EXHIBIT 10.80
FIRST SUPPLEMENTAL INDENTURE (the "First Supplement"), dated as of
September 17, 2001, is entered into by and among AMETEK, Inc., a Delaware
corporation (the "Company"), each of the undersigned subsidiaries of the Company
(each a "Subsidiary Guarantor" and collectively the "Subsidiary Guarantors"),
and CHASE MANHATTAN TRUST COMPANY, NATIONAL ASSOCIATION, as Trustee (the
"Trustee").
WITNESSETH:
WHEREAS, the Company and the Trustee have executed and delivered an
Indenture, dated as of July 17, 1998, (the "Indenture"), providing for the
issuance by the Company of its 7.20% Senior Notes due 2008;
WHEREAS, the Company has entered into a Credit Agreement, dated as of
September 17, 2001 with various financial institutions from time to time party
thereto (the "Banks"), First Union National Bank and PNC Bank N.A., as
syndication agents (each a "Syndication Agent" and, collectively, the
"Syndication Agents"), Deutsche Bank, as documentation agent (the "Documentation
Agent"), and The Chase Manhattan Bank, as administrative agent (in such
capacity, and together with its successors in such capacity, the "Administrative
Agent") for the Banks (as amended, restated, modified or supplemented from time
to time, the "Credit Agreement") and, in connection therewith, the Subsidiary
Guarantors have entered into guarantees (the "Bank Guarantees") of the Credit
Agreement;
WHEREAS, Section 4.13 of the Indenture provides that under certain
circumstances the Subsidiary Guarantors shall execute and deliver to the Trustee
a supplemental indenture pursuant to which the Subsidiary Guarantors shall
unconditionally guarantee all of the Company's Obligations under the Securities
(as defined in the Indenture) on the terms and conditions set forth herein (the
"Guarantee");
WHEREAS, pursuant to Section 9.01(6) of the Indenture, the Company, the
Subsidiary Guarantors and the Trustee may enter into this First Supplement
without the consent of any Holder; and
WHEREAS, the execution and delivery of this First Supplement have been duly
authorized by a Board Resolution of the Boards of Directors or equivalent bodies
of the Company and the Subsidiary Guarantors;
NOW, THEREFORE, in consideration of the above premises, each of the parties
hereto agrees, for the benefit of the others and for the equal and proportionate
benefit of the Holders of the Securities, as follows:
ARTICLE ONE
SUBSIDIARY GUARANTIES
Section 1.01. Guaranties.
(a) Each Subsidiary Guarantor hereby unconditionally and irrevocably
guarantees, jointly and severally, to each Holder and to the Trustee the
full and punctual payment of principal of and interest on the Securities
when due, whether at maturity, by acceleration, by redemption or otherwise,
and all other monetary obligations of the Company under the Indenture and
the Securities (all the foregoing being hereinafter collectively called the
"Guaranteed Obligations").
(b) Each Subsidiary Guarantor waives presentation to, demand of,
payment from and protest to the Company of any of the Guaranteed
Obligations and also waives notice of protest for nonpayment. Each
Subsidiary Guarantor waives notice of any default under the Securities or
the Guaranteed Obligations. The obligations of each Subsidiary Guarantor
hereunder shall not be affected by (a) the failure of any Holder or the
Trustee to assert any claim or demand or to enforce any right or remedy
against the Company or any other Person under the Indenture, the Securities
or any other agreement or otherwise; (b) any extension or renewal of any
thereof; (c) any rescission, waiver, amendment or modification of any of
the terms or provisions of the Indenture, the Securities or any other
agreement; (d) the release of any security held by any Holder or the
Trustee for the Guaranteed Obligations or any of them; or (e) the failure
of any Holder or the Trustee to exercise any right or remedy against any
other guarantor of or surety for the Guaranteed Obligations.
(c) Each Subsidiary Guarantor further agrees that this Guarantee
constitutes a guarantee of payment when due (and not a guarantee of
collection) and waives any right to require that any resort be had by any
Holder or the Trustee to any security held for payment of the Guaranteed
Obligations.
(d) Except as expressly set forth in Sections 102 and 106 of this
First Supplement and Article Eight of the Indenture, the obligations of
each Subsidiary Guarantor hereunder shall not be subject to any setoff,
reduction, limitation, impairment or termination for any reason, including
any claim of waiver, release, surrender, alteration or compromise, and
shall not be subject to any defense of setoff, counterclaim, recoupment or
termination whatsoever or by reason of the invalidity, illegality or
unenforceability of the Guaranteed Obligations or otherwise. Without
limiting the generality of the foregoing, the obligations of each
Subsidiary Guarantor herein shall not be discharged or impaired or
otherwise affected by the failure of any Holder or the Trustee to assert
any claim or demand or to enforce any remedy under the Indenture, the
Securities or any other agreement, by any waiver or modification of any
thereof, by any default, failure or delay, willful or otherwise, in the
performance of the obligations, or by any other act or thing or omission or
delay to do any other act or thing which may or might in any manner or to
any extent vary the risk of such Subsidiary Guarantor or would otherwise
operate as a discharge of such Subsidiary Guarantor as a matter of law or
equity.
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(e) Each Subsidiary Guarantor further agrees that its obligations
under this Guarantee shall continue to be effective or be reinstated, as
the case may be, if at any time payment, or any part thereof, of principal
of or interest on any Guaranteed Obligation is rescinded or must otherwise
be restored by any Holder or the Trustee upon the bankruptcy or
reorganization of the Company or otherwise.
(f) In furtherance of the foregoing and not in limitation of any other
right which any Holder or the Trustee has at law or in equity against any
Subsidiary Guarantor by virtue hereof, upon the failure of the Company to
pay the principal of or interest on any Guaranteed Obligation when and as
the same shall become due, whether at maturity, by acceleration, by
redemption or otherwise, or to perform any other Guaranteed Obligation,
each Subsidiary Guarantor hereby promises to and will, upon receipt of
written demand by the Trustee, forthwith pay, or cause to be paid, in cash,
to the Holders or the Trustee an amount equal to the sum of (i) the unpaid
amount of such Guaranteed Obligations, (ii) accrued and unpaid interest on
such Guaranteed Obligations (but only to the extent not prohibited by law)
and (iii) all other monetary Guaranteed Obligations of the Company to the
Holders and the Trustee.
(g) Each Subsidiary Guarantor further agrees that, as between it, on
the one hand, and the Holders and the Trustee, on the other hand, (x) the
maturity of the Guaranteed Obligations may be accelerated as provided in
Article Six of the Indenture for the purposes of this Guarantee provided by
such Subsidiary Guarantor, notwithstanding any stay, injunction or other
prohibition preventing such acceleration in respect of the Guaranteed
Obligations, and (y) in the event of any declaration of acceleration of
such Guaranteed Obligations as provided in Article Six of the Indenture,
such Guaranteed Obligations (whether or not due and payable) shall
forthwith become due and payable by such Subsidiary Guarantor for the
purposes of this Guarantee.
(h) Each Subsidiary Guarantor also agrees to pay any and all costs and
expenses (including reasonable attorneys' fees) incurred by the Trustee or
any Holder in enforcing any rights under this Guarantee.
Section 1.02. Limitation on Liability. Any term or provision of the
Indenture to the contrary notwithstanding, the maximum aggregate amount of the
Guaranteed Obligations guaranteed hereunder by any Subsidiary Guarantor shall
not exceed the maximum amount that will, after giving effect to all other
contingent and fixed liabilities of such Subsidiary Guarantor (including,
without limitation, any guarantees under the Credit Agreement) and after giving
effect to any collections from or payments made by or on behalf of any other
Subsidiary Guarantor in respect of the obligations of such other Subsidiary
Guarantor under its Guarantee or pursuant to its contribution obligations under
the Indenture, result in the obligations of such Subsidiary Guarantor under this
Guarantee not constituting a fraudulent conveyance or fraudulent transfer under
any bankruptcy, insolvency, fraudulent conveyance or similar laws affecting the
rights of creditors generally under federal or state law.
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Section 1.03. Successors and Assigns. This Article One shall be binding
upon each Subsidiary Guarantor and its successors and assigns and shall inure to
the benefit of the successors and assigns of the Trustee and the Holders and, in
the event of any transfer or assignment of rights by any Holder or the Trustee,
the rights and privileges conferred upon that party in the Indenture and in the
Securities shall automatically extend to and be vested in such transferee or
assignee, all subject to the terms and conditions of the Indenture.
Section 1.04. No Waiver. Neither a failure nor a delay on the part of
either the Trustee or the Holders in exercising any right, power or privilege
under this Article One shall operate as a waiver thereof, nor shall a single or
partial exercise thereof preclude any other or further exercise of any right,
power or privilege. The rights, remedies and benefits of the Trustee and the
Holders herein expressly specified are cumulative and not exclusive of any other
rights, remedies or benefits which either may have under this Article One at
law, in equity, by statute or otherwise.
Section 1.05. Modification. No modification, amendment or waiver of any
provision of this Article One, nor the consent to any departure by any
Subsidiary Guarantor therefrom, shall in any event be effective unless the same
shall be in writing and signed by the Trustee, and then such waiver or consent
shall be effective only in the specific instance and for the purpose for which
given. No notice to or demand on any Subsidiary Guarantor in any case shall
entitle such Subsidiary Guarantor to any other or further notice or demand in
the same, similar or other circumstances.
Section 1.06. Release or Discharge of Subsidiary Guarantor. Upon (i) the
sale or other disposition (including by way of consolidation or merger or
otherwise) of a Subsidiary Guarantor or the sale or disposition of all or
substantially all the assets of such Subsidiary Guarantor (in each case other
than to the Company or an Affiliate of the Company and whether or not an
Affiliate of the Subsidiary Guarantor) in compliance with the Indenture
(including any applicable provisions of Article Five thereof), or (ii) the
termination, performance or release of such Subsidiary Guarantor's liability
under the Bank Guaranties, such Subsidiary Guarantor shall be deemed released
from all Guaranteed Obligations under the Indenture without any further action
required on the part of the Trustee or any Holder and its Guarantee and such
Guarantee shall terminate; provided, however, that such termination shall occur
only to the extent that all obligations of such Subsidiary Guarantor under the
Credit Agreement and the Bank Guaranties shall also terminate upon such release,
sale or transfer. In the event and to the extent that the Company is discharged
from any of its obligations under the Indenture pursuant to the provisions of
Article Eight thereof, the Subsidiary Guarantors shall also be so discharged. At
the request of the Company, the Trustee shall execute and deliver any
appropriate instrument evidencing such release or discharge.
Section 1.07. Right of Contribution. Each Subsidiary Guarantor hereby
agrees that to the extent that a Subsidiary Guarantor shall have paid more than
its pro rata share (based on the net worth of each Subsidiary Guarantor) of any
payment made hereunder, such Subsidiary Guarantor shall be entitled to seek and
receive contribution from and against any other Subsidiary Guarantor hereunder
who has not paid its pro rata share of such payment. Each Subsidiary Guarantor's
right of contribution shall be subject to the terms and conditions of
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Section 1.08 of this First Supplement. The provisions of this Section 1.07 shall
in no respect limit the Guaranteed Obligations and liabilities of any Subsidiary
Guarantor to the Trustee and the Holders and each Subsidiary Guarantor shall
remain liable to the Trustee and the Holders for the full amount guaranteed by
such Subsidiary Guarantor hereunder.
Section 1.08. No Subrogation. Notwithstanding any payment or payments made
by any of the Subsidiary Guarantors hereunder, no Subsidiary Guarantor shall be
entitled to be subrogated to any of the rights of the Trustee or any Holders
against the Company or any other Subsidiary Guarantor or any collateral security
or guarantee or right of offset held by the Trustee or any Holder for the
payment of the Guaranteed Obligations, nor shall any Subsidiary Guarantor seek
or be entitled to seek any contribution or reimbursement from the Company or any
other Subsidiary Guarantor in respect of payments made by such Subsidiary
Guarantor hereunder, until all amounts owing to the Trustee and the Holders by
the Company are paid in full. If any amount shall be paid to any Subsidiary
Guarantor on account of such subrogation rights at any time when all of the
Guaranteed Obligations shall not have been paid in full, such amount shall be
held by such Subsidiary Guarantor in trust for the Trustee and the Holders.
Section 1.09 Additional Subsidiary Guarantors. If, after the date hereof,
any Subsidiary of the Company is required, pursuant to the Indenture, to become
a Subsidiary Guarantor, it may do so by executing a separate counterpart of this
First Supplement and delivering the same to the Trustee, it being agreed that
upon doing so such Subsidiary shall be a Subsidiary Guarantor for all purposes
hereof.
ARTICLE TWO
MISCELLANEOUS
Section 2.01. Defined Terms; Continuing Effectiveness. Except as otherwise
expressly provided or unless the context otherwise requires, all terms used
herein which are defined in the Indenture shall have the meanings assigned to
them in the Indenture. As supplemented hereby, the Indenture and the Securities
are in all respects ratified and confirmed and all the terms and provisions
thereof shall remain in full force and effect.
Section 2.02. Effective Date. This First Supplement shall be effective as
of the close of business on the date hereof.
Section 2.03 Notices. All notices, requests, demands or other
communications pursuant hereto shall be deemed to have been duly given or made
when delivered to the Person to which such notice, request, demand or other
communication is required or permitted to be given or made under this Guarantee,
addressed to such party (i) in the case of the Trustee or the Company, as
provided in the Indenture and (ii) in the case of any Subsidiary Guarantor, at
its address set forth opposite its signature below; or in any case at such other
address as any of the Persons listed above may hereafter notify the others in
writing.
Section 2.04. Headings. The Section headings herein are for convenience
only and shall not affect the construction hereof.
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Section 2.05. The Trustee. The Trustee shall not be responsible in any
manner whatsoever for or in respect of the validity or sufficiency of this First
Supplement or for or in respect of the recitals contained herein, all of which
recitals are made solely by the Guaranteeing Subsidiary and the Company.
Section 2.06 No Recourse. In accordance with Section 10.10 of the
Indenture, a director, officer, employee, stockholder or incorporator, as such,
of any Subsidiary Guarantor shall not have any liability for any obligations of
the Company or Subsidiary Guarantor under the Securities, the Indenture or this
First Supplement or for any claim based on, in respect of, or by reason of, such
obligations or their creation. Each Securityholder by accepting a Security
waives and releases all such liability. The waiver and release are part of the
consideration for issuance of the Securities.
Section 2.07. Governing Law. THIS FIRST SUPPLEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE JURISDICTION WHICH GOVERN THE
INDENTURE AND ITS CONSTRUCTION.
Section 2.08. Counterparts. This First Supplement may be executed in any
number of counterparts each of which shall be an original, but such counterparts
shall together constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this First Supplement to
be duly executed and their respective seals to be affixed hereunto and duly
attested all as of the day and year first above written.
AMETEK, Inc.
By: /s/ Xxxxxxx X. Xxxxxxxx
---------------------------------
Title: VP & Treasurer
C/o AMETEK, Inc. AMELON, Inc.
00 Xxxxx Xxxxxx Xxxx
Xxxxx, Xxxxxxxxxxxx 00000
Attention: Chief Financial Officer By: /s/ Xxxxxxx X. Xxxxxxxx
Tel. No. (000) 000-0000 ---------------------------------
Fax. No. (000) 000-0000 Title: Treasurer
C/o AMETEK, Inc. AMETEK Motors Holding, Inc.
00 Xxxxx Xxxxxx Xxxx
Xxxxx, Xxxxxxxxxxxx 00000
Attention: Chief Financial Officer By: /s/ Xxxxxxx X. Xxxxxxxx
Tel. No. (000) 000-0000 ---------------------------------
Fax. No. (000) 000-0000 Title: Treasurer
C/o AMETEK, Inc. EMA CORPORATION
00 Xxxxx Xxxxxx Xxxx
Xxxxx, Xxxxxxxxxxxx 00000
Attention: Chief Financial Officer By: /s/ Xxxxxxx X. Xxxxxxxx
Tel. No. (000) 000-0000 ---------------------------------
Fax. No. (000) 000-0000 Title: Treasurer
C/o AMETEK, Inc. Xxxx Chatillon & Sons, Inc.
00 Xxxxx Xxxxxx Xxxx
Xxxxx, Xxxxxxxxxxxx 00000
Attention: Chief Financial Officer By: /s/ Xxxxxxx X. Xxxxxxxx
Tel. No. (000) 000-0000 ---------------------------------
Fax. No. (000) 000-0000 Title: Treasurer
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C/o AMETEK, Inc. Rotron Incorporated
00 Xxxxx Xxxxxx Xxxx
Xxxxx, Xxxxxxxxxxxx 00000
Attention: Chief Financial Officer By: /s/ Xxxxxxx X. Xxxxxxxx
Tel. No. (000) 000-0000 ---------------------------------
Fax. No. (000) 000-0000 Title: Treasurer
C/o AMETEK, Inc. NCC Holdings, Inc.
00 Xxxxx Xxxxxx Xxxx
Xxxxx, Xxxxxxxxxxxx 00000
Attention: Chief Financial Officer By: /s/ Xxxxxxx X. Xxxxxxxx
Tel. No. (000) 000-0000 ---------------------------------
Fax. No. (000) 000-0000 Title: Treasurer
C/o AMETEK, Inc. AMETEK National Controls Corporation
00 Xxxxx Xxxxxx Xxxx
Xxxxx, Xxxxxxxxxxxx 00000
Attention: Chief Financial Officer By: /s/ Xxxxxxx X. Xxxxxxxx
Tel. No. (000) 000-0000 ---------------------------------
Fax. No. (000) 000-0000 Title: Treasurer
C/o AMETEK, Inc. Controls Holding Corporation
00 Xxxxx Xxxxxx Xxxx
Xxxxx, Xxxxxxxxxxxx 00000
Attention: Chief Financial Officer By: /s/ Xxxxxxx X. Xxxxxxxx
Tel. No. (000) 000-0000 ---------------------------------
Fax. No. (000) 000-0000 Title: Treasurer
C/o AMETEK, Inc. Patriot Sensors & Controls Corporation
00 Xxxxx Xxxxxx Xxxx
Xxxxx, Xxxxxxxxxxxx 00000
Attention: Chief Financial Officer By: /s/ Xxxxxxx X. Xxxxxxxx
Tel. No. (000) 000-0000 ---------------------------------
Fax. No. (000) 000-0000 Title: Treasurer
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C/o AMETEK, Inc. EDAX Inc.
00 Xxxxx Xxxxxx Xxxx
Xxxxx, Xxxxxxxxxxxx 00000
Attention: Chief Financial Officer By: /s/ Xxxxx X. Xxxxxxxxx
Tel. No. (000) 000-0000 ---------------------------------
Fax. No. (000) 000-0000 Title: Treasurer
C/o AMETEK, Inc. TEXSEM Laboratories, Inc.
00 Xxxxx Xxxxxx Xxxx
Xxxxx, Xxxxxxxxxxxx 00000
Attention: Chief Financial Officer By: /s/ Xxxxx X. Xxxxxxxxx
Tel. No. (000) 000-0000 ---------------------------------
Fax. No. (000) 000-0000 Title: Treasurer
CHASE MANHATTAN TRUST COMPANY,
NATIONAL ASSOCIATION
By: /s/ Xxxxxxxxx Xxxxxxxx
---------------------------------
Title: Vice President
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