exv4w0



 








Exhibit (4.0)




Promissory Note dated May 1, 2005 between Badger Meter, Inc. and the M&I Marshall & Ilsley Bank relating to

Badger Meter, Inc.’s promissory note.



M&I MARSHALL & ILSLEY BANK




PROMISSORY NOTE




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	Principal	 	 	Loan Date	 	 	 	Maturity	 	 	 	Loan No.	 	 	 	Call / Coll	 	 	 	Account	 	 	 	Officer	 	 	 	Initials	 	 
	 	$25,000,000.00
	 	 	 	05-01-2005	 	 	 	 	04-30-2006	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 









References in the shaded area are for Lender’s use only and do not limit the applicability of this document to any particular loan or item.
Any item above containing “***” has been omitted due to text length limitations.






	 	 	 	 	 	 	 
	Borrower:

	 	Badger Meter, Inc.
	 	Lender:
	 	M&I Marshall & Ilsley Bank
	 

	 	4545 W. Brown Deer Rd.
	 	 	 	SE Wisconsin Region Commercial Lending
	 

	 	Milwaukee, WI 53223-2413
	 	 	 	770 North Water Street
	 

	 	 	 	 	 	Milwaukee, WI 53202






	 	 	 	 	 
	 
	 
	 	 	 	 
	Principal Amount: $25,000,000.00

	 	Initial Rate: 3.839%
	 	Date of Note: May 1, 2005
	 





PROMISE TO PAY. Badger Meter, Inc. (“Borrower”) promises to pay to M&I Marshall & Ilsley Bank
(“Lender”), or order, in lawful money of the United States of America, the principal amount of
Twenty-Five Million & 00/100 Dollars ($25,000,000.00) or so much as may be outstanding, together
with interest on the unpaid outstanding principal balance of each advance. Interest shall be
calculated from the date of each advance until repayment of each advance.



PAYMENT. Borrower will pay this loan in one payment of all outstanding principal plus all accrued
unpaid interest on April 30, 2006. In addition, Borrower will pay regular monthly payments of all
accrued unpaid interest due as of each payment date, beginning May 30, 2005, with all subsequent
interest payments to be due on the same day of each month after that. Unless otherwise agreed or
required by applicable law, payments will be applied to Accrued Interest, Credit Life Premiums,
Principal, Late Charges, and Escrow. The annual interest rate for this Note is computed on a
365/360 basis; that is, by applying the ratio of the annual interest rate over a year of 360 days,
multiplied by the outstanding principal balance, multiplied by the actual number of days the
principal balance is outstanding. Borrower will pay Lender at Lender’s address shown above or at
such other place as Lender may designate in writing.



VARIABLE INTEREST RATE. The interest rate on this Note is subject to change from time to time
based on changes in an independent index which is the British Bankers Association (BBA) LIBOR and
reported by a major news service selected by Lender (such as Reuters, Bloomberg or Moneyline
Telerate). If BBA LIBOR for the one month period is not provided or reported on the first day of a
month because, for example, it is a weekend or holiday or for another reason, the One Month Libor
Rate shall be established as of the preceding day on which a BBA LIBOR rate is provided for the one
month period and reported by the selected news service (the “Index”). The Index is not necessarily
the lowest rate charged by Lender on its loans. If the Index becomes unavailable during the term
of this loan, Lender may designate a substitute index after notice to Borrower. Lender will tell
Borrower the current Index rate upon Borrower’s request. The interest rate change will not occur
more often than each first day of each calendar month. Borrower understands that Lender may make
loans based on other rates as well. The Index currently is 3.089% per annum. The interest rate to
be applied to the unpaid principal balance of the Note will be at a rate of 0.750 percentage points
over the Index, resulting in an initial rate of 3.839% per annum. NOTICE: Under no circumstances
will the interest rate on this Note be more than the maximum rate allowed by applicable law.



PREPAYMENT. Borrower may pay without penalty all or a portion of the amount owed earlier than it
is due. Early payment will not, unless agreed to by Lender in writing, relieve Borrower of
Borrower’s obligation to continue to make payments of accrued unpaid interest. Rather, early
payments will reduce the principal balance due. Borrower agrees not to send Lender payments marked
“paid in full”, “without recourse”, or similar language. If Borrower sends such a payment, Lender
may accept it without losing any of Lender’s rights under this Note, and Borrower will remain
obligated to pay any further amount owed to Lender. All written communications concerning disputed
amounts, including any check or other payment instrument that indicates that the payment
constitutes “payment in full” of the amount owed or that is tendered with other conditions or
limitations or as full satisfaction of a disputed amount must be mailed or delivered to: M&I
Marshall & Ilsley Bank, P.O. Box 3114 Milwaukee, WI 53201-3114.



LATE CHARGE. If a payment is 10 days or more late, Borrower will be charged 5.000% of the unpaid
portion of the regularly scheduled payment.



INTEREST AFTER DEFAULT. Upon default, including failure to pay upon final maturity, Lender, at its
option, may, if permitted under applicable law, increase the interest rate on this Note 3.750
percentage points over the Index. The interest rate will not exceed the maximum rate permitted by
applicable law.



DEFAULT. Each of the following shall constitute an event of default (“Event of Default”) under
this Note:




Payment Default. Borrower fails to make any payment when due under this Note.




Other Defaults. Borrower fails to comply with or to perform any other term, obligation,
covenant or condition contained in this Note or in any of the related documents or to comply
with or to perform any term, obligation, covenant or condition contained in any other agreement
between Lender and Borrower.




 









 








PROMISSORY NOTE

(Continued)




			
	 	 	 
	Loan No:
	 	Page 2







Default in Favor of Third Parties. Borrower or any Grantor defaults under any loan, extension
of credit, security agreement, purchase or sales agreement, or any other agreement, in favor of
any other creditor or person that may materially affect any of Borrower’s property or Borrower’s
ability to repay this Note or perform Borrower’s obligations under this Note or any of the
related documents.




False Statements. Any warranty, representation or statement made or furnished to Lender by
Borrower or on Borrower’s behalf under this Note or the related documents is false or misleading
in any material respect, either now or at the time made or furnished or becomes false or
misleading at any time thereafter.




Insolvency. The dissolution or termination of Borrower’s existence as a going business, the
insolvency of Borrower, the appointment of a receiver for any part of Borrower’s property, any
assignment for the benefit of creditors, any type of creditor workout, or the commencement of
any proceeding under any bankruptcy or insolvency laws by or against Borrower.




Creditor or Forfeiture Proceedings. Commencement of foreclosure or forfeiture proceedings,
whether by judicial proceeding, self-help, repossession or any other method, by any creditor of
Borrower or by any government agency against any collateral securing the loan. This includes a
garnishment of any of Borrower’s accounts, including deposit accounts, with Lender. However,
this Event of Default shall not apply if there is a good faith dispute by Borrower as to the
validity or reasonableness of the claim which is the basis of the creditor or forfeiture
proceeding and if Borrower gives Lender written notice of the creditor or forfeiture proceeding
and deposits with Lender monies or a surety bond for the creditor or forfeiture proceeding, in
an amount determined by Lender, in its sole discretion, as being an adequate reserve or bond for
the dispute.




Events Affecting Guarantor. Any of the preceding events occurs with respect to any guarantor,
endorser, surety, or accommodation party of any of the indebtedness or any guarantor, endorser,
surety, or accommodation party dies or becomes incompetent, or revokes or disputes the validity
of, or liability under, any guaranty of the indebtedness evidenced by this Note. In the event
of a death, Lender, at its option, may, but shall not be required to, permit the guarantor’s
estate to assume unconditionally the obligations arising under the guaranty in a manner
satisfactory to Lender, and, in doing so, cure any Event of Default.




Change in Ownership. Any change in ownership of twenty-five percent (25%) or more of the common
stock of Borrower.




Adverse Change. A material adverse change occurs in Borrower’s financial condition, or Lender
believes the prospect of payment or performance of this Note is impaired.




Insecurity. Lender in good faith believes itself insecure.



LENDER’S RIGHTS. Upon default, Lender may declare the entire unpaid principal balance on this Note
and all accrued unpaid interest immediately due, and then Borrower will pay that amount.



ATTORNEY’S FEES; EXPENSES. Lender may hire or pay someone else to help collect this Note if
Borrower does not pay. Borrower will pay Lender that amount. This includes, subject to any limits
under applicable law, Lender’s attorney’s fees and Lender’s legal expenses, whether or not there is
a lawsuit, including attorney’s fees, expenses for bankruptcy proceedings (including efforts to
modify or vacate any automatic stay or injunction), and appeals. If not prohibited by applicable
law, Borrower also will pay any court costs, in addition to all other sums provided by law.



JURY WAIVER. Lender and Borrower hereby waive the right to any jury trial in any action,
proceeding, or counterclaim brought by either Lender or Borrower against the other.



GOVERNING LAW. This Note will be governed by federal law applicable to Lender and, to the extent
not preempted by federal law, the laws of the State of Wisconsin without regard to its conflicts of
law provisions. This Note has been accepted by Lender in the State of Wisconsin.



CHOICE OF VENUE. If there is a lawsuit, Borrower agrees upon Lender’s request to submit to the
jurisdiction of the courts of Milwaukee County, State of Wisconsin.



DISHONORED ITEM FEE. Borrower will pay a fee to Lender of $15.00 if Borrower makes a payment on
Borrower’s loan and the check or preauthorized charge with which Borrower pays is later dishonored.



RIGHT OF SETOFF. To the extent permitted by applicable law, Lender reserves a right of setoff in
all Borrower’s accounts with Lender (whether checking, savings, or some other account). This
includes all accounts Borrower holds jointly with someone else and all accounts Borrower may open
in the future. However, this does not include any IRA or Keogh accounts, or any trust accounts for
which setoff would be prohibited by law. Borrower authorizes Lender, to the extent permitted by
applicable law, to charge or setoff all sums owing on the debt against any and all such accounts,
and, at Lender’s option, to administratively freeze all such accounts to allow Lender to protect
Lender’s charge and setoff rights provided in this paragraph.



LINE OF CREDIT. This Note evidences a revolving line of credit. Advances under this Note, as well
as directions for payment from Borrower’s accounts, may be requested orally or in writing by
Borrower or by an authorized person. Lender may, but need not, require that all oral requests be
confirmed in writing. Borrower agrees to be liable for all sums either: (A) advanced in
accordance with the instructions of an authorized person, or (B) credited to any of Borrower’s
accounts with Lender. The unpaid principal balance owing on this Note at any time may be evidenced
by endorsements on this Note or by Lender’s internal records, including daily computer print-outs.
Lender will have no obligation to advance funds under this Note if: (A) Borrower or any guarantor
is in default under the terms of this Note or any agreement that Borrower or any guarantor has with
Lender, including any agreement made in connection with the signing of this Note; (B) Borrower or
any guarantor ceases doing business or is insolvent; (C) any guarantor seeks, claims or otherwise
attempts to limit, modify or revoke such guarantor’s guarantee of this Note or any other loan with
Lender; (D) Borrower has applied funds provided pursuant to this Note for purposes other than
those authorized by Lender; or (E) Lender in good faith believes itself insecure.



 









 





PROMISSORY NOTE

(Continued)




			
	 	 	 
	Loan No:
	 	Page 3






SUCCESSOR INTERESTS. The terms of this Note shall be binding upon Borrower, and upon Borrower’s
heirs, personal representatives, successors and assigns, and shall inure to the benefit of Lender
and its successors and assigns.



GENERAL PROVISIONS. This Note benefits Lender and its successors and assigns, and binds Borrower
and Borrower’s heirs, successors, assigns, and representatives. Lender may delay or forgo
enforcing any of its rights or remedies under this Note without losing them. Borrower and any
other person who signs, guarantees or endorses this Note, to the extent allowed by law, waive
presentment, demand for payment, and notice of dishonor. Upon any change in the terms of this
Note, and unless otherwise expressly stated in writing, no party who signs this Note, whether as
maker, guarantor, accommodation maker or endorser, shall be released from liability. All such
parties agree that Lender may renew or extend (repeatedly and for any length of time) this loan or
release any party or guarantor or collateral; or impair, fail to realize upon or perfect Lender’s
security interest in the collateral; and take any other action deemed necessary by Lender without
the consent of or notice to anyone. All such parties also agree that Lender may modify this loan
without the consent of or notice to anyone other than the party with whom the modification is made.
The obligations under this Note are joint and several.



PRIOR TO SIGNING THIS NOTE, BORROWER READ AND UNDERSTOOD ALL THE PROVISIONS OF THIS NOTE, INCLUDING
THE VARIABLE INTEREST RATE PROVISIONS. BORROWER AGREES TO THE TERMS OF THE NOTE.



BORROWER ACKNOWLEDGES RECEIPT OF A COMPLETED COPY OF THIS PROMISSORY NOTE.




BORROWER:




BADGER METER, INC.




	 	 	 	 	 
	By:

	 	/s/ Richard A. Meeusen
	 	 
	 

	 	 	 	 
	 

	 	Chairman, President and Chief Executive Officer	 	 
	 
	 	 	 	 
	By:

	 	/s/ Richard E. Johnson	 	 
	 

	 	 	 	 
	 

	 	Senior Vice President — Finance, Chief Financial Officer and Treasurer