EXHIBIT 4c
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9,500,000 EURO
CREDIT AGREEMENT
dated as of July 29, 2002,
by and among
KAMAN CORPORATION,
as Borrower,
RWG FRANKENJURA-INDUSTRIE FLUGWERKLAGER GMBH,
as Borrower,
and
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Lender
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TABLE OF CONTENTS
ARTICLE I DEFINITIONS 1
SECTION 1.1 Definitions 1
SECTION 1.2 General 8
SECTION 1.3 Other Definitions and Provisions 8
ARTICLE II REVOLVING CREDIT FACILITY 8
SECTION 2.1 Revolving Credit Loans 8
SECTION 2.2 Procedure for Advances of Revolving Credit
Loans 9
SECTION 2.3 Repayment of Loans 9
SECTION 2.4 Revolving Credit Note 10
SECTION 2.5 Permanent Reduction of the Revolving Credit
Commitment 10
SECTION 2.6 Purpose 10
ARTICLE III TERM LOAN FACILITY 10
SECTION 3.1 Term Loan 10
SECTION 3.2 Procedure for Advance of Term Loan 11
SECTION 3.3 Repayment of Term Loan 11
SECTION 3.4 Prepayments of Term Loan 11
SECTION 3.5 Term Notes 12
SECTION 3.6 Purpose 12
ARTICLE IV GENERAL LOAN PROVISIONS 12
SECTION 4.1 Interest 12
SECTION 4.2 Continuation of Loans 13
SECTION 4.3 Fees 14
SECTION 4.4 Manner of Payment 14
SECTION 4.5 Crediting of Payments and Proceeds 14
ARTICLE V SPECIAL PROVISIONS AS TO EURO LIBOR RATE; TAXES
AND YIELD PROTECTION 15
SECTION 5.1 Additional Costs 15
SECTION 5.2 Capital Requirements 15
SECTION 5.3 Taxes 16
SECTION 5.4 Regulatory Limitation 17
SECTION 5.5 Indemnity 17
SECTION 5.6 Mitigation Obligations 17
SECTION 5.7 Further Assurances 18
ARTICLE VI CLOSING; CONDITIONS OF CLOSING AND BORROWING 18
SECTION 6.1 Closing 18
SECTION 6.2 Conditions to Closing and Initial Loans 18
SECTION 6.3 Conditions to All Loans 20
ARTICLE VII REPRESENTATIONS AND WARRANTIES 21
ARTICLE VIII COVENANTS 22
SECTION 8.1 Affirmative, Negative and Financial Covenants 22
Page (i)
ARTICLE IX UNCONDITIONAL GUARANTY 22
SECTION 9.1 Guaranty of Obligations 22
SECTION 9.2 Nature of Guaranty 23
SECTION 9.3 Demand by the Lender 24
SECTION 9.4 Waivers 24
SECTION 9.5 Modification of Loan Documents etc. 24
SECTION 9.6 Reinstatement 25
SECTION 9.7 No Subrogation 25
ARTICLE X DEFAULT AND REMEDIES 26
ARTICLE XI MISCELLANEOUS 27
SECTION 11.1 Notices 27
SECTION 11.2 Expenses; Indemnity 28
SECTION 11.3 Set-off 28
SECTION 11.4 Governing Law 29
SECTION 11.5 Jurisdiction and Venue 29
SECTION 11.6 Waiver of Jury Trial 30
SECTION 11.7 Reversal of Payments 30
SECTION 11.8 Injunctive Relief; Punitive Damages 30
SECTION 11.9 Accounting Matters 30
SECTION 11.10 Benefit of Agreement 31
SECTION 11.11 Amendments, Waivers and Consents 31
SECTION 11.12 Performance of Duties 31
SECTION 11.13 Prejudgment Remedy Waiver; Other Waivers 31
SECTION 11.14 All Powers Coupled with Interest 31
SECTION 11.15 Survival of Indemnities 31
SECTION 11.16 Currency Indemnity 31
SECTION 11.17 Amendment of Revolving Credit Agreement 32
SECTION 11.18 Titles and Captions 32
SECTION 11.19 Severability of Provisions 32
SECTION 11.20 Counterparts 32
SECTION 11.21 Term of Agreement 32
SECTION 11.22 Advice of Counsel 32
SECTION 11.23 No Strict Construction 33
SECTION 11.24 Inconsistencies with Other Documents;
Independent Effect of Covenants 33
EXHIBITS
Exhibit A-1 - Form of Revolving Credit Note
Exhibit A-2 - Form of Term Note
Exhibit B - Form of Notice of Borrowing
Exhibit C - Form of Notice of Prepayment
Exhibit D - Form of Notice of Continuation
Page (ii)
CREDIT AGREEMENT
THIS CREDIT AGREEMENT, dated the 29th day of July, 2002 by
and among WACHOVIA BANK, NATIONAL ASSOCIATION, a national
banking association, as Lender, KAMAN CORPORATION, a Connecticut
corporation, as borrower and guarantor, and RWG FRANKENJURA-
INDUSTRIE FLUGWERKLAGER GMBH, a German corporation domiciled in
Dachsbach, as borrower.
STATEMENT OF PURPOSE
The Borrowers have requested that the Lender enter into
this Agreement to make available (a) an Eight Million Five
Hundred Thousand Euros (8,500,000 Euros) term loan facility to
the Domestic Borrower and (b) a One Million Euros (1,000,000
Euros) revolving credit facility to the German Borrower, each as
described herein on the terms and conditions set forth herein.
NOW, THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the
Lender and the Borrowers hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 Definitions. Capitalized terms used herein
and not defined herein shall have the meanings assigned thereto
in the Revolving Credit Agreement (as defined below); provided,
that, all definitions and other provisions of the Revolving
Credit Agreement which are incorporated herein by reference shall
be construed in such a manner so as to give such incorporated
terms legal effect and meaning hereunder. More specifically, any
references to the terms defined in both the Revolving Credit
Agreement and this Agreement, shall be deemed references to such
terms as defined herein, in each case to the extent necessary to
give any such incorporated provisions legal effect and meaning
hereunder. In addition, the following terms when used in this
Agreement shall have the meanings assigned to them below:
"Acquisition" means the purchase of 100% of the outstanding
capital stock of RWG Frankenjura-Industrie Flugwerklager GmbH
pursuant to the Acquisition Agreement.
"Acquisition Agreement" means the Purchase Agreement dated
as of July 15, 2002, by and among Xxxxxx Xxxxx, Xxxxxxxx
Xxxxxxxxxx, Xxxxxx Xxxxxxxx and Xxxxxxxxx Xxxxxxxx, the
shareholders of RWG Frankenjura-Industrie Flugwerklager GmbH, as
sellers, and Kaman Aerospace Group, Inc., as buyer.
Page 1
"Affiliate" means, with respect to any Person, any other
Person (other than a Subsidiary of the Borrower) which directly
or indirectly through one or more intermediaries, controls, or
is controlled by, or is under common control with, such first
Person or any of its Subsidiaries. The term "control" means
(a) the power to vote five percent (5%) or more of the
securities or other equity interests of a Person having ordinary
voting power, or (b) the possession, directly or indirectly, of
any other power to direct or cause the direction of the
management and policies of a Person, whether through ownership
of voting securities, by contract or otherwise.
"Agreed Currency" shall have the meaning set forth in
Section
11.16.
"Agreement" means this Credit Agreement, as amended,
restated, supplemented or otherwise modified from time to time.
"Applicable Law" means all applicable provisions of
constitutions, laws, statutes, ordinances, rules, treaties,
regulations, permits, licenses, approvals, interpretations and
orders of courts or Governmental Authorities and all orders and
decrees of all courts and arbitrators.
"Applicable Margin" means, for purposes of calculating (a)
the Euro LIBOR Rate and the Euro Base Rate for purposes of
Section 4.1, (b) the commitment fee for purposes of Section
4.3(b) or (c) the facility fee for purposes of Section 4.3(a), a
percentage based upon the then applicable credit rating from S&P
with respect to the Domestic Borrower's Public Senior Debt
(whether or not any is outstanding) as follows:
Applicable Commitment Applicable Facility
S&P Margin for Fee for Margin for Fee for
Term Loan Term Loan Revolving Revolving
Commitment Credit Credit
Loans Commitment
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>= A- .875% 0.150% 0.725% 0.150%
>= BBB+ 1.000% 0.190% 0.810% 0.190%
>= BBB 1.255% 0.225% 0.900% 0.225%
>= BBB- 1.375% 0.250% 1.125% 0.250%
>= BB+ 1.750% 0.375% 1.375% 0.375%
The Applicable Margin shall be adjusted on the Business Day after
any announcement, change, or withdrawal of S&P's rating of the
Domestic Borrower's Public Senior Debt: provided, that if at any
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time any Public Senior Debt is not rated by S&P, such Public
Senior Debt shall, for purposes of this definition, be deemed to
have been rated one level above the then applicable highest
rating ascribed to the Domestic Borrower's Subordinated Debt by
S&P: provided, further, that if at any time neither the
Subordinated Debt nor the Public Senior Debt of the Domestic
Borrower is rated by S&P, or if at any time S&P is not in the
business of rating debt securities such as the Domestic
Borrower's Subordinated Debt or Public Senior Debt, then the S&P
rating of the Domestic Borrower's Public Senior Debt shall, for
purposes of this definition, be deemed to be rated less than BB+.
The Domestic Borrower covenants and agrees with the Lender to at
all times use its best efforts to cause S&P to issue credit
ratings (either publicly or in the form of letters to the Lender)
for its Public Senior Debt and/or its Subordinated Debt (whether
or not any such Public Senior Debt or Subordinated Debt is
outstanding).
"Borrowers" means the collective reference to the Domestic
Borrower and the German Borrower.
"Business Day" means any day (other than a Saturday or
Sunday) on which banks are generally open for business in New
York City and prime banks in London generally provide quotations
for deposits denominated in Euros.
"Closing Date" means the date of this Agreement or such
later Business Day upon which each condition described in Section
6.2 shall be satisfied or waived in all respects in a manner
acceptable to the Lender, in its sole discretion.
"Code" means the Internal Revenue Code of 1986, and the
rules and regulations thereunder, each as amended or modified
from time to time.
"Conversion Date" shall have the meaning set forth in
Section
11.16.
"Credit Facility" means, collectively, the Revolving Credit
Facility and the Term Loan Facility.
"Default" means any of the events specified in Section 10.1
which with the passage of time, the giving of notice or any other
condition, would constitute an Event of Default.
"Dollars" or "$" means, unless otherwise qualified, dollars
in lawful currency of the United States.
"Domestic Borrower" means Kaman Corporation, a Connecticut
corporation, in its capacity as borrower under the Term Loan
Facility.
Page 3
"EMU" means economic and monetary union as contemplated in
the Treaty on European Union.
"EMU Legislation" means legislative measures of the Council
of European Union for the introduction of, change over to or
operation of the Euro.
"Euro" or the sign "Euro" means the single currency to which
the Participating Member States of the European Union have
converted.
"Euro Base Rate" means a fluctuating rate per annum, charged
monthly in arrears, as quoted by the Lender's London Branch, from
time to time.
"Euro Base Rate Loan" means any Revolving Credit Loan
bearing interest based upon the Euro Base Rate.
"Euro LIBOR Rate" means a rate per annum (rounded upwards,
if necessary, to the next higher 1/100th of 1%) determined by the
Lender pursuant to the following formula:
Euro LIBOR Rate = Euro LIBOR
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1.00 - Reserve Requirement
For the purposes of this definition: (a) "Euro LIBOR" means the
rate of interest per annum determined on the basis of the rate
for deposits in Euros for a period equal to the applicable
Interest Period which appears on the Telerate screen 3750 at
approximately 11:00 a.m. (London time) two (2) Business Days
prior to the first day of the applicable Interest Period (in each
case, rounded upward, if necessary, to the nearest one-hundredth
of one percent (1/100%)); provided that if, for any reason, such
rate does not appear on Telerate screen 3750, then "Euro LIBOR"
shall be determined by the Lender to be the arithmetic average
(rounded upward, if necessary, to the nearest one-hundredth of
one percent (1/100%)) of the rate per annum at which deposits in
Dollars in which the applicable Loan is denominated would be
offered by first class banks in the London interbank market to
the Lender at approximately 11:00 a.m. (London time) two (2)
Business Days prior to the first day of the applicable Interest
Period for a period equal to such Interest Period and in an
amount substantially equal to the amount of the applicable Loan;
and (b) "Reserve Requirement" means, for any day, the percentage
(expressed as a decimal and rounded upwards, if necessary, to the
next higher 1/100th of 1%) which is in effect for such day as
prescribed by the Federal Reserve Board (or any successor) for
determining the maximum reserve requirement (including, without
limitation, any basic, supplemental or emergency reserves) in
respect of eurocurrency liabilities or any similar category of
liabilities for a member bank of the Federal Reserve System in
Page 4
New York City. Each calculation by the Lender of the Euro LIBOR
Rate shall be conclusive and binding for all purposes, absent
manifest error.
"Euro LIBOR Rate Loan" means any Revolving Credit Loan
bearing interest based upon the Euro LIBOR Rate.
"Event of Default" means any of the events specified in
Section 10.1, provided that any requirement for passage of time,
giving of notice, or any other condition, has been satisfied.
"GAAP" means generally accepted accounting principles, as
recognized by the American Institute of Certified Public
Accountants and the Financial Accounting Standards Board,
consistently applied and maintained on a consistent basis for the
Borrower and its Subsidiaries throughout the period indicated and
(subject to Section 11.9) consistent with the prior financial
practice of the Borrower and its Subsidiaries.
"German Borrower" means RWG Frankenjura-Industrie
Flugwerklager GmbH, a German corporation domiciled in Dachsbach,
in its capacity as borrower under the Revolving Credit Facility.
"Governmental Approvals" means all authorizations, consents,
approvals, licenses and exemptions of, registrations and filings
with, and reports to, all Governmental Authorities.
"Governmental Authority" means any nation, province, state
or political subdivision thereof, and any government or any
Person exercising executive, legislative, regulatory or
administrative functions of or pertaining to government, and any
corporation or other entity owned or controlled, through stock or
capital ownership or otherwise, by any of the foregoing.
"Guaranteed Obligations" shall have the meaning set forth in
Section 9.1.
"Guaranty" means the unconditional guaranty agreement of the
Domestic Borrower set forth in Article IX.
"Interest Period" shall have the meaning assigned thereto in
Section 4.1(b).
"Judgment Currency" shall have the meaning set forth in
Section 11.16 of this Agreement.
"Lender" means Wachovia Bank, National Association, a
national banking association, and its successors and assigns.
"Loans" means the collective reference to the Revolving
Credit Loans and the Term Loans and "Loan" means any of such
Loans.
Page 5
"Loan Documents" means, collectively, this Agreement, the
Notes, the Guaranty and each other document, instrument,
certificate and agreement executed and delivered by the Borrowers
or any Subsidiary thereof in connection with this Agreement or
otherwise referred to herein or contemplated hereby, all as may
be amended, restated, supplemented or otherwise modified from
time to time.
"Notes" means the collective reference to the Revolving
Credit Note and the Term Note and "Note" means any of such Notes.
"Notice of Borrowing" shall have the meaning assigned
thereto in Section 2.2(a).
"Notice of Continuation" shall have the meaning assigned
thereto in Section 4.2.
"Notice of Prepayment" shall have the meaning assigned
thereto in Section 2.3(c).
"Obligations" means the unpaid principal of and interest on
the Loans and all other obligations and liabilities of the
Borrowers to the Lender, whether direct or indirect, absolute or
contingent, due or to become due, now existing or hereafter
incurred, which may arise under, out of, or in connection with,
this Agreement, the other Loan Documents or any other document
made, delivered or given in connection therewith, whether on
account of principal, interest, fees indemnities, costs, expenses
(including, without limitation, all fees and disbursements of
counsel to the Lender) or otherwise; provided that the parties
hereto acknowledge and agree that the term "Obligations" is not
intended to include the "Obligations" (as such term is defined in
the Revolving Credit Agreement) under the Revolving Credit
Agreement.
"Operating Accounts" means the collectively reference to (a)
the operating account (account no. 00000000) of the Domestic
Borrower maintained with the Lender and (b) the operating account
(account no. 00000000) of the German Borrower maintained with the
Lender.
"Other Taxes" shall have the meaning assigned thereto in
Section 5.3(b).
"Participating Member State" means each state so described
in any EMU Legislation.
"Person" means an individual, corporation, limited liability
company, partnership, association, trust, business trust, joint
venture, joint stock company, pool, syndicate, sole
proprietorship, unincorporated organization, Governmental
Authority or any other form of entity or group thereof.
Page 6
"Regulatory Change" means any change after the date of this
Agreement in United States federal, state, foreign or Bank of
England laws or regulations or the adoption or making after such
date of any interpretations, directives or requests applying to a
class of banks including the Lender, or its overseas branches or
affiliates, of or under any United States federal, state, foreign
or Bank of England laws or regulations (whether or not having the
force of law) by any court or governmental or monetary authority
charged with the interpretation or administration thereof,
excluding, however, any such change which results in an
adjustment of the rate at which Reserve Requirements are imposed
against eurocurrency liabilities and the effect of which is
reflected in a change in the Euro LIBOR Rate as provided in the
definitions of such terms in this Article I.
"Responsible Officer" means any of the following: the chief
executive officer or chief financial officer of the Domestic
Borrower or any other officer of the Domestic Borrower reasonably
acceptable to the Lender.
"Revolving Credit Agreement" means that certain Revolving
Credit Agreement dated as of November 13, 2000, by and among the
Domestic Borrower, the banks party thereto, The Bank of Nova
Scotia and Fleet National Bank, as co-administrative agents, and
Bank One, N.A., as documentation agent, as amended by Amendment
No. 1 dated as of June 28, 2002, and as may be further amended,
restated, supplemented or otherwise modified from time to time;
provided that no amendment, restatement, supplement or other
modification shall be effective with respect to the terms thereof
incorporated herein by reference unless such amendment,
restatement, supplement or other modification is approved by the
Lender.
"Revolving Credit Commitment" means the obligation of the
Lender to make Revolving Credit Loans to the account of the
German Borrower hereunder in an aggregate principal amount at any
time outstanding not to exceed One Million Euros (1,000,000
Euros), as such amount may be reduced or modified at any time or
from time to time pursuant to the terms hereof.
"Revolving Credit Facility" means the revolving credit
facility established pursuant to Article II.
"Revolving Credit Loans" means any revolving loan made to
the German Borrower pursuant to Section 2.1, and all such
revolving loans collectively as the context requires.
"Revolving Credit Maturity Date" means the earliest of (a)
November 11, 2005, (b) the date of termination by the German
Borrower pursuant to Section 2.5 or (c) the date of termination
by the Lender pursuant to Section 10.2.
Page 7
"Revolving Credit Note" means the Revolving Credit Note of
even date herewith made by the German Borrower payable to the
Lender in the form of Exhibit A-1 hereto, evidencing the
Revolving Credit Facility, and any amendments, supplements and
modifications thereto, any substitutes therefor, and any
replacements, restatements, renewals or extension thereof, in
whole or in part.
"Subsidiary" means as to any Person, any corporation,
partnership, limited liability company or other entity of which
more than fifty percent (50%) of the outstanding capital stock or
other ownership interests having ordinary voting power to elect a
majority of the board of directors or other managers of such
corporation, partnership, limited liability company or other
entity is at the time owned by or the management is otherwise
controlled by such Person (irrespective of whether, at the time,
capital stock or other ownership interests of any other class or
classes of such corporation, partnership, limited liability
company or other entity shall have or might have voting power by
reason of the happening of any contingency). Unless otherwise
qualified references to "Subsidiary" or "Subsidiaries" herein
shall refer to those of the Borrower.
"Taxes" shall have the meaning assigned thereto in Section
5.3(a).
"Term Loan Commitment" means the obligation of the Lender to
make the Term Loan to the account of the Domestic Borrower
hereunder in an aggregate principal amount at any time
outstanding not to exceed Eight Million Five Hundred Thousand
Euros (8,500,000 Euro), as such amount may be reduced or modified
at any time or from time to time pursuant to the terms hereof.
"Term Loan" means the term loan to be made to the Domestic
Borrower by the Lender pursuant to Section 3.1 of this Agreement.
"Term Loan Facility" shall mean the term loan facility
established pursuant to Article III.
"Term Loan Maturity Date" means the earliest of (a) November
11, 2005, (b) the date of termination by the Domestic Borrower
pursuant to Section 3.4, or (c) the date of termination by the
Lender pursuant to Section 10.2.
"Term Note" means the Term Note of even date herewith made
by the Domestic Borrower payable to the Lender in the form of
Exhibit A-2 hereto, evidencing the Term Loan Facility, and any
amendments, modifications and supplements thereto, any substitute
therefor, and any replacement, restatements, renewals or
extensions thereof, in whole or in part.
Page 8
"Treaty on European Union" means the Treaty of Rome of March
25, 1957, as amended by the Single European Act of 1986 and the
Maastricht Treaty (signed February 7, 1992), as amended from time
to time.
"UCC" means the Uniform Commercial Code as in effect in the
State of Connecticut, as amended or modified from time to time.
"United States" means the United States of America.
SECTION 1.2 General. Unless otherwise specified, a
reference in this Agreement to a particular article, section,
subsection, Schedule or Exhibit is a reference to that article,
section, subsection, Schedule or Exhibit of this Agreement.
Wherever from the context it appears appropriate, each term
stated in either the singular or plural shall include the
singular and plural, and pronouns stated in the masculine,
feminine or neuter gender shall include the masculine, the
feminine and the neuter.
SECTION 1.3 Other Definitions and Provisions
(a) Use of Capitalized Terms. Unless otherwise defined
therein, all capitalized terms defined in this Agreement shall
have the defined meanings when used in this Agreement, the Notes
and the other Loan Documents or any certificate, report or other
document made or delivered pursuant to this Agreement.
(b) References to the Borrowers. Unless otherwise
specified or otherwise required by the context, all references to
the Domestic Borrower and its Subsidiaries or the German Borrower
and its Subsidiaries shall be deemed to be references to such
entities after giving effect to the Acquisition.
(c) Revolving Credit Agreement. The terms and conditions
of each article, section or subsection of the Revolving Credit
Agreement which are incorporated in this Agreement by reference
shall continue as such terms and conditions are set forth in the
Revolving Credit Agreement on the Closing Date hereof
irrespective of any termination of the Revolving Credit
Agreement.
(d) Miscellaneous. The words "hereof", "herein" and
"hereunder" and words of similar import when used in this
Agreement shall refer to this Agreement as a whole and not to any
particular provision of this Agreement.
Page 9
ARTICLE II
REVOLVING CREDIT FACILITY
SECTION 2.1 Revolving Credit Loans. Subject to the terms
and conditions of this Agreement, and in reliance upon the
representations and warranties set forth herein, the Lender
agrees to make Revolving Credit Loans to the German Borrower from
time to time from the Closing Date through, but not including,
the Revolving Credit Maturity Date as requested by the German
Borrower in accordance with the terms of Section 2.2; provided,
that the aggregate principal amount of all outstanding Revolving
Credit Loans (after giving effect to any amount requested) shall
not exceed the Revolving Credit Commitment. Subject to the terms
and conditions hereof, the German Borrower may borrow, repay and
reborrow Revolving Credit Loans hereunder until the Revolving
Credit Maturity Date.
SECTION 2.2 Procedure for Advances of Revolving Credit
Loans
(a) Requests for Borrowing. The German Borrower shall give
the Lender irrevocable prior written notice substantially in the
form attached hereto as Exhibit B (a "Notice of Borrowing") not
later than 11:00 a.m. (London time) (i) on the same Business Day
as each Euro Base Rate Loan and (ii) at least three (3) Business
Days before each Euro LIBOR Rate Loan, of its intention to
borrow, specifying (A) the date of such Revolving Credit Loan,
which shall be a Business Day, (B) whether such Revolving Credit
Loan is to be a Euro LIBOR Rate Loan or Euro Base Rate Loan, (C)
the amount of such Revolving Credit Loan, which in the case of a
Euro LIBOR Rate Loan shall be in an aggregate principal amount of
100,000 Euro or a whole multiple of 100,000 Euro in excess
thereof, and (D) in the case of a Euro LIBOR Rate Loan, the
duration of the Interest Period applicable thereto. A Notice of
Borrowing received after 11:00 a.m. (London time) shall be deemed
received on the next Business Day.
(b) Disbursement of Revolving Credit. Not later than 2:00
p.m. (London time) on the proposed borrowing date, the Lender
will make available to the German Borrower the Revolving Credit
Loan to be made on such borrowing date. The German Borrower
hereby irrevocably authorizes the Lender to disburse the proceeds
of each borrowing requested pursuant to this Section 2.2 in
immediately available funds by crediting or wiring such proceeds
to the applicable Operating Account of the German Borrower or as
may be otherwise agreed upon by the German Borrower and the
Lender from time to time.
Page 10
SECTION 2.3 Repayment of Loans.
(a) Repayment on Maturity Date. The German Borrower hereby
agrees to repay the outstanding principal amount of all Revolving
Credit Loans in full on the Revolving Credit Maturity Date,
together with all accrued but unpaid interest thereon.
(b) Mandatory Repayment of Revolving Credit Loans. If at
any time the outstanding principal amount of all Revolving
Credit Loans exceeds the Revolving Credit Commitment, the German
Borrower agrees to repay immediately upon notice from the
Lender, by payment to the Lender, Revolving Credit Loans in an
amount equal to such excess.
(c) Optional Repayments. The German Borrower may at any
time and from time to time repay Revolving Credit Loans, in whole
or in part, upon at least three (3) Business Days' irrevocable
notice to the Lender with respect to Euro LIBOR Rate Loans and
upon at least one (1) Business Day's irrevocable notice to the
Lender with respect to Euro Base Rate Loans, substantially in the
form attached hereto as Exhibit C (a "Notice of Prepayment")
specifying the date and amount of repayment and whether the
repayment is of Euro LIBOR Rate Loans or Euro Base Rate Loans, or
a combination thereof, and, if of a combination thereof, the
amount allocable to each. If any such notice is given, the
amount specified in such notice shall be due and payable on the
date set forth in such notice. Partial repayments of Euro LIBOR
Rate Loans shall be in an aggregate amount of 100,000 Euro or a
whole multiple of 100,000 Euro in excess thereof. Each such
repayment shall be accompanied by any amount required to be paid
pursuant to Section 5.5.
SECTION 2.4 Revolving Credit Note. The Lender's Revolving
Credit Loans and the obligation of the German Borrower to repay
such Revolving Credit Loans shall be evidenced by a Revolving
Credit Note executed by the German Borrower payable to the order
of the Lender.
SECTION 2.5 Permanent Reduction of the Revolving Credit
Commitment.
(a) Voluntary Reduction. The German Borrower shall have
the right at any time and from time to time, upon at least five
(5) Business Days prior written notice to the Lender, to
permanently reduce, without premium or penalty, (i) the entire
Revolving Credit Commitment at any time or (ii) portions of the
Revolving Credit Commitment, from time to time, in an aggregate
principal amount not less than 100,000 Euro or any whole multiple
of 100,000 Euro in excess thereof.
Page 11
(b) Reduction Upon Termination of Revolving Credit
Agreement. Upon (i) any voluntary or mandatory termination or
expiration of the Revolving Credit Agreement or (ii) any
amendment, restatement or other modification of the Revolving
Credit Agreement the effect of which is to terminate the rights
and obligations of Wachovia Bank, National Association (formerly
known as First Union National Bank) as a "Bank" thereunder, the
Revolving Credit Commitment shall terminate and the German
Borrower shall repay the outstanding principal amount of all
outstanding Revolving Credit Loans, together with all accrued but
unpaid interest thereon.
(c) Corresponding Payment. Each permanent reduction
permitted or required pursuant to this Section 2.5 shall be
accompanied by a payment of principal sufficient to reduce the
aggregate outstanding Revolving Credit Loans after such reduction
to the Revolving Credit Commitment as so reduced. Any reduction
of the Revolving Credit Commitment to zero shall be accompanied
by payment of all outstanding Revolving Credit Loans and shall
result in the termination of the Revolving Credit Commitment and
the Revolving Credit Facility. Such repayment shall be
accompanied by any amount required to be paid pursuant to Section
5.5.
SECTION 2.6 Purpose. The German Borrower shall use the
proceeds of the Revolving Credit Loans for working capital and
general corporate purposes.
ARTICLE III
TERM LOAN FACILITY
SECTION 3.1 Term Loan. Subject to the terms and conditions
of this Agreement, the Lender severally agrees to make the Term
Loan to the Domestic Borrower in up to five (5) draws as
requested by the Domestic Borrower in accordance with the terms
of Section 3.2; provided, that (a) the first of such draws (the
"Initial Draw") shall be made on the Closing Date in the
principal amount of 7,500,000 Euro, (b) each of the remaining
draws (the "Subsequent Draws") shall only be made at the times
and in the amounts required pursuant to Section 2 of the
Acquisition Agreement, (c) all of the Subsequent Draws shall be
made on or before the second anniversary of the Closing Date, (d)
each of the Subsequent Draws shall be in a minimum principal
amount of 200,000 Euro or a whole multiple of 50,000 Euro in
excess thereof, (e) the aggregate principal amount of all of the
Subsequent Draws shall not exceed 1,000,000 Euro, and (f) the
Term Loan Commitment shall terminate on the second anniversary of
the Closing Date (regardless of whether the Domestic Borrower has
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utilized the total amount of the Term Loan Commitment) or, if
earlier, upon the full utilization of the Term Loan Commitment or
otherwise as set forth herein.
SECTION 3.2 Procedure for Advance of Term Loan. The
Domestic Borrower shall give the Lender an irrevocable Notice of
Borrowing prior to 11:00 a.m. (London time) at least three (3)
Business Days before each draw under the Term Loan, of its
intention to borrow, specifying (a) the date of such borrowing,
which shall be a Business Day, (b) the amount of such borrowing,
(c) the duration of the Interest Period applicable thereto. A
Notice of Borrowing received after 11:00 a.m. (London time) shall
be deemed received on the next Business Day. The Domestic
Borrower hereby irrevocably authorizes the Lender to disburse the
proceeds of the Term Loan in immediately available funds by
crediting or wiring such proceeds to the Operating Account of the
Domestic Borrower or as may be otherwise agreed upon by the
Domestic Borrower and the Lender from time to time.
SECTION 3.3 Repayment of Term Loan. The Borrower shall
repay the aggregate outstanding principal amount of the Term Loan
in full, together with accrued interest thereon, on the Term Loan
Maturity Date.
SECTION 3.4 Prepayments of Term Loan.
(a) Optional Prepayment of Term Loan. The Borrower shall
have the right at any time and from time to time, upon delivery
to the Lender of a Notice of Prepayment at least three (3)
Business Days prior to any repayment, to prepay the Term Loan in
whole or in part without premium or penalty except as provided in
Section 5.5. Each optional prepayment of the Term Loan hereunder
shall be in an aggregate principal amount of at least 100,000
Euro or any whole multiple of 100,000 Euro in excess thereof.
Each repayment shall be accompanied by any amount required to be
paid pursuant to Section 5.5.
(b) Prepayment Upon Termination of Revolving Credit
Agreement. Upon (i) any voluntary or mandatory termination or
expiration of the Revolving Credit Agreement or (ii) any
amendment, restatement or other modification of the Revolving
Credit Agreement the effect of which is to terminate the rights
and obligations of Wachovia Bank, National Association (formerly
known as First Union National Bank) as a "Bank" thereunder, the
Term Loan Commitment shall terminate and the Domestic Borrower
shall repay the outstanding principal amount of the Term Loan in
full, together with all accrued but unpaid interest thereon.
Amounts prepaid under the Term Loan pursuant to this Section 3.4
may not be reborrowed and will constitute a permanent reduction
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in such Term Loan Commitment. Each prepayment shall be
accompanied by any amount required to be paid pursuant to Section
5.5.
SECTION 3.5 Term Notes. The Term Loan and the obligation
of the Domestic Borrower to repay such Term Loan shall be
evidenced by a separate Term Note executed by the Borrower
payable to the order of the Lender.
SECTION 3.6 Purpose. The Domestic Borrower shall use the
proceeds of the Term Loan (a) to finance the Acquisition and (b)
to repay certain outstanding indebtedness of the German Borrower.
ARTICLE IV
GENERAL LOAN PROVISIONS
SECTION 4.1 Interest.
(a) Interest Rate Options. Subject to the provisions of
this Section 4.1, (i) the Term Loan shall bear interest at the
Euro LIBOR Rate plus the Applicable Margin and (ii) Revolving
Credit Loans shall bear interest at the Domestic Borrower's
option of the Euro LIBOR Rate and the Euro Base Rate, in each
case, plus the Applicable Margin. The applicable Borrower shall
select the rate of interest and Interest Period, if any,
applicable to any Loan at the time a Notice of Borrowing is given
pursuant to Section 2.2 or Section 3.2, as applicable, or at the
time a Notice of Continuation is given pursuant to Section 4.2.
(b) Interest Periods. In connection with each Euro LIBOR
Rate Loan, the applicable Borrower, by giving notice at the times
described in Section 2.2 and Section 3.2, respectively, shall
elect an interest period (each, an "Interest Period") to be
applicable to such Euro LIBOR Rate Loan, which Interest Period
shall be a period of one (1), two (2), three (3), or six (6)
months; provided that:
(i) the Interest Period shall commence on the date of
advance of any Loan and, in the case of immediately successive
Interest Periods, each successive Interest Period shall commence
on the date on which the immediately preceding Interest Period
expires;
(ii) if any Interest Period would otherwise expire on
a day that is not a Business Day, such Interest Period shall
expire on the next succeeding Business Day; provided, that if
any Interest Period would otherwise expire on a day that is not
a Business Day but is a day of the month after which no further
Business Day occurs in such month, such Interest Period shall
expire on the immediately preceding Business Day;
Page 14
(iii) any Interest Period that begins on the last
Business Day of a calendar month (or on a day for which there is
no numerically corresponding day in the calendar month at the end
of such Interest Period) shall end on the last Business Day of
the relevant calendar month at the end of such Interest Period;
(iv) no Interest Period shall extend beyond the
Revolving Credit Maturity Date or the Term Loan Maturity Date, as
applicable; and
(v) there shall be no more than five (5) Interest
Periods in effect at any time.
(c) Default Rate. Subject to Section 10.3, at the
discretion of the Lender, upon the occurrence and during the
continuance of an Event of Default, all outstanding Loans shall
bear interest at a rate per annum of two percent (2%) in excess
of the rate then applicable to such Loans. Interest shall
continue to accrue on the Notes after the filing by or against
the applicable Borrower of any petition seeking any relief in
bankruptcy or under any act or law pertaining to insolvency or
debtor relief, whether state, federal or foreign.
(d) Interest Payment and Computation. (i) Interest on each
Euro Base Rate Loan shall be payable in arrears on the last
Business Day of each calendar quarter, and on the Revolving
Credit Maturity Date, and (ii) interest on each Euro LIBOR Rate
Loan shall be payable in arrears on the last day of each Interest
Period applicable thereto, and if such Interest Period extends
over three (3) months, at the end of each three (3) month
interval during such Interest Period. All interest rates, fees
and commissions provided hereunder shall be computed on the basis
of a 360-day year and assessed for the actual number of days
elapsed.
(e) Maximum Rate. In no contingency or event whatsoever
shall the aggregate of all amounts deemed interest hereunder or
under any of the Notes charged or collected pursuant to the terms
of this Agreement or pursuant to any of the Notes exceed the
highest rate permissible under any Applicable Law which a court
of competent jurisdiction shall, in a final determination, deem
applicable hereto. In the event that such a court determines
that the Lender has charged or received interest hereunder in
excess of the highest applicable rate, the rate in effect
hereunder shall automatically be reduced to the maximum rate
permitted by Applicable Law and the Lender shall, at the Lender's
option, (i) promptly refund to the applicable Borrower any
interest received by the Lender in excess of the maximum lawful
rate or (ii) apply such excess to the principal balance of the
Obligations of such Borrower on a pro rata basis. It is the
intent hereof that the Borrowers not pay or contract to pay, and
Page 15
that the Lender not receive or contract to receive, directly or
indirectly in any manner whatsoever, interest in excess of that
which may be paid by the Borrowers under Applicable Law.
SECTION 4.2 Continuation of Loans. Upon the expiration of
any Interest Period, the applicable Borrower may continue such
Loans by giving the Lender irrevocable prior written notice in
the form attached as Exhibit D (a "Notice of Continuation") not
later than 11:00 a.m. (London time) three (3) Business Days
before the day on which a proposed continuation of such Loan is
to be effective specifying (a) the Loans to be continued, and the
last day of the Interest Period therefor, (b) the effective date
of such continuation (which shall be a Business Day), (c) the
principal amount of such Loans to be continued, and (d) the
Interest Period to be applicable to such continued Loan. Upon
the expiration of the Interest Period for any Euro LIBOR Rate
Loan, if the applicable Borrower fails to deliver a Notice of
Continuation, (i) if such Loan is a Revolving Credit Loan, such
Loan shall be automatically converted to a Euro Base Rate Loan
and (ii) if such Loan is the Term Loan, such Loan shall be
automatically continued as a Euro LIBOR Loan with a one (1) month
Interest Period.
SECTION 4.3 Fees.
(a) Facility Fee. Commencing on the Closing Date, the
German Borrower shall pay to the Lender a non-refundable facility
fee at a rate per annum equal to the Applicable Margin times the
Revolving Credit Commitment. The facility fee shall be payable
in arrears on the last Business Day of each calendar quarter
during the term of this Agreement and on the Revolving Credit
Maturity Date.
(b) Commitment Fee. Commencing on the Closing Date, the
Domestic Borrower shall pay to the Lender a non-refundable
commitment fee at a rate per annum equal to the Applicable Margin
on the average daily unused portion of the Term Loan Commitment.
The commitment fee shall be payable in arrears on the last
Business Day of each calendar quarter during the term of this
Agreement and on the Term Loan Maturity Date.
(c) Upfront Fee. The Domestic Borrower shall pay to the
Lender a non-refundable upfront fee in an amount equal to $75,000
on the Closing Date.
SECTION 4.4 Manner of Payment. Each payment by the
Borrowers on account of the principal of or interest on the Loans
or of any fee, commission or other amounts payable to the Lender
under this Agreement or any Note shall be made not later than
1:00 p.m. (London time) on the date specified for payment under
Page 16
this Agreement to the Lender in Euros, in immediately available
funds and shall be made without any set-off, counterclaim or
deduction whatsoever. Any payment received after such time but
before 2:00 p.m. (London time) on such day shall be deemed a
payment on such date for the purposes of Section 10.1, but for
all other purposes shall be deemed to have been made on the next
succeeding Business Day. Any payment received after 2:00 p.m.
(London time) shall be deemed to have been made on the next
succeeding Business Day for all purposes. Subject to Section
4.1(b)(ii), if any payment under this Agreement or any Note shall
be specified to be made upon a day which is not a Business Day,
it shall be made on the next succeeding day which is a Business
Day and such extension of time shall in such case be included in
computing any interest if payable along with such payment.
SECTION 4.5 Crediting of Payments and Proceeds. In the
event that any Borrower shall fail to pay any of the Obligations
when due and the Obligations have been accelerated pursuant to
Section 10.2, all payments received by the Lender upon the Notes
and the other Obligations and all net proceeds from the
enforcement of the Obligations shall be applied: (a) first to all
expenses then due and payable by the applicable Borrower
hereunder and under the other Loan Documents, (b) then to all
indemnity obligations then due and payable by the Borrowers
hereunder and under the other Loan Documents, (c) then to all
Lender's commitment and other fees and commissions then due and
payable, (d) then to accrued and unpaid interest on the Notes,
(e) then to the principal amount of the Notes, in that order.
ARTICLE V
SPECIAL PROVISIONS AS TO EURO LIBOR RATE;
TAXES AND YIELD PROTECTION
SECTION 5.1 Additional Costs.
(a) If, as a result of any Regulatory Change,
(i) the basis of taxation of payments to the Lender of
the principal of or interest on the Loans, the Notes or any other
amounts payable under this Agreement in respect thereof (other
than taxes imposed on the overall net income of the Lender for
loans of such type by the jurisdiction in which the Lender has
its principal office) is changed; or
(ii) any reserve, special deposit or similar
requirements relating to any extensions of credit or other assets
of, or any deposits with or other liabilities of, the Lender are
imposed, modified or deemed applicable; or
Page 17
(iii) any other condition affecting this Agreement,
the Loans or the Notes is imposed on the Lender;
and the Lender reasonably determines that, by reason thereof, the
cost to the Lender of making or maintaining the Loans at the Euro
LIBOR Rate is increased, or any amount receivable by the Lender
hereunder in respect of the Loans or the Notes while bearing
interest at the Euro LIBOR Rate is reduced, in each case by an
amount deemed by the Lender to be material (such increases in
cost and reductions in amounts receivable being herein called
"Increased Costs"), then the Borrowers shall pay to the Lender
upon its request such additional amount or amounts as will
compensate the Lender for such Increased Costs. The Lender will
notify the Borrowers of any event occurring after the date hereof
which will entitle the Lender to compensation pursuant to this
Section 5.1(a) as promptly as practicable after it obtains
knowledge thereof and determines to request such compensation.
If the Lender requests compensation under this Section 5.1(a),
the Borrowers may, by notice to the Lender, require that the
Lender furnish to the Borrowers a statement setting forth the
basis for requesting such compensation and the method for
determining the amount thereof.
(b) Determinations by the Lender for purposes of this
Section 5.1 of the effect of any Regulatory Change on its costs
of making or maintaining the Loans at the Euro LIBOR Rate or on
amounts receivable by it in respect of the Loans bearing interest
at the Euro LIBOR Rate, and of the additional amounts required to
compensate the Lender in respect of any Increased Costs, shall be
conclusive, provided that such determinations are made reasonably
and in good faith.
SECTION 5.2 Capital Requirements. If either (a) the
introduction of, or any change in, or in the interpretation of,
any Applicable Law or (b) compliance with any guideline or
request from any central bank or comparable agency or other
Governmental Authority (whether or not having the force of law),
has or would have the effect of reducing the rate of return on
the capital of, or has affected or would affect the amount of
capital required to be maintained by the Lender or any
corporation controlling the Lender as a consequence of, or with
reference to the Loans and other commitments of this type, below
the rate which the Lender or such other corporation could have
achieved but for such introduction, change or compliance, then
within five (5) Business Days after written demand by the Lender,
the Borrowers shall pay to the Lender from time to time as
specified by the Lender additional amounts sufficient to
compensate the Lender or other corporation for such reduction.
Page 18
A certificate as to such amounts submitted to the Borrowers by
the Lender, shall, in the absence of manifest error, be presumed
to be correct and binding for all purposes.
SECTION 5.3 Taxes.
(a) Payments Free and Clear. Any and all payments by the
Borrowers hereunder or under the Notes shall be made free and
clear of and without deduction for any and all present or future
taxes, levies, imposts, deductions, charges or withholding, and
all liabilities with respect thereto excluding, (i) in the case
of the Lender, income and franchise taxes imposed by the
jurisdiction under the laws of which the Lender is organized or
is or should be qualified to do business or any political
subdivision thereof and (ii) in the case of the Lender, income
and franchise taxes imposed by the jurisdiction of the Lender's
lending office or any political subdivision thereof (all such
non-excluded taxes, levies, imposts, deductions, charges,
withholdings and liabilities being hereinafter referred to as
"Taxes"). If any Borrower shall be required by law to deduct or
withhold any Taxes from or in respect of any sum payable
hereunder or under any Note to the Lender, (A) the sum payable
shall be increased as may be necessary so that after making all
required deductions or withholdings (including deductions or
withholdings applicable to additional sums payable under this
Section 5.3) the Lender receives an amount equal to the amount
such party would have received had no such deductions or
withholdings been made, (B) such Borrower shall make such
deductions or withholdings, (C) such Borrower shall pay the full
amount deducted to the relevant taxing authority or other
authority in accordance with Applicable Law, and (D) such
Borrower shall deliver to the Lender evidence of such payment to
the relevant taxing authority or other Governmental Authority in
the manner provided in Section 5.3(d).
(b) Stamp and Other Taxes. The Borrowers shall pay any
present or future stamp, registration, recordation or documentary
taxes or any other similar fees or charges or excise or property
taxes, levies of the United States or any state or political
subdivision thereof or any applicable foreign jurisdiction which
arise from any payment made hereunder or from the execution,
delivery or registration of, or otherwise with respect to, this
Agreement, the Loans, the other Loan Documents, or the perfection
of any rights or security interest in respect thereto
(hereinafter referred to as "Other Taxes").
(c) Indemnity. The Borrowers shall indemnify the Lender
for the full amount of Taxes and Other Taxes (including, without
limitation, any Taxes and Other Taxes imposed by any jurisdiction
on amounts payable under this Section 5.3) paid by the Lender and
any liability (including penalties, interest and expenses)
arising therefrom or with respect thereto, whether or not such
Page 19
Taxes or Other Taxes were correctly or legally asserted. Such
indemnification shall be made within thirty (30) days from the
date the Lender makes written demand therefor.
(d) Evidence of Payment. Within thirty (30) days after the
date of any payment of Taxes or Other Taxes, the Borrowers shall
furnish to the Lender, the original or a certified copy of a
receipt evidencing payment thereof or other evidence of payment
satisfactory to the Lender.
(e) Survival. Without prejudice to the survival of any
other agreement of the Borrowers hereunder, the agreements and
obligations of the Borrowers contained in this Section 5.3 shall
survive the payment in full of the Loans and the termination of
this Agreement.
SECTION 5.4 Regulatory Limitation. In the event, as a
result of increases in the value of the Euro against the Dollar
or for any other reason, the obligation of the Lender to make
Loans (taking into account the dollar amount of the obligations
of the Borrowers under the Loan Documents and all other
indebtedness required to be aggregated under 12 U.S.C.A. 84, as
amended, the regulations promulgated thereunder and any other
applicable law) is determined by the Lender to exceed its then
applicable legal lending limit under 12 U.S.C.A. 84, as amended,
and the regulations promulgated thereunder, or any other
applicable law, the amount of the Loans the Lender shall be
obligated to make or issue hereunder shall immediately be reduced
to the maximum amount which the Lender may legally advance (as
determined by the Lender), and the Borrowers shall reduce, or
cause to be reduced, complying to the extent practicable with the
remaining provisions hereof, the obligations of the Borrowers
under the Loan Documents which are outstanding hereunder by an
amount sufficient to comply with such maximum amounts.
SECTION 5.5 Indemnity. The Borrowers hereby indemnify the
Lender against any loss or expense which may arise or be
attributable to the Lender's obtaining, liquidating or employing
deposits or other funds acquired to effect, fund or maintain the
Loans (a) as a consequence of any failure by any Borrower to make
any payment when due of any amount due hereunder in connection
with any Loan, or (b) due to any payment or prepayment of any
Loan on a date other than the last day of any Interest Period.
If the Lender requests indemnification under this Section 5.5,
the Lender shall furnish to the applicable Borrower a certificate
setting forth the basis and amount of such request, which
certificate shall be prima facie evidence of the matters stated
therein. Determinations by the Lender of the amount of any claim
for indemnification under this Section 5.5 shall be made on a
reasonable basis and in good faith, based upon the assumption
that the Lender funded the Loans in the London interbank market,
and using any reasonable attribution or averaging methods which
Page 20
the Lender deems appropriate and practical. This covenant shall
survive termination of this Agreement and payment of the
outstanding Obligations.
SECTION 5.6 Mitigation Obligations. If the Lender requests
compensation under Sections 5.1, 5.2 or 5.3, then the Lender
shall use reasonable efforts to designate a different lending
office for funding or booking the Loans or to assign its rights
and obligations hereunder to another of its offices, branches or
affiliates, if, in the judgment of the Lender, such designation
or assignment (a) would eliminate or reduce amounts payable
pursuant to Sections 5.1, 5.2 or 5.3, and (b) would not subject
the Lender to any unreimbursed cost or expense and would not
otherwise be disadvantageous to the Lender. The Borrowers hereby
agree to pay all reasonable costs and expenses incurred by the
Lender in connection with any such designation or assignment.
The Borrowers' indemnification obligations under Section 5.5
shall apply to the transactions described in this Section 5.6.
SECTION 5.7 Further Assurances. The terms and provisions
of this Agreement will be subject to such reasonable changes of
construction as determined by the Lender to reflect the
implementation of any EMU Legislation in any Participating Member
State or any market conventions relating to the fixing and/or
calculation of interest being changed or replaced and to reflect
market practice at that time, and subject thereto, to put the
Lender and the Borrowers in the same position, so far as
possible, that they would have been if such implementation had
not occurred. In connection therewith, the Borrowers agree, at
the request of the Lender, at the time of or at any time
following the implementation of any EMU Legislation in any
Participating Member State or any market conventions relating to
the fixing and/or calculation of interest being changed or
replaced, to enter into an agreement amending this Agreement in
such manner as the Lender shall reasonably request solely to
reflect such changes.
ARTICLE VI
CLOSING; CONDITIONS OF CLOSING AND BORROWING
SECTION 6.1 Closing. The closing shall take place at the
offices of Xxxxxxx Xxxxxxxxx Xxxxxxx & Xxxxxxx, L.L.P. at 10:00
a.m. on July 29, 2002, or on such other place, date and time as
the parties hereto shall mutually agree.
SECTION 6.2 Conditions to Closing and Initial Loans. The
obligation of the Lender to close this Agreement and to make the
initial Loans, is subject to the satisfaction of each of the
following conditions:
Page 21
(a) Executed Loan Documents. This Agreement, the Revolving
Credit Note, the Term Note, together with any other applicable
Loan Documents, shall have been duly authorized, executed and
delivered to the Lender by the parties thereto, shall be in full
force and effect and no Default or Event of Default shall exist
thereunder, and the Borrowers shall have delivered original
counterparts thereof to the Lender.
(b) Closing Certificates; etc.
(i) Officer's Certificate of the Borrowers. The
Lender shall have received a certificate from a Responsible
Officer of the Domestic Borrower, on behalf of itself and the
German Borrower, in form and substance satisfactory to the
Lender, to the effect that all representations and warranties of
the Borrowers contained in this Agreement and the other Loan
Documents and the purchase agreement entered into in connection
with the Acquisition are true, correct and complete; that the
Borrowers are not in violation of any of the covenants contained
in this Agreement and the other Loan Documents; that, after
giving effect to the transactions contemplated by this Agreement,
no Default or Event of Default has occurred and is continuing;
and that the Borrowers have satisfied each of the closing
conditions.
(ii) Certificate of Secretary of the Domestic
Borrower. The Lender shall have received a certificate of the
secretary or assistant secretary of the Domestic Borrower
certifying as to the incumbency and genuineness of the signature
of each officer of the Domestic Borrower executing Loan Documents
to which it is a party and certifying that attached thereto is a
true, correct and complete copy of (A) the articles of
incorporation of the Domestic Borrower and all amendments
thereto, certified as of a recent date by the appropriate
Governmental Authority in its jurisdiction of incorporation, (B)
the bylaws of the Domestic Borrower as in effect on the date of
such certifications, (C) resolutions duly adopted by the Board of
Directors of the Domestic Borrower authorizing the borrowings
contemplated hereunder and the execution, delivery and
performance of this Agreement and the other Loan Documents to
which it is a party, and (D) a certificate as of a recent date of
the good standing of the Domestic Borrower from the Secretary of
State of Connecticut.
(iii) Certificate of Managing Director of the German
Borrower. The Lender shall have received a certificate of a
managing director of the German Borrower certifying that attached
thereto is a true, correct and complete copy of (A) the articles
of association of the German Borrower and all amendments thereto
and (B) resolutions duly adopted by the shareholder of the German
Borrower appointing the current managing directors of the German
Borrower.
Page 22
(iv) Opinions of Counsel. The Lender shall have
received favorable opinions of counsel to the Borrowers addressed
to the Lender with respect to the Borrowers, the Loan Documents
and such other matters as the Lender shall request.
(c) Consents; Defaults.
(i) Governmental and Third Party Approvals. The
Borrower shall have obtained all necessary approvals,
authorizations and consents of any Person and of all Governmental
Authorities and courts having jurisdiction with respect to the
transactions contemplated by this Agreement and the other Loan
Documents.
(ii) No Injunction, Etc. No action, proceeding,
investigation, regulation or legislation shall have been
instituted, threatened or proposed before any Governmental
Authority to enjoin, restrain, or prohibit, or to obtain
substantial damages in respect of, or which is related to or
arises out of this Agreement or the other Loan Documents or the
consummation of the transactions contemplated hereby or thereby,
or which, in the Lender's sole discretion, would make it
inadvisable to consummate the transactions contemplated by this
Agreement and such other Loan Documents.
(iii) No Event of Default. No Default or Event of
Default shall have occurred and be continuing.
(d) Financial Matters.
(i) Financial Statements. The Lender shall have
received the audited financial statements of the German Borrower
for the most recent fiscal year end, all in form and substance
satisfactory to the Lender.
(ii) Financial Condition Certificate. The Domestic
Borrower shall have delivered to the Lender a certificate, in
form and substance satisfactory to the Lender, and certified as
accurate by a Responsible Officer of the Domestic Borrower, on
behalf of itself and the German Borrower, (A) that after giving
effect to the effectiveness of this Agreement and the Loans
hereunder, the Domestic Borrower and its Subsidiaries are in pro
forma compliance with the terms of the Revolving Credit
Agreement, and (B) attached thereto are calculations evidencing
compliance on a pro forma basis with the covenants contained in
Article VI of the Revolving Credit Agreement.
(iii) Payment at Closing; Fee Letters. The Borrower
shall have paid to the Lender the fees set forth or referenced in
Section 4.3 and any other accrued and unpaid fees or commissions
due hereunder (including, without limitation, legal fees and
expenses) and to any other Person such amount as may be due
Page 23
thereto in connection with the transactions contemplated hereby,
including all taxes, fees and other charges in connection with
the execution, delivery, recording, filing and registration of
any of the Loan Documents.
(iv) Operating Accounts. The Borrowers shall have
established the Operating Accounts on terms and conditions
acceptable to the Lender.
(e) Miscellaneous.
(i) Acquisition. The Acquisition shall be consummated
prior to or contemporaneously with the closing of this Agreement
on terms and conditions reasonably satisfactory to the Lender.
(ii) RWG Facilities. Each of the German Borrower's
existing loans or credit facilities shall be repaid in full and
terminated and all collateral security therefor shall be
released, and the Lender shall have received a pay-off letter
with respect to each such loan or credit facility in form and
substance satisfactory to the Lender; provided, however, that any
and all such loans or credit facilities may be repaid in full
with the proceeds of the initial Term Loan and terminated and all
such collateral security released simultaneously with the Closing
Date.
(iii) Notice of Borrowing. The Lender shall have
received a Notice of Borrowing from the applicable Borrower in
accordance with Section 2.2 and Section 3.2, as applicable.
(iv) Other Documents. All opinions, certificates and
other instruments and all proceedings in connection with the
transactions contemplated by this Agreement shall be satisfactory
in form and substance to the Lender. The Lender shall have
received copies of all other documents, certificates and
instruments reasonably requested thereby, with respect to the
transactions contemplated by this Agreement.
SECTION 6.3 Conditions to All Loans. The obligation of the
Lender to make any Loans (including the initial Loans) is subject
to the satisfaction of the following conditions precedent on the
relevant borrowing or continuation date:
(a) Continuation of Representations and Warranties. The
representations and warranties contained in Article VII shall be
true and correct on and as of such borrowing date with the same
effect as if made on and as of such date, except for any
representation and warranty made as of an earlier date, which
representation and warranty shall remain true and correct as of
such earlier date.
Page 24
(b) No Existing Default. No Default or Event of Default
shall have occurred and be continuing on the borrowing date with
respect to such Loan or after giving effect to the Loans to be
made on such date.
(c) Notices. The Lender shall have received a Notice of
Borrowing from the Borrower in accordance with this Agreement.
ARTICLE VII
REPRESENTATIONS AND WARRANTIES
SECTION 7.1 Representations and Warranties. To induce the
Lender to enter into this Agreement and to make the Loans, the
Borrowers hereby represent and warrant to the Lender that each
and every representation and warranty set forth in Article II of
the Revolving Credit Agreement is true, correct and complete in
all material respects with respect to each of the Borrowers.
Each and every representation and warranty set forth in Article
II of the Revolving Credit Agreement shall be deemed to be a
representation and warranty under this Agreement with respect to
each of the Borrowers; provided that:
(a) references therein to the term "Agreement" shall be
deemed to refer to this Agreement, references therein to the term
"Credit Documents" shall be deemed to referred to the Loan
Documents hereunder, references therein to the term "Notes" shall
be deemed to referred to the Notes hereunder, references therein
to the term "Loans" shall be deemed to refer to borrowings of
Loans hereunder, and any other references or other provisions
therein which are incorporated herein by reference shall be
construed in such a manner so as to give such incorporated terms
legal effect and meaning hereunder;
(b) the German Borrower makes no representations or
warranties regarding the applicability or compliance with GAAP
for any period prior to the Closing Date; and
(c) the German Borrower shall be deemed to make the
representations and warranties set forth in Article II of the
Revolving Credit Agreement only to the extent the provisions of
such representations and warranties are applicable to
Subsidiaries of the Domestic Borrower that are organized under
the laws of a jurisdiction other than the United States or any
State thereof.
SECTION 7.2 Survival of Representations and Warranties,
Etc. All representations and warranties incorporated into this
Agreement pursuant to Section 7.1 and all representations and
warranties contained in any certificate or any of the Loan
Documents (including, but not limited to, any such representation
Page 25
and warranty made in or in connection with any amendment thereto)
shall constitute representations and warranties made under this
Agreement. All representations and warranties made under this
Agreement shall be made or deemed to be made at and as of the
Closing Date, shall survive the Closing Date and shall not be
waived by the execution and delivery of this Agreement, any
investigation made by or on behalf of the Lender or any borrowing
hereunder.
ARTICLE VIII
COVENANTS
SECTION 8.1 Affirmative, Negative and Financial Covenants.
Until all of the Obligations have been paid and satisfied in full
and the Commitments terminated, the Borrowers will, and will
cause each of their Subsidiaries to, comply with each and every
covenant and agreement set forth in Articles IV, V and VI of the
Revolving Credit Agreement; provided that the German Borrower
shall be required to comply with the covenants and agreements
contained in Article IV of the Revolving Credit Agreement only to
the extent the provisions of such covenants and agreements are
applicable to Subsidiaries of the Domestic Borrower that are
organized under the laws of a jurisdiction other than the United
States or any State thereof.
SECTION 8.2 Annual Financial Statements of the German
Borrower. Until all of the Obligations have been paid and
satisfied in full and the Commitments terminated, the German
Borrower will furnish or cause to be furnished to the Lender, as
soon as practicable and in any event within (a) one hundred
twenty (120) days after the end of the fiscal year ended December
31, 2002 and (b) ninety (90) days after the end of each
subsequent fiscal year, an unaudited consolidated and
consolidating balance sheet of the German Borrower and its
Subsidiaries as of the close of such fiscal year and unaudited
consolidated and consolidating statements of income, retained
earnings and cash flows for the fiscal year then ended, including
the notes thereto, all in reasonable detail setting forth in
comparative form the corresponding figures as of the end of and
for the corresponding period in the preceding fiscal year and
prepared by the German Borrower in accordance with GAAP (to the
extent applicable following the Closing Date) and certified by
the chief financial officer of the German Borrower to present
fairly in all material respects the financial condition of the
German Borrower and its Subsidiaries on a consolidated and
consolidating basis as of their respective dates and the results
of operations of the German Borrower and its Subsidiaries for the
respective periods then ended, subject to normal year end
adjustments.
Page 26
ARTICLE IX
UNCONDITIONAL GUARANTY
SECTION 9.1 Guaranty of Obligations. The Domestic Borrower
hereby unconditionally guarantees to the Lender the prompt
payment and performance of all Obligations of the German
Borrower, whether primary or secondary (whether by way of
endorsement or otherwise), whether now existing or hereafter
arising, whether or not from time to time reduced or extinguished
(except by payment thereof) or hereafter increased or incurred,
whether or not recovery may be or hereafter becomes barred by the
statute of limitations, whether enforceable or unenforceable as
against the German Borrower, whether or not discharged, stayed or
otherwise affected by any bankruptcy, insolvency or other similar
law or proceeding, whether created directly with the Lender or
acquired by the Lender through assignment, endorsement or
otherwise, whether matured or unmatured, whether joint or
several, as and when the same become due and payable (whether at
maturity or earlier, by reason of acceleration, mandatory
repayment or otherwise), in accordance with the terms of any such
instruments evidencing any such Obligations, including all
renewals, extensions or modifications thereof (all Obligations of
the German Borrower, including all of the foregoing, being
hereinafter collectively referred to as the "Guaranteed
Obligations").
SECTION 9.2 Nature of Guaranty. The Domestic Borrower
agrees that this Guaranty is a continuing, unconditional guaranty
of payment and performance and not of collection, and that its
obligations under this Guaranty shall be primary, absolute and
unconditional, irrespective of, and unaffected by:
(a) the genuineness, validity, regularity, enforceability
or any future amendment of, or change in, this Agreement or any
other Loan Document or any other agreement, document or
instrument to which any Borrower is or may become a party;
(b) any structural change in, restructuring of or other
similar change of any Borrower or any Subsidiary thereof;
(c) the absence of any action to enforce this Guaranty,
this Agreement or any other Loan Document or the waiver or
consent by the Lender with respect to any of the provisions of
this Guaranty, this Agreement or any other Loan Document;
(e) any other action or circumstances which might otherwise
constitute a legal or equitable discharge or defense of a surety
or guarantor;
it being agreed by the Domestic Borrower that its obligations
under this Guaranty shall not be discharged until the final and
Page 27
indefeasible payment and performance, in full, of the Guaranteed
Obligations and the termination of the Revolving Credit
Commitment. The Domestic Borrower expressly waives all rights it
may now or in the future have under any statute, or at law or in
equity, or otherwise, to compel the Lender to proceed in respect
of the Guaranteed Obligations against any Borrower or any other
party or against any security for or other guaranty of the
payment and performance of the Guaranteed Obligations before
proceeding against, or as a condition to proceeding against, the
Domestic Borrower. The Domestic Borrower further expressly
waives and agrees not to assert or take advantage of any defense
based upon the failure of the Lender to commence an action in
respect of the Guaranteed Obligations against any Borrower or any
other party or any security for the payment and performance of
the Guaranteed Obligations. The Domestic Borrower agrees that
any notice or directive given at any time to the Lender which is
inconsistent with the waivers in the preceding two sentences
shall be null and void and may be ignored by the Lender, and, in
addition, may not be pleaded or introduced as evidence in any
litigation relating to this Guaranty for the reason that such
pleading or introduction would be at variance with the written
terms of this Guaranty, unless the Lender has specifically agreed
otherwise in writing. The foregoing waivers are of the essence
of the transaction contemplated by the Loan Documents and, but
for this Guaranty and such waivers, the Lender would decline to
enter into this Agreement.
SECTION 9.3 Demand by the Lender. In addition to the terms
set forth in Section 9.2, and in no manner imposing any
limitation on such terms, if all or any portion of the then
outstanding Guaranteed Obligations under this Agreement are
declared to be immediately due and payable, then the Domestic
Borrower shall, upon demand in writing therefor by the Lender to
the Domestic Borrower, pay all or such portion of the outstanding
Guaranteed Obligations then declared due and payable. Payment by
the Domestic Borrower shall be made to the Lender, to be credited
and applied upon the Guaranteed Obligations, in immediately
available funds to an account designated by the Lender or at any
address that may be specified in writing from time to time by the
Lender.
SECTION 9.4 Waivers. In addition to the waivers contained
in Section 9.2, the Domestic Borrower waives, and agrees that it
shall not at any time insist upon, plead or in any manner
whatever claim or take the benefit or advantage of, any
appraisal, valuation, stay, extension, marshalling of assets or
redemption laws, or exemption, whether now or at any time
hereafter in force, which may delay, prevent or otherwise affect
the performance by the Domestic Borrower of its obligations
under, or the enforcement by the Lender of, this Guaranty. The
Domestic Borrower further hereby waives diligence, presentment,
Page 28
demand, protest and notice of whatever kind or nature with
respect to any of the Guaranteed Obligations and waives the
benefit of all provisions of law which are or might be in
conflict with the terms of this Guaranty. The Domestic Borrower
represents, warrants and agrees that its obligations under this
Guaranty are not and shall not be subject to any counterclaims,
offsets or defenses of any kind against the Lender or the
Borrowers whether now existing or which may arise in the future.
SECTION 9.5 Modification of Loan Documents etc. If the
Lender shall, in compliance with the terms and conditions of this
Agreement, at any time or from time to time:
(a) change or extend the manner, place or terms of payment
of, or renew or alter all or any portion of, the Guaranteed
Obligations;
(b) take any action under or in respect of the Loan
Documents in the exercise of any remedy, power or privilege
contained therein or available to it at law, in equity or
otherwise, or waive or refrain from exercising any such remedies,
powers or privileges;
(c) amend or modify, in any manner whatsoever, the Loan
Documents;
(d) extend or waive the time for performance by the Domestic
Borrower, the German Borrower or any other Person of, or
compliance with, any term, covenant or agreement on its part to
be performed or observed under a Loan Document (other than this
Guaranty), or waive such performance or compliance or consent to
a failure of, or departure from, such performance or compliance;
(e) take and hold security or collateral for the payment of
the Guaranteed Obligations or sell, exchange, release, dispose
of, or otherwise deal with, any property pledged, mortgaged or
conveyed, or in which the Lender has been granted a lien, to
secure any indebtedness of the Domestic Borrower or the German
Borrower to the Lender;
(f) release anyone who may be liable in any manner for the
payment of any amounts owed by the Domestic Borrower or the
German Borrower to the Lender;
(g) modify or terminate the terms of any intercreditor or
subordination agreement pursuant to which claims of other
creditors of the Domestic Borrower or the German Borrower are
subordinated to the claims of the Lender; or
Page 29
(h) apply any sums by whomever paid or however realized to
any amounts owing by the Domestic Borrower or the German Borrower
to the Lender on account of the Obligations in such manner as the
Lender shall determine in its reasonable discretion;
then the Lender shall not incur any liability to the Domestic
Borrower as a result thereof, and no such action shall impair or
release the obligations of the Domestic Borrower under this
Guaranty.
SECTION 9.6 Reinstatement. The Domestic Borrower agrees
that, if any payment made by any Borrower or any other Person
applied to the Obligations is at any time annulled, set aside,
rescinded, invalidated, declared to be fraudulent or preferential
or otherwise required to be refunded or repaid, or the proceeds
of any collateral are required to be returned by the Lender to
any Borrower, its estate, trustee, receiver or any other party,
including, without limitation, the Domestic Borrower, under any
Applicable Law or equitable cause, then, to the extent of such
payment or repayment, the Domestic Borrower's liability hereunder
(and any lien or collateral securing such liability) shall be and
remain in full force and effect, as fully as if such payment had
never been made, and, if prior thereto, this Guaranty shall have
been canceled or surrendered (and if any lien or collateral
securing the Domestic Borrower's liability hereunder shall have
been released or terminated by virtue of such cancellation or
surrender), this Guaranty (and such lien or collateral) shall be
reinstated in full force and effect, and such prior cancellation
or surrender shall not diminish, release, discharge, impair or
otherwise affect the obligations of the Domestic Borrower in
respect of the amount of such payment (or any lien or collateral
securing such obligation).
SECTION 9.7 No Subrogation. Until all amounts owing to the
Lender on account of the Obligations are paid in full and the
Revolving Credit Commitment is terminated, the Domestic Borrower
hereby waives any claims or other rights which it may now or
hereafter acquire against any Borrower that arise from the
existence or performance of the Domestic Borrower's obligations
under this Guaranty, including, without limitation, any right of
subrogation, reimbursement, exoneration, indemnification, any
right to participate in any claim or remedy of the Lender against
any Borrower or any collateral which the Lender now have or may
hereafter acquire, whether or not such claim, remedy or right
arises in equity or under contract, statute or common law, by any
payment made hereunder or otherwise, including without
limitation, the right to take or receive from any Borrower,
directly or indirectly, in cash or other property or by set-off
or in any other manner, payment or security on account of such
claim or other rights. If any amount shall be paid to the
Domestic Borrower on account of such rights at any time when all
Page 30
of the Obligations shall not have been paid in full, such amount
shall be held by the Domestic Borrower in trust for the Lender,
segregated from other funds of the Domestic Borrower, and shall,
forthwith upon receipt by the Domestic Borrower, be turned over
to the Lender in the exact form received by the Domestic Borrower
(duly indorsed by the Domestic Borrower to the Lender, if
required) to be applied against the Obligations, whether matured
or unmatured, in such order as set forth herein.
ARTICLE X
DEFAULT AND REMEDIES
SECTION 10.1 Events of Default. Each of the following
shall constitute an Event of Default, whatever the reason for
such event and whether it shall be voluntary or involuntary or be
effected by operation of law or pursuant to any judgment or order
of any court or any order, rule or regulation of any Governmental
Authority or otherwise:
(a) Default in Payment of Principal of the Loans. Any
Borrower shall default in any payment of principal of any Loan or
any Note when and as due (whether at maturity, by reason of
acceleration or otherwise).
(b) Other Payment Default. Any Borrower shall default in
the payment when and as due (whether at maturity, by reason of
acceleration or otherwise) of interest on any Loan or any Note or
the payment of any other Obligation, and such default shall
continue unremedied for three (3) Business Days.
(c) Misrepresentation. Any representation or warranty made
or deemed to be made by any Borrower under this Agreement, any
Loan Document or any amendment hereto or thereto, shall at any
time prove to be incorrect or misleading in any material respect
when made or deemed made.
(d) Cross-Default to Revolving Credit Agreement. Any
Default or Event of Default shall have occurred under the
Revolving Credit Agreement.
SECTION 10.2 Remedies. Upon the occurrence of an Event of
Default, the Lender may, by notice to the Borrowers, declare the
principal of and interest on the Loans and the Notes at the time
outstanding, and all other amounts owed to the Lender under this
Agreement or any of the other Loan Documents and all other
Obligations, to be forthwith due and payable, whereupon the same
shall immediately become due and payable without presentment,
demand, protest or other notice of any kind, all of which are
expressly waived, anything in this Agreement or the other Loan
Documents to the contrary notwithstanding, and terminate the
Credit Facility and any right of the Borrowers to request
Page 31
borrowings thereunder; provided, that upon the occurrence of an
Event of Default specified in Section 7.1(g) of the Revolving
Credit Agreement, the Credit Facility shall be automatically
terminated and all Obligations shall automatically become due and
payable without presentment, demand, protest or other notice of
any kind, all of which are expressly waived, anything in this
Agreement or in any other Loan Document to the contrary
notwithstanding.
SECTION 10.3 Rights and Remedies Cumulative; Non-Waiver;
etc. The enumeration of the rights and remedies of the Lender
set forth in this Agreement is not intended to be exhaustive and
the exercise by the Lender of any right or remedy shall not
preclude the exercise of any other rights or remedies, all of
which shall be cumulative, and shall be in addition to any other
right or remedy given hereunder or under the Loan Documents or
that may now or hereafter exist in law or in equity or by suit or
otherwise. No delay or failure to take action on the part of the
Lender in exercising any right, power or privilege shall operate
as a waiver thereof, nor shall any single or partial exercise of
any such right, power or privilege preclude other or further
exercise thereof or the exercise of any other right, power or
privilege or be construed to be a waiver of any Event of Default.
No course of dealing between the Borrower and the Lender or their
respective agents or employees shall be effective to change,
modify or discharge any provision of this Agreement or any of the
other Loan Documents or to constitute a waiver of any Event of
Default.
ARTICLE XI
MISCELLANEOUS
SECTION 11.1 Notices
(a) Method of Communication. Except as otherwise provided
in this Agreement, all notices and communications hereunder shall
be in writing (for purposes hereof, the term "writing" shall
include information in electronic format such as electronic mail
and internet web pages), or by telephone subsequently confirmed
in writing. Any notice shall be effective if delivered by hand
delivery or sent via electronic mail, posting on an internet web
page, telecopy, recognized overnight courier service or certified
mail, return receipt requested, and shall be presumed to be
received by a party hereto (i) on the date of delivery if
delivered by hand or sent by electronic mail, posting on an
internet web page, telecopy, (ii) on the next Business Day if
sent by recognized overnight courier service and (iii) on the
third Business Day following the date sent by certified mail,
Page 32
return receipt requested. A telephonic notice to the Lender as
understood by the Lender will be deemed to be the controlling and
proper notice in the event of a discrepancy with or failure to
receive a confirming written notice.
(b) Addresses for Notices. Notices to any party shall be
sent to it at the following addresses, or any other address as to
which all the other parties are notified in writing.
If to the Borrowers: Kaman Corporation
0000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx
Executive Vice President & Chief
Financial Officer
Facsimile No.: (000) 000-0000
If to the Lender: Wachovia Bank, National Association
0 Xxxxxxxxxxx
Xxxxxx XX0X 0XX
Attention: Xxx Xxxxxxxx, Director
Telephone No.: 00000 000 000 0000
Facsimile No.: 011 44 207 929 4644
With copies to: Wachovia Securities
000 Xxxxx Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx, 00000
Attention: Xxx Xxxxx
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
(c) Lender's Office. The Lender hereby designates its
office located at the address set forth above, or any subsequent
office which shall have been specified for such purpose by
written notice to the Borrowers to which payments due are to be
made and at which Loans will be disbursed.
SECTION 11.2 Expenses; Indemnity. The Borrowers will (a)
pay all out-of-pocket expenses (including, without limitation,
all costs of electronic or internet distribution of any
information hereunder) of the Lender in connection with (i) the
preparation, execution and delivery of this Agreement and each
other Loan Document, whenever the same shall be executed and
delivered, including, without limitation, all out-of-pocket
syndication and due diligence expenses and reasonable fees and
disbursements of counsel for the Lender and (ii) the preparation,
execution and delivery of any waiver, amendment or consent by the
Lender relating to this Agreement or any other Loan Document,
including, without limitation, reasonable fees and disbursements
of counsel for the Lender, (b) pay all reasonable out-of-pocket
expenses of the Lender actually incurred in connection with the
Page 33
administration and enforcement of any rights and remedies of the
Lender under the Credit Facility, including, without limitation,
in connection with any workout, restructuring, bankruptcy or
other similar proceeding, enforcing any Obligations of, or
collecting any payments due from, any Borrower or guarantor by
reason of an Event of Default (including in connection with the
consulting with appraisers, accountants, engineers, attorneys and
other Persons concerning the nature, scope or value of any right
or remedy of the Lender hereunder or under any other Loan
Document or any factual matters in connection therewith), which
expenses shall include without limitation the reasonable fees and
disbursements of such Persons, and (c) defend, indemnify and hold
harmless the Lender and its parents, Subsidiaries, Affiliates,
employees, agents, officers and directors, from and against any
losses, penalties, fines, liabilities, settlements, damages,
costs and expenses, suffered by any such Person in connection
with any claim (including, without limitation, any environmental
claims), investigation, litigation or other proceeding (whether
or not the Lender is a party thereto) and the prosecution and
defense thereof, arising out of or in any way connected with the
Loans, this Agreement, any other Loan Document, or any documents,
reports or other information provided to the Lender or
contemplated by or referred to herein or therein or the
transactions contemplated hereby or thereby, including, without
limitation, reasonable attorney's and consultant's fees; provided
that that the Borrowers shall have the option to participate in
the defense of any such claim, no settlement of any such claim
will be made without the Borrowers' consent, and the Borrowers
shall have no obligation under this Section 11.2 to the extent
that any of the foregoing result solely from gross negligence or
willful misconduct of the party seeking indemnification therefor.
SECTION 11.3 Set-off. In addition to any rights now or
hereafter granted under Applicable Law and not by way of
limitation of any such rights, upon and after the occurrence of
any Event of Default and during the continuance thereof, the
Lender is hereby authorized by the Borrowers at any time or from
time to time, without notice to the Borrowers or to any other
Person, any such notice being hereby expressly waived, to set off
and to appropriate and to apply any and all deposits (general or
special, time or demand, including, but not limited to,
indebtedness evidenced by certificates of deposit, whether
matured or unmatured) and any other indebtedness at any time held
or owing by the Lender to or for the credit or the account of any
Borrower against and on account of the Obligations irrespective
of whether or not (a) the Lender shall have made any demand under
this Agreement or any of the other Loan Documents or (b) the
Lender shall have declared any or all of the Obligations to be
due and payable and although such Obligations shall be contingent
or unmatured. Notwithstanding the preceding sentence, the Lender
agrees to notify the Borrowers after any such set-off and
Page 34
application, provided that the failure to give such notice shall
not affect the validity of such set-off and application.
SECTION 11.4 Governing Law. This Agreement, the Notes and
the other Loan Documents, unless otherwise expressly set forth
therein, shall be governed by, construed and enforced in
accordance with the laws of the State of Connecticut, without
reference to the conflicts or choice of law principles thereof.
SECTION 11.5 Jurisdiction and Venue.
(a) Jurisdiction. The Borrowers hereby irrevocably consent
to the personal jurisdiction of the state and federal courts
located in Connecticut and North Carolina (and any courts from
which an appeal from any of such courts must or may be taken), in
any action, claim or other proceeding arising out of any dispute
in connection with this Agreement, the Notes and the other Loan
Documents, any rights or obligations hereunder or thereunder, or
the performance of such rights and obligations. The Borrowers
hereby irrevocably consent to the service of a summons and
complaint and other process in any action, claim or proceeding
brought by the Lender in connection with this Agreement, the
Notes or the other Loan Documents, any rights or obligations
hereunder or thereunder, or the performance of such rights and
obligations, on behalf of itself or its property, in the manner
specified in Section 11.1. Nothing in this Section 11.5 shall
affect the right of the Lender to serve legal process in any
other manner permitted by Applicable Law or affect the right of
the Lender to bring any action or proceeding against any Borrower
or its properties in the courts of any other jurisdictions.
(b) Venue. The Borrowers hereby irrevocably waive any
objection they may have now or in the future to the laying of
venue in the aforesaid jurisdiction in any action, claim or other
proceeding arising out of or in connection with this Agreement,
any other Loan Document or the rights and obligations of the
parties hereunder or thereunder. The Borrowers irrevocably
waive, in connection with such action, claim or proceeding, any
plea or claim that the action, claim or other proceeding has been
brought in an inconvenient forum.
SECTION 11.6 Waiver of Jury Trial. THE LENDER AND EACH
BORROWER HEREBY IRREVOCABLY WAIVE THEIR RESPECTIVE RIGHTS TO A
JURY TRIAL WITH RESPECT TO ANY ACTION, CLAIM OR OTHER PROCEEDING
ARISING OUT OF ANY JUDICIAL PROCEEDING, ANY DISPUTE, CLAIM OR
CONTROVERSY ARISING OUT OF, CONNECTED WITH OR RELATING TO THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT (COLLECTIVELY, "DISPUTES")
IN CONNECTION WITH THIS AGREEMENT, THE NOTES OR THE OTHER LOAN
DOCUMENTS, ANY RIGHTS OR OBLIGATIONS HEREUNDER OR THEREUNDER, OR
THE PERFORMANCE OF SUCH RIGHTS AND OBLIGATIONS.
Page 35
SECTION 11.7 Reversal of Payments. To the extent any
Borrower makes a payment or payments to the Lender or the Lender
receives any payment or proceeds of the collateral which payments
or proceeds or any part thereof are subsequently invalidated,
declared to be fraudulent or preferential, set aside and/or
required to be repaid to a trustee, receiver or any other party
under any bankruptcy law, state or federal law, common law or
equitable cause, then, to the extent of such payment or proceeds
repaid, the Obligations or part thereof intended to be satisfied
shall be revived and continued in full force and effect as if
such payment or proceeds had not been received by the Lender.
SECTION 11.8 Injunctive Relief; Punitive Damages.
(a) The Borrowers recognize that, in the event any Borrower
fails to perform, observe or discharge any of its obligations or
liabilities under this Agreement, any remedy of law may prove to
be inadequate relief to the Lender. Therefore, the Borrowers
agree that the Lender, at the Lender's option, shall be entitled
to temporary and permanent injunctive relief in any such case
without the necessity of proving actual damages.
(b) The Lender and the Borrowers (on behalf of itself and
its respective Subsidiaries) hereby agree that no such Person
shall have a remedy of punitive or exemplary damages against any
other party to a Loan Document and each such Person hereby waives
any right or claim to punitive or exemplary damages that they may
now have or may arise in the future in connection with any
Dispute, whether such Dispute is resolved through arbitration or
judicially.
SECTION 11.9 Accounting Matters. Except as otherwise
expressly provided herein, all terms of an accounting or
financial nature shall be construed in accordance with GAAP, as
in effect from time to time; provided that, if the Borrowers
notify the Lender that the Borrowers request an amendment to any
provision hereof to eliminate the effect of any change occurring
after the date hereof in GAAP or in the application thereof on
the operation of such provision (or if the Lender notifies the
Borrowers that the Lender request an amendment to any provision
hereof for such purpose), regardless of whether any such notice
is given before or after such change in GAAP or in the
application thereof, then such provision shall be interpreted on
the basis of GAAP as in effect and applied immediately before
such change shall have become effective until such notice shall
have been withdrawn or such provision amended in accordance
therewith.
Page 36
SECTION 11.10 Benefit of Agreement. This Agreement shall be
binding upon and inure to the benefit of the Borrowers, the
Lender, all future holders of the Notes, and their respective
successors and assigns, except that the Borrowers shall not
assign or transfer any of its their respective rights or
obligations under this Agreement without the prior written
consent of the Lender.
SECTION 11.11 Amendments, Waivers and Consents. Any term,
covenant, agreement or condition of this Agreement or any of the
other Loan Documents may be amended or waived by the Lender, and,
in the case of an amendment, signed by the Borrowers.
SECTION 11.12 Performance of Duties. The Borrowers'
respective obligations under this Agreement and each of the other
Loan Documents shall be performed by the Borrowers at their sole
cost and expense.
SECTION 11.13 Prejudgment Remedy Waiver; Other Waivers. THE
BORROWERS ACKNOWLEDGE THAT THE FINANCING EVIDENCED BY THIS
AGREEMENT IS A COMMERCIAL TRANSACTION AND HEREBY WAIVE THEIR
RESPECTIVE 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
THE LENDER MAY DESIRE TO USE, AND FURTHER WAIVE DILIGENCE,
DEMAND, PRESENTMENT FOR PAYMENT, NOTICE OF NONPAYMENT, PROTEST
AND NOTICE OF ANY RENEWALS OR EXTENSIONS. THE BORROWERS
ACKNOWLEDGE AND RESERVE THEIR RIGHT TO NOTICE AND HEARING
SUBSEQUENT TO THE ISSUANCE OF A WRIT FOR PREJUDGMENT REMEDY AS
AFORESAID AND THE LENDER ACKNOWLEDGES THE BORROWERS' RIGHT TO
SAID HEARING SUBSEQUENT TO THE ISSUANCE OF SAID WRIT.
SECTION 11.14 All Powers Coupled with Interest. All powers
of attorney and other authorizations granted to the Lender and
any Persons designated by the Lender pursuant to any provisions
of this Agreement or any of the other Loan Documents shall be
deemed coupled with an interest and shall be irrevocable so long
as any of the Obligations remain unpaid or unsatisfied, any of
the Revolving Credit Commitment or Term Loan Commitment remain in
effect or the Credit Facility has not been terminated.
SECTION 11.15 Survival of Indemnities. Notwithstanding any
termination of this Agreement, the indemnities to which the
Lender is entitled under the provisions of this Article XI and
any other provision of this Agreement and the other Loan
Documents shall continue in full force and effect and shall
protect the Lender against events arising after such termination
as well as before.
Page 37
SECTION 11.16 Currency Indemnity. If for the purpose of
obtaining judgment in any court in any country it becomes
necessary to convert into any other currency (the "Judgment
Currency") any amount in Euros due hereunder (hereinafter
referred to as the "Agreed Currency"), then the date on which the
rate of exchange is fixed by such court for that conversion shall
be known as the "Conversion Date". If there is a change in the
rate of exchange prevailing between the Conversion Date and the
date of payment of the amount due under such judgment, the
Borrowers will, notwithstanding such judgment, pay such
additional or lesser amounts, if any, as may be necessary to
ensure that the amount paid in the Judgment Currency when
converted at the rate of exchange prevailing on the date of
payment will produce the amount then due to the Lender from the
Borrowers in connection with any such judgement in the Agreed
Currency. For this purpose "rate of exchange" means the rate at
which the Lender is able on the relevant date (or nearest date)
to purchase the Agreed Currency with the Judgment Currency.
SECTION 11.17 Amendment of Revolving Credit Agreement. If
(a) the Revolving Credit Agreement is amended, supplemented or
otherwise modified prior to its maturity or (b) the Revolving
Credit Agreement is replaced or renewed before, at or after its
maturity, the Lender may, at its election, amend this Agreement
to incorporate terms, covenants, representations, warranties and
conditions that, as determined by the Lender in its sole
discretion, correspond to the Revolving Credit Agreement as so
amended, supplemented, modified, renewed or replaced; provided,
however, that the Lender must make such election within sixty
(60) days after the Domestic Borrower has notified the Lender of
such amendment, supplement, modification, renewal or replacement.
SECTION 11.18 Titles and Captions. Titles and captions of
Articles, Sections and subsections in, and the table of contents
of, this Agreement are for convenience only, and neither limit
nor amplify the provisions of this Agreement.
SECTION 11.19 Severability of Provisions. Any provision of
this Agreement or any other Loan Document which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective only to the extent of such prohibition or
unenforceability without invalidating the remainder of such
provision or the remaining provisions hereof or thereof or
affecting the validity or enforceability of such provision in any
other jurisdiction.
SECTION 11.20 Counterparts. This Agreement may be executed
in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be
deemed to be an original and shall be binding upon all parties,
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their successors and assigns, and all of which taken together
shall constitute one and the same agreement.
SECTION 11.21 Term of Agreement. This Agreement shall
remain in effect from the Closing Date through and including the
date upon which all Obligations arising hereunder or under any
other Loan Document shall have been indefeasibly and irrevocably
paid and satisfied in full and the Revolving Credit Commitment
and the Term Loan Commitment have been terminated. No
termination of this Agreement shall affect the rights and
obligations of the parties hereto arising prior to such
termination or in respect of any provision of this Agreement
which survives such termination.
SECTION 11.22 Advice of Counsel. Each of the parties
represents to each other party hereto that it has discussed this
Agreement with its counsel.
SECTION 11.23 No Strict Construction. The parties hereto
have participated jointly in the negotiation and drafting of this
Agreement. In the event an ambiguity or question of intent or
interpretation arises, this Agreement shall be construed as if
drafted jointly by the parties hereto and no presumption or
burden of proof shall arise favoring or disfavoring any party by
virtue of the authorship of any provisions of this Agreement.
SECTION 11.24 Inconsistencies with Other Documents;
Independent Effect of Covenants. In the event there is a
conflict or inconsistency between this Agreement and any other
Loan Document, the terms of this Agreement shall control.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed under seal by their duly authorized
officers, all as of the day and year first written above.
DOMESTIC BORROWER:
KAMAN CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: Executive Vice President
& CFO
GERMAN BORROWER:
RWG FRANKENJURA-INDUSTRIE
FLUGWERKLAGER GMBH
By: /s/ Xxxx X. Xxxxxxxx
Name: Xxxx X. Xxxxxxxx
Title: Managing Director
Page 39
LENDER:
WACHOVIA BANK, NATIONAL
ASSOCIATION
By: /s/ Xxxxx Santa Xxxx
Name: Xxxxx Santa Xxxx
Title: Director
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