repay to the purchasing Bank the purchase price paid therefor,
together with an amount equal to such paying Bank's ratable share (according to
the proportion of (i) the amount of such paying Bank's required repayment to
(ii) the total amount so recovered from the purchasing Bank) of any interest or
other amount paid or payable by the purchasing Bank in respect of the total
amount so recovered. The Company agrees that any Bank so purchasing a
participation from another Bank may, to the fullest extent permitted by law,
exercise all its rights of payment (including the right of set-off, but subject
to Section 11.11) with respect to such participation as fully as if such Bank
were the direct creditor of the Company in the amount of such participation. The
Agent will keep records (which shall be conclusive and binding in the absence of
manifest error) of participations purchased or repaid under this Section and
will in each case notify the Banks following any such purchases or repayments.
Any Bank having outstanding both Committed Loans and Bid Loans at any time a
right of set-off is exercised by such Bank and applying such setoff to the Loans
shall apply the proceeds of such set-off first to such Bank's Committed Loans,
until its Committed Loans are reduced to zero, and thereafter to its Bid Loans.
2.17 Increase in Commitments.
(a) Provided there exists no Default or Event of Default, upon
notice to the Agent (which shall promptly notify the Banks), the Company may
from time to time, but not more than two times in any year, request an increase
in the Aggregate Commitments; provided,
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55
however, that after giving effect to any such increases, the Aggregate
Commitments shall not exceed $400,000,000. At the time of sending such notice,
the Company (in consultation with the Agent) shall specify the time period
within which each Bank is requested to respond (which shall in no event be less
than ten Business Days from the date of delivery of such notice to the Banks),
provided that each Bank need not be notified with respect to any request to
increase the Aggregate Commitments up to an aggregate of $350,000,000 made
within the first 60 days following the Closing Date. If requested to respond,
each Bank in its sole and absolute discretion shall notify the Agent within such
time period whether or not it agrees to increase its Commitment and, if so,
whether by an amount equal to, greater than, or less than its Pro Rata Share of
such requested increase. Any Bank not responding within such time period shall
be deemed to have declined to increase its Commitment. The Agent shall notify
the Company and each Bank of the Banks' responses to each request made
hereunder. If the Banks do not agree to the full amount of a requested increase,
the Company may then invite additional Eligible Assignees to become Banks
pursuant to a joinder agreement in form and substance satisfactory to the Agent
and its counsel.
(b) If the Aggregate Commitments are increased in accordance
with this Section, the Agent and the Company shall determine the effective date
(the "Increase Effective Date") and the final allocation of such increase. The
Agent shall promptly notify the Company and the Banks of the final allocation of
such increase and the Increase Effective Date. As a condition precedent to such
increase, the Company shall deliver to the Agent (i) a certificate of a
Responsible Officer of the Company dated as of the Increase Effective Date (in
sufficient copies for each Bank) signed by a Responsible Officer of the Company
certifying and attaching the resolutions adopted approving or consenting to such
increase and certifying that, before and after giving effect to such increase,
the representations and warranties contained in Article VI are true and correct
on and as of the Increase Effective Date (except to the extent that such
representation or warranty relates to an earlier date, in which case such
representation and warranty shall be true on and as of such date) and no Default
or Event of Default exists, and (ii) a Compliance Certificate demonstrating pro
forma compliance with Section 8.16 after giving effect to such increase. The
Company shall deliver new or amended Committed Loan Notes reflecting the
increased Commitment of any Bank holding or requesting a Note. The Agent shall
distribute an amended Schedule 2.01 (which shall be deemed incorporated into
this Agreement), to reflect any changes therein resulting from such increase.
The Company shall prepay any Committed Loans outstanding on the Increase
Effective Date (and pay any additional amounts required pursuant to Section
4.04) to the extent necessary to keep the outstanding Committed Loans ratable
with any revised Pro Rata Shares arising from any nonratable increase in the
Commitments under this Section, provided, that with the consent of each affected
Bank (which consent may be verbal) such amount or any portion thereof may be
settled on a net basis with each Bank having a new or nonratable increase in its
Commitment funding its Pro Rata Share of the principal amount of the Loans
outstanding on the Increase Effective Date with such amounts applied on behalf
of the Company to reduce the outstanding Revolving Loans of Banks whose Loans
outstanding exceed their revised Pro Rata Share of the aggregate Loans
outstanding as a result of such increased
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56
Aggregate Commitments. The Company shall pay to each such Bank any amounts
required pursuant to Section 4.04 together with interest on such amounts paid as
if such Bank received such prepayment directly from the Company.
(c) This Section shall supersede any provisions in Section
11.01 to the contrary.
2.18 Termination of Existing Credit Agreement. The Company, the Agent
and, to the extent a party thereto, the Banks acknowledge and agree that on and
as of the Closing Date the Existing Credit Agreement is, and all commitments
thereunder are, hereby terminated and that any revolving loans or other monetary
obligations under the Existing Credit Agreement as in effect immediately prior
to the effectiveness of this Agreement shall be paid in full or refinanced on
the Closing Date with Revolving Loans hereunder.
ARTICLE III
THE LETTERS OF CREDIT
3.01 The Letter of Credit Subfacility.
(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 Revolving Termination Date to issue Letters of
Credit denominated in Dollars or an Offshore L/C Currency for the account of the
Company, and to amend or renew Letters of Credit previously issued by it, in
accordance with subsections 3.02(c) and 3.02(d), and (B) to honor drafts under
the Letters of Credit; and (ii) the Banks severally agree 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 Bank 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"): (1) the Effective Amount of all L/C
Obligations exceeds $25,000,000; (2) the Effective Amount of all L/C Obligations
plus the Effective Amount of all Loans exceeds the Aggregate Commitments or (3)
the participation of any Bank in the Effective Amount of all L/C Obligations
plus the Effective Amount of the Committed Loans of such Bank exceeds such
Bank's Commitment. 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.
(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
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57
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 xxxxx xxxxx material to it and for which the
Issuing Bank is not compensated hereunder;
(ii) the Issuing Bank has received written notice
from any Bank, the Agent or the Company, 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 V is not then satisfied;
(iii) the expiry date of any requested Letter of
Credit is after the scheduled Revolving Termination Date;
(iv) any requested Letter of Credit is not 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) any standby Letter of Credit is for the purpose
of supporting the issuance of any letter of credit by any other Person other
than a guarantee issued by a foreign bank.
3.02 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 Agent) at least two 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; (vii) the currency (which shall be Dollars or an
Offshore L/C Currency) in which the Letter of Credit is to be denominated; and
(viii) such other matters as the Issuing Bank may require. The Agent will
promptly notify the Banks of the receipt by it of any L/C Application.
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(b) If the Agent is not the Issuing Bank, by 12:00 p.m.
(Chicago time) on the Business Day next preceding the requested date of issuance
of a Letter of Credit, the Issuing Bank will confirm with the Agent (by
telephone or in writing) that the 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 Agent with a copy thereof. Unless the Issuing Bank
has received notice on or before the Business Day immediately preceding the date
the Issuing Bank is to issue a requested Letter of Credit from the Agent (i)
directing the Issuing Bank not to issue such Letter of Credit because such
issuance is not then permitted under subsection 3.01(a) as a result of the
limitations set forth in clauses (1) through (3) thereof or subsection
3.01(b)(ii); or (ii) that one or more conditions specified in Article V are not
then satisfied; then, subject to the terms and conditions hereof, 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 Revolving Termination Date, the Issuing Bank will, upon the
written request of the Company received by the Issuing Bank (with a copy sent by
the Company to the Agent) at least two 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 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 any such Letter of Credit does not
accept the proposed amendment to the Letter of Credit.
(d) The Issuing Bank and the Banks agree that, while a Letter
of Credit is outstanding and prior to the Revolving 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 Agent) at least two
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
automatic 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 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
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
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59
issue or amend such Letter of Credit in its renewed form under the terms of this
Agreement; or (B) the beneficiary of any such Letter of Credit does not accept
the proposed renewal of the 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 subsection 3.02(d) 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 and the Banks 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 Agent at the direction of the Majority Banks), deliver any notices of
termination or other communications 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 Revolving 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). In addition,
unless the Company and the Issuing Bank shall otherwise expressly agree in
writing, any purported grant of a Lien (or any requirement to do so) contained
in any L/C-Related Document shall be ineffective and null and void.
(g) The Issuing Bank will also deliver to the Agent,
concurrently or promptly following its delivery of a Letter of Credit, or
amendment to or renewal of a Letter of Credit, to an advising bank or a
beneficiary, a true and complete copy of each such Letter of Credit or amendment
to or renewal of a Letter of Credit.
3.03 Risk Participations, Drawings and Reimbursements.
(a) Immediately upon the Issuance of each Letter of Credit,
each Bank 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) the Pro Rata
Share of such Bank, times (ii) the maximum amount available to be drawn under
such Letter of Credit and the amount of such drawing, respectively. For purposes
of Section 2.01, each Issuance of a Letter of Credit shall be deemed to utilize
the Commitment of each Bank by an amount equal to the amount of such
participation for so long as any related L/C Obligations shall be outstanding.
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(b) In the event of any request for a drawing under a Letter
of Credit by the beneficiary or transferee thereof, the Issuing Bank will
promptly notify the Company and the Agent. Provided it shall have received such
notice, the Company shall reimburse the Issuing Bank prior to 12:00 p.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; provided that, if such Letter of Credit is
denominated in an Offshore L/C Currency, the Company shall pay to the Issuing
Bank the Dollar Equivalent of the amount of such Offshore L/C Currency paid by
the Issuing Bank under such Letter of Credit. In the event the Company fails to
reimburse the Issuing Bank for the full amount of any drawing under any Letter
of Credit by 12:00 p.m. (Chicago time) on the Honor Date, the Issuing Bank will
promptly notify the Agent and the Agent will promptly notify each Bank thereof,
and the Company shall be deemed to have requested that Base Rate Loans be made
by the Banks to be disbursed on the Honor Date under such Letter of Credit,
subject to the amount of the unutilized portion of the Commitment and subject to
the conditions set forth in Section 5.02 other than any notice requirements. Any
notice given by the Issuing Bank or the Agent pursuant to this subsection
3.03(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 Bank shall upon any notice pursuant to subsection
3.03(b) make available to the Agent for the account of the relevant Issuing Bank
an amount in Dollars and in immediately available funds equal to its Pro Rata
Share of the amount of the Dollar Equivalent of the drawing, whereupon the
participating Banks shall (subject to subsection 3.03(d)) each be deemed to have
made a Loan consisting of a Base Rate Loan to the Company in that amount. If any
Bank so notified fails to make available to the Agent for the account of the
Issuing Bank the amount of such Bank's Pro Rata Share of such amount by no later
than 2:00 p.m. (Chicago time) on the Honor Date, then interest shall accrue on
such Bank's obligation to make such payment, from the Honor Date to the date
such Bank makes such payment, at a rate per annum equal to the Federal Funds
Rate in effect from time to time during such period. The Agent will promptly
give notice of the occurrence of the Honor Date, but failure of the Agent to
give any such notice on the Honor Date or in sufficient time to enable any Bank
to effect such payment on such date shall not relieve such Bank from its
obligations under this Section 3.03.
(d) With respect to any unreimbursed drawing that is not
converted into Loans consisting of Base Rate Loans to the Company in whole or in
part as contemplated by subsection 3.03(b), because of the Company's failure to
satisfy the conditions set forth in Section 5.02 or for any other reason, the
Company shall be deemed to have incurred from the Issuing Bank an L/C Borrowing
in the Dollar Equivalent 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 Base Rate, and each Bank's payment to the Issuing
Bank pursuant to subsection 3.03(c) shall be deemed payment in respect of its
participation in such L/C Borrowing and shall
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constitute an L/C Advance from such Bank in satisfaction of its participation
obligation under this Section 3.03.
(e) Each Bank's obligation in accordance with this Agreement
to make the Loans or L/C Advances, as contemplated by this Section 3.03, 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 Bank may have against the Issuing Bank, the
Company or any other Person for any reason whatsoever; (ii) the occurrence or
continuance of a Default, an 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, however, that each Bank's obligation
to make Loans under this Section 3.03 is subject to the conditions set forth in
Section 5.02 (other than any notice requirements).
3.04 Repayment of Participations.
(a) Upon (and only upon) receipt by the Agent for the account
of the Issuing Bank of immediately available funds from the Company (i) in
reimbursement of any payment made by the Issuing Bank under the Letter of Credit
with respect to which any Bank has paid the Agent for the account of the Issuing
Bank for such Bank's participation in the Letter of Credit pursuant to Section
3.03 or (ii) in payment of interest thereon, the Agent will pay to each Bank, in
the same funds as those received by the Agent for the account of the Issuing
Bank, the amount of such Bank'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 Bank
that did not so pay the Agent for the account of the Issuing Bank.
(b) If the Agent or the Issuing Bank is required at any time
to return to the Company, or to a trustee, receiver, liquidator, custodian, or
any official in any Insolvency Proceeding, any portion of the payments made by
the Company to the Agent for the account of the Issuing Bank pursuant to
subsection 3.04(a) in reimbursement of a payment made under the Letter of Credit
or interest or fee thereon, each Bank shall, on demand of the Agent, forthwith
return to the Agent or the Issuing Bank the amount of its Pro Rata Share of any
amounts so returned by the Agent or the Issuing Bank plus interest thereon from
the date such demand is made to the date such amounts are returned by such Bank
to the Agent or the Issuing Bank, at a rate per annum equal to the Federal Funds
Rate in effect from time to time.
3.05 Role of the Issuing Bank.
(a) Each Bank 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 or writing expressly required by the
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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) No Agent-Related Person nor any of the respective
correspondents, participants or assignees of the Issuing Bank shall be liable to
any Bank for: (i) any action taken or omitted in connection herewith at the
request or with the approval of the Banks (including the Majority Banks, as
applicable); (ii) any action taken or omitted in the absence of gross negligence
or willful misconduct; provided, however, that no action taken in accordance
with the directions of the Majority Banks shall be deemed to constitute gross
negligence or willful misconduct for purposes of this Section; 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, however, 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 at law or under any other agreement. No
Agent-Related Person, nor any of the respective correspondents, participants or
assignees of the Issuing Bank, shall be liable or responsible for any of the
matters described in clauses (a) through (g) of Section 3.06; provided, however,
anything in such clauses to the contrary notwithstanding, that the Company may
have a claim against the Issuing Bank, and the Issuing Bank may be liable to the
Company, to the extent, but only to the extent, of any direct, as opposed to
consequential or exemplary, damages suffered by the Company which the Company
proves were caused by the Issuing Bank's willful misconduct or gross negligence
or the Issuing Bank's wrongful dishonor of any Letter of Credit after the
presentation to it by the beneficiary of a sight draft and certificate(s)
strictly complying with the terms and conditions of a Letter of Credit. 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; 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.
3.06 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 and any drawing
under a Letter of Credit converted into Loans, shall be unconditional and
irrevocable, and shall be paid strictly in accordance with the terms of this
Agreement and each such other L/C-Related Document under all circumstances,
including the following:
(a) any lack of validity or enforceability of this Agreement
or any L/C-Related Document;
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(b) any change in the time, manner or place of payment of, or
in any other term of, all or any of the obligations of the Company in respect of
any Letter of Credit or any other amendment or waiver of or any consent to
departure from all or any of the L/C-Related Documents;
(c) 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;
(d) 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;
(e) 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, including any arising in connection
with any Insolvency Proceeding;
(f) any exchange, release or non-perfection of any collateral,
or any release or amendment or waiver of or consent to departure from any other
guarantee, for all or any of the obligations of the Company in respect of any
Letter of Credit; or
(g) 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, the Company or a
guarantor.
3.07 Letter of Credit Fees.
(a) The Company shall pay to the Agent for the account of each
Bank in accordance with its Pro Rata Share (i) a Letter of Credit fee for each
commercial Letter of Credit equal to 50% times the Applicable Rate times the
actual daily maximum amount available to drawn under each such Letter of Credit,
and (ii) a Letter of Credit fee for each standby Letter of Credit equal to the
Applicable Rate times the actual daily maximum amount available to be drawn
under each such Letter of Credit. Such fee for each Letter of Credit shall be
due and payable on the last Business Day of each March, June, September and
December, commencing
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with the first such date to occur after the issuance of such Letter of Credit,
and on the Revolving Termination Date (or such later date upon which the
outstanding Letters of Credit shall expire). If there is any change in the
Applicable Rate during any quarter, the actual daily amount of each Letter of
Credit shall be computed and multiplied by the Applicable Rate or 50% of such
Applicable Rate, as the case may be, separately for each period during such
quarter that such Applicable Rate was in effect.
(b) The Company shall pay directly to the Issuing Bank for its
own account a fronting fee in an amount (i) with respect to each commercial
Letter of Credit, equal to 1/8 of 1% of the amount of such Letter of Credit, due
and payable upon the issuance thereof, and (ii) with respect to each standby
Letter of Credit, equal to 1/8 of 1% per annum on the daily maximum amount
available to be drawn thereunder, due and payable quarterly in arrears on the
last Business Day of each March, June, September and December, commencing with
the first such date to occur after the issuance of such Letter of Credit, and on
the Revolving Termination Date (or such later date upon which the outstanding
Letters of Credit shall expire). In addition, the Company shall pay directly to
the Issuing Bank for its own account the customary 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.
Such fees and charges are due and payable on demand and are nonrefundable.
3.08 Applicability of ISP98 and UCP. Unless otherwise expressly agreed
by the Issuing Bank and the Company when a Letter of Credit is issued, (i) the
rules of the "International Standby Practices 1998" published by the Institute
of International Banking Law & Practice (or such later version thereof as may be
in effect at the time of issuance) shall apply to each standby Letter of Credit,
and (ii) the rules of the Uniform Customs and Practice for Documentary Credits,
as most recently published by the International Chamber of Commerce (the "ICC")
at the time of issuance (including the ICC decision published by the Commission
on Banking Technique and Practice on April 6, 1998 regarding the European single
currency (euro)) shall apply to each commercial Letter of Credit.
3.09 Outstanding Letters of Credit. The letters of credit set forth
under the caption "Letters of Credit outstanding on the Closing Date" on
Schedule 3.09 annexed hereto and made a part hereof were issued pursuant to the
Existing Credit Agreement or were extended by the Agent in contemplation of the
execution of this Agreement and remain outstanding as of the Closing Date (the
"Outstanding Letters of Credit"). The Company, each Issuing Bank and each of the
Banks hereby agree with respect to the Outstanding Letters of Credit that such
Outstanding Letters of Credit, for all purposes under this Agreement shall be
deemed to be Letters of Credit governed by the terms and conditions of this
Agreement. Each Bank agrees to participate in each Outstanding Letter of Credit
issued by any Issuing Bank in an amount equal to its Pro Rata Share of the
stated amount of such Outstanding Letter of Credit.
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ARTICLE IV
TAXES, YIELD PROTECTION AND ILLEGALITY
4.01 Taxes.
(a) Any and all payments by the Company to each Bank or the
Agent under this Agreement and any other Loan Document shall be made free and
clear of, and without deduction or withholding for, any Taxes. In addition, the
Company shall pay all Other Taxes.
(b) If the Company shall be required by law to deduct or
withhold any Taxes, Other Taxes or Further Taxes from or in respect of any sum
payable hereunder to any Bank or the 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 4.01), such Bank or the 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;
(iii) the Company shall pay the full amount deducted
or withheld to the relevant taxing authority or other authority in accordance
with applicable law; and
(iv) the Company shall also pay to each Bank or the
Agent for the account of such Bank, at the time interest is paid, Further Taxes
in the amount that the respective Bank specifies as necessary to preserve the
after-tax yield the Bank would have received if such Taxes, Other Taxes or
Further Taxes had not been imposed.
(c) The Company agrees to indemnify and hold harmless each
Bank and the Agent for the full amount of (i) Taxes, (ii) Other Taxes, and (iii)
Further Taxes in the amount that the respective Bank specifies as necessary to
preserve the after-tax yield the Bank would have received if such Taxes, Other
Taxes or Further Taxes had not been imposed, and any liability (including
penalties, interest, additions to tax and expenses) arising therefrom or with
respect thereto, whether or not such Taxes, Other Taxes or Further Taxes were
correctly or legally asserted. Payment under this indemnification shall be made
within 30 days after the date the Bank or the Agent makes written demand
therefor (and provides appropriate documentation to the Company).
(d) Within 30 days after the date of any payment by the
Company of Taxes, Other Taxes or Further Taxes, the Company shall furnish to
each Bank or the Agent the original
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or a certified copy of a receipt evidencing payment thereof, or other evidence
of payment satisfactory to such Bank or the Agent.
(e) If the Company is required to pay any amount to any Bank
or the Agent pursuant to subsection (b) or (c) of this Section 4.01, then such
Bank shall use reasonable efforts (consistent with legal and regulatory
restrictions) to change the jurisdiction of its Lending Office so as to
eliminate any such additional payment by the Company which may thereafter
accrue, if such change in the sole judgment of such Bank is not otherwise
disadvantageous to such Bank.
(f) Notwithstanding anything to the contrary contained in this
Agreement, in no event shall the Company be either (i) obligated to pay any
amount to any Bank or the Agent pursuant to subsection (b) or (c) of this
Section 4.01 or (ii) prohibited from deducting or withholding for any applicable
Taxes pursuant to subsection (a) of this Section 4.01, if the Bank or Agent
fails to deliver forms to the Company in accordance with Section 11.16 on a
timely basis, unless such failure would not have occurred but for a change in
law or regulation or in the interpretation thereof by any governmental or
regulatory agency or body charged with the administration or interpretation
thereof, or the introduction of any law or regulation, that occurs on or after
the date hereof.
4.02 Illegality.
(a) If any Bank determines that the introduction of any
Requirement of Law, or any change in any Requirement of Law, or in the
interpretation or administration of any Requirement of Law, has made it
unlawful, or that any central bank or other Governmental Authority has asserted
that it is unlawful, for any Bank or its applicable Lending Office or such
Bank's Designated Bidders in the case of LIBOR Bid Loans, to make Offshore Rate
Loans (including Offshore Rate Loans in any Applicable Currency), then, on
notice thereof by the Bank to the Company through the Agent, any obligation of
that Bank or Designated Bidder to make Offshore Rate Loans (including in respect
of any LIBOR Bid Loan as to which the Company has accepted such Bank's or
Designated Bidder's Competitive Bid, but as to which the Borrowing Date has not
arrived) shall be suspended until the Bank notifies the Agent and the Company
that the circumstances giving rise to such determination no longer exist.
(b) If a Bank determines that it is unlawful for such Bank or
such Bank's Designated Bidders to maintain any Offshore Rate Loan, the Company
shall, upon its receipt of notice of such fact and demand from such Bank (with a
copy to the Agent), prepay in full such Offshore Rate Loans of that Bank then
outstanding, together with interest accrued thereon and amounts required under
Section 4.04, either on the last day of the Interest Period thereof, if the Bank
or Designated Bidder may lawfully continue to maintain such Offshore Rate Loans
to such day, or immediately, if the Bank or Designated Bidder may not lawfully
continue to maintain such Offshore Rate Loan. If the Company is required to so
prepay any Offshore Rate Loan, then concurrently with such prepayment, the
Company shall (without regard to whether the conditions
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specified in Section 5.02 have been satisfied) borrow from the affected Bank, in
the amount of such repayment, a Base Rate Committed Loan.
(c) If the obligation of any Bank to make or maintain Offshore
Rate Committed Loans has been so terminated or suspended, the Company may elect,
by giving notice to the Bank through the Agent that all Loans which would
otherwise be made by the Bank as Offshore Rate Committed Loans shall be instead
Base Rate Loans.
(d) Before giving any notice to the Agent under this Section,
the affected Bank shall designate a different Lending Office with respect to its
Offshore Rate Loans if such designation will avoid the need for giving such
notice or making such demand and will not, in the judgment of the Bank, be
illegal or otherwise disadvantageous to the Bank.
4.03 Increased Costs and Reduction of Return.
(a) If any Bank determines that, due to either (i) the
introduction of or any change (other than any change by way of imposition of or
increase in reserve requirements included in the calculation of the Offshore
Rate or in respect of the assessment rate payable by any Bank to the FDIC for
insuring U.S. deposits) in or in the interpretation of any law or regulation
after the date of this Agreement or (ii) the compliance by that Bank with any
guideline or request from any central bank or other Governmental Authority
(whether or not having the force of law) after the date of this Agreement, there
shall be any increase in the cost to such Bank of agreeing to make or making,
funding or maintaining any Offshore Rate Committed Loans or participating in
Letters of Credit, or, in the case of the Issuing Bank, any increase in the cost
to the Issuing Bank of agreeing to issue, issuing or maintaining any Letter of
Credit or of agreeing to make or making, funding or maintaining any unpaid
drawing under any Letter of Credit, then the Company shall be liable for, and
shall from time to time, upon demand (with a copy of such demand to be sent to
the Agent), pay to the Agent for the account of such Bank, additional amounts as
are sufficient to compensate such Bank for such increased costs.
(b) If any Bank shall have determined that (i) the
introduction of any Capital Adequacy Regulation, (ii) any change in any Capital
Adequacy Regulation, (iii) any change in the interpretation or administration of
any Capital Adequacy Regulation by any central bank or other Governmental
Authority charged with the interpretation or administration thereof, or (iv)
compliance by the Bank (or its Lending Office) or any corporation controlling
the Bank with any Capital Adequacy Regulation, in any such case, after the date
of this Agreement, affects or would affect the amount of capital required or
expected to be maintained by the Bank or any corporation controlling the Bank
and (taking into consideration such Bank's or such corporation's policies with
respect to capital adequacy and such Bank's desired return on capital)
determines that the amount of such capital is increased as a consequence of its
Commitments, loans, credits or obligations under this Agreement, then, upon
demand of such Bank to the
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Company through the Agent, the Company shall pay to the Bank, from time to time
as specified by the Bank, additional amounts sufficient to compensate the Bank
for such increase.
4.04 Funding Losses. The Company shall reimburse each Bank and hold
each Bank harmless from any loss or expense which the Bank may sustain or incur
as a consequence of:
(a) the failure of the Company to make on a timely basis any
payment of principal of any Offshore Rate Loan;
(b) the failure of the Company to borrow, continue or convert
a Committed Loan after the Company has given (or is deemed to have given) a
Notice of Borrowing or a Notice of Conversion/Continuation, except as set forth
in subsections 2.05(b) or (c);
(c) the failure of the Company to make any prepayment in
accordance with any notice delivered under Section 2.08;
(d) the prepayment (including pursuant to Section 2.08, 2.10
or 2.14) or other payment (including after acceleration thereof) of an Offshore
Rate Loan on a day that is not the last day of the relevant Interest Period; or
(e) the automatic conversion under Section 2.04 of any
Offshore Rate Committed Loan to a Base Rate Committed Loan on a day that is not
the last day of the relevant Interest Period;
including any such loss or expense arising from the liquidation or reemployment
of funds obtained by it to maintain its Offshore Rate Committed Loans or from
fees payable to terminate the deposits from which such funds were obtained or
from charges relating to any Offshore Currency Loans. For purposes of
calculating amounts payable by the Company to the Banks under this Section and
under subsection 4.03(a), each Offshore Rate Committed Loan made by a Bank (and
each related reserve, special deposit or similar requirement) shall be
conclusively deemed to have been funded at the IBOR used in determining the
Offshore Rate for such Offshore Rate Loan by a matching deposit or other
borrowing in the interbank eurodollar market for a comparable amount and for a
comparable period, whether or not such Offshore Rate Loan is in fact so funded.
4.05 Inability to Determine Rates. If, in connection with any request
for an Offshore Rate Loan, the Agent determines that (a) deposits in Dollars or
the applicable Offshore Currency are not being offered to banks in the
applicable offshore dollar market for the applicable amount and Interest Period
of the requested Offshore Rate Loan, (b) for any reason adequate and reasonable
means do not exist for determining the Offshore Rate for any requested Interest
Period with respect to a proposed
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Offshore Rate Loan, or (c) that the Offshore Rate applicable pursuant to
subsection 2.11(a) for any requested Interest Period with respect to a proposed
Offshore Rate Loan does not adequately and fairly reflect the cost to the Banks
of funding such Loan, the Agent will promptly so notify the Company and each
Bank. Thereafter, the obligation of the Banks to make or maintain Offshore Rate
Loans, as the case may be, hereunder shall be suspended until the Agent revokes
such notice in writing. Upon receipt of such notice, the Company may revoke any
Notice of Borrowing or Notice of Conversion/Continuation then submitted by it.
If the Company does not revoke such Notice, the Banks shall make, convert or
continue the Committed Loans, as proposed by the Company, in the amount
specified in the applicable notice submitted by the Company, but such Loans
shall be made, converted or continued as Base Rate Committed Loans instead of
Offshore Rate Loans. In the case of any Offshore Currency Loans, the Borrowing
or continuation shall be in an aggregate amount equal to the Dollar Equivalent
amount of the originally requested Borrowing or continuation in the Offshore
Currency, and to that end any outstanding Offshore Currency Loans which are the
subject of any continuation shall be redenominated and converted into Base Rate
Loans in Dollars with effect from the last day of the Interest Period with
respect to any such Offshore Currency Loans.
4.06 Reserves on Offshore Rate Loans. The Company shall pay to each
Bank, as long as such Bank shall be required under regulations of the FRB to
maintain reserves with respect to liabilities or assets consisting of or
including Eurocurrency funds or deposits (currently known as "Eurocurrency
liabilities"), and, in respect of any LIBOR Bid Loan, under any applicable
regulations of the central bank or other relevant Governmental Authority in the
country in which the Offshore Currency of such Offshore Rate Committed Loan
circulates, additional costs on the unpaid principal amount of each LIBOR Bid
Loan equal to the actual costs of such reserves allocated to such Loan by the
Bank (as determined by the Bank in good faith, which determination shall be
conclusive), payable on each date on which interest is payable on such LIBOR Bid
Loan, provided the Company shall have received at least 15 days' prior written
notice (with a copy to the Agent) of such additional interest from the Bank. If
a Bank fails to give notice 15 days prior to the relevant Interest Payment Date,
such additional interest shall be payable 15 days from receipt of such notice.
4.07 Certificates of Banks. Any Bank or Designated Bidder claiming
reimbursement or compensation under this Article IV shall deliver to the Company
(with a copy to the Agent) a certificate setting forth in reasonable detail the
amount payable to the Bank or Designated Bidder hereunder and such certificate
shall be conclusive and binding on the Company in the absence of manifest error.
Notwithstanding anything to the contrary contained in this Agreement, no amounts
shall be payable by the Company pursuant to Section 4.03, 4.04 or 4.06 with
respect to any period commencing more than 90 days before the delivery of the
certificate contemplated by this Section 4.07, unless such amounts are claimed
as a result of the retroactive effect of any newly enacted or adopted law, rule
or regulation and such certificate is delivered within 180 days after such
enactment or adoption.
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4.08 Substitution of Banks. If any Bank has (x) delivered a certificate
pursuant to Section 4.07 or notified the Agent that it is unable to extend or
maintain any Offshore Rate Loans (including Offshore Currency Loans) or (y)
failed to fund a Loan at any time that such Bank shall have been committed to
make such Loan or in the event such Bank may be replaced pursuant to the
provisions of subsection 11.08(e) hereof (in any such case, an "Affected Bank"),
the Company shall have the right to replace the Affected Bank in accordance with
this Section 4.08. In any such event the Company may (i) request the Affected
Bank to use reasonable efforts to obtain a replacement bank or financial
institution reasonably satisfactory to the Company to acquire and assume all or
a ratable part of all of such Affected Bank's Loans and Commitment (a
"Replacement Bank"); (ii) request one more of the other Banks to acquire and
assume all or part of such Affected Bank's Loans and Commitment; or (iii)
designate a Replacement Bank. Any such designation of a Replacement Bank under
clause (i) or (iii) shall be subject to the prior written consent of the Agent
(which consent shall not be unreasonably withheld).
4.09 Survival. The agreements and obligations of the Company in this
Article IV shall survive the payment of all other Obligations.
ARTICLE V
CONDITIONS PRECEDENT
5.01 Conditions of Initial Loans. The obligation of each Bank to make
its initial Credit Extension hereunder, and to receive through the Agent the
initial Competitive Bid Request, is subject to the condition that the Agent
shall have received on or before the date of the initial Credit Extension or
Competitive Bid Request all of the following, in form and substance satisfactory
to the Agent and each Bank, and in sufficient copies for each Bank:
(a) Loan Documents. This Agreement and the Notes executed by
each party thereto shall have been delivered to Agent;
(b) Resolutions; Incumbency.
(i) Copies of the resolutions of the board of
directors of the Company authorizing the transactions contemplated hereby,
certified as of the Closing Date by the Secretary or an Assistant Secretary of
the Company; and
(ii) A certificate of the Secretary or Assistant
Secretary of the Company certifying the names and true signatures of the
officers of the Company authorized to execute, deliver and perform, as
applicable, this Agreement, and all other Loan Documents to be delivered by it
hereunder;
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(c) Organization Documents; Good Standing. Each of the
following documents:
(i) the certificate of incorporation and the bylaws
of the Company as in effect on the Closing Date, certified by the Secretary or
Assistant Secretary of the Company as of the Closing Date; and
(ii) a good standing certificate for the Company from
the Secretary of State (or similar, applicable Governmental Authority) of its
state of incorporation and the state of its principal place of business as of a
recent date;
(d) Legal Opinions. An opinion of Xxxxxx and Xxxxxxx, special
counsel to the Company and addressed to the Agent and the Banks, substantially
in the form of Exhibit 5.01(d);
(e) Payment of Fees. Evidence of payment by the Company of all
accrued and unpaid fees, to the extent then due and payable on the Closing Date,
including without limitation all accrued interest and fees due and owing under
the Existing Credit Agreement;
(f) Certificate. A certificate signed by a Responsible Officer
on behalf of the Company, dated as of the Closing Date, stating:
(i) that the representations and warranties contained
in Article VI are true and correct on and as of such date, as though made on and
as of such date;
(ii) that no Default or Event of Default exists or
would result from the initial Borrowing;
(iii) that there has occurred since December 31,
2000, no event or circumstance that has resulted or could reasonably be expected
to result in a Material Adverse Effect; and
(iv) the current Debt Ratings.
(g) Cancellation of the German Facility. The Agent shall be
satisfied that the German Facility has been or concurrently with the Closing
Date is being terminated; and
(h) Other Documents. Such other approvals, opinions, documents
or materials as the Agent or any Bank may reasonably request.
5.02 Conditions to All Credit Extensions. The obligation of each Bank
to make any Loan to be made by it (including its initial Loan), the obligations
of any Bank or Designated Bidder to make any Bid Loan as to which the Company
has accepted the relevant Competitive
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Bid and the obligation of the Issuing Bank to issue, and of each Bank to
participate in, any Letter of Credit are subject to the satisfaction of the
following conditions precedent on the relevant Borrowing Date:
(a) Notice of Borrowing or Issuance. The Agent shall have
received (with, in the case of the initial Loan only, a copy for each Bank) a
Notice of Borrowing or in the case of any Issuance of any Letter of Credit, the
Agent and the Issuing Bank shall have received an L/C Application or L/C
Amendment Application, as required under Section 3.02;
(b) Continuation of Representations and Warranties. The
representations and warranties in Article VI shall be true and correct on and as
of such Borrowing Date with the same effect as if made on and as of such
Borrowing Date (except to the extent such representations and warranties
expressly refer to an earlier date, in which case they shall be true and correct
as of such earlier date); and
(c) No Existing Default. No Default or Event of Default shall
exist or shall result from such Borrowing.
Each Notice of Borrowing and L/C Application or L/C Amendment Application
submitted by the Company hereunder shall constitute a representation and
warranty by the Company hereunder, as of the date of each such notice and as of
each Borrowing Date, that the conditions in this Section 5.02 are satisfied.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
The Company represents and warrants to the Agent and each Bank that:
6.01 Corporate Existence and Power. The Company and each of its
Subsidiaries:
(a) is a corporation duly organized, validly existing and in
good standing under the laws of the jurisdiction of its incorporation;
(b) has the power and authority and all governmental licenses,
authorizations, consents and approvals to own its assets, carry on its business
and to execute, deliver, and perform its obligations under the Loan Documents;
(c) is duly qualified as a foreign corporation and is licensed
and in good standing under the laws of each jurisdiction where its ownership,
lease or operation of property or the conduct of its business requires such
qualification or license; and
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(d) is in compliance with all Requirements of Law;
except, in each case referred to in clause (c) or clause (d), to the extent that
the failure to do so could not reasonably be expected to have a Material Adverse
Effect.
6.02 Corporate Authorization; No Contravention. The execution, delivery
and performance by the Company of this Agreement and each other Loan Document to
which the Company is party, have been duly authorized by all necessary corporate
action, and do not and will not:
(a) contravene the terms of any of the Company's Organization
Documents;
(b) conflict with or result in any breach or contravention of,
or the creation of any Lien under, any document evidencing any material
Contractual Obligation to which the Company is a party or any order, injunction,
writ or decree of any Governmental Authority to which the Company or its
property is subject; or
(c) violate any Requirement of Law applicable to the Company.
6.03 Governmental Authorization. No approval, consent, exemption,
authorization, or other action by, or notice to, or filing with, any
Governmental Authority is necessary or required in connection with the
execution, delivery or performance by, or enforcement against, the Company or
any of its Subsidiaries of the Agreement or any other Loan Document other than
those which have already been obtained or made.
6.04 Binding Effect. This Agreement and each other Loan Document to
which the Company or any of its Subsidiaries is a party constitute the legal,
valid and binding obligations of the Company and any of its Subsidiaries to the
extent it is a party thereto, enforceable against such Person in accordance with
their respective terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, or similar laws affecting the enforcement of creditors'
rights generally or by equitable principles relating to enforceability.
6.05 Litigation. Except as specifically disclosed in Schedule 6.05,
there are no actions, suits, proceedings, claims or disputes pending, or to the
best knowledge of the Company, threatened or contemplated, at law, in equity, in
arbitration or before any Governmental Authority, against the Company, or its
Subsidiaries or any of their respective properties which:
(a) purport to affect or pertain to this Agreement or any
other Loan Document, or any of the transactions contemplated hereby or thereby;
or
(b) may reasonably be expected to have a Material Adverse
Effect. No injunction, writ, temporary restraining order or any order of any
nature has been issued by any
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court or other Governmental Authority purporting to enjoin or restrain the
execution, delivery or performance of this Agreement or any other Loan Document,
or directing that the transactions provided for herein or therein not be
consummated as herein or therein provided.
6.06 No Default. No Default or Event of Default exists or would result
from the incurring of any Obligations by the Company. As of the Closing Date,
neither the Company nor any Subsidiary is in default under or with respect to
any Contractual Obligation in any respect which, individually or together with
all such defaults, could reasonably be expected to have a Material Adverse
Effect.
6.07 ERISA Compliance. Except as specifically disclosed in Schedule
6.07:
(a) Each Plan sponsored or maintained by the Company or an
ERISA Affiliate is in compliance in all respects with the applicable provisions
of ERISA, the Code and other federal or state law except where the failure to so
comply, together with all other such failures to comply, could not reasonably be
expected to result in liability to the Company in an aggregate amount in excess
of $10,000,000. Each Plan sponsored or maintained by the Company or an ERISA
Affiliate which is intended to qualify under Section 401(a) of the Code has
received a favorable determination letter from the IRS and to the best knowledge
of the Company, nothing has occurred which would cause the loss of such
qualification. The Company and each ERISA Affiliate has made all required
contributions to any Plan subject to Section 412 of the Code sponsored or
maintained by the Company or an ERISA Affiliate, and no application for a
funding waiver or an extension of any amortization period pursuant to Section
412 of the Code has been made with respect to any Plan sponsored or maintained
by the Company or an ERISA Affiliate, except where the failure to make such
required contribution, together with all such other failures to make required
contributions, could not reasonably be expected to result in liability of the
Company in an aggregate amount in excess of $10,000,000.
(b) There are no pending or, to the best knowledge of Company,
threatened claims, actions or lawsuits, or action by any Governmental Authority,
with respect to any Plan sponsored or maintained by the Company which has
resulted or could reasonably be expected to result in a liability of the Company
in an aggregate amount in excess of $10,000,000. There has been no prohibited
transaction or violation of the fiduciary responsibility rules with respect to
any Plan, other than a Multiemployer Plan or, to the knowledge of the Company
and each ERISA Affiliate, with respect to any Multiemployer Plan, which has
resulted or could reasonably be expected to result in a Material Adverse Effect.
(c) (i) No ERISA Event or Events have occurred which could
reasonably be expected to result in liability of the Company in an aggregate
amount in excess of $10,000,000; (ii) the aggregate amount of Unfunded Pension
Liability among all Pension Plans does not exceed $10,000,000; (iii) neither the
Company nor any ERISA Affiliate has incurred, or reasonably expects to incur,
liability under Title IV of ERISA with respect to all Pension Plans
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(other than premiums due and not delinquent under Section 4007 of ERISA) in an
aggregate amount in excess of $10,000,000; (iv) neither the Company nor any
ERISA Affiliate has incurred, or reasonably expects to incur, any liability (and
no event has occurred which, with the giving of notice under Section 4219 of
ERISA, would result in such liability) under Section 4201 or 4243 of ERISA with
respect to all Plans in an aggregate amount in excess of $10,000,000; and (v)
neither the Company nor any ERISA Affiliate has engaged in a transaction that
could be subject to Section 4069 or 4212(c) of ERISA and which could reasonably
be expected to result in liability of the Company in an amount in excess of
$10,000,000.
6.08 Use of Proceeds; Margin Regulations. The proceeds of the Loans are
to be used solely for the purposes set forth in and permitted by Section 7.12.
Neither the Company nor any Subsidiary is generally engaged in the business of
purchasing or selling Margin Stock or extending credit for the purpose of
purchasing or carrying Margin Stock.
6.09 Title to Properties. The Company and each Subsidiary have good
record and marketable title in fee simple to, or valid leasehold interests in,
all real property necessary or used in the ordinary conduct of their respective
businesses, except for such defects in title as could not, individually or in
the aggregate, have a Material Adverse Effect. As of the Closing Date, the
property of the Company and its Subsidiaries is subject to no Liens, other than
Permitted Liens.
6.10 Taxes. The Company and its Subsidiaries have filed all Federal and
other material tax returns and reports required to be filed, and have paid all
Federal and other material taxes, assessments, fees and other governmental
charges levied or imposed upon them or their properties, income or assets
otherwise due and payable, except those which are being contested in good faith
by appropriate proceedings and for which adequate reserves have been provided in
accordance with GAAP. There is no proposed tax assessment against the Company or
any Subsidiary that would, if made, have a Material Adverse Effect.
6.11 Financial Condition.
(a) The (i) audited consolidated financial statements of the
Company and its Subsidiaries dated December 31, 2000, and the related
consolidated statements of income or operations, shareholders' equity and cash
flows for the fiscal year ended on that date, and (ii) unaudited consolidated
financial statements of the Company and its Subsidiaries dated March 31, 2001,
and the related consolidated statements of income or operations, shareholders'
equity and cash flows for the fiscal quarter ended on that date:
(i) were prepared in accordance with GAAP
consistently applied throughout the period covered thereby, except as otherwise
expressly noted therein, subject to ordinary, good faith year end audit
adjustments and the absence of footnotes;
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(ii) fairly present the financial condition of the
Company and its Subsidiaries as of the date thereof and results of operations
for the period covered thereby; and
(iii) except as specifically disclosed in Schedule
6.11, show all material indebtedness and other liabilities, direct or
contingent, of the Company and its consolidated Subsidiaries as of the date
thereof, including liabilities for taxes, material commitments and Contingent
Obligations.
(b) Since December 31, 2000, there has been no Material
Adverse Effect.
6.12 Environmental Matters. Except as specifically disclosed in
Schedule 6.12, the Company is not in violation of any Environmental Laws and
there are no pending Environmental Claims against the Company which,
individually or in the aggregate, would reasonably be expected to have a
Material Adverse Effect.
6.13 Regulated Entities. None of the Company, any Person controlling
the Company, or any Subsidiary, is an "Investment Company" within the meaning of
the Investment Company Act of 1940. The Company is not subject to regulation
under the Public Utility Holding Company Act of 1935, the Federal Power Act, the
Interstate Commerce Act, any state public utilities code, or any other Federal
or state statute or regulation limiting its ability to incur Indebtedness.
6.14 Subsidiaries. As of the date of this Agreement, the Company has no
Subsidiaries other than those specifically disclosed in part (a) of Schedule
6.14 hereto and has no equity investments in any other corporation or entity
other than those specifically disclosed in part (b) of Schedule 6.14. Unless
otherwise indicated on Schedule 6.14, as of the date of this Agreement, all of
the issued and outstanding shares of capital stock of each of the Subsidiaries
listed on Schedule 6.14 are owned directly or indirectly through Wholly-Owned
Subsidiaries by the Company and all of such shares have been duly and validly
authorized and issued and are fully paid and non-assessable and no party has a
right to acquire any such capital stock and there are no outstanding
subscription options, warrants, commitments, convertible securities, preemptive
rights or other rights exercisable or exchangeable for or convertible into such
capital stock.
6.15 Insurance. Except as specifically disclosed in Schedule 6.15, the
properties of the Company and its Subsidiaries are insured as required by
Section 7.06.
6.16 Swap Obligations. Neither the Company nor any of its Subsidiaries
has incurred any outstanding obligations under any Swap Contracts, other than
Permitted Swap Obligations.
6.17 Full Disclosure. None of the representations or warranties made by
the Company or any Subsidiary in the Loan Documents as of the date such
representations and warranties are made or deemed made, and none of the
statements contained in any exhibit, report, statement or certificate furnished
by or on behalf of the Company or any Subsidiary in connection with the
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Loan Documents (including the offering and disclosure materials delivered by or
on behalf of the Company to the Banks prior to the Closing Date) taken as a
whole, contains any untrue statement of a material fact or omits any material
fact required to be stated therein or necessary to make the statements made
therein, in light of the circumstances under which they are made, not misleading
as of the time when made or delivered. All projections and pro forma financial
information contained in any materials furnished by or on behalf of the Company
or any of its Subsidiaries to any Bank are based on good faith estimates and
assumptions by the management of the Company or the applicable Subsidiary, it
being recognized by the Banks, however, that projections as to future events are
not to be viewed as fact and that actual results during the period or periods
covered by any such projections may differ from the projected results and that
the differences may be material.
ARTICLE VII
AFFIRMATIVE COVENANTS
So long as any Bank shall have any Commitment hereunder, or any Loan or
other Obligation shall remain unpaid, unless the Majority Banks waive compliance
in writing:
7.01 Financial Statements. The Company shall deliver to the Agent and
each Bank:
(a) as soon as available, but not later than 90 days after the
end of each fiscal year, a copy of the audited consolidated balance sheet of the
Company and its Subsidiaries as at the end of such year and the related
consolidated statements of income or operations, shareholders' equity and cash
flows for such year, setting forth in each case in comparative form the figures
for the previous fiscal year, and accompanied by the opinion of Deloitte &
Touche or another nationally-recognized independent public accounting firm
("Independent Auditor") which opinion shall state that such consolidated
financial statements present fairly the financial position for the periods
indicated in conformity with GAAP applied on a consistent basis. Such opinion
shall not be qualified or limited, in either case, because of a restricted or
limited examination by the Independent Auditor of any material portion of the
Company's or any Subsidiary's records and shall be delivered to the Agent
pursuant to a reliance letter between the Agent and Banks and such Independent
Auditor in form and substance satisfactory to the Agent;
(b) as soon as available, but not later than 45 days after the
end of each of the first three fiscal quarters of each fiscal year (commencing
with the fiscal quarter ended June 30, 2001), a copy of the unaudited
consolidated balance sheet of the Company and its Subsidiaries as of the end of
such quarter and the related consolidated statements of income for such quarter
and the year to date period then ended, shareholders' equity and cash flows for
the period commencing on the first day of the fiscal year and ending on the last
day of such quarter, and certified by a Responsible Officer as fairly
presenting, in accordance with GAAP (subject to ordinary, good faith year-end
audit adjustments), the financial position and the results of operations of the
Company and the Subsidiaries;
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(c) as soon as available, but not later than 90 days after the
end of each fiscal year, a copy of an unaudited consolidating statement of
income of the Company and its Subsidiaries as at the end of such year and the
related shareholders' equity and cash flows for such year, certified by a
Responsible Officer as having been developed and used in connection with the
preparation of the financial statements referred to in subsection 7.01(a);
(d) promptly when available and in any event within 45 days
after the close of each fiscal year commencing with the fiscal year ending
December 31, 2001, a business and financial plan, including projections of
consolidated cash flows and statements of income, for the Company and its
Subsidiaries for the then current fiscal year, setting forth such consolidated
projections on a quarter-by-quarter basis and including a projected year-end
consolidated balance sheet; and
(e) promptly upon receipt thereof, copies of all statements as
to the material weaknesses of accounting controls submitted to the Company by
independent public accountants in connection with each annual or interim audit
made by such accountants of the financial statements of the Company or any of
its Subsidiaries.
To the extent included therein, the information required to be
delivered pursuant to this Section 7.01 may be delivered by delivery of the
financial statements and reports required to be delivered pursuant to subsection
7.02(c).
7.02 Certificates; Other Information. The Company shall furnish to the
Agent and each Bank:
(a) concurrently with the delivery of the financial statements
referred to in subsection 7.01(a), a certificate of the Independent Auditor
stating that in making the examination necessary therefor no knowledge was
obtained of any Default or Event of Default, except as specified in such
certificate;
(b) concurrently with the delivery of the financial statements
referred to in subsections 7.01(a) and (b), a Compliance Certificate executed by
a Responsible Officer;
(c) promptly, copies (which may be in electronic format) of
all financial statements and reports that the Company sends to its shareholders,
and copies of all financial statements and regular, periodical or special
reports (including Forms 10K, 10Q and 8K but not including Forms 3, 4 or 5) that
the Company or any Subsidiary may make to, or file with, the SEC; and
(d) promptly, such additional information regarding the
business, financial or corporate affairs of the Company or any Subsidiary as the
Agent, at the request of any Bank, may from time to time reasonably request.
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7.03 Notices. The Company shall promptly notify the Agent and each
Bank:
(a) of the occurrence of any Default or Event of Default, upon
a Responsible Officer becoming aware thereof;
(b) of any matter that has resulted or may (in the reasonable
judgment of the Company), reasonably be expected to result in a Material Adverse
Effect, including (i) breach or non-performance of, or any default under, a
Contractual Obligation of the Company or any Subsidiary; (ii) any dispute,
litigation, investigation, proceeding or suspension between the Company or any
Subsidiary and any Governmental Authority; or (iii) the commencement of, or any
material development in, any litigation or proceeding affecting the Company or
any Subsidiary; including pursuant to any applicable Environmental Laws;
(c) of the occurrence of any of the following events affecting
the Company or any ERISA Affiliate (but in no event more than 30 days after such
event), and deliver to the Agent and each Bank a copy of any notice with respect
to such event that is filed with a Governmental Authority and any notice
delivered by a Governmental Authority to the Company or any ERISA Affiliate with
respect to such event:
(i) an ERISA Event or Events which could reasonably
be expected to result in liability of the Company in an aggregate amount in
excess of $10,000,000; or
(ii) the Unfunded Pension Liability among all Pension
Plans is reasonably expected to exceed $10,000,000.
(d) of any material change in accounting policies or financial
reporting practices by the Company or any of its consolidated Subsidiaries; and
(e) of any announcement by Xxxxx'x or S&P of any change in a
Debt Rating.
Each notice under this Section shall be accompanied by a
written statement by a Responsible Officer setting forth details of the
occurrence referred to therein, and stating what action the Company or any
affected Subsidiary proposes to take with respect thereto and at what time
(although the failure to take any such action shall not constitute a Default or
Event of Default under this Agreement). Each notice under subsection 7.03(a)
shall describe each Default or Event of Default which has occurred or which is
expected to occur.
7.04 Preservation of Corporate Existence, Etc. The Company shall, and
shall cause each Material Subsidiary to:
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(a) preserve and maintain in full force and effect its
corporate existence and good standing under the laws of its state or
jurisdiction of incorporation, except as otherwise permitted by this Agreement;
(b) preserve and maintain in full force and effect all
governmental rights, privileges, qualifications, permits, licenses and
franchises necessary or desirable in the normal conduct of its business except
in connection with transactions permitted by Section 8.03 and sales of assets
permitted by Section 8.02 and except for any of the foregoing the expiration or
termination of which could not reasonably be expected to have a Material Adverse
Effect;
(c) use reasonable efforts, in the ordinary course of
business, to preserve its business organization; and
(d) preserve or renew all of its registered patents,
trademarks, trade names and service marks, the non-preservation of which could
reasonably be expected to have a Material Adverse Effect.
7.05 Maintenance of Property. The Company shall maintain, and shall
cause each Material Subsidiary to maintain, and preserve all its property which
is used in its business in good working order and condition, ordinary wear and
tear excepted except where the failure to so maintain or preserve could not
reasonably be expected to have a Material Adverse Effect, except as permitted by
Section 8.02.
7.06 Insurance. The Company shall maintain, and shall cause each
Subsidiary to maintain, with financially sound and reputable independent
insurers, 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 business, of such types and in such amounts as are customarily
carried under similar circumstances by such other Persons, provided that the
Company and its Subsidiaries may self-insure against such risks and in such
amounts as is usually self-insured by companies engaged in similar businesses
and owning similar properties in the same general areas in which the Company or
such Subsidiary operates.
7.07 Payment of Tax Obligations. The Company shall, and shall cause
each Subsidiary to, pay and discharge as the same shall become due and payable,
all tax liabilities, assessments and governmental charges or levies upon it or
its properties or assets, unless the same are being contested in good faith by
appropriate proceedings and adequate reserves in accordance with GAAP are being
maintained by the Company or such Subsidiary.
7.08 Compliance with Laws. The Company shall comply, and shall cause
each Subsidiary to comply, in all material respects with all Requirements of Law
of any Governmental Authority having jurisdiction over it or its business
(including the Federal Fair
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Labor Standards Act), except where the failure to so comply could not reasonably
be expected to have a Material Adverse Effect.
7.09 Compliance with ERISA. The Company shall, and shall cause each of
its ERISA Affiliates to: (a) maintain each Plan in compliance in all material
respects with the applicable provisions of ERISA, the Code and other federal or
state law; (b) cause each Plan which is qualified under Section 401(a) of the
Code to maintain such qualification; and (c) make all required contributions to
any Plan subject to Section 412 of the Code except, in the case of (a), (b) and
(c) above where such failure to maintain or contribute could not reasonably be
expected to result in liability of the Company in excess of $10,000,000 in the
aggregate.
7.10 Inspection of Property and Books and Records. The Company shall
maintain and shall cause each Subsidiary to maintain proper books of record and
account, in which full, true and correct entries in conformity with GAAP
consistently applied shall be made of all financial transactions and matters
involving the assets and business of the Company and such Subsidiary. The
Company shall permit, and shall cause each Subsidiary to permit, representatives
and independent contractors of the Agent or representatives of any Bank to visit
and inspect any of their respective properties, to examine their respective
corporate, financial and operating records, and make copies thereof or abstracts
therefrom, and to discuss their respective affairs, finances and accounts with
their respective directors, officers, and, in the presence of the Company if the
Company shall so request, independent public accountants, all such reasonable
times during normal business hours and as often as may be reasonably desired,
upon reasonable advance notice to the Company.
7.11 Environmental Laws. The Company shall, and shall cause each
Subsidiary to, conduct its operations and keep and maintain its property in
compliance with all Environmental Laws, except where the failure to so comply
could not reasonably be expected to have a Material Adverse Effect.
7.12 Use of Proceeds. The Company shall use the proceeds of the Loans
(i) to refinance existing debt of the Company and its Subsidiaries and (ii) for
working capital and other general corporate purposes (including Acquisitions)
not in contravention of any Requirement of Law (including Regulations T, U and X
of the FRB) or of any Loan Document.
ARTICLE VIII
NEGATIVE AND FINANCIAL COVENANTS
So long as any Bank shall have any Commitment hereunder, or any Loan or
other Obligation shall remain unpaid, unless the Majority Banks waive compliance
in writing:
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8.01 Limitation on Liens. The Company shall not, and shall not suffer
or permit any Subsidiary to, directly or indirectly, make, create, incur, assume
or suffer to exist any Lien upon or with respect to any part of its property,
whether now owned or hereafter acquired, other than the following ("Permitted
Liens"):
(a) any Lien existing on property of the Company or any
Subsidiary on the Closing Date and set forth in Schedule 8.01 securing
Indebtedness outstanding on such date;
(b) any Lien created under any Loan Document;
(c) Liens for taxes, fees, assessments or other governmental
charges which are not delinquent or remain payable without penalty, or to the
extent that non-payment thereof is permitted by Section 8.07, provided that no
notice of lien has been filed or recorded under the Code;
(d) carriers', warehousemen's, mechanics', landlords',
materialmen's, repairmen's or other similar Liens arising in the ordinary course
of business which are not delinquent for more than 90 days or remain payable
without penalty or which are being contested in good faith and by appropriate
proceedings, which proceedings have the effect of preventing the forfeiture or
sale of the property subject thereto;
(e) 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;
(f) Liens on the property of the Company or its Subsidiary
securing (i) the non-delinquent performance of bids, trade contracts (other than
for borrowed money), leases, statutory obligations, (ii) contingent obligations
on surety and appeal bonds, and (iii) other non-delinquent obligations of a like
nature; in each case, incurred in the ordinary course of business and treating
as non-delinquent any delinquency which is being contested in good faith and by
appropriate proceedings, which proceedings have the effect of preventing the
forfeiture or sale of the property subject thereto;
(g) Liens consisting of judgment or judicial attachment liens
with respect to judgments which do not constitute an Event of Default and in the
aggregate do not exceed $10,000,000;
(h) easements, rights-of-way, restrictions and other similar
encumbrances which, in the aggregate, are not substantial in amount, and which
do not in any case materially detract from the value of the property subject
thereto or interfere with the ordinary conduct of the businesses of the Company
and its Subsidiaries;
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(i) Liens on assets of corporations which become Subsidiaries
after the date of this Agreement, provided, however, that such Liens existed at
the time the respective corporations became Subsidiaries and were not created in
anticipation thereof and such liens do not extend to any other property of the
Company (except proceeds of such property, and in the case of Liens on real
estate or equipment, items which become fixtures on such real estate or are
accessions to such equipment pursuant to the terms of the original agreement
governing such Lien);
(j) purchase money security interests on any property acquired
or held by the Company or its Subsidiaries in the ordinary course of business,
securing Indebtedness incurred or assumed for the purpose of financing all or
any part of the cost of acquiring such property; provided that (i) any such Lien
attaches to such property concurrently with or within 90 days after the
acquisition thereof, (ii) such Lien attaches solely to the property so acquired
in such transaction and the proceeds thereof, (iii) the principal amount of the
debt secured thereby does not exceed 100% of the cost of such property, and (iv)
the principal amount of the Indebtedness secured by any and all such purchase
money security interests, together with Indebtedness permitted under subsection
8.05(d) and Attributable Indebtedness in respect of Sale and Leaseback
Transactions outstanding and permitted by Section 8.13(a), shall not at any time
exceed $15,000,000;
(k) 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 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;
(l) Liens consisting of pledges of cash collateral or
government securities, to secure on a xxxx-to-market basis Permitted Swap
Obligations (including customary netting arrangements therein) only, provided
that (i) the counterparty to any Swap Contract relating to such Permitted Swap
Obligations is under a similar requirement to deliver similar collateral from
time to time to the Company or the Subsidiary party thereto on a xxxx-to-market
basis; and (ii) the aggregate value of such collateral so pledged by the Company
and the Subsidiaries together in favor of any counterparty does not at any time
exceed $5,000,000;
(m) Liens securing reimbursement obligations for letters of
credit which encumber only goods and rights related thereto, or documents of
title covering goods, which are purchased in transactions for which such letters
of credit are issued;
(n) any extension, renewal or substitution of or for any of
the foregoing Liens; provided that (i) the Indebtedness or other obligation or
liability secured by the applicable Lien
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shall not exceed the Indebtedness or other obligation or liability existing
immediately prior to such extension, renewal or substitution and (ii) the Lien
securing such Indebtedness or other obligation or liability shall be limited to
the property which, immediately prior to such extension, renewal or
substitution, secured such Indebtedness or other obligation or liability; and
(o) other Liens securing obligations which, together with the
amount of Attributable Indebtedness in respect of Sale and Leaseback
Transactions outstanding and permitted by Section 8.13(b), do not exceed
$5,000,000 in the aggregate at any one time outstanding.
8.02 Disposition of Assets. The Company shall not, and shall not suffer
or permit any Subsidiary to, directly or indirectly, sell, assign, lease,
convey, transfer or otherwise dispose of (collectively, a "Disposition")
(whether in one or a series of transactions) any property (including accounts
and notes receivable, with or without recourse) or enter into any agreement to
do any of the foregoing, except:
(a) Dispositions of inventory, or used, worn-out, obsolete or
surplus equipment or intellectual property, all in the ordinary course of
business;
(b) Dispositions of equipment and other fixed assets to the
extent that such equipment or other fixed assets is exchanged for credit against
the purchase price of similar replacement equipment or other fixed assets, or
the proceeds of such sale are reasonably promptly applied to the purchase price
of such replacement equipment or other fixed assets;
(c) Dispositions of Accounts Receivable pursuant to a
Permitted Receivables Purchase Facility;
(d) Disposition of assets received in connection with the
bankruptcy or reorganization of suppliers and customers and in settlement of
delinquent obligations of, and other disputes with, customers and suppliers
arising in the ordinary course of business;
(e) Dispositions of assets between and among the Company and
its Wholly-Owned Subsidiaries and the Disposition of assets from any other
Subsidiary to the Company or a Wholly-Owned Subsidiary of the Company;
(f) sales of Accounts Receivable by Foreign Subsidiaries which
do not provide directly or indirectly for recourse for credit losses against the
seller of such Accounts Receivable or against any of such seller's Affiliates
and which are done on customary market terms or on other terms satisfactory to
the Agent; and
(g) Dispositions not otherwise permitted hereunder which are
made for fair market value; provided, that (i) at the time of any disposition,
no Event of Default shall exist or
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shall result from such disposition, (ii) the aggregate sales price from such
disposition shall be paid in cash (provided, that the Company may accept
promissory notes in an aggregate principal amount outstanding at any time not to
exceed $5,000,000), and (iii) the aggregate value of all assets so sold by the
Company and its Subsidiaries pursuant to this clause (g), together, shall not
exceed in any fiscal year, 10% of the consolidated total assets of the Company
as of the end of the most recent fiscal year (but excluding, for purposes of
calculation of such 10% amount, the assets of any operating business sold as a
whole in compliance with the proviso at the end of this subsection), provided
further that the sale by the Company or any Subsidiary of one or more operating
business in one year which, in the aggregate, accounts for more than 10% of
EBITDA of the Company as of the most recently ended fiscal year shall require
the consent of the Majority Banks and, the Company, on a pro forma basis
calculated as of the last day of the most recently completed fiscal quarter,
shall be in compliance with the Leverage Ratio as of the date of such
disposition.
8.03 Consolidations and Mergers. The Company shall not, and shall not
suffer or permit any Subsidiary to, merge, consolidate with or into any Person,
except:
(a) any Subsidiary may merge with the Company, provided that
the Company shall be the continuing or surviving corporation, or with any one or
more Subsidiaries, provided that if any transaction shall be between a
Subsidiary and a Wholly-Owned Subsidiary, the Wholly-Owned Subsidiary shall be
the continuing or surviving corporation; and
(b) any Subsidiary may sell all or substantially all of its
assets (upon voluntary liquidation or otherwise), to the Company or another
Wholly-Owned Subsidiary or as otherwise permitted by Section 8.02.
Any Disposition of assets which would be permitted by Section 8.02 may also be
done via merger or consolidation and such merger or consolidation (which results
solely in a Disposition otherwise permitted by Section 8.02) shall be permitted
pursuant to this Section 8.03.
8.04 Loans and Investments. The Company shall not purchase or acquire,
or suffer or permit any Subsidiary to purchase or acquire, or make any
commitment therefor, any capital stock, equity interest, or any obligations or
other securities of, or any interest in, any Person, or make or commit to make
(unless contingent upon a waiver or amendment of the terms hereof) any
Acquisitions, or make or commit to make any advance, loan, extension of credit
or capital contribution to or any other investment in, any Person including any
Affiliate of the Company (together, "Investments"), except for:
(a) Investments held by the Company or Subsidiary in the form
of cash or cash equivalents;
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(b) extensions of credit in the nature of accounts receivable
or notes receivable arising from the sale or lease of goods or services in the
ordinary course of business;
(c) extensions of credit by the Company or its Subsidiaries to
their employees in the ordinary course of business for travel, relocation and
related expenses;
(d) existing Investments in Subsidiaries and the other
Investments identified on Schedule 8.04 (in each case, as such Investments may
be adjusted due to appreciation, repayment of principal, payment of interest,
return of capital and similar circumstances);
(e) additional Investments in any Domestic Subsidiary (other
than an Investment constituting an Acquisition which shall be governed by
subsection 8.04(g) below); provided that any such additional equity Investments
in Domestic Subsidiaries after the Closing Date shall not exceed, in the
aggregate, $10,000,000 outstanding;
(f) Investments by the Company or any Domestic Subsidiary in
any Foreign Subsidiary after the Closing Date in an amount which will not result
in a breach of Section 8.15 or, in the case of any Foreign Subsidiary,
Investments in any Subsidiary of such Foreign Subsidiary or Investments
consisting of a loan or advance of available cash to another Foreign Subsidiary;
(g) Investments constituting a Permitted Acquisition;
(h) Investments constituting Permitted Swap Obligations or
payments or advances under Swap Contracts relating to Permitted Swap
Obligations;
(i) Investments held by any Subsidiary of the Company in any
of its customers or suppliers which are received as distributions in bankruptcy
proceedings or as negotiated settlements for obligations incurred to it by such
customer for the purchase of goods manufactured or services provided by it;
(j) Investments by way of stock or similar ownership interests
of 50% or less in any Person in an aggregate amount not to exceed $25,000,000 at
any one time outstanding;
(k) Investments by way of promissory notes received in
connection with a disposition permitted by subsection 8.02(g);
(l) Investments in the Receivables Subsidiary prior to the
occurrence and continuation of an Event of Default which in the judgment of the
Company are reasonably necessary in connection with any Permitted Receivables
Purchase Facility; and
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(m) additional investments of a nature not contemplated by the
foregoing clauses (a) through (l) not to exceed $25,000,000 in the aggregate at
any time outstanding, provided, however, that this clause shall not be construed
to permit additional equity investments in Domestic Subsidiaries or investments
in ownership interests of 50% or less in any Person which would not be permitted
by subsections (e) and (j) above.
8.05 Limitation on Indebtedness. The Company shall not, and shall not
suffer or permit any Subsidiary to, create, incur, assume, suffer to exist, or
otherwise become or remain directly or indirectly liable with respect to, any
Indebtedness, except:
(a) Indebtedness incurred pursuant to this Agreement;
(b) Indebtedness consisting of Contingent Obligations
permitted pursuant to Section 8.07;
(c) Indebtedness existing on the Closing Date and set forth in
Schedule 8.05, and any Refinancing Indebtedness with respect thereto;
(d) Indebtedness secured by Liens permitted by subsection
8.01(j) in an aggregate amount outstanding at any time not to exceed
$15,000,000;
(e) Intercompany Indebtedness to the extent permitted by
Section 8.04; provided, however, that in the event of any subsequent issuance or
transfer of any capital stock which results in the holder of such Indebtedness
ceasing to be a Subsidiary of the Company or any subsequent transfer of such
Indebtedness (other than to the Company or any of its Subsidiaries) such
Indebtedness shall be required to be permitted under another clause of this
Section 8.05; provided, further, however, that in the case of Intercompany
Indebtedness consisting of a loan or advance to the Company, each such loan or
advance shall be subordinated to the indefeasible payment in full of all of the
Company's obligations pursuant to this Agreement and the other Loan Documents;
(f) Subordinated Debt of the Company;
(g) Indebtedness of any Subsidiary and unsecured guarantees
thereof by the Company provided that the aggregate amount of such Indebtedness
under this clause (g), together with Indebtedness consisting of Contingent
Obligations of any Subsidiary which are outstanding and permitted solely by
Section 8.07(h), does not exceed at any time outstanding, 15% of Consolidated
Net Worth;
(h) Indebtedness of the Company, as long as the Company would
remain in compliance with Section 8.16 after giving pro forma effect to the
incurrence of such Indebtedness;
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(i) Receivables Facility Attributed Indebtedness; and
(j) Unsecured Indebtedness of the Company pursuant to its ten
year senior unsecured notes due 2008 in an aggregate principal amount not to
exceed $150,000,000.
8.06 Transactions with Affiliates. The Company will not, and will not
permit any of its Subsidiaries to, enter into, or cause, suffer or permit to
exist:
(a) any arrangement or contract with any of its other
Affiliates of a nature customarily entered into by Persons which are Affiliates
of each other for tax or financial reporting purposes (including, without
limitation, management or similar contracts or arrangements relating to the
allocation of revenues, taxes and expenses or otherwise) unless such arrangement
or contract is fair and equitable to the Company or such Subsidiary; or
(b) any other transaction, arrangement or contract with any of
its other Affiliates which would not be entered into by a prudent Person in the
position of the Company or such Subsidiary with, or which is on terms which are
less favorable than are obtainable from, any Person which is not one of its
Affiliates;
provided, however, that nothing in this Section shall be construed to restrict
the Company from paying (i) an annual fee to KKR or its Affiliates for the
rendering of management consulting and financial services to the Company and its
Subsidiaries in an aggregate amount not to exceed an amount reasonably
determined by taking into account the practices of KKR with respect to other
companies for which it performs such management consulting and financial
services and the amount of assets of the Company relative to such other
companies, (ii) reasonable and customary regular fees to directors of the
Company who are not employees of the Company, and (iii) normal and customary
financial advisory fees to KKR or its Affiliates made in connection with the
Acquisition or Disposition of any Subsidiary of the Company permitted hereunder
so long as no other such fees are paid by the Company to any other financial
advisor in connection with such Acquisition or Disposition.
8.07 Contingent Obligations. The Company shall not, and shall not
suffer or permit any Subsidiary to, create, incur, assume or suffer to exist any
Contingent Obligations except:
(a) endorsements for collection or deposit in the ordinary
course of business;
(b) Permitted Swap Obligations;
(c) Contingent Obligations of the Company and its Subsidiaries
existing as of the Closing Date and listed in Schedule 8.07;
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(d) Contingent Obligations with respect to Surety Instruments
incurred in the ordinary course of business;
(e) Guaranty Obligations of the Company with respect to any
Indebtedness permitted pursuant to this Agreement;
(f) Guaranty Obligations of the Company and its Subsidiaries
consisting of payment obligations incurred in connection with a Permitted
Acquisition;
(g) Guaranty Obligations of the Company consisting of a
guarantee by the Company of obligations of a Subsidiary or by a Subsidiary of
obligations of its Subsidiary under any lease or other agreement otherwise
permitted hereunder (including customary performance guarantees under a
Permitted Receivables Purchase Facility) or entered into in the ordinary course
of business and, in each case, not constituting Indebtedness; and
(h) in addition to other Contingent Obligations permitted
hereunder, Contingent Obligations which do not exceed $5,000,000 in the
aggregate at any one time outstanding, provided that to the extent such
Contingent Obligations constitute Indebtedness of a Subsidiary, such Contingent
Obligations, together with Indebtedness of all Subsidiaries of the Company
outstanding and permitted solely under Section 8.05(g), shall not exceed 15% of
Consolidated Net Worth.
8.08 Restricted Payments. The Company shall not, and shall not suffer
or permit any Subsidiary to, (i) declare or make any dividend payment or other
distribution of assets, properties, cash, rights, obligations or securities on
account of any shares of any class of its capital stock, or purchase, redeem or
otherwise acquire for value any shares of its capital stock or any warrants,
rights or options to acquire such shares, now or hereafter outstanding, (ii)
prepay or repay any principal of or make any payment of interest on, or redeem,
or set aside any funds for the payment, prepayment or redemption of, or purchase
or otherwise acquire any interest in, any Subordinated Debt or (iii) make any
deposit for any of the foregoing purposes (each of (i), (ii) or (iii), a
"Restricted Payment") if a Default or Event of Default exists or would exist
after giving effect thereto.
8.09 ERISA. The Company shall not, and shall not suffer or permit any
of its ERISA Affiliates to: (a) engage in a prohibited transaction or violation
of the fiduciary responsibility rules with respect to any Plan which has
resulted or could reasonably be expected to result in liability of the Company
in an aggregate amount in excess of $10,000,000; or (b) engage in a transaction
that could be subject to Section 4069 or 4212(c) of ERISA and which could
reasonably be expected to result in liability of the Company in excess of
$10,000,000.
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8.10 Change in Business. The Company shall not, and shall not suffer or
permit any Subsidiary to, engage in any material line of business substantially
different from those lines of business carried on by the Company and its
Subsidiaries on the date hereof.
8.11 Accounting Changes. The Company shall not, and shall not suffer or
permit any Subsidiary to, make any significant change in accounting treatment or
reporting practices, except as required by GAAP, or change the fiscal year of
the Company.
8.12 Modifications, etc. of Subordinated Debt and Related Documents.
The Company will not consent to any amendment of any subordination or sinking
fund provisions or terms of required repayment or redemption contained in or
applicable to any Subordinated Debt or any guaranty thereof (except any
extension in time of any such sinking fund provision or term of required
prepayment or redemption).
8.13 Sale-Leasebacks. The Company shall not, nor shall it permit any of
its Subsidiaries to, directly or indirectly, lease any property as lessee in
connection with a Sale and Leaseback Transaction entered into after the Closing
Date, except for (a) Sale and Leaseback Transactions entered into within 90 days
after acquiring the applicable property where the Attributable Indebtedness with
respect to such Sale and Leaseback Transaction and all other outstanding Sale
and Leaseback Transactions permitted pursuant to this Section 8.13(a) does not,
together with Indebtedness permitted under Section 8.05(d), exceed $15,000,000,
and (b) other Sale and Leaseback Transactions where the Attributable
Indebtedness, together with Indebtedness secured by Liens permitted by Section
8.01(o), does not exceed $5,000,000.
8.14 No Negative Pledges; Subsidiary Payments. The Company will not,
and will not permit any of its Subsidiaries (other than Foreign Subsidiaries in
connection with the financings permitted by subsection 8.05(g)) to enter into or
suffer to exist any agreement (excepting this Agreement and any Instrument
executed pursuant hereto and any agreement governing Indebtedness permitted to
be incurred under subsection 8.05(i)) (a) prohibiting the creation or assumption
of any security interest upon its properties or assets, whether now owned or
hereafter acquired or (b) which would restrict the ability of any Subsidiary to
pay or make dividends or distributions, in cash or kind, or to make loans,
advances or other payments of whatsoever nature, or to make transfers or
dispositions of all or part of its assets, in each case to the Company;
provided, however, in the case of a consensual Lien on assets or property that
is permitted pursuant to Section 8.01, the Lien holder may, solely with respect
of the assets or property to which such Lien attaches, contract for and receive
a negative pledge with respect thereto and the proceeds and products thereof.
8.15 Foreign Operations. The Company shall generate Domestic EBITDA
equal to or in excess of $75,000,000 for each fiscal year and maintain total
assets in the United States equal to or in excess of $400,000,000.
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8.16 Financial Covenants. The Company shall not:
(a) Consolidated Net Worth. Permit Consolidated Net Worth as
of the end of any fiscal quarter of the Company to be less than the sum of (a)
$325 million, (b) an amount equal to 50% of the Consolidated Net Income earned
in each fiscal quarter ending after December 31, 2000 (with no deduction for a
net loss in any such fiscal quarter) and (c) an amount equal to 75% of the
aggregate increases in Shareholders' Equity of the Company and its Subsidiaries
after the date hereof by reason of the issuance and sale of capital stock of the
Company or any of its Subsidiaries (including upon any conversion of debt
securities of the Company into such capital stock).
(b) Interest Coverage Ratio. Permit the Interest Coverage
Ratio as of the end of any fiscal quarter of the Company to be less than 3.00.
(c) Leverage Ratio. Permit the Leverage Ratio as of the end of
any fiscal quarter of the Company to be greater than 3.00.
ARTICLE IX
EVENTS OF DEFAULT
9.01 Event of Default. Any of the following shall constitute an "Event
of Default":
(a) Non-Payment. The Company fails to pay, (i) when and as
required to be paid herein, any amount of principal of any Loan or any amount of
interest on any Bid Loan, or (ii) within five (5) days after the same becomes
due, any other interest, fee or any other amount payable hereunder or under any
other Loan Document; or
(b) Representation or Warranty. Any representation or warranty
by the Company made or deemed made herein, in any other Loan Document, or which
is contained in any certificate, document or financial or other statement by the
Company, any Subsidiary, or any Responsible Officer, furnished at any time under
this Agreement, or in or under any other Loan Document, is incorrect in any
material respect on or as of the date made or deemed made; or
(c) Specific Defaults. The Company fails to perform or observe
any term, covenant or agreement (i) contained in Section 8.01, 8.04, 8.05 or
8.07 and such failure continues unremedied for five Business Days or (ii)
contained in any of Section 7.03(a) or 7.12 or in any other provision of Article
VIII; or
(d) Other Defaults. The Company or any Subsidiary party
thereto fails to perform or observe any other term or covenant contained in this
Agreement or any other Loan Document, and such default shall continue unremedied
for a period of 20 days after the date upon which written notice thereof is
given to the Company by the Agent or any Bank; or
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(e) Cross-Default. (i) The Company or any Subsidiary (A) fails
to make any payment in respect of any Indebtedness or Contingent Obligation
(other than in respect of Swap Contracts), having an aggregate principal amount
(including undrawn committed or available amounts and including amounts owing to
all creditors under any combined or syndicated credit arrangement) of more than
$10,000,000 when due (whether by scheduled maturity, required prepayment,
acceleration, demand, or otherwise) and such failure continues after the
applicable grace or notice period, if any, specified in the relevant document on
the date of such failure; or (B) fails to perform or observe any other condition
or covenant, or any other event shall occur or condition exist, under any
agreement or instrument relating to any such Indebtedness or Contingent
Obligation, and such failure continues after the applicable grace or notice
period, if any, specified in the relevant document on the date of such failure
if the effect of such failure, event or condition is to cause, or to permit the
holder or holders of such Indebtedness or beneficiary or beneficiaries of such
Indebtedness (or a trustee or agent on behalf of such holder or holders or
beneficiary or beneficiaries) to cause such Indebtedness to be declared to be
due and payable prior to its stated maturity, or such Contingent Obligation to
become payable or cash collateral in respect thereof to be demanded; or (ii)
there occurs under any Swap Contract an Early Termination Date (as defined in
such Swap Contract) or similar event resulting from (1) any event of default
under such Swap Contract as to which the Company or any Subsidiary is the
Defaulting Party (as defined in such Swap Contract) or (2) any Termination Event
(as so defined) as to which the Company or any Subsidiary is an Affected Party
(as so defined), and, in either event, the Swap Termination Value owed by the
Company or such Subsidiary as a result thereof is greater than $10,000,000 in
the aggregate; or
(f) Insolvency; Voluntary Proceedings. The Company or any
Material Subsidiary (i) ceases or fails to be solvent, or generally fails to
pay, or admits in writing its inability to pay, its debts as they become due,
subject to applicable grace periods, if any, whether at stated maturity or
otherwise; (ii) voluntarily ceases to conduct its business in the ordinary
course; (iii) commences any Insolvency Proceeding with respect to itself; or
(iv) takes any action to effectuate or authorize any of the foregoing; or
(g) Involuntary Proceedings. (i) Any involuntary Insolvency
Proceeding is commenced or filed against the Company or any Material Subsidiary,
or any writ, judgment, warrant of attachment, execution or similar process, is
issued or levied against a substantial part of the Company's or any Material
Subsidiary's properties, and any such proceeding or petition shall not be
dismissed, or such writ, judgment, warrant of attachment, execution or similar
process shall not be released, vacated or fully bonded within 60 days after
commencement, filing or levy; (ii) the Company or any Material Subsidiary admits
the material allegations of a petition against it in any Insolvency Proceeding,
or an order for relief (or similar order under non-U.S. law) is ordered in any
Insolvency Proceeding; or (iii) the Company or any Material Subsidiary
acquiesces in the appointment of a receiver, trustee, custodian, conservator,
liquidator,
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mortgagee in possession (or agent therefor), or other similar Person for itself
or a substantial portion of its property or business; or
(h) ERISA. (i) An ERISA Event or Events shall occur with
respect to one or more Pension Plans or Multiemployer Plans which has resulted
in liability of the Company under Title IV of ERISA to such plans or the PBGC in
an aggregate amount in excess of $10,000,000; or (ii) the Company or any ERISA
Affiliate shall fail to pay when due, after the expiration of any applicable
grace period, any installment payment with respect to its withdrawal liability
under Section 4201 of ERISA under a Multiemployer Plan in an aggregate amount in
excess of $10,000,000; or
(i) Monetary Judgments. One or more non-interlocutory
judgments, non-interlocutory orders, decrees or arbitration awards is entered
against the Company or any Subsidiary involving in the aggregate a liability (to
the extent not covered by independent third-party insurance as to which the
insurer does not dispute coverage) as to any single or related series of
transactions, incidents or conditions, of $10,000,000 or more, and the same
shall remain unsatisfied, unvacated and unstayed pending appeal for a period of
10 days after the entry thereof; or
(j) Change of Control. There occurs any Change of Control; or
(k) Invalidity of Subordination Provisions. The subordination
provisions of any agreement or instrument governing any Subordinated Debt is for
any reason revoked or invalidated, or otherwise cease to be in full force and
effect, any Person contests in any manner the validity or enforceability thereof
or denies that it has any further liability or obligation thereunder, or the
Indebtedness hereunder is for any reason subordinated or does not have the
priority contemplated by this Agreement or such subordination provisions.
9.02 Remedies. If any Event of Default occurs and is continuing, the
Agent shall, at the request of, or may, with the consent of, the Majority Banks,
(a) declare the commitment of each Bank to make Loans to be
terminated, whereupon such commitments shall be terminated;
(b) declare the unpaid principal amount of all outstanding
Loans, all interest accrued and unpaid thereon, and all other amounts owing or
payable hereunder or under any other Loan Document to be immediately due and
payable, without presentment, demand, protest or other notice of any kind, all
of which are hereby expressly waived by the Company; and
(c) exercise on behalf of itself and the Banks all rights and
remedies available to it and the Banks under the Loan Documents or applicable
law;
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provided, however, that upon the occurrence and during the continuance of any
Event of Default specified in subsection (f) or (g) of Section 9.01 with respect
to the Company, the obligation of each Bank to make Loans shall automatically
terminate and the unpaid principal amount of all outstanding Loans and all
interest and other amounts as aforesaid shall automatically become due and
payable, the obligation of the Issuing Bank to Issue Letters of Credit shall
automatically terminate, and the Company shall Cash Collateralize the dollar
amount of the aggregate undrawn amount of all Letters of Credit, without further
act of the Agent or any Bank. In addition, following the occurrence and during
the continuance of an Event of Default, so long as any Letter of Credit has not
been fully drawn and has not been canceled or expired by its terms, upon demand
by the Agent at the request of the Majority Banks, the Company shall Cash
Collateralize the dollar amount of the aggregate undrawn amount of all Letters
of Credit. Such funds shall be promptly applied by the Agent to reimburse the
Issuing Bank for drafts drawn from time to time under the Letters of Credit.
Such funds, if any, remaining following the payment of all Obligations in full
or the earlier termination of all Events of Default shall, unless the Agent is
otherwise directed by a court of competent jurisdiction, be promptly paid over
to the Company.
9.03 Rights Not Exclusive. The rights provided for in this Agreement
and the other Loan Documents are cumulative and are not exclusive of any other
rights, powers, privileges or remedies provided by law or in equity, or under
any other instrument, document or agreement now existing or hereafter arising.
ARTICLE X
THE AGENT
10.01 Appointment and Authorization; "Agent".
(a) Each Bank hereby irrevocably (subject to Section 10.09)
appoints, designates and authorizes the Agent to take such action on its behalf
under the provisions of this Agreement and each other Loan Document and to
exercise such powers and perform such duties as are expressly delegated to it by
the terms of this Agreement or any other Loan Document, together with such
powers as are reasonably incidental thereto. Notwithstanding any provision to
the contrary contained elsewhere in this Agreement or in any other Loan
Document, the Agent shall not have any duties or responsibilities, except those
expressly set forth herein, nor shall the Agent have or be deemed to have any
fiduciary relationship with any Bank, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or any other Loan Document or otherwise exist against the Agent.
Without limiting the generality of the foregoing sentence, the use of the term
"agent" in this Agreement with reference to the Agent is not intended 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.
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(b) The Issuing Bank shall act on behalf of the Banks 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 Agent may agree at the
request of the Majority Banks to act for the Issuing Bank with respect thereto;
provided, however, that the Issuing Bank shall have all of the benefits and
immunities (i) provided to the Agent in this Article X 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 application and
agreements for letters of credit pertaining to the Letters of Credit as fully as
if the term "Agent" as used in this Article X included the Issuing Bank with
respect to such acts or omissions, and (ii) as additionally provided herein with
respect to the Issuing Bank.
10.02 Delegation of Duties. The Agent may execute any of its duties
under this Agreement or any other Loan Document by or through agents, employees
or attorneys-in-fact and shall be entitled to advice of counsel and other
consultants or experts concerning all matters pertaining to such duties. The
Agent shall not be responsible for the negligence or misconduct of any agent or
attorney-in-fact that it selects in the absence of gross negligence or willful
misconduct.
10.03 Liability of 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 any other Loan Document or the transactions
contemplated hereby (except for its own gross negligence or willful misconduct
in connection with its duties expressly set forth herein), or (ii) be
responsible in any manner to any of the Banks 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 other
Loan Document, or in any certificate, report, statement or other document
referred to or provided for in, or received by the Agent under or in connection
with, this Agreement or any other Loan Document, or the validity, effectiveness,
genuineness, enforceability or sufficiency of this Agreement or any other Loan
Document, or for any failure of the Company or any other party to any Loan
Document to perform its obligations hereunder or thereunder. No Agent-Related
Person shall be under any obligation to any Bank to ascertain or to inquire as
to the observance or performance of any of the agreements contained in, or
conditions of, this Agreement or any other Loan Document, or to inspect the
properties, books or records of the Company or any of the Company's Subsidiaries
or Affiliates.
10.04 Reliance by Agent.
(a) The Agent shall be entitled to rely, and shall be fully
protected in relying, upon any writing, communication, signature, resolution,
representation, notice, consent, certificate, affidavit, letter, telegram,
facsimile, telex or telephone message, statement or other document or
conversation reasonably 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
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by the Agent. The Agent shall be fully justified in failing or refusing to take
any action under this Agreement or any other Loan Document unless it shall first
receive such advice or concurrence of the Majority Banks as it deems appropriate
and, if it so requests, it shall first be indemnified to its satisfaction by the
Banks against any and all liability and expense which may be incurred by it by
reason of taking or continuing to take any such action. The Agent shall in all
cases be fully protected in acting, or in refraining from acting, under this
Agreement or any other Loan Document in accordance with a request or consent of
the Majority Banks (or all of the Banks, as may be required) and such request
and any action taken or failure to act pursuant thereto shall be binding upon
all of the Banks. Where this Agreement expressly permits or prohibits an action
unless the Majority Banks otherwise determine the Agent shall, and in all other
instances, the Agent may, but shall not be required to, initiate any
solicitation for the consent or a vote of the Banks.
(b) For purposes of determining compliance with the conditions
specified in Section 5.01, each Bank that has executed this Agreement shall be
deemed (absent timely written notice to the contrary) to have consented to,
approved or accepted or to be satisfied with, each document or other matter
either sent by the Agent to such Bank for consent, approval, acceptance or
satisfaction, or required thereunder to be consented to or approved by or
acceptable or satisfactory to the Bank.
10.05 Notice of Default. The Agent shall not be deemed to have
knowledge or notice of the occurrence of any Default or Event of Default, except
with respect to defaults in the payment of principal, interest and fees required
to be paid to the Agent for the account of the Banks, unless the Agent shall
have received written notice from a Bank or the Company referring to this
Agreement, describing such Default or Event of Default and stating that such
notice is a "notice of default". The Agent will promptly notify the Banks of its
receipt of any such notice. The Agent shall take such action with respect to
such Default or Event of Default as may be requested by the Majority Banks in
accordance with Article IX; provided, however, that unless and until the Agent
has received any such request, the Agent may (but shall not be obligated to)
take such action, or refrain from taking such action, with respect to such
Default or Event of Default as it shall deem advisable or in the best interest
of the Banks.
10.06 Credit Decision. Each Bank acknowledges that none of the
Agent-Related Persons has made any representation or warranty to it, and that no
act by the Agent hereinafter taken, including any consent to and acceptance of
any assignment or review of the affairs of the Company and its Subsidiaries,
shall be deemed to constitute any representation or warranty by any
Agent-Related Person to any Bank as to any matter, including whether
Agent-Related Persons have disclosed material information in their possession.
Each Bank represents to the 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 the Company and its Subsidiaries, and
all applicable bank regulatory laws
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relating to the transactions contemplated hereby, and made its own decision to
enter into this Agreement and to extend credit to the Company and its
Subsidiaries hereunder. Each Bank also represents that it will, independently
and without reliance upon any Agent-Related Person and based on such documents
and information as it shall deem appropriate at the time, continue to make its
own credit analysis, appraisals and decisions in taking or not taking action
under this Agreement and the other Loan Documents, 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 Banks by the Agent, the Agent
shall not have any duty or responsibility to provide any Bank with any credit or
other information concerning the business, prospects, operations, property,
financial and other condition or creditworthiness of the Company which may come
into the possession of any of the Agent-Related Persons.
10.07 Indemnification of Agent. Whether or not the transactions
contemplated hereby are consummated, the Banks 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), pro rata,
and hold harmless each Agent-Related Person from and against any and all
Indemnified Liabilities (excluding any losses suffered by the Agent as a result
of the Company's failure to pay any fee owing to the Agent); provided, however,
that no Bank shall be liable for the payment to the Agent-Related Persons of any
portion of such Indemnified Liabilities resulting solely from such Person's
gross negligence or willful misconduct. Without limitation of the foregoing,
each Bank shall reimburse the Agent upon demand for its ratable share of any
costs or out-of-pocket expenses (including Attorney Costs and costs and expenses
in connection with the use of IntraLinks, Inc. or other similar information
transmission systems in connection with this Agreement) incurred by the 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, any other Loan Document, or any document
contemplated by or referred to herein, to the extent that the Agent is not
reimbursed for such expenses by or on behalf of the Company. The undertaking in
this Section shall survive termination of the Aggregate Commitments, the payment
of all Obligations hereunder and the resignation or replacement of the Agent.
10.08 Agent in Individual Capacity. BofA 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 BofA were not the Agent hereunder and
without notice to or consent of the Banks. The Banks acknowledge that, pursuant
to such activities, BofA 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 such Subsidiary) and
acknowledge that the Agent shall be under no obligation to provide such
information to them. With respect to its Loans, BofA shall have the same rights
and powers
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under this Agreement as any other Bank and may exercise the same as though it
were not the Agent, and the terms "Bank" and "Banks" include BofA in its
individual capacity.
10.09 Successor Agent. The Agent may resign as Agent upon 30 days'
notice to the Banks, provided that any such resignation by Agent shall also
constitute its resignation as the Issuing Bank. If the Agent resigns under this
Agreement, the Majority Banks shall appoint from among the Banks a successor
agent for the Banks which successor agent shall be approved by the Company at
all times other than during the existence of an Event of Default (which consent
of the Company shall not be unreasonably withheld or delayed). If no successor
agent is appointed prior to the effective date of the resignation of the Agent,
the Agent may appoint, after consulting with the Banks and the Company, a
successor agent from among the Banks. Upon the acceptance of its appointment as
successor agent hereunder, such successor agent shall succeed to all the rights,
powers and duties of the retiring Agent and the term "Agent" shall mean such
successor agent and the retiring Agent's appointment, powers and duties as Agent
shall be terminated and the retiring Issuing Bank's rights, power and duties as
such shall be terminated, without any other or further act or deed on the part
of such retiring Issuing Bank or any other Bank, other than the obligation of
the successor Issuing Bank to issue letters of credit in substitution for the
Letters of Credit, if any, outstanding at the time of such succession. After any
retiring Agent's resignation hereunder as Agent, the provisions of this Article
X and Sections 11.04 and 11.05 shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was Agent under this Agreement. If
no successor agent has accepted appointment as Agent by the date which is 30
days following a retiring Agent's notice of resignation, the retiring Agent's
resignation shall nevertheless thereupon become effective and the Banks shall
perform all of the duties of the Agent hereunder until such time, if any, as the
Majority Banks appoint a successor agent as provided for above.
ARTICLE XI
MISCELLANEOUS
11.01 Amendments and Waivers. No amendment or waiver of any provision
of this Agreement or any other Loan Document, and no consent with respect to any
departure by the Company or any applicable Subsidiary therefrom, shall be
effective unless the same shall be in writing and signed by the Majority Banks
(or by the Agent at the written request of the Majority Banks) and the Company,
and acknowledged by the Agent, and then any such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given; provided, however, that no such waiver, amendment, or consent shall,
unless in writing and signed by each of the Banks directly affected thereby and
the Company and acknowledged by the Agent, do any of the following:
(a) increase or extend the Commitment of any Bank (or
reinstate any Commitment terminated pursuant to Section 2.07 or 9.02);
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(b) postpone or delay any date fixed by this Agreement or any
other Loan Document for any payment of principal, interest (other than interest
payable solely as a result of subsection 2.11(c)), fees or other amounts due to
the Banks (or any of them) hereunder or under any other Loan Document;
(c) reduce the principal of, or the rate of interest (other
than interest payable solely as a result of subsection 2.11(c)) specified herein
on any Loan, or (subject to clause (iii) below) any fees or other amounts
payable hereunder or under any other Loan Document;
(d) change the percentage of the Commitments or of the
aggregate unpaid principal amount of the Loans which is required for the Banks
or any of them to take any action hereunder; or
(e) amend the definition of "Majority Banks" to decrease the
percentage specified therein, this Section, or Section 2.15, or any provision
herein providing for consent or other action by all Banks;
and, provided further, that (i) no amendment, waiver or consent shall, unless in
writing and signed by the Issuing Bank in addition to the Majority Banks or each
directly-affected Bank, as the case may be, affect the rights or duties of the
Issuing Bank under this Agreement or any L/C Application relating to any Letter
of Credit issued or to be issued by it; (ii) no amendment, waiver or consent
shall, unless in writing and signed by the Agent in addition to the Majority
Banks or each directly-affected Bank, as the case may be, affect the rights or
duties of the Agent under this Agreement or any other Loan Document, and (iii)
the Fee Letters may be amended, or rights or privileges thereunder waived, in a
writing executed by the parties thereto.
11.02 Notices.
(a) All notices, requests, consents, approvals, waivers and
other communications shall be in writing (including, unless the context
expressly otherwise provides, by facsimile transmission, and including, where
expressly provided hereunder, by electronic transmission, provided that any
matter transmitted by the Company by facsimile (i) shall be immediately
confirmed by a telephone call to the recipient at the number specified on
Schedule 11.02, and (ii) shall be followed promptly by delivery of a hard copy
original thereof) and mailed, faxed or delivered, to the address or facsimile
number specified for notices on Schedule 11.02; or, as directed to the Company
or the Agent, to such other address as shall be designated by such party in a
written notice to the other parties, and as directed to any other party, at such
other address as shall be designated by such party in a written notice to the
Company and the Agent.
(b) All such notices, requests and communications shall, when
transmitted by overnight delivery, or faxed, be effective when delivered for
overnight (next-day) delivery, or
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transmitted in legible form by facsimile machine, respectively, or if mailed,
upon the third Business Day after the date deposited into the U.S. mail, or if
hand delivered, upon delivery; except that notices pursuant to Article II or X
to the Agent shall not be effective until actually received by the Agent.
(c) Any agreement of the Agent and the Banks herein to receive
certain notices by telephone or facsimile is solely for the convenience and at
the request of the Company. The Agent and the Banks 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 Agent and the Banks shall not have any liability to
the Company or other Person on account of any action taken or not taken by the
Agent or the Banks 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 Agent and the Banks to receive written
confirmation of any telephonic or facsimile notice or the receipt by the Agent
and the Banks of a confirmation which is at variance with the terms understood
by the Agent and the Banks to be contained in the telephonic or facsimile
notice.
11.03 No Waiver; Cumulative Remedies. No failure to exercise and no
delay in exercising, on the part of the Agent or any Bank, any right, remedy,
power or privilege hereunder, shall operate as a waiver thereof; nor shall any
single or partial exercise of any right, remedy, power or privilege hereunder
preclude any other or further exercise thereof or the exercise of any other
right, remedy, power or privilege. The rights, remedies, powers and privileges
therein or therein provided are cumulative and not exclusive of any rights,
remedies, powers and privileges provided by law.
11.04 Costs and Expenses. The Company shall:
(a) whether or not the transactions contemplated hereby are
consummated, pay or reimburse the Agent promptly after demand (subject to
subsection 5.01(e)) for all reasonable out-of-pocket costs and expenses incurred
by the Agent in connection with the development, preparation, delivery,
administration and execution of, and any amendment, supplement, waiver or
modification to (in each case, whether or not consummated), this Agreement, any
Loan Document and any other documents prepared in connection herewith or
therewith, and the consummation of the transactions contemplated hereby and
thereby, including reasonable Attorney Costs incurred by the Agent with respect
thereto and administration of and costs and expenses in connection with the use
of the IntraLinks, Inc. or other similar information transmission systems in
connection with this Agreement; and
(b) pay or reimburse the Agent, the Arranger and each Bank
promptly after demand (subject to subsection 5.01(e)) for all reasonable
out-of-pocket costs and expenses (including Attorney Costs) incurred by them in
connection with the enforcement, attempted enforcement, or preservation of any
rights or remedies under this Agreement or any other Loan
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Document during the existence of a Default or an Event of Default or after
acceleration of the Loans (including in connection with any "workout" or
restructuring regarding the Loans, and including in any Insolvency Proceeding or
appellate proceeding).
11.05 Company Indemnification. Whether or not the transactions
contemplated hereby are consummated, the Company shall indemnify, defend and
hold the Agent-Related Persons, and each Bank and each of its respective
Affiliates, officers, directors, employees, agents and attorneys-in-fact (each,
an "Indemnified Person") harmless from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
charges, expenses and disbursements (including Attorney Costs) of any kind or
nature whatsoever which may at any time (including at any time following
repayment of the Loans and the termination, resignation or replacement of the
Agent or replacement of any Bank) be imposed on, incurred by or asserted against
any such Person in any way relating to or arising out of this Agreement or any
Loan Document, or the transactions contemplated hereby, or any action taken or
omitted by any such Person under or in connection with any of the foregoing,
including with respect to any investigation, litigation or proceeding (including
any Insolvency Proceeding or appellate proceeding) related to or arising out of
this Agreement or the Loans or the use of the proceeds thereof, or related to
any Offshore Currency transactions entered into in connection herewith, whether
or not any Indemnified Person is a party thereto (all the foregoing,
collectively, the "Indemnified Liabilities"); provided, that the Company shall
have no obligation hereunder to any Indemnified Person with respect to
Indemnified Liabilities to the extent resulting from the gross negligence or
willful misconduct of such Indemnified Person. The agreements in this Section
shall survive the termination of the Aggregate Commitments and payment of all
other Obligations.
11.06 Payments Set Aside. To the extent that the Company makes a
payment to the Agent or the Banks, or the Agent or the Banks exercise their
right of set-off, and such payment or the proceeds of such set-off or any part
thereof are subsequently invalidated, declared to be fraudulent or preferential,
set aside or required (including pursuant to any settlement entered into by the
Agent or such Bank in its discretion) to be repaid to a trustee, receiver or any
other party, in connection with any Insolvency Proceeding or otherwise, then (a)
to the extent of such recovery the obligation or part thereof originally
intended to be satisfied shall be revived and continued in full force and effect
as if such payment had not been made or such set-off had not occurred, and (b)
each Bank severally agrees to pay to the Agent upon demand its pro rata share of
any amount so recovered from or repaid by the Agent, plus interest thereon from
the date of such demand to the date such payment is made at a rate per annum
equal to the Federal Funds Rate from time to time in effect.
11.07 Successors and Assigns. The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns, except that the Company may not assign or transfer any
of its rights or obligations under this Agreement without the prior written
consent of the Agent and each Bank (and any attempted assignment or
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transfer by the Company without such consent shall be null and void). Nothing in
this Agreement, expressed or implied, shall be construed to confer upon any
Person (other than the parties hereto, their respective successors and assigns
permitted hereby and, to the extent expressly contemplated hereby, the
Indemnitees) any legal or equitable right, remedy or claim under or by reason of
this Agreement.
11.08 Assignments, Participations, etc.
(a) Any Bank may, with the written consent of the Company at
all times other than during the existence of an Event of Default and the Agent,
which consents shall not be unreasonably withheld or delayed, at any time assign
and delegate to one or more Eligible Assignees (provided that no written consent
of the Company or the Agent shall be required in connection with any assignment
and delegation by a Bank to an Eligible Assignee that is an Affiliate of such
Bank or another Bank) (each an "Assignee") all, or any ratable part of all, of
the Loans, the Commitment and the other rights and obligations of such Bank
hereunder, in a minimum amount of $5,000,000; provided, however, that the
Company and the Agent may continue to deal solely and directly with such Bank in
connection with the interest so assigned to an Assignee until (i) 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 Agent by such Bank and the Assignee; (ii) such Bank and its Assignee
shall have delivered to the Company and the Agent an Assignment and Assumption
Agreement in the form of Exhibit 11.08 ("Assignment and Assumption Agreement")
together with any Note or Notes subject to such assignment and (iii) the
assignor Bank or Assignee has paid to the Agent a processing fee in the amount
of $3,500.
(b) From and after the date that the Agent notifies the
assignor Bank that it has received (and provided its consent with respect to) an
executed Assignment and Assumption Agreement and payment of the above-referenced
processing fee, (i) the Assignee thereunder shall be a party hereto and, to the
extent that rights and obligations hereunder have been assigned to it pursuant
to such Assignment and Assumption Agreement, shall have the rights and
obligations of a Bank under the Loan Documents, and (ii) the assignor Bank
shall, to the extent that rights and obligations hereunder and under the other
Loan Documents have been assigned by it pursuant to such Assignment and
Assumption Agreement, relinquish its rights and be released from its obligations
under the Loan Documents.
(c) Within five Business Days after its receipt of notice by
the Agent that it has received an executed Assignment and Assumption Agreement
and payment of the processing fee (and provided that it consents to such
assignment in accordance with subsection 11.08(a)), the Company shall execute
and deliver to the Agent new Notes evidencing such Assignee's assigned Loans and
Commitment and, if the assignor Bank has retained a portion of its Loans and its
Commitment, replacement Notes in the principal amount of the Loans retained by
the assignor Bank (such Notes to be in exchange for, but not in payment of, the
Notes held by such
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Bank). Immediately upon each Assignor Bank's or Assignee's making its processing
fee payment under the Assignment and Assumption Agreement, this Agreement shall
be deemed to be amended to the extent, but only to the extent, necessary to
reflect the addition of the Assignee and the resulting adjustment of the
Commitments arising therefrom. The Commitment allocated to each Assignee shall
reduce such Commitment of the assigning Bank pro tanto. Unless the Company shall
otherwise agree, the Agent shall not deliver any new Notes executed by the
Company unless the Agent shall have received the old Notes to be replaced or
customary indemnification in favor of the Agent and the Company with respect to
lost or destroyed notes. Such old Notes shall be promptly returned to the
Company.
(d) Any Bank 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 Loans, the Commitment of that Bank and the other
interests of that Bank or Designated Bidder (the "Originator") hereunder and
under the other Loan Documents; provided, however, that (i) the Originator's
obligations under this Agreement shall remain unchanged, (ii) the Originator
shall remain solely responsible for the performance of such obligations, (iii)
the Company and the Agent shall continue to deal solely and directly with the
Originator in connection with the Originator's rights and obligations under this
Agreement and the other Loan Documents, and (iv) no Bank shall transfer or grant
any participating interest under which the Participant has rights to approve any
amendment to, or any consent or waiver with respect to, this Agreement or any
other Loan Document, except to the extent such amendment, consent or waiver
would require unanimous consent of the Banks as described in the first proviso
to Section 11.01. In the case of any such participation, the Participant shall
be entitled to the benefit of Sections 4.01, 4.03 and 11.05 as though it were
also a Bank or Designated Bidder (as the case may be) hereunder, provided that
the Company shall not be required to pay any greater amount under such section
than it would be required to pay had the Originator not sold such participation.
Notwithstanding the immediately preceding sentence, all amounts payable by the
Company under this Agreement and each other Loan Document shall be determined as
if no such participation had been sold.
(e) Notwithstanding any other provision in this Agreement, any
Bank or Designated Bidder 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 the 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. Notwithstanding any such pledge, such
Bank shall remain liable to the Company and the Issuing Bank as if such pledge
had not been made. In the event of any enforcement or proposed enforcement of
such pledge, the Company shall have the right to replace such Bank pursuant to
the provisions of Section 4.08.
(f) Notwithstanding anything to the contrary contained herein,
if at any time BofA assigns all of its Commitment and Loans pursuant to
subsection (a) above, BofA may,
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upon 30 days' notice to the Company and the Banks, resign as Issuing Bank. In
the event of any resignation of the Issuing Bank, whether pursuant to this
clause (f) or Section 10.09 above, the Company shall be entitled to appoint from
among the Banks a successor Issuing Bank hereunder; provided, however, that no
failure by the Company to appoint any such successor shall affect the
resignation of BofA as Issuing Bank, as the case may be. BofA shall retain all
the rights and obligations of the Issuing Bank hereunder with respect to all
Letters of Credit outstanding as of the effective date of its resignation as
Issuing Bank and all L/C Obligations with respect thereto (including the right
to require the Banks to make Base Rate Committed Loans or fund participations in
unreimbursed amounts pursuant to Section 3.03).
11.09 Designated Bidders. Any Bank may designate one Designated Bidder
to have a right to offer and make Bid Loans pursuant to Section 2.06; provided,
however, that (i) each such Bank making any such designation shall retain the
right to make Bid Loans, and (ii) the parties to each such designation shall
execute and deliver to the Agent a Designation Agreement. Upon its receipt of an
appropriately completed Designation Agreement executed by a designating Bank and
a designee representing that it is a Designated Bidder, the Agent will accept
such Designation Agreement and give prompt notice thereof to the Company,
whereupon such designation of such Designated Bidder shall become effective and
shall become a party to this Agreement as a "Designated Bidder."
11.10 Confidentiality. Each Bank and Designated Bidder agrees to take
and to cause its Affiliates to take normal and reasonable precautions and
exercise due care to maintain the confidentiality of all information identified
as "confidential" or "secret" by the Company and provided to it by the Company
or any Subsidiary, or by the Agent on the Company's or such Subsidiary's behalf,
under this Agreement or any other Loan Document, and neither it nor any of its
Affiliates shall use any such information other than in connection with or in
enforcement of this Agreement and the other Loan Documents or in connection with
other business now or hereafter existing or contemplated with 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 the Bank or
Designated Bidder, or (ii) was or becomes available on a non-confidential basis
from a source other than the Company, provided that such source is not bound by
a confidentiality agreement with the Company known to the Bank or Designated
Bidder; provided, however, that any Bank or Designated Bidder may disclose such
information (A) at the request or pursuant to any requirement of any
Governmental Authority to which the Bank or Designated Bidder is subject or in
connection with an examination of such Bank or Designated Bidder 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 Agent, any Bank, Designated Bidder or their respective
Affiliates may be party; (E) to the extent reasonably required in connection
with the exercise of any remedy hereunder or under any other Loan Document; (F)
to such Bank's or Designated Bidder's independent auditors and other
professional advisors; (G) to any Participant or Assignee, actual or potential,
provided that such
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Person agrees in writing to keep such information confidential to the same
extent required of the Banks hereunder; (H) as to any Bank or Designated Bidder
or its Affiliate, as expressly permitted under the terms of any other document
or agreement regarding confidentiality to which the Company or any Subsidiary is
party or is deemed party with such Bank or Designated Bidder or such Affiliate;
and (I) to its Affiliates, provided such Affiliate agrees to use such
information solely in connection with this Agreement and agrees in writing to
keep such information confidential. Any Person required to maintain the
confidentiality of Information as provided in this Section shall be considered
to have complied with its obligation to do so if such Person has exercised the
same degree of care to maintain the confidentiality of such Information as such
Person would accord to its own confidential information.
11.11 Set-off. In addition to any rights and remedies of the Banks
provided by law, if an Event of Default exists or the Loans have been
accelerated, each Bank and Designated Bidder is authorized at any time and from
time to time, without prior notice to the Company, any such notice being waived
by the Company to the fullest extent permitted by law, to set off and apply any
and all deposits (general or special, time or demand, provisional or final) at
any time held by, and other indebtedness at any time owing by, such Bank or
Designated Bidder to or for the credit or the account of the Company against any
and all Obligations owing to such Bank or Designated Bidder, now or hereafter
existing, irrespective of whether or not the Agent or such Bank or Designated
Bidder shall have made demand under this Agreement or any Loan Document and
although such Obligations may be contingent or unmatured. Each Bank and
Designated Bidder agrees promptly to notify the Company and the Agent after any
such set-off and application made by such Bank or Designated Bidder; provided,
however, that the failure to give such notice shall not affect the validity of
such set-off and application.
11.12 Automatic Debits of Fees. With respect to any commitment fee,
arrangement fee, or other fee, or any other cost or expense (excluding Attorney
Costs) due and payable to the Agent, BofA or the Arranger under the Loan
Documents, the Company hereby irrevocably authorizes BofA to debit any deposit
account of the Company with BofA in an amount such that the aggregate amount
debited from all such deposit accounts does not exceed such fee or other cost or
expense. If there are insufficient funds in such deposit accounts to cover the
amount of the fee or other cost or expense then due, such debits will be
reversed (in whole or in part, in BofA's sole discretion) and such amount not
debited shall be deemed to be unpaid. No such debit under this Section shall be
deemed a set-off.
11.13 Notification of Addresses, Lending Offices, Etc. Each Bank and
Designated Bidder shall notify the Agent in writing of any changes in the
address to which notices to the Bank and Designated Bidder should be directed,
of addresses of any Lending Office, of payment instructions in respect of all
payments to be made to it hereunder and of such other administrative information
as the Agent shall reasonably request.
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11.14 Counterparts. This Agreement may be executed in any number of
separate counterparts, each of which, when so executed, shall be deemed an
original, and all of said counterparts taken together shall be deemed to
constitute but one and the same instrument.
11.15 Severability. The illegality or unenforceability of any provision
of this Agreement or any instrument or agreement required hereunder shall not in
any way affect or impair the legality or enforceability of the remaining
provisions of this Agreement or any instrument or agreement required hereunder.
11.16 Foreign Lenders. Each Bank that is not a "United States person"
within the meaning of Section 7701(a)(30) of the Code (a "Foreign Lender") shall
deliver to the Agent, prior to receipt of any payment subject to withholding
under the Code (or upon accepting an assignment of an interest herein), two duly
signed completed copies of either IRS Form W-8BEN or any successor thereto
(relating to such Person and entitling it to an exemption from, or reduction of,
withholding tax on all payments to be made to such Person by the Company
pursuant to this Agreement) or IRS Form W-8ECI or any successor thereto
(relating to all payments to be made to such Person by the Company pursuant to
this Agreement) or such other evidence satisfactory to the Company and the Agent
that such Person is entitled to an exemption from, or reduction of, U.S.
withholding tax. Thereafter and from time to time as requested by the Company or
otherwise required by the Code, each such Person shall (a) promptly submit to
the Agent such additional duly completed and signed copies of one of such forms
(or such successor forms as shall be adopted from time to time by the relevant
United States taxing authorities) as may then be available under then current
United States laws and regulations to avoid, or such evidence as is satisfactory
to the Company and the Agent of any available exemption from or reduction of,
United States withholding taxes in respect of all payments to be made to such
Person by the Company pursuant to this Agreement, (b) promptly notify the Agent
of any change in circumstances which would modify or render invalid any claimed
exemption or reduction, and (c) take such steps as shall not be materially
disadvantageous to it, in the reasonable judgment of such Bank, and as may be
reasonably necessary (including the re-designation of its Lending Office) to
avoid any requirement of applicable Laws that the Company make any deduction or
withholding for taxes from amounts payable to such Person. If any Foreign Lender
sells, assigns, grants a participation in, or otherwise ceases to be the
beneficial owner of any portion of its Loans or Commitments, such Foreign Lender
shall deliver to Agent a revised duly executed IRS Form W-8BEN or IRS Form
W-8ECI (or successor or replacement forms) reflecting the portion of the Loans
and Commitments the Foreign Lender has retained and a duly executed W-8IMY (or
successor or replacement form), including required attachments, reflecting the
portion of its Commitments or Loans sold. If such Person fails to deliver the
above forms or other documentation, then the Agent may withhold from any
interest payment to such Person an amount equivalent to the applicable
withholding tax imposed by Sections 1441 and 1442 of the Code, without
reduction. Such Person may not collect any such payments from the Company. If
any Governmental Authority asserts that the Agent did not properly withhold any
tax or other amount from payments made in respect of such Person, such Person
shall indemnify the Agent
99
Credit Agreement - Idex Corporation
107
therefor, including all penalties and interest, any taxes imposed by any
jurisdiction on the amounts payable to the Agent under this Section, and costs
and expenses (including Attorney Costs) of the Agent. The obligation of the
Banks under this Section shall survive the termination of the Aggregate
Commitments, repayment of all Obligations and the resignation or replacement of
the Agent.
11.17 No Third Parties Benefited. This Agreement is made and entered
into for the sole protection and legal benefit of the Company, the Banks, the
Designated Bidders, the Agent and the Agent-Related Persons, and their permitted
successors and assigns, and no other Person shall be a direct or indirect legal
beneficiary of, or have any direct or indirect cause of action or claim in
connection with, this Agreement or any of the other Loan Documents.
11.18 Governing Law and Jurisdiction.
(a) THIS AGREEMENT AND THE NOTES SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF
ILLINOIS; PROVIDED THAT
THE AGENT AND THE BANKS SHALL RETAIN ALL RIGHTS ARISING UNDER FEDERAL LAW.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE
OF
ILLINOIS OR OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF
ILLINOIS, AND
BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH OF THE COMPANY, THE AGENT AND
THE BANKS CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE
NON-EXCLUSIVE JURISDICTION OF THOSE COURTS. EACH OF THE COMPANY, THE AGENT, THE
DESIGNATED BIDDERS AND THE BANKS IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING ANY
OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON
CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR
PROCEEDING IN SUCH JURISDICTION IN RESPECT OF THIS AGREEMENT OR ANY DOCUMENT
RELATED HERETO. THE COMPANY, THE AGENT, THE DESIGNATED BIDDERS AND THE BANKS
EACH WAIVE PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER PROCESS, WHICH
MAY BE MADE BY ANY OTHER MEANS PERMITTED BY
ILLINOIS LAW.
11.19 Waiver of Jury Trial. THE COMPANY, THE BANKS AND THE AGENT EACH
WAIVE THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION
BASED UPON OR ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE OTHER LOAN
DOCUMENTS, OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, IN ANY ACTION,
PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY ANY OF THE PARTIES AGAINST
ANY
100
Credit Agreement - Idex Corporation
108
OTHER PARTY OR ANY AGENT-RELATED PERSON, PARTICIPANT OR ASSIGNEE, WHETHER WITH
RESPECT TO CONTRACT CLAIMS, TORT CLAIMS, OR OTHERWISE. THE COMPANY, THE BANKS,
THE DESIGNATED BIDDERS AND THE AGENT EACH AGREE THAT ANY SUCH CLAIM OR CAUSE OF
ACTION SHALL BE TRIED BY A COURT TRIAL WITHOUT A JURY. WITHOUT LIMITING THE
FOREGOING, THE PARTIES FURTHER AGREE THAT THEIR RESPECTIVE RIGHT TO A TRIAL BY
JURY IS WAIVED BY OPERATION OF THIS SECTION AS TO ANY ACTION, COUNTERCLAIM OR
OTHER PROCEEDING WHICH SEEKS, IN WHOLE OR IN PART, TO CHALLENGE THE VALIDITY OR
ENFORCEABILITY OF THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS OR ANY PROVISION
HEREOF OR THEREOF. THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS,
RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS.
11.20 Judgment. If, for the purposes of obtaining judgment in any
court, it is necessary to convert a sum due hereunder or any other Loan Document
in one currency into another currency, the rate of exchange used shall be that
at which in accordance with normal banking procedures the Agent could purchase
the first currency with such other currency on the Business Day preceding that
on which final judgment is given. The obligation of the Company in respect of
any such sum due from it to the Agent hereunder or under the other Loan
Documents shall, notwithstanding any judgment in a currency (the "Judgment
Currency") other than that in which such sum is denominated in accordance with
the applicable provisions of this Agreement (the "Agreement Currency"), be
discharged only to the extent that on the Business Day following receipt by the
Agent of any sum adjudged to be so due in the Judgment Currency, the Agent may
in accordance with normal banking procedures purchase the Agreement Currency
with the Judgment Currency. If the amount of the Agreement Currency so purchased
is less than the sum originally due to the Agent in the Agreement Currency, the
Company agrees, as a separate obligation and notwithstanding any such judgment,
to indemnify the Agent or the Person to whom such obligation was owing against
such loss. If the amount of the Agreement Currency so purchased is greater than
the sum originally due to the Agent in such currency, the Agent agrees to return
the amount of any excess to the Company (or to any other Person who may be
entitled thereto under applicable law).
11.21 Entire Agreement. This Agreement, together with the other Loan
Documents embodies the entire agreement and understanding among the Company, the
Banks and the Agent, and supersedes all prior or contemporaneous agreements and
understandings of such Persons, verbal or written, relating to the subject
matter hereof and thereof.
[SIGNATURE PAGES FOLLOWS]
101
Credit Agreement - Idex Corporation
109
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered in Chicago,
Illinois by their proper and duly
authorized officers as of the day and year first above written.
IDEX CORPORATION
By:
---------------------------------
Title:
------------------------------
BANK OF AMERICA, N.A., AS AGENT
By:
---------------------------------
Title:
------------------------------
Credit Agreement - Idex Corporation
110
BANK OF AMERICA, N.A., AS A BANK
By:
---------------------------------
Title:
------------------------------
Credit Agreement - Idex Corporation
111
NATIONAL CITY BANK
By:
---------------------------------
Title:
------------------------------
Credit Agreement - Idex Corporation
000
XXX XXXX XX XXX XXXX
By:
---------------------------------
Title:
------------------------------
Credit Agreement - Idex Corporation
113
BARCLAYS BANK PLC
By:
---------------------------------
Title:
------------------------------
Credit Agreement - Idex Corporation
114
FIRSTAR BANK, N.A.
By:
---------------------------------
Title:
------------------------------
Credit Agreement - Idex Corporation
115
PNC BANK, NATIONAL ASSOCIATION
By:
---------------------------------
Title:
------------------------------
Credit Agreement - Idex Corporation
116
THE NORTHERN TRUST COMPANY
By:
---------------------------------
Title:
------------------------------
Credit Agreement - Idex Corporation
117
XXXXX FARGO BANK, N.A.
By:
---------------------------------
Title:
------------------------------
Credit Agreement - Idex Corporation
000
XXXXX XXXXXXXXX XXX XXXXXX X.X.X.,
XXX XXXX BRANCH
By:
---------------------------------
Title:
------------------------------
Credit Agreement - Idex Corporation
119
THE FUJI BANK, LIMITED
By:
---------------------------------
Title:
------------------------------
Credit Agreement - Idex Corporation
120
THE INDUSTRIAL BANK OF JAPAN, LIMITED
By:
---------------------------------
Title:
------------------------------
Credit Agreement - Idex Corporation
121
SCHEDULE 2.01
COMMITMENTS
AND PRO RATA SHARES
Pro Rata
Bank Commitment Share
---- ------------ --------
Bank of America, N.A. $ 50,000,000 18.5185%
National City Bank $ 30,000,000 11.1111%
The Bank of New York $ 25,000,000 9.2593%
Barclays Bank PLC $ 25,000,000 9.2593%
Firstar Bank, N.A. $ 25,000,000 9.2593%
PNC Bank, National Association $ 25,000,000 9.2593%
The Northern Trust Company $ 25,000,000 9.2593%
Xxxxx Fargo Bank, N.A. $ 25,000,000 9.2593%
Banca Nazionale Del Lavoro S.p.A.
New York Branch $ 15,000,000 5.5556%
The Fuji Bank, Limited $ 12,500,000 4.6296%
The Industrial Bank of Japan, Limited $ 12,500,000 4.6296%
------------ -------
TOTAL $270,000,000 100%
Credit Agreement - Idex Corporation
122
SCHEDULE 11.02
OFFSHORE AND DOMESTIC LENDING OFFICES,
ADDRESSES FOR NOTICES
BANK OF AMERICA, N.A, as Agent
Bank of America, N.A.
000 Xxxxxxx Xxxx.
Mail Code: CA4-706-05-09
Xxxxxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
AGENT'S PAYMENT OFFICE:
000 Xxxxxxx Xxxx.
Mail Code: CA4-706-05-09
Xxxxxxx, Xxxxxxxxxx 00000-0000
BANK OF AMERICA, N.A., as a Bank
Domestic and Offshore Lending Office:
Notices (other than Borrowing notices and Notices of
Conversion/Continuation):
Bank of America, N.A.
000 Xxxxxxx Xxxx.
Mail Code: CA4-706-05-09
Xxxxxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
NATIONAL CITY BANK
0000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Attention: Xxxxxxxx Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Credit Agreement - Idex Corporation
000
XXX XXXX XX XXX XXXX
Xxx Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: M. Xxxxx Xxxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000/09
BARCLAYS BANK PLC
000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxxx, Manager
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
FIRSTAR BANK, N.A.
000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxxxx Xxxxxx, Vice President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
PNC BANK, NATIONAL ASSOCIATION
000 Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxx Xxxxxx, Relationship Manager
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
2
Credit Agreement - Idex Corporation
124
THE NORTHERN TRUST COMPANY
00 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxx, Vice President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
XXXXX FARGO BANK, N.A.
000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxx Toll, Vice President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
BANCA NAZIONALE DEL LAVORO S.p.A., NEW YORK BRANCH
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxx, Vice President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
THE FUJI BANK, LIMITED
Two Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Takeyuki Kuroki, Vice President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
THE INDUSTRIAL BANK OF JAPAN, LIMITED
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxx, Vice President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
3
Credit Agreement - Idex Corporation
125
Schedule 3.09
To IDEX Corporation/Bank of America
Credit Agreement
ARTICLE XII OUTSTANDING LETTERS OF CREDIT
(i) Applicant: Fluid Management Ltd. Partnership
CURRENT
L/C NUMBER EXPIRY DATE OUTSTANDING AMOUNT TENOR
---------- ----------- ------------------ -------
7279295 07/01/01 $203,060.00 96 DAYS
(ii) Applicant: IDEX Corporation
CURRENT
L/C NUMBER EXPIRY DATE OUTSTANDING AMOUNT TENOR
---------- ----------- ------------------ --------
7319227 12/31/01 $3,400,000.00 279 DAYS
Applicant: Pulsafeeder, Inc.
CURRENT
L/C NUMBER EXPIRY DATE OUTSTANDING AMOUNT TENOR
---------- ----------- ------------------ --------
7403690 06/30/01 $112,374.00 403 DAYS
Applicant: Pulsafeeder, Inc.
CURRENT
L/C NUMBER EXPIRY DATE OUTSTANDING AMOUNT TENOR
---------- ----------- ------------------ --------
7401196 07/01/01 $1,602.10 873 DAYS
7403004 07/01/01 $1,200.00 572 DAYS
7403830 02/02/02 $4,100.00 584 DAYS
126
Applicant: Pulsafeeder, Inc.
CURRENT
L/C NUMBER EXPIRY DATE OUTSTANDING AMOUNT TENOR
---------- ----------- ------------------ --------
7404835 07/31/01 $3,725.00 174 DAYS
7359450 10/20/01 $2,400.00 187 DAYS
Applicant: Pulsafeeder, Inc.
CURRENT
L/C NUMBER EXPIRY DATE OUTSTANDING AMOUNT TENOR
---------- ----------- ------------------ --------
7405331 09/23/02 $61,666.20 475 DAYS
Applicant: Viking Pump, Inc.
CURRENT
L/C NUMBER EXPIRY DATE OUTSTANDING AMOUNT TENOR
---------- ----------- ------------------ --------
7403324 07/01/01 $ 1,22300 494 DAYS
7403553 07/01/01 $ 683.05 444 DAYS
7402937 07/31/01 $4,184.78 615 DAYS
7403829 04/30/02 $5,720.00 671 DAYS
Page 2 of 14
127
SCHEDULE 6.05
To IDEX Corporation/Bank of America
Credit Agreement
LITIGATION
None
Page 3 of 14
128
Schedule 6.07
To IDEX Corporation/Bank of America
Credit Agreement
ERISA
None.
Page 4 of 14
129
Schedule 6.11
To IDEX Corporation/Bank of America
Credit Agreement
ARTICLE XIII PERMITTED LIABILITIES
None.
Page 5 of 14
130
Schedule 6.12
To IDEX Corporation/Bank of America
Credit Agreement
ARTICLE XIV ENVIRONMENTAL MATTERS
(a) None
Page 6 of 14
131
Schedule 6.14
To IDEX Corporation/Bank of America
Credit Agreement
ARTICLE XV EXISTING SUBSIDIARIES AND MINORITY INTEREST*
ORGANIZED
---------
BAND-IT-IDEX, INC. DELAWARE
BAND-IT COMPANY LTD. U.K.
BAND-IT CLAMPS (ASIA) PTE., LTD. SINGAPORE
BAND-IT R.S.A. (PTY) LTD. (51%) R. S. A.
XXXXXX, INC. DELAWARE
ELETTA AOD AB SWEDEN
DOMINATOR PUMP AB SWEDEN
VERSA-MATIC TOOL, INC. OHIO
PUMPER PARTS LLC DELAWARE
VERSA-MATIC ASIA SDN BHD (50%) MALAYSIA
IDEX HOLDINGS, INC. DELAWARE
IDEX FINANCE, INC. DELAWARE
FAST LLC DELAWARE
FAST SRL ITALY
FAST IBERICA S.A. SPAIN
FAST U.K. LTD. U.K.
FLUID MANAGEMENT, INC. DELAWARE
FLUID MANAGEMENT EUROPE B.V. NETHERLANDS
FLUID MANAGEMENT U.K., LTD. U.K.
FLUID MANAGEMENT FRANCE SARL FRANCE
FLUID MANAGEMENT ESPANA SLU SPAIN
FLUID MANAGEMENT EASTERN EUROPE SP. Z O.O. POLAND
FLUID MANAGEMENT INDIA PRIVATE LTD.** INDIA
FLUID MANAGEMENT GMBH GERMANY
FLUID MANAGEMENT AUSTRALIA PTY., LTD. AUSTRALIA
FLUID MANAGEMENT CANADA, INC. CANADA
FLUID MANAGEMENT SERVICOS E VENDAS LTD. BRAZIL
XXXX MANUFACTURING, INC. MICHIGAN
XXXX ASIA, INC. MICHIGAN
XXXX MANUFACTURING COMPANY LTD. U.K.
Page 7 of 14
132
XXXX PRODUCTS, INC. PENNSYLVANIA
XXXX PRODUCTS EUROPE GMBH GERMANY
GODIVA PRODUCTS LTD. U.K.
GODIVA LIMITED U.K.
XXXX PRODUCTS EUROPE LIMITED U.K.
GINSWAT LTD. (35%) HONG KONG
XXXX PRODUCTS BETEILIGUNGSGESELLSCHAFT MBH GERMANY
LUKAS HYDRAULIK VERWALTUNGSEGESELLSCHAFT MBH GERMANY
LUKAS HYDRAULIK GMBH & CO. KG GERMANY
CLASS 1, INC. DELAWARE
LIQUID CONTROLS, INC. DELAWARE
LIQUID CONTROLS LLC
ILLINOIS
JV ITALIA LLC (80%)
ILLINOIS
S.A.M.P.I. SRL. ITALY
LIQUID CONTROLS ITALIANA SRL (50%) ITALY
LIQUID CONTROLS (INDIA) PVT. LTD. (60%) INDIA
HEMINA SPA (30%) ITALY
LUBRIQUIP, INC. DELAWARE
MICROPUMP, INC. DELAWARE
MICROPUMP LIMITED U.K.
ISMATEC SA SWITZERLAND
ISMATEC GMBH GERMANY
PULSAFEEDER, INC. DELAWARE
PULSAFEEDER EUROPE B.V.*** NETHERLANDS
IDEX ASIA PACIFIC PTE. LTD. SINGAPORE
KNIGHT, INC. DELAWARE
KNIGHT INTERNATIONAL B.V. NETHERLANDS
KNIGHT EQUIPMENT INTERNATIONAL B.V. NETHERLANDS
KNIGHT U. K., LTD. U.K.
KNIGHT EQUIPMENT AUSTRALIA PTY., LTD. AUSTRALIA
KNIGHT EQUIPMENT (CANADA) LTD. CANADA
KNIGHT SOUTH EUROPE SL**** SPAIN
SIGNFIX HOLDINGS LIMITED U.K.
SIGNFIX LIMITED U.K.
TESPA GMBH GERMANY
VIKING PUMP, INC. DELAWARE
VIKING PUMP (EUROPE) LTD. IRELAND
XXXXXXX PUMP (UK) LTD. U.K.
VIKING PUMP OF CANADA, INC. ONTARIO
VIKING PUMP LATIN AMERICA S.A. DE C.V. MEXICO
Page 8 of 14
133
XXXXXX XXXX, INC. DELAWARE
XXXXXX XXXX (EUROPE) LTD. U.K.
BLAGDON PUMP HOLDINGS LTD. U.K.
BLAGDON PUMP LTD. U.K.
TREBOR INTERNATIONAL, INC. UTAH
IDEX FOREIGN SALES CORP. BARBADOS
DORMANT CORPORATIONS PARENT
-------------------- ------
SEITHAL LTD (F/K/A XXXX PRODUCTS- GODIVA PRODUCTS, LTD. U.K.
EUROPE LTD.)
XXXXX XXXXXXXX LTD. BLAGDON PUMP U.K.
HOLDINGS
LTD.
TESPA FRANCE SARL SIGNFIX LIMITED FRANCE
XXXXXX XXXX (EUROPE) LTD. XXXXXX XXXX, INC. IRELAND
IDEX INDIA PRIVATE LTD. IDEX INDIA
Notes:
* Ownership is 100% unless indicated in (%) and is exclusive of director
qualifying ownership.
** This Indian subsidiary is in process of being formed.
*** This Dutch subsidiary is in process of being formed.
**** This Spanish subsidiary is in process of being formed.
Page 9 of 14
134
15.01 Schedule 6.15
To IDEX Corporation/Bank of America
Credit Agreement
ARTICLE XVI INSURANCE MATTERS
ARTICLE XVII NONE.
Page 10 of 14
135
17.01 Schedule 8.01
To IDEX Corporation/Bank of America
Credit Agreement
ARTICLE XVIII PERMITTED LIENS
1. Liens relating to a capital lease of Xxxxxx, Inc.'s office and
manufacturing facility securing obligations in a principal amount not exceeding
$2,000,000 under and pursuant to that certain Lease between Xxxxxx, Inc. and
3805 General Partnership dated as of August 28, 1990.
2. LIENS ON CERTAIN ASSETS OF FAST, S.R.L. IN CONNECTION WITH
SUBSIDIARY INDEBTEDNESS NOT EXCEEDING $5,000,000 WHICH LIENS HAD INITIALLY BEEN
GRANTED AT THE TIME IT BECAME A SUBSIDIARY AND WERE NOT CREATED IN ANTICIPATION
THEREOF.
3. Liens on certain assets of Liquid Controls (India) Pvt. Ltd. and
S.A.M.P.I. Srl. in connection with subsidiary and joint venture indebtedness not
exceeding $3,000,000 which Liens had initially been granted at the time it
became a Subsidiary and were not created in anticipation thereof.
4. Liens on certain assets of Knight International B.V. in connection
with subsidiary indebtedness not exceeding $1,000,000 which Liens had initially
been granted at the time it became a Subsidiary and were not created in
anticipation thereof.
Page 11 of 14
136
Schedule 8.04
To IDEX Corporation/Bank of America
Credit Agreement
ARTICLE XIX PERMITTED INVESTMENTS
1. 35% interest in Ginswat Ltd. currently carried on the financial
statements at an amount not exceeding $100,000.
2. 50% interest in Liquid Controls Italiana, S.r.l. currently carried on
the financial statements at an amount not exceeding $100,000.
3. 30% interest in Hemina, SpA currently carried on the financial
statements at an amount not exceeding $100,000.
4. 50% interest in Versa-Matic Asia Sdn Bhd currently carried on the
financial statements at an amount not exceeding $100,000.
Page 12 of 14
137
Schedule 8.05
To IDEX Corporation/Bank of America
Credit Agreement
ARTICLE XX PERMITTED INDEBTEDNESS
Capital lease obligations of Xxxxxx, Inc.'s in connection with the
lease of its office and manufacturing facility in a principal amount not
exceeding $2,000,000 under and pursuant to that certain Lease between Xxxxxx,
Inc. and 3805 General Partnership dated as of August 28, 1990.
Page 13 of 14
138
SCHEDULE 8.07
To IDEX Corporation/Bank of America
Credit Agreement
CONTINGENT OBLIGATIONS
1. Guaranty of IDEX Corporation in connection with overdraft facility
of Xxxxxxx Pump (UK) Ltd. in an amount not exceeding $500,000.
2. Guaranty of IDEX Corporation in connection with credit card usage by
Liquid Controls, Inc. in an amount not exceeding $250,000.
Page 14 of 14
139
EXHIBIT 2.02
FORM OF PROMISSORY NOTE
$ (Dollar Equivalent) Chicago,
Illinois
------------- , 2001
-----------
FOR VALUE RECEIVED, the undersigned, IDEX Corporation, a
Delaware corporation (the "Company"), hereby unconditionally promises to pay to
the order of _________________ (the "Bank") at the office of the Agent (as
defined in the Credit Agreement referred to below) at 000 Xxxxx XxXxxxx Xxxxxx,
Xxxxxxx, Xxxxxxxx 00000, in the Applicable Currency in which such Loan was made,
in funds customary for the settlement of international transactions in such
Applicable Currency and in immediately available funds, the aggregate unpaid
principal amount of all Loans made by the Bank to the Company pursuant to
Section 2.02 of the Credit Agreement (as hereinafter defined). The Company
acknowledges that Loans, subject to the terms and conditions of the Credit
Agreement, may be made in currencies other than Dollars and agrees to repay or
prepay, as the case may be, all such Loans in the Applicable Currency in which
such Loan was made in the manner set forth in the Credit Agreement, regardless
of whether the Dollar Equivalent thereof at the time of payment is less than,
equal to or greater than the Commitment of the Bank or the Dollar Equivalent of
such Loan at any other time. Except as expressly provided by the Credit
Agreement with respect to currency fluctuations, the Company agree that the
Dollar Equivalent of all Loans made by such Bank shall not exceed _____________
($_________). The Company further agrees to pay interest in like money at such
office on the unpaid principal amount hereof from time to time outstanding at
the applicable interest rate per annum determined as provided in, and payable as
specified in, Article II of the Credit Agreement.
The holder of this Note is authorized to record the date,
Type, currency and amount of each Loan made by the Bank pursuant to Section 2.02
of the Credit Agreement, each continuation thereof, the date of each interest
rate conversion pursuant to Sections 2.04 of the Credit Agreement and the Dollar
Equivalent principal amount subject thereto, the date and amount of each payment
or prepayment of principal hereof and, in the case of each Offshore Rate Loan,
the length of the Interest Period with respect thereto on the Schedules annexed
hereto and made a part hereof (or on any other record customarily maintained by
such Bank with respect to this Note) or otherwise on the records of the Bank,
and any such recordation shall (in the absence of manifest error) constitute
prima facie evidence of the accuracy of the information recorded; provided,
however, that the failure to make any such recordation shall not affect the
obligations of the Company in respect of such Loan.
This Note is one of the Notes referred to in that certain
Credit Agreement dated as of June 8, 2001 (as amended, restated, supplemented or
otherwise modified from time to time,
140
the "Credit Agreement") among the Company, Bank of America, N.A., as Agent, and
the Banks named therein, and is subject to the provisions thereof and to
optional and mandatory prepayment in whole or in part as provided therein. Terms
defined in the Credit Agreement are used herein with their defined meanings
unless otherwise defined herein.
This Note is delivered in substitution and replacement of, but
not in payment or as a novation of, certain notes previously executed by the
Company to evidence loans under the Existing Credit Agreement, and any and all
outstanding amounts due pursuant to such notes, including without limitation,
all accrued and unpaid interest, shall be evidenced hereby and paid in
accordance with the terms hereof.
Upon the occurrence and during the continuance of any one or
more of the Events of Default specified in the Credit Agreement, all amounts
then remaining unpaid on this Note may become, or may be declared to be,
immediately due and payable, all as provided therein.
All parties now and hereafter liable with respect to this
Note, whether maker, principal, surety, guarantor, endorser or otherwise, hereby
waive presentment, demand, protest and all other notices of any kind.
- 2 -
141
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
ILLINOIS.
IDEX CORPORATION
By:
------------------------------------
Title:
---------------------------------
142
Schedule A to
Promissory Note
BASE RATE LOANS AND
REPAYMENTS OF BASE RATE LOANS
Unpaid
Amount Amount Principal
Converted Converted Balance
Amount of to Amount of to of
Base Rate Base Rate Principal Offshore Rate Base Rate Notation
Date Loans Loans Repaid Loans Loans Made By
------------- ------------- ------------- ------------- ------------- ------------- -------------
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------------- ------------- ------------- ------------- ------------- ------------- -------------
------------- ------------- ------------- ------------- ------------- ------------- -------------
------------- ------------- ------------- ------------- ------------- ------------- -------------
------------- ------------- ------------- ------------- ------------- ------------- -------------
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- 4 -
143
Schedule B to
Promissory Note
OFFSHORE CURRENCY LOANS AND
REPAYMENTS OF OFFSHORE CURRENCY LOANS
Interest
Amount Period and Amount Unpaid
Converted Offshore Rate Converted Principal
Amount of to with Amount of to Balance of
Offshore Currency Offshore Rate respect Principal Base Rate Offshore Currency Notation
Date Loans Loans thereto Repaid Loans Loans Made By
------------- ----------------- ------------- ------------- ------------- ------------- ----------------- -------------
------------- ----------------- ------------- ------------- ------------- ------------- ----------------- -------------
------------- ----------------- ------------- ------------- ------------- ------------- ----------------- -------------
------------- ----------------- ------------- ------------- ------------- ------------- ----------------- -------------
------------- ----------------- ------------- ------------- ------------- ------------- ----------------- -------------
------------- ----------------- ------------- ------------- ------------- ------------- ----------------- -------------
------------- ----------------- ------------- ------------- ------------- ------------- ----------------- -------------
------------- ----------------- ------------- ------------- ------------- ------------- ----------------- -------------
------------- ----------------- ------------- ------------- ------------- ------------- ----------------- -------------
------------- ----------------- ------------- ------------- ------------- ------------- ----------------- -------------
------------- ----------------- ------------- ------------- ------------- ------------- ----------------- -------------
------------- ----------------- ------------- ------------- ------------- ------------- ----------------- -------------
------------- ----------------- ------------- ------------- ------------- ------------- ----------------- -------------
------------- ----------------- ------------- ------------- ------------- ------------- ----------------- -------------
- 5 -
144
Schedule C to
Promissory Note
OFFSHORE RATE LOANS AND
REPAYMENTS OF OFFSHORE RATE LOANS
Interest
Period and Unpaid
Offshore Rate Principal
Amount of with Amount of Balance of
Offshore Rate Agreed Alternative respect Principal Offshore Rate Notation
Date Loan Currency thereto Repaid Loans Made By
-------------- ----------------- ------------------ ----------------- ------------------ ------------------ ------------------
-------------- ----------------- ------------------ ----------------- ------------------ ------------------ ------------------
-------------- ----------------- ------------------ ----------------- ------------------ ------------------ ------------------
-------------- ----------------- ------------------ ----------------- ------------------ ------------------ ------------------
-------------- ----------------- ------------------ ----------------- ------------------ ------------------ ------------------
-------------- ----------------- ------------------ ----------------- ------------------ ------------------ ------------------
-------------- ----------------- ------------------ ----------------- ------------------ ------------------ ------------------
-------------- ----------------- ------------------ ----------------- ------------------ ------------------ ------------------
-------------- ----------------- ------------------ ----------------- ------------------ ------------------ ------------------
-------------- ----------------- ------------------ ----------------- ------------------ ------------------ ------------------
-------------- ----------------- ------------------ ----------------- ------------------ ------------------ ------------------
-------------- ----------------- ------------------ ----------------- ------------------ ------------------ ------------------
-------------- ----------------- ------------------ ----------------- ------------------ ------------------ ------------------
-------------- ----------------- ------------------ ----------------- ------------------ ------------------ ------------------
- 6 -
145
EXHIBIT 2.03(a)
FORM OF NOTICE OF BORROWING(1)
Date:
-------------
Bank of America, N.A., as Agent
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention:
----------------
Telecopy:
-----------------
Dear Sir or Madam:
Reference is made to that certain Credit Agreement, dated as
of June 8, 2001 (as amended, restated, supplemented or otherwise modified from
time to time, the "Credit Agreement"), by and among IDEX Corporation (the
"Company"), the several financial institutions from time to time party to the
Credit Agreement (collectively, the "Banks"; individually, a "Bank"), and Bank
of America, N.A., as agent for the Banks (the "Agent"). Capitalized terms used
herein but not otherwise defined herein shall have the meanings assigned to such
terms in the Credit Agreement. The undersigned, IDEX Corporation, hereby gives
notice pursuant to Section 2.03(a) of the Credit Agreement of its request for
the Banks to make a Revolving Loan as follows.
1. Amount of the Borrowing
(in an aggregate amount ---------------
not less than the
Minimum Tranche(2)
2. Borrowing Date
(a Business Day) ---------------
3. Type of Loans comprising
the Borrowing ---------------
4. Duration of the
Interest Period applicable ---------------
to such Loans(3)
----------
(1) Such irrevocable notice shall be given to the Agent prior to 10:30 a.m.,
Chicago time, four Business Days prior to the requested Borrowing Date, in
the case of Offshore Currency Loans, three Business Days prior to the
requested Borrowing Date, in the case of Offshore Rate Loans denominated in
Dollars, and on the requested Borrowing Date, in the case of Base Rate
Loans.
(2) In the case of a Borrowing comprised of Offshore Currency Loans, specify
the Applicable Currency.
146
The undersigned represents and warrants that the Borrowing
requested hereby complies with the requirements of Section 2.03(a), and the
undersigned confirms that it has satisfied the conditions set forth in Section
5.02 of the Credit Agreement.
IDEX CORPORATION
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
----------
(3) If this Notice of Borrowing fails to specify the duration of the Interest
Period for any Borrowing comprised of Offshore Rate Loans, such Interest
Period shall be one month.
- 2 -
147
EXHIBIT 2.04
FORM OF NOTICE OF CONVERSION/CONTINUATION(4)
Date:
--------------
Bank of America, N.A., as Agent
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention:
---------------------
Telecopy:
---------------------
Dear Sir or Madam:
Reference is made to that certain Credit Agreement, dated as
of June 8, 2001 (as amended, restated, supplemented or otherwise modified from
time to time, the "Credit Agreement"), among IDEX Corporation (the "Company"),
the several financial institutions from time to time party to the Credit
Agreement (collectively, the "Banks"; individually, a "Bank"), and Bank of
America, N.A., as agent for the Banks (the "Agent"). Capitalized terms used
herein but not otherwise defined herein shall have the meanings assigned to such
terms in the Credit Agreement. The undersigned, IDEX Corporation, hereby gives
notice pursuant to Section 2.04 of the Credit Agreement that it (i) elects, as
of any Business Day, in the case of Base Rate Committed Loans, or as of the last
day of the applicable Interest Period, in the case of any other Type of
Committed Loans denominated in Dollars, to convert any such Loans (or any part
thereof in an amount not less than the Minimum Tranche) into Loans in Dollars of
any other Type; or (ii) elects, 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),(5) and
sets forth below the terms on which such conversion or continuation is requested
to be made.
-------------------------------------------------------------------------
(A) Proposed Conversion/ Continuation Date
----------
-------------------------------------------------------------------------
----------
(4) This Notice of Conversion/Continuation must be received by the Agent not
later than 10:30 a.m. Chicago time, at least (i) subject to Section 2.03(a)
of the Credit Agreement, three Business Days in advance of the
Conversion/Continuation Date, if the Committed Loans are to be converted
into or continued as Offshore Rate Committed Loans denominated in Dollars;
(ii) four Business Days in advance of the Conversion/Continuation Date, if
the Committed Loans are to be converted into or continued as Offshore
Currency Loans; and (iii) on the Conversion/Continuation Date, if the
Committed Loans are to be converted into Base Rate Committed Loans.
(5) If at any time the aggregate amount of Offshore Rate Committed Loans
denominated in Dollars in respect of any Committed Borrowing is reduced, by
payment, prepayment or conversion of part thereof to be less than the
Minimum Tranche, such Offshore Rate Committed Loans denominated in Dollars
shall automatically convert into Base Rate Loans.
148
-------------------------------------------------------------------------
(B) Aggregate amount of Committed Loans to be
converted or continued
----------
-------------------------------------------------------------------------
(C) Type of Committed Loans resulting from
proposed conversion or continuation
----------
-------------------------------------------------------------------------
(D) Duration of the requested Interest Period
applicable to such Committed Loans
----------
-------------------------------------------------------------------------
IDEX CORPORATION
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
- 2 -
149
EXHIBIT 2.06(b)(i)
FORM OF COMPETITIVE BID REQUEST
Date:
---------------
To: Bank of America, N.A., as Agent
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement, dated as of June 8, 2001 (as
amended, restated, extended, supplemented or otherwise modified in writing from
time to time, the "Credit Agreement"; the terms defined therein being used
herein as therein defined), among IDEX Corporation, a Delaware corporation (the
"Borrower"), the Banks from time to time party thereto (the "Banks"), and Bank
of America, N.A., as agent for the Banks. The Banks are invited to make Bid
Loans:
1. On ____________________________________ (a Business Day).
2. In an aggregate amount not exceeding $______________ (with any
sublimits set forth below).
3. Comprised of (select one):
[ ] Bid Loans based on an [ ] Bid Loans based on LIBO Rate
Absolute Rate
BID LOAN INTEREST PERIOD MAXIMUM PRINCIPAL
NO. REQUESTED AMOUNT REQUESTED
-------- --------------- -----------------
1 days/mos $
------- --------------
2 days/mos $
------- --------------
3 days/mos $
------- --------------
The Bid Borrowing requested herein complies with the requirements of the proviso
to Section 2.06(a) of the Credit Agreement.
The Company authorizes the Agent to deliver this Competitive Bid Request to the
Banks. Responses by the Banks must be in substantially the form of Exhibit
2.06(c) to the Credit Agreement and must be received by the Agent by the time
specified in Section 2.06 of the Credit Agreement for submitting Competitive
Bids.
IDEX CORPORATION
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
- 3 -
150
EXHIBIT 2.06(b)(ii)
FORM OF INVITATION FOR COMPETITIVE BIDS
Date:
--------------
Via Facsimile
To the Banks and Designated Bidders listed on Annex A attached hereto:
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement dated as of June 8,
2001 (as amended from time to time, the "Credit Agreement"), among IDEX
Corporation (the "Company"), the several financial institutions from time to
time party to this Agreement (collectively, the "Banks"; individually, a
"Bank"), and Bank of America, N.A., as agent for the Banks (the "Agent").
Capitalized terms used herein have the meanings specified in the Credit
Agreement.
Pursuant to subsection 2.06(b)(ii) of the Credit Agreement, you are
hereby invited to submit offers to make Bid Loans to the Company based on the
following specifications:
1. Date of Bid Loan: _______________, 200_;
2. Aggregate amount of Bid Loan: $___________________;
3. The Bid Loan shall be [LIBOR Bid Loans] [Absolute Rate Bid
Loans]; and
4. Interest Period[s]: ____________________, [________________]
and [________________].
All Competitive Bids must be in the form of Exhibit 2.06(c) to the
Credit Agreement and must be received by the Agent no later than 8:30 a.m.
(Chicago time) on ___________, 200_.
BANK OF AMERICA, N.A., as Agent
By:
-------------------------------
Title:
----------------------------
151
Annex A
TO EXHIBIT 2.06(b)(ii)
List of Banks
Bank of America, N.A., as a Bank
Facsimile: ( ) -
--- --- ----
[Bank]
Facsimile: ( ) -
--- --- ----
[Bank]
Facsimile: ( ) -
--- --- ----
[Bank]
Facsimile: ( ) -
--- --- ----
[BANK]
Facsimile: ( ) -
--- --- ----
- 2 -
152
EXHIBIT 2.06(c)
FORM OF COMPETITIVE BID
Date:
------------
To: Bank of America, N.A., as Agent
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement, dated as of June 8,
2001 (as amended, restated, extended, supplemented or otherwise modified in
writing from time to time, the "Credit Agreement"; the terms defined therein
being used herein as therein defined), among IDEX Corporation, a Delaware
corporation (the "Borrower"), the lenders from time to time party thereto (the
"Banks"), and Bank of America, N.A., as agent for the Banks.
In response to the Bid Request dated _____________________, ____, the
undersigned offers to make the following Bid Loan(s):
1. Borrowing date: _____________________ (a Business Day).
2. In an aggregate amount not exceeding $______________ (with any
sublimits set forth below).
3. Comprised of:
ABSOLUTE RATE
INTEREST PERIOD BID OR LIBOR
BID LOAN NO. OFFERED BID MAXIMUM MARGIN BID*
------------ --------------- ----------- --------------
1 days/mos $ (- +) %
------- ---------- -------
2 days/mos $ (- +) %
------- ---------- -------
3 days/mos $ (- +) %
------- ---------- -------
----------
* Expressed in multiples of 1/1000th of a basis point.
153
Contact Person: Telephone:
------------------- -------------
[LENDER]
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
********************************************************************************
THIS SECTION IS TO BE COMPLETED BY THE BORROWER IF IT WISHES TO ACCEPT ANY
OFFERS CONTAINED IN THIS COMPETITIVE BID:
The offers made above are hereby accepted in the amounts set forth below:
----------------------------------------------------
BID LOAN NO. PRINCIPAL AMOUNT ACCEPTED
------------------ -------------------------------
$
------------------ -------------------------------
$
------------------ -------------------------------
$
------------------ -------------------------------
IDEX CORPORATION
By:
------------------------------
Name:
----------------------------
Title:
---------------------------
Date:
----------------------------
- 2 -
154
EXHIBIT 5.01(d)
FORM OF LEGAL OPINION OF COMPANY'S COUNSEL
, 2001
------- --
Bank of America, N.A., as Agent
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention:
Re: IDEX Corporation
1. The Company is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of Delaware and has
all requisite corporate power and authority to own and operate its properties
and to carry on its business as now conducted. The Company has the corporate
power and authority to execute, deliver and perform its obligations under the
Credit Agreement, and to carry out the transactions contemplated by each
thereof.
2. The execution, delivery and performance of the Credit
Agreement and the Notes (if any) have been duly authorized by all necessary
corporate action on the part of the Company. The Credit Agreement and the Notes
(if any) to which the Company is a party constitute the legally valid and
binding obligation of the Company, enforceable against the Company in accordance
with their terms.
3. Neither the execution and delivery of the Credit Agreement
or the Notes (if any) by the Company, nor the compliance with and performance of
the terms and conditions thereof by the Company on or prior to the date hereof
(A) conflicts with, results in a breach or violation of, or constitutes a
default under, any of the terms, conditions or provisions of (x) the Restated
Certificate of Incorporation or Bylaws of the Company, (y) any term of any
material indenture, loan agreement or other instrument evidencing borrowed
money, or any material order, writ, judgment or decree, in each case known to
us, to which the Company is a party or by which any of the Company's properties
or assets are bound, or (z) any Illinois or United States federal statute, rule
or regulation or the General Corporation Law of Delaware, or (B) results in the
creation of any security interest upon any of the properties or assets of the
Company under any agreement referred to in clause (y) above.
4. No governmental consents, approvals, authorizations,
registrations, declarations or filings are required by the Company in connection
with the due execution, delivery and performance by the Company of the Credit
Agreement or the Notes (if any).
5. To the best of our knowledge, there are no actions, suits or
proceedings pending or threatened against the Company (other than actions, suits
or proceedings disclosed to the Banks in Schedule 6.05 to the Credit Agreement)
with respect to the Credit Agreement, any instrument executed pursuant thereto,
or the transactions contemplated thereby.
155
EXHIBIT 7.02(b)
FORM OF COMPLIANCE CERTIFICATE
The undersigned, being the __________________ of IDEX
Corporation (the "Company"), pursuant to Section 7.02(b) of that certain Credit
Agreement (as amended, restated, supplemented or otherwise modified from time to
time, the "Credit Agreement"; capitalized terms used herein but not otherwise
defined herein have the meanings ascribed to such terms in the Credit Agreement)
dated as of June 8, 2001 by and among the Company, the several financial
institutions from time to time party to the Credit Agreement (collectively, the
"Banks"; individually, a "Bank"), and Bank of America, N.A., as agent for the
Banks (the "Agent"), hereby certifies that:
(i) The Company has complied and is in
compliance with all the terms, covenants and
conditions of the Credit Agreement, except
as set forth below or on Schedule I hereto;
(ii) There exists no Default or Event of Default
under the Credit Agreement, except as set
forth below;
(iii) Except as set forth below, the representations and warranties
contained in Article VI of the Credit Agreement and in the other Loan Documents
are true and correct in all material respects on the date hereof (except to the
extent such representations and warranties expressly refer to an earlier date,
in which case they shall be true and correct as of such earlier date);
(iv) Schedule I attached hereto sets forth
financial data and computations evidencing
compliance (or non-compliance) with the
covenants set forth in Section 8.16 of the
Credit Agreement, all of which data and
computations are calculated in accordance
with the terms and requirements of the
Credit Agreement; and
(v) The current Debt Ratings of the Company are
______ from S&P and ______ from Xxxxx'x.
Described below are the exceptions, if any, to paragraphs (i)
- (iii), listing, in detail, the nature of the condition or event, the period
during which it has existed and the action which the Company has taken, is
taking or proposes to take with respect to each such condition or event:
-------------------------------------------------------
-------------------------------------------------------
-------------------------------------------------------
156
The foregoing certifications, together with the computations
set forth in Schedule I hereto and the financial statements delivered with this
Compliance Certificate in support hereof, are made and delivered this ______ day
of ____________, 200_.
(i) IDEX Corporation
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
- 2 -
157
SCHEDULE I
SECTION 8.16 -- FINANCIAL COVENANTS
SECTION 8.16(a) -- CONSOLIDATED NET WORTH
1. Minimum Consolidated Net Worth as of the end of the applicable
fiscal quarter
(a) $325 million
(b) 50% of the Consolidated Net Worth earned in each
fiscal quarter ending after December 31, 2000 (no
deduction for net losses) $
-----------
(c) 75% of the aggregate increases in Shareholders'
Equity of the Company and its Subsidiaries after the
date of the Credit Agreement from the issuance and
sale of capital stock of the Company (including from
conversion of debt securities) $
-----------
(d) Sum of (a), (b) and (c) $
-----------
2. Actual Consolidated Net Worth as of the end of the applicable
fiscal quarter $
-----------
SECTION 8.16(b) -- INTEREST COVERAGE RATIO
1. Minimum Interest Coverage Ratio for the applicable fiscal
quarter 3.00 to 1.0
2. Actual Interest Coverage Ratio for the applicable fiscal
quarter
(a) EBITDA for the period of the four prior fiscal
quarters ending on the last day of the applicable
fiscal quarter $
-----------
(b) Consolidated Interest Expense $
-----------
(c) Ratio of (a) to (b) to 1.0
----
SECTION 8.16(c) -- LEVERAGE RATIO
1. Maximum Leverage Ratio for the applicable fiscal quarter 3.00 to 1.0
2. Actual Leverage Ratio for the applicable fiscal quarter
(a) Consolidated Debt $
-----------
(b) EBITDA for the period of the four fiscal quarters
ending on the last day of the applicable fiscal
quarter $
-----------
(c) Ratio of (a) to (b) to 1.0
----
- 3 -
158
EXHIBIT 11.08
FORM OF ASSIGNMENT AND ASSUMPTION AGREEMENT
This Assignment and Assumption Agreement (this "Assignment") is
dated as of the Effective Date set forth below and is entered into by and
between _______________ (the "Assignor") and _______________ (the "Assignee").
Capitalized terms used but not defined herein shall have the meanings given to
them in the Credit Agreement identified below (the "Credit Agreement"), receipt
of a copy of which is hereby acknowledged by the Assignee. The Standard Terms
and Conditions set forth in Annex 1 attached hereto are hereby agreed to and
incorporated herein by reference and made a part of this Assignment as if set
forth herein in full.
For an agreed consideration, the Assignor hereby irrevocably
sells and assigns to the Assignee, and the Assignee hereby irrevocably purchases
and assumes from the Assignor, subject to and in accordance with the Standard
Terms and Conditions and the Credit Agreement, as of the Effective Date inserted
by the Agent as contemplated below, the interest in and to all of the Assignor's
rights and obligations under the Credit Agreement and any other documents or
instruments delivered pursuant thereto that represents the amount and percentage
interest identified below of all of the Assignor's outstanding rights and
obligations under the respective facilities identified below (including, to the
extent included in any such facilities, Letters of Credit) (the "Assigned
Interest"). Such sale and assignment is without recourse to the Assignor and,
except as expressly provided in this Assignment, without representation or
warranty by the Assignor.
1. Assignor:
------------------------------
2. Assignee: [and is an Affiliate of the
------------------------------
Assignor or another Bank]
3. Borrower:
-------------------------------
4. Agent: , as the agent under the Credit
----------------------
Agreement
5. Credit Agreement: The Credit Agreement, dated as of June 8, 2001,
among IDEX Corporation, the Banks parties thereto,
and Bank of America, N.A., as Agent.
159
6. Assigned Interest:
------------------------------------------------------------------------------------
Aggregate
Amount of Amount of Percentage
Commitment/Loans Commitment/Loans Assigned of
Facility Assigned For all Banks Assigned(6) Commitment/Loan(7)
----------------- ---------------- ---------------- ------------------
Revolving Credit
Commitment $ $ %
--------------- --------------- -------------
$ $ %
------------ --------------- --------------- -------------
$ $ %
------------ --------------- --------------- -------------
Effective Date: __________________, 20__ [TO BE INSERTED BY AGENT AND WHICH
SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER
THEREFOR.]
The terms set forth in this Assignment are hereby agreed to:
ASSIGNOR
[NAME OF ASSIGNOR]
By:
--------------------------
Title:
ASSIGNEE
[NAME OF ASSIGNEE]
By:
--------------------------
Title:
Consented to and Accepted:
BANK OF AMERICA, N.A., as Agent
By:
--------------------------
Title:
Consented to and Accepted:
IDEX CORPORATION
By:
--------------------------
Title:
----------
(6) Commitments assigned shall be in $5,000,000 minimum.
(7) Set forth to at least 9 decimals, as a percentage of the Commitment/Loans
of all Banks thereunder.
- 2 -
160
ANNEX 1 TO ASSIGNMENT AND ASSUMPTION AGREEMENT
RE: Credit Agreement, dated as of June 8, 2001, among IDEX Corporation, the
Banks parties thereto, and Bank of America, N.A., as Agent
STANDARD TERMS AND CONDITIONS FOR ASSIGNMENT
AND ASSUMPTION AGREEMENT
1. Representations and Warranties.
1.1. Assignor. The Assignor (a) represents and warrants that (i)
it is the legal and beneficial owner of the Assigned Interest, (ii) the Assigned
Interest is free and clear of any lien, encumbrance or other adverse claim and
(iii) it has full power and authority, and has taken all action necessary, to
execute and deliver this Assignment and to consummate the transactions
contemplated hereby; and (b) assumes no responsibility with respect to (i) any
statements, warranties or representations made in or in connection with any
Credit Document, (ii) the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Credit Agreement or any other
instrument or document delivered pursuant thereto, other than this Assignment
(herein collectively the "Credit Documents"), (iii) the financial condition of
the Company, any of its Subsidiaries or Affiliates or any other Person obligated
in respect of any Credit Document or (iv) the performance or observance by the
Company, any of its Subsidiaries or Affiliates or any other Person of any of
their respective obligations under any Credit Document.
1.2. Assignee. The Assignee (a) represents and warrants that (i)
it has full power and authority, and has taken all action necessary, to execute
and deliver this Assignment and to consummate the transactions contemplated
hereby and to become a Bank under the Credit Agreement, (ii) it meets all
requirements of an Eligible Assignee under the Credit Agreement, (iii) from and
after the Effective Date, it shall be bound by the provisions of the Credit
Agreement and, to the extent of the Assigned Interest, shall have the
obligations of a Bank thereunder, (iv) it has received a copy of the Credit
Agreement, together with copies of the most recent financial statements
delivered pursuant to Section 7.01 thereof, as applicable, and such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into this Assignment and to purchase the Assigned
Interest on the basis of which it has made such analysis and decision, and (v)
if it is a Foreign Lender, attached hereto is any documentation required to be
delivered by it pursuant to the terms of the Credit Agreement, duly completed
and executed by the Assignee; and (b) agrees that (i) it will, independently and
without reliance on the Agent, the Assignor or any other Bank, and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under the Credit
Documents, and (ii) it will perform in accordance with their terms all of the
obligations which by the terms of the Credit Documents are required to be
performed by it as a Bank.
1.3 Assignee's Address for Notices, etc. Attached hereto as
Schedule 1 is all contact information, address, account and other administrative
information relating to the Assignee.
- 3 -
161
2. Payments. From and after the Effective Date, the Agent shall
make all payments in respect of the Assigned Interest (including payments of
principal, interest, fees and other amounts) to the Assignee whether such
amounts have accrued prior to or on or after the Effective Date. The Assignor
and the Assignee shall make all appropriate adjustments in payments by the Agent
for periods prior to the Effective Date or with respect to the making of this
assignment directly between themselves.
3. General Provisions. This Assignment shall be binding upon,
and inure to the benefit of, the parties hereto and their respective successors
and assigns. This Assignment may be executed in any number of counterparts,
which together shall constitute one instrument. Delivery of an executed
counterpart of a signature page of this Assignment by telecopy shall be
effective as delivery of a manually executed counterpart of this Assignment.
This Assignment shall be governed by, and construed in accordance with, the law
of the State of Illinois.
- 4 -
162
SCHEDULE 1 TO ASSIGNMENT AND ASSUMPTION AGREEMENT
ADMINISTRATIVE DETAILS
(Assignee to list names of credit contacts, addresses, phone and facsimile
numbers, electronic mail addresses and account and payment information)
- 5 -
163
EXHIBIT 11.09
FORM OF DESIGNATION AGREEMENT
Dated ______________, 200_
Reference is made to that certain Credit Agreement dated as of
June 8, 2001 (the "Credit Agreement") among IDEX Corporation, a Delaware
corporation (the Company"), the several financial institutions from time to time
party to the Credit Agreement (collectively, the "Banks"; individually, a
"Bank"), and Bank of America, N.A., as agent for the Banks (the "Agent"). Terms
defined in the Credit Agreement are used herein with the same meaning.
________________ (the "Designator") and ______________ the
("Designee") agree as follows:
1. The Designator hereby designates the Designee, and the
Designee hereby accepts such designation, to have a right to make Bid Loans
pursuant to Section 2.06 of the Credit Agreement.
2. The Designator makes no representation or warranty and
assumes no responsibility with respect to (i) any statements, warranties or
representations made in or in connection with the Credit Agreement or the
execution, legality, validity, enforceability, genuineness, sufficiency or value
of the Credit Agreement or any other instrument or document furnished pursuant
thereto or (ii) the financial condition of the Company or the performance or
observance by the Borrower of any of its obligations under the Credit Agreement
or any other instrument or document furnished pursuant thereto.
3. The Designee (i) confirms that it has received a copy of
the Credit Agreement, together with copies of the financial statements referred
to in Section 6.11 thereof and such other documents and information as it has
deemed appropriate to make its own credit analysis and decision to enter into
this Designation Agreement; (ii) agrees that it will, independently and without
reliance upon the Agent, the Designator or any other Bank and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under the Credit
Agreement; (iii) confirms that it is an entity qualified to be a Designated
Bidder; (iv) appoints and authorizes the Agent to take such action as agent on
its behalf and to exercise such powers under the Credit Agreement as are
delegated to the Agent by the terms thereof, together with such powers as are
reasonably incidental thereto; (v) agrees that it will perform in accordance
with their terms all of the obligations which by the terms of the Credit
Agreement are required to be performed by it as a Designated Bidder; and (vi)
specifies as its Lending Office with respect to Bid Loans (and address for
notices) the offices set forth beneath its name on the signature page hereof.
4. Following the execution of this Designation Agreement by
the Designator and its Designee, it will be delivered to the Agent for
acceptance by the Agent. The effective date of this Designation Agreement shall
be the date of acceptance thereof by the Agent (the "Effective Date").
164
5. Upon such acceptance and recording by the Agent, as of the
Effective Date, the Designee shall be a party to the Credit Agreement as a
"Designated Bidder" with a right to make Bid Loans pursuant to Section 2.06 of
the Credit Agreement and the rights and obligations of a Designated Bidder
related thereto.
6. This Designation Agreement shall be governed by, and
construed in accordance with, the laws of the State of Illinois.
IN WITNESS WHEREOF, the parties hereto have caused this
Designation Agreement to be executed by their respective officers thereunto duly
authorized, as of the date first above written.
[NAME OF DESIGNATOR]
By:
-----------------------------------
Title:
[NAME OF DESIGNEE]
By:
-----------------------------------
Title:
Lending Office (and
address for notices):
[Address]
Accepted [as of] the ___ day
of ____________, 200_
BANK OF AMERICA, N.A.
By:
------------------------
Title:
---------------------
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