U.S. $250,000,000
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
dated as of July 3, 1997
(amending and restating the Revolving
Credit Agreement, dated as of
January 29, 1996)
among
KAMAN CORPORATION,
as the Company,
VARIOUS FINANCIAL INSTITUTIONS NAMED HEREIN,
as the Banks,
and
THE BANK OF NOVA SCOTIA
and
FLEET NATIONAL BANK,
as the Co-Administrative Agents
for the Banks
KAMAN CORPORATION
U.S. $250,000,000
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
TABLE OF CONTENTS
Page
ARTICLE I
THE LOANS
Section 1.1. Commitments. . . . . . . . . . . . .. . . . .2
Section 1.2. Mandatory Reduction of Commitments;
Optional Termination or Reduction of
Commitments; Termination of Commitments. . . 4
Section 1.3. Making and Funding Revolving Credit Loans.. .5
Section 1.4. Bid Auction Advances . . . . . .. . . . . . .6
Section 1.5. Letter of Credit Commitment. . .. . . . . . .9
Section 1.6. Renewal or Conversion of Loans; Existing
Revolving Credit Loans. . . . . . . . . . . .10
Section 1.7. Interest . . . . . . . . . . . . . . . . . . 10
Section 1.8. Interest Periods . . . . . . . . . . . . . . 12
Section 1.9. Letters of Credit Issuance Procedures. . . . 12
Section 1.10. Repayments and Prepayments of Principal of
Loans and Letters of Credit; Pro Rata
Treatment; Application of Prepayments . . . .15
Section 1.11. Payments and Computations. . . . . . . . . . 17
Section 1.12. Payments to be Free of Deductions. . . . . . 18
Section 1.13. Fees . . . . . . . . . . . . . . . . . . . . 20
Section 1.14. Use of Proceeds. . . . . . . . . . . . . . . 20
Section 1.15. Illegality . . . . . . . . . . . . . . . . . 21
Section 1.16. Increased Costs; Capital Adequacy;
Suspensions of Eurodollar Loans . . . . . . .21
Section 1.17. Certain Indemnities. . . . . . . . . . . . . 23
Section 1.18. Bank Wires to the Company. . . . . . . . . . 23
Section 1.19. Administrator or Bank Certificate. . . . . . 24
Section 1.20. Interest Limitation. . . . . . . . . . . . . 24
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Page
ARTICLE II
REPRESENTATIONS AND WARRANTIES
Section 2.1. Due Organization; Good Standing;
Qualification. . . . . . . . . . . . . . . . 25
Section 2.2. Due Authorization; No Conflicts. . . . . . . 25
Section 2.3. Binding Agreements . . . . . . . . . . . . . 26
Section 2.4. Subsidiaries; Maintenance of Subsidiary
Guarantee. . . . . . . . . . . . . . . . . . 26
Section 2.5. No Defaults . . . . . . . . . . . . . . . . .26
Section 2.6. Financial Statements. . . . . . . . . . . . .27
Section 2.7. No Material Adverse Changes . . . . . . . . .27
Section 2.8. No Material Litigation. . . . . . . . . . . .27
Section 2.9. True Copies of Governing Documents. . . . . .27
Section 2.10. Compliance with Environmental Laws. . . . . .27
Section 2.11. Liens . . . . . . . . . . . . . . . . . . . .28
Section 2.12. Compliance With ERISA . . . . . . . . . . . .28
Section 2.13. Existing Credit Agreement . . . . . . . . . .28
Section 2.14. Ownership of Properties . . . . . . . . . . .28
Section 2.15. Taxes . . . . . . . . . . . . . . . . . . . .28
Section 2.16. Regulations G, U and X. . . . . . . . . . . .28
Section 2.17. Investment Company Act; Public Utility
Holding Company Act. . . . . . . . . . . . . 28
Section 2.18. Accuracy of Information . . . . . . . . . . .29
ARTICLE III
CONDITIONS TO EFFECTIVENESS
AND CONDITIONS OF LENDING
Section 3.1. Conditions of Loans . . . . . . . . . . . . .29
Section 3.2. Conditions of Each Loan and Bid Auction
Advance . . . . . . . . . . . . . . . . . . .30
ARTICLE IV
AFFIRMATIVE COVENANTS
Section 4.1. Financial Statements; Notice of Events of
Default . . . . . . . . . . . . . . . . . . .32
Section 4.2. Securities Regulation Compliance Reports. . .32
Section 4.3. Insurance . . . . . . . . . . . . . . . . . .33
Section 4.4. Tax and Other Liens . . . . . . . . . . . . .33
Section 4.5. Litigation. . . . . . . . . . . . . . . . . .33
Section 4.6. Conduct of Business . . . . . . . . . . . . .34
Section 4.7. Pension Plans . . . . . . . . . . . . . . . .34
Section 4.8. Records and Accounts. . . . . . . . . . . . .35
Section 4.9. Inspection. . . . . . . . . . . . . . . . . .35
Section 4.10. Subsidiary Guarantees . . . . . . . . . . . .35
Section 4.11. Further Assurances. . . . . . . . . . . . . .36
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Page
ARTICLE V
NEGATIVE COVENANTS
Section 5.1. Liens . . . . . . . . . . . . . . . . . . . .36
Section 5.2. Limitation on Indebtedness. . . . . . . . . .37
Section 5.3. Contingent Liabilities. . . . . . . . . . . .38
Section 5.4. Consolidation or Merger . . . . . . . . . . .38
Section 5.5. Limitation on Certain Other Fundamental
Changes. . . . . . . . . . . . . . . . . . . 39
Section 5.6. Sale of Assets. . . . . . . . . . . . . . . .39
Section 5.7. Affiliate Transactions. . . . . . . . . . . .41
Section 5.8. Certain Restrictive Agreements. . . . . . . .41
Section 5.9. Compliance With Environmental Laws. . . . . .41
ARTICLE VI
FINANCIAL COVENANTS
Section 6.1. Consolidated Net Worth. . . . . . . . . . . .41
Section 6.2. Fixed Charge Coverage Ratio . . . . . . . . .41
Section 6.3. Consolidated Total Indebtedness to Total
Capitalization. . . . . . . . . . . . . . . .42
ARTICLE VII
EVENTS OF DEFAULT; CERTAIN REMEDIES
Section 7.1. Events of Default . . . . . . . . . . . . . .42
Section 7.2. Acceleration of Obligations . . . . . . . . .44
Section 7.3. Termination of Commitments; Exercise of
Other Remedies. . . . . . . . . . . . . . . .44
Section 7.4. No Implied Waivers; Rights Cumulative. . . . 45
Section 7.5. Set-Off . . . . . . . . . . . . . . . . . . .45
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Page
ARTICLE VIII
THE CO-ADMINISTRATIVE AGENTS
AND THE ADMINISTRATOR
Section 8.1. Authorization . . . . . . . . . . . . . . . .46
Section 8.2. No Liability. . . . . . . . . . . . . . . . .47
Section 8.3. Conditions of Acting as Administrator and
of Accepting Appointment as a
Co-Administrative Agent. . . . . . . . . . . 47
Section 8.4. Co-Administrative Agents. . . . . . . . . . .48
Section 8.5. Payments. . . . . . . . . . . . . . . . . . .48
Section 8.6. Holders of Notes. . . . . . . . . . . . . . .49
Section 8.7. Modification of this Agreement, the Notes
and the Letters of Credit and each of the
other Credit Documents; Waivers and
Consents. . . . . . . . . . . . . . . . . . .50
Section 8.8. Costs of Co-Administrative Agents;
Indemnification. . . . . . . . . . . . . . . 51
Section 8.9. Non-Reliance on Co-Administrative Agents
and the Administrator; Assignment. . . . . . 52
Section 8.10. Successor Administrator . . . . . . . . . . .52
Section 8.11. Action by the Administrator . . . . . . . . .53
Section 8.12. Substitution of Banks . . . . . . . . . . . .53
ARTICLE IX
DEFINITIONS
Section 9.1. Accounting Terms, Changes in GAAP or FASB
Standards. . . . . . . . . . . . . . . . . . 55
Section 9.2. Other Definitions . . . . . . . . . . . . . .55
ARTICLE X
MISCELLANEOUS
Section 10.1. Expenses. . . . . . . . . . . . . . . . . . .68
Section 10.2. Prejudgment Remedy Waiver; Other Waivers . . 69
Section 10.3. Covenants to Survive; Binding Agreement . . .69
Section 10.4. Amendments and Waivers. . . . . . . . . . . .69
Section 10.5. Transfer of Bank's Interest . . . . . . . . .70
Section 10.6. Notices . . . . . . . . . . . . . . . . . . .74
Section 10.7. Headings; Severability: Entire Agreement. . .75
Section 10.8. Governing Law . . . . . . . . . . . . . . . .76
Section 10.9. Counterparts. . . . . . . . . . . . . . . . .76
Section 10.10. Waiver of Jury Trial . . . . . . . . . . . . 76
Section 10.11. Consent to Jurisdiction. . . . . . . . . . . 76
Section 10.12. Effective Date . . . . . . . . . . . . . . . 76
SECTION 10.13. Guarantee. . . . . . . . . . . . . . . . . . 76
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EXHIBIT A - Form of Revolving Credit Note
EXHIBIT B - Form of Bid Auction Note
EXHIBIT C - Form of Revolving Credit Election Notice
EXHIBIT D - Form of Bid Auction Election Notice
EXHIBIT E - Form of Bid Auction Offer
EXHIBIT F - Form of Bid Auction Acceptance
EXHIBIT G - Form of Compliance Certificate
EXHIBIT H - Form of Assignment and Acceptance Agreement
EXHIBIT I - Form of Subsidiary Guarantee
EXHIBIT J - Form of Affirmation and Consent
EXHIBIT K - Form of Letter of Credit Election Notice
EXHIBIT L - Form of Opinion Letter
-v-
KAMAN CORPORATION
U.S. $250,000,000
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
As of July 3, 1997
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT dated as of
July 3, 1997 (amending and restating the Existing Credit
Agreement referred to below) among KAMAN CORPORATION, a
Connecticut corporation (the "Company"), the various financial
institutions as are or may become parties hereto (referred to
herein individually as a "Bank" or collectively as the "Banks"),
and THE BANK OF NOVA SCOTIA ("Scotiabank") and FLEET NATIONAL
BANK ("Fleet") as the Co-Administrative Agents (individually, a
"Co-Administrative Agent" and collectively, the
"Co-Administrative Agents") for the Banks.
WHEREAS, the Company is currently engaged directly and
through its various Subsidiaries in the business of manufacturing
and distributing aerospace, industrial and musical products and
developing technologies which serve defense, industrial and
commercial markets;
WHEREAS, the Company, the Banks and the Co-Administrative
Agents are parties to that certain Revolving Credit Agreement,
dated as of January 29, 1996 (as amended, supplemented or
otherwise modified to the date hereof, the "Existing Credit
Agreement");
WHEREAS, the Company desires to amend and restate in its
entirety the Existing Credit Agreement to, among other things,
obtain Commitments (such term, together with other capitalized
terms used herein, having the meanings provided in Section 9.1)
from the Banks and each Issuer pursuant to which Revolving Credit
Loans and Letters of Credit, in a maximum aggregate principal
amount at any one time outstanding not to exceed the Total
Commitment, will be made to the Company (or, in the case of
Letters of Credit, issued for the account of the Company or a
Subsidiary Guarantor) from time to time prior to the Termination
Date;
WHEREAS, the Company also desires the Banks to continue to
provide a procedure pursuant to which the Company may invite the
Banks to bid on an uncommitted basis on short-term borrowings by
the Company;
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WHEREAS, each of the Banks is willing, on the terms and
subject to the conditions hereinafter set forth (including
Article III), (i) to amend and restate in its entirety the
Existing Credit Agreement, as provided above and set forth
herein, (ii) to issue (or participate in) Letters of Credit for
the account of the Company or a Subsidiary Guarantor; and (iii)
to extend such Commitments and make such Loans to the Company and
provide such a procedure; and
WHEREAS, the proceeds of such borrowings will be used for
the Company's general corporate purposes;
NOW, THEREFORE, in consideration of the agreements herein
contained, the parties hereto agree, as of the Effective Date (as
hereinafter defined), as follows:
ARTICLE I
THE LOANS
Section 1.1. Commitments. Subject to the terms and
conditions contained in this Agreement, each Bank and each Issuer
agrees (severally and not jointly) that from time to time prior
to January 29, 2001 (the "Maturity Date"), in the case of each
Bank, such Bank will make loans to the Company (the "Revolving
Credit Loans" and, individually, a "Revolving Credit Loan") and
will purchase participation interests in each Letter of Credit
(as defined below) pursuant to Section 1.9.1, and, in the case of
each Issuer, such Issuer will issue one or more Letters of Credit
for the account of the Company or a Subsidiary Guarantor;
provided, that (i) after giving effect to the making of each
Revolving Credit Loan, the aggregate amount of all Revolving
Credit Loans then outstanding plus Letter of Credit Outstandings
plus all Bid Auction Advances then outstanding shall not exceed
the Total Commitment and (ii) the aggregate principal amount of
all Revolving Credit Loans made by any Bank, together with the
aggregate amount of such Bank's participating interest in all
Letter of Credit Outstandings, shall not exceed, at any one time
outstanding for such Bank, the amount set forth opposite such
Bank's name below, as such amounts may be adjusted from time to
time pursuant to Section 1.2 or 10.4 hereof:
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Percentage of
Bank Commitment Total Commitment
-------------------- --------------- ----------------
THE BANK OF NOVA
SCOTIA $37,500,000 15.000000%
FLEET NATIONAL BANK $37,500,000 15.000000%
NATIONSBANK, N.A. $27,500,000 11.000000%
THE SUMITOMO BANK,
LIMITED, NEW YORK
BRANCH $20,000,000 8.000000%
ABN AMRO BANK N.V. $18,750,000 7.500000%
BANKBOSTON, N.A. $18,750,000 7.500000%
DEUTSCHE BANK AG,
NEW YORK AND/OR
CAYMAN ISLANDS
BRANCHES $17,500,000 7.000000%
THE FIRST NATIONAL
BANK OF CHICAGO $17,500,000 7.000000%
MELLON BANK, N.A. $17,500,000 7.000000%
WACHOVIA BANK OF
GEORGIA, N.A. $17,500,000 7.000000%
FIRST UNION NATIONAL
BANK $12,500,000 5.000000%
DEN DANSKE BANK
AKTIESELSKAB, CAYMAN
ISLANDS BRANCH $7,500,000 3.000000%
-------------------- --------------- ------------
Total Commitment $250,000,000 100.000000%
-3-
Such amounts, as they may be adjusted from time to time as
hereinafter provided, are herein called individually a
"Commitment" and collectively either the "Commitments" or the
"Total Commitment". Each Revolving Credit Loan shall be either a
Domestic Loan or a Eurodollar Loan, as the Company may elect, in
each case subject to the provisions of this Agreement. Although
the Total Commitment initially equals $250,000,000 in the
aggregate (and shall not exceed $250,000,000 in the aggregate
even though the principal indebtedness to a Bank may, from time
to time, exceed such Bank's Commitment as a result of one or more
Bid Auction Advances), it is understood that each Bank's portion
of the Total Commitment is a several obligation and not a joint
obligation. No Bank nor any Issuer shall be required to make any
Revolving Credit Loan or issue (or participate in) any Letter of
Credit after such Bank's Commitment shall have terminated. No
Bank shall be responsible to the Company, either
Co-Administrative Agent, the Administrator or the other Banks for
the obligations or Commitments of any other Bank. Neither of the
Co-Administrative Agents nor the Administrator shall be
responsible to the Company for the obligations or Commitments of
any of the Banks.
Each of the parties hereto acknowledges and agrees that the
Existing Loans and Existing Bid Auction Advances outstanding on
the Effective Date (immediately prior to the effectiveness of
this Agreement) under the Existing Credit Agreement shall remain
outstanding and shall continue as Loans and Bid Auction Advances,
as the case may be, for all purposes under this Agreement and the
other Credit Documents.
Section 1.2. Mandatory Reduction of Commitments; Optional
Termination or Reduction of Commitments; Termination of
Commitments.
(a) Mandatory Reduction of Commitments. The Total
Commitment and each of the Commitments shall be irrevocably
and permanently reduced in connection with certain sales of
assets described in Section 5.6.
(b) Optional Termination or Reduction of Commitments.
At the Company's option and upon three (3) Business Days'
prior written notice to the Administrator, the Company,
without premium or penalty, may permanently: (a) terminate
the Total Commitment upon payment in full of the Notes and
(i) delivery to the Administrator of cash collateral (to be
held in a cash collateral account pursuant to a cash
collateral agreement satisfactory to the Administrator) in
-4-
an amount equal to the then existing Stated Amount, plus any
unreimbursed disbursements made under the Letter of Credit
or (ii) the delivery to the Issuer of each Letter of Credit,
marked "terminated" by the beneficiary, together with all
accrued interest thereon to the date of such payment, and
all Fees and other amounts then due the Banks hereunder and
thereunder; or (b) reduce pro rata the Total Commitment of
the Banks by an amount specified in such notice in integral
multiples of $10,000,000 upon pro rata prepayment to each
Bank of the outstanding principal amount of the Revolving
Credit Note of such Bank in excess of the amount of the
reduced Commitment, if any, of such Bank together with
accrued interest on the amount so paid to the date of such
payment; provided, that if the termination or reduction of
any Commitment pursuant to this clause (b) requires the
payment of a Eurodollar Loan or Bid Auction Advance, the
termination or reduction of such Commitment may be made only
on the last Business Day of the Interest Period applicable
to such Eurodollar Loan or Bid Auction Advance. If any
prepayment of a Eurodollar Loan or Bid Auction Advance is
required or permitted by a Bank on a date other than the
last Business Day of the Interest Period applicable thereto,
the Company shall indemnify the Bank receiving any such
prepayment in accordance with Section 1.17.
(c) Termination of Commitments. The Commitments of
the Banks to make Revolving Credit Loans and an Issuer to
issue Letters of Credit shall terminate on the Maturity
Date, or such earlier date as such Commitments may be
terminated pursuant to the provisions of this Section 1.2 or
Section 7.3.
Section 1.3. Making and Funding Revolving Credit Loans.
(a) Procedures for Revolving Credit Loans. When the
Company desires to borrow Revolving Credit Loans, or to
select an interest rate option for an Interest Period for
Revolving Credit Loans, the procedures set forth in this
Section 1.3 shall apply. The Company shall give the
Administrator at least three (3) Business Days' prior
written notice in the case of a Eurodollar Loan, and notice
on the same date in the case of a Domestic Loan (and the
Administrator shall, in turn, promptly notify each of the
Banks of each such notice). Such notice (individually a
"Revolving Credit Election Notice" and collectively the
"Revolving Credit Election Notices") shall specify: (a) the
date of the proposed borrowing (which shall be a Business
-5-
Day); (b) whether such proposed borrowing is to consist of
Domestic Loans or Eurodollar Loans; (c) the Interest Period
applicable to such Loans; and (d) the aggregate amount to be
borrowed. All Revolving Credit Election Notices must be
received by the Administrator before 10:00 a.m., Hartford,
Connecticut time on the Business Day specified in the second
sentence of this Section 1.3(a). Each borrowing of
Revolving Credit Loans shall be (x) in the case of Domestic
Loans, in an aggregate amount not less than $2,000,000 or in
a greater integral multiple of $1,000,000, and (y) in the
case of Eurodollar Loans, in an aggregate amount not less
than $2,000,000 or in a greater integral multiple of
$1,000,000. Except for Bid Auction Borrowings, each
borrowing hereunder shall, to the extent that each Bank
satisfies its obligations hereunder, be made from each Bank
pro rata based upon such Bank's percentage of the Total
Commitment. The Revolving Credit Loans of each Bank shall
be evidenced by a promissory note payable to the order of
such Bank and in the amount of the Commitment of such Bank,
substantially in the form of Exhibit A attached hereto
(individually a Revolving Credit Note and collectively the
"Revolving Credit Notes"). The principal amount of each
Revolving Credit Loan by each Bank and any repayment or
permitted prepayment thereof shall be recorded by such Bank
on either the schedule attached to such Bank's Revolving
Credit Note or its books and records. The aggregate unpaid
principal amount of Revolving Credit Loans set forth on such
schedule or books and records shall be presumptive evidence
of the principal amount owing and unpaid thereon. Within
the limits of the Total Commitment, and subject to the terms
and conditions hereof, the Company may borrow hereunder,
prepay (but only to the extent permitted by this Agreement),
and reborrow pursuant to Section 1.1 and Section 1.3 hereof
until the Maturity Date. Notwithstanding any term to the
contrary contained herein, any failure of any Bank or the
Administrator to make any notation on a schedule to any Note
or otherwise record a transaction in a timely fashion or to
make correctly any such notation or recordation shall not
affect or impair the validity of any Obligations.
(b) Funding Revolving Credit Loans. Not later than
2:00 p.m. (Hartford, Connecticut time) on the date of the
proposed borrowing of any Revolving Credit Loan, as
specified in the applicable Revolving Credit Election Notice
received by the Administrator in accordance with clause (a)
above, each of the Banks will make available to the
-6-
Administrator, in immediately available funds, at the
Administrator's Funding Office, such Bank's percentage share
of the Revolving Credit Loans to be loaned on such date.
Upon receipt from such Bank of such amount, and subject to
the provisions of Section 1.1 and upon fulfillment of the
applicable conditions of Article III, the Administrator
shall make available to the Company, in immediately
available funds, at the Administrator's Funding Office, such
amount of funds received from such Bank.
Section 1.4. Bid Auction Advances.
(a) Generally. Each Bank severally agrees that the
Company may request Bid Auction Borrowings under this
Section 1.4 from time to time, on any Business Day after the
date hereof and prior to the Maturity Date in the manner set
forth below; provided that, after giving effect to the
making of each Bid Auction Borrowing, the aggregate
principal amount of all Revolving Credit Loans then
outstanding plus the aggregate amount of all Letter of
Credit Outstandings plus all Bid Auction Advances then
outstanding shall not exceed the Total Commitment. All Bid
Auction Advances shall be in Dollars. There shall be no Bid
Auction Advances outstanding on or after the Maturity Date.
(b) Notification of Bid Auction Borrowing. The
Company shall request a Bid Auction Borrowing under this
Section 1.4 by delivering to the Administrator, by 10:00
a.m. (Hartford, Connecticut time) at least one (1) Business
Day prior to the date of the proposed Bid Auction Borrowing,
a Bid Auction Election Notice. Such Bid Auction Election
Notice shall specify the following:
(i) that such proposed borrowing is to be a Bid
Auction Borrowing;
(ii) the date of such proposed borrowing (which
must be a Business Day);
(iii) the aggregate amount of such proposed
borrowing;
(iv) the Interest Period for such proposed
borrowing; and
(v) any other terms to be applicable to such
proposed borrowing.
-7-
The Administrator shall promptly (and in any event by 5:00
p.m. Hartford, Connecticut time on the date of such receipt)
notify each Bank by telecopier, of each request for a Bid
Auction Borrowing received by it from the Company.
(c) Banks Response to Bid Auction Borrowing
Notification. Each Bank, including the Administrator acting
in its capacity as a Bank, may, if in its sole discretion it
elects to do so, offer to make one or more Bid Auction
Advances to the Company as part of such proposed Bid Auction
Borrowing, by delivering to the Company a Bid Auction Offer
by telecopy or telefacsimile, before 9:00 a.m. (Hartford,
Connecticut time) on the date of the proposed borrowing
specified in the Bid Auction Election Notice. Each such Bid
Auction Offer shall include the following: (i) the minimum
amount and maximum amount of each Bid Auction Advance that
such Bank would be willing to make as part of such proposed
Bid Auction Borrowing (which amounts may exceed such Bank's
Commitment but may not exceed the then available Total
Commitment); (ii) the rate of interest offered therefor; and
(iii) the identity of the quoting Bank.
(d) Company Acceptance or Rejection of Offers. The
Company shall, in turn, before 10:30 a.m. (Hartford,
Connecticut time) on the date of the proposed borrowing
specified in the Bid Auction Election Notice, either:
(i) cancel such Bid Auction Borrowing by giving
the Administrator notice to that effect, or
(ii) accept one or more of the offers made by any
Bank or Banks pursuant to and in compliance with
Section 1.4(c), in the Company's sole discretion, by
delivering to the Administrator and such Bank or Banks
a Bid Auction Acceptance. Each such Bid Auction
Acceptance shall specify the date and amount of each
Bid Auction Advance (which amount shall be equal to or
greater than the minimum amount, and equal to or less
than the maximum amount, as specified by such Bank for
such Bid Auction Advance pursuant to Section 1.4(c)) to
be made by each Bank as part of such Bid Auction
Borrowing and the unused amount of the Total Commitment
after giving effect to such Bid Auction Borrowing. In
addition the Company shall reject any remaining offers
made by any Bank or Banks pursuant to Section 1.4(c) by
giving the Administrator and any such Bank or Banks
notice to that effect.
-8-
(e) Usage of Commitments. Upon each occasion that a
Bid Auction Advance is made, and during the period such Bid
Auction Advance is outstanding, each Bank's Commitment shall
be deemed automatically utilized by an amount equal to the
amount of such Bid Auction Advance multiplied by such Bank's
percentage of the Total Commitment, regardless of the extent
to which such Bank makes a Bid Auction Advance.
(f) Funding Indemnity. If the Company notifies the
Administrator that a Bid Auction Borrowing is canceled
pursuant to Section 1.4(d)(i), the Administrator shall give
prompt notice thereof to the Banks, and such Bid Auction
Borrowing shall not be made. If the Company accepts one or
more Bid Auction Advance offers made by any Bank or Banks,
such acceptance shall be irrevocable and binding on the
Company and, in respect of any Bid Auction Borrowing, the
Company shall indemnify each Bank against any loss or
expense incurred by such Bank as a result of any failure by
the Company to fulfill, on or before the date specified for
such Bid Auction Borrowing, the applicable conditions set
forth in this Agreement, including, without limitation,
(i) any loss or expense incurred by reason of liquidation or
reemployment of deposits or other funds acquired by such
Bank to fund or maintain such Bid Auction Advance, and
(ii) compensation as provided in Section 1.15.
(g) Making Bid Auction Advances. Each Bank that is to
make a Bid Auction Advance as part of any Bid Auction
Borrowing shall, before 12:00 noon (Hartford, Connecticut
time) on the date of such Bid Auction Borrowing specified in
the Bid Auction Election Notice pursuant to Section 1.4(b),
if all applicable conditions specified in Section 3.2 have
been satisfied, make available to the Administrator at the
Administrator's Funding Office, in immediately available
funds, such Bank's portion of such Bid Auction Borrowing.
After receipt by the Administrator of such funds, the
Administrator will make such funds available to the Company
at the Administrator's Funding Office.
(h) Repayment at Maturity. The Company shall repay to
the Administrator, for the account of each Bank which has
made a Bid Auction Advance to the Company, the principal
amount of such Bid Auction Advance on the last day of the
Interest Period relating to such Bid Auction Advance. All
Bid Auction Advances outstanding on the Maturity Date shall
be absolutely and unconditionally due and payable on the
Maturity Date.
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(i) No Prepayment of Bid Auction Advances. The
Company shall not be permitted to prepay any Bid Auction
Advance.
(j) Bid Auction Notes. Each Bid Auction Advance from
any Bank shall be evidenced by a grid promissory note of the
Company payable to the order of the lending Bank, in
substantially the form of Exhibit B hereto (individually a
"Bid Auction Note" and collectively the "Bid Auction
Notes").
Section 1.5. Letter of Credit Commitment.
(a) Subject to the fulfillment of the applicable
conditions of Article III, from time to time on any Business
Day occurring from and after the Effective Date but prior to
the Maturity Date, the Issuer will
(i) issue one or more irrevocable standby Letters
of Credit (it being acknowledged and agreed by the
parties hereto that the Existing Letters of Credit are
for all purposes of this Agreement and the other Credit
Documents "Letters of Credit" issued pursuant to this
Agreement) for the account of the Company or a
Subsidiary Guarantor in the Stated Amount requested by
the Company on such day; or
(ii) extend the Stated Expiry Date of an existing
(or Existing) Letter of Credit previously issued (or
deemed to have been issued) under this Agreement to a
date not later than the earlier of (x) the Maturity
Date and (y) one year from the date of such extension
provided that, no Issuer shall be permitted or required to
issue any Letters of Credit if, after giving effect to the
issuance of such Letter of Credit, (i) the aggregate amount
of all Letter of Credit Outstandings would exceed the Total
Commitment or (ii) the aggregate principal amount of all
Revolving Credit Loans and Bid Auction Advances then
outstanding plus all Letter of Credit Outstandings would
exceed the Total Commitment.
(b) Usage of Commitments. Upon each occasion that a
Letter of Credit is issued (or deemed issued) hereunder, and
during the period such Letter of Credit or Reimbursement
Obligation remains outstanding, each Bank's Commitment shall
be deemed automatically utilized by an amount equal to the
amount of all Letter of Credit Outstandings multiplied by
such Bank's percentage of the Total Commitment.
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Section 1.6. Renewal or Conversion of Loans; Existing
Revolving Credit Loans.
(a) Subject to all of the terms and conditions of this
Agreement, including without limitation, the satisfaction of
all the conditions set forth in Section 3.2 (except clause
(a) thereof) to the making of any Revolving Credit Loan, the
Company may, on any Business Day, renew any Eurodollar Loan
or convert any Domestic Loan into a Eurodollar Loan or any
Eurodollar Loan into a Domestic Loan before the Maturity
Date, provided, that any renewal or conversion of a
Eurodollar Loan may be made only at the expiration of the
Interest Period for the Eurodollar Loan to be renewed or
converted. If the Company desires to so renew a Eurodollar
Loan or convert a Domestic Loan or a Eurodollar Loan, it
shall give the Administrator written notice of such renewal
or conversion not later than 10:00 a.m. (Hartford,
Connecticut time), (i) in the case of conversions into
Domestic Loans, on the date of such renewal or conversion,
and (ii) in the case of renewals of or conversions into
Eurodollar Loans, on the third Business Day prior to the
date of such proposed renewal or conversion. Each such
notice shall specify: (i) the date of such renewal or
conversion; (ii) the specific Domestic Loan to be converted
or Eurodollar Loan to be renewed or converted; (iii) the
Domestic Loan or Eurodollar Loan which is to replace such
Domestic Loan or Eurodollar Loan; and (iv) the Interest
Period for any replacement Eurodollar Loan.
Section 1.7. Interest.
(a) Interest Rates on Loans.
(i) Revolving Credit Loans. Each Revolving
Credit Loan shall bear interest (from the date made
through and including the date of payment in full) at a
rate per annum equal to either: (A) in the case of
Domestic Loans, the Base Rate plus any Applicable
Margin for Domestic Loans; or (B) in the case of
Eurodollar Loans, LIBOR plus any Applicable Margin for
Eurodollar Loans.
(ii) Bid Auction Advances. Each Bid Auction
Advance shall bear interest (from the date made through
and including the date of payment in full) at a rate
per annum as determined in accordance with Section 1.4.
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(b) Calculation. Interest on Domestic Loans shall be
calculated on the basis of a 365 or 366 day year (as
applicable) and the actual number of days elapsed, and the
interest rate with respect to any Domestic Loan shall change
effective immediately upon any change in the Base Rate,
without notice or demand to or upon the Company. Interest
on Eurodollar Loans and Bid Auction Advances shall be
calculated on the basis of a 360 day year and the actual
number of days elapsed. Each determination of any interest
rate by the Administrator pursuant to this Agreement or the
Notes shall be conclusive and binding on the Company and
each of the Banks in the absence of manifest error.
(c) Interest Payments. Interest shall accrue on the
entire principal of each Domestic Loan, each Eurodollar Loan
and each Bid Auction Advance and shall be payable in arrears
by the Company to the Administrator for the account of the
Bank or Banks making such Advance as follows:
(i) Domestic Loans. With respect to any Domestic
Loan, on the last Business Day of each calendar
quarter;
(ii) Eurodollar Loans. With respect to any
Eurodollar Loan, on the last day of the Interest Period
for such Loan; provided that interest shall also be
payable on the last day of the third (3rd) month for
any Eurodollar Loan having a six (6) month Interest
Period; and
(iii) Bid Auction Advances. With respect to any
Bid Auction Advance, on the last day of the Interest
Period for such Bid Auction Advance; provided that
interest shall also be payable every ninety (90) days
for Bid Auction Advances with Interest Periods in
excess of ninety (90) days.
It is understood and agreed that the interest payable on the
last day of an Interest Period in excess of 90 days shall be
only of interest accrued after the 90th day of such Interest
Period if interest accrued through such 90th day was paid on
such 90th day, as provided herein.
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(d) Default Interest. Notwithstanding the foregoing,
in the event any Event of Default occurs and is continuing,
the Company shall pay, but only to the extent permitted by
law, interest (after as well as before any judgment) on all
Advances and Reimbursement Obligations at a rate per annum
equal to the then applicable rate per annum pursuant to
clause (a) of this Section 1.7 (in the case of any Loans),
or the then applicable fee pursuant to clause (b) of Section
1.13 (in the case of Letters of Credit and Reimbursement
Obligations), as the case may be, plus a margin of two
percent (2%).
Section 1.8. Interest Periods. Each Interest Period
relating to any Eurodollar Loan shall be for such duration of 1,
3 or 6 months as shall be selected by the Company in compliance
with the provisions of this Article I. Each Interest Period
relating to any Bid Auction Advance shall be for such duration of
7 to 180 days as shall be selected by the Company in compliance
with the provisions of this Article I. Any Interest Period which
would otherwise end on a day which is not a Business Day shall
end on the next succeeding Business Day. Each Interest Period
for any Eurodollar Loan or Bid Auction Advance made, converted or
renewed prior to the Maturity Date must end on or prior to the
Maturity Date. Any Interest Period for a Eurodollar Loan which
begins on a day for which there is no numerically corresponding
day in the calendar month during which such Interest Period is to
end shall end on the last day of such calendar month (or the next
preceding Business Day if such last day is not a Business Day).
Interest periods for Domestic Loans shall be for such duration as
shall be selected by the Company, not to extend beyond the
Maturity Date.
Section 1.9. Letters of Credit Issuance Procedures. By
delivering to the Administrator a Letter of Credit Election
Notice on or before 10:00 a.m. (Hartford, Connecticut time), on a
Business Day, the Company may, from time to time request, on not
less than three (3) nor more than ten (10) Business Days' notice,
in the case of an initial issuance of a Letter of Credit, and not
less than three (3) days prior notice, in the case of a request
for the extension of the Stated Expiry Date of a Letter of
Credit, that the Issuer issue, or extend the Stated Expiry Date
of, as the case may be, an irrevocable Letter of Credit in such
form as may be requested by the Company and approved by the
Issuer. Each Letter of Credit shall be in Dollars and shall by
its terms be stated to expire on a date (its "Stated Expiry
Date") no later than one week prior to the Maturity Date.
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Section 1.9.1. Other Banks' Participation. Upon the
issuance of each Letter of Credit issued by an Issuer under this
Agreement (including each Existing Letter of Credit) or upon any
extension of any Stated Expiry Date of any Letter of Credit, and
without further action, each Bank (other than the Issuer) shall
be deemed to have irrevocably purchased, to the extent of its pro
rata Commitment to make Revolving Credit Loans, a participation
interest in such Letter of Credit (including any Reimbursement
Obligation with respect thereto), and such Bank shall, to the
extent of its Commitment, be responsible for reimbursing promptly
(and in any event within one (1) Business Day) the Issuer for
Reimbursement Obligations which have not been reimbursed by the
Company in accordance with Section 1.9.3. In addition, such Bank
shall, to the extent of its pro rata Commitment to make Revolving
Credit Loans, be entitled to receive a ratable portion of the
Letter of Credit Fees payable pursuant to Section 1.13(c) with
respect to each Letter of Credit and of interest payable pursuant
to Section 1.7 with respect to any Reimbursement Obligation. To
the extent that any Bank has reimbursed any Issuer for a
Disbursement as required by this Section, such Bank shall be
entitled to receive its ratable portion of any amounts
subsequently received (from the Company or otherwise) in respect
of such Disbursement.
Section 1.9.2. Disbursements. The Issuer will notify the
Company and the Administrator promptly of the presentment for
payment of any Letter of Credit issued by the Issuer, together
with notice of the date (the "Disbursement Date") such payment
shall be made (each such payment, a "Disbursement"). Subject to
the terms and provisions of such Letter of Credit and this
Agreement, the Issuer shall make such payment to the beneficiary
(or its designee) of such Letter of Credit. Prior to 11:00 a.m.
(Hartford, Connecticut time), on the first Business Day following
the Disbursement Date, the Company will reimburse the
Administrator, for the account of the Issuer, for all amounts
which the Issuer has disbursed under such Letter of Credit,
together with interest thereon at a rate per annum equal to the
highest rate per annum then in effect pursuant to Section 1.7 for
the period from the Disbursement Date through the date of such
reimbursement.
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Section 1.9.3. Reimbursement. The Company's obligation
(the "Reimbursement Obligation") under Section 1.9.2 to reimburse
the Issuer with respect to each Disbursement (including interest
thereon), and, upon the failure of the Company to reimburse the
Issuer, each Bank's obligation under Section 1.9.1 to reimburse
the Issuer, shall be absolute and unconditional under any and all
circumstances and irrespective of any setoff, counterclaim or
defense to payment which the Company or such Bank, as the case
may be, may have or have had against the Issuer or any such Bank,
including any defense based upon the failure of any Disbursement
to conform to the terms of the applicable Letter of Credit (if,
in the Issuer's good faith opinion, such Disbursement is
determined to be appropriate) or any non-application or
misapplication by the beneficiary of the proceeds of such Letter
of Credit; provided, however, that after paying in full its
Reimbursement Obligation hereunder, nothing herein shall
adversely affect the right of the Company or such Bank, as the
case may be, to commence any proceeding against the Issuer for
any wrongful Disbursement made by the Issuer under a Letter of
Credit as a result of acts or omissions constituting gross
negligence or wilful misconduct on the part of such Issuer.
Section 1.9.4. Deemed Disbursements. Upon the occurrence
and during the continuation of any Default of the type described
in Section 7.1(f) or, with notice from either of the
Co-Administrative Agents, upon the occurrence and during the
continuation of any other Event of Default,
(a) an amount equal to that portion of all Letter of
Credit Outstandings attributable to the then aggregate
amount which is undrawn and available under all Letters of
Credit issued and outstanding for the account of the Company
or a Subsidiary Guarantor shall, without demand upon or
notice to the Company or any other Person, be deemed to have
been paid or disbursed by the Issuer under such Letters of
Credit (notwithstanding that such amount may not in fact
have been so paid or disbursed); and
(b) upon notification by either of the
Co-Administrative Agents to the Company of its
obligations under this Section, the Company shall be
immediately obligated to reimburse the Issuer for
the amount deemed to have been so paid or disbursed
by such Issuer.
-15-
Any amounts so payable by the Company pursuant to this Section
1.9.4 (the "Deemed Disbursement Amount") shall be deposited in
cash with the Administrator and held as collateral security for
the Obligations in connection with the Letters of Credit issued
by the Issuers. At such time when the Defaults or Events of
Default giving rise to the deemed disbursements hereunder shall
have been cured or waived, the Administrator shall return to the
Company the Deemed Disbursement Amount, less any amount thereof
applied to the Obligations, together with accrued interest at the
Federal Funds Rate, which have not been applied to the partial
satisfaction of such Obligations.
Section 1.9.5. Nature of Reimbursement Obligations. The
Company and, to the extent set forth in Section 1.9.1, each Bank
shall assume all risks of the acts, omissions or misuse of any
Letter of Credit by the beneficiary thereof. The Issuer (except
to the extent of its own gross negligence or wilful misconduct)
shall not be responsible for:
(a) the form, validity, sufficiency, accuracy,
genuineness or legal effect of any Letter of Credit or any
document submitted by any party in connection with the
application for and issuance of a Letter of Credit, even if
it should in fact prove to be in any or all respects
invalid, insufficient, inaccurate, fraudulent or forged;
(b) the form, validity, sufficiency, accuracy,
genuineness or legal effect of any instrument transferring
or assigning or purporting to transfer or assign a Letter of
Credit or the rights or benefits thereunder or the proceeds
thereof in whole or in part, which may prove to be invalid
or ineffective for any reason;
(c) failure of the beneficiary to comply fully with
conditions required in order to demand payment under a
Letter of Credit;
(d) errors, omissions, interruptions or delays in
transmission or delivery of any messages, by mail, cable,
telegraph, telex or otherwise; or
(e) any loss or delay in the transmission or otherwise
of any document or draft required in order to make a
Disbursement under a Letter of Credit.
-16-
None of the foregoing shall affect, impair or prevent the vesting
of any of the rights or powers granted to the Issuer or any Bank.
In furtherance and extension and not in limitation or derogation
of any of the foregoing, any action taken or omitted to be taken
by an Issuer in good faith (and not constituting gross negligence
or willful misconduct) shall be binding upon the Company and each
such Bank, and shall not put such Issuer under any resulting
liability to the Company or any such Bank, as the case may be.
Section 1.10. Repayments and Prepayments of Principal of
Loans and Letters of Credit; Pro Rata Treatment; Application of
Prepayments.
(a) The entire principal of each of the Revolving
Credit Notes and the Bid Auction Notes outstanding on the
Maturity Date, together with all accrued unpaid interest
thereon, shall be absolutely due and payable on the Maturity
Date. All the other Obligations shall, if not sooner paid,
become and be absolutely due and payable by the Company on
the Maturity Date.
(b) On the last day of each Interest Period for each
Eurodollar Loan and each Bid Auction Advance, the Company
shall pay all principal, interest and other amounts then
outstanding in respect of such Eurodollar Loan or such Bid
Auction Advance. Such payment may be made with the proceeds
of a new or replacement Domestic Loan, Eurodollar Loan or
Bid Auction Advance, to the extent then available, pursuant
to all of the terms and limitations of this Agreement.
(c) In no event shall the aggregate outstanding
principal amount of the Revolving Credit Loans and Bid
Auction Advances together with all Letter of Credit
Outstandings at any time exceed the Total Commitment at such
time, as such Total Commitment may be reduced from time to
time in accordance with the provisions hereof. Accordingly,
upon any such reduction in the Total Commitment, the Company
agrees to prepay so much of the Revolving Credit Loans (or
cash collateralize the Stated Amount) as may be necessary so
that the aggregate outstanding principal amount of the
Revolving Credit Loans, Bid Auction Advances and Letter of
Credit Outstandings will not exceed the Total Commitment, as
so reduced. For the avoidance of any doubt, the parties
hereto acknowledge and agree that, as used in this
Agreement, Revolving Credit Loans do not include Bid Auction
Advances.
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(d) Upon certain sales of assets described in
Section 5.6, the Company shall prepay all or a portion of
the Loans in accordance with the provisions of such
Section 5.6.
(e) The Company may, at its option, subject to the
provisions of Section 1.17, prepay without premium, Domestic
Loans, in whole or in part, on the following conditions:
(i) the Company shall give to the Administrator and each of
the Banks written notice of any prepayment of Domestic Loans
not later than 10:00 a.m., Hartford, Connecticut time, on
the Business Day on which such prepayment is to be made;
(ii) each prepayment shall be in a minimum amount of
$2,000,000 and an integral multiple of $1,000,000; and
(iii) each prepayment must be made to the Administrator for
disbursement pro rata to each of the Banks. Such notice of
prepayment shall be irrevocable and shall specify the date
of any such prepayment and the aggregate principal amount to
be prepaid pursuant to this clause (e) on such date.
Subject to the provisions of the next sentence, the Banks
may, but shall not be obligated to, permit the Company to
prepay Eurodollar Loans and/or Bid Auction Advances. If any
Eurodollar Loan or Bid Auction Advance is prepaid, the
Company shall indemnify each Bank in accordance with
Section 1.17 hereof.
(f) Except for payments in respect of Bid Auction
Borrowings, each payment of principal of borrowings
hereunder shall be made to each Bank pro rata based upon its
percentage of the aggregate outstanding amount of the Loans
at the time of such payment.
(g) Each payment of principal of or interest on any
Bid Auction Advance shall be made to the Administrator for
the benefit of the Bank which has made such Bid Auction
Advance, regardless of such Bank's pro rata percentage of
the Total Commitment, except that if any amounts are due and
payable upon any Revolving Credit Loans at the time of any
such payment of a Bid Auction Advance, then such payment
shall be made through the Administrator to each Bank based
on each Bank's pro rata share of the total outstanding
principal balance of all Loans and Bid Auction Advances.
-18-
(h) Any partial payment of the Obligations under or in
respect of any Note shall be applied by the Bank holding
such Note (i) first, to the payment of all of the interest
which shall be due and payable on the principal of such Note
at the time of such partial payment, (ii) then, to the
payment of all (if any) other amounts (except principal) due
and payable under such Note at such time, and (iii) finally,
to the payment of principal of such Note.
(i) Each payment in respect of any Letter of Credit or
Reimbursement Obligation in respect thereof and each payment
of Fees payable to all of the Banks and each payment in
respect of a permanent reduction of the Total Commitment
shall be made to the Administrator for prompt distribution
to each Bank pro rata based upon its percentage of the Total
Commitment. Each payment of Fees payable to either of the
Co-Administrative Agents or any Issuer hereunder or in
connection herewith shall be made directly to such
Co-Administrative Agent or such Issuer.
Section 1.11. Payments and Computations.
(a) Notwithstanding anything in this Agreement to the
contrary, each payment payable by the Company to the
Administrator, any Co-Administrative Agent, any Bank or any
Issuer under this Agreement, the Notes, any Letter of
Credit, any Subsidiary Guarantee or any other Credit
Document shall be made directly to the Administrator (unless
such payment is in respect of any Fees payable by the
Company to either of the Co-Administrative Agents (including
in such Co-Administrative Agent's capacity as an Issuer
hereunder), in which case such payment shall be made
directly to such Co-Administrative Agent), in Dollars at the
Administrator's Funding Office (or, with respect to such
Co-Administrative Agent, at such office as notified to the
Company by it), not later than 2:00 p.m., Hartford,
Connecticut time, on the due date of each such payment and
in immediately available funds. The Administrator will
promptly distribute to each Bank in immediately available
funds by wire transfer such Bank's share (if any) of each
such payment received by the Administrator.
(b) If any sum would, but for the provisions of this
clause (b), become due and payable to the Administrator, any
Co-Administrative Agent, any Bank or any Issuer by the
Company under this Agreement, any Note, any Letter of
Credit, any Subsidiary Guarantee or any other Credit
-19-
Document on any day which is not a Business Day, then such
sum shall become due and payable on the Business Day next
succeeding the day on which such sum would otherwise have
become due and payable hereunder or thereunder, and interest
payable to the Administrator, such Co-Administrative Agent,
such Bank or such Issuer under this Agreement, any Note, any
Letter of Credit, any Subsidiary Guarantee or any other
Credit Document shall be adjusted by the Administrator (or
such Co-Administrative Agent, as the case may be)
accordingly.
Section 1.12. Payments to be Free of Deductions.
(a) Each payment payable by the Company to the
Administrator, any Co-Administrative Agent or any Bank under
this Agreement or any other Credit Document shall be made in
accordance with Section 1.11 hereof, in Dollars, without
set-off or counterclaim and free and clear of and without
any deduction of any kind.
(b) Each Bank that is not organized under the laws of
the United States or any state thereof (a "Foreign Bank")
shall provide to the Company and the Administrator on or
prior to the Effective Date in the case of each Foreign Bank
signatory hereto, on the date of any assignment pursuant to
which it becomes a Bank in the case of each other Foreign
Bank, and at such other times as required by United States
law or as the Company or the Administrator shall reasonably
request (if either such form is applicable), two duly
completed signed copies of either (A) Internal Revenue
Service Form 4224 (or any successor form), certifying that
all payments to be made to such Foreign Bank under this
Agreement or any Note will be effectively connected to a
United States trade or business (a "Form 4224
Certification") or (B) Internal Revenue Service Form 1001
(or any successor form), certifying that such Foreign Bank
is entitled to the benefits of a provision of a tax
convention or treaty to which the United States is a party
which exempts from United States withholding tax, in whole,
all payments to be made to such Foreign Bank under this
Agreement or any other Credit Document (a "Form 1001
Certification"). In addition, each Foreign Bank agrees that
if such Foreign Bank previously filed a Form 1001
Certification it shall deliver to the Company and the
Administrator a new Form 1001 Certification prior to the
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first payment date falling in the third year following the
previous filing of such Form 1001 Certification; and if such
Foreign Bank previously filed a Form 4224 Certification it
shall deliver to the Company and the Administrator a new
Form 4224 Certification prior to the first payment date
occurring in each of its subsequent taxable years. Each
Foreign Bank shall also deliver to the Company and the
Administrator, to the extent applicable, such other
additional or supplemental forms as may at any time be
required as a result of changes in applicable law, rule,
regulation or treaty or the circumstances of such Foreign
Bank in order to confirm or maintain in effect its
entitlement to an exemption from United States withholding
tax on any payments hereunder; provided, that the
circumstances of such Foreign Bank at the relevant time and
applicable law permit it to do so. If a Foreign Bank
determines, as a result of (1) applicable law, rule,
regulation, treaty, or any official application thereof, or
(2) its circumstances, that it is unable to submit any form
or certificate that it is obligated to submit pursuant to
this Section 1.12(b), or that it is required to withdraw or
cancel any such form or certificate previously submitted, it
shall promptly notify the Company and the Administrator of
such fact (a "Withholding Notice"). In the event that the
withholding or deduction from any payment to be made by the
Company hereunder is required in respect of any taxes
(excluding franchise taxes and taxes imposed on or measured
by any Bank's net income or receipts) pursuant to any
applicable law, rule or regulation, then the Company will
pay the full amount required to be deducted or withheld to
the United States Internal Revenue Service or other
applicable Governmental Authority within the time allowed
for such payment under applicable law and deliver to the
Administrator and the Banks within thirty (30) days after it
has made such payment either (x) a receipt issued by such
Governmental Authority evidencing its receipt of such
payment, or (y) if the Company cannot obtain such a receipt
after using reasonable diligence under the circumstances, a
certificate duly executed by a principal financial officer
of the Company stating the amount and date of such payment
and the Bank to which it relates. In the event such taxes
are directly asserted against the Administrator or any Bank
with respect to any payment received by the Administrator or
such Bank hereunder, the Administrator or such Bank may pay
such taxes and the Company will promptly pay such additional
amount (including any penalties, interest or expenses) as is
necessary in order that the net amount received by such
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person after the payment of such taxes (including any taxes
on such additional amount) shall equal the amount such
person would have received had not such taxes been asserted.
If the Company fails to pay any taxes when due to the
appropriate taxing authority or fails to remit to the
Administrator, for the account of the respective Banks, the
receipt required by clause (x) above or certificate required
by clause (y) above, the Company shall indemnify each of the
Banks for any incremental taxes (excluding franchise taxes
and taxes imposed on or measured by any Bank's net income or
receipts), interest or penalties that may become payable by
any Bank as a result of any such failure.
Section 1.13. Fees.
(a) Facility Fee. The Company shall pay to the
Administrator, for the benefit of the Banks, on the first
(1st) Business Day of each calendar quarter in arrears and
on the Termination Date (each, a "Facility Fee Payment
Date"), a facility fee (the "Facility Fee"). Each payment
of the Facility Fee shall be in the amount equal to (i) the
Applicable Margin for the Facility Fee then in effect,
multiplied by (ii) the average daily amount of the Total
Commitment during the period commencing on the most recent
prior "Facility Fee Payment Date" under (and as defined in)
the Existing Credit Agreement and ending on the day before
the current Facility Fee Payment Date. The Facility Fee
shall be calculated on the basis of a 365 or 366 day year
(as applicable) and the actual number of days elapsed. The
Administrator shall promptly disburse the Facility Fee to
each of the Banks in accordance with their respective
percentage shares of the Total Commitment.
(b) Co-Administrative Agents' Fees. The Company agrees
to pay to each of the Co-Administrative Agents, solely for
the account of such Co-Administrative Agent, certain fees
("Agents' Fees"), in the amounts and at the times heretofore
agreed to between such Co-Administrative Agent and the
Company in connection herewith.
(c) Letter of Credit Fee. The Company agrees to pay
to the Administrator, for the pro rata account of the Issuer
and each other Bank, with respect to each Letter of Credit,
a Letter of Credit fee ("Letter of Credit Fee") in an amount
equal to the then Applicable Margin on Eurodollar Loans
applicable to Revolving Credit Loans multiplied by the
-22-
Stated Amount of each such Letter of Credit, such fees being
payable on the first (1st) Business Day of each calendar
quarter in arrears and on the Termination Date. The Company
further agrees to pay to the Issuer on the date of issuance
of each Letter of Credit an issuance fee in an amount
mutually agreed upon by the Issuer and the Company.
Section 1.14. Use of Proceeds. The Company represents that
the proceeds of all Revolving Credit Loans and all Bid Auction
Advances made hereunder and all Letters of Credit issued
hereunder shall be used for general corporate purposes including
acquisitions by the Company, in compliance with this Agreement.
The Company further represents, warrants and covenants that the
proceeds of all Revolving Credit Loans and all Bid Auction
Advances and all Letters of Credit shall not be used by it in any
manner which would result in a violation by any Person of
Regulation U or X of the F.R.S. Board, 12 C.F.R. Parts 221 and
224.
Section 1.15. Illegality. Notwithstanding any other
provisions hereof, if any applicable law, regulation or directive
of any Governmental Authority, or any change therein or in the
interpretation or application thereof, shall make it unlawful for
any Bank to make or maintain Eurodollar Loans, (i) the obligation
of such Bank to make such Loans shall terminate, and (ii) the
Company shall, if any such Loans are then outstanding, promptly
upon request from such Bank, either pay all such Loans (together
with interest accrued thereon) made by such Bank either in cash
or with the proceeds of a replacement Domestic Loan. If any such
payment or replacement of Eurodollar Loans is made on a day that
is not the last Business Day of the Interest Period applicable to
such Loans, the Company shall pay such Bank all amounts required
by Section 1.15(a).
Section 1.16. Increased Costs; Capital Adequacy;
Suspensions of Eurodollar Loans.
(a) Increased Costs Relating to Credit Facilities. In
the event that applicable law, treaty or regulation or
directive from any Governmental Authority, or any change
therein or in the interpretation or application thereof or
compliance by any Bank with any request or directive
(whether or not having the force of law) from any central
bank or Governmental Authority, shall: (i) subject any Bank
to any tax of any kind whatsoever with respect to this
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Agreement or any Eurodollar Loan or Bid Auction Advance, or
subject any payment made by the Company to any Bank in
respect of principal, Fees, interest or any other amount
payable hereunder to any tax of any kind whatsoever
(excluding franchise taxes and taxes imposed on or measured
by any Bank's net income or receipts); (ii) impose, modify
or hold applicable any reserve, special deposit or similar
requirements against assets held by, or deposits in or for
the account of, advances or loans by, or other credit
extended by, any office of any Bank, including pursuant to
Regulations of the F.R.S. Board; or (iii) impose on any Bank
any other condition with respect to this Agreement, any
Note, any other Credit Document, or any of the Loans or Bid
Auction Advances hereunder, and the result of any of the
foregoing is (x) to increase the cost to such Bank of
making, renewing or maintaining its Eurodollar Loans or Bid
Auction Advances (or any part thereof) by an amount that
such Bank deems, in such Bank's reasonable good faith
judgment, to be material or (y) to reduce the amount of any
payment (whether of principal, interest or otherwise) in
respect of any of the Eurodollar Loans or Bid Auction
Advances by an amount that such Bank deems to be material in
such Bank's reasonable good faith judgment or (z) to require
any Bank to make any payment or to forego any interest or
other sum payable hereunder, the amount of which payment or
foregone interest or other sum is calculated by reference to
the gross amount of any sum receivable or deemed received by
the Administrator or any Bank from the Company hereunder,
then, in any case, to the maximum extent permitted by
applicable law, the Company shall promptly pay such Bank,
upon its demand, such additional amount as will compensate
such Bank for such additional costs, reduction, payment or
foregone interest, as the case may be (collectively the
"Additional Costs").
(b) Increased Capital Costs. If any change in, or the
introduction, adoption, effectiveness, interpretation,
reinterpretation or phase-in of, any law or regulation,
directive, guideline, decision or request (whether or not
having the force of law) of any court, central bank,
regulator or other Governmental Authority affects or would
affect the amount of capital required or expected to be
maintained by any Bank or any corporation controlling any
Bank, and such Bank determines (in its reasonable judgment)
that the rate of return on its capital as a consequence of
its Commitment (including its issuance of or participation
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in, as the case may be, Letters of Credit) or the Loans or
the Bid Auction Advances made by such Bank is reduced to a
level below that which such Bank could have achieved but for
the occurrence of any such circumstance, then, in any such
case upon notice from time to time by such Bank to the
Company, the Company shall immediately pay directly to such
Bank additional amounts sufficient to compensate such Bank
for such reduction in rate of return. In determining such
amounts, such Bank will use reasonable methods of averaging
and attribution. The Company may, however, avoid paying
such amounts for future rate of return reductions if, within
the maximum borrowings permitted herein, the Company borrows
such amounts as will cause the Bank to avoid any such future
rate of return reductions which would otherwise be caused by
such changed capital adequacy requirements or the Company
agrees to a reduction in the Total Commitment to achieve the
same result.
(c) If, with respect to any Interest Period, deposits
in Dollars (in the applicable amounts) are not being offered
to the Administrator in any LIBOR Market for such Interest
Period, or the Administrator or the Majority Banks otherwise
determine (which determination shall be binding and
conclusive on the Company) that by reason of circumstances
affecting the LIBOR Market, adequate and reasonable means do
not exist for ascertaining LIBOR, then the Administrator
shall promptly notify the Company and the Banks thereof and,
so long as such circumstances shall continue, (i) no Bank
shall thereafter have any obligation to fund or make
available Eurodollar Loans and (ii) on the last day of the
current Interest Period for any Eurodollar Loans, such Loans
shall, unless then repaid in full, automatically convert to
Domestic Loans.
Section 1.17. Certain Indemnities.
(a) Payment. The Company agrees to indemnify each
Bank and to hold each Bank harmless against and from any
loss, costs (including the increased costs referred to in
Section 1.16 above) or expenses that it may sustain or incur
as a direct consequence of (i) any prepayment of the
principal of or interest on any Eurodollar Loan or Bid
Auction Advance or (ii) any failure by the Company to
complete a borrowing, prepayment, issuance, extension or
replacement of or to a Domestic Loan, a Eurodollar Loan, a
Letter of Credit or Bid Auction Advance after notice thereof
has been given or after telephone notice has been given and
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is not followed by written notice or is followed by written
notice that differs in any respect from the telephonic
notice or (iii) any failure by the Company to pay,
punctually on the due date thereof, any amount payable to
the Administrator, either of the Co-Administrative Agents or
any Bank or any Issuer under this Agreement, any Note, any
Letter of Credit, or any other Credit Document or (iv) the
acceleration, in accordance with the terms of this
Agreement, of the time of payment of any of the Obligations.
Such losses, costs or expenses shall include, but shall not
be limited to, (x) any costs incurred by any Bank in
carrying funds which were to have been borrowed by the
Company or in carrying funds to cover any overdue principal,
overdue interest or any other overdue sums payable by the
Company to the Administrator, either of the
Co-Administrative Agents or any Bank or any Issuer under
this Agreement, any Note, any Letter of Credit, or any other
Credit Document,(y) any interest payable by any Bank to the
lenders of the funds borrowed by it in order to carry the
funds referred to in the immediately preceding clause (x),
and (z) any losses (but excluding losses of anticipated
profit) incurred or sustained by any Bank in liquidating or
re-employing funds acquired from third parties to make, fund
or maintain all or any part of any Loan, Letter of Credit or
Bid Auction Advance. Each Bank and each Issuer shall use
reasonable efforts to mitigate all such losses, costs or
expenses.
(b) Additional Indemnity. The Company agrees to
indemnify and hold each of the Indemnified Parties free and
harmless from and against any and all Liabilities.
Section 1.18. Bank Wires to the Company. All transfers by
the Administrator to the Company shall be effected by federal
wire transfer of immediately available funds to Account Number
0019 5213 of Kaman Corporation maintained at Fleet National Bank,
unless specifically instructed otherwise in writing by the
Company to the Administrator.
Section 1.19. Administrator or Bank Certificate. A
certificate signed by an authorized employee of the
Administrator, either of the Co-Administrative Agents, any Bank
or any Issuer, setting forth any amount required to be paid by
the Company to the Administrator, such Co-Administrative Agent,
such Bank or such Issuer pursuant to Section 1.7, Section 1.15,
Section 1.16 or Section 1.17 and the computations made by the
Administrator, such Co-Administrative Agent, such Bank or such
Issuer to determine such amount, shall be submitted by the
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Administrator, such Co-Administrative Agent, such Bank or such
Issuer to the Company in connection with each demand made at any
time by the Administrator, such Co-Administrative Agent, such
Bank or such Issuer upon the Company under the foregoing
Sections. Any such certificate submitted pursuant to
Section 1.15 or Section 1.16 shall, absent manifest error,
constitute conclusive evidence as to the amount owed pursuant to
such Section.
Section 1.20. Interest Limitation. Notwithstanding any
other term of this Agreement, any Note or any other Credit
Document, the maximum amount of interest which may be charged to
or collected from any Person liable hereunder, under any Note or
under any other Credit Document by the Banks shall be absolutely
limited to, and shall in no event exceed, the maximum amount of
interest (the "Maximum Rate") which could lawfully be charged or
collected under applicable law (including, to the extent
applicable, the provisions of Section 5197 of the Revised
Statutes of the United States of America, as amended, 12 U.S.C.
Section 85, as amended), so that the maximum of all amounts
constituting interest under applicable law, howsoever computed,
shall never exceed as to any Person liable therefor the Maximum
Rate, and any term of this Agreement or any Note or any other
Credit Document which could be construed as providing for
interest in excess of such lawful maximum shall be and hereby is
made expressly subject to and modified by the provisions of this
clause. If, in any month, the effective interest rate on any
amounts owing pursuant to this Agreement or the Notes or any
other Credit Document, absent the Maximum Rate limitation
contained herein, would have exceeded the Maximum Rate, and if in
the future month, such effective interest rate would otherwise be
less than the Maximum Rate, then the effective interest rate for
such month shall be increased to the Maximum Rate until such time
as the amount of interest paid hereunder equals the amount of
interest which would have been paid if the same had not been
limited by the Maximum Rate.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
In order to induce the Banks, each Issuer and the
Co-Administrative Agents to amend and restate the Existing Credit
Agreement as provided in this Agreement and enter into this
Agreement and to make extensions of credit hereunder, the Company
represents and warrants to each of the Co-Administrative Agents
and each Bank that:
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Section 2.1. Due Organization; Good Standing;
Qualification. The Company and each of its Subsidiaries are duly
organized, validly existing and in good standing under the laws
of their respective jurisdictions of incorporation, except where
a Subsidiary's failure to be in good standing would not have a
Material Adverse Effect. Each of the Company and its
Subsidiaries has all requisite corporate power, authority,
licenses, consents, approvals and the like required to own and
operate its respective properties (except where the failure to do
so would not have a Material Adverse Effect) and to carry on its
respective business as presently conducted, and each is duly
qualified to do business and is in good standing as a foreign
corporation in each jurisdiction wherein the character of the
properties owned or leased by it therein or in which the
transaction of its respective business therein makes such
qualification necessary except where failure to comply with any
of the foregoing would not have a Material Adverse Effect.
Section 2.2. Due Authorization; No Conflicts. The
execution, delivery and performance by the Company of this
Agreement, the Notes and each other Credit Document executed or
to be executed by it, and the execution, delivery and performance
by each other Obligor of each Subsidiary Guarantee, the
Affirmation and Consent and each other Credit Document executed
or to be executed by it, and the Company's authority to make the
borrowings and obtain the other extensions of credit contemplated
thereby, have been duly authorized by all necessary corporate or
other action on the part of the Company or each such other
Obligor. Such execution, delivery, and performance by the
Company and each such other Obligor, and the making by the
Company of the borrowings and the obtaining of the other
extensions of credit contemplated hereby, do not and will not (a)
contravene any provision of the Company's or such other Obligor's
Governing Documents, (b) conflict with or result in a breach of
the terms, conditions or provisions of, or constitute a default
under or result in the creation of any Lien upon any of the
property of the Company or such other Obligor, under any
agreement, trust, deed, indenture, mortgage or other instrument
to which the Company or such other Obligor is a party or by which
the Company or such Obligor or any of their respective properties
is bound or affected, or (c) require any waiver, consent or
approval by any creditors, shareholders, or public authority.
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Section 2.3. Binding Agreements. This Agreement
constitutes, the Notes and each other Credit Document, when
issued and delivered pursuant hereto for value received shall
constitute, the legal, valid and binding obligations of the
Company, enforceable in accordance with their respective terms,
except as enforcement may be limited by principles of equity,
bankruptcy, insolvency, or other laws affecting the enforcement
of creditors' rights generally; and each Subsidiary Guarantee,
the Affirmation and Consent and each other Credit Document
executed pursuant hereto by each other Obligor shall, on the due
execution and delivery thereof by such Obligor, constitute the
legal, valid and binding obligation of such Obligor enforceable
in accordance with its terms, except as enforcement may be
limited by principles of equity, bankruptcy, insolvency, or other
laws affecting the enforcement of creditors' rights generally.
Section 2.4. Subsidiaries; Maintenance of Subsidiary
Guarantee. (a) All of the issued and outstanding shares of
capital stock of each Subsidiary of the Company which is owned by
the Company or a Subsidiary of the Company, has been validly
issued and is fully paid and nonassessable and is free and clear
of any Lien. No rights to subscribe for additional shares of
stock of any Subsidiary have been granted.
(b) Since the "Effective Date" under (and as defined in)
the Existing Credit Agreement and on and at all times following
the Effective Date, the Co-Administrative Agents and the Banks
have the full credit support of Subsidiary Guarantees,
guaranteeing in full the payment of all Obligations of the
Company hereunder and under or in respect of each other Credit
Document, executed by such Subsidiary Guarantors which,
collectively, and taken together with the Company,
(i) account for at least 80% of the consolidated
domestic gross revenues of the Company, or
(ii) have assets which represent at least 80% of the
consolidated domestic gross assets of the Company,
in each case, as determined by reference to the financial
statements delivered by the Company to the Co-Administrative
Agents and the Banks, for the four most recently preceding,
consecutive fiscal quarters, pursuant to Section 2.6 or Section
4.1, as the case may be.
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Section 2.5. No Defaults. No Default or Event of Default
is continuing.
Section 2.6. Financial Statements. The Company has
furnished to each of the Banks: (a) the audited consolidated
balance sheets of the Company and its Subsidiaries as at
December 31, 1996, and the related consolidated statements of
income, cash flows and shareholders' equity of the Company and
its Subsidiaries for the fiscal year ended December 31, 1996,
certified by KPMG Peat Marwick, LLP, certified public
accountants, and (b) the unaudited consolidated and consolidating
balance sheets of the Company and its Subsidiaries as at June 30,
1996, September 30, 1996, December 31, 1996 and as of March 31,
1997 and related consolidated and consolidating statements of
income, cash flows and shareholders' equity for the three (3)
months ended September 30, 1996, December 31, 1996 and March 31,
1997, in each case certified by the president or principal
financial officer of the Company. Such balance sheets and
statements have been prepared in conformity with GAAP applied on
a consistent basis throughout the periods specified and present
fairly the financial condition and results of operations of the
Company and its Subsidiaries as at the dates and for the periods
indicated. The balance sheets referred to in this Section 2.6
and the notes thereto disclose all material liabilities, direct
or contingent, known to the Company and its Subsidiaries as of
the dates thereof.
Section 2.7. No Material Adverse Changes. Since December
31, 1996, there has been no change in the business, assets,
operations, prospects, liabilities or condition, financial or
otherwise, of the Company and its Subsidiaries, taken as a whole,
other than changes the effect of which have not had a Material
Adverse Effect.
Section 2.8. No Material Litigation. No action, suit,
investigation or proceeding is pending or known to be threatened
by or against or affecting the Company or any of its Subsidiaries
or any of their respective properties or rights before any
Governmental Authority (a) which involves this Agreement, the
Notes or any other Credit Document or (b) as to which there is a
reasonable possibility of an adverse determination and which, if
adversely determined, could, individually or in the aggregate,
result in a Material Adverse Effect.
Section 2.9. True Copies of Governing Documents. The
Company has furnished or caused to be furnished to each of the
Co-Administrative Agents true and complete copies of all of its
Governing Documents.
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Section 2.10. Compliance with Environmental Laws. To the
best of the Company's knowledge and belief, the Company and each
of its Subsidiaries is in substantial compliance with all
material provisions of applicable Environmental Laws and all
judgments, orders and decrees relating thereto and binding upon
the Company or any of its Subsidiaries, except where failure to
be in compliance would not have a Material Adverse Effect.
Section 2.11. Liens. The aggregate principal amount of
indebtedness for borrowed money of the Company and its
Subsidiaries, on a consolidated basis, which is secured by Liens
on assets of the Company or any of its Subsidiaries, is less than
or equal to $25,000,000.
Section 2.12. Compliance With ERISA. The Company and each
of its Subsidiaries is in substantial compliance with all
material provisions of ERISA.
Section 2.13. Existing Credit Agreement. As of the
Effective Date, no "Obligations" under (and as defined in) the
Existing Credit Agreement are due and payable, and no Default or
"Event of Default" under (and as defined in) the Existing Credit
Agreement has occurred and is continuing.
Section 2.14. Ownership of Properties. The Company and
each of its Subsidiaries owns good and marketable title to all of
its properties and assets, real and personal (except where the
failure to so own such properties or assets, or have such title,
would not have a Material Adverse Effect), free and clear of all
Liens, except as permitted pursuant to Section 5.1.
Section 2.15. Taxes. Except for taxes the payment of which
is being diligently contested in good faith after the
establishment of any reserves required by GAAP, consistently
applied, the Company and each of its Subsidiaries has filed all
tax returns and reports required by law to have been filed by it
and has paid or caused to be paid all taxes, assessments and
governmental charges of every kind thereby shown to be owing
which would, in the aggregate, if not paid, be material as to the
Company and its Subsidiaries when taken as a whole or be
reportable under the Securities Exchange Act or required under
FASB Standards to be disclosed on the Company's consolidated
audited financial statements.
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Section 2.16. Regulations G, U and X. Neither the Company
nor any of its Subsidiaries is engaged in the business of
extending credit for the purpose of purchasing or carrying margin
stock, and no proceeds of any Loans or Advances, nor any Letters
of Credit, will be used for a purpose which violates, or would be
inconsistent with, F.R.S. Board Regulation G, U or X. Terms for
which meanings are provided in F.R.S. Board Regulation G, U or X
or any regulations substituted therefor, as from time to time in
effect, are used in this Section with such meanings.
Section 2.17. Investment Company Act; Public Utility
Holding Company Act. Neither the Company nor any of its
Subsidiaries is an "investment company" within the meaning of the
Investment Company Act of 1940, as amended, or a "holding
company", or a "subsidiary company" of a "holding company", or an
"affiliate" of a "holding company" or of a "subsidiary company"
of a "holding company", within the meaning of the Public Utility
Holding Company Act of 1935, as amended.
Section 2.18. Accuracy of Information. All factual
information heretofore or contemporaneously furnished by or on
behalf of the Company or any other Obligor in writing to the
Administrator, any Co-Administrative Agent, any Bank or any
Issuer for purposes of or in connection with this Agreement or
any transaction contemplated hereby is, and all other such
factual information hereafter furnished by or on behalf of the
Company or any other Obligor to the Administrator, any
Co-Administrative Agent, any Bank or any Issuer will be, true and
correct in every material respect on the date as of which such
information is dated or certified and as of the date of execution
and delivery of this Agreement by the Company, the Administrator,
the Co-Administrative Agent, and the Banks, and such information
is not, or shall not be, as the case may be, incomplete by
omitting to state any material fact necessary to make such
information not misleading in light of the circumstances under
which such information is furnished and, in the case of
projections on the basis of reasonable assumptions made in good
faith as disclosed in the Credit Documents.
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ARTICLE III
CONDITIONS TO EFFECTIVENESS
AND CONDITIONS OF LENDING
Section 3.1. Conditions of Loans. The obligation of any
Issuer to issue any Letter of Credit and the obligation of each
Bank to make Revolving Credit Loans or to consider making any Bid
Auction Advance under this Agreement is subject to the
satisfaction of each of the following conditions precedent at the
time of the execution of this Agreement:
(a) Execution of this Agreement, the Notes, the
Subsidiary Guarantee and each other Credit Document. This
Agreement, a Subsidiary Guarantee executed by Kaman
Aerospace International Corporation, a Connecticut
corporation, and each of the other Credit Documents required
to be delivered on the Effective Date shall have been duly
and properly authorized, executed and delivered to the
Co-Administrative Agents by the respective party or parties
thereto and shall be in full force and effect on and as of
the Effective Date. Executed original counterparts of this
Agreement shall have been delivered to the Co-Administrative
Agents.
(b) Affirmation and Consents in Respect of the
Subsidiary Guarantees. The Co-Administrative Agents shall
have received from each Subsidiary that executed a
Subsidiary Guarantee pursuant to the Existing Credit
Agreement an Affirmation and Consent.
(c) Evidence of Corporate Action; Certified Copies of
Governing Documents. The Co-Administrative Agents shall
have received certified copies of: (i) all corporate action
taken by the Company and each such other Obligor to
authorize the execution, delivery and performance of this
Agreement, each Subsidiary Guarantee, the Affirmation and
Consent and each other Credit Document, and the borrowings
and other extensions of credit to be made hereunder;
(ii) all the Company's Governing Documents; (iii) all the
Governing Documents of each other Obligor; and (iv) such
other papers as either of the Co-Administrative Agents may
reasonably require.
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(d) Proceedings and Documents. All corporate,
governmental and other proceedings in connection with the
transactions contemplated by this Agreement and all
instruments and documents incidental thereto (including, but
not limited to, those to be delivered pursuant to the
provisions of this Article III), shall be in form and
substance satisfactory to the Co-Administrative Agents, and
the Co-Administrative Agents shall have received all such
counterpart originals or certified or other copies of all
such instruments and documents as either of the
Co-Administrative Agents shall have reasonably requested.
(e) Opinion of Counsel. The Co-Administrative Agents
shall have received an opinion addressed to the Banks, the
Administrator and each of the Co-Administrative Agents from
Xxxxxxx X. Xxxxx, Esq., counsel for the Company, in or
substantially in the form of Exhibit L attached hereto dated
the Effective Date and accompanied by such supporting
documents as either of the Co-Administrative Agents may
reasonably require.
(f) Closing Fees, Expenses, etc. Each
Co-Administrative Agent shall have received for its own
account, or for the account of each Bank or such other
Person, as the case may be, all fees, costs and expenses due
and payable pursuant to Section 1.13 and Section 10.1.
Section 3.2. Conditions of Each Loan and Bid Auction
Advance. The obligation of any Issuer to issue any Letter of
Credit and the obligation of each Bank to make any Revolving
Credit Loan or to consider making any Bid Auction Advance is
subject to the satisfaction, at the time such Advance is to be
made or such Letter of Credit is to be issued, of each of the
following conditions precedent:
(a) Notice of Borrowing. The Company shall have duly
and timely given to the Administrator a Letter of Credit
Election Notice, a Revolving Credit Election Notice or a Bid
Auction Election Notice, as the case may be, required by
this Agreement in connection with such Letter of Credit,
such Revolving Credit Loan or such Bid Auction Advance.
Such Letter of Credit Election Notice, Revolving Credit
Election Notice or Bid Auction Election Notice, as the case
may be, and the delivery thereof, without more, shall
constitute certification by the Company as to the matters
set forth in clauses (c) and (d) below.
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(b) Legality of Transactions. It shall not be
unlawful for the Company or any other Obligor to perform any
of its agreements or obligations under this Agreement, any
of the Notes, any of the Subsidiary Guarantees or any of the
other Credit Documents.
(c) Performance; No Default. The Company and each
other Obligor shall have duly and properly performed,
complied with and observed each of its covenants, agreements
and obligations contained in this Agreement, the Notes, each
of the Subsidiary Guarantees and each of the other Credit
Documents. Both before and after giving effect to any
Advance, no Default or Event of Default shall have occurred
and be continuing.
(d) Representations and Warranties. Each of the
representations and warranties made by the Company and each
other Obligor in this Agreement or any other Credit Document
shall have been true and correct in all material respects
when made and shall for all purposes of this Agreement, be
deemed repeated on and as of the date of any application by
the Company for any Advance hereunder and on the date of
making such Advance and shall be true and correct in all
material respects on and as of each of such dates.
ARTICLE IV
AFFIRMATIVE COVENANTS
The Company covenants and agrees with each of the
Co-Administrative Agents, each Issuer and each of the Banks that,
so long as any Commitments remain in effect and until such later
date as all the Obligations are paid in full in cash, unless the
Majority Banks otherwise consent in writing, the Company shall
and shall cause each of its Subsidiaries to:
Section 4.1. Financial Statements; Notice of Events of
Default. Deliver to each of the Co-Administrative Agents and
each of the Banks and Issuers: (a) within sixty (60) days after
the close of each of the first three quarters of each fiscal year
of the Company and within one hundred twenty (120) days after the
close of each fiscal year of the Company, the consolidated and
consolidating balance sheets of the Company and its Subsidiaries
as of the close of each such period and consolidated and
consolidating statements of income, cash flows and shareholders'
equity for such period, prepared in conformity with GAAP, applied
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on a basis consistent with that of the preceding period or
containing disclosure of the effect on financial position or
results of operations of any change in the application of GAAP
during the period, and certified by the president or a principal
financial officer of the Company as accurate, true and correct in
all material respects; (b) together with each such balance sheet,
a Compliance Certificate substantially in the form of Exhibit G
attached thereto; (which Compliance Certificate shall contain
written calculations by the Company in reasonable detail
concerning compliance or non-compliance, as the case may be, by
the Company with the financial covenants referred to herein); (c)
together with the annual consolidated financial statements
required to be delivered pursuant to clause (a) above for each
fiscal year, a report containing an unqualified opinion of KPMG
Peat Marwick, LLP or a comparable nationally recognized certified
public accounting firm, which opinion shall state that such
financial statements fairly present the financial condition and
results of operations of the Company and its Subsidiaries in
accordance with GAAP; (d) promptly upon the written request of
either of the Co-Administrative Agents, such other information
about the financial condition and operations of the Company and
its Subsidiaries, and any endorser or guarantor (if any), as
either of the Co-Administrative Agents may, from time to time,
reasonably request; (e) promptly after becoming available, copies
of all financial statements, reports, notices and proxy
statements sent by the Company to stockholders, and of all
regular and periodic reports filed by the Company with any
securities exchange or with the SEC or any governmental agency
successor to any or all of the functions of the SEC, and of all
press releases issued by the Company; (f) promptly upon becoming
aware of any Default or Event of Default, notice thereof in
writing; (g) promptly upon becoming aware of any development that
is likely to result in an Event of Default, notice thereof in
writing; and (h) promptly after becoming aware of any Change in
Control, notice thereof in writing.
Section 4.2. Securities Regulation Compliance Reports.
Promptly deliver to each of the Co-Administrative Agents and each
of the Banks and Issuers a copy of: (a) all filings including
financial statements and reports filed therewith and amendments
thereto made by the Company with the SEC pursuant to the
Securities Act of 1933, the Securities Exchange Act, and the
rules and regulations promulgated under either of them; (b) all
filings, financial statements and reports filed therewith and
amendments thereto made by the Company with each securities
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exchange on which the securities of the Company are listed, if
any, pursuant to the rules and regulations of each such exchange;
and (c) all written communications, financial statements,
reports, notices and proxy statements sent to any class of
holders of securities of the Company.
Section 4.3. Insurance. (a) Keep its properties insured
against fire and other hazards (so-called "All Risk" coverage) in
amounts and with companies satisfactory to the Co-Administrative
Agents to the same extent and covering such risks as are
customary and reasonably available in the same or a similar
business; (b) maintain public liability coverage against claims
for personal injuries or death; and (c) maintain all worker's
compensation, employment or similar insurance as may be required
by applicable law. Alternatively, the Company may self-insure in
such amounts and in such manner as may be appropriate in the
Company's industry and in the Company's reasonable business
judgment. The Company, upon the request of either of the
Co-Administrative Agents, agrees to deliver certificates
evidencing all of the aforesaid insurance policies to the
Co-Administrative Agents.
Section 4.4. Tax and Other Liens. Except for taxes the
payment of which is being contested in good faith after the
establishment of any reserves required by GAAP consistently
applied, pay or cause to be paid all taxes, assessments and
governmental charges of every kind which would, in the aggregate,
if not paid, be material as to the Company and its Subsidiaries
when taken as a whole or be reportable under the Securities
Exchange Act or required under FASB Standards to be disclosed on
the Company's consolidated audited financial statements; and the
Company shall deliver to the Co-Administrative Agents such other
information related to the Company's and its Subsidiaries' taxes
as may be reasonably requested by either of the Co-Administrative
Agents.
Section 4.5. Litigation. Promptly notify the
Co-Administrative Agents (which shall, in turn, promptly notify
the Banks and each Issuer) of any legal proceedings or litigation
(a) material to the Company and its Subsidiaries when taken as a
whole or reportable under the Securities Exchange Act or required
under FASB Standards to be disclosed on the Company's
consolidated audited financial statement, or (b) which questions
the validity of this Agreement, the Notes, the Letters of Credit,
any Subsidiary Guarantee or any of the other Credit Documents or
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any instrument delivered in connection herewith or therewith, or
any action to be taken in connection with the transactions
contemplated hereby or thereby; and promptly provide to the
Co-Administrative Agents such other information related to such
proceedings or litigation as reasonably requested by either of
the Co-Administrative Agents.
Section 4.6. Conduct of Business. Do or cause to be done
all things necessary to (a) preserve and keep in full force and
effect its legal existence under the laws of its jurisdiction of
incorporation; (b) obtain, preserve, renew, extend and keep in
full force and effect all rights, licenses, permits, franchises,
authorizations, patents, copyrights, trademarks and trade names
material to the conduct of its business; (c) comply in all
material respects with all Requirements of Law; (d) comply with
all of its Governing Documents; (e) maintain its qualification to
do business in each jurisdiction in which the conduct of business
requires such qualification; and (f) maintain and preserve all
property material to the conduct of its business and keep such
property in good repair, working order and condition from time to
time, and make, or cause to be made, all needful and proper
repairs, renewals, additions, improvements and replacements
thereto necessary in order that the business carried on in
connection therewith may properly be conducted at all times,
except, in each case, (i) where the failure to do so would not
have a Material Adverse Effect, (ii) that the Company may
liquidate or dissolve Subsidiaries from time to time as the
Company in the proper exercise of its judgment may determine, so
long as any such liquidation or dissolution shall not (x) either
individually or in the aggregate, have a Material Adverse Effect
or (y) be of a Subsidiary Guarantor, unless such liquidation or
dissolution is by merger into another Subsidiary which has
executed and delivered a Subsidiary Guarantee, or results in the
replacement of one Subsidiary Guarantee with a new Subsidiary
Guarantee, and after giving effect thereto there shall be no
Default or Event of Default hereunder (including in respect of
Section 2.4(b) and Section 4.10) and (iii) the Company may
liquidate or sell such other assets as it may deem advisable, in
the proper exercise of its judgment, so long as such sale or
liquidation is in compliance with Section 5.6 and, after giving
effect thereto, the Company is in compliance with Section 4.10
and the representation and warranty set forth in Section 2.4(b)
shall be true and correct.
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Section 4.7. Pension Plans. If and when the Company or any
Subsidiary gives or is required to give notice to the PBGC of any
Reportable Event (which Reportable Event is material to the
Company and its Subsidiaries when taken as a whole or is
reportable under the Securities Exchange Act or required under
FASB Standards to be disclosed on the Company's consolidated
audited financial statements), with respect to any Plan which
might constitute grounds for a termination of such Plan under
Title IV of ERISA, or knows that any member of the Controlled
Group or the plan administrator of any Plan has given notice or
is required to give notice of any Reportable Event, the Company
shall simultaneously send the Administrator a copy of such notice
(and the Administrator shall promptly forward a copy of such
notice to the Banks).
Section 4.8. Records and Accounts. Maintain true records
and books of account, complete and correct in all material
respects and in accordance with GAAP, and maintain adequate
accounts and reserves for all taxes (including income taxes), all
depreciation, depletion, obsolescence and amortization of its
properties, all other contingencies, and all other proper
reserves.
Section 4.9. Inspection. Permit any officer or employee
designated by any Co-Administrative Agent or any Bank or Issuer
to visit and inspect any of its properties and to examine its
books and discuss the affairs, finances and accounts of the
Company or any of its Subsidiaries with its officers, all at such
reasonable times, upon reasonable notice, in a reasonable manner
and as often as any Co-Administrative Agent or any Bank or Issuer
may reasonably request, subject to compliance with all applicable
security regulations and requirements of the United States and
the Company's reasonable policies and practices applicable to
safeguarding its trade secrets and proprietary products and
practices. The Company agrees with each of the Co-Administrative
Agents and the Banks and each Issuer that such policies and
practices may restrict access by the Co-Administrative Agents and
the Banks and each Issuer to certain areas of certain facilities
of the Company or its Subsidiaries, but that such policies and
practices shall not restrict in any material respect access by
the Co-Administrative Agents and the Banks and each Issuer to
personnel of the Company and its Subsidiaries.
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Section 4.10. Subsidiary Guarantees. The Company shall
cause the Co-Administrative Agents and the Banks and each Issuer
to have at all times the full credit support of Subsidiary
Guarantees, guaranteeing in full the payment of all Obligations
of the Company, executed by such Subsidiaries of the Company
which, collectively, and taken together with the Company,
(a) account for at least 80% of the consolidated
domestic gross revenues of the Company, or
(b) have assets which represent at least 80% of the
consolidated domestic gross assets of the Company,
in each case, as determined by reference to the financial
statements delivered by the Company to the Co-Administrative
Agents and the Banks and each Issuer, for the four most recently
preceding, consecutive fiscal quarters, pursuant to Section 2.6
or Section 4.1, as the case may be.
Section 4.11. Further Assurances. Cooperate with each of
the Co-Administrative Agents and each Bank and each Issuer and
take such action and execute such further instruments and
documents as either of the Co-Administrative Agents shall
reasonably request to effect the purposes of this Agreement, the
Notes and the other Credit Documents.
ARTICLE V
NEGATIVE COVENANTS
The Company covenants and agrees with each of the
Co-Administrative Agents and the Banks and each Issuer that, at
the time of the requesting or making of any Advance or the
issuance of any Letter of Credit or the extension of any Stated
Expiry Date of any Letter of Credit and so long as any Advance or
Letter of Credit (or Reimbursement Obligation in respect thereof)
remains outstanding or any Fees or interest payable hereunder
remains unpaid after becoming due and payable (and, with respect
to the Company's covenants in Section 5.4 and Section 5.6, so
long as any Commitments remain in effect and until such later
date as all the Obligations are paid in full in cash), unless the
Majority Banks otherwise consent in writing, the Company shall
not nor will it permit any Subsidiary to:
Section 5.1. Liens. Incur or permit to exist any Lien
against any of its property or assets, whether now owned or
hereafter acquired, except:
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(a) any judgment Lien unless (in case of a judgment
which shall be material to the Company and its Subsidiaries
when taken as a whole or which is reportable under the
Securities Exchange Act or required under FASB Standards to
be disclosed in the Company's audited consolidated financial
statements) the judgment it secures shall not, within thirty
(30) days after the entry thereof have been discharged or
execution thereof stayed pending appeal, or unless any such
judgment shall not have been discharged within sixty (60)
days after the expiration of any such stay;
(b) easements, rights-of-way, zoning and similar
restrictions, encumbrances or title defects (but
specifically excluding mortgages and any other Liens
securing Indebtedness) which, in the aggregate, do not
materially detract from the value of the properties of, and
do not materially and adversely interfere with the ordinary
conduct of the business of, the Company or any of its
Subsidiaries;
(c) Liens incurred in the ordinary course of business
(such as liens on inventory granted in connection with the
Company's securing of the Company's repayment of
reimbursement obligations under banker's acceptances or
commercial letters of credit but which liens cover solely
the inventory which is the subject of such banker's
acceptance or commercial letters of credit) which are not
material (individually or in the aggregate) to the Company
and its Subsidiaries when taken as a whole and do not secure
indebtedness for borrowed money (other than reimbursement
obligations under banker's acceptances or commercial letters
of credit described in the foregoing parenthetical);
(d) Liens on assets which secure previously existing
Indebtedness of corporations or business entities acquired
by the Company or a Subsidiary, whether by purchase of
assets and assumption of liabilities or by purchase of
stock, so long as (i) such acquisition is otherwise
permitted by the terms of this Agreement, (ii) the Company
is in compliance with all of its covenants herein after the
completion of such acquisition, and (iii) such Liens were
not incurred in contemplation of such acquisition and as a
result of such acquisition, and do not extend to any of the
Company's or any Subsidiary's assets owned before such
acquisition; provided, that, not later than 90 days after
any such acquisition the Company shall extinguish, or cause
to be extinguished, such Liens unless those Liens are
otherwise permitted under the terms of clauses (a), (b),
(c), (e), or (f) of this Section 5.1;
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(e) any other Liens at any time on assets (other than
inventory and accounts receivable) owned by the Company or
any of its Subsidiaries which, in the aggregate, do not
secure Indebtedness in excess of $25,000,000; and
(f) Liens granted to the Co-Administrative Agents, the
Banks and any Issuer pursuant to any Credit Document.
No Indebtedness or Liens which might be permitted in connection
with the transactions described in clauses (d) and (e) above
shall be permitted if, after giving effect to the incurrence of
such Indebtedness or Liens, a violation of the financial
covenants contained in Article VI would or shall exist.
Section 5.2. Limitation on Indebtedness. Create, incur or
permit to exist or remain outstanding any Indebtedness (other
than Indebtedness under and in respect of this Agreement, the
Notes, any Letter of Credit and each of the other Credit
Documents), or issue or sell any obligation of any Subsidiary to
a third party lender (other than pursuant to the terms of this
Agreement), if such Indebtedness would (i) cause the Company to
be in violation of any of the financial covenants set forth in
Article VI below, or (ii) exceed, individually or in the
aggregate at any time (excluding the amount of any subordinated
debt of the type described in clause (i) of the definition of
"Subordinated Debt"), $35,000,000.
Section 5.3. Contingent Liabilities. Assume, guarantee,
endorse or otherwise become liable upon the obligations of any
Person or enter into any other agreement having substantially the
same effect as a Guarantee, except for the endorsement of
negotiable instruments for deposit or collection or other
transactions in the ordinary course of business which are not
material to the Company and its Subsidiaries when taken as a
whole; provided that (i) each Significant Subsidiary may
guarantee the Obligations of the Company and each other Obligor
hereunder and under each other Credit Document pursuant to a
Subsidiary Guarantee, (ii) the Company may guarantee Indebtedness
of its Subsidiaries so long as the aggregate amount of all
Indebtedness so guaranteed, when totaled with all Consolidated
Total Indebtedness, without duplication (if not already included
therein) shall not result in a violation of any of the financial
covenants herein or in any other Event of Default hereunder. The
foregoing shall not prohibit contractual indemnities, not having
substantially the same effect as a Guarantee, given in the
ordinary course of business nor shall such contractual
indemnities be included for purposes of calculating any financial
covenant under this Agreement.
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Section 5.4. Consolidation or Merger. Enter into or
undertake any plan or agreement or transaction to merge into or
consolidate with or into any Person, unless immediately after the
consummation of such merger or consolidation, (a) the Company or
(if the merger or consolidation is between a Subsidiary and an
unaffiliated Person or if the Company elects to reincorporate by
merger into a domestic Subsidiary) such Subsidiary is the
surviving entity (and, in the case of such a reincorporation by
merger, (i) such Subsidiary expressly assumes, in a written
instrument executed and delivered to the Co-Administrative
Agents, all the Obligations of the Company or such other Obligor,
as the case may be, under this Agreement, each of the Notes, each
Letter of Credit and each of the other Credit Documents and
(ii) the Co-Administrative Agents and the Banks and each Issuer
have received a written opinion of outside legal counsel to the
Company stating that, pursuant to such merger and instrument of
assumption, such Subsidiary has assumed all the Obligations of
the Company or such other Obligor under this Agreement, each of
the Notes, each Letter of Credit and each of the other Credit
Documents), (b) the Company's management remains in control of
the merged entity, and (c) no Default or Event of Default
hereunder shall exist or would be reasonably likely to occur as a
result of such transaction. For the purposes of this
Section 5.4, the acquisition by the Company or any Subsidiary of
the Company of all or substantially all of the shares of capital
stock or all or substantially all of the assets of any Person
shall be deemed to be a consolidation of such Person with the
Company or such Subsidiary, as the case may be. Nothing herein
shall prohibit the Company from divesting a Subsidiary by merging
it with another corporation or otherwise so long as the Company
otherwise complies with Section 5.5, and after giving effect
thereto, the Company is in compliance with Section 4.10 and the
representation and warranty set forth in Section 2.4(b) thereto,
shall be true and correct.
Section 5.5. Limitation on Certain Other Fundamental
Changes. In the case of the Company, liquidate, wind-up or
dissolve itself (or suffer any liquidation, winding up or
dissolution to occur), or make any liquidating distribution.
Section 5.6. Sale of Assets. Sell or transfer any assets,
except for:
(a) sales of inventory in the ordinary course of
business; and
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(b) sales of assets (other than those referred to in
clause (a) above) for fair value (including sales for fair
value of assets in transactions in which the Company leases
back the assets sold for fair value) (i) the book value of
which (at the time of sale) does not exceed in the aggregate
for any fiscal year of the Company, fifteen percent (15%) of
the Company's Consolidated Tangible Assets as at the last
day of the then most recently completed fiscal quarter for
which financial statements for the Company and its
Subsidiaries are required to have been delivered to the
Banks pursuant to Section 4.1, and (ii) with respect to
which the Aggregate Percentage obtained after taking into
account such sales does not exceed forty-five percent (45%).
In the event of any sale or transfer of assets of the Company or
any Subsidiary not permitted by clause (a) or clause (b)(i) or
clause (b)(ii) above (referred to herein as a "Designated Sale"),
the Company will promptly (and, in any event, within five (5)
Business Days) thereafter give written notice of such Designated
Sale to each of the Co-Administrative Agents and each of the
Banks and each Issuer (a "Designated Sale Notice"), describing in
reasonable detail all material terms of such Designated Sale,
including a reasonably detailed description of the assets sold,
the purchase price and net book value of such assets, and the net
proceeds receivable by the Company or any of its Subsidiaries in
connection with such Designated Sale. If any Designated Sale
occurs prior to the Maturity Date, the Total Commitment will be
reduced, on the tenth (10th) Business Day after receipt by the
Company of written notice (a "Pay-Down Notice") from the
Administrator (at the direction of the Majority Banks) that the
Total Commitment is to be so reduced. The Administrator shall
give a Pay-Down Notice, if at all, not later than ten (10) days
after receipt by the Co-Administrative Agents and the Banks and
each Issuer of a Designated Sale Notice conforming to the
requirements of this Section 5.6. The amount of each such
reduction in the Total Commitment shall be equal to the Reduction
Amount.
For purposes of this Section 5.6, the following terms shall
have the meanings provided below:
"Aggregate Percentage" shall mean, at any time, the sum
of all Applicable Percentages since the "Effective Date"
under (and as defined in) the Existing Credit Agreement.
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"Applicable Percentage" shall mean, with respect to
each sale of assets pursuant to Section 5.6(b), the
percentage obtained by dividing (i) the book value of all
tangible assets sold (including assets sold in transactions
in which the Company leases back such assets), less the
portion thereof, if any, which resulted in a prior dollar
for dollar reduction of the Total Commitment, by (ii) the
Company's Consolidated Tangible Assets as at the last day of
the then most recently completed fiscal quarter for which
financial statements for the Company and its Subsidiaries
are required to have been delivered to the Banks pursuant to
Section 4.1.
"Designated Percentage" shall mean, with respect to
each sale of assets pursuant to Section 5.6(b), an amount
equal to (x) in the event such sale or transfer is not
permitted by clause(b)(i) above (but is permitted by
clause(b)(ii) above), 15%, (y) in the event such sale or
transfer is not permitted by clause(b)(ii) above (but is
permitted by clause(b)(i) above), 45%, and (z) in the event
such sale or transfer is not permitted by either
clause(b)(i) or clause(b)(ii) above, that percentage equal
to 15% for each fiscal year since the Effective Date to a
cumulative percentage not to exceed 45%.
"Reduction Amount" shall mean, with respect to each
sale of assets pursuant to Section 5.6(b), the book value of
such assets sold (including assets sold in transactions in
which the Company leases back such assets) or any portion
thereof, in respect of which the Aggregate Percentage
determined in connection with such sale exceeds the
Designated Percentage.
Section 5.7. Affiliate Transactions. Enter into any
transaction with an affiliate, except in the ordinary course of
business and pursuant to the reasonable requirements of the
Company's and, if applicable, such Subsidiary's business and upon
fair, reasonable and arm's-length terms.
Section 5.8. Certain Restrictive Agreements. Enter into or
permit to exist any indenture, agreement, instrument or other
arrangement (other than this Agreement), in connection with the
incurrence of Indebtedness which, directly or indirectly,
prohibits or limits, or has the effect of prohibiting or
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limiting, (a) the incurrence of Indebtedness to the Banks
pursuant to this Agreement, or the payment of such Indebtedness
or other Obligations to the Banks or any Issuer, (b) the payment
of dividends by any Subsidiary or the making by any Subsidiary of
any advances or other payments or distributions to the parent of
such Subsidiary or (c) any Subsidiary Guarantee contemplated
hereunder.
Section 5.9. Compliance With Environmental Laws. Except in
compliance with all applicable Environmental Laws (and except to
the extent that noncompliance would not have a Material Adverse
Effect), (a) use any of the Real Estate or any portion thereof
for the handling, processing, storage or disposal of Hazardous
Substances, (b) cause or permit to be located on any of the Real
Estate any underground tank or other underground storage
receptacle for Hazardous Substances, or (c) generate any
Hazardous Substances on any of the Real Estate.
ARTICLE VI
FINANCIAL COVENANTS
The Company covenants and agrees with each of the
Co-Administrative Agents and the Banks and each Issuer that, at
the time of the requesting or making of any Advance and so long
as any Advance remains outstanding or any Fees or interest
payable hereunder remains unpaid after becoming due and payable,
unless the Majority Banks otherwise consent in writing, the
Company shall not:
Section 6.1. Consolidated Net Worth. Cause or permit the
Company's Consolidated Net Worth to be less than $200,000,000 at
any time.
Section 6.2. Fixed Charge Coverage Ratio. Cause or permit
the ratio of (a) the Company's Operating Profit for the four (4)
most recently completed fiscal quarters of the Company, to (b)
the aggregate consolidated interest expense on borrowed money
(including the Obligations) (net of cash income from investments)
of the Company and its Subsidiaries for such four fiscal
quarters, (i) through (and including) December 31, 1997, to be
less than 2.50 to 1.0, and (ii) at any time of determination
thereafter, to be no less than 2.75 to 1.0.
Section 6.3. Consolidated Total Indebtedness to Total
Capitalization. Cause or permit the Company's Consolidated Total
Indebtedness to exceed fifty-five percent (55%) of its Total
Capitalization at any time.
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ARTICLE VII
EVENTS OF DEFAULT; CERTAIN REMEDIES
Section 7.1. Events of Default. The occurrence of any one
or more of the following events or conditions shall constitute an
"Event of Default":
(a) the principal amount due upon any Note is not paid
when due, whether at maturity, by acceleration or otherwise,
or the Company shall default in the payment or prepayment
when due of any Reimbursement Obligation or any deposit of
cash for collateral purposes pursuant to Section 1.9.4;
(b) any interest on any Note or any Fee due hereunder
is not paid within five (5) Business Days of the due date
thereof;
(c) default is made in the due observance or
performance of any other covenant, term or agreement
contained in this Agreement or in any other Credit Document,
and such default continues unremedied for a period of thirty
(30) days after any executive, legal or financial officer of
the Company becomes aware or is notified by either of the
Co-Administrative Agents of such default, whichever first
occurs;
(d) any representation made by the Company or any
other Obligor in Article II of this Agreement or in any
other Credit Document shall be false or incorrect in any
material respect on the date as of which made or deemed to
have been made or repeated, unless (i) (A) the fact or
condition which made such representation false or incorrect
is changed or remedied, within 15 days after any executive,
legal or financial officer of the Company becomes aware of
such misrepresentation, to make such representation true and
correct in all material respects, or (B) the Company shall
have disclosed, or shall have caused to have been disclosed,
in reasonable detail to each of the Co-Administrative Agents
and each of the Banks and each Issuer the nature and extent
of such misrepresentation within 15 days after any
executive, legal or financial officer of the Company becomes
aware of such misrepresentation, and (ii) no Material
Adverse Effect shall have occurred as a result of the fact
or condition which made such representation false or
incorrect;
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(e) any obligation of the Company or any Subsidiary
for the payment of Indebtedness in excess of Five Million
Dollars ($5,000,000), individually or in the aggregate,
(i) becomes or is declared to be due and payable prior to
the stated maturity thereof as a result of a default by the
Company or any Subsidiary, or (ii) is not paid when due or
within any grace period for the payment thereof, or (iii) is
evidenced or secured by an agreement pursuant to which there
shall occur any default in the performance or observance of
any other term, condition or agreement if the effect of such
default is to cause or permit the holder or holders of such
obligation to cause such obligation to become due prior to
its stated maturity;
(f) the Company or any Subsidiary makes an assignment
for the benefit of creditors; admits in writing its
inability to pay its debts as they become due; files a
voluntary petition in bankruptcy; is adjudicated bankrupt or
insolvent; files or consents to the filing of any petition
or answer seeking for itself any reorganization,
arrangement, composition, readjustment, dissolution,
liquidation or similar relief under any present or future
statute, law or regulation of any jurisdiction; petitions or
applies to any tribunal for any receiver, liquidator, fiscal
agent or any other similar agent or any trustee; or there is
commenced against the Company or any Subsidiary any such
proceeding without the consent of the Company or such
Subsidiary which is not dismissed within thirty (30) days
after the commencement thereof;
(g) any Change in Control occurs, and the
Co-Administrative Agents and the Banks notify the Company
within thirty (30) days after first being notified by the
Company of the Change in Control that the Co-Administrative
Agents and the Banks do not consent to the Change in
Control; and
(h) the Agreement, the Notes or any Subsidiary
Guarantee shall (except in accordance with its terms or
except as expressly permitted under this Agreement), in
whole or in part, terminate, cease to be effective or cease
to be the legally valid, binding and enforceable obligation
of any Obligor party thereto; or the Company or any other
Obligor shall, directly or indirectly, contest in any manner
such effectiveness, validity, binding nature or
enforceability.
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Section 7.2. Acceleration of Obligations. If any one or
more Events of Default shall at any time be continuing, the
Co-Administrative Agents may, and, upon the written direction of
the Majority Banks, shall, by giving notice to the Company,
declare all of the Obligations, including the entire unpaid
principal of all the Notes, all of the unpaid interest or fees
accrued thereon, and all (if any) other sums payable by the
Company or such other Obligor under this Agreement, the Notes,
the Letters of Credit (in accordance with Section 1.9.4) or any
of the other Credit Documents, to be immediately due and payable;
except that upon the occurrence of any Event of Default under
Section 7.1(f), all of the Obligations, including the entire
unpaid principal of all the Notes, all of the unpaid interest or
fees accrued thereon, and all (if any) other sums payable by the
Company or such other Obligor under this Agreement, the Notes,
the Letters of Credit or any of the other Credit Documents shall
automatically and immediately be due and payable, without notice
or demand. Thereupon, all of such Obligations which are not
already due and payable shall forthwith become and be absolutely
and unconditionally due and payable, without any further notice
(or any notice, as the case may be), or any other formalities of
any kind, all of which are hereby expressly and irrevocably
waived.
Section 7.3. Termination of Commitments; Exercise of Other
Remedies. If any one or more Defaults shall be continuing under
Section 7.1(c), or if any one or more Events of Default shall be
continuing, then:
(a) Subject always to the provisions of Section 8.11,
each of the Banks, each Issuer and the Co-Administrative
Agents may proceed to protect and enforce all or any of its
rights, remedies, powers and privileges under this
Agreement, the Notes or any of the other Credit Documents by
action at law, suit in equity or other appropriate
proceedings, whether for specific performance of any
covenant contained in this Agreement, any Note or any other
Credit Document or in aid of the exercise of any power
granted to the Administrator, any Co-Administrative Agent or
any Bank herein or therein; and
(b) The Co-Administrative Agents may, and, upon the
written request of the Majority Banks, shall, by giving
notice to the Company, immediately terminate the Commitments
of each of the Banks and each Issuer in full, and each Bank
shall, except as otherwise provided in Sections 1.9 through
1.9.5, thereupon be relieved of all of its obligations to
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make any Loans hereunder; except that upon the occurrence of
any Event of Default under Section 7.1(f), the Commitments
of all of the Banks and each Issuer shall automatically
terminate in full, and each Bank shall, except as otherwise
provided in Sections 1.9 through 1.9.5, thereupon be
relieved of all of its obligations to make any Loans
hereunder. No termination of the Commitments of the Banks
hereunder shall relieve the Company or any other Obligor of
any of its Obligations.
Section 7.4. No Implied Waivers; Rights Cumulative. No
delay on the part of the Administrator, any Co-Administrative
Agent or any Bank or any Issuer in exercising any right, remedy,
power or privilege under this Agreement, any of the Notes, any
Letter of Credit or any of the other Credit Documents provided by
statute or at law or in equity or otherwise shall impair,
prejudice or constitute a waiver of any such right, remedy, power
or privilege or be construed as a waiver of any Default or Event
of Default or as an acquiescence therein. No right, remedy,
power or privilege conferred on or reserved to the Administrator,
any Co-Administrative Agent or any Bank under this Agreement, any
of the Notes, any Letter of Credit or any of the other Credit
Documents or otherwise is intended to be exclusive of any other
right, remedy, power or privilege. Each and every right, remedy,
power and privilege conferred on or reserved to the
Administrator, any Co-Administrative Agent or any Bank or any
Issuer under this Agreement, any of the Notes, any Letter of
Credit or any of the other Credit Documents or otherwise shall be
cumulative and in addition to each and every other right, remedy,
power or privilege so conferred on or reserved to the
Administrator, any such Co-Administrative Agent or any such Bank
or any such Issuer and (subject to the provisions of
Section 8.11) may be exercised at such time or times and in such
order and manner as the Administrator, any Co-Administrative
Agent or any such Bank or any such Issuer shall (in its sole and
complete discretion) deem expedient.
Section 7.5. Set-Off. Any deposits or other sums at any
time credited by or due from any Bank to the Company and any
securities or other property of the Company in any Bank's
possession may at all times be held and treated as collateral
security for the payment and performance of the Obligations, and
the Company hereby grants to each of the Banks a continuing
security interest in such deposits, sums, securities or other
property maintained with such Bank. Regardless of the adequacy
of any collateral, while any Event of Default is continuing, any
deposits or other sums credited by or due from any of the Banks
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to the Company may be appropriately applied to or set-off against
any of the Obligations due to such Bank hereunder without notice
to the Company or compliance with any other condition precedent
now or hereafter imposed by statute, rule of law or otherwise
(all of which are hereby expressly waived by the Company). Each
Bank agrees with each other Bank that (i) if an amount to be set
off is to be applied to indebtedness of the Company to such Bank,
other than the Obligations, such amount shall be applied ratably
to such other indebtedness and to the Obligations, and (ii) if
such Bank shall receive from the Company, whether by voluntary
payment, exercise of the right of setoff, counterclaim, cross
action, enforcement of the claim evidenced by this Agreement by
proceedings against the Company, whether at law or in equity or
by proof thereof in bankruptcy, reorganization, liquidation,
receivership or similar proceedings, or otherwise, and shall
retain and apply to the payment of the Company's Obligations to
such Bank hereunder, any amount in excess of such Bank's ratable
portion of the payments to be received by all of the Banks (such
ratable portion being determined in accordance with the other
provisions of this Agreement), such Bank will promptly make such
disposition and arrangements with the other Banks with respect to
such excess, either by way of distribution, pro tanto assignment
of claims, subrogation or otherwise as shall result in each Bank
receiving in respect of the Obligations to it of the Company such
Bank's proportionate payment; provided, however, that if all or
any part of such excess payment is thereafter recovered from such
Bank, such disposition and arrangements shall be rescinded and
the amount restored to the extent of such recovery, but without
interest.
ARTICLE VIII
THE CO-ADMINISTRATIVE AGENTS
AND THE ADMINISTRATOR
Section 8.1. Authorization. Each of the Banks hereby
appoints, and authorizes to act, each of Scotiabank and Fleet as
Co-Administrative Agents and Fleet as the Administrator for the
Banks with respect to this Agreement, the Notes and each of the
other Credit Documents, and each of the Co-Administrative Agents
and the Administrator hereby agrees to so act as agent for the
Banks, on the terms and subject to the conditions set forth in
this Article VIII. All payments made by the Company to the
Administrator, for the benefit of the Banks, shall be distributed
by the Administrator to the Banks as set forth herein promptly
after receipt thereof in immediately available funds. Each Bank
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irrevocably authorizes the Administrator as the agent of such
Bank to take such action on its behalf under the provisions of
this Agreement and the Notes and each of the other Credit
Documents and to exercise such powers hereunder and thereunder as
are specifically delegated to the Administrator by the terms
hereof and thereof, together with such powers as are reasonably
incidental thereto. With respect to the Advances made pursuant
hereto, each of the Co-Administrative Agents shall have the same
obligations and the same rights, powers and privileges (a) with
respect to its Commitment and the Advances made by it in its role
as a Bank hereunder, and (b) as the holder of any of the Notes,
as any other Bank and may freely exercise the same.
Section 8.2. No Liability. Neither of the
Co-Administrative Agents nor the Administrator any of their
respective shareholders, directors, officers, employees or agents
nor any other Person assisting them in their duties nor any agent
or employee thereof shall be liable to any of the Banks for any
waiver, consent or approval given or any action taken, or omitted
to be taken, in good faith by it or them hereunder or under any
other Credit Document, or in connection herewith or therewith or
be responsible to the Banks for the consequences of any oversight
or error of judgment whatsoever, except that each of the
Co-Administrative Agents and the Administrator may be liable for
losses due to its willful misconduct or gross negligence.
Section 8.3. Conditions of Acting as Administrator and of
Accepting Appointment as a Co-Administrative Agent. The
Administrator agrees to act as Administrator, and each of the
Co-Administrative Agents accepts its appointment as a
Co-Administrative Agent, upon the following conditions set forth
in this Section 8.3.
(a) Each of the Co-Administrative Agents and the
Administrator may execute any of its duties hereunder by or
through agents or employees and shall be entitled to rely
upon advice of counsel concerning all legal matters
pertaining to the agency hereby created and its duties
hereunder.
(b) Neither of the Co-Administrative Agents nor the
Administrator shall (i) be responsible to the Banks for any
recitals, statements, warranties or representations herein,
in any other Credit Document or in any related agreements
furnished to either of the Co-Administrative Agents, the
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Administrator or any of the Banks by or on behalf of the
Company or any other Obligor, or (ii) be bound to ascertain
or inquire as to the performance or observance of any of the
terms, conditions, covenants or agreements herein or under
any other Credit Document on the part of the Company or any
other Obligor. Any such inquiry which may be made by either
of the Co-Administrative Agents or the Administrator shall
not obligate such Person to make any further inquiry or to
take any action.
(c) Each of the Co-Administrative Agents and the
Administrator shall be entitled to rely upon any Note,
notice, consent, certificate, affidavit, letter, telegram,
teletype message, statement, order, telephone communication
or other document or communication believed by it to be
genuine and correct and to have been signed or communicated
to it by the proper Person or Persons and, in respect of
legal matters, upon the advice of counsel selected by the
Co-Administrative Agents. Any request, authority or consent
of any Person who at the time of making such request or
giving such authority or consent is a Bank hereunder shall
be conclusive and binding on any subsequent transferee or
assignee of such Bank.
(d) Neither of the Co-Administrative Agents nor the
Administrator shall be responsible to any Bank for the
validity or enforceability of this Agreement or any of the
Notes or any of the other Credit Documents or for the
validity, enforceability or collectibility of any amounts
owing with respect to this Agreement or any of the Notes or
any of the other Credit Documents.
(e) Neither of the Co-Administrative Agents nor the
Administrator has made nor does it now make any
representations or warranties, express or implied, nor does
it assume any liability to the Banks with respect to the
creditworthiness or financial condition of the Company or
any of its Subsidiaries.
(f) Neither of the Co-Administrative Agents nor the
Administrator shall be responsible to (i) any party on
account of the failures of, or delay in performance or
breach by, any Bank (except for such Co-Administrative Agent
or the Administrator, in its capacity as a Bank in respect
of its obligations as such) of its obligations hereunder or
(ii) any Bank on account of the failure of or delay in
performance or breach by any other Bank or the Company
hereunder or under the Notes or under any of the other
Credit Documents or in connection herewith or therewith.
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Section 8.4. Co-Administrative Agents. In addition to
Section 8.3, and except as otherwise expressly set forth in this
Agreement, none of the Banks identified on the signature pages of
this Agreement as a "Co-Administrative Agent" shall have any
right, power, obligation, liability, responsibility or duty under
this Agreement other than those applicable to all Banks as such.
Without limiting the foregoing, none of the Banks so identified
as a "Co-Administrative Agent" shall have or be deemed to have
any fiduciary relationship with any Bank. Each Bank acknowledges
that it has not relied, and will not rely, on any of the Banks so
identified in deciding to enter into this Agreement or in taking
or not taking action hereunder or under any other Credit
Document.
Section 8.5. Payments.
(a) If in the good faith opinion of the Administrator
the distribution of any amount received by it in such
capacity hereunder might subject it to liability, it may
refrain from making such distribution until its right to
make such distribution shall have been adjudicated by a
court of competent jurisdiction. If a court of competent
jurisdiction shall adjudge that any amount received and
distributed by the Administrator is to be repaid, each
Person to whom any such distribution shall have been made
shall either repay to the Administrator its proportionate
share of the amount so adjudged to be repaid or shall pay
over the same in such manner and to such Persons as shall be
determined by such court. With respect to obligations of
the Company hereunder, a payment to the Administrator shall
be deemed to be a payment to the Banks.
(b) Notwithstanding anything to the contrary contained
in this Agreement or any of the other Credit Documents, any
Bank that is obligated to but fails (x) to make available to
the Administrator its pro rata share of any Advance (except
as set forth in Section 1.15) or (y) to comply with the
provisions of Section 7.5 with respect to making
dispositions and arrangements with the other Banks, where
such Bank's share of any payment received, whether by setoff
or otherwise, is in excess of its pro rata share of such
payments due and payable to all of the Banks, in each case
as, when and to the full extent required by the provisions
of this Agreement, shall be deemed delinquent (a "Delinquent
Bank") and shall be deemed a Delinquent Bank until such time
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as such delinquency is satisfied. A Delinquent Bank shall
be deemed to have assigned any and all payments due to it
from the Company, whether on account of outstanding Loans or
other Obligations, interest, fees or otherwise, to the
remaining nondelinquent Banks for application to, and
reduction of, their respective pro rata shares of all
outstanding Advances. The Delinquent Bank hereby authorizes
the Administrator to distribute such payments to the
non-delinquent Banks in proportion to their respective
pro rata shares of all outstanding Advances. A Delinquent
Bank shall be deemed to have satisfied in full a delinquency
when and if, as a result of application of the assigned
payments to all outstanding Advances of the nondelinquent
Banks, the Banks' respective pro rata shares of all
outstanding Advances have returned to those in effect
immediately prior to such delinquency and without giving
effect to the nonpayment causing such delinquency.
Section 8.6. Holders of Notes. The Administrator may deem
and treat the payee of any Note as the absolute owner or
purchaser thereof for all purposes hereof until it shall have
been furnished in writing with a different name by such payee or
obligor or by a subsequent holder, assignee or transferee.
Section 8.7. Modification of this Agreement, the Notes and
the Letters of Credit and each of the other Credit Documents;
Waivers and Consents. The Majority Banks shall have the power to
assent to and authorize any modification of any of the provisions
of this Agreement, the Notes or any of the other Credit Documents
and to waive or consent to any deviation from or violation of the
provisions of this Agreement, the Notes or any of the other
Credit Documents which may be requested by the Company (including
waivers of Defaults or Events of Default), and any such assent,
authorization, waiver or consent shall be binding upon all of the
Banks and all holders of the Notes as though such actions were
specifically and expressly authorized by the terms hereof;
provided, that:
(a) the obligation of the Company to pay the principal
of each of the Notes as and when the same becomes due and to
pay interest on each of them as the same shall become due
from time to time and to pay any Facility Fees or any Letter
of Credit Fee as and when the same become due, shall
continue unimpaired unless otherwise consented to in writing
by all the Banks;
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(b) neither the principal amount of any Note nor the
interest rate thereon nor any Facility Fees or any Letter of
Credit Fee payable hereunder shall be reduced without the
written consent of all the Banks;
(c) the amount of any Bank's Commitment shall not be
increased without the written consent of such Bank and the
amount of the Total Commitment shall not be increased
without the written consent of all of the Banks;
(d) the definition of "Applicable Margin", "Maturity
Date" and "Majority Banks" and clause (c) of Section 1.13
shall not be amended, modified or waived without the written
consent of all the Banks;
(e) a Default or Event of Default under clauses (a),
(b) or (f) of Section 7.1 shall not be waived without the
written consent of all the Banks;
(f) the provisions of Section 2.4(b), Section 4.10 or
Section 5.1 shall not be amended, modified or waived without
the written consent of all the Banks;
(g) except as expressly permitted under this
Agreement, the amendment or modification of any Subsidiary
Guarantee (or release of any Subsidiary from its obligations
thereunder) shall not be permitted without the written
consent of all the Banks;
(h) the provisions of this Section 8.7 shall not be
amended, modified or waived without the written consent of
all the Banks;
(i) the Stated Amount of any Letter of Credit may not
be increased unless consented to by the Issuer thereof; and
(j) the interests, rights or obligations of any Issuer
shall not be adversely affected unless consented to by such
Issuer.
Section 8.8. Costs of Co-Administrative Agents;
Indemnification. Each Bank agrees to reimburse each of the
Co-Administrative Agents, pro rata according to such Bank's
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respective Commitment, for all costs, expenses, and disbursements
(including reasonable attorneys' fees and disbursements and
amounts paid to consultants and agents retained by such
Co-Administrative Agents) incurred by, or asserted against, such
Co-Administrative Agent and not reimbursed by the Company, except
for such costs, expenses, and disbursements and amounts paid to
consultants and agents retained by such Co-Administrative Agent
incurred as a result of such Co-Administrative Agent's gross
negligence or willful misconduct. Without limitation of the
foregoing, each Bank agrees to indemnify each of the
Co-Administrative Agents and the Administrator (to the extent not
reimbursed by the Company) ratably, as aforesaid, from and
against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses, or
disbursements of any kind or nature whatsoever which may be
imposed on, incurred by or asserted against such
Co-Administrative Agent or the Administrator in any way relating
to or arising out of this Agreement, the Notes or any of the
other Credit Documents or any action taken or omitted by such
Co-Administrative Agent or the Administrator under this Agreement
or the Notes or any of the other Credit Documents, except to the
extent that the same may result from the gross negligence or
willful misconduct of such Co-Administrative Agent or the
Administrator; provided, however, that at all times during the
continuance of an Event of Default, the aforesaid reimbursement
and indemnity obligations of each Bank shall be determined by
each Bank's pro rata share of the aggregate of the Company's
Obligations (including all Advances) outstanding at such time
under this Agreement, the Notes and each of the other Credit
Documents. Each of the Co-Administrative Agents and the
Administrator shall be fully justified in failing or refusing to
take any action under this Agreement or any other Credit Document
unless it shall first receive such advice or concurrence of the
Majority Banks as it deems appropriate or 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. In all cases each
of the Co-Administrative Agents and the Administrator shall be
fully protected in acting, or in refraining from acting, under
this Agreement and the Notes and the other Credit Documents in
accordance with a request of the Majority Banks, and such request
and any action taken or failure to act pursuant thereto shall be
binding upon all the Banks and all future holders of the Notes.
If any indemnity in favor of any Co-Administrative Agent or the
Administrator shall be or become, in such Co-Administrative
Agent's or the Administrator's reasonable determination,
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inadequate, such Co-Administrative Agent or the Administrator, as
the case may be, may call for additional indemnification from the
Banks and cease to do the acts indemnified against hereunder
until such additional indemnity is given.
Section 8.9. Non-Reliance on Co-Administrative Agents and
the Administrator; Assignment.
(a) Each Bank hereby represents that it has made its own
independent investigation with respect to the creditworthiness
and financial condition of the Company and its Subsidiaries and
has not relied upon any statement or document furnished to it by
any Co-Administrative Agent or the Administrator, or any
warranty, either express or implied, by any Co-Administrative
Agent or the Administrator. Each Bank also acknowledges that it
will, independently of each of the Co-Administrative Agents, the
Administrator and each other Bank, and based on such other
documents, information and investigations as it shall deem
appropriate at any time, continue to make its own credit
decisions as to exercising or not exercising from time to time
any rights and privileges available to it under this Agreement or
any of the other Credit Documents.
(b) Each Bank further represents and warrants that it is
entering into this Agreement for investment purposes and not with
the present intention of distribution or resale. Except as
permitted by Section 10.5 below, no Bank may assign its
Commitment and/or obligations hereunder without the prior consent
of the Co-Administrative Agents and the Company and any such
transfers must comply with all applicable laws.
Section 8.10. Successor Administrator. The Administrator
may resign at any time by giving written notice thereof to the
Banks and the Company, which resignation shall be effective upon
the appointment of a successor Administrator. A successor
Administrator shall be appointed upon a vote of the Majority
Banks. Upon the acceptance of any appointment as Administrator
hereunder by a substitute or successor Administrator, such
substitute or successor Administrator shall thereupon succeed to
and become vested with all the rights, powers, privileges and
duties of the retiring Administrator, and the retiring
Administrator shall be discharged from its duties and obligations
under this Agreement from the date of its resignation as
specified in such notice, but such resignation shall not
discharge the Administrator from any liability incurred in the
discharge of its duties hereunder before such resignation.
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Section 8.11. Action by the Administrator. Except as
otherwise provided in this Agreement, the Administrator will take
such action, assert such rights and pursue such remedies under
this Agreement, the Notes and any of the other Credit Documents
as the Majority Banks shall direct and as it shall be entitled to
do so. Except as otherwise expressly provided in this Agreement,
the Administrator will not (and will not be obligated to) take
any action, assert any rights or pursue any remedies under this
Agreement or any of the Notes or any of the other Credit
Documents in violation or contravention of any express direction
or instruction of the Majority Banks. The Administrator may
refuse (and will not be obligated) to take any action, assert any
rights or pursue any remedies under this Agreement or any of the
Notes or any of the other Credit Documents without the express
written direction and instruction of the Majority Banks. No Bank
(other than the Administrator, acting in its capacity as such)
shall be entitled to take any action of any kind under this
Agreement or any Note or any of the other Credit Documents, other
than to enforce payment of amounts due and payable hereunder or
under any Note issued to such Bank.
Section 8.12. Substitution of Banks. (a) Within thirty
(30) days after any Bank has been unable, for any reason, to fund
any Loan requested in accordance with the terms hereof (and to
which the Company is entitled under the terms hereof) (such Bank
is hereinafter referred to as an "Affected Bank"), the Company
may request the non-Affected Banks to acquire all or any portion
of such Affected Bank's Advances and to assume all or such
portion of such Affected Bank's Commitment. The non-Affected
Banks may elect to acquire less than, or none of, the amount of
such Affected Bank's outstanding Advances and to assume less
than, or none of, the amount of the Affected Bank's Commitment
that the Company requested be acquired and be assumed. If the
non-Affected Banks do not elect to acquire or assume all of such
Affected Bank's outstanding Advances and Commitment, and with the
written consent (such consent not to be unreasonably withheld) of
non-Affected Banks constituting the Majority Banks, the Company
may designate a replacement lender or lenders to acquire and
assume all or any portion of the Advances and Commitment of the
Affected Bank not being acquired and assumed by the non-Affected
Banks, subject to the requirement that no such replacement lender
may have a Commitment of less than $5,000,000.
(b) If one or more non-Affected Banks shall so agree in
writing or if the Company designates a replacement lender or
lenders in respect of all or a portion of the outstanding
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Advances of the Affected Bank, such non-Affected Bank or Banks
and/or such replacement lender or lenders shall purchase such
Advances or portion, without recourse to or warranty by (other
than a warranty from the Affected Bank as to the principal amount
of the Advances being purchased), or expense to, such Affected
Bank, and such Affected Bank shall sell such Advances, for a
purchase price equal to the outstanding principal amount of the
Advances of such Affected Bank, in each case in such proportions
as the non-Affected Banks, the replacement lenders and the
Company shall agree, in the same mixture of the Eurodollar Loans,
Domestic Loans and Bid Auction Advances as all the outstanding
Advances of the Affected Bank, and on a date mutually acceptable
to the parties. Such Affected Bank's Commitment shall be
allocated among such non-Affected Banks and/or such replacement
lender or lenders in proportion to their acquisition of the
Affected Bank's Advances. All interest on and all other fees
payable on (including, without limitation, any payment or
indemnification due under Section 1.17) Advances being acquired
by the non-Affected Banks and any replacement lender or lenders
accrued as of the date of such acquisition shall be paid by the
Company to the Affected Bank on the date of such acquisition.
(c) If all of an Affected Bank's outstanding Commitment is
acquired and assumed by a non-Affected Bank or a replacement
bank, the Affected Bank shall be considered to be released from
its obligations related to the assumed Commitment and shall no
longer constitute a Bank for the purposes of this Agreement.
(d) Upon completing any purchase pursuant to this
Section 8.12 and upon executing a counterpart of this Agreement,
each replacement lender shall become a Bank hereunder.
(e) If the non-Affected Banks and any replacement lender(s)
are only willing to acquire less than all of the Affected Bank's
outstanding Advances, the Commitment of the Affected Bank shall
not terminate, but shall be reduced in an amount proportionate to
the percentage of its Advances being acquired and the Affected
Bank shall continue to be a Bank hereunder with a reduced
Commitment.
(f) The Company shall have no obligation to seek a
replacement lender or take any other action under this Section,
and any failure on the part of an Affected Bank to fund any
Advances, unless otherwise excused hereunder, shall be deemed to
be a breach of this Agreement on the part of such Bank.
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ARTICLE IX
DEFINITIONS
Section 9.1. Accounting Terms, Changes in GAAP or FASB
Standards. Unless otherwise defined, all accounting terms shall
be construed, and all computations or classifications of assets
and liabilities and of income and expenses shall be made or
determined, on a consolidated basis in accordance with GAAP. If
either GAAP or FASB Standards are changed in the future in such a
way as to materially and adversely change the effect of the
financial covenants and reporting requirements as presently
contained in this Agreement, the Company and the Banks agree to
negotiate in good faith to amend the relevant portions of this
Agreement which are controlled or determined by the application
of GAAP or FASB Standards, so that such relevant portions shall
continue to afford to the Banks the same information, protections
and covenants as provided and contained in this Agreement in its
form on this date. The defined terms used in this Agreement
shall apply equally to both the singular and the plural form of
the terms defined. All references herein to Sections and clauses
shall be deemed references to Sections and clauses of this
Agreement unless the context shall otherwise require. Each
reference herein to a particular Person (including each of the
Banks) shall be deemed to include a reference to such Person's
successors and permitted assigns. Whenever used in this
Agreement, the words "include", "includes" and "including" shall
be deemed to be followed by the phrase "without limitation".
Section 9.2. Other Definitions. As used herein, in the
Notes, the Letters of Credit and (unless otherwise provided
therein) in each other Credit Document or in any certificate,
document or report delivered pursuant to this Agreement, the
following terms shall have the following meanings:
"Accumulated Funding Deficiency" shall have the meaning
assigned to it in Section 302 of ERISA.
"Additional Costs" shall have the meaning assigned to such
term in Section 1.16(a).
"Administrator" shall mean Fleet as the "Administrator"
hereunder and any successor, transferee and assign thereof in
such capacity.
"Administrator's Funding Office" shall mean the
Administrator's office at Hartford, Connecticut, or such other
office within the United States as the Administrator may from
time to time designate by written notice to the Company and the
Banks.
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"Advances" shall mean, collectively, with respect to any
Bank, (i) any and all Loans and Bid Auction Advances made by such
Bank (ii) and any and all Letters of Credit issued by such Bank
pursuant to this Agreement, including the extension of any Stated
Expiry Date of any Existing Letter of Credit.
"Affirmation and Consent" shall mean the Affirmation and
Consent, dated as of the date hereof, duly executed and delivered
by each Subsidiary which was a Subsidiary Guarantor under the
Existing Credit Agreement, substantially in the form of Exhibit J
hereto, as amended, supplemented, amended and restated or
otherwise modified from time to time.
"Agents' Fees" shall have the meaning assigned to such term
in Section 1.13(b).
"Agreement" shall mean this Amended and Restated Revolving
Credit Agreement, as the same may from time to time be amended,
supplemented or otherwise modified.
"Applicable Margin" shall mean a percentage based upon the
highest of the then applicable credit ratings from either S&P or
Moody's with respect to Public Senior Debt (whether or not any is
outstanding) (and, with respect to determining any applicable
margin for any Loans, based upon the Level of Usage) as follows:
LIBOR LIBOR
Applicable Applicable
Margin (if Margin(if
Facility Level of Level of
Fee Base Rate Usage is Usage is
Applicable Applicable 70.0% or greater
Credit Rating Margin Margin less) than 70.0%
S&P Moody's
A- or A3 or 0.125% 0.00% 0.275% 0.375%
higher higher
BBB+ Baa1 0.150% 0.00% 0.300% 0.400%
BBB Baa2 0.175% 0.00% 0.375% 0.475%
BBB- Baa3 0.225% 0.00% 0.425% 0.525%
BB+ or Ba1 or 0.300% 0.25% 0.700% 0.800%
below below
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provided, that if at any time any Public Senior Debt is not rated
by either of S&P or Moody's, such Public Senior Debt shall, for
purposes of this definition, be deemed to have been rated one
level above the highest rating ascribed to the Company's
Subordinated Debt by S&P or Moody's; provided, further, that if
at any time neither the Subordinated Debt nor the Public Senior
Debt of the Company is rated by either of S&P or Moody's, or if
at any time neither of S&P nor Xxxxx'x is in the business of
rating debt securities such as the Company's Subordinated Debt or
Public Senior Debt, then the Company and the Banks shall enter
into good faith negotiations to establish an alternate basis for
determining the Applicable Margin, either with reference to
credit ratings from an alternative rating agency for any of the
Subordinated Debt or Public Senior Debt or on some other basis
mutually acceptable to the Company and the Banks; provided
further, however, that until such an alternate basis for
determining the Applicable Margin is established, the Applicable
Margin shall be the Applicable Margin in effect immediately prior
to such occurrence. The Company covenants and agrees with each
of the Co-Administrative Agents and the Banks to at all times use
its best efforts to cause S&P and Moody's to issue credit ratings
(either publicly or in the form of letters to the
Co-Administrative Agents) for its Public Senior Debt and/or its
Subordinated Debt (whether or not any such Public Senior Debt or
Subordinated Debt is outstanding).
"Assignment and Acceptance" shall mean an assignment and
acceptance agreement, in or substantially in the form of Exhibit
H attached hereto, entered into by a Bank and an assignee of such
Bank pursuant to Section 10.5, and accepted by the Company and
the Co-Administrative Agents.
"Banks" shall have the meaning assigned to such term in the
preamble to this Agreement.
"Base Rate" shall mean, with respect to all Domestic Loans,
a fluctuating rate of interest per annum equal to the higher of
(i) the rate interest most recently announced by the
Administrator at the Administrator's Funding Office as its prime
rate for dollar loans, and (ii) the interest rate quoted to the
Administrator for the purchase of overnight federal funds by
brokers of recognized standing plus one-half of one percentage
point (1/2 of 1%).
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The Base Rate is not necessarily intended to be the lowest rate
of interest determined by the Administrator in connection with
extensions of credit. Changes in the rate of interest on that
portion of any Domestic Loans maintained as Base Rate Loans will
take effect simultaneously with each change in the
Administrator's prime rate.
"Bid Auction Acceptance" shall mean a notice delivered by
the Company to any Bank or Banks pursuant to Section 1.4(d),
substantially in the form of Exhibit F hereto.
"Bid Auction Advance" and "Bid Auction Advances" shall mean
an advance made to the Company by any or all of the Banks
pursuant to the terms of Section 1.4.
"Bid Auction Borrowing" shall mean a borrowing under
Section 1.4 consisting of one or more Bid Auction Advances made
by each of the Banks whose offer to make a Bid Auction Advance as
part of such borrowing has been accepted by the Company under the
auction bidding procedure described in Section 1.4(d).
"Bid Auction Election Notice" shall mean a notice delivered
to the Administrator pursuant to Section 1.4(b), substantially in
the form of Exhibit D hereto.
"Bid Auction Note" and "Bid Auction Notes" shall have the
respective meanings assigned to such terms in Section 1.4(j).
"Bid Auction Offer" shall mean a notice delivered by any
Bank to the Company pursuant to Section 1.4(c), substantially in
the form of Exhibit E hereto.
"Business Day" shall mean, with respect to Eurodollar Loans,
any day on which commercial banks are open for domestic and
international dealings in Dollar deposits in Hartford,
Connecticut, New York, New York, Boston, Massachusetts and
London, England and, with respect to any other Loans or any Bid
Auction Advances or any other matters, any day other than a day
on which commercial banks in Hartford, Connecticut, Boston,
Massachusetts, and New York, New York, are required or permitted
by law to close.
"Change in Control" shall mean the acquisition of more than
fifty percent (50%) of the Company's voting stock by any Person
who is not affiliated with, a member of, or a nominee of the
Company's management, the Kaman family or any trust, corporation,
or other legal entity established by or for the benefit of such
affiliated Person.
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"Co-Administrative Agent" and "Co-Administrative Agents"
shall have the respective meanings ascribed to such terms in the
preamble of this Agreement.
"Code" shall mean the Internal Revenue Code of 1986 and all
rules and regulations promulgated pursuant thereto, as the same
may from time to time be supplemented or amended.
"Commitment" and "Commitments" shall have the respective
meanings assigned to such terms in Section 1.1 hereof.
"Company" shall have the meaning assigned to such term in
the preamble of this Agreement.
"Consolidated Net Income" shall mean the Company's
consolidated net income as determined under GAAP.
"Consolidated Net Worth" shall mean the Company's
consolidated shareholders equity (including any and all
Qualifying Preferred Stock) as determined under GAAP.
"Consolidated Total Indebtedness" shall mean, as of any
date, any Indebtedness of the Company or any Subsidiary, other
than any Indebtedness of the Company to any wholly-owned
Subsidiary or of any wholly-owned Subsidiary to the Company or
any other wholly-owned Subsidiary.
"Consolidated Tangible Assets" shall mean the Company's
consolidated assets, excluding all Intangible Assets.
"Contingent Liability" shall mean any liability,
indebtedness or obligation of the type described in or
contemplated by Section 5.3.
"Controlled Group" shall mean all trades or businesses
(whether or not incorporated) under common control which,
together with the Company or any Subsidiary, are treated as a
single employer under Section 414(b) or 414(c) of the Code or
Section 4001 of ERISA.
"Credit Documents" means (i) this Agreement, the Notes, each
Letter of Credit, each Subsidiary Guarantee, each Affirmation and
Consent, each Revolving Credit Election Notice, each Bid Auction
Election Notice, each Letter of Credit Election Notice, each Bid
Auction Acceptance and each other notice, agreement, certificate,
document or instrument delivered in connection with this
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Agreement and (ii) any agreements or instruments pursuant to
which the Obligations of the Company or any other Obligor under
this Agreement, any of the Notes or any of the Subsidiary
Guarantees are refunded, refinanced or replaced (in whole or in
part) from time to time, as such agreements, certificates,
documents and instruments referred to in clauses (i) and (ii) of
this definition may from time to time be amended, supplemented,
restated, renewed or otherwise modified.
"Default" shall mean any event which, but for the giving of
notice or the lapse of time, or both, would constitute an Event
of Default.
"Dollar", "Dollars" and the sign "$" shall mean lawful money
of the United States of America.
"Domestic Loan" shall mean all or any portion of any Loan
made hereunder which bears interest based on the Base Rate.
"Effective Date" shall mean July 3, 1997.
"Environmental Laws" shall mean any and all Requirements of
Law regulating, relating to or imposing liability or standards or
conduct concerning, any Hazardous Substances or environmental
protection.
"ERISA" shall mean the Employee Retirement Income Security
Act of 1974 and all rules and regulations promulgated pursuant
thereto, as the same may from time to time be supplemented or
amended.
"Eurodollar Loan" shall mean all or any portion of any Loan
made hereunder which bears interest based on LIBOR.
"Event of Default" and "Events of Default" shall have the
respective meanings assigned to such terms in Section 7.1.
"Existing Bid Auction Advances" means (collectively) the
"Bid Auction Advances" under (and as defined in) the Existing
Credit Agreement made to the Company pursuant to the Existing
Credit Agreement.
"Existing Credit Agreement" is defined in the first recital.
"Existing Letters of Credit" means Letter of Credit No.
2887/97/80085, dated June 25, 1997, issued by Scotiabank for the
benefit of Australia and New Zealand Banking Group Limited in the
initial Stated Amount of $49,447,844.
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"Existing Loans" means (collectively) the "Loans" under (and
as defined in) the Existing Credit Agreement made to the Company
pursuant to the Existing Credit Agreement.
"Facility Fee" and "Facility Fees" shall have the respective
meanings assigned to such terms in Section 1.11(a).
"FASB Standards" shall mean the standards established by the
Financial Accounting Standards Board, in effect from time to
time.
"Federal Funds Rate" means, for any period, a fluctuating
interest rate per annum equal for each day during such period to
(a) the weighted average of the rates on overnight
federal funds transactions with members of the Federal
Reserve System arranged by federal funds brokers, as
published for such day (or, if such day is not a Business
Day, for the next preceding Business Day) by the Federal
Reserve Bank of New York; or
(b) if such rate is not so published for any day which
is a Business Day, the average of the quotations for such
day on such transactions received by the Administrator from
three federal funds brokers of recognized standing selected
by it.
"Fee" and "Fees" shall mean any and all Facility Fees,
Letter of Credit Fees and/or Agents' Fees.
"Foreign Bank" shall have the meaning assigned to such term
in Section 1.10(b).
"F.R.S. Board" shall mean the Board of Governors of the
Federal Reserve System or any successor thereto.
"GAAP" shall mean generally accepted accounting principles,
as in effect from time to time, applied on a consistent basis.
"Governing Documents" shall mean as to any Person, the
articles or certificate of incorporation and by-laws or other
organizational documents of such Person, as amended.
"Governmental Authority" shall mean any nation or
government, any state or other political subdivision thereof, and
any entity exercising any executive, legislative, judicial,
regulatory, or administrative functions of or pertaining to
government.
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"Guarantee" shall mean, in relation to any Person, any
obligation, contingent or otherwise, of such Person guaranteeing
or having the economic effect of guaranteeing any liabilities of
any other Person in any manner, whether directly or indirectly.
"Hazardous Substances" shall mean any hazardous waste,
substances or materials, any pollutants or contaminants, any
toxic substances, and any other substances regulated by any
Environmental Laws.
"Indebtedness" shall mean, in relation to any Person,
without duplication: (a) all obligations of such Person for
borrowed money; (b) all obligations of such Person evidenced by
bonds, debentures or notes or similar instruments which (in the
case of such similar instruments only) are held by financial
institutions; (c) all obligations, contingent or otherwise,
relative to the Stated Amount of all Letters of Credit, in
addition to the Stated Amount of letters of credit (but only, in
the case of letters of credit, to the extent it, individually or
in the aggregate, exceeds $15,000,000), whether or not drawn,
issued for the account of such Person; (d) all obligations of
such Person upon which interest charges are customarily paid,
excluding trade indebtedness incurred in the ordinary course of
business; (e) all obligations of such Person issued or assumed as
the deferred purchase price of property (other than trade
indebtedness incurred in the ordinary course of business); (f)
all capitalized lease obligations of such Person; (g)all
obligations of such Person as an account party in respect of
bankers' acceptances.
"Indemnified Party" and "Indemnified Parties" shall mean
each of the Co-Administrative Agents, the Administrator, each of
the Banks, each affiliate of any of the foregoing and the
respective directors, officers, agents and employees of each of
the foregoing, and each other person controlling any of the
foregoing within the meaning of either Section 15 of the
Securities Act of 1933, as amended, or Section 20 of the
Securities Exchange Act of 1934, as amended.
"Intangible Assets" shall mean any and all goodwill,
patents, patent applications, trademarks, trade names, trade
styles, copyrights, all applications therefor, research and
development costs, tax refunds, and all other assets of the
Company and its Subsidiaries constituting intangible assets as
determined by GAAP.
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"Interest Period" shall mean:
(a) Eurodollar Loans. With respect to each Eurodollar
Loan, the period commencing on the date of such Eurodollar
Loan and ending 1, 3, or 6 months thereafter, as the case
may be, as selected by the Company in compliance with this
Agreement and as set forth in the applicable Election
Notice.
(b) Bid Auction Advances. With respect to each Bid
Auction Advance, the period commencing on the date of such
Bid Auction Advance and ending not less than 7 days nor more
than 180 days thereafter, as the Company and the lender of
such Bid Auction Advance may agree, pursuant to Section 1.4.
"Issuer" means either of the Co-Administrative Agents, in
its capacity as Issuer of the Letters of Credit. At the request
of either of the Co-Administrative Agents, another Bank or an
affiliate of either of the Co-Administrative Agents may issue one
or more Letters of Credit hereunder; provided, however, that the
prior written consent of the Company (which consent shall not be
unreasonably withheld or delayed) shall be required as to any
such other Bank and, if the debt rating of such affiliate is less
than that of the applicable Co-Administrative Agent, as to any
such affiliate. The Company's consent shall be deemed to be
reasonably withheld if the beneficiary of the Letter of Credit
declines to accept the Letter of Credit of such other Bank or
such affiliate.
"letter of credit" means each letter of credit issued for
the account of the Company or any of its Subsidiaries (other than
the Letters of Credit).
"Letter of Credit" means any and all Letters of Credit
issued pursuant to the terms of this Agreement, including all
Existing Letters of Credit.
"Letter of Credit Commitment" means, with respect to an
Issuer, such Issuer's obligation to issue Letters of Credit
pursuant to Section 1.5 and, with respect to each of the other
Banks, the obligations of each such Lender to participate in such
Letters of Credit pursuant to Sections 1.9 through 1.9.5.
"Letter of Credit Election Notice" shall mean a notice
delivered to the Administrator pursuant to Section 1.9,
substantially in the form of Exhibit K hereto.
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"Letter of Credit Fee" shall have the meaning assigned to
such term in Section 1.13(c).
"Letter of Credit Outstandings" means, on any date, an
amount equal to the sum of
(a) the then aggregate Dollar amount which is undrawn
and available under all issued and outstanding Letters of
Credit,
plus
(b) the then aggregate Dollar amount of all unpaid and
outstanding Reimbursement Obligations.
"Level of Usage" shall mean, at any time, the ratio
(expressed as a percentage) of (x) the aggregate amount of all
Advances outstanding at such time, over (y) the Total Commitment,
as then in effect.
"Liabilities" shall mean any and all losses, claims,
damages, liabilities or other costs or expenses (including
reasonable attorneys' and other professionals' fees and
disbursements as and when incurred by such Indemnified Party) to
which an Indemnified Party may become subject which arise out of
or relate to or result from any transaction, action or proceeding
related to or connected with this Agreement or any other Credit
Document, excluding those losses, claims, damages, liabilities or
other costs or expenses arising for the account of a particular
Indemnified Party by reason of the relevant Indemnified Party's
gross negligence, bad faith or wilful misconduct.
"LIBO Rate" shall mean, with respect to each Interest Period
for a Eurodollar Loan, the rate per annum at which deposits in
Dollars (for a period substantially equal to the period of such
Interest Period and in an amount substantially equal to the
principal amount of such Eurodollar Loan) are offered to the
Administrator for delivery in the LIBOR Market at or about 11:00
A.M., local time two Business Days prior to the first day of such
Interest Period.
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"LIBOR" shall mean, relative to any Loan to be made,
continued or maintained as, or converted into, a Eurodollar Loan
for any Interest Period, a rate per annum (rounded upwards, if
necessary, to the nearest 1/16 of 1%) determined pursuant to the
following formula:
LIBOR
(or "LIBO Rate = LIBO Rate
(Reserve Adjusted")) 1.00 - LIBOR Reserve
Percentage
LIBOR for any Interest Period for Eurodollar Loans will be
determined by the Administrator on the basis of the LIBOR Reserve
Percentage in effect on, and the applicable rates furnished to
and received by the Administrator, two Business Days before the
first day of such Interest Period.
"LIBOR Reserve Percentage" shall mean, relative to any
Interest Period for Eurodollar Loans, the reserve percentage
(expressed as a decimal) equal to the maximum aggregate reserve
requirements (including all basic, emergency, supplemental,
marginal and other reserves and taking into account any
transitional adjustments or other scheduled changes in reserve
requirements) specified under regulations issued from time to
time by the F.R.S. Board and then applicable to assets or
liabilities consisting of and including "Eurocurrency
Liabilities", as currently defined in Regulation D of the F.R.S.
Board, having a term approximately equal or comparable to such
Interest Period.
"LIBOR Market" shall mean the London interbank market, or
(with the prior consent of the Company and each of the Banks) any
other lawful offshore market in which deposits of Dollars are
offered by foreign branches of United States banking institutions
and by foreign banking institutions to each other.
"Lien" shall mean any mortgage, pledge, hypothecation,
security interest, encumbrance, charge or lien (statutory or
otherwise) in respect of an interest in property intended to
secure, support or otherwise assure payment of an obligation.
"Loan" or "Loans" shall mean any and all Revolving Credit
Loans, whether made pursuant to the terms of the Existing Credit
Agreement or this Agreement.
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"Majority Banks" shall mean (a) as of any date on which the
Commitments shall be in effect and shall not have been terminated
under the terms hereof, Banks whose aggregate Commitments
constitute at least 66 2/3% of the Total Commitment and (b) as of
any date after the date on which the Commitments shall have been
terminated, Banks holding at least 66 2/3% of the outstanding
principal amount of the Loans and Bid Auction Advances
outstanding on such date.
"Material Adverse Effect" shall mean any of the following:
(a) any materially adverse effect on the business, assets,
properties, operations, prospects or condition, financial or
otherwise, of the Company and its Subsidiaries taken as a whole;
(b) any material impairment of the ability of the Company to
perform any of its obligations under this Agreement, the Notes or
any other Credit Document; (c) any impairment of the ability of
any Obligor to perform any of its obligations under any
Subsidiary Guarantee which impairment would either (i) have a
material adverse effect on the obligations of all the Obligors
(other than the Company), when taken together as a whole, or (ii)
result in non-compliance with Section 4.10; or (d) any impairment
of the validity or enforceability of this Agreement, the Notes or
any Subsidiary Guarantee or any of the rights, remedies or
benefits to either of the Co-Administrative Agents, the
Administrator or the Banks under this Agreement, the Notes, any
Subsidiary Guarantee or any other Credit Document.
"Maturity Date" shall have the meaning assigned to such term
in Section 1.1.
"Moody's" shall mean Xxxxx'x Investors Service, Inc.
"Note" or "Notes" shall mean any and all of a Revolving
Credit Note, the Revolving Credit Notes, a Bid Auction Note or
the Bid Auction Notes, whether issued pursuant to the terms of
the Existing Credit Agreement or this Agreement.
"Obligations" shall mean all indebtedness, obligations and
liabilities existing on the date of this Agreement or arising
from time to time thereafter, whether direct or indirect, joint
or several, absolute or contingent, matured or unmatured,
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liquidated or unliquidated, secured or unsecured, arising by
contract, operation of law or otherwise, of the Company and each
other Obligor to either of the Co-Administrative Agents, the
Administrator, any Issuer or any of the Banks (a) in respect of
Loans or Bid Auction Advances made to the Company by any of the
Banks pursuant to this Agreement, (b) in respect of any Letter of
Credit issued for the account of the Company or any Subsidiary
Guarantor (including in respect of any Reimbursement Obligation
in respect thereof), or (c) arising or incurred under or in
respect of this Agreement, any of the Notes, any Letter of Credit
or any of the other Credit Documents.
"Obligor" and "Obligors" shall mean the Company or any
Subsidiary of the Company obligated under any Credit Document.
"Operating Profit" for any fiscal period shall mean the
Company's consolidated operating profit as determined on a
consolidated basis by the application of GAAP, but excluding
interest expense and interest income, special items such as gains
or losses on sales of assets, all taxes on income, any
extraordinary or special items reported net of taxes, and all
other items required by GAAP to be reported as non-operating
income.
"PBGC" shall mean the Pension Benefit Guaranty Corporation.
"Person" shall mean any individual, corporation,
association, partnership, trust, unincorporated association,
business, or other legal entity, and any government or any
governmental agency or political subdivision thereof
"Plan" shall mean any employee benefit plan or other plan
maintained for employees covered by Title 10 of ERISA.
"Prohibited Transaction" shall have the meaning assigned to
such term in Section 4975 of the Code.
"Public Senior Debt" shall mean long-term, publicly held
senior indebtedness of the Company (whether or not outstanding).
"Qualifying Preferred Stock" shall mean any issued and
outstanding preferred stock of the Company with respect to which
no mandatory redemption or repurchase is or could be required of
the Company or any of its Subsidiaries prior to the Maturity
Date.
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"Real Estate" means any real estate owned or operated by the
Company or any of its Subsidiaries.
"Register" shall have the meaning assigned to such term in
Section 10.5(d).
"Reportable Event" shall have the meaning assigned to such
term in Section 4034 of ERISA.
"Requirement of Law" shall mean as to any Person, (i) the
Governing Documents of such Person, and (ii) any law, treaty,
rule or regulation or determination of any arbitrator or a court
or other Governmental Authority, in each case applicable to or
binding upon such Person or any of its property or to which such
Person or any of its property is subject.
"Revolving Credit Election Notice" shall mean a notice
delivered to the Administrator pursuant to clause (a) of
Section 1.3, substantially in the form of Exhibit C hereto.
"Revolving Credit Loan" and "Revolving Credit Loans" shall
mean any Loan made hereunder pursuant to Section 1.1.
"Revolving Credit Note" or "Revolving Credit Notes" shall
have the respective meanings assigned to such terms in
Section 1.3.
"S&P" shall mean Standard & Poor's Ratings Group, a division
of McGraw Hill, Inc.
"SEC" shall mean the Securities and Exchange Commission.
"Securities Act" shall mean the Securities Act of 1933, as
amended.
"Securities Exchange Act" shall mean the Securities Exchange
Act of 1934, as amended.
"Senior Debt" means, collectively, all obligations of the
Company under or in respect of the Credit Documents, including
all such obligations in respect of principal, interest (including
interest accruing after any bankruptcy or insolvency proceeding
is commenced by or against the Company, whether or not such
interest is an allowed claim in such proceeding), fees, costs,
expenses or indemnities owing under any of the Credit Documents.
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"Stated Amount" of each Letter of Credit or, if applicable,
other letter of credit, means the total Dollar amount then
available to be drawn under such Letter of Credit or, if
applicable, other letter of credit.
"Stated Expiry Date" is defined in Section 1.9.
"Subordinated Debt" means (i) any Indebtedness of the
Company under the Indenture, dated as of February 4, 1987,
between the Company and Manufacturers Hanover Trust Company, as
trustee, relating to the $85,000,000 (subject to increase to
$95,000,000) principal amount of 6% Convertible Subordinated
Debentures of the Company due 2012 and (ii) any Indebtedness of
the Company not described in the foregoing clause (i) which is
expressly subordinated to all Senior Debt on terms not materially
less favorable to the holders of Senior Debt than the terms of
subordination of the Indebtedness described in clause (i) of this
definition.
"Subsidiary" and "Subsidiaries" shall mean any corporation
or corporations of which more than 50% of the outstanding shares
of stock of each class having ordinary voting power is at the
time owned by the Company and/or by one or more Subsidiaries.
"Subsidiary Guarantee" shall mean each Subsidiary Guarantee
executed and delivered by a Subsidiary of the Company to each of
the Co-Administrative Agents and the Banks pursuant to the
Existing Credit Agreement or pursuant to Section 3.1(a) or
Section 4.10 of this Agreement, substantially in the form of
Exhibit I hereto, as amended, supplemented, amended and restated
or otherwise modified from time to time.
"Subsidiary Guarantor" shall mean any Subsidiary of the
Company which (i) has executed a Subsidiary Guarantee pursuant to
the Existing Credit Agreement or pursuant to Section 3.1 of this
Agreement on the Effective Date or (ii) is required to execute a
Subsidiary Guarantee in accordance with Section 4.10 of this
Agreement.
"Termination Date" shall mean the date all the Obligations
then due and payable have been paid in full and all the
Commitments have terminated.
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"Total Capitalization" means the aggregate amount at any
time of the Company's Consolidated Net Worth plus the Company's
Consolidated Total Indebtedness.
"Total Commitment" shall have the meaning assigned to such
term in Section 1.1.
ARTICLE X
MISCELLANEOUS
The covenants set forth in this Article X shall survive the
delivery of the Notes and any Advances made hereunder.
Section 10.1. Expenses. The Company agrees to pay all
out-of-pocket expenses of each of the Co-Administrative Agents
(including reasonable fees and expenses of counsel to the
Co-Administrative Agents), the Administrator (including
reasonable fees and expenses of counsel to the Administrator) and
the Banks (including reasonable fees and expenses of counsel to
the Banks) incurred in connection with: (i) the collection of
Obligations due hereunder, under the Notes, the Letters of Credit
or any of the other Credit Documents, and/or (ii) the defense,
protection, preservation, realization or enforcement of any of
the rights or remedies of any of the Co-Administrative Agents,
the Administrator or any of the Banks under any provisions of
this Agreement, any of the Notes or under any of the other Credit
Documents, and/or (iii) the syndication of the Loans and/or
(iv) except to the extent such action, suit or proceeding arose
as a result of the gross negligence, bad faith or wilful
misconduct of such Co-Administrative Agent or the Administrator
or such Bank, any action, suit or proceeding in accordance with
this Section 10.1 (whether or not an Indemnified Party is a party
or is subject thereto); provided that no fees and expenses of
counsel for the Banks (other than the Co-Administrative Agents
and the Administrator) shall be payable by the Company unless
incurred after an Event of Default has occurred.
Section 10.2. Prejudgment Remedy Waiver; Other Waivers.
THE COMPANY ACKNOWLEDGES THAT THE FINANCING EVIDENCED HEREBY IS A
COMMERCIAL TRANSACTION AND WAIVES ITS RIGHTS TO NOTICE AND
HEARING UNDER CHAPTER 903A OF THE CONNECTICUT GENERAL STATUTES,
OR AS OTHERWISE ALLOWED BY ANY STATE OR FEDERAL LAW WITH RESPECT
TO ANY PREJUDGMENT REMEDY WHICH ANY CO-ADMINISTRATIVE AGENT, THE
ADMINISTRATOR OR ANY BANK MAY DESIRE TO USE, AND FURTHER WAIVES
DILIGENCE, DEMAND, PRESENTMENT FOR PAYMENT, NOTICE OF NONPAYMENT,
PROTEST AND NOTICE OF ANY RENEWALS OR EXTENSIONS. THE COMPANY
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ACKNOWLEDGES AND RESERVES ITS RIGHT TO NOTICE AND A HEARING
SUBSEQUENT TO THE ISSUANCE OF A WRIT FOR PREJUDGMENT REMEDY AS
AFORESAID AND THE CO-ADMINISTRATIVE AGENTS, THE ADMINISTRATOR AND
THE BANKS ACKNOWLEDGE THE COMPANY'S RIGHT TO SAID HEARING
SUBSEQUENT TO THE ISSUANCE OF SAID WRIT.
Section 10.3. Covenants to Survive; Binding Agreement. All
covenants, agreements, warranties, representations and statements
of the Company made herein, in the Notes, in any of the other
Credit Documents or in any certificates or other documents
delivered by or on behalf of the Company pursuant hereto shall be
deemed to have been relied on by each of the Co-Administrative
Agents and each of the Banks notwithstanding any investigation
heretofore or hereafter made by it, and shall survive the
advances of money made by any Bank to the Company hereunder, the
delivery of the Notes, the Letters of Credit and each of the
other Credit Documents and all such covenants, agreements,
warranties and representations shall be binding upon the Company
and inure to the benefit of the Bank(s) and their respective
successors and assigns, whether or not so expressed.
Section 10.4. Amendments and Waivers. Neither this
Agreement, the Notes, the Letters of Credit or any of the other
Credit Documents, nor any term, covenant or condition hereof or
thereof may be changed, waived, discharged, modified or
terminated except by a writing executed in compliance with
Section 8.7. No failure on the part of any of the
Co-Administrative Agents, the Administrator or any of the Banks
to exercise, and no delay in exercising, and no course of dealing
with respect to, any right, remedy or power hereunder, under any
Note, any Letter of Credit, or under any other Credit Document
shall preclude any other or future exercise thereof, or the
exercise of any other right, remedy or power. No waiver shall
extend to or affect any obligation not expressly waived.
Section 10.5. Transfer of Bank's Interest.
(a) To the extent set forth in this Section 10.5, the
Company hereby agrees that any of the Banks may sell, assign
or otherwise transfer all or any portion of its interests,
rights and obligations under this Agreement or any of the
Notes (including all or a portion of its Commitment and the
Advances at any time owing to it and the Note or Notes held
by it) on the condition that in any such transfer: (i) the
transferee be bound to any confidentiality obligations the
transferring Bank owes to the Company; and (ii) the
transferring Bank make the transfer in compliance with this
Section 10.5.
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(b) Each Bank may, with the consent (which consent
will not be unreasonably withheld or delayed) of the Company
and each of the Co-Administrative Agents, assign to one or
more banks or other financial institutions all or a portion
of its interests, rights and obligations under this
Agreement or any of the Notes (including all or a portion of
its Commitment and the Advances at the time owing to it and
the Note or Notes held by it); provided, however, that
(i) the amount of the Commitment and Advances of the
assigning Bank subject to each such assignment (determined
as of the date the Assignment and Acceptance with respect to
such assignment is delivered to the Co-Administrative
Agents) shall not be less than $5,000,000, and (ii) the
parties to each such assignment shall execute and deliver to
each Co-Administrative Agent an Assignment and Acceptance,
together with the Notes subject to such assignment and a
processing and recordation fee of $2,500 payable to the
Administrator. Upon acceptance and recording pursuant to
clause (e) of this Section 10.5, from and after the
effective date specified in each Assignment and Acceptance,
which effective date shall be at least five (5) Business
Days after the execution thereof, (A) the assignee
thereunder shall be a party hereto and, to the extent
provided in such Assignment and Acceptance, have the rights
and obligations of a Bank under this Agreement (which
obligations shall in any event include all obligations from
which the assigning Bank is released as provided in such
Assignment and Acceptance) and (B) the assigning Bank
thereunder shall to the extent provided in such Assignment
and Acceptance, be released from its obligations under this
Agreement (and, in the case of an Assignment and Acceptance
covering all or the remaining portion of an assigning Bank's
rights and obligations under this Agreement, such Bank shall
cease to be a party hereto but shall continue to be entitled
to the benefits of Sections 1.15, 1.16, 10.1 and 10.9).
Notwithstanding the foregoing, any Bank may assign, without
the consent of the Company or the Co-Administrative Agents,
(x) all of its rights and interests in respect of any Bid
Auction Advance to any person, without payment of the
processing and recordation fee referred to above in this
clause (b), and (y) all or a portion of its interests,
rights and obligations under this Agreement, any of the
Notes (including all or a portion of its Commitment and the
Advances at the time owing to it and the Note or Notes held
by it) or any Letters of Credit to any affiliate of such
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Bank; provided that no such assignment to any affiliate of
any Bank pursuant to the foregoing clause (y) shall relieve
such assigning Bank of its obligations hereunder unless the
Company shall have consented to such assignment (it being
understood that the Company's consent shall not be
unreasonably withheld or delayed).
(c) By executing and delivering an Assignment and
Acceptance, the assigning Bank thereunder and the assignee
thereunder shall be deemed to confirm to and agree with each
other and the other parties hereto as follows: (i) other
than the representation and warranty by the assigning Bank
that it is the legal and beneficial owner of the interest
being assigned thereby free and clear of any lien or
security interest, neither such assigning Bank, nor any
Co-Administrative Agent, nor the Administrator, nor any
other Bank makes any representation or warranty or assumes
any responsibility with respect to any statements,
warranties or representations made in or in connection with
this Agreement or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of this
Agreement, any of the Notes, the Letters of Credit, any of
the other Credit Documents or any other instrument or
document furnished pursuant hereto; (ii) neither such
assigning Bank, nor any Co-Administrative Agent, nor the
Administrator, nor any other Bank makes any representation
or warranty or assumes any responsibility with respect to
the financial condition of the Company or any of its
Subsidiaries or the performance or observance by the Company
of any of its obligations under this Agreement, any of the
Notes, any Letters of Credit, any other Credit Document or
any other instrument or document furnished pursuant hereto;
(iii) such assignee confirms that it has received a copy of
this Agreement, together with copies of the most recent
financial statements delivered pursuant to Section 4.1 and
such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to
enter into such Assignment and Acceptance; (iv) such
assignee will independently and without reliance upon any
Co-Administrative Agent, such assigning Bank, the
Administrator 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 this Agreement and any Notes payable to
it or under any other Credit Document; (v) such assignee
appoints each of the Co-Administrative Agents as
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Co-Administrative Agent for it and appoints and authorizes
the Administrator to take such action as agent on its behalf
and to exercise such powers under this Agreement as are
delegated to the Administrator by the terms hereof, together
with such powers as are reasonably incidental thereto; and
(vi) such assignee agrees that it will perform in accordance
with their terms all the obligations which by the terms of
this Agreement are required to be performed by it as a Bank.
(d) The Administrator shall maintain at one of its
offices in Hartford, Connecticut a copy of each Assignment
and Acceptance delivered to it and a register for the
recordation of the names and addresses of the Banks, and the
Commitment of, and the principal amount of the Loans and Bid
Auction Advances and Letters of Credit owing to, each Bank
pursuant to the terms hereof from time to time (the
"Register"). The entries in the Register shall be
conclusive in the absence of manifest error and the Company,
each of the Co-Administrative Agents, the Administrator and
each of the Banks may treat each person whose name is
recorded in the Register pursuant to the terms hereof, as a
Bank hereunder for all purposes of this Agreement. The
Register shall be available for inspection by the Company
and any Bank, at any reasonable time and from time to time
upon reasonable prior notice.
(e) Upon the Administrator's receipt of a duly
completed Assignment and Acceptance executed by an assigning
Bank and an assignee, and accepted by the Company and each
of the Co-Administrative Agents, together with each Note
subject to such assignment and the processing and recording
fee referred to in clause (b) above, the Administrator shall
record the information contained therein in the Register.
Within five (5) Business Days after receipt of notice, the
Company, at its own expense, shall execute and deliver to
the Administrator, in exchange for such surrendered Note, a
new Note to the order of such assignee in a principal amount
equal to the applicable Commitment and Loans assumed by it
pursuant to such Assignment and Acceptance and, if the
assigning Bank has retained a Commitment and Loans, a new
Note to the order of such assigning Bank in a principal
amount equal to the applicable Commitment and Loans retained
by it. Such new Notes shall be in an aggregate principal
amount equal to the principal amount of such surrendered
Note; such new Notes shall be dated the date of the
surrendered Note which it replaces. Canceled Notes shall be
returned to the Company.
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(f) Each Bank may (without the consent of the Company
or any Co-Administrative Agent) sell participations to one
or more banks or other financial institutions
("Participants") in all or any part of its rights and
obligations under this Agreement and the Note or Notes held
by it (including all or a portion of its Commitment and the
Advances owing to it); provided, however, that (i) such
Bank's obligations under this Agreement shall remain
unchanged, (ii) such Bank shall remain solely responsible to
the other parties hereto for the performance of such
obligations, (iii) Participants shall be entitled to the
benefit of the cost protection provisions contained in
Section 1.16 and Section 1.17 but shall not be entitled to
receive any greater payment thereunder than the Bank from
which such Participant acquired its participation would be
entitled to receive with respect to the interest so sold if
such interest had not been sold and (iv) the Company, each
of the Co-Administrative Agents, the Administrator and the
other Banks shall continue to deal solely and directly with
such Bank in connection with such Bank's rights and
obligations under this Agreement, and such Bank shall retain
the sole right to enforce the obligations of the Company
relating to the Loans, the Letters of Credit and Bid Auction
Advances and to approve any amendment, modification or
waiver of any provision of this Agreement. Except as
provided herein, no Participant shall have any rights under
this Agreement (each Participant's rights against the Bank
in respect of such participation to be those set forth in
the agreement executed by such Bank in favor of such
Participant) and all amounts payable by the Company shall be
determined as if such Bank had not sold such participation.
Except with respect to a reduction of interest rate,
increases in the principal amount of any Bank's Commitment,
a reduction of the amount of any Fees or the principal
amount of any Advance without payment in full thereof, an
extension of scheduled dates for payment of principal,
interest, Fees or scheduled termination dates, or the
amendment or modification of any Subsidiary Guarantee (or
release of any Subsidiary from its obligations thereunder),
the Bank making any participation will not in any agreement
with the Participant restrict such participating Bank's
ability to make any modification, amendment or waiver to
this Agreement.
(g) The Company shall not assign or delegate any of
its rights or duties hereunder, except pursuant to a merger
of the Company with and into a domestic Subsidiary in
compliance with Section 5.4.
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(h) Nothing herein shall prohibit any Bank from
pledging or assigning any Note to any Federal Reserve Bank
in accordance with applicable law.
Section 10.6. Notices. Except as otherwise permitted
herein, all notices, requests, consents, demands and other
communications hereunder shall be in writing and shall be mailed
by first class mail or sent by overnight courier or delivered in
hand or sent by telegraph or facsimile transmission to the
respective parties to this Agreement as follows:
The Company: Kaman Corporation
Xxxx Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx
Executive Vice President &
Chief Financial Officer
Facsimile No: (000) 000-0000
The
Co-Administrative
Agents: The Bank of Nova Scotia
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxx XxxXxxxxx
Facsimile No: (000) 000-0000
Fleet National Bank
000 Xxxx Xx., XX XX X00X
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Xxxx Xxxxx
Facsimile No: (000) 000-0000
The
Administrator: Fleet National Bank
777 Main St., CT MO H24B
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Xxxx Xxxxx
Facsimile No: (000) 000-0000
Each of the Banks
and Issuers: As set forth below such Bank's or
Issuer's signature hereto.
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Notices hereunder shall be deemed to have been given when (a) if
delivered by hand or telecopied or otherwise telecommunicated, to
a responsible officer of the party to which it is directed, at
the time of receipt thereof by such officer, (b) if sent by
registered or certified mail, postage prepaid, three days after
the date when mailed, or (c) if sent by overnight mail or
overnight courier service, to such a responsible officer, when
received by such officer. With respect to notices given by the
Company to the Administrator pursuant to Section 1.3, 1.4, 1.6 or
1.10 hereof, such notices may be given by telephone if they are
confirmed by a writing received by the Administrator within one
(1) Business Day after the giving of such telephonic notice and
in any event prior to funding or conversion of the borrowing
pursuant to Section 1.3, 1.4 or 1.6 or prepayment pursuant to
Section 1.10.
Section 10.7. Headings; Severability: Entire Agreement.
Section and subsection headings have been inserted herein for
convenience only and shall not be construed as part of this
Agreement. Every provision of this Agreement, the Notes and the
other Credit Documents is intended to be severable; if any term
or provision of this Agreement, the Notes, the other Credit
Documents, or any other document delivered in connection herewith
or therewith shall be invalid, illegal or unenforceable for any
reason whatsoever, the validity, legality and enforceability of
the remaining provisions hereof or thereof shall not in any way
be affected or impaired thereby. All Exhibits and Schedules to
this Agreement shall be annexed hereto and shall be deemed to be
part of this Agreement. This Agreement, the other Credit
Documents and the Exhibits and Schedules attached hereto embody
the entire Agreement and understanding between the Company, the
Banks, the Administrator and the Co-Administrative Agents and
supersede all prior agreements and understandings relating to the
subject matter hereof.
Section 10.8. Governing Law. This Agreement, the Notes and
each other Credit Document and all other documents contemplated
hereby are being delivered, and are intended to be performed, in
the State of Connecticut and shall be construed and enforceable
in accordance with, and governed by, the laws of the State of
Connecticut.
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Section 10.9. Counterparts. This Agreement and any
amendment hereof may be executed in several counterparts and by
each party on a separate counterpart, each of which when so
executed and delivered shall be an original, and all of which
together shall constitute one instrument. In proving this
Agreement it shall not be necessary to produce or account for
more than one such counterpart signed by the party against whom
enforcement is sought.
Section 10.10. Waiver of Jury Trial. THE CO-ADMINISTRATIVE
AGENTS, THE ADMINISTRATOR, THE BANKS, AND THE COMPANY HEREBY
KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY WAIVE ANY RIGHTS THEY
MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED
HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS
AGREEMENT OR THE NOTES, OR ANY OTHER CREDIT DOCUMENT, OR ANY
COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL
OR WRITTEN), OR ACTIONS OF ANY OF THE CO-ADMINISTRATIVE AGENTS,
THE ADMINISTRATOR, ANY OF THE BANKS OR THE COMPANY. THIS
PROVISION IS A MATERIAL INDUCEMENT FOR EACH CO-ADMINISTRATIVE
AGENT, THE ADMINISTRATOR AND EACH BANK TO BECOME A PARTY TO THIS
AGREEMENT.
Section 10.11. Consent to Jurisdiction. For the purposes
of any action or proceeding involving this Agreement or any of
the Notes or any other Credit Document, each of the parties
hereto on the date hereof hereby expressly consents to the
exclusive jurisdiction of any Federal or state court located in
Connecticut. Each party becoming a Bank hereunder after the date
hereof pursuant to an Assignment and Acceptance shall, in such
Assignment and Acceptance, consent to the exclusive jurisdiction
of any Federal or state court located in Connecticut.
Section 10.12. Effective Date. This Agreement shall become
effective among the parties hereto as of the Effective Date.
SECTION 10.13. Guarantee. The Company hereby absolutely,
unconditionally and irrevocably
(a) guarantees the full and punctual payment when due,
whether at stated maturity, by required prepayment,
declaration, acceleration, demand or otherwise, of all
Obligations of any other Obligor, including any Subsidiary
for whose account a Letter of Credit is issued, whether for
principal, interest, fees, expenses or otherwise (including
all such amounts which would become due but for the
operation of the automatic stay under Section 362(a) of the
United States Bankruptcy Code, 11 U.S.C. Section 362(a), and
the
operation of Sections 502(b) and 506(b) of the United States
Bankruptcy Code, 11 U.S.C. Section 502(b) and Section
506(b)), and
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(b) indemnifies and holds harmless each Agent, Bank,
Issuer and each holder of a Note (herein, a "Bank Party")
for any and all costs and expenses (including reasonable
attorney's fees and expenses) incurred by such Bank Party,
in enforcing any rights under the guarantee provided for in
this Section 10.13 (the "Guarantee").
This Guarantee constitutes a guaranty of payment when due and not
of collection, and the Company specifically agrees that it shall
not be necessary or required that any Bank Party exercise any
right, assert any claim or demand or enforce any remedy
whatsoever against the Company or any other Obligor (or any other
Person) before or as a condition to the obligations of the
Company hereunder.
SECTION 10.13.1. Acceleration of Guarantee. The Company
agrees that, in the event of the dissolution or insolvency of the
Company or any other Obligor (including any Subsidiary for whose
account a Letter of Credit has been issued), or the inability or
failure of the Company or such other Obligor to pay debts as they
become due, or an assignment by the Company or such other Obligor
for the benefit of creditors, or the commencement of any case or
proceeding in respect of the Company or such other Obligor under
any bankruptcy, insolvency or similar laws, and if such event
shall occur at a time when any of the Obligations of the Company
may not then be due and payable, the Company will pay to the Bank
Parties forthwith the full amount which would be payable
hereunder by the Company if all such Obligations were then due
and payable.
SECTION 10.13.2. Guarantee absolute, etc. This Guarantee
shall in all respects be a continuing, absolute, unconditional
and irrevocable guaranty of payment, and shall remain in full
force and effect until all Obligations of the Company have been
paid in full, all obligations of each other Obligor under each
Credit Document shall have been paid in full and all Commitments
shall have terminated. The Company guarantees that the
Obligations of each other Obligor (including any Subsidiary for
whose account a Letter of Credit has been issued) will be paid
strictly in accordance with the terms of the Credit Agreement,
regardless of any law, regulation or order now or hereafter in
effect in any jurisdiction affecting any of such terms or the
rights of any Bank Party with respect thereto. The liability of
the Company under this Guarantee shall be absolute, unconditional
and irrevocable irrespective of:
-85-
(a) any lack of validity, legality or enforceability of
any Subsidiary Guarantee, any Letter of Credit or any other
Credit Document;
(b) the failure of any Bank Party
(i) to assert any claim or demand or to enforce
any right or remedy against any other Obligor or any
other Person (including any other guarantor) under the
provisions of any Subsidiary Guarantee, Letter of Credit
or any other Credit Document or otherwise, or
(ii) to exercise any right or remedy against any
other guarantor of, or collateral securing, any
Obligations of any other Obligor;
(c) any change in the time, manner or place of payment
of, or in any other term of, all or any of the Obligations
of any other Obligor, or any other extension, compromise or
renewal of any Obligation of any other Obligor;
(d) any reduction, limitation, impairment or termination
of the Obligations of any other Obligor for any reason,
including any claim of waiver, release, surrender,
alteration or compromise, and shall not be subject to any
defense or setoff, counterclaim, recoupment or termination
whatsoever by reason of the invalidity, illegality,
nongenuineness, irregularity, compromise, unenforceability
of, or any other event or occurrence affecting, the
Obligations of any other Obligor or otherwise;
(e) any amendment to, rescission, waiver, or other
modification of, or any consent to departure from, any of
the terms of any Subsidiary Guarantee, Letter of Credit or
any other Credit Document;
(f) any addition, exchange, release, surrender or
non-perfection of any collateral, or any amendment to
or waiver or release or addition of, or consent to
departure from, any other guaranty (including any other
Subsidiary Guarantee), held by any Bank Party securing any
of the Obligations; or
(g) any other circumstance which might otherwise
constitute a defense available to, or a legal or equitable
discharge of, any other Obligor, any surety or any
guarantor.
-86-
SECTION 10.13.3. Reinstatement, etc. The Company agrees
that this Guarantee shall continue to be effective or be
reinstated, as the case may be, if at any time any payment (in
whole or in part) of any of the Obligations is rescinded or must
otherwise be restored by any Bank Party, upon the insolvency,
bankruptcy or reorganization of any Obligor or otherwise, all as
though such payment had not been made.
SECTION 10.13.4. Waiver, etc. The Company hereby waives
promptness, diligence, notice of acceptance and any other notice
with respect to any of the Obligations of any Obligor and this
Guarantee and any requirement that either of the
Co-Administrative Agents or any other Bank Party protect, secure,
perfect or insure any security interest or Lien, or any property
subject thereto, or exhaust any right or take any action against
any other Obligor or any other Person (including any other
guarantor) or entity or any collateral securing the Obligations.
SECTION 10.13.5. Postponement of Subrogation, etc. The
Company will not exercise any rights which it may acquire by way
of rights of subrogation under this Guarantee, by any payment
made hereunder or otherwise, until the prior payment, in full and
in cash, of all Obligations of any Obligor (including any
Subsidiary for whose benefit a Letter of Credit was issued). Any
amount paid to the Company on account of any such subrogation
rights prior to the payment in full of all Obligations shall be
held in trust for the benefit of the Bank Parties and shall
immediately be paid to the Administrator and credited and applied
against the Obligations, whether matured or unmatured, in
accordance with the terms of the Credit Agreement; provided,
however, that if
(a) the Company has made payment to the Bank Parties of
all or any part of the Obligations, and
(b) all Obligations have been paid in full and all
Commitments have been permanently terminated,
-87-
each Bank Party agrees that, at the Company's request, the
Administrator, on behalf of the Bank Parties, will execute and
deliver to the Company appropriate documents (without recourse
and without representation or warranty) necessary to evidence the
transfer by subrogation to the Company of an interest in the
Obligations of each other Obligor resulting from such payment by
the Company. In furtherance of the foregoing, for so long as any
Obligations or Commitments remain outstanding, the Company shall
refrain from taking any action or commencing any proceeding
against any other Obligor (or its successors or assigns, whether
in connection with a bankruptcy proceeding or otherwise) to
recover any amounts in the respect of payments made under this
Guarantee to any Bank Party.
IN WITNESS WHEREOF, the parties hereto have caused this
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT to be executed by
their duly authorized officers as of the date first written
above.
KAMAN CORPORATION
By:________________________________
Name:
Title:
THE BANK OF NOVA SCOTIA,
as a Co-Administrative Agent
By:________________________________
Name: X.X. Xxxxxxx
Title: Vice President
FLEET NATIONAL BANK,
as a Co-Administrative Agent and
the Administrator
By:________________________________
Name: Xxxxxxx X. Xxxxx
Title: Vice President
-88-
BANKS
THE BANK OF NOVA SCOTIA,
as a Bank and as an Issuer
By
Name: X.X. Xxxxxxx
Title: Vice President
Domestic
Office: 000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Facsimile No.: (000) 000-0000
Attention: P.A. XxxXxxxxx
X.X. Xxxxxxxx
LIBOR
Office: 000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Facsimile No.: (000) 000-0000
Attention: P.A. XxxXxxxxx
X.X. Xxxxxxxx
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FLEET NATIONAL BANK
By
Name: Xxxxxxx X. Xxxxx
Title: Vice President
Domestic
Office: 000 Xxxx Xx., XX XX X00X
Xxxxxxxx, XX 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxxxx X. Xxxxx
LIBOR
Office: 000 Xxxx Xx., XX XX H24B
Xxxxxxxx, XX 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxxxx X. Xxxxx
-90-
NATIONSBANK, N.A.
By
Name: Xxxxxx X. Xxxx
Title: Vice President
Domestic
Office: NationsBank, N.A.
000 Xxxxx Xxxxxx
0xx Xxxxx
Xxx Xxxx, XX 00000
Facsimile No.: (000) 000-0000
Attention: Xx. Xxxxxx X. Xxxx
NY1-003-05-01
LIBOR
Office: NationsBank, N.A.
000 X. Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Facsimile No.: (000) 000-0000
Attention: Xx. Xxxxxx Xxxxxx
NC1-001-15-03
-00-
XXX XXXXXXXX XXXX, XXXXXXX,
XXX XXXX BRANCH
By
Name:
Title:
Domestic
Office: The Sumitomo Bank,
Limited, New York Branch
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxxxx Xxxxxxx
LIBOR
Office: The Sumitomo Bank,
Limited, New York Branch
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxxxx Xxxxxxx
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ABN AMRO BANK N.V.
By
Name:
Title:
By
Name:
Title:
Domestic
Office: ABN AMRO Bank N.V.
Xxx Xxxx Xxxxxx Xxxxxx
00xx Xxxxx
Xxxxxx, XX 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxx X. Xxxxx
LIBOR
Office: ABN AMRO Bank N.V.
Xxx Xxxx Xxxxxx Xxxxxx
00xx Xxxxx
Xxxxxx, XX 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxx Xxxxxxxx
-93-
BANKBOSTON, N.A.
By
Name: Xxxxxx X. Xxxxxx, Xx.
Title: Director
Domestic
Office: 000 Xxxxxxx Xx., 00-00-00
Xxxxxx, XX 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxxx X. Xxxxxx, Xx.
LIBOR
Office: 000 Xxxxxxx Xx., 00-00-00
Xxxxxx, XX 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxx Xxxxxxx
-00-
XXXXXXXX XXXX XX, XXX XXXX AND/OR
CAYMAN ISLANDS BRANCHES
By
Name:
Title:
By
Name:
Title:
Domestic
Office: Deutsche Bank AG, New York
Branch
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile No.: (000) 000-0000
Attention: Mr. Xxxxx Xxxxxx
Loan Administrator
LIBOR
Office: Deutsche Bank AG, Cayman
Islands Branch
x/x Xxxxxxxx Xxxx XX, Xxx
Xxxx Branch
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile No.: (000) 000-0000
Attention: Mr. Xxxxx Xxxxxx
Loan Administrator
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THE FIRST NATIONAL BANK OF CHICAGO
By
Name:
Title:
Domestic
Office: Xxx Xxxxx Xxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxxxx Xxxx
LIBOR
Office: Xxx Xxxxx Xxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxxxx Xxxx
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MELLON BANK, N.A.
By
Name: Xxxx Xxxx Xxxxxxx
Title: Vice President
Domestic
Office: Mellon Bank, N.A.
3 Mellon Bank Center
Room 153-2302
Xxxxxxxxxx, XX 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxxxxxxx Xxxxx
Loan Administrator
LIBOR
Office: Mellon Bank, N.A.
3 Mellon Bank Center
Room 153-2302
Xxxxxxxxxx, XX 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxxxxxxx Xxxxx
Loan Administrator
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WACHOVIA BANK OF GEORGIA, N.A.
By
Name:
Title:
Domestic
Office: 000 Xxxxxxxxx Xx. X.X.
Xxxxxxx, XX 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxxx Xxxxx
LIBOR
Office: 000 Xxxxxxxxx Xx. X.X.
Xxxxxxx, XX 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxxx Xxxxx
-98-
FIRST UNION NATIONAL BANK
By
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
Domestic
Office: First Union National Bank
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Facsimile No.: (000) 000-0000
Attention: Xxx Xxxxxxx
LIBOR
Office: First Union National Bank
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Facsimile No.: (000) 000-0000
Attention: Xxx Xxxxxxx
-00-
XXX XXXXXX XXXX XXXXXXXXXXXX,
XXXXXX XXXXXXX BRANCH
By
Name: Xxxxx X. Xxxxxxxxx
Title: Vice President
By
Name:
Title:
Domestic
Office: Den Danske Bank
Aktieselskab, Cayman
Islands Branch
x/x Xxx Xxxxxx Xxxx, Xxx
Xxxx Branch
000 Xxxx Xxxxxx
0xx Xxxxx, Xxxx Xxxx.
Xxx Xxxx, XX 00000-0000
Facsimile No.: (000) 000-0000
Attention: Xxxxx X. Xxxxxxxxx
LIBOR
Office: Den Danske Bank
Aktieselskab, Cayman
Islands Branch
x/x Xxx Xxxxxx Xxxx, Xxx
Xxxx Branch
000 Xxxx Xxxxxx
0xx Xxxxx, Xxxx Xxxx.
Xxx Xxxx, XX 00000-0000
Facsimile No.: (000) 000-0000
Attention: Xxxxx X. Xxxxxxxxx
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EXHIBIT A
REVOLVING CREDIT NOTE
$ July , 1997
FOR VALUE RECEIVED, the undersigned KAMAN CORPORATION, a
Connecticut corporation (the "Company"), hereby absolutely and
unconditionally promises to pay to the order of
(the "Bank"), at the Administrator's Funding Office:
(a) On the Maturity Date the principal amount of
DOLLARS ($ ) or, if less, the aggregate unpaid
principal amount of all Revolving Credit Loans outstanding on the
Maturity Date and made by the Bank to the Company pursuant to the
Amended and Restated Revolving Credit Agreement, dated as of July
, 1997, amending and restating in its entirety that certain
Revolving Credit Agreement, dated as of January 29, 1996
(together with all exhibits, schedules and attachments thereto,
as the same have been amended or otherwise modified prior to the
date hereof, the "Existing Credit Agreement", and as so amended
and restated and, together with all amendments and other
modifications, if any, from time to time thereafter made thereto,
the "Credit Agreement"), among Kaman Corporation, a Connecticut
corporation (the "Company"), the various financial institutions
as are or may from time to time become parties thereto
(individually a "Bank" and collectively the "Banks"), and The Bank
of Nova Scotia ("Scotiabank") and Fleet National Bank ("Fleet"),
as the co-administrative agents (each a "Co-Administrative Agent"
and collectively, the "Co-Administrative Agents"); and
(b) interest on the principal balance hereof from time
to time outstanding from the date hereof through and including
the date on which such principal amount is paid in full, at the
times and at the rates provided in the Credit Agreement.
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This Note evidences borrowings under and has been issued by
the Company in accordance with the terms of the Credit Agreement,
and is one of the Revolving Credit Notes referred to therein.
The Bank and any other holder hereof are entitled to the benefits
of the Credit Agreement and may enforce the agreements of the
Company contained therein, and may exercise the respective
remedies provided for thereby or otherwise available in respect
thereof, all in accordance with the respective terms thereof.
All capitalized terms which are used in this Note without
definition and which are defined in the Credit Agreement shall
have the same meanings herein as in the Credit Agreement.
The Bank shall, and is hereby irrevocably authorized by the
Company to, endorse on the schedule attached to this Note or a
continuation of such schedule attached hereto and made a part
hereof, an appropriate notation evidencing advances and
repayments of principal of this Note; provided, that failure by
the Bank to make any such notations shall not affect any of the
Company's obligations in respect of this Note.
The Company has the right in certain circumstances and the
obligation in certain other circumstances to prepay the whole or
part of the principal of this Note on the terms and conditions
specified in the Credit Agreement.
If any one or more of the Events of Default shall occur and
be continuing, the entire unpaid principal amount of this Note
and all of the unpaid interest accrued thereon may become or be
declared due and payable in the manner and with the effect
provided in the Credit Agreement.
This Note is issued in substitution and exchange for, and
not in satisfaction or payment of, and shall represent an
amendment and restatement of, the Note dated January 29, 1996
payable to the order of the Bank and issued on such date under
the Existing Credit Agreement (the "Existing Note"), and the
Indebtedness originally evidenced by such Existing Note which is
now evidenced by this new Note shall be a continuing Indebtedness
of the Company, and nothing herein contained shall be construed
to deem such Existing Note paid, or to release or terminate any
Lien or security interest given to secure such Existing Note,
which Liens and security interests shall continue to secure such
Indebtedness as evidenced by this Note.
-102-
THE COMPANY ACKNOWLEDGES THAT THE FINANCING EVIDENCED BY THE
CREDIT AGREEMENT AND THIS NOTE IS A COMMERCIAL TRANSACTION AND
WAIVES ITS RIGHTS TO NOTICE AND HEARING UNDER CHAPTER 903a OF THE
CONNECTICUT GENERAL STATUTES, OR AS OTHERWISE ALLOWED BY ANY
STATE OR FEDERAL LAW WITH RESPECT TO ANY PREJUDGMENT REMEDY WHICH
ANY AGENT MAY DESIRE TO USE.
Except as otherwise expressly provided in the Credit
Agreement, the Company and every endorser and guarantor of this
Note or the obligations represented hereby (including each of the
Significant Subsidiaries parties to any of the Subsidiary
Guarantees) waive presentment, demand, notice, protest and all
other demands and notices in connection with the delivery,
acceptance, performance, default or enforcement of this Note,
assent to any extension or postponement of the time of payment of
any amounts payable hereunder or under the Credit Agreement and
any other indulgence in respect hereof or thereof.
This Note shall be construed in accordance with the laws of
the State of Connecticut.
IN WITNESS WHEREOF, KAMAN CORPORATION has caused this
REVOLVING CREDIT NOTE to be signed in its corporate name and its
corporate seal to be impressed hereon by its duly authorized
officer as of the day and year first above written.
KAMAN CORPORATION
[Corporate Seal]
By:
Name:
Title:
Attest:
-103-
Amount of
Interest Principal
Rate Amount Balance of
(Domestic/ Interest of Paid or Principal Notation
Date Eurodollar) Period Advance Prepaid Unpaid Made by
-104-
EXHIBIT B
BID AUCTION NOTE
$250,000,000 July , 1997
FOR VALUE RECEIVED, the undersigned KAMAN CORPORATION, a
Connecticut corporation (the "Company"), hereby absolutely and
unconditionally promises to pay to the order of
(the "Bank"), at the Administrator's Funding Office:
(a) On the last day of each Interest Period for any
Bid Auction Advance made by the Bank to the Company pursuant to
the Amended and Restated Revolving Credit Agreement, dated as of
July , 1997, amending and restating in its entirety that
certain Revolving Credit Agreement, dated as of January 29, 1996
(together with all exhibits, schedules and attachments thereto,
as the same have been amended or otherwise modified prior to the
date hereof, the "Existing Credit Agreement", and as so amended
and restated and, together with all amendments and other
modifications, if any, from time to time thereafter made thereto,
the "Credit Agreement"), among Kaman Corporation, a Connecticut
corporation (the "Company"), the various financial institutions
as are or may from time to time become parties thereto
(individually a "Bank" and collectively the "Banks"), and The Bank
of Nova Scotia ("Scotiabank") and Fleet National Bank ("Fleet"),
as the co-administrative agents (each a "Co-Administrative Agent"
and collectively, the "Co-Administrative Agents"), and on the
Maturity Date, the principal amount of TWO HUNDRED FIFTY MILLION
DOLLARS ($250,000,000) or, if less, the aggregate unpaid
principal amount of such Bid Auction Advance outstanding on such
date; and
(b) interest on the principal amount of each Bid
Auction Advance from time to time outstanding from the date such
Bid Auction Advance is made through and including the date on
which such principal amount is paid in full, at the times and at
the rates provided in the Credit Agreement.
-105-
This Note evidences borrowings under and has been issued by
the Company in accordance with the terms of the Credit Agreement,
and is one of the Bid Auction Notes referred to therein. The
Bank and any other holder hereof are entitled to the benefits of
the Credit Agreement and may enforce the agreements of the
Company contained therein, and may exercise the respective
remedies provided for thereby or otherwise available in respect
thereof, all in accordance with the respective terms thereof.
All capitalized terms which are used in this Note without
definition and which are defined in the Credit Agreement shall
have the same meanings herein as in the Credit Agreement.
The Bank shall, and is hereby irrevocably authorized by the
Company to, endorse on the schedule attached to this Note or a
continuation of such schedule attached hereto and made a part
hereof, an appropriate notation evidencing advances and
repayments of principal of this Note; provided, that failure by
the Bank to make any such notations shall not affect any of the
Company's obligations in respect of this Note.
The Company has the right in certain circumstances and the
obligation in certain other circumstances to prepay the whole or
part of the principal of this Note on the terms and conditions
specified in the Credit Agreement.
If any one or more of the Events of Default shall occur and
be continuing, the entire unpaid principal amount of this Note
and all of the unpaid interest accrued thereon may become or be
declared due and payable in the manner and with the effect
provided in the Credit Agreement.
This Note is issued in substitution and exchange for, and
not in satisfaction or payment of, and shall represent an
amendment and restatement of, the Note dated January 29, 1996
payable to the order of the Bank and issued on such date under
the Existing Credit Agreement (the "Existing Note"), and the
Indebtedness originally evidenced by such Existing Note which is
now evidenced by this new Note shall be a continuing Indebtedness
of the Company, and nothing herein contained shall be construed
to deem such Existing Note paid, or to release or terminate any
Lien or security interest given to secure such Existing Note,
which Liens and security interests shall continue to secure such
Indebtedness as evidenced by this Note.
-106-
THE COMPANY ACKNOWLEDGES THAT THE FINANCING EVIDENCED BY THE
CREDIT AGREEMENT AND THIS NOTE IS A COMMERCIAL TRANSACTION AND
WAIVES ITS RIGHTS TO NOTICE AND HEARING UNDER CHAPTER 903a OF THE
CONNECTICUT GENERAL STATUTES, OR AS OTHERWISE ALLOWED BY ANY
STATE OR FEDERAL LAW WITH RESPECT TO ANY PREJUDGMENT REMEDY WHICH
ANY AGENT MAY DESIRE TO USE.
Except as otherwise expressly provided in the Credit
Agreement, the Company and every endorser and guarantor of this
Note or the obligations represented hereby (including each of the
Significant Subsidiaries parties to any of the Subsidiary
Guarantees) waive presentment, demand, notice, protest and all
other demands and notices in connection with the delivery,
acceptance, performance, default or enforcement of this Note,
assent to any extension or postponement of the time of payment of
any amounts payable hereunder or under the Credit Agreement and
any other indulgence in respect hereof or thereof.
This Note shall be construed in accordance with the laws of
the State of Connecticut.
IN WITNESS WHEREOF, KAMAN CORPORATION has caused this BID
AUCTION NOTE to be signed in its corporate name and its corporate
seal to be impressed hereon by its duly authorized officer as of
the day and year first above written.
KAMAN CORPORATION
[Corporate Seal]
By:
Name:
Title:
Attest:
-107-
Amount of
Interest Principal
Rate Amount Balance of
(Domestic/ Interest of Paid or Principal Notation
Date Eurodollar) Period Advance Prepaid Unpaid Made by
-108-
EXHIBIT C
REVOLVING CREDIT ELECTION NOTICE
Fleet National Bank,
as Administrator
000 Xxxx Xx., XX XX H24B
Xxxxxxxx, XX 00000
Attention:
Kaman Corporation
Gentlemen and Ladies:
This Revolving Credit Election Notice is delivered to you
pursuant to clause (a) of Section 1.3 of the Amended and Restated
Revolving Credit Agreement, dated as of July , 1997, amending
and restating in its entirety that certain Revolving Credit
Agreement, dated as of January 29, 1996 (together with all
exhibits, schedules and attachments thereto, as the same have
been amended or otherwise modified prior to the date hereof, the
"Existing Credit Agreement", and as so amended and restated and,
together with all amendments and other modifications, if any,
from time to time thereafter made thereto, the "Credit
Agreement"), among Kaman Corporation, a Connecticut corporation
(the "Company"), the various financial institutions as are or may
from time to time become parties thereto (individually a "Bank"
and collectively the "Banks"), and The Bank of Nova Scotia
("Scotiabank") and Fleet National Bank ("Fleet"), as the
co-administrative agents (each a "Co-Administrative Agent" and
collectively, the "Co-Administrative Agents"). Unless otherwise
defined herein or the context otherwise requires, terms used
herein have the meanings provided in the Credit Agreement.
The Company hereby requests that a Revolving Credit Loan be
made in the aggregate principal amount of $ on
, 199 as [a Domestic Loan] [a Eurodollar Loan having an
Interest Period of [1] [3] [6] month[s]].
The Company hereby certifies and warrants that, pursuant to
Section 3.2 of the Credit Agreement, each of the delivery of this
Revolving Credit Election Notice and the acceptance by the
-109-
Company of the proceeds of the Revolving Credit Loans requested
hereby, constitute a representation and warranty that, on the
date the Revolving Credit Loans requested hereby are made, and
both before and after giving effect thereto and to the
application of the proceeds therefrom, all statements set forth
in clauses (c) and (d) of Section 3.2 of the Credit Agreement are
true and correct in all material respects. The Company further
certifies and warrants that on the date the Revolving Credit
Loans proposed hereby are made, the aggregate amount of the
proposed Revolving Credit Loans and all other Loans, Letter of
Credit Outstandings and Advances outstanding after giving effect
to such Revolving Credit Loans (and any prepayments required
pursuant to Section 1.10 of the Credit Agreement) will not exceed
the Total Commitment, as in effect on such date.
The Company agrees that if prior to the time of the funding
of the Revolving Credit Loans requested hereby any matter
certified to herein by it will not be true and correct at such
time as if then made, it will immediately so notify the
Administrator. Except to the extent, if any, that prior to the
time of the funding of the Revolving Credit Loans requested
hereby the Administrator shall receive written notice to the
contrary from the Company, each matter certified to herein shall
be deemed once again to be certified as true and correct at the
date of the funding of such Revolving Credit Loans as if then
made.
The Company hereby confirms that the requested Revolving
Credit Loans are to be made available to it in accordance with
Section 1.3 of the Credit Agreement.
The Company has caused this Revolving Credit Election Notice
to be executed and delivered, and the certification and
warranties contained herein to be made, by its duly authorized
officer this _____ day of __________, 199_.
KAMAN CORPORATION
By:______________________________
Name:
Title:
-110-
EXHIBIT D
BID AUCTION ELECTION NOTICE
Fleet National Bank,
as Administrator
000 Xxxx Xx., XX XX H24B
Xxxxxxxx, XX 00000
Attention:
Kaman Corporation
Gentlemen and Ladies:
This Bid Auction Election Notice is delivered to you
pursuant to clause (b) of Section 1.4 of the Amended and Restated
Revolving Credit Agreement, dated as of July , 1997, amending
and restating in its entirety that certain Revolving Credit
Agreement, dated as of January 29, 1996 (together with all
exhibits, schedules and attachments thereto, as the same have
been amended or otherwise modified prior to the date hereof, the
"Existing Credit Agreement", and as so amended and restated and,
together with all amendments and other modifications, if any,
from time to time thereafter made thereto, the "Credit
Agreement"), among Kaman Corporation, a Connecticut corporation
(the "Company"), the various financial institutions as are or may
from time to time become parties thereto (individually a "Bank"
and collectively the "Banks"), and The Bank of Nova Scotia
("Scotiabank") and Fleet National Bank ("Fleet"), as the
co-administrative agents (each a "Co-Administrative Agent" and
collectively, the "Co-Administrative Agents"). Unless otherwise
defined herein or the context otherwise requires, terms used
herein have the meanings provided in the Credit Agreement.
-111-
The Company hereby proposes that a Bid Auction Borrowing be
made on the following terms:
A. 1. Date of Bid Auction
Borrowing: , 19
2. Aggregate Amount of Bid
Auction Borrowing: $
3. Bid Auction Advance Maturity
Date(s) for repayment of such
Bid Auction Advance(s): , 19
4. The Interest Period(s) for such
Bid Auction Advance(s)
5. Bid Auction Advance Interest
Payment Date(s): ,19
****[B. 1. Date of Bid Auction
Borrowing:
, 19
-------------------------
* Must be at least one (1) business day after the delivery of
this Bid Auction Election Notice.
** Must be for such duration of 7 to 180 days.
*** Insert the Bid Auction Advance Maturity Date, and if the
Bid Auction Advance Maturity Date occurs more than three
months after the date of the proposed Bid Auction Advance,
the date occurring on each three (and integral of three)
month anniversary of the making of the Advance after the
date of such Bid Auction Advance.
**** Insert if more than one Bid Auction Advance is requested.
-112-
2. Aggregate Amount of Bid
Auction Borrowing: $
3. Bid Auction Advance Maturity
Date(s) for repayment of such
Bid Auction Advance(s): , 19
4. The Interest Period(s) for such
Bid Auction Advance(s):
5. Bid Auction Advance Interest
Payment Date(s): , 19
C. 1. Date of Bid Auction
Borrowing: , 19
2. Aggregate Amount of Bid
Auction Borrowing: $
3. Bid Auction Advance Maturity
Date(s) for repayment of such
Bid Auction Advance(s): , 19
4. The Interest Period(s) for such
Bid Auction Advance(s):
5. Bid Auction Advance Interest
Payment Date(s): , 19 ]
The Company hereby certifies and warrants that, pursuant to
Section 3.2 of the Credit Agreement, the delivery of this Bid
Auction Election Notice constitutes a representation and warranty
that, on the date the Bid Auction Advances requested hereby are
made, and both before and after giving effect thereto and to the
application of the proceeds therefrom, all statements set forth
in clauses (c) and (d) of Section 3.2 of the Credit Agreement are
true and correct in all material respects. The Company further
certifies and warrants that on the date the Bid Auction Advances
proposed hereby are made, the aggregate amount of the proposed
Bid Auction Borrowing and all other Loans, Letter of Credit
Outstandings and Advances outstanding after giving effect to such
Bid Auction Advances (and any prepayments required pursuant to
Section 1.10 of the Credit Agreement) will not exceed the Total
Commitment, as in effect on such date.
-113-
The Company agrees that if prior to the time of the Bid
Auction Borrowing requested hereby any matter certified to herein
by it will not be true and correct at such time as if then made,
it will immediately so notify the Administrator. Except to the
extent, if any, that prior to the time of the Bid Auction
Borrowing proposed hereby, the Administrator shall receive
written notice to the contrary from the Company, each matter
certified to herein shall be deemed once again to be certified as
true and correct at the date of such Advance as if then made.
The Company has caused this Bid Auction Election Notice to
be executed and delivered, and the certification and warranties
contained herein to be made, by its duly Authorized Officer this
___ day of __________, 199_.
KAMAN CORPORATION
By:___________________________
Name:
Title:
-114-
EXHIBIT E
BID AUCTION OFFER
, 199
Kaman Corporation
Xxxx Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx
Executive Vice President &
Chief Financial Officer
Gentlemen and Ladies:
This Bid Auction Offer is delivered to you pursuant to
clause (c) of Section 1.4 of the Amended and Restated Revolving
Credit Agreement, dated as of July , 1997, amending and
restating in its entirety that certain Revolving Credit
Agreement, dated as of January 29, 1996 (together with all
exhibits, schedules and attachments thereto, as the same have
been amended or otherwise modified prior to the date hereof, the
"Existing Credit Agreement", and as so amended and restated and,
together with all amendments and other modifications, if any,
from time to time thereafter made thereto, the "Credit
Agreement"), among Kaman Corporation, a Connecticut corporation
(the "Company"), the various financial institutions as are or may
from time to time become parties thereto (individually a "Bank"
and collectively the "Banks"), and The Bank of Nova Scotia
("Scotiabank") and Fleet National Bank ("Fleet"), as the
co-administrative agents (each a "Co-Administrative Agent" and
collectively, the "Co-Administrative Agents"). Unless otherwise
defined herein or the context otherwise requires, terms used
herein have the meanings provided in the Credit Agreement.
-115-
The undersigned Bank hereby makes a Bid Auction Offer in
response to the Bid Auction Election Notice made by the Company
on , 199 , and in that connection, sets forth the terms
on which such Bid Auction Offer is made:
1. Date of Bid Auction Borrowing: , 199
2. Minimum principal amount of Bid
Auction Advance the undersigned
is willing to make as part of such
proposed Bid Auction Borrowing: $
3. Maximum principal amount of Bid
Auction Advance the undersigned
is willing to make as part of such
proposed Bid Auction Borrowing: $
4. Bid Auction Advance Maturity Date
for repayment of such Bid Auction
Advance will be , 199
5. Bid Auction Advance Interest
Payment Date(s) will be , 199
[ , 199 ]
6. Rate of interest: % per annum
[NAME OF BANK]
By:
Name:
Title:
-------------------------
* Information to be repeated if multiple Bid Auction Advances
have been requested to be made in respect of a single Bid
Auction Election Notice.
-116-
EXHIBIT F
BID AUCTION ACCEPTANCE
[NAME AND ADDRESS OF BANK]
Attention:
Kaman Corporation
Gentlemen and Ladies:
This Bid Auction Acceptance is delivered to you pursuant to
clause (d) of Section 1.4 of the Amended and Restated Revolving
Credit Agreement, dated as of July , 1997, amending and
restating in its entirety that certain Revolving Credit
Agreement, dated as of January 29, 1996 (together with all
exhibits, schedules and attachments thereto, as the same have
been amended or otherwise modified prior to the date hereof, the
"Existing Credit Agreement", and as so amended and restated and,
together with all amendments and other modifications, if any,
from time to time thereafter made thereto, the "Credit
Agreement"), among Kaman Corporation, a Connecticut corporation
(the "Company"), the various financial institutions as are or may
from time to time become parties thereto (individually a "Bank"
and collectively the "Banks"), and The Bank of Nova Scotia
("Scotiabank") and Fleet National Bank ("Fleet"), as the
co-administrative agents (each a "Co-Administrative Agent" and
collectively, the "Co-Administrative Agents"). Unless otherwise
defined herein or the context otherwise requires, terms used
herein have the meanings provided in the Credit Agreement.
-117-
The Company hereby accepts the Bid Auction Offer, dated
___________ __, 199_, made by [NAME OF BANK] on the following
terms:
**1. Date of Bid Auction Advance , 199
2. Principal amount of Bid Auction
Advance $
3. Bid Auction Advance Maturity
Date: , 199
4. Rate of interest: % per annum
5. Bid Auction Advance Interest
Payment Date(s): , 199
[ , 199 ]
The undersigned hereby confirms that it accepts such Bid
Auction Offer in accordance with clause (d)(ii) of Section 1.4 of
the Credit Agreement. The Company hereby certifies and warrants
that, pursuant to Section 3.2 of the Credit Agreement, this
acceptance by the Company of the proceeds of the Bid Auction
Advances constitutes a representation and warranty that, on the
date the Bid Auction Advances requested by the Bid Auction
Election Request are made, and both before and after giving
effect thereto and to the application of the proceeds therefrom,
-------------------------
* Repeat this paragraph (and information contained herein)
for each Bank whose Bid auction Offer is accepted by the
Company or for multiple Bid Auction Advances.
** Terms must conform to the Bid auction Election Notice
Referred to in the Bid auction Offer relating to such Bid
Auction borrowing.
-118-
all statements set forth in clauses (c) and (d) of Section 3.2 of
the Credit Agreement are true and correct in all material
respects. The Company further certifies and warrants that on the
date the Bid Auction Advances accepted hereby are made, the
aggregate amount of the proposed Bid Auction Advances and all
other Loans, Letter of Credit Outstandings and Advances
outstanding after giving effect to such Bid Auction Advances (and
any prepayments required pursuant to Section 1.10 of the Credit
Agreement) will not exceed the Total Commitment, as in effect on
such date.
The Company has caused this Bid Auction Acceptance to be
executed and delivered, and the certification and warranties
contained herein to be made, by its duly Authorized Officer this
day of , 199 .
KAMAN CORPORATION
By:
Name:
Title:
-119-
EXHIBIT G
KAMAN CORPORATION
COMPLIANCE CERTIFICATE
The undersigned, , hereby certifies that s/he is
the duly elected, qualified and acting of Kaman
Corporation (the "Company"), a Connecticut corporation, and as
such officer, s/he is familiar with the terms, covenants and
conditions of the Amended and Restated Revolving Credit
Agreement, dated as of July , 1997, amending and restating in
its entirety that certain Revolving Credit Agreement, dated as of
January 29, 1996 (together with all exhibits, schedules and
attachments thereto, as the same have been amended or otherwise
modified prior to the date hereof, the "Existing Credit
Agreement", and as so amended and restated and, together with all
amendments and other modifications, if any, from time to time
thereafter made thereto, the "Credit Agreement"), among Kaman
Corporation, a Connecticut corporation (the "Company"), the
various financial institutions as are or may from time to time
become parties thereto (individually a "Bank" and collectively
the "Banks"), and The Bank of Nova Scotia ("Scotiabank") and Fleet
National Bank ("Fleet"), as the co-administrative agents (each a
"Co-Administrative Agent" and collectively, the "Co-Administrative
Agents"). All terms not specifically defined herein shall have
the definitions ascribed in the Credit Agreement.
This is to certify that, as of the date hereof (i) the
Company has complied, and shall be in compliance, with all terms,
covenants and conditions of the Credit Agreement as required
thereby; (ii) there exists no Default or Event of Default; and
(iii) the representations and warranties set forth in Article II
of the Credit Agreement are true and correct with the same effect
as though such representations had been made as of the date of
this Certificate.
The computations which produced the figures contained in
this Compliance Certificate are set forth on Annex A hereto.
Without limiting the generality of the foregoing, the
Company certifies specifically as follows as of [insert last day
of most recently ended fiscal quarter]:
-120-
Section of
Credit Agreement (Dollars in Thousands)
Requirement or
Ceiling Actual
--------------- ------
5.1(e) Liens not to secure $25,000,000 $
Indebtedness in
excess of $25,000,000
5.6(b)(i) Sale of Assets $ $
pursuant to (figure represents
Section 5.6(b)for 15% of Company's
this fiscal year Consolidated
through the date Tangible Assets
of this as calculated
certificate pursuant to
Section 5.6)
5.6(b)(ii) Sale of Assets $ $
pursuant to (figure represents
Section 5.6(b) 45% of Company's
through the date Consolidated
of this Tangible Assets
certificate since as calculated
Effective Date pursuant to
Section 5.6)
6.1 Consolidated Net $200,000,000 $
Worth
6.2 Fixed Charge 2.50:1.0 through :1.0
Coverage Ratio (and including)
12/31/97 2.75:1.0
after 12/31/97
6.3 Consolidated 55% %
Total Indebtedness
as a percentage of
Total Capitalization
KAMAN CORPORATION
Dated: [date of delivery
of Certificate] By:
Name:
Title:
-122-
Annex A
A. 5.6: Sale of Assets
(i) Applicable Percentage:
(a) The aggregate book value of all tangible
assets sold (as determined at the time of
such sale) divided by the Consolidated
Tangible Assets as of the most recently
completed fiscal quarter at the time of
such asset sale: $
(ii) Aggregate Percentage:
The sum of all Applicable Percentages:
(a) For the current fiscal year - not
to exceed 15%, and therefore the
Company [was] [was not] in compliance
with Section 5.6: %
(b) Since the Effective Date - not to
exceed 45%, and therefore the Company
[was] [was not] in compliance with
Section 5.6: %
(iii)Designated Percentage:
Either of:
(a) 15%, for any fiscal year; or
(b) not to exceed a cumulative aggregate
percentage of 45% since the Effective
Date: [15%]
[45%]
-122-
(iv) Reduction Amount:
An amount equal to:
(a) if Item (iii) (a) above applies,
the book value of all asset sales
during the current fiscal year less
15% of the Consolidated Tangible
Assets as of the most recently
completed fiscal quarter less any
Total Commitment reduction during
such current fiscal year; or
(b) if Item (iii) (b) above applies,
the book value of all asset sales
during the current fiscal year less
any Total Commitment reductions during
such current fiscal year: $
B. 6.1: Consolidated Net Worth
(i) consolidated shareholders' equity: $
(ii) Qualifying Preferred Stock: $
(iii)Consolidated Net Worth (Item (i) plus
Item (ii)): $
C. 6.2: Fixed Charge Coverage Ratio
(i) Operating Profit for the four (4) most
recently completed fiscal quarters of
Company: $
(ii) aggregate consolidated interest expense
on borrowed money (including the Obligations)
(net of cash income from Investments) for the
four (4) most recently completed fiscal
quarters of the Company: $
-123-
(iii)Fixed Charge Coverage Ratio (ratio of
Item (i) to Item(ii)):* :
D. 6.3: Consolidated Total Indebtedness to Total
Capitalization
(i) Consolidated Total Indebtedness: $
(ii) Consolidated Net Worth (see Item (iii)
from Section C above): $
(iii)Total Capitalization (Item (i) plus
Item (ii)): $
(iv) Item (i) divided by Item (iii):** %
-------------------------
* Section 6.2 of the Credit Agreement requires
the Fixed Charge Coverage Ratio to be greater
than or equal to 2.50:1.0 through (and including)
12/31/97 and to be greater than or equal to
2.74:1.0 at any time of determination hereafter.
** Section 6.3 of the Credit Agreement requires the
Company's Consolidated Total Indebtedness to be
less than or equal to 55% of its Total Capitalization.
-124-
EXHIBIT H
ASSIGNMENT AND ACCEPTANCE AGREEMENT
Reference is made to the Amended and Restated Revolving
Credit Agreement, dated as of July , 1997, amending and
restating in its entirety that certain Revolving Credit
Agreement, dated as of January 29, 1996 (together with all
exhibits, schedules and attachments thereto, as the same have
been amended or otherwise modified prior to the date hereof, the
"Existing Credit Agreement", and as so amended and restated and,
together with all amendments and other modifications, if any,
from time to time thereafter made thereto, the "Credit
Agreement"), among Kaman Corporation, a Connecticut corporation
(the "Company"), the various financial institutions as are or may
from time to time become parties thereto (individually a "Bank"
and collectively the "Banks"), and The Bank of Nova Scotia
("Scotiabank") and Fleet National Bank ("Fleet"), as the
co-administrative agents (each a "Co-Administrative Agent" and
collectively, the "Co-Administrative Agents"). Capitalized terms
used but not defined herein have the meanings assigned to such
terms in the Credit Agreement.
This Assignment and Acceptance Agreement (this "Agreement")
has been made by (the "Assignor") and
(the "Assignee"), and consented to by the Company and each of the
Co-Administrative Agents, in order to effect the assignment by
the Assignor, and the assumption by the Assignee, of certain of
the Assignor's rights and duties with respect to the Credit
Agreement and the Notes issued to it thereunder.
The Assignor and Assignee agree as follows:
1. The Assignor hereby sells and assigns to the
Assignee, and the Assignee hereby purchases and assumes from the
Assignor, a % interest in and to all of the Assignor's rights
and obligations under the Credit Agreement, including (a) its
Commitment on the Assignment Effective Date (as defined below),
(b) each of the Advances owing on the Assignment Effective Date
to the Assignor, (c) each Note held by the Assignor, and (d) all
unpaid interest with respect to such Advances and Fees owing to
the Assignor and accrued to the Assignment Effective Date.
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2. The Assignor (a) represents that as of the date
hereof, its Commitment (without giving effect to assignments
thereof which have not yet become effective) is $
(which includes all Letters of Credit Outstanding), and the
outstanding principal balances of each Note held by the Assignor
(unreduced by any assignments thereof which have not yet become
effective) is as follows: , (b) makes no representation
or warranty and assumes no responsibility with respect to 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, any of the Notes held by such Assignor, any
of the other Credit Documents or any other instrument or document
furnished pursuant thereto, other than that it is the legal and
beneficial owner of the interests being assigned by it hereunder
and that such interests are free and clear of any lien or
security interest, and (c) makes no representation or warranty
and assumes no responsibility with respect to the financial
condition of the Company or any other Obligor or the performance
or observance by the Company or any other Obligor of any of its
obligations under the Credit Agreement, any of the Notes or any
of the other Credit Documents or any other instrument or
documents furnished pursuant thereto.
3. The Assignee (a) represents and warrants that it
is legally authorized to enter into this Agreement, (b) confirms
that it has received a copy of the Credit Agreement, together
with copies of the most recent financial statements referred to
in Section 4.1 of the Credit Agreement and such other documents
and information as it has deemed appropriate to make its own
credit analysis and decision to enter into this Agreement;
(c) agrees that it will, independently and without reliance upon
either of the Co-Administrative Agents, the Administrator, 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 Agreement, any Notes held by it or any of the
other Credit Documents; (d) appoints and authorizes each of the
Co-Administrative Agents to take such action as agent on its
behalf and to exercise such powers under the Credit
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Agreement as are delegated to either of the
Co-Administrative Agents by the terms thereof, together with
such powers as are reasonably incidental thereto; and
(e) 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
Bank, including its obligations under Section 1.12 of the
Credit Agreement if it is organized outside the United
States.
4. The Assignment Effective Date for this Agreement
shall be , 19 (the "Assignment Effective Date").
5. From and after the Assignment Effective Date,
(a) the Assignee shall be a party to the Credit Agreement
and, to the extent rights and obligations have been transferred
to it by this Agreement, have the rights and obligations of a
Bank thereunder and (b) the Assignor shall, to the extent its
rights and obligations have been transferred to the Assignee by
this Agreement, relinquish its rights and be released from its
obligations under the Credit Agreement.
-------------------------
* See Section 10.6(b) of the Credit Agreement. Such date
shall be at least five (5) Business Days after the
execution of this Agreement.
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6. Upon receipt and recording of this Agreement by
the Administrator, from and after the Assignment Effective Date,
the Administrator shall make all payments under the Credit
Agreement in respect of the interest assigned hereby (including,
without limitation, all payments of principal, interest and Fees
with respect thereto) to the Assignee. The Assignor and Assignee
shall make all appropriate adjustments in payments under the
Credit Agreement for periods prior to the Assignment Effective
Date directly between themselves.
7. The Assignee hereby consents to the exclusive
jurisdiction of any Federal or State court located in
Connecticut.
8. This Agreement shall be governed by and construed
in accordance with the laws of the State of Connecticut.
ASSIGNOR:
[NAME OF ASSIGNOR]
By:___________________________
Name:
Title:
ASSIGNEE:
[NAME OF ASSIGNEE]
By:___________________________
Name:
Title:
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hereby accepted by each of the
COMPANY:
KAMAN CORPORATION
By:___________________________
Name:
Title:
CO-ADMINISTRATIVE AGENTS:
THE BANK OF NOVA SCOTIA,
as a Co-Administrative Agent
By:___________________________
Name:
Title:
FLEET NATIONAL BANK OF
CONNECTICUT,
as a Co-Administrative Agent
By:___________________________
Name:
Title:
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EXHIBIT I
SUBSIDIARY GUARANTEE
THIS SUBSIDIARY GUARANTEE (this "Guarantee"), dated as of
July 3, 1997, made by KAMAN AEROSPACE INTERNATIONAL CORPORATION,
a Connecticut corporation (the "Guarantor"), in favor of each of
the Bank Parties (as defined below).
W I T N E S E T H:
WHEREAS, pursuant to the Amended and Restated Revolving
Credit Agreement, dated as of the date hereof, amending and
restating in its entirety that certain Revolving Credit
Agreement, dated as of January 29, 1996 (together with all
exhibits, schedules and attachments thereto, as the same have
been amended or otherwise modified prior to the date hereof, the
"Existing Credit Agreement", and as so amended and restated and,
together with all amendments and other modifications, if any,
from time to time thereafter made thereto, the "Credit
Agreement"), among Kaman Corporation, a Connecticut corporation
(the "Company"), the various financial institutions as are or may
from time to time become parties thereto (individually a "Bank"
and collectively the "Banks"), and The Bank of Nova Scotia
("Scotiabank") and Fleet National Bank of Connecticut ("Fleet"),
as the co-administrative agents (each a "Co-Administrative Agent"
and collectively, the "Co-Administrative Agents"), the Banks and
each Issuer have extended Commitments to make Loans to the
Company and to issue Letters of Credit for the account of the
Company and/or its Subsidiary Guarantors; and
WHEREAS, as a condition precedent to the amendment and
restatement of the Existing Credit Agreement pursuant to the
Credit Agreement and to the making of Loans and the issuance of
Letters of Credit, including for the account of the Guarantor,
under the Credit Agreement, the Guarantor is required to execute
and deliver this Guarantee and become a Subsidiary Guarantor
under, and for all purposes of, the Credit Agreement; and
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WHEREAS, the Guarantor has duly authorized the execution,
delivery and performance of this Guarantee; and
WHEREAS, it is in the best interests of the Guarantor to
execute this Guarantee inasmuch as the Guarantor will derive
substantial direct and indirect benefits from the Loans and
Advances made from time to time to the Company (and, in the case
of Letters of Credit, issued from time to time for the account of
the Company and/or its Subsidiary Guarantors) by the Banks and
each Issuer pursuant to the Credit Agreement, including Letters
of Credit issued from time to time for the account of the
Guarantor;
NOW THEREFORE, for good and valuable consideration the
receipt of which is hereby acknowledged, and in order to induce
the Banks to amend and restate the Existing Credit Agreement
pursuant to the Credit Agreement and to continue to make Loans
and Advances to the Company or, in the case of Letters of Credit,
issue such Letters of Credit for the account of the Company
and/or its Subsidiary Guarantors pursuant to the Credit
Agreement, the Guarantor agrees, for the benefit of each Bank
Party, as follows:
ARTICLE 1
DEFINITIONS
SECTION 1.1. Certain Terms. The following terms (whether
or not underscored) when used in this Guarantee, including its
preamble and recitals, shall have the following meanings (such
definitions to be equally applicable to the singular and plural
forms thereof):
"Administrator" means Fleet National Bank of Connecticut, in
its capacity as Administrator pursuant to the Credit Agreement,
and each of its successors, transferees and assigns thereto.
"Bank" and "Banks" is defined in the first recital.
"Bank Party" means, as the context may require, any Bank,
any Issuer or either Co-Administrative Agent and each of their
respective successors, transferees and assigns.
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"Co-Administrative Agent" and "Co-Administrative Agents" is
defined in the first recital.
"Company" is defined in the first recital.
"Credit Agreement" is defined in the first recital.
"Existing Credit Agreement" is defined in the first recital.
"Guarantee" is defined in the preamble.
"Guarantor" is defined in the preamble.
"Issuer" means any "Issuer" under (and as such term is
defined in) the Credit Agreement as an issuer of any Letter of
Credit.
SECTION 1.2. Credit Agreement Definitions. Unless
otherwise defined herein or the context otherwise requires, terms
used in this Guarantee, including its preamble and recitals, have
the meanings provided in the Credit Agreement.
ARTICLE II
GUARANTEE PROVISIONS
SECTION 2.1. Guarantee. The Guarantor hereby absolutely,
unconditionally and irrevocably
(1) guarantees the full and punctual payment when due,
whether at stated maturity, by required prepayment, declaration,
acceleration, demand or otherwise, of all Obligations of the
Company, whether for principal, interest, fees, expenses or
otherwise (including all such amounts which would become due but
for the operation of the automatic stay under Section 362(a) of
the United States Bankruptcy Code, 11 U.S.C. Section 362(a), and
the operation of Sections 502(b) and 506(b) of the United States
Bankruptcy Code, 11 U.S.C. Section 502(b) and Section 506(b)),
and
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(2) indemnifies and holds harmless each Bank Party and
each holder of a Note for any and all costs and expenses
(including reasonable attorney's fees and expenses) incurred by
such Bank Party or such holder, as the case may be, in enforcing
any rights under this Guarantee;
provided, however, that the Guarantor shall be liable under this
Guarantee for the maximum amount of such liability that can be
hereby incurred without rendering this Guarantee, as it relates
to the Guarantor, voidable under applicable law relating to
fraudulent conveyance or fraudulent transfer, and not for any
greater amount. This Guarantee constitutes a guaranty of payment
when due and not of collection, and the Guarantor specifically
agrees that it shall not be necessary or required that any Bank
Party or any holder of any Note exercise any right, assert any
claim or demand or enforce any remedy whatsoever against the
Company or any other Obligor (or any other Person) before or as a
condition to the obligations of the Guarantor hereunder.
SECTION 2.2. Acceleration of Guarantee. The Guarantor
agrees that, in the event of the dissolution or insolvency of the
Company or the Guarantor, or the inability or failure of the
Company or the Guarantor to pay debts as they become due, or an
assignment by the Company or the Guarantor for the benefit of
creditors, or the commencement of any case or proceeding in
respect of the Company or the Guarantor under any bankruptcy,
insolvency or similar laws, and if such event shall occur at a
time when any of the Obligations of the Company may not then be
due and payable, the Guarantor will pay to the Bank Parties
forthwith the full amount which would be payable hereunder by the
Guarantor if all such Obligations were then due and payable.
SECTION 2.3. Guarantee absolute, etc. This Guarantee shall
in all respects be a continuing, absolute, unconditional and
irrevocable guaranty of payment, and shall remain in full force
and effect until all Obligations of the Company have been paid in
full, all obligations of the Guarantor hereunder shall have been
paid in full and all Commitments shall have terminated. The
Guarantor guarantees that the Obligations of the Company will be
paid strictly in accordance with the terms of the Credit
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Agreement, regardless of any law, regulation or order now or
hereafter in effect in any jurisdiction affecting any of such
terms or the rights of any Bank Party or any holder of any Note
with respect thereto. The liability of the Guarantor under this
Guarantee shall be absolute, unconditional and irrevocable
irrespective of:
(1) any lack of validity, legality or enforceability
of the Credit Agreement, any Note or any other Credit Document;
(2) the failure of any Bank Party or any holder of any
Note
(1) to assert any claim or demand or to enforce
any right or remedy against the Company, any other Obligor or any
other Person (including any other guarantor) under the provisions
of the Credit Agreement, any Note or any other Credit Document or
otherwise, or
(2) to exercise any right or remedy against any
other guarantor of, or collateral securing, any Obligations of
the Company or any other Obligor;
(3) 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 or any other Obligor, or any other extension, compromise
or renewal of any Obligation of the Company or any other Obligor;
(4) any reduction, limitation, impairment or
termination of the Obligations of the Company or any other
Obligor for any reason, including any claim of waiver, release,
surrender, alteration or compromise, and shall not be subject to
(and the Guarantor hereby waives any right to or claim of) any
defense or setoff, counterclaim, recoupment or termination
whatsoever by reason of the invalidity, illegality,
nongenuineness, irregularity, compromise, unenforceability of, or
any other event or occurrence affecting, the Obligations of the
Company, any other Obligor or otherwise;
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(5) any amendment to, rescission, waiver, or other
modification of, or any consent to departure from, any of the
terms of the Credit Agreement, any Note or any other Credit
Document;
(6) any addition, exchange, release, surrender or
non-perfection of any collateral, or any amendment to or waiver
or release or addition of, or consent to departure from, any
other guaranty (including any other Subsidiary Guarantee), held
by any Bank Party or any holder of any Note securing any of the
Obligations of the Company; or
(7) any other circumstance which might otherwise
constitute a defense available to, or a legal or equitable
discharge of, the Company, any other Obligor, any surety or any
guarantor.
SECTION 2.4. Reinstatement, etc. The Guarantor agrees that
this Guarantee shall continue to be effective or be reinstated,
as the case may be, if at any time any payment (in whole or in
part) of any of the Obligations is rescinded or must otherwise be
restored by any Bank Party or any holder of any Note, upon the
insolvency, bankruptcy or reorganization of the Company or
otherwise, all as though such payment had not been made.
SECTION 2.5. Waiver, etc. The Guarantor hereby waives
promptness, diligence, notice of acceptance and any other notice
with respect to any of the Obligations of the Company and this
Guarantee and any requirement that either of the
Co-Administrative Agents, any other Bank Party or any holder of
any Note protect, secure, perfect or insure any security interest
or Lien, or any property subject thereto, or exhaust any right or
take any action against the Company, any other Obligor or any
other Person (including any other guarantor) or entity or any
collateral securing the Obligations of the Company.
SECTION 2.6. Postponement of Subrogation, etc. The
Guarantor will not exercise any rights which it may acquire by
way of rights of subrogation under this Guarantee, by any payment
made hereunder or otherwise, until the prior payment, in full and
in cash, of all Obligations of the Company. Any amount paid to
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the Guarantor on account of any such subrogation rights prior to
the payment in full of all Obligations of the Company shall be
held in trust for the benefit of the Bank Parties and each holder
of a Note and shall immediately be paid to the Administrator and
credited and applied against the Obligations of the Company,
whether matured or unmatured, in accordance with the terms of the
Credit Agreement; provided, however, that if
(1) the Guarantor has made payment to the Bank Parties
and each holder of a Note of all or any part of the Obligations
of the Company, and
(2) all Obligations of the Company have been paid in
full and all Commitments have been permanently terminated,
each Bank Party and each holder of a Note agrees that, at the
Guarantor's request, the Administrator, on behalf of the Bank
Parties and the holders of the Notes, will execute and deliver to
the Guarantor appropriate documents (without recourse and without
representation or warranty) necessary to evidence the transfer by
subrogation to the Guarantor of an interest in the Obligations of
the Company resulting from such payment by the Guarantor. In
furtherance of the foregoing, for so long as any Obligations or
Commitments remain outstanding, the Guarantor shall refrain from
taking any action or commencing any proceeding against the
Company (or its successors or assigns, whether in connection with
a bankruptcy proceeding or otherwise) to recover any amounts in
the respect of payments made under this Guarantee to any Bank
Party or any holder of a Note.
SECTION 2.7. Successors, Transferees and Assigns; Transfers
of Notes, etc. This Guarantee shall:
(1) be binding upon the Guarantor, and its successors,
transferees and assigns; and
(2) inure to the benefit of and be enforceable by
either of the Co-Administrative Agents and each other Bank Party.
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Without limiting the generality of clause (b), any Bank may
assign or otherwise transfer (in whole or in part) any Note or
Advance held by it to any other Person or entity, and such other
Person or entity shall thereupon become vested with all rights
and benefits in respect thereof granted to such Bank under any
Credit Document (including this Guarantee) or otherwise, subject,
however, to the provisions of Section 10.5 and Article VIII of
the Credit Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.1. Representations and Warranties. The Guarantor
hereby represents and warrants unto each Bank Party as to all
matters contained in Article II of the Credit Agreement insofar
as the representations and warranties contained therein are
applicable to the Guarantor and/or its properties, each such
representation and warranty set forth in such Article (insofar as
applicable as aforesaid) and all other terms of the Credit
Agreement to which reference is made therein, together with all
related definitions and ancillary provisions, being hereby
incorporated into this Guarantee by reference as though
specifically set forth in this Section.
ARTICLE IV
COVENANTS, ETC.
SECTION 4.1. Affirmative Covenants. The Guarantor
covenants and agrees that, so long as any portion of the
Obligations shall remain unpaid or any Bank shall have any
outstanding Commitment, or any Advance shall remain outstanding,
the Guarantor will perform, comply with and be bound by all of
the agreements, covenants and obligations contained in each of
Article IV and Article V of the Credit Agreement which are
applicable to the Guarantor and/or its properties, each such
agreement, covenant and obligation contained in such Articles and
all other terms of the Credit Agreement to which reference is
made therein, together with all related definitions and ancillary
provisions, being hereby incorporated into this Guarantee by
reference as though specifically set forth in this Section.
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ARTICLE V
MISCELLANEOUS PROVISIONS
SECTION 5.1. Credit Document. This Guarantee is a Credit
Document executed pursuant to the Credit Agreement and shall
(unless otherwise expressly indicated herein) be construed,
administered and applied in accordance with the terms and
provisions thereof, including, without limitation, Article X
thereof.
SECTION 5.2. Binding on Successors, Transferees and
Assigns; Assignment. In addition to, and not in limitation of,
Section 2.7, this Guarantee shall be binding upon the Guarantor
and its successors, transferees and assigns and shall inure to
the benefit of and be enforceable by each Bank Party and each
holder of a Note and their respective successors, transferees and
assigns (to the full extent provided pursuant to Section 2.7);
provided, however, that the Guarantor may not assign any of its
obligations hereunder without the prior written consent of all
the Banks.
SECTION 5.3. Amendments, etc. No amendment to or waiver of
any provision of this Guarantee, nor consent to any departure by
the Guarantor herefrom, shall in any event be effective unless
the same shall be in writing and signed by all of the Banks, and
then such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given.
SECTION 5.4. Notices. All notices and other communications
provided to the Guarantor under this Guarantee shall be in
writing and shall be mailed by first class mail or sent by
overnight courier or delivered by hand or sent by telegraph,
facsimile transmission or telex to the Guarantor at its address,
telex or facsimile number set forth below its signature hereto or
at such other address, telex or facsimile number as may be
designated by the Guarantor in a notice to each of the Bank
Parties. Notices hereunder shall be deemed to have been given
when (a) if delivered by hand or telecopied or otherwise
telecommunicated, to the officer named below the Guarantor's
signature hereto (or such other responsible officer of the
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Guarantor notified to the Bank Parties from time to time), at the
time of receipt thereof by such officer, (b) if sent by
registered or certified mail, postage prepaid, three days after
the date when mailed, or (c) if sent by overnight mail or
overnight courier service, to such officer, when received by such
officer.
SECTION 5.5. No Waiver; Remedies. In addition to, and not
in limitation of, Section 2.3 and Section 2.5, no failure on the
part of any Bank Party or any holder of a Note to exercise, and
no delay in exercising, any right hereunder shall operate as a
waiver thereof; nor shall any single or partial exercise of any
right hereunder preclude any other or further exercise thereof or
the exercise of any other right. The remedies herein provided
are cumulative and not exclusive of any remedies provided by law.
SECTION 5.6. Captions. Section captions used in this
Guarantee are for convenience of reference only, and shall not
affect the construction of this Guarantee.
SECTION 5.7. Setoff. In addition to, and not in limitation
of, any rights of any Bank Party or any holder of a Note under
applicable law, each Bank Party and each such holder shall, upon
the occurrence of any Default described in clause (f) of
Section 7.1 of the Credit Agreement or any Event of Default, have
the right to appropriate and apply to the payment of the
obligations of the Guarantor owing to it hereunder, whether or
not then due, and the Guarantor hereby grants to each Bank Party
and each such holder a continuing security interest in, any and
all balances, credits, deposits, accounts or moneys of the
Guarantor then or thereafter maintained with such Bank Party or
such holder; provided, however, that any such appropriation and
application shall be subject to the provisions of Section 7.5 of
the Credit Agreement.
SECTION 5.8. Severability. Wherever possible each
provision of this Guarantee shall be interpreted in such manner
as to be effective and valid under applicable law, but if any
provision of this Guarantee shall be prohibited by or invalid
under such law, such provision shall be ineffective to the extent
of such prohibition or invalidity, without invalidating the
remainder of such provision or the remaining provisions of this
Guarantee.
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SECTION 5.9. Governing Law. THIS GUARANTEE SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF CONNECTICUT.
SECTION 5.10. Waiver of Jury Trial. THE GUARANTOR HEREBY
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHTS IT MAY
HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED
HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS
GUARANTEE OR ANY OTHER CREDIT DOCUMENT, OR ANY COURSE OF CONDUCT,
COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN), OR
ACTIONS OF ANY BANK PARTY OR THE GUARANTOR. THE GUARANTOR
ACKNOWLEDGES AND AGREES THAT IT HAS RECEIVED FULL AND SUFFICIENT
CONSIDERATION FOR THIS PROVISION AND THAT THIS PROVISION IS A
MATERIAL INDUCEMENT FOR THE BANKS ENTERING INTO THE CREDIT
AGREEMENT.
SECTION 5.11. Prejudgment Remedy Waiver; Other Waivers.
THE GUARANTOR ACKNOWLEDGES THAT THE FINANCING TO WHICH THIS
GUARANTEE RELATES IS A COMMERCIAL TRANSACTION AND WAIVES ITS
RIGHTS TO NOTICE AND HEARING UNDER CHAPTER 903A OF THE
CONNECTICUT GENERAL STATUTES, OR AS OTHERWISE ALLOWED BY ANY
STATE OR FEDERAL LAW WITH RESPECT TO ANY PREJUDGMENT REMEDY WHICH
EITHER CO-ADMINISTRATIVE AGENT OR ANY BANK MAY DESIRE TO USE, AND
FURTHER WAIVES DILIGENCE, DEMAND, PRESENTMENT FOR PAYMENT, NOTICE
OF NONPAYMENT, PROTEST AND NOTICE OF ANY RENEWALS OR EXTENSIONS.
THE GUARANTOR ACKNOWLEDGES AND RESERVES ITS RIGHT TO NOTICE AND A
HEARING SUBSEQUENT TO THE ISSUANCE OF A WRIT FOR PREJUDGMENT
REMEDY AS AFORESAID AND THE CO-ADMINISTRATIVE AGENTS AND THE
BANKS ACKNOWLEDGE THE GUARANTOR'S RIGHT TO SAID HEARING
SUBSEQUENT TO THE ISSUANCE OF SAID WRIT.
SECTION 5.12. Consent to Jurisdiction. FOR THE PURPOSES OF
ANY ACTION OR PROCEEDING INVOLVING THIS GUARANTEE OR ANY OTHER
CREDIT DOCUMENT, THE GUARANTOR HEREBY EXPRESSLY CONSENTS TO THE
EXCLUSIVE JURISDICTION OF ANY FEDERAL OR STATE COURT LOCATED IN
CONNECTICUT; PROVIDED, HOWEVER, THAT ANY SUIT SEEKING ENFORCEMENT
AGAINST ANY COLLATERAL OR OTHER PROPERTY MAY BE BROUGHT, AT THE
CO-ADMINISTRATIVE AGENTS' OPTION, IN THE COURTS OF ANY
JURISDICTION WHERE SUCH COLLATERAL OR OTHER PROPERTY MAY BE
FOUND.
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IN WITNESS WHEREOF, the Guarantor has caused this Guarantee
to be duly executed and delivered by its officer thereunto duly
authorized as of the date first above written.
KAMAN AEROSPACE INTERNATIONAL
CORPORATION
By
Name:
Title:
Address: Xxxx Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx
Facsimile No: (000) 000-0000
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EXHIBIT J
AFFIRMATION AND CONSENT
July , 0000
Xxx Xxxx xx Xxxx Xxxxxx
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, XX 00000
Fleet National Bank of Connecticut
000 Xxxx Xx., XX XX H24B
Xxxxxxxx, XX 00000
-and-
Each of the Banks party to the
Credit Agreement referred to below.
Kaman Corporation
Gentlemen and Ladies:
This Affirmation and Consent is being delivered to the
Co-Administrative Agents and the Banks and each Issuer pursuant
to Section 3.1(b) of the Amended and Restated Revolving Credit
Agreement, dated as of the date hereof, amending and restating in
its entirety that certain Revolving Credit Agreement, dated as of
January 29, 1996 (together with all exhibits, schedules and
attachments thereto, as the same have been amended or otherwise
modified prior to the date hereof, the "Existing Credit
Agreement", and as so amended and restated and, together with all
amendments and other modifications, if any, from time to time
thereafter made thereto, the "Credit Agreement"), among Kaman
Corporation, a Connecticut corporation (the "Company"), the
various financial institutions as are or may from time to time
become parties thereto (individually a "Bank" and collectively
the "Banks"), and The Bank of Nova Scotia ("Scotiabank") and Fleet
National Bank of Connecticut ("Fleet"), as the co-administrative
agents (each a "Co-Administrative Agent" and collectively, the
"Co-Administrative Agents"). Unless otherwise defined herein or
the context otherwise requires, terms used herein have the
meanings provided in the Credit Agreement.
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By its signature below, the undersigned hereby acknowledges,
consents and agrees to the modification of the Existing Credit
Agreement and the other Credit Documents pursuant to the terms
and provisions set forth in the Credit Agreement.
The undersigned hereby reaffirms, as of the Effective Date,
(i) the covenants and agreements contained in each Credit
Document to which it is a party, including, in each case, as such
covenants and agreements may be modified by the Credit Agreement
and the transactions contemplated thereby, and (ii) its guarantee
of payment of the Obligations pursuant to the Subsidiary
Guarantee executed by it. The undersigned hereby further
certifies that, as of the date hereof (both before and after
giving effect to the occurrence of the Effective Date, the
amendment and restatement of the Existing Credit Agreement
pursuant to the Credit Agreement and the effectiveness of the
Credit Agreement), the representations and warranties contained
in the Credit Documents to which it is a party are true and
correct with the same effect as if made on the date hereof,
except to the extent any such representation or warranty refers
or pertains solely to a date prior to the date hereof (in which
case such representation and warranty was true and correct as of
such earlier date). The undersigned further confirms that each
Credit Document to which it is a party is and shall continue to
be in full force and effect and the same are hereby ratified and
confirmed in all respects, except that upon the occurrence of the
Effective Date, all references in such Credit Documents to the
"Credit Agreement", "Credit Documents", "thereunder" "thereof", or
words of like or similar import shall mean the Credit Agreement
and the Credit Documents, as the case may be, as in effect after
giving effect to the amendments and other modifications provided
for in the Credit Agreement.
The undersigned hereby further acknowledges and agrees that
the acceptance by the Co-Administrative Agents, the Banks and
each Issuer of this document shall not be construed in any manner
to establish (or indicate) any course of dealing on any
Co-Administrative Agent's, any Bank's or any Issuer's part,
including, without limitation, the providing of any notice or the
requesting of any acknowledgment not otherwise expressly provided
for in any Credit Document with respect to any future amendment,
waiver, supplement or other modification to any Credit Document
or any arrangement contemplated by any Credit Document.
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IN WITNESS WHEREOF, the undersigned has caused this
Affirmation and Consent to be duly executed as of the date first
above written.
[NAME OF SUBSIDIARY GUARANTOR]
By:
Name:
Title:
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EXHIBIT K
LETTER OF CREDIT ELECTION NOTICE
Fleet National Bank,
as Administrator
000 Xxxx Xx., XX XX H24B
Xxxxxxxx, XX 00000
Attention:
Kaman Corporation
Gentlemen and Ladies:
This Letter of Credit Election Notice is delivered to you
pursuant to Section 1.9 of the Amended and Restated Revolving
Credit Agreement, dated as of July , 1997, amending and
restating in its entirety that certain Revolving Credit
Agreement, dated as of January 29, 1996 (together with all
exhibits, schedules and attachments thereto, as the same have
been amended or otherwise modified prior to the date hereof, the
"Existing Credit Agreement", and as so amended and restated and,
together with all amendments and other modifications, if any,
from time to time thereafter made thereto, the "Credit
Agreement"), among Kaman Corporation, a Connecticut corporation
(the "Company"), the various financial institutions as are or may
from time to time become parties thereto (individually a "Bank"
and collectively the "Banks"), and The Bank of Nova Scotia
("Scotiabank") and Fleet National Bank ("Fleet"), as the
co-administrative agents (each a "Co-Administrative Agent" and
collectively, the "Co-Administrative Agents"). Unless otherwise
defined herein or the context otherwise requires, terms used
herein have the meanings provided in the Credit Agreement.
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The Company hereby requests that [name of Issuer] ("Issuer")
[issue a standby Letter of Credit on , 19 (the
"Date of Issuance") in the initial Stated Amount of $
with a Stated Expiry Date (as defined therein) of
, 199 for the account of [the Company] [the Subsidiary
Guarantor]] [extend the Stated Expiry Date (as defined under
Irrevocable Standby Letter of Credit No. , issued on
, 199 , in the initial Stated Amount of $ ) to a
revised Stated Expiry Date (as defined therein) of
, 19 ].
[The beneficiary of the requested Letter of Credit will be
, and such Letter of Credit will be in
support of .]
-------------------------
* Insert and complete as appropriate.
** Delete if Letter of Credit Election Notice is for an
extension.
*** Insert name and address of beneficiary.
**** Insert description of supported Indebtedness or other
obligations and name of agreement to which it relates.
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The Company hereby certifies and warrants that, pursuant to
Section 3.2 of the Credit Agreement, each of the delivery of this
Letter of Credit Election Notice and the [issuance] [extension]
of the Letter of Credit requested hereby, constitute a
representation and warranty that, on the date the Letter of
Credit requested hereby is issued, and both before and after
giving effect thereto and to the application of the proceeds
therefrom, all statements set forth in clauses (c) and (d) of
Section 3.2 of the Credit Agreement are true and correct in all
material respects. The Company further certifies and warrants
that on the date the Letter of Credit proposed hereby is issued,
the aggregate amount of the proposed Revolving Credit Loans and
all other Loans, Letter of Credit Outstandings and Advances
outstanding after giving effect to such Letters of Credit (and
any prepayments required pursuant to Section 1.10 of the Credit
Agreement) will not exceed the Total Commitment, as in effect on
such date.
*The Company hereby represents and warrants that [NAME OF
SUBSIDIARY GUARANTOR], the account party to the Letter of Credit
to be issued, is a Subsidiary Guarantor as of the date hereof
under and pursuant to the terms of the Credit Agreement.
The Company agrees that if prior to the time of the issuance
of the Letter of Credit requested hereby any matter certified to
above will not be true and correct, it will immediately so notify
the Administrator and the Issuer. If no such notice is delivered
to the Administrator and the Issuer, then each matter certified
to shall be deemed to be certified as true and correct on the
date of the issuance of the Letter of Credit.
The Company hereby confirms that the requested Letter of
Credit is to be made available to it the in accordance with
Section 1.9 of the Credit Agreement.
-------------------------
* Insert as appropriate.
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The Company has caused this Letter of Credit Election Notice
to be executed and delivered, and the certification and
warranties contained herein to be made, by its duly authorized
officer this day of , 199 .
KAMAN CORPORATION
By:
Name:
Title:
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EXHIBIT L
[Letterhead of Kaman Corporation]
July , 0000
Xxx Xxxx xx Xxxx Xxxxxx
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, XX 00000
Fleet National Bank
000 Xxxx Xx., XX XX H24B
Xxxxxxxx, XX 00000
AND TO EACH OF THE BANKS ON THE ATTACHED LIST
Re: Amended and Restated Revolving Credit Agreement, dated
as of the date hereof, amending and restating in its entirety
that certain Revolving Credit Agreement, dated as of January 29,
1996 (together with all exhibits, schedules and attachments
thereto, as the same have been amended or otherwise modified
prior to the date hereof, the "Existing Credit Agreement", and as
so amended and restated and, together with all amendments and
other modifications, if any, from time to time thereafter made
thereto, the "Credit Agreement"), among Kaman Corporation, a
Connecticut corporation (the "Company"), the various financial
institutions as are or may from time to time become parties
thereto (individually a "Bank" and collectively the "Banks"), and
The Bank of Nova Scotia ("Scotiabank") and Fleet National Bank
("Fleet"), as the co-administrative agents (each a
"Co-Administrative Agent" and collectively, the
"Co-Administrative Agents").
Ladies and Gentlemen:
I have acted as special counsel to the Company and each of
its Subsidiaries in connection with the negotiation, execution
and delivery of the Credit Agreement, the Notes, the Subsidiary
Guarantee, the Affirmation and Consents, and each of the other
Credit Documents and the transactions contemplated thereby.
Capitalized terms used but not defined herein have the meanings
given to such terms in the Credit Agreement.
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This opinion letter has been requested of me as an
inducement to your entering into the Credit Agreement with the
Company. In this connection, I have examined the Governing
Documents of the Company and of each Subsidiary of the Company
and resolutions of the Board of Directors of the Company and of
each Subsidiary of the Company and such certificates of public
officials and other corporate documents or records and have made
such other examinations and inquiries as I have deemed necessary
or appropriate.
I have examined either original, certified copies or copies
otherwise authenticated to my satisfaction of such documents as I
have deemed necessary or advisable to examine in order to furnish
the opinions herein expressed. I have made such other
examination as to matters of fact and law as I have deemed
necessary in order to enable me to give this opinion.
Based upon the foregoing and upon such investigations of law
as I have deemed appropriate, it is my opinion that, as of the
date hereof:
1. The Company and each Subsidiary (a) is a corporation
duly organized, validly existing and in good standing under the
laws of its respective jurisdiction of incorporation, (b) has all
requisite corporate power to own its respective material
properties and conduct its respective business, and (c) is duly
qualified to do business and is in good standing as a foreign
corporation in each of the jurisdictions where the nature of its
properties or its business requires such qualification except
where a Subsidiary's failure to be in good standing would not
result in a Material Adverse Effect.
2. The execution, delivery and performance of the Credit
Agreement, the Notes, the Subsidiary Guarantee dated as of the
date hereof executed and delivered by Kaman Aerospace
International Corporation (herein the "Subsidiary Guarantee"),
the Affirmation and Consents dated as of the date hereof,
executed and delivered by each of the Subsidiary Guarantors to
the Existing Credit Agreement, and each of the other Credit
Documents and the transactions contemplated thereby (a) are
within the corporate authority of the Company or such Subsidiary
of the Company, as the case may be, (b) have been authorized by
proper corporate proceedings, (c) will not (i) contravene or
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conflict with any Governing Document of the Company or any of its
Subsidiaries, (ii) conflict with or result in a violation, breach
or, but for the giving of notice or passage of time or both,
constitute a default under (A) any provision of any existing
statute, law, rule or regulation binding on the Company or any of
its Subsidiaries or, to the best of my knowledge, after due
inquiry and investigation, any order, judgment, award, decree,
license or authorization of any court or Governmental Authority
binding on the Company or any of its Subsidiaries (a "Requirement
of Law"), or (B) to the best of my knowledge, after due inquiry
and investigation, any mortgage, indenture, lease or other
contract, agreement, instrument or undertaking to which the
Company or any of its Subsidiaries is a party or will be a party
immediately after the Effective Date, or by which or to which the
Company or any of its Subsidiaries or any of their respective
properties or assets is now or immediately after the Effective
Date will be bound or subject (a "Contractual Obligation"), or
(iii) result in the creation or imposition of any Lien on any of
the properties or assets of the Company or any of its
Subsidiaries, except as may be provided in the Credit Agreement,
the Notes, the Subsidiary Guarantee, the Affirmation and Consents
or the Credit Documents.
3. No approval or consent of, or filing with, any
Governmental Authority and no consent or approval of the
shareholders of the Company, any of its Subsidiaries or any other
Person is required to be obtained or made by or on behalf of the
Company or any of its Subsidiaries to make valid and legally
binding the execution, delivery and performance of the Credit
Agreement, the Notes, the Subsidiary Guarantee, the Affirmation
and Consents or any other Credit Document. The consummation of
the transactions contemplated by the Credit Agreement, the Notes,
the Letters of Credit, the Subsidiary Guarantee, the Affirmation
and Consents and each of the other Credit Documents does not
require any approval, authorization or consent of or (except for
such disclosures as may be required in accordance with filings
made by the Company and/or its Subsidiaries in the ordinary
course of business such as customary SEC reporting) filing,
registration or declaration with any such Governmental Authority
or Person.
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4. Neither the Company nor any of its Subsidiaries is or
immediately after the Effective Date will be in default under any
of its Governing Documents or in violation of any Requirement of
Law. To the best of my knowledge, after due inquiry and
investigation, neither the Company nor any of its Subsidiaries is
or immediately after the Effective Date will be in violation of
or default under any (a) Contractual Obligation, or (b) any
license, permit, certification or approval requirement of any
customer, supplier, Governmental Authority or other Person.
5. All of the shares of each Subsidiary which are owned of
record by the Company, have been validly issued and are fully
paid and nonassessable.
6. To the best of my knowledge, after due inquiry and
investigation, no action, suit, investigation or proceeding is
pending or known to be threatened by or against or affecting the
Company or any of its Subsidiaries or any of their respective
properties or rights before any Governmental Authority (a) which
involves the Existing Credit Agreement, the Credit Agreement, the
Notes, the Letters of Credit, the Subsidiary Guarantees, the
Affirmation and Consents or any other Credit Document or any
instrument delivered in connection therewith, or any action to be
taken in connection with the transactions contemplated thereby or
(b) as to which there is a reasonable possibility of an adverse
determination and which, if adversely determined, could,
individually or in the aggregate result in a Material Adverse
Effect.
7. The Credit Agreement, each of the Notes, the Subsidiary
Guarantee, each of the Affirmation and Consents and each of the
other Credit Documents have been duly and properly executed and
delivered to the Co-Administrative Agents by the Company.
8. The agreements and obligations of the Company and its
Subsidiaries contained in the Credit Agreement, each of the
Notes, each Letter of Credit, each of the Subsidiary Guarantee,
each of the Affirmation and Consents and each of the other Credit
Documents constitute the legal, valid and binding obligations of
the Company or such Subsidiary, as the case may be, enforceable
against the Company or each such Subsidiary in accordance with
their respective terms, except to the extent their enforcement
may hereafter be limited by bankruptcy or insolvency or other
laws affecting creditors rights generally.
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9. The rates of interest payable on the Notes are not in
violation of or prohibited by the laws of the State of
Connecticut.
Sincerely,
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