1
SECOND
AMENDED AND RESTATED
CREDIT AGREEMENT
dated as of June 30, 1995
and amended and restated as of July 24, 1998
and further amended and restated as of
August 31, 1999
among
TRANSTECHNOLOGY CORPORATION,
TRANSTECHNOLOGY XXXXXX-ORBIS GMBH,
TRANSTECHNOLOGY (GB) LIMITED,
THE LENDERS REFERRED TO HEREIN,
BANKBOSTON, N.A.,
acting through its London Branch,
as Sterling Fronting Bank,
BHF-BANK AKTIENGESELLSCHAFT,
as DM Fronting Bank,
ABN AMRO BANK N.V.,
as Syndication Agent
THE FIRST NATIONAL BANK OF CHICAGO,
as Documentation Agent
and
BANKBOSTON, N.A.
as Administrative Agent and Issuing Bank
Arranged by:
BANCBOSTON XXXXXXXXX XXXXXXXX INC.
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TABLE OF CONTENTS
1. DEFINITIONS AND RULES OF INTERPRETATION.......................................................1
1.1. Definitions..........................................................................1
1.2. Rules of Interpretation..............................................................26
2. THE REVOLVING CREDIT FACILITY.................................................................27
2.1. Commitment to Lend...................................................................27
2.2. Revolving Credit Commitment Fee......................................................27
2.3. Reduction of Total Revolving Credit Commitment.......................................28
2.4. The Revolving Credit Notes...........................................................28
2.5. Interest on Revolving Credit Loans...................................................28
2.6. Requests for Revolving Credit Loans..................................................29
2.7. Conversion Options...................................................................29
2.7.1. Conversion to Different Type of Revolving Credit Loan....................29
2.7.2. Continuation of Type of Revolving Credit Loan............................30
2.7.3. Eurocurrency Rate Loans..................................................30
2.8 Funds for Revolving Credit Loans.....................................................30
2.9. Maturity of Revolving Credit Loans...................................................31
2.10. Mandatory Repayments of Revolving Credit Loans......................................31
2.11. Optional Repayments of Revolving Credit Loans.......................................31
3. INTERNATIONAL CREDIT FACILITY.................................................................32
3.1. DM Facility Loans...................................................................32
3.2. Mandatory Repayments of DM Facility Loans...........................................32
3.3. Sterling Facility Loans.............................................................32
3.4. Mandatory Repayments of Sterling Facility Loans.....................................33
3.5. Interest on International Facility Loans............................................33
3.6. Requests for DM Eurocurrency Loans..................................................34
3.7. Requests for Sterling Eurocurrency Loans............................................34
3.8. Evidence of DM Facility Loans.......................................................35
3.9. Evidence of Sterling Facility Loans.................................................35
3.10. Maturity of DM Facility Loans.......................................................35
3.11. Maturity of Sterling Facility Loans.................................................35
3.12. Optional Repayment of International Facility Loans..................................36
3.13. DM Facility Commitment Fee..........................................................36
3.14. Sterling Facility Commitment Fee....................................................37
4. THE TERM LOAN..................................................................................37
4.1. Commitment to Lend..................................................................37
4.2. The Term Notes......................................................................37
4.3. Schedule of Installment Payments of Principal of Term Loan..........................38
4.4. Optional Prepayment of Term Loan....................................................38
4.5. Interest on Term Loan...............................................................38
4.5.1 Interest Rates............................................................38
4.5.2 Notification by TransTechnology...........................................39
4.5.3. Amounts, etc..............................................................39
4.6. Mandatory Prepayments from Asset Sales or New Debt..................................39
4.7. Mandatory Prepayments from New Equity...............................................40
4.8. Mandatory Prepayments from Excess Cash Flow.........................................40
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4.9. Application of Mandatory Prepayments................................................40
5. LETTERS OF CREDIT..............................................................................40
5.1. Letter of Credit Commitments........................................................40
5.1.1. Commitment to Issue Letters of Credit....................................40
5.1.2. Letter of Credit Applications............................................41
5.1.3. Terms of Letters of Credit...............................................41
5.1.4. Reimbursement Obligations of Lenders.....................................41
5.1.5. Participations of Lenders................................................42
5.2. Reimbursement Obligation of TransTechnology.........................................42
5.3. Letter of Credit Payments...........................................................43
5.4. Obligations Absolute................................................................43
5.5. Reliance by Issuing Bank............................................................44
5.6. Letter of Credit Fee................................................................44
5.7. Resignation of Issuing Bank.........................................................45
6. CERTAIN GENERAL PROVISIONS.....................................................................45
6.1. Closing Fee.........................................................................45
6.2. Administrative Agent's Fee..........................................................45
6.3. Payment Provisions..................................................................46
6.3.1. Currency of Account......................................................46
6.3.2. Application of Interest Payments.........................................46
6.3.3. Judgment Currency........................................................46
6.3.4. Time of Payment..........................................................47
6.3.5. Payments by Administrative Agent.........................................47
6.3.6. No Offset, etc...........................................................47
6.4. Computations........................................................................48
6.5. Inability to Determine Eurocurrency Rate............................................48
6.6. Illegality..........................................................................49
6.7. Additional Costs, etc...............................................................49
6.8. Capital Adequacy....................................................................51
6.9. Certificate.........................................................................52
6.10. Indemnity...........................................................................52
6.11. Interest After Default..............................................................52
6.11.1. Overdue Amounts.........................................................52
6.11.2. Amounts Not Overdue.....................................................52
6.12. Fronting Bank Provisions............................................................53
6.12.1. Fronting Fee............................................................53
6.12.2. Indemnities.............................................................53
6.12.3. Resignation of Fronting Bank............................................54
6.12.4. Notice to Lenders.......................................................55
6.13. Limits on Number of Separate Eurocurrency Rate Loans................................55
7. COLLATERAL SECURITY AND GUARANTIES.............................................................55
7.1. Security of Borrowers...............................................................55
7.2. Guaranties and Security of Subsidiaries.............................................56
7.3. Pledges of Stock....................................................................56
7.4. Guarantees and Pledges of Assets of Foreign Subsidiaries............................56
8. REPRESENTATIONS AND WARRANTIES.................................................................57
8.1. Corporate Authority.................................................................57
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8.1.1. Incorporation; Good Standing.............................................57
8.1.2. Authorization............................................................57
8.1.3. Enforceability...........................................................57
8.2. Governmental Approvals..............................................................58
8.3. Title to Properties; Leases.........................................................58
8.4. Financial Statements and Projections................................................58
8.4.1. Financial Statements.....................................................58
8.4.2. Projections..............................................................58
8.5. No Material Changes, etc............................................................59
8.6. Franchises, Patents, Copyrights, etc................................................59
8.7. Litigation..........................................................................59
8.8. No Materially Adverse Contracts, etc................................................60
8.9. Compliance with Other Instruments, Laws, etc........................................60
8.10. Tax Status..........................................................................60
8.11. No Event of Default.................................................................60
8.12. Holding Company and Investment Company Acts.........................................60
8.13. Absence of Financing Statements, etc................................................61
8.14. Perfection of Security Interest.....................................................61
8.15. Certain Transactions................................................................61
8.16. Employee Benefit Plans..............................................................61
8.16.1. In General..............................................................61
8.16.2. Terminability of Welfare Plans..........................................62
8.16.3. Guaranteed Pension Plans................................................62
8.16.4. Multiemployer Plans.....................................................62
8.16.5. Compliance with Employment Benefit Laws.................................63
8.17. Use of Proceeds.....................................................................63
8.18. Environmental Compliance............................................................63
8.19. Subsidiaries, etc...................................................................64
8.20. Bank Accounts.......................................................................64
8.21. Year 2000 Compliance................................................................65
9. AFFIRMATIVE COVENANTS OF THE BORROWERS.........................................................65
9.1. Punctual Payment....................................................................65
9.2. Maintenance of Offices..............................................................65
9.3. Records and Accounts................................................................66
9.4. Financial Statements, Certificates and Information..................................66
9.5. Notices.............................................................................67
9.5.1. Defaults.................................................................67
9.5.2. Environmental Events.....................................................68
9.5.3. Notification of Claims against Collateral................................68
9.5.4. Notice of Litigation and Judgments.......................................68
9.6. Corporate Existence; Maintenance of Properties......................................69
9.7. Insurance...........................................................................69
9.8. Taxes...............................................................................69
9.9. Inspection of Properties and Books, etc.............................................70
9.9.1. General..................................................................70
9.9.2. Environmental Assessments................................................70
9.9.3. Communications with Accountants..........................................71
9.10. Compliance with Laws, Contracts, Licenses, and Permits..............................71
9.11. Employee Benefit Plans..............................................................71
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9.12. Use of Proceeds.....................................................................72
9.13. Additional Mortgaged Property.......................................................72
9.14. Bank Accounts.......................................................................72
9.15. Interest Rate Protection............................................................72
9.16. Further Assurances..................................................................73
10. CERTAIN NEGATIVE COVENANTS OF THE BORROWERS...................................................73
10.1. Restrictions on Indebtedness........................................................73
10.2. Restrictions on Liens...............................................................74
10.3. Restrictions on Investments.........................................................76
10.4. Distributions.......................................................................77
10.5. Merger, Consolidation and Disposition of Assets.....................................77
10.5.1. Mergers and Acquisitions................................................77
10.5.2. Disposition of Assets...................................................78
10.6. Sale and Leaseback..................................................................78
10.7. Compliance with Environmental Laws..................................................78
10.8. Subordinated Debt...................................................................79
10.10. Bank Accounts......................................................................80
10.11. Operating Leases...................................................................80
10.12. SO OHG Partnership Agreement.......................................................80
10.13. Maintenance of Business............................................................80
11. FINANCIAL COVENANTS OF THE BORROWERS..........................................................80
11.1. Consolidated EBITDA to Consolidated Total Interest Expense..........................80
11.2. Fixed Charge Coverage Ratio.........................................................81
11.3. Leverage Ratio......................................................................81
11.4. Senior Leverage Ratio...............................................................82
11.5. Minimum Net Worth...................................................................82
11.6. Capital Expenditures................................................................83
12. CLOSING CONDITIONS............................................................................83
12.1. Loan Documents......................................................................83
12.2. Certified Copies of Charter Documents...............................................84
12.3. Corporate Action....................................................................84
12.4. Incumbency Certificate..............................................................84
12.5. Validity of Liens...................................................................84
12.6. Perfection Certificates and UCC Search Results......................................84
12.7. Surveys.............................................................................85
12.8. Title Insurance, etc................................................................85
12.9. Certificates of Insurance...........................................................85
12.10. Bank Agency Agreements.............................................................85
12.11. Hazardous Waste Assessments........................................................85
12.12. Solvency Certificate...............................................................86
12.13. Opinions of Counsel................................................................86
12.14. Payment of Fees....................................................................86
12.15. Senior Subordinated Loans..........................................................86
12.16. Tinnerman Acquisition..............................................................86
12.17. Disbursement Instructions..........................................................86
12.18. Minimum EBITDA.....................................................................87
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12.19. Maximum Leverage Ratio.............................................................87
12.20. Compliance Certificate.............................................................87
13. CONDITIONS TO ALL BORROWINGS..................................................................87
13.1. Representations True; No Event of Default...........................................87
13.2. No Legal Impediment.................................................................88
13.4. Proceedings and Documents...........................................................88
14. EVENTS OF DEFAULT; ACCELERATION; ETC..........................................................88
14.1. Events of Default and Acceleration..................................................88
14.2. Termination of Commitment...........................................................92
14.3. Remedies............................................................................92
14.4. Distribution of Collateral Proceeds.................................................92
15. SETOFF........................................................................................93
16. THE AGENTS....................................................................................94
16.1. Authorization.......................................................................94
16.2. Employees and Agents................................................................95
16.3. No Liability........................................................................95
16.4. No Representations..................................................................95
16.5. Payments............................................................................96
16.5.1. Payments to Administrative Agent........................................96
16.5.2. Distribution by Administrative Agent....................................96
16.5.3. Delinquent Lenders......................................................96
16.6. Holders of Notes....................................................................97
16.7. Indemnity...........................................................................97
16.8. Agents as Lenders...................................................................98
16.9. Resignation of Administrative Agent.................................................98
16.10. Duties of Certain Agents...........................................................98
17. EXPENSES......................................................................................98
18. INDEMNIFICATION...............................................................................99
19. SURVIVAL OF COVENANTS, ETC....................................................................100
20. ASSIGNMENT AND PARTICIPATION..................................................................100
20.1. Conditions to Assignment............................................................100
20.2. Certain Representations and Warranties; Limitations;
Covenants.................................................................................101
20.3. Register............................................................................102
20.4. New Notes...........................................................................103
20.5. Participations......................................................................103
20.6. Disclosure..........................................................................104
20.7. Assignee or Participant Affiliated with TransTechnology.............................104
20.8. Miscellaneous Assignment Provisions.................................................104
20.9. Assignment by the Borrowers.........................................................105
20.10. Syndication........................................................................105
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21. NOTICES, ETC..................................................................................105
22. GOVERNING LAW.................................................................................106
23. HEADINGS......................................................................................107
24. COUNTERPARTS..................................................................................107
25. ENTIRE AGREEMENT, ETC.........................................................................107
26. WAIVER OF JURY TRIAL..........................................................................107
27. CONSENTS, AMENDMENTS, WAIVERS, ETC............................................................107
27.1. Voting Procedures...................................................................107
27.2. Borrowers' Consent Not Required for Certain Amendments..............................109
27.3. Course of Dealing...................................................................109
28. SEVERABILITY..................................................................................109
29.1. Sharing of Information with Section 20 Subsidiary...................................110
29.2. Confidentiality.....................................................................110
29.3. Prior Notification..................................................................110
29.4. Other...............................................................................111
30. TRANSITIONAL ARRANGEMENTS.....................................................................111
30.1. Prior Credit Agreement Superseded...................................................111
30.2. Interest and Fees Under Prior Credit Agreement......................................111
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List of Schedules and Exhibits
------------------------------
Exhibits
--------
Exhibit A - Form of Revolving Credit Note
Exhibit B - Form of Loan Request
Exhibit C - Form of Term Note
Exhibit D - Compliance Certificate
Exhibit E - Form of Assignment and Acceptance
Schedules
---------
Schedule 1 The Lenders; Revolving Credit Commitments
Schedule 4.3 Term Loan Amortization
Schedule 8.3 Title to Properties
Schedule 8.7 Litigation
Schedule 8.10 Tax Compliance
Schedule 8.16.5 Compliance with Employee Benefit Laws
Schedule 8.18 Environmental Compliance
Schedule 8.19 Subsidiaries
Schedule 8.20 Bank Accounts
Schedule 10.1 Existing Indebtedness
Schedule 10.2 Existing Liens
Schedule 10.3 Existing Investments
Schedule 10.5.2 Disposable Assets
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SECOND
AMENDED AND RESTATED
CREDIT AGREEMENT
This SECOND AMENDED AND RESTATED CREDIT AGREEMENT is made as of June
30, 1995, amended and restated as of July 24, 1998, and further amended and
restated as of August 31, 1999, by and among TRANSTECHNOLOGY CORPORATION, a
Delaware corporation having its principal place of business at 000 Xxxxx Xxxx,
Xxxxxxx Xxxxxx, Xxx Xxxxxx 00000, XXX ("TRANSTECHNOLOGY"), TRANSTECHNOLOGY
XXXXXX-ORBIS GMBH, a German limited liability company having its principal place
of business at Konigstein, Germany ("GMBH"), TRANSTECHNOLOGY (GB) LIMITED, an
English limited liability company (registered no. 3062174) having its registered
office at P.O. Box 6, Ferncliffe Road, Bingley, Xxxx Xxxxxxxxx XX00 0XX,
Xxxxxxx, formerly known as Xxxxxxxx International Limited ("LIMITED"),
BANKBOSTON, N.A. ("BANKBOSTON") and the other lending institutions listed on
SCHEDULE 1 (BankBoston and such other institutions, collectively, the
"LENDERS"), BANKBOSTON, N.A., acting through its London Branch, as Sterling
Fronting Bank (the "STERLING FRONTING BANK"), BHF-BANK AKTIENGESELLSCHAFT, as DM
Fronting Bank (the "DM FRONTING BANK"), BANKBOSTON, N.A., as issuing bank (in
such capacity, the "ISSUING BANK"), ABN AMRO BANK N.V., as Syndication Agent
(the "SYNDICATION AGENT"), THE FIRST NATIONAL BANK OF CHICAGO, as Documentation
Agent (the "DOCUMENTATION AGENT"), and BANKBOSTON, N.A., as Administrative Agent
for the Lenders, the Sterling Fronting Bank, the DM Fronting Bank and the
Issuing Bank (in such capacity, the "ADMINISTRATIVE AGENT").
WHEREAS, pursuant to the Amended and Restated Credit Agreement dated as
of June 30, 1995, as amended and restated as of July 24, 1998 (as further
amended, the "PRIOR CREDIT AGREEMENT"), by and among the Borrowers, the Lenders
(as defined therein) and BankBoston, as Administrative Agent, the Lenders party
thereto made loans to the Borrowers to make certain acquisitions and for general
corporate purposes; and
WHEREAS, the Borrowers have requested, among other things, to amend and
restate the Prior Credit Agreement, and the Lenders and the Administrative Agent
are willing to amend the Prior Credit Agreement on the terms and conditions set
forth herein;
NOW, THEREFORE, the Borrowers, the Lenders and the Administrative Agent
agree that on the Closing Date the Prior Credit Agreement and all Schedules and
Exhibits thereto are hereby amended and restated in their entirety as set forth
herein and in the Schedules and Exhibits hereto and shall remain in full force
and effect only as set forth herein.
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1. DEFINITIONS AND RULES OF INTERPRETATION.
----------------------------------------
1.1. DEFINITIONS. The following terms shall have the meanings set forth
in this ss.1 or elsewhere in the provisions of this Credit Agreement referred to
below:
ACQUISITION CLOSING DATE. The date of completion of any Approved
Acquisition.
ACQUISITION DOCUMENTS. As to any Approved Acquisition, the purchase and
sale agreement with respect to such acquisition, and any other related documents
to be executed and/or delivered in connection therewith.
ADMINISTRATIVE AGENT'S HEAD OFFICE. The Administrative Agent's head
office located at 000 Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, or at such
other location as the Administrative Agent may designate from time to time.
ADMINISTRATIVE AGENT'S SPECIAL COUNSEL. Xxxxxxx Xxxx LLP, or such other
counsel as may be approved by the Administrative Agent.
AFFILIATE. With respect to any Person, any other Person that would be
considered to be an affiliate of such Person under Rule 144(a) of the Rules and
Regulations of the Securities and Exchange Commission, as in effect on the date
hereof, if such Person were issuing securities.
AGENTS. Collectively, the Documentation Agent, the Syndication Agent
and the Administrative Agent.
APPLICABLE MARGIN.
(a) From the Closing Date until the date immediately preceding the
first Reset Date after the Closing Date, the Applicable Margin with respect to
Base Rate Loans shall be 1.50%, the Applicable Margin with respect to
Eurocurrency Rate Loans shall be 3.00%, and the Commitment Fee Rate shall be
0.50%. Subject to paragraphs (b) and (c) below, for each period commencing on a
Reset Date (beginning with the first Reset Date following the Closing Date)
through the date immediately preceding the next Reset Date (each such period, a
"RATE SETTING PERIOD"), the Applicable Margin shall be the applicable percentage
set forth in the chart below (the "INITIAL PRICING GRID"), based upon the
Leverage Ratio as determined for the Reference Period ended on the last day of
the fiscal quarter ended immediately preceding the commencement of the
applicable Rate Setting Period:
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@@
-------------------------------------------------------------------------------------------
Applicable Margin
-----------------
Leverage Ratio Base Rate Eurocurrency Commitment
-------------- --------- ------------ ----------
Loans Rate Loans Fee Rate
----- ---------- --------
-------------------------------------------------------------------------------------------
2.50:1 or lower 0.25% 1.75% 0.375%
-------------------------------------------------------------------------------------------
3.00:1 or lower, but higher 0.50% 2.00% 0.375%
than 2.50:1
-------------------------------------------------------------------------------------------
3.50:1 or lower, but higher 0.75% 2.25% 0.375%
than 3.00:1
-------------------------------------------------------------------------------------------
4.00:1 or lower, but higher 1.00% 2.50% 0.500%
than 3.50:1
-------------------------------------------------------------------------------------------
4.50:1 or lower, but higher 1.25% 2.75% 0.500%
than 4.00:1
-------------------------------------------------------------------------------------------
Higher than 4.50:1 1.50% 3.00% 0.500%
-------------------------------------------------------------------------------------------
@@
(b) Notwithstanding the foregoing but subject to paragraph (c) below,
in the event that the Placing Date occurs on or before the ninetieth (90th) day
following the Closing Date, then and for each Rate Setting Period commencing
thereafter the Applicable Margin shall be the applicable percentage set forth in
the chart below, based upon the Leverage Ratio as determined for the Reference
Period ended on the last day of the fiscal quarter ended immediately preceding
the commencement of the applicable Rate Selling Period:
@@
----------------------------------------------------------------------
Applicable Margin
-----------------
Leverage Ratio Base Rate Eurocurrency
-------------- --------- ------------
Loans Rate Loans
----- ----------
----------------------------------------------------------------------
2.50:1 or lower 0.00% 1.50%
----------------------------------------------------------------------
3.00:1 or lower, but higher 0.25% 1.75%
than 2.50:1
----------------------------------------------------------------------
3.50:1 or lower, but higher 0.50% 2.00%
than 3.00:1
----------------------------------------------------------------------
4.00:1 or lower, but higher 0.75% 2.25%
than 3.50:1
----------------------------------------------------------------------
4.50:1 or lower, but higher 1.00% 2.50%
than 4.00:1
----------------------------------------------------------------------
Higher than 4.50:1 1.25% 2.75%
----------------------------------------------------------------------
@@
(c) If no Compliance Certificate is delivered when required by
ss.9.4(c), then, for the period commencing on the next Reset Date following the
date on which such delivery was required through the date immediately following
the date of actual delivery to the Administrative Agent of such Compliance
Certificate, the Commitment Fee Rate shall be set at the highest applicable rate
set forth in the Initial Pricing Grid above, and the Applicable Margin shall be
set at the highest applicable margin set forth in the applicable chart above.
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APPROVED ACQUISITION. The Tinnerman Acquisition and any other
acquisition by any member of the TransTechnology Group of the shares or of
substantially all of the assets of a corporation or business, as the case may
be, whose operations are substantially concentrated in the Business (such
corporation or business, the "TARGET"), PROVIDED THAT either (i) audited
financial statements for the Target are available for its most recently ended
fiscal year and have been delivered to the Administrative Agent and each of the
Lenders, and the aggregate consideration payable by the applicable member of the
TransTechnology Group either (A) does not, when aggregated with the amount of
Indebtedness being assumed by any members of the TransTechnology Group or
remaining outstanding after the Acquisition Closing Date with respect thereto,
exceed $30,000,000 on such Acquisition Closing Date, or (B) is payable in shares
of capital stock of TransTechnology, or (ii) such acquisition is approved in
writing prior to the closing date thereof by the Majority Lenders, and PROVIDED
FURTHER that in each case, each of the following conditions, if applicable, are
either fulfilled or are waived in writing by the Majority Lenders:
(a) the acquisition of the Target is to be concluded pursuant to
negotiated agreements with the Target or its owners or other
controlling interests and approved by the Target's board of
directors or other governing body, and not as a result of a
hostile tender or otherwise without the Target's acquiescence;
(b) upon completion of the proposed acquisition, the assets of the
Target shall be subject to no lien, encumbrance, mortgage,
pledge, charge, restriction or other security other than liens
which would be Permitted Liens hereunder and lessor's
interests under the Capitalized Leases of the Target being
assumed by the purchaser;
(c) no Default or Event of Default shall have occurred and be
continuing at the time of completion of the proposed
acquisition, and no Default or Event of Default would result
therefrom;
(d) without limiting the requirement in clause (c) above, (i) upon
completion of the proposed acquisition TransTechnology and its
Subsidiaries (including the Target from and after the proposed
date of completion of such acquisition) shall be in compliance
with the financial covenants set forth in section 11 following
acquisition of the Target assuming total outstanding amounts
of and interest rates on the Loans, to be the same as those in
effect on the applicable Acquisition Closing Date after
completion of such acquisition, and (ii) in the event that the
total consideration payable in connection with such
acquisition exceeds $15,000,000, TransTechnology shall have
delivered to the Administrative Agent prior to the applicable
Acquisition Closing Date PRO FORMA financial statements in
form and substance satisfactory to the Administrative Agent
evidencing such compliance, certified by the principal
financial or accounting officer of TransTechnology;
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(e) the Administrative Agent shall have received documentation
(including, without limitation, legal opinions and other
documentation similar to that required to be delivered in
connection with the completion of this Credit Agreement)
satisfactory to it in its sole discretion granting first
priority liens in its favor, on behalf of the Lenders, on the
assets and, if applicable, the shares of the Target and on the
assets and, if applicable, the shares of any member of the
TransTechnology Group acquiring the Target's assets or shares,
as the case may be;
(f) if the Target's assets include any freehold interests in real
property, the Administrative Agent shall have received Phase
One environmental site assessments and appraisals of such real
property in form and substance reasonably satisfactory to the
Administrative Agent;
(g) upon completion of any proposed acquisition by purchase of the
shares or other equity interests of the Target, the Target
shall either be merged with and into TransTechnology or one of
its Subsidiaries, with TransTechnology or such Subsidiary as
the surviving entity, or, if the Target continues in existence
as a Subsidiary of TransTechnology or one of its Subsidiaries,
it shall do so in compliance with and subject to the
conditions set forth herein;
(h) the Target's operating income, determined in accordance with
generally accepted accounting principles, for the twelve (12)
months immediately preceding the proposed Acquisition Closing
Date shall be greater than zero; and
(i) the Administrative Agent and the Lenders shall have received
reasonably detailed written notice of the proposed acquisition
at least fifteen (15) Business Days' prior to the proposed
Acquisition Closing Date.
ARRANGER. BancBoston Xxxxxxxxx Xxxxxxxx Inc.
ASSIGNMENT AND ACCEPTANCE. See ss.ss.20.1.1 and 20.1.2.
BALANCE SHEET DATE. March 31, 1999.
BANKBOSTON. See the preamble to this Credit Agreement.
BASE RATE. With respect to amounts denominated in Dollars, the Dollar
Base Rate; with respect to amounts denominated in Deutschmarks, the DM Base
Rate; and with respect to amounts denominated in Sterling, the Sterling Base
Rate, with each of the Dollar Base Rate, DM Base Rate and Sterling Base Rate
being referred to herein as a "Base Rate".
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BASE RATE LOANS. Any Revolving Credit Loans, any International Facility
Loans and any portion of the Term Loan bearing interest calculated by reference
to a Base Rate.
BORROWERS. TransTechnology, GmbH and Limited, collectively, and each
individually being referred to as a "Borrower".
BRAZILIAN PLEDGE AGREEMENT. The Pledge of Quotas dated as of December
31, 1995, made by GmbH (as managing general partner of SO OHG) and Xxxx
Xxxxxxxxxx in favor of the Administrative Agent with respect to the share
capital of the Brazilian Subsidiary, as amended and in effect from time to time.
BRAZILIAN SUBSIDIARY. Xxxxxx-Xxxx Industria e Commercio Ltda., a
Brazilian corporation.
BUSINESS. The businesses engaged in by TransTechnology and its
Subsidiaries at the Closing Date, and businesses reasonably related or
incidental thereto.
BUSINESS DAY. Any day (other than a Saturday or Sunday) on which
banking institutions in Boston, Massachusetts, are open for the transaction of
banking business and, in the case of Eurocurrency Rate Loans, DM Loans and
Sterling Loans, also a day which is a Eurocurrency Business Day.
CANADIAN SECURITY DOCUMENTS. The General Security Agreement, the
Confirmation Security Agreement with respect to certain intellectual property
rights, and the Mortgage over all of the Real Estate of TransTechnology Canada,
each dated of even date herewith and made by TransTechnology Canada in favor of
the Administrative Agent, and each as amended and in effect from time to time.
CAPITAL ASSETS. Fixed assets, both tangible (such as land, buildings,
fixtures, machinery and equipment) and intangible (such as patents, copyrights,
trademarks, franchises and good will); PROVIDED that Capital Assets shall not
include any item customarily charged directly to expense or depreciated over a
useful life of twelve (12) months or less in accordance with generally accepted
accounting principles.
CAPITAL EXPENDITURES. As to any Person, amounts paid or indebtedness
incurred by such Person in connection with the purchase or lease by such Person
of Capital Assets that would be required to be capitalized and shown on the
balance sheet of such Person in accordance with generally accepted accounting
principles.
CAPITALIZED LEASES. Leases (unless otherwise stated, under which
TransTechnology or any of its Subsidiaries is the lessee or obligor), the
discounted future rental payment obligations under which are required to be
capitalized on the balance sheet of the lessee or obligor in accordance with
generally accepted accounting principles.
CERCLA. See Section 8.18.
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CHARGES OVER SHARES. The Charge over Shares, dated June 30, 1995, from
TTSO Inc. in favor of the Administrative Agent with respect to 65% of the share
capital of Limited, the Charge over Shares, dated June 30, 1995, from Limited in
favor of the Administrative Agent with respect to the entire share capital of
Xxxxxxxx (Predecessors) Limited, and the Charge Over Shares, dated July 19,
1999, from Limited in favor of the Administrative Agent with respect to the
entire share capital of Xxxxxxx Holdings plc, each as amended and in effect from
time to time.
CLOSING DATE. The first date on which the conditions set forth in ss.12
have been satisfied and the Term Loan or any Revolving Credit Loan or
International Facility Loan is to be made or any Letter of Credit is to be
issued hereunder.
CODE. The Internal Revenue Code of 1986.
COLLATERAL. All of the property, rights and interests of
TransTechnology and its Subsidiaries that are or are intended to be subject to
the security interests and mortgages created by the Security Documents.
COLLATERAL ASSIGNMENT OF ACQUISITION AGREEMENT. Any assignment of
rights under any acquisition agreement by TransTechnology or any of its
Subsidiaries in favor of the Administrative Agent, for the benefit of the
Lenders, in each case in form and substance satisfactory to the Lenders and the
Administrative Agent.
COLLATERAL INSTRUMENT. Letters of credit, guarantees, indemnities and
performance bonds in form and substance satisfactory to a Fronting Bank issued
or to be issued by such Fronting Bank to or for the account of either GmbH or
Limited, as the case may be, pursuant to section 3.1 and section 3.3,
respectively.
COMMITMENT. As to any Lender, such Lender's Revolving Credit
Commitment, Term Commitment or commitment to participate in the International
Facility Loans, as the case may be.
COMMITMENT FEE RATE. For each Rate Setting Period, the rate per annum
set forth in the Initial Pricing Grid under the column headed "Commitment Fee
Rate" with respect to the Leverage Ratio applicable to such Rate Setting Period.
COMMITMENT PERCENTAGE. With respect to each Lender, the percentage set
forth on SCHEDULE 1 hereto as such Lender's percentage of (a) the aggregate
Revolving Credit Commitments of all of the Lenders, and (b) the Term Loan.
COMPLIANCE CERTIFICATE. The certificate delivered pursuant to
section 9.4(c).
CONSOLIDATED OR Consolidated. With reference to any term defined
herein, shall mean that term as applied to the accounts of TransTechnology and
its Subsidiaries, consolidated in accordance with generally accepted accounting
principles.
CONSOLIDATED ADJUSTED EBITDA. With respect to any Reference Period,
Earnings Before Interest and Taxes for such Reference Period, before provision
for
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any depreciation and amortization PLUS, to the extent that during such Reference
Period any Approved Acquisition shall have been completed, the Earnings Before
Interests and Taxes, before provision for any depreciation or amortization,
attributable to the operations of the applicable Target during the period prior
to the applicable Acquisition Closing Date included in such Reference Period,
but only to the extent evidenced by audited financial statements of the Target
or as otherwise approved in writing by the Administrative Agent and the Majority
Lenders prior to such Acquisition Closing Date, PROVIDED that such Earnings
before Interest and Taxes may include the amount of any cost savings directly
attributable to such Approved Acquisition, to the extent that such savings are
either (i) recognized by Regulation S-X under the Securities Exchange Act of
1934, or (ii) approved in writing by the Administrative Agent and the Majority
Lenders prior to such Acquisition Closing Date, all as determined in accordance
with generally accepted accounting principles.
CONSOLIDATED EBITDA. With respect to any Reference Period, Earnings
Before Interest and Taxes for such Reference Period, before provision for any
depreciation and amortization, as determined in accordance with generally
accepted accounting principles.
CONSOLIDATED EXCESS CASH FLOW. With respect to TransTechnology and its
Subsidiaries and any particular fiscal period, an amount equal to (a)
Consolidated Operating Cash Flow for such period LESS (b) the sum of (i)
Consolidated Total Interest Expense for such period, PLUS (ii) any mandatory
repayments or prepayments (whether scheduled or otherwise) of principal on any
Indebtedness of TransTechnology or any of its Subsidiaries paid or due and
payable during such period PLUS (iii) any voluntary repayments or prepayments of
principal on any Indebtedness of TransTechnology or any of its Subsidiaries made
during such period, except for repayments of Revolving Credit Loans made other
than in connection with a permanent reduction or termination of the Total
Revolving Credit Commitment pursuant to section 2.3, PLUS (iv) an amount equal
to the amount of repayments of Revolving Credit Loans and Unpaid Reimbursement
Obligations as may be necessary to ensure that, as of the last day of such
fiscal period, the aggregate amount of Revolving Credit Availability PLUS the
total amount of cash and cash equivalents held by TransTechnology and its
Subsidiaries exceeds $15,000,000, PLUS (v) to the extent not otherwise deducted
from Consolidated EBITDA in the calculation of Consolidated Operating Cash Flow
for such period, an amount equal to the costs (including amounts payable as
purchase price and fees and expenses of professional advisers) actually incurred
by TransTechnology and its Subsidiaries during such fiscal period with respect
to any Approved Acquisition.
CONSOLIDATED NET INCOME (OR DEFICIT). The consolidated net income (or
deficit) of TransTechnology and its Subsidiaries, after deduction of all
expenses, taxes and other proper charges, determined in accordance with
generally accepted accounting principles.
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CONSOLIDATED NET WORTH. The excess of Consolidated Total Assets over
Consolidated Total Liabilities, LESS, to the extent otherwise includable in the
computation of Consolidated Net Worth, any subscriptions receivable.
CONSOLIDATED OPERATING CASH FLOW. For any period, an amount equal to
(a) Consolidated EBITDA for such period, LESS (b) the sum of (i) cash payments
for all income taxes paid during such period, PLUS (ii) Capital Expenditures
made during such period to the extent permitted by section 11.6, PLUS (iii)
amounts included in Consolidated EBITDA for such period and attributable to
gains on asset sales during such period, to the extent such asset sales are
permitted by section 10.5, PLUS (iv) Distributions made during such period, to
the extent permitted by section 10.4.
CONSOLIDATED TOTAL ASSETS. All assets of TransTechnology and its
Subsidiaries determined on a consolidated basis in accordance with generally
accepted accounting principles.
CONSOLIDATED TOTAL INTEREST EXPENSE. For any period, the aggregate
amount of interest required to be paid or accrued by TransTechnology and its
Subsidiaries during such period on all Indebtedness of TransTechnology and its
Subsidiaries outstanding during all or any part of such period, whether such
interest was or is required to be reflected as an item of expense or
capitalized, including payments consisting of interest in respect of
Subordinated Debt or Capitalized Leases and including commitment fees, agency
fees, facility fees and similar fees or expenses in connection with the
borrowing of money, but EXCLUDING the non-cash amortization of fees paid with
respect to the Prior Credit Agreement, or pursuant to sections 6.1 and 6.2 under
the Credit Agreement on the Closing Date.
CONSOLIDATED TOTAL LIABILITIES. All liabilities of TransTechnology and
its Subsidiaries determined on a consolidated basis in accordance with generally
accepted accounting principles and all Indebtedness of TransTechnology and its
Subsidiaries, whether or not so classified.
CONVERSION REQUEST. A notice given by a Borrower to the Administrative
Agent or a Fronting Bank, as the case may be, of such Borrower's election to
convert or continue a Loan in accordance with section 2.7.
COPYRIGHT MORTGAGES. Any Copyright Mortgage and Security Agreements
made by TransTechnology or any of its Subsidiaries in favor of the
Administrative Agent and in form and substance satisfactory to the Lenders and
the Administrative Agent.
COUNTER INDEMNITY. Any indemnity or counter indemnity from GmbH or
Limited, as the case may be, in favor of the DM Fronting Bank or the Sterling
Fronting Bank, as applicable, with respect to any Collateral Instrument issued
to or for the account of either GmbH or Limited, in the standard form of
indemnity or counter indemnity used by such Fronting Bank or in such other form
and substance as may be satisfactory to such Fronting Bank and including
(without limitation) any
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letter of credit application incorporating indemnification language satisfactory
to such Fronting Bank.
CREDIT AGREEMENT. This Second Amended and Restated Credit Agreement,
including the Schedules and Exhibits hereto.
DEBENTURES. The Debenture dated January 3, 1996 made by Limited in
favor of the Administrative Agent, the Debenture dated June 30, 1995 made by
Xxxxxxxx (Predecessors) Limited in favor of the Administrative Agent, and any
Debenture made by Xxxxxxx Holdings plc or any of its Subsidiaries in favor of
the Administrative Agent after the Closing Date pursuant to and in accordance
with that certain letter agreement dated July 19, 1999, in each case as amended
and in effect from time to time.
DEFAULT. See section 14.1.
DEUTSCHMARKS or DM. Deutschmarks in lawful currency of the Federal
Republic of Germany, or any unit of currency replacing the Deutschmark as the
lawful currency of the Federal Republic of Germany in accordance with European
laws or regulations.
DISTRIBUTION. The declaration or payment of any dividend on or in
respect of any shares of any class of capital stock of TransTechnology, other
than dividends payable solely in shares of common stock of TransTechnology; the
purchase, redemption, or other retirement of any shares of any class of capital
stock of TransTechnology, directly or indirectly through a Subsidiary of
TransTechnology or otherwise; the return of capital by TransTechnology to its
shareholders as such; or any other distribution on or in respect of any shares
of any class of capital stock of TransTechnology.
DM BASE RATE. The annual rate of interest announced from time to time
by the DM Fronting Bank as its "base rate" for loans denominated in
Deutschmarks.
DM EQUIVALENT. On any date of determination, with respect to an amount
denominated in Deutschmarks, such amount of Deutschmarks, and with respect to an
amount denominated in Sterling or Dollars, the amount of Deutschmarks which
could be purchased with that amount of Sterling or Dollars, as the case may be,
at the spot rate of exchange quoted by the DM Fronting Bank in the Frankfurt
Foreign Exchange Market at or about 11:00 a.m. (Frankfurt time) on the date of
determination for the purchase of Deutschmarks with Sterling or Dollars, as the
case may be.
DM EUROCURRENCY LOAN. See section 3.1
DM EUROCURRENCY RATE. For any Interest Period with respect to a DM
Loan, the rate of interest equal to the rate per annum (rounded upwards to the
nearest 1/16 of one percent) at which the DM Fronting Bank is offered deposits
in Deutschmarks two (2) Eurocurrency Business Days prior to the beginning of
such Interest Period in the Frankfurt interbank market for delivery on the first
day of
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such Interest Period for the number of days comprised therein and in an amount
comparable to the amount of the DM Loan to which such Interest Period applies,
divided by (ii) a number equal to 1.00 minus the Eurocurrency Reserve Rate, if
applicable.
DM FACILITY LOANS. The DM Eurocurrency Loans and the DM Overdraft
Advances, collectively.
DM FRONTING BANK. Initially, the head office in Frankfurt, Germany, of
BHF-BANK Aktiengesellschaft, in its capacity as DM Fronting Bank, and thereafter
such office as may be appointed as successor DM Fronting Bank in accordance with
section 6.12.3.
DM LOAN. Any International Facility Loan which is denominated in
Deutschmarks.
DM OVERDRAFT ADVANCE. See section 3.1.
DOCUMENTATION AGENT. See the preamble of this Credit Agreement.
DOLLAR BASE RATE. The higher of (i) the annual rate of interest
announced from time to time by the Administrative Agent at its Head Office in
Boston, Massachusetts, as its "base rate" for loans denominated in Dollars, and
(ii) one-half of one percent (1/2%) above the Federal Funds Effective Rate. For
the purposes of this definition, "FEDERAL FUNDS EFFECTIVE RATE" shall mean for
any day, the rate per annum equal to the weighted average of the rates on
overnight federal funds transactions with members of the Federal Reserve System
arranged by federal funds brokers, as published for such day (or, if such day is
not a Business Day, for the next preceding Business Day) by the Federal Reserve
Bank of New York, or, if such rate is not so published for any day that is a
Business Day, the average of the quotations for such day on such transactions
received by the Administrative Agent from three funds brokers of recognized
standing selected by the Administrative Agent.
DOLLAR EQUIVALENT. On any date of determination, with respect to an
amount denominated in Dollars, such amount of Dollars, and with respect to an
amount denominated in Sterling or Deutschmarks, the amount of Dollars which
could be purchased with that amount of Sterling or Deutschmarks, as the case may
be, at the spot rate of exchange quoted by the Fronting Bank in the London
Foreign Exchange Market at or about 11:00 a.m. (London time) on the date of
determination for the purchase of Dollars with Sterling or Deutschmarks, as the
case may be.
DOLLARS or $. Dollars in lawful currency of the United States of
America.
DOMESTIC LENDING OFFICE. Initially, the office of each Lender
designated as such in SCHEDULE 1 hereto and thereafter, such other office of
such Lender, if any, located within the United States that will be making or
maintaining Base Rate Loans.
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DOMESTIC SUBSIDIARIES. Those Subsidiaries of TransTechnology which are
incorporated in or organized under the laws of any state, district or territory
of the United States, Canada or the Commonwealth of Puerto Rico.
DRAWDOWN DATE. The date on which any Revolving Credit Loan or any
International Facility Loan or the Term Loan is made or is to be made, and the
date on which any Loan or is converted or continued in accordance with section
2.7, as the case may be.
EARLY PLACING DATE. The date no later than the ninetieth (90th) day
following the Closing Date upon which TransTechnology shall have completed the
placing of at least $125,000,000 in aggregate principal amount of Subordinated
Debt.
EARNINGS BEFORE INTEREST AND TAXES. The consolidated earnings (or loss)
from the operations of TransTechnology and its Subsidiaries for any period,
after all expenses and other proper charges but before payment or provision for
any income taxes or interest expense for such period, determined in accordance
with generally accepted accounting principles, after eliminating therefrom all
non-recurring items of income (or loss) resulting from the discontinuation of
operations to the extent that all assets characterized as belonging to or being
employed in such operations are also excluded from Consolidated Total Assets
pursuant to the definition thereof.
ELIGIBLE ASSIGNEE. Any of (i) a commercial bank or finance company
organized under the laws of the United States, or any State thereof or the
District of Columbia, and having total assets in excess of $5,000,000,000; (ii)
a savings and loan association or savings bank organized under the laws of the
United States, or any State thereof or the District of Columbia, and having a
net worth of at least $500,000,000, calculated in accordance with generally
accepted accounting principles; (iii) a commercial bank organized under the laws
of any other country which is a member of the Organization for Economic
Cooperation and Development (the "OECD"), or a political subdivision of any such
country, and having total assets in excess of $5,000,000,000, PROVIDED that such
bank is acting through a branch or agency located in the country in which it is
organized or another country which is also a member of the OECD; (iv) the
central bank of any country which is a member of the OECD; (v) a Lender or an
Affiliate of a Lender; and (vi) if, but only if, any Event of Default has
occurred and is continuing, any other bank, insurance company, commercial
finance company, investment fund or other financial institution or other Person
approved by the Administrative Agent, such approval not to be unreasonably
withheld.
EMPLOYEE BENEFIT PLAN. Any employee benefit plan within the meaning of
section 3(3) of ERISA maintained or contributed to by TransTechnology or any
ERISA Affiliate, other than a Multiemployer Plan.
ENGLISH GUARANTEES. The Deed of Guarantee and Indemnity, dated June 30,
1995, made by Limited in favor of the Administrative Agent, and the Deed of
Guarantee of Indemnity, June 30, 1995, made by Xxxxxxxx (Predecessors) Limited
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in favor of the Administrative Agent, each as amended and in effect from time to
time.
ENGLISH SECURITY DOCUMENTS. The Debentures and the Charges over Shares,
as in effect from time to time.
ENVIRONMENTAL LAWS. See section 8.18(a).
ERISA. The Employee Retirement Income Security Act of 1974.
ERISA AFFILIATE. Any Person which is treated as a single employer with
TransTechnology under section 414 of the Code.
ERISA REPORTABLE EVENT. A reportable event with respect to a Guaranteed
Pension Plan within the meaning of section 4043 of ERISA and the regulations
promulgated thereunder as to which the requirement of notice has not been
waived.
EUROCURRENCY BUSINESS DAY. Any day (other than a Saturday or Sunday) on
which commercial banks are open for international business (including dealings
in Dollar, Deutschmark and Sterling deposits) in London, England and
Frankfurt-am-Main, Germany.
EUROCURRENCY RATE. With respect to amounts denominated in Dollars, the
Eurodollar Rate; with respect to amounts denominated in Deutschmarks, the DM
Eurocurrency Rate; with respect to amounts denominated in Sterling, the Sterling
Eurocurrency Rate.
EUROCURRENCY RATE LOANS. Any Revolving Credit Loans, any International
Facility Loans, and any portion of the Term Loan bearing interest calculated by
reference to a Eurocurrency Rate.
EUROCURRENCY RESERVE RATE. For any day with respect to a Eurocurrency
Rate Loan, the maximum rate (expressed as a decimal) at which any lender subject
thereto would be required to maintain reserves under Regulation D of the Board
of Governors of the Federal Reserve System (or any successor or similar
regulations relating to such reserve requirements) against "Eurocurrency
Liabilities" (as that term is used in Regulation D), if such liabilities were
outstanding. The Eurocurrency Reserve Rate shall be adjusted automatically on
and as of the effective date of any change in the Eurocurrency Reserve Rate.
EURODOLLAR LENDING OFFICE. Initially, the office of each Lender
designated as such in SCHEDULE 1 hereto, and thereafter, such other office of
such Lender, if any, that shall be making or maintaining Eurocurrency Rate Loans
denominated in Dollars.
EURODOLLAR RATE. For any Interest Period with respect to a Eurocurrency
Rate Loan denominated in Dollars, the rate of interest equal to (i) the
arithmetic average of the rates per annum for the Reference Bank (rounded
upwards to the nearest 1/16 of one percent) of the rate at which the Reference
Bank's Eurodollar
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Lending Office is offered Dollar deposits two Eurocurrency Business Days prior
to the beginning of such Interest Period in the interbank eurodollar market
where the eurodollar and foreign currency and exchange operations of such
Eurodollar Lending Office are customarily conducted, for delivery on the first
day of such Interest Period for the number of days comprised therein and in an
amount comparable to the amount of the Eurocurrency Rate Loan to which such
Interest Period applies, divided by (ii) a number equal to 1.00 minus the
Eurocurrency Reserve Rate, if applicable.
EVENT OF DEFAULT. See section 14.1.
FEE LETTER. The letter agreement or agreements between BankBoston, the
Arranger and TransTechnology dated or to be dated on or prior to the Closing
Date with respect to the amount of certain fees payable or to be paid by the
Borrowers jointly and severally (but, in the case of GmbH, subject to Section 30
of the GmbH Act of Germany) under or in respect of this Credit Agreement.
FOREIGN SUBSIDIARIES. Those Subsidiaries of TransTechnology other than
the Domestic Subsidiaries.
FRONTED LOANS. The International Facility Loans, with each (and any
portion of each) being individually a "FRONTED LOAN".
FRONTING BANKS. The DM Fronting Bank and the Sterling Fronting Bank,
collectively, and each individually a "FRONTING BANK".
FUNDED INDEBTEDNESS. At any time of determination, the aggregate
principal amount of all funded Indebtedness for borrowed money (including, for
the avoidance of doubt, all Subordinated Debt of TransTechnology and any of its
Subsidiaries), PLUS all obligations, contingent and otherwise, to reimburse the
issuer in respect of any letter of credit, performance bonds, bankers'
acceptances, guarantees or other similar instruments, PLUS Capitalized Leases,
of TransTechnology and its Subsidiaries.
FUNDING ACCOUNT. See section 2.8.1.
GENERALLY ACCEPTED ACCOUNTING PRINCIPLES. (i) When used in section 11,
whether directly or indirectly through reference to a capitalized term used
therein, means (A) principles that are consistent with the principles
promulgated or adopted by the Financial Accounting Standards Board and its
predecessors, in effect for the fiscal year ended on the Balance Sheet Date, and
(B) to the extent consistent with such principles, the accounting practice of
TransTechnology reflected in its financial statements for the year ended on the
Balance Sheet Date, and (ii) when used in general, other than as provided above,
means principles that are (A) consistent with the principles promulgated or
adopted by the Financial Accounting Standards Board and its predecessors, as in
effect from time to time, and (B) consistently applied with past financial
statements of TransTechnology adopting the same principles, PROVIDED that in
each case referred to in this definition of "generally accepted accounting
principles" a certified public accountant would, insofar as the use of such
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accounting principles is pertinent, be in a position to deliver an unqualified
opinion (other than a qualification regarding changes in generally accepted
accounting principles) as to financial statements in which such principles have
been properly applied.
GERMAN MORTGAGE. The Real Estate Mortgages dated as of February 28,
1996 and May 30, 1996, together with the German Security Agreement, dated June
23, 1998, entered into by SO OHG in favor of the DM Fronting Bank, as agent for
the Administrative Agent and for the benefit of the Lenders, with respect to the
real property at:
(a) Xxxxxxxxxxx Xxxxxxx/Xxxxxxxxxxx Xxxxxxx, Xxxxxxxxxx,
Xxxxxxx (Folio 19-615);
(b) Wiesbadener Strasse, Konigstein, Germany
(Folio 21-699); and
(c) Frittlingen, Germany (Folio 1349);
as amended in effect from time to time.
GERMAN PLEDGE AGREEMENTS. The Pledge of Shares made by TTSO Inc. in
favor of the Administrative Agent with respect to the share capital of GmbH, and
the pledge of Partnership Interests by GmbH in favor of the Administrative Agent
with respect to its interest as managing general partner of SO OHG, in each case
as amended and in effect from time to time.
GERMAN SECURITY DOCUMENTS. The Pledges as to Equipment and Inventory
and the Assignment of Accounts Receivable dated December 28, 1995 and June 23,
1998, by SO OHG in favor of the DM Fronting Bank, as agent for the
Administrative Agent and for the benefit of the Lenders, with respect to all of
the equipment, inventory and accounts receivable of SO OHG, as amended and in
effect from time to time, the German Mortgage, and the German Pledge Agreements.
GMBH. See the preamble to this Credit Agreement.
GUARANTEED PENSION PLAN. Any employee pension benefit plan within the
meaning of Section 3(2) of ERISA maintained or contributed to by TransTechnology
or any ERISA Affiliate the benefits of which are guaranteed on termination in
full or in part by the PBGC pursuant to Title IV of ERISA, other than a
Multiemployer Plan.
GUARANTIES. The Parent Guaranty, the Subsidiary Guaranty and the
English Guarantees.
GUARANTOR. Each Subsidiary of TransTechnology which is a party to the
Subsidiary Guaranty or the English Guarantees.
HAZARDOUS SUBSTANCES. See Section 8.18(b).
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INDEBTEDNESS. All obligations, contingent and otherwise, that in
accordance with generally accepted accounting principles should be classified
upon the obligor's balance sheet as liabilities, or to which reference should be
made by footnotes thereto, including in any event and whether or not so
classified: (i) all debt and similar monetary obligations, whether direct or
indirect; (ii) all liabilities secured by any mortgage, pledge, security
interest, lien, charge or other encumbrance existing on property owned or
acquired subject thereto, whether or not the liability secured thereby shall
have been assumed; and (iii) all guarantees, endorsements and other contingent
obligations whether direct or indirect in respect of indebtedness of others,
including any obligation to supply funds to or in any manner to invest in,
directly or indirectly, the debtor, to purchase indebtedness, or to assure the
owner of indebtedness against loss, through an agreement to purchase goods,
supplies, or services for the purpose of enabling the debtor to make payment of
the indebtedness held by such owner or otherwise, and the obligations to
reimburse the issuer in respect of any letters of credit, performance bonds,
bankers' acceptances, guarantees or other similar instruments; but EXCLUDING all
liabilities in respect of Operating Leases.
INELIGIBLE SECURITIES. Securities which may not be underwritten or
dealt in by member banks of the Federal Reserve System under Section 16 of the
Banking Act of 1993 (12 U.S.C. Section 24, Seventh).
INITIAL PRICING GRID. See the definition of APPLICABLE MARGIN.
INTEREST PAYMENT DATE. (i) As to any Base Rate Loan, the first day
after the last day of the Interest Period with respect thereto; and (ii) as to
any Eurocurrency Rate Loan in respect of which the Interest Period is (A) 3
months or less, the last day of such Interest Period, and (B) more than 3
months, the date that is 3 months from the first day of such Interest Period
and, in addition, the last day of such Interest Period.
INTEREST PERIOD. With respect to each Loan, (i) initially, the period
commencing on the Drawdown Date of such Loan and ending on the last day of one
of the following periods, as selected by the relevant Borrower of such Loan in a
Loan Request: (A) for any Base Rate Loan, a calendar quarter, and (B) for any
Eurocurrency Rate Loan, 1, 2, 3 or 6 months; and (ii) thereafter, each period
commencing on the last day of the next preceding Interest Period applicable to
such Loan and ending on the last day of one of the periods set forth above, as
selected by the relevant Borrower of such Loan in a Conversion Request; PROVIDED
that all of the foregoing provisions relating to Interest Periods are subject to
the following:
(a) if any Interest Period with respect to a Eurocurrency Rate
Loan would otherwise end on a day that is not a Eurocurrency Business
Day, that Interest Period shall be extended to the next succeeding
Eurocurrency Business Day unless the result of such extension would be
to carry such Interest Period into another calendar month, in which
event such Interest Period shall end on the immediately preceding
Eurocurrency Business Day;
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(b) if any Interest Period with respect to a Base Rate Loan
would end on a day that is not a Business Day, that Interest Period
shall end on the next succeeding Business Day;
(c) if the relevant Borrower shall fail to give notice as
provided in ss.2.7, such Borrower shall be deemed to have requested a
conversion of the affected Eurocurrency Rate Loan to a Base Rate Loan
and the continuance of all Base Rate Loans as Base Rate Loans on the
last day of the then current Interest Period with respect thereto;
(d) any Interest Period relating to any Eurocurrency Rate Loan
that begins on the last Eurocurrency 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 Eurocurrency Business Day of a calendar month; and
(e) any Interest Period relating to any Eurocurrency Rate Loan
that would otherwise extend beyond the Revolving Credit Loan Maturity
Date shall end on the Revolving Credit Loan Maturity Date.
INTEREST RATE PROTECTION DOCUMENTS. The documents evidencing the
interest rate cap or swap arrangements entered into by TransTechnology pursuant
to Section 9.15, as such arrangements and the related documents may be amended,
modified, varied or supplemented from time to time.
INTERNATIONAL FACILITY AMOUNT. At any time of determination, the Dollar
Equivalent at such time of the sum of the Total DM Facility Usage and the Total
Sterling Facility Usage.
INTERNATIONAL FACILITY LOANS. The DM Facility Loans made or to be made
by the DM Fronting Bank to GmbH and the Sterling Facility Loans made or to be
made by the Sterling Fronting Bank to Limited, in each case pursuant to Section
3, and all liabilities of GmbH and Limited (whether contingent or otherwise)
incurred or to be incurred in connection with the issuance of Collateral
Instruments and delivery of Counter Indemnities pursuant to Section 3.
INTERNATIONAL FACILITY LOAN REQUEST. See Sections 3.6 and 3.7.
INVESTMENTS. All expenditures made and all liabilities incurred
(contingently or otherwise) for the acquisition of stock or Indebtedness of, or
for loans, advances, capital contributions or transfers of property to, or in
respect of any guaranties (or other commitments as described under
Indebtedness), or obligations of, any Person. In determining the aggregate
amount of Investments outstanding at any particular time: (i) the amount of any
Investment represented by a guaranty shall be taken at not less than the
principal amount of the obligations guaranteed and still outstanding; (ii) there
shall be included as an Investment all interest accrued with respect to
Indebtedness constituting an Investment unless and until such interest is paid;
(iii) there shall be deducted in respect of each such Investment any amount
received as a return of capital (but only by repurchase, redemption, retirement,
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repayment, liquidating dividend or liquidating distribution); (iv) there shall
not be deducted in respect of any Investment any amounts received as earnings on
such Investment, whether as dividends, interest or otherwise, except that
accrued interest included as provided in the foregoing clause (ii) may be
deducted when paid; and (v) there shall not be deducted from the aggregate
amount of Investments any decrease in the value thereof.
LENDERS. The Lenders referred to on SCHEDULE 1 hereto, and, unless the
context otherwise requires, also the Fronting Banks and the Issuing Bank,
collectively, and each individually being referred to as a "Lender".
LETTER OF CREDIT. See Section 5.1.1.
LETTER OF CREDIT APPLICATION. See Section 5.1.1.
LETTER OF CREDIT FEES. See Section 5.6.
LETTER OF CREDIT PARTICIPATION. See Section 5.1.4.
LEVERAGE RATIO. As of any date of testing, the ratio of Funded
Indebtedness outstanding at such date to Consolidated Adjusted EBITDA,
calculated for a Reference Period ended on the last day of the fiscal quarter
ending on such date or most recently ended prior to such date, as the case may
be.
LIMITED. See the preamble to this Credit Agreement.
LOAN DOCUMENTS. This Credit Agreement, the Notes, the Letter of Credit
Applications, the Letters of Credit, the Interest Rate Protection Documents, the
Counter Indemnities and the Security Documents, together with any other
documents from time to time entered into and identified therein as a "Loan
Document" hereunder.
LOAN REQUEST. A Revolving Credit Loan Request or an International
Facility Loan Request.
LOANS. The Revolving Credit Loans, the International Facility Loans and
the Term Loan.
MAJORITY LENDERS. As of any date, so long as there is only one Lender,
such Lender, and so long as there are at least two Lenders, two or more Lenders
holding at least fifty-one percent (51%) of the outstanding principal amount of
the Revolving Credit Notes and the Term Notes (if any), taken together, and if
no such amounts are outstanding, two or more Lenders whose aggregate Commitments
constitute at least fifty-one percent (51%) of the aggregate of the Commitments
of all of the Lenders.
MAXIMUM DM AMOUNT. The maximum principal amount of International
Facility Loans denominated in Deutschmarks available to GmbH from the DM
Fronting Bank, as such amount may be reduced from time to time in accordance
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with the terms and provisions of this Credit Agreement. At the Closing Date,
prior to the drawdown of any International Facility Loans, the Maximum DM Amount
shall be the DM Equivalent of $10,000,000.
MAXIMUM DRAWING AMOUNT. The maximum aggregate amount that the
beneficiaries may at any time draw under outstanding Letters of Credit, as such
aggregate amount may be reduced from time to time pursuant to the terms of the
Letters of Credit.
MAXIMUM INTERNATIONAL FACILITY AMOUNT. The aggregate amount of the
Maximum DM Amount PLUS the Maximum Sterling Amount.
MAXIMUM STERLING AMOUNT. The maximum principal amount of International
Facility Loans denominated in Sterling available to Limited from the Sterling
Fronting Bank, as such amount may be reduced from time to time in accordance
with the terms and provisions of this Credit Agreement. At the Closing Date,
prior to the drawdown of any International Facility Loans, the Maximum Sterling
Amount shall be the Sterling Equivalent of $20,000,000.
MORTGAGED PROPERTY. Any Real Estate which is subject to the German
Mortgage, the Debentures or any other Mortgage.
MORTGAGES. The several mortgages and deeds of trust from
TransTechnology and its Subsidiaries to the Administrative Agent with respect to
the fee and certain leasehold interests of TransTechnology and its Subsidiaries
in the Real Estate, in each case as amended and in effect from time to time.
MULTIEMPLOYER PLAN. Any multiemployer plan within the meaning of
Section 3(37) of ERISA maintained or contributed to by TransTechnology or any
ERISA Affiliate.
NET CASH PROCEEDS. If from a sale of assets or of equity, the cash
proceeds received from such sale, net of all costs of sale, underwriting or
brokerage costs, and taxes paid or payable as a result thereof by
TransTechnology and its Subsidiaries, and if from the incurring of Indebtedness,
the cash proceeds received from such incurring of Indebtedness, net of all costs
thereof incurred and fees and all expenses payable in connection therewith, and
taxes paid or payable as a result thereof, by TransTechnology and its
Subsidiaries.
NOTES. The Revolving Credit Notes and the Term Notes.
OBLIGATIONS. All indebtedness, obligations and liabilities of any of
TransTechnology and its Subsidiaries to any of the Lenders and the
Administrative Agent, individually or collectively, existing on the date of this
Credit Agreement or arising thereafter, direct or indirect, joint or several,
absolute or contingent, matured or unmatured, liquidated or unliquidated,
secured or unsecured, arising by contract, operation of law or otherwise,
arising or incurred under this Credit Agreement or any of the other Loan
Documents or in respect of any of the Loans made or Reimbursement Obligations
incurred or any of the Notes, Letter of Credit
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Applications, Letters of Credit, the Interest Rate Protection Documents, Counter
Indemnities or other instruments at any time evidencing any thereof.
OPERATING LEASES. Leases (unless otherwise stated, under which
TransTechnology or any of its Subsidiaries is the lessee or obligor) of any
property, whether real, personal or mixed, which are not Capitalized Leases.
OUTSTANDING. With respect to any Loan or the Loans, the aggregate
unpaid principal thereof as of any date of determination.
PARENT GUARANTY. The Guaranty, dated as of June 30, 1995, made by
TransTechnology in favor of the Administrative Agent, pursuant to which
TransTechnology guaranties to the Lenders and the Administrative Agent the
payment and performance of the Obligations of GmbH and Limited, as amended and
in effect from time to time.
PARTNERSHIP AGREEMENT. The partnership agreement of SO OHG entered into
between TTSOB and GmbH, as in effect on October 27, 1995.
PATENT ASSIGNMENT. The Patent Assignment, dated as of June 30, 1995
made by TransTechnology and its Subsidiaries in favor of the Administrative
Agent, as amended and in effect from time to time, and any other Patent
Assignments made by TransTechnology or any of its Subsidiaries in favor of the
Administrative Agent and in form and substance satisfactory to the Lenders and
the Administrative Agent.
PBGC. The Pension Benefit Guaranty Corporation created by ss.4002 of
ERISA and any successor entity or entities having similar responsibilities.
PERFECTION CERTIFICATES. The Perfection Certificates as defined in the
Security Agreements.
PERMITTED LIENS. Liens, security interests and other encumbrances
permitted by Section 10.2.
PERSON. Any individual, corporation, partnership, trust, unincorporated
association, business, or other legal entity, and any government or any
governmental agency or political subdivision thereof.
PLACING DATE. The date upon which TransTechnology shall have completed
the placing of at least $100,000,000 in aggregate principal amount of
Subordinated Debt.
PRIOR CREDIT AGREEMENT. See the preamble to this Credit Agreement.
PROJECTIONS. See Section 8.4.3.
RATE SETTING PERIOD. See the definition of "APPLICABLE MARGIN".
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REAL ESTATE. All real property at any time owned or leased (as lessee
or sublessee) by TransTechnology or any of its Subsidiaries.
RECORD. The grid attached to a Note, or the continuation of such grid,
or any other similar record, including computer records, maintained by any
Lender with respect to any Loan referred to in such Note.
REFERENCE BANK. BankBoston.
REFERENCE PERIOD. A period of four (4) consecutive fiscal quarters.
REIMBURSEMENT OBLIGATION. TransTechnology's obligation to reimburse the
Administrative Agent, the Issuing Bank and the Lenders on account of any drawing
under any Letter of Credit as provided in Section 5.2.
RELATED FUND. With respect to any Lender that is an investment fund
that invests in commercial loans, any other such fund that is managed or advised
by the same investment advisor as such Lender or by an Affiliate of such
investment advisor.
RENTAL OBLIGATIONS. All present or future obligations of
TransTechnology or any of its Subsidiaries under any rental agreements or leases
of real or personal property, other than (i) obligations that can be terminated
by the giving of notice without liability to TransTechnology or such Subsidiary
in excess of the liability for rent due as of the date on which such notice is
given and under which no penalty or premium is paid as a result of any such
termination, and (ii) obligations in respect of Capitalized Leases.
RESET DATE. The first Business Day of the month immediately following
the month in which a Compliance Certificate is required to be delivered by
TransTechnology pursuant to Section 9.4(c).
REVOLVING CREDIT AVAILABILITY. At any time of reference thereto, the
amount by which the Total Revolving Credit Commitment as in effect at such time
exceeds the aggregate of (a) the outstanding amount of Revolving Credit Loans at
such time (after giving effect to all amounts requested) PLUS (b) the sum of the
Maximum Drawing Amount, all Unpaid Reimbursement Obligations and the
International Facility Amount at such time.
REVOLVING CREDIT COMMITMENT. With respect to each Lender, (a)
initially, the amount set forth on column 2 of SCHEDULE 1 hereto, and (b) in the
event the Early Placing Date shall have occurred and all of the Senior
Subordinated Loans and the Term Loan shall have been repaid in full, the amount
set forth on column 3 of SCHEDULE 1 hereto, as the amount of such Lender's
commitment to make Revolving Credit Loans to TransTechnology, to participate in
the issuance, extension and renewal of Letters of Credit for the account of
TransTechnology, and to indemnify the Fronting Banks in accordance with Section
6.12.2, as the same may be reduced from time to time, or if such commitment is
terminated pursuant to the provisions hereof, zero.
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REVOLVING CREDIT LOAN MATURITY DATE. August 31, 2004.
REVOLVING CREDIT LOANS. Revolving credit loans made or to be made by
the Lenders to TransTechnology pursuant to Section 2.
REVOLVING CREDIT LOAN REQUEST. See Section 2.6.
REVOLVING CREDIT NOTE RECORD. A Record with respect to a Revolving
Credit Note.
REVOLVING CREDIT NOTES. See Section 2.4.
SECTION 20 SUBSIDIARY. A Subsidiary of the bank holding company
controlling any Lender, which Subsidiary has been granted authority by the
Federal Reserve Board to underwrite and deal in certain Ineligible Securities.
SECURITY AGREEMENTS. The several Security Agreements, dated as of June
30, 1995, between TransTechnology and its Subsidiaries and the Administrative
Agent, as amended and in effect from time to time.
SECURITY DOCUMENTS. The Guaranties, the Security Agreements, the
Mortgages, the Patent Assignments, the Trademark Assignments, the Copyright
Mortgages, the German Security Documents, the English Security Documents, the
Canadian Security Documents, the Collateral Assignments of Acquisition
Agreements, the Brazilian Pledge Agreement, and the Stock Pledge Agreements, and
any other documents or instruments from time to time securing any of the
Obligations or evidencing such security.
SENIOR FUNDED INDEBTEDNESS. At any time of determination, the aggregate
principal amount of all funded Indebtedness for borrowed money (other than
Subordinated Debt), PLUS all obligations, contingent and otherwise, to reimburse
the issuer in respect of any letters of credit, performance bonds, bankers'
acceptances, guarantees or other similar instruments, PLUS Capitalized Leases,
of TransTechnology and its Subsidiaries.
SENIOR LEVERAGE RATIO. As of any date of testing, the ratio of Senior
Funded Indebtedness outstanding at such date to Consolidated Adjusted EBITDA,
calculated for a Reference Period ended on the last day of the fiscal quarter
ended on such date or most recently ended prior to such date, as the case may
be.
SENIOR SUBORDINATED LOAN AGREEMENT. The $75,000,000 Senior Subordinated
Note Purchase Agreement, dated of even date herewith, by and among the Company,
the Lenders and Holders referred to therein and BankBoston, N.A., as
Administrative Agent for such Lenders and Holders.
SENIOR SUBORDINATED LOAN DOCUMENTS. Collectively, the Senior
Subordinated Loan Agreement, the Subordinated Guaranty, and each of the Notes,
the Warrant Agreement, the Warrants, the Warrant Holders' Agreement, the
Registration Rights
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Agreement, the Exchange Escrow Agreement and the Indenture, each as defined in
the Senior Subordinated Loan Agreement.
SENIOR SUBORDINATED LOANS. Amounts outstanding under the Senior
Subordinated Loan Agreement, as such amounts may be converted in accordance with
the terms thereof.
SO OHG. Xxxxxx-Orbis GmbH & Co. OHG, a German general commercial
partnership, at least ninety-nine percent (99%) of whose partnership interests
are held by GmbH and the remainder of whose partnership interests are held by
TTSOB.
STERLING or (POUND). Pounds sterling in the lawful currency of the
United Kingdom of Great Britain and Northern Ireland.
STERLING BASE RATE. The annual rate of interest announced from time to
time by the Sterling Fronting Bank as its "base rate" for loans denominated in
Sterling.
STERLING EQUIVALENT. On any date of determination, with respect to an
amount denominated in Sterling, such amount of Sterling, and with respect to an
amount denominated in Deutschmarks or Dollars, the amount of Sterling which
could be purchased with that amount of Deutschmarks or Dollars, as the case may
be, at the spot rate of exchange quoted by the Sterling Fronting Bank in the
London Foreign Exchange Market at or about 11:00 a.m. (London time) on the date
of determination for the purchase of Sterling with Deutschmarks or Dollars, as
the case may be.
STERLING EUROCURRENCY LOAN. See Section 3.3.
STERLING EUROCURRENCY RATE. For any Interest Period with respect to a
Sterling Loan, the rate of interest equal to the rate per annum (rounded upwards
to the nearest 1/16 of one percent) at which the Sterling Fronting Bank is
offered deposits in Sterling two (2) Eurocurrency Business Days prior to the
beginning of such Interest Period in the London interbank market for delivery on
the first day of such Interest Period for the number of days comprised therein
and in an amount comparable to the amount of the Sterling Loan to which such
Interest Period applies, divided by (ii) a number equal to 1.00 minus the
Eurocurrency Reserve Rate, if applicable.
STERLING FACILITY LOANS. The Sterling Eurocurrency Loans and the
Sterling Overdraft Advances, collectively.
STERLING FRONTING BANK. Initially, the London Branch of BankBoston, in
its capacity as Sterling Fronting Bank; and thereafter such office as may be
appointed as may be appointed as successor Sterling Fronting Bank in accordance
with Section 6.12.3.
STERLING LOAN. Any International Facility Loan which is denominated in
pounds Sterling.
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STERLING OVERDRAFT ADVANCE. See Section 3.3.
STOCK PLEDGE AGREEMENTS. The Stock Pledge Agreements, dated as of June
30, 1995, between TransTechnology and certain of the Guarantors on the one hand
and the Administrative Agent on the other hand with respect to each of the
Domestic Subsidiaries of TransTechnology, as amended and in effect from time to
time.
SUBORDINATED DEBT. Unsecured Indebtedness of TransTechnology or any of
its Subsidiaries in an amount, containing other terms and conditions, and
expressly subordinated and made junior to the payment and performance in full of
the Obligations, pursuant to a written instrument containing subordination
provisions, in each respect satisfactory to and approved by the Majority Lenders
and the Administrative Agent in writing.
SUBORDINATED GUARANTY. The Subordinated Guaranty dated of even date
herewith entered into by TransTechnology's Domestic Subsidiaries in favor of the
Administrative Agent and the Lenders under and as defined in the Senior
Subordinated Note Purchase Agreement with respect to the Senior Subordinated
Loans.
SUBSIDIARY. Any corporation, association, trust, or other business
entity of which the designated parent shall at any time own directly or
indirectly through a Subsidiary or Subsidiaries at least a majority (by number
of votes) of the outstanding Voting Stock.
SUBSIDIARY GUARANTY. The Guaranty, dated as of June 30, 1995, made by
each Domestic Subsidiary in favor of the Lenders and the Administrative Agent,
pursuant to which each Domestic Subsidiary guaranties to the Lenders and the
Administrative Agent the payment and performance of the Obligations, as amended
and in effect from time to time.
SURVEY. In relation to a Mortgaged Property, an instrument survey of
such Mortgaged Property acceptable to the Administrative Agent.
SYNDICATION AGENT. See the preamble of this Credit Agreement.
TERM LOAN. The term loan made or to be made by the Lenders to
TransTechnology on the Closing Date in the aggregate principal amount of
$50,000,000 pursuant to Section 4.1.
TERM LOAN MATURITY DATE. August 31, 2004.
TERM NOTE RECORD. A Record with respect to a Term Note.
TERM NOTES. See Section 4.2.
TINNERMAN ACQUISITION. The acquisition by TransTechnology or certain
Subsidiaries of TransTechnology of substantially all of Xxxxx Corporation's
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Engineered Fastener Division pursuant to and in accordance with the Tinnerman
Acquisition Agreement.
TINNERMAN ACQUISITION AGREEMENT. The Asset Purchase Agreement dated as
of July 9, 1999 by and between TransTechnology and Xxxxx Corporation.
TINNERMAN ACQUISITION DOCUMENTS. The Tinnerman Acquisition Agreement
and each of the other documents entered into by TransTechnology or any of its
Subsidiaries pursuant thereto.
TITLE INSURANCE COMPANY. Commonwealth Title Insurance Company.
TITLE POLICY. In relation to each Mortgaged Property located in the
United States of America, an ALTA standard form title insurance policy issued by
the Title Insurance Company (with such reinsurance or co-insurance as the
Administrative Agent may require, any such reinsurance to be with direct access
endorsements) in such amount as may be determined by the Administrative Agent
insuring the priority of the Mortgage of such Mortgaged Property and that
TransTechnology or one of its Subsidiaries holds marketable fee simple title to
such Mortgaged Property, subject only to the encumbrances permitted by such
Mortgage and which shall not contain exceptions for mechanics liens or persons
in occupancy (except as may be permitted by such Mortgage), shall not insure
over any matter except to the extent that any such affirmative insurance is
acceptable to the Administrative Agent in its sole discretion, and shall contain
such endorsements and affirmative insurance as the Administrative Agent in its
discretion may require.
TOTAL DM FACILITY USAGE. See Section 3.1.
TOTAL REVOLVING CREDIT COMMITMENT. The sum of the Revolving Credit
Commitments of the Lenders, as in effect from time to time, being (a)
$200,000,000 on the Closing Date and (b) $250,000,000, if the Revolving Credit
Commitments of the Lenders are increased pursuant to clause (b) of the
definition thereof.
TOTAL SHAREHOLDERS' EQUITY. At any time of determination, the total
shareholders' equity of the TransTechnology Group at such time, determined in
accordance with generally accepted accounting principles.
TOTAL STERLING FACILITY USAGE. See Section 3.3.
TRADEMARK ASSIGNMENTS. The Trademark Assignment dated as of June 30,
1995, made by TransTechnology and certain of its Subsidiaries in favor of the
Administrative Agent, as amended and in effect from time to time, and any other
Trademark Assignments made by TransTechnology or any of its other subsidiaries
in favor of the Administrative Agent and in form and substance satisfactory to
the Lenders and the Administrative Agent.
TRANSTECHNOLOGY CANADA. TransTechnology Canada Corporation, an Ontario
corporation.
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TRANSTECHNOLOGY GROUP. TransTechnology and all of its Subsidiaries on a
consolidated basis.
TTSO INC. TransTechnology Xxxxxx Inc., a Delaware corporation, formerly
known as TransTechnology Xxxxxx-Orbis Inc.
TTSOB. Xxxxxx-Orbis Beteiligungsgesellschaft mbH, a German limited
liability company and a wholly-owned subsidiary of GmbH.
TYPE. As to any Revolving Credit Loan or International Facility Loan,
or any portion of the Term Loan, its nature as a Base Rate Loan or a
Eurocurrency Rate Loan.
UNIFORM CUSTOMS. With respect to any Letter of Credit, the Uniform
Customs and Practice for Documentary Credits (1993 Revision), International
Chamber of Commerce Publication No. 500 or any successor version thereto adopted
by the Administrative Agent in the ordinary course of its business as a letter
of credit issuer and in effect at the time of issuance of such Letter of Credit.
UNPAID REIMBURSEMENT OBLIGATION. Any Reimbursement Obligation for which
TransTechnology does not reimburse the Administrative Agent and the Lenders on
the date specified in, and in accordance with, Section 5.2.
VOTING STOCK. Stock or similar interests, of any class or classes
(however designated), the holders of which are at the time entitled, as such
holders, to vote for the election of a majority of the directors (or persons
performing similar functions) of the corporation, association, trust or other
business entity involved, whether or not the right so to vote exists by reason
of the happening of a contingency.
YEAR 2000 PROBLEM. See Section 8.21.
1.2. RULES OF INTERPRETATION.
(a) A reference to any document or agreement shall include
such document or agreement as amended, modified or supplemented from
time to time in accordance with its terms and the terms of this Credit
Agreement.
(b) The singular includes the plural and the plural includes
the singular.
(c) A reference to any law includes any amendment or
modification to such law.
(d) A reference to any Person includes its permitted
successors and permitted assigns.
(e) Accounting terms not otherwise defined herein have the
meanings assigned to them by generally accepted accounting principles
applied on a consistent basis by the accounting entity to which they
refer.
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(f) The words "include", "includes" and "including" are not
limiting.
(g) All terms not specifically defined herein or by generally
accepted accounting principles, which terms are defined in the Uniform
Commercial Code as in effect in the Commonwealth of Massachusetts, have
the meanings assigned to them therein, with the term "instrument" being
that defined under Article 9 of the Uniform Commercial Code.
(h) Reference to a particular "section" refers to that section
of this Credit Agreement unless otherwise indicated.
(i) The words "herein", "hereof", "hereunder" and words of
like import shall refer to this Credit Agreement as a whole and not to
any particular section or subdivision of this Credit Agreement.
2. THE REVOLVING CREDIT FACILITY.
------------------------------
2.1. COMMITMENT TO LEND. Subject to the terms and conditions set forth
in this Credit Agreement, each of the Lenders severally agrees to lend to
TransTechnology and TransTechnology may borrow, repay, and reborrow from time to
time between the Closing Date and the Revolving Credit Loan Maturity Date upon
notice by TransTechnology to the Administrative Agent given in accordance with
ss.2.6, such sums in Dollars as are requested by TransTechnology up to a maximum
aggregate amount outstanding (after giving effect to all amounts requested) at
any one time equal to such Lender's Revolving Credit Commitment in effect at
such time MINUS such Lender's Commitment Percentage of the sum of (a) the
Maximum Drawing Amount, (b) all Unpaid Reimbursement Obligations, and (c) the
International Facility Amount, PROVIDED that the sum of the outstanding amount
of the Revolving Credit Loans (after giving effect to all amounts requested)
PLUS the Maximum Drawing Amount, all Unpaid Reimbursement Obligations, and the
International Facility Amount shall not at any time exceed the Total Revolving
Credit Commitment. The Revolving Credit Loans shall be made pro rata in
accordance with each Lender's Commitment Percentage. Each request for a
Revolving Credit Loan hereunder shall constitute a representation and warranty
by TransTechnology that the conditions set forth in Section 12 and Section 13,
in the case of the initial Revolving Credit Loans to be made on the Closing
Date, and ss.13, in the case of all other Revolving Credit Loans, have been
satisfied on the date of such request.
2.2. REVOLVING CREDIT COMMITMENT FEE. TransTechnology agrees to pay to
the Administrative Agent for the accounts of the Lenders in accordance with
their respective Commitment Percentages a commitment fee calculated at the
Commitment Fee Rate per annum on the average daily amount during each calendar
quarter or portion thereof from the Closing Date to the Revolving Credit Loan
Maturity Date by which the Total Revolving Credit Commitment, MINUS the sum of
(a) the Maximum Drawing Amount, (b) all Unpaid Reimbursement Obligations and (c)
the Maximum International Facility Amount, exceeds the outstanding amount of
Revolving Credit Loans during such calendar quarter. The revolving credit
commitment fee shall be payable quarterly in arrears on the first
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day of each calendar quarter with respect to the immediately preceding calendar
quarter, commencing on the first such date following the date hereof, with a
final payment on the Revolving Credit Loan Maturity Date or any earlier date on
which the Revolving Credit Commitments shall terminate.
2.3. REDUCTION OF TOTAL REVOLVING CREDIT COMMITMENT. Trans-Technology
shall have the right at any time and from time to time upon five (5) Business
Days prior written notice to the Administrative Agent to reduce by $1,000,000 or
an integral multiple thereof or terminate entirely the Total Revolving Credit
Commitment, whereupon the Revolving Credit Commitments of the Lenders shall be
reduced PRO RATA in accordance with their respective Commitment Percentages of
the amount specified in such notice or, as the case may be, terminated. Promptly
after receiving any notice of TransTechnology delivered pursuant to this Section
2.3, the Administrative Agent will notify the Lenders of the substance thereof.
Upon the effective date of any such reduction or termination, TransTechnology
shall pay to the Administrative Agent for the respective accounts of the Lenders
the full amount of any commitment fee then accrued on the amount of the
reduction. No reduction or termination of the Revolving Credit Commitments may
be reinstated.
2.4. THE REVOLVING CREDIT NOTES. The Revolving Credit Loans shall be
evidenced by separate promissory notes of TransTechnology in substantially the
form of EXHIBIT A hereto (each a "REVOLVING CREDIT NOTE"), dated as of the
Closing Date and completed with appropriate insertions. One Revolving Credit
Note shall be payable to the order of each Lender in a principal amount equal to
such Lender's Revolving Credit Commitment in effect at such time, or, if less,
the outstanding amount of all Revolving Credit Loans made by such Lender, plus
interest accrued thereon, as set forth below. TransTechnology irrevocably
authorizes each Lender to make or cause to be made, at or about the time of the
Drawdown Date of any Revolving Credit Loan or at the time of receipt of any
payment of principal on such Lender's Revolving Credit Note, an appropriate
notation on such Lender's Revolving Credit Note Record reflecting the making of
such Revolving Credit Loan or (as the case may be) the receipt of such payment.
The outstanding amount of the Revolving Credit Loans set forth on such Lender's
Revolving Credit Note Record shall be PRIMA FACIE evidence of the principal
amount thereof owing and unpaid to such Lender, but the failure to record, or
any error in so recording, any such amount on such Lender's Revolving Credit
Note Record shall not limit or otherwise affect the obligations of
TransTechnology hereunder or under any Revolving Credit Note to make payments of
principal of or interest on any Revolving Credit Note when due.
2.5. INTEREST ON REVOLVING CREDIT LOANS. Except as otherwise provided
in section 6.11, the Revolving Credit Loans shall bear interest as follows:
(a) each Base Rate Loan shall bear interest for the period
commencing with the Drawdown Date thereof and ending on the last day of
the Interest Period with respect thereto at a rate per annum equal to
the sum of (i) the Dollar Base Rate PLUS (ii) the Applicable Margin
with respect to Base Rate Loans as in effect from time to time; and
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(b) each Eurocurrency Rate Loan shall bear interest for the
period commencing with the Drawdown Date thereof and ending on the last
day of the Interest Period with respect thereto at a rate per annum
equal to the sum of (i) the Eurodollar Rate determined for such
Interest Period PLUS (ii) the Applicable Margin with respect to
Eurocurrency Rate Loans as in effect from time to time.
TransTechnology promises to pay interest on each Revolving Credit Loan
in arrears on each Interest Payment Date with respect thereto.
2.6. REQUESTS FOR REVOLVING CREDIT LOANS. TransTechnology shall give to
the Administrative Agent telephonic notice, confirmed in writing in the form of
EXHIBIT B hereto, of each Revolving Credit Loan requested hereunder (a
"REVOLVING CREDIT LOAN REQUEST") no later than 1:00 p.m. (Boston time) (a) on
the proposed Drawdown Date of any Base Rate Loan, or (b) on the third (3rd)
Eurocurrency Business Day prior to the proposed Drawdown Date of any
Eurocurrency Rate Loan. Each Revolving Credit Loan Request shall specify (i) the
principal amount of the Revolving Credit Loan requested, (ii) the proposed
Drawdown Date of such Revolving Credit Loan, (iii) the Interest Period for such
Revolving Credit Loan, and (iv) the Type of such Revolving Credit Loan. Promptly
upon receipt of any such notice, the Administrative Agent shall notify each of
the Lenders thereof. Each Revolving Credit Loan Request shall be irrevocable and
binding on TransTechnology and shall obligate TransTechnology to accept the
Revolving Credit Loan requested from the Lenders or, as the case may be, from
the Administrative Agent on behalf of the Lenders, on the proposed Drawdown Date
therefor. Each Revolving Credit Loan Request shall be in a minimum aggregate
amount of $100,000, or an integral multiple thereof.
2.7. CONVERSION OPTIONS.
2.7.1. CONVERSION TO DIFFERENT TYPE OF REVOLVING CREDIT LOAN.
TransTechnology may elect from time to time to convert any outstanding
Revolving Credit Loan to a Revolving Credit Loan of another Type,
PROVIDED that (a) with respect to any such conversion of a Revolving
Credit Loan to a Base Rate Loan, TransTechnology shall give the
Administrative Agent at least one (1) Business Day prior written notice
of such election; (b) with respect to any such conversion of a Base
Rate Loan to a Eurocurrency Rate Loan, TransTechnology shall give the
Administrative Agent at least three (3) Eurocurrency Business Days
prior written notice of such election; (c) with respect to any such
conversion of a Eurocurrency Rate Loan into a Revolving Credit Loan of
another Type, such conversion shall only be made on the last day of the
Interest Period with respect thereto and (d) no Loan may be converted
into a Eurocurrency Rate Loan when any Default or Event of Default has
occurred and is continuing. All or any part of outstanding Revolving
Credit Loans of any Type may be converted into a Revolving Credit Loan
of another Type as provided herein, PROVIDED that any partial
conversion shall be in an aggregate principal amount of $1,000,000 or a
whole multiple thereof. Each Conversion Request relating to the
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conversion of a Revolving Credit Loan to a Eurocurrency Rate Loan shall
be irrevocable by TransTechnology.
2.7.2. CONTINUATION OF TYPE OF REVOLVING CREDIT LOAN. Any
Revolving Credit Loan of any Type may be continued as a Revolving
Credit Loan of the same Type upon the expiration of an Interest Period
with respect thereto by compliance by TransTechnology with the notice
provisions contained in Section 2.7.1; PROVIDED that no Eurocurrency
Rate Loan may be continued as such when any Default or Event of Default
has occurred and is continuing, but shall be automatically converted to
a Base Rate Loan on the last day of the first Interest Period relating
thereto ending during the continuance of any Default or Event of
Default of which officers of the Administrative Agent active upon
TransTechnology's account have actual knowledge. In the event that
TransTechnology fails to provide any such notice with respect to the
continuation of any Eurocurrency Rate Loan as such, then such
Eurocurrency Rate Loan shall be automatically converted to a Base Rate
Loan on the last day of the first Interest Period relating thereto. The
Administrative Agent shall notify the Lenders promptly when any such
automatic conversion contemplated by this Section 2.7 is scheduled to
occur.
2.7.3. EUROCURRENCY RATE LOANS. Any conversion to or from
Eurocurrency Rate Loans shall be in such amounts and be made pursuant
to such elections so that, after giving effect thereto, the aggregate
principal amount of all Eurocurrency Rate Loans having the same
Interest Period shall not be less than $5,000,000 or a whole multiple
of $1,000,000 in excess thereof.
2.8 FUNDS FOR REVOLVING CREDIT LOANS. Not later than 2:00 p.m. (Boston
time) on the proposed Drawdown Date of any Revolving Credit Loans, upon receipt
of the documents required by Sections 12 and 13 and the satisfaction of the
other conditions set forth therein, to the extent applicable, the Administrative
Agent will make available in immediately available funds the amount of the
requested Revolving Credit Loans by transferring such amount into
TransTechnology's account with the Administrative Agent's Head Office,
identified as the "TransTechnology Funding Account" (the "FUNDING ACCOUNT").
2.9. MATURITY OF REVOLVING CREDIT LOANS. TransTechnology promises to
pay on the Revolving Credit Loan Maturity Date, and there shall become
absolutely due and payable on the Revolving Credit Loan Maturity Date, all of
the Revolving Credit Loans outstanding on such date, together with any and all
accrued and unpaid interest thereon.
2.10. MANDATORY REPAYMENTS OF REVOLVING CREDIT LOANS. If at any time
the sum of the outstanding amount of the Revolving Credit Loans, the Maximum
Drawing Amount, all Unpaid Reimbursement Obligations and the International
Facility Amount exceeds the Total Revolving Credit Commitment then
TransTechnology shall immediately pay the amount of such excess to the
Administrative Agent for the respective accounts of the Lenders for application:
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first, to any Unpaid Reimbursement Obligations; second, to the Revolving Credit
Loans; third, to the International Facility Loans; and fourth, to provide to the
Administrative Agent cash collateral for Reimbursement Obligations as
contemplated by Section 5.2(b) and (c). Each payment of any Unpaid Reimbursement
Obligations or prepayment of Revolving Credit Loans shall be allocated among the
Lenders, in proportion, as nearly as practicable, to each Reimbursement
Obligation or (as the case may be) the respective unpaid principal amount of
each Lender's Revolving Credit Note, with adjustments to the extent practicable
to equalize any prior payments or repayments not exactly in proportion.
2.11. OPTIONAL REPAYMENTS OF REVOLVING CREDIT LOANS. Trans-Technology
shall have the right, at its election, to repay the outstanding amount of the
Revolving Credit Loans, as a whole or in part, at any time without penalty or
premium, PROVIDED that any full or partial prepayment of the outstanding amount
of any Eurocurrency Rate Loans pursuant to this Section 2.11 may be made only on
the last day of the Interest Period relating thereto, unless all costs in
connection with such prepayment are paid in full simultaneously with such
prepayment pursuant to Section 6.10. Each partial prepayment of the Revolving
Credit Loans shall be in an integral multiple of $100,000, shall (in the case of
Eurocurrency Rate Loans) be accompanied by the payment of accrued interest on
the principal prepaid to the date of prepayment, and shall be applied, in the
absence of instruction by TransTechnology, first to the principal of Base Rate
Loans, and then to the principal of Eurocurrency Rate Loans. Each partial
prepayment shall be allocated among the Lenders, in proportion, as nearly as
practicable, to the respective unpaid principal amount of each Lender's
Revolving Credit Note, with adjustments to the extent practicable to equalize
any prior repayments not exactly in proportion.
3. INTERNATIONAL CREDIT FACILITY.
------------------------------
3.1. DM FACILITY LOANS. Subject to the terms and conditions set forth
in this Credit Agreement, (a) the DM Fronting Bank agrees to lend to GmbH and
GmbH may borrow, repay, and reborrow from time to time between the Closing Date
and the Revolving Credit Loan Maturity Date either (i) upon notice by GmbH to
the DM Fronting Bank given in accordance with section 3.6, Loans in Deutschmarks
for a specified Interest Period to bear interest at the rate specified in
Section 3.5(c) below (the "DM EUROCURRENCY LOANS"), or (ii) by means of
overdraft advances on GmbH's DM current account with the DM Fronting Bank (the
"DM OVERDRAFT ADVANCES"), and (b) the DM Fronting Bank agrees to issue
Collateral Instruments to or for the account of GmbH upon the DM Fronting Bank's
receipt of a duly-completed and executed Counter Indemnity from GmbH in respect
of each such Collateral Instrument, in form and substance satisfactory to the DM
Fronting Bank, PROVIDED THAT the aggregate amount of all liabilities of GmbH in
respect of all such Counter Indemnities (whether contingent or otherwise) PLUS
the total amount of DM Eurocurrency Loans and DM Overdraft Advances outstanding
at any one time (after giving effect to all amounts requested) (such aggregate
amount being referred to herein as "TOTAL DM FACILITY USAGE") shall not exceed
the DM Equivalent at such time of $10,000,000. Each request for a DM
Eurocurrency Loan, each application to the DM Fronting Bank for a Collateral
Instrument, and each acceptance of a DM
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Overdraft Advance under this Section 3.1 shall constitute a representation and
warranty by GmbH that the conditions set forth in Section 12 and Section 13, in
the case of the initial DM Facility Loans or Collateral Instruments (if any) to
be made or issued on the Closing Date, and Section 13, in the case of all other
DM Facility Loans or Collateral Instruments, have been satisfied on the date of
such request or acceptance, as the case may be.
3.2. MANDATORY REPAYMENTS OF DM FACILITY LOANS. If at any time, for any
reason whatsoever, including without limitation fluctuations in currency rates,
Total DM Facility Usage exceeds by more than 5% the DM Equivalent at such time
of $10,000,000, then GmbH shall immediately pay the excess amount for
application first, to reduce the outstanding amount of DM Overdraft Advances,
second, to provide to the DM Fronting Bank cash cover in respect of any
outstanding Counter Indemnities in favor of the DM Fronting Bank, and third, to
prepay any DM Eurocurrency Loans then outstanding.
3.3. STERLING FACILITY LOANS. Subject to the terms and conditions set
forth in this Credit Agreement, (a) the Sterling Fronting Bank agrees to lend to
Limited and Limited may borrow, repay, and reborrow from time to time between
the Closing Date and the Revolving Credit Loan Maturity Date either (i) upon
notice by Limited to the Sterling Fronting Bank given in accordance with Section
3.7, Loans in Sterling for a specified Interest Period to bear interest at the
rate specified in Eurocurrency Loan, each application to the DM Fronting Bank
for a Collateral Instrument, and each acceptance of a DM 3.5(d) below (the
"STERLING EUROCURRENCY LOANS"), or (ii) by means of overdraft advances on
Limited's Sterling current account with the Sterling Fronting Bank (the
"STERLING OVERDRAFT ADVANCES"), and (b) the Sterling Fronting Bank agrees to
issue Collateral Instruments to or for the account of Limited upon the Sterling
Fronting Bank's receipt of a duly-completed and executed Counter Indemnity from
Limited in respect of each such Collateral Instrument, in form and substance
satisfactory to the Sterling Fronting Bank, PROVIDED that the aggregate amount
of all liabilities of Limited in respect of all such Counter Indemnities
(whether contingent or otherwise) plus the total amount of Sterling Eurocurrency
Loans and Sterling Overdraft Advances outstanding at any one time (after giving
effect to all amounts requested) (such aggregate amount being referred to herein
as "TOTAL STERLING FACILITY USAGE") shall not exceed the Sterling Equivalent at
such time of $20,000,000. Each request for a Sterling Eurocurrency Loan, each
application to the Sterling Fronting Bank for a Collateral Instrument and each
acceptance of a Sterling Overdraft Advance under this Section 3.3 shall
constitute a representation and warranty by Limited that the conditions set
forth in Section 12 and Section 13, in the case of the initial Sterling Facility
Loans or Collateral Instruments (if any) to be made or issued on the Closing
Date, and Section 13, in the case of all other Sterling Facility Loans or
Collateral Instruments, have been satisfied on the date of such request or
acceptance, as the case may be.
3.4. MANDATORY REPAYMENTS OF STERLING FACILITY LOANS. If at any time,
for any reason whatsoever, including without limitation fluctuations in currency
rates, Total Sterling Facility Usage exceeds by more than 5% the Sterling
Equivalent at such time of $20,000,000, then Limited shall immediately pay the
excess amount for application first, to reduce the outstanding amount of
Sterling Overdraft Advances, second to provide to the Sterling Fronting Bank
cash collateral
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in respect of any outstanding Counter Indemnities, and third, to prepay any
Sterling Eurocurrency Loans then outstanding.
3.5. INTEREST ON INTERNATIONAL FACILITY LOANS. Except as otherwise
provided in Section 6.11, the International Facility Loans shall bear interest
as follows:
(a) with respect to DM Overdraft Advances, interest shall be
payable by GmbH on the day-to-day balance in GmbH's current account
maintained with the DM Fronting Bank at a rate per annum equal to the
sum of (i) the DM Base Rate PLUS (ii) the Applicable Margin with
respect to Base Rate Loans as in effect from time to time; and shall be
deducted from such current account on the last Eurocurrency Business
Day of each calendar month or on such other monthly date as the DM
Fronting Bank may reasonably require such payments;
(b) with respect to Sterling Overdraft Advances, interest
shall be payable by Limited on the day-to-day balance in Limited's
current account maintained with the Sterling Fronting Bank at a rate
per annum equal to the sum of (i) the Sterling Base Rate PLUS (ii) the
Applicable Margin with respect to Eurocurrency Rate Loans as in effect
from time to time; and shall be deducted from such current account on
the last Eurocurrency Business Day of each calendar month or on such
other monthly date as the Sterling Fronting Bank may reasonably require
such payments;
(c) each DM Eurocurrency Loan shall bear interest for the
period commencing with the Drawdown Date thereof and ending on the last
day of the Interest Period with respect thereto at a rate per annum
equal to the sum of (i) the DM Eurocurrency Rate determined for such
Interest Period PLUS (ii) the Applicable Margin with respect to
Eurocurrency Rate Loans as in effect from time to time. GmbH promises
to pay interest, in accordance with Section 6.3.2, on each DM
Eurocurrency Loan in arrears on each Interest Payment Date with respect
thereto; and
(d) each Sterling Eurocurrency Loan shall bear interest for
the period commencing with the Drawdown Date thereof and ending on the
last day of the Interest Period with respect thereto at a rate per
annum equal to the sum of (i) the Sterling Eurocurrency Rate determined
for such Interest Period PLUS (ii) the Applicable Margin with respect
to Eurocurrency Rate Loans as in effect from time to time. Limited
promises to pay interest, in accordance with Section 6.3.2, on each
Sterling Eurocurrency Loan in arrears on each Interest Payment Date
with respect thereto.
3.6. REQUESTS FOR DM EUROCURRENCY LOANS. GmbH shall give to the DM
Fronting Bank written notice substantially in the form of EXHIBIT B hereto (or
telephonic notice confirmed in a writing in the form of EXHIBIT B hereto) of
each DM Eurocurrency Loan requested hereunder (an "INTERNATIONAL FACILITY LOAN
REQUEST") no less than two (2) Eurocurrency Business Days prior to the proposed
Drawdown Date of such Eurocurrency Rate Loan. Each such notice shall specify (a)
the
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principal amount of the Loan requested, (b) the proposed Drawdown Date of such
Loan, (c) the Interest Period for such Loan and (d) the Type of such Loan. Each
International Facility Loan Request for a DM Eurocurrency Loan shall be
irrevocable and binding on GmbH and shall obligate GmbH to accept the DM
Eurocurrency Loan requested on the proposed Drawdown Date therefor. Each such
International Facility Loan Request shall be in a minimum aggregate amount of
the DM Equivalent of $100,000 or an integral multiple thereof.
3.7. REQUESTS FOR STERLING EUROCURRENCY LOANS. Limited shall give to
the Sterling Fronting Bank written notice substantially in the form of EXHIBIT B
hereto (or telephonic notice confirmed in a writing in the form of EXHIBIT B
hereto) of each Sterling Eurocurrency Loan requested hereunder (also referred to
herein as an "INTERNATIONAL FACILITY LOAN REQUEST") no less than two (2)
Eurocurrency Business Days prior to the proposed Drawdown Date of such
Eurocurrency Rate Loan. Each such notice shall specify (a) the principal amount
of the Loan requested, (b) the proposed Drawdown Date of such Loan, (c) the
Interest Period for such Loan and (d) the Type of such Loan. Each International
Facility Loan Request for a Sterling Eurocurrency Loan shall be irrevocable and
binding on Limited and shall obligate Limited to accept the Sterling
Eurocurrency Loan requested on the proposed Drawdown Date therefor. Each such
International Facility Loan Request shall be in a minimum aggregate amount of
the Sterling Equivalent of $100,000 or an integral multiple thereof.
3.8 EVIDENCE OF DM FACILITY LOANS. The obligations of GmbH to repay all
amounts borrowed by it as DM Eurocurrency Loans and DM Overdraft Advances, all
interest thereon and all other amounts payable by it in respect thereof shall be
evidenced by this Credit Agreement, it being the intention of the parties hereto
that GmbH's obligations with respect to the DM Facility Loans owed by it is
evidenced only as stated herein and not by separate promissory notes or other
instruments.
3.9. EVIDENCE OF STERLING FACILITY LOANS. The obligations of Limited to
repay all amounts borrowed by it as Sterling Eurocurrency Loans and Sterling
Overdraft Advances, all interest thereon and all other amounts payable by it in
respect thereof shall be evidenced by this Credit Agreement, it being the
intention of the parties hereto that Limited's obligations with respect to the
Sterling Facility Loans owed by it is evidenced only as stated herein and not by
separate promissory notes or other instruments.
3.10. MATURITY OF DM FACILITY LOANS. GmbH promises to pay on the
Revolving Credit Loan Maturity Date, or such earlier date as the Total Revolving
Credit Commitment shall terminate or the obligations with respect to the
International Facility Loans shall be accelerated in accordance with Section 14,
and there shall become absolutely due and payable on the Revolving Credit Loan
Maturity Date or such earlier date, all of the DM Facility Loans outstanding on
such date, together with any and all accrued and unpaid interest thereon, and to
provide on such date cash cover satisfactory to the DM Fronting Bank for the
aggregate
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amount of all liabilities of GmbH (whether contingent or otherwise) in respect
of all Counter Indemnities in favor of the DM Fronting Bank outstanding on such
date.
3.11. MATURITY OF STERLING FACILITY LOANS. Limited promises to pay on
the Revolving Credit Loan Maturity Date, or such earlier date as the Total
Revolving Credit Commitment shall terminate or the obligations with respect to
the International Facility Loans shall be accelerated in accordance with Section
14, and there shall become absolutely due and payable on the Revolving Credit
Loan Maturity Date or such earlier date, all of the Sterling Facility Loans
outstanding on such date, together with any and all accrued and unpaid interest
thereon, and to provide on such date cash cover satisfactory to the Sterling
Fronting Bank for the aggregate amount of all liabilities of Limited (whether
contingent or otherwise) in respect of all Counter Indemnities in favor of the
Sterling Fronting Bank outstanding on such date.
3.12. OPTIONAL REPAYMENT OF INTERNATIONAL FACILITY LOANS. GmbH and
Limited shall each have the right, at their election, to repay the outstanding
amount of the DM Facility Loans and Sterling Facility Loans, as applicable as a
whole or in part, at any time without penalty or premium, PROVIDED that any full
or partial prepayment of the outstanding amount of any Eurocurrency Rate Loans
pursuant to this Section 3.12 may be made only on the last day of the Interest
Period relating thereto, unless all costs in connection with such prepayment are
paid in full simultaneously with such prepayment pursuant to Section 6.10. GmbH
shall give the DM Fronting Bank, no later than 10:00 a.m., Frankfurt time, at
least three (3) Eurocurrency Business Days prior written notice of any proposed
prepayment pursuant to this Section 3.12 of DM Facility Loans which are Base
Rate Loans, and four (4) Eurocurrency Business Days notice of any proposed
prepayment pursuant to this Section 3.12 of DM Facility Loans which are
Eurocurrency Rate Loans, in each case specifying the proposed date of prepayment
of such DM Facility Loans and the principal amount to be prepaid. Each such
partial prepayment of the DM Facility Loans shall be in an integral multiple of
DM50,000. Limited shall give the Sterling Fronting Bank, no later than 10:00
a.m., London time, at least three (3) Eurocurrency Business days prior written
notice of any proposed prepayment pursuant to this Section 3.12 of Sterling
Facility Loans which are Base Rate Loans, and four (4) Eurocurrency Business
Days notice of any proposed prepayment pursuant to this Section 3.12 of Sterling
Facility Loans which are Eurocurrency Rate Loans, in each case specifying the
proposed date of prepayment of such Sterling Facility Loans and the principal
amount to be prepaid. Each such partial prepayment of the Sterling Facility
Loans shall be in an integral multiple of (pound)50,000. Any prepayment pursuant
to this Section 3.12 shall be accompanied by the payment of accrued interest on
the principal prepaid to the date of prepayment, and shall be applied, in the
absence of instruction by GmbH or Limited, as the case may be, first to
outstanding interest on such International Facility Loans, second to the
principal of International Facility Loans which are Base Rate Loans, third to
provide to each of the Fronting Banks cash cover in respect of any outstanding
Counter Indemnities in favor of such Fronting Bank, and fourth to the principal
of International Facility Loans which are Eurocurrency Rate Loans.
Notwithstanding anything in this Credit Agreement to the contrary, there shall
be an interval of not
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less than two (2) weeks between each prepayment by GmbH or Limited under this
Section 3.12.
3.13. DM FACILITY COMMITMENT FEE. GmbH agrees to pay to the DM Fronting
Bank, for payment by it to the Administrative Agent for the accounts of the
Lenders in accordance with their respective Commitment Percentages, a commitment
fee calculated at the Commitment Fee Rate per annum on the average daily amount
during each calendar quarter or portion thereof from the Closing Date to the
Revolving Credit Loan Maturity Date by which the Maximum DM Amount exceeds Total
DM Facility Usage during such calendar quarter. Such DM facility commitment fee
shall be payable, in the applicable amount of Deutschmarks or the Dollar
Equivalent thereof on the date of such payment, quarterly in arrears on the
first day of each calendar quarter with respect to the immediately preceding
calendar quarter, commencing on the first such date following the date hereof,
with a final payment on the Revolving Credit Loan Maturity Date or any earlier
date on which the Revolving Credit Commitments shall terminate.
3.14. STERLING FACILITY COMMITMENT FEE. Limited agrees to pay to the
Sterling Fronting Bank, for payment by it to the Administrative Agent for the
accounts of the Lenders in accordance with their respective Commitment
Percentages, a commitment fee calculated at the Commitment Fee Rate per annum on
the average daily amount during each calendar quarter or portion thereof from
the Closing Date to the Revolving Credit Loan Maturity Date by which the Maximum
Sterling Amount exceeds Total Sterling Facility Usage during such calendar
quarter. Such Sterling facility commitment fee shall be payable, in the
applicable amount of Sterling or the Dollar Equivalent thereof on the date of
such payment, quarterly in arrears on the first day of each calendar quarter
with respect to the immediately preceding calendar quarter, commencing on the
first such date following the date hereof, with a final payment on the Revolving
Credit Loan Maturity Date or any earlier date on which the Revolving Credit
Commitments shall terminate.
4. THE TERM LOAN.
4.1. COMMITMENT TO LEND. Subject to the terms and conditions set forth
in this Credit Agreement, each Lender agrees to lend to TransTechnology on the
Closing Date the amount of its Commitment Percentage of the principal amount of
$50,000,000.
4.2. THE TERM NOTES. The Term Loan shall be evidenced by separate
promissory notes of TransTechnology in substantially the form of EXHIBIT C
hereto (each a "TERM NOTE"), dated the Closing Date and completed with
appropriate insertions. One Term Note shall be payable to the order of each
Lender in a principal amount equal to such Lender's Commitment Percentage of the
Term Loan and representing the obligation of TransTechnology to pay to such
Lender such principal amount or, if less, the outstanding amount of such
Lender's Commitment Percentage of the Term Loan, plus interest accrued thereon,
as set forth below. TransTechnology irrevocably authorizes each Lender to make
or cause to be made a
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notation on such Lender's Term Note Record reflecting the original principal
amount of such Lender's Commitment Percentage of the Term Loan and, at or about
the time of such Lender's receipt of any principal payment on such Lender's Term
Note, an appropriate notation on such Lender's Term Note Record reflecting such
payment. The aggregate unpaid amount set forth on such Lender's Term Note Record
shall be PRIMA FACIE evidence of the principal amount thereof owing and unpaid
to such Lender, but the failure to record, or any error in so recording, any
such amount on such Lender's Term Note Record shall not affect the obligations
of TransTechnology hereunder or under any Term Note to make payments of
principal of and interest on any Term Note when due.
4.3. SCHEDULE OF INSTALLMENT PAYMENTS OF PRINCIPAL OF TERM LOAN.
TransTechnology promises to pay to the Administrative Agent for the account of
the Lenders the principal amount of the Term Loan in 20 (twenty) consecutive
quarterly payments in the amounts set forth on SCHEDULE 4.3 hereto, such
installments to be due and payable on the first Business Day following the last
day of each calendar quarter set forth on SCHEDULE 4.3 hereto, commencing with
the first Business Day following December 31, 1999, with a final payment on the
Term Loan Maturity Date in an amount equal to the unpaid balance of the Term
Loan.
4.4. OPTIONAL PREPAYMENT OF TERM LOAN. TransTechnology shall have the
right at any time to prepay the Term Notes on or before the Term Loan Maturity
Date, as a whole, or in part, upon not less than five (5) Business Days prior
written notice to the Administrative Agent, without premium or penalty, PROVIDED
that (i) each partial prepayment shall be in the principal amount of $100,000 or
an integral multiple thereof, (ii) no portion of the Term Loan bearing interest
at the Eurodollar Rate may be prepaid pursuant to this Section 4.4 except on the
last day of the Interest Period relating thereto, and (iii) each partial
prepayment shall be allocated among the Lenders, in proportion, as nearly as
practicable, to the respective outstanding amount of each Lender's Term Note,
with adjustments to the extent practicable to equalize any prior prepayments not
exactly in proportion. Any prepayment of principal of the Term Loan shall
include all interest accrued to the date of prepayment and shall be applied
against the scheduled installments of principal due on the Term Loan in the
inverse order of maturity. No amount repaid with respect to the Term Loan may be
reborrowed.
4.5. INTEREST ON TERM LOAN.
4.5.1 INTEREST RATES. Except as otherwise provided in Section
6.11, the Term Loan shall bear interest during each Interest Period
relating to all or any portion of the Term Loan at the following rates:
(a) To the extent that all or any portion of the Term
Loan bears interest during such Interest Period based on the
Base Rate, the Term Loan or such portion shall bear interest
during such Interest Period at the Base Rate PLUS the
Applicable Margin.
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(b) To the extent that all or any portion of the Term
Loan bears interest during such Interest Period based on the
Eurodollar Rate, the Term Loan or such portion shall bear
interest during such Interest Period at the Eurodollar Rate
PLUS the Applicable Margin.
TransTechnology promises to pay interest on the Term Loan or any
portion thereof outstanding during each Interest Period in arrears on
each Interest Payment Date applicable to such Interest Period.
4.5.2 NOTIFICATION BY TRANSTECHNOLOGY. TransTechnology shall
notify the Administrative Agent, such notice to be irrevocable, at
least three (3) Eurodollar Business Days prior to the Drawdown Date of
the Term Loan if all or any portion of the Term Loan is to bear
interest based on the Eurodollar Rate. After the Term Loan has been
made, the provisions of Section 2.7 shall apply MUTATIS MUTANDIS with
respect to all or any portion of the Term Loan so that TransTechnology
may have the same interest rate options with respect to all or any
portion of the Term Loan as it would be entitled to with respect to the
Revolving Credit Loans.
4.5.3. AMOUNTS, ETC. Any portion of the Term Loan bearing
interest based on the Eurodollar Rate relating to any Interest Period
shall be in the amount of $500,000 or a greater integral multiple of
$100,000. No Interest Period relating to the Term Loan or any portion
thereof bearing interest based on the Eurodollar Rate shall extend
beyond the date on which a regularly scheduled installment payment of
the principal of the Term Loan is to be made unless a portion of the
Term Loan at least equal to such installment payment has an Interest
Period ending on such date or is then bearing interest based on the
Base Rate.
4.6. MANDATORY PREPAYMENTS FROM ASSET SALES OR NEW DEBT. In the event
that any member of the TransTechnology Group shall either (a) incur any
Indebtedness after the Closing Date which is either permitted pursuant to
Section 10.1(f) or is incurred in an amount and on terms and conditions
previously agreed in writing by the Administrative Agent and the Majority
Lenders, or (b) sell any of its assets (other than inventory sold in the
ordinary course of business) or group of related assets, whether by sale of such
assets or sale of the stock of any member of the TransTechnology Group, where
such asset sale is either permitted pursuant to Section 10.5.2 or is previously
consented to in writing by the Administrative Agent and the Majority Lenders,
then, so long as the Leverage Ratio on the date of receipt by any member of the
TransTechnology Group of the Net Cash Proceeds of such new Indebtedness or such
asset sale, as the case may be (without giving effect to the incurrence of such
Indebtedness or the sale of such assets), is greater than 3.25:1,
TransTechnology shall prepay the Term Loan as soon as practicable and in any
event within thirty (30) days after the date of such receipt in an amount equal
to (i) 100% of the Net Cash Proceeds of such new Indebtedness, PROVIDED,
HOWEVER, that, upon the issuance by TransTechnology of any Subordinated Debt,
the Net Cash Proceeds from the issuance of such Indebtedness shall be applied
first to the repayment of the Senior Subordinated Loans, and only applied in
repayment of the
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Term Loan in accordance with Section 4.9 upon payment in full of the Senior
Subordinated Loans and all amounts outstanding with respect thereto under the
Senior Subordinated Loan Documents, and (ii) 100% of the Net Cash Proceeds of
such asset sale, but only to the extent that the aggregate amount of Net Cash
Proceeds of all such asset sales received by TransTechnology and its
Subsidiaries during any fiscal year ending after the date hereof exceeds
$5,000,000.
4.7. MANDATORY PREPAYMENTS FROM NEW EQUITY. In the event that any
member of the TransTechnology Group shall after the Closing Date sell or issue
any shares of its stock, options (other than stock options awarded to employees
and directors pursuant to incentive compensation plans operated by members of
the TransTechnology Group) or warrants for the purchase of its stock or other
equity or equity instruments, then, so long as the Leverage Ratio on the date of
completion of such sale or issuance (without giving effect to such sale or
issuance or the application of proceeds thereof) is greater than 3.25:1,
TransTechnology shall prepay the Term Loan as soon as practicable and in any
event within thirty (30) days after the completion of the sale or issuance of
such new equity in an amount equal to 100% of the Net Cash Proceeds to the
TransTechnology Group of such sale or issuance of new equity.
4.8. MANDATORY PREPAYMENTS FROM EXCESS CASH FLOW. For each fiscal year
ending on or after March 31, 2000, so long as the Leverage Ratio as at the end
of such fiscal year is greater than 3.25:1, TransTechnology shall prepay the
Term Loan in an amount equal to 50% of the Consolidated Excess Cash Flow for
such fiscal year, such mandatory prepayment to be due and payable ninety (90)
days after the end of each such fiscal year.
4.9. APPLICATION OF MANDATORY PREPAYMENTS. Subject to the provisions of
Section 4.6(i) above, all mandatory prepayments of the Term Loan pursuant to
Sections 4.6 - 4.8 shall be applied to payment of installments on the Term Loan
in the inverse order of maturity in accordance with the provisions of Section
4.4.
5. LETTERS OF CREDIT.
5.1. LETTER OF CREDIT COMMITMENTS.
5.1.1. COMMITMENT TO ISSUE LETTERS OF CREDIT. Subject to the
terms and conditions hereof and the execution and delivery by
TransTechnology of a letter of credit application on the Issuing Bank's
customary form (a "LETTER OF CREDIT APPLICATION"), the Issuing Bank on
behalf of the Lenders and in reliance upon the agreement of the Lenders
set forth in Section 5.1.4 and upon the representations and warranties
of TransTechnology contained herein, agrees, in its individual
capacity, to issue, extend and renew for the account of TransTechnology
one or more standby or documentary letters of credit (individually, a
"LETTER OF CREDIT"), in such form as may be requested from time to time
by TransTechnology and agreed to by the Issuing Bank; PROVIDED,
HOWEVER, that, after giving effect to such request, (a) the sum of the
aggregate Maximum Drawing Amount and all Unpaid
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Reimbursement Obligations shall not exceed $5,000,000 at any one time,
and (b) the aggregate outstanding amount of the Revolving Credit Loans,
plus the Maximum Drawing Amount, PLUS all Unpaid Reimbursement
Obligations, PLUS the International Facility Amount shall not exceed
the Total Revolving Credit Commitment; and PROVIDED FURTHER that, after
the Issuing Bank shall have received notice in writing of the
occurrence of an Event of Default and until it has received written
notice of the cure or waiver of such Event of Default, the Issuing Bank
shall not be obliged to issue any such Letter of Credit unless the
Majority Lenders shall have consented to such issuance in writing.
5.1.2. LETTER OF CREDIT APPLICATIONS. Each Letter of Credit
Application shall be completed to the satisfaction of the Issuing Bank.
In the event that any provision of any Letter of Credit Application
shall be inconsistent with any provision of this Credit Agreement, then
the provisions of this Credit Agreement shall, to the extent of any
such inconsistency, govern.
5.1.3. TERMS OF LETTERS OF CREDIT. Each Letter of Credit
issued, extended or renewed hereunder shall, among other things, (i)
provide for the payment of sight drafts for honor thereunder when
presented in accordance with the terms thereof and when accompanied by
the documents described therein, and (ii) have an expiry date no later
than the date which is thirty (30) days (or, if the Letter of Credit is
confirmed by a confirmer or otherwise provides for one or more
nominated persons, sixty (60) days) prior to the Revolving Credit Loan
Maturity Date. Each Letter of Credit so issued, extended or renewed
shall be subject to the Uniform Customs.
5.1.4. REIMBURSEMENT OBLIGATIONS OF LENDERS. Each Lender
severally agrees that it shall be absolutely liable, without regard to
the occurrence of any Default or Event of Default or any condition
precedent other than that set forth in the proviso to this Section
5.1.4, to reimburse the Issuing Bank or the Administrative Agent, as
the case may be, on demand, to the extent of such Lender's Commitment
Percentage, for the amount of each draft paid by the Issuing Bank or
the Administrative Agent under each Letter of Credit to the extent that
such amount is not reimbursed by TransTechnology pursuant to Section
5.2 (such agreement for a Lender being called herein the "LETTER OF
CREDIT PARTICIPATION" of such Lender) PROVIDED, HOWEVER, that to the
extent that any Letter of Credit shall have been issued by the Issuing
Bank during the continuance of an Event of Default of which the Issuing
Bank had prior written notice, then the Lenders shall only be liable to
reimburse the Issuing Bank or the Administrative Agent, as applicable,
in accordance with this Section 5.1.4 with respect to any draft under
such Letter of Credit paid by the Issuing Bank or the Administrative
Agent and not reimbursed by TransTechnology if the issuance of such
Letter of Credit shall have been approved by the Majority Lenders
pursuant to and in accordance with Section 5.1.1 above.
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5.1.5. PARTICIPATIONS OF LENDERS. Each such payment made by a
Lender shall be treated as the purchase by such Lender of a
participating interest in TransTechnology's Reimbursement Obligation
under Section 5.2 in an amount equal to such payment. Each Lender shall
share in accordance with its participating interest in any interest
which accrues pursuant to Section 5.2.
5.2. REIMBURSEMENT OBLIGATION OF TRANSTECHNOLOGY. In order to induce
the Issuing Bank to issue, extend and renew each Letter of Credit and the
Lenders to participate therein, TransTechnology hereby agrees to reimburse or
pay to the Administrative Agent, for the account of the Issuing Bank or (as the
case may be), the Administrative Agent or the Lenders, with respect to each
Letter of Credit issued, extended or renewed by the Issuing Bank hereunder,
(a) except as otherwise expressly provided in Section 5.2(b)
and (c), on each date that any draft presented under such Letter of
Credit is honored by the Issuing Bank, or the Issuing Bank otherwise
makes a payment with respect thereto, (i) the amount paid by the
Issuing Bank under or with respect to such Letter of Credit, and (ii)
the amount of any taxes, fees, charges or other costs and expenses
whatsoever incurred by the Issuing Bank, the Administrative Agent or
any Lender in connection with any payment made by the Issuing Bank or
any Lender under, or with respect to, such Letter of Credit,
(b) upon the reduction (but not termination) of the Total
Revolving Credit Commitment to an amount less than the Maximum Drawing
Amount, an amount equal to such difference, which amount shall be held
by the Issuing Bank for the benefit of the Lenders, the Administrative
Agent and the Issuing Bank as cash collateral for all Reimbursement
Obligations, and
(c) upon the termination of the Total Revolving Credit
Commitment, or the acceleration of the Reimbursement Obligations with
respect to all Letters of Credit in accordance with Section 14, an
amount equal to the then Maximum Drawing Amount on all Letters of
Credit, which amount shall be held by the Issuing Bank for the benefit
of the Lenders, the Administrative Agent and the Issuing Bank as cash
collateral for all Reimbursement Obligations.
Each such payment shall be made to the Administrative Agent at the
Administrative Agent's Head Office (for the account of the Issuing Bank or (as
the case may be) the Administrative Agent or the Lenders) in immediately
available funds. Interest on any and all amounts remaining unpaid by
TransTechnology under this Section 5.2 at any time from the date such amounts
become due and payable (whether as stated in this Section 5.2, by acceleration
or otherwise) until payment in full (whether before or after judgment) shall be
payable to the Administrative Agent (for the account of the Issuing Bank or (as
the case may be) the Administrative Agent or the Lenders) on demand at the rate
specified in Section 6.11 for overdue principal on the Revolving Credit Loans.
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5.3. LETTER OF CREDIT PAYMENTS. If any draft shall be presented or
other demand for payment shall be made under any Letter of Credit, the Issuing
Bank shall notify TransTechnology of the date and amount of the draft presented
or demand for payment and of the date and time when it expects to pay such draft
or honor such demand for payment. If TransTechnology fails to make payment to
the Administrative Agent as provided in Section 5.2 on or before the date that
such draft is paid or other payment is made by the Issuing Bank, the Issuing
Bank may at any time thereafter notify the Administrative Agent and the Lenders
of the amount of any such Unpaid Reimbursement Obligation. No later than 3:00
p.m. (Boston time) on the Business Day next following the receipt of such
notice, each Lender shall make available to the Issuing Bank, at its Head
Office, in immediately available funds, such Lender's Commitment Percentage of
such Unpaid Reimbursement Obligation, together with an amount equal to the
product of (i) the average, computed for the period referred to in clause (iii)
below, of the weighted average interest rate paid by the Issuing Bank for
federal funds acquired by the Issuing Bank during each day included in such
period, times (ii) the amount equal to such Lender's Commitment Percentage of
such Unpaid Reimbursement Obligation, times (iii) a fraction, the numerator of
which is the number of days that elapse from and including the date the Issuing
Bank paid the draft presented for honor or otherwise made payment to the date on
which such Lender's Commitment Percentage of such Unpaid Reimbursement
Obligation shall become immediately available to the Issuing Bank, and the
denominator of which is 360. The responsibility of the Issuing Bank to
TransTechnology and to the Administrative Agent and the Lenders shall be only to
determine that the documents (including each draft) delivered under each Letter
of Credit in connection with such presentment shall be in conformity in all
material respects with such Letter of Credit.
5.4. OBLIGATIONS ABSOLUTE. TransTechnology's obligations under this
Section 5 shall be absolute and unconditional under any and all circumstances
and irrespective of the occurrence of any Default or Event of Default or any
condition precedent whatsoever or any setoff, counterclaim or defense to payment
which TransTechnology may have or have had against the Issuing Bank, the
Administrative Agent, any Lender or any beneficiary of a Letter of Credit.
TransTechnology further agrees with the Issuing Bank, the Administrative Agent
and the Lenders that the Issuing Bank, the Administrative Agent and the Lenders
shall not be responsible for, and TransTechnology's Reimbursement Obligations
under Section 5.2 shall not be affected by, among other things, the validity or
genuineness of documents or of any endorsements thereon, even if such documents
should in fact prove to be in any or all respects invalid, fraudulent or forged,
or any dispute between or among TransTechnology, the beneficiary of any Letter
of Credit or any financing institution or other party to which any Letter of
Credit may be transferred or any claims or defenses whatsoever of
TransTechnology against the beneficiary of any Letter of Credit or any such
transferee. The Issuing Bank, the Administrative Agent and the Lenders shall not
be liable for any error, omission, interruption or delay in transmission,
dispatch or delivery of any message or advice, however transmitted, in
connection with any Letter of Credit. TransTechnology agrees that any action
taken or omitted by any of the Issuing Bank, the Administrative Agent or any
Lender under or in connection with each Letter of Credit and the related drafts
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and documents, if done in good faith, shall be binding upon TransTechnology and
shall not result in any liability on the part of the Issuing Bank, the
Administrative Agent or any Lender to TransTechnology.
5.5. RELIANCE BY ISSUING BANK. To the extent not inconsistent with
Section 5.4, the Issuing Bank shall be entitled to rely, and shall be fully
protected in relying upon, any Letter of Credit, draft, writing, resolution,
notice, consent, certificate, affidavit, letter, cablegram, telegram, telecopy,
telex or teletype message, statement, order or other document believed by it to
be genuine and correct and to have been signed, sent or made by the proper
Person or Persons and upon advice and statements of legal counsel, independent
accountants and other experts selected by the Issuing Bank. The Issuing Bank
shall be fully justified in failing or refusing to take any action under this
Agreement unless it shall first have received such advice or concurrence of the
Majority Lenders as it reasonably deems appropriate or it shall first be
indemnified to its reasonable satisfaction by the Lenders against any and all
liability and expense which may be incurred by it by reason of taking or
continuing to take any such action. The Issuing Bank shall in all cases be fully
protected in acting, or in refraining from acting, under this Agreement in
accordance with a request of the Majority Lenders, and such request and any
action taken or failure to act pursuant thereto shall be binding upon the
Lenders and all future holders of the Revolving Credit Notes or of a Letter of
Credit Participation.
5.6. LETTER OF CREDIT FEE. TransTechnology shall pay a fee (in each
case, a "LETTER OF CREDIT FEE") to the Issuing Bank in respect of each Letter of
Credit, calculated as a percentage per annum of the face amount of such Letter
of Credit equal to the sum of (a) the then Applicable Margin with respect to
Eurocurrency Rate Loans, PLUS (b) one-quarter of one percent (0.25%), PLUS the
Administrative Agent's customary issuance, amendment, negotiation or document
examination fee. Such Letter of Credit Fees, with the exception of (i) such
issuance, amendment, negotiation or document examination fees and (ii) an amount
equal to one-quarter of one percent (0.25%) of the face amount of the applicable
Letter of Credit, which shall be retained by the Issuing Bank for its own
account, shall be for the accounts of the Lenders in accordance with their
respective Commitment Percentages. Such Letter of Credit Fees shall be payable
quarterly in arrears on the first day of each calendar quarter with respect to
the immediately preceding calendar quarter or portion thereof, commencing on the
first such date following the date of issuance of a Letter of Credit, as well as
(with respect to any applicable issuance, amendment negotiation or document
examination fees) at such other time or times as such charges are customarily
made by the Issuing Bank.
5.7. RESIGNATION OF ISSUING BANK. The Issuing Bank may resign at any
time by giving sixty (60) days prior written notice thereof to the Lenders and
TransTechnology. Upon any such resignation, the Majority Lenders shall have the
right to appoint a successor Issuing Bank. Unless a Default or Event of Default
shall have occurred and be continuing, such successor Issuing Bank shall be
reasonably acceptable to TransTechnology. If no successor Issuing Bank shall
have been so appointed by the Majority Lenders and shall have accepted such
appointment within thirty (30) days after the retiring Issuing Bank's giving of
notice
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of resignation, then the retiring Issuing Bank may, on behalf of the Lenders,
appoint a successor Issuing Bank, which shall be a financial institution having
a rating of not less than A or its equivalent by Standard & Poor's Corporation.
Upon the acceptance of any appointment as Issuing Bank hereunder by a successor
Issuing Bank, such successor Issuing Bank shall thereupon succeed to and become
vested with all the rights, powers, privileges, duties and obligations of the
retiring Issuing Bank, and, after arranging for the replacement of, reissuance
of or issuance of back-up Letters of Credit with respect to all outstanding
Letters of Credit in a manner satisfactory to the Majority Lenders, the retiring
Issuing Bank shall be discharged from its duties and obligations hereunder.
After any retiring Issuing Bank's resignation, the provisions of this Credit
Agreement and the other Loan Documents shall continue in effect for its benefit
in respect of any actions taken or omitted to be taken by it while it was acting
as Issuing Bank.
6. CERTAIN GENERAL PROVISIONS.
6.1. CLOSING FEE. The Borrowers (but, in the case of GmbH, subject to
Section 30 of the GmbH Act of Germany) jointly and severally agree to pay on the
Closing Date to the Administrative Agent for its own account a closing fee in
the amount agreed in the Fee Letter.
6.2. ADMINISTRATIVE AGENT'S FEE. The Borrowers jointly and severally
(but, in the case of GmbH, subject to Section 30 of the GmbH Act of Germany)
agree to pay to the Administrative Agent annually in advance, on the Closing
Date and on each subsequent anniversary thereof, for the Administrative Agent's
own account, an Administrative Agent's fee in the amount agreed in the Fee
Letter, PROVIDED that the payment of such fee on the Closing Date shall be
adjusted to give credit for any prior payment of Agent's fees under the Prior
Credit Agreement for any period following the Closing Date.
6.3. PAYMENT PROVISIONS.
6.3.1. CURRENCY OF ACCOUNT. Dollars are the currency of
account and payment for each and every sum at any time due from the
Borrowers hereunder, PROVIDED that:
(i) each repayment of a Loan or a part thereof shall
be made in the currency in which such Loan is denominated at
the time of that repayment;
(ii) each payment in respect of a Letter of Credit
shall, except as otherwise provided herein, be made in the
currency in which such Letter of Credit is denominated;
(iii) each payment of interest shall be made in the
currency in which the sum in respect of which such interest is
payable is denominated;
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(iv) each payment in respect of costs and expenses
shall be made in the currency in which the same were incurred;
and
(v) any amount expressed to be payable in a currency
other than Dollars shall be paid in that other currency.
6.3.2. APPLICATION OF INTEREST PAYMENTS. Interest and
commissions payable by the Borrowers shall be paid as follows:
(a) as to interest and commissions due with respect to the
International Facility Loans, to the Fronting Banks, for the account of
the respective Fronting Banks, PROVIDED that (i) to the extent that a
Lender has paid to such Fronting Bank any amount in respect of any
Fronted Loan pursuant to Section 6.12, interest or commissions to the
extent as aforesaid on such amount of such Fronted Loan (including,
without limitation, any interest accruing at rates calculated in
accordance with Section 6.11) shall thereafter accrue for the account
of such Lender, and (ii) the Fronting Banks shall pay all amounts of
interest received by them in an amount equal to the Applicable Margin
to the Administrative Agent for the account of the Lenders in the
proportion of the Lenders' respective Commitment Percentages; and
(b) as to interest due with respect to Revolving Credit Loans,
to the Administrative Agent for the account of the Lenders in the
proportion of the Lenders' respective Commitment Percentages.
6.3.3. JUDGMENT CURRENCY. If any sum due from a Borrower under
this Credit Agreement or any order or judgment given or made in
relation hereto has to be converted from the currency (the "FIRST
CURRENCY") in which the same is payable hereunder or under such order
or judgment into another currency (the "SECOND CURRENCY") for the
purpose of (i) making or filing a claim or proof against such Borrower,
(ii) obtaining an order or judgment in any court or other tribunal or
(iii) enforcing any order or judgment given or made in relation hereto,
such Borrower shall indemnify and hold harmless each of the Persons to
whom such sum is due from and against any loss suffered as a result of
any discrepancy between (A) the rate of exchange used for such purpose
to convert the sum in question from the first currency into the second
currency and (B) the rate or rates of exchange at which such Person may
in the ordinary course of business purchase the first currency with the
second currency upon receipt of a sum paid to it in satisfaction, in
whole or in part, of any such order, judgment, claim or proof.
6.3.4. TIME OF PAYMENT. On each date on which this Credit
Agreement requires an amount to be paid by any of the Borrowers or any
of the Lenders hereunder, such Borrower or, as the case may be, such
Lender shall make the same available to the Administrative Agent, the
DM Fronting Bank or the Sterling Fronting Bank, as the case may be, to
such account as the Administrative Agent or such Fronting Bank shall
have notified to any of the Borrowers or to such Lender, as the case
may be. Each such payment
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which is made for the account of a Person other than the Administrative
Agent shall be made in time to enable the Administrative Agent to make
available such other Person's portion thereof for value the same day.
6.3.5. PAYMENTS BY ADMINISTRATIVE AGENT. Where a sum is to be
paid hereunder to the Administrative Agent for the account of another
Person, the Administrative Agent shall not be obliged to make the same
available to that other Person until the Administrative Agent has been
able to establish to its satisfaction that it has actually received
such sum, but if the Administrative Agent does so and it proves to be
the case that the Administrative Agent has not actually received the
sum it paid out, then the Person to whom such sum was so made available
shall on request refund the same to the Administrative Agent, together
with an amount sufficient to reimburse the Administrative Agent for any
amount it may have been required to pay out by way of interest on
moneys borrowed to fund the sum in question during the period beginning
on the due date for payment thereof and ending on the date on which it
receives the same.
6.3.6. NO OFFSET, ETC. All payments by the Borrowers hereunder
and under any of the other Loan Documents shall be made without setoff
or counterclaim and free and clear of and without deduction for any
taxes, levies, imposts, duties, charges, fees, deductions,
withholdings, compulsory loans, restrictions or conditions of any
nature now or hereafter imposed or levied by any jurisdiction or any
political subdivision thereof or taxing or other authority therein
unless any of the Borrowers is compelled by law to make such deduction
or withholding. If any such obligation is imposed upon a Borrower with
respect to any amount payable by it hereunder or under any of the other
Loan Documents, such Borrower will make such deduction or withholding,
will pay the full amount deducted or withheld to the applicable
authority, and will also pay to the Administrative Agent, for the
account of the Lenders or (as the case may be), the Issuing Bank, the
applicable Fronting Bank or Banks or the Administrative Agent, on the
date on which such amount is due and payable hereunder or under such
other Loan Document, such additional amount as shall be necessary to
enable the Lenders, the Issuing Bank, the applicable Fronting Bank or
Banks or the Administrative Agent (as the case may be) to receive the
same net amount in the same currency which the Lenders, the Issuing
Bank, the applicable Fronting Bank or Banks or the Administrative Agent
would have received on such due date had no such obligation been
imposed upon such Borrower. Each Borrower so affected will deliver,
within thirty (30) days of any such deduction or payment, to the
Administrative Agent certificates or other valid vouchers for all taxes
or other charges deducted from or paid with respect to payments made by
such Borrower hereunder or under such other Loan Document.
6.4. COMPUTATIONS. All computations of interest on Eurocurrency Rate
Loans shall, unless otherwise expressly provided herein, be based on a 360-day
year and paid for the actual number of days elapsed. All computations of
interest on
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Base Rate Loans, commitment fees, Letter of Credit Fees or other fees shall,
unless otherwise expressly provided herein, be based on a 365-day year and paid
for the actual number of days elapsed. Except as otherwise provided in the
definition of the term "Interest Period" with respect to Eurocurrency Rate
Loans, whenever a payment hereunder or under any of the other Loan Documents
becomes due on a day that is not a Business Day, the due date for such payment
shall be extended to the next succeeding Business Day, and interest shall accrue
during such extension. The outstanding amount of the Revolving Credit Loans as
reflected on the Revolving Credit Note Records from time to time shall be
considered correct and binding on TransTechnology unless within five (5)
Business Days after receipt of any notice by the Administrative Agent or any of
the Lenders of such outstanding amount, the Administrative Agent or such Lender
shall notify such Borrower to the contrary.
6.5. INABILITY TO DETERMINE EUROCURRENCY RATE. In the event, prior to
the commencement of any Interest Period relating to any Eurocurrency Rate Loan,
(a) the DM Fronting Bank shall determine, with respect to any DM Facility Loan
which is a Eurocurrency Rate Loan, (b) the Sterling Fronting Bank shall
determine with respect to any Sterling Facility Loan which is Eurocurrency Rate
Loan, or (c) the Administrative Agent shall determine or be notified by the
Majority Lenders, with respect to any other Loan which is a Eurocurrency Rate
Loan, that adequate and reasonable methods do not exist for ascertaining the
applicable Eurocurrency Rate that would otherwise determine the rate of interest
to be applicable to such Eurocurrency Rate Loan, the applicable Fronting Bank or
the Administrative Agent, as the case may be, shall forthwith give notice of
such determination (which shall be conclusive and binding on the Borrowers and
the Lenders) to the applicable Borrower(s) and (in the case of the
Administrative Agent) to the applicable Lender(s). In such event (i) any Loan
Request or Conversion Request with respect to Eurocurrency Rate Loans shall be
automatically withdrawn and, to the fullest extent practicable, shall be deemed
a request for Base Rate Loans, (ii) each Eurocurrency Rate Loan will
automatically, on the last day of the then current Interest Period relating
thereto, become a Base Rate Loan, and (iii) the obligations of the applicable
Lender(s) or, as the case may be, Fronting Bank(s) to make Eurocurrency Rate
Loans shall be suspended until the Administrative Agent or, as the case may be,
the applicable Fronting Bank(s), or the Majority Lenders determine that the
circumstances giving rise to such suspension no longer exist, whereupon the
Administrative Agent or, as the case may be, the Administrative Agent upon the
instruction of the Majority Lenders or the applicable Fronting Bank(s), shall so
notify the applicable Borrower(s) and (in the case of the Administrative Agent)
the applicable Lender(s).
6.6. ILLEGALITY. Notwithstanding any other provisions herein, if any
present or future law, regulation, treaty or directive or in the interpretation
or application thereof shall make it unlawful for any Lender or Fronting Bank to
make or maintain Eurocurrency Rate Loans, such Lender, if so affected, shall
forthwith give notice of such circumstances to TransTechnology, the
Administrative Agent and the other Lenders, and such Fronting Bank, if so
affected, shall forthwith give notice of such circumstances to the Borrowers and
the Administrative Agent. Thereupon (i) the commitment of such Lender or
Fronting Bank to make Eurocurrency Rate Loans
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or convert Loans of another Type to Eurocurrency Rate Loans shall forthwith be
suspended, and (ii) such Lender's or Fronting Bank's Loans then outstanding as
Eurocurrency Rate Loans, if any, shall be converted automatically to Base Rate
Loans on the last day of each Interest Period applicable to such Eurocurrency
Rate Loans or within such earlier period as may be required by law. The
Borrowers hereby jointly and severally agree promptly to pay the Administrative
Agent for the account of such Lender or Fronting Bank upon demand by such Lender
or Fronting Bank, any additional amounts necessary to compensate such Lender or
Fronting Bank for any costs incurred by such Lender or Fronting Bank in making
any conversion in accordance with this ss.6.6, including any interest or fees
payable by such Lender or Fronting Bank to lenders of funds obtained by it in
order to make or maintain its Eurocurrency Rate Loans hereunder.
6.7. ADDITIONAL COSTS, ETC. If any present or future applicable law,
which expression, as used herein, includes statutes, rules and regulations
thereunder and interpretations thereof by any competent court or by any
governmental or other regulatory body or official charged with the
administration or the interpretation thereof and requests, directives,
instructions and notices at any time or from time to time hereafter made upon or
otherwise issued to any Lender or the Administrative Agent by any central bank
or other fiscal, monetary or other authority (whether or not having the force of
law), shall:
(a) subject any Lender or Fronting Bank, the Issuing Bank, or
the Administrative Agent to any tax, levy, impost, duty, charge, fee,
deduction or withholding of any nature with respect to this Credit
Agreement, the other Loan Documents, any Letters of Credit, such
Lender's Commitment, the Loans or any payment of interest or fees
payable with respect to any Loans (other than taxes based upon or
measured by the income or profits of such Lender, Issuing Bank,
Fronting Bank or Administrative Agent, or bank franchise taxes), but
including any tax or withholding applicable to any payment to be made
by a Fronting Bank to the Administrative Agent pursuant to Section
6.3.2(a), or by any Lender to the Administrative Agent for the account
of a Fronting Bank pursuant to Section 6.12.2, or
(b) materially change the basis of taxation (except for
changes in taxes on income or profits or bank franchise taxes) of
payments to any Lender of the principal of or the interest on any Loans
or any other amounts payable to any Lender or the Administrative Agent
under this Credit Agreement or any of the other Loan Documents, or
(c) impose or increase or render applicable (other than to the
extent specifically provided for elsewhere in this Credit Agreement)
any special deposit, reserve, assessment, liquidity, capital adequacy
or other similar requirements (whether or not having the force of law)
against assets held by, or deposits in or for the account of, or loans
by, or letters of credit issued by, or commitments of any office of any
Lender (including any Fronting Bank or the Issuing Bank), and
including, without limitation, any MLA costs with
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respect to Sterling Facility Loans or indemnification obligations of
any Lender with respect thereto, or
(d) impose on any Lender (including any Fronting Bank or the
Issuing Bank) or the Administrative Agent any other conditions or
requirements with respect to this Credit Agreement, the other Loan
Documents, any Letters of Credit, the Loans, such Lender's Commitment,
or any class of loans, letters of credit or commitments of which any of
the Loans or such Lender's Commitment forms a part, and the result of
any of the foregoing is
(i) to increase the cost to any such Lender of
making, funding, issuing, renewing, extending or maintaining
any of the Loans or such Lender's Commitment or any Letter of
Credit, or
(ii) to reduce the amount of principal, interest,
Reimbursement Obligation or other amount payable to such
Lender or the Administrative Agent hereunder on account of
such Lender's Commitment, any Letter of Credit or any of the
Loans, or
(iii) to require such Lender or the Administrative
Agent to make any payment or to forego any interest or
Reimbursement Obligation or other sum payable hereunder, the
amount of which payment or foregone interest or Reimbursement
Obligation or other sum is calculated by reference to the
gross amount of any sum receivable or deemed received by such
Lender or the Administrative Agent from the Borrowers
hereunder,
then, and in each such case, within fifteen (15) days after demand made by such
Lender or Fronting Bank or (as the case may be) the Administrative Agent or the
Issuing Bank at any time and from time to time and as often as the occasion
therefor may arise, the Borrowers will (but, in the case of GmbH, subject to
Section 30 of the GmbH Act of Germany) jointly and severally pay to such Lender,
Fronting Bank, Administrative Agent or Issuing Bank such additional amounts as
will be sufficient to compensate such Lender, Fronting Bank, Administrative
Agent or Issuing Bank, as the case may be, for such additional cost, reduction,
payment or foregone interest or Reimbursement Obligation or other sum.
6.8. CAPITAL ADEQUACY. If after the date hereof any Lender (including
any Fronting Bank and the Issuing Bank) or the Administrative Agent determines
that (i) the adoption of or change in any law, governmental rule, regulation,
policy, guideline or directive (whether or not having the force of law)
regarding capital requirements for Lenders or Lender holding companies or any
change in the interpretation or application thereof by a court or governmental
authority with appropriate jurisdiction, or (ii) compliance by such Lender or
the Administrative Agent or any corporation controlling such Lender, or the
Administrative Agent with any law, governmental rule, regulation, policy,
guideline or directive (whether or not having the force of law) of any such
entity regarding capital adequacy, has the effect
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of reducing the return on such Lender's, or the Administrative Agent's
commitment with respect to any Loans or Letters of Credit to a level below that
which such Lender or the Administrative Agent could have achieved but for such
adoption, change or compliance (taking into consideration such Lender's or the
Administrative Agent's then existing policies with respect to capital adequacy
and assuming full utilization of such entity's capital) by any amount deemed by
such Lender or (as the case may be) the Administrative Agent to be material,
then such Lender or the Administrative Agent may notify the Borrowers of such
fact. To the extent that the amount of such reduction in the return on capital
is not reflected in the Base Rate, TransTechnology agrees to pay such Lender or
(as the case may be) the Administrative Agent for the amount of such reduction
in the return on capital as and when such reduction is determined upon
presentation by such Lender or (as the case may be) the Administrative Agent of
a certificate in accordance with ss.6.9 hereof. Each Lender and the
Administrative Agent shall allocate such cost increases among its customers in
good faith and on an equitable basis.
6.9. CERTIFICATE. A certificate setting forth any additional amounts
payable pursuant to Sections 6.7 or 6.8 and a brief explanation of such amounts
which are due, submitted by any Lender (including any Fronting Bank and the
Issuing Bank) or the Administrative Agent to the Borrowers, shall be conclusive,
absent manifest error, that such amounts are due and owing.
6.10. INDEMNITY. The Borrowers jointly and severally (but, in the case
of GmbH, subject to Section 30 of the GmbH Act of Germany) agree to indemnify
each Lender and to hold each Lender harmless from and against any loss, cost or
expense (including loss of anticipated profits) that such Lender may sustain or
incur as a consequence of (i) default by any of the Borrowers in payment of the
principal amount of or any interest on any Eurocurrency Rate Loans as and when
due and payable, including any such loss or expense arising from interest or
fees payable by such Lender to lenders of funds obtained by it in order to
maintain its Eurocurrency Rate Loans, (ii) default by any of the Borrowers in
making a borrowing or conversion after such Borrower has given (or is deemed to
have given) a Loan Request, notice or a Conversion Request relating thereto, or
(iii) the making of any payment of a Eurocurrency Rate Loan or the making of any
conversion of any such Loan to a Base Rate Loan on a day that is not the last
day of the applicable Interest Period with respect thereto, including interest
or fees payable by such Lender to lenders of funds obtained by it in order to
maintain any such Loans.
6.11. INTEREST AFTER DEFAULT.
6.11.1. OVERDUE AMOUNTS. Overdue principal and (to the extent
permitted by applicable law) interest on the Loans and all other
overdue amounts payable hereunder or under any of the other Loan
Documents shall bear interest compounded monthly and payable on demand
at a rate per annum equal to the sum of (i) two percent (2%) per annum,
PLUS (ii) the Applicable Margin with respect to Eurocurrency Rate Loans
PLUS (iii) the Base Rate, until such amount shall be paid in full
(after as well as before judgment).
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6.11.2. AMOUNTS NOT OVERDUE. During the continuance of a
Default or an Event of Default, the principal of the Revolving Credit
Loans, the Term Loan and the International Facility Loans not overdue
shall, until such Default or Event of Default has been cured or
remedied or such Default or Event of Default has been waived by the
Majority Lenders pursuant to Section 27, bear interest at a rate per
annum equal to the greater of (i) two percent (2%) above the rate of
interest otherwise applicable to such Loans pursuant to Section 2.5 or
Section 3.5, and (ii) the rate of interest applicable to overdue
principal pursuant to Section 6.11.1.
6.12. FRONTING BANK PROVISIONS.
6.12.1. FRONTING FEE. The Borrowers jointly and severally
agree to pay to the Fronting Banks for the account of the Fronting
Banks a fronting fee calculated at the rate of one-quarter of one
percent (1/4%) per annum on the average principal amount of Fronted
Loans outstanding (including amounts requested) during each calendar
quarter or portion thereof from the Closing Date to the Revolving
Credit Loan Maturity Date. The fronting fee shall be payable quarterly
in arrears on the first day of each calendar quarter with respect to
the immediately preceding calendar quarter, commencing on the first
such date following the date hereof, with a final payment on the
Revolving Credit Loan Maturity Date or any earlier date on which a
Fronting Bank's commitment to make Fronted Loans shall terminate.
6.12.2. INDEMNITIES. Each of the Lenders severally undertakes
to keep the Fronting Banks indemnified as follows:
(a) Each Lender irrevocably and unconditionally undertakes to
pay to the Administrative Agent for the account of each Fronting Bank,
on demand made by such Fronting Bank through the Administrative Agent:
(i) such Lender's Commitment Percentage of each
amount which is expressed to be payable by any of the
Borrowers to or for the account of such Fronting Bank by way
of the payment, repayment or prepayment of any International
Facility Loan and which the applicable Borrower fails to pay
together with interest which has accrued with respect thereto,
and
(ii) such additional amount as shall be necessary to
reimburse such Fronting Bank for its cost of funding the
amount payable by such Lender as mentioned in sub-clause (i)
above during the period beginning on the date the amount was
due from the applicable Borrower and ending on the date demand
is made on such Lender for payment of the same,
and agrees that neither the Fronting Banks nor the Administrative Agent
shall be obliged to make any demand on or take any proceedings against
any
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of the Borrowers or any other person before making demand on such
Lender hereunder.
(b) Each Lender irrevocably and unconditionally undertakes to
pay to the Administrative Agent for the account of each Fronting Bank
on demand made by such Fronting Bank through the Administrative Agent
at any time after an Event of Default has occurred and is continuing
and has not been waived, its Commitment Percentage of the Dollar
Equivalent on the date of such payment of any outstanding International
Facility Loan made by such Fronting Bank, and any such payment shall be
in satisfaction pro tanto of the undertakings of such Lender contained
in clause (a) above.
(c) If a Lender fails to make payment on the due date therefor
of any amount due from it for the account of a Fronting Bank pursuant
to clauses (a) or (b) above (a "RELEVANT AMOUNT") then (i) such Lender
shall be deemed to be Delinquent Lender pursuant to Section 16.5.3, and
(ii) until such Fronting Bank has received payment of the relevant
amount in full (and without prejudice to any other rights or remedies
of the Administrative Agent or such Fronting Bank in respect of such
failure) such Fronting Bank shall be entitled to receive any interest
which such Delinquent Lender would otherwise have been entitled to
receive in respect of the Loan in respect of which the relevant amount
is payable and (iii) such Delinquent Lender shall have no right to vote
as a Lender hereunder or under any of the other Loan Documents, and,
for so long as such Lender remains a Delinquent Lender under this
Section 6.12.2, the determination of the Majority Lenders shall for all
purposes of this Credit Agreement and the other Loan Documents be made
without regard to the interest of such Delinquent Lender in the Loans
to the extent of such participation.
(d) The Borrowers jointly and severally, irrevocably and
unconditionally (but, in the case of GmbH, subject to Section 30 of the
GmbH Act of Germany), undertake (i) to reimburse to each Lender any
amount paid by such Lender pursuant to this Section 6.12.2, and such
amount shall be immediately due from the Borrowers to such Lender on
the day such amount is paid by such Lender to the Administrative Agent,
and shall accrue interest from such date until the date of payment in
full of such amount (including all accrued and unpaid interest thereon)
at the rate of interest applicable to overdue principal pursuant to
Section 6.11.1, and (ii) to indemnify and hold each Lender harmless
against all actions, proceedings, liabilities, claims, demands, costs
and expenses of whatsoever nature and howsoever occurring which such
Lender may properly incur, suffer or sustain by reason of its payment
of such amount, including without limitation any losses (in Dollars)
arising from fluctuations in currency rates between the date of any
payment to the Administrative Agent by such Lender pursuant to clauses
(a) or (b) above, and the date of such Lender's receipt of payment
pursuant to this clause (d).
6.12.3. RESIGNATION OF FRONTING BANK. The DM Fronting Bank or
the Sterling Fronting Bank may resign at any time by giving sixty (60)
days
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prior written notice thereof to the Lenders and TransTechnology. Upon
any such resignation, the Majority Lenders shall have the right to
appoint a successor DM Fronting Bank or Sterling Fronting Bank, as the
case may be. Unless a Default or Event of Default shall have occurred
and be continuing, such successor Fronting Bank shall be reasonably
acceptable to TransTechnology. If no successor Fronting Bank shall have
been so appointed by the Majority Lenders and shall have accepted such
appointment within thirty (30) days after the retiring Fronting Bank's
giving of notice of resignation, then the retiring Fronting Bank may,
on behalf of the Banks, appoint a successor Fronting Bank, which shall
be a financial institution having a rating of not less than A or its
equivalent by Standard & Poor's Ratings Group, and having either the
ability to fund DM Loans from a lending office located in Germany, if
the retiring Fronting Bank is the DM Fronting Bank, or the ability to
fund Sterling Loans from a lending office located in England, if the
retiring Fronting Bank is the Sterling Fronting Bank. Upon the
acceptance of any appointment as a Fronting Bank hereunder by a
successor Fronting Bank, such successor Fronting Bank shall thereupon
succeed to and become vested with all the rights, powers, privileges,
duties and obligations of the retiring Fronting Bank, and the retiring
Fronting Bank shall be discharged from its duties and obligations
hereunder. After any retiring Fronting Bank's resignation, the
provisions of this Credit Agreement and the other Loan Documents shall
continue in effect for its benefit in respect of any actions taken or
omitted to be taken by it while it was acting as a Fronting Bank.
6.12.4. NOTICE TO LENDERS.
The Administrative Agent will notify each of the Lenders as
to such Lender's balance of all Fronted Loans outstanding at least once
each month, and, upon a Lender's reasonable request, at any other time.
6.13. LIMITS ON NUMBER OF SEPARATE EUROCURRENCY RATE LOANS. No more
than ten (10) separate Eurocurrency Rate Loans (whether outstanding with respect
to the Revolving Credit Loans, the Term Loan or International Facility Loans)
may be outstanding under this Credit Agreement at any one time. Notwithstanding
the foregoing, during the period commencing on the Closing Date and ending on
the date which is the earlier of (i) sixty (60) days after the Closing Date and
(ii) the date on which the Administrative Agent notifies TransTechnology in
writing that syndication of the Loans hereunder has been completed, there shall
be no more than three (3) Eurocurrency Rate Loans in effect, the Interest
Periods of which shall be no longer than one (1) month, and each of which shall
terminate no later than the sixtieth (60th) day after the Closing Date.
7. COLLATERAL SECURITY AND GUARANTIES.
7.1. SECURITY OF BORROWERS. Subject to Sections 7.3 and 7.4, all of the
Obligations shall be secured by a perfected first priority security interest
(subject only to Permitted Liens entitled to priority under applicable law) in
all of the assets of TransTechnology, whether now owned or hereafter acquired,
pursuant to the
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terms of the Security Documents to which TransTechnology is a party. The
Obligations of GmbH shall be secured by a security interest (subject only to
Permitted Liens entitled to priority under applicable law) in all of the assets
of GmbH and SO OHG, whether now owned or hereafter acquired, pursuant to the
terms of the German Security Documents. The Obligations of Limited shall be
secured by a first priority fixed and floating charge over all of the assets of
Limited, whether now owned or hereafter acquired, pursuant to the terms of the
Debenture.
7.2. GUARANTIES AND SECURITY OF SUBSIDIARIES. Each of the Domestic
Subsidiaries shall guarantee the payment and performance of the Obligations
pursuant to the terms of the Guaranties or of guaranties in similar form to the
Subsidiary Guaranty. The obligations of each of the Guarantors shall be in turn
secured by a perfected first priority security interest (subject only to
Permitted Liens entitled to priority under applicable law) in all of the assets
of each such Guarantor, whether now owned or hereafter acquired, pursuant to the
terms of the Security Documents to which each such Guarantor is a party.
7.3. PLEDGES OF STOCK. Notwithstanding anything to the contrary
contained herein or in any of the other Loan Documents, including without
limitation the German Pledge Agreement and the Charges Over Shares, to the
extent that any pledge, lien, security interest, charge, mortgage or other
encumbrance over any shares of a Foreign Subsidiary granted by TransTechnology
or any of its Domestic Subsidiaries extends or purports to extend to any shares
in excess of 65% of the aggregate issued and outstanding shares of capital stock
of such Foreign Subsidiary, neither the Administrative Agent nor any of the
Lenders shall exercise any rights it may have or purport to have with respect to
such excess shares. Notwithstanding anything to the contrary contained herein or
in any of the other Loan Documents, in the event that TransTechnology or any of
the Domestic Subsidiaries delivers to the Administrative Agent or, as the case
may be, a Fronting Bank acting on behalf of the Administrative Agent,
certificates or other instruments representing greater than 65% of the aggregate
issued and outstanding shares of capital stock of such Foreign Subsidiary, the
shares in excess of 65% of such Foreign Subsidiary's capital stock shall not be
subject to any pledge, lien, security interest, charge, mortgage or other
encumbrance under this Agreement or any of the other Loan Documents but shall be
held in the custody of the Administrative Agent or such Fronting Bank for and on
behalf of TransTechnology or such Domestic Subsidiary, as applicable, until such
time as TransTechnology or such Domestic Subsidiary shall have delivered to the
Administrative Agent certificates or other instruments representing 65% of the
aggregate issued and outstanding shares of capital stock of such Foreign
Subsidiary, at which time the Administrative Agent or such Fronting Bank shall
release the original certificates or other instruments delivered to it to
TransTechnology or the applicable Domestic Subsidiary.
7.4. GUARANTEES AND PLEDGES OF ASSETS OF FOREIGN SUBSIDIARIES.
Not-withstanding anything to the contrary contained herein or in any of the
other Loan Documents, no guarantee entered into by any Foreign Subsidiary,
including without limitation either of the English Guarantees, shall be
construed in any way as a guarantee of, and no pledge, lien, security interest,
charge, mortgage or other
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encumbrance over any assets of a Foreign Subsidiary shall be construed in any
way to secure, any obligation of TransTechnology or any of its Domestic
Subsidiaries.
8. REPRESENTATIONS AND WARRANTIES.
The Borrowers jointly and severally represent and warrant to the
Lenders and the Administrative Agent, at the Closing Date and on each
Acquisition Closing Date after giving effect to the Approved Acquisition
occurring thereon, as follows:
8.1. CORPORATE AUTHORITY.
8.1.1. INCORPORATION; GOOD STANDING. Each of the Borrowers and
its respective Subsidiaries (i) is a corporation duly organized,
validly existing and in good standing under the laws of its place of
incorporation, (ii) has all requisite corporate power to own its
property and conduct its business as now conducted and as presently
contemplated, and (iii) is in good standing as a foreign corporation
and is duly authorized to do business in each jurisdiction where such
qualification is necessary except where a failure to be so qualified
would not have a materially adverse effect on the business, assets or
financial condition of such Borrower or Subsidiary.
8.1.2. AUTHORIZATION. The execution, delivery and performance
of this Credit Agreement and the other Loan Documents to which the
Borrowers or any of their Subsidiaries are or are to become a party and
the transactions contemplated hereby and thereby (i) are within the
corporate authority of such Person, (ii) have been duly authorized by
all necessary corporate proceedings, (iii) do not conflict with or
result in any breach or contravention of any provision of law, statute,
rule or regulation to which any of the Borrowers or their Subsidiaries,
or any of the assets of any of the Borrowers or their Subsidiaries, are
subject or any judgment, order, writ, injunction, license or permit
applicable to any of the Borrowers or their Subsidiaries and (iv) do
not conflict with any provision of the corporate charter, bylaws or
memorandum and articles of association of, or any agreement or other
instrument binding upon, any of the Borrowers or their Subsidiaries.
8.1.3. ENFORCEABILITY. The execution and delivery of this
Credit Agreement and the other Loan Documents to which the Borrowers or
any of their Subsidiaries are or are to become a party will result in
valid and legally binding obligations of such Person enforceable
against it in accordance with the respective terms and provisions
hereof and thereof, except as enforceability is limited by bankruptcy,
insolvency, reorganization, moratorium or other laws relating to or
affecting generally the enforcement of creditors' rights and except to
the extent that availability of the remedy of specific performance or
injunctive relief is subject to the discretion of the court before
which any proceeding therefor may be brought.
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8.2. GOVERNMENTAL APPROVALS. Except as set forth on SCHEDULE 8.2
hereto, the execution, delivery and performance by each of the Borrowers and
their respective Subsidiaries of this Credit Agreement, the other Loan Documents
and the Acquisition Documents to which any of the Borrowers or any of their
Subsidiaries are or are to become a party and the transactions contemplated
hereby and thereby do not require the approval or consent of, or filing with,
any governmental agency or authority other than those already obtained.
8.3 TITLE TO PROPERTIES; LEASES. Except as indicated on SCHEDULE 8.3
hereto, (a) TransTechnology and its respective Subsidiaries own all of the
assets reflected in the consolidated balance sheet of TransTechnology and its
Subsidiaries as at the Balance Sheet Date or acquired since that date (except
property and assets sold or otherwise disposed of in the ordinary course of
business since that date) subject to no rights of others, including any
mortgages, leases, conditional sales agreements, title retention agreements,
liens or other encumbrances except Permitted Liens, and (b) all of
TransTechnology's and its respective Subsidiaries' assets are reflected in the
consolidated balance sheet as at the Balance Sheet Date described in Section
8.4.1.
8.4. FINANCIAL STATEMENTS AND PROJECTIONS.
8.4.1. FINANCIAL STATEMENTS. There has been furnished to each
of the Lenders a consolidated balance sheet of TransTechnology and its
Subsidiaries as at the Balance Sheet Date, and a consolidated statement
of income of TransTechnology and its Subsidiaries for the fiscal year
then ended, certified by Deloitte & Touche LLP. Such balance sheet and
statement of income have been prepared in accordance with generally
accepted accounting principles and fairly present the financial
condition of TransTechnology as at the close of business on the date
thereof and the results of operations for the fiscal year then ended.
There are no contingent liabilities of TransTechnology or any of its
Subsidiaries as of such date involving material amounts, known to the
officers of TransTechnology, which were not disclosed in such balance
sheet and the notes related thereto.
8.4.2. PROJECTIONS. There has been furnished to each of the
Lenders projections (dated July 23, 1999) of the annual operating
budgets of TransTechnology and its Subsidiaries on a consolidated
basis, balance sheets and cash flow statements for the 2000 to 2004
fiscal years (the "PROJECTIONS"), which fairly disclose all assumptions
made with respect to general economic, financial and market conditions
used in their formulation. To the knowledge of TransTechnology, no
facts exist that (individually or in the aggregate) would result in any
material change in any of the Projections. The Projections are based
upon reasonable estimates and assumptions, have been prepared on the
basis of the assumptions stated therein and reflect the reasonable
estimates of TransTechnology of the results of operations and other
information projected therein.
8.5. NO MATERIAL CHANGES, ETC.
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(a) Since the Balance Sheet Date there has occurred no materially
adverse change in the financial condition or business of TransTechnology or any
of its Subsidiaries or any material assets of TransTechnology or any of its
Subsidiaries as shown on or reflected in the consolidated balance sheet of
TransTechnology and its Subsidiaries as at the Balance Sheet Date, or the
consolidated statement of income for the fiscal year then ended, other than
changes in the ordinary course of business that have not had any materially
adverse effect either individually or in the aggregate on the business or
financial condition of TransTechnology or any of its Subsidiaries or any
material assets of TransTechnology or any of its Subsidiaries.
(b) Each of the Borrowers and each of their Subsidiaries (before and
after giving effect to the transactions contemplated by this Credit Agreement
and the other Loan Documents) (i) is solvent, (ii) has assets having a fair
value in excess of its liabilities, (iii) has assets having a fair value in
excess of the amount required to pay its liabilities on existing debts as such
debts become absolute and matured, and (iv) has, and expects to continue to
have, access to adequate capital for the conduct of its business and the ability
to pay its debts from time to time incurred in connection with the operation of
its business as such debts mature.
8.6. FRANCHISES, PATENTS, COPYRIGHTS, ETC. Each of the Borrowers and
each of their Subsidiaries possesses all franchises, patents, copyrights,
trademarks, trade names, licenses and permits, and rights in respect of the
foregoing, adequate for the conduct of its business substantially as now
conducted without known conflict with any rights of others.
8.7. LITIGATION. Except as set forth in SCHEDULE 8.7 hereto, there are
no actions, suits, proceedings or investigations of any kind pending or
threatened against any of the Borrowers or their Subsidiaries before any court,
tribunal or administrative agency or board that, if adversely determined, might,
either in any case or in the aggregate, materially adversely affect the
properties, assets, financial condition or business of any of the Borrowers or
their Subsidiaries or materially impair the right of any of the Borrowers or
their Subsidiaries to carry on business substantially as now conducted by them,
or result in any substantial liability not adequately covered by insurance, or
for which adequate reserves are not maintained on the consolidated balance sheet
of the Borrowers and their Subsidiaries, or which question the validity of this
Credit Agreement or any of the other Loan Documents, or any action taken or to
be taken pursuant hereto or thereto.
8.8. NO MATERIALLY ADVERSE CONTRACTS, ETC. None of the Borrowers nor
any of their Subsidiaries is subject to any charter, corporate or other legal
restriction, or any judgment, decree, order, rule or regulation that has or is
expected in the future to have a materially adverse effect on the business,
assets or financial condition of any of the Borrowers or their Subsidiaries.
None of the Borrowers nor any of their Subsidiaries is a party to any contract
or agreement that is in default or has or is expected, in the judgment of the
Borrowers' officers, to have any materially adverse effect on the business of
any of the Borrowers or their Subsidiaries.
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8.9. COMPLIANCE WITH OTHER INSTRUMENTS, LAWS, ETC. None of the
Borrowers nor any of their Subsidiaries is in violation of any provision of its
charter documents, bylaws, or any agreement or instrument to which it may be
subject or by which it or any of its properties may be bound or any decree,
order, judgment, act, statute, license, rule, regulation or other law, in any of
the foregoing cases in a manner that could result in the imposition of
substantial penalties or materially and adversely affect the financial
condition, properties or business of any of the Borrowers or their Subsidiaries.
8.10. TAX STATUS. Except as disclosed on SCHEDULE 8.10 hereto, each of
the Borrowers and its Subsidiaries (i) has made or filed all federal and state
income and all other tax returns, reports and declarations required by any
jurisdiction to which any of them is subject, (ii) has paid all taxes and other
governmental assessments and charges shown or determined to be due on such
returns, reports and declarations, except those being contested in good faith
and by appropriate proceedings and (iii) has set aside on its books provisions
reasonably adequate for the payment of all taxes for periods subsequent to the
periods to which such returns, reports or declarations apply. There are no
unpaid taxes in any material amount claimed to be due by the taxing authority of
any jurisdiction, and the officers of the Borrowers know of no basis for any
such claim.
8.11. NO EVENT OF DEFAULT. No Default or Event of Default has occurred
and is continuing.
8.12. HOLDING COMPANY AND INVESTMENT COMPANY ACTS. None of the
Borrowers nor any of their Subsidiaries is a "holding company", or a "subsidiary
company" of a "holding company", or an "affiliate" of a "holding company", as
such terms are defined in the Public Utility Holding Company Act of 1935; nor
are any of the Borrowers or their Subsidiaries an "investment company", or an
"affiliated company" or a "principal underwriter" of an "investment company", as
such terms are defined in the Investment Company Act of 1940.
8.13. ABSENCE OF FINANCING STATEMENTS, ETC. There is no financing
statement, security agreement, chattel mortgage, real estate mortgage, lease or
other document filed or recorded with any filing records, registry or other
public office, or otherwise, that purports to cover, affect or give notice of
any present or possible future lien on, or security interest in, any assets or
property of any of the Borrowers or their Subsidiaries or any rights relating
thereto, except with respect to Permitted Liens.
8.14. PERFECTION OF SECURITY INTEREST. All filings, assignments,
pledges and deposits of documents or instruments have been made and all other
actions have been taken that are necessary or advisable, under applicable law,
to establish and perfect the Administrative Agent's security interests in and
charges over the Collateral. The Collateral and the Administrative Agent's
rights with respect to the Collateral are not subject to any material setoff,
claims, withholdings or other defenses. The Borrowers or their Subsidiaries, as
specified in the Security
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Documents, are the owners of the Collateral free from any lien, security
interest, encumbrance and any other claim or demand, except for Permitted Liens.
8.15. CERTAIN TRANSACTIONS. Except for arm's length transactions
pursuant to which any of the Borrowers or their Subsidiaries or any officer,
director or employee of such Borrower or Subsidiary makes payments in the
ordinary course of business upon terms no less favorable than such Borrowers,
Subsidiaries, officers, directors or employees could obtain from third parties,
none of the officers, directors, or employees of any of the Borrowers or their
Subsidiaries is presently a party to any transaction with any of the Borrowers
or their Subsidiaries (other than for services as employees, officers and
directors), including any contract, agreement or other arrangement providing for
the furnishing of services to or by, providing for rental of real or personal
property to or from, or otherwise requiring payments to or from any officer,
director or such employee or, to the knowledge of any Borrower, any corporation,
partnership, trust or other entity in which any officer, director, or any such
employee has a substantial interest or is an officer, director, trustee or
partner.
8.16. EMPLOYEE BENEFIT PLANS.
8.16.1. IN GENERAL. Each Employee Benefit Plan has been
maintained and operated in compliance in all material respects with the
provisions of ERISA and, to the extent applicable, the Code, including
but not limited to the provisions thereunder respecting prohibited
transactions. TransTechnology has heretofore delivered to the
Administrative Agent the most recently completed annual report, Form
5500, with all required attachments, and actuarial statement required
to be submitted under ss.103(d) of ERISA, with respect to each
Guaranteed Pension Plan.
8.16.2. TERMINABILITY OF WELFARE PLANS. Under each Employee
Benefit Plan which is an employee welfare benefit plan within the
meaning of Section 3(1) or Section 3(2)(B) of ERISA, no benefits are
due unless the event giving rise to the benefit entitlement occurs
prior to plan termination (except as required by Title I, Part 6 of
ERISA, or as provided in the Tinnerman Acquisition Agreement). Except
as provided in the Tinnerman Acquisition Agreement, TransTechnology or
an ERISA Affiliate, as appropriate, may terminate each such Plan at any
time (or at any time subsequent to the expiration of any applicable
bargaining agreement) in the discretion of TransTechnology or such
ERISA Affiliate without liability to any Person.
8.16.3. GUARANTEED PENSION PLANS. Each contribution required
to be made to a Guaranteed Pension Plan, whether required to be made to
avoid the incurrence of an accumulated funding deficiency, the notice
or lien provisions of Section 302(f) of ERISA, or otherwise, has been
timely made. No waiver of an accumulated funding deficiency or
extension of amortization periods has been received with respect to any
Guaranteed Pension Plan. No liability to the PBGC (other than required
insurance premiums, all of which have been paid) has been incurred by
TransTechnology or any ERISA
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Affiliate with respect to any Guaranteed Pension Plan and there has not
been any ERISA Reportable Event, or any other event or condition which
presents a material risk of termination of any Guaranteed Pension Plan
by the PBGC. Except with respect to the Guaranteed Pension Plan to be
established by TransTechnology as described in, and to the extent
provided in, the Tinnerman Acquisition Agreement, based on the latest
valuation of each Guaranteed Pension Plan (which in each case occurred
within twelve months of the date of this representation), and on the
actuarial methods and assumptions employed for that valuation, the
aggregate benefit liabilities of all such Guaranteed Pension Plans
within the meaning of Section 4001 of ERISA did not exceed the
aggregate value of the assets of all such Guaranteed Pension Plans,
disregarding for this purpose the benefit liabilities and assets of any
Guaranteed Pension Plan with assets in excess of benefit liabilities.
8.16.4. MULTIEMPLOYER PLANS. Other than (a) the Electronics
Local 431 Pension Fund relating to employees of Xxxxxx Inc., a
Subsidiary of TransTechnology, and (b) the Western Pennsylvania
Teamster and Employers Pension Fund relating to employees of
TransTechnology's Breeze-Industrial division, neither TransTechnology
nor any ERISA Affiliate is a member of any Multiemployer Plan. Neither
TransTechnology nor any ERISA Affiliate has incurred any material
liability (including secondary liability) to any Multiemployer Plan as
a result of a complete or partial withdrawal from such Multiemployer
Plan under Section 4201 of ERISA or as a result of a sale of assets
described in Section 4204 of ERISA. Neither TransTechnology nor any
ERISA Affiliate has been notified that any Multiemployer Plan is in
reorganization or insolvent under and within the meaning of Section
4241 or Section 4245 of ERISA or that any Multiemployer Plan intends to
terminate or has been terminated under Section 4041A of ERISA.
8.16.5. COMPLIANCE WITH EMPLOYMENT BENEFIT LAWS. Except as set
forth in SCHEDULE 8.16.5 hereto, none of the Borrowers nor any of their
Subsidiaries is in violation of any material provision of any
applicable pension, retirement funding or employee benefit legislation
in any jurisdiction.
8.17. USE OF PROCEEDS. The proceeds of the Loans shall be used to
refinance certain Indebtedness of the Borrowers under the Prior Credit
Agreement, to finance Approved Acquisitions and for working capital and general
corporate purposes of the Borrowers. TransTechnology will obtain Letters of
Credit solely for working capital and general corporate purposes. No portion of
any Loan is to be used, and no portion of any Letter of Credit is to be
obtained, for the purpose of purchasing or carrying any "margin security" or
"margin stock" as such terms are used in Regulations U and X of the Board of
Governors of the Federal Reserve System, 12 C.F.R. Parts 221 and 224. No portion
of the proceeds of any Loans is to be used, and no portion of any Letter of
Credit is to be obtained, for the purpose of (a) knowingly purchasing, or
providing credit support for the purchase of, Ineligible Securities from a
Section 20 Subsidiary during any period in which such Section 20 Subsidiary
makes a market in such Ineligible Securities, (b) knowingly purchasing,
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or providing credit support for the purchase of, during the underwriting or
placement period, any Ineligible Securities being underwritten or privately
placed by a Section 20 Subsidiary, or (c) making, or providing credit support
for the making of, payments of principal or interest on Ineligible Securities
underwritten or privately placed by a Section 20 Subsidiary and issued by or for
the benefit of the Borrowers or any Subsidiary or other Affiliate of any of the
Borrowers.
8.18. ENVIRONMENTAL COMPLIANCE. Each of the Borrowers and their
Subsidiaries has taken all necessary steps to investigate the past and present
condition and usage of the Real Estate and the operations conducted thereon and,
based upon such diligent investigation, has determined that, except as set forth
on SCHEDULE 8.18 attached hereto:
(a) none of the Borrowers, their Subsidiaries or any operator
of the Real Estate or any operations thereon is in violation, or
alleged violation, of any judgment, decree, order, law, license, rule
or regulation pertaining to environmental matters, including without
limitation, those arising under the Resource Conservation and Recovery
Act ("RCRA"), the Comprehensive Environmental Response, Compensation
and Liability Act of 1980 as amended ("CERCLA"), the Superfund
Amendments and Reauthorization Act of 1986 ("XXXX"), the Federal Clean
Water Act, the Federal Clean Air Act, the Toxic Substances Control Act,
or any European Union, national, federal, state or local statute,
regulation, ordinance, order or decree relating to health, safety or
the environment (hereinafter "Environmental Laws"), which violation
would have a material adverse effect or the business, assets or
financial condition of any of the Borrowers or their Subsidiaries or
the consummation of the transactions referred to in this Agreement;
(b) the Borrowers and their Subsidiaries have conducted all
business operations on the Real Estate and continue to operate and
maintain their businesses in compliance in all material respects with
all applicable Environmental Laws and any other European Union,
national, federal, state and local laws, rules and regulation relating
to air emissions, water discharge, noise emissions, solid, or liquid
waste disposal, hazardous waste, or materials, or other environmental,
health or safety matters and there are no outstanding citations,
notices, or order of non-compliance issued to any of the Borrowers or
their Subsidiaries, or relating to the respective businesses, assets,
Real Estate, other property, leaseholds, or equipment of any of the
Borrowers or their Subsidiaries under any such laws, rules or
regulations; and
(c) None of the Borrowers and their Subsidiaries, any
Mortgaged Property and any of the other Real Estate is subject to any
applicable environmental law requiring the performance of Hazardous
Substances site assessments, or the removal or remediation of Hazardous
Substances, or the giving of notice to any governmental agency or the
recording or delivery to other Persons of an environmental disclosure
document or statement by virtue of the transactions set forth herein
and contemplated hereby, or as a
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condition to the recording of any Mortgage or to the effectiveness of
any other transactions contemplated hereby.
8.19. SUBSIDIARIES, ETC. A complete and correct list of the
Subsidiaries of each of the Borrowers and the jurisdictions of their
incorporation as of the Closing Date is set forth on SCHEDULE 8.19 hereto.
Except as set forth on SCHEDULE 8.19 hereto, none of the Borrowers nor any of
their Subsidiaries is engaged in any joint venture or partnership with any other
Person.
8.20. BANK ACCOUNTS. SCHEDULE 8.20 sets forth the account numbers and
location of all bank accounts of each of the Borrowers and their Subsidiaries.
8.21. YEAR 2000 COMPLIANCE. The Borrowers and their Subsidiaries have
undertaken a review, the extent of which the Borrowers believe to be
commercially reasonable, of their critical business and operational systems
which could be adversely affected by, and have developed a program to address on
a timely basis, the "Year 2000 Problem" (i.e., the risk that computer
applications used by the Borrowers or any of their Subsidiaries may be unable to
recognize and perform properly date-sensitive functions involving certain dates
prior to and any date after December 31, 1999). Based upon such review and the
implementation of such program, the Borrowers reasonably believe that the "Year
2000 Problem" will not have any materially adverse effect on the business or
financial condition of the Borrowers or any of their Subsidiaries.
9. AFFIRMATIVE COVENANTS OF THE BORROWERS.
Each of the Borrowers covenants and agrees that, so long as any Loan,
Unpaid Reimbursement Obligation, Letter of Credit or Note is outstanding or any
Lender has any obligation to make any Loans or the Issuing Bank has any
obligation to issue, extend or renew any Letters of Credit:
9.1. PUNCTUAL PAYMENT. Each of the Borrowers will duly and punctually
pay or cause to be paid the principal and interest on the Loans, all
Reimbursement Obligations, the Letter of Credit Fees, the commitment fees, the
Administrative Agent's fee, the fronting fee and all other amounts provided for
in this Credit Agreement and the other Loan Documents to which any of the
Borrowers or their Subsidiaries is a party, all in accordance with the terms of
this Credit Agreement and such other Loan Documents.
9.2. MAINTENANCE OF OFFICES.
(a) TransTechnology and each of its Domestic Subsidiaries (other than
TransTechnology Canada) will maintain its chief executive office in Liberty
Corner, New Jersey, or at such other place in the United States of America as
TransTechnology shall designate upon written notice to the Administrative Agent,
where notices, presentations and demands to or upon TransTechnology or such
Subsidiary in respect of the Loan Documents to which TransTechnology or such
Subsidiary is a party may be given or made.
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(b) GmbH will maintain its chief executive office in Konigstein,
Germany, or at such other place in Germany as GmbH shall designate upon written
notice to the Administrative Agent and the DM Fronting Bank, where notices,
presentations and demands to or upon GmbH in respect of the Loan Documents to
which GmbH is a party may be given or made.
(c) Limited will maintain its registered office either in Bingley or
Keighley, Yorkshire, England, or at such other place in England as Limited shall
designate upon written notice to the Administrative Agent and the Sterling
Fronting Bank, where notices, presentations and demands to or upon Limited in
respect of the Loan Documents to which Limited is a party may be given or made.
(d) TransTechnology Canada will maintain its chief executive office in
Hamilton, Ontario, or at such other place in Canada as TransTechnology Canada
shall designate upon written notice to the Administrative Agent, where notices,
presentations and demands to or upon TransTechnology Canada in respect of the
Loan Documents to which TransTechnology Canada is a party may be made or given.
9.3. RECORDS AND ACCOUNTS. Each of the Borrowers will, and will cause
each of its Subsidiaries to, (a) if such Borrower or Subsidiary is located in
the United States, keep true and accurate records and books of account in which
full, true and correct entries will be made in accordance with generally
accepted accounting principles and (b) if such Borrower or Subsidiary is located
outside the United States, keep true and accurate records and books of account
in which full, true and correct entries will be made in accordance with
generally accepted accounting principles in the country in which such Borrower
or Subsidiary, as the case may be, is located. Each of the Borrowers will
maintain adequate accounts and reserves for all taxes (including income taxes),
depreciation, depletion, obsolescence and amortization of its properties and the
properties of its Subsidiaries, contingencies, and other reserves.
9.4. FINANCIAL STATEMENTS, CERTIFICATES AND INFORMATION.
Trans-Technology will deliver to each of the Lenders:
(a) as soon as practicable, but in any event not later than
one hundred (100) days after the end of each fiscal year of
TransTechnology, the consolidated balance sheet of TransTechnology and
its Subsidiaries and the consolidating balance sheet of TransTechnology
and its Subsidiaries, each as at the end of such year, and the related
consolidated and consolidating statements of income and consolidated
statement of cash flow for such year, each setting forth in comparative
form the figures for the previous fiscal year and all such consolidated
and consolidating statements to be in reasonable detail, prepared in
accordance with generally accepted accounting principles, and certified
(as to the consolidated statements) without qualification by Deloitte &
Touche LLP or by other independent certified public accountants
satisfactory to the Administrative Agent, together with a written
statement from such accountants to the effect that they have read a
copy of this Credit
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Agreement, and that, in making the examination necessary to said
certification, they have obtained no knowledge of any Default or Event
of Default, or, if such accountants shall have obtained knowledge of
any then existing Default or Event of Default they shall disclose in
such statement any such Default or Event of Default; PROVIDED that such
accountants shall not be liable to the Lenders for failure to obtain
knowledge of any Default or Event of Default;
(b) as soon as practicable, but in any event not later than
forty-five (45) days after the end of each of the fiscal quarters of
TransTechnology, copies of the unaudited consolidated balance sheet of
TransTechnology and its Subsidiaries and the unaudited consolidating
balance sheet of TransTechnology and its Subsidiaries, each as at the
end of such quarter, and the related consolidated and consolidating
statements of income and consolidated statement of cash flow for the
portion of TransTechnology's fiscal year then elapsed, all in
reasonable detail and prepared in accordance with generally accepted
accounting principles, together with a certification by the principal
financial or accounting officer of TransTechnology that the information
contained in such financial statements fairly presents the financial
position of TransTechnology and its Subsidiaries on the date thereof
(subject to year-end adjustments);
(c) simultaneously with the delivery of the financial
statements referred to in subsections (a) and (b) above, a statement
certified by the principal financial or accounting officer of
TransTechnology in substantially the form of EXHIBIT D hereto and
setting forth in reasonable detail computations evidencing compliance
with the covenants contained in Section 11 and (if applicable)
reconciliations to reflect changes in generally accepted accounting
principles since the Balance Sheet Date;
(d) contemporaneously with the filing or mailing thereof,
copies of all material filed with the Securities and Exchange
Commission or sent to the stockholders of TransTechnology which is
either of a financial nature or addresses the Year 2000 Problem;
(e) by April 30 of each year, the annual budget of
TransTechnology and its Subsidiaries for the next fiscal year; and
(f) from time to time such other financial data and
information (including accountants' management letters) as the
Administrative Agent or any Lender may reasonably request.
9.5. NOTICES.
9.5.1. DEFAULTS. Each of the Borrowers will promptly notify
the Administrative Agent and each of the Lenders in writing of the
occurrence of any Default or Event of Default. If any Person shall give
any notice or take any other action in respect of a claimed default
(whether or not constituting
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an Event of Default) under this Credit Agreement or any other note,
evidence of indebtedness, indenture or other obligation to which or
with respect to which any of the Borrowers or their Subsidiaries is a
party or obligor, whether as principal, guarantor, surety or otherwise,
each of the Borrowers shall forthwith give written notice thereof to
the Administrative Agent and each of the Lenders, describing the notice
or action and the nature of the claimed default.
9.5.2. ENVIRONMENTAL EVENTS. Each of the Borrowers will
promptly give notice to the Administrative Agent and each of the
Lenders (i) of any violation of any Environmental Law that any of the
Borrowers or their Subsidiaries reports in writing or is reportable by
such Person in writing (or for which any written report supplemental to
any oral report is made) to any federal, state or local environmental
agency and (ii) upon becoming aware thereof, of any inquiry,
proceeding, investigation, or other action, including a notice from any
agency of potential environmental liability, or any federal, state or
local environmental agency or board, that has the potential to
materially affect the assets, liabilities, financial conditions or
operations of any of the Borrowers or their Subsidiaries, or the
Administrative Agent's mortgages, deeds of trust or security interests
pursuant to the Security Documents.
9.5.3. NOTIFICATION OF CLAIMS AGAINST COLLATERAL. Each of the
Borrowers will, immediately upon becoming aware thereof, notify the
Administrative Agent and each of the Lenders in writing of any setoff,
claims (including, with respect to the Real Estate, environmental
claims), withholdings or other defenses to which any of the Collateral,
or the Administrative Agent's rights with respect to the Collateral,
are subject.
9.5.4. NOTICE OF LITIGATION AND JUDGMENTS. Each of the
Borrowers will, and will cause each of its Subsidiaries to, give notice
to the Administrative Agent and each of the Lenders in writing within
fifteen (15) days of becoming aware of any litigation or proceedings
threatened in writing or any pending litigation and proceedings
affecting any of the Borrowers or their Subsidiaries or to which any of
the Borrowers or their Subsidiaries is or becomes a party involving an
uninsured claim against any of the Borrowers or their Subsidiaries that
could reasonably be expected to have a materially adverse effect on any
of the Borrowers or their Subsidiaries and stating the nature and
status of such litigation or proceedings. Each of the Borrowers will,
and will cause each of its Subsidiaries to, give notice to the
Administrative Agent and each of the Lenders, in writing, in form and
detail satisfactory to the Administrative Agent, within ten (10) days
of any judgment not covered by insurance, final or otherwise, against
such Borrower or any of its Subsidiaries in an amount in excess of
$1,000,000.
9.6. CORPORATE EXISTENCE; MAINTENANCE OF PROPERTIES. Each of the
Borrowers will do or cause to be done all things necessary to preserve and keep
in full force and effect its corporate existence, rights and franchises and
those of its Subsidiaries. Each of the Borrowers (i) will cause all of its
properties and those of its
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Subsidiaries used or useful in the conduct of its business or the business of
its Subsidiaries to be maintained and kept in good condition, repair and working
order and supplied with all necessary equipment, (ii) will cause to be made all
necessary repairs, renewals, replacements, betterments and improvements thereof,
all as in the judgment of such Borrower may be necessary so that the business
carried on in connection therewith may be properly and advantageously conducted
at all times, and (iii) will, and will cause each of its Subsidiaries to,
continue to engage primarily in the businesses now conducted by them and in
related businesses; PROVIDED that nothing in this Section 9.6 shall prevent any
Borrower from discontinuing the operation and maintenance of any of its
properties or any of those of its Subsidiaries if such discontinuance is, in the
judgment of such Borrower, desirable in the conduct of its or their business and
that do not in the aggregate materially adversely affect the business of any of
the Borrowers and their Subsidiaries on a consolidated basis.
9.7. INSURANCE. Each of the Borrowers will, and will cause each of its
Subsidiaries to, maintain with financially sound and reputable insurers
insurance with respect to its properties and business against such casualties
and contingencies as shall be in accordance with the general practices of
businesses engaged in similar activities in similar geographic areas and in
amounts, containing such terms, in such forms and for such periods as may be
reasonable and prudent and in accordance with the terms of the Security
Agreements, including provisions naming the Administrative Agent as additional
loss payee and providing for a minimum thirty (30) days' notice to the
Administrative Agent prior to cancellation. Each of the Borrowers will, and will
cause each of its Subsidiaries to, maintain insurance on the Mortgaged
Properties in accordance with the terms of the Mortgages. Upon reasonable
request from the Administrative Agent, the Borrowers shall furnish the
Administrative Agent from time to time with information concerning the
Borrowers' and their Subsidiaries' insurance, including (when requested) copies
of the certificates of insurance evidencing such insurance.
9.8. TAXES. Each of the Borrowers will, and will cause each of its
Subsidiaries to, duly pay and discharge, or cause to be paid and discharged,
before the same shall become overdue, all taxes, assessments and other
governmental charges imposed upon it and its real properties, sales and
activities, or any part thereof, or upon the income or profits therefrom, as
well as all claims for labor, materials, or supplies that if unpaid might by law
become a lien or charge upon any of its property; PROVIDED that any such tax,
assessment, charge, levy or claim need not be paid if the validity or amount
thereof shall currently be contested in good faith by appropriate proceedings
and if such contesting Borrower or Subsidiary shall have set aside on its books
adequate reserves with respect thereto; and PROVIDED further that each of the
Borrowers and its Subsidiaries will pay all such taxes, assessments, charges,
levies or claims forthwith upon the commencement of proceedings to foreclose any
lien that may have attached as security therefor.
9.9. INSPECTION OF PROPERTIES AND BOOKS, ETC.
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9.9.1. GENERAL. Each of the Borrowers shall permit the
Lenders, through the Administrative Agent or any of the Lenders' other
designated representatives, to visit and inspect any of the properties
of such Borrower and any of its Subsidiaries, to examine the books of
account of such Borrower and its Subsidiaries (and to make copies
thereof and extracts therefrom), and to discuss the affairs, finances
and accounts of such Borrower and its Subsidiaries with, and to be
advised as to the same by, its and their officers, all at such
reasonable times and intervals as the Administrative Agent or any
Lender may reasonably request. Upon the request of the Administrative
Agent, TransTechnology will obtain and deliver to the Administrative
Agent a report of an independent collateral auditor satisfactory to the
Administrative Agent (which may be affiliated with one of the Lenders)
setting forth such information regarding the Collateral as the
Administrative Agent may reasonably require. All such collateral value
reports shall be conducted and made at the expense of TransTechnology.
If an Event of Default shall have occurred and be continuing, each of
the Borrowers upon the request of the Administrative Agent, will obtain
and deliver to the Administrative Agent appraisal reports in form and
substance and from appraisers satisfactory to the Administrative Agent,
stating (i) the then current fair market, orderly liquidation and
forced liquidation values of all or any portion of the equipment or
real estate owned by such Borrower or any of its Subsidiaries and (ii)
the then current business value of such Borrower and its Subsidiaries.
All such appraisals shall be conducted and made at the expense of the
Borrower obtaining and delivering such appraisal reports.
9.9.2. ENVIRONMENTAL ASSESSMENTS. Whether or not an Event of
Default shall have occurred, the Administrative Agent may, from time to
time, in its discretion for the purpose of assessing and ensuring the
value of any Mortgaged Property, obtain one or more environmental
assessments or audits of such Mortgaged Property prepared by a
hydrogeologist, an independent engineer or other qualified consultant
or expert approved by the Administrative Agent to evaluate or confirm
(i) whether any Hazardous Materials are present in the soil or water at
such Mortgaged Property and (ii) whether the use and operation of such
Mortgaged Property complies with all Environmental Laws. Environmental
assessments may include without limitation detailed visual inspections
of such Mortgaged Property including any and all storage areas, storage
tanks, drains, dry xxxxx and leaching areas, and the taking of soil
samples, surface water samples and ground water samples, as well as
such other investigations or analyses as the Administrative Agent deems
appropriate. All such environmental assessments shall be conducted at
the expense of TransTechnology.
9.9.3. COMMUNICATIONS WITH ACCOUNTANTS. Each of the Borrowers
authorizes the Administrative Agent and, if accompanied by the
Administrative Agent, the Lenders to communicate directly with such
Borrower's independent certified public accountants, PROVIDED that
TransTechnology shall have received advance notice of any such
communications, and authorizes such accountants to disclose to the
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Administrative Agent and the Lenders any and all financial statements
and other supporting financial documents and schedules including copies
of any management letter with respect to the business, financial
condition and other affairs of such Borrower or any of its
Subsidiaries. At the request of the Administrative Agent, each of the
Borrowers shall deliver a letter addressed to such accountants
instructing them to comply with the provisions of this section 9.9.3.
9.10. COMPLIANCE WITH LAWS, CONTRACTS, LICENSES, AND PERMITS. Each of
the Borrowers will, and will cause each of its Subsidiaries to, comply in all
material respects with (i) the applicable laws and regulations wherever its
business is conducted, including all Environmental Laws, (ii) the provisions of
its charter documents and, in the event such by-laws exist, its by-laws, (iii)
all agreements and instruments by which it or any of its properties may be bound
and (iv) all applicable decrees, orders, and judgments. If any authorization,
consent, approval, permit or license from any officer, agency or instrumentality
of any government shall become necessary or required in order that any of the
Borrowers or their Subsidiaries may fulfill any of its obligations hereunder or
any of the other Loan Documents to which such Borrower or Subsidiary is a party,
such Borrower will, or (as the case may be) will cause such Subsidiary to,
immediately take or cause to be taken all reasonable steps within the power of
such Borrower or Subsidiary to obtain such authorization, consent, approval,
permit or license and furnish the Administrative Agent and the Lenders with
evidence thereof.
9.11. EMPLOYEE BENEFIT PLANS. TransTechnology will (i) promptly upon
filing the same with the United States Department of Labor or Internal Revenue
Service, upon request of the Administrative Agent, furnish to the Administrative
Agent a copy of the most recent actuarial statement required to be submitted
under Section 103(d) of ERISA and Annual Report, Form 5500, with all required
attachments, in respect of each Guaranteed Pension Plan and (ii) promptly upon
receipt or dispatch, furnish to the Administrative Agent any notice, report or
demand sent or received in respect of a Guaranteed Pension Plan under Sections
302, 4041, 4042, 4043, 4063, 4065, 4066 and 4068 of ERISA, or in respect of a
Multiemployer Plan, under Sections 4041A, 4202, 4219, 4242, or 4245 of ERISA.
Each of the Borrowers and each of their Subsidiaries shall comply with all
applicable pension, retirement funding or employee benefit legislation in any
jurisdiction.
9.12. USE OF PROCEEDS. The proceeds of the Loans shall be used to
refinance certain Indebtedness of the Borrowers under the Prior Credit
Agreement, to finance Approved Acquisitions, and for working capital and general
corporate purposes of the Borrowers. TransTechnology will obtain Letters of
Credit solely for working capital and general corporate purposes.
9.13. ADDITIONAL MORTGAGED PROPERTY. If, after the Closing Date, any of
the Borrowers or their Subsidiaries acquires or leases for a term in excess of
five (5) years real estate used as a manufacturing or warehouse facility, such
Borrower shall, or shall, upon the request of the Administrative Agent or the
Majority Lenders, cause such Subsidiary to, forthwith deliver to the
Administrative Agent a
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fully executed mortgage or deed of trust over such real estate, in form and
substance satisfactory to the Administrative Agent, together with title
insurance policies, surveys, evidences of insurance with the Administrative
Agent named as loss payee and additional insured, legal opinions and other
documents and certificates with respect to such real estate as was required for
Real Estate of such Borrower or Subsidiary as of the Closing Date. Each of the
Borrowers further agrees that, following the taking of such actions with respect
to such real estate, the Administrative Agent shall have for the benefit of the
Lenders and the Administrative Agent a valid and enforceable first priority
mortgage or deed of trust over such real estate, free and clear of all defects
and encumbrances except for Permitted Liens.
9.14. BANK ACCOUNTS. Each of the Borrowers will, and will cause its
Subsidiaries to, together with the employees, agents and other Persons acting on
behalf of such Borrower or Subsidiary, receive and hold in trust for the
Administrative Agent and the Lenders all payments constituting proceeds of
accounts receivable or other Collateral which come into their possession or
under their control and, immediately upon receipt thereof, deposit such payments
in the form received, with any appropriate endorsements, in one of the accounts
designated as a lockbox or central depository account on SCHEDULE 8.20.
9.15. INTEREST RATE PROTECTION. With effect from a date no later than
December 31, 1999, TransTechnology will maintain interest rate protection
arrangements on terms and conditions satisfactory to the Administrative Agent
with respect to a principal amount of at least $125,000,000 for a period of
three (3) years from the date of implementation of such arrangements; PROVIDED
that if prior to December 31, 1999, TransTechnology shall have issued at least
$125,000,000 of fixed rate long-term debt, the requirement for interest rate
protection arrangements detailed in this Section 9.15 will be considered met.
9.16. FURTHER ASSURANCES. Each of the Borrowers will, and will cause
each of its Subsidiaries to, cooperate with the Lenders and the Administrative
Agent and execute such further instruments and documents as the Lenders or the
Administrative Agent shall reasonably request to carry out to their satisfaction
the transactions contemplated by this Credit Agreement and the other Loan
Documents.
10. CERTAIN NEGATIVE COVENANTS OF THE BORROWERS.
Each of the Borrowers covenants and agrees that, so long as any Loan,
Unpaid Reimbursement Obligation, Letter of Credit or Note is outstanding or any
Lender has any obligation to make any Loans or the Issuing Bank has any
obligations to issue, extend or renew any Letters of Credit:
10.1. RESTRICTIONS ON INDEBTEDNESS. The Borrowers will not, and will
not permit any of their Subsidiaries to, create, incur, assume, guarantee, or be
or remain liable, contingently or otherwise, with respect to, any Indebtedness
other than:
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(a) Indebtedness to the Lenders and the Administrative Agent
arising under any of the Loan Documents;
(b) current liabilities of any of the Borrowers or their
Subsidiaries incurred in the ordinary course of business not incurred
through (i) the borrowing of money, or (ii) the obtaining of credit
except for credit on an open account basis customarily extended and in
fact extended in connection with normal purchases of goods and
services;
(c) Indebtedness in respect of taxes, assessments,
governmental charges or levies and claims for labor, materials and
supplies to the extent that payment therefor shall not at the time be
required to be made in accordance with the provisions of Section 9.8;
(d) Indebtedness in respect of judgments or awards that have
been in force for less than the applicable period for taking an appeal
so long as execution is not levied thereunder or in respect of which
any of the Borrowers or Subsidiary shall at the time in good faith be
prosecuting an appeal or proceedings for review and in respect of which
a stay of execution shall have been obtained pending such appeal or
review;
(e) endorsements for collection, deposit or negotiation and
warranties of products or services, in each case incurred in the
ordinary course of business;
(f) Subordinated Debt not exceeding $150,000,000 in aggregate
principal amount at any I time outstanding;
(g) obligations under Capitalized Leases not exceeding
$8,000,000 in aggregate amount at any time outstanding;
(h) Indebtedness incurred in connection with (i) the
acquisition after the Closing Date of any real or personal property by
any of the Borrowers or their Subsidiaries, and (ii) the issuance by
any of the Borrowers or their Subsidiaries of any industrial revenue
bonds, industrial development bonds or similar instruments, PROVIDED
that the aggregate principal amount of Indebtedness of TransTechnology
and its Subsidiaries incurred pursuant to this clause (h) shall not
exceed the aggregate amount of $10,000,000 at any one time;
(i) Indebtedness existing on the date hereof and listed and
described on SCHEDULE 10.1 hereto; and
(j) Indebtedness of any Subsidiary of TransTechnology to
TransTechnology; PROVIDED that such Indebtedness shall be evidenced by
promissory notes duly executed by the obligor, and all such
intercompany notes shall be pledged and delivered to the Administrative
Agent and be in form and substance satisfactory to the Administrative
Agent.
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10.2. RESTRICTIONS ON LIENS. The Borrowers will not, and will not
permit any of their Subsidiaries to, (i) create or incur or suffer to be created
or incurred or to exist any lien, encumbrance, mortgage, pledge, charge,
restriction or other security interest of any kind upon any of its property or
assets of any character whether now owned or hereafter acquired, or upon the
income or profits therefrom; (ii) transfer any of such property or assets or the
income or profits therefrom for the purpose of subjecting the same to the
payment of Indebtedness or performance of any other obligation in priority to
payment of its general creditors; (iii) acquire, or agree or have an option to
acquire, any property or assets upon conditional sale or other title retention
or purchase money security agreement, device or arrangement; (iv) suffer to
exist for a period of more than thirty (30) days after the same shall have been
incurred any Indebtedness or claim or demand against it that if unpaid might by
law or upon bankruptcy or insolvency, or otherwise, be given any priority
whatsoever over its general creditors; or (v) sell, assign, pledge or otherwise
transfer any accounts, contract rights, general intangibles, chattel paper or
instruments, with or without recourse; PROVIDED that the Borrowers and their
Subsidiaries may create or incur or suffer to be created or incurred or to
exist:
(a) liens in favor of a Borrower on all or part of the assets
of Subsidiaries of such Borrower securing Indebtedness owing by such
Subsidiaries to such Borrower;
(b) liens to secure taxes, assessments and other government
charges in respect of obligations not overdue or liens on properties
other than Mortgaged Properties to secure claims for labor, material or
supplies in respect of obligations not overdue or delinquent;
(c) deposits or pledges made in connection with, or to secure
payment of, workmen's compensation, unemployment insurance, old age
pensions or other social security obligations;
(d) liens on properties other than Mortgaged Properties in
respect of judgments or awards, the Indebtedness with respect to which
is permitted by Section 10.1(d);
(e) liens of carriers, warehousemen, mechanics and
materialmen, and other like liens on properties other than Mortgaged
Properties, in existence less than 120 days from the date of creation
thereof in respect of obligations not overdue or delinquent;
(f) encumbrances on Real Estate other than the Mortgaged
Property consisting of easements, rights of way, zoning restrictions,
restrictions on the use of real property and defects and irregularities
in the title thereto, landlord's or lessor's liens under leases to
which a Borrower or a Subsidiary of a Borrower is a party, and other
minor liens or encumbrances none of which in the opinion of the
Borrowers interferes materially with the use of the property affected
in the ordinary conduct of the business of the Borrowers and their
Subsidiaries, which defects do not individually or in the aggregate
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have a materially adverse effect on the business of any Borrower
individually or of TransTechnology and its Subsidiaries on a
consolidated basis;
(g) liens existing on the date hereof and listed on SCHEDULE
10.2 hereto;
(h) security interests in, or purchase money mortgages on,
real or personal property other than Mortgaged Properties acquired
after the date hereof to secure Indebtedness of the type permitted by
Section 10.1(h)(i), in amounts not to exceed those permitted by Section
10.1(h), and incurred in connection with the acquisition of such
property, which security interests or mortgages cover only the real or
personal property so acquired (or comparable security interests, such
as collateral assignments or retention of title agreements entered into
in the ordinary course of business);
(i) liens and encumbrances on each Mortgaged Property as and
to the extent permitted by the Mortgage applicable thereto; and
(j) liens in favor of the Administrative Agent for the benefit
of the Lenders and the Administrative Agent under the Loan Documents.
10.3. RESTRICTIONS ON INVESTMENTS. The Borrowers will not, and will not
permit any of their Subsidiaries to, make or permit to exist or to remain
outstanding any Investment except Investments in:
(a) marketable direct or guaranteed obligations of the United
States of America, the Federal Republic of Germany or the United
Kingdom that mature within one (1) year from the date of purchase;
(b) demand deposits, certificates of deposit, bankers
acceptances and time deposits of United States or Canadian banks having
total assets in excess of $1,000,000,000 or, with respect to
Subsidiaries of TransTechnology located outside the United States,
deposit accounts with local banks having total assets in excess of
$1,000,000,000 or the local currency equivalent thereof;
(c) securities commonly known as "commercial paper" issued by
a corporation organized and existing under the laws of the United
States of America or any state thereof that at the time of purchase
have been rated and the ratings for which are not less than "P 1" if
rated by Xxxxx'x Investors Services, Inc., and not less than "A 1" if
rated by Standard and Poor's;
(d) Investments existing on the date hereof and listed on
SCHEDULE 10.3 hereto;
(e) Investments with respect to Indebtedness permitted by
Section 10.1(j) so long as such entities remain Subsidiaries of
TransTechnology;
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(f) Investments consisting of the Guaranties or Investments by
TransTechnology in Subsidiaries of TransTechnology existing on the
Closing Date;
(g) Investments consisting of promissory notes received as
proceeds of asset dispositions permitted by Section 10.5.2;
(h) Investments consisting of loans and advances to employees
for moving, entertainment, travel and other similar expenses in the
ordinary course of business not to exceed $250,000 in the aggregate at
any time outstanding; and (i) other Investments in an aggregate amount
not in excess of $100,000;
PROVIDED, HOWEVER, that, with the exception of demand deposits referred to in
Section 10.3(b) and loans and advances referred to in Section 10.3(h), such
Investments will be considered Investments permitted by this Section 10.3 only
if all actions have been taken to the satisfaction of the Administrative Agent
to provide to the Administrative Agent, for the benefit of the Lenders and the
Administrative Agent, a first priority perfected security interest in all of
such Investments free of all encumbrances other than Permitted Liens; and
PROVIDED, FURTHER, that, subject to Section 7.4, no Investments in any
Subsidiaries shall be permitted unless such Subsidiary either is at the time of
such Investment a Guarantor or at such time enters into a guaranty or joinder or
other agreement, in each case in form and substance acceptable to the
Administrative Agent, pursuant to which such Subsidiary becomes a guarantor of
the payment and performance of the Obligations.
10.4. DISTRIBUTIONS. TransTechnology will not make, or permit any of
its Subsidiaries to make, any Distributions, EXCEPT that, so long as no Default
or Event of Default has occurred and is continuing or would result therefrom,
TransTechnology may declare and pay dividends on or in respect of any shares of
its capital stock in an aggregate amount not to exceed $2,000,000 paid in any
period of twelve (12) consecutive months.
10.5. MERGER, CONSOLIDATION AND DISPOSITION OF ASSETS.
10.5.1. MERGERS AND ACQUISITIONS. The Borrowers will not, and
will not permit any of their Subsidiaries to, become a party to any
merger or consolidation, to convert any of the Borrowers or their
Subsidiaries from one form of corporate organization or partnership to
another, or agree to or effect any asset acquisition or stock
acquisition, other than:
(a) the acquisition of assets (other than assets
which constitutes all or a substantial part of a business or
division) in the ordinary course of business consistent with
the past practices of the TransTechnology Group;
(b) Approved Acquisitions, subject to fulfillment of
the conditions set forth in the definition thereof;
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(c) the merger or consolidation of one or more of the
Subsidiaries of TransTechnology with and into TransTechnology;
or
(d) the merger, conversion or consolidation of two or
more Subsidiaries of TransTechnology, PROVIDED that no assets
of any such Subsidiary which prior to such merger or
consolidation were pledged to the Administrative Agent or the
Lenders or in or over which the Administrative Agent or the
Lenders had any security interest, charge, lien or other
encumbrance shall, as a result of such merger, conversion or
consolidation, cease to be so pledged or otherwise encumbered.
10.5.2. DISPOSITION OF ASSETS. The Borrowers will not, and
will not permit any of their Subsidiaries to, become a party to or
agree to or effect any disposition of assets, other than:
(a) the disposition of assets (other than assets
which constitutes all or a substantial part of a business or
division) in the ordinary course of business, consistent with
the past practices of the TransTechnology Group;
(b) the disposition of the assets listed in SCHEDULE
10.5.2, PROVIDED that (i) such disposition is for
consideration equal to or greater than the fair market value
of such assets, as determined by the management of the selling
member of the TransTechnology Group in its reasonable
discretion and (ii) the proceeds of any such disposition shall
be paid to the Administrative Agent for the account of the
Lenders, to be applied against the Loans in accordance with
Section 4.9; and
(c) the disposition of the assets identified on the
most recent balance sheet of TransTechnology and its
Subsidiaries as belonging to or employed in operations
identified in such balance sheet as discontinued operations of
the TransTechnology Group, PROVIDED that the proceeds of any
such disposition shall be paid to the Administrative Agent for
the account of the Lenders, to be applied against the Loans in
accordance with Section 4.9;
PROVIDED, however, that in the event of any disposition of assets specifically
permitted pursuant to this Section 10.5.2, the Administrative Agent shall be
required, upon the request of any of the Borrowers, to release any security
interest in the Administrative Agent's favor on any such assets, and the
Administrative Agent is hereby authorized to release any such security interest
by each of the Lenders.
10.6. SALE AND LEASEBACK. The Borrowers will not, and will not permit
any of their Subsidiaries to, enter into any arrangement, directly or
indirectly, whereby any Borrower or Subsidiary of a Borrower shall sell or
transfer any property owned by it in order then or thereafter to lease such
property or lease other
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property that any member of the TransTechnology Group intends to use for
substantially the same purpose as the property being sold or transferred.
10.7. COMPLIANCE WITH ENVIRONMENTAL LAWS. The Borrowers will not, and
will not permit any of their Subsidiaries to, (i) construct or install on any of
the Real Estate any underground tank or other underground storage receptacle for
Hazardous Substances, (ii) conduct any activity at any Real Estate or use any
Real Estate in any manner so as to cause any material release (i.e., releasing,
spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting,
escaping, leaching, disposing or dumping) of Hazardous Substances on, upon or
into the Real Estate, or (iii) otherwise conduct any activity at any Real Estate
or use any Real Estate in any manner that would be in material violation of any
Environmental Law or bring such Real Estate in material violation of any
Environmental Law.
10.8. SUBORDINATED DEBT. Without the prior written consent of the
Majority Lenders and the Administrative Agent, TransTechnology will not, and
will not permit any of its Subsidiaries to:
(a) amend or modify the provisions of any Subordinated Debt so
as to affect the subordination of such Subordinated Debt to the
Obligations, or accelerate the required payment dates or the maturity
of such Subordinated Debt, or impose upon TransTechnology and its
Subsidiaries materially more onerous or restrictive covenants, events
of default or remedies, or otherwise and in similar fashion adversely
affect the interests of the Lenders hereunder in any material respect;
or
(b) make any optional payment, prepayment, redemption or
repurchase of any Subordinated Debt, including without limitation any
payments on account of or for any sinking fund or other similar fund
for the repurchase, retirement or redemption of Subordinated Debt,
other than as required by the terms thereof and in accordance with the
subordination provisions applicable thereto.
10.9. EMPLOYEE BENEFIT PLANS. Neither TransTechnology nor any ERISA
Affiliate will:
(a) engage in any "prohibited transaction" within the meaning
of Section 406 of ERISA or Section 4975 of the Code which could result
in a material liability for TransTechnology or any of its Subsidiaries;
or
(b) permit any Guaranteed Pension Plan to incur an
"accumulated funding deficiency", as such term is defined in Section
302 of ERISA, whether or not such deficiency is or may be waived; or
(c) fail to contribute to any Guaranteed Pension Plan to an
extent which, or terminate any Guaranteed Pension Plan in a manner
which, could result in the imposition of a lien or encumbrance on the
assets of TransTechnology or any of its Subsidiaries pursuant to
Section 302(f) or Section 4068 of ERISA; or
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(d) permit or take any action which would result in the
aggregate benefit liabilities (with the meaning of Section 4001 of
ERISA) of all Guaranteed Pension Plans exceeding the value of the
aggregate assets of such Plans, disregarding for this purpose the
benefit liabilities and assets of any such Plan with assets in excess
of benefit liabilities.
10.10. BANK ACCOUNTS. TransTechnology will not, and will not permit any
of its Subsidiaries to, (i) establish any bank accounts other than those listed
on SCHEDULE 8.20 without the Administrative Agent's prior written consent, (ii)
violate directly or indirectly any bank agency or lock box agreement in favor of
the Administrative Agent for the benefit of the Lenders and the Administrative
Agent with respect to such account, or (iii) deposit into any of the payroll
accounts listed on SCHEDULE 8.20 any amounts in excess of amounts necessary to
pay current payroll obligations from such accounts.
10.11. OPERATING LEASES. The Borrowers will not, and will not permit
any of their Subsidiaries to, create, incur, assume, guarantee or remain liable
for, contingently or otherwise, any Rental Obligations with respect to Operating
Leases in excess of an aggregate amount of $5,500,000 scheduled to become due
and payable in any fiscal year.
10.12. SO OHG PARTNERSHIP AGREEMENT. TransTechnology will not, and will
not permit any of its Subsidiaries to, amend, supplement, restate or otherwise
modify the Partnership Agreement of SO OHG as in effect as of October 27, 1995,
in any way which adversely affects any of the security interests created by the
German Security Documents or otherwise adversely affects the interest of the
Administrative Agent or any of the Lenders, without the prior written consent of
the Administrative Agent, the DM Fronting Bank and the Majority Lenders.
10.13. MAINTENANCE OF BUSINESS. The Borrowers will not, and will not
permit any of their Subsidiaries to, materially change the business of such
Borrower or Subsidiary from the Business.
11. FINANCIAL COVENANTS OF THE BORROWERS.
The Borrowers jointly and severally covenant and agree that, so long as
any Loan, Unpaid Reimbursement Obligation, Letter of Credit or Note is
outstanding or any Lender has any obligation to make any Loans or the Issuing
Bank has any obligation to issue, extend or renew any Letters of Credit:
11.1. CONSOLIDATED EBITDA TO CONSOLIDATED TOTAL INTEREST EXPENSE.
TransTechnology will not permit the ratio of Consolidated EBITDA for any
Reference Period ending during any period described in the table set forth below
to Consolidated Total Interest Expense for such Reference Period to be less than
the ratio set forth opposite such period in such table:
@@
Period Ratio
------ -----
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From the Closing Date through 2.25 : 1
December 31, 2000
From January 1, 2001 through 2.50 : 1
June 30, 2002
From July 1, 2002 and thereafter 2.75 : 1
@@
11.2. FIXED CHARGE COVERAGE RATIO. TransTechnology will not permit the
ratio of (a) the aggregate amount of (i) Consolidated EBITDA for any Reference
Period ending during any period described in the table set forth below, LESS
(ii) the amount of Capital Expenditures of TransTechnology and its Subsidiaries
for such Reference Period, to (b) the aggregate amount of Consolidated Total
Interest Expense for such Reference Period, PLUS the aggregate amount of
payments of principal of any Funded Indebtedness of TransTechnology and its
Subsidiaries actually made or required to be made during such Reference Period
(including, for the avoidance of doubt, any such payments made or required to be
made in respect of the Term Loan or with respect to any Subordinated Debt), but
excluding any such amounts required to be repaid pursuant to Section 4 hereof,
to be less than the ratio set forth opposite such period in such table:
@@
Period Ratio
------ -----
From the Closing Date through 1.50 : 1
December 31, 2000
From January 1, 2001 through 1.75 : 1
June 30, 2002
From July 1, 2002 and thereafter 2.00 : 1
@@
11.3. LEVERAGE RATIO. TransTechnology will not permit the Leverage
Ratio at any time during any Reference Period ending during any period described
in the table set forth below to exceed the ratio set forth opposite such period
in such table:
@@
Period Ratio
------ -----
From the Closing Date through 5.00 : 1
March 31, 2000
From April 1, 2000 through 4.75 : 1
March 31, 2001
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From April 1, 2001 and thereafter 4.50 : 1
@@
11.4. SENIOR LEVERAGE RATIO. TransTechnology will not permit the Senior
Leverage Ratio at any time during any Reference Period ending during any period
described in the table set forth below, to exceed the ratio set forth opposite
such period in such table:
@@
Period Ratio
------ -----
From the Closing Date through 3.75 : 1
March 31, 2000
From April 1, 2000 through 3.50 : 1
March 31, 2001
From April 1, 2001 and thereafter 3.25 : 1
@@
PROVIDED, that from and after the Placing Date, the applicable table shall be as
follows:
@@
Period Ratio
------ -----
From the Closing Date through 3.25 : 1
March 31, 2000
From April 1, 2000 through 3.00 : 1
March 31, 2001
From April 1, 2001 and thereafter 2.75 : 1
@@
11.5. MINIMUM NET WORTH. TransTechnology will not permit Consolidated
Net Worth at any time to be less than $112,500,000, as such amount shall be
increased at the end of each fiscal quarter (commencing with the fiscal quarter
ending on or around September 30, 1999), for the fiscal quarter thereafter, by
the addition of seventy-five percent (75%) of Consolidated Net Income earned
after June 30, 1999.
11.6. CAPITAL EXPENDITURES. Subject to the last sentence of this
Section 11.6, TransTechnology will not make, or permit any Subsidiary of
TransTechnology to make, Capital Expenditures in any fiscal year that exceed in
the aggregate for
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TransTechnology and its Subsidiaries for such fiscal year the amount set forth
for such fiscal year in the chart below:
@@
Fiscal Year Amount
----------- ------
Ending on March 31, 2000 $12,000,000
Ending on March 31, 2001 $12,000,000
Ending on March 31, 2002 $13,000,000
Ending on March 31, 2003 $15,000,000
Ending on March 31, 2004 and thereafter $15,000,000
@@
If during any fiscal year set forth in the table above the amount of Capital
Expenditures permitted for that fiscal year is not utilized, the unutilized
amount may be utilized in any subsequent fiscal year, PROVIDED, HOWEVER, that
the aggregate amount of (i) the unutilized portion from any one fiscal year,
PLUS (ii) any unutilized portion previously carried forward and which remains
unutilized, which may be carried forward from one fiscal year to the subsequent
fiscal year shall not exceed $2,000,000.
12. CLOSING CONDITIONS.
The obligations of the Lenders to make the initial Revolving Credit
Loans, of the Fronting Banks to make the initial International Facility Loans,
and of the Issuing Bank to issue any initial Letters of Credit shall be subject
to the satisfaction of the following conditions precedent on or prior to the
Closing Date:
12.1. LOAN DOCUMENTS. Each of the Loan Documents shall have been duly
executed and delivered by the respective parties thereto, shall be in full force
and effect and shall be in form and substance satisfactory to each of the
Lenders. The Administrative Agent shall have received a fully executed copy of
each such document.
12.2. CERTIFIED COPIES OF CHARTER DOCUMENTS. Each of the Lenders shall
have received from TransTechnology and each of its Subsidiaries a copy,
certified by a duly authorized officer of such Person to be true and complete on
the Closing Date, of each of (i) its charter or other incorporation documents as
in effect on such date of certification, and (ii) its by-laws as in effect on
such date.
12.3. CORPORATE ACTION. All corporate action necessary for the valid
execution, delivery and performance by TransTechnology and each of its
Subsidiaries of this Credit Agreement and the other Loan Documents to which it
is
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or is to become a party shall have been duly and effectively taken, and evidence
thereof satisfactory to the Lenders shall have been provided to each of the
Lenders.
12.4. INCUMBENCY CERTIFICATE. Each of the Lenders shall have received
from TransTechnology and each of its Subsidiaries an incumbency certificate,
dated as of the Closing Date, signed by a duly authorized officer of
TransTechnology or such Subsidiary, and giving the name and bearing a specimen
signature of each individual who shall be authorized: (i) to sign, in the name
and on behalf of each of TransTechnology and such Subsidiary, each of the Loan
Documents and Acquisition Documents to which TransTechnology or such Subsidiary
is or is to become a party; and (ii) in the case and the Borrowers, to make Loan
Requests and Conversion Requests, to apply for Letters of Credit, and to give
notices and to take other action on behalf of the Borrowers under the Loan
Documents.
12.5. VALIDITY OF LIENS. The Security Documents shall be effective to
create in favor of the Administrative Agent a legal, valid and enforceable first
(except for Permitted Liens entitled to priority under applicable law) security
interest in and lien upon the Collateral. All filings, recordings, deliveries of
instruments and other actions necessary or desirable in the opinion of the
Administrative Agent to protect and preserve such security interests shall have
been duly effected. The Administrative Agent shall have received evidence
thereof in form and substance satisfactory to the Administrative Agent.
12.6. PERFECTION CERTIFICATES AND UCC SEARCH RESULTS. The
Administrative Agent shall have received from each of TransTechnology and its
Subsidiaries a completed and fully executed Perfection Certificate and the
results of UCC searches or searches of any other relevant register of charges or
commercial register with respect to the Collateral, indicating no liens other
than Permitted Liens and otherwise in form and substance satisfactory to the
Administrative Agent.
12.7. SURVEYS. The Administrative Agent shall have received a Survey of
each Mortgaged Property as to which a survey has been conducted on or prior to
the date hereof.
12.8. TITLE INSURANCE, ETC..
(a) The Administrative Agent shall have received a Title Policy
covering each Mortgaged Property located in the United States (or commitments to
issue such policies, with all conditions to issuance of the Title Policy deleted
by an authorized agent of the Title Insurance Company) together with proof of
payment of all fees and premiums for such policies, from the Title Insurance
Company and in amounts satisfactory to the Administrative Agent, insuring the
interest of the Administrative Agent and each of the Lenders as mortgagee under
the Mortgages.
(b) The Administrative Agent shall have received an opinion of Canadian
counsel addressed to the Administrative Agent for the benefit of the Lenders, in
form and substance satisfactory to the Administrative Agent, as to title to the
Mortgaged Property located in Canada.
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12.9. CERTIFICATES OF INSURANCE. The Administrative Agent shall have
received (i) a certificate of insurance from an independent insurance broker
dated as of the Closing Date, identifying insurers, types of insurance,
insurance limits, and policy terms, and otherwise describing the insurance
obtained in accordance with the provisions of the Security Agreements and (ii)
certified copies of all policies evidencing such insurance (or certificates
therefore signed by the insurer or an agent authorized to bind the insurer).
12.10. BANK AGENCY AGREEMENTS. The Administrative Agent shall have
received an agreement, in form and substance satisfactory to the Administrative
Agent, from each bank at which TransTechnology or any of its Subsidiaries
maintains depository accounts (including bank agency or lock box agreements)
concerning the Administrative Agent's interest for the benefit of the Lenders
and the Administrative Agent in such accounts.
12.11. HAZARDOUS WASTE ASSESSMENTS. The Administrative Agent shall have
received hazardous waste site assessments from environmental engineers or other
documentation in form and substance satisfactory to the Administrative Agent,
covering all Mortgaged Property and all other real property in respect of which
TransTechnology or any of its Subsidiaries may have material liability, whether
contingent or otherwise, for dumping or disposal of Hazardous Substances.
12.12. SOLVENCY CERTIFICATE. Each of the Lenders shall have received an
officer's certificate of TransTechnology dated as of the Closing Date as to the
solvency of TransTechnology and its Subsidiaries following the consummation of
the transactions contemplated herein and in form and substance satisfactory to
the Lenders.
12.13. OPINIONS OF COUNSEL. Each of the Lenders and the Administrative
Agent shall have received a favorable legal opinion addressed to the Lenders and
the Administrative Agent, dated as of the Closing Date, in form and substance
satisfactory to the Lenders and the Administrative Agent, from:
(a) Xxxx Xxxxxx & Parks LLP, counsel to TransTechnology and
its Subsidiaries in the United States;
(b) Xxxxx, Day, Xxxxxx & Xxxxx, counsel to TransTechnology and
its Subsidiaries in the Federal Republic of Germany;
(c) Xxxxxxx & Xxxxxxx, solicitors to Limited; and
(d) if requested by the Administrative Agent such other local
counsel to TransTechnology in any jurisdiction where any Collateral
(including but not limited to the Mortgaged Property) is located.
12.14. PAYMENT OF FEES. TransTechnology shall have paid to the
Administrative Agent the fees payable pursuant to Section 6.1, and shall have
paid the reasonable fees and expenses of the Administrative Agent's Special
Counsel incurred
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in connection with the preparation and negotiation of this Credit Agreement and
the other Loan Documents.
12.15. SENIOR SUBORDINATED LOANS. The Senior Subordinated Loan
Agreement shall be in full force and effect, and all of the conditions precedent
to the borrowing by TransTechnology of Senior Subordinated Loans in the
principal amount of $75,000,000 (other than the effectiveness of this Agreement)
shall have been fulfilled.
12.16. TINNERMAN ACQUISITION. All of the conditions precedent to the
completion of the Tinnerman Acquisition in accordance with the Tinnerman
Acquisition Agreement shall have been fulfilled.
12.17. DISBURSEMENT INSTRUCTIONS. The Administrative Agent shall have
received disbursement instructions from TransTechnology indicating that (a) the
proceeds of the Senior Subordinated Loans, the Term Loan and a portion of the
proceeds of the initial Revolving Credit Loans are to be paid to Xxxxx
Corporation in payment of the purchase price under the Tinnerman Acquisition
Agreement, and (b) that a portion of the proceeds of the initial Revolving
Credit Loans, in an aggregate amount equal to the total amount of all
Indebtedness under the Prior Credit Agreement, are to be paid to the lenders
thereunder.
12.18. MINIMUM EBITDA. Consolidated Adjusted EBITDA for
Trans-Technology and its Subsidiaries (assuming for the purposes of this Section
12.18, completion of the Tinnerman Acquisition) for the Reference Period most
recently ended prior to the Closing Date for which such information is available
shall be at least $63,000,000.
12.19. MAXIMUM LEVERAGE RATIO. After giving effect to the transactions
described herein, in the Senior Subordinated Loan Documents and in the Tinnerman
Acquisition Documents, the Leverage Ratio as of the Closing Date shall not
exceed 4.75:1.
12.20. COMPLIANCE CERTIFICATE. The Administrative Agent shall have
received a statement certified on behalf of TransTechnology by the principal
financial or accounting officer of TransTechnology in substantially the form of
Exhibit D hereto and setting forth in reasonable detail computations evidencing
compliance with the closing conditions set forth in Sections 12.18 and 12.19,
and compliance of TransTechnology and its Subsidiaries as of the Closing Date,
on a pro forma basis assuming completion of the transactions contemplated
hereby, by the Senior Subordinated Loan Documents and by the Tinnerman
Acquisition Documents, with the financial covenants set forth in Section 11.
13. CONDITIONS TO ALL BORROWINGS.
The obligations of the Lenders to make any Revolving Credit Loans, of
the Fronting Banks to make any International Facility Loans, and of the Issuing
Bank to issue, extend or renew any Letter of Credit, in each case whether on or
after the
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Closing Date, shall also be subject to the satisfaction of the following
conditions precedent:
13.1. REPRESENTATIONS TRUE; NO EVENT OF DEFAULT. Each of the
representations and warranties of any of TransTechnology and its Subsidiaries
contained in this Credit Agreement, the other Loan Documents or in any document
or instrument delivered pursuant to or in connection with this Credit Agreement
shall be true as of the date as of which they were made and shall also be true
at and as of the time of the making of such Loan or the issuance, extension or
renewal of such Letter of Credit, with the same effect as if made at and as of
that time (except to the extent of changes resulting from transactions
contemplated or permitted by this Credit Agreement and the other Loan Documents
and changes occurring in the ordinary course of business that singly or in the
aggregate are not materially adverse, and to the extent that such individual
representations and warranties relate expressly to an earlier date) and no
Default or Event of Default shall have occurred and be continuing. Upon the
request of the Administrative Agent, TransTechnology shall have delivered to the
Administrative Agent a certificate of TransTechnology signed by an authorized
officer of TransTechnology to such effect.
13.2. NO LEGAL IMPEDIMENT. No change shall have occurred in any law or
regulations thereunder or interpretations thereof that in the reasonable opinion
of any Lender would make it illegal for such Lender to make such Loan pursuant
to the provisions of this Credit Agreement, or to participate in the issuance,
extension or renewal of such Letter of Credit or in the reasonable opinion of
the Issuing Bank would make it illegal for the Issuing Bank to issue, extend or
renew such Letter of Credit.
13.3. GOVERNMENTAL REGULATION. Each Lender shall have received such
statements in substance and form reasonably satisfactory to such Lender as such
Lender shall require for the purpose of compliance with any applicable
regulations of the Comptroller of the Currency or the Board of Governors of the
Federal Reserve System or any other applicable regulatory or supervisory body.
13.4. PROCEEDINGS AND DOCUMENTS. All proceedings in connection with the
transactions contemplated by this Credit Agreement, the other Loan Documents,
the Acquisition Documents and all other documents incident thereto shall be
satisfactory in substance and in form to the Lenders and to the Administrative
Agent and the Administrative Agent's Special Counsel, and the Lenders, the
Administrative Agent and such counsel shall have received all information and
such counterpart originals or certified or other copies of such documents as the
Administrative Agent may reasonably request.
14. EVENTS OF DEFAULT; ACCELERATION; ETC.
14.1. EVENTS OF DEFAULT AND ACCELERATION. If any of the following
events ("EVENTS OF DEFAULT" or, if the giving of notice or the lapse of time or
both is required, then, prior to such notice or lapse of time, "DEFAULTS") shall
occur:
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(a) any of the Borrowers shall fail to pay any principal of
the Loans or any Reimbursement Obligation when the same shall become
due and payable, whether at the stated date of maturity or any
accelerated date of maturity or at any other date fixed for payment;
(b) any of the Borrowers or their Subsidiaries shall fail to
pay any interest on the Loans, the commitment fee, any Letter of Credit
Fee, the Administrative Agent's fee, the fronting fee, or other sums
due hereunder or under any of the other Loan Documents, when the same
shall become due and payable, whether at the stated date of maturity or
any accelerated date of maturity or at any other date fixed for
payment;
(c) any of the Borrowers or their Subsidiaries shall fail to
comply with any of its covenants contained in Section 9, 10 or 11 or
any of the covenants contained in any of the Mortgages or in the
Debenture;
(d) any of the Borrowers or their Subsidiaries shall fail to
perform any term, covenant or agreement contained herein or in any of
the other Loan Documents (other than those specified elsewhere in this
Section 14.1 or those which by their terms expressly exclude any grace
period for any non-compliance therewith) for fifteen (15) days after
written notice of such failure has been given to TransTechnology by the
Administrative Agent;
(e) any representation or warranty of or any of the Borrowers
or their Subsidiaries in this Credit Agreement or any of the other Loan
Documents or in any other document or instrument delivered pursuant to
or in connection with this Credit Agreement shall prove to have been
false in any material respect upon the date when made or deemed to have
been made or repeated;
(f) any of the Borrowers or their Subsidiaries shall fail to
pay at maturity, or within any applicable period of grace, any
obligation for borrowed money or credit received, or in respect of any
Capitalized Leases as to which the aggregate principal amount of lease
obligations then outstanding exceed $1,000,000, or fail to observe or
perform any material term, covenant or agreement contained in any
agreement by which it is bound, evidencing or securing borrowed money
or credit received or in respect of any such Capitalized Leases for
such period of time as would permit (assuming the giving of appropriate
notice if required) the holder or holders thereof or of any obligations
issued thereunder to accelerate the maturity thereof;
(g) any of the Borrowers or their Subsidiaries shall make an
assignment for the benefit of creditors, or admit in writing its
inability to pay or generally fail to pay its debts as they mature or
become due, or shall petition or apply for the appointment of a trustee
or other custodian, liquidator or receiver of such Borrower or
Subsidiary or of any substantial part of the assets of such Borrower or
Subsidiary or shall commence any case or other proceeding relating to
any of the Borrowers or their Subsidiaries
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under any bankruptcy, reorganization, arrangement, insolvency,
readjustment of debt, dissolution or liquidation or similar law of any
jurisdiction, now or hereafter in effect, or shall take any action to
authorize or in furtherance of any of the foregoing, or if any such
petition or application shall be filed or any such case or other
proceeding shall be commenced against or any of the Borrowers or their
Subsidiaries and any of the Borrowers or their Subsidiaries shall
indicate its approval thereof, consent thereto or acquiescence therein
or such petition or application shall not have been dismissed within
forty-five (45) days following the filing thereof;
(h) a decree or order is entered appointing any such trustee,
custodian, liquidator or receiver or adjudicating any of the Borrowers
or their Subsidiaries bankrupt or insolvent, or approving a petition in
any such case or other proceeding, or a decree or order for relief is
entered in respect of any of the Borrowers or their Subsidiaries in an
involuntary case under federal bankruptcy laws as now or hereafter
constituted;
(i) there shall remain in force, undischarged, unsatisfied and
unstayed, for more than thirty (30) days, whether or not consecutive,
any final judgment against any of the Borrowers or their Subsidiaries
that, with other outstanding final judgments, undischarged, against the
Borrowers and their Subsidiaries exceeds in the aggregate $2,000,000;
(j) if any of the Loan Documents shall be cancelled,
terminated, revoked or rescinded or the Administrative Agent's security
interests, mortgages or liens in a substantial portion of the
Collateral shall cease to be perfected, or shall cease to have the
priority contemplated by the Security Documents, in each case otherwise
than in accordance with the terms thereof or with the express prior
written agreement, consent or approval of the Lenders (and,
notwithstanding anything herein to the contrary, if any guaranty shall
be cancelled, terminated, revoked or rescinded without the consent of
the Lenders), or any action at law, suit or in equity or other legal
proceeding to cancel, revoke or rescind any of the Loan Documents shall
be commenced by or on behalf of any of the Borrowers or their
Subsidiaries party thereto or any of their respective stockholders, or
any court or any other governmental or regulatory authority or agency
of competent jurisdiction shall make a determination that, or issue a
judgment, order, decree or ruling to the effect that, any one or more
of the Loan Documents is illegal, invalid or unenforceable in
accordance with the terms thereof;
(k) with respect to any Guaranteed Pension Plan, an ERISA
Reportable Event shall have occurred and the Majority Lenders shall
have determined in their reasonable discretion that such event
reasonably could be expected to result in liability of TransTechnology
or any of its Subsidiaries to the PBGC or such Guaranteed Pension Plan
in an aggregate amount exceeding $250,000 and such event in the
circumstances occurring reasonably could constitute grounds for the
termination of such Guaranteed Pension Plan by the PBGC or for the
appointment by the appropriate United
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Xxxxxx Xxxxxxxx Xxxxx of a trustee to administer such Guaranteed
Pension Plan; or a trustee shall have been appointed by the United
States District Court to administer such Plan; or the PBGC shall have
instituted proceedings to terminate such Guaranteed Pension Plan;
(l) any of the Borrowers or their Subsidiaries shall be
enjoined, restrained or in any way prevented by the order of any court
or any administrative or regulatory agency from conducting any material
part of its business and such order has a material adverse effect on
the business or financial condition of such Borrower or Subsidiary;
(m) there shall occur any material damage to, or loss, theft
or destruction of, any Collateral, whether or not insured, or any
strike, lockout, labor dispute, embargo, condemnation, act of God or
public enemy, or other casualty, which in any such case causes, for
more than fifteen (15) consecutive days, the cessation or substantial
curtailment of revenue producing activities at any facility of any of
the Borrowers or their Subsidiaries if such event or circumstance is
not covered by business interruption insurance and would have a
material adverse effect on the business or financial condition of such
Borrower or Subsidiary;
(n) there shall occur the loss, suspension or revocation of,
or failure to renew, any license or permit now held or hereafter
acquired by any of the Borrowers or their Subsidiaries if such loss,
suspension, revocation or failure to renew would have a material
adverse effect on the business or financial condition of such Borrower
or Subsidiary;
(o) any of the Borrowers or their Subsidiaries shall be
indicted for a state or federal crime, or any civil or criminal action
shall otherwise have been brought against any of the Borrowers or their
Subsidiaries, a punishment for which in any such case could include the
forfeiture of any assets of such Borrower or Subsidiary having a fair
market value in excess of $2,000,000;
(p) any person or group of persons (within the meaning of
Section 13 or 14 of the Securities Exchange Act of 1934, as amended)
shall have acquired beneficial ownership (within the meaning of Rule
13d-3 promulgated by the Securities and Exchange Commission under said
Act) of 35% or more of the outstanding shares of common stock of
TransTechnology; or, during any period of twelve consecutive calendar
months, individuals who were directors of TransTechnology on the first
day of such period shall cease to constitute a majority of the board of
directors of TransTechnology;
then, and in any such event, so long as the same may be continuing, the
Administrative Agent may, and upon the request of the Majority Lenders shall, by
notice in writing to the Borrowers declare all amounts owing with respect to
this Credit Agreement, the Loans, the Notes and the other Loan Documents and all
Reimbursement Obligations to be, and they shall thereupon forthwith become,
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immediately due and payable without presentment, demand, protest or other notice
of any kind, all of which are hereby expressly waived by each of the Borrowers;
PROVIDED that in the event of any Event of Default specified in Section 14.1(g)
or 14.1(h), all such amounts shall become immediately due and payable
automatically and without any requirement of notice from the Administrative
Agent or any Lender.
14.2. TERMINATION OF COMMITMENT. If any one or more of the Events of
Default specified in Section 14.1(g), Section 14.1(h) or Section 14.1(j) shall
occur, any unused portion of the credit hereunder shall forthwith terminate and
each of the Lenders (including the Fronting Banks) shall be relieved of all
further obligations to make Loans to any of the Borrowers and the Issuing Bank
shall be relieved of all further obligations to issue, extend or renew Letters
of Credit. If any other Event of Default shall have occurred and be continuing,
or if on any Drawdown Date or other date for issuing, extending or renewing any
Letter of Credit the conditions precedent to the making of the Loans to be made
on such Drawdown Date or (as the case may be) to issuing, extending or renewing
such Letter of Credit on such other date are not satisfied the Administrative
Agent may and, upon the request of the Majority Lenders, shall, by notice to the
Borrowers, terminate the Commitments hereunder, and upon such notice being given
such Commitments shall terminate immediately and each of the Lenders (including
the Fronting Banks) shall be relieved of all further obligations to make Loans
and the Issuing Bank shall be relieved of all further obligations to issue,
extend or renew Letters of Credit. No termination of the Commitments shall
relieve any of the Borrowers or their Subsidiaries of any of the Obligations.
14.3. REMEDIES. In case any one or more of the Events of Default shall
have occurred and be continuing, and whether or not the Administrative Agent or
the Majority Lenders shall have accelerated the maturity of the Loans pursuant
to Section 14.1, each Lender, if owed any amount with respect to the Loans or
the Reimbursement Obligations, may, with the consent of the Majority Lenders but
not otherwise, proceed to protect and enforce its rights by suit in equity,
action at law or other appropriate proceeding, whether for the specific
performance of any covenant or agreement contained in this Credit Agreement and
the other Loan Documents or any instrument pursuant to which the Obligations to
such Lender are evidenced, including as permitted by applicable law the
obtaining of the EX PARTE appointment of a receiver, and, if such amount shall
have become due, by declaration or otherwise, proceed to enforce the payment
thereof or any other legal or equitable right of such Lender. No remedy herein
conferred upon any Lender or the Administrative Agent or the holder of any Note
or purchaser of any Letter of Credit Participation is intended to be exclusive
of any other remedy herein or in any of the other Loan Documents and each and
every remedy shall be cumulative and shall be in addition to every other remedy
given hereunder or under any of the other Loan Documents or now or hereafter
existing at law or in equity or by statute or any other provision of law.
14.4. DISTRIBUTION OF COLLATERAL PROCEEDS. In the event that, following
the occurrence or during the continuance of any Default or Event of Default, the
Administrative Agent or any Lender, as the case may be, receives any monies in
connection with the enforcement of any the Security Documents, or otherwise with
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respect to the realization upon any of the Collateral, such monies shall be
distributed for application as follows:
(a) First, to the payment of, or (as the case may be) the
reimbursement of the Administrative Agent for or in respect of all
reasonable costs, expenses, disbursements and losses which shall have
been incurred or sustained by the Administrative Agent in connection
with the collection of such monies by the Administrative Agent, for the
exercise, protection or enforcement by the Administrative Agent of all
or any of the rights, remedies, powers and privileges of the
Administrative Agent under this Credit Agreement or any of the other
Loan Documents or in respect of the Collateral or in support of any
provision of adequate indemnity to the Administrative Agent against any
taxes or liens which by law shall have, or may have, priority over the
rights of the Administrative Agent to such monies;
(b) Second, to all other Obligations in such order or
preference as the Majority Lenders may determine; PROVIDED, HOWEVER,
that distributions in respect of such obligations shall be made (i)
PARI PASSU among Obligations with respect to the Administrative Agent's
fee payable pursuant to Section 6.2 and all other Obligations and (ii)
Obligations owing to the Lenders with respect to each type of
Obligation such as interest, principal, fees and expenses, shall be
made among the Lenders PRO RATA; and PROVIDED, FURTHER, that the
Administrative Agent may in its discretion make proper allowance to
take into account any Obligations not then due and payable;
(c) Third, upon payment and satisfaction in full or other
provisions for payment in full satisfactory to the Lenders and the
Administrative Agent of all of the Obligations, to the payment of any
obligations required to be paid pursuant to Section 9-504(1)(c) of the
Uniform Commercial Code of the Commonwealth of Massachusetts; and
(d) Fourth, the excess, if any, shall be returned to the
Borrowers or to such other Persons as are entitled thereto.
15. SETOFF.
Regardless of the adequacy of any collateral, during the continuance of
any Event of Default, any deposits or other sums credited by or due from any of
the Lenders to any of the Borrowers and any securities or other property of the
Borrowers in the possession of such Lender may be applied to or set off by such
Lender against the payment of Obligations and any and all other liabilities,
direct, or indirect, absolute or contingent, due or to become due, now existing
or hereafter arising, of the Borrowers to such Lender. Each of the Lenders
agrees with each other Lender that (i) if an amount to be set off is to be
applied to Indebtedness of a Borrower to such Lender, other than Indebtedness
evidenced by the Notes held by such Lender or constituting Reimbursement
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Obligations owed to such Lender, such amount shall be applied ratably to such
other Indebtedness and to the Indebtedness evidenced by all such Notes held by
such Lender or constituting Reimbursement Obligations owed to such Lender, and
(ii) if such Lender shall receive from any of the Borrowers, whether by
voluntary payment, exercise of the right of setoff, counterclaim, cross action,
enforcement of the claim evidenced by the Notes held by, or constituting
Reimbursement Obligations owed to, such Lender by proceedings against any of the
Borrowers at law or in equity or by proof thereof in bankruptcy, reorganization,
liquidation, receivership or similar proceedings, or otherwise, and shall retain
and apply to the payment of the Note or Notes held by, or Reimbursement
Obligations owed to, such Lender any amount in excess of its ratable portion of
the payments received by all of the Lenders with respect to the Notes held by,
and Reimbursement Obligations owed to, all of the Lenders, such Lender will make
such disposition and arrangements with the other Lenders with respect to such
excess, either by way of distribution, PRO TANTO assignment of claims,
subrogation or otherwise as shall result in each Lender receiving in respect of
the Notes held by it or Reimbursement Obligations owed it, its proportionate
payment as contemplated by this Credit Agreement; PROVIDED that if all or any
part of such excess payment is thereafter recovered from such Lender, such
disposition and arrangements shall be rescinded and the amount restored to the
extent of such recovery, but without interest.
16. THE AGENTS.
16.1. AUTHORIZATION.
(a) The Administrative Agent is authorized to take such action
on behalf of each of the Lenders and to exercise all such powers as are
hereunder and under any of the other Loan Documents and any related
documents delegated to the Administrative Agent, together with such
powers as are reasonably incident thereto, PROVIDED that no duties or
responsibilities not expressly assumed herein or therein shall be
implied to have been assumed by the Administrative Agent.
(b) The relationship between the Administrative Agent and each
of the Lenders is that of an independent contractor. The use of the
term "Administrative Agent" is for convenience only and is used to
describe, as a form of convention, the independent contractual
relationship between the Administrative Agent and each of the Lenders.
Nothing contained in this Credit Agreement nor the other Loan Documents
shall be construed to create an agency, trust or other fiduciary
relationship between the Administrative Agent and any of the Lenders.
(c) As an independent contractor empowered by the Lenders to
exercise certain rights and perform certain duties and responsibilities
hereunder and under the other Loan Documents, the Administrative Agent
is nevertheless a "representative" of the Lenders, as that term is
defined in Article 1 of the Uniform Commercial Code, for purposes of
actions for the benefit of the Lenders and the Administrative Agent
with respect to all collateral security and guaranties contemplated by
the Loan Documents. Such actions include the designation of the
Administrative Agent as "secured
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party", "mortgagee" or the like on all financing statements and other
documents and instruments, whether recorded or otherwise, relating to
the attachment, perfection, priority or enforcement of any security
interests, mortgages or deeds of trust in collateral security intended
to secure the payment or performance of any of the Obligations, all for
the benefit of the Lenders and the Administrative Agent.
16.2. EMPLOYEES AND AGENTS. The Administrative Agent may exercise its
powers and execute its duties by or through employees or agents and shall be
entitled to take, and to rely on, advice of counsel concerning all matters
pertaining to its rights and duties under this Credit Agreement and the other
Loan Documents. The Administrative Agent may utilize the services of such
Persons as the Administrative Agent in its sole discretion may reasonably
determine, and all reasonable fees and expenses of any such Persons shall be
paid by the Borrowers. Without limiting the foregoing, the Administrative Agent
may appoint the Sterling Fronting Bank or any other financial institution with
an office located within the United Kingdom as its agent to exercise within the
United Kingdom, under the Administrative Agent's direction, any or all of the
Administrative Agent's rights and duties under this Credit Agreement and the
other Loan Documents, and the Administrative Agent may appoint the DM Fronting
Bank or any other financial institution with an office located within Germany as
its agent to exercise within Germany, under the Administrative Agent's
direction, any or all of the Administrative Agent's rights and duties under this
Credit Agreement and the other Loan Documents. Any Fronting Bank or other
financial institution so appointed shall be entitled to the benefits of the
provisions of Sections 16 - 18 to the same extent, and subject to the same
limitations, as the Administrative Agent, for so long as such Fronting Bank or
other financial institution acts in such capacity.
16.3. NO LIABILITY. Neither the Agents nor any of their shareholders,
directors, officers or employees nor any other Person assisting them in their
duties, nor any agent or employee thereof, shall be liable for any waiver,
consent or approval given or any action taken, or omitted to be taken, in good
faith by it or them hereunder or under any of the other Loan Documents, or in
connection herewith or therewith, or be responsible for the consequences of any
oversight or error of judgment whatsoever, except that an Agent or such other
Person, as the case may be, may be liable for losses due to its willful
misconduct or gross negligence.
16.4. NO REPRESENTATIONS. The Administrative Agent shall not be
responsible for the execution or validity or enforceability of this Credit
Agreement, the Notes, the Letters of Credit, any of the other Loan Documents or
any instrument at any time constituting, or intended to constitute, collateral
security for the Notes, or for the value of any such collateral security or for
the validity, enforceability or collectability of any such amounts owing with
respect to the Notes, or for any recitals or statements, warranties or
representations made herein or in any of the other Loan Documents or in any
certificate or instrument hereafter furnished to it by or on behalf of the
Borrowers or any of their Subsidiaries, or be bound to ascertain or inquire as
to the performance or observance of any of the terms,
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conditions, covenants or agreements herein or in any instrument at any time
constituting, or intended to constitute, collateral security for the Notes or to
inspect any of the properties, books or records of the Borrowers or any of their
Subsidiaries. The Administrative Agent shall not be bound to ascertain whether
any notice, consent, waiver or request delivered to it by any of the Borrowers
or any holder of any of the Notes shall have been duly authorized or is true,
accurate and complete. The Administrative Agent has not made nor does it now
make any representations or warranties, express or implied, nor does it assume
any liability to the Lenders, with respect to the credit worthiness or financial
conditions of the Borrowers or any of their Subsidiaries. Each Lender
acknowledges that it has, independently and without reliance upon any Agent or
Lender, and based upon such information and documents as it has deemed
appropriate, made its own credit analysis and decision to enter into this Credit
Agreement.
16.5. PAYMENTS.
16.5.1. PAYMENTS TO ADMINISTRATIVE AGENT. A payment by any of
the Borrowers to the Administrative Agent hereunder or any of the other
Loan Documents for the account of any Lender shall constitute a payment
to such Lender. The Administrative Agent agrees promptly to distribute
to each Lender such Lender's pro rata share of payments received by the
Administrative Agent for the account of the Lenders except as otherwise
expressly provided herein or in any of the other Loan Documents.
16.5.2. DISTRIBUTION BY ADMINISTRATIVE AGENT. If in the
opinion of the Administrative Agent the distribution of any amount
received by it in such capacity hereunder, under the Notes or under any
of the other Loan Documents might involve it in liability, it may
refrain from making distribution until its right to make distribution
shall have been adjudicated by a court of competent jurisdiction. If a
court of competent jurisdiction shall adjudge that any amount received
and distributed by the Administrative Agent is to be repaid, each
Person to whom any such distribution shall have been made shall either
repay to the Administrative Agent its proportionate share of the amount
so adjudged to be repaid or shall pay over the same in such manner and
to such Persons as shall be determined by such court.
16.5.3. DELINQUENT LENDERS. Notwithstanding anything to the
contrary contained in this Credit Agreement or any of the other Loan
Documents, any Lender that fails (i) to make available to the
Administrative Agent its pro rata share of any Loan or to purchase any
Letter of Credit Participation, (ii) to make payment on the due date
therefor of any amount due to any of the Fronting Banks under Section
6.12.2, or (iii) to comply with the provisions of Section 15 with
respect to making dispositions and arrangements with the other Lenders,
where such Lender's share of any payment received, whether by setoff or
otherwise, is in excess of its pro rata share of such payments due and
payable to all of the Lenders, in each case as, when and to the full
extent required by the provisions of this Credit Agreement, shall be
deemed delinquent (a "DELINQUENT LENDER") and shall be deemed a
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Delinquent Lender until such time as such delinquency is satisfied. A
Delinquent Lender shall be deemed to have assigned any and all payments
due to it from the Borrowers, whether on account of outstanding Loans,
Unpaid Reimbursement Obligations, interest, fees or otherwise, to the
remaining nondelinquent Lenders for application to, and reduction of,
their respective pro rata shares of all outstanding Loans and Unpaid
Reimbursement Obligations. The Delinquent Lender hereby authorizes the
Administrative Agent to distribute such payments to the nondelinquent
Lenders in proportion to their respective pro rata shares of all
outstanding Loans and Unpaid Reimbursement Obligations. A Delinquent
Lender shall be deemed to have satisfied in full a delinquency when and
if, as a result of application of the assigned payments to all
outstanding Loans and Unpaid Reimbursement Obligations of the
nondelinquent Lenders, the Lenders' respective pro rata shares of all
outstanding Loans and Unpaid Reimbursement Obligations have returned to
those in effect immediately prior to such delinquency and without
giving effect to the nonpayment causing such delinquency.
16.6. HOLDERS OF NOTES. The Administrative Agent may deem and treat the
payee of any Note or the purchaser of any Letter of Credit Participation as the
absolute owner or purchaser thereof for all purposes hereof until it shall have
been furnished in writing with a different name by such payee or by a subsequent
holder, assignee or transferee.
16.7. INDEMNITY. The Lenders ratably agree hereby to indemnify and hold
harmless the Administrative Agent from and against any and all claims, actions
and suits (whether groundless or otherwise), losses, damages, costs, expenses
(including any expenses for which the Administrative Agent has not been
reimbursed by the Borrowers as required by Section 17), and liabilities of every
nature and character arising out of or related to this Credit Agreement, the
Notes, or any of the other Loan Documents or the transactions contemplated or
evidenced hereby or thereby, or the Administrative Agent's actions taken
hereunder or thereunder, except to the extent that any of the same shall be
directly caused by the Administrative Agent's willful misconduct or gross
negligence.
16.8. AGENTS AS LENDERS. In its individual capacity, each of the
Lenders which is also an Agent hereunder shall have the same obligations and the
same rights, powers and privileges in respect of its Revolving Credit Commitment
and the Loans made by it, and as the holder of any of the Notes and as the
purchaser of any Letter of Credit Participations, as it would have were it not
also an Agent.
16.9. RESIGNATION OF ADMINISTRATIVE AGENT. The Administrative Agent may
resign at any time by giving sixty (60) days prior written notice thereof to the
Lenders and TransTechnology. Upon any such resignation, the Majority Lenders
shall have the right to appoint a successor Administrative Agent. Unless a
Default or Event of Default shall have occurred and be continuing, such
successor Administrative Agent shall be reasonably acceptable to
TransTechnology. If no successor Administrative Agent shall have been so
appointed by the Majority
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Lenders and shall have accepted such appointment within thirty (30) days after
the retiring Administrative Agent's giving of notice of resignation, then the
retiring Administrative Agent may, on behalf of the Lenders, appoint a successor
Administrative Agent, which shall be a financial institution having a rating of
not less than A or its equivalent by Standard & Poor's Corporation. Upon the
acceptance of any appointment as Administrative Agent hereunder by a successor
Administrative Agent, such successor Administrative Agent shall thereupon
succeed to and become vested with all the rights, powers, privileges and duties
of the retiring Administrative Agent, and the retiring Administrative Agent
shall be discharged from its duties and obligations hereunder. After any
retiring Administrative Agent's resignation, the provisions of this Credit
Agreement and the other Loan Documents shall continue in effect for its benefit
in respect of any actions taken or omitted to be taken by it while it was acting
as Administrative Agent.
16.10. DUTIES OF CERTAIN AGENTS. Neither the Syndication Agent nor the
Documentation Agent shall have any duties or responsibilities under this Credit
Agreement in its capacity as such.
17. EXPENSES.
The Borrowers jointly and severally (but, in the case of GmbH, subject
to Section 30 of the GmbH Act of Germany) agree to pay (i) the reasonable costs
of producing and reproducing this Credit Agreement, the other Loan Documents and
the other agreements and instruments mentioned herein, (ii) any taxes (including
any interest and penalties in respect thereto) payable by the Administrative
Agent or any of the Lenders (other than taxes based upon the Administrative
Agent's or any Lender's net income) on or with respect to the transactions
contemplated by this Credit Agreement (the Borrowers hereby agreeing to
indemnify the Administrative Agent and each Lender with respect thereto), (iii)
the reasonable fees, expenses and disbursements of the Administrative Agent's
Special Counsel or any local counsel to the Administrative Agent incurred in
connection with the preparation, administration or interpretation of the Loan
Documents and other instruments mentioned herein, each closing hereunder, and
amendments, modifications, approvals, consents or waivers hereto or hereunder,
(iv) the fees, expenses and disbursements of the Administrative Agent incurred
by the Administrative Agent in connection with the preparation, administration
or interpretation of the Loan Documents and other instruments mentioned herein,
including all title insurance premiums, asset and/or collateral examiners' and
commercial finance examiners' fees and surveyor, engineering and appraisal
charges, (v) any fees, costs, expenses and bank charges, including bank charges
for returned checks, incurred by the Administrative Agent in establishing,
maintaining or handling agency accounts, lock box accounts and other accounts
for the collection of any of the Collateral; (vi) all reasonable out-of-pocket
expenses (including without limitation reasonable attorneys' fees and costs,
which attorneys may be employees of any Lender or the Administrative Agent, and
reasonable consulting, accounting, appraisal, investment banking and similar
professional fees and charges) incurred by any Lender or the Administrative
Agent in connection with (A) the enforcement of or preservation of rights under
any of the Loan Documents against any of the Borrowers or their
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Subsidiaries or the administration thereof after the occurrence of a Default or
Event of Default and (B) any litigation, proceeding or dispute whether arising
hereunder or otherwise, in any way related to any Lender's or the Administrative
Agent's relationship with any of the Borrowers or their Subsidiaries and (vii)
all reasonable fees, expenses and disbursements of any Lender or the
Administrative Agent incurred in connection with UCC searches, searches of
registers of charges and commercial or companies registers, UCC filings,
mortgage recordings or other filings on recordings of security documents
evidencing the Administrative Agent's lien on the Collateral. The covenants of
this Section 17 shall survive payment or satisfaction of all other Obligations.
18. INDEMNIFICATION.
The Borrowers jointly and severally (but, in the case of GmbH, subject
to Section 30 of the GmbH Act of Germany) agree to indemnify and hold harmless
the Agents, the Arranger and the Lenders, and their respective shareholders,
directors, agents, officers, Subsidiaries and Affiliates (each, an "INDEMNIFIED
PARTY") from and against any and all claims, actions, suits or causes of action
whether groundless or otherwise, and from and against any and all liabilities,
losses, damages, settlement payments, obligations, and reasonable costs and
expenses of every nature and character arising out of this Credit Agreement or
any of the other Loan Documents or the transactions contemplated hereby
including, without limitation, (i) any actual or proposed use by any of the
Borrowers or their Subsidiaries of the proceeds of any of the Loans or Letters
of Credit, (ii) the reversal or withdrawal of any provisional credits granted by
the Administrative Agent or any Lender upon the transfer of funds from bank
agency or lock box accounts or in connection with the provisional honoring of
checks or other items, (iii) any actual or alleged infringement of any patent,
copyright, trademark, service xxxx or similar right of any of the Borrowers or
their Subsidiaries comprised in the Collateral, (iv) any of the Borrowers or
their Subsidiaries entering into or performing this Credit Agreement or any of
the other Loan Documents, or (v) with respect to the Borrowers and their
Subsidiaries and their respective properties and assets, the violation of any
Environmental Law, the presence, disposal, escape, seepage, leakage, spillage,
discharge, emission, release or threatened release of any Hazardous Substances
or any action, suit, proceeding or investigation brought or threatened with
respect to any Hazardous Substances (including, but not limited to, claims with
respect to wrongful death, personal injury or damage to property), in each case
including, without limitation, the reasonable fees and disbursements of counsel
and allocated costs of internal counsel incurred in connection with any such
investigation, litigation or other proceeding, but excluding any such
liabilities, losses, damages, settlement payments, obligations, costs and
expenses resulting from the gross negligence or willful misconduct of the
applicable Indemnified Party. In litigation, or the preparation therefor, each
of the Lenders, the Agents and the Arranger shall be entitled to select their
own counsel and, in addition to the foregoing indemnity, the Borrowers jointly
and severally (but, in the case of GmbH, subject to Section 30 of the GmbH Act
of Germany) agree to pay promptly the reasonable fees and expenses of such
counsel. If, and to the extent that the obligations of the Borrowers under this
Section 18 are unenforceable for any reason, the Borrowers hereby jointly and
severally (but, in the case of GmbH,
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subject to Section 30 of the GmbH Act of Germany) agree to make the maximum
contribution to the payment in satisfaction of such obligations which is
permissible under applicable law. The covenants contained in this Section 18
shall survive payment or satisfaction in full of all other Obligations.
19. SURVIVAL OF COVENANTS, ETC.
All covenants, agreements, representations and warranties made herein,
in the Notes, in any of the other Loan Documents or in any documents or other
papers delivered by or on behalf of any of the Borrowers or their Subsidiaries
pursuant hereto shall be deemed to have been relied upon by the Lenders and the
Administrative Agent, notwithstanding any investigation heretofore or hereafter
made by any of them, and shall survive the making by any of the Lenders of any
of the Loans and the issuance, extension or renewal of any Letters of Credit, as
herein contemplated, and shall continue in full force and effect so long as any
Letter of Credit or any amount due under this Credit Agreement or the Notes or
any of the other Loan Documents remains outstanding or any Lender has any
obligation to make any Loans or the Issuing Bank has any obligation to issue,
extend or renew any Letter of Credit, and for such further time as may be
otherwise expressly specified in this Credit Agreement. All statements contained
in any certificate or other paper delivered to any Lender or the Administrative
Agent at any time by or on behalf of TransTechnology or any of its Subsidiaries
pursuant hereto or in connection with the transactions contemplated hereby shall
constitute representations and warranties by TransTechnology or such Subsidiary
hereunder.
20. ASSIGNMENT AND PARTICIPATION.
20.1. CONDITIONS TO ASSIGNMENT. Except as provided herein, each Lender
may assign to one or more Eligible Assignees all or a portion of its interests,
rights and obligations as a Lender under this Credit Agreement (including all or
a portion of its Commitment Percentage and Revolving Credit Commitment and the
same portion of the applicable Loans at the time owing to it, the Notes held by
it and, in the case of its Revolving Credit Commitment, the same portion of its
participating interest in the risk relating to any Letters of Credit or Fronted
Loans); PROVIDED that (i) each of the Administrative Agent and, so long as no
Default or Event of Default shall have occurred and be continuing,
TransTechnology, shall have given its prior written consent to such assignment
(such consent not to be unreasonably withheld), PROVIDED, FURTHER, however, that
no such consent and no fee for the Administrative Agent shall be required for
any assignment to a Lender or an Affiliate or Related Fund of a Lender, (ii)
each such assignment shall be of a constant, and not a varying, percentage of
all the assigning Lender's rights and obligations as a Lender under this Credit
Agreement, (iii) each assignment, other than an assignment to a Lender or an
Affiliate or Related Fund of a Lender (as to which no such minimum amount shall
apply), shall be in an amount that is at least $2,500,000 or a greater multiple
of $500,000, PROVIDED, HOWEVER, that assignments that are made on the same day
to two or more Related Funds may be treated as a single assignment for purposes
of the minimum amount, and (iv) the parties to such assignment shall execute and
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deliver to the Administrative Agent, for recording in the Register (as
hereinafter defined), an Assignment and Acceptance, substantially in the form of
EXHIBIT E hereto (an "ASSIGNMENT AND ACCEPTANCE"), together with any Notes
subject to such assignment. Upon such execution, delivery, acceptance and
recording, from and after the effective date specified in any such Assignment
and Acceptance, which effective date shall be at least five (5) Business Days
after the execution thereof, (i) the assignee thereunder shall be a party hereto
and, to the extent provided in such Assignment and Acceptance, have the rights
and obligations of a Lender hereunder, and (ii) the assigning Lender shall, to
the extent provided in such assignment and upon payment to the Administrative
Agent of the registration fee referred to in Section 20.3, be released from its
obligations under this Credit Agreement.
20.2. CERTAIN REPRESENTATIONS AND WARRANTIES; LIMITATIONS; COVENANTS.
By executing and delivering an Assignment and Acceptance, the parties to the
assignment thereunder confirm to and agree with each other and the other parties
hereto as follows:
(a) other than the representation and warranty that it is the
legal and beneficial owner of the interest being assigned thereby free
and clear of any adverse claim, the assigning Lender makes no
representation or warranty, express or implied, and assumes no
responsibility with respect to any statements, warranties or
representations made in or in connection with this Credit Agreement or
the execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Credit Agreement, the other Loan Documents
or any other instrument or document furnished pursuant hereto or the
attachment, perfection or priority of any security interest or
mortgage,
(b) the assigning Lender makes no representation or warranty
and assumes no responsibility with respect to the financial condition
of TransTechnology and its Subsidiaries or any other Person primarily
or secondarily liable in respect of any of the Obligations, or the
performance or observance by any of the Borrowers and their
Subsidiaries or any other Person primarily or secondarily liable in
respect of any of the Obligations of any of their obligations under
this Credit Agreement or any of the other Loan Documents or any other
instrument or document furnished pursuant hereto or thereto;
(c) such assignee confirms that it has received a copy of this
Credit Agreement, together with copies of the most recent financial
statements referred to in Section 8.4 and Section 9.4 and such other
documents and information as it has deemed appropriate to make its own
credit analysis and decision to enter into such Assignment and
Acceptance;
(d) such assignee will, independently and without reliance
upon the assigning Lender, the Agents or any other Lender and based on
such documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not taking
action under this Credit Agreement;
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(e) such assignee represents and warrants that it is an
Eligible Assignee;
(f) such assignee appoints and authorizes the Administrative
Agent to take such action as agent on its behalf and to exercise such
powers under this Credit Agreement and the other Loan Documents as are
delegated to the Administrative Agent by the terms hereof or thereof,
together with such powers as are reasonably incidental thereto;
(g) such assignee agrees that it will perform in accordance
with their terms all of the obligations that by the terms of this
Credit Agreement are required to be performed by it as a Lender;
(h) such assignee and such assignor each represents and
warrants that it is legally authorized to enter into such Assignment
and Acceptance; and
(i) such assignee acknowledges that it has made arrangements
with the assigning Lender satisfactory to such assignee with respect to
its pro rata share of Letter of Credit Fees in respect of outstanding
Letters of Credit.
20.3. REGISTER. The Administrative Agent shall maintain a copy of each
Assignment and Acceptance delivered to it and a register or similar list (the
"REGISTER") for the recordation of (a) the names and addresses of the Lenders,
and (b) the Commitment Percentages and the principal amounts of the Revolving
Credit Loans and portions of the Term Loan owing to, and the Letter of Credit
Participations and participations in the risk related to the Fronted Loans
purchased by, the Lenders from time to time. The entries in the Register shall
be conclusive, in the absence of manifest error, and the Borrowers, the
Administrative Agent and the Lenders may treat each Person whose name is
recorded in the Register as a Lender hereunder for all purposes of this Credit
Agreement. The Register shall be available for inspection by the Borrowers and
the Lenders at any reasonable time and from time to time upon reasonable prior
notice. Upon each such recordation, other than the recordations of transfers
from a Lender to an Affiliate or a Related Fund of such Lender, the assigning
Lender agrees to pay to the Administrative Agent a registration fee in the sum
of $3,500.
20.4. NEW NOTES. Upon its receipt of an Assignment and Acceptance
executed by the parties to such assignment, together with each Note subject to
such assignment, the Administrative Agent shall (i) record the information
contained therein in the Register, and (ii) give prompt notice thereof to
TransTechnology and the Lenders (other than the assigning Lender). Within five
(5) Business Days after receipt of such notice, TransTechnology, at its own
expense, shall execute and deliver to the Administrative Agent in exchange for
each surrendered Note, a new Note to the order of such Eligible Assignee in an
amount equal to the amount assumed by such Eligible Assignee pursuant to such
Assignment and Acceptance and, if the assigning Lender has retained some portion
of its obligations hereunder, a new Note or Notes to the order of the assigning
Lender in an amount equal to the
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amount retained by it hereunder as a Lender. Such new Notes shall provide that
they are replacements for the surrendered Notes, shall be in an aggregate
principal amount equal to the aggregate principal amount of the surrendered
Notes, shall be dated the effective date of such in Assignment and Acceptance
and shall otherwise be substantially the form of the assigned Notes. Upon the
request of the recipient of new Notes or the Administrative Agent, within five
(5) days of issuance of such new Notes pursuant to this Section 20.4,
TransTechnology shall deliver an opinion of counsel, which may be the general
counsel of TransTechnology, addressed to the recipients of the new Notes and the
Administrative Agent, relating to the due authorization, execution and delivery
of such new Notes and the legality, validity and binding effect thereof, in form
and substance satisfactory to the recipients of the new Notes, the
Administrative Agent and the Administrative Agent's Special Counsel. The
surrendered Notes shall be cancelled and returned to TransTechnology.
20.5. PARTICIPATIONS. Each Lender may sell participations to one or
more banks or other entities in all or a portion of such Lender's rights and
obligations under this Credit Agreement and the other Loan Documents; PROVIDED
that (i) each such participation shall be in an amount of not less than
$1,000,000, (ii) any such sale or participation shall not affect the rights and
duties of the selling Lender hereunder to the Borrowers, and (iii) the only
rights granted to the participant pursuant to such participation arrangements
with respect to waivers, amendments or modifications of the Loan Documents shall
be the rights to approve waivers, amendments or modifications that would reduce
the principal of or the interest rate on any Loans, extend the term or increase
the amount of any of the Commitments of such Lender as it relates to such
participant, reduce the amount of any commitment fees or Letter of Credit Fees
to which such participant is entitled or extend any regularly scheduled payment
date for principal or interest.
20.6. DISCLOSURE. The Borrowers agree that in addition to disclosures
made in accordance with standard and customary banking practices any Lender may
disclose information obtained by such Lender pursuant to this Credit Agreement
to assignees or participants and potential assignees or participants hereunder;
PROVIDED that such assignees or participants or potential assignees or
participants shall agree (i) to treat in confidence such information unless such
information otherwise becomes public knowledge, (ii) not to disclose such
information to a third party, except as required by law or legal process and
(iii) not to make use of such information for purposes of transactions unrelated
to such contemplated assignment or participation.
20.7. ASSIGNEE OR PARTICIPANT AFFILIATED WITH TRANSTECHNOLOGY. If any
assignee Lender is an Affiliate of TransTechnology, then any such assignee
Lender shall have no right to vote as a Lender hereunder or under any of the
other Loan Documents for purposes of granting consents or waivers or for
purposes of agreeing to amendments or other modifications to any of the Loan
Documents or for purposes of making requests to the Administrative Agent
pursuant to Section 14.1 or Section 14.2, and the determination of the Majority
Lenders shall for all purposes of this Credit Agreement and the other Loan
Documents be made without regard to such assignee Lender's interest in any of
the Loans. If any Lender sells a participating
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interest in any of the Loans or Reimbursement Obligations to a participant, and
such participant is TransTechnology or an Affiliate of TransTechnology, then
such transferor Lender shall promptly notify the Administrative Agent of the
sale of such participation. A transferor Lender shall have no right to vote as a
Lender hereunder or under any of the other Loan Documents for purposes of
granting consents or waivers or for purposes of agreeing to amendments or
modifications to any of the Loan Documents or for purposes of making requests to
the Administrative Agent pursuant to Section 14.1 or Section 14.2 to the extent
that such participation is beneficially owned by TransTechnology or any
Affiliate of TransTechnology, and the determination of the Majority Lenders
shall for all purposes of this Credit Agreement and the other Loan Documents be
made without regard to the interest of such transferor Lender in the Loans to
the extent of such participation.
20.8. MISCELLANEOUS ASSIGNMENT PROVISIONS. Any assigning Lender shall
retain its rights to be indemnified pursuant to Section 17 with respect to any
claims or actions arising prior to the date of such assignment. If any assignee
Lender is not incorporated under the laws of the United States of America or any
state thereof, it shall, prior to the date on which any interest or fees are
payable hereunder or under any of the other Loan Documents for its account,
deliver to TransTechnology and the Administrative Agent certification as to its
exemption from deduction or withholding of any United States federal income
taxes. If the Reference Bank transfers all of its interest, rights and
obligations under this Credit Agreement, the Administrative Agent shall, in
consultation with TransTechnology and with the consent of TransTechnology and
the Majority Lenders, appoint another Lender to act as the Reference Bank
hereunder, and in the absence of such consent the Administrative Agent shall act
as Reference Bank. Anything contained in this Section 20 to the contrary
notwithstanding, any Lender may at any time pledge all or any portion of its
interest and rights under this Credit Agreement (including all or any portion of
its Notes) to any of the twelve Federal Reserve Banks organized under Section 4
of the Federal Reserve Act, 12 U.S.C. Section 341. No such pledge or the
enforcement thereof shall release the pledgor Lender from its obligations
hereunder or under any of the other Loan Documents.
20.9. ASSIGNMENT BY THE BORROWERS. None of the Borrowers shall assign
or transfer any of its rights or obligations under any of the Loan Documents,
without the prior written consent of each of the Lenders.
20.10. SYNDICATION. The Borrowers shall provide all information
reasonably requested by the Arranger in form and substance reasonably
satisfactory to the Arranger to complete the syndication of BankBoston's initial
Commitment, including, without limitation, all information that is reasonably
available and all projections prepared by or on behalf of the Borrowers relating
to the transactions contemplated hereby. The Borrowers and their respective
directors, officers, employees and agents shall, at the reasonable request of
the Arranger meet with potential Lenders and provide such additional information
as such Persons might reasonably request. The Borrowers agree that the option to
borrow Eurocurrency Rate Loans under the loan facilities set forth herein prior
to completion of the
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syndication of BankBoston's initial Commitment is subject to the provisions of
the second sentence of Section 6.13.
21. NOTICES, ETC.
Except as otherwise expressly provided in this Credit Agreement, all
notices and other communications made or required to be given pursuant to this
Credit Agreement or the Notes or any Letter of Credit Applications shall be in
writing and shall be delivered in hand, mailed by United States registered or
certified first class mail or, if either the Person giving the notice or the
Person being notified is outside the United States, by registered or
recorded-delivery air mail, in each case postage prepaid, sent by overnight
courier, or sent by telegraph, telecopy, facsimile or telex and confirmed by
delivery via courier or postal service, addressed as follows:
(a) if to any of the Borrowers, at TransTechnology
Corporation, 000 Xxxxx Xxxx, Xxxxxxx Xxxxxx, Xxx Xxxxxx 00000, U.S.A.,
Attention: Xxxxxx X. Xxxxxx, Esq., Vice President, Secretary and
General Counsel, or at such other address for notice as TransTechnology
shall last have furnished in writing to the Person giving the notice;
(b) if to the Administrative Agent, at 000 Xxxxxxx Xxxxxx,
Xxxxxx, Xxxxxxxxxxxxx 00000, XXX, Attention: Xxxxx X. Xxxxxxxxx, Vice
President, or such other address for notice as the Administrative Agent
shall last have furnished in writing to the Person giving the notice;
(c) if to any Lender or Fronting Bank, at such Lender's or
Fronting Bank's address set forth on SCHEDULE 1 hereto, or such other
address for notice as such Lender or Fronting Bank shall have last
furnished in writing to the Person giving the notice; and
Any such notice or demand shall be deemed to have been duly given or
made and to have become effective (i) if delivered by hand, overnight courier or
facsimile to a responsible officer of the party to which it is directed, at the
time of the receipt thereof by such officer or the sending of such facsimile,
(ii) if sent by registered or certified first-class mail, postage prepaid, on
the third Business Day following the mailing thereof, and (iii) if sent by
registered or recorded-delivery air mail, on the fifth Business Day following
the mailing thereof.
22. GOVERNING LAW.
THIS CREDIT AGREEMENT AND, EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED
THEREIN, EACH OF THE OTHER LOAN DOCUMENTS ARE CONTRACTS UNDER THE LAWS OF THE
COMMONWEALTH OF MASSACHUSETTS AND SHALL FOR ALL PURPOSES BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF SAID COMMONWEALTH OF MASSACHUSETTS
(EXCLUDING THE LAWS APPLICABLE TO CONFLICTS OR CHOICE OF LAW). THE BORROWERS
AGREE THAT ANY SUIT FOR THE
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ENFORCEMENT OF THIS CREDIT AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS MAY BE
BROUGHT IN THE COURTS OF THE COMMONWEALTH OF MASSACHUSETTS OR ANY FEDERAL COURT
SITTING THEREIN AND EACH OF THE BORROWERS CONSENTS TO THE NONEXCLUSIVE
JURISDICTION OF SUCH COURT AND SERVICE OF PROCESS IN ANY SUCH SUIT BEING MADE
UPON IT BY MAIL AT THE ADDRESS SPECIFIED IN SECTION 21. IN ADDITION, ANY SUIT OR
OTHER REMEDY UNDER ANY OF THE SECURITY DOCUMENTS MAY BE BROUGHT IN THE
JURISDICTION IN WHICH THE RESPECTIVE COLLATERAL OR MORTGAGED PROPERTY THEREUNDER
IS LOCATED. EACH OF GMBH AND LIMITED HEREBY EXPRESSLY APPOINTS TRANSTECHNOLOGY
AT THE ADDRESS SPECIFIED IN SECTION 21 AS ITS AGENT FOR SERVICE OF PROCESS. EACH
OF THE BORROWERS HEREBY WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE
TO THE VENUE OF ANY SUCH SUIT OR ANY SUCH COURT OR THAT SUCH SUIT IS BROUGHT IN
AN INCONVENIENT COURT.
23. HEADINGS.
The captions in this Credit Agreement are for convenience of reference
only and shall not define or limit the provisions hereof.
24. COUNTERPARTS.
This Credit Agreement and any amendment hereof may be executed in
several counterparts and by each party on a separate counterpart, each of which
when executed and delivered shall be an original, and all of which together
shall constitute one instrument. In proving this Credit Agreement it shall not
be necessary to produce or account for more than one such counterpart signed by
the party against whom enforcement is sought.
25. ENTIRE AGREEMENT, ETC.
The Loan Documents and any other documents executed in connection
herewith or therewith express the entire understanding of the parties with
respect to the transactions contemplated hereby. Neither this Credit Agreement
nor any term hereof may be changed, waived, discharged or terminated, except as
provided in Section 27.
26. WAIVER OF JURY TRIAL.
Each of the Borrowers and the Lenders hereby waives its right to a jury
trial with respect to any action or claim arising out of any dispute in
connection with this Credit Agreement, the Notes or any of the other Loan
Documents, any rights or obligations hereunder or thereunder or the performance
of which rights and obligations. Except as prohibited by law, each of the
Borrowers hereby waives any right it may have to claim or recover in any
litigation referred to in the preceding sentence any special, exemplary,
punitive or consequential damages or any damages other than, or in addition to,
actual damages. Each of the Borrowers (i) certifies
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that no representative, agent or attorney of any Lender or the Administrative
Agent has represented, expressly or otherwise, that such Lender or the
Administrative Agent would not, in the event of litigation, seek to enforce the
foregoing waivers and (ii) acknowledges that each of the Administrative Agent
and the Lenders has been induced to enter into this Credit Agreement, the other
Loan Documents to which it is a party by, among other things, the waivers and
certifications contained herein.
27. CONSENTS, AMENDMENTS, WAIVERS, ETC.
27.1. VOTING PROCEDURES.
(a) Except as set forth in clauses (b) - (f) below, any term, covenant,
agreement or condition of this Agreement or any of the Loan Documents may be
amended or waived and any departure therefrom may be consented to by the
Majority Lenders if, but only if, such amendment, waiver or consent is in
writing signed by the Majority Lenders and, in the case of an amendment (other
than an amendment described in Section 27.2), by the Borrowers and, in any such
event, the failure to observe, perform oR discharge any such term, covenant,
agreement or condition (whether such amendment is executed or such waiver or
consent is given before or after such failure) shall not be construed as a
breach of such term, covenant, agreement or condition or as a Default or an
Event of Default. Unless otherwise specified in such waiver or consent, a waiver
or consent given hereunder shall be effective only in the specific instance and
for the specific purpose for which given. Anything herein to the contrary
notwithstanding, the Majority Lenders shall have the right to waive any Default
or Event of Default and the consequences hereunder of such Default or Event of
Default and shall have the right to enter into an agreement with the Borrowers
providing for the forbearance from the exercise of any remedies provided
hereunder or under the other Loan Documents without waiving any Default or Event
of Default. The making of Loans hereunder by the Lenders during the existence of
a Default or Event of Default shall not be deemed to constitute a waiver of such
Default or Event of Default.
(b) Except as otherwise set forth in this Agreement, without the prior
unanimous written consent of the Lenders, no amendment, consent or waiver shall
affect the amount or extend the time of the obligation of the Lenders to make
Loans or extend the originally scheduled time or times of payment of the
principal of any Loan or alter the time or times of payment of interest on any
Loan or the amount of the principal thereof or the rate of interest thereon or
the amount of any revolving credit commitment fee payable hereunder or permit
any subordination of the principal or interest on any Loan.
(c) Except as otherwise set forth in this Agreement, without the prior
unanimous written consent of the Lenders and the Fronting Banks, no amendment,
consent or waiver shall affect the amount or extend the time of the obligation
of the Fronting Banks to make International Facility Loans or extend the
originally scheduled time or times of payment of the principal of any such Loan
or alter the time or times of payment of interest on any such Loan or the amount
of the principal thereof or the rate of interest thereon or the amount of the
fronting fee referred to in
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Section 6.12.1 or permit any subordination of the principal or interest on any
such Loan or alter the apportionment of any repayments or prepayment of any such
Loans to which a Fronting Bank is entitled.
(d) Except as otherwise set forth in this Agreement, (i) without the
prior written consent of the Issuing Bank, no amendment, consent or waiver shall
affect the rights or duties of the Issuing Bank, including without limitation
the amount of any Letter of Credit Fees payable hereunder, (ii) without the
prior written consent of a Fronting Bank, no amendment, consent or waiver shall
affect the rights or duties of such Fronting Bank, including without limitation
the amount of any fronting fees payable hereunder and (iii) without the prior
written consent of the applicable Agent, no amendment, consent or waiver shall
affect the right or duties of an Agent, including without limitation the amount
of any Administrative Agent's fees payable hereunder, or the provisions of
Section 16.
(e) Neither TransTechnology nor any of its Subsidiaries which is a
"significant subsidiary" (as defined in Regulation S-X under the Securities
Exchange Act of 1934) shall be released from any of the Guaranties, other than
as specifically permitted by such Guaranty, without the prior unanimous written
consent of the Lenders pursuant to this Section 27.1(e), and no portion of the
Collateral with a book value at the time of such release which, when aggregated
with the book value of all other portions of the Collateral released by the
Administrative Agent in any fiscal year without the prior unanimous consent of
the Lenders pursuant to this Section 27.1(e), exceeds $1,000,000, shall be
released by the Administrative Agent, other than as specifically permitted by
this Agreement or in the other Loan Documents, without the prior unanimous
written consent of the Lenders for such release, PROVIDED, however, that any
other release of Collateral may be agreed to by the Administrative Agent alone,
unless specifically prohibited by this Agreement or any of the other Loan
Documents.
(f) Neither the definition of "Majority Lenders", nor the provisions of
this Section 27.1, may be amended without the prior unanimous written consent of
the Lenders.
27.2. BORROWERS' CONSENT NOT REQUIRED FOR CERTAIN AMENDMENTS.
Notwithstanding any provision of this Agreement or the other Loan Documents to
the contrary, no consent, written or otherwise, of the Borrowers shall be
necessary or required in connection with any amendment to Section 6.12.2 or
Section 16, and Any amendment to such provisions shall be effected solely by and
among the Administrative Agent, the Fronting Banks and the Lenders (with respect
to any amendment to Section 6.12.2) or the Administrative Agent and the Lenders
(with respect to any amendment of Section 16), PROVIDED that no such amendment
shall impose any obligation on the Borrowers.
27.3. COURSE OF DEALING. No course of dealing or delay or omission on
the part of the Administrative Agent or any Lender in exercising any right shall
operate as a waiver thereof or otherwise be prejudicial thereto. No notice to or
demand upon any of the Borrowers shall entitle any of the Borrowers to other or
further notice or demand in similar or other circumstances.
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28. SEVERABILITY.
The provisions of this Credit Agreement are severable and if any one
clause or provision hereof shall be held invalid or unenforceable in whole or in
part in any jurisdiction, then such invalidity or unenforceability shall affect
only such clause or provision, or part thereof, in such jurisdiction, and shall
not in any manner affect such clause or provision in any other jurisdiction, or
any other clause or provision of this Credit Agreement in any jurisdiction.
29. TREATMENT OF CERTAIN CONFIDENTIAL INFORMATION.
29.1. SHARING OF INFORMATION WITH SECTION 20 SUBSIDIARY.
Trans-Technology acknowledges that from time to time financial advisory,
investment banking and other services may be offered or provided to
TransTechnology or one or more of its Subsidiaries, in connection with this
Credit Agreement or otherwise, by a Section 20 Subsidiary. TransTechnology, for
itself and each of its Subsidiaries, hereby authorizes (a) such Section 20
Subsidiary to share with the Administrative Agent and each Lender any
information delivered to such Section 20 Subsidiary by TransTechnology or any of
its Subsidiaries, and (b) the Administrative Agent and each Lender to share with
such Section 20 Subsidiary any information delivered to the Administrative Agent
or such Lender by TransTechnology or any of its Subsidiaries pursuant to this
Credit Agreement, or in connection with the decision of such Lender to enter
into this Credit Agreement; it being understood, in each case, that any such
Section 20 Subsidiary receiving such information shall be bound by the
confidentiality provisions of this Credit Agreement. Such authorization shall
survive the payment and satisfaction in full of all of Obligations.
29.2. CONFIDENTIALITY. Each of the Lenders and the Administrative Agent
agrees, on behalf of itself and each of its affiliates, directors, officers,
employees and representatives, to use reasonable precautions to keep
confidential, in accordance with their customary procedures for handling
confidential information of the same nature and in accordance with safe and
sound banking practices, any non-public information supplied to it by
TransTechnology or any of its Subsidiaries pursuant to this Credit Agreement
that is identified by such Person as being confidential at the time the same is
delivered to any of the Lenders or the Administrative Agent, PROVIDED that
nothing herein shall limit the disclosure of any such information (a) after such
information shall have become public other than through a violation of this
Section 29, (b) tO the extent required by statute, rule, regulation or judicial
process, (c) to counsel, auditors or accounts for any of the Lenders or the
Administrative Agent, (d) to bank examiners or any other regulatory authority
having jurisdiction over any of the Lenders or the Administrative Agent, (e) to
the Administrative Agent, any Lender or any Section 20 Subsidiary, (f) in
connection with any litigation to which any one or more of the Lenders, the
Administrative Agent or any Section 20 Subsidiary is a party, or in connection
with the enforcement of rights or remedies hereunder or under any other Loan
Document, (g) to a Subsidiary or affiliate of such Lender as provided in Section
29.1 or (h) to any assignee oR participant (or prospective assignee or
participant) so long as such assignee or participant agrees to be bound by the
provisions of Section 20.6.
113
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29.3. PRIOR NOTIFICATION. Unless specifically prohibited by applicable
law or court order, each of the Lenders and the Administrative Agent shall,
prior to disclosure thereof, notify TransTechnology of any request for
disclosure of any such non-public information by any governmental agency or
representative thereof (other than any such request in connection with an
examination of the financial condition of such Lender or the Administrative
Agent by such governmental agency) or pursuant to legal process, and shall
consult with TransTechnology on the advisability of taking legally available
steps to resist or narrow any such request. In the event that such steps are not
available or effective, or are deemed inadvisable by counsel to such Lender or
the Administrative Agent, as the case may be, or in the event that
TransTechnology waives compliance with the provisions of this Section 29.3, such
Lender or the Administrative Agent, and/or its respective representatives, as
the case may be, may disclose to any tribunal only that portion of such
non-public information which it is advised by counsel is legally required to be
disclosed, and shall exercise reasonable efforts to obtain assurances that
confidential treatment will be accorded such non-public information.
29.4. OTHER. In no event shall any Lender or the Administrative Agent
be obligated or required to return any materials furnished to it or any Section
20 Subsidiary by TransTechnology or any of its Subsidiaries which such Lender,
Section 20 Subsidiary or Administrative Agent is required to retain pursuant to
any requirement of law or rule or regulation of any governmental agency. The
obligations of each Lender under this Section 29 shall supersede and replace the
obligations of such Lender under any confidentiality letter in respect of this
financing signed and delivered by such Lender to TransTechnology prior to the
date hereof and shall be binding upon any assignee of, or purchaser of any
participation in, any interest in any of the Loans or Reimbursement Obligations
from any Lender.
30. TRANSITIONAL ARRANGEMENTS.
30.1. PRIOR CREDIT AGREEMENT SUPERSEDED. This Credit Agreement shall on
the Closing Date amend and restate the Prior Credit Agreement in its entirety,
except as provided in this Section 30. On the Closing Date, the rights and
obligations of the parties evidenced by the Prior Credit Agreement shall be
evidenced by the Credit Agreement and the other Loan Documents, as defined
herein, and the Loans as defined in the Prior Credit Agreement, collectively,
shall be converted to the Loans as defined herein.
30.2. INTEREST AND FEES UNDER PRIOR CREDIT AGREEMENT. All interest and
fees and expenses, if any, owing or accruing under or in respect of the Prior
Credit Agreement through the Closing Date shall be calculated as of the Closing
Date (prorated in the case of any fractional periods), and shall be paid in
accordance with the method, for the periods, and on the dates, specified in the
Prior Credit Agreement, as if the Prior Credit Agreement were still in effect.
Commencing on the Closing Date, the commitment fee shall be payable by the
Borrowers to the Administrative Agent for the account of the Lenders in
accordance with Section 2.2.
114
IN WITNESS WHEREOF, the undersigned have duly executed this Credit
Agreement as a sealed instrument as of the date first set forth above.
TRANSTECHNOLOGY CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President and CFO
TRANSTECHNOLOGY XXXXXX-ORBIS GMBH
By: /s/ Ulf Jemsby
--------------------------------
Name: Ulf Jemsby
Title: Geschaftsfuhrer
TRANSTECHNOLOGY (GB) LIMITED
By: /s/ Ulf Jemsby
--------------------------------
Name: Ulf Jemsby
Title: Director
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Director
BANKBOSTON, N.A., individually and as
Administrative Agent, Issuing Bank and
Sterling Fronting Bank
By: /s/ Xxxxxx X. XxxXxxxxxx
--------------------------------
Name: Xxxxxx X. XxxXxxxxxx
Title: Vice President
115
BHF-BANK AKTIENGESELLSCHAFT,
as DM Fronting Bank
By: /s/ Xxxxxxx Xxxxxxxxx
--------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Assistant Treasurer
By: /s/ Xxxxxxxx Xxxxxxxxx
--------------------------------
Name: Xxxxxxxx Xxxxxxxxx
Title: Vice President
ABN AMRO BANK N.V.,
individually and as Syndication Agent
By: /s/ Xxxx Megeaski
--------------------------------
Name: Xxxx Megeaski
Title: Vice President
By: /s/ Xxxxxx X. Xxxxxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Assistant Vice President
THE FIRST NATIONAL BANK OF
CHICAGO, individually and as
Documentation Agent
By: /s/ Xxxxxxx Xxxxxxxx
--------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Vice President
000
XXX XXXX XX XXX XXXX
By: /s/ Xxxxxx X. Xxxxxxxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxxxxxxx
Title: Vice President
KEY CORPORATE CAPITAL INC.
By: /s/ Xxxx Xxxxxxxxxx
--------------------------------
Name: Xxxx Xxxxxxxxxx
Title: Vice President
BANK OF NOVA SCOTIA
By: /s/ Xxxxx Xxxxx
--------------------------------
Name: Xxxxx Xxxxx
Title: Senior Relationship Manager
COMERICA BANK
By: /s/ Xxxxxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxxxxx X. Xxxxxxx
Title: Vice President
DRESDNER BANK, AG, NEW YORK
AND GRAND CAYMAN BRANCHES
By: /s/ Xxxxxxxxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxxxxxxxx X. Xxxxxxx
Title: Assistant Vice President
By: /s/ Xxxx X. Xxxxxxxx
--------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Vice President
117
SUMMIT BANK
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
118
EXHIBIT A
---------
FORM OF [AMENDED AND RESTATED]
REVOLVING CREDIT NOTE
$[_______] ________ __, ______
FOR VALUE RECEIVED, the undersigned TRANSTECHNOLOGY CORPORATION, a
Delaware corporation ("TransTechnology"), hereby promises to pay (without setoff
or counterclaim) to the order of [INSERT LENDER], a [insert entity] (the
"Lender"), at the Administrative Agent's Head Office (as defined in the Credit
Agreement referred to below):
(a) prior to or on August __, 2004 the principal amount of
[INSERT AMOUNT] DOLLARS ($_____) or, if less, the aggregate unpaid
principal amount of Revolving Credit Loans advanced by the Lender to
TransTechnology pursuant to the Second Amended and Restated Credit
Agreement dated as of June 30, 1995 and amended and restated as of July
24, 1998 and as further amended and restated as of August __, 1999 (as
amended, restated, modified, varied and in effect from time to time,
the "Credit Agreement"), by and among TransTechnology, TransTechnology
Xxxxxx-Orbis GmbH, TransTechnology (GB) Limited (collectively, the
"Borrowers"), the lending institutions party thereto (the "Lenders"),
BankBoston, N.A. acting through its London Branch as Sterling Fronting
Bank, BHF-BANK Aktiengesellschaft acting as DM Fronting Bank,
BankBoston, N.A., as Issuing Bank, ABN AMRO Bank N.V., as Syndication
Agent, The First National Bank of Chicago, as Documentation Agent, and
BankBoston, N.A., as administrative agent for itself, the Lenders, the
Sterling Fronting Bank, the DM Fronting Bank and the Issuing Bank (the
"Administrative Agent");
(b) the principal outstanding hereunder from time to time at
the times provided in the Credit Agreement; and
(c) interest on the principal balance hereof from time to time
outstanding from the Closing Date under the Credit Agreement through
and including the maturity date hereof at the times and at the rate
provided in the Credit Agreement.
This Note evidences borrowings under and has been issued by
TransTechnology in accordance with the terms of the Credit Agreement. The Lender
and any holder hereof is entitled to the benefits of the Credit Agreement, the
Security Documents and the other Loan Documents, and may enforce the agreements
of TransTechnology contained therein, and any holder hereof may exercise the
respective remedies provided for thereby or otherwise available in respect
thereof, all in accordance with the respective terms thereof. All
119
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capitalized terms used in this Note and not otherwise defined herein shall have
the same meanings herein as in the Credit Agreement.
[This Note constitutes the amendment and restatement in its entirety of
the [amended and restated] revolving credit note of TransTechnology to the
Lender dated as of July 24, 1998.]
TransTechnology irrevocably authorizes the Lender to make or cause to
be made, at or about the time of the Drawdown Date of any Revolving Credit Loan
or at the time of receipt of any payment of principal of this Note, an
appropriate notation on the grid attached to this Note, or the continuation of
such grid, or any other similar record, including computer records, reflecting
the making of such Revolving Credit Loan or (as the case may be) the receipt of
such payment. The outstanding amount of the Revolving Credit Loans set forth on
the grid attached to this Note, or the continuation of such grid, or any other
similar record, including computer records, maintained by the Lender with
respect to any Revolving Credit Loans shall be prima facie evidence of the
principal amount thereof owing and unpaid to the Lender, but the failure to
record, or any error in so recording, any such amount on any such grid,
continuation or other record shall not limit or otherwise affect the obligation
of TransTechnology hereunder or under the Credit Agreement to make payments of
principal of and interest on this Note when due.
TransTechnology has the right in certain circumstances and the
obligation under certain other circumstances to prepay the whole or part of the
principal of this Note on the terms and conditions specified in the Credit
Agreement.
If any one or more of the Events of Default shall occur, the entire
unpaid principal amount of this Note and all of the unpaid interest accrued
thereon may become or be declared due and payable in the manner and with the
effect provided in the Credit Agreement.
No delay or omission on the part of the Lender or any holder hereof in
exercising any right hereunder shall operate as a waiver of such right or of any
other rights of the Lender or such holder, nor shall any delay, omission or
waiver on any one occasion be deemed a bar or waiver of the same or any other
right on any further occasion.
TransTechnology and every endorser and guarantor of this Note or the
obligation represented hereby waives presentment, demand, notice, protest and
all other demands and notices in connection with the delivery, acceptance,
performance, default or enforcement of this Note, and assents to any extension
or postponement of the time of payment or any other indulgence, to any
substitution, exchange or release of collateral and to the addition or release
of any other party or person primarily or secondarily liable.
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THIS NOTE AND THE OBLIGATIONS OF TRANSTECHNOLOGY HEREUNDER SHALL FOR
ALL PURPOSES BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE
COMMONWEALTH OF MASSACHUSETTS (EXCLUDING THE LAWS APPLICABLE TO CONFLICTS OR
CHOICE OF LAW). TRANSTECHNOLOGY AGREES THAT ANY SUIT FOR THE ENFORCEMENT OF THIS
NOTE MAY BE BROUGHT IN THE COURTS OF THE COMMONWEALTH OF MASSACHUSETTS OR ANY
FEDERAL COURT SITTING THEREIN AND CONSENTS TO THE NONEXCLUSIVE JURISDICTION OF
SUCH COURT AND THE SERVICE OF PROCESS IN ANY SUCH SUIT BEING MADE UPON
TRANSTECHNOLOGY BY MAIL AT THE ADDRESS SPECIFIED IN ss.21 OF THE CREDIT
AGREEMENT. TRANSTECHNOLOGY HEREBY WAIVES ANY OBJECTION THAT IT MAY NOW OR
HEREAFTER HAVE TO THE VENUE OF ANY SUCH SUIT OR ANY SUCH COURT OR THAT SUCH SUIT
IS BROUGHT IN AN INCONVENIENT COURT.
TRANSTECHNOLOGY HEREBY WAIVES ITS RIGHT TO A JURY TRIAL WITH RESPECT TO
ANY PROCEEDING ARISING OUT OF ANY DISPUTE IN CONNECTION WITH THIS NOTE, ANY
RIGHTS OR OBLIGATIONS HEREUNDER, OR THE PERFORMANCE OF ANY SUCH RIGHTS OR
OBLIGATIONS.
This Note shall be deemed to take effect as a sealed instrument under
the laws of the Commonwealth of Massachusetts.
IN WITNESS WHEREOF, the undersigned has caused this Revolving Credit
Note to be signed under seal in its corporate name by its duly authorized
officer as of the day and year first above written.
TRANSTECHNOLOGY
CORPORATION
By: _____________________________
Name:
Title:
121
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Amount of Balance of
Amount Principal Paid Principal Notation
Date of Loan or Prepaid Unpaid Made By:
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122
EXHIBIT B
---------
FORM OF LOAN REQUEST
[TRANSTECHNOLOGY CORPORATION]
[TRANSTECHNOLOGY XXXXXX-ORBIS GmbH]
[TRANSTECHNOLOGY (GB) LIMITED]
_______ __, ____
[BankBoston, N.A., as Administrative Agent
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: ]
or
[BankBoston, N.A., as Sterling Fronting Bank
BankBoston House
00 Xxxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Attention: ]
or
[BHF-BANK Aktiengesellschaft, as DM Fronting Bank
insert branch address
Attention:]
Ladies and Gentlemen:
Reference is hereby made to that certain Second Amended and Restated Credit
Agreement, dated as of June 30, 1995 and amended and restated as of July 24,
1998 and as further amended and restated as of August __, 1999 (as the same may
be amended, restated, modified, varied and in effect from time to time, the
"Credit Agreement"), among TransTechnology Corporation ("TransTechnology"),
TransTechnology Xxxxxx-Orbis GmbH ("GmbH"), TransTechnology (GB) Limited
("Limited"), BankBoston, N.A. ("BankBoston") and the other lending institutions
party thereto (the "Lenders"), BankBoston, acting through its London Branch as
Sterling Fronting Bank, BHF-BANK Aktiengesellschaft, acting as DM Fronting Bank,
BankBoston, as issuing bank (in such capacity, the "Issuing Bank"), ABN AMRO
Bank N.V., as Syndication Agent, The First National Bank of Chicago, as
Documentation Agent, and BankBoston, as administrative agent for itself, the
Lenders, the Sterling Fronting Bank, the DM Fronting Bank and the Issuing Bank
(in such capacity, the "Administrative Agent"). Capitalized terms which are used
herein without definition
123
BankBoston, N.A., as Administrative Agent
Page 2
and which are defined in the Credit Agreement shall have the same meanings
herein as in the Credit Agreement.
Pursuant to Section ___ of the Credit Agreement, we hereby request that
a _______________ Loan [**IN THE CASE OF A REVOLVING CREDIT LOAN ** consisting
of a Base Rate Loan in the principal amount of $__________, or a Eurocurrency
Rate Loan in the principal amount of $__________] with an Interest Period of
_________] [**IN THE CASE OF AN INTERNATIONAL FACILITY LOAN** in the principal
amount of ____________ with an Interest Period of __________] be made on
__________ __, ____. We understand that this request is irrevocable and binding
on us and obligates us to accept the requested _____________ Loan on such date.
We hereby certify (a) that the aggregate outstanding principal amount
of the Revolving Credit Loans on today's date is $_________, (b) that the
aggregate outstanding principal amount of the International Facility Loans on
today's date is the DM Equivalent of $_________ and the Sterling Equivalent of
$________, (c) that we will use the proceeds of the requested ________________
Loan in accordance with the provisions of the Credit Agreement, (d) that each of
the representations and warranties contained in the Credit Agreement or in any
document or instrument delivered pursuant to or in connection with the Credit
Agreement was true as of the date as of which it was made and is true at and as
of the date hereof (except to the extent of changes resulting from transactions
contemplated or permitted by the Credit Agreement and changes occurring in the
ordinary course of business that singly or in the aggregate are not materially
adverse, and to the extent that such representations and warranties related
expressly to an earlier date) and (e) that no Default or Event of Default has
occurred and is continuing.
Very truly yours,
[TRANSTECHNOLOGY CORPORATION]
By:
---------------------------
Name:
Title:
or
124
BankBoston, N.A., as Administrative Agent
Page 3
[TRANSTECHNOLOGY XXXXXX-ORBIS GmbH]
By:
--------------------------------
Name:
Title:
or
[TRANSTECHNOLOGY (GB) LIMITED]
By:
--------------------------------
Name:
Title:
125
EXHIBIT C
---------
FORM OF TERM NOTE
$[___________] _____________ __, ____
FOR VALUE RECEIVED, the undersigned TRANSTECHNOLOGY CORPORATION, a
Delaware corporation ("TransTechnology"), hereby promises to pay (without setoff
or counterclaim) to the order of [INSERT LENDER], a [insert entity] (the
"Lender"), at the Administrative Agent's Head Office (as defined in the Credit
Agreement referred to below):
(a) prior to or on August __, 2004" \@ "MMMM d, yyyy" \*
charformat August __, 2004 the principal amount of [INSERT AMOUNT]
DOLLARS ($____), evidencing the portion of the Term Loan made by the
Lender to TransTechnology pursuant to the Second Amended and Restated
Credit Agreement dated as of June 30, 1995 and amended and restated as
of July 24, 1998 and as further amended and restated as of August __,
1999 (as amended, restated, modified, varied and in effect from time to
time, the "Credit Agreement"), by and among TransTechnology,
TransTechnology Xxxxxx-Orbis GmbH, TransTechnology (GB) Limited
(collectively, the "Borrowers"), the lending institutions party thereto
(the "Lenders"), BankBoston, N.A. acting through its London Branch as
Sterling Fronting Bank, BHF-BANK Aktiengesellschaft acting as DM
Fronting Bank, BankBoston, N.A., as Issuing Bank, ABN AMRO Bank N.V.,
as Syndication Agent, The First National Bank of Chicago, as
Documentation Agent, and BankBoston, N.A., as administrative agent for
itself, the Lenders, the Sterling Fronting Bank, the DM Fronting Bank
and the Issuing Bank (the "Administrative Agent");
(b) the principal outstanding hereunder from time to time at
the times provided in the Credit Agreement; and
(c) interest from the date hereof on the principal amount from
time to time outstanding to and including the maturity hereof at the
rates and terms and in all cases in accordance with the terms of the
Credit Agreement.
This Note evidences borrowings under and has been issued by
TransTechnology in accordance with the terms of the Credit Agreement. The Lender
and any holder hereof is entitled to the benefits of the Credit Agreement, the
Security Documents and the other Loan Documents, and may enforce the agreements
of TransTechnology contained therein, and any holder hereof may exercise the
respective remedies provided for thereby or otherwise available in respect
thereof, all in accordance with the respective terms thereof. All capitalized
terms used in this Note and not otherwise defined herein shall have the same
meanings herein as in the Credit Agreement.
TransTechnology irrevocably authorizes the Lender to make or cause to
be made, at the time of receipt of any payment of principal of this Note, an
appropriate notation on the grid attached to this Note, or the continuation of
such grid, or any other similar record, including computer records, reflecting
the receipt of such payment. The outstanding
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amount of the Lender's portion of the Term Loan set forth on the grid attached
to this Note, or the continuation of such grid, or any other similar record,
including computer records, maintained by the Lender with respect to its portion
of the Term Loan shall be prima facie evidence of the principal amount of the
Lender's portion of the Term Loan owing and unpaid to the Lender, but the
failure to record, or any error in so recording, any such amount on any such
grid, continuation or other record shall not limit or otherwise affect the
obligation of TransTechnology hereunder or under the Credit Agreement to make
payments of principal of and interest on this Note when due.
TransTechnology has the right in certain circumstances and the
obligation under certain other circumstances to prepay the whole or part of the
principal of this Note on the terms and conditions specified in the Credit
Agreement.
If any one or more of the Events of Default shall occur, the entire
unpaid principal amount of this Note and all of the unpaid interest accrued
thereon may become or be declared due and payable in the manner and with the
effect provided in the Credit Agreement.
No delay or omission on the part of the Lender or any holder hereof in
exercising any right hereunder shall operate as a waiver of such right or of any
other rights of the Lender or such holder, nor shall any delay, omission or
waiver on any one occasion be deemed a bar or waiver of the same or any other
right on any future occasion.
TransTechnology and every endorser and guarantor of this Note or the
obligation represented hereby waives presentment, demand, notice, protest and
all other demands and notices in connection with the delivery, acceptance,
performance, default or enforcement of this Note, and assents to any extension
or postponement of the time of payment or any other indulgence, to any
substitution, exchange or release of collateral and to the addition or release
of any other party or person primarily or secondarily liable.
THIS NOTE AND THE OBLIGATIONS OF TRANSTECHNOLOGY HEREUNDER SHALL FOR
ALL PURPOSES BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE
COMMONWEALTH OF MASSACHUSETTS (EXCLUDING THE LAWS APPLICABLE TO CONFLICTS OR
CHOICE OF LAW). TRANSTECHNOLOGY AGREES THAT ANY SUIT FOR THE ENFORCEMENT OF THIS
NOTE MAY BE BROUGHT IN THE COURTS OF THE COMMONWEALTH OF MASSACHUSETTS OR ANY
FEDERAL COURT SITTING THEREIN AND CONSENTS TO THE NONEXCLUSIVE JURISDICTION OF
SUCH COURT AND THE SERVICE OF PROCESS IN ANY SUCH SUIT BEING MADE UPON
TRANSTECHNOLOGY BY MAIL AT THE ADDRESS SPECIFIED IN ss.21 OF THE CREDIT
AGREEMENT. TRANSTECHNOLOGY HEREBY WAIVES ANY OBJECTION THAT IT MAY NOW OR
HEREAFTER HAVE TO THE VENUE OF ANY SUCH SUIT OR ANY SUCH COURT OR THAT SUCH SUIT
IS BROUGHT IN AN INCONVENIENT COURT.
TRANSTECHNOLOGY HEREBY WAIVES ITS RIGHT TO A JURY TRIAL WITH RESPECT TO
ANY PROCEEDING ARISING OUT OF ANY DISPUTE IN CONNECTION WITH THIS NOTE, ANY
RIGHTS OR OBLIGATIONS
000
-0-
XXXXXXXXX, XX THE PERFORMANCE OF ANY SUCH RIGHTS OR OBLIGATIONS.
This Note shall be deemed to take effect as a sealed instrument under
the laws of the Commonwealth of Massachusetts.
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IN WITNESS WHEREOF, the undersigned has caused this Note to be signed
under seal in its corporate name by its duly authorized officer as of the day
and year first above written.
TRANSTECHNOLOGY CORPORATION
By: ___________________________
Name:
Title:
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Amount Amount of Balance of
of Term Loan Principal Paid Principal Notation
Date or Prepaid Unpaid Made By:
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130
EXHIBIT D
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FORM OF
-------
COMPLIANCE CERTIFICATE
----------------------
___________ __, ___
To each of the Lenders party to the
Credit Agreement referred to below
c/o BankBoston, N.A., as Administrative Agent
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Ladies and Gentlemen:
Reference is made to the Second Amended and Restated Credit Agreement,
dated as of June 30, 1995 and amended and restated as of July 24, 1998 and as
further amended and restated as of August __, 1999 (as amended, restated,
modified, varied and in effect from time to time, the "Credit Agreement"), by
and among TransTechnology Corporation ("TransTechnology"), TransTechnology
Xxxxxx-Orbis GmbH ("GmbH"), TransTechnology (GB) Limited ("Limited"),
BankBoston, N.A., acting through its London Branch as Sterling Fronting Bank,
BHF-BANK Aktiengesellschaft, acting as DM Fronting Bank, BankBoston, N.A., as
issuing bank (in such capacity, the "Issuing Bank") ABN AMRO Bank N.V., as
Syndication Agent, The First National Bank of Chicago, as Documentation Agent,
and BankBoston, N.A., as administrative agent for itself, the Lenders, the
Sterling Fronting Bank, the DM Fronting Bank and the Issuing Bank (in such
capacity the "Administrative Agent"). Capitalized terms which are used herein
without definition and which are defined in the Credit Agreement shall have the
respective meanings assigned to such terms in the Credit Agreement.
Pursuant to Section 9.4(c) of the Credit Agreement, the principal
financial or accounting officer of TransTechnology hereby certifies to each of
you as follows: (a) the information furnished in the calculations attached
hereto was true and correct as of the last day of the fiscal [year] [quarter]
next preceding the date of this certificate; (b) as of the date of this
certificate, there exists no Default or Event of Default or condition which
would, with either or both the giving of notice or the lapse of time, result in
a Default or an Event of Default; and (c) the financial statements delivered
herewith were prepared in accordance with generally accepted accounting
principles applied on a basis consistent with prior periods (except, in the case
of quarterly statements, for year-end adjustments and provisions for footnotes
and, in all cases, except as disclosed therein).
IN WITNESS WHEREOF, the undersigned officer has executed this Compliance
Certificate as of the date first written above.
TRANSTECHNOLOGY CORPORATION
By:_______________________________
Title:
[Worksheet to be attached]
131
EXHIBIT E
---------
FORM OF
-------
ASSIGNMENT AND ACCEPTANCE
-------------------------
Dated as of _____ __, ____
Reference is made to the Second Amended and Restated Credit Agreement
dated as of June 30, 1995 and amended and restated as of July 24, 1998 and as
further amended and restated as of August __, 1999 (as amended, restated,
modified, varied and in effect from time to time, the "Credit Agreement"), by
and among TransTechnology Corporation, a Delaware corporation
("TransTechnology"), TransTechnology Xxxxxx-Orbis GmbH, a German limited
liability company ("GmbH"), TransTechnology (GB) Limited, an English limited
liability company ("Limited" and, together with TransTechnology and GmbH, the
"Borrowers" and each individually, a "Borrower"), BankBoston, N.A.
("BankBoston") and the other lending institutions listed on Schedule 1 thereto
(collectively, the "Lenders"), BankBoston, acting through its London Branch, as
Sterling Fronting Bank, BHF-BANK Aktiengesellschaft, as DM Fronting Bank,
BankBoston, as issuing bank (in such capacity, the "Issuing Bank"), ABN AMRO
Bank N.V., as Syndication Agent, The First National Bank of Chicago, as
Documentation Agent, and BankBoston, as administrative agent for itself, the
Lenders, the Sterling Fronting Bank, the DM Fronting Bank and the Issuing Bank
(the "Administrative Agent"). Capitalized terms used herein and not otherwise
defined shall have the meanings assigned to such terms in the Credit Agreement.
_______________ (the "Assignor") and _______________ (the "Assignee")
hereby agree as follows:
1. ASSIGNMENT. Subject to the terms and conditions of this Assignment
and Acceptance, the Assignor hereby sells and assigns to the Assignee, and the
Assignee hereby purchases and assumes without recourse to the Assignor, [(a)] a
$_______ interest in and to the rights, benefits, indemnities and obligations of
the Assignor under the Credit Agreement equal to _______% in respect of the
Total Revolving Credit Commitment [and (b) a $_____________ interest in and to
the rights, benefits, indemnities and obligations of the Assignor under the
Credit Agreement equal to ____________% in respect of the Term Loan] immediately
prior to the Effective Date (as hereinafter defined).
2. ASSIGNOR'S REPRESENTATIONS. The Assignor (i) represents and warrants
that (A) it is legally authorized to enter into this Assignment and Acceptance,
(B) as of the Effective Date (as hereinafter defined), immediately after giving
effect to this Assignment and Acceptance, its Revolving Credit Commitment is
$_______, its Commitment Percentage with respect to the
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Revolving Credit Loans is _______%, [the outstanding principal balance of its
Term Loan Commitment is $________________, its Commitment Percentage with
respect to the Term Loan is _____________%], the aggregate outstanding principal
balance of its Loans equals $_______________, and the aggregate amount of its
Letter of Credit Participations equals $_______, and (C) immediately after
giving effect to all assignments which have not yet become effective, the
Assignor's Commitment Percentage with respect to the Revolving Credit Loans [and
Commitment Percentage with respect to the Term Loan] will be sufficient to give
effect to this Assignment and Acceptance, (ii) makes no representation or
warranty, express or implied, and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with the
Credit Agreement or any of the other Loan Documents or any other instrument or
document furnished pursuant thereto or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of the Credit Agreement, the
other Loan Documents or any other instrument or document furnished pursuant
thereto or the attachment, perfection or priority of any security interest or
mortgage, other than that it is the legal and beneficial owner of the interest
being assigned by it hereunder free and clear of any claim or encumbrance; (iii)
makes no representation or warranty and assumes no responsibility with respect
to the financial condition of TransTechnology or any of its Subsidiaries or any
other Person primarily or secondarily liable in respect of any of the
Obligations, or the performance or observance by TransTechnology or any of its
Subsidiaries or any other Person primarily or secondarily liable in respect of
any of the Obligations of any of its obligations under the Credit Agreement or
any of the other Loan Documents or any other instrument or document delivered or
executed pursuant thereto; and (iv) attaches hereto the Revolving Credit Note
[and Term Note] delivered to it under the Credit Agreement.
The Assignor requests that TransTechnology exchange the Assignor's
Revolving Credit Note [and/or Term Note] for new Revolving Credit Notes [and/or
Term Notes] payable to the Assignor and Assignee as follows:
Notes payable to Amount of Revolving Credit Note: Amount of Term Note:
the order of:
Assignor $__________ $__________
Assignee $__________ $__________
3. ASSIGNEE'S REPRESENTATIONS. The Assignee (i) represents and warrants
that (A) it is duly and legally authorized to enter into this Assignment and
Acceptance, (B) the execution, delivery and performance of this Assignment and
Acceptance do not conflict with any provision of law or of the charter or
by-laws of the Assignee, or of any agreement binding on the Assignee, (C) all
acts, conditions and things required to be done and performed and to have
occurred
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prior to the execution, delivery and performance of this Assignment and
Acceptance, and to render the same the legal, valid and binding obligation of
the Assignee, enforceable against it in accordance with its terms, have been
done and performed and have occurred in due and strict compliance with all
applicable laws; (ii) confirms that it has received a copy of the Credit
Agreement, together with copies of the most recent financial statements
delivered pursuant to ss.ss.8.4 and 9.4 thereof and such other documents and
information as it has deemed appropriate to make its own credit analysis and
decision to enter into this Assignment and Acceptance; (iii) agrees that it
will, independently and without reliance upon the Assignor, the Administrative
Agent or any other Lender and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under the Credit Agreement; (iv) represents and
warrants that it is an Eligible Assignee; (v) appoints and authorizes the
Administrative Agent to take such action as agent on its behalf and to exercise
such powers under the Credit Agreement and the other Loan Documents as are
delegated to the Administrative Agent by the terms thereof, together with such
powers as are reasonably incidental thereto; (vi) agrees that it will perform in
accordance with their terms all the obligations which by the terms of the Credit
Agreement are required to be performed by it as a Lender; and (vii) acknowledges
that it has made arrangements with the Assignor satisfactory to the Assignee
with respect to its pro rata share of Letter of Credit Fees in respect of
outstanding Letters of Credit.
4. EFFECTIVE DATE. The effective date for this Assignment and
Acceptance shall be _____ __, ____ (the "Effective Date"). Following the
execution of this Assignment and Acceptance, each party hereto shall deliver its
duly executed counterpart hereof to the Administrative Agent for acceptance by
the Administrative Agent and recording in the Register by the Administrative
Agent. Schedule 1 to the Credit Agreement shall thereupon be replaced as of the
Effective Date by Schedule 1 annexed hereto.
5. RIGHTS UNDER CREDIT AGREEMENT. Upon such acceptance and recording,
from and after the Effective Date, (i) the Assignee shall be a party to the
Credit Agreement and, to the extent provided in this Assignment and Acceptance,
have the rights and obligations of a Lender thereunder, and (ii) the Assignor
shall, with respect to that portion of its interest under the Credit Agreement
assigned hereunder, relinquish its rights and be released from its obligations
under the Credit Agreement; provided, however, that the Assignor shall retain
its rights to be indemnified pursuant to ss.18 of the Credit Agreement with
respect to any claims or actions arising prior to the Effective Date.
6. PAYMENTS. Upon such acceptance of this Assignment and Acceptance by
the Administrative Agent and such recording, from and after the Effective Date,
the Administrative Agent shall make all payments in respect of the rights and
interests assigned hereby (including payments of principal, interest, fees and
other amounts) to the Assignee. The Assignor and the Assignee shall make any
appropriate adjustments in payments for periods prior to the Effective Date
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by the Administrative Agent or with respect to the making of this assignment
directly between themselves.
7. GOVERNING LAW. THIS ASSIGNMENT AND ACCEPTANCE IS INTENDED TO TAKE
EFFECT AS A SEALED INSTRUMENT TO BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS (EXCLUDING THE LAWS
APPLICABLE TO CONFLICTS OR CHOICE OF LAW).
8. COUNTERPARTS. This Assignment and Acceptance may be executed in any
number of counterparts which shall together constitute but one and the same
agreement.
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IN WITNESS WHEREOF, intending to be legally bound, each of the
undersigned has caused this Assignment and Acceptance to be executed on its
behalf by its officer or officers thereunto duly authorized, as of the date
first above written.
ASSIGNOR:
---------
By: ________________________________________
Name:
Title:
ASSIGNEE:
---------
By: ________________________________________
Name:
Title:
CONSENTED TO:
-------------
BANKBOSTON, N.A., AS
ADMINISTRATIVE AGENT
By:___________________________
Name:
Title:
[SO LONG AS NO DEFAULT
OR EVENT OF DEFAULT HAS
OCCURRED AND IS
CONTINUING:
TRANSTECHNOLOGY
CORPORATION
By:___________________________
Name:
Title:]
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SCHEDULE 1
