REVOLVING CREDIT AGREEMENT dated as of August 5, 2005 among KAMAN CORPORATION and CERTAIN SUBSIDIARIES as Borrowers, VARIOUS FINANCIAL INSTITUTIONS NAMED HEREIN, as the Banks, THE BANK OF NOVA SCOTIA and BANK OF AMERICA, N.A., as the Co-Administrative...
EXECUTION
VERSION
dated
as
of August 5, 2005
among
KAMAN
CORPORATION
and
CERTAIN
SUBSIDIARIES
as
Borrowers,
VARIOUS
FINANCIAL INSTITUTIONS NAMED HEREIN,
as
the
Banks,
THE
BANK
OF NOVA SCOTIA
and
BANK
OF
AMERICA, N.A.,
as
the
Co-Administrative Agents
for
the
Banks,
BANK
OF
AMERICA, N.A.,
as
the
Administrator,
THE
BANK
OF NOVA SCOTIA
and
BANC
OF
AMERICA SECURITIES LLC,
as
the
Co-Lead Arrangers and Book Managers,
JPMORGAN
CHASE BANK, N.A.,
as
Syndication Agent,
and
KEY
BANK
NATIONAL ASSOCIATION,
as
Documentation Agent
NYDOCS/1204419.6
REVOLVING
CREDIT AGREEMENT dated as of August 5, 2005 among KAMAN CORPORATION, a
Connecticut corporation (the “Company”),
certain Subsidiaries of the Company party hereto pursuant to Section
1.13
(each a
“Designated
Borrower”
and
together with the Company, the “Borrowers”
and,
each a “Borrower”),
the
various financial institutions as are or may become parties hereto (referred
to
herein individually as a “Bank”
or
collectively as the “Banks”),
THE
BANK OF NOVA SCOTIA (“Scotia
Capital”)
and
BANK OF AMERICA, N.A. (“Bank
of America”)
as the
Co-Administrative Agents (individually, a “Co-Administrative
Agent”
and
collectively, the “Co-Administrative
Agents”)
for
the Banks, and BANK OF AMERICA, N.A. as the Administrator for the Banks (the
“Administrator”).
WHEREAS,
the Company is currently engaged directly and through its various Subsidiaries
in the business of manufacturing and distributing aerospace, industrial and
musical products and developing technologies which serve defense, industrial
and
commercial markets; and
WHEREAS,
the Company has requested that the Banks extend credit to the Borrowers in
accordance with the terms hereof;
NOW,
THEREFORE, in consideration of the agreements herein contained, the parties
hereto agree, as of the Effective Date (as hereinafter defined), as
follows:
ARTICLE
I THE
LOANS
Section
1.1. The
Revolving Loans.
(a) Subject
to the terms and conditions contained in this Agreement, each Bank and the
Issuer agrees (severally and not jointly) that from time to time prior to August
5, 2010 (the “Maturity Date”), such Bank will make loans to the Borrowers from
time to time on any Business Day during the Availability Period in Dollars
or in
one or more Alternative Currencies (the “Revolving Loans” and, individually, a
“Revolving Loan”); provided,
that
after giving effect to any Revolving Borrowing, (i) the Total Outstandings
shall
not exceed the Aggregate Commitments, (ii) the aggregate Outstanding Amount
of
all Revolving Loans made by any Bank, plus
such
Bank’s Commitment Percentage of the Outstanding Amount of all L/C Obligations,
plus
such
Bank’s Commitment Percentage of the Outstanding Amount of all Swing Line Loans,
shall not exceed such Bank Commitment, and (iii) the aggregate Outstanding
Amount of all Revolving Loans denominated in Alternative Currencies shall not
exceed the Alternative Currency Sublimit. Within the limits of each Bank’s
Commitment, and subject to the other terms and conditions hereof, the Borrowers
may borrow under this Section
1.1(a),
prepay
under Section
1.8
and
reborrow under this Section
1.1(a).
(b) Each
Revolving Loan shall be either a Base Rate Loan or a Eurocurrency Rate Loan,
as
the Borrower may elect, in each case subject to the provisions of this
Agreement. Although the Aggregate Commitments initially equal $150,000,000,
it
is understood that each Bank’s portion of the Aggregate Commitments is a several
obligation and not a joint obligation. No Bank nor the Issuer shall be required
to make any Revolving Loan or issue (or participate in) any L/C Credit Extension
after such
NYDOCS/▇▇▇▇▇▇▇.6
Bank’s
Commitment shall have terminated. No Bank shall be responsible to any Borrower,
either Co-Administrative Agent, the Administrator or the other Banks for the
obligations or Commitments of any other Bank. Neither of the Co-Administrative
Agents nor the Administrator shall be responsible to any Borrower for the
obligations or Commitments of any of the Banks.
Section
1.2. Mandatory
Reduction of Commitments; Optional Termination or Reduction of Commitments;
Termination of Commitments.
(a) Mandatory
Reduction of Commitments.
The
Aggregate Commitments, and each of the Commitments of the Banks, shall be
irrevocably and permanently reduced in connection with certain sales of assets
described in Section
5.6,
in
accordance with the provisions of Section
5.6.
(b) Optional
Termination or Reduction of Commitments.
At the
Company’s option and upon five (5) Business Days’ prior written notice to the
Administrator, the Company, without premium or penalty, may permanently: (i)
terminate the Aggregate Commitments upon payment in full of the Obligations
and
(A) delivery to the Administrator of cash collateral (to be held in a cash
collateral account pursuant to a cash collateral agreement satisfactory to
the
Administrator) in an amount equal to the then existing Stated Amount of all
Letters of Credit, plus any unreimbursed disbursements made under any Letter
of
Credit or (B) the delivery to the Issuer of each Letter of Credit, marked
“terminated” by the beneficiary, together with all accrued interest thereon to
the date of such payment, and all Fees and other amounts then due the Banks
hereunder and thereunder; or (ii) reduce pro rata the Aggregate Commitments
of
the Banks in accordance with their Commitment Percentages by an amount specified
in such notice in an aggregate amount of $10,000,000 or any whole multiple
of
$1,000,000 in excess thereof upon pro rata prepayment to each Bank in accordance
with its Commitment Percentage of the Outstanding Amount of the Obligations
in
excess of the amount of the reduced Commitment, if any, of such Bank together
with accrued interest on the amount so paid to the date of such payment;
provided,
that
(a) if the termination or reduction of any Commitment pursuant to this clause
(ii)
requires
the payment of a Eurocurrency Rate Loan, the termination or reduction of such
Commitment may be made only on the last Business Day of the Interest Period
applicable to such Eurocurrency Rate Loan, (b) if any prepayment of a
Eurocurrency Rate Loan is required or permitted by a Bank on a date other than
the last Business Day of the Interest Period applicable thereto, the Company
shall indemnify the Bank receiving any such prepayment in accordance with
Section
1.18,
(c) the
Company shall not terminate or reduce the Aggregate Commitments if, after giving
effect thereto and to any concurrent prepayments hereunder, the Total
Outstandings would exceed the Aggregate Commitments, and (d) if, after giving
effect to any reduction of the Aggregate Commitments, the Bid Loan, the
Alternative Currency Sublimit, the Letter of Credit Sublimit or the Swing Line
Sublimit exceeds the amount of the Aggregate Commitments, such Sublimit shall
be
automatically reduced by the amount of such excess.
(c) Termination
of Commitments.
The
Commitments of the Banks to make Revolving Loans and the Issuer to issue Letters
of Credit shall terminate on the Maturity
NYDOCS/1204419.6
2
Date,
or such earlier date as such Commitments may be terminated pursuant to the
provisions of this Section
1.2
or
Section
7.3.
Section
1.3. Borrowings,
Conversions and Continuations of Revolving Loans.
(a) Procedures
for Loans.
Subject
to all of the terms and conditions of this Agreement, including without
limitation, the satisfaction of all the conditions set forth in Section
3.2
(except
clause
(a)
thereof)
to the making of any Loan, each Revolving Borrowing, each conversion of
Revolving Loans from one Type to the other, and each continuation of
Eurocurrency Rate Loans shall be made upon the Company’s irrevocable notice to
the Administrator, which may be given by telephone. Each such notice must be
received by the Administrator not later than 11:00 a.m. (i) three Business
Days prior to the requested date of any Borrowing of, conversion to or
continuation of Eurocurrency Rate Loans denominated in Dollars or of any
conversion of Eurocurrency Rate Loans denominated in Dollars to Base Rate
Revolving Loans, (ii) four Business Days (or five Business Days in the
case
of a Special Notice Currency) prior to the requested date of any Borrowing
or
continuation of Eurocurrency Rate Loans denominated in Alternative Currencies,
and (iii) on the requested date of any Borrowing of Base Rate Revolving
Loans. Each telephonic notice by the Company pursuant to this Section
1.3(a)
must be
confirmed promptly by delivery to the Administrator of a written Revolving
Loan
Notice, appropriately completed and signed by a Responsible Officer of the
Company. Each Borrowing of, conversion to or continuation of Eurocurrency Rate
Loans shall be in a principal amount of $2,000,000 or a whole multiple of
$1,000,000 in excess thereof; provided,
that
Eurocurrency Rate Loans denominated in Alternative Currencies shall be in a
principal amount of $100,000 or a whole multiple of $100,000 in excess thereof.
Except as provided in Sections
1.5(d)
and
1.6(c),
each
Revolving Borrowing of or conversion to Base Rate Revolving Loans shall be
in a
principal amount of $500,000 or a whole multiple of $100,000 in excess thereof.
Each Revolving Loan Notice (whether telephonic or written) shall specify
(i) whether the Company is requesting a Revolving Borrowing, a conversion
of Revolving Loans from one Type to the other, or a continuation of Eurocurrency
Rate Loans, (ii) the requested date of the Borrowing, conversion or
continuation, as the case may be (which shall be a Business Day), (iii) the
principal amount of Revolving Loans to be borrowed, converted or continued,
(iv) the Type of Revolving Loans to be borrowed or to which existing
Revolving Loans are to be converted, (v) if applicable, the duration
of the
Interest Period with respect thereto, (vi) the currency of the Revolving
Loans to be borrowed, and (vii) if applicable, the Designated Borrower. If
the
Company fails to specify a currency in a Revolving Loan Notice requesting a
Borrowing, then the Revolving Loans so requested shall be made in Dollars.
If
the Company fails to specify a Type of Revolving Loan in a Revolving Loan Notice
or if the Company fails to give a timely notice requesting a conversion or
continuation, then the applicable Revolving Loans shall be made as, or converted
to, Base Rate Loans; provided,
that in
the case of a failure to timely request a continuation of Revolving Loans
denominated in an Alternative Currency, such Loans shall be continued as
Eurocurrency Rate Loans in their original currency with an Interest Period
of
one month. Any automatic conversion to Base Rate Loans shall be effective as
of
the last day of the Interest Period then in effect with respect to the
applicable Eurocurrency Rate Loans. If the Company requests a Borrowing of,
conversion to, or continuation of
NYDOCS/1204419.6
3
Eurocurrency
Rate Loans in any such Revolving Loan Notice, but fails to specify an Interest
Period, it will be deemed to have specified an Interest Period of one month.
No
Revolving Loan may be converted into or continued as a Revolving Loan
denominated in a different currency, but instead must be prepaid in the original
currency of such Revolving Loan and reborrowed in the other
currency.
(b) Following
receipt of a Revolving Loan Notice, the Administrator shall promptly notify
each
Bank of the amount (and currency) of its Commitment Percentage of the applicable
Revolving Loans, and if no timely notice of a conversion or continuation is
provided by the Company, the Administrator shall notify each Bank of the details
of any automatic conversion to Base Rate Loans or continuation of Revolving
Loans denominated in a currency other than Dollars, in each case as described
in
the preceding subsection. In the case of a Revolving Borrowing, each Bank shall
make the amount of its Revolving Loan available to the Administrator in Same
Day
Funds at the Administrator’s Funding Office for the applicable currency not
later than 1:00 p.m., in the case of any Revolving Loan denominated in Dollars,
and not later than the Applicable Time specified by the Administrator in the
case of any Revolving Loan in an Alternative Currency, in each case on the
Business Day specified in the applicable Revolving Loan Notice. Upon
satisfaction of the applicable conditions set forth in Section
3.2
(and, if
such Borrowing is the initial Credit Extension, Section
3.1),
the
Administrator shall make all funds so received available to the Company or
the
other applicable Borrower in like funds as received by the Administrator either
by (i) crediting the account of such Borrower on the books of Bank of
America with the amount of such funds or (ii) wire transfer of such
funds,
in each case in accordance with instructions provided to (and reasonably
acceptable to) the Administrator by the Company; provided,
that
if, on the date the Revolving Loan Notice with respect to such Borrowing
denominated in Dollars is given by the Company, there are L/C Borrowings
outstanding, then the proceeds of such Borrowing, first,
shall
be applied to the payment in full of any such L/C Borrowings, and, second,
shall
be made available to the applicable Borrower as provided above.
(c) Except
as
otherwise provided herein, a Eurocurrency Rate Loan may be continued or
converted only on the last day of an Interest Period for such Eurocurrency
Rate
Loan. During the existence of a Default, no Loans may be requested as, converted
to or continued as Eurocurrency Rate Loans (whether in Dollars or any
Alternative Currency) without the consent of the Majority Banks, and the
Majority Banks may demand that any or all of the then outstanding Eurocurrency
Rate Loans denominated in an Alternative Currency be prepaid, or redenominated
into Dollars in the amount of the Dollar Equivalent thereof, on the last day
of
the then current Interest Period with respect thereto.
(d) The
Administrator shall promptly notify the Company and the Banks of the interest
rate applicable to any Interest Period for Eurocurrency Rate Loans upon
determination of such interest rate. At any time that Base Rate Loans are
outstanding, the Administrator shall notify the Company and the Banks of any
change in Bank of America’s prime rate used in determining the Base Rate
promptly following the public announcement of such change.
NYDOCS/1204419.6
4
(e) After
giving effect to all Revolving Borrowings, all conversions of Revolving Loans
from one Type to the other, and all continuations of Revolving Loans as the
same
Type, there shall not be more than (i) ten (10) Interest Periods in effect
with
respect to Revolving Loans denominated in Dollars and (ii) ten (10) Interest
Periods in effect with respect to Revolving Loans denominated in Alternative
Currencies.
Section
1.4. Bid
Loans.
(a) General.
Subject
to the terms and conditions set forth herein, each Bank agrees that the Company
may from time to time request the Banks to submit offers to make loans (each
such loan, a “Bid
Loan”)
to the
Company prior to the Maturity Date pursuant to this Section
1.4;
provided,
that
after giving effect to any Bid Borrowing, the Total Outstandings shall not
exceed the Aggregate Commitments. There shall not be more than five (5)
different Interest Periods in effect with respect to Bid Loans at any
time.
(b) Requesting
Competitive Bids.
The
Company may request the submission of Competitive Bids by delivering a Bid
Request to the Administrator not later than 12:00 noon (i) one Business Day
prior to the requested date of any Bid Borrowing that is to consist of Absolute
Rate Loans, or (ii) four Business Days prior to the requested date of any Bid
Borrowing that is to consist of Eurocurrency Margin Bid Loans. Each Bid Request
shall specify (i) the requested date of the Bid Borrowing (which shall be a
Business Day), (ii) the aggregate principal amount of Bid Loans requested (which
must be $10,000,000 or a whole multiple of $1,000,000 in excess thereof), (iii)
the Type of Bid Loans requested, (iv) the duration of the Interest Period with
respect thereto, and (v) if applicable, the Designated Borrower, and shall
be
signed by a Responsible Officer of the Company and, if applicable, such
Designated Borrower. Each Bid Request shall be made in Dollars. No Bid Request
shall contain a request for (i) more than one Type of Bid Loan or (ii) Bid
Loans
having more than three different Interest Periods. Unless the Administrator
otherwise agrees in its sole and absolute discretion, the Company may not submit
a Bid Request if it has submitted another Bid Request within the prior five
Business Days.
(c) Submitting
Competitive Bids.
(i) The
Administrator shall promptly notify each Bank of each Bid Request received
by it
from the Borrower and the contents of such Bid Request.
(ii) Each
Bank
may (but shall have no obligation to) submit a Competitive Bid containing an
offer to make one or more Bid Loans in response to such Bid Request. Such
Competitive Bid must be delivered to the Administrator not later than 10:30
a.m.
(A) on the requested date of any Bid Borrowing that is to consist of Absolute
Rate Loans, and (B) three Business Days prior to the requested date of any
Bid
Borrowing that is to consist of Eurocurrency Margin Bid Loans; provided,
that
any Competitive Bid submitted by Bank of America in its capacity as a Bank
in
response to any Bid Request must be submitted to the Administrator not later
than 10:15 a.m. on the date on which
NYDOCS/1204419.6
5
Competitive
Bids are required to be delivered by the other Banks in response to such Bid
Request. Each Competitive Bid shall specify (A) the proposed date of the Bid
Borrowing; (B) the principal amount of each Bid Loan for which such Competitive
Bid is being made, which principal amount (x) may be equal to, greater than
or
less than the Commitment of the bidding Bank, (y) must be $5,000,000 or a whole
multiple of $1,000,000 in excess thereof, and (z) may not exceed the principal
amount of Bid Loans for which Competitive Bids were requested; (C) if the
proposed Bid Borrowing is to consist of Absolute Rate Bid Loans, the Absolute
Rate offered for each such Bid Loan and the Interest Period applicable thereto;
(D) if the proposed Bid Borrowing is to consist of Eurocurrency Margin Bid
Loans, the Eurocurrency Bid Margin with respect to each such Eurocurrency Margin
Bid Loan and the Interest Period applicable thereto; (E) the Alternative
Currency in which the proposal Bid Loan is to be made and (F) the identity
of
the bidding Bank.
(iii) Any
Competitive Bid shall be disregarded if it (A) is received after the applicable
time specified in clause (ii)
above,
(B) is not substantially in the form of a Competitive Bid as specified herein,
(C) contains qualifying, conditional or similar language, (D) proposes terms
other than or in addition to those set forth in the applicable Bid Request,
or
(E) is otherwise not responsive to such Bid Request. Any Bank may correct a
Competitive Bid containing a manifest error by submitting a corrected
Competitive Bid (identified as such) not later than the applicable time required
for submission of Competitive Bids. Any such submission of a corrected
Competitive Bid shall constitute a revocation of the Competitive Bid that
contained the manifest error. The Administrator may, but shall not be required
to, notify any Bank of any manifest error it detects in such Bank’s
Competitive Bid.
(iv) Subject
only to the provisions of Section
1.16, Section
1.17(c),
Section
3.2
and
clause (iii)
above,
each Competitive Bid shall be irrevocable.
(d) Notice
to Company of Competitive Bids.
Not
later than 11:00 a.m. (i) on the requested date of any Bid Borrowing that is
to
consist of Absolute Rate Loans, or (ii) three Business Days prior to the
requested date of any Bid Borrowing that is to consist of Eurocurrency Margin
Bid Loans, the Administrator shall notify the Company of the identity of each
Bank that has submitted a Competitive Bid that complies with Section
1.4(c)
and of
the terms of the offers contained in each such Competitive Bid.
(e) Acceptance
of Competitive Bids.
Not
later than 11:30 a.m. (i) on the requested date of any Bid Borrowing that is
to
consist of Absolute Rate Loans, and (ii) three Business Days prior to the
requested date of any Bid Borrowing that is to consist of Eurocurrency Margin
Bid Loans, the Company shall notify the Administrator of its acceptance or
rejection of the offers notified to it pursuant to Section
1.4(d).
The
Company shall be under no obligation to accept any Competitive Bid and may
choose to reject all Competitive Bids. In the case of acceptance, such notice
shall specify the aggregate principal amount of Competitive Bids for each
Interest Period that is accepted. The Company may accept any Competitive Bid
in
whole or in part; provided,
that:
NYDOCS/1204419.6
6
(i) the
aggregate principal amount of each Bid Borrowing may not exceed the applicable
amount set forth in the related Bid Request;
(ii) the
principal amount of each Bid Loan must be $5,000,000 or a whole multiple of
$1,000,000 in excess thereof;
(iii) the
acceptance of offers may be made only on the basis of ascending Absolute Rates
or Eurocurrency Bid Margins within each Interest Period; and
(iv) the
Company may not accept any offer that is described in Section
1.4(c)(iii)
or that
otherwise fails to comply with the requirements hereof.
(f) Procedure
for Identical Bids.
If two
or more Banks have submitted Competitive Bids at the same Absolute Rate or
Eurocurrency Bid Margin, as the case may be, for the same Interest Period,
and
the result of accepting all of such Competitive Bids in whole (together with
any
other Competitive Bids at lower Absolute Rates or Eurocurrency Bid Margins,
as
the case may be, accepted for such Interest Period in conformity with the
requirements of Section
1.4(e)
would be
to cause the aggregate outstanding principal amount of the applicable Bid
Borrowing to exceed the amount specified therefor in the related Bid Request,
then, unless otherwise agreed by the Company, the Administrator and such Banks,
such Competitive Bids shall be accepted as nearly as possible in proportion
to
the amount offered by each such Bank in respect of such Interest Period, with
such accepted amounts being rounded to the nearest whole multiple of
$1,000,000.
(g) Notice
to Banks of Acceptance or Rejection of Bids.
The
Administrator shall promptly notify each Bank having submitted a Competitive
Bid
whether or not its offer has been accepted and, if its offer has been accepted,
of the amount of the Bid Loan or Bid Loans to be made by it on the date of
the
applicable Bid Borrowing. Any Competitive Bid or portion thereof that is not
accepted by the Company by the applicable time specified in Section
1.4(e)
shall be
deemed rejected.
(h) Notice
of Eurocurrency Rate.
If any
Bid Borrowing is to consist of Eurocurrency Bid Margin Loans, the Administrator
shall determine the Eurocurrency Rate for the relevant Interest Period, and
promptly after making such determination, but no later than the time period
specified in Section
1.4(d),
shall
notify the Company and the Banks that will be participating in such Bid
Borrowing of such Eurocurrency Rate.
(i) Funding
of Bid Loans.
Each
Bank that has received notice pursuant to Section
1.4(g)
that all
or a portion of its Competitive Bid has been accepted by the Company shall
make
the amount of its Bid Loan(s) available to the Administrator in immediately
available funds at the Administrative Agent’s
Office
not later than 1:00 p.m. on the date of the requested Bid Borrowing. Upon
satisfaction of the applicable conditions set forth in Section
3.2,
the
Administrator shall make all funds so received available to the Borrower in
like
funds as received by the Administrator.
NYDOCS/1204419.6
7
(j) Notice
of Range of Bids.
After
each Competitive Bid auction pursuant to this Section
1.4,
the
Administrator shall notify each Bank that submitted a Competitive Bid in such
auction of the ranges of bids submitted (without the bidder’s name) and accepted
for each Bid Loan and the aggregate amount of each Bid Borrowing.
Section
1.5. Letters
of Credit.
(a) The
Letter of Credit Commitment
(i) Subject
to the terms and conditions set forth herein, (A) the Issuer agrees, in reliance
upon the agreements of the Banks set forth in this Section
1.5,
(1)
from time to time on any Business Day during the period from the Effective
Date
until the Letter of Credit Expiration Date, to issue Letters of Credit
denominated in Dollars for the account of any Borrower or a Domestic Subsidiary
Guarantor, and to amend or extend Letters of Credit previously issued by it,
in
accordance with subsection (b)
below,
and (2) to honor drawings under the Letters of Credit; and (B) the Banks
severally agree to participate in Letters of Credit issued for the account
of
the Borrowers or the Domestic Subsidiary Guarantors and any drawings thereunder;
provided,
that
after giving effect to any L/C Credit Extension with respect to any Letter
of
Credit, (x) the Total Outstandings shall not exceed the Aggregate Commitments,
(y) the aggregate Outstanding Amount of the Revolving Loans of any Bank,
plus
such
Bank’s Commitment Percentage of the Outstanding Amount of all L/C Obligations,
plus
such
Bank’s Commitment Percentage of the Outstanding Amount of all Swing Line Loans
shall not exceed such Bank’s Commitment, and (z) the Outstanding Amount of the
L/C Obligations shall not exceed the Letter of Credit Sublimit. Each request
by
the Company for the issuance or amendment of a Letter of Credit shall be deemed
to be a representation by the Borrowers that the L/C Credit Extension so
requested complies with the conditions set forth in the proviso to the preceding
sentence. Within the foregoing limits, and subject to the terms and conditions
hereof, the Borrowers’ ability to obtain Letters of Credit shall be fully
revolving, and accordingly the Borrowers may, during the foregoing period,
obtain Letters of Credit to replace Letters of Credit that have expired or
that
have been drawn upon and reimbursed.
(ii) The
Issuer shall not issue or extend any Letter of Credit if:
(A) the
expiry date of such requested Letter of Credit would occur more than twelve
months after the date of issuance or extension, as the case may be, unless
the
Majority Banks have approved such expiry date, which approval shall not be
unreasonably withheld;
(B) the
expiry date of such requested Letter of Credit would occur after the Letter
of
Credit Expiration Date, unless all the Banks have approved such expiry date;
or
NYDOCS/1204419.6
8
(C) such
Letter of Credit is to be denominated in a currency other than
Dollars.
(iii) The
Issuer shall not be under any obligation to issue any Letter of Credit
if:
(A) any
order, judgment or decree of any Governmental Authority or arbitrator shall
by
its terms purpose to enjoin or restrain the Issuer from issuing such Letter
of
Credit, or any Law applicable to the Issuer or any request or directive (whether
or not having the force of law) from any Governmental Authority with
jurisdiction over the Issuer shall prohibit, or request that the Issuer refrain
from, the issuance of letters of credit generally or such Letter of Credit
in
particular or shall impose upon the Issuer with respect to such Letter of Credit
any restriction, reserve or capital requirement (for which the Issuer is not
otherwise compensated hereunder) not in effect on the Effective Date, or shall
impose upon the Issuer any unreimbursed loss, cost or expense which was not
applicable on the Effective Date and which the Issuer in good ▇▇▇▇▇ ▇▇▇▇▇
material to it;
(B) the
issuance of such Letter of Credit would violate one or more policies of the
Issuer;
(C) except
as
otherwise agreed by the Administrator and the Issuer, such Letter of Credit
is
in an initial Stated Amount of less than $100,000;
(D) such
Letter of Credit contains any provision for automatic reinstatement of the
Stated Amount after any drawing thereunder; or
(E) a
default
of any Bank’s obligations to fund under Section
1.5(c)
exists
or any Bank is at such time a Defaulting Bank hereunder, unless the Issuer
has
entered into satisfactory arrangements with the Company or such Bank to
eliminate the Issuer’s risk with respect to such Bank.
(iv) The
Issuer shall not amend any Letter of Credit if the Issuer would not be permitted
at such time to issue such Letter of Credit in its amended form under the terms
hereof.
(v) The
Issuer shall be under no obligation to amend any Letter of Credit if (A) the
Issuer would have no obligation at such time to issue such Letter of Credit
in
its amended form under the terms hereof, or (B) the beneficiary of such Letter
of Credit does not accept the proposed amendment to such Letter of
Credit.
(vi) The
Issuer shall act on behalf of the Banks with respect to any Letters of Credit
issued by it and the documents associated therewith, and the Issuer shall have
all of the benefits and immunities (A) provided to the Co-Administrative Agents
and the Administrator in Article
VIII
with
respect to any acts taken or omissions suffered by the Issuer in connection
with
Letters of Credit issued by it or proposed to be issued by it and Issuer
Documents pertaining to
NYDOCS/1204419.6
9
such
Letters of Credit as fully as if the terms “Administrator” and
“Co-Administrative Agent” as used in Article
VIII
included
the Issuer with respect to such acts or omissions, and (B) as additionally
provided herein with respect to the Issuer.
(b) Existing
Letters of Credit. Each
Borrower, the Banks and the Issuer each agree that (i) any Existing Letter
of
Credit shall be deemed a Letter of Credit issued under and governed by this
Agreement, (ii) this Credit Agreement supercedes the Existing Credit Agreement
with respect to the Existing Letters of Credit issued thereunder, and (iii)
all
Existing Letters of Credit, from and after the Effective Date, shall be subject
to and governed by the terms of this Agreement.
(c) Procedures
for Issuance and Amendment of Letters of Credit.
(i) Each
Letter of Credit shall be issued or amended, as the case may be, upon the
request of the Company delivered to the Issuer (with a copy to the
Administrator) in the form of a Letter of Credit Application, appropriately
completed and signed by a Responsible Officer of the Company. Such Letter of
Credit Application must be received by the Issuer and the Administrator not
later than 11:00 a.m. at least two Business Days (or such later date and time
as
the Administrator and the Issuer may agree in a particular instance in their
sole discretion) prior to the proposed issuance date or date of amendment,
as
the case may be. In the case of a request for an initial issuance of a Letter
of
Credit, such Letter of Credit Application shall specify in form and detail
satisfactory to the Issuer: (A) the proposed issuance date of the requested
Letter of Credit (which shall be a Business Day); (B) the amount thereof; (C)
the expiry date thereof; (D) the name and address of the beneficiary thereof;
(E) the documents to be presented by such beneficiary in case of any drawing
thereunder; (F) the full text of any certificate to be presented by such
beneficiary in case of any drawing thereunder; and (G) such other matters as
the
Issuer may require. In the case of a request for an amendment of any outstanding
Letter of Credit, such Letter of Credit Application shall specify in form and
detail satisfactory to the Issuer (A) the Letter of Credit to be amended; (B)
the proposed date of amendment thereof (which shall be a Business Day); (C)
the
nature of the proposed amendment; and (D) such other matters as the Issuer
may
require. Additionally, the Company shall furnish to the Issuer and the
Administrator such other documents and information pertaining to such
requested Letter of Credit issuance or amendment, including any Issuer
Documents, as the Issuer or the Administrator may require.
(ii) Promptly
after receipt of any Letter of Credit Application, the Issuer will confirm
with
the Administrator (by telephone or in writing) that the Administrator has
received a copy of such Letter of Credit Application from the Company and,
if
not, the Issuer will provide the Administrator with a copy thereof. Unless
the
Issuer has received written notice from any Bank, the Administrator, any
Co-Administrative Agent or any Obligor, at least one Business Day prior to
the
requested date of issuance or amendment of the applicable Letter of Credit,
that
one or more applicable conditions contained in Article
III
shall
not
NYDOCS/1204419.6
10
then
be
satisfied then, subject to the terms and conditions hereof, the Issuer shall,
on
the requested date, issue a Letter of Credit for the account of the applicable
Borrower or Domestic Subsidiary Guarantor or enter into the applicable
amendment, as the case may be, in each case in accordance with the Issuer’s
usual and customary business practices. Immediately upon the issuance of each
Letter of Credit, each Bank shall be deemed to, and hereby irrevocably and
unconditionally agrees to, purchase from the Issuer a risk participation in
such
Letter of Credit in an amount equal to the product of such Bank’s Commitment
Percentage times
the
amount of such Letter of Credit.
(iii) Promptly
after its delivery of any Letter of Credit or any amendment to a Letter of
Credit to an advising bank with respect thereto or to the beneficiary thereof,
the Issuer will also deliver to the Company and the Administrator a true and
complete copy of such Letter of Credit or amendment.
(d) Drawings
and Reimbursements; Funding of Participations
(i) Upon
receipt from the beneficiary of any Letter of Credit of any notice of a drawing
under such Letter of Credit, the Issuer shall notify the Company and the
Administrator thereof. Not later than 11:00 a.m. on the date of any payment
by
the Issuer under a Letter of Credit (the “Honor
Date”),
the
Company shall reimburse the Issuer through the Administrator in an amount equal
to the amount of such drawing and in Dollars. If the Company fails to so
reimburse the Issuer by such time, the Administrator shall promptly notify
each
Bank of the Honor Date, the amount of the unreimbursed drawing (the
“Unreimbursed
Amount”),
and
the amount of such Bank’s Commitment Percentage thereof. In such event, the
Company shall be deemed to have requested a Revolving Borrowing of Base Rate
Loans to be disbursed on the Honor Date in an amount equal to the Unreimbursed
Amount, without regard to the minimum and multiples specified in Section
1.3(a)
for the
principal amount of Base Rate Loans, but subject to the amount of the unutilized
portion of the Aggregate Commitments and the conditions set forth in
Section
3.2
(other
than the delivery of a Revolving Loan Notice). Any notice given by the Issuer
or
the Administrator pursuant to this Section
1.5(d)(i)
may be
given by telephone if immediately confirmed in writing; provided,
that
the lack of such an immediate confirmation shall not affect the conclusiveness
or binding effect of such notice.
(ii) Each
Bank
shall upon any notice pursuant to Section
1.5(d)(i) make
funds available to the Administrator for the account of the Issuer, in Dollars,
at the Administrator’s Funding Office for Dollar-denominated payments in an
amount equal to its Commitment Percentage of the Unreimbursed Amount not later
than 1:00 p.m. on the Business Day specified in such notice by the
Administrator, whereupon, subject to the provisions of Section
1.5(d)(iii),
each
Bank that so makes funds available shall be deemed to have made a Base Rate
Revolving Loan to the Company in such amount. The Administrator shall remit
the
funds so received to the Issuer in Dollars.
NYDOCS/1204419.6
11
(iii) With
respect to any Unreimbursed Amount that is not fully refinanced by a Revolving
Borrowing of Base Rate Loans because the conditions set forth in Section
3.2
cannot
be satisfied or for any other reason, the Company shall be deemed to have
incurred from the Issuer an L/C Borrowing in the amount of the Unreimbursed
Amount that is not so refinanced, which L/C Borrowing shall be due and payable
on demand (together with interest) and shall bear interest at the rate set
forth
in Section
1.7(d).
In such
event, each Bank’s payment to the Administrator for the account of the Issuer
pursuant to Section
1.5(d)(ii)
shall be
deemed payment in respect of its participation in such L/C Borrowing and shall
constitute an L/C Advance from such Bank in satisfaction of its participation
obligation under this Section
1.5.
(iv) Until
each Bank funds its Revolving Loan or L/C Advance pursuant to this Section
1.5(d)
to
reimburse the Issuer for any amount drawn under any Letter of Credit, interest
in respect of such Bank’s Commitment Percentage of such amount shall be solely
for the account of the Issuer.
(v) Each
Bank’s obligation to make Revolving Loans or L/C Advances to reimburse the
Issuer for amounts drawn under Letters of Credit, as contemplated by this
Section
1.5(d),
shall
be absolute and unconditional and shall not be affected by any circumstance,
including (A) any setoff, counterclaim, recoupment, defense or other right
which
such Bank may have against the Issuer, the Borrower, any Subsidiary or any
other
Person for any reason whatsoever; (B) the occurrence or continuance of a
Default, or (C) any other occurrence, event or condition, whether or not similar
to any of the foregoing; provided,
that
each Bank’s obligation to make Revolving Loans pursuant to this Section
1.5(d)
is
subject to the conditions set forth in Section
3.2
(other
than delivery by the Company of a Revolving Loan Notice). No such making of
an
L/C Advance shall relieve or otherwise impair the obligation of the Company
to
reimburse the Issuer for the amount of any payment made by the Issuer under
any
Letter of Credit, together with interest as provided herein.
(vi) If
any
Bank fails to make available to the Administrator for the account of the Issuer
any amount required to be paid by such Bank pursuant to the foregoing provisions
of this Section
1.5(d)
by the
time specified in Section
1.5(d)(ii),
the
Issuer shall be entitled to recover from such Bank (acting through the
Administrator), on demand, such amount with interest thereon for the period
from
the date such payment is required to the date on which such payment is
immediately available to the Issuer at a rate per annum equal to the applicable
Overnight Rate from time to time in effect. A certificate of the Issuer
submitted to any Bank (through the Administrator) with respect to any amounts
owing under this clause (vi)
shall be
conclusive absent manifest error.
(e) Repayment
of Participations.
(i) At
any
time after the Issuer has made a payment under any Letter of Credit and has
received from any Bank such Bank’s L/C Advance in respect of
NYDOCS/1204419.6
12
such
payment in accordance with Section
1.5(d),
if the
Administrator receives for the account of the Issuer any payment in respect
of
the related Unreimbursed Amount or interest thereon (whether directly from
the
Company or otherwise, including proceeds of Cash Collateral applied thereto
by
the Administrator), the Administrator will distribute to such Bank its
Commitment Percentage thereof (appropriately adjusted, in the case of interest
payments, to reflect the period of time during which such Bank’s L/C Advance was
outstanding) in Dollars and in the same funds as those received by the
Administrative Agent.
(ii) If
any
payment received by the Administrator for the account of the Issuer pursuant
to
Section
1.5(d)(i)
is
required to be returned under any of the circumstances described in Section
8.5(c)
(including pursuant to any settlement entered into by the Issuer in its
discretion), each Bank shall pay to the Administrator for the account of the
Issuer its Commitment Percentage thereof on demand of the Administrator, plus
interest thereon from the date of such demand to the date such amount is
returned by such Bank, at a rate per annum equal to the applicable Overnight
Rate from time to time in effect. The obligations of the Banks under this clause
shall survive the payment in full of the Obligations and the termination of
this
Agreement.
(f) Obligations
Absolute.
The
obligation of the Company to reimburse the Issuer for each drawing under each
Letter of Credit and to repay each L/C Borrowing shall be absolute,
unconditional and irrevocable, and shall be paid strictly in accordance with
the
terms of this Agreement under all circumstances including the
following:
(i) any
lack
of validity or enforceability of such Letter of Credit, this Agreement or any
other Credit Document;
(ii) the
existence of any claim, counterclaim, setoff, defense or other right that the
Borrowers or any Subsidiary may have at any time against any beneficiary or
any
transferee of such Letter of Credit (or any Person for whom any such beneficiary
or any such transferee may be acting), the Issuer or any other Person, whether
in connection with this Agreement, the transactions contemplated hereby or
by
such Letter of Credit or any agreement or instrument relating thereto, or any
unrelated transaction;
(iii) any
draft, demand, certificate or other document presented under such Letter of
Credit proving to be forged, fraudulent, invalid or insufficient in any respect
or any statement therein being untrue or inaccurate in any respect; or any
loss
or delay in the transmission or otherwise of any document required in order
to
make a drawing under such Letter of Credit;
(iv) any
payment by the Issuer under such Letter of Credit against presentation of a
draft or certificate that does not strictly comply with the terms of such Letter
of Credit; or any payment made by the Issuer under such Letter of Credit to
any
Person purporting to be a trustee in bankruptcy, debtor-in-possession, assignee
for the benefit of creditors, liquidator, receiver or other
NYDOCS/1204419.6
13
representative
of or successor to any beneficiary or any transferee of such Letter of Credit,
including any arising in connection with any proceeding under any Debtor Relief
Law;
(v) any
adverse change in the relevant exchange rates or in the availability of the
relevant Alternative Currency to the Borrowers or any Subsidiary in the relevant
currency markets generally; or
(vi) any
other
circumstance or happening whatsoever, whether or not similar to any of the
foregoing, including any other circumstance that might otherwise constitute
a
defense available to, or discharge of, the Borrowers or any
Subsidiary.
The
Company shall promptly examine a copy of each Letter of Credit and each
amendment thereto that is delivered to it and, in the event of any claim of
noncompliance with the Company’s instructions or other irregularity, the Company
will immediately notify the Issuer. The Company shall be conclusively deemed
to
have waived any such claim against the Issuer and its correspondents unless
such
notice is given as aforesaid.
(g) Role
of the Issuer.
Each
Bank and the Company agree that, in paying any drawing under a Letter of Credit,
the Issuer shall not have any responsibility to obtain any document (other
than
any sight draft, certificates and documents expressly required by the Letter
of
Credit) or to ascertain or inquire as to the validity or accuracy of any such
document or the authority of the Person executing or delivering any such
document. None of the Issuer, the Administrator, the Co-Administrative Agents,
any of their respective Related Parties nor any correspondent, participant
or
assignee of the Issuer shall be liable to any Bank for (i) any action taken
or
omitted in connection herewith at the request or with the approval of the Banks
or the Majority Banks, as applicable; (ii) any action taken or omitted in the
absence of gross negligence or willful misconduct; or (iii) the due execution,
effectiveness, validity or enforceability of any document or instrument related
to any Letter of Credit or Issuer Document. The Company hereby assumes all
risks
of the acts or omissions of any beneficiary or transferee with respect to its
use of any Letter of Credit; provided,
that
this assumption is not intended to, and shall not, preclude the
Company’s
pursuing such rights and remedies as it may have against the beneficiary or
transferee at law or under any other agreement and this assumption shall not
release the Issuer from liability to the Company for the Issuer's gross
negligence or willful misconduct in honoring or failing to pay under any Letter
of Credit in accordance with the terms of the following sentence. None of the
Issuer, the Administrator, the Co-Administrative Agents, any of their respective
Related Parties nor any correspondent, participant or assignee of the Issuer
shall be liable or responsible for any of the matters described in clauses
(i)
through
(vi)
of
Section
1.5(f);
provided,
that
anything in such clauses to the contrary notwithstanding, the Company may have
a
claim against the Issuer, and the Issuer may be liable to the Company, to the
extent, but only to the extent, of any direct, as opposed to consequential
or
exemplary, damages suffered by the Company which the Company proves were caused
by the Issuer’s willful misconduct or gross negligence or the Issuer’s willful
failure to pay under any Letter of Credit after the presentation to it by the
beneficiary of a sight draft and certificate(s) strictly complying with the
terms and conditions of a Letter of Credit.
In
furtherance and not in limitation of the foregoing, the Issuer may accept
documents that appear on their face to be in order, without responsibility
for
further
NYDOCS/1204419.6
14
investigation,
regardless of any notice or information to the contrary, and the Issuer shall
not be responsible for the validity or sufficiency of any instrument
transferring or assigning or purporting to transfer or assign a Letter of
Credit
or the rights or benefits thereunder or proceeds thereof, in whole or in
part,
which may prove to be invalid or ineffective for any reason.
(h) Cash
Collateral.
(i) Upon
the
request of the Administrator, (A) if the Issuer has honored any full or partial
drawing request under any Letter of Credit and such drawing has resulted in
an
L/C Borrowing, or (B) if, as of the Letter of Credit Expiration Date, any L/C
Obligation for any reason remains outstanding, the Company shall, in each case,
immediately Cash Collateralize the then Outstanding Amount of all L/C
Obligations for so long as such L/C Obligations remain outstanding.
(ii) In
addition, if the Administrator notifies the Company at any time that the
Outstanding Amount of all L/C Obligations at such time exceeds 105% of the
Letter of Credit Sublimit then in effect, then, within two Business Days after
receipt of such notice, the Company shall Cash Collateralize the L/C Obligations
in an amount equal to, and for so long as, the amount by which the Outstanding
Amount of all L/C Obligations exceeds the Letter of Credit
Sublimit.
(iii) Upon
the
occurrence and during the continuation of any Default of the type described
in
Section
7.1(g)
or, with
notice from either of the Co-Administrative Agents, upon the occurrence and
during the continuation of any other Event of Default, (A) an amount equal
to
that portion of the Outstanding Amount of all L/C Obligations attributable
to
the then aggregate amount which is undrawn and available under all Letters
of
Credit issued and outstanding for the account of the Borrowers or a Domestic
Subsidiary Guarantor shall, without demand upon or notice to the Borrowers
or
any other Person, be deemed to have been paid or disbursed by the Issuer under
such Letters of Credit (notwithstanding that such amount may not have in fact
been so paid or disbursed); and (B) upon notification by either of the
Co-Administrative Agents to the Company of its obligations under this
Section
1.5(h)(iii),
the
Company shall be immediately obligated to reimburse the Issuer for the amount
deemed to have been so paid or disbursed by such Issuer. Any amounts so payable
by the Company pursuant to this Section
1.5(h)(iii)
(the
“Deemed
Disbursement Amount”)
shall
be Cash Collateralized by the Company. At such time when the Defaults or Events
of Default giving rise to the deemed disbursements hereunder shall have been
cured or waived, the Administrator shall return to the Company the Deemed
Disbursement Amount, less any amount thereof applied to the Obligations,
together with accrued interest at the Federal Funds Rate, which have not been
applied to the partial satisfaction of the Obligations.
(iv) The
Administrator may, at any time and from time to time after the initial deposit
of Cash Collateral, request that additional Cash Collateral be provided in
order
to protect against the results of exchange rate fluctuations sets
NYDOCS/1204419.6
15
forth
certain additional requirements to deliver Cash Collateral hereunder. For
purposes of this Section
1.5
and
Section
1.8,
“Cash
Collateralize”
means
to pledge and deposit with or deliver to the Administrator, for the benefit
of
the Issuer and the Banks, as collateral for the L/C Obligations, cash or deposit
account balances pursuant to documentation in form and substance reasonably
satisfactory to the Administrator and the Issuer (which documents are hereby
consented to by the Banks). Derivatives of such term have corresponding
meanings. Each Borrower hereby grants to the Administrator, for the benefit
of
the Issuer and the Banks, a security interest in all such cash, deposit accounts
and all balances therein and all proceeds of the foregoing. Cash Collateral
shall be maintained in blocked, non-interest bearing deposit accounts at Bank
of
America.
(i) Applicability
of ISP.
Unless
otherwise expressly agreed by the Issuer and the Company when a Letter of Credit
is issued (including any such agreement applicable to an Existing Letter of
Credit), the rules of the ISP shall apply to each Letter of Credit.
(j) Conflict
with Issuer Documents.
In the
event of any conflict between the terms hereof and the terms of any Issuer
Document, the terms hereof shall control.
(k) Letters
of Credit Issued for Subsidiaries.
Notwithstanding that a Letter of Credit issued or outstanding hereunder is
in
support of any obligations of, or is for the account of, a Subsidiary, the
Company shall be obligated to reimburse the Issuer hereunder for any and all
drawings under such Letter of Credit. The Company hereby acknowledges that
the
issuance of Letters of Credit for the account of Subsidiaries inures to the
benefit of the Company, and that the Company’s business derives substantial
benefits from the businesses of such Subsidiaries.
(l) Letter
of Credit Amounts. Unless
otherwise specified herein, the amount of a Letter of Credit at any time shall
be deemed to be the Dollar Equivalent of the stated amount of such Letter of
Credit in effect at such time; provided,
that
with respect to any Letter of Credit that, by its terms or the terms of any
Issuer Document related thereto, provides for one or more automatic increases
in
the stated amount thereof, the amount of such Letter of Credit shall be deemed
to be the Dollar Equivalent of the maximum stated amount of such Letter of
Credit after giving effect to all such increases, whether or not such maximum
stated amount is in effect at such time.
Section
1.6. Swing
Line Loans.
(a) The
Swing Line.
Subject
to the terms and conditions set forth herein, the Swing Line Bank agrees, in
reliance upon the agreements of the other Banks set forth in this Section
1.6
to make
loans in Dollars (each such loan, a “Swing
Line Loan”)
to the
Company or the Designated Borrower, as applicable, from time to time on any
Business Day during the Availability Period in an aggregate amount not to exceed
at any time outstanding the amount of the Swing Line Sublimit, notwithstanding
the fact that such Swing Line Loans, when aggregated with the Commitment
Percentage of the Outstanding Amount of Revolving Loans and L/C Obligations
of
the Bank acting as Swing Line Bank, may exceed the amount of such Bank’s
Commitment; provided,
that
after giving
NYDOCS/1204419.6
16
effect
to
any Swing Line Loan, (i) the Total Outstandings shall not exceed the
Aggregate Commitments, and (ii) the aggregate Outstanding Amount of
the
Revolving Loans of any Bank, plus
such
Bank’s Commitment Percentage of the Outstanding Amount of all L/C Obligations,
plus
such
Bank’s Commitment Percentage of the Outstanding Amount of all Swing Line Loans
shall not exceed such Bank’s Commitment, and provided further,
that
the Borrowers shall not use the proceeds of any Swing Line Loan to refinance
any
outstanding Swing Line Loan. Within the foregoing limits, and subject to the
other terms and conditions hereof, the Company may borrow under this
Section
1.6,
prepay
under Section
1.8,
and
reborrow under this Section
1.6.
Each
Swing Line Loan shall be a Eurocurrency Rate Loan with an Interest Period of
1
month. Immediately upon the making of a Swing Line Loan, each Bank shall be
deemed to, and hereby irrevocably and unconditionally agrees to, purchase from
the Swing Line Bank a risk participation in such Swing Line Loan in an amount
equal to the product of such Bank’s Commitment Percentage times
the
amount of such Swing Line Loan.
(b) Borrowing
Procedures.
Each
Swing Line Borrowing shall be made upon the Company’s irrevocable notice to the
Swing Line Bank and the Administrator, which may be given by telephone. Each
such notice must be received by the Swing Line Bank and the Administrator not
later than 3:00 p.m. on the requested borrowing date, and shall specify (i)
the
amount to be borrowed, which shall be a minimum of $250,000, and (ii) the
requested borrowing date, which shall be a Business Day. Each such telephonic
notice must be confirmed promptly by delivery to the Swing Line Bank and the
Administrator of a written Swing Line Loan Notice, appropriately completed
and
signed by a Responsible Officer of the Company. Promptly after receipt by the
Swing Line Bank of any telephonic Swing Line Loan Notice, the Swing Line Bank
will confirm with the Administrator (by telephone or in writing) that the
Administrator has also received such Swing Line Loan Notice and, if not, the
Swing Line Bank will notify the Administrator (by telephone or in writing)
of
the contents thereof. Unless the Swing Line Bank has received notice (by
telephone or in writing) from the Administrator (including at the request of
any
Bank) prior to 4:00 p.m. on the date of the proposed Swing Line Borrowing (A)
directing the Swing Line Bank not to make such Swing Line Loan as a result
of
the limitations set forth in the proviso to the first sentence of Section
1.6(a),
or (B)
that one or more of the applicable conditions specified in Article
III
is not
then satisfied, then, subject to the terms and conditions hereof, the Swing
Line
Bank will, not later than 5:00 p.m. on the borrowing date specified in such
Swing Line Loan Notice, make the amount of its Swing Line Loan available to
the
Company at
its
office by crediting the account of the Company on the books of the Swing Line
Bank in Same Day Funds.
(c) Refinancing
of Swing Line Loans.
(i) The
Swing
Line Bank at any time and in its sole and absolute discretion may request,
on
behalf of the Company (which hereby irrevocably authorizes the Swing Line Bank
to so request on its behalf), that each Bank make a Base Rate Swing Line Loan
in
an amount equal to such Bank’s Commitment Percentage of the amount of Swing Line
Loans then outstanding. Such request shall be made in writing (which written
request shall be deemed to be a Swing
NYDOCS/1204419.6
17
Line
Loan
Notice for purposes hereof) and in accordance with the requirements of
Section
1.3,
without
regard to the minimum and multiples specified therein for the principal amount
of Base Rate Loans, but subject to the unutilized portion of the Aggregate
Commitments and the conditions set forth in Section
3.2.
The
Swing Line Bank shall furnish the Company with a copy of the Swing Line Loan
Notice promptly after delivering such notice to the Administrator. Each Bank
shall make an amount equal to its Commitment Percentage of the amount specified
in such Swing Line Loan Notice available to the Administrator in Same Day Funds
for the account of the Swing Line Bank at the Administrator’s Funding Office for
Dollar-denominated payments not later than 1:00 p.m. on the day specified in
such Swing Line Loan Notice, whereupon, subject to Section
1.6(c)(ii),
each
Bank that so makes funds available shall be deemed to have made a Base Rate
Swing Line Loan to the Company in such amount, without duplication for that
portion of the Swing Line Loan being so refinanced. The Administrator shall
remit the funds so received to the Swing Line Bank.
(ii) If
for
any reason any Swing Line Loan cannot be refinanced by such a Swing Line
Borrowing in accordance with Section
1.6(c)(i),
the
request for Base Rate Swing Line Loans submitted by the Swing Line Bank as
set
forth herein shall be deemed to be a request by the Swing Line Bank that each
of
the Banks fund its risk participation in the relevant Swing Line Loan and each
Bank’s payment to the Administrator for the account of the Swing Line Bank
pursuant to Section
1.6(c)(i)
shall be
deemed payment in respect of such participation.
(iii) If
any
Bank fails to make available to the Administrator for the account of the Swing
Line Bank any amount required to be paid by such Bank pursuant to the foregoing
provisions of this Section
1.6(c)
by the
time specified in Section
1.6(c)(i),
the
Swing Line Bank shall be entitled to recover from such Bank (acting through
the
Administrator), on demand, such amount with interest thereon for the period
from
the date such payment is required to the date on which such payment is
immediately available to the Swing Line Bank at a rate per annum equal to the
applicable Overnight Rate from time to time in effect. A certificate of the
Swing Line Bank submitted to any Bank (through the Administrator) with respect
to any amounts owing under this clause (iii)
shall be
conclusive absent manifest error.
(iv) Each
Bank’s obligation to make Swing Line Loans or to purchase and fund risk
participations in Swing Line Loans pursuant to Section
1.6(c)
shall be
absolute and unconditional and shall not be affected by any circumstance,
including (A) any setoff, counterclaim, recoupment, defense or other right
which
such Bank may have against the Swing Line Bank, the Borrowers or any other
Person for any reason whatsoever, (B) the occurrence or continuance of a
Default, or (C) any other occurrence, event or condition, whether or not similar
to any of the foregoing; provided,
that
each Bank’s obligation to make Swing Line Loans pursuant to this Section
1.6(c)
is
subject to the conditions set forth in Section
3.2.
No such
funding of risk participations shall relieve or otherwise impair the
NYDOCS/1204419.6
18
obligation
of the Company to repay Swing Line Loans, together with interest as provided
herein.
(d) Repayment
of Participations.
(i) At
any
time after any Bank has purchased and funded a risk participation in a Swing
Line Loan, if the Swing Line Bank receives any payment on account of such Swing
Line Loan, the Swing Line Bank will distribute to such Bank its Commitment
Percentage of such payment (appropriately adjusted, in the case of interest
payments, to reflect the period of time during which such Bank’s risk
participation was funded) in the same funds as those received by the Swing
Line
Bank.
(ii) If
any
payment received by the Swing Line Bank in respect of principal or interest
on
any Swing Line Loan is required to be returned by the Swing Line Bank under
any
of the circumstances described in Section
8.5(c)
(including pursuant to any settlement entered into by the Swing Line Bank in
its
discretion), each Bank shall pay to the Swing Line Bank its Commitment
Percentage thereof on demand of the Administrator, plus interest thereon from
the date of such demand to the date such amount is returned, at a rate per
annum
equal to the applicable Overnight Rate. The Administrator will make such demand
upon the request of the Swing Line Bank. The obligations of the Banks under
this
clause shall survive the payment in full of the Obligations and the termination
of this Agreement.
(e) Interest
for Account of Swing Line Bank.
The
Swing Line Bank shall be responsible for invoicing the Company for interest
on
the Swing Line Loans. Until each Bank funds its Base Rate Swing Line Loan or
risk participation pursuant to this Section
1.6
to
refinance such Bank’s Commitment Percentage of any Swing Line Loan, interest in
respect of such Commitment Percentage shall be solely for the account of the
Swing Line Bank.
(f) Payments
Directly to Swing Line Bank.
The
Company shall, make all payments of principal and interest in respect of the
Swing Line Loans directly to the Swing Line Bank (without duplication of any
amounts of The Swing Line Loans which have been refinanced pursuant to
Section
1.6(c)(i)).
Section
1.7. Interest.
(a) Interest
Rates on Loans.
(i) Loans.
Each
Loan shall bear interest (from the date made through and including the date
of
payment in full) at a rate per annum equal to either: (A) in the case of Base
Rate Loans, the Base Rate; or (B) in the case of Eurocurrency Rate Loans, the
Eurocurrency Rate plus the Applicable Margin for such Eurocurrency Rate
Loans.
NYDOCS/1204419.6
19
(ii) Bid
Loans.
Each
Bid Loan shall bear interest (from the date made through and including the
date
of payment in full) at a rate per annum as determined in accordance with
Section
1.4.
(b) Calculation.
Interest on Base Rate Loans shall be calculated on the basis of a 365 or 366
day
year (as applicable) and the actual number of days elapsed, and the interest
rate with respect to any Base Rate Loan shall change effective immediately
upon
any change in the Base Rate, without notice or demand to or upon the Borrowers.
Interest on Eurocurrency Rate Loans shall be calculated on the basis of a 360
day year and the actual number of days elapsed, or in the case of interest
in
respect of Revolving Loans denominated in Alternative Currencies as to which
market practice differs from the foregoing, in accordance with such market
practice. Each determination of any interest rate by the Administrator pursuant
to this Agreement or the Notes shall be conclusive and binding on the Company
and each of the Banks in the absence of manifest error.
(c) Interest
Payments.
Interest shall accrue on the entire principal of each Base Rate Loan, each
Eurocurrency Rate Loan and each Bid Loan and shall be payable in arrears by
the
Borrowers to the Administrator for the account of the Bank or Banks making
such
Advance as follows:
(i) Base
Rate Loans.
With
respect to any Base Rate Loan, on the last Business Day of each calendar quarter
and the date such Loan is repaid;
(ii) Eurocurrency
Rate Loans.
With
respect to any Eurocurrency Rate Loan, on the last day of the Interest Period
for such Loan; provided,
that
interest shall also be payable on the last day of the third (3rd) month for
any
Eurocurrency Rate Loan having a six (6) month Interest Period; and
(iii) Bid
Loan.
With
respect to any Bid Loan, on the last day of the Interest Period for such Bid
Loan; provided,
that
interest shall also be payable every ninety (90) days for Bid Loan with Interest
Periods in excess of ninety (90) days.
It
is
understood and agreed that the interest payable on the last day of an Interest
Period in excess of 90 days shall be only of interest accrued after the 90th
day
of such Interest Period if interest accrued through such 90th day was paid
on
such 90th day, as provided herein.
(d) Default
Interest.
Notwithstanding the foregoing, in the event any Event of Default occurs and
is
continuing, the Borrowers shall pay, but only to the extent permitted by law,
interest (after as well as before any judgment) on all Advances and L/C
Borrowings at a rate per annum equal to the then applicable rate per annum
pursuant to clause (a)
of this
Section
1.7
(in the
case of any Loans), or the then applicable fee pursuant to clause (b)
of
Section
1.12
(in the
case of Letters of Credit and L/C Borrowings), as the case may be, plus a margin
of two percent (2%).
(e) Interest
Periods.
Any
Interest Period which would otherwise end on a day which is not a Business
Day
shall end on the next succeeding Business Day unless, in the
NYDOCS/1204419.6
20
case
of a
Eurocurrency Rate Loan, such Business Day falls in another calendar month,
in
which case such Interest Period shall end on the next preceding Business Day.
No
Interest Period shall extend beyond the Maturity Date. Any Interest Period
for a
Eurocurrency Rate Loan which begins on a day for which there is no numerically
corresponding day in the calendar month during which such Interest Period is
to
end shall end on the last day of such calendar month (or the next preceding
Business Day if such last day is not a Business Day).
(f) To
the
extent that any Bank has reimbursed any Issuer for an L/C Advance as required
by
this Section, such Bank shall be entitled to receive its ratable portion of
any
amounts subsequently received (from the Company or otherwise) in respect of
such
L/C Advance.
Section
1.8. Repayments
and Prepayments of Principal of Loans and Letters of Credit; Pro Rata Treatment;
Application of Prepayments.
(a) The
Borrowers agree to pay the entire principal amount of all Obligations, together
with all accrued unpaid interest thereon, on the Maturity Date.
(b) On
the
last day of each Interest Period for each Eurocurrency Rate Loan (other than
Swing Line Loans) and each Bid Loan, the Borrowers shall pay all principal,
interest and other amounts then outstanding in respect of such Eurocurrency
Rate
Loan or such Bid Loan. On or prior to the date ten (10) Business Days following
the making of any Swing Line Loan, the Borrowers shall pay all principal,
interest and other amounts then outstanding in respect of such Swing Line Loan.
Such payment may be made with the proceeds of a new or replacement Base Rate
Loan, or Eurocurrency Rate Loan, to the extent then available, pursuant to
all
of the terms and limitations of this Agreement.
(c) In
no
event shall the Total Outstandings at any time exceed the Aggregate Commitments
at such time, as such Aggregate Commitments may be reduced from time to time
in
accordance with the provisions hereof. Accordingly, upon any such reduction
in
the Aggregate Commitments, the Company agrees to prepay so much of the Loans
(or
Cash Collateralize the L/C Obligations) as may be necessary so that the Total
Outstandings will not exceed the Aggregate Commitment, as so reduced. For the
avoidance of any doubt, the parties hereto acknowledge and agree that, as used
in this Agreement, Revolving Loans do not include Bid Loans.
(d) If
the
Administrator notifies the Company at any time that the Outstanding Amount
of
all Loans denominated in Alternative Currencies at such time exceeds the
Alternative Currency Sublimit then in effect, whether due to exchange rate
fluctuations or otherwise, then, within two Business Days after receipt of
such
notice, the Borrowers shall prepay Loans (or Cash Collateralize the amount
of
such excess) in an aggregate amount sufficient to reduce such Outstanding Amount
as of such date of payment to
an
amount not to exceed the Alternative Currency Sublimit then in
effect.
(e) Upon
certain sales of assets described in Section
5.6,
the
Company shall prepay all or a portion of the Loans in accordance with the
provisions of such Section
5.6.
NYDOCS/1204419.6
21
(f) Each
Borrower may, at its option, subject to the provisions of Section
1.18,
prepay
without premium or penalty, Revolving Loans, in whole or in part, on the
following conditions: (i) such Borrower shall give to the Administrator and
each
of the Banks written notice of any prepayment of (A) Base Rate Loans not
later
than 11:00 a.m. on the Business Day on which such prepayment is to be made
and
(B) Eurocurrency Rate Loans not later than 11:00 a.m. on the third Business
Day
prior to the date on which such prepayment is to be made; (ii) each prepayment
shall be in the amount of the balance owing, or in the following minimum
amounts: (A) $100,000 or whole multiples of $100,000 in excess thereof (in
the
case of Loans denominated in an Alternative Currency), (B) $1,000,000 or
whole
multiple of $1,000,000 in excess thereof (in the case of Eurocurrency Rate
Loans
denominated in Dollars), or (C) $2,000,000 and whole multiples of $1,000,000
(in
the case of Base Rate Loans denominated in Dollars) and (iii) each prepayment
must be made to the Administrator for disbursement as set forth in clause
(j)
and
(k)
below,
as applicable. Such notice of prepayment shall be irrevocable and shall specify
(i) the date of any such prepayment, (ii) the aggregate principal amount
to be
prepaid pursuant to this clause (f)
on such
date, and (iii) the Type of Revolving Loan to be prepaid. If any Eurocurrency
Rate Loan is prepaid, the Borrowers shall indemnify each Bank in accordance
with
Section
1.18
hereof.
(g) The
Borrowers shall not be permitted to prepay any Bid Loan.
(h) Each
Borrower may, at its option, subject to the provisions of Section
1.18,
upon
notice to the Swing Line Bank (with a copy to the Administrator), at any time
or
from time to time, prepay without premium or penalty, Swing Line Loans in whole
or in part, on the following conditions: (i) such Borrower shall give to the
Swing Line Bank written notice of any prepayment not later than 1:00 p.m. on
the
Business Day on which such prepayment is to be made and (ii) each prepayment
shall be in a minimum amount of $100,000. Such notice shall be irrevocable
and
shall specify the date and amount of such prepayment.
(i) Except
for payments in respect of any Bid Loan or Swing Line Loan, each payment of
principal of Loans hereunder shall be made to each Bank pro rata based upon
its
Commitment Percentage at the time of such payment.
(j) Each
payment of principal of or interest on any Bid Loan shall be made to the
Administrator for the benefit of the Bank which has made such Bid Loan,
regardless of such Bank’s Commitment Percentage, except that if any amounts are
due and payable upon any Loans at the time of any such payment of a Bid Loan,
then such payment shall be made through the Administrator to each Bank based
on
each Bank’s pro rata Commitment Percentage of the Total Outstandings of all
Loans.
(k) Any
partial payment of the Obligations under or in respect of any Note shall be
applied by the Bank holding such Note (i) first, to the payment of all
of
the interest which shall be due and payable on the principal of such Note at
the
time of such partial payment, (ii) then, to the payment of all (if any) other
amounts (except principal) due and payable under such Note at such time, and
(iii) finally, to the payment of principal of such Note.
NYDOCS/1204419.6
22
(l) Each
payment in respect of any Letter of Credit or L/C Borrowing in respect thereof
and each payment of Fees payable to all of the Banks and each payment in respect
of a permanent reduction of the Aggregate Commitments shall be made to the
Administrator for prompt distribution to each such Bank pro rata based upon
its
Commitment Percentage.
(m) Each
payment of Fees payable to either of the Co-Administrative Agents or the Issuer
hereunder or in connection herewith shall be made directly to such
Co-Administrative Agent or the Issuer.
Section
1.9. Evidence
of Debt.
(a) The
Credit Extensions made by each Bank shall be evidenced by one or more accounts
or records maintained by such Bank and by the Administrator in the ordinary
course of business. The accounts or records maintained by the Administrator
and
each Bank shall be conclusive absent manifest error of the payments thereon.
Any
failure to so record or any error in doing so shall not, however, limit or
otherwise affect the obligation of the Borrowers hereunder to pay any amount
owing with respect to the Obligations. In the event of any conflict between
the
accounts and records maintained by any Bank and the accounts and records of
the
Administrator in respect of such matters, the accounts and records of the
Administrator shall control in the absence of manifest error. Upon the request
of any Bank to a Borrower made through the Administrator, such Borrower shall
execute and deliver to such Bank (through the Administrator) a Note, which
shall
evidence such Bank’s Loans to such Borrower in addition to such accounts or
records. Each such promissory note shall in the case of Revolving Loans, be
in
the form of Exhibit
D-1
(a
“Revolving
Note”),
in
the case of Swing Line Loans, be in the form of Exhibit
D-2
(a
“Swing
Line Note”),
and
in the case of Bid Loans, be in the form of Exhibit D-3 (a “Competitive
Bid Note”).
Each
Bank may attach schedules to a Note and endorse thereon the date, Type (if
applicable), amount, currency and maturity of its Loans and payments with
respect thereto.
(b) In
addition to the accounts and records referred to in subsection (a), each Bank
and the Administrator shall maintain in accordance with its usual practice
accounts or records evidencing the purchases and sales by such Bank of
participations in Letters of Credit and Swing Line Loans. In the event of any
conflict between the accounts and records maintained by the Administrator and
the accounts and records of any Bank in respect of such matters, the accounts
and records of the Administrator shall control in the absence of manifest
error.
Section
1.10. Payments
and Computations.
(a) Except
as
otherwise expressly provided herein and except with respect to principal and
interest on Loans denominated in an Alternative Currency, each payment payable
by the Borrowers to the Administrator, any Co-Administrative Agent, any Bank
or
the Issuer under this Agreement, the Notes, any Letter of Credit, any Domestic
Subsidiary Guarantee or any other Credit Document shall be made directly to
the
Administrator (unless such payment is in respect of any Fees payable by the
Borrowers to
NYDOCS/1204419.6
23
either
of
the Co-Administrative Agents (including in such Co-Administrative Agent’s
capacity as the Issuer hereunder), in which case such payment shall be made
directly to such Co-Administrative Agent), in Dollars at the Administrator’s
Funding Office (or, with respect to such Co-Administrative Agent, at such office
as notified to the Company by it), not later than 2:00 p.m. on the due date
of
each such payment and in Same Day Funds. Except as otherwise expressly provided
herein, each payment payable by the Borrowers hereunder with respect to
principal and interest on Loans denominated in an Alternative Currency shall
be
made in such Alternative Currency to the Administrator at the Administrator’s
Funding Office not later than the Applicable Time specified by the Administrator
on the due date of such payment and in Same Day Funds. If, for any reason,
any
Borrower is prohibited by any Law from making any required payment hereunder
in
an Alternative Currency, such Borrower shall make such payment in Dollars in
the
Dollar Equivalent of the Alternative Currency payment amount. The Administrator
will promptly distribute to each Bank in Same Day Funds by wire transfer such
Bank’s share (if any) of each such payment received by the
Administrator.
(b) If
any
sum would, but for the provisions of this clause (b),
become
due and payable to the Administrator, any Co-Administrative Agent, any Bank
or
the Issuer by any Borrower under this Agreement, any Note, any Letter of Credit,
any Domestic Subsidiary Guarantee or any other Credit Document on any day which
is not a Business Day, then such sum shall become due and payable on the
Business Day next succeeding the day on which such sum would otherwise have
become due and payable hereunder or thereunder, and interest payable to the
Administrator, such Co-Administrative Agent, such Bank or the Issuer under
this
Agreement, any Note, any Letter of Credit, any Domestic Subsidiary Guarantee
or
any other Credit Document shall be adjusted by the Administrator (or such
Co-Administrative Agent, as the case may be) accordingly.
Section
1.11. Payments
to be Free of Deductions.
(a) Each
payment payable by the Borrowers to the Administrator, any Co-Administrative
Agent or any Bank under this Agreement or any other Credit Document shall be
made in accordance with Section
1.10 hereof,
in Dollars or the applicable Alternative Currency, without set-off or
counterclaim and free and clear of and without any deduction for any taxes,
levies, imposts, duties, charges, fees, deductions, withholdings of any kind,
now or hereafter imposed or levied by any Governmental Authority. If any amounts
are so levied or imposed, each Borrower agrees to pay such amounts in full
to
the relevant Governmental Authority in accordance with applicable law and as
set
forth in paragraph (b)
below,
and such additional amounts as may be necessary so that every payment of all
amounts due hereunder or under any Note, after withholding or deduction for
or
on account of any amounts imposed or levied by any Governmental Authority,
will
not be less than the amount provided for herein or in such Note.
(b) Each
Bank
that is not organized under the laws of the United States or any state thereof
(a “Foreign
Bank”)
shall
provide to the Company and the Administrator on or prior to the Effective Date
in the case of each Foreign Bank signatory hereto, on the date of any assignment
pursuant to which it becomes a Bank in the case of each other Foreign Bank,
and
at such other times as required by United States law or as the
NYDOCS/1204419.6
24
Company
or the Administrator shall reasonably request (if either such form is
applicable), two duly completed signed copies of either (A) Internal Revenue
Service Form W-ECI (or any successor form), certifying that all payments to
be
made to such Foreign Bank under this Agreement or any Note will be effectively
connected to a United States trade or business (a “Form
W-8ECI Certification”)
or (B)
Internal Revenue Service Form W-8BEN (or any successor form), certifying that
such Foreign Bank is entitled to the benefits of a provision of a tax convention
or treaty to which the United States is a party which exempts from United States
withholding tax, in whole, all payments to be made to such Foreign Bank under
this Agreement or any other Credit Document (a “Form
W-8BEN Certification”).
Each
Foreign Bank agrees that it shall, promptly upon a change of its lending office
or the selection of any additional lending office, to the extent the forms
previously delivered by it pursuant to this section are no longer effective,
and
promptly upon the Company’s or the Administrator’s reasonable request after the
occurrence of any other event (including the passage of time) requiring the
delivery of a Form W-8BEN or Form W-8ECI in addition to or in replacement of
the
forms previously delivered, deliver to the Company and the Administrator, as
applicable, if and to the extent it is properly entitled to do so, a properly
completed and executed Form W-8BEN, Form W-8ECI, Form W-9, as applicable (or
any
successor forms thereto). Each Foreign Bank shall also deliver to the Company
and the Administrator, to the extent applicable, such other additional or
supplemental forms as may at any time be required as a result of changes in
applicable law, rule, regulation or treaty or the circumstances of such Foreign
Bank in order to confirm or maintain in effect its entitlement to an exemption
from United States withholding tax on any payments hereunder; provided,
that
the circumstances of such Foreign Bank at the relevant time and applicable
law
permit it to do so. If a Foreign Bank determines, as a result of (1) applicable
law, rule, regulation, treaty, or any official application thereof, or (2)
its
circumstances, that it is unable to submit any form or certificate that it
is
obligated to submit pursuant to this Section
1.13(b),
or that
it is required to withdraw or cancel any such form or certificate previously
submitted, it shall promptly notify the Company and the Administrator of such
fact (a “Withholding
Notice”).
In
the event that the withholding or deduction from any payment to be made by
the
Company hereunder is required in respect of any taxes (excluding franchise
taxes
and taxes imposed on or measured by any Bank’s net income or receipts) pursuant
to any applicable law, rule or regulation, then the Company will pay the full
amount required to be deducted or withheld to the United States Internal Revenue
Service or other applicable Governmental Authority within the time allowed
for
such payment under applicable law and deliver to the Administrator and the
Banks
within thirty (30) days after it has made such payment either (x) a receipt
issued by such Governmental Authority evidencing its receipt of such payment,
or
(y) if the Company cannot obtain such a receipt after using reasonable diligence
under the circumstances, a certificate duly executed by a principal financial
officer of the Company stating the amount and date of such payment and the
Bank
to which it relates. In the event such taxes are directly asserted against
the
Administrator or any Bank with respect to any payment received by the
Administrator or such Bank hereunder, the Administrator or such Bank may pay
such taxes and the Company will promptly pay such additional amount (including
any penalties, interest or expenses) as is necessary in order that the net
amount received by such person after the payment of such taxes (including any
taxes on
25
such
additional amount) shall equal the amount such person would have received had
not such taxes been asserted. If the Company fails to pay any taxes when due
to
the appropriate taxing authority or fails to remit to the Administrator, for
the
account of the respective Banks, the receipt required by clause (x)
above or
certificate required by clause (y)
above,
the Company shall indemnify each of the Banks for any incremental taxes
(excluding franchise taxes and taxes imposed on or measured by any Bank’s net
income or receipts), interest or penalties that may become payable by any Bank
as a result of any such failure.
Section
1.12. Fees.
(a) Facility
Fees.
The
Borrowers shall pay to the Administrator, for the benefit of the Banks, a (i)
facility fee (the “Facility
Fee”)
in
Dollars in the amount equal to the Applicable Margin for the Facility Fee then
in effect, multiplied by the actual daily amount of the Aggregate Commitments
(or, if the Aggregate Commitments have terminated, on the Outstanding Amount
of
all Revolving Loans, Swing Line Loans and L/C Obligations), regardless of usage.
The Facility Fee shall accrue at all times during the Availability Period (and
thereafter so long as any Revolving Loans, Swing Line Loans or L/C Obligations
remain outstanding), including at any time during which one or more of the
conditions in Article
III
is not
met, and shall be due and payable quarterly in arrears on the last Business
Day
of each of March, June, September and December, commencing with the first such
date to occur after the Effective Date, and on the Maturity Date (and, if
applicable, thereafter on demand). If there is any change to the Applicable
Margin during any quarter, the actual daily amount shall be computed and
multiplied by the Applicable Margin separately for each period that such
Applicable Margin was in effect. The Facility Fees shall be calculated quarterly
in arrears on the basis of a 365 or 366 day year (as applicable) and the actual
number of days elapsed. The Administrator shall promptly disburse the Facility
Fee to each of the Banks in accordance with their respective Commitment
Percentages.
(b) Administrator
Fee and Other Fees.
The
Company agrees to pay each of the fees or other amounts required by the
Administrator Fee Letter, the Scotia Capital Fee Letter and the Co-Lead
Arrangers Fee Letter, in the amounts and at the times heretofore agreed to
as
set forth therein.
(c) Letter
of Credit Fee.
The
Company agrees to pay to the Administrator, for the pro rata account of the
Issuer and each other Bank in accordance with its Commitment Percentage in
Dollars, (i) with respect to each Letter of Credit , a Letter of Credit fee
(the
“Letter
of Credit Fee”)
in an
amount equal to the then Applicable Margin multiplied by the Stated Amount
of
such Letter of Credit available to be drawn under such Letter of Credit. For
purposes of computing the daily amount to be drawn under any Letter of Credit,
the amount of such Letter of Credit shall be determined in accordance with
Section
9.6.
Letter
of Credit Fees shall be (i) computed on a quarterly basis in arrears and (ii)
due and payable on the first Business Day after the end of each March, June,
September and December, commencing with the first such date to occur after
the
issuance of such Letter of Credit, and on the Letter of Credit Expiration Date.
If there is any change in the Applicable Margin during any quarter, the daily
amount
NYDOCS/1204419.6
26
available
to be drawn under each Letter of Credit shall be computed and multiplied by
the
Applicable Margin separately for each period during such quarter that such
Applicable Margin was in effect. Notwithstanding anything to the contrary
contained herein, upon the request of the Majority Banks, while any Event of
Default exists, all Letter of Credit Fees shall accrue at the rate set forth
in
Section
1.7(d).
The
Company further agrees to pay to the Issuer on the date of issuance of each
Letter of Credit an issuance fee in an amount mutually agreed upon by the Issuer
and the Company.
(d) Fronting
Fee and Documentary and Processing Charges Payable to Issuer. The
Company shall pay directly to the Issuer for its own account, in Dollars, a
fronting fee with respect to each Letter of Credit, at the rate per annum
specified in the Co-Lead Arrangers Fee Letter, computed on the Dollar Equivalent
of the daily amount available to be drawn under such Letter of Credit on a
quarterly basis in arrears. Such fronting fee shall be due and payable on the
tenth Business Day after the end of each March, June, September and December
in
respect of the most recently-ended quarterly period (or portion thereof, in
the
case of the first payment), commencing with the first such date to occur after
the issuance of such Letter of Credit, on the Letter of Credit Expiration Date
and thereafter on demand. For purposes of computing the daily amount available
to be drawn under any Letter of Credit, the amount of such Letter of Credit
shall be determined in accordance with Section
1.5(l).
In
addition, the Company shall pay directly to the Issuer for its own account,
in
Dollars, the customary issuance, presentation, amendment and other processing
fees, and other standard costs and charges, of the Issuer relating to letters
of
credit as from time to time in effect. Such customary fees and standard costs
and charges are due and payable on demand and are nonrefundable.
Section
1.13. Designated
Borrowers.
(a) The
Company may at any time, upon not less than 10 Business Days’ notice from the
Company to the Administrator (or such shorter period as may be agreed by the
Administrator in its sole discretion), designate any wholly-owned Subsidiary
of
the Company (an “Applicant
Borrower”)
as a
Designated Borrower to receive Advances hereunder by delivering to the
Administrator (which shall promptly deliver counterparts thereof to each Bank)
a
duly executed notice and agreement in substantially the form of Exhibit E
(a
“
Request and Assumption Agreement”).
The
parties hereto acknowledge and agree that prior to any Applicant Borrower
becoming entitled to utilize the credit facilities provided for herein, the
Administrator and the Banks shall have received such supporting resolutions,
incumbency certificates, opinions of counsel and other documents or information,
in form, content and scope reasonably satisfactory to the Administrator, as
may
be required by the Administrator or the Majority Banks in their sole discretion,
and Notes signed by such new Borrowers to the extent any Banks so require.
If
the Administrator and the Majority Banks agree that an Applicant Borrower shall
be entitled to receive Advances hereunder, then promptly following receipt
of
all such requested resolutions, incumbency certificates, opinions of counsel
and
other documents or information, the Administrator shall send a notice in
substantially the form of Exhibit F
(a
“Designated
Borrower Notice”) to
the Company and the Banks specifying the effective date upon which the Applicant
Borrower shall constitute a Designated Borrower for purposes hereof, whereupon
each of the Banks agrees to permit such Designated
NYDOCS/1204419.6
27
Borrower
to receive Advances hereunder, on the terms and conditions set forth herein,
and
each of the parties agrees that such Designated Borrower otherwise shall be
a
Borrower for all purposes of this Agreement; provided,
that no
Revolving Loan Notice or Letter of Credit Application may be submitted by or
on
behalf of such Designated Borrower until the date five Business Days after
such
effective date; and provided further,
that
effective as of the date hereof, the Majority Banks agree that each of the
following Subsidiaries may become a “Designated Borrower” pursuant hereto
(subject to satisfaction of the other conditions set forth in this Section
1.13)
without
any requirement of further written consent from the Majority Banks: RWG
Frankenjura-Industrie Flugwerlager GmbH.
(b) The
Obligations of the Company and each Designated Borrower that is a Domestic
Subsidiary shall be joint and several in nature. The Foreign Obligations of
the
Foreign Subsidiaries shall be joint and several in nature.
(c) Each
Subsidiary of the Company that is or becomes a “Designated Borrower” pursuant to
this Section
1.13
hereby
irrevocably appoints the Company as its agent for all purposes relevant to
this
Agreement and each of the other Credit Documents, including (i) the
giving
and receipt of notices, (ii) the execution and delivery of all documents,
instruments and certificates contemplated herein and all modifications hereto,
and (iii) the receipt of the proceeds of any Advances made by the Banks,
to
any such Designated Borrower hereunder. Any acknowledgment, consent, direction,
certification or other action which might otherwise be valid or effective only
if given or taken by all Borrowers, or by each Borrower acting singly, shall
be
valid and effective if given or taken only by the Company, whether or not any
such other Borrower joins therein. Any notice, demand, consent, acknowledgement,
direction, certification or other communication delivered to the Company in
accordance with the terms of this Agreement shall be deemed to have been
delivered to each Designated Borrower.
(d) The
Company may from time to time, upon not less than 5 Business Days’ notice from
the Company to the Administrator (or such shorter period as may be agreed by
the
Administrator in its sole discretion), terminate a Designated Borrower’s status
as such, provided,
that
there are no outstanding Loans or L/C Obligations payable by such Designated
Borrower, or other amounts payable by such Designated Borrower on account of
any
Advances made to it, as of the effective date of such termination. The
Administrator will promptly notify the Banks of any such termination of a
Designated Borrower’s status.
Section
1.14. Increase
in Commitments.
(a) Request
for Increase.
Provided there exists no Default, upon notice to the Administrator (which shall
promptly notify the Banks), the Company may from time to time, request an
increase in the Aggregate Commitments by an amount (for all such requests)
not
exceeding $50,000,000; provided,
that
(i) any such request for an increase shall be in a minimum amount of $5,000,000,
and (ii) the Company may make a maximum of three (3) such requests. At the
time
of sending such notice, the Company (in consultation with the Administrator)
shall specify the time period within which each
NYDOCS/▇▇▇▇▇▇▇.6
28
Bank
is
requested to respond (which shall in no event be less than ten Business Days
from the day of delivery of such notice to the Banks).
(b) Bank
Elections to Increase.
Each
Bank shall notify the Administrator within such time period whether or not
it
agrees to increase its Commitment and, if so, whether by an amount equal to,
greater than, or less than its Commitment Percentage of such requested increase.
Any Bank not responding within such time period shall be deemed to have declined
to increase its Commitment.
(c) Notification
by Administrator; Additional Banks.
The
Administrator shall notify the Company and
each
Bank of the Banks’ responses to each request made hereunder. To achieve the full
amount of a requested increase and subject to the approval of the
Co-Administrative Agents and the Issuer (which approvals shall not be
unreasonably withheld), the Company may also invite additional Eligible
Assignees to become Banks pursuant to a joinder agreement in form and substance
satisfactory to the Co-Administrative Agents, the Issuer and their respective
counsel.
(d) Effective
Date and Allocations.
If the
Aggregate Commitments are increased in accordance with this Section, the
Administrator and the Company shall determine the effective date (the
“Increase
Effective Date”)
and
the final allocation of such increase. The Administrator shall promptly notify
the Company and the Banks of the final allocation of such increase and the
Increase Effective Date.
(e) Conditions
to Effectiveness of Increase.
As a
condition precedent to such increase, the
Company shall deliver to the Administrator a certificate of each Obligor dated
as of the Increase Effective Date (in sufficient copies for each Bank) signed
by
a Responsible Officer of such Obligor (i) certifying and attaching the
resolutions adopted by such Obligor approving or consenting to such increase,
and (ii) in the case of the Company, certifying that, before and after giving
effect to such increase, (A) the representations and warranties contained in
Article
II
and the
other Credit Documents are true and correct on and as of the Increase Effective
Date, except to the extent that such representations and warranties specifically
refer to an earlier date, in which case they are true and correct as of such
earlier date, and except that for purposes of this Section
1.14,
the
representations and warranties contained in Section
2.6
shall be
deemed to refer to the most recent statements furnished pursuant to Section
4.1(a)
and
Section
4.1(b),
respectively, and (B) no Default exists. The Borrowers shall prepay any
Revolving Loans outstanding on the Increase Effective Date (and pay any
additional amounts required pursuant to Section
1.17)
to the
extent necessary to keep the outstanding Revolving Loans ratable with any
revised Commitment Percentages arising from any nonratable increase in the
Commitments under this Section. Such payment may be made with the proceeds
of a
new or replacement Base Rate Loan or Eurocurrency Rate Loan, to the extent
then
applicable.
(f) Conflicting
Provisions.
This
Section shall supersede any provisions in Section
8.6
to the
contrary.
NYDOCS/1204419.6
29
Section
1.15. Use
of
Proceeds.
The
Company represents that the proceeds of all Loans and all Bid Loans made
hereunder and all Letters of Credit issued hereunder shall be used (a) to
refinance Indebtedness, if any, outstanding under the Existing Credit Agreement,
(b) for capital expenditures and acquisitions by the Company and related fees
and expenses in connection therewith and (c) for its general corporate and
working capital purposes, in each case in compliance with this Agreement. The
Company further represents, warrants and covenants that the proceeds of all
Loans and all Bid Loans and all Letters of Credit shall not be used by it in
any
manner which would result in a violation by any Person of Regulation U or X
of
the F.R.S. Board, 12 C.F.R. Parts 221 and 224.
Section
1.16. Illegality.
Notwithstanding any other provisions hereof, if any applicable law, regulation
or directive of any Governmental Authority, or any change therein or in the
interpretation or application thereof, shall make it unlawful for any Bank
to
make or maintain Eurocurrency Rate Loans, (i) the obligation of such Bank to
make such Loans shall terminate, and (ii) the Borrowers shall, if any such
Loans
are then outstanding, promptly upon request from such Bank, either pay all
such
Loans (together with interest accrued thereon) made by such Bank either in
cash
or with the proceeds of a replacement Base Rate Loan. If any such payment or
replacement of Eurocurrency Rate Loans is made on a day that is not the last
Business Day of the Interest Period applicable to such Loans, the Borrowers
shall pay such Bank all amounts required by Section
1.18(a).
Section
1.17. Increased
Costs; Capital Adequacy; Suspensions of Eurocurrency Rate Loans.
(a) Increased
Costs Relating to Credit Facilities.
In the
event that applicable law, treaty or regulation or directive from any
Governmental Authority, or any change therein or in the interpretation or
application thereof or compliance by any Bank with any request or directive
(whether or not having the force of law) from any central bank or Governmental
Authority, shall: (i) subject any Bank to any tax of any kind whatsoever with
respect to this Agreement or any Eurocurrency Rate Loan, or subject any payment
made by any Obligor to any Bank in respect of principal, Fees, interest or
any
other amount payable hereunder to any tax of any kind whatsoever (excluding
franchise taxes and taxes imposed on or measured by any Bank’s net income or
receipts); (ii) impose, modify or hold applicable any reserve, special deposit
or similar requirements against assets held by, or deposits in or for the
account of, advances or loans by, or other credit extended by, any office of
any
Bank, including pursuant to Regulations of the F.R.S. Board; or (iii) impose
on
any Bank any other condition with respect to this Agreement, any Note, any
other
Credit Document, or any of the Loans or Bid Loans hereunder, and the result
of
any of the foregoing is (x) to increase the cost to such Bank of making,
renewing or maintaining its Eurocurrency Rate Loans or Bid Loans (or any part
thereof) by an amount that such Bank deems, in such Bank’s reasonable good faith
judgment, to be material or (y) to reduce the amount of any payment (whether
of
principal, interest or otherwise) in respect of any of the Eurocurrency Rate
Loans or Bid Loans by an amount that such Bank deems to be material in such
Bank’s reasonable good faith judgment or (z) to require any Bank to make any
payment or to forego any interest or other sum payable hereunder, the amount
of
which payment or foregone interest or other sum is calculated by reference
to
the gross amount of any sum receivable or deemed received by
NYDOCS/1204419.6
30
the
Administrator or any Bank from any Obligor hereunder, then, in any case, to
the
maximum extent permitted by applicable law, the Borrowers shall promptly pay
such Bank, upon its demand, such additional amount as will compensate such
Bank
for such additional costs, reduction, payment or foregone interest, as the
case
may be (collectively the “Additional
Costs”).
(b) Increased
Capital Costs.
If any
change in, or the introduction, adoption, effectiveness, interpretation,
reinterpretation or phase-in of, any Law (whether or not having the force of
law) of any court, central bank, regulator or other Governmental Authority
affects or would affect the amount of capital required or expected to be
maintained by any Bank or any corporation controlling any Bank, and such Bank
determines (in its reasonable judgment) that the rate of return on its capital
as a consequence of its Commitments (including its issuance of or participation
in, as the case may be, Letters of Credit) or the Loans or the Bid Loans made
by
such Bank is reduced to a level below that which such Bank could have achieved
but for the occurrence of any such circumstance, then, in any such case upon
notice from time to time by such Bank to the Company, the Borrowers shall
immediately pay directly to such Bank additional amounts sufficient to
compensate such Bank for such reduction in rate of return. In determining such
amounts, such Bank will use reasonable methods of averaging and attribution.
The
Borrowers may, however, avoid paying such amounts for future rate of return
reductions if, within the maximum borrowings permitted herein, the Borrowers
borrow such amounts as will cause the Bank to avoid any such future rate of
return reductions which would otherwise be caused by such changed capital
adequacy requirements or each of the Borrowers agrees to a reduction in the
Aggregate Commitments to achieve the same result.
(c) If
the
Administrator or Majority Banks determine that for any reason in connection
with
any request for a Eurocurrency Rate Loan or a conversion to or continuation
thereof that (a) deposits (whether in Dollars or an Alternative Currency) are
not being offered to banks in the applicable offshore interbank market for
such
currency for the applicable amount and Interest Period of such Eurocurrency
Rate
Loan, (b) adequate and reasonable means do not exist for determining the
Eurocurrency Rate for any requested Interest Period with respect to a proposed
Eurocurrency Rate Loan (whether denominated in Dollars or an Alternative
Currency), or (c) the Eurocurrency Rate for any requested Interest Period with
respect to a proposed Eurocurrency Rate Loan does not adequately and fairly
reflect the cost to such Banks of funding such Eurocurrency Rate Loan, the
Administrator will promptly so notify the Company and each Bank. Thereafter,
the
obligation of the Banks to make or maintain Eurocurrency Rate Loans in the
affected currency or currencies shall be suspended until the Administrator
(upon
the instruction of the Majority Banks) revokes such notice. Upon receipt of
such
notice, the Company may revoke any pending request for a Borrowing of,
conversion to or continuation of Eurocurrency Rate Loans in the affected
currency or currencies or, failing that, will be deemed to have converted such
request into a request for a Revolving Borrowing of Base Rate Loans in the
amount specified therein.
Section
1.18. Certain
Indemnities.
NYDOCS/1204419.6
31
(a) Payment.
Each of
the Borrowers jointly and severally agrees to indemnify each Bank and to hold
each Bank harmless against and from any loss, costs (including the increased
costs referred to in Section
1.16
above)
or expenses that it may sustain or incur as a direct consequence of (i) any
prepayment of the principal of or interest on any Eurocurrency Rate Loan or
(ii)
any failure by any Borrower to complete a borrowing, prepayment, issuance,
extension or replacement of or to a Base Rate Loan, a Eurocurrency Rate Loan,
a
Letter of Credit or Bid Loan after notice thereof has been given or after
telephone notice has been given and is not followed by written notice or is
followed by written notice that differs in any respect from the telephonic
notice or (iii) any failure by any Borrower to pay, punctually on the due date
thereof, any amount payable to the Administrator, either of the
Co-Administrative Agents or any Bank or the Issuer under this Agreement, any
Note, any Letter of Credit, or any other Credit Document or (iv) the
acceleration, in accordance with the terms of this Agreement, of the time of
payment of any of the Obligations. Such losses, costs or expenses shall include,
but shall not be limited to, (x) any costs incurred by any Bank in carrying
funds which were to have been borrowed by any Borrower or in carrying funds
to
cover any overdue principal, overdue interest or any other overdue sums payable
by any Borrower to the Administrator, either of the Co-Administrative Agents
or
any Bank or the Issuer under this Agreement, any Note, any Letter of Credit,
or
any other Credit Document, (y) any interest payable by any Bank to the lenders
of the funds borrowed by it in order to carry the funds referred to in the
immediately preceding clause (x),
and (z)
any losses (but excluding losses of anticipated profit) incurred or sustained
by
any Bank in liquidating or re-employing funds acquired from third parties to
make, fund or maintain all or any part of any Loan, Letter of Credit or Bid
Loan. Each Bank and the Issuer shall use reasonable efforts to mitigate all
such
losses, costs or expenses.
(b) Additional
Indemnity.
Each of
the Borrowers jointly and severally agrees to indemnify and hold each of the
Indemnified Parties free and harmless from and against any and all
Liabilities.
Section
1.19. Bank
Wires to the Company.
All
transfers by the Administrator to the Company shall be effected by federal
wire
transfer of immediately available funds to Account Number 0000195213 of Kaman
Corporation maintained at Bank of America, unless specifically instructed
otherwise in writing by the Company to the Administrator.
Section
1.20. Administrator
or Bank Certificate.
A
certificate signed by an authorized employee of the Administrator, either of
the
Co-Administrative Agents, any Bank or the Issuer, setting forth any amount
required to be paid by the Borrowers to the Administrator, such
Co-Administrative Agent, such Bank or the Issuer pursuant to Section
1.7,
Section
1.16,
Section
1.17
or
Section
1.18
and the
computations made by the Administrator, such Co-Administrative Agent, the Bank
or the Issuer to determine such amount, shall be submitted by the Administrator,
such Co-Administrative Agent, such Bank or the Issuer to the Borrowers in
connection with each demand made at any time by the Administrator, such
Co-Administrative Agent, such Bank or the Issuer upon the Borrowers under the
foregoing Sections. Any such certificate submitted pursuant to Section
1.16
or
Section
1.17
shall,
absent manifest error, constitute conclusive evidence as to the amount owed
pursuant to such Section.
NYDOCS/1204419.6
32
Section
1.21. Interest
Limitation.
Notwithstanding any other term of this Agreement, any Note or any other Credit
Document, the maximum amount of interest which may be charged to or collected
from any Person liable hereunder, under any Note or under any other Credit
Document by the Banks shall be absolutely limited to, and shall in no event
exceed, the maximum amount of interest (the “Maximum
Rate”)
which
could lawfully be charged or collected under applicable law (including, to
the
extent applicable, the provisions of Section 5197 of the Revised Statutes of
the
United States of America, as amended, 12 U.S.C. Section 85, as amended), so
that
the maximum of all amounts constituting interest under applicable law, howsoever
computed, shall never exceed as to any Person liable therefor the Maximum Rate,
and any term of this Agreement or any Note or any other Credit Document which
could be construed as providing for interest in excess of such lawful maximum
shall be and hereby is made expressly subject to and modified by the provisions
of this clause. If, in any month, the effective interest rate on any amounts
owing pursuant to this Agreement or the Notes or any other Credit Document,
absent the Maximum Rate limitation contained herein, would have exceeded the
Maximum Rate, and if in the future month, such effective interest rate would
otherwise be less than the Maximum Rate, then the effective interest rate for
such month shall be increased to the Maximum Rate until such time as the amount
of interest paid hereunder equals the amount of interest which would have been
paid if the same had not been limited by the Maximum Rate.
ARTICLE
II REPRESENTATIONS
AND WARRANTIES
In
order
to induce the Banks, the Issuer and the Co-Administrative Agents to enter into
this Agreement and to make extensions of credit hereunder, each Borrower
represents and warrants to each of the Co-Administrative Agents and each Bank
that:
Section
2.1. Due
Organization; Good Standing; Qualification.
The
Company and each of its Subsidiaries are duly organized, validly existing and
in
good standing under the laws of their respective jurisdictions of incorporation,
except where a Subsidiary’s failure to be in good standing would not have a
Material Adverse Effect. Each of the Company and its Subsidiaries has all
requisite corporate power, authority, licenses, consents, approvals and the
like
required to own and operate its respective properties (except where the failure
to do so would not have a Material Adverse Effect) and to carry on its
respective business as presently conducted, and each is duly qualified to do
business and is in good standing as a foreign corporation in each jurisdiction
wherein the character of the properties owned or leased by it therein or in
which the transaction of its respective business therein makes such
qualification necessary except where failure to comply with any of the foregoing
would not have a Material Adverse Effect.
Section
2.2. Due
Authorization; No Conflicts.
The
execution, delivery and performance by each Borrower of this Agreement, the
Notes and each other Credit Document executed or to be executed by it, and
the
execution, delivery and performance by each other Obligor of each Domestic
Subsidiary Guarantee, and each other Credit Document executed or to be executed
by it, and each Borrower’s authority to make the borrowings and obtain the other
extensions of credit contemplated thereby, have been duly authorized by all
necessary corporate or other action on the part of the Company or each such
other Obligor. Such execution, delivery, and performance by the Company and
each
such other Obligor, and the making by each Borrower of the borrowings and the
obtaining of the other extensions of credit contemplated
NYDOCS/1204419.6
33
hereby,
do not and will not (a) contravene any provision of such Obligor’s Governing
Documents, (b) conflict with or result in a breach of the terms, conditions
or
provisions of, or constitute a default under or result in the creation of
any
Lien upon any of the property of such Obligor, under any agreement, trust,
deed,
indenture, mortgage or other instrument to which such Obligor is a party
or by
which such Obligor or any of their respective properties is bound or affected,
or (c) require any waiver, consent or approval by any creditors, shareholders,
or public authority.
Section
2.3. Binding
Agreements.
This
Agreement constitutes, the Notes and each other Credit Document, when issued
and
delivered pursuant hereto for value received shall constitute, the legal, valid
and binding obligations of each of the Borrowers, enforceable in accordance
with
their respective terms, except as enforcement may be limited by principles
of
equity, bankruptcy, insolvency, or other laws affecting the enforcement of
creditors’ rights generally; and each Domestic Subsidiary Guarantee, and each
other Credit Document executed pursuant hereto by each other Obligor shall,
on
the due execution and delivery thereof by such Obligor, constitute the legal,
valid and binding obligation of such Obligor enforceable in accordance with
its
terms, except as enforcement may be limited by principles of equity, bankruptcy,
insolvency, or other laws affecting the enforcement of creditors’ rights
generally.
Section
2.4. Subsidiaries;
Maintenance of Domestic Subsidiary Guarantee.
(a)
All of
the issued and outstanding shares of capital stock of each Subsidiary of the
Company which is owned by the Company or a Subsidiary of the Company, has been
validly issued and is fully paid and non assessable and is free and clear of
any
Lien. No rights to subscribe for additional shares of stock of any Subsidiary
have been granted.
(b) As
of the
Effective Date, the Co-Administrative Agents and the Banks have the full credit
support of the Domestic Subsidiary Guarantors pursuant to the Domestic
Subsidiary Guarantees (guaranteeing in full the payment of all Obligations
pursuant to the Domestic Subsidiary Guarantees).
Section
2.5. No
Defaults.
No
Default or Event of Default is continuing.
Section
2.6. Financial
Statements.
The
Company has furnished to each of the Banks: (a) the audited consolidated balance
sheets of the Company and its Subsidiaries as at December 31, 2004, and the
related consolidated statements of income, cash flows and shareholders’ equity
of the Company and its Subsidiaries for the fiscal year ended December 31,
2004,
certified by KPMG LLP, certified public accountants, and (b) the unaudited
consolidated and consolidating balance sheets of the Company and its
Subsidiaries as at March 31, 2005 and related consolidated and consolidating
statements of income, cash flows and shareholders’ equity for the three (3)
months ended March 31, 2005, in each case certified by the president or
principal financial officer of the Company. Such balance sheets and statements
have been prepared in conformity with GAAP applied on a consistent basis
throughout the periods specified and present fairly the financial condition
and
results of operations of the Company and its Subsidiaries as at the dates and
for the periods indicated. The balance sheets referred to in this Section
2.6
and the
notes thereto disclose all material liabilities, direct or contingent, known
to
the Company and its Subsidiaries as of the dates thereof.
NYDOCS/1204419.6
34
Section
2.7. No
Material Adverse Changes.
Since
December 31, 2004, there has been no change in the business, assets, operations,
prospects, liabilities or condition, financial or otherwise, of the Company
and
its Subsidiaries, taken as a whole, other than changes the effect of which
have
not had a Material Adverse Effect.
Section
2.8. No
Material Litigation.
No
action, suit, investigation or proceeding is pending or known to be threatened
by or against or affecting the Company or any of its Subsidiaries or any of
their respective properties or rights before any Governmental Authority (a)
which involves this Agreement, the Notes or any other Credit Document or (b)
as
to which there is a reasonable possibility of an adverse determination and
which, if adversely determined, could, individually or in the aggregate, result
in a Material Adverse Effect.
Section
2.9. True
Copies of Governing Documents.
Each
Borrower has furnished or caused to be furnished to each of the
Co-Administrative Agents true and complete copies of all of its Governing
Documents.
Section
2.10. Compliance
with Environmental Laws.
To the
best of the each Borrower’s knowledge and belief, the Company and each of its
Subsidiaries is in substantial compliance with all material provisions of
applicable Environmental Laws and all judgments, orders and decrees relating
thereto and binding upon the Company or any of its Subsidiaries, except where
failure to be in compliance would not have a Material Adverse
Effect.
Section
2.11. Liens.
The
aggregate principal amount of indebtedness for borrowed money of the Company
and
its Subsidiaries, on a consolidated basis, which is secured by Liens on assets
of the Company or any of its Subsidiaries, is less than or equal to
$15,000,000.
Section
2.12. Compliance
With ERISA.
The
Company and each of its Subsidiaries is in substantial compliance with all
material provisions of ERISA.
Section
2.13. Existing
Credit Agreement.
As of
the Effective Date, no “Obligations”
under
(and as defined in) the Existing Credit Agreement are due and payable, and
no
Default or “Event
of Default”
under
(and as defined in) the Existing Credit Agreement has occurred and is
continuing.
Section
2.14. Ownership
of Properties.
The
Company and each of its Subsidiaries owns good and marketable title to all
of
its properties and assets, real and personal (except where the failure to so
own
such properties or assets, or have such title, would not have a Material Adverse
Effect), free and clear of all Liens, except as permitted pursuant to
Section
5.1.
Section
2.15. Taxes.
Except
for taxes the payment of which is being diligently contested in good faith
after
the establishment of any reserves required by GAAP, consistently applied, the
Company and each of its Subsidiaries has filed all tax returns and reports
required by law to have been filed by it and has paid or caused to be paid
all
taxes, assessments and governmental charges of every kind thereby shown to
be
owing which would, in the aggregate, if not paid, be material as to the Company
and its Subsidiaries when taken as a whole or be reportable under the Securities
Exchange Act or required under FASB Standards to be disclosed on the Company’s
consolidated audited financial statements.
NYDOCS/1204419.6
35
Section
2.16. Regulations
U and X.
Neither
the Company nor any of its Subsidiaries is engaged in the business of extending
credit for the purpose of purchasing or carrying margin stock, and no proceeds
of any Loans or Advances, nor any Letters of Credit, will be used for a purpose
which violates, or would be inconsistent with, F.R.S. Board Regulation U or
X.
Terms for which meanings are provided in F.R.S. Board Regulation U or X or
any
regulations substituted therefor, as from time to time in effect, are used
in
this Section with such meanings.
Section
2.17. Investment
Company Act; Public Utility Holding Company Act.
Neither
the Company nor any of its Subsidiaries is an “investment company” within the
meaning of the Investment Company Act of 1940, as amended, or a “holding
company”, or a “subsidiary company” of a “holding company”, or an “affiliate” of
a “holding company” or of a “subsidiary company” of a “holding company”, within
the meaning of the Public Utility Holding Company Act of 1935, as
amended.
Section
2.18. Accuracy
of Information.
All
factual information heretofore or contemporaneously furnished by or on behalf
of
the Company or any other Obligor in writing to the Administrator, any
Co-Administrative Agent, any Bank or the Issuer for purposes of or in connection
with this Agreement or any transaction contemplated hereby is, and all other
such factual information hereafter furnished by or on behalf of the Company
or
any other Obligor to the Administrator, any Co-Administrative Agent, any Bank
or
the Issuer will be, true and correct in every material respect on the date
as of
which such information is dated or certified and as of the date of execution
and
delivery of this Agreement by the Company, the Administrator, the
Co-Administrative Agent, and the Banks, and such information is not, or shall
not be, as the case may be, incomplete by omitting to state any material fact
necessary to make such information not misleading in light of the circumstances
under which such information is furnished and, in the case of projections on
the
basis of reasonable assumptions made in good faith as disclosed in the Credit
Documents.
Section
2.19. Use
of
Proceeds.
The
Company shall use the proceeds of the Loans in accordance with Section
1.15.
Section
2.20. Compliance
with Laws.
The
Company and each of its Subsidiaries is in compliance in all material respects
with the requirements of all Laws and all orders, writs, injunctions and decrees
applicable to it or to its properties, except in such instances in which (a)
such requirement of Law or order, writ, injunction or decree is being contested
in good faith by appropriate proceedings diligently conducted or (b) the failure
to comply therewith, either individually or in the aggregate, could not
reasonably be expected to have a Material Adverse Effect.
Section
2.21. Representations
as to Foreign Subsidiaries.
Each of
the Company and each Foreign Subsidiary represents and warrants to the
Co-Administrative Agents and the Banks that:
(a) Such
Foreign Subsidiary is subject to civil and commercial Laws with respect to
its
obligations under this Agreement and the other Credit Documents to which it
is a
party (collectively as to such Foreign Subsidiary, the “Applicable
Foreign
NYDOCS/1204419.6
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Subsidiary
Documents”),
and
the execution, delivery and performance by such Foreign Subsidiary of the
Applicable Foreign Subsidiary Documents constitute and will constitute private
and commercial acts and not public or governmental acts. Neither such Foreign
Subsidiary nor any of its property has any immunity from jurisdiction of any
court or from any legal process (whether through service or notice, attachment
prior to judgment, attachment in aid of execution, execution or otherwise)
under
the laws of the jurisdiction in which such Foreign Subsidiary is organized
and
existing in respect of its obligations under the Applicable Foreign Subsidiary
Documents.
(b) The
Applicable Foreign Subsidiary Documents are in proper legal form under the
Laws
of the jurisdiction in which such Foreign Subsidiary is organized and existing
for the enforcement thereof against such Foreign Subsidiary under the Laws
of
such jurisdiction, and to ensure the legality, validity, enforceability,
priority or admissibility in evidence of the Applicable Foreign Subsidiary
Documents. It is not necessary to ensure the legality, validity, enforceability,
priority or admissibility in evidence of the Applicable Foreign Subsidiary
Documents that the Applicable Foreign Subsidiary Documents be filed, registered
or recorded with, or executed or notarized before, any court or other authority
in the jurisdiction in which such Foreign Subsidiary is organized and existing
or that any registration charge or stamp or similar tax be paid on or in respect
of the Applicable Foreign Subsidiary Documents or any other document, except
for
(i) any such filing, registration, recording, execution or notarization as
has
been made or is not required to be made until the Applicable Foreign Subsidiary
Document or any other document is sought to be enforced and (ii) any charge
or
tax as has been timely paid.
(c) There
is
no tax, levy, impost, duty, fee, assessment or other governmental charge, or
any
deduction or withholding, imposed by any Governmental Authority in or of the
jurisdiction in which such Foreign Subsidiary is organized and existing either
(i) on or by virtue of the execution or delivery of the Applicable Foreign
Subsidiary Documents or (ii) on any payment to be made by such Foreign
Subsidiary pursuant to the Applicable Foreign Subsidiary Documents, except
as
has been disclosed to the Co-Administrative Agents.
(d) The
execution, delivery and performance of the Applicable Foreign Subsidiary
Documents executed by such Foreign Subsidiary are, under applicable foreign
exchange control regulations of the jurisdiction in which such Foreign
Subsidiary is organized and existing, not subject to any notification or
authorization except (i) such as have been made or obtained or (ii) such as
cannot be made or obtained until a later date; provided,
that
any notification or authorization described in clause (ii)
shall be
made or obtained as soon as is reasonably practicable.
ARTICLE
III CONDITIONS
TO EFFECTIVENESS
AND
CONDITIONS OF LENDING
Section
3.1. Conditions
of Initial Credit Extension.
The
obligation of the Issuer and each Bank to make its initial Credit Extension
under this Agreement is subject to the satisfaction of each of the following
conditions precedent:
NYDOCS/1204419.6
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(a) Execution
of this Agreement, the Notes, the Domestic Subsidiary Guarantee and each other
Credit Document.
This
Agreement and, to the extent requested by any Bank pursuant to Section
1.9,
the
Notes in favor of each Bank, a Domestic Subsidiary Guarantee executed by each
of
the Domestic Subsidiaries of the Company, and each of the other Credit Documents
required to be delivered on the Effective Date shall have been duly and properly
authorized, executed and delivered to the Co-Administrative Agents by the
respective party or parties thereto and shall be in full force and effect on
and
as of the Effective Date.
(b) Evidence
of Corporate Action; Certified Copies of Governing Documents.
The
Co-Administrative Agents shall have received certified copies of: (i) all
corporate action taken by the Company and each such other Obligor to authorize
the execution, delivery and performance of this Agreement, each Domestic
Subsidiary Guarantee, and each other Credit Document, and the borrowings and
other extensions of credit to be made hereunder; (ii) all the Company’s
Governing Documents; (iii) all the Governing Documents of each other Obligor;
and (iv) such other papers as either of the Co-Administrative Agents may
reasonably require.
(c) Proceedings
and Documents.
All
corporate, governmental and other proceedings in connection with the
transactions contemplated by this Agreement and all instruments and documents
incidental thereto (including, but not limited to, those to be delivered
pursuant to the provisions of this Article III),
shall
be in form and substance satisfactory to the Co-Administrative Agents, and
the
Co-Administrative Agents shall have received all such counterpart originals
or
certified or other copies of all such instruments and documents as either of
the
Co-Administrative Agents shall have reasonably requested.
(d) Opinion
of Counsel.
The
Co-Administrative Agents shall have received an opinion addressed to the Banks,
the Administrator and each of the Co-Administrative Agents, in a form
satisfactory to each of the Co-Administrative Agents, from (i) ▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇ LLP, special Connecticut counsel for the Company, (ii) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇,
special German counsel to the Company, and (iii) ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, in house
counsel to the Company.
(e) Closing
Fees, Expenses, etc.
Each
Co-Administrative Agent shall have received for its own account, or for the
account of each Bank or such other Person, as the case may be, all fees, costs
and expenses due and payable pursuant to Section
1.12
and
Section
10.1.
(f) Payment
in Full under the Existing Credit Facility.
The
Company shall have paid in full as of the Effective Date all amounts accrued
and
outstanding under the Existing Credit Agreement including all Fees or amounts
payable under the Existing Credit Agreement. Upon payment of all such amounts
in
full in cash and as of the Effective Date, all Commitments under the Existing
Credit Agreement shall terminate.
(g) Recapitalization.
The
Co-Administrative Agents shall be satisfied in all respects with the
Recapitalization.
NYDOCS/1204419.6
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Section
3.2. Conditions
of Each Credit Extension.
The
obligation of the Issuer is subject to the satisfaction, at the time such
Advance is to be made of each of the following conditions
precedent:
(a) Notice
of Borrowing.
The
Company shall have duly and timely given to the Administrator a Letter of Credit
Application, a Revolving Loan Notice, a Swing Line Loan Notice or a Bid Request,
as the case may be, required by this Agreement in connection with such Letter
of
Credit, or such Loan. Such Letter of Credit Application, Revolving Loan Notice,
Swing Line Loan Notice or Bid Request, as the case may be, and the delivery
thereof, without more, shall constitute certification by the Company as to
the
matters set forth in clauses (c)
and
(d)
below.
(b) Legality
of Transactions.
It
shall not be unlawful for the Company or any other Obligor to perform any of
its
agreements or obligations under this Agreement, any of the Notes, any of the
Domestic Subsidiary Guarantees or any of the other Credit
Documents.
(c) Performance;
No Default.
The
Company and each other Obligor shall have duly and properly performed, complied
with and observed each of its covenants, agreements and obligations contained
in
this Agreement, the Notes, each of the Domestic Subsidiary Guarantees and each
of the other Credit Documents. Both before and after giving effect to any
Advance, no Default or Event of Default shall have occurred and be
continuing.
(d) Representations
and Warranties.
Each of
the representations and warranties made by the Company and each other Obligor
in
this Agreement or any other Credit Document shall have been true and correct
in
all material respects when made and shall for all purposes of this Agreement,
be
deemed repeated on and as of the date of any application by the Company for
any
Advance hereunder and on the date of making such Advance and shall be true
and
correct in all material respects on and as of each of such dates, except to
the
extent the representations and warranties specifically refer to an earlier
date,
in which case, they were true and correct in all material respects as of such
earlier date.
ARTICLE
IV AFFIRMATIVE
COVENANTS
The
Company covenants and agrees with each of the Co-Administrative Agents, the
Issuer and each of the Banks that, so long as any Commitments remain in effect
and until such later date as all the Obligations are paid in full in cash,
unless the Majority Banks otherwise consent in writing, the Company shall and
shall cause each of its Subsidiaries to:
Section
4.1. Financial
Statements; Notice of Events of Default.
Deliver
to each of the Co-Administrative Agents and each of the Banks and the Issuer
(a)
within (i) sixty (60) days after the close of each of the first three quarters
of each fiscal year of the Company and (ii) within one hundred twenty (120)
days
after the close of each fiscal year of the Company, the consolidated and
consolidating balance sheets of the Company and its Subsidiaries as of the
close
of each such period and consolidated and consolidating statements of income,
cash flows
NYDOCS/1204419.6
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and
shareholders’ equity for such period, prepared in conformity with GAAP, applied
on a basis consistent with that of the preceding period or containing disclosure
of the effect on financial position or results of operations of any change
in
the application of GAAP during the period, and certified by the president
or a
principal financial officer of the Company as accurate, true and correct
in all
material respects; (b) together with each such balance sheet referred to
in
clause
(a)(i) and
(ii)
above,
a
Compliance Certificate substantially in the form of Exhibit
G
attached
thereto; (which Compliance Certificate shall contain written calculations
by the
Company in reasonable detail concerning compliance or non-compliance, as
the
case may be, by the Company with the financial covenants referred to herein)
(c)
together with the annual consolidated financial statements required to be
delivered pursuant to clause (a)
above
for each fiscal year, a report containing an unqualified opinion of KPMG
LLP or
a comparable nationally recognized certified public accounting firm, which
opinion shall state that such financial statements fairly present the financial
condition and results of operations of the Company and its Subsidiaries in
accordance with GAAP; (d) promptly upon the written request of either of
the
Co-Administrative Agents, such other information about the financial condition
and operations of the Company and its Subsidiaries, and any endorser or
guarantor (if any), as either of the Co-Administrative Agents may, from time
to
time, reasonably request; (e) promptly after becoming available, copies of
all
financial statements, reports, notices and proxy statements sent by the Company
to stockholders, and of all regular and periodic reports filed by the Company
with any securities exchange or with the SEC or any governmental agency
successor to any or all of the functions of the SEC, and of all press releases
issued by the Company; (f) promptly upon becoming aware of any Default or
Event
of Default, notice thereof in writing; (g) promptly upon becoming aware of
any
development that is likely to result in an Event of Default, notice thereof
in
writing; and (h) promptly after becoming aware of any Change of Control,
notice
thereof in writing.
Section
4.2. Securities
Regulation Compliance Reports.
Promptly deliver to each of the Co-Administrative Agents and each of the Banks
and the Issuer a copy of: (a) all filings including financial statements and
reports filed therewith and amendments thereto made by the Company with the
SEC
pursuant to the Securities Act, the Securities Exchange Act, and the rules
and
regulations promulgated under either of them; (b) all filings, financial
statements and reports filed therewith and amendments thereto made by the
Company with each securities exchange on which the securities of the Company
are
listed, if any, pursuant to the rules and regulations of each such exchange;
and
(c) all written communications, financial statements, reports, notices and
proxy
statements sent to any class of holders of securities of the
Company.
Section
4.3. Insurance.
(a)
Keep its properties insured against fire and other hazards (so-called “All Risk”
coverage) in amounts and with companies satisfactory to the Co-Administrative
Agents to the same extent and covering such risks as are customary and
reasonably available in the same or a similar business; (b) maintain general
liability coverage against claims for bodily injuries or death; and (c) maintain
all workers’ compensation, employment or similar insurance as may be required by
applicable law. Alternatively, the Company may self-insure in such amounts
and
in such manner as may be appropriate in the Company’s industry and in the
Company’s reasonable business judgment. The Company, upon the request of either
of the Co-Administrative Agents, agrees to deliver certificates evidencing
all
of the aforesaid insurance policies to the Co-Administrative
Agents.
NYDOCS/1204419.6
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Section
4.4. Tax
and Other Liens.
Except
for taxes the payment of which is being contested in good faith after the
establishment of any reserves required by GAAP consistently applied, pay or
cause to be paid all taxes, assessments and governmental charges of every kind
which would, in the aggregate, if not paid, be material as to the Company and
its Subsidiaries when taken as a whole or be reportable under the Securities
Exchange Act or required under FASB Standards to be disclosed on the Company’s
consolidated audited financial statements; and the Company shall deliver to
the
Co-Administrative Agents such other information related to the Company’s and its
Subsidiaries’ taxes as may be reasonably requested by either of the
Co-Administrative Agents.
Section
4.5. Litigation.
Promptly notify the Co-Administrative Agents (which shall, in turn, promptly
notify the Banks and the Issuer) of any legal proceedings or litigation (a)
material to the Company and its Subsidiaries when taken as a whole or reportable
under the Securities Exchange Act or required under FASB Standards to be
disclosed on the Company’s consolidated audited financial statements, or (b)
which questions the validity of this Agreement, the Notes, the Letters of
Credit, any Domestic Subsidiary Guarantee or any of the other Credit Documents
or any instrument delivered in connection herewith or therewith, or any action
to be taken in connection with the transactions contemplated hereby or thereby;
and promptly provide to the Co-Administrative Agents such other information
related to such proceedings or litigation as reasonably requested by either
of
the Co-Administrative Agents.
Section
4.6. Conduct
of Business.
Do or
cause to be done all things necessary to (a) preserve and keep in full force
and
effect its legal existence under the laws of its jurisdiction of incorporation;
(b) obtain, preserve, renew, extend and keep in full force and effect all
rights, licenses, permits, franchises, authorizations, patents, copyrights,
trademarks and trade names material to the conduct of its business; (c) comply
in all material respects with all Requirements of Law; (d) comply with all
of
its Governing Documents; (e) maintain its qualification to do business in each
jurisdiction in which the conduct of business requires such qualification;
and
(f) maintain and preserve all property material to the conduct of its business
and keep such property in good repair, working order and condition from time
to
time, and make, or cause to be made, all needful and proper repairs, renewals,
additions, improvements and replacements thereto necessary in order that the
business carried on in connection therewith may properly be conducted at all
times, except, in each case, (i) where the failure to do so would not have
a
Material Adverse Effect, (ii) that the Company may liquidate or dissolve
Subsidiaries from time to time as the Company in the proper exercise of its
judgment may determine, so long as any such liquidation or dissolution shall
not
(x) either individually or in the aggregate, have a Material Adverse Effect
or
(y) be of a Domestic Subsidiary Guarantor, unless such liquidation or
dissolution is by merger into another Subsidiary which has executed and
delivered a Domestic Subsidiary Guarantee, or results in the replacement of
one
Domestic Subsidiary Guarantee with a new Domestic Subsidiary Guarantee, and
after giving effect thereto there shall be no Default or Event of Default
hereunder (including in respect of Section
2.4(b)
and
Section
4.10)
and
(iii) the Company may liquidate or sell such other assets as it may deem
advisable, in the proper exercise of its judgment, so long as such sale or
liquidation is in compliance with Section
5.6
and,
after giving effect thereto, the Company is in compliance with Section
4.10
and the
representation and warranty set forth in Section
2.4(b)
shall be
true and correct.
NYDOCS/1204419.6
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Section
4.7. Pension
Plans.
If and
when the Company or any Subsidiary gives or is required to give notice to the
PBGC of any Reportable Event (which Reportable Event is material to the Company
and its Subsidiaries when taken as a whole or is reportable under the Securities
Exchange Act or required under FASB Standards to be disclosed on the Company’s
consolidated audited financial statements), with respect to any Plan which
might
constitute grounds for a termination of such Plan under Title IV of ERISA,
or
knows that any member of the Controlled Group or the plan administrator of
any
Plan has given notice or is required to give notice of any Reportable Event,
the
Company shall simultaneously send the Administrator a copy of such notice (and
the Administrator shall promptly forward a copy of such notice to the
Banks).
Section
4.8. Records
and Accounts.
Maintain true records and books of account, complete and correct in all material
respects and in accordance with GAAP, and maintain adequate accounts and
reserves for all taxes (including income taxes), all depreciation, depletion,
obsolescence and amortization of its properties, all other contingencies, and
all other proper reserves.
Section
4.9. Inspection.
Permit
any officer or employee designated by any Co-Administrative Agent or any Bank
or
Issuer to visit and inspect any of its properties and to examine its books
and
discuss the affairs, finances and accounts of the Company or any of its
Subsidiaries with its officers, all at such reasonable times, upon reasonable
notice, in a reasonable manner and as often as any Co-Administrative Agent
or
any Bank or the Issuer may reasonably request, subject to compliance with all
applicable security regulations and requirements of any Governmental Authority
and the Company’s reasonable policies and practices applicable to safeguarding
its trade secrets and proprietary products and practices. The Company agrees
with each of the Co-Administrative Agents and the Banks and the Issuer that
such
policies and practices may restrict access by the Co-Administrative Agents
and
the Banks and each Issuer to certain areas of certain facilities of the Company
or its Subsidiaries, but that such policies and practices shall not restrict
in
any material respect access by the Co-Administrative Agents and the Banks and
the Issuer to personnel of the Company and its Subsidiaries.
Section
4.10. Domestic
Subsidiary Guarantees.
The
Company shall cause the Co-Administrative Agents and the Banks and the Issuer
to
have at all times the full credit support of the Domestic Subsidiaries pursuant
to the Domestic Subsidiary Guarantees (guaranteeing in full the payment of
all
Obligations).
Section
4.11. Further
Assurances.
Cooperate with each of the Co-Administrative Agents and each Bank and the Issuer
and take such action and execute such further instruments and documents as
either of the Co-Administrative Agents shall reasonably request to effect the
purposes of this Agreement, the Notes and the other Credit
Documents.
Section
4.12. Payment
of Obligations.
Pay and
discharge as the same shall become due and payable, all its obligations and
liabilities, including (a) all tax liabilities, assessments and governmental
charges or levies upon it or its properties or assets, (b) all lawful claims
which, if unpaid, would by law become a Lien upon its property; and (c) all
Indebtedness, as and when due and payable, but subject to any subordination
provisions contained in any
NYDOCS/1204419.6
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instrument
or agreement evidencing such Indebtedness, in each case, unless the same
are
being contested in good faith by appropriate proceedings diligently conducted
and adequate reserves in accordance with GAAP are being maintained by the
Company or such Subsidiary.
Section
4.13. Compliance
with Laws.
Comply
in all material respects with the requirements of all Laws and all orders,
writs, injunctions and decrees applicable to it or to its business or property,
except in such instances in which (a) such requirement of Law or order, writ,
injunction or decree is being contested in good faith by appropriate proceedings
diligently conducted; or (b) the failure to comply therewith could not
reasonably be expected to have a Material Adverse Effect.
ARTICLE
V NEGATIVE
COVENANTS
The
Company covenants and agrees with each of the Co-Administrative Agents and
the
Banks and the Issuer that, at the time of the requesting or making of any
Advance or the issuance of any Letter of Credit or extension of any Letter
of
Credit Expiration Date and so long as any Advance or Letter of Credit (or L/C
Borrowing in respect thereof) remains outstanding or any Fees or interest
payable hereunder remains unpaid after becoming due and payable (and, with
respect to the Company’s covenants in Section
5.4
and
Section
5.6,
so long
as any Commitments remain in effect and until such later date as all the
Obligations are paid in full in cash), unless the Majority Banks otherwise
consent in writing, the Company shall not nor will it permit any Subsidiary
to:
Section
5.1. Liens.
Incur
or permit to exist any Lien against any of its property or assets, whether
now
owned or hereafter acquired, except:
(a) any
judgment Lien unless (in case of a judgment which shall be material to the
Company and its Subsidiaries when taken as a whole or which is reportable under
the Securities Exchange Act or required under FASB Standards to be disclosed
in
the Company’s audited consolidated financial statements) the judgment it secures
shall not, within thirty (30) days after the entry thereof have been discharged
or execution thereof stayed pending appeal, or unless any such judgment shall
not have been discharged within sixty (60) days after the expiration of any
such
stay;
(b) easements,
rights-of-way, zoning and similar restrictions, encumbrances or title defects
(but specifically excluding mortgages and any other Liens securing Indebtedness)
which, in the aggregate, do not materially detract from the value of the
properties of, and do not materially and adversely interfere with the ordinary
conduct of the business of, the Company or any of its Subsidiaries;
(c) Liens
incurred in the ordinary course of business (such as liens on inventory granted
in connection with the Company’s securing of the Company’s repayment of
reimbursement obligations under banker’s acceptances or commercial letters of
credit but which liens cover solely the inventory which is the subject of such
banker’s acceptance or commercial letters of credit) which are not material
(individually or in the aggregate) to the Company and its Subsidiaries when
taken as a whole and do not secure indebtedness for borrowed money (other than
reimbursement obligations
NYDOCS/1204419.6
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under
banker’s acceptances or commercial letters of credit described in the foregoing
parenthetical);
(d) Liens
on
assets which secure previously existing Indebtedness of corporations or business
entities acquired by the Company or a Subsidiary, whether by purchase of assets
and assumption of liabilities or by purchase of stock, merger or consolidation,
so long as (i) such acquisition is otherwise permitted by the terms of this
Agreement, (ii) the Company is in compliance with all of its covenants
herein after the completion of such acquisition, and (iii) such Liens were
not
incurred in contemplation of such acquisition and as a result of such
acquisition, and do not extend to any of the Company’s or any Subsidiary’s
assets owned before such acquisition; provided,
that
not later than 90 days after any such acquisition the Company shall extinguish,
or cause to be extinguished, such Liens unless those Liens are otherwise
permitted under the terms of clauses (a),
(b),
(c),
(e),
or
(f)
of this
Section
5.1;
(e) any
other
Liens at any time on assets owned by the Company or any of its Subsidiaries
which, in the aggregate, do not secure Indebtedness in excess of $15,000,000;
and
(f) Liens
granted to the Co-Administrative Agents, the Banks and the Issuer pursuant
to
any Credit Document.
No
Indebtedness or Liens which might be permitted in connection with the
transactions described in clauses (d)
and
(e)
above
shall be permitted if, after giving effect to the incurrence of such
Indebtedness or Liens, a violation of the financial covenants contained in
Article
VI
would or
shall exist.
Section
5.2. Limitation
on Indebtedness.
Create,
incur or permit to exist or remain outstanding any Indebtedness (other than
Indebtedness under and in respect of this Agreement, the Notes, any Letter
of
Credit and each of the other Credit Documents), or issue or sell any obligation
of any Subsidiary to a third party lender (other than pursuant to the terms
of
this Agreement), if such Indebtedness would (a) cause the Company to be in
violation of any of the financial covenants set forth in Article
VI
below or
(b) in the case of Indebtedness of Subsidiaries which are not Domestic
Subsidiary Guarantors, exceed, individually or in the aggregate, at any time,
$15,000,000.
Section
5.3. Contingent
Liabilities.
Assume,
guarantee, endorse or otherwise become liable upon the obligations of any Person
or enter into any other agreement having substantially the same effect as a
Guarantee, except for (a) the endorsement of negotiable instruments for deposit
or collection or other transactions in the ordinary course of business which
are
not material to the Company and its Subsidiaries when taken as a whole, (b)
Repurchase Obligations which individually and in the aggregate do not exceed
$15,000,000 or (c) Repurchase Obligations permitted under Section
5.2
of this
Agreement; provided,
that
(i) each Subsidiary may guarantee the Obligations of the Company and each other
Obligor hereunder and under each other Credit Document pursuant to a Domestic
Subsidiary Guarantee, and (ii) the Company may guarantee Indebtedness of its
Subsidiaries, so long as the aggregate amount of all Indebtedness so guaranteed,
when totaled with all Consolidated Total
NYDOCS/1204419.6
44
Indebtedness,
without duplication (if not already included therein) shall not result in
a
violation of any of the financial covenants herein or in any other Event
of
Default hereunder. The foregoing shall not prohibit contractual indemnities,
not
having substantially the same effect as a Guarantee, given in the ordinary
course of business nor shall such contractual indemnities be included for
purposes of calculating any financial covenant under this
Agreement.
Section
5.4. Consolidation
or Merger.
Enter
into or undertake any plan or agreement or transaction to merge into or
consolidate with or into any Person, unless immediately after the consummation
of such merger or consolidation, (a) the Company or (if the merger or
consolidation is between a Subsidiary and an unaffiliated Person or if the
Company elects to reincorporate by merger into a wholly-owned Domestic
Subsidiary) such Subsidiary is the surviving entity (and, in the case of such
a
reincorporation by merger, (i) such wholly-owned Subsidiary expressly assumes,
in a written instrument executed and delivered to the Co-Administrative Agents,
and in form and substance reasonably satisfactory to the Co-Administrative
Agents, all the Obligations of the Company or such other Obligor, as the case
may be, under this Agreement, each of the Notes, each Letter of Credit and
each
of the other Credit Documents and (ii) the Co-Administrative Agents and the
Banks and the Issuer have received a written opinion of outside legal counsel
to
the Company stating that, pursuant to such merger and instrument of assumption,
such wholly-owned Subsidiary has assumed all the Obligations of the Company
or
such other Obligor under this Agreement, each of the Notes, each Letter of
Credit and each of the other Credit Documents), (b) in the case of a merger
of a
Domestic Subsidiary and a Foreign Subsidiary, such Domestic Subsidiary is the
surviving entity, (c) the Company’s management remains in control of the merged
entity, (d) no Default or Event of Default hereunder shall exist or would be
reasonably likely to occur as a result of such transaction and (e) the
requirements of Section
5.11
are
satisfied. For the purposes of this Section
5.4,
the
acquisition by the Company or any Subsidiary of the Company of all or
substantially all of the shares of capital stock or all or substantially all
of
the assets of any Person shall be deemed to be a consolidation of such Person
with the Company or such Subsidiary, as the case may be. Nothing herein shall
prohibit the Company from divesting a Subsidiary by merging it with another
corporation or otherwise so long as the Company otherwise complies with
Section
5.5,
and
after giving effect thereto, the Company is in compliance with Section
4.10
and the
representation and warranty set forth in Section
2.4(b)
thereto,
shall be true and correct.
Section
5.5. Limitation
on Certain Other Fundamental Changes.
In the
case of the Company, liquidate, wind-up or dissolve itself (or suffer any
liquidation, winding up or dissolution to occur), or make any liquidating
distribution.
Section
5.6. Sale
of Assets.
Sell or
transfer any assets, except for:
(a) sales
of
inventory in the ordinary course of business; and
(b) sales
of
assets (other than those referred to in clause (a)
above)
for fair value (including sales for fair value of assets in transactions in
which the Company leases back the assets sold for fair value) (i) the book
value
of which (at the time of sale) does not exceed in the aggregate for any fiscal
year of the Company, fifteen percent (15%) of the Company’s Consolidated
Tangible Assets as at the last day of the then most recently completed fiscal
quarter for which financial statements for the Company and its
NYDOCS/1204419.6
45
Subsidiaries
are required to have been delivered to the Banks pursuant to Section
4.1,
and
(ii) with respect to which the Aggregate Percentage obtained after taking into
account such sales does not exceed forty-five percent (45%).
In
the
event of any sale or transfer of assets of the Company or any Subsidiary not
permitted by clause (a)
or
clause (b)(i)
or
clause (b)(ii)
above
(referred to herein as a “Designated
Sale”),
the
Company shall be permitted to enter into a Designated Sale, provided,
that it
will promptly (and, in any event, within five (5) Business Days) thereafter
give
written notice of such Designated Sale to each of the Co-Administrative Agents
and each of the Banks and the Issuer (a “Designated
Sale Notice”),
describing in reasonable detail all material terms of such Designated Sale,
including a reasonably detailed description of the assets sold, the purchase
price and net book value of such assets, and the net proceeds receivable by
the
Company or any of its Subsidiaries in connection with such Designated Sale.
If
any Designated Sale occurs prior to the Termination Date, the Aggregate
Commitments will be reduced on a pro rata basis, on the tenth (10th) Business
Day after receipt by the Company of written notice (a “Pay-Down
Notice”)
from
the Administrator (at the direction of the Majority Banks) that the Aggregate
Commitments is to be reduced. The Administrator shall give a Pay-Down Notice,
if
at all, not later than thirty (30) days after receipt by the Co-Administrative
Agent, the Banks and the Issuer of a Designated Sale Notice conforming to the
requirements of this Section 5.6.
The
amount of each such reduction in the Aggregate Commitments shall be equal,
in
the aggregate, to the Reduction Amount.
For
purposes of this Section
5.6,
the
following terms shall have the meanings provided below:
“Aggregate
Percentage”
means,
at any time, the sum of all Applicable Percentages since the Effective
Date.
“Applicable
Percentage”
means,
with respect to each sale of assets pursuant to Section
5.6(b),
the
percentage obtained by dividing (i) the book value of all tangible assets sold
(including assets sold in transactions in which the Company leases back such
assets), less the portion thereof, if any, which resulted in a prior dollar
for
dollar reduction of the Aggregate Commitments, by (ii) the Company’s
Consolidated Tangible Assets as at the last day of the then most recently
completed fiscal quarter for which financial statements for the Company and
its
Subsidiaries are required to have been delivered to the Banks pursuant to
Section
4.1.
“Designated
Percentage”
means,
with respect to each sale of assets pursuant to Section
5.6(b),
an
amount equal to (x) in the event such sale or transfer is not permitted by
clause (b)(i)
above
(but is permitted by clause (b)(ii)
above),
15%, (y) in the event such sale or transfer is not permitted by clause
(b)(ii)
above
(but is permitted by clause (b)(i)
above),
45%, and (z) in the event such sale or transfer is not permitted by either
clause (b)(i)
or
clause (b)(ii)
above,
that percentage equal to 15% for each fiscal year since the Effective Date
to a
cumulative percentage not to exceed 45%.
“Reduction
Amount”
means,
with respect to each sale of assets pursuant to Section
5.6(b),
the
book value of such assets sold (including assets sold in transactions in which
the Company leases back such assets) or any portion thereof, in respect of
which
NYDOCS/1204419.6
46
the
Aggregate Percentage determined in connection with such sale exceeds the
Designated Percentage.
Section
5.7. Affiliate
Transactions.
Enter
into any transaction with an Affiliate, except (a) upon fair, reasonable and
arm’s-length terms, or (b) transactions between (i) the Company and a Domestic
Subsidiary Guarantor, (ii) a Domestic Subsidiary Guarantor and another Domestic
Subsidiary Guarantor or (iii) a Foreign Subsidiary and another Foreign
Subsidiary (other than any Foreign Subsidiary that is a Borrower); provided,
that
nothing in this Section
5.7
shall
prohibit the Recapitalization.
Section
5.8. Certain
Restrictive Agreements.
Enter
into or permit to exist any indenture, agreement, instrument or other
arrangement (other than this Agreement), in connection with the incurrence
of
Indebtedness which, directly or indirectly, prohibits or limits, or has the
effect of prohibiting or limiting, (a) the incurrence of Indebtedness to the
Banks pursuant to this Agreement, or the payment of such Indebtedness or other
Obligations to the Banks or the Issuer, (b) the payment of dividends by any
Subsidiary or the making by any Subsidiary of any advances or other payments
or
distributions to the parent of such Subsidiary or (c) any Domestic Subsidiary
Guarantee contemplated hereunder
Section
5.9. Compliance
With Environmental Laws.
Except
in compliance with all applicable Environmental Laws (and except to the extent
that noncompliance would not have a Material Adverse Effect), (a) use any of
the
Real Estate or any portion thereof for the handling, processing, storage or
disposal of Hazardous Substances, (b) cause or permit to be located on any
of
the Real Estate any underground tank or other underground storage receptacle
for
Hazardous Substances, or (c) generate any Hazardous Substances on any of the
Real Estate.
Section
5.10. Limitation
on Investments.
Make any
Investments, except: (a) Investments held by the Company or a Subsidiary in
the
form of cash equivalents; (b) advances to officers, directors, and employees
of
the Company and Subsidiaries in an aggregate amount not to exceed $5,000,000
at
any time outstanding for travel, entertainment, relocation and analogous
ordinary business purposes; (c) Investments of the Company in any Subsidiary
and
Investments of any Subsidiary in the Company or in another Subsidiary; (d)
Investments consisting of extensions of credit in the nature of accounts
receivable or notes receivable arising from the grant of trade credit in the
ordinary course of business, and Investments received in satisfaction or partial
satisfaction thereof from financially troubled account debtors to the extent
reasonably necessary in order to prevent or limit loss; (e) Guarantees permitted
by Section
5.2
; (f)
acquisitions permitted by Section
5.11;
and (f)
other Investments not exceeding $15,000,000 in the aggregate in any fiscal
year
of the Company.
Section
5.11. Limitation
on Acquisitions.
Enter
into any stock or asset acquisition other than: (a) the acquisition of assets
in
the ordinary course of such Person’s business and (b) Acquisitions provided (i)
no Default or Event of Default has occurred and is continuing or would result
therefrom, (ii) the assets or business subject to such acquisition is in
substantially the same or similar type of business as the Company, (iii) the
board of directors (in the case of an asset acquisition) and the shareholders
(in the case of a stock acquisition) or both (if required by Requirements of
Law) the shareholders of any Person to be acquired has approved the terms of
such Acquisition, and (iv) the Company delivers to the Administrator on
NYDOCS/1204419.6
47
or
before
the date on which it or any of its Subsidiaries agrees to or consummates
any
Acquisition having a purchase price in excess of $15,000,000, a Compliance
Certificate and pro
forma
financial statements, in form and substance satisfactory to the
Co-Administrative Agents, showing that on a pro forma basis no Default or
Event
of Default will occur over the twelve (12) month period following the effective
date of such Acquisition.
Section
5.12. Fiscal
Year.
Permit
the fiscal year of the Company to end on a day other than December
31.
Section
5.13. Limitations
on Transfers to Foreign Subsidiaries.
Notwithstanding any provision herein to the contrary, in no event shall the
sum
of (a) the principal amount of all Loans, together with accrued and unpaid
interest, outstanding to Borrowers that are Foreign Subsidiaries, plus
(b) the
face amount of all Letters of Credit issued and outstanding for the account
of
Foreign Subsidiaries, plus
(c)
Contingent Liabilities of Domestic Subsidiaries for the benefit of Foreign
Subsidiaries incurred after the Effective Date, plus,
(d)
Investments of the Company and Domestic Subsidiaries in Foreign Subsidiaries
(including intercompany loans) made after the Effective Date, exceed $15,000,000
in the aggregate at any one time outstanding.
ARTICLE
VI FINANCIAL
COVENANTS
The
Company covenants and agrees with each of the Co-Administrative Agents and
the
Banks and the Issuer that, at the time of the requesting or making of any
Advance and so long as any Advance remains outstanding or any Fees or interest
payable hereunder remains unpaid after becoming due and payable, unless the
Majority Banks otherwise consent in writing, the Company shall not:
Section
6.1. Fixed
Charge Coverage Ratio.
Cause
or
permit the ratio of (a) the Company’s EBITDA for the four (4) most recently
completed fiscal quarters of the Company, to (b) the aggregate consolidated
interest expense on borrowed money (including the Obligations) (net of cash
income from Investments) of the Company and its Subsidiaries for such four
fiscal quarters to be no less than 3.00 to 1.0.
Section
6.2. Consolidated
Total Indebtedness to Total Capitalization.
Cause
or permit the Company’s Consolidated Total Indebtedness to exceed fifty-five
percent (55%) of its Total Capitalization at any time.
Section
6.3. Consolidated
Accounts Receivable and Inventory to Consolidated Total Indebtedness
Ratio.
At any
time that the Company’s Adjusted Fixed Charge Coverage Ratio does not exceed
6.00 to 1.00, cause or permit the ratio of (a) the aggregate amount of (i)
the
Applicable Kaman Entities’ Eligible Accounts for which invoices have been issued
and are payable plus
(ii)
the
Eligible Inventory of the Applicable Kaman Entities, in each case calculated
as
at the end of the most recently completed fiscal quarter of the Company, to
(b)
without duplication, the Company’s Consolidated Total Indebtedness plus
all
letters of credit whether or not drawn, issued for the account of the Company
and its Subsidiaries as at the end of any fiscal quarter, to be no less than
1.60 to 1.0.
NYDOCS/1204419.6
48
ARTICLE
VII EVENTS
OF DEFAULT; CERTAIN REMEDIES
Section
7.1. Events
of Default.
The
occurrence of any one or more of the following events or conditions shall
constitute an “Event
of Default”:
(a) the
principal amount due upon any Loan is not paid when due, whether at maturity,
by
acceleration or otherwise, or the Company shall default in the payment or
prepayment when due of any L/C Borrowing or any deposit of cash for collateral
purposes pursuant to Section
1.2(b),
Section
1.5(h)
and
Section
1.8;
(b) any
interest on any Loan or any Fee due hereunder is not paid within five (5)
Business Days of the due date thereof;
(c) default
is made in the due observance or performance of any covenant, term or agreement
contained in Section 4.10,
Section 5.4
and
Section 5.5
of
this
Agreement;
(d) default
is made in the due observance or performance of any covenant, term or agreement
contained in this Agreement (other than those referred to in this Section 7.1(a), Section
7.1(b)
or
Section 7.1(c))
or in
any other Credit Document, and such default continues unremedied for a period
of
thirty (30) days after any executive, legal or financial officer of the Company
becomes aware or is notified by either of the Co-Administrative Agents of such
default, whichever first occurs;
(e) any
representation made by the Company or any other Obligor in Article
II
of this
Agreement or in any other Credit Document shall be false or incorrect in any
material respect on the date as of which made or deemed to have been made or
repeated, unless (i) (A) the fact or condition which made such representation
false or incorrect is changed or remedied, within 15 days after any executive,
legal or financial officer of the Company becomes aware of such
misrepresentation, to make such representation true and correct in all material
respects, or (B) the Company shall have disclosed, or shall have caused to
have
been disclosed, in reasonable detail to each of the Co-Administrative Agents
and
each of the Banks and the Issuer the nature and extent of such misrepresentation
within 15 days after any executive, legal or financial officer of the Company
becomes aware of such misrepresentation, and (ii) no Material Adverse Effect
shall have occurred as a result of the fact or condition which made such
representation false or incorrect;
(f) any
obligation of the Company or any Subsidiary for the payment of Indebtedness
in
excess of Five Million Dollars ($5,000,000), individually or in the aggregate,
(i) becomes or is declared to be due and payable prior to the stated maturity
thereof as a result of a default by the Company or any Subsidiary, or (ii)
is
not paid when due or within any grace period for the payment thereof, or (iii)
is evidenced or secured by an agreement pursuant to which there shall occur
any
default in the performance or observance of any other term, condition or
agreement if the effect of such default is to cause or permit the holder or
holders of such obligation to cause such obligation to become due prior to
its
stated maturity;
NYDOCS/1204419.6
49
(g) the
Company or any Subsidiary makes an assignment for the benefit of creditors;
admits in writing its inability to pay its debts as they become due; files
a
voluntary petition in bankruptcy; is adjudicated bankrupt or insolvent; files
or
consents to the filing of any petition or answer seeking for itself any
reorganization, arrangement, composition, readjustment, dissolution, liquidation
or similar relief under any present or future statute, law or regulation
of any
jurisdiction; petitions or applies to any tribunal for any receiver, liquidator,
fiscal agent or any other similar agent or any trustee; or there is commenced
against the Company or any Subsidiary any such proceeding without the consent
of
the Company or such Subsidiary which is not dismissed within thirty (30)
days
after the commencement thereof;
(h) any
Change of Control occurs;
(i) the
Agreement, the Notes or any Domestic Subsidiary Guarantee shall (except in
accordance with its terms or except as expressly permitted under this
Agreement), in whole or in part, terminate, cease to be effective or cease
to be
the legally valid, binding and enforceable obligation of any Obligor party
thereto; or the Company or any other Obligor shall, directly or indirectly,
contest in any manner such effectiveness, validity, binding nature or
enforceability; or
(j) there
is
entered against the Company or any Subsidiary (i) a final judgment or order
for
the payment of money in an aggregate amount exceeding $5,000,000 (to the extent
not covered by independent third-party insurance as to which the insurer does
not dispute coverage), or (ii) any one or more non-monetary final judgments
that
have, or could reasonably be expected to have, individually or in the aggregate,
a Material Adverse Effect and, in either case, (A) enforcement proceedings
are
commenced by any creditor upon such judgment or order, or (B) there is a period
of ten (10) consecutive days during which a stay of enforcement of such
judgment, by reason of a pending appeal or otherwise, is not in
effect.
Section
7.2. Acceleration
of Obligations.
If any
one or more Events of Default shall at any time be continuing, the
Co-Administrative Agents may, and, upon the written direction of the Majority
Banks, shall, by giving notice to the Company, declare all of the Obligations,
including the entire unpaid principal of all the Loans, all of the unpaid
interest or fees accrued thereon, and all (if any) other sums payable by the
Company or such other Obligor under this Agreement, the Notes, the Letters
of
Credit (in accordance with Section
1.5(h))
or any
of the other Credit Documents, to be immediately due and payable; except that
upon the occurrence of any Event of Default under Section
7.1(g),
all of
the Obligations, including the entire unpaid principal of all the Loans, all
of
the unpaid interest or fees accrued thereon, and all (if any) other sums payable
by the Company or such other Obligor under this Agreement, the Notes, the
Letters of Credit or any of the other Credit Documents shall automatically
and
immediately be due and payable, without notice or demand. Thereupon, all of
such
Obligations which are not already due and payable shall forthwith become and
be
absolutely and unconditionally due and payable, without any further notice
(or
any notice, as the case may be), or any other formalities of any kind, all
of
which are hereby expressly and irrevocably waived.
NYDOCS/1204419.6
50
Section
7.3. Termination
of Commitments; Exercise of Other Remedies.
If any
one or more Defaults shall be continuing under Section
7.1(d),
or if
any one or more Events of Default shall be continuing, then:
(a) Subject
always to the provisions of Section
8.10,
each of
the Banks, each Issuer, each Co-Administrative Agent and the Administrator
may
proceed to protect and enforce all or any of its rights, remedies, powers and
privileges under this Agreement, the Notes or any of the other Credit Documents
by action at law, suit in equity or other appropriate proceedings, whether
for
specific performance of any covenant contained in this Agreement, any Note
or
any other Credit Document or in aid of the exercise of any power granted to
the
Administrator, any Co-Administrative Agent or any Bank herein or therein;
and
(b) The
Co-Administrative Agents may, and, upon the written request of the Majority
Banks, shall, by giving notice to the Company, immediately terminate the
Commitments of each of the Banks and the Issuer in full, and each Bank shall,
except as otherwise provided in Sections
1.5(a)
through
1.5(h)
with
respect to such Bank’s participation in Letters of Credit, thereupon be relieved
of all of its obligations to make any Loans hereunder; except that upon the
occurrence of any Event of Default under Section
7.1(g),
the
Commitments of all of the Banks and the Issuer shall automatically terminate
in
full, and each Bank shall, except as otherwise provided in Sections
1.5(a)
through
1.5(h)
with
respect to such Bank’s participation in Letters of Credit, thereupon be relieved
of all of its obligations to make any Loans hereunder. No termination of the
Commitments of the Banks hereunder shall relieve the Company or any other
Obligor of any of its Obligations.
Section
7.4. No
Implied Waivers; Rights Cumulative.
No
delay on the part of the Administrator, any Co-Administrative Agent or any
Bank
or the Issuer in exercising any right, remedy, power or privilege under this
Agreement, any of the Notes, any Letter of Credit or any of the other Credit
Documents provided by statute or at law or in equity or otherwise shall impair,
prejudice or constitute a waiver of any such right, remedy, power or privilege
or be construed as a waiver of any Default or Event of Default or as an
acquiescence therein. No right, remedy, power or privilege conferred on or
reserved to the Administrator, any Co-Administrative Agent or any Bank under
this Agreement, any of the Notes, any Letter of Credit or any of the other
Credit Documents or otherwise is intended to be exclusive of any other right,
remedy, power or privilege. Each and every right, remedy, power and privilege
conferred on or reserved to the Administrator, any Co-Administrative Agent
or
any Bank or the Issuer under this Agreement, any of the Notes, any Letter of
Credit or any of the other Credit Documents or otherwise shall be cumulative
and
in addition to each and every other right, remedy, power or privilege so
conferred on or reserved to the Administrator, any such Co-Administrative Agent
or any such Bank or the Issuer and (subject to the provisions of Section
8.10)
may be
exercised at such time or times and in such order and manner as the
Administrator, any Co-Administrative Agent or any such Bank or the Issuer shall
(in its sole and complete discretion) deem expedient.
Section
7.5. Set-Off.
Any
deposits or other sums at any time credited by or due from any Bank to any
Borrower and any securities or other property of any Borrower in any Bank’s
possession may at all times be held and treated as collateral security for
the
payment and
NYDOCS/1204419.6
51
performance
of the Obligations, and each Borrower hereby grants to each of the Banks
a
continuing security interest in such deposits, sums, securities or other
property maintained with such Bank. Regardless of the adequacy of any
collateral, while any Event of Default is continuing, any deposits or other
sums
credited by or due from any of the Banks to each Borrower may be appropriately
applied to or set-off against any of the Obligations due to such Bank hereunder
without notice to the Borrowers or compliance with any other condition precedent
now or hereafter imposed by statute, rule of law or otherwise (all of which
are
hereby expressly waived by each Borrower). Each Bank agrees with each other
Bank
that (i) if an amount to be set off is to be applied to indebtedness of any
Borrower to such Bank, other than the Obligations, such amount shall be applied
ratably to such other indebtedness and to the Obligations, and (ii) if such
Bank
shall receive from any Borrower, whether by voluntary payment, exercise of
the
right of setoff, counterclaim, cross action, enforcement of the claim evidenced
by this Agreement by proceedings against the Borrowers, whether at law or
in
equity or by proof thereof in bankruptcy, reorganization, liquidation,
receivership or similar proceedings, or otherwise, and shall retain and apply
to
the payment of the Borrowers’ Obligations to such Bank hereunder, any amount in
excess of such Bank’s ratable portion of the payments to be received by all of
the Banks (such ratable portion being determined in accordance with the other
provisions of this Agreement), such Bank will promptly make such disposition
and
arrangements with the other Banks with respect to such excess, either by
way of
distribution, pro tanto
assignment of claims, subrogation or otherwise as shall result in each Bank
receiving in respect of the Obligations to it of the Borrowers such Bank’s
proportionate payment; provided,
that if
all or any part of such excess payment is thereafter recovered from such
Bank,
such disposition and arrangements shall be rescinded and the amount restored
to
the extent of such recovery, but without interest.
ARTICLE
VIII THE
CO-ADMINISTRATIVE AGENTS
AND
THE ADMINISTRATOR
Section
8.1. Authorization.
Each of
the Banks hereby appoints, and authorizes to act, each of Scotia Capital and
Bank of America as Co-Administrative Agents and Bank of America as the
Administrator for the Banks with respect to this Agreement, the Notes and each
of the other Credit Documents, and each of the Co-Administrative Agents and
the
Administrator hereby agrees to so act as agent for the Banks, on the terms
and
subject to the conditions set forth in this Article
VIII.
All
payments made by the Borrowers to the Administrator, for the benefit of the
Banks, shall be distributed by the Administrator to the Banks as set forth
herein promptly after receipt thereof in immediately available funds. Each
Bank
irrevocably authorizes the Administrator and/or the Co-Administrative Agents,
as
the case may be, as the agent of such Bank to take such action on its behalf
under the provisions of this Agreement and the Notes and each of the other
Credit Documents and to exercise such powers hereunder and thereunder as are
specifically delegated to the Administrator and/or the Co-Administrative Agents
by the terms hereof and thereof, together with such powers as are reasonably
incidental thereto. With respect to the Advances made pursuant hereto, each
of
the Co-Administrative Agents shall have the same obligations and the same
rights, powers and privileges (a) with respect to its Commitment and the
Advances made by it in its role as a Bank hereunder, and (b) as the holder
of
any of the Notes, as any other Bank and may freely exercise the
same.
NYDOCS/1204419.6
52
Section
8.2. No
Liability.
Neither
of the Co-Administrative Agents nor the Administrator any of their respective
shareholders, directors, officers, employees or agents nor any other Person
assisting them in their duties nor any agent or employee thereof shall be liable
to any of the Banks for any waiver, consent or approval given or any action
taken, or omitted to be taken, in good faith by it or them hereunder or under
any other Credit Document, or in connection herewith or therewith or be
responsible to the Banks for the consequences of any oversight or error of
judgment whatsoever, except that each of the Co-Administrative Agents and the
Administrator may be liable for losses due to its willful misconduct or gross
negligence.
Section
8.3. Conditions
of Acting as Administrator and of Accepting Appointment as a Co-Administrative
Agent.
The
Administrator agrees to act as Administrator, and each of the Co-Administrative
Agents accepts its appointment as a Co-Administrative Agent, upon the following
conditions set forth in this Section
8.3.
(a) Each
of
the Co-Administrative Agents and the Administrator may execute any of its duties
hereunder by or through agents or employees and shall be entitled to rely upon
advice of counsel concerning all legal matters pertaining to the agency hereby
created and its duties hereunder.
(b) Neither
of the Co-Administrative Agents nor the Administrator shall (i) be responsible
to the Banks for any recitals, statements, warranties or representations herein,
in any other Credit Document or in any related agreements furnished to either
of
the Co-Administrative Agents, the Administrator or any of the Banks by or on
behalf of the Company or any other Obligor, or (ii) be bound to ascertain or
inquire as to the performance or observance of any of the terms, conditions,
covenants or agreements herein or under any other Credit Document on the part
of
the Company or any other Obligor. Any such inquiry which may be made by either
of the Co-Administrative Agents or the Administrator shall not obligate such
Person to make any further inquiry or to take any action.
(c) Each
of
the Co-Administrative Agents and the Administrator shall be entitled to rely
upon any Note, notice, consent, certificate, affidavit, letter, telegram,
teletype message, statement, order, telephone communication or other document
or
communication believed by it to be genuine and correct and to have been signed
or communicated to it by the proper Person or Persons and, in respect of legal
matters, upon the advice of counsel selected by the Co-Administrative Agents.
Any request, authority or consent of any Person who at the time of making such
request or giving such authority or consent is a Bank hereunder shall be
conclusive and binding on any subsequent transferee or assignee of such
Bank.
(d) Neither
of the Co-Administrative Agents nor the Administrator shall be responsible
to
any Bank for the validity or enforceability of this Agreement or any of the
Notes or any of the other Credit Documents or for the validity, enforceability
or collectibility of any amounts owing with respect to this Agreement or any
of
the Notes or any of the other Credit Documents.
NYDOCS/1204419.6
53
(e) Neither
of the Co-Administrative Agents nor the Administrator has made nor does it
now
make any representations or warranties, express or implied, nor does it assume
any liability to the Banks with respect to the creditworthiness or financial
condition of the Company or any of its Subsidiaries.
(f) Neither
of the Co-Administrative Agents nor the Administrator shall be responsible
to
(i) any party on account of the failures of, or delay in performance or breach
by, any Bank (except for such Co-Administrative Agent or the Administrator,
in
its capacity as a Bank in respect of its obligations as such) of its obligations
hereunder or (ii) any Bank on account of the failure of or delay in performance
or breach by any other Bank or any Borrower hereunder or under the Notes or
under any of the other Credit Documents or in connection herewith or
therewith.
Section
8.4. Co-Administrative
Agents; Administrator; Documentation Agent.
In
addition to Section
8.3,
and
except as otherwise expressly set forth in this Agreement, none of the Banks
identified on the signature pages of this Agreement as a “Co-Administrative
Agent”
or as
an “Administrator”
shall
have any right, power, obligation, liability, responsibility or duty under
this
Agreement other than those applicable to all Banks as such. Without limiting
the
foregoing, none of the Banks so identified as a “Co-Administrative
Agent”
or as
an “Administrator”
shall
have or be deemed to have any fiduciary relationship with any Bank. Each Bank
acknowledges that it has not relied, and will not rely, on any of the Banks
so
identified in deciding to enter into this Agreement or in taking or not taking
action hereunder or under any other Credit Document.
Section
8.5. Payments
Generally; Administrator’s Clawback.
(a) General.
All
payments to be made by the Borrowers shall be made without condition or
deduction for any counterclaim, defense, recoupment or setoff. Except as
otherwise expressly provided herein and except with respect to principal of
and
interest on Loans denominated in an Alternative Currency, all payments by the
Borrowers hereunder shall be made to the Administrator, for the account of
the
respective Banks to which such payment is owed, at the applicable
Administrator’s
Funding
Office in Dollars and in Same Day Funds not later than 2:00 p.m. on the date
specified herein. Except as otherwise expressly provided herein, all payments
by
the Borrowers hereunder with respect to principal and interest on Loans
denominated in an Alternative Currency shall be made to the Administrator,
for
the account of the respective Banks to which such payment is owed, at the
applicable Administrator’s Funding Office in such Alternative Currency and in
Same Day Funds not later than the Applicable Time specified by the Administrator
on the dates specified herein. Without limiting the generality of the foregoing,
the Administrator may require that any payments due under this Agreement be
made
in the United States. If, for any reason, any Borrower is prohibited by any
Law
from making any required payment hereunder in an Alternative Currency, such
Borrower shall make such payment in Dollars in the Dollar Equivalent of the
Alternative Currency payment amount. The Administrator will promptly distribute
to each Bank its Commitment Percentage (or other applicable share as provided
herein) of such payment in like funds as received by wire transfer to such
Bank’s lending office. All payments received by the Administrator (i) after
2:00 p.m., in the case of payments in Dollars, or
NYDOCS/1204419.6
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(ii) after
the Applicable Time specified by the Administrator in the case of payments
in an
Alternative Currency, shall in each case be deemed received on the next
succeeding Business Day and any applicable interest or fee shall continue to
accrue. If any payment to be made by any Borrower shall come due on a day other
than a Business Day, payment shall be made on the next following Business Day,
and such extension of time shall be reflected in computing interest or fees,
as
the case may be.
(b) (i)
Funding
by Bank; Presumption by Administrator.
Unless
the Administrator shall have received notice from a Bank prior to the proposed
date of any Revolving Borrowing of Eurocurrency Rate Loans (or, in the case
of
any Revolving Borrowing of Base Rate Loans, prior to 12:00 noon on the date
of
such Revolving Borrowing) that such Bank will not make available to the
Administrator such Bank’s share of such Revolving Borrowing, the Administrator
may assume that such Bank has made such share available on such date in
accordance with Section
1.3
(or, in
the case of a Revolving Borrowing of Base Rate Loans, that such Bank has made
such share available in accordance with and at the time required by Section
1.3)
and
may, in reliance upon such assumption, make available to the applicable Borrower
a corresponding amount. In such event, if a Bank has not in fact made its share
of the applicable Revolving Borrowing available to the Administrator, then
the
applicable Bank and the applicable Borrower severally agree to pay to the
Administrator forthwith on demand such corresponding amount in Same Day Funds
with interest thereon, for each day from and including the date such amount
is
made available to such Borrower to but excluding the date of payment to the
Administrator, at (A) in the case of a payment to be made by such Bank, the
Overnight Rate and (B) in the case of a payment to be made by such Borrower,
the
interest rate applicable to Base Rate Loans. If such Borrower and such Bank
shall pay such interest to the Administrator for the same or an overlapping
period, the Administrator shall promptly remit to such Borrower the amount
of
such interest paid by such Borrower for such period. If such Bank pays its
share
of the applicable Revolving Borrowing to the Administrator, then the amount
so
paid shall constitute such Bank’s Loan included in such Revolving Borrowing. Any
payment by such Borrower shall be without prejudice to any claim such Borrower
may have against a Bank that shall have failed to make such payment to the
Administrator.
(ii)
Payments
by Borrowers; Presumptions by Administrator.
Unless
the Administrator shall have received notice from a Borrower prior to the date
on which any payment is due to the Administrator for the account of the Banks
or
the Issuer hereunder that such Borrower will not make such payment, the
Administrator may assume that such Borrower has made such payment on such date
in accordance herewith and may, in reliance upon such assumption, distribute
to
the Banks or the Issuer, as the case may be, the amount due. In such event,
if
such Borrower has not in fact made such payment, then each of the Banks or
the
Issuer, as the case may be, severally agrees to repay to the Administrator
forthwith on demand the amount so distributed to such Bank or the Issuer, in
Same Day Funds with interest thereon, for each day from and including the date
such amount is distributed to it to but excluding the date of payment to the
Administrator, at the Overnight Rate.
NYDOCS/1204419.6
55
A
notice
of the Administrator Agent to any Bank or Borrower with respect to any amount
owing under this subsection (b) shall be conclusive, absent manifest
error.
(c) Failure
to Satisfy Conditions Precedent.
If any
Bank makes available to the Administrator funds for any Loan to be made by
such
Bank to any Borrower as provided in the foregoing provisions of Article
I,
and
such funds are not made available to such Borrower by the Administrator because
the conditions to the applicable Credit Extension set forth in Article
III
are not
satisfied or waived in accordance with the terms hereof, the Administrator
shall
return such funds (in like funds as received from such Bank) to such Bank,
without interest.
(d) Obligations
of Banks Several.
The
obligations of the Banks hereunder to make Loans, to fund participations in
Letters of Credit and Swing Line Loans and to make payments pursuant to
Section
8.7
are
several and not joint. The failure of any Bank to make any Loan, to fund any
such participation or to make any payment under Section
8.7
on any
date required hereunder shall not relieve any other Bank of its corresponding
obligation to do so on such date, and no Bank shall be responsible for the
failure of any other Bank to so make its Loan, to purchase its participation
or
to make its payment under Section
8.7.
(e) Funding
Source.
Nothing
herein shall be deemed to obligate any Bank to obtain the funds for any Loan
in
any particular place or manner or to constitute a representation by any Bank
that it has obtained or will obtain the funds for any Loan in any particular
place or manner, except in compliance with applicable banking laws.
Section
8.6. Modification
of this Agreement, the Notes and the Letters of Credit and each of the other
Credit Documents; Waivers and Consents.
The
Majority Banks shall have the power to assent to and authorize any modification
of any of the provisions of this Agreement, the Notes or any of the other Credit
Documents and to waive or consent to any deviation from or violation of the
provisions of this Agreement, the Notes or any of the other Credit Documents
which may be requested by the Company (including waivers of Defaults or Events
of Default), and any such assent, authorization, waiver or consent shall be
binding upon all of the Banks and all holders of the Notes as though such
actions were specifically and expressly authorized by the terms hereof;
provided,
that no
such assent, authorization, waiver or consent shall, without the consent of
each
Bank (with Obligations of the type being directly affected thereby)
:
(a) amend
or
waive the obligation of the Company or any Borrower to pay the principal of
each
of the Loans as and when the same becomes due and to pay interest on each of
them as the same shall become due from time to time and to pay any Facility
Fees
or any Letter of Credit Fee as and when the same become due;
(b) reduce
the principal amount of any Note, the interest rate thereon, or any Facility
Fees or any Letter of Credit Fee payable hereunder;
(c) increase
the amount of any Commitment;
(d) amend,
modify or waive (i) the definition of “Applicable
Margin”,
“Maturity
Date”
and
“Majority
Banks”
or (ii)
clause (c)
of
Section
1.12;
NYDOCS/1204419.6
56
(e) waive
a
Default or Event of Default under Section
7.1(a),
Section
7.1(b)
or
Section 7.1(f);
(f) amend,
modify or waive the provisions of Section
2.4(b),
Section
4.10
or
Section
5.1;
(g) amend
or
modify any Domestic Subsidiary Guarantee, or release any Borrower from any
Obligations hereunder, or release any Subsidiary from any Obligations under
any
Domestic Subsidiary Guarantee, (unless such release of a Domestic Subsidiary
Guarantor is in connection with the sale of all of the capital stock of any
Domestic Subsidiary Guarantor and such sale is permitted by this Agreement,
in
which case such Domestic Subsidiary Guarantor shall be automatically released
from any and all obligations under its Domestic Subsidiary
Guarantee);
(h) amend,
modify or waive the provisions of this Section
8.6;
(i) amend,
modify or waive the provisions of Section
1.2(b),
Section
1.5(h)
or
Section
1.8
which
relate to the Company’s obligations to deposit cash for collateral purposes;
and
(j) extend
the Letter of Credit Expiration Date of any Letter of Credit beyond the Maturity
Date;
and
further provided,
that:
(A) the
Stated Amount of any Letter of Credit may not be increased unless consented
to
by the Issuer thereof;
(B) the
interests, rights or obligations of the Issuer shall not be adversely affected
unless consented to by such Issuer; and
(C) the
interests, rights or obligations of any Co-Administrative Agent or Administrator
shall not be adversely affected unless consented to by such Co-Administrative
Agent or Administrator.
Section
8.7. Costs
of Co-Administrative Agents; Indemnification.
Each
Bank agrees to reimburse the Issuer and each of the Co-Administrative Agents,
pro
rata
(in
accordance with the amount of Loans owing to such Bank), for all costs,
expenses, and disbursements (including reasonable attorneys’ fees and
disbursements and amounts paid to consultants and agents retained by such
Co-Administrative Agents) incurred by, or asserted against, the Issuer and
such
Co-Administrative Agent and not reimbursed by the Company. Without limitation
of
the foregoing, each Bank agrees to indemnify the issuer and each of the
Co-Administrative Agents and the Administrator (to the extent not reimbursed
by
the Company) ratably, as aforesaid, from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses, or disbursements of any kind or nature whatsoever which may be imposed
on, incurred by or asserted against the Issuer and such Co-Administrative Agent
or the Administrator in any way relating to or arising out of this Agreement,
the Notes or any of the other Credit Documents or any action taken or omitted
by
the
NYDOCS/1204419.6
57
Issuer
and such Co-Administrative Agent or the Administrator under this Agreement
or
the Notes or any of the other Credit Documents, except to the extent that
the
same may result from the gross negligence or willful misconduct of the Issuer
and such Co-Administrative Agent or the Administrator; provided,
that at
all times during the continuance of an Event of Default, the aforesaid
reimbursement and indemnity obligations of each Bank shall be determined
by each
Bank’s pro rata share of the aggregate of the Company’s Obligations (including
all Advances) outstanding at such time under this Agreement, the Notes and
each
of the other Credit Documents. Each of the Issuer and the Co-Administrative
Agents and the Administrator shall be fully justified in failing or refusing
to
take any action under this Agreement or any other Credit Document unless
it
shall first receive such advice or concurrence of the Majority Banks as it
deems
appropriate or it shall first be indemnified to its satisfaction by the Banks
against any and all liability and expense which may be incurred by it by
reason
of taking or continuing to take any such action. In all cases the Issuer
and
each of the Co-Administrative Agents and the Administrator shall be fully
protected in acting, or in refraining from acting, under this Agreement and
the
Notes and the other Credit Documents in accordance with a request of the
Majority Banks, and such request and any action taken or failure to act pursuant
thereto shall be binding upon all the Banks and all future holders of the
Notes.
If any indemnity in favor of the Issuer and any Co-Administrative Agent or
the
Administrator shall be or become, in the Issuer’s and such Co-Administrative
Agent’s or the Administrator’s reasonable determination, inadequate, the Issuer
and such Co-Administrative Agent or the Administrator, as the case may be,
may
call for additional indemnification from the Banks and cease to do the acts
indemnified against hereunder until such additional indemnity is
given.
Section
8.8. Non-Reliance
on Co-Administrative Agents and the Administrator; Assignment.
(a) Each
Bank
hereby represents that it has made its own independent investigation with
respect to the creditworthiness and financial condition of the Company and
its
Subsidiaries and has not relied upon any statement or document furnished to
it
by any Co-Administrative Agent or the Administrator, or any warranty, either
express or implied, by any Co-Administrative Agent or the Administrator. Each
Bank also acknowledges that it will, independently of each of the
Co-Administrative Agents, the Administrator and each other Bank, and based
on
such other documents, information and investigations as it shall deem
appropriate at any time, continue to make its own credit decisions as to
exercising or not exercising from time to time any rights and privileges
available to it under this Agreement or any of the other Credit
Documents.
(b) Each
Bank
further represents and warrants that it is entering into this Agreement for
investment purposes and not with the present intention of distribution or
resale. Except as permitted by Section
10.5
below,
no Bank may assign its Commitments and/or obligations hereunder without the
prior consent of the Co-Administrative Agents, the Issuer and the Company and
any such transfers must comply with all applicable Laws.
Section
8.9. Successor
Administrator.
The
Administrator may resign at any time by giving thirty (30) days written notice
thereof to the Banks and the Company. A successor Administrator shall be
appointed upon a vote of the Majority Banks. Upon the
NYDOCS/1204419.6
58
acceptance
of any appointment as Administrator hereunder by a substitute or successor
Administrator, such substitute or successor Administrator shall thereupon
succeed to and become vested with all the rights, powers, privileges and
duties
of the retiring Administrator, and the retiring Administrator shall be
discharged from its duties and obligations under this Agreement from the
date of
its resignation as specified in such notice, but such resignation shall not
discharge the Administrator from any liability incurred in the discharge
of its
duties hereunder before such resignation. If no successor Administrator shall
have been appointed by the Majority Banks and have accepted such appointment
within 30 days of the retiring Administrator’s giving notice of resignation,
then the retiring Administrator’s resignation shall nonetheless become effective
and (a) the retiring Administrator shall be discharged from its duties and
obligations hereunder and (b) the Majority Banks shall perform the duties
of the
Administrator (and all payments and communications provided to be made by,
to or
through the Administrator shall instead be made to each Bank directly) until
such time as the Majority Banks appoint a successor Administrative Agent
pursuant to this Section
8.9.
Section
8.10. Action
by the Administrator.
Except
as otherwise provided in this Agreement, the Administrator will take such
action, assert such rights and pursue such remedies under this Agreement, the
Notes and any of the other Credit Documents as the Majority Banks shall direct
and as it shall be entitled to do so. Except as otherwise expressly provided
in
this Agreement, the Administrator will not (and will not be obligated to) take
any action, assert any rights or pursue any remedies under this Agreement or
any
of the Notes or any of the other Credit Documents in violation or contravention
of any express direction or instruction of the Majority Banks. The Administrator
may refuse (and will not be obligated) to take any action, assert any rights
or
pursue any remedies under this Agreement or any of the Notes or any of the
other
Credit Documents without the express written direction and instruction of the
Majority Banks. No Bank (other than the Administrator, acting in its capacity
as
such) shall be entitled to take any action of any kind under this Agreement
or
any Note or any of the other Credit Documents, other than to enforce payment
of
amounts due and payable hereunder or under any Note issued to such
Bank.
Section
8.11. Substitution
of Banks.
(a)
Within
thirty (30) days after any Bank has been unable, for any reason, to fund any
Loan requested in accordance with the terms hereof (and to which the Company
is
entitled under the terms hereof) (such Bank is hereinafter referred to as an
“Affected
Bank”),
the
Company may request the non-Affected Banks to acquire all or any portion of
such
Affected Bank’s Advances and to assume all or such portion of such Affected
Bank’s Commitments. The non-Affected Banks may elect to acquire less than, or
none of, the amount of such Affected Bank’s outstanding Advances and to assume
less than, or none of, the amount of the Affected Bank’s Commitments that the
Company requested be acquired and be assumed. If the non-Affected Banks do
not
elect to acquire or assume all of such Affected Bank’s outstanding Advances and
Commitments, and with the written consent (such consent not to be unreasonably
withheld) of non-Affected Banks constituting the Majority Banks, the Company
may
designate a replacement lender or lenders to acquire and assume all or any
portion of the Advances and Commitment of the Affected Bank not being acquired
and assumed by the non-Affected Banks, subject to the requirement that no such
replacement lender may have a Commitment which is less than
$5,000,000.
NYDOCS/1204419.6
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(b) If
one or
more non-Affected Banks shall so agree in writing or if the Company designates
a
replacement lender or lenders in respect of all or a portion of the outstanding
Advances of the Affected Bank, such non-Affected Bank or Banks and/or such
replacement lender or lenders shall purchase such Advances or portion, without
recourse to or warranty by (other than a warranty from the Affected Bank as
to
the principal amount of the Advances being purchased), or expense to, such
Affected Bank, and such Affected Bank shall sell such Advances, for a purchase
price equal to the outstanding principal amount of the Advances of such Affected
Bank, in each case in such proportions as the non-Affected Banks, the
replacement lenders and the Company shall agree, in the same mixture of the
Eurocurrency Rate Loans, Base Rate Loans as all the outstanding Advances of
the
Affected Bank, and on a date mutually acceptable to the parties. Such Affected
Bank’s Commitment shall be allocated among such non-Affected Banks and/or such
replacement lender or lenders in proportion to their acquisition of the Affected
Bank’s Advances. All interest on and all other fees payable on (including,
without limitation, any payment or indemnification due under Section
1.18)
Advances being acquired by the non-Affected Banks and any replacement lender
or
lenders accrued as of the date of such acquisition shall be paid by the Company
to the Affected Bank on the date of such acquisition.
(c) If
all of
an Affected Bank’s outstanding Commitment is acquired and assumed by a non-
Affected Bank or a replacement bank, the Affected Bank shall be considered
to be
released from its obligations related to such assumed Commitments and shall
no
longer constitute a Bank for the purposes of this Agreement.
(d) Upon
completing any purchase pursuant to this Section
8.11 and
upon
executing a counterpart of this Agreement, each replacement lender shall become
a Bank hereunder.
(e) If
the
non-Affected Banks and any replacement lender(s) are only willing to acquire
less than all of the Affected Bank’s outstanding Advances, the Commitment of the
Affected Bank shall not terminate, but shall be reduced in an amount
proportionate to the percentage of its Advances and the Affected Bank shall
continue to be a Bank hereunder with a reduced Commitment.
(f) The
Company shall have no obligation to seek a replacement lender or take any other
action under this Section, and any failure on the part of an Affected Bank
to
fund any Advances, unless otherwise excused hereunder, shall be deemed to be
a
breach of this Agreement on the part of such Bank.
ARTICLE
IX DEFINITIONS
Section
9.1. Accounting
Terms, Changes in GAAP or FASB Standards; Rules of
Interpretation.
Unless
otherwise defined, all accounting terms shall be construed, and all computations
or classifications of assets and liabilities and of income and expenses shall
be
made or determined, on a consolidated basis in accordance with GAAP. If either
GAAP or FASB Standards are changed in the future in such a way as to materially
and adversely change the effect of the financial covenants and reporting
requirements as presently contained in this
NYDOCS/1204419.6
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Agreement,
the Company and the Banks agree to negotiate in good faith to amend the relevant
portions of this Agreement which are controlled or determined by the application
of GAAP or FASB Standards, so that such relevant portions shall continue
to
afford to the Banks the same information, protections and covenants as provided
and contained in this Agreement in its form on this date. The defined terms
used
in this Agreement shall apply equally to both the singular and the plural
form
of the terms defined. All references herein to Sections and clauses shall
be
deemed references to Sections and clauses of this Agreement unless the context
shall otherwise require. Each reference herein to a particular Person (including
each of the Banks) shall be deemed to include a reference to such Person’s
successors and permitted assigns. Whenever used in this Agreement, the words
“include”, “includes” and “including” shall be deemed to be followed by the
phrase “without limitation”.
Section
9.2. Exchange
Rates; Currency Equivalents. (a)
The
Administrator shall determine the Spot Rates as of each Revaluation Date to
be
used for calculating Dollar Equivalent amounts of Advances and Outstanding
Amounts denominated in Alternative Currencies. Such Spot Rates shall become
effective as of such Revaluation Date and shall be the Spot Rates employed
in
converting any amounts between the applicable currencies until the next
Revaluation Date to occur. Except for purposes of financial statements delivered
by Obligors hereunder or calculating financial covenants hereunder or except
as
otherwise provided herein, the applicable amount of any currency (other than
Dollars) for the purposes of the Credit Documents shall be such Dollar
Equivalent amount as so determined by the Administrator, absent manifest
error.
(b) Wherever
in this Agreement in connection with a Revolving Borrowing, or the conversion,
continuation or prepayment of a Eurocurrency Rate Loan, an amount, such as
a
required minimum or multiple amount, is expressed in Dollars, but such Revolving
Borrowing or Eurocurrency Rate Loan is denominated in an Alternative Currency,
such amount shall be the relevant Alternative Currency Equivalent of such Dollar
amount (rounded to the nearest unit of such Alternative Currency, with 0.5
of a
unit being rounded upward), as determined by the Administrator, absent manifest
error.
Section
9.3. Additional
Alternative Currencies. (a)
The
Company may from time to time request that Eurocurrency Rate Loans be made
in a
currency other than those specifically listed in the definition of “Alternative
Currency;”provided,
that
such requested currency is in a lawful currency (other than Dollars) that is
readily available and freely transferable and convertible into Dollars. In
the
case of any such request with respect to the making of Eurocurrency Rate Loans,
such request shall be subject to the approval of the Administrator and the
Banks.
(b) Any
such
request shall be made to the Administrator not later than 11:00 a.m., 20
Business Days prior to the date of the desired Advance (or such other time
or
date as may be agreed by the Administrator in its sole discretion). The
Administrator shall promptly notify each Bank thereof. Each Bank shall notify
the Administrator, not later than 11:00 a.m., ten Business Days after receipt
of
such request whether it consents, in its sole discretion, to the making of
Eurocurrency Rate Loans in such requested currency.
NYDOCS/1204419.6
61
(c) Any
failure by a Bank to respond to such request within the time period specified
in
the preceding sentence shall be deemed to be a refusal by such Bank to permit
Eurocurrency Rate Loans to be made in such requested currency. If the
Administrator and all the Banks consent to making Eurocurrency Rate Loans in
such requested currency, the Administrator shall notify the Company and such
currency shall thereupon be deemed for all purposes to be an Alternative
Currency hereunder for purposes of any Revolving Borrowings of Eurocurrency
Rate
Loans. If the Administrator shall fail to obtain consent to any request for
additional currency under this Section
9.3,
the
Administrator shall promptly so notify the Company.
Section
9.4. Change
of Currency.
(a)
Each
obligation of the Borrowers to make a payment denominated in the national
currency unit of any member state of the European Union that adopts the Euro
as
its lawful currency after the date hereof shall be redenominated into Euro
at
the time of such adoption (in accordance with the EMU Legislation). If, in
relation to the currency of any such member state, the basis of accrual of
interest expressed in this Agreement in respect of that currency shall be
inconsistent with any convention or practice in the London intrabank market
for
the basis of accrual of interest in respect of the Euro, such expressed basis
shall be replaced by such convention or practice with the effect from the date
on which such member state adopts the Euro as its lawful currency; provided,
that if
any Revolving Borrowing in the currency of such member state is outstanding
immediately prior to such date, such replacement shall take effect, with respect
to such Revolving Borrowing, at the end of the then current Interest
Period.
(b) Each
provision of this Agreement shall be subject to such reasonable changes of
construction as the Administrator may from time to time specify to be
appropriate to reflect the adoption of the Euro by any member state of the
European Union and any relevant market conventions or practices relating to
the
Euro.
(c) Each
provision of this Agreement also shall be subject to such reasonable changes
of
construction as the Administrator may from time to time specify to be
appropriate to reflect a change in currency of any other country and any
relevant market conventions or practices relating to the change in
currency.
Section
9.5. Times
of Day.
Unless
otherwise specified, all references herein to times of day shall be references
to Eastern time (daylight or standard, as applicable).
Section
9.6. Letter
of Credit Amounts.
With
respect to any Letter of Credit that, by its terms or the terms of any Issuer
Document related thereto, provides for one or more automatic increases in the
Stated Amount thereof, the amount of such Letter of Credit shall be deemed
to be
the maximum Stated Amount of such Letter of Credit after giving effect to all
such increases, whether or not such maximum Stated Amount is in effect at such
time.
Section
9.7. Other
Definitions.
As used
herein, in the Notes, the Letters of Credit and (unless otherwise provided
therein) in each other Credit Document or in any certificate, document or report
delivered pursuant to this Agreement, the following terms shall have the
following meanings:
NYDOCS/1204419.6
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“Absolute
Rate”
means a
fixed rate of interest expressed in multiples of 1/100% of one basis
point.
“Absolute
Rate Loan”
means a
Bid Loan that bears interest at a rate determined with reference to an Absolute
Rate.
“Accounts
Receivable”
means
all rights of any Applicable Kaman Entity to payment for goods sold, leased
or
otherwise marketed in the ordinary course of business and all rights of any
Applicable Kaman Entity to payment for services rendered in the ordinary course
of business and all sums of money or other proceeds due thereon pursuant to
transactions with account debtors, except for that portion of the sum of money
or other proceeds due thereon that relate to sales, use or property taxes in
conjunction with such transactions, recorded on books of account in accordance
with GAAP.
“Acquisition”
means
any transaction or series of related transactions consummated on or after the
Effective Date, by which the Company or any of its Subsidiaries (a) acquires
any
ongoing business or all or substantially all of the assets of any Person or
division thereof, whether through purchase of assets, merger or otherwise,
or
(b) directly or indirectly acquires (in one transaction or as the most recent
transaction in a series of transactions) a majority of the securities of a
corporation, which securities have ordinary voting power for the election of
directors (other than securities having such power only by reason of the
happening of a contingency) or a majority (by percentage and voting power)
of
the outstanding partnership interests of a partnership or membership interests
of a limited liability company.
“Additional
Costs”
has the
meaning assigned to such term in Section
1.16(a).
“Adjusted
Fixed Charge Coverage Ratio”
means
the ratio of (a) the Company’s EBITDA (without adding back the Permitted 2004
Restructuring Charge as permitted by the proviso contained in the definition
of
EBITDA) for the four (4) most recently completed fiscal quarters of the Company,
to (b) the aggregate consolidated interest expense on borrowed money (including
the Obligations) (net of cash income from investments) of the Company and its
Subsidiaries for such four fiscal quarters.
“Administrative
Questionnaire”
means
an Administrative Questionnaire in a form supplied by the
Administrator.
“Administrator
Fee Letter”
means
that letter dated as of July 7, 2005, between the Administrator, Banc of America
Securities LLC and the Company in connection with this Agreement.
“Administrator”
means
Bank of America as the “Administrator” hereunder and any successor, transferee
and assign thereof in such capacity.
“Administrator’s
Funding Office”
means,
with respect to any currency, the Administrator’s address and, as appropriate,
account set forth on Schedule
1.1
with
respect to such currency, or such other address or account with respect to
such
currency as the Administrator may from time to time notify the
Company.
NYDOCS/1204419.6
63
“Advances”
means,
collectively, with respect to any Bank, (i) any and all Loans made by such
Bank
(ii) and any and all Letters of Credit issued by such Bank pursuant to this
Agreement, including the extension of any Letter of Credit Expiration
Date.
“Affiliate”
means,
with respect to any Person, another Person that directly, or indirectly through
one or more intermediaries, Controls or is Controlled by or is under common
Control with the Person specified.
“Agreement”
means
this Revolving Credit Agreement, as the same may from time to time be amended,
supplemented or otherwise modified.
“Aggregate
Commitments”
means
the Commitments of all Banks.
“Alternative
Currency”
means
each of Euro, British
Pound, Japanese Yen, Australian Dollar, New Zealand Dollar, Canadian Dollar,
Swiss Franc, Swedish Kroner and
each
other currency (other than Dollars) that is approved in accordance with
Section
9.3.
“Alternative
Currency Equivalent”
means,
at any time, with respect to any amount denominated in Dollars, the equivalent
amount thereof in the applicable Alternative Currency as determined by the
Administrator at such time on the basis of the Spot Rate (determined in respect
of the most recent Revaluation Date) for the purchase of such Alternative
Currency with Dollars.
“Alternative
Currency Sublimit”
means
an amount equal to the lesser of the Aggregate Commitments and $25,000,000.
The
Alternative Currency Sublimit is part of, and not in addition to, the Aggregate
Commitments.
“Applicable
Kaman Entities”
means
the Company and its Industrial Distribution and Music segments, and elements
of
the Aerospace segment, including Kamatics Corporation, RWG Frankejura Industrie
Flugwerklager GmbH, Plastics Fabricating Company, Inc., ▇▇▇▇▇ ▇▇▇▇▇▇, Inc.,
and
Kaman Aerospace Corporation’s Fuzing and Measurement and Memory operations (the
aforementioned segments being the Company’s operating segments identified
pursuant to Statement of Financial Accounting Standards No. 131).
“Applicable
Margin”
means a
percentage based upon the highest of the then applicable credit ratings from
S&P with respect to Public Senior Debt (whether or not any is outstanding)
as follows:
NYDOCS/1204419.6
64
|
Credit
Rating
|
Facility
Fee Applicable
Margin
|
Letter
of Credit Fee
Applicable
Margin
|
Eurocurrency
Applicable
Margin
|
|
S&P
|
|||
|
≥
A-
|
0.100%
|
0.400%
|
0.400
%
|
|
≥
BBB+
|
0.150%
|
0.475%
|
0.475%
|
|
≥
BBB
|
0.200%
|
0.675%
|
0.675
%
|
|
≥
BBB-
|
0.250%
|
0.875%
|
0.875%
|
|
<
BBB-
|
0.375
%
|
1.000%
|
1.000%
|
The
Applicable Margin shall be adjusted on the Business Day after any announcement,
change, or withdrawal of S&P’s rating of the Company’s Public Senior Debt;
provided,
that if
at any time any Public Senior Debt is not rated by S&P, such Public Senior
Debt shall, for purposes of this definition, be deemed to have been rated one
level above the then applicable highest rating ascribed to the Company’s
Subordinated Debt by S&P; provided further,
that if
at any time neither the Subordinated Debt nor the Public Senior Debt of the
Company is rated by S&P, or if at any time S&P is not in the business of
rating debt securities such as the Company’s Subordinated Debt or Public Senior
Debt, then the Company and the Banks shall enter into good faith negotiations
to
establish an alternate basis for determining the Applicable Margin, either
with
reference to credit ratings from an alternative rating agency for any of the
Subordinated Debt or Public Senior Debt or on some other basis mutually
acceptable to the Company and the Banks; provided further,
that
until such an alternate basis for determining the Applicable Margin is
established, the Applicable Margin shall be the Applicable Margin in effect
immediately prior to such occurrence. The Company covenants and agrees with
each
of the Co-Administrative Agents and the Banks to at all times use its best
efforts to cause S&P to issue credit ratings (either publicly or in the form
of letters to the Co-Administrative Agents) for its Public Senior Debt and/or
its Subordinated Debt (whether or not any such Public Senior Debt or
Subordinated Debt is outstanding).
“Applicable
Time”
means,
with respect to any borrowings and payments in any Alternative Currency, the
local time in the place of settlement for such Alternative Currency as may
be
determined by the Administrator or the Issuer, as the case may be, to be
necessary for timely settlement on the relevant date in accordance with normal
banking procedures in the place of payment.
“Approved
Fund”
means
any Fund that is administered or managed by (a) a Bank, (b) an Affiliate of
a
Bank or (c) an entity or an Affiliate of an entity that administers or manages
a
Bank.
“Assignment
and Assumption”
means
an assignment and assumption agreement, in or substantially in the form of
Exhibit
H
attached
hereto, entered into by a Bank and an assignee of such Bank pursuant to
Section
10.5,
and
accepted by the Company and the Co-Administrative Agents.
“Assignee
Group”
means
two or more Eligible Assignees that are Affiliates of one another or two or
more
Approved Funds managed by the same investment advisor.
NYDOCS/1204419.6
65
“Availability
Period”
means
the period from and including the Effective Date to the earliest of (a) the
Maturity Date, (b) the date of termination of the Aggregate Commitments pursuant
to Section
1.2(b),
and (c)
the date of termination of the commitment of each Bank to make Loans and of
the
obligation of the Issuer to make L/C Credit Extensions pursuant to Section
1.4
“Banks”
has the
meaning assigned to such term in the preamble to this Agreement.
“Base
Rate”
means,
for any day a fluctuating rate per annum equal to the higher of (a) the Federal
Funds Rate plus ½ of 1% and (b) the rate of interest in effect for such day as
publicly announced from time to time by Bank of America as its “prime rate.” The
“prime rate” is a rate set by Bank of America based upon several factors
including Bank of America’s costs and desired return, general economic
conditions and other factors, and is used as a reference point for pricing
some
loans, which may be priced at, above, or below such announced rate. Any change
in such rate announced by Bank of America shall take effect at the opening
of
business on the day specified in the public announcement of such
change.
“Base
Rate Revolving Loan”
means a
Revolving Loan that is a Base Rate Loan.
“Base
Rate Loan”
means
all or any portion of any Loan made hereunder which bears interest based on
the
Base Rate. All Base Rate Loans shall be denominated in Dollars.
“Bid
Borrowing”
means a
borrowing consisting of simultaneous Bid Loans of the same Type from each of
the
Banks whose offer to make one or more Bid Loans as part of such borrowing has
been accepted under the auction bidding procedures described in Section
1.4.
“Bid
Loan”
has the
meaning specified in Section
1.4.
“Bid
Loan Bank”
means,
in respect of any Bid Loan, the Bank making such Bid Loan to the
Borrower.
“Bid
Request”
means a
written request for one or more Bid Loans substantially in the form of
Exhibit
B-1.
“Borrowing”
means a
Revolving Borrowing, a Bid Borrowing or a Swing Line Borrowing, as the context
may require.
“Business
Day”
means,
with respect to Eurocurrency Rate Loans, any day on which commercial banks
are
open for domestic and international dealings in Dollar deposits in Hartford,
Connecticut, New York, New York, Boston, Massachusetts and London, England
and,
with respect to any other Loans or any Bid Loans or any other matters, any
day
other than a day on which commercial banks in Hartford, Connecticut, Boston,
Massachusetts, and New York, New York, are required or permitted by law to
close.
“Cash
Collateralize”
has the
meaning specified in Section
1.5(h)(iv).
NYDOCS/1204419.6
66
“Change
of Control”
means
an event or series of events by which, following January 1, 2005:
(a) any
“person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the
Securities Exchange Act, but excluding any employee benefit plan of such person
or its subsidiaries, and any person or entity acting in its capacity as trustee,
agent or other fiduciary or administrator of any such plan) becomes the
“beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Securities
Exchange Act, except that a person or group shall be deemed to have “beneficial
ownership” of all securities that such person or group has the right to acquire
(such right, an “option
right”),
whether such right is exercisable immediately or only after the passage of
time), directly or indirectly, of 35% or more of the equity securities of the
Company entitled to vote for members of the board of directors or equivalent
governing body of the Company on a fully-diluted basis (and taking into account
all such securities that such person or group has the right to acquire pursuant
to any option right);
(b) during
any period of 24 consecutive months, a majority of the members of the board
of
directors or other equivalent governing body of the Company cease to be composed
of individuals (i) who were members of that board or equivalent governing body
on the first day of such period, (ii) whose election or nomination to that
board
or equivalent governing body was approved by individuals referred to in clause
(i)
above
constituting at the time of such election or nomination at least a majority
of
that board or equivalent governing body or (iii) whose election or nomination
to
that board or other equivalent governing body was approved by individuals
referred to in clauses (i)
and
(ii)
above
constituting at the time of such election or nomination at least a majority
of
that board or equivalent governing body (excluding, in the case of both clause
(ii)
and
clause (iii),
any
individual whose initial nomination for, or assumption of office as, a member
of
that board or equivalent governing body occurs as a result of an actual or
threatened solicitation of proxies or consents for the election or removal
of
one or more directors by any person or group other than a solicitation for
the
election of one or more directors by or on behalf of the board of directors);
or
(c) any
Person or two or more Persons acting in concert shall have acquired by contract
or otherwise, or shall have entered into a contract or arrangement that, upon
consummation thereof, will result in its or their acquisition of the power
to
exercise, directly or indirectly, a controlling influence over the management
or
policies of the Company, or control over the equity securities of the Company
entitled to vote for members of the board of directors or equivalent governing
body of the Company on a fully-diluted basis (and taking into account all such
securities that such Person or group has the right to acquire pursuant to any
option right) representing 35% or more of the combined voting power of such
securities;
provided,
that,
notwithstanding the foregoing, an event that would otherwise constitute a Change
of Control under clause (a) or (c) above shall be deemed not to have occurred
for so long, but only for so long, as ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, his wife, their
descendents and partnerships or trusts in which they are the sole beneficial
owners or beneficiaries
NYDOCS/1204419.6
67
continue
to own and have the sole right to direct the voting of securities representing
at least a majority of the combined voting power of such
securities.
“Co-Administrative
Agent”
and
“Co-Administrative
Agents”
shall
have the respective meanings ascribed to such terms in the preamble of this
Agreement.
“Co-Lead
Arrangers”
means
Banc of America Securities LLC and Scotia Capital.
“Co-Lead
Arrangers Fee Letter”
means
that letter dated as of July 7, 2005 between the Co-Administrative Agents,
Banc
of America Securities LLC, and the Company in connection with this
Agreement.
“Code”
means
the Internal Revenue Code of 1986 and all rules and regulations promulgated
pursuant thereto, as the same may from time to time be supplemented or
amended.
“Commitment”
means,
with respect to each Bank, its obligation to (a) make Revolving Loans to the
Borrowers pursuant to Section
1.1(a),
(b)
purchase participations in L/C Obligations, and (c) purchase participations
in
Swing Line Loans, in an aggregate principal amount at any one time outstanding
not to exceed the amount set forth opposite such Bank’s name on Schedule
1.1(a)
or in
the Assignment and Assumption pursuant to which such Bank becomes a party
hereto, as applicable, as such amount shall be adjusted from time to time in
accordance with this Agreement.
“Commitment
Percentage”
means
with respect to any Bank at any time, the percentage (carried out to the ninth
decimal place) of the Aggregate Commitments represented by such Bank’s
Commitment at such time. If the commitment of each Bank to make Loans and the
obligation of the Issuer to make L/C Credit Extensions have been terminated
pursuant to Section
7.3
or if
the Aggregate Commitments have expired, then the Commitment Percentage of each
Bank shall be determined based on the Commitment Percentage of such Bank most
recently in effect, giving effect to any subsequent assignments. The initial
Commitment Percentage of each Bank is set forth opposite the name of such Bank
on Schedule
1.1
or in
the Assignment and Assumption pursuant to which such Bank becomes a party
hereto, as applicable.
“Company”
has the
meaning assigned to such term in the preamble of this Agreement.
“Competitive
Bid”
means a
written offer by a Bank to make one or more Bid Loans, substantially in the
form
of Exhibit
B-2
thereto,
duly completed and signed by a Bank.
“Competitive
Bid Note”
has the
meaning specified in Section
1.9.
“Consolidated
Accounts Receivable and Inventory”
means
the Company’s consolidated accounts receivable and inventory, including, without
limitation, all goods and to be sold, leased or otherwise marketed in the
ordinary course of business and all rights of the Company and its Subsidiaries
to payment for such goods and all rights of the Company and its Subsidiaries
to
payment for services rendered in the ordinary course of business and all sums
of
money or other proceeds due thereon pursuant to transactions with account
debtors, except for that portion of the sum of money or other proceeds due
thereon that relate to sales, use or
NYDOCS/1204419.6
68
property
Taxes in conjunction with such transactions, recorded on books of account
in
accordance with GAAP.
“Consolidated
Net Worth”
means
the Company’s consolidated shareholders equity (including any and all Qualifying
Preferred Stock) as determined under GAAP.
“Consolidated
Tangible Assets”
means
the Company’s consolidated assets, excluding all Intangible Assets.
“Consolidated
Total Indebtedness”
means,
as of any date, any Indebtedness of the Company or any Subsidiary, other than
any Indebtedness of the Company to any Subsidiary or of any Subsidiary to the
Company or any other Subsidiary.
“Contingent
Liability”
means
any liability, indebtedness or obligation of the type described in or
contemplated by Section
5.3.
“Control”
means
the possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of a Person, whether through the ability
to exercise voting power, by contract or otherwise. “Controlling”
and
“Controlled”
have
meanings correlative thereto.
“Controlled
Group”
means
all trades or businesses (whether or not incorporated) under common control
which, together with the Company or any Subsidiary, are treated as a single
employer under Section 414(b) or 414(c) of the Code or Section 4001 of
ERISA.
“Credit
Documents”
means
(i) this Agreement, the Notes, each Letter of Credit, each Domestic Subsidiary
Guarantee, each Revolving Loan Notice, each Bid Request, each Competitive Bid,
each Swing Line Loan Notice, each Letter of Credit Application, the
Administrator Fee Letter, the Co-Lead Arrangers Fee Letter, the Scotia Capital
Fee Letter and each other letter (including, without limitation, fee letters),
notice, agreement, certificate, document or instrument delivered in connection
with this Agreement and (ii) any agreements or instruments pursuant to which
the
Obligations of the Company or any other Obligor under this Agreement, any of
the
Notes or any of the Domestic Subsidiary Guarantees are refunded, refinanced
or
replaced (in whole or in part) from time to time, as such agreements,
certificates, documents and instruments referred to in clauses (i)
and
(ii)
of this
definition may from time to time be amended, supplemented, restated, renewed
or
otherwise modified.
“Credit
Extension”
means
each of the following: (a) a Borrowing and (b) an L/C Credit
Extension.
“Debtor
Relief Laws”
means
the Bankruptcy Code of the United States, and all other liquidation,
conservatorship, bankruptcy, assignment for the benefit of creditors,
moratorium, rearrangement, receivership, insolvency, reorganization, or similar
debtor relief Laws of the United States or other applicable jurisdictions from
time to time in effect and affecting the rights of creditors
generally.
“Default”
means
any event which, but for the giving of notice or the lapse of time, or both,
would constitute an Event of Default.
NYDOCS/1204419.6
69
“Delinquent
Bank”
has the
meaning ascribed to such term in Section
8.5(b)
hereof.
“Designated
Borrower”
has
the meaning specified in the introductory paragraph hereto.
“Designated
Borrower Notice”
has the
meaning specified in Section
1.13.
“Designated
Borrower Request and Assumption Agreement”
has the
meaning specified in Section
1.13.
“Dollar”,
“Dollars”
and the
sign “$” means lawful money of the United States of America.
“Dollar
Equivalent”
means,
at any time, (a) with respect to any amount denominated in Dollars,
such
amount, and (b) with respect to any amount denominated in any Alternative
Currency, the equivalent amount thereof in Dollars as determined by the
Administrator, at such time on the basis of the Spot Rate (determined in respect
of the most recent Revaluation Date) for the purchase of Dollars with such
Alternative Currency.
“Domestic
Subsidiary”
means a
Subsidiary organized under the laws of the United States or any state
thereof.
“Domestic
Subsidiary Guarantee”
means
each Domestic Subsidiary Guarantee executed and delivered by a Subsidiary of
the
Company to each of the Co-Administrative Agents and the Banks pursuant to
Section
3.1(a)
or
Section
4.10
of this
Agreement, substantially in the form of Exhibit
I
hereto,
as amended, supplemented, amended and restated or otherwise modified from time
to time.
“Domestic
Subsidiary Guarantor”
means
any Subsidiary of the Company which (i) has executed a Domestic Subsidiary
Guarantee pursuant to Section
3.1
of this
Agreement on the Effective Date or (ii) is required to execute a Domestic
Subsidiary Guarantee in accordance with Section
4.10
of this
Agreement.
“EBITDA”
means
the consolidated operating earnings of the Company and its Subsidiaries for
any
fiscal period, after all expenses and other proper charges but before the
payment or provision for any income taxes, interest expense, special items
such
as gains or losses on sales of assets, extraordinary or special items reported
net of taxes, depreciation or amortization, and all other items reported as
non-operating income for such period, in each case without duplication, and
all
determined in accordance with GAAP; provided,
that
notwithstanding the foregoing, EBITDA for any period shall be increased by
Permitted 2004 Restructuring Charges, to the extent such Permitted 2004
Restructuring Charges were deducted in determining consolidated operating
earnings of the Company and its Subsidiaries for such period.
“Effective
Date”
means
August 5, 2005.
NYDOCS/1204419.6
70
“Eligible
Accounts”
means
the aggregate of the unpaid portions of Accounts Receivable (net of any credits,
rebates, offsets, holdbacks or other adjustments or commissions payable to
third
parties that are adjustments to such Accounts Receivable) (a) that the Company
reasonably and in good faith determines to be collectible and (b) that are
with
account debtors or other obligors that (i) are not affiliates of any Applicable
Kaman Entity, (ii) purchased the goods or services giving rise to the relevant
Account Receivable in an arm's length transaction and (iii) are not known by
such Applicable Kaman Entities to be insolvent or involved in any case or
proceeding, whether voluntary or involuntary, under any bankruptcy,
reorganization, arrangement, insolvency, adjustment of debt, dissolution,
liquidation or similar law of any jurisdiction.
“Eligible
Assignee”
means
(a) a Bank; (b) an Affiliate of a Bank; (c) an Approved Fund; and (d) any other
Person (other than a natural person) approved by (i) the Co-Administrative
Agents, the Issuer and the Swing Line Bank, and (ii) unless an Event of Default
has occurred and is continuing, the Company (each such approval not to be
unreasonably withheld or delayed); provided,
that
notwithstanding the foregoing, “Eligible Assignee” shall not include the Company
or any of the Company’s Affiliates or Subsidiaries.
“Eligible
Inventory”
means
the net book value (determined by the average costing method and at lower of
cost or market) of finished goods, work in progress and raw materials and
component parts inventory owned by any Applicable Kaman Entity; provided
that
Eligible Inventory shall not include any inventory (a) held on consignment,
or
not otherwise owned by any such Applicable Kaman Entity, or of a type no longer
sold by any such Applicable Kaman Entity or (b) which is damaged, obsolete
or
not marketable.
“EMU”
means
the economic and monetary union in accordance with the Treaty of Rome 1957,
as
amended by the Single ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, the Maastricht Treaty of 1992 and
the
Amsterdam Treaty of 1998.
“EMU
Legislation”
means
the legislative measures of the European Council for the introduction of,
changeover to or operation of a single or unified European
currency.
“Environmental
Laws”
means
any and all Requirements of Law regulating, relating to or imposing liability
or
standards or conduct concerning, any Hazardous Substances or environmental
protection.
“ERISA”
means
the Employee Retirement Income Security Act of 1974 and all rules and
regulations promulgated pursuant thereto, as the same may from time to time
be
supplemented or amended.
“Euro”
and
“EUR”
means
the lawful currency of the Participating Member States in accordance with the
EMU Legislation.
“Eurocurrency
Bid Margin”
means
the margin above or below the Eurocurrency Rate to be added or subtracted from
the Eurocurrency Rate, which margin shall be expressed in multiples of 1/100%
of
one basis point.
NYDOCS/1204419.6
71
“Eurocurrency
Margin Bid Loan”
means a
Bid Loan that bears interest at a rate based upon the Eurocurrency
Rate.
“Eurocurrency
Rate”
means,
for any Interest Period with respect to a Eurocurrency Rate Loan, the rate
per
annum equal to the British Bankers Association LIBOR Rate (“BBA LIBOR”), as
published by Reuters (or other commercially available source providing
quotations of BBA LIBOR as designated by the Administrator from time to time)
at
approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period, for deposits in the relevant currency
(for
delivery on the first day of such Interest Period) with a term equivalent to
such Interest Period. If such rate is not available at such time for any reason,
then the “Eurocurrency Rate” for such Interest Period shall be the rate per
annum determined by the Administrator to be the rate at which deposits in the
relevant currency for delivery on the first day of such Interest Period in
Same
Day Funds in the approximate amount of the Eurocurrency Rate Loan being made,
continued or converted by Bank of America and with a term equivalent to such
Interest Period would be offered by Bank of America’s London Branch (or other
Bank of America branch or Affiliate) to major banks in the London or other
offshore interbank market for such currency at their request at approximately
11:00 a.m. (London time) two Business Days prior to the commencement of such
Interest Period.
“Eurocurrency
Rate Revolving Loan”
means a
Revolving Loan that is a Eurocurrency Rate Loan.
“Eurocurrency
Rate Loan”
means
all or any portion of any Loan made hereunder which bears interest at a rate
based on the Eurocurrency Rate. Eurocurrency Rate Loans may be denominated
in
Dollars or in an Alternative Currency. All Revolving Loans denominated in an
Alternative Currency must be Eurocurrency Rate Loans.
“Event
of Default”
and
“Events
of Default”
shall
have the respective meanings assigned to such terms in Section
7.1.
“Existing
Credit Agreement”
means
that certain Revolving Credit Agreement, dated as of November 13, 2000 among
the
Company, the Former Co-Administrative Agents, the Former Administrator, and
certain financial institutions, as the same shall be amended, supplemented
or
otherwise modified as of the date hereof.
“Existing
Letters of Credit”
means
(i) any letter of credit which has been previously issued by Scotia Capital
under the Existing Credit Agreement for the account of the Company or any of
its
Subsidiaries as set forth on Schedule
2(a)
and (ii)
any other letter of credit which has been previously issued by Scotia Capital
for the account of the Company or any of its Subsidiaries attached hereto on
Schedule
2(b).
“Facility
Fees”
has the
meaning assigned thereto in Section
1.12(a).
“FASB
Standards”
means
the standards established by the Financial Accounting Standards Board, in effect
from time to time.
“Federal
Funds Rate”
means,
for any day, the rate per annum equal to the weighted average of the rates
on
overnight Federal funds transactions with members of the
NYDOCS/1204419.6
72
Federal
Reserve System arranged by Federal funds brokers on such day, as published
by
the Federal Reserve Bank of New York on the Business Day next succeeding
such
day; provided,
that
(a) if such day is not a Business Day, the Federal Funds Rate for such day
shall
be such rate on such transactions on the next preceding Business Day as so
published on the next succeeding Business Day, and (b) if no such rate is
so
published on such next succeeding Business Day, the Federal Funds Rate for
such
day shall be the average rate (rounded upward, if necessary, to a whole multiple
of 1/100 of 1%) charged to Bank of America on such day on such transactions
as
determined by the Administrator.
“Fee”
and
“Fees”
means
any and all Facility Fees, Letter of Credit Fees, and all other fees payable
under Section
1.12.
“Foreign
Bank”
has the
meaning assigned to such term in Section
1.12(b).
“Foreign
Obligations”
means
all Obligations of Foreign Subsidiaries.
“Foreign
Subsidiary”
means
any Subsidiary that is organized under the laws of a jurisdiction other than
the
United States, a state thereof or the District of Columbia.
“Former
Administrator”
means
Fleet National Bank, in its capacity as administrator under the Existing Credit
Agreement.
“Former
Co-Administrative Agents”
means
each of Fleet National Bank and The Bank of Nova Scotia, in their respective
capacities as co-administrative agents under the Existing Credit
Agreement.
“F.R.S.
Board”
means
the Board of Governors of the Federal Reserve System or any successor
thereto.
“Fund”
means
any Person (other than a natural person) that is (or will be) engaged in making,
purchasing, holding or otherwise investing in commercial loans and similar
extensions of credit in the ordinary course of its business.
“GAAP”
means
generally accepted accounting principles, as in effect from time to time,
applied on a consistent basis.
“Governing
Documents”
means
as to any Person, the articles or certificate of incorporation and by-laws
or
other organizational documents of such Person, as amended.
“Governmental
Authority”
means
any nation or government, any state or other political subdivision thereof,
and
any entity exercising any executive, legislative, judicial, regulatory, or
administrative functions of or pertaining to government.
“Guarantee”
means,
in relation to any Person, any obligation, contingent or otherwise, of such
Person guaranteeing or having the economic effect of guaranteeing any
liabilities of any other Person in any manner, whether directly or
indirectly.
NYDOCS/1204419.6
73
“Hazardous
Substances”
means
any hazardous waste, substances or materials, any pollutants or contaminants,
any toxic substances, and any other substances regulated by any Environmental
Laws.
“Increase
Effective Date”
has the
meaning assigned to such term in Section
1.14(d).
“Indebtedness”
means,
in relation to any Person, without duplication: (a) all obligations of such
Person for borrowed money; (b) all obligations of such Person evidenced by
bonds, debentures or notes or similar instruments which (in the case of such
similar instruments only) are held by financial institutions; (c) all
obligations, contingent or otherwise, relative to the Stated Amount of (i)
all
Letters of Credit, and (ii) any other letters of credit (but only to the extent
that all such other letters of credit exceed $15,000,000), whether or not drawn,
issued for the account of such Person; (d) all obligations of such Person upon
which interest charges are customarily paid, excluding trade indebtedness
incurred in the ordinary course of business; (e) all obligations of such Person
issued or assumed as the deferred purchase price of property (other than trade
indebtedness incurred in the ordinary course of business); (f) all capitalized
lease obligations of such Person; (g) all obligations of such Person as an
account party in respect of bankers’ acceptances and (h) all obligations,
contingent or otherwise, of such Person relative to the Repurchase Obligations
(but only to the extent that such Repurchase Obligations, individually or in
the
aggregate, exceed $15,000,000).
“Indemnified
Party”
and
“Indemnified
Parties”
means
each of the Co-Administrative Agents, the Administrator, each of the Banks,
each
affiliate of any of the foregoing and the respective directors, officers, agents
and employees of each of the foregoing, and each other person controlling any
of
the foregoing within the meaning of either Section 15 of the Securities Act,
as
amended, or Section 20 of the Securities Exchange Act, as amended.
“Intangible
Assets”
means
any and all goodwill, patents, patent applications, trademarks, trade names,
trade styles, copyrights, all applications therefor, research and development
costs, tax refunds, and all other assets of the Company and its Subsidiaries
constituting intangible assets as determined by GAAP.
“Interest
Period”
means:
(a) Eurocurrency
Rate Loans.
With
respect to each Eurocurrency Rate Loan, the period commencing on the date such
Eurocurrency Rate Loan is disbursed or (in the case of any Eurocurrency Rate
Revolving Loan) converted to or continued as a Eurocurrency Rate Revolving
Loan)
and ending on the date 1, 2, 3, or 6 months thereafter, as the case may be,
as
selected by the Company in compliance with this Agreement and as set forth
in
the applicable Revolving Loan Notice.
(b) Bid
Loans.
With
respect to each Bid Loan, the period commencing on the date of such Bid Loan
and
ending not less than 14 days nor more than 180 days thereafter, as the Company
and the lender of such Bid Loan may agree, pursuant to Section
1.4.
NYDOCS/1204419.6
74
“Investment”
means,
as to any Person, any direct or indirect acquisition or investment by such
Person, whether by means of (a) the purchase or other acquisition of capital
stock or other securities of another Person, (b) a loan, advance or capital
contribution to, Guarantee or assumption of debt of, or purchase or other
acquisition of any other debt or equity participation or interest in, another
Person, including any partnership or joint venture interest in such other Person
and any arrangement pursuant to which the investor Guarantees Indebtedness
of
such other Person, or (c) the purchase or other acquisition (in one transaction
or a series of transactions) of assets of another Person that constitute a
business unit. For purposes of covenant compliance, the amount of any Investment
shall be the amount actually invested, without adjustment for subsequent
increases or decreases in the value of such Investment.
“ISP”
means,
with respect to any Letter of Credit, the “International Standby Practices 1998”
published by the Institute of International Banking Law & Practice (or such
later version thereof as may be in effect at the time of issuance).
“Issuer”
means
either of the Co-Administrative Agents, in its capacity as Issuer of the Letters
of Credit. At the request of either of the Co-Administrative Agents, another
Bank or an affiliate of either of the Co-Administrative Agents may issue one
or
more Letters of Credit hereunder; provided,
that
the prior written consent of the Company (which consent shall not be
unreasonably withheld or delayed) shall be required as to any such other Bank
and, if the debt rating of such affiliate is less than that of the applicable
Co-Administrative Agent, as to any such affiliate. The Company’s consent shall
be deemed to be reasonably withheld if the beneficiary of the Letter of Credit
declines to accept the Letter of Credit of such other Bank or such
affiliate.
“Issuer
Documents”
means
with respect to any Letter of Credit, the Letter of Credit Application, and
any
other document, agreement and instrument entered into by the Issuer and the
Company (or a Domestic Subsidiary Guarantor) or in favor of the Issuer and
relating to any such Letter of Credit.
“L/C
Advance”
means,
with respect to each Bank, such Bank’s funding of its participation in any L/C
Borrowing in accordance with its Commitment Percentage. All L/C Advances shall
be denominated in Dollars.
“L/C
Borrowing”
means
an extension of credit resulting from a drawing under any Letter of Credit
which
has not been reimbursed on the date when made or refinanced as a Revolving
Borrowing. All L/C Borrowings shall be denominated in Dollars.
“L/C
Credit Extension”
means,
with respect to any Letter of Credit, the issuance thereof or extension of
the
current expiry date thereof, or the increase in the amount thereof.
“L/C
Obligations”
means,
as at any date of determination, the aggregate amount available to be drawn
under all outstanding Letters of Credit plus
the
aggregate of all Unreimbursed Amounts, including all L/C Borrowings. For
purposes of computing the amount available to be drawn under any Letter of
Credit, the amount of such Letter of Credit shall be determined in accordance
with Section
9.6.
For all
purposes of this Agreement, if on any date of determination a Letter of Credit
has expired by its terms but any amount may still be drawn
NYDOCS/1204419.6
75
thereunder
by reason of the operation of Rule 3.14 of the ISP, such Letter of Credit
shall
be deemed to be “outstanding” in the amount so remaining available to be
drawn.
“Laws”
means,
collectively, all international, foreign, Federal, state and local statutes,
treaties, rules, guidelines, regulations, ordinances, codes and administrative
or judicial precedents or authorities, including the interpretation or
administration thereof by any Governmental Authority charged with the
enforcement, interpretation or administration thereof, and all applicable
administrative orders, directed duties, requests, licenses, authorizations
and
permits of, and agreements with, any Governmental Authority, in each case
whether or not having the force of law.
“letter
of credit”
means
each letter of credit issued for the account of the Company or any of its
Subsidiaries (other than the Letters of Credit).
“Letter
of Credit”
means
any and all standby letters of credit issued pursuant to this Agreement,
including all Existing Letters of Credit.
“Letter
of Credit Application”
means
an application and agreement for the issuance or amendment of a Letter of Credit
in the form from time to time in use by the Issuer.
“Letter
of Credit Expiration Date”
means
the day that is seven days prior to the Maturity Date then in effect (or, if
such day is not a Business Day, the next preceding Business Day).
“Letter
of Credit Fees”
has the
meaning assigned to such term in Section
1.12(c).
“Letter
of Credit Sublimit”
means
an amount equal to $100,000,000. The Letter of Credit Sublimit is part of,
and
not in addition to, the Aggregate Commitments.
“Liabilities”
means
any and all losses, claims, damages, liabilities or other costs or expenses
(including reasonable attorneys’ and other professionals’ fees and disbursements
as and when incurred by such Indemnified Party) to which an Indemnified Party
may become subject which arise out of or relate to or result from any
transaction, action or proceeding related to or connected with this Agreement
or
any other Credit Document, excluding those losses, claims, damages, liabilities
or other costs or expenses arising for the account of a particular Indemnified
Party by reason of the relevant Indemnified Party’s gross negligence, bad faith
or willful misconduct.
“Lien”
means
any mortgage, pledge, hypothecation, security interest, encumbrance, charge
or
lien (statutory or otherwise) in respect of an interest in property intended
to
secure, support or otherwise assure payment of an obligation.
“Loan”
or
“Loans”
means
any and all Revolving Loans, Bid Loans, and/or Swing Line Loans.
“Majority
Banks”
means
(a) as of any date on which any Commitments shall be in effect and shall not
have been terminated under the terms hereof, Banks whose aggregate Commitments
constitute greater than 50% of the Aggregate Commitments and (b) as of any
date
NYDOCS/1204419.6
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after
the
date on which all Commitments hereunder shall have been terminated, Banks
holding greater than 50% of the outstanding principal amount of the Loans
outstanding on such date.
“Material
Adverse Effect”
means
any of the following: (a) any materially adverse effect on the business, assets,
properties, operations, prospects or condition, financial or otherwise, of
the
Company and its Subsidiaries taken as a whole; (b) any material impairment
of
the ability of the Company to perform any of its obligations under this
Agreement, the Notes or any other Credit Document; (c) any impairment of the
ability of any Domestic Subsidiary Guarantor to perform any of its obligations
under any Domestic Subsidiary Guarantee which impairment would either (i) have
a
material adverse effect on the obligations of all the Domestic Subsidiary
Guarantors under the Domestic Subsidiary Guarantees, when taken together as
a
whole, or (ii) result in non-compliance with Section
4.10;
or
(d) any impairment of the validity or enforceability of this Agreement,
the
Notes or any Domestic Subsidiary Guarantee or any of the rights, remedies or
benefits to either of the Co-Administrative Agents, the Administrator or the
Banks under this Agreement, the Notes, any Domestic Subsidiary Guarantee or
any
other Credit Document.
“Maturity
Date”has
the
meaning assigned to such term in Section
1.1
of this
Agreement.
“Note”
or
“Notes”
means
the Revolving Notes, the Swing Line Notes, or the Competitive Bid Notes
individually or collectively, as appropriate.
“Obligations”
means
all indebtedness, obligations and liabilities existing on the date of this
Agreement or arising from time to time thereafter, whether direct or indirect,
joint or several, absolute or contingent, matured or unmatured, liquidated
or
unliquidated, secured or unsecured, arising by contract, operation of law or
otherwise, of the Company and each other Obligor to either of the
Co-Administrative Agents, the Administrator, the Issuer or any of the Banks
(a)
in respect of Loans or Bid Loans made to the Company by any of the Banks
pursuant to this Agreement, (b) in respect of any Letter of Credit issued
for the account of the Company or any Domestic Subsidiary Guarantor (including
in respect of any reimbursement obligation in respect thereof), or (c) arising
or incurred under or in respect of this Agreement, any of the Notes, any Letter
of Credit or any of the other Credit Documents.
“Obligor”
and
“Obligors”
means
the Company, each Designated Borrower, or any other Subsidiary of the Company
obligated under any Credit Document.
“Outstanding
Amount”
means
(a) with respect to any Loan on any date, the aggregate outstanding principal
amount thereof after giving effect to any borrowings or prepayments or
repayments of such Loan occurring on such date; and (b) with respect to any
L/C
Obligations on any date, the amount of such L/C Obligations on such date after
giving effect to any L/C Credit Extension occurring on such date and any other
changes in the aggregate amount of the L/C Obligations as of such date,
including as a result of any reimbursements by the Borrowers of Unreimbursed
Amounts.
“Overnight
Rate”
means,
for any day, (a) with respect to any amount denominated in Dollars, the greater
of (i) the Federal Funds Rate and (ii) an overnight rate determined by the
NYDOCS/1204419.6
77
Administrator,
the Issuer, or the Swing Line Bank, as the case may be, in accordance with
banking industry rules on interbank compensation, and (b) with respect to
any
amount denominated in an Alternative Currency, the rate of interest per annum
at
which overnight deposits in the applicable Alternative Currency, in an amount
approximately equal to the amount with respect to which such rate is being
determined, would be offered for such day by a branch or Affiliate of Bank
of
America in the applicable offshore interbank market for such currency to
major
banks in such interbank market.
“PBGC”
means
the Pension Benefit Guaranty Corporation.
“Permitted
2004 Restructuring Charges”
means
all non-cash sales and pre-tax charges against earnings taken by the Company,
in
accordance with GAAP, for the fiscal quarter ending September 30, 2004, in
respect of write-offs of accounts receivable and capitalized development and
other start-up costs relating to development and production of helicopter
fuselages and rotor blades for MD Helicopters, Inc., such charges not to exceed,
in the aggregate, $21,000,000.
“Person”
means
any individual, corporation, association, partnership, trust, limited liability
company, unincorporated association, business, or other legal entity, and any
government or any governmental agency or political subdivision
thereof
“Plan”
means
any employee benefit plan or other plan maintained for employees covered by
Title 10 of ERISA.
“Public
Senior Debt”
means
long-term, publicly held senior unsecured non-credit enhanced indebtedness
of
the Company (whether or not outstanding).
“Qualifying
Preferred Stock”
means
any issued and outstanding preferred stock of the Company with respect to which
no mandatory redemption or repurchase is or could be required of the Company
or
any of its Subsidiaries prior to the Maturity Date.
“Recapitalization”
means
the proposed recapitalization of the Company’s capital stock in accordance with
Recapitalization Agreement pursuant to which, subject to approval by the holders
of both the Class A Stock and the Class B Stock, (i) the Company’s Class A
Common Stock would be amended to be given full voting rights generally available
to common stock of Connecticut companies and remove the “Class A” designation
(after giving effect to such amendment, the “Common Stock”) and (ii) each
outstanding share of the Company’s Class B Common Stock would be reclassified at
the individual holder’s election (subject to a limitation applicable to the
shareholders that could limit their fully exercising the all stock election)
either into (A) 3.58 shares of Common Stock for each share of Class B Stock
or
(B) a combination of 1.84 shares of Common Stock and $27.10 in cash, with the
maximum amount of cash that would be needed if all Class B stockholders make
the
part cash/part stock election equal to approximately $18,100,000.
“Recapitalization
Agreement”
means
the Recapitalization Agreement, dated June 7, 2005, by and among the Company,
and certain members of the Kaman family.
NYDOCS/1204419.6
78
“Real
Estate”
means
any real estate owned or operated by the Company or any of its
Subsidiaries.
“Register”
has the
meaning assigned to such term in Section
10.5(d).
“Related
Parties”
means,
with respect to any Person, such Person’s Affiliates and the partners,
directors, officers, employees, agents and advisors of such Person and of such
Person’s Affiliates.
“Reportable
Event”
has the
meaning assigned to such term in Section 4034 of ERISA.
“Repurchase
Obligations”
means
any and all contractual agreements entered into in connection with the Company’s
or a Subsidiary of the Company’s sale of one or more K-Max helicopters pursuant
to which the Company or such Subsidiary is contractually obligated to repurchase
such helicopter(s) for a specified period of time following such sale upon
the
occurrence of certain specified events.
“Requirement
of Law”
means
as to any Person, (i) the Governing Documents of such Person, and (ii) any
law,
treaty, rule or regulation or determination of any arbitrator or a court or
other Governmental Authority, in each case applicable to or binding upon such
Person or any of its property or to which such Person or any of its property
is
subject.
“Revaluation
Date”
means
(a) with respect to any Loan, each of the following: (i) each date of a
Borrowing of a Eurocurrency Rate Loan denominated in an Alternative Currency,
(ii) each date of a continuation of a Eurocurrency Rate Loan denominated in
an
Alternative Currency pursuant to Section
1.3,
and
(iii) such additional dates as the Administrator shall determine or the Majority
Banks shall require; and (b) with respect to any Letter of Credit, each of
the
following: (i) in
the
case of the Existing Letters of Credit, as of the Effective Date, and (ii)
such
additional dates as the Administrator or the Issuer shall determine or the
Majority Banks shall require.
“Responsible
Officer”
means
the chief executive officer, president, chief financial officer, treasurer
or
assistant treasurer of a Obligor. Any document delivered hereunder that is
signed by a Responsible Officer of a Obligor shall be conclusively presumed
to
have been authorized by all necessary corporate, partnership and/or other action
on the part of such Obligor and such Responsible Officer shall be conclusively
presumed to have acted on behalf of such Obligor.
“Revolving
Borrowing”
means a
borrowing consisting of simultaneous Revolving Loans of the same Type and,
in
the case of Eurocurrency Rate Revolving Loans, having the same Interest Period
made by each of the Banks pursuant to Section
1.1(a).
“Revolving
Loan”
has the
meaning assigned to such term in Section
1.1(a)
of this
Agreement.
NYDOCS/1204419.6
79
“Revolving
Loan Notice”
means
(a) a Revolving Borrowing, (b) a conversion of Revolving Loans from one Type
to
the other, or (c) a continuation of Eurocurrency Rate Loans, pursuant to
Section
1.3(a)
which,
if in writing, shall be substantially in the form of Exhibit
A.
“Revolving
Note”
has the
meaning specified in Section
1.9.
“Same
Day Funds”
means
(a) with respect to disbursements and payments in Dollars, immediately available
funds, and (b) with respect to disbursements and payments in an Alternative
Currency, same day or other funds as may be reasonably determined by the
Administrator to be customary in the place of disbursement or payment for the
settlement of international banking transactions in the relevant Alternative
Currency.
“Scotia
Capital Fee Letter”
means
that letter dated as of July 7, 2005, between Scotia Capital and the Company
in
connection with this Agreement.
“S&P”
means
Standard & Poor’s Ratings Services.
“SEC”
means
the Securities and Exchange Commission.
“Securities
Act”
means
the Securities Act of 1933, as amended.
“Securities
Exchange Act”
means
the Securities Exchange Act of 1934, as amended.
“Senior
Debt”
means,
collectively, all obligations of the Company under or in respect of the Credit
Documents, including all such obligations in respect of principal, interest
(including interest accruing after any bankruptcy or insolvency proceeding
is
commenced by or against the Company, whether or not such interest is an allowed
claim in such proceeding), fees, costs, expenses or indemnities owing under
any
of the Credit Documents.
“Special
Notice Currency”
means
at any time an Alternative Currency, other than the currency of a country that
is a member of the Organization for Economic Cooperation and Development at
such
time located in North America or Europe.
“Spot
Rate”
for a
currency means the rate determined by the Administrator to be the rate quoted
by
Administrator as the spot rate for the purchase by the Administrator of such
currency with another currency through its principal foreign exchange trading
office at approximately 11:00 a.m. on the date two Business Days prior to the
date as of which the foreign exchange computation is made; provided, that
the
Administrator may obtain such spot rate from another financial institution
designated by the Administrator if the Administrator does not have as of the
date of determination a spot buying rate for any such currency.
“Stated
Amount”
of each
Letter of Credit or, if applicable, other letter of credit, means the total
Dollar amount then available to be drawn under such Letter of Credit or, if
applicable, other letter of credit.
“Subordinated
Debt”
means
(i) any Indebtedness of the Company under the Indenture, dated as of February
4,
1987, between the Company and Manufacturers Hanover
NYDOCS/1204419.6
80
Trust
Company, as trustee, relating to the $85,000,000 (subject to increase to
$95,000,000) principal amount of 6% Convertible Subordinated Debentures of
the
Company due 2012 and (ii) any Indebtedness of the Company not described in
the
foregoing clause (i)
which is
expressly subordinated to all Senior Debt on terms not materially less favorable
to the holders of Senior Debt than the terms of subordination of the
Indebtedness described in clause (i)
of this
definition.
“Subsidiary”
and
“Subsidiaries”
means
any corporation or corporations of which more than 50% of the outstanding shares
of stock of each class having ordinary voting power is at the time owned by
the
Company and/or by one or more Subsidiaries.
“Swing
Line”
means
the revolving credit facility made available by the Swing Line Bank pursuant
to
Section
1.6.
“Swing
Line Bank”
means
Bank of America in its capacity as provider of Swing Line Loans, or any
successor Swing Line Bank hereunder.
“Swing
Line Borrowing”
means a
borrowing of a Swing Line Loan pursuant to Section
1.6.
“Swing
Line Loan”
has the
meaning specified in Section
1.6(a).
“Swing
Line Loan Notice”
means a
notice of a Swing Line Borrowing pursuant to Section
1.6(b),
which,
if in writing, shall be substantially in the form of Exhibit
C.
“Swing
Line Note”
has the
meaning specified in Section
1.9.
“Swing
Line Sublimit”
means
an amount equal to the lesser of (a) $10,000,000 and (b) the Aggregate
Commitments. The Swing Line Sublimit is part of, and not in addition to, the
Aggregate Commitments.
“Termination
Date”
means
the date all the Obligations then due and payable have been paid in full and
all
the Commitments have terminated.
“Total
Capitalization”
means
the aggregate amount at any time of the Company’s Consolidated Net Worth plus
the Company’s Consolidated Total Indebtedness.
“Total
Outstandings”
means
the aggregate Outstanding Amount of all Loans and all L/C
Obligations.
“Type”
means,
as to any Loan, its nature as a Base Rate Loan, Eurocurrency Rate Loan or
Absolute Rate Loan.
“Unreimbursed
Amount”
has the
meaning specified in Section
1.5(d)(i).
ARTICLE
X MISCELLANEOUS
Section
10.1. Expenses.
Each of
the Borrowers jointly and severally agrees to pay all out-of-pocket expenses
of
each of the Co-Administrative Agents (including due diligence
NYDOCS/1204419.6
81
costs
and
expenses and reasonable fees and expenses of counsel to the Co-Administrative
Agents), the Administrator (including reasonable fees and expenses of counsel
to
the Administrator) and the Banks (including reasonable fees and expenses
of
counsel to the Banks) incurred in connection with: (i) the negotiation,
preparation, execution and delivery of this Agreement and each of the other
Credit Documents (including schedules and exhibits thereto), and any amendments,
waivers, consents, supplements or other modifications to this Agreement or
any
of the other Credit Documents as may from time to time be hereafter required,
whether or not the transactions contemplated hereby and thereby are consummated;
provided,
that
the Borrowers shall only be responsible for the out-of-pocket expenses of
each
of the Co-Administrative Agents in the case of this clause (i);
and/or
(ii) the collection of Obligations due hereunder, under the Notes, the Letters
of Credit or any of the other Credit Documents; and/or (iii) the defense,
protection, preservation, realization or enforcement of any of the rights
or
remedies of any of the Co-Administrative Agents, the Administrator or any
of the
Banks under any provisions of this Agreement, any of the Notes or under any
of
the other Credit Documents; and/or (iv) the syndication of the Loans; and/or
(v)
except to the extent such action, suit or proceeding arose as a result of
the
gross negligence, bad faith or willful misconduct of such Co-Administrative
Agent or the Administrator or such Bank, any action, suit or proceeding in
accordance with this Section
10.1
(whether
or not an Indemnified Party is a party or is subject thereto); provided,
that no
fees and expenses of counsel for the Banks (other than the Co-Administrative
Agents and the Administrator) shall be payable by the Company unless incurred
after an Event of Default has occurred.
Section
10.2. Prejudgment
Remedy Waiver; Other Waivers.
EACH
OF THE BORROWERS ACKNOWLEDGES THAT THE FINANCING EVIDENCED HEREBY IS A
COMMERCIAL TRANSACTION AND WAIVES ITS RIGHTS TO NOTICE AND HEARING UNDER CHAPTER
903A OF THE CONNECTICUT GENERAL STATUTES, OR AS OTHERWISE ALLOWED BY ANY STATE
OR FEDERAL LAW WITH RESPECT TO ANY PREJUDGMENT REMEDY WHICH ANY
CO-ADMINISTRATIVE AGENT, THE ADMINISTRATOR OR ANY BANK MAY DESIRE TO USE, AND
FURTHER WAIVES DILIGENCE, DEMAND, PRESENTMENT FOR PAYMENT, NOTICE OF NONPAYMENT,
PROTEST AND NOTICE OF ANY RENEWALS OR EXTENSIONS. THE COMPANY ACKNOWLEDGES
AND
RESERVES ITS RIGHT TO NOTICE AND A HEARING SUBSEQUENT TO THE ISSUANCE OF A
WRIT
FOR PREJUDGMENT REMEDY AS AFORESAID AND THE CO-ADMINISTRATIVE AGENTS, THE
ADMINISTRATOR AND THE BANKS ACKNOWLEDGE THE COMPANY’S RIGHT TO SAID HEARING
SUBSEQUENT TO THE ISSUANCE OF SAID WRIT.
Section
10.3. Covenants
to Survive; Binding Agreement.
All
covenants, agreements, warranties, representations and statements of any
Borrower made herein, in the Notes, in any of the other Credit Documents or
in
any certificates or other documents delivered by or on behalf of any Borrower
pursuant hereto shall be deemed to have been relied on by each of the
Co-Administrative Agents, the Issuer and each of the Banks notwithstanding
any
investigation heretofore or hereafter made by it, and shall survive the advances
of money made by any Bank to any Borrower hereunder, the delivery of the Notes,
the Letters of Credit and each of the other Credit Documents and all such
covenants, agreements, warranties and
NYDOCS/1204419.6
82
representations
shall be binding upon the Company and inure to the benefit of the Bank(s)
and
their respective successors and assigns, whether or not so
expressed.
Section
10.4. Amendments
and Waivers.
Neither
this Agreement, the Notes, the Letters of Credit or any of the other Credit
Documents, nor any term, covenant or condition hereof or thereof may be changed,
waived, discharged, modified or terminated except by a writing executed in
compliance with Section
8.6.
No
failure on the part of any of the Co-Administrative Agents, the Administrator,
the Issuer, or any of the Banks to exercise, and no delay in exercising, and
no
course of dealing with respect to, any right, remedy or power hereunder, under
any Note, any Letter of Credit, or under any other Credit Document shall
preclude any other or future exercise thereof, or the exercise of any other
right, remedy or power. No waiver shall extend to or affect any obligation
not
expressly waived.
Section
10.5. Successors
and Assigns.
(a) Successors
and Assigns Generally.
The
provisions of this Agreement shall be binding upon and inure to the benefit
of
the parties hereto and their respective successors and assigns permitted hereby,
except that no Obligor may assign or otherwise transfer any of its rights or
obligations hereunder without the prior written consent of the Co-Administrative
Agents and each Bank and no Bank may assign or otherwise transfer any of its
rights or obligations hereunder except (i) to an Eligible Assignee in accordance
with the provisions of subsection (b)
of this
Section, (ii) by way of participation in accordance with the provisions of
subsection (d)
of this
Section, or (iii) by way of pledge or assignment of a security interest subject
to the restrictions of subsection (f)
of this
Section (and any other attempted assignment or transfer by any party hereto
shall be null and void). Nothing in this Agreement, expressed or implied, shall
be construed to confer upon any Person (other than the parties hereto, their
respective successors and assigns permitted hereby, Participants to the extent
provided in subsection (d)
of this
Section and, to the extent expressly contemplated hereby, the Related Parties
of
each of the Co-Administrative Agents, the Administrator, the Issuer and the
Banks) any legal or equitable right, remedy or claim under or by reason of
this
Agreement.
(b) Assignments
by Banks.
Any
Bank may at any time assign to one or more Eligible Assignees all or a portion
of its rights and obligations under this Agreement (including all or a portion
of its Commitment and the Loans (including for purposes of this subsection
(b),
participations in L/C Obligations and in Swing Line Loans) at the time owing
to
it); provided,
that
(i) except
in
the case of an assignment of the entire remaining amount of the assigning Bank’s
Commitment and the Loans at the time owing to it or in the case of an assignment
to a Bank or an Affiliate of a Bank or an Approved Fund with respect to a Bank,
the aggregate amount of the Commitment (which for this purpose includes Loans
outstanding thereunder) or, if the Commitment is not then in effect, the
principal outstanding balance of the Loans of the assigning Bank subject to
each
such assignment, determined as of the date the Assignment and Assumption with
respect to such assignment is delivered to the Administrator or, if “Trade Date”
is specified in the Assignment and Assumption, as of the
NYDOCS/1204419.6
83
Trade
Date, shall not be less than $5,000,000 unless
each of the Administrator and, so long as no Event of Default has occurred
and
is continuing, the Company otherwise consents (each such consent not to be
unreasonably withheld or delayed); provided,
that
concurrent assignments to members of an Assignee Group and concurrent
assignments from members of an Assignee Group to a single Eligible Assignee
(or
to an Eligible Assignee and members of its Assignee Group) will be treated
as a
single assignment for purposes of determining whether such minimum amount has
been met;
(ii) each
partial assignment shall be made as an assignment of a proportionate part of
all
the assigning Bank’s rights and obligations under this Agreement with respect to
the Loans or the Commitment assigned, except that this clause (ii)
shall
not apply to rights in respect of Swing Line Loans or Bid Loans;
(iii) any
assignment of a Commitment must be approved by the Co-Administrative Agents,
the
Issuer and the Swing Line Bank (whether or not the proposed assignee would
otherwise qualify as an Eligible Assignee); and
(iv) the
parties to each assignment shall execute and deliver to the Administrator an
Assignment and Assumption, together with a processing and recordation fee in
the
amount of $2,500, and the Eligible Assignee, if it shall not be a Bank, shall
deliver to the Administrator an Administrative Questionnaire.
Subject
to acceptance and recording thereof by the Administrator pursuant to subsection
(c)
of this
Section, from and after the effective date specified in each Assignment and
Assumption, the Eligible Assignee thereunder shall be a party to this Agreement
and, to the extent of the interest assigned by such Assignment and Assumption,
have the rights and obligations of a Bank under this Agreement, and the
assigning Bank thereunder shall, to the extent of the interest assigned by
such
Assignment and Assumption, be released from its obligations under this Agreement
(and, in the case of an Assignment and Assumption covering all of the assigning
Bank’s rights and obligations under this Agreement, such Bank shall cease to be
a party hereto) but shall continue to be entitled to the benefits of
Sections
1.17
and
Section
8.5(c)
with
respect to facts and circumstances occurring prior to the effective date of
such
assignment. Upon request, each Borrower (at its expense) shall execute and
deliver a Note to the assignee Bank. Any assignment or transfer by a Bank of
rights or obligations under this Agreement that does not comply with this
subsection shall be treated for purposes of this Agreement as a sale by such
Bank of a participation in such rights and obligations in accordance with
subsection (d)
of this
Section.
(c) Register.
The
Administrator, acting solely for this purpose as an agent of the Borrowers,
shall maintain at the Administrator Funding Office a copy of each Assignment
and
Assumption delivered to it and a register for the recordation of the names
and
addresses of the Banks, and the Commitments of, and principal amounts of the
Loans and L/C Obligations owing to, each Bank pursuant to the terms hereof
from
time to time (the “Register”).
The
entries in the Register shall be conclusive, and the Borrowers, the
Administrator and the Co-Administrative Agents and the Banks may treat each
Person whose name is recorded in the Register pursuant to the terms hereof
as a
NYDOCS/▇▇▇▇▇▇▇.6
84
Bank
hereunder for all purposes of this Agreement, notwithstanding notice to the
contrary. The Register shall be available for inspection by each of the
Borrowers and the Issuer at any reasonable time and from time to time upon
reasonable prior notice. In addition, at any time that a request for a consent
for a material or substantive change to the Credit Documents is pending, any
Bank may request and receive from the Administrator a copy of the
Register.
(d) Participations.
Any
Bank may at any time, without the consent of, or notice to, any Borrower, the
Administrator or the Co-Administrative Agents, sell participations to any Person
(other than a natural person or the Company or any of the Company’s Affiliates
or Subsidiaries) (each, a “Participant”)
in all
or a portion of such Bank’s rights and/or obligations under this Agreement
(including all or a portion of its Commitment and/or the Loans (including such
Bank’s participations in L/C Obligations and/or Swing Line Loans) owing to it);
provided,
that
(i) such Bank’s obligations under this Agreement shall remain unchanged,
(ii) such Bank shall remain solely responsible to the other parties
hereto
for the performance of such obligations and (iii) the Borrowers, the
Administrator, the Co-Administrative Agents, the Banks and the Issuer shall
continue to deal solely and directly with such Bank in connection with such
Bank’s rights and obligations under this Agreement.
Any
agreement or instrument pursuant to which a Bank sells such a participation
shall provide that such Bank shall retain the sole right to enforce this
Agreement and to approve any amendment, modification or waiver of any provision
of this Agreement; provided,
that
such agreement or instrument may provide that such Bank will not, without the
consent of the Participant, agree to any amendment, waiver or other modification
described in the first proviso to Section
8.6
that
affects such Participant. Subject to subsection (e)
of this
Section, each Borrower agrees that each Participant shall be entitled to the
benefits of Sections
1.17
and
Section
1.18 to
the
same extent as if it were a Bank and had acquired its interest by assignment
pursuant to subsection (b)
of this
Section. To the extent permitted by law, each Participant also shall be entitled
to the benefits of Section 7.5 as
though
it were a Bank
(e) Limitation
upon Participant Rights.
A
Participant shall not be entitled to receive any greater payment under
Section
1.17 than
the
applicable Bank would have been entitled to receive with respect to the
participation sold to such Participant, unless the sale of the participation
to
such Participant is made with the Company’s prior written consent.
(f) Certain
Pledges.
Any
Bank may at any time pledge or assign a security interest in all or any portion
of its rights under this Agreement (including under its Note(s), if any) to
secure obligations of such Bank, including any pledge or assignment to secure
obligations to a Federal Reserve Bank; provided,
that no
such pledge or assignment shall release such Bank from any of its obligations
hereunder or substitute any such pledgee or assignee for such Bank as a party
hereto.
(g) Electronic
Execution of Assignments.
The
words “execution,”“signed,”“signature,” and words of like import in any
Assignment and Assumption shall be deemed to include electronic signatures
or
the keeping of records in electronic form, each
NYDOCS/1204419.6
85
of
which
shall be of the same legal effect, validity or enforceability as a manually
executed signature or the use of a paper-based recordkeeping system, as the
case
may be, to the extent and as provided for in any applicable law, including
the
Federal Electronic Signatures in Global and National Commerce Act, the New
York
State Electronic Signatures and Records Act, or any other similar state laws
based on the Uniform Electronic Transactions Act.
(h) Resignation
as Swing Line Bank after Assignment.
Notwithstanding anything to the contrary contained herein, if at any time Bank
of America assigns all of its Commitment and Loans pursuant to subsection
(b)
above,
Bank of America may, (i) upon thirty
(30)
days’
notice to the Company and the Banks, resign as Swing Line Bank. In the event
of
any such resignation as Swing Line Bank, the Company shall be entitled to
appoint from among the Banks a successor Swing Line Bank hereunder; provided,
that no
failure by the Company to appoint any such successor shall affect the
resignation of Bank of America as Swing Line Bank. If Bank of America resigns
as
Swing Line Bank, it shall retain all the rights of the Swing Line Bank provided
for hereunder with respect to Swing Line Loans made by it and outstanding as
of
the effective date of such resignation, including the right to require the
Banks
to make Base Rate Revolving Loans or fund risk participations in outstanding
Swing Line Loans pursuant to Section
1.6.
Upon
the appointment of a successor Swing Line Bank, (a) such successor shall succeed
to and become vested with all of the rights, powers, privileges and duties
of
the retiring Swing Line Bank.
Section
10.6. Notices.
Except
as otherwise permitted herein, all notices, requests, consents, demands and
other communications hereunder shall be in writing and shall be mailed by first
class mail or sent by overnight courier or delivered in hand or sent by
telegraph or facsimile transmission to the respective parties to this Agreement
as follows:
|
The
Company:
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Kaman
Corporation
▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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Attention:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Executive
Vice President &
Chief
Financial Officer
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Facsimile
No: (▇▇▇) ▇▇▇-▇▇▇▇
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The
Co-Administrative Agents:
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The
Bank of Nova Scotia
1
Liberty Plaza
Floors
22-26
▇▇▇
▇▇▇▇▇▇▇▇
▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
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Attention:
▇▇▇▇ ▇▇▇▇▇▇
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Facsimile
No: 212.225.5254
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Bank
of America, N.A.
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Mail
Stop: MA5-100-11-02
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Facsimile
No: 617.434.0474
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The
Administrator:
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Bank
of America, N.A.
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Mail
Stop: MA5-100-11-02
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|
Attention:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Facsimile
No: 617.434.0474
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|
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Each
of the Banks
and
Issuers:
|
As
set forth below such Bank’s or Issuer’s signature hereto.
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NYDOCS/1204419.6
86
Notices
hereunder shall be deemed to have been given when (a) if delivered by hand
or
telecopied or otherwise telecommunicated, to a responsible officer of the party
to which it is directed, at the time of receipt thereof by such officer, (b)
if
sent by registered or certified mail, postage prepaid, three days after the
date
when mailed, or (c) if sent by overnight mail or overnight courier service,
to
such a responsible officer, when received by such officer. With respect to
notices given by any Borrower to the Administrator pursuant to Section
1.3,
Section
1.4,
Section
1.6
or
Section
1.11
hereof,
such notices may be given by telephone if they are confirmed by a writing
received by the Administrator within one (1) Business Day after the giving
of
such telephonic notice and in any event prior to funding or conversion of the
borrowing pursuant to Section
1.3,
Section
1.4
or
Section
1.6
or
prepayment pursuant to Section
1.11.
Section
10.7. Headings;
Severability: Entire Agreement.
Section
and subsection headings have been inserted herein for convenience only and
shall
not be construed as part of this Agreement. Every provision of this Agreement,
the Notes and the other Credit Documents is intended to be severable; if any
term or provision of this Agreement, the Notes, the other Credit Documents,
or
any other document delivered in connection herewith or therewith shall be
invalid, illegal or unenforceable for any reason whatsoever, the validity,
legality and enforceability of the remaining provisions hereof or thereof shall
not in any way be affected or impaired thereby. All Exhibits
and
Schedules
to this
Agreement shall be annexed hereto and shall be deemed to be part of this
Agreement. This Agreement, the other Credit Documents and the Exhibits
and
Schedules
attached
hereto embody the entire Agreement and understanding between the Company, the
Banks, the Administrator and the Co-Administrative Agents and supersede all
prior agreements and understandings relating to the subject matter
hereof.
Section
10.8. Governing
Law.
This
Agreement and each other Credit Document shall be construed and enforceable
in
accordance with, and governed by, the laws of the State of New
York.
NYDOCS/1204419.6
87
Section
10.9. Counterparts.
This
Agreement and any amendment hereof may be executed in several counterparts
and
by each party on a separate counterpart, each of which when so executed and
delivered shall be an original, and all of which together shall constitute
one
instrument. In proving this Agreement it shall not be necessary to produce
or
account for more than one such counterpart signed by the party against whom
enforcement is sought.
Section
10.10. Waiver
of Jury Trial.
EACH
PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING
DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY
OTHER
CREDIT DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER
BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES
THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT
IT
AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT
AND
THE OTHER CREDIT DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION.
Section
10.11. Consent
to Jurisdiction.
For the
purposes of any action or proceeding involving this Agreement or any of the
Notes or any other Credit Document, each of the parties hereto on the date
hereof hereby expressly consents to the exclusive jurisdiction of any Federal
or
state court located in Connecticut or New York. Each party becoming a Bank
hereunder after the date hereof pursuant to an Assignment and Assumption shall,
in such Assignment and Assumption, consent to the exclusive jurisdiction of
any
Federal or state court located in Connecticut or New York.
Section
10.12. Effective
Date.
This
Agreement shall become effective among the parties hereto as of the Effective
Date.
Section
10.13. Guarantee.
The
Company hereby absolutely, unconditionally and irrevocably
(a) guarantees
the full and punctual payment when due, whether at stated maturity, by required
prepayment, declaration, acceleration, demand or otherwise, of all Obligations
of any other Obligor, including any Subsidiary for whose account a Letter of
Credit is issued, whether for principal, interest, fees, expenses or otherwise
(including all such amounts which would become due but for the operation of
the
automatic stay under Section 362(a) of the United States Bankruptcy Code, 11
U.S.C. §362(a), and the operation of Sections 502(b) and 506(b) of the United
States Bankruptcy Code, 11 U.S.C. §502(b) and §506(b)), and
(b) indemnifies
and holds harmless each Co-Administrative Agent, Bank, Administrator, Issuer
and
each holder of a Note (herein, a “Bank
Party”)
for
any and all costs and expenses (including reasonable attorney’s fees and
expenses) incurred by
NYDOCS/1204419.6
88
such
Bank
Party, in enforcing any rights under the guarantee provided for in this
Section
10.13
(the
“Guarantee”).
This
Guarantee constitutes a guaranty of payment when due and not of collection,
and
the Company specifically agrees that it shall not be necessary or required
that
any Bank Party exercise any right, assert any claim or demand or enforce any
remedy whatsoever against the Company or any other Obligor (or any other Person)
before or as a condition to the obligations of the Company
hereunder.]
Section
10.13.2. Acceleration
of Guarantee.
The
Company agrees that, in the event of the dissolution or insolvency of the
Company or any other Obligor (including any Subsidiary for whose account a
Letter of Credit has been issued), or the inability or failure of the Company
or
such other Obligor to pay debts as they become due, or an assignment by the
Company or such other Obligor for the benefit of creditors, or the commencement
of any case or proceeding in respect of the Company or such other Obligor under
any bankruptcy, insolvency or similar laws, and if such event shall occur at
a
time when any of the Obligations of the Company may not then be due and payable,
the Company will pay to the Bank Parties forthwith the full amount which would
be payable hereunder by the Company if all such Obligations were then due and
payable.
Section
10.13.3. Guarantee
absolute, etc.
This
Guarantee shall in all respects be a continuing, absolute, unconditional and
irrevocable guaranty of payment, and shall remain in full force and effect
until
all Obligations of the Company have been paid in full, all obligations of each
other Obligor under each Credit Document shall have been paid in full and all
Commitments shall have terminated. The Company guarantees that the Obligations
of each other Obligor (including any Subsidiary for whose account a Letter
of
Credit has been issued) will be paid strictly in accordance with the terms
of
the Credit Agreement, regardless of any law, regulation or order now or
hereafter in effect in any jurisdiction affecting any of such terms or the
rights of any Bank Party with respect thereto. The liability of the Company
under this Guarantee shall be absolute, unconditional and irrevocable
irrespective of:
(a) any
lack
of validity, legality or enforceability of any Domestic Subsidiary Guarantee,
any Letter of Credit or any other Credit Document;
(b) the
failure of any Bank Party
(i) to
assert
any claim or demand or to enforce any right or remedy against any other Obligor
or any other Person (including any other guarantor) under the provisions of
any
Domestic Subsidiary Guarantee, Letter of Credit or any other Credit Document
or
otherwise, or
(ii) to
exercise any right or remedy against any other guarantor of, or collateral
securing, any Obligations of any other Obligor;
(c) any
change in the time, manner or place of payment of, or in any other term of,
all
or any of the Obligations of any other Obligor, or any other extension,
compromise or renewal of any Obligation of any other Obligor;
NYDOCS/1204419.6
89
(d) any
reduction, limitation, impairment or termination of the Obligations of any
other
Obligor for any reason, including any claim of waiver, release, surrender,
alteration or compromise, and shall not be subject to any defense or setoff,
counterclaim, recoupment or termination whatsoever by reason of the invalidity,
illegality, nongenuineness, irregularity, compromise, unenforceability of,
or
any other event or occurrence affecting, the Obligations of any other Obligor
or
otherwise;
(e) any
amendment to, rescission, waiver, or other modification of, or any consent
to
departure from, any of the terms of any Domestic Subsidiary Guarantee, Letter
of
Credit or any other Credit Document;
(f) any
addition, exchange, release, surrender or non-perfection of any collateral,
or
any amendment to or waiver or release or addition of, or consent to departure
from, any other guaranty (including any other Domestic Subsidiary Guarantee),
held by any Bank Party securing any of the Obligations; or
(g) any
other
circumstance which might otherwise constitute a defense available to, or a
legal
or equitable discharge of, any other Obligor, any surety or any
guarantor.
Section
10.13.4. Reinstatement,
etc.
The
Company agrees that this Guarantee shall continue to be effective or be
reinstated, as the case may be, if at any time any payment (in whole or in
part)
of any of the Obligations is rescinded or must otherwise be restored by any
Bank
Party, upon the insolvency, bankruptcy or reorganization of any Obligor or
otherwise, all as though such payment had not been made.
Section
10.13.5. Waiver,
etc.
The
Company hereby waives promptness, diligence, notice of acceptance and any other
notice with respect to any of the Obligations of any Obligor and this Guarantee
and any requirement that either of the Co-Administrative Agents or any other
Bank Party protect, secure, perfect or insure any security interest or Lien,
or
any property subject thereto, or exhaust any right or take any action against
any other Obligor or any other Person (including any other guarantor) or entity
or any collateral securing the Obligations.
Section
10.13.6. Postponement
of Subrogation, etc.
The
Company will not exercise any rights which it may acquire by way of rights
of
subrogation under this Guarantee, by any payment made hereunder or otherwise,
until the prior payment, in full and in cash, of all Obligations of any Obligor
(including any Subsidiary for whose benefit a Letter of Credit was issued).
Any
amount paid to the Company on account of any such subrogation rights prior
to
the payment in full of all Obligations shall be held in trust for the benefit
of
the Bank Parties and shall immediately be paid to the Administrator and credited
and applied against the Obligations, whether matured or unmatured, in accordance
with the terms of the Credit Agreement; provided,
that
if
(a) the
Company has made payment to the Bank Parties of all or any part of the
Obligations, and
(b) all
Obligations have been paid in full and all Commitments have been permanently
terminated,
NYDOCS/1204419.6
90
each
Bank
Party agrees that, at the Company’s request, the Administrator, on behalf of the
Bank Parties, will execute and deliver to the Company appropriate documents
(without recourse and without representation or warranty) necessary to evidence
the transfer by subrogation to the Company of an interest in the Obligations
of
each other Obligor resulting from such payment by the Company. In furtherance
of
the foregoing, for so long as any Obligations or Commitments remain outstanding,
the Company shall refrain from taking any action or commencing any proceeding
against any other Obligor (or its successors or assigns, whether in connection
with a bankruptcy proceeding or otherwise) to recover any amounts in the respect
of payments made under this Guarantee to any Bank Party]
Section
10.14. USA
Patriot Act Notice.
Each
Bank that is subject to the Act (as hereinafter defined) and the
Co-Administrative Agents (each for itself and not on behalf of any Bank) hereby
notifies the Borrowers that pursuant to the requirements of the USA Patriot
Act
(Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the
“Act”),
it is
required to obtain, verify and record information that identifies the Borrowers,
which information includes the name and address of each Borrower and other
information that will allow such Bank or the Co-Administrative Agents, as
applicable, to identify such Borrower in accordance with the Act.
NYDOCS/1204419.6
91
IN
WITNESS WHEREOF, the parties hereto have caused this REVOLVING CREDIT AGREEMENT
to be executed by their duly authorized officers as of the date first written
above.
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KAMAN
CORPORATION
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By:
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/s/ ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇
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Name:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title:
Executive Vice President
CFO
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NYDOCS/1204419.6
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THE
BANK OF NOVA SCOTIA,
as
a Co-Administrative Agent
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By:
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/s/ ▇▇▇▇
▇. ▇▇▇▇▇▇
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Name:
▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title:
Managing Director
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NYDOCS/1204419.6
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BANK
OF AMERICA, N.A.
as
a Co-Administrative Agent and the Administrator
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By:
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/s/ ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇
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Name:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title:
Assistant Vice President
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NYDOCS/1204419.6
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BANKS
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THE
BANK OF NOVA SCOTIA,
as
a Bank and as an Issuer
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By:
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/s/ ▇▇▇▇
▇. ▇▇▇▇▇▇
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Name:
▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title:
Managing Director
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NYDOCS/1204419.6
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BANK
OF AMERICA, N.A.
as
a Bank and as an Issuer
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By:
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/s/ ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇
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Name:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Title:
Managing Director
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NYDOCS/1204419.6
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CITIBANK,
N.A.,
as
a Bank
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By:
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/s/ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
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Name:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Title:
Vice President
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NYDOCS/1204419.6
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JPMORGAN
CHASE BANK, N.A.,
as
Syndication Agent and a Bank
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By:
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/s/ ▇▇▇▇▇
▇. ▇▇▇▇▇▇
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Name:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title:
Vice President
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NYDOCS/1204419.6
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KEYBANK
NATIONAL ASSOCIATION,
as
Documentation Agent and a Bank
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By:
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/s/ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇
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Name:
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Title:
Vice President
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NYDOCS/1204419.6
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▇▇▇▇▇▇▇
BANK NATIONAL ASSOCIATION,
as
a Bank
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By:
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/s/ ▇▇▇▇▇▇
▇. ▇▇▇▇▇, ▇▇.
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Name:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
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Title:
Senior Vice President
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NYDOCS/1204419.6
KAMAN
CORPORATION
Table
of Contents
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PAGE
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|
ARTICLE
I
|
THE
LOANS
|
1
|
|
|
Section
1.1.
|
The
Revolving Loans
|
1
|
|
|
Section
1.2.
|
Mandatory
Reduction of Commitments; Optional Termination or Reduction
of
Commitments; Termination of Commitments
|
2
|
|
|
Section
1.3.
|
Borrowings,
Conversions and Continuations of Revolving Loans
|
3
|
|
|
Section
1.4.
|
Bid
Loans
|
5
|
|
|
Section
1.5.
|
Letters
of Credit
|
8
|
|
|
Section
1.6.
|
Swing
Line Loans
|
16
|
|
|
Section
1.7.
|
Interest
|
19
|
|
|
Section
1.8.
|
Repayments
and Prepayments of Principal of Loans and Letters of Credit;
Pro Rata
Treatment; Application of Prepayments
|
21
|
|
|
Section
1.9.
|
Evidence
of Debt
|
23
|
|
|
Section
1.10.
|
Payments
and Computations
|
23
|
|
|
Section
1.11.
|
Payments
to be Free of Deductions
|
24
|
|
|
Section
1.12.
|
Fees
|
26
|
|
|
Section
1.13.
|
Designated
Borrowers
|
27
|
|
|
Section
1.14.
|
Increase
in Commitments
|
28
|
|
|
Section
1.15.
|
Use
of Proceeds
|
30
|
|
|
Section
1.16.
|
Illegality
|
30
|
|
|
Section
1.17.
|
Increased
Costs; Capital Adequacy; Suspensions of Eurocurrency Rate
Loans
|
30
|
|
|
Section
1.18.
|
Certain
Indemnities
|
31
|
|
|
Section
1.19.
|
Bank
Wires to the Company
|
32
|
|
|
Section
1.20.
|
Administrator
or Bank Certificate
|
32
|
|
|
Section
1.21.
|
Interest
Limitation
|
33
|
|
|
ARTICLE
II
|
REPRESENTATIONS
AND WARRANTIES
|
33
|
|
|
Section
2.1.
|
Due
Organization; Good Standing; Qualification
|
33
|
|
|
Section
2.2.
|
Due
Authorization; No Conflicts
|
33
|
|
|
Section
2.3.
|
Binding
Agreements
|
34
|
|
|
Section
2.4.
|
Subsidiaries;
Maintenance of Domestic Subsidiary Guarantee
|
34
|
|
|
Section
2.5.
|
No
Defaults
|
34
|
|
|
Section
2.6.
|
Financial
Statements
|
34
|
|
|
Section
2.7.
|
No
Material Adverse Changes
|
35
|
|
|
Section
2.8.
|
No
Material Litigation
|
35
|
|
|
Section
2.9.
|
True
Copies of Governing Documents
|
35
|
|
|
Section
2.10.
|
Compliance
with Environmental Laws
|
35
|
|
|
Section
2.11.
|
Liens
|
35
|
|
|
Section
2.12.
|
Compliance
With ERISA
|
35
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|
|
Section
2.13.
|
Existing
Credit Agreement
|
35
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|
|
Section
2.14.
|
Ownership
of Properties
|
35
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|
|
Section
2.15.
|
Taxes
|
35
|
|
|
Section
2.16.
|
Regulations
U and X
|
36
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|
|
Section
2.17.
|
Investment
Company Act; Public Utility Holding Company Act
|
36
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|
|
Section
2.18.
|
Accuracy
of Information
|
36
|
|
|
Section
2.19.
|
Use
of Proceeds
|
36
|
|
|
Section
2.20.
|
Compliance
with Laws
|
36
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|
|
Section
2.21.
|
Representations
as to Foreign Subsidiaries
|
36
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ARTICLE
III
|
CONDITIONS
TO EFFECTIVENESS AND CONDITIONS OF LENDING
|
37
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|
|
Section
3.1.
|
Conditions
of Initial Credit Extension
|
37
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|
Section
3.2.
|
Conditions
of Each Credit Extension
|
39
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ARTICLE
IV
|
AFFIRMATIVE
COVENANTS
|
39
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|
Section
4.1.
|
Financial
Statements; Notice of Events of Default
|
39
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|
Section
4.2.
|
Securities
Regulation Compliance Reports
|
40
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|
Section
4.3.
|
Insurance
|
40
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|
|
Section
4.4.
|
Tax
and Other Liens
|
41
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|
Section
4.5.
|
Litigation
|
41
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Section
4.6.
|
Conduct
of Business
|
41
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Section
4.7.
|
Pension
Plans
|
42
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Section
4.8.
|
Records
and Accounts
|
42
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Section
4.9.
|
Inspection
|
42
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|
|
Section
4.10.
|
Domestic
Subsidiary Guarantees
|
42
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|
|
Section
4.11.
|
Further
Assurances
|
42
|
|
|
Section
4.12.
|
Payment
of Obligations
|
42
|
|
|
Section
4.13.
|
Compliance
with Laws
|
43
|
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|
ARTICLE
V
|
NEGATIVE
COVENANTS
|
43
|
|
|
Section
5.1.
|
Liens
|
43
|
|
|
Section
5.2.
|
Limitation
on Indebtedness
|
44
|
|
|
Section
5.3.
|
Contingent
Liabilities
|
44
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|
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Section
5.4.
|
Consolidation
or Merger
|
45
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|
Section
5.5.
|
Limitation
on Certain Other Fundamental Changes
|
45
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Section
5.6.
|
Sale
of Assets
|
45
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Section
5.7.
|
Affiliate
Transactions
|
47
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Section
5.8.
|
Certain
Restrictive Agreements
|
47
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|
|
Section
5.9.
|
Compliance
With Environmental Laws
|
47
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|
|
Section
5.10.
|
Limitation
on Investments
|
47
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|
|
Section
5.11.
|
Limitation
on Acquisitions
|
47
|
|
|
Section
5.12.
|
Fiscal
Year
|
48
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|
|
Section
5.13.
|
Limitations
on Transfers to Foreign Subsidiaries
|
48
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|
ARTICLE
VI
|
FINANCIAL
COVENANTS
|
48
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|
Section
6.1.
|
Fixed
Charge Coverage Ratio
|
48
|
|
|
Section
6.3.
|
Consolidated
Accounts Receivable and Inventory to Consolidated Total Indebtedness
Ratio
|
48
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|
|
ARTICLE
VII
|
EVENTS
OF DEFAULT; CERTAIN REMEDIES
|
49
|
|
|
Section
7.1.
|
Events
of Default
|
49
|
|
|
Section
7.2.
|
Acceleration
of Obligations
|
50
|
|
|
Section
7.3.
|
Termination
of Commitments; Exercise of Other Remedies
|
51
|
|
|
Section
7.4.
|
No
Implied Waivers; Rights Cumulative
|
51
|
|
|
Section
7.5.
|
Set-Off
|
51
|
|
|
ARTICLE
VIII
|
THE
CO-ADMINISTRATIVE AGENTS AND THE ADMINISTRATOR
|
52
|
|
|
Section
8.1.
|
Authorization
|
52
|
|
|
Section
8.2.
|
No
Liability
|
53
|
|
|
Section
8.3.
|
Conditions
of Acting as Administrator and of Accepting Appointment as
a
Co-Administrative Agent
|
53
|
|
|
Section
8.4.
|
Co-Administrative
Agents; Administrator; Documentation Agent
|
54
|
|
|
Section
8.5.
|
Payments
Generally; Administrator’s Clawback.
|
54
|
|
|
Section
8.6.
|
Modification
of this Agreement, the Notes and the Letters of Credit and
each of the
other Credit Documents; Waivers and Consents
|
56
|
|
|
Section
8.7.
|
Costs
of Co-Administrative Agents; Indemnification
|
57
|
|
|
Section
8.8.
|
Non-Reliance
on Co-Administrative Agents and the Administrator;
Assignment
|
58
|
|
|
Section
8.9.
|
Successor
Administrator
|
58
|
|
|
Section
8.10.
|
Action
by the Administrator
|
59
|
|
|
Section
8.11.
|
Substitution
of Banks
|
59
|
|
|
ARTICLE
IX
|
DEFINITIONS
|
60
|
|
|
Section
9.1.
|
Accounting
Terms, Changes in GAAP or FASB Standards; Rules of
Interpretation
|
60
|
|
|
Section
9.2.
|
Exchange
Rates; Currency Equivalents
|
61
|
|
|
Section
9.3.
|
Additional
Alternative Currencies
|
61
|
|
|
Section
9.4.
|
Change
of Currency
|
62
|
|
|
Section
9.5.
|
Times
of Day
|
62
|
|
|
Section
9.6.
|
Letter
of Credit Amounts
|
62
|
|
|
Section
9.7.
|
Other
Definitions
|
62
|
|
|
ARTICLE
X
|
MISCELLANEOUS
|
82
|
|
|
Section
10.1.
|
Expenses
|
82
|
|
|
Section
10.2.
|
Prejudgment
Remedy Waiver; Other Waivers
|
82
|
|
|
Section
10.3.
|
Covenants
to Survive; Binding Agreement
|
82
|
|
|
Section
10.4.
|
Amendments
and Waivers
|
83
|
|
|
Section
10.5.
|
Successors
and Assigns
|
83
|
|
|
Section
10.6.
|
Notices
|
86
|
|
|
Section
10.7.
|
Headings;
Severability: Entire Agreement
|
87
|
|
|
Section
10.8.
|
Governing
Law
|
88
|
|
|
Section
10.9.
|
Counterparts
|
88
|
|
|
Section
10.10.
|
Waiver
of Jury Trial
|
88
|
|
|
Section
10.11.
|
Consent
to Jurisdiction
|
88
|
|
|
Section
10.12.
|
Effective
Date
|
88
|
|
|
Section
10.13.
|
Guarantee
|
88
|
|
|
Section
10.13.2.
|
Acceleration
of Guarantee
|
89
|
|
|
Section
10.13.3.
|
Guarantee
absolute, etc
|
89
|
|
|
Section
10.13.4.
|
Reinstatement,
etc
|
90
|
|
|
Section
10.13.5.
|
Waiver,
etc
|
90
|
|
|
Section
10.13.6.
|
Postponement
of Subrogation, etc
|
90
|
|
|
Section
10.14.
|
USA
Patriot Act Notice
|
91
|
|
| Schedule 1.1 | Commitments |
| Schedule 2(a) | Existing Letters of Credit issued by Scotia Capital under the Existing Credit Agreement |
| Schedule 2(b) | Other Existing Letters of Credit |
| Exhibit A - | Form of Revolving Loan Notice |
| Exhibit B-1 - | Form of Bid Request |
| Exhibit B-2 - | Form of Competitive Bid |
| Exhibit C - | Form of Swing Line Loan Notice |
| Exhibit D-1 - | Form of Revolving Note |
| Exhibit D-2 - | Form of Swing Line Note |
| Exhibit D-3 | Form of Competitive Bid Note |
| Exhibit E - | Form of Designated Borrower Request and Assumption Agreement |
| Exhibit F - | Form of Designated Borrowing Notice |
| Exhibit G - | Form of Compliance Certificate |
| Exhibit H - | Form of Assignment and Assumption |
| Exhibit I - | Form of Domestic Subsidiary Guarantee |