U.S. $250,000,000
REVOLVING CREDIT AGREEMENT
dated as of January 29, 1996
among
KAMAN CORPORATION,
as the Company,
VARIOUS FINANCIAL INSTITUTIONS NAMED HEREIN,
as the Banks,
and
THE BANK OF NOVA SCOTIA
and
FLEET NATIONAL BANK OF CONNECTICUT,
as the Co-Administrative Agents
for the Banks
KAMAN CORPORATION
U.S. $250,000,000
REVOLVING CREDIT AGREEMENT
TABLE OF CONTENTS
Page
ARTICLE I
THE LOANS
Section 1.1. Revolving Credit Commitments.....................2
Section 1.2. Mandatory Reduction of Commitments; Optional
Termination or Reduction of Commitments;
Termination of Commitments.....................3
Section 1.3. Making and Funding Revolving
Credit Loans...................................4
Section 1.4. Bid Auction Advances.............................5
Section 1.5. Renewal or Conversion of Loans...................8
Section 1.6. Interest.........................................9
Section 1.7. Interest Periods................................10
Section 1.8. Repayments and Prepayments of Principal of
Loans; Pro Rata Treatment; Application of
Prepayments...................................10
Section 1.9. Payments and Computations.......................12
Section 1.10. Payments to be Free of Deductions...............13
Section 1.11. Fees............................................15
Section 1.12. Use of Proceeds.................................16
Section 1.13. Illegality......................................16
Section 1.14. Increased Costs; Capital Adequacy;
Suspensions of Eurodollar Loans...............16
Section 1.15. Certain Indemnities.............................18
Section 1.16. Bank Wires to the Company.......................19
Section 1.17. Administrator or Bank Certificate...............19
Section 1.18. Interest Limitation.............................19
Page -i-
ARTICLE II
REPRESENTATIONS AND WARRANTIES
Section 2.1. Due Organization; Good Standing;
Qualification.................................20
Section 2.2. Due Authorization; No Conflicts.................21
Section 2.3. Binding Agreements..............................21
Section 2.4. Subsidiaries; Maintenance of
Subsidiary Guarantee..........................22
Section 2.5. No Defaults.....................................22
Section 2.6. Financial Statements............................22
Section 2.7. No Material Adverse Changes.....................23
Section 2.8. No Material Litigation..........................23
Section 2.9. True Copies of Governing Documents..............23
Section 2.10. Compliance with Environmental Laws..............23
Section 2.11. Liens...........................................23
Section 2.12. Compliance With ERISA...........................23
Section 2.13. Existing Credit Agreements......................24
Section 2.14. Ownership of Properties.........................24
Section 2.15. Taxes...........................................24
Section 2.16. Regulations G, U and X..........................24
Section 2.17. Investment Company Act; Public Utility
Holding Company Act...........................24
Section 2.18. Accuracy of Information.........................25
ARTICLE III
CONDITIONS OF LENDING
Section 3.1. Conditions of Initial Loans.....................25
Section 3.2. Conditions of Each Loan and Bid
Auction Advance...............................27
ARTICLE IV
AFFIRMATIVE COVENANTS
Section 4.1. Financial Statements; Notice of
Events of Default.............................28
Section 4.2. Securities Regulation Compliance Reports........29
Section 4.3. Insurance.......................................29
Section 4.4. Tax and Other Liens.............................29
Section 4.5. Litigation......................................30
Section 4.6. Conduct of Business.............................30
Section 4.7. Pension Plans...................................31
Section 4.8. Records and Accounts............................31
Section 4.9. Inspection......................................31
Section 4.10. Subsidiary Guarantees...........................32
Section 4.11. Further Assurances..............................32
Page -ii-
ARTICLE V
NEGATIVE COVENANTS
Section 5.1. Liens...........................................33
Section 5.2. Limitation on Indebtedness......................34
Section 5.3. Contingent Liabilities..........................34
Section 5.4. Consolidation or Merger.........................35
Section 5.5. Limitation on Certain Other
Fundamental Changes...........................36
Section 5.6. Sale of Assets..................................36
Section 5.7. Affiliate Transactions..........................37
Section 5.8. Certain Restrictive Agreements..................38
Section 5.9. Compliance With Environmental Laws..............38
ARTICLE VI
FINANCIAL COVENANTS
Section 6.1. Consolidated Net Worth..........................38
Section 6.2. Fixed Charge Coverage Ratio.....................38
Section 6.3. Consolidated Total Indebtedness
to Total Capitalization.......................39
ARTICLE VII
EVENTS OF DEFAULT; CERTAIN REMEDIES
Section 7.1. Events of Default...............................39
Section 7.2. Acceleration of Obligations.....................40
Section 7.3. Termination of Commitments;
Exercise of Other Remedies....................41
Section 7.4. No Implied Waivers; Rights Cumulative...........42
Section 7.5. Set-Off.........................................42
ARTICLE VIII
THE CO-ADMINISTRATIVE AGENTS
AND THE ADMINISTRATOR
Section 8.1. Authorization...................................43
Section 8.2. No Liability....................................44
Section 8.3. Conditions of Acting as Administrator
and of Accepting Appointment as a
Co-Administrative Agent.......................44
Section 8.4. Co-Administrative Agents........................45
Section 8.5. Payments........................................46
Section 8.6. Holders of Notes................................46
Section 8.7. Modification of this Agreement
and the Notes and each of the other
Credit Documents; Waivers and Consents........47
Page -iii-
Section 8.8. Costs of Co-Administrative Agents;
Indemnification...............................48
Section 8.9. Non-Reliance on Co-Administrative Agents
and the Administrator; Assignment.............49
Section 8.10. Successor Administrator.........................49
Section 8.11. Action by the Administrator.....................50
Section 8.12. Substitution of Banks...........................50
ARTICLE IX
DEFINITIONS
Section 9.1. Accounting Terms, Changes in GAAP
or FASB Standards.............................52
Section 9.2. Other Definitions...............................52
ARTICLE X
MISCELLANEOUS
Section 10.1. Expenses........................................64
Section 10.2. Prejudgment Remedy Waiver;
Other Waivers.................................64
Section 10.3. Covenants to Survive; Binding Agreement.........65
Section 10.4. Amendments and Waivers..........................65
Section 10.5. Transfer of Bank's Interest.....................66
Section 10.6. Notices.........................................70
Section 10.7. Headings; Severability: Entire Agreement........71
Section 10.8. Governing Law...................................71
Section 10.9. Counterparts....................................71
Section 10.10. Waiver of Jury Trial............................72
Section 10.11. Consent to Jurisdiction.........................72
Section 10.12. Effective Date..................................72
EXHIBIT A Form of Revolving Credit Note
EXHIBIT B Form of Bid Auction Note
EXHIBIT C Form of Revolving Credit Election Notice
EXHIBIT D Form of Bid Auction Election Notice
EXHIBIT E Form of Bid Auction Offer
EXHIBIT F Form of Bid Auction Acceptance
EXHIBIT G Form of Compliance Certificate
EXHIBIT H Form of Assignment and Acceptance Agreement
EXHIBIT I Form of Subsidiary Guarantee
EXHIBIT J Form of Opinion of Counsel to the Company
EXHIBIT K Form of Opinion of Special Counsel to the
Co-Administrative Agents
Page -iv-
KAMAN CORPORATION
U.S. $250,000,000
REVOLVING CREDIT AGREEMENT
As of January 29, 1996
REVOLVING CREDIT AGREEMENT dated as of January 29, 1996 among
KAMAN CORPORATION, a Connecticut corporation (the "Company"), the
various financial institutions as are or may become parties hereto
(referred to herein individually as a "Bank" or collectively as the
"Banks"), and THE BANK OF NOVA SCOTIA ("Scotiabank") and FLEET
NATIONAL BANK OF CONNECTICUT ("Fleet") as the co-administrative
agents (individually, a "Co-Administrative Agent" and collectively,
the "Co-Administrative Agents") for the Banks.
WHEREAS, the Company is currently engaged directly and through
its various Subsidiaries in the business of manufacturing and
distributing aerospace, industrial and musical products and
developing technologies which serve defense, industrial and
commercial markets;
WHEREAS, the Company desires to obtain Commitments (such term,
together with other capitalized terms used herein, having the
meanings provided in Section 9.1) from the Banks pursuant to which
Revolving Credit Loans, in a maximum aggregate principal amount at
any one time outstanding not to exceed the Total Commitment, will
be made to the Company from time to time prior to the Termination
Date;
WHEREAS, the Company also desires the Banks to provide a
procedure pursuant to which the Company may invite the Banks to bid
on an uncommitted basis on short-term borrowings by the Company;
WHEREAS, each of the Banks is willing, on the terms and subject
to the conditions hereinafter set forth (including Article III), to
extend such Commitments and make such Loans to the Company and
provide such a procedure; and
WHEREAS, the proceeds of such borrowings will be used to
refinance Indebtedness of the Company outstanding under the
Existing Credit Facilities and for the Company's general corporate
purposes;
NOW, THEREFORE, the parties hereto agree, as of the Effective
Date (as hereinafter defined), as follows:
Page 1
ARTICLE I
THE LOANS
Section 1.1. Revolving Credit Commitments. Subject to the
terms and conditions contained in this Agreement, each Bank agrees
(severally and not jointly) to make loans (the "Revolving Credit
Loans" and, individually, a "Revolving Credit Loan") to the Company
from time to time prior to January 29, 2001 (the "Maturity Date")
in principal amounts not exceeding at any one time outstanding for
any of the Banks the amount set forth opposite such Bank's name
below, as such amounts may be adjusted from time to time pursuant
to Section 1.2 or 10.4 hereof:
BANK COMMITMENT PERCENTAGE OF
TOTAL COMMITMENT
- -----------------------------------------------------------------
THE BANK OF NOVA SCOTIA $37,500,000 15.000000%
FLEET NATIONAL BANK
OF CONNECTICUT $37,500,000 15.000000%
NATIONSBANK, N.A. $27,500,000 11.000000%
THE SUMITOMO BANK, LIMITED,
NEW YORK BRANCH $27,500,000 11.000000%
ABN AMRO BANK N.V.,
BOSTON BRANCH $18,750,000 7.500000%
THE FIRST NATIONAL
BANK OF BOSTON $18,750,000 7.500000%
DEUTSCHE BANK AG, NEW YORK
AND/OR CAYMAN ISLANDS
BRANCHES $17,500,000 7.000000%
FIRST NATIONAL BANK
OF CHICAGO $17,500,000 7.000000%
MELLON BANK, N.A. $17,500,000 7.000000%
WACHOVIA BANK OF
GEORGIA, N.A. $17,500,000 7.000000%
FIRST UNION NATIONAL
BANK OF NORTH CAROLINA $12,500,000 5.000000%
- --------------------- ----------- ----------
Total Commitment $250,000,000 100.000000%
Page 2
Such amounts, as they may be adjusted from time to time as
hereinafter provided, are herein called individually a "Commitment"
and collectively either the "Commitments" or the "Total
Commitment". Each Revolving Credit Loan shall be either a Domestic
Loan or a Eurodollar Loan, as the Company may elect, in each case
subject to the provisions of this Agreement. Although the Total
Commitment initially equals $250,000,000 in the aggregate (and
shall not exceed $250,000,000 in the aggregate even though the
principal indebtedness to a Bank may, from time to time, exceed
such Bank's Commitment as a result of one or more Bid Auction
Advances), it is understood that each Bank's portion of the Total
Commitment is a several obligation and not a joint obligation. No
Bank shall be required to make any Revolving Credit Loan to the
Company after such Bank's Commitment shall have terminated. No
Bank shall be responsible to the Company, either Co-Administrative
Agent, the Administrator or the other Banks for the obligations or
Commitments of any other Bank. Neither of the Co-Administrative
Agents nor the Administrator shall be responsible to the Company
for the obligations or Commitments of any of the Banks.
Section 1.2. Mandatory Reduction of Commitments; Optional
Termination or Reduction of Commitments; Termination of
Commitments.
(a) Mandatory Reduction of Commitments. The Total
Commitment and each of the Commitments shall be irrevocably and
permanently reduced in connection with certain sales of assets
described in Section 5.6.
(b) Optional Termination or Reduction of Commitments. At the
Company's option and upon three (3) Business Days' prior written
notice to the Administrator, the Company, without premium or
penalty, may permanently: (a) terminate the Total Commitment upon
payment in full of the Notes together with all accrued interest
thereon to the date of such payment, and all Fees and other amounts
then due the Banks hereunder and thereunder; or (b) reduce pro rata
the Total Commitment of the Banks by an amount specified in such
notice in integral multiples of $10,000,000 upon pro rata
prepayment to each Bank of the outstanding principal amount of the
Revolving Credit Note of such Bank in excess of the amount of the
reduced Commitment, if any, of such Bank together with accrued
interest on the amount so paid to the date of such payment;
provided, that if the termination or reduction of any Commitment
pursuant to this clause (b) requires the payment of a Eurodollar
Page 3
Loan or Bid Auction Advance, the termination or reduction of such
Commitment may be made only on the last Business Day of the
Interest Period applicable to such Eurodollar Loan or Bid Auction
Advance. If any prepayment of a Eurodollar Loan or Bid Auction
Advance is required or permitted by a Bank on a date other than the
last Business Day of the Interest Period applicable thereto, the
Company shall indemnify the Bank receiving any such prepayment in
accordance with Section 1.15.
(c) Termination of Commitments. The Commitments of the
Banks to make Revolving Credit Loans shall terminate on the
Maturity Date, or such earlier date as such Commitments may be
terminated pursuant to the provisions of this Section 1.2 or
Section 7.3.
Section 1.3. Making and Funding Revolving Credit Loans.
(a) Procedures for Revolving Credit Loans. When the Company
desires to borrow Revolving Credit Loans, or to select an interest
rate option for an Interest Period for Revolving Credit Loans, the
procedures set forth in this Section 1.3 shall apply. The Company
shall give the Administrator at least three (3) Business Days'
prior written notice in the case of a Eurodollar Loan, and notice
on the same date in the case of a Domestic Loan (and the
Administrator shall, in turn, promptly notify each of the Banks of
each such notice). Such notice (individually a "Revolving Credit
Election Notice" and collectively the "Revolving Credit Election
Notices") shall specify: (a) the date of the proposed borrowing
(which shall be a Business Day); (b) whether such proposed
borrowing is to consist of Domestic Loans or Eurodollar Loans; (c)
the Interest Period applicable to such Loans; and (d) the aggregate
amount to be borrowed. All Revolving Credit Election Notices must
be received by the Administrator before 10:00 a.m., Hartford,
Connecticut time on the Business Day specified in the second
sentence of this Section 1.3(a). Each borrowing of Revolving
Credit Loans shall be (x) in the case of Domestic Loans, in an
aggregate amount not less than $2,000,000 or in a greater integral
multiple of $1,000,000, and (y) in the case of Eurodollar Loans, in
an aggregate amount not less than $2,000,000 or in a greater
integral multiple of $1,000,000. Except for Bid Auction
Borrowings, each borrowing hereunder shall, to the extent that each
Bank satisfies its obligations hereunder, be made from each Bank
pro rata based upon such Bank's percentage of the Total Commitment.
The Revolving Credit Loans of each Bank shall be evidenced by a
promissory note payable to the order of such Bank and in the amount
Page 4
of the Commitment of such Bank, substantially in the form of
Exhibit A attached hereto (individually a Revolving Credit Note and
collectively the "Revolving Credit Notes"). The principal amount
of each Revolving Credit Loan by each Bank and any repayment or
permitted prepayment thereof shall be recorded by such Bank on
either the schedule attached to such Bank's Revolving Credit Note
or its books and records. The aggregate unpaid principal amount of
Revolving Credit Loans set forth on such schedule or books and
records shall be presumptive evidence of the principal amount owing
and unpaid thereon. Within the limits of the Total Commitment, and
subject to the terms and conditions hereof, the Company may borrow
hereunder, prepay (but only to the extent permitted by this
Agreement), and reborrow pursuant to Section 1.1 and Section 1.3
hereof until the Maturity Date. Notwithstanding any term to the
contrary contained herein, any failure of any Bank or the
Administrator to make any notation on a schedule to any Note or
otherwise record a transaction in a timely fashion or to make
correctly any such notation or recordation shall not affect or
impair the validity of any Obligations.
(b) Funding Revolving Credit Loans. Not later than 2:00
p.m. (Hartford, Connecticut time) on the date of the proposed
borrowing of any Revolving Credit Loan, as specified in the
applicable Revolving Credit Election Notice received by the
Administrator in accordance with clause (a) above, each of the
Banks will make available to the Administrator, in immediately
available funds, at the Administrator's Funding Office, such Bank's
percentage share of the Revolving Credit Loans to be loaned on such
date. Upon receipt from such Bank of such amount, and subject to
the provisions of Section 1.1 and upon fulfillment of the
applicable conditions of Article III, the Administrator shall make
available to the Company, in immediately available funds, at the
Administrator's Funding Office, such amount of funds received from
such Bank.
Section 1.4. Bid Auction Advances.
(a) Generally. Each Bank severally agrees that the Company
may request Bid Auction Borrowings under this Section 1.4 from time
to time, on any Business Day after the date hereof and prior to the
Maturity Date in the manner set forth below; provided that, after
giving effect to the making of each Bid Auction Borrowing, the
aggregate principal amount of all Revolving Credit Loans then
outstanding plus all Bid Auction Advances then outstanding shall
not exceed the Total Commitment. All Bid Auction Advances shall be
in Dollars. There shall be no Bid Auction Advances outstanding on
or after the Maturity Date.
Page 5
(b) Notification of Bid Auction Borrowing. The Company
shall request a Bid Auction Borrowing under this Section 1.4 by
delivering to the Administrator, by 10:00 a.m. (Hartford,
Connecticut time) at least one (1) Business Day prior to the date
of the proposed Bid Auction Borrowing, a Bid Auction Election
Notice. Such Bid Auction Election Notice shall specify the
following:
(i) that such proposed borrowing is to be a Bid Auction
Borrowing;
(ii) the date of such proposed borrowing (which must be
a Business Day);
(iii) the aggregate amount of such proposed borrowing;
(iv) the Interest Period for such proposed borrowing;
and
(v) any other terms to be applicable to such proposed
borrowing.
The Administrator shall promptly (and in any event by 5:00 p.m.
Hartford, Connecticut time on the date of such receipt) notify each
Bank by telecopier, of each request for a Bid Auction Borrowing
received by it from the Company.
(c) Banks Response to Bid Auction Borrowing Notification.
Each Bank, including the Administrator acting in its capacity as a
Bank, may, if in its sole discretion it elects to do so, offer to
make one or more Bid Auction Advances to the Company as part of
such proposed Bid Auction Borrowing, by delivering to the Company a
Bid Auction Offer by telecopy or telefacsimile, before 9:00 a.m.
(Hartford, Connecticut time) on the date of the proposed borrowing
specified in the Bid Auction Election Notice. Each such Bid
Auction Offer shall include the following: (i) the minimum amount
and maximum amount of each Bid Auction Advance that such Bank would
be willing to make as part of such proposed Bid Auction Borrowing
(which amounts may exceed such Bank's Commitment but may not exceed
the Total Commitment); (ii) the rate of interest offered therefor;
and (iii) the identity of the quoting Bank.
(d) Company Acceptance or Rejection of Offers. The Company
shall, in turn, before 10:30 a.m. (Hartford, Connecticut time) on
the date of the proposed borrowing specified in the Bid Auction
Election Notice, either:
Page 6
(i) cancel such Bid Auction Borrowing by giving the
Administrator notice to that effect, or
(ii) accept one or more of the offers made by any Bank or
Banks pursuant to and in compliance with Section 1.4(c), in the
Company's sole discretion, by delivering to the Administrator and
such Bank or Banks a Bid Auction Acceptance. Each such Bid Auction
Acceptance shall specify the date and amount of each Bid Auction
Advance (which amount shall be equal to or greater than the minimum
amount, and equal to or less than the maximum amount, as specified
by such Bank for such Bid Auction Advance pursuant to Section
1.4(c)) to be made by each Bank as part of such Bid Auction
Borrowing and the unused amount of the Total Commitment after
giving effect to such Bid Auction Borrowing. In addition the
Company shall reject any remaining offers made by any Bank or Banks
pursuant to Section 1.4(c) by giving the Administrator and any such
Bank or Banks notice to that effect.
(e) Usage of Commitments. Upon each occasion that a Bid
Auction Advance is made, and during the period such Bid Auction
Advance is outstanding, each Bank's Commitment shall be deemed
automatically utilized by an amount equal to the amount of such Bid
Auction Advance multiplied by such Bank's percentage of the Total
Commitment, regardless of the extent to which such Bank makes a Bid
Auction Advance.
(f) Funding Indemnity. If the Company notifies the
Administrator that a Bid Auction Borrowing is canceled pursuant to
Section 1.4(d)(i), the Administrator shall give prompt notice
thereof to the Banks, and such Bid Auction Borrowing shall not be
made. If the Company accepts one or more Bid Auction Advance
offers made by any Bank or Banks, such acceptance shall be
irrevocable and binding on the Company and, in respect of any Bid
Auction Borrowing, the Company shall indemnify each Bank against
any loss or expense incurred by such Bank as a result of any
failure by the Company to fulfill, on or before the date specified
for such Bid Auction Borrowing, the applicable conditions set forth
in this Agreement, including, without limitation, (i) any loss or
expense incurred by reason of liquidation or reemployment of
deposits or other funds acquired by such Bank to fund or maintain
such Bid Auction Advance, and (ii) compensation as provided in
Section 1.15.
(g) Making Bid Auction Advances. Each Bank that is to make
a Bid Auction Advance as part of any Bid Auction Borrowing shall,
before 12:00 noon (Hartford, Connecticut time) on the date of such
Bid Auction Borrowing specified in the Bid Auction
Page 7
Election Notice pursuant to Section 1.4(b), if all applicable
conditions specified in Section 3.2 have been satisfied, make
available to the Administrator at the Administrator's Funding
Office, in immediately available funds, such Bank's portion of such
Bid Auction Borrowing. After receipt by the Administrator of such
funds, the Administrator will make such funds available to the
Company at the Administrator's Funding Office.
(h) Repayment at Maturity. The Company shall repay to
the Administrator, for the account of each Bank which has made a
Bid Auction Advance to the Company, the principal amount of such
Bid Auction Advance on the last day of the Interest Period relating
to such Bid Auction Advance. All Bid Auction Advances outstanding
on the Maturity Date shall be absolutely and unconditionally due
and payable on the Maturity Date.
(i) No Prepayment of Bid Auction Advances. The Company
shall not be permitted to prepay any Bid Auction Advance.
(j) Bid Auction Notes. Each Bid Auction Advance from any
Bank shall be evidenced by a grid promissory note of the Company
payable to the order of the lending Bank, in substantially the form
of Exhibit B hereto (individually a "Bid Auction Note" and
collectively the "Bid Auction Notes").
Section 1.5. Renewal or Conversion of 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
Revolving Credit Loan, the Company may, on any Business Day, renew
any Eurodollar Loan or convert any Domestic Loan into a Eurodollar
Loan or any Eurodollar Loan into a Domestic Loan before the
Maturity Date, provided, that any renewal or conversion of a
Eurodollar Loan may be made only at the expiration of the Interest
Period for the Eurodollar Loan to be renewed or converted. If the
Company desires to so renew a Eurodollar Loan or convert a Domestic
Loan or a Eurodollar Loan, it shall give the Administrator written
notice of such renewal or conversion not later than 10:00 a.m.
(Hartford, Connecticut time), (i) in the case of conversions into
Domestic Loans, on the date of such renewal or conversion, and (ii)
in the case of renewals of or conversions into Eurodollar Loans, on
the third Business Day prior to the date of such proposed renewal
or conversion. Each such notice shall specify: (i) the date of
such renewal or conversion; (ii) the specific Domestic Loan to be
converted or Eurodollar Loan to be renewed or converted; (iii) the
Domestic Loan or Eurodollar Loan which is to replace such Domestic
Loan or Eurodollar Loan; and (iv) the Interest Period for any
replacement Eurodollar Loan.
Page 8
Section 1.6. Interest.
(a) Interest Rates on Loans.
(i) Revolving Credit Loans. Each Revolving Credit Loan
shall bear interest (from the date made through and including the
date of payment in full) at a rate per annum equal to either: (A)
in the case of Domestic Loans, the Base Rate plus any Applicable
Margin for Domestic Loans; or (B) in the case of Eurodollar Loans,
LIBOR plus any Applicable Margin for Eurodollar Loans.
(ii) Bid Auction Advances. Each Bid Auction Advance
shall bear interest (from the date made through and including the
date of payment in full) at a rate per annum as determined in
accordance with Section 1.4.
(b) Calculation. Interest on Domestic Loans shall be
calculated on the basis of a 365 or 366 day year (as applicable)
and the actual number of days elapsed, and the interest rate with
respect to any Domestic Loan shall change effective immediately
upon any change in the Base Rate, without notice or demand to or
upon the Company. Interest on Eurodollar Loans and Bid Auction
Advances shall be calculated on the basis of a 360 day year and the
actual number of days elapsed. Each determination of any interest
rate by the Administrator pursuant to this Agreement or the Notes
shall be conclusive and binding on the Company and each of the
Banks in the absence of manifest error.
(c) Interest Payments. Interest shall accrue on the entire
principal of each Domestic Loan, each Eurodollar Loan and each Bid
Auction Advance and shall be payable in arrears by the Company to
the Administrator for the account of the Bank or Banks making such
Advance as follows:
(i) Domestic Loans. With respect to any Domestic Loan,
on the last Business Day of each calendar quarter;
(ii) Eurodollar Loans. With respect to any Eurodollar
Loan, on the last day of the Interest Period for such Loan;
provided that interest shall also be payable on the last day of the
third (3rd) month for any Eurodollar Loan having a six (6) month
Interest Period; and
Page 9
(iii) Bid Auction Advances. With respect to any Bid
Auction Advance, on the last day of the Interest Period for such
Bid Auction Advance; provided that interest shall also be payable
every ninety (90) days for Bid Auction Advances with Interest
Periods in excess of ninety (90) days.
It is understood and agreed that the interest payable on the
last day of an Interest Period in excess of 90 days shall be only
of interest accrued after the 90th day of such Interest Period if
interest accrued through such 90th day was paid on such 90th day,
as provided herein.
(d) Default Interest. Notwithstanding the foregoing, in the
event any Event of Default occurs and is continuing, the Company
shall pay, but only to the extent permitted by law, interest (after
as well as before any judgment) on all Advances at a rate per annum
equal to the then applicable rate per annum pursuant to clause (a)
of this Section 1.6 plus a margin of two percent (2%).
Section 1.7. Interest Periods. Each Interest Period relating
to any Eurodollar Loan shall be for such duration of 1, 3 or 6
months as shall be selected by the Company in compliance with the
provisions of this Article I. Each Interest Period relating to any
Bid Auction Advance shall be for such duration of 7 to 180 days as
shall be selected by the Company in compliance with the provisions
of this Article I. Any Interest Period which would otherwise end
on a day which is not a Business Day shall end on the next
succeeding Business Day. Each Interest Period for any Eurodollar
Loan or Bid Auction Advance made, converted or renewed prior to the
Maturity Date must end on or prior to the Maturity Date. Any
Interest Period for a Eurodollar Loan which begins on a day for
which there is no numerically corresponding day in the calendar
month during which such Interest Period is to end shall end on the
last day of such calendar month (or the next preceding Business Day
if such last day is not a Business Day). Interest periods for
Domestic Loans shall be for such duration as shall be selected by
the Company, not to extend beyond the Maturity Date.
Section 1.8. Repayments and Prepayments of Principal of Loans;
Pro Rata Treatment; Application of Prepayments.
(a) The entire principal of each of the Revolving Credit
Notes and the Bid Auction Notes outstanding on the Maturity Date,
together with all accrued unpaid interest thereon, shall be
absolutely due and payable on the Maturity Date. All the other
Obligations shall, if not sooner paid, become and be absolutely due
and payable by the Company on the Maturity Date.
Page 10
(b) On the last day of each Interest Period for each
Eurodollar Loan and each Bid Auction Advance, the Company shall pay
all principal, interest and other amounts then outstanding in
respect of such Eurodollar Loan or such Bid Auction Advance. Such
payment may be made with the proceeds of a new or replacement
Domestic Loan, Eurodollar Loan or Bid Auction Advance, to the
extent then available, pursuant to all of the terms and limitations
of this Agreement.
(c) In no event shall the aggregate outstanding principal
amount of the Revolving Credit Loans and Bid Auction Advances
outstanding at any time exceed the Total Commitment at such time,
as such Total Commitment may be reduced from time to time in
accordance with the provisions hereof. Accordingly, upon any such
reduction in the Total Commitment, the Company agrees to prepay so
much of the Revolving Credit Loans as may be necessary so that the
aggregate outstanding principal amount of the Revolving Credit
Loans and Bid Auction Advances will not exceed the Total
Commitment, as so reduced. For the avoidance of any doubt, the
parties hereto acknowledge and agree that, as used in this
Agreement, Revolving Credit Loans do not include Bid Auction
Advances.
(d) Upon certain sales of assets described in Section 5.6,
the Company shall prepay all or a portion of the Advances in
accordance with the provisions of such Section 5.6.
(e) The Company may, at its option, subject to the
provisions of Section 1.15, prepay without premium, Domestic Loans,
in whole or in part, on the following conditions: (i) the Company
shall give to the Administrator and each of the Banks written
notice of any prepayment of Domestic Loans not later than 10:00
a.m., Hartford, Connecticut time, on the Business Day on which such
prepayment is to be made; (ii) each prepayment shall be in a
minimum amount of $2,000,000 and an integral multiple of
$1,000,000; and (iii) each prepayment must be made to the
Administrator for disbursement pro rata to each of the Banks. Such
notice of prepayment shall be irrevocable and shall specify the
date of any such prepayment and the aggregate principal amount to
be prepaid pursuant to this clause (e) on such date. Subject to
the provisions of the next sentence, the Banks may, but shall not
be obligated to, permit the Company to prepay Eurodollar Loans
and/or Bid Auction Advances. If any Eurodollar Loan or Bid Auction
Advance is prepaid, the Company shall indemnify each Bank in
accordance with Section 1.15 hereof.
Page 11
(f) Except for payments in respect of Bid Auction
Borrowings, each payment of principal of borrowings hereunder shall
be made to each Bank pro rata based upon its percentage of the
aggregate outstanding amount of the Loans at the time of such
payment.
(g) Each payment of principal of or interest on any Bid
Auction Advance shall be made to the Administrator for the benefit
of the Bank which has made such Bid Auction Advance, regardless of
such Bank's pro rata percentage of the Total Commitment, except
that if any amounts are due and payable upon any Revolving Credit
Loans at the time of any such payment of a Bid Auction Advance,
then such payment shall be made through the Administrator to each
Bank based on each Bank's pro rata share of the total outstanding
principal balance of all Loans and Bid Auction Advances.
(h) Any partial payment of the Obligations under or in
respect of any Note shall be applied by the Bank holding such Note
(i) first, to the payment of all of the interest which shall be due
and payable on the principal of such Note at the time of such
partial payment, (ii) then, to the payment of all (if any) other
amounts (except principal) due and payable under such Note at such
time, and (iii) finally, to the payment of principal of such Note.
(i) Each payment of Fees payable to all of the Banks and
each payment in respect of a permanent reduction of the Total
Commitment shall be made to the Administrator for prompt
distribution to each Bank pro rata based upon its percentage of the
Total Commitment. Each payment of Fees payable to either of the
Co-Administrative Agents hereunder or in connection herewith shall
be made directly to such Co-Administrative Agent.
Section 1.9. Payments and Computations.
(a) Notwithstanding anything in this Agreement to the
contrary, each payment payable by the Company to the Administrator,
any Co-Administrative Agent or any Bank under this Agreement, the
Notes, any Subsidiary Guarantee or any other Credit Document shall
be made directly to the Administrator (unless such payment is in
respect of any Fees payable by the Company to either of the
Co-Administrative Agents, 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
Page 12
notified to the Company by it), not later than 2:00 p.m., Hartford,
Connecticut time, on the due date of each such payment and in
immediately available funds. The Administrator will promptly
distribute to each Bank in immediately available funds by wire
transfer such Bank's share (if any) of each such payment received
by the Administrator.
(b) If any sum would, but for the provisions of this clause
(b), become due and payable to the Administrator, any
Co-Administrative Agent or any Bank by the Company under this
Agreement, any Note, any 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 or such Bank under this
Agreement, any Note, any Subsidiary Guarantee or any other Credit
Document shall be adjusted by the Administrator (or such
Co-Administrative Agent, as the case may be) accordingly.
Section 1.10. Payments to be Free of Deductions.
(a) Each payment payable by the Company to the
Administrator, any Co-Administrative Agent or any Bank under this
Agreement or any other Credit Document shall be made in accordance
with Section 1.9 hereof, in Dollars, without set-off or
counterclaim and free and clear of and without any deduction of any
kind.
(b) Each Bank that is not organized under the laws of the
United States or any state thereof (a "Foreign Bank") shall provide
to the Company and the Administrator on or prior to the Effective
Date in the case of each Foreign Bank signatory hereto, on the date
of any assignment pursuant to which it becomes a Bank in the case
of each other Foreign Bank, and at such other times as required by
United States law or as the Company or the Administrator shall
reasonably request (if either such form is applicable), two duly
completed signed copies of either (A) Internal Revenue Service Form
4224 (or any successor form), certifying that all payments to be
made to such Foreign Bank under this Agreement or any Note will be
effectively connected to a United States trade or business (a "Form
4224 Certification") or (B) Internal Revenue Service Form 1001 (or
any successor form), certifying that such Foreign Bank is entitled
to the benefits of a provision of a tax convention or treaty to
Page 13
which the United States is a party which exempts from United States
withholding tax, in whole, all payments to be made to such Foreign
Bank under this Agreement or any other Credit Document (a "Form
1001 Certification"). In addition, each Foreign Bank agrees that
if such Foreign Bank previously filed a Form 1001 Certification it
shall deliver to the Company and the Administrator a new Form 1001
Certification prior to the first payment date falling in the third
year following the previous filing of such Form 1001 Certification;
and if such Foreign Bank previously filed a Form 4224 Certification
it shall deliver to the Company and the Administrator a new Form
4224 Certification prior to the first payment date occurring in
each of its subsequent taxable years. Each Foreign Bank shall also
deliver to the Company and the Administrator, to the extent
applicable, such other additional or supplemental forms as may at
any time be required as a result of changes in applicable law,
rule, regulation or treaty or the circumstances of such Foreign
Bank in order to confirm or maintain in effect its entitlement to
an exemption from United States withholding tax on any payments
hereunder; provided, that the circumstances of such Foreign Bank at
the relevant time and applicable law permit it to do so. If a
Foreign Bank determines, as a result of (1) applicable law, rule,
regulation, treaty, or any official application thereof, or (2) its
circumstances, that it is unable to submit any form or certificate
that it is obligated to submit pursuant to this Section 1.10(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
Page 14
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 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 1.11. Fees.
(a) Facility Fee. The Company shall pay to the
Administrator, for the benefit of the Banks, on the first (1st)
Business Day of each calendar quarter in arrears (commencing April
1, 1996) and on the Termination Date (each, a "Facility Fee Payment
Date"), a facility fee (the "Facility Fee"). Each payment of the
Facility Fee shall be in the amount equal to (i) the Applicable
Margin for the Facility Fee then in effect, multiplied by (ii) the
average daily amount of the Total Commitment during the period
commencing on the most recent prior Facility Fee Payment Date (or
January 29, 1996, in the case of the Facility Fee Payment due April
1, 1996) and ending on the day before the current Facility Fee
Payment Date. The Facility Fee shall be calculated on the basis of
a 365 or 366 day year (as applicable) and the actual number of days
elapsed and shall begin to accrue on January 29, 1996. The
Administrator shall promptly disburse the Facility Fee to each of
the Banks in accordance with their respective percentage shares of
the Total Commitment.
(b) Upfront Fee. The Company agrees to pay to the
Administrator, for the benefit of each of the Banks, certain fees
("Upfront Fees"), in the amounts and at the times heretofore agreed
to between the Company and the Co-Administrative Agents. The
Administrator shall promptly disburse the Upfront Fees to each of
the Banks in accordance with their respective shares of the Total
Commitment.
Page 15
(c) Co-Administrative Agents' Fees. The Company agrees to
pay to each of the Co-Administrative Agents, solely for the account
of such Co-Administrative Agent, certain fees ("Agents' Fees"), in
the amounts and at the times heretofore agreed to between such
Co-Administrative Agent and the Company in connection herewith.
Section 1.12. Use of Proceeds. The Company represents that the
proceeds of all Revolving Credit Loans and all Bid Auction Advances
made hereunder shall be used by it to refinance Indebtedness of the
Company outstanding under the Existing Credit Agreements and for
general corporate purposes including acquisitions by the Company,
in compliance with this Agreement. The Company further represents,
warrants and covenants that the proceeds of all Revolving Credit
Loans and all Bid Auction Advances 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 1.13. Illegality. Notwithstanding any other provisions
hereof, if any applicable law, regulation or directive of any
Governmental Authority, or any change therein or in the
interpretation or application thereof, shall make it unlawful for
any Bank to make or maintain Eurodollar Loans, (i) the obligation
of such Bank to make such Loans shall terminate, and (ii) the
Company shall, if any such Loans are then outstanding, promptly
upon request from such Bank, either pay all such Loans (together
with interest accrued thereon) made by such Bank either in cash or
with the proceeds of a replacement Domestic Loan. If any such
payment or replacement of Eurodollar Loans is made on a day that is
not the last Business Day of the Interest Period applicable to such
Loans, the Company shall pay such Bank all amounts required by
Section 1.15(a).
Section 1.14. Increased Costs; Capital Adequacy; Suspensions of
Eurodollar Loans.
(a) Increased Costs Relating to Credit Facilities. In the
event that applicable law, treaty or regulation or directive from
any Governmental Authority, or any change therein or in the
interpretation or application thereof or compliance by any Bank
with any request or directive (whether or not having the force of
law) from any central bank or Governmental Authority, shall: (i)
subject any Bank to any tax of any kind whatsoever with respect to
this Agreement or any Eurodollar Loan or Bid Auction Advance,
Page 16
or subject any payment made by the Company to any Bank in respect
of principal, Fees, interest or any other amount payable hereunder
to any tax of any kind whatsoever (excluding franchise taxes and
taxes imposed on or measured by any Bank's net income or receipts);
(ii) impose, modify or hold applicable any reserve, special deposit
or similar requirements against assets held by, or deposits in or
for the account of, advances or loans by, or other credit extended
by, any office of any Bank, including pursuant to Regulations of
the F.R.S. Board; or (iii) impose on any Bank any other condition
with respect to this Agreement, any Note, any other Credit
Document, or any of the Loans or Bid Auction Advances hereunder,
and the result of any of the foregoing is (x) to increase the cost
to such Bank of making, renewing or maintaining its Eurodollar
Loans or Bid Auction Advances (or any part thereof) by an amount
that such Bank deems, in such Bank's reasonable good faith
judgment, to be material or (y) to reduce the amount of any payment
(whether of principal, interest or otherwise) in respect of any of
the Eurodollar Loans or Bid Auction Advances by an amount that such
Bank deems to be material in such Bank's reasonable good faith
judgment or (z) to require any Bank to make any payment or to
forego any interest or other sum payable hereunder, the amount of
which payment or foregone interest or other sum is calculated by
reference to the gross amount of any sum receivable or deemed
received by the Administrator or any Bank from the Company
hereunder, then, in any case, to the maximum extent permitted by
applicable law, the Company shall promptly pay such Bank, upon its
demand, such additional amount as will compensate such Bank for
such additional costs, reduction, payment or foregone interest, as
the case may be (collectively the "Additional Costs").
(b) Increased Capital Costs. If any change in, or the
introduction, adoption, effectiveness, interpretation,
reinterpretation or phase-in of, any law or regulation, directive,
guideline, decision or request (whether or not having the force of
law) of any court, central bank, regulator or other Governmental
Authority affects or would affect the amount of capital required or
expected to be maintained by any Bank or any corporation
controlling any Bank, and such Bank determines (in its reasonable
judgment) that the rate of return on its capital as a consequence
of its Commitment or the Loans or the Bid Auction Advances made by
such Bank is reduced to a level below that which such Bank could
have achieved but for the occurrence of any such circumstance,
then, in any such case upon notice from time to time by such Bank
Page 17
to the Company, the Company shall immediately pay directly to such
Bank additional amounts sufficient to compensate such Bank for such
reduction in rate of return. In determining such amounts, such
Bank will use reasonable methods of averaging and attribution. The
Company may, however, avoid paying such amounts for future rate of
return reductions if, within the maximum borrowings permitted
herein, the Company borrows such amounts as will cause the Bank to
avoid any such future rate of return reductions which would
otherwise be caused by such changed capital adequacy requirements
or the Company agrees to a reduction in the Total Commitment to
achieve the same result.
(c) If, with respect to any Interest Period, deposits in
Dollars (in the applicable amounts) are not being offered to the
Administrator in any LIBOR Market for such Interest Period, or the
Administrator or the Majority Banks otherwise determine (which
determination shall be binding and conclusive on the Company) that
by reason of circumstances affecting the LIBOR Market, adequate and
reasonable means do not exist for ascertaining LIBOR, then the
Administrator shall promptly notify the Company and the Banks
thereof and, so long as such circumstances shall continue, (i) no
Bank shall thereafter have any obligation to fund or make available
Eurodollar Loans and (ii) on the last day of the current Interest
Period for any Eurodollar Loans, such Loans shall, unless then
repaid in full, automatically convert to Domestic Loans.
Section 1.15. Certain Indemnities.
(a) Payment. The Company agrees to indemnify each Bank and
to hold each Bank harmless against and from any loss, costs
(including the increased costs referred to in Section 1.14 above)
or expenses that it may sustain or incur as a direct consequence of
(i) any prepayment of the principal of or interest on any
Eurodollar Loan or Bid Auction Advance or (ii) any failure by the
Company to complete a borrowing, prepayment, or replacement of or
to a Domestic Loan, a Eurodollar Loan or Bid Auction Advance 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 the Company to pay, punctually on
the due date thereof, any amount payable to the Administrator,
either of the Co-Administrative Agents or any Bank under this
Agreement, any Note, 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,
Page 18
costs or expenses shall include, but shall not be limited to, (x)
any costs incurred by any Bank in carrying funds which were to have
been borrowed by the Company or in carrying funds to cover any
overdue principal, overdue interest or any other overdue sums
payable by the Company to the Administrator, either of the
Co-Administrative Agents or any Bank under this Agreement, any
Note, 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 or Bid Auction Advance. Each Bank shall use
reasonable efforts to mitigate all such losses, costs or expenses.
(b) Additional Indemnity. The Company agrees to indemnify
and hold each of the Indemnified Parties free and harmless from and
against any and all Liabilities.
Section 1.16. Bank Wires to the Company. All transfers by the
Administrator to the Company shall be effected by federal wire
transfer of immediately available funds to Account Number 0019 5213
of Kaman Corporation maintained at Fleet National Bank of
Connecticut, unless specifically instructed otherwise in writing by
the Company to the Administrator.
Section 1.17. Administrator or Bank Certificate. A certificate
signed by an authorized employee of the Administrator, either of
the Co-Administrative Agents or any Bank, setting forth any amount
required to be paid by the Company to the Administrator, such
Co-Administrative Agent or such Bank pursuant to Section 1.6,
Section 1.13, Section 1.14 or Section 1.15 and the computations
made by the Administrator, such Co-Administrative Agent or such
Bank to determine such amount, shall be submitted by the
Administrator, such Co-Administrative Agent or such Bank to the
Company in connection with each demand made at any time by the
Administrator, such Co-Administrative Agent or such Bank upon the
Company under the foregoing Sections. Any such certificate
submitted pursuant to Section 1.13 or Section 1.14 shall, absent
manifest error, constitute conclusive evidence as to the amount
owed pursuant to such Section.
Section 1.18. Interest Limitation. Notwithstanding any other
term of this Agreement, any Note or any other Credit Document,
Page 19
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
The Company 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
Page 20
corporation in each jurisdiction wherein the character of the
properties owned or leased by it therein or in which the
transaction of its respective business therein makes such
qualification necessary except where failure to comply with any of
the foregoing would not have a Material Adverse Effect.
Section 2.2. Due Authorization; No Conflicts. The execution,
delivery and performance by the Company of this Agreement, the
Notes and each other Credit Document executed or to be executed by
it, and the execution, delivery and performance by each other
Obligor of each Subsidiary Guarantee and each other Credit Document
executed or to be executed by it, and the Company's authority to
make the borrowings contemplated thereby, have been duly authorized
by all necessary corporate or other action on the part of the
Company or each such other Obligor. Such execution, delivery, and
performance by the Company and each such other Obligor, and the
making by the Company of the borrowings contemplated hereby, do not
and will not (a) contravene any provision of the Company's or such
other Obligor's Governing Documents, (b) conflict with or result in
a breach of the terms, conditions or provisions of, or constitute a
default under or result in the creation of any Lien upon any of the
property of the Company or such other Obligor, under any agreement,
trust, deed, indenture, mortgage or other instrument to which the
Company or such other Obligor is a party or by which the Company or
such Obligor or any of their respective properties is bound or
affected, or (c) require any waiver, consent or approval by any
creditors, shareholders, or public authority.
Section 2.3. Binding Agreements. This Agreement constitutes,
the Notes and each other Credit Document, when issued and delivered
pursuant hereto for value received shall constitute, the legal,
valid and binding obligations of the Company, enforceable in
accordance with their respective terms, except as enforcement may
be limited by principles of equity, bankruptcy, insolvency, or
other laws affecting the enforcement of creditors' rights
generally; and each Subsidiary Guarantee 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.
Page 21
Section 2.4. Subsidiaries; Maintenance of Subsidiary Guarantee.
(a) All of the issued and outstanding shares of capital stock of
each Subsidiary of the Company which is owned by the Company or a
Subsidiary of the Company, has been validly issued and is fully
paid and nonassessable and is free and clear of any Lien. No
rights to subscribe for additional shares of stock of any
Subsidiary have been granted.
(b) On and at all times following the Effective Date, the
Co-Administrative Agents and the Banks have the full credit support
of Subsidiary Guarantees, guaranteeing in full the payment of all
Obligations of the Company hereunder, executed by such Subsidiary
Guarantors which, collectively, and taken together with the
Company,
(i) account for at least 80% of the consolidated domestic
gross revenues of the Company, or
(ii) have assets which represent at least 80% of the
consolidated domestic gross assets of the Company,
in each case, as determined by reference to the financial
statements delivered by the Company to the Co-Administrative Agents
and the Banks, for the four most recently preceding, consecutive
fiscal quarters, pursuant to Section 2.6 or Section 4.1, as the
case may be.
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, 1994, 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, 1994, certified by Messrs. KPMG Peat
Marwick, LLP., certified public accountants, and (b) the unaudited
consolidated and consolidating balance sheets of the Company and
its Subsidiaries as at December 31, 1994 and as of March 31, 1995,
June 30, 1995 and September 30, 1995, and related consolidated and
consolidating statements of income, cash flows and shareholders'
equity for the three (3) months ended March 31, 1995, June 30, 1995
and September 30, 1995, in each case certified by the president or
principal financial officer of the Company. Such balance sheets
Page 22
and statements have been prepared in conformity with GAAP applied
on a consistent basis throughout the periods specified and present
fairly the financial condition and results of operations of the
Company and its Subsidiaries as at the dates and for the periods
indicated. The balance sheets referred to in this Section 2.6 and
the notes thereto disclose all material liabilities, direct or
contingent, known to the Company and its Subsidiaries as of the
dates thereof.
Section 2.7. No Material Adverse Changes. Since December 31,
1994, there has been no change in the business, assets, operations,
prospects, liabilities or condition, financial or otherwise, of the
Company and its Subsidiaries, taken as a whole, other than changes
the effect of which have not had a Material Adverse Effect.
Section 2.8. No Material Litigation. No action, suit,
investigation or proceeding is pending or known to be threatened by
or against or affecting the Company or any of its Subsidiaries or
any of their respective properties or rights before any
Governmental Authority (a) which involves this Agreement, the Notes
or any other Credit Document or (b) as to which there is a
reasonable possibility of an adverse determination and which, if
adversely determined, could, individually or in the aggregate,
result in a Material Adverse Effect.
Section 2.9. True Copies of Governing Documents. The Company
has furnished or caused to be furnished to each of the
Co-Administrative Agents true and complete copies of all of its
Governing Documents.
Section 2.10. Compliance with Environmental Laws. To the best
of the Company's knowledge and belief, the Company and each of its
Subsidiaries is in substantial compliance with all material
provisions of applicable Environmental Laws and all judgments,
orders and decrees relating thereto and binding upon the Company or
any of its Subsidiaries, except where failure to be in compliance
would not have a Material Adverse Effect.
Section 2.11. Liens. The aggregate principal amount of
indebtedness for borrowed money of the Company and its
Subsidiaries, on a consolidated basis, which is secured by Liens on
assets of the Company or any of its Subsidiaries, is less than or
equal to $25,000,000.
Section 2.12. Compliance With ERISA. The Company and each of
its Subsidiaries is in substantial compliance with all material
provisions of ERISA.
Page 23
Section 2.13. Existing Credit Agreements. As of the Effective
Date, no Obligations (under and as defined in each of the Existing
Credit Agreements) are due and payable, and no Default or Event of
Default (under and as defined in each of the Existing Credit
Agreements) 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.
Section 2.16. Regulations G, U and X. Neither the Company nor
any of its Subsidiaries is engaged in the business of extending
credit for the purpose of purchasing or carrying margin stock, and
no proceeds of any Loans or Advances will be used for a purpose
which violates, or would be inconsistent with, F.R.S. Board
Regulation G, U or X. Terms for which meanings are provided in
F.R.S. Board Regulation G, U or X or any regulations substituted
therefor, as from time to time in effect, are used in this Section
with such meanings.
Section 2.17. Investment Company Act; Public Utility Holding
Company Act. Neither the Company nor any of its Subsidiaries is an
"investment company" within the meaning of the Investment Company
Act of 1940, as amended, or a "holding company", or a "subsidiary
company" of a "holding company", or an "affiliate" of a "holding
company" or of a "subsidiary company" of a "holding company",
within the meaning of the Public Utility Holding Company Act of
1935, as amended.
Page 24
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 or any Bank 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 or any Bank 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 Administrator, such
Co-Administrative Agent and such Bank, 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.
ARTICLE III
CONDITIONS OF LENDING
Section 3.1. Conditions of Initial Loans. The obligation of
each Bank to make its first Revolving Credit Loan or to consider
making any Bid Auction Advance under this Agreement is subject to
the satisfaction of each of the following conditions precedent at
the time of the execution of this Agreement:
(a) Execution of this Agreement, the Notes, the Subsidiary
Guarantees and each other Credit Document. This Agreement, each of
the Revolving Credit Notes, each of the Bid Auction Notes, each of
the Subsidiary Guarantees executed by each of Kaman Aerospace
Corporation, a Delaware corporation, Kaman Industrial Technologies
Corporation, a Connecticut corporation, Kaman Music Corporation, a
Connecticut corporation and Kaman Sciences Corporation, a Delaware
corporation and each of the other Credit Documents shall have been
duly and properly authorized, executed and delivered to the
Co-Administrative Agents by the respective party or parties thereto
and shall be in full force and effect on and as of the Effective
Date. Executed original counterparts of this Agreement shall have
been delivered to the Co-Administrative Agents.
Page 25
(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, the Notes, each
Subsidiary Guarantee and each other Credit Document, and the
borrowings 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) Opinions of Counsel. The Co-Administrative Agents shall
have received opinions addressed to the Banks, the Administrator
and each of the Co-Administrative Agents from (i) Glenn M.
Messemer, Esq., counsel for the Company, in or substantially in the
form of Exhibit J attached hereto, and (ii) Reid and Riege, P.C.,
special Connecticut counsel to the Co-Administrative Agents, in or
substantially in the form of Exhibit K attached hereto, each such
opinion shall be dated the Effective Date and accompanied by such
supporting documents as either of the Co-Administrative Agents may
reasonably require.
(e) Payment of Outstanding Indebtedness, etc. All
Indebtedness outstanding under each of the Existing Credit
Agreements, together with all interest, all prepayment premiums and
other amounts due and payable with respect thereto, shall have been
paid in full (including, to the extent necessary, from proceeds of
the initial Advance) and all "Commitments" in respect thereof (as
such term is defined in each of the Existing Credit Agreements)
shall have been terminated; and all Liens securing payment of any
such Indebtedness shall have been released and the Administrator
shall have received all Uniform Commercial Code Form UCC-3
termination statements or other instruments as may be suitable or
appropriate in connection therewith.
Page 26
(f) Closing Fees, Expenses, etc. Each Co-Administrative
Agent shall have received for its own account, or for the account
of each Bank or such other Person, as the case may be, all fees,
costs and expenses due and payable pursuant to Section 1.11 and
Section 10.1.
Section 3.2. Conditions of Each Loan and Bid Auction Advance.
The obligation of each Bank to make any Revolving Credit Loan or to
consider making any Bid Auction Advance is subject to the
satisfaction, at the time such Advance is to be made, of each of
the following conditions precedent:
(a) Notice of Borrowing. The Company shall have duly and
timely given to the Administrator the Revolving Credit Election
Notice or the Bid Auction Election Notice, as the case may be,
required by this Agreement in connection with such Revolving Credit
Loan or such Bid Auction Advance. Such Revolving Credit Election
Notice or Bid Auction Election Notice, as the case may be, and the
delivery thereof, without more, shall constitute certification by
the Company as to the matters set forth in clauses (c) and (d)
below.
(b) Legality of Transactions. It shall not be unlawful for
the Company or any other Obligor to perform any of its agreements
or obligations under this Agreement, any of the Notes, any of the
Subsidiary Guarantees or any of the other Credit Documents.
(c) Performance; No Default. The Company and each other
Obligor shall have duly and properly performed, complied with and
observed each of its covenants, agreements and obligations
contained in this Agreement, the Notes, each of the Subsidiary
Guarantees and each of the other Credit Documents. Both before and
after giving effect to any Advance, no Default or Event of Default
shall have occurred and be continuing.
(d) Representations and Warranties. Each of the
representations and warranties made by the Company and each other
Obligor in this Agreement or any other Credit Document shall have
been true and correct in all material respects when made and shall
for all purposes of this Agreement, be deemed repeated on and as of
the date of any application by the Company for any Advance
hereunder and on the date of making such Advance and shall be true
and correct in all material respects on and as of each of such
dates.
Page 27
ARTICLE IV
AFFIRMATIVE COVENANTS
The Company covenants and agrees with each of the
Co-Administrative Agents and 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: (a) within sixty (60) days after the close of each of the
first three quarters of each fiscal year of the Company and within
one hundred twenty (120) days after the close of each fiscal year
of the Company, the consolidated and consolidating balance sheets
of the Company and its Subsidiaries as of the close of each such
period and consolidated and consolidating statements of income,
cash flows and shareholders' equity for such period, prepared in
conformity with GAAP, applied on a basis consistent with that of
the preceding period or containing disclosure of the effect on
financial position or results of operations of any change in the
application of GAAP during the period, and certified by the
president or a principal financial officer of the Company as
accurate, true and correct in all material respects; (b) together
with each such balance sheet, a Compliance Certificate
substantially in the form of Exhibit G attached thereto; (which
Compliance Certificate shall contain written calculations by the
Company in reasonable detail concerning compliance or
non-compliance, as the case may be, by the Company with the
financial covenants referred to herein); (c) together with the
annual consolidated financial statements required to be delivered
pursuant to clause (a) above for each fiscal year, a report
containing an unqualified opinion of KPMG Peat Marwick, LLP or a
comparable nationally recognized certified public accounting firm,
which opinion shall state that such financial statements fairly
present the financial condition and results of operations of the
Company and its Subsidiaries in accordance with GAAP; (d) promptly
upon the written request of either of the Co-Administrative Agents,
such other information about the financial condition and operations
of the Company and its Subsidiaries, and any endorser or guarantor
(if any), as either of the Co-Administrative Agents may, from time
to time, reasonably request; (e) promptly after becoming available,
copies of all financial statements, reports, notices and proxy
Page 28
statements sent by the Company to stockholders, and of all regular
and periodic reports filed by the Company with any securities
exchange or with the SEC or any governmental agency successor to
any or all of the functions of the SEC, and of all press releases
issued by the Company; (f) promptly upon becoming aware of any
Default or Event of Default, notice thereof in writing; (g)
promptly upon becoming aware of any development that is likely to
result in an Event of Default, notice thereof in writing; and (h)
promptly after becoming aware of any Change in Control, notice
thereof in writing.
Section 4.2. Securities Regulation Compliance Reports.
Promptly deliver to each of the Co-Administrative Agents and each
of the Banks a copy of: (a) all filings including financial
statements and reports filed therewith and amendments thereto made
by the Company with the SEC pursuant to the Securities Act of 1933,
the Securities Exchange Act, and the rules and regulations
promulgated under either of them; (b) all filings, financial
statements and reports filed therewith and amendments thereto made
by the Company with each securities exchange on which the
securities of the Company are listed, if any, pursuant to the rules
and regulations of each such exchange; and (c) all written
communications, financial statements, reports, notices and proxy
statements sent to any class of holders of securities of the
Company.
Section 4.3. Insurance. (a) Keep its properties insured
against fire and other hazards (so-called "All Risk" coverage) in
amounts and with companies satisfactory to the Co-Administrative
Agents to the same extent and covering such risks as are customary
and reasonably available in the same or a similar business; (b)
maintain public liability coverage against claims for personal
injuries or death; and (c) maintain all worker's compensation,
employment or similar insurance as may be required by applicable
law. Alternatively, the Company may self-insure in such amounts
and in such manner as may be appropriate in the Company's industry
and in the Company's reasonable business judgment. The Company,
upon the request of either of the Co-Administrative Agents, agrees
to deliver certificates evidencing all of the aforesaid insurance
policies to the Co-Administrative Agents.
Section 4.4. Tax and Other Liens. Except for taxes the payment
of which is being contested in good faith after the establishment
of any reserves required by GAAP consistently applied, pay or cause
to be paid all taxes, assessments and
Page 29
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) of any
legal proceedings or litigation (a) material to the Company and its
Subsidiaries when taken as a whole or reportable under the
Securities Exchange Act or required under FASB Standards to be
disclosed on the Company's consolidated audited financial
statement, or (b) which questions the validity of this Agreement,
the Notes, any 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
Page 30
to time as the Company in the proper exercise of its judgment may
determine, so long as any such liquidation or dissolution shall not
(x) either individually or in the aggregate, have a Material
Adverse Effect or (y) be of a Subsidiary Guarantor, unless such
liquidation or dissolution is by merger into another Subsidiary
which has executed and delivered a Subsidiary Guarantee, or results
in the replacement of one Subsidiary Guarantee with a new
Subsidiary Guarantee, and after giving effect thereto there shall
be no Default or Event of Default hereunder (including in respect
of Section 2.4(b) and Section 4.10) and (iii) the Company may
liquidate or sell such other assets as it may deem advisable, in
the proper exercise of its judgment, so long as such sale or
liquidation is in compliance with Section 5.6 and, after giving
effect thereto, the Company is in compliance with Section 4.10 and
the representation and warranty set forth in Section 2.4(b) shall
be true and correct.
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 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
Page 31
times, upon reasonable notice, in a reasonable manner and as often
as any Co-Administrative Agent or any Bank may reasonably request,
subject to compliance with all applicable security regulations and
requirements of the United States and the Company's reasonable
policies and practices applicable to safeguarding its trade secrets
and proprietary products and practices. The Company agrees with
each of the Co-Administrative Agents and the Banks that such
policies and practices may restrict access by the Co-Administrative
Agents and the Banks 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 to personnel of the Company
and its Subsidiaries.
Section 4.10. Subsidiary Guarantees. The Company shall cause
the Co-Administrative Agents and the Banks to have at all times the
full credit support of Subsidiary Guarantees, guaranteeing in full
the payment of all Obligations of the Company, executed by such
Subsidiaries of the Company which, collectively, and taken together
with the Company,
(a) account for at least 80% of the consolidated domestic
gross revenues of the Company, or
(b) have assets which represent at least 80% of the
consolidated domestic gross assets of the Company,
in each case, as determined by reference to the financial
statements delivered by the Company to the Co-Administrative Agents
and the Banks, for the four most recently preceding, consecutive
fiscal quarters, pursuant to Section 2.6 or Section 4.1, as the
case may be.
Section 4.11. Further Assurances. Cooperate with each of the
Co-Administrative Agents and each Bank and 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.
Page 32
ARTICLE V
NEGATIVE COVENANTS
The Company covenants and agrees with each of the
Co-Administrative Agents and the Banks 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 (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 under
banker's acceptances or commercial letters of credit described in
the foregoing parenthetical);
Page 33
(d) Liens on assets which secure previously existing
Indebtedness of corporations or business entities acquired by the
Company or a Subsidiary, whether by purchase of assets and
assumption of liabilities or by purchase of stock, so long as (i)
such acquisition is otherwise permitted by the terms of this
Agreement, (ii) the Company is in compliance with all of its
covenants herein after the completion of such acquisition, and
(iii) such Liens were not incurred in contemplation of such
acquisition and as a result of such acquisition, and do not extend
to any of the Company's or any Subsidiary's assets owned before
such acquisition; provided, that, not later than 90 days after any
such acquisition the Company shall extinguish, or cause to be
extinguished, such Liens unless those Liens are otherwise permitted
under the terms of clauses (a), (b), (c), (e), or (f) of this
Section 5.1;
(e) any other Liens at any time on assets (other than
inventory and accounts receivable) owned by the Company or any of
its Subsidiaries which, in the aggregate, do not secure
Indebtedness in excess of $25,000,000; and
(f) Liens granted to the Co-Administrative Agents and the
Banks 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 and each of the
other Credit Documents), or issue or sell any obligation of any
Subsidiary to a third party lender (other than pursuant to the
terms of this Agreement), if such Indebtedness would (i) cause the
Company to be in violation of any of the financial covenants set
forth in Article VI below, or (ii) exceed, individually or in the
aggregate at any time (excluding the amount of any subordinated
debt of the type described in clause (i) of the definition of
"Subordinated Debt"), $35,000,000.
Section 5.3. Contingent Liabilities. Assume, guarantee,
endorse or otherwise become liable upon the obligations of any
Person or enter into any other agreement having substantially the
same effect as a Guarantee, except for the endorsement of
Page 34
negotiable instruments for deposit or collection or other
transactions in the ordinary course of business which are not
material to the Company and its Subsidiaries when taken as a whole;
provided, that (i) each Significant Subsidiary may guarantee the
Obligations of the Company and each other Obligor hereunder and
under each other Credit Document pursuant to a Subsidiary Guarantee
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 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 domestic
Subsidiary) such Subsidiary is the surviving entity (and, in the
case of such a reincorporation by merger, (i) such Subsidiary
expressly assumes, in a written instrument executed and delivered
to the Co-Administrative Agents, all the Obligations of the Company
or such other Obligor, as the case may be, under this Agreement,
each of the Notes and each of the other Credit Documents and (ii)
the Co-Administrative Agents and the Banks have received a written
opinion of outside legal counsel to the Company stating that,
pursuant to such merger and instrument of assumption, such
Subsidiary has assumed all the Obligations of the Company or such
other Obligor under this Agreement, each of the Notes and each of
the other Credit Documents), (b) the Company's management remains
in control of the merged entity, and (c) no Default or Event of
Default hereunder shall exist or would be reasonably likely to
occur as a result of such transaction. For the purposes of this
Section 5.4, the acquisition by the Company or any Subsidiary of
the Company of all or substantially all of the shares of capital
stock or all or substantially all of the assets of any Person shall
be deemed to be a consolidation of such Person with the Company or
such Subsidiary, as the case may be. Nothing herein shall prohibit
the Company from divesting a Subsidiary by merging it with another
corporation or otherwise so long as the Company otherwise complies
with Section 5.6, 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) thereto, shall be true and correct.
Page 35
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 Subsidiaries are required to have been delivered to
the Banks pursuant to Section 4.1, and (ii) with respect to which
the Aggregate Percentage obtained after taking into account such
sales does not exceed forty-five percent (45%).
In the event of any sale or transfer of assets of the Company or
any Subsidiary not permitted by clause (a) or clause (b)(i) or
clause (b)(ii) above (referred to herein as a "Designated Sale"),
the Company will promptly (and, in any event, within five (5)
Business Days) thereafter give written notice of such Designated
Sale to each of the Co-Administrative Agents and each of the Banks
(a "Designated Sale Notice"), describing in reasonable detail all
material terms of such Designated Sale, including a reasonably
detailed description of the assets sold, the purchase price and net
book value of such assets, and the net proceeds receivable by the
Company or any of its Subsidiaries in connection with such
Designated Sale. If any Designated Sale occurs prior to the
Maturity Date, the Total Commitment will be reduced, on the tenth
(10th) Business Day after receipt by the Company of written notice
(a "Pay-Down Notice") from the Administrator (at the direction of
the Majority Banks) that the Total Commitment is to be so reduced.
The Administrator shall give a Pay-Down Notice, if at all, not
later than ten (10) days after receipt by the Co-Administrative
Agents and the Banks of a Designated Sale Notice conforming to the
requirements of this Section 5.6. The amount of each such
reduction in the Total Commitment shall be equal to the Reduction
Amount.
Page 36
For purposes of this Section 5.6, the following terms shall
have the meanings provided below:
"Aggregate Percentage" shall mean, at any time, the sum of
all Applicable Percentages since the Effective Date.
"Applicable Percentage" shall mean, with respect to each sale
of assets pursuant to Section 5.6(b), the percentage obtained by
dividing (i) the book value of all tangible assets sold (including
assets sold in transactions in which the Company leases back such
assets), less the portion thereof, if any, which resulted in a
prior dollar for dollar reduction of the Total Commitment, by (ii)
the Company's Consolidated Tangible Assets as at the last day of
the then most recently completed fiscal quarter for which financial
statements for the Company and its Subsidiaries are required to
have been delivered to the Banks pursuant to Section 4.1.
"Designated Percentage" shall mean, with respect to each sale
of assets pursuant to Section 5.6(b), an amount equal to (x) in the
event such sale or transfer is not permitted by clause(b)(i) above
(but is permitted by clause(b)(ii) above), 15%, (y) in the event
such sale or transfer is not permitted by clause(b)(ii) above (but
is permitted by clause(b)(i) above), 45%, and (z) in the event such
sale or transfer is not permitted by either clause(b)(i) or
clause(b)(ii) above, that percentage equal to 15% for each fiscal
year since the Effective Date to a cumulative percentage not to
exceed 45%.
"Reduction Amount" shall mean, with respect to each sale of
assets pursuant to Section 5.6(b), the book value of such assets
sold (including assets sold in transactions in which the Company
leases back such assets) or any portion thereof, in respect of
which the Aggregate Percentage determined in connection with such
sale exceeds the Designated Percentage.
Section 5.7. Affiliate Transactions. Enter into any
transaction with an affiliate, except in the ordinary course of
business and pursuant to the reasonable requirements of the
Company's and, if applicable, such Subsidiary's business and upon
fair, reasonable and arm's-length terms.
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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 to the Banks, (b) the payment
of dividends by any Subsidiary or the making by any Subsidiary of
any advances or other payments or distributions to the parent of
such Subsidiary or (c) any Subsidiary Guarantee contemplated
hereunder.
Section 5.9. Compliance With Environmental Laws. Except in
compliance with all applicable Environmental Laws (and except to
the extent that noncompliance would not have a Material Adverse
Effect), (a) use any of the Real Estate or any portion thereof for
the handling, processing, storage or disposal of Hazardous
Substances, (b) cause or permit to be located on any of the Real
Estate any underground tank or other underground storage receptacle
for Hazardous Substances, or (c) generate any Hazardous Substances
on any of the Real Estate.
ARTICLE VI
FINANCIAL COVENANTS
The Company covenants and agrees with each of the
Co-Administrative Agents and the Banks that, at the time of the
requesting or making of any Advance and so long as any Advance
remains outstanding or any Fees or interest payable hereunder
remains unpaid after becoming due and payable, unless the Majority
Banks otherwise consent in writing, the Company shall not:
Section 6.1. Consolidated Net Worth. Cause or permit the
Company's Consolidated Net Worth to be less than $200,000,000 at
any time.
Section 6.2. Fixed Charge Coverage Ratio. Cause or permit the
ratio of (a) the Company's Operating Profit for the four (4) most
recently completed fiscal quarters of the Company, to (b) the
aggregate consolidated interest expense on borrowed money
(including the Obligations) (net of cash income from investments)
of the Company and its Subsidiaries for such four fiscal quarters,
(i) through (and including) December 31, 1997, to be less than 2.50
to 1.0, and (ii) at any time of determination thereafter, to be no
less than 2.75 to 1.0.
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Section 6.3. Consolidated Total Indebtedness to Total
Capitalization. Cause or permit the Company's Consolidated Total
Indebtedness to exceed fifty-five percent (55%) of its Total
Capitalization at any time.
ARTICLE VII
EVENTS OF DEFAULT; CERTAIN REMEDIES
Section 7.1. Events of Default. The occurrence of any one or
more of the following events or conditions shall constitute an
"Event of Default":
(a) the principal amount due upon any Note is not paid when
due, whether at maturity, by acceleration or otherwise;
(b) any interest on any Note or any Fee due hereunder is not
paid within five (5) Business Days of the due date thereof;
(c) default is made in the due observance or performance of
any other covenant, term or agreement contained in this Agreement
or in any other Credit Document, and such default continues
unremedied for a period of thirty (30) days after any executive,
legal or financial officer of the Company becomes aware or is
notified by either of the Co-Administrative Agents of such default,
whichever first occurs;
(d) any representation made by the Company or any other
Obligor in Article II of this Agreement or in any other Credit
Document shall be false or incorrect in any material respect on the
date as of which made or deemed to have been made or repeated,
unless (i) (A) the fact or condition which made such representation
false or incorrect is changed or remedied, within 15 days after any
executive, legal or financial officer of the Company becomes aware
of such misrepresentation, to make such representation true and
correct in all material respects, or (B) the Company shall have
disclosed, or shall have caused to have been disclosed, in
reasonable detail to each of the Co-Administrative Agents and each
of the Banks the nature and extent of such misrepresentation within
15 days after any executive, legal or financial officer of the
Company becomes aware of such misrepresentation, and (ii) no
Material Adverse Effect shall have occurred as a result of the fact
or condition which made such representation false or incorrect;
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(e) any obligation of the Company or any Subsidiary for the
payment of Indebtedness in excess of Five Million Dollars
($5,000,000), individually or in the aggregate, (i) becomes or is
declared to be due and payable prior to the stated maturity thereof
as a result of a default by the Company or any Subsidiary, or (ii)
is not paid when due or within any grace period for the payment
thereof, or (iii) is evidenced or secured by an agreement pursuant
to which there shall occur any default in the performance or
observance of any other term, condition or agreement if the effect
of such default is to cause or permit the holder or holders of such
obligation to cause such obligation to become due prior to its
stated maturity;
(f) the Company or any Subsidiary makes an assignment for
the benefit of creditors; admits in writing its inability to pay
its debts as they become due; files a voluntary petition in
bankruptcy; is adjudicated bankrupt or insolvent; files or consents
to the filing of any petition or answer seeking for itself any
reorganization, arrangement, composition, readjustment,
dissolution, liquidation or similar relief under any present or
future statute, law or regulation of any jurisdiction; petitions or
applies to any tribunal for any receiver, liquidator, fiscal agent
or any other similar agent or any trustee; or there is commenced
against the Company or any Subsidiary any such proceeding without
the consent of the Company or such Subsidiary which is not
dismissed within thirty (30) days after the commencement thereof;
(g) any Change in Control occurs, and the Co-Administrative
Agents and the Banks notify the Company within thirty (30) days
after first being notified by the Company of the Change in Control
that the Co-Administrative Agents and the Banks do not consent to
the Change in Control; and
(h) the Agreement, the Notes or any Subsidiary Guarantee
shall (except in accordance with its terms or except as expressly
permitted under this Agreement), in whole or in part, terminate,
cease to be effective or cease to be the legally valid, binding and
enforceable obligation of any Obligor party thereto; or the Company
or any other Obligor shall, directly or indirectly, contest in any
manner such effectiveness, validity, binding nature or
enforceability.
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,
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declare all of the Obligations, including the entire unpaid
principal of all the Notes, all of the unpaid interest accrued
thereon, and all (if any) other sums payable by the Company or such
other Obligor under this Agreement, the Notes or any of the other
Credit Documents, to be immediately due and payable; except that
upon the occurrence of any Event of Default under Section 7.1(f),
all of the Obligations, including the entire unpaid principal of
all the Notes, all of the unpaid interest accrued thereon, and all
(if any) other sums payable by the Company or such other Obligor
under this Agreement, the Notes or any of the other Credit
Documents shall automatically and immediately be due and payable,
without notice or demand. Thereupon, all of such Obligations which
are not already due and payable shall forthwith become and be
absolutely and unconditionally due and payable, without any further
notice (or any notice, as the case may be), or any other
formalities of any kind, all of which are hereby expressly and
irrevocably waived.
Section 7.3. Termination of Commitments; Exercise of Other
Remedies. If any one or more Defaults shall be continuing under
Section 7.1(c), or if any one or more Events of Default shall be
continuing, then:
(a) Subject always to the provisions of Section 8.11, each
of the Banks and the Co-Administrative Agents may proceed to
protect and enforce all or any of its rights, remedies, powers and
privileges under this Agreement, the Notes or any of the other
Credit Documents by action at law, suit in equity or other
appropriate proceedings, whether for specific performance of any
covenant contained in this Agreement, any Note or any other Credit
Document or in aid of the exercise of any power granted to the
Administrator, any Co-Administrative Agent or any Bank herein or
therein; and
(b) The Co-Administrative Agents may, and, upon the written
request of the Majority Banks, shall, by giving notice to the
Company, immediately terminate the Commitments of each of the Banks
in full, and each Bank shall 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(f), the
Commitments of all of the Banks shall automatically terminate in
full, and each Bank shall 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.
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Section 7.4. No Implied Waivers; Rights Cumulative. No delay
on the part of the Administrator, any Co-Administrative Agent or
any Bank in exercising any right, remedy, power or privilege under
this Agreement, any of the Notes 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 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 under this Agreement, any of
the Notes 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
and (subject to the provisions of Section 8.11) may be exercised at
such time or times and in such order and manner as the
Administrator, any Co-Administrative Agent or any such Bank shall
(in its sole and complete discretion) deem expedient.
Section 7.5. Set-Off. Any deposits or other sums at any time
credited by or due from any Bank to the Company and any securities
or other property of the Company in any Bank's possession may at
all times be held and treated as collateral security for the
payment and performance of the Obligations, and the Company hereby
grants to each of the Banks a continuing security interest in such
deposits, sums, securities or other property maintained with such
Bank. Regardless of the adequacy of any collateral, while any
Event of Default is continuing, any deposits or other sums credited
by or due from any of the Banks to the Company may be appropriately
applied to or set-off against any of the Obligations due to such
Bank hereunder without notice to the Company or compliance with any
other condition precedent now or hereafter imposed by statute, rule
of law or otherwise (all of which are hereby expressly waived by
the Company). Each Bank agrees with each other Bank that (i) if an
amount to be set off is to be applied to indebtedness of the
Company to such Bank, other than the Obligations, such amount shall
be applied ratably to such other indebtedness and to the
Obligations, and (ii) if such Bank shall receive from the Company,
whether by voluntary payment, exercise of the right of setoff,
counterclaim, cross action, enforcement of the claim evidenced by
this Agreement by proceedings against the Company, whether at law
Page 42
or in equity or by proof thereof in bankruptcy, reorganization,
liquidation, receivership or similar proceedings, or otherwise, and
shall retain and apply to the payment of the Company's Obligations
to such Bank hereunder, any amount in excess of such Bank's ratable
portion of the payments to be received by all of the Banks (such
ratable portion being determined in accordance with the other
provisions of this Agreement), such Bank will promptly make such
disposition and arrangements with the other Banks with respect to
such excess, either by way of distribution, pro tanto assignment of
claims, subrogation or otherwise as shall result in each Bank
receiving in respect of the Obligations to it of the Company such
Bank's proportionate payment; provided, however, that if all or any
part of such excess payment is thereafter recovered from such Bank,
such disposition and arrangements shall be rescinded and the amount
restored to the extent of such recovery, but without interest.
ARTICLE VIII
THE CO-ADMINISTRATIVE AGENTS
AND THE ADMINISTRATOR
Section 8.1. Authorization. Each of the Banks hereby appoints,
and authorizes to act, each of Scotiabank and Fleet as
Co-Administrative Agents and Fleet as the Administrator for the
Banks with respect to this Agreement, the Notes and each of the
other Credit Documents, and each of the Co-Administrative Agents
and the Administrator hereby agrees to so act as agent for the
Banks, on the terms and subject to the conditions set forth in this
Article VIII. All payments made by the Company to the
Administrator, for the benefit of the Banks, shall be distributed
by the Administrator to the Banks as set forth herein promptly
after receipt thereof in immediately available funds. Each Bank
irrevocably authorizes the Administrator as the agent of such Bank
to take such action on its behalf under the provisions of this
Agreement and the Notes and each of the other Credit Documents and
to exercise such powers hereunder and thereunder as are
specifically delegated to the Administrator by the terms hereof and
thereof, together with such powers as are reasonably incidental
thereto. With respect to the Advances made pursuant hereto, each
of the Co-Administrative Agents shall have the same obligations and
the same rights, powers and privileges (a) with respect to its
Commitment and the Advances made by it in its role as a Bank
hereunder, and (b) as the holder of any of the Notes, as any other
Bank and may freely exercise the same.
Page 43
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
Page 44
the advice of counsel selected by the Co-Administrative Agents.
Any request, authority or consent of any Person who at the time of
making such request or giving such authority or consent is a Bank
hereunder shall be conclusive and binding on any subsequent
transferee or assignee of such Bank.
(d) Neither of the Co-Administrative Agents nor the
Administrator shall be responsible to any Bank for the validity or
enforceability of this Agreement or any of the Notes or any of the
other Credit Documents or for the validity, enforceability or
collectibility of any amounts owing with respect to this Agreement
or any of the Notes or any of the other Credit Documents.
(e) Neither of the Co-Administrative Agents nor the
Administrator has made nor does it now make any representations or
warranties, express or implied, nor does it assume any liability to
the Banks with respect to the creditworthiness or financial
condition of the Company or any of its Subsidiaries.
(f) Neither of the Co-Administrative Agents nor the
Administrator shall be responsible to (i) any party on account of
the failures of, or delay in performance or breach by, any Bank
(except for such Co-Administrative Agent or the Administrator, in
its capacity as a Bank in respect of its obligations as such) of
its obligations hereunder or (ii) any Bank on account of the
failure of or delay in performance or breach by any other Bank or
the Company hereunder or under the Notes or under any of the other
Credit Documents or in connection herewith or therewith.
Section 8.4. Co-Administrative Agents. In addition to Section
8.3, and except as otherwise expressly set forth in this Agreement,
none of the Banks identified on the signature pages of this
Agreement as a "Co-Administrative Agent" shall have any right,
power, obligation, liability, responsibility or duty under this
Agreement other than those applicable to all Banks as such.
Without limiting the foregoing, none of the Banks so identified as
a "Co-Administrative Agent" shall have or be deemed to have any
fiduciary relationship with any Bank. Each Bank acknowledges that
it has not relied, and will not rely, on any of the Banks so
identified in deciding to enter into this Agreement or in taking or
not taking action hereunder or under any other Credit Document.
Page 45
Section 8.5. Payments.
(a) If in the good faith opinion of the Administrator the
distribution of any amount received by it in such capacity
hereunder might subject it to liability, it may refrain from making
such distribution until its right to make such distribution shall
have been adjudicated by a court of competent jurisdiction. If a
court of competent jurisdiction shall adjudge that any amount
received and distributed by the Administrator is to be repaid, each
Person to whom any such distribution shall have been made shall
either repay to the Administrator its proportionate share of the
amount so adjudged to be repaid or shall pay over the same in such
manner and to such Persons as shall be determined by such court.
With respect to obligations of the Company hereunder, a payment to
the Administrator shall be deemed to be a payment to the Banks.
(b) Notwithstanding anything to the contrary contained in
this Agreement or any of the other Credit Documents, any Bank that
is obligated to but fails (x) to make available to the
Administrator its pro rata share of any Advance (except as set
forth in Section 1.13) or (y) to comply with the provisions of
Section 7.5 with respect to making dispositions and arrangements
with the other Banks, where such Bank's share of any payment
received, whether by setoff or otherwise, is in excess of its pro
rata share of such payments due and payable to all of the Banks, in
each case as, when and to the full extent required by the
provisions of this Agreement, shall be deemed delinquent (a
"Delinquent Bank") and shall be deemed a Delinquent Bank until such
time as such delinquency is satisfied. A Delinquent Bank shall be
deemed to have assigned any and all payments due to it from the
Company, whether on account of outstanding Loans, interest, fees or
otherwise, to the remaining nondelinquent Banks for application to,
and reduction of, their respective pro rata shares of all
outstanding Advances. The Delinquent Bank hereby authorizes the
Administrator to distribute such payments to the non-delinquent
Banks in proportion to their respective pro rata shares of all
outstanding Advances. A Delinquent Bank shall be deemed to have
satisfied in full a delinquency when and if, as a result of
application of the assigned payments to all outstanding Advances of
the nondelinquent Banks, the Banks' respective pro rata shares of
all outstanding Advances have returned to those in effect
immediately prior to such delinquency and without giving effect to
the nonpayment causing such delinquency.
Section 8.6. Holders of Notes. The Administrator may deem and
treat the payee of any Note as the absolute owner or purchaser
thereof for all purposes hereof until it shall have been furnished
in writing with a different name by such payee or obligor or by a
subsequent holder, assignee or transferee.
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Section 8.7. Modification of this Agreement and the Notes and
each of the other Credit Documents; Waivers and Consents. The
Majority Banks shall have the power to assent to and authorize any
modification of any of the provisions of this Agreement, the Notes
or any of the other Credit Documents and to waive or consent to any
deviation from or violation of the provisions of this Agreement,
the Notes or any of the other Credit Documents which may be
requested by the Company (including waivers of Defaults or Events
of Default), and any such assent, authorization, waiver or consent
shall be binding upon all of the Banks and all holders of the Notes
as though such actions were specifically and expressly authorized
by the terms hereof; provided, that:
(a) the obligation of the Company to pay the principal of
each of the Notes as and when the same becomes due and to pay
interest on each of them as the same shall become due from time to
time and to pay Upfront Fees or any Facility Fees as and when the
same become due, shall continue unimpaired unless otherwise
consented to in writing by all the Banks;
(b) neither the principal amount of any Note nor the
interest rate thereon nor any Upfront Fees or any Facility Fees
payable hereunder shall be reduced without the written consent of
all the Banks;
(c) the amount of any Bank's Commitment shall not be
increased without the written consent of such Bank and the amount
of the Total Commitment shall not be increased without the written
consent of all of the Banks;
(d) the definition of "Applicable Margin", "Maturity Date"
and "Majority Banks" shall not be amended, modified or waived
without the written consent of all the Banks;
(e) a Default or Event of Default under clauses (a), (b) or
(f) of Section 7.1 shall not be waived without the written consent
of all the Banks;
(f) the provisions of Section 2.4(b), Section 4.10 or
Section 5.1 shall not be amended, modified or waived without the
written consent of all the Banks;
(g) except as expressly permitted under this Agreement, the
amendment or modification of any Subsidiary Guarantee (or release
of any Subsidiary from its obligations thereunder) shall not be
permitted without the written consent of all the Banks; and
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(h) the provisions of this Section 8.7 shall not be amended,
modified or waived without the written consent of all the Banks.
Section 8.8. Costs of Co-Administrative Agents;
Indemnification. Each Bank agrees to reimburse each of the
Co-Administrative Agents, pro rata according to such Bank's
respective Commitment, for all costs, expenses, and disbursements
(including reasonable attorneys' fees and disbursements and amounts
paid to consultants and agents retained by such Co-Administrative
Agents) incurred by, or asserted against, such Co-Administrative
Agent and not reimbursed by the Company, except for such costs,
expenses, and disbursements and amounts paid to consultants and
agents retained by such Co-Administrative Agent incurred as a
result of such Co-Administrative Agent's gross negligence or
willful misconduct. Without limitation of the foregoing, each Bank
agrees to indemnify each of the Co-Administrative Agents and the
Administrator (to the extent not reimbursed by the Company)
ratably, as aforesaid, from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses, or disbursements of any kind or nature whatsoever
which may be imposed on, incurred by or asserted against such
Co-Administrative Agent or the Administrator in any way relating to
or arising out of this Agreement, the Notes or any of the other
Credit Documents or any action taken or omitted by such
Co-Administrative Agent or the Administrator under this Agreement
or the Notes or any of the other Credit Documents, except to the
extent that the same may result from the gross negligence or
willful misconduct of such Co-Administrative Agent or the
Administrator; provided, however, that at all times during the
continuance of an Event of Default, the aforesaid reimbursement and
indemnity obligations of each Bank shall be determined by each
Bank's pro rata share of the aggregate of the Company's Obligations
(including all Advances) outstanding at such time under this
Agreement, the Notes and each of the other Credit Documents. Each
of the Co-Administrative Agents and the Administrator shall be
fully justified in failing or refusing to take any action under
this Agreement or any other Credit Document unless it shall first
receive such advice or concurrence of the Majority Banks as it
deems appropriate or it shall first be indemnified to its
satisfaction by the Banks against any and all liability and expense
which may be incurred by it by reason of taking or continuing to
take any such action. In all cases each of the Co-Administrative
Agents and the Administrator shall be fully protected in acting, or
in refraining from acting, under this Agreement and the Notes and
Page 48
the other Credit Documents in accordance with a request of the
Majority Banks, and such request and any action taken or failure to
act pursuant thereto shall be binding upon all the Banks and all
future holders of the Notes. If any indemnity in favor of any
Co-Administrative Agent or the Administrator shall be or become, in
such Co-Administrative Agent's or the Administrator's reasonable
determination, inadequate, such Co-Administrative Agent or the
Administrator, as the case may be, may call for additional
indemnification from the Banks and cease to do the acts indemnified
against hereunder until such additional indemnity is given.
Section 8.9. Non-Reliance on Co-Administrative Agents and the
Administrator; Assignment.
(a) Each Bank hereby represents that it has made its own
independent investigation with respect to the creditworthiness and
financial condition of the Company and its Subsidiaries and has not
relied upon any statement or document furnished to it by any
Co-Administrative Agent or the Administrator, or any warranty,
either express or implied, by any Co-Administrative Agent or the
Administrator. Each Bank also acknowledges that it will,
independently of each of the Co-Administrative Agents, the
Administrator and each other Bank, and based on such other
documents, information and investigations as it shall deem
appropriate at any time, continue to make its own credit decisions
as to exercising or not exercising from time to time any rights and
privileges available to it under this Agreement or any of the other
Credit Documents.
(b) Each Bank further represents and warrants that it is
entering into this Agreement for investment purposes and not with
the present intention of distribution or resale. Except as
permitted by Section 10.5 below, no Bank may assign its Commitment
and/or obligations hereunder without the prior consent of the
Co-Administrative Agents and the Company and any such transfers
must comply with all applicable laws.
Section 8.10. Successor Administrator. The Administrator may
resign at any time by giving written notice thereof to the Banks
and the Company, which resignation shall be effective upon the
appointment of a successor Administrator. A successor
Administrator shall be appointed upon a vote of the Majority Banks.
Upon the acceptance of any appointment as Administrator hereunder
by a substitute or successor Administrator, such substitute or
successor Administrator shall thereupon succeed to and become
vested with all the rights, powers, privileges and duties of the
Page 49
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.
Section 8.11. Action by the Administrator. Except as otherwise
provided in this Agreement, the Administrator will take such
action, assert such rights and pursue such remedies under this
Agreement, the Notes and any of the other Credit Documents as the
Majority Banks shall direct and as it shall be entitled to do so.
Except as otherwise expressly provided in this Agreement, the
Administrator will not (and will not be obligated to) take any
action, assert any rights or pursue any remedies under this
Agreement or any of the Notes or any of the other Credit Documents
in violation or contravention of any express direction or
instruction of the Majority Banks. The Administrator may refuse
(and will not be obligated) to take any action, assert any rights
or pursue any remedies under this Agreement or any of the Notes or
any of the other Credit Documents without the express written
direction and instruction of the Majority Banks. No Bank (other
than the Administrator, acting in its capacity as such) shall be
entitled to take any action of any kind under this Agreement or any
Note or any of the other Credit Documents, other than to enforce
payment of amounts due and payable hereunder or under any Note
issued to such Bank.
Section 8.12. Substitution of Banks. (a) Within thirty (30)
days after any Bank has been unable, for any reason, to fund any
Loan requested in accordance with the terms hereof (and to which
the Company is entitled under the terms hereof) (such Bank is
hereinafter referred to as an "Affected Bank"), the Company may
request the non-Affected Banks to acquire all or any portion of
such Affected Bank's Advances and to assume all or such portion of
such Affected Bank's Commitment. The non-Affected Banks may elect
to acquire less than, or none of, the amount of such Affected
Bank's outstanding Advances and to assume less than, or none of,
the amount of the Affected Bank's Commitment that the Company
requested be acquired and be assumed. If the non-Affected Banks do
not elect to acquire or assume all of such Affected Bank's
outstanding Advances and Commitment, and with the written consent
(such consent not to be unreasonably withheld) of non-Affected
Banks constituting the Majority Banks, the Company may designate a
replacement lender or lenders to acquire and assume all or any
portion of the Advances and Commitment of the Affected Bank not
being acquired and assumed by the non-Affected Banks, subject to
the requirement that no such replacement lender may have a
Commitment of less than $5,000,000.
Page 50
(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 Eurodollar Loans, Domestic Loans and Bid
Auction Advances as all the outstanding Advances of the Affected
Bank, and on a date mutually acceptable to the parties. Such
Affected Bank's Commitment shall be allocated among such
non-Affected Banks and/or such replacement lender or lenders in
proportion to their acquisition of the Affected Bank's Advances.
All interest on and all other fees payable on (including, without
limitation, any payment or indemnification due under Section 1.15)
Advances being acquired by the non-Affected Banks and any
replacement lender or lenders accrued as of the date of such
acquisition shall be paid by the Company to the Affected Bank on
the date of such acquisition.
(c) If all of an Affected Bank's outstanding Commitment is
acquired and assumed by a non-Affected Bank or a replacement bank,
the Affected Bank shall be considered to be released from its
obligations related to the assumed Commitment and shall no longer
constitute a Bank for the purposes of this Agreement.
(d) Upon completing any purchase pursuant to this Section 8.12
and upon executing a counterpart of this Agreement, each
replacement lender shall become a Bank hereunder.
(e) If the non-Affected Banks and any replacement lender(s)
are only willing to acquire less than all of the Affected Bank's
outstanding Advances, the Commitment of the Affected Bank shall not
terminate, but shall be reduced in an amount proportionate to the
percentage of its Advances being acquired and the Affected Bank
shall continue to be a Bank hereunder with a reduced Commitment.
(f) The Company shall have no obligation to seek a replacement
lender or take any other action under this Section, and any failure
on the part of an Affected Bank to fund any Advances, unless
otherwise excused hereunder, shall be deemed to be a breach of this
Agreement on the part of such Bank.
Page 51
ARTICLE IX
DEFINITIONS
Section 9.1. Accounting Terms, Changes in GAAP or FASB
Standards. Unless otherwise defined, all accounting terms shall be
construed, and all computations or classifications of assets and
liabilities and of income and expenses shall be made or determined,
on a consolidated basis in accordance with GAAP. If either GAAP or
FASB Standards are changed in the future in such a way as to
materially and adversely change the effect of the financial
covenants and reporting requirements as presently contained in this
Agreement, the Company and the Banks agree to negotiate in good
faith to amend the relevant portions of this Agreement which are
controlled or determined by the application of GAAP or FASB
Standards, so that such relevant portions shall continue to afford
to the Banks the same information, protections and covenants as
provided and contained in this Agreement in its form on this date.
The defined terms used in this Agreement shall apply equally to
both the singular and the plural form of the terms defined. All
references herein to Sections and clauses shall be deemed
references to Sections and clauses of this Agreement unless the
context shall otherwise require. Each reference herein to a
particular Person (including each of the Banks) shall be deemed to
include a reference to such Person's successors and permitted
assigns. Whenever used in this Agreement, the words "include",
"includes" and "including" shall be deemed to be followed by the
phrase "without limitation".
Section 9.2. Other Definitions. As used herein, in the Notes
and (unless otherwise provided therein) in each other Credit
Document or in any certificate, document or report delivered
pursuant to this Agreement, the following terms shall have the
following meanings:
"Accumulated Funding Deficiency" shall have the meaning assigned
to it in Section 302 of ERISA.
"Additional Costs" shall have the meaning assigned to such term
in Section 1.14(a).
"Administrator" shall mean Fleet as the "Administrator"
hereunder and any successor, transferee and assign thereof in such
capacity.
"Administrator's Funding Office" shall mean the Administrator's
office at Hartford, Connecticut, or such other office within the
United States as the Administrator may from time to time designate
by written notice to the Company and the Banks.
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"Advances" shall mean, collectively, with respect to any Bank,
any and all Loans and Bid Auction Advances made by such Bank
pursuant to this Agreement.
"Agents' Fees" shall have the meaning assigned to such term in
Section 1.11(c).
"Agreement" shall mean this Revolving Credit Agreement, as the
same may from time to time be amended, supplemented or otherwise
modified.
"Applicable Margin" shall mean a percentage based upon the
highest of the then applicable credit ratings from either S&P or
Moody's with respect to Public Senior Debt (whether or not any is
outstanding) (and, with respect to determining any applicable
margin for any Loans, based upon the Level of Usage) as follows:
LIBOR LIBOR
Applicable Applicable
Facility Margin (if Margin (if
Fee Base Rate (Level of Level of Usage
Applicable Applicable Usage is is greater than
Credit Rating Margin Margin 70.0% or less) 70.0%)
------------- ---------- ---------- -------------- ----------------
S&P Moody's
- --- -------
A- or A3 or
higher higher 0.125% 0.00% 0.275% 0.375%
BBB+ Baa1 0.150% 0.00% 0.300% 0.400%
BBB Baa2 0.175% 0.00% 0.375% 0.475%
BBB- Baa3 0.225% 0.00% 0.425% 0.525%
BB+ or Ba1 or
below below 0.300% 0.25% 0.700% 0.800%
provided, that if at any time any Public Senior Debt is not rated
by either of S&P or Moody's, such Public Senior Debt shall, for
purposes of this definition, be deemed to have been rated one level
above the highest rating ascribed to the Company's Subordinated
Debt by S&P or Moody's; provided, further, that if at any time
Page 53
neither the Subordinated Debt nor the Public Senior Debt of the
Company is rated by either of S&P or Moody's, or if at any time
neither of S&P nor Moody's is in the business of rating debt
securities such as the Company's Subordinated Debt or Public Senior
Debt, then the Company and the Banks shall enter into good faith
negotiations to establish an alternate basis for determining the
Applicable Margin, either with reference to credit ratings from an
alternative rating agency for any of the Subordinated Debt or
Public Senior Debt or on some other basis mutually acceptable to
the Company and the Banks; provided further, however, that until
such an alternate basis for determining the Applicable Margin is
established, the Applicable Margin shall be the Applicable Margin
in effect immediately prior to such occurrence. The Company
covenants and agrees with each of the Co-Administrative Agents and
the Banks to at all times use its best efforts to cause S&P and
Moody's to issue credit ratings (either publicly or in the form of
letters to the Co-Administrative Agents) for its Public Senior Debt
and/or its Subordinated Debt (whether or not any such Public Senior
Debt or Subordinated Debt is outstanding).
"Assignment and Acceptance" shall mean an assignment and
acceptance agreement, in or substantially in the form of Exhibit H
attached hereto, entered into by a Bank and an assignee of such
Bank pursuant to Section 10.5, and accepted by the Company and the
Co-Administrative Agents.
"Banks" shall have the meaning assigned to such term in the
preamble to this Agreement.
"Base Rate" shall mean, with respect to all Domestic Loans, a
fluctuating rate of interest per annum equal to the higher of (i)
the rate interest most recently announced by the Administrator at
the Administrator's Funding Office as its prime rate for dollar
loans, and (ii) the interest rate quoted to the Administrator for
the purchase of overnight federal funds by brokers of recognized
standing plus one-half of one percentage point (1/2 of 1%).
The Base Rate is not necessarily intended to be the lowest rate of
interest determined by the Administrator in connection with
extensions of credit. Changes in the rate of interest on that
portion of any Domestic Loans maintained as Base Rate Loans will
take effect simultaneously with each change in the Administrator's
prime rate.
"Bid Auction Acceptance" shall mean a notice delivered by the
Company to any Bank or Banks pursuant to Section 1.4(d),
substantially in the form of Exhibit F hereto.
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"Bid Auction Advance" and "Bid Auction Advances" shall mean
an advance made to the Company by any or all of the Banks pursuant
to the terms of Section 1.4.
"Bid Auction Borrowing" shall mean a borrowing under Section
1.4 consisting of one or more Bid Auction Advances made by each of
the Banks whose offer to make a Bid Auction Advance as part of such
borrowing has been accepted by the Company under the auction
bidding procedure described in Section 1.4(d).
"Bid Auction Election Notice" shall mean a notice delivered to
the Administrator pursuant to Section 1.4(b), substantially in the
form of Exhibit D hereto.
"Bid Auction Note" and "Bid Auction Notes" shall have the
respective meanings assigned to such terms in Section 1.4(j).
"Bid Auction Offer" shall mean a notice delivered by any Bank to
the Company pursuant to Section 1.4(c), substantially in the form
of Exhibit E hereto.
"Business Day" shall mean, with respect to Eurodollar Loans,
any day on which commercial banks are open for domestic and
international dealings in Dollar deposits in Hartford, Connecticut,
New York, New York, Boston, Massachusetts and London, England and,
with respect to any other Loans or any Bid Auction Advances or any
other matters, any day other than a day on which commercial banks
in Hartford, Connecticut, Boston, Massachusetts, and New York, New
York, are required or permitted by law to close.
"Change in Control" shall mean the acquisition of more than
fifty percent (50%) of the Company's voting stock by any Person who
is not affiliated with, a member of, or a nominee of the Company's
management, the Kaman family or any trust, corporation, or other
legal entity established by or for the benefit of such affiliated
Person.
"Co-Administrative Agent" and "Co-Administrative Agents" shall
have the respective meanings ascribed to such terms in the preamble
of this Agreement.
"Code" shall mean the Internal Revenue Code of 1986 and all
rules and regulations promulgated pursuant thereto, as the same may
from time to time be supplemented or amended.
"Commitment" and "Commitments" shall have the respective
meanings assigned to such terms in Section 1.1 hereof.
Page 55
"Company" shall have the meaning assigned to such term in the
preamble of this Agreement.
"Consolidated Net Income" shall mean the Company's consolidated
net income as determined under GAAP.
"Consolidated Net Worth" shall mean the Company's consolidated
shareholders equity (including any and all Qualifying Preferred
Stock) as determined under GAAP.
"Consolidated Total Indebtedness" shall mean, as of any date,
any Indebtedness of the Company or any Subsidiary, other than any
Indebtedness of the Company to any wholly-owned Subsidiary or of
any wholly-owned Subsidiary to the Company or any other
wholly-owned Subsidiary.
"Consolidated Tangible Assets" shall mean the Company's
consolidated assets, excluding all Intangible Assets.
"Contingent Liabilities" shall mean any liability, indebtedness
or obligation of the type described in or contemplated by Section
5.3.
"Controlled Group" shall mean all trades or businesses (whether
or not incorporated) under common control which, together with the
Company or any Subsidiary, are treated as a single employer under
Section 414(b) or 414(c) of the Code or Section 4001 of ERISA.
"Credit Documents" means (i) this Agreement, the Notes, each
Subsidiary Guarantee, each Revolving Credit Election Notice, each
Bid Auction Election Notice, each Bid Auction Acceptance and each
other 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
Subsidiary Guarantees are refunded, refinanced or replaced (in
whole or in part) from time to time, as such agreements,
certificates, documents and instruments referred to in clauses (i)
and (ii) of this definition may from time to time be amended,
supplemented, restated, renewed or otherwise modified.
"Default" shall mean any event which, but for the giving of
notice or the lapse of time, or both, would constitute an Event of
Default.
"Dollar", "Dollars" and the sign "$" shall mean lawful money of
the United States of America.
Page 56
"Domestic Loan" shall mean all or any portion of any Loan made
hereunder which bears interest based on the Base Rate.
"Effective Date" shall mean January 29, 1996.
"Environmental Laws" shall mean any and all Requirements of Law
regulating, relating to or imposing liability or standards or
conduct concerning, any Hazardous Substances or environmental
protection.
"ERISA" shall mean the Employee Retirement Income Security Act
of 1974 and all rules and regulations promulgated pursuant thereto,
as the same may from time to time be supplemented or amended.
"Eurodollar Loan" shall mean all or any portion of any Loan made
hereunder which bears interest based on LIBOR.
"Event of Default" and "Events of Default" shall have the
respective meanings assigned to such terms in Section 7.1.
"Existing Credit Agreements" shall mean (collectively) the
Amended and Restated Credit Agreement, dated as of July 15, 1994,
as amended, among the Company, Scotiabank, ABN AMRO Bank N.V.,
Societe Generale and Scotiabank as agent and the Second Amended and
Restated Revolving Credit Agreement, dated as of July 15, 1994, as
amended, among the Company, The Shawmut Bank of Connecticut, as
agent and the other lenders named therein.
"Facility Fee" and "Facility Fees" shall have the respective
meanings assigned to such terms in Section 1.11(a).
"FASB Standards" shall mean the standards established by the
Financial Accounting Standards Board, in effect from time to time.
"Fee" and "Fees" shall mean any and all Upfront Fees, Facility
Fees and/or Agents' Fees.
"Foreign Bank" shall have the meaning assigned to such term in
Section 1.10(b).
"F.R.S. Board" shall mean the Board of Governors of the Federal
Reserve System or any successor thereto.
"GAAP" shall mean generally accepted accounting principles, as
in effect from time to time, applied on a consistent basis.
Page 57
"Governing Documents" shall mean as to any Person, the
articles or certificate of incorporation and by-laws or other
organizational documents of such Person, as amended.
"Governmental Authority" shall mean any nation or government,
any state or other political subdivision thereof, and any entity
exercising any executive, legislative, judicial, regulatory, or
administrative functions of or pertaining to government.
"Guarantee" shall mean, in relation to any Person, any
obligation, contingent or otherwise, of such Person guaranteeing or
having the economic effect of guaranteeing any liabilities of any
other Person in any manner, whether directly or indirectly.
"Hazardous Substances" shall mean any hazardous waste,
substances or materials, any pollutants or contaminants, any toxic
substances, and any other substances regulated by any Environmental
Laws.
"Indebtedness" shall mean, in relation to any Person, without
duplication: (a) all obligations of such Person for borrowed money;
(b) all obligations of such Person evidenced by bonds, debentures
or notes or similar instruments which (in the case of such similar
instruments only) are held by financial institutions; (c) all
obligations of such Person upon which interest charges are
customarily paid, excluding trade indebtedness incurred in the
ordinary course of business; (d) 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); (e) all capitalized lease obligations of such Person;
and (f) all obligations of such Person as an account party in
respect of bankers' acceptances.
"Indemnified Party" and "Indemnified Parties" shall mean each of
the Co-Administrative Agents, the Administrator, each of the Banks,
each affiliate of any of the foregoing and the respective
directors, officers, agents and employees of each of the foregoing,
and each other person controlling any of the foregoing within the
meaning of either Section 15 of the Securities Act of 1933, as
amended, or Section 20 of the Securities Exchange Act of 1934, as
amended.
"Intangible Assets" shall mean any and all goodwill, patents,
patent applications, trademarks, trade names, trade styles,
copyrights, all applications therefor, research and development
costs, tax refunds, and all other assets of the Company and its
Subsidiaries constituting intangible assets as determined by GAAP.
Page 58
"Interest Period" shall mean:
(a) Eurodollar Loans. With respect to each Eurodollar Loan,
the period commencing on the date of such Eurodollar Loan and
ending 1, 3, or 6 months thereafter, as the case may be, as
selected by the Company in compliance with this Agreement and as
set forth in the applicable Election Notice.
(b) Bid Auction Advances. With respect to each Bid Auction
Advance, the period commencing on the date of such Bid Auction
Advance and ending not less than 7 days nor more than 180 days
thereafter, as the Company and the lender of such Bid Auction
Advance may agree, pursuant to Section 1.4.
"Level of Usage" shall mean, at any time, the ratio (expressed
as a percentage) of (x) the aggregate amount of all Advances
outstanding at such time, over (y) the Total Commitment, as then in
effect.
"Liabilities" shall mean any and all losses, claims, damages,
liabilities or other costs or expenses (including reasonable
attorneys' and other professionals' fees and disbursements as and
when incurred by such Indemnified Party) to which an Indemnified
Party may become subject which arise out of or relate to or result
from any transaction, action or proceeding related to or connected
with this Agreement or any other Credit Document, excluding those
losses, claims, damages, liabilities or other costs or expenses
arising for the account of a particular Indemnified Party by reason
of the relevant Indemnified Party's gross negligence, bad faith or
wilful misconduct.
"LIBO Rate" shall mean, with respect to each Interest Period for
a Eurodollar Loan, the rate per annum at which deposits in Dollars
(for a period substantially equal to the period of such Interest
Period and in an amount substantially equal to the principal amount
of such Eurodollar Loan) are offered to the Administrator for
delivery in the LIBOR Market at or about 11:00 A.M., local time two
Business Days prior to the first day of such Interest Period.
"LIBOR" shall mean, relative to any Loan to be made, continued
or maintained as, or converted into, a Eurodollar Loan for any
Interest Period, a rate per annum (rounded upwards, if necessary,
to the nearest 1/16 of 1%) determined pursuant to the following
formula:
LIBOR LIBO Rate
(or "LIBO Rate = ------------------------------
(Reserve Adjusted")) 1.00 - LIBOR Reserve Percentage
Page 59
LIBOR for any Interest Period for Eurodollar Loans will be
determined by the Administrator on the basis of the LIBOR Reserve
Percentage in effect on, and the applicable rates furnished to and
received by the Administrator, two Business Days before the first
day of such Interest Period.
"LIBOR Reserve Percentage" shall mean, relative to any Interest
Period for Eurodollar Loans, the reserve percentage (expressed as a
decimal) equal to the maximum aggregate reserve requirements
(including all basic, emergency, supplemental, marginal and other
reserves and taking into account any transitional adjustments or
other scheduled changes in reserve requirements) specified under
regulations issued from time to time by the F.R.S. Board and then
applicable to assets or liabilities consisting of and including
"Eurocurrency Liabilities", as currently defined in Regulation D of
the F.R.S. Board, having a term approximately equal or comparable
to such Interest Period.
"LIBOR Market" shall mean the London interbank market, or (with
the prior consent of the Company and each of the Banks) any other
lawful offshore market in which deposits of Dollars are offered by
foreign branches of United States banking institutions and by
foreign banking institutions to each other.
"Lien" shall mean any mortgage, pledge, hypothecation, security
interest, encumbrance, charge or lien (statutory or otherwise) in
respect of an interest in property intended to secure, support or
otherwise assure payment of an obligation.
"Loan" or "Loans" shall mean any and all Revolving Credit Loans.
"Majority Banks" shall mean (a) as of any date on which the
Commitments shall be in effect and shall not have been terminated
under the terms hereof, Banks whose aggregate Commitments
constitute at least 66 2/3% of the Total Commitment and (b) as of
any date after the date on which the Commitments shall have been
terminated, Banks holding at least 66 2/3% of the outstanding
principal amount of the Loans and Bid Auction Advances outstanding
on such date.
"Material Adverse Effect" shall mean any of the following: (a)
any materially adverse effect on the business, assets, properties,
operations, prospects or condition, financial or otherwise, of the
Company and its Subsidiaries taken as a whole; (b) any material
impairment of the ability of the Company to perform any of its
obligations under this Agreement, the Notes or any other Credit
Document; (c) any impairment of the ability of any Obligor to
Page 60
perform any of its obligations under any Subsidiary Guarantee which
impairment would either (i) have a material adverse effect on the
obligations of all the Obligors (other than the Company), when
taken together as a whole, or (ii) result in non-compliance with
Section 4.10; or (d) any impairment of the validity or
enforceability of this Agreement, the Notes or any Subsidiary
Guarantee or any of the rights, remedies or benefits to either of
the Co-Administrative Agents, the Administrator or the Banks under
this Agreement, the Notes, any Subsidiary Guarantee or any other
Credit Document.
"Maturity Date" shall have the meaning assigned to such term in
Section 1.1.
"Moody's" shall mean Moody's Investors Service, Inc.
"Note" or "Notes" shall mean any and all of a Revolving Credit
Note, the Revolving Credit Notes, a Bid Auction Note or the Bid
Auction Notes.
"Obligations" shall mean all indebtedness, obligations and
liabilities existing on the date of this Agreement or arising from
time to time thereafter, whether direct or indirect, joint or
several, absolute or contingent, matured or unmatured, 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 or any of the Banks (a) in respect of Loans or Bid
Auction Advances made to the Company by any of the Banks pursuant
to this Agreement, or (b) arising or incurred under or in respect
of this Agreement, any of the Notes or any of the other Credit
Documents.
"Obligor" and "Obligors" shall mean the Company or any
Subsidiary of the Company obligated under any Credit Document.
"Operating Profit" for any fiscal period shall mean the
Company's consolidated operating profit as determined on a
consolidated basis by the application of GAAP, but excluding
interest expense and interest income, special items such as gains
or losses on sales of assets, all taxes on income, any
extraordinary or special items reported net of taxes, and all other
items required by GAAP to be reported as non-operating income.
"PBGC" shall mean the Pension Benefit Guaranty Corporation.
Page 61
"Person" shall mean any individual, corporation, association,
partnership, trust, unincorporated association, business, or other
legal entity, and any government or any governmental agency or
political subdivision thereof.
"Plan" shall mean any employee benefit plan or other plan
maintained for employees covered by Title 10 of ERISA.
"Prohibited Transaction" shall have the meaning assigned to such
term in Section 4975 of the Code.
"Public Senior Debt" shall mean long-term, publicly held senior
indebtedness of the Company (whether or not outstanding).
"Qualifying Preferred Stock" shall mean any issued and
outstanding preferred stock of the Company with respect to which no
mandatory redemption or repurchase is or could be required of the
Company or any of its Subsidiaries prior to the Maturity Date.
"Real Estate" means any real estate owned or operated by the
Company or any of its Subsidiaries.
"Register" shall have the meaning assigned to such term in
Section 10.5(d).
"Reportable Event" shall have the meaning assigned to such term
in Section 4034 of ERISA.
"Requirement of Law" shall mean as to any Person, (i) the
Governing Documents of such Person, and (ii) any law, treaty, rule
or regulation or determination of any arbitrator or a court or
other Governmental Authority, in each case applicable to or binding
upon such Person or any of its property or to which such Person or
any of its property is subject.
"Revolving Credit Election Notice" shall mean a notice delivered
to the Administrator pursuant to clause (a) of Section 1.3,
substantially in the form of Exhibit C hereto.
"Revolving Credit Loan" and "Revolving Credit Loans" shall mean
any Loan made hereunder pursuant to Section 1.1.
"Revolving Credit Note" or "Revolving Credit Notes" shall have
the respective meanings assigned to such terms in Section 1.3.
"S&P" shall mean Standard & Poor's Ratings Group, a division of
McGraw Hill, Inc.
Page 62
"SEC" shall mean the Securities and Exchange Commission.
"Securities Act" shall mean the Securities Act of 1933, as
amended.
"Securities Exchange Act" shall mean the Securities Exchange Act
of 1934, as amended.
"Senior Debt" means, collectively, all obligations of the
Company under or in respect of the Credit Documents, including all
such obligations in respect of principal, interest (including
interest accruing after any bankruptcy or insolvency proceeding is
commenced by or against the Company, whether or not such interest
is an allowed claim in such proceeding), fees, costs, expenses or
indemnities owing under any of the Credit Documents.
"Subordinated Debt" means (i) any Indebtedness of the Company
under the Indenture, dated as of February 4, 1987, between the
Company and Manufacturers Hanover Trust Company, as trustee,
relating to the $85,000,000 (subject to increase to $95,000,000)
principal amount of 6% Convertible Subordinated Debentures of the
Company due 2012 and (ii) any Indebtedness of the Company not
described in the foregoing clause (i) which is expressly
subordinated to all Senior Debt on terms not materially less
favorable to the holders of Senior Debt than the terms of
subordination of the Indebtedness described in clause (i) of this
definition.
"Subsidiary" and "Subsidiaries" shall mean any corporation or
corporations of which more than 50% of the outstanding shares of
stock of each class having ordinary voting power is at the time
owned by the Company and/or by one or more Subsidiaries.
"Subsidiary Guarantee" shall mean each Subsidiary Guarantee
executed and delivered by a Subsidiary of the Company to each of
the Co-Administrative Agents and the Banks pursuant to Section
3.1(a) or Section 4.10 of this Agreement, substantially in the form
of Exhibit I hereto, as amended, supplemented, amended and restated
or otherwise modified from time to time.
"Subsidiary Guarantor" shall mean any Subsidiary of the Company
which (i) has executed a Subsidiary Guarantee pursuant to Section
3.1 on the Effective Date or (ii) is required to execute a
Subsidiary Guarantee in accordance with Section 4.10 of this
Agreement.
"Termination Date" shall mean the date all the Obligations then
due and payable have been paid in full and all the Commitments have
terminated.
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"Total Capitalization" means the aggregate amount at any time of
the Company's Consolidated Net Worth plus the Company's
Consolidated Total Indebtedness.
"Total Commitment" shall have the meaning assigned to such term
in Section 1.1.
"Upfront Fees" shall have the meaning assigned to such term in
Section 1.11(b).
ARTICLE X
MISCELLANEOUS
The covenants set forth in this Article X shall survive the
delivery of the Notes and any Advances made hereunder.
Section 10.1. Expenses. The Company agrees to pay all
out-of-pocket expenses of each of the Co-Administrative Agents
(including reasonable fees and expenses of counsel to the
Co-Administrative Agents), the Administrator (including reasonable
fees and expenses of counsel to the Administrator) and the Banks
(including reasonable fees and expenses of counsel to the Banks)
incurred in connection with: (i) the collection of Obligations due
hereunder, under the Notes or any of the other Credit Documents,
and/or (ii) the defense, protection, preservation, realization or
enforcement of any of the rights or remedies of any of the
Co-Administrative Agents, the Administrator or any of the Banks
under any provisions of this Agreement, any of the Notes or under
any of the other Credit Documents, and/or (iii) the syndication of
the Loans and/or (iv) except to the extent such action, suit or
proceeding arose as a result of the gross negligence, bad faith or
wilful misconduct of such Co-Administrative Agent or the
Administrator or such Bank, any action, suit or proceeding in
accordance with this Section 10.1 (whether or not an Indemnified
Party is a party or is subject thereto); provided that no fees and
expenses of counsel for the Banks (other than the Co-Administrative
Agents and the Administrator) shall be payable by the Company
unless incurred after an Event of Default has occurred.
Section 10.2. Prejudgment Remedy Waiver; Other Waivers. THE
COMPANY ACKNOWLEDGES THAT THE FINANCING EVIDENCED HEREBY IS A
COMMERCIAL TRANSACTION AND WAIVES ITS RIGHTS TO NOTICE AND HEARING
UNDER CHAPTER 903A OF THE CONNECTICUT GENERAL STATUTES, OR AS
OTHERWISE ALLOWED BY ANY STATE OR FEDERAL LAW WITH RESPECT
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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 the Company made herein, in the Notes, in any of the other
Credit Documents or in any certificates or other documents
delivered by or on behalf of the Company pursuant hereto shall be
deemed to have been relied on by each of the Co-Administrative
Agents and each of the Banks notwithstanding any investigation
heretofore or hereafter made by it, and shall survive the advances
of money made by any Bank to the Company hereunder, the delivery of
the Notes, and each of the other Credit Documents and all such
covenants, agreements, warranties and representations shall be
binding upon the Company and inure to the benefit of the Bank(s)
and their respective successors and assigns, whether or not so
expressed.
Section 10.4. Amendments and Waivers. Neither this Agreement,
the Notes, or any of the other Credit Documents, nor any term,
covenant or condition hereof or thereof may be changed, waived,
discharged, modified or terminated except by a writing executed in
compliance with Section 8.7. No failure on the part of any of the
Co-Administrative Agents, the Administrator or any of the Banks to
exercise, and no delay in exercising, and no course of dealing with
respect to, any right, remedy or power hereunder, under any Note,
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.
Page 65
Section 10.5. Transfer of Bank's Interest.
(a) To the extent set forth in this Section 10.5, the
Company hereby agrees that any of the Banks may sell, assign or
otherwise transfer all or any portion of its interests, rights and
obligations under this Agreement or, any of the Notes (including
all or a portion of its Commitment and the Advances at any time
owing to it and the Note or Notes held by it), on the condition
that in any such transfer: (i) the transferee be bound to any
confidentiality obligations the transferring Bank owes to the
Company; and (ii) the transferring Bank make the transfer in
compliance with this Section 10.5.
(b) Each Bank may, with the consent (which consent will not
be unreasonably withheld or delayed) of the Company and each of the
Co-Administrative Agents, assign to one or more banks or other
financial institutions all or a portion of its interests, rights
and obligations under this Agreement or any of the Notes (including
all or a portion of its Commitment and the Advances at the time
owing to it and the Note or Notes held by it); provided, however,
that (i) the amount of the Commitment and Advances of the assigning
Bank subject to each such assignment (determined as of the date the
Assignment and Acceptance with respect to such assignment is
delivered to the Co-Administrative Agents) shall not be less than
$5,000,000, and (ii) the parties to each such assignment shall
execute and deliver to each Co-Administrative Agent an Assignment
and Acceptance, together with the Notes subject to such assignment
and a processing and recordation fee of $2,500 payable to the
Administrator. Upon acceptance and recording pursuant to clause
(e) of this Section 10.5, from and after the effective date
specified in each Assignment and Acceptance, which effective date
shall be at least five (5) Business Days after the execution
thereof, (A) the assignee thereunder shall be a party hereto and,
to the extent provided in such Assignment and Acceptance, have the
rights and obligations of a Bank under this Agreement (which
obligations shall in any event include all obligations from which
the assigning Bank is released as provided in such Assignment and
Acceptance) and (B) the assigning Bank thereunder shall to the
extent provided in such Assignment and Acceptance, be released from
its obligations under this Agreement (and, in the case of an
Assignment and Acceptance covering all or the remaining portion of
an assigning Bank's rights and obligations under this Agreement,
such Bank shall cease to be a party hereto but shall continue to be
Page 66
entitled to the benefits of Sections 1.15, 1.16, 10.1 and 10.9).
Notwithstanding the foregoing, any Bank may assign, without the
consent of the Company or the Co-Administrative Agents, (x) all of
its rights and interests in respect of any Bid Auction Advance to
any person, without payment of the processing and recordation fee
referred to above in this clause (b), and (y) all or a portion of
its interests, rights and obligations under this Agreement or any
of the Notes (including all or a portion of its Commitment and the
Advances at the time owing to it and the Note or Notes held by it)
to any affiliate of such Bank; provided that no such assignment to
any affiliate of any Bank pursuant to the foregoing clause (y)
shall relieve such assigning Bank of its obligations hereunder
unless the Company shall have consented to such assignment (it
being understood that the Company's consent shall not be
unreasonably withheld or delayed).
(c) By executing and delivering an Assignment and
Acceptance, the assigning Bank thereunder and the assignee
thereunder shall be deemed to confirm to and agree with each other
and the other parties hereto as follows: (i) other than the
representation and warranty by the assigning Bank that it is the
legal and beneficial owner of the interest being assigned thereby
free and clear of any lien or security interest, neither such
assigning Bank, nor any Co-Administrative Agent, nor the
Administrator, nor any other Bank makes any representation or
warranty or assumes any responsibility with respect to any
statements, warranties or representations made in or in connection
with this Agreement or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of this
Agreement, any of the Notes, any of the other Credit Documents or
any other instrument or document furnished pursuant hereto; (ii)
neither such assigning Bank, nor any Co-Administrative Agent, nor
the Administrator, nor any other Bank makes any representation or
warranty or assumes any responsibility with respect to the
financial condition of the Company or any of its Subsidiaries or
the performance or observance by the Company of any of its
obligations under this Agreement, any of the Notes, any other
Credit Document or any other instrument or document furnished
pursuant hereto; (iii) such assignee confirms that it has received
a copy of this Agreement, together with copies of the most recent
financial statements delivered pursuant to Section 4.1 and such
other documents and information as it has deemed appropriate to
make its own credit analysis and decision to enter into such
Assignment and Acceptance; (iv) such assignee will independently
and without reliance upon any Co-Administrative Agent, such .
Page 67
assigning Bank, the Administrator or any other Bank and based on
such documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not
taking action under this Agreement and any Notes payable to it or
under any other Credit Document; (v) such assignee appoints each of
the Co-Administrative Agents as Co-Administrative Agent for it and
appoints and authorizes the Administrator to take such action as
agent on its behalf and to exercise such powers under this
Agreement as are delegated to the Administrator by the terms
hereof, together with such powers as are reasonably incidental
thereto; and (vi) such assignee agrees that it will perform in
accordance with their terms all the obligations which by the terms
of this Agreement are required to be performed by it as a Bank.
(d) The Administrator shall maintain at one of its offices
in Hartford, Connecticut a copy of each Assignment and Acceptance
delivered to it and a register for the recordation of the names and
addresses of the Banks, and the Commitment of, and the principal
amount of the Loans and Bid Auction Advances owing to, each Bank
pursuant to the terms hereof from time to time (the "Register").
The entries in the Register shall be conclusive in the absence of
manifest error and the Company, each of the Co-Administrative
Agents, the Administrator and each of the Banks may treat each
person whose name is recorded in the Register pursuant to the terms
hereof, as a Bank hereunder for all purposes of this Agreement.
The Register shall be available for inspection by the Company and
any Bank, at any reasonable time and from time to time upon
reasonable prior notice.
(e) Upon the Administrator's receipt of a duly completed
Assignment and Acceptance executed by an assigning Bank and an
assignee, and accepted by the Company and each of the
Co-Administrative Agents, together with each Note subject to such
assignment and the processing and recording fee referred to in
clause (b) above, the Administrator shall record the information
contained therein in the Register. Within five (5) Business Days
after receipt of notice, the Company, at its own expense, shall
execute and deliver to the Administrator, in exchange for such
surrendered Note, a new Note to the order of such assignee in a
principal amount equal to the applicable Commitment and Loans
assumed by it pursuant to such Assignment and Acceptance and, if
the assigning Bank has retained a Commitment and Loans, a new Note
to the order of such assigning Bank in a principal amount equal to
the applicable Commitment and Loans retained by it. Such new Notes
shall be in an aggregate principal amount equal to the principal
amount of such surrendered Note; such new Notes shall be dated the
date of the surrendered Note which it replaces. Cancelled Notes
shall be returned to the Company.
Page 68
(f) Each Bank may (without the consent of the Company or any
Co-Administrative Agent) sell participations to one or more banks
or other financial institutions ("Participants") in all or any part
of its rights and obligations under this Agreement and the Note or
Notes held by it (including all or a portion of its Commitment and
the Advances owing to it); provided, however, that (i) such Bank's
obligations under this Agreement shall remain unchanged, (ii) such
Bank shall remain solely responsible to the other parties hereto
for the performance of such obligations, (iii) Participants shall
be entitled to the benefit of the cost protection provisions
contained in Section 1.14 and Section 1.15 but shall not be
entitled to receive any greater payment thereunder than the Bank
from which such Participant acquired its participation would be
entitled to receive with respect to the interest so sold if such
interest had not been sold and (iv) the Company, each of the
Co-Administrative Agents, the Administrator and the other Banks
shall continue to deal solely and directly with such Bank in
connection with such Bank's rights and obligations under this
Agreement, and such Bank shall retain the sole right to enforce the
obligations of the Company relating to the Loans and Bid Auction
Advances and to approve any amendment, modification or waiver of
any provision of this Agreement. Except as provided herein, no
Participant shall have any rights under this Agreement (each
Participant's rights against the Bank in respect of such
participation to be those set forth in the agreement executed by
such Bank in favor of such Participant) and all amounts payable by
the Company shall be determined as if such Bank had not sold such
participation. Except with respect to a reduction of interest
rate, increases in the principal amount of any Bank's Commitment, a
reduction of the amount of any Fees or the principal amount of any
Advance without payment in full thereof, an extension of scheduled
dates for payment of principal, interest, Fees or scheduled
termination dates, or the amendment or modification of any
Subsidiary Guarantee (or release of any Subsidiary from its
obligations thereunder), the Bank making any participation will not
in any agreement with the Participant restrict such participating
Bank's ability to make any modification, amendment or waiver to
this Agreement.
(g) The Company shall not assign or delegate any of its
rights or duties hereunder, except pursuant to a merger of the
Company with and into a domestic Subsidiary in compliance with
Section 5.4.
(h) Nothing herein shall prohibit any Bank from pledging or
assigning any Note to any Federal Reserve Bank in accordance with
applicable law.
Page 69
Section 10.6. Notices. Except as otherwise permitted herein,
all notices, requests, consents, demands and other communications
hereunder shall be in writing and shall be mailed by first class
mail or sent by overnight courier or delivered in hand or sent by
telegraph or facsimile transmission to the respective parties to
this Agreement as follows:
The Company: Kaman Corporation
Blue Hills Avenue
Bloomfield, Connecticut 06002
Attention: Robert M. Garneau
Executive Vice President &
Chief Financial Officer
Facsimile No: (860) 243-7922
The Co-
Administrative
Agents: The Bank of Nova Scotia
101 Federal Street
Boston, Massachusetts 02110
Attention: Stephen Johnson
Facsimile No: (617) 951-2177
Fleet National Bank of Connecticut
777 Main Street MSN 203
Hartford, Connecticut 06115
Attention: Jeff Lynch
Facsimile No: (860) 986-9378
The
Administrator: Fleet National Bank of Connecticut
777 Main Street MSN 203
Hartford, Connecticut 06115
Attention: Jeff Lynch
Facsimile No: (860) 986-9378
Each of the
Banks: As set forth below such Bank's signature hereto.
Page 70
Notices hereunder shall be deemed to have been given when (a) if
delivered by hand or telecopied or otherwise telecommunicated, to a
responsible officer of the party to which it is directed, at the
time of receipt thereof by such officer, (b) if sent by registered
or certified mail, postage prepaid, three days after the date when
mailed, or (c) if sent by overnight mail or overnight courier
service, to such a responsible officer, when received by such
officer. With respect to notices given by the Company to the
Administrator pursuant to Section 1.3, 1.4, 1.5 or 1.8 hereof, such
notices may be given by telephone if they are confirmed by a
writing received by the Administrator within one (1) Business Day
after the giving of such telephonic notice and in any event prior
to funding or conversion of the borrowing pursuant to Section 1.3,
1.4 or 1.5 or prepayment pursuant to Section 1.8.
Section 10.7. Headings; Severability: Entire Agreement.
Section and subsection headings have been inserted herein for
convenience only and shall not be construed as part of this
Agreement. Every provision of this Agreement, the Notes and the
other Credit Documents is intended to be severable; if any term or
provision of this Agreement, the Notes, the other Credit Documents,
or any other document delivered in connection herewith or therewith
shall be invalid, illegal or unenforceable for any reason
whatsoever, the validity, legality and enforceability of the
remaining provisions hereof or thereof shall not in any way be
affected or impaired thereby. All Exhibits and Schedules to this
Agreement shall be annexed hereto and shall be deemed to be part of
this Agreement. This Agreement, the other Credit Documents and the
Exhibits and Schedules attached hereto embody the entire Agreement
and understanding between the Company, the Banks, the Administrator
and the Co-Administrative Agents and supersede all prior agreements
and understandings relating to the subject matter hereof.
Section 10.8. Governing Law. This Agreement, the Notes, and
each other Credit Document and all other documents contemplated
hereby are being delivered, and are intended to be performed, in
the State of Connecticut and shall be construed and enforceable in
accordance with, and governed by, the laws of the State of
Connecticut.
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.
Page 71
Section 10.10. Waiver of Jury Trial. THE CO-ADMINISTRATIVE
AGENTS, THE ADMINISTRATOR, THE BANKS, AND THE COMPANY HEREBY
KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY WAIVE ANY RIGHTS THEY MAY
HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON,
OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS AGREEMENT OR
THE NOTES OR ANY OTHER CREDIT DOCUMENT, OR ANY COURSE OF CONDUCT,
COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN), OR
ACTIONS OF ANY OF THE CO-ADMINISTRATIVE AGENTS, THE ADMINISTRATOR,
ANY OF THE BANKS OR THE COMPANY. THIS PROVISION IS A MATERIAL
INDUCEMENT FOR EACH CO-ADMINISTRATIVE AGENT, THE ADMINISTRATOR AND
EACH BANK TO BECOME A PARTY TO THIS AGREEMENT.
Section 10.11. Consent to Jurisdiction. For the purposes of
any action or proceeding involving this Agreement or any of the
Notes or any other Credit Document, each of the parties hereto on
the date hereof hereby expressly consents to the exclusive
jurisdiction of any Federal or state court located in Connecticut.
Each party becoming a Bank hereunder after the date hereof pursuant
to an Assignment and Acceptance shall, in such Assignment and
Acceptance, consent to the exclusive jurisdiction of any Federal or
state court located in Connecticut.
Section 10.12. Effective Date. This Agreement shall become
effective among the parties hereto as of the Effective Date.
Page 72
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.
KAMAN CORPORATION
By:--------------------------------
Name:
Title:
THE BANK OF NOVA SCOTIA,
as a Co-Administrative Agent
By:--------------------------------
Name: T.M. Pitcher
Title: Vice President
FLEET NATIONAL BANK OF CONNECTICUT,
as a Co-Administrative Agent and
the Administrator
By:--------------------------------
Name: Jeffrey C. Lynch
Title: Vice President
Page 73
BANKS
THE BANK OF NOVA SCOTIA
By
Name: T.M. Pitcher
Title: Vice President
Domestic
Office: 101 Federal Street
Boston, MA 02110
Facsimile No.: (617) 951-2177
Attention: S.M. Johnson
R.P. Reynolds
LIBOR
Office: 101 Federal Street
Boston, MA 02110
Facsimile No.: (617) 951-2177
Attention: S.M. Johnson
R.P. Reynolds
Page 74
FLEET NATIONAL BANK OF CONNECTICUT
By
Name: Jeffrey C. Lynch
Title: Vice President
Domestic
Office: 777 Main St., CT MO 0203
Hartford, CT 06115
Facsimile No.: (860) 986-9378
Attention: Jeffrey C. Lynch
LIBOR
Office: 777 Main St., CT MO 0203
Hartford, CT 06115
Facsimile No.: (860) 986-9378
Attention: Jeffrey C. Lynch
Page 75
NATIONSBANK, N.A.
By
Name:
Title:
Domestic
Office: NationsBank, N.A.
767 Fifth Avenue
5th Floor
New York, NY 10153
Facsimile No.: (212) 593-1083
Attention: Mr. Tom McCaskill
Ms. Barbara Agostini
NY1-003-05-01
LIBOR
Office: NationsBank, N.A.
100 N. Tryon Street
Charlotte, NC 28255
Facsimile No.: (704) 386-8694
Attention: Ms. Carole Greene
NC1-001-15-03
Page 76
THE SUMITOMO BANK, LIMITED,
NEW YORK BRANCH
By
Name:
Title:
Domestic
Office: The Sumitomo Bank,
Limited, New York Branch
277 Park Avenue
New York, NY 10172
Facsimile No.: (212) 224-5188
Attention: Angelo Balestrieri
LIBOR
Office: The Sumitomo Bank,
Limited, New York Branch
277 Park Avenue
New York, NY 10172
Facsimile No.: (212) 224-5188
Attention: Angelo Balestrieri
Page 77
ABN AMRO BANK N.V., BOSTON BRANCH
By
Name:
Title:
By
Name:
Title:
Domestic
Office: ABN AMRO Bank N.V.,
Boston Branch
One Post Office Square
39th Floor
Boston, MA 02109
Facsimile No.: (617) 988-7910
Attention: James E. Davis
LIBOR
Office: ABN AMRO Bank N.V.,
Boston Branch
One Post Office Square
39th Floor
Boston, MA 02109
Facsimile No.: (617) 988-7910
Attention: Kerry Silvieus
Page 78
THE FIRST NATIONAL BANK OF BOSTON
By
Name: Harvey H. Thayer, Jr.
Title: Director
Domestic
Office: 100 Federal St., 01-09-04
Boston, MA 02110
Facsimile No.: (617) 434-0637
Attention: Harvey H. Thayer, Jr.
LIBOR
Office: 100 Federal St., 01-10-07
Boston, MA 02110
Facsimile No.: (617) 434-4695
Attention: Larry Faccini
Page 79
DEUTSCHE BANK AG, NEW YORK AND/OR
CAYMAN ISLANDS BRANCHES
By
Name: J. Tracy Mehr
Title: Vice President
By
Name: James Fox
Title: Assistant Vice President
Domestic
Office: Deutsche Bank AG, New York
Branch
31 West 52nd Street
New York, NY 10019
Facsimile No.: (212) 469-7880
Attention: Mr. Noble Samuel
Loan Administrator
LIBOR
Office: Deutsche Bank AG, Cayman
Islands Branch
c/o Deutsche Bank AG, New
York Branch
31 West 52nd Street
New York, NY 10019
Facsimile No.: (212) 469-7880
Attention: Mr. Noble Samuel
Loan Administrator
Page 80
FIRST NATIONAL BANK OF CHICAGO
By
Name: Maria P. Ahern
Title: Agent
Domestic
Office: One First National Plaza
Suite 0634
Chicago, IL 60670
Facsimile No.: (312) 732-4840
Attention: Benjamin S. Oliva
LIBOR
Office: One First National Plaza
Suite 0634
Chicago, IL 60670
Facsimile No.: (312) 732-4840
Attention: Benjamin S. Oliva
Page 81
MELLON BANK, N.A.
By
Name: Peyton R. Latimer
Title: Senior Vice President
Domestic
Office: Mellon Bank, N.A.
3 Mellon Bank Center
Room 153-2302
Pittsburgh, PA 15259
Facsimile No.: (412) 236-2028
Attention: Jacqueline Lucas
Loan Administrator
LIBOR
Office: Mellon Bank, N.A.
3 Mellon Bank Center
Room 153-2302
Pittsburgh, PA 15259
Facsimile No.: (412) 236-2028
Attention: Jacqueline Lucas
Loan Administrator
Page 82
WACHOVIA BANK OF GEORGIA, N.A.
By
Name: Terence A. Snellings
Title: Senior Vice President
Domestic
Office: 191 Peachtree St. N.E.
Atlanta, GA 30303
Facsimile No.: (404) 332-6898
Attention: Tomeka Henry
LIBOR
Office: 191 Peachtree St. N.E.
Atlanta, GA 30303
Facsimile No.: (404) 332-6898
Attention: Tomeka Henry
Page 83
FIRST UNION NATIONAL BANK OF
NORTH CAROLINA
By
Name: Mark M. Harden
Title: Vice President
Domestic
Office: First Union National Bank
of North Carolina
301 South College Street
Charlotte, NC 28288
Facsimile No.: (704) 374-2802
Attention: Ted Noneman
LIBOR
Office: First Union National Bank
of North Carolina
301 South College Street
Charlotte, NC 28288
Facsimile No.: (704) 374-2802
Attention: Ted Noneman
Page 84
EXHIBIT A
REVOLVING CREDIT NOTE
$--------- January 29, 1996
FOR VALUE RECEIVED, the undersigned KAMAN CORPORATION, a
Connecticut corporation (the "Company"), hereby absolutely and
unconditionally promises to pay to the order of -------------
(the "Bank"), at the Administrator's Funding Office:
(a) On the Maturity Date the principal amount of
- ---------------DOLLARS ($ ) or, if less, the aggregate
unpaid principal amount of all Revolving Credit Loans outstanding
on the Maturity Date and made by the Bank to the Company pursuant
to the Revolving Credit Agreement, dated as of January 29, 1996
(as the same is amended or otherwise modified and in effect from
time to time, the "Credit Agreement"), among the Company, the
various financial institutions (including the Bank) as are or may
from time to time become parties thereto, and The Bank of Nova
Scotia ("Scotiabank") and Fleet National Bank of Connecticut
("Fleet"), as the Co-Administrative Agents; and
(b) interest on the principal balance hereof from time
to time outstanding from the date hereof through and including
the date on which such principal amount is paid in full, at the
times and at the rates provided in the Credit Agreement.
This Note evidences borrowings under and has been issued by
the Company in accordance with the terms of the Credit Agreement,
and is one of the Revolving Credit Notes referred to therein.
The Bank and any other holder hereof are entitled to the benefits
of the Credit Agreement and may enforce the agreements of the
Company contained therein, and may exercise the respective
remedies provided for thereby or otherwise available in respect
thereof, all in accordance with the respective terms thereof.
All capitalized terms which are used in this Note without
definition and which are defined in the Credit Agreement shall
have the same meanings herein as in the Credit Agreement.
The Bank shall, and is hereby irrevocably authorized by the
Company to, endorse on the schedule attached to this Note or a
continuation of such schedule attached hereto and made a part
hereof, an appropriate notation evidencing advances and
Page 85
repayments of principal of this Note; provided, that failure by
the Bank to make any such notations shall not affect any of the
Company's obligations in respect of this Note.
The Company has the right in certain circumstances and the
obligation in certain other circumstances to prepay the whole or
part of the principal of this Note on the terms and conditions
specified in the Credit Agreement.
If any one or more of the Events of Default shall occur and
be continuing, the entire unpaid principal amount of this Note
and all of the unpaid interest accrued thereon may become or be
declared due and payable in the manner and with the effect
provided in the Credit Agreement.
THE COMPANY ACKNOWLEDGES THAT THE FINANCING EVIDENCED BY THE
CREDIT AGREEMENT AND THIS NOTE IS A COMMERCIAL TRANSACTION AND
WAIVES ITS RIGHTS TO NOTICE AND HEARING UNDER CHAPTER 903a OF THE
CONNECTICUT GENERAL STATUTES, OR AS OTHERWISE ALLOWED BY ANY
STATE OR FEDERAL LAW WITH RESPECT TO ANY PREJUDGMENT REMEDY WHICH
ANY AGENT MAY DESIRE TO USE.
Except as otherwise expressly provided in the Credit
Agreement, the Company and every endorser and guarantor of this
Note or the obligations represented hereby (including each of the
Significant Subsidiaries parties to any of the Subsidiary
Guarantees) waive presentment, demand, notice, protest and all
other demands and notices in connection with the delivery,
acceptance, performance, default or enforcement of this Note,
assent to any extension or postponement of the time of payment of
any amounts payable hereunder or under the Credit Agreement and
any other indulgence in respect hereof or thereof.
This Note shall be construed in accordance with the laws of
the State of Connecticut.
IN WITNESS WHEREOF, KAMAN CORPORATION has caused this
REVOLVING CREDIT NOTE to be signed in its corporate name and its
corporate seal to be impressed hereon by its duly authorized
officer as of the day and year first above written.
KAMAN CORPORATION
[Corporate Seal]
By:
Name:
Title:
Attest:
Page 86
Amount of
Interest Principal
Rate Amount Balance of
(Domestic/ Interest of Paid or Principal Notation
Date Eurodollar) Period Advance Prepaid Unpaid Made By
- ------------------------------------------------------------------------
- ------------------------------------------------------------------------
- ------------------------------------------------------------------------
Page 87
EXHIBIT B
BID AUCTION NOTE
$250,000,000 January 29, 1996
FOR VALUE RECEIVED, the undersigned KAMAN CORPORATION, a
Connecticut corporation (the "Company"), hereby absolutely and
unconditionally promises to pay to the order of ---------------
(the "Bank"), at the Administrator's Funding Office:
(a) On the last day of each Interest Period for any
Bid Auction Advance made by the Bank to the Company pursuant to
the Revolving Credit Agreement, dated as of January 29, 1996 (as
the same is amended or otherwise modified and in effect from time
to time, the "Credit Agreement"), among the Company, the various
financial institutions (including the Bank) as are or may from
time to time become parties thereto, and The Bank of Nova Scotia
("Scotiabank") and Fleet National Bank of Connecticut ("Fleet"),
as the Co-Administrative Agents thereunder, and on the Maturity
Date, the principal amount of TWO HUNDRED FIFTY MILLION DOLLARS
($250,000,000) or, if less, the aggregate unpaid principal amount
of such Bid Auction Advance outstanding on such date; and
(b) interest on the principal amount of each Bid
Auction Advance from time to time outstanding from the date such
Bid Auction Advance is made through and including the date on
which such principal amount is paid in full, at the times and at
the rates provided in the Credit Agreement.
This Note evidences borrowings under and has been issued by
the Company in accordance with the terms of the Credit Agreement,
and is one of the Bid Auction Notes referred to therein. The
Bank and any other holder hereof are entitled to the benefits of
the Credit Agreement and may enforce the agreements of the
Company contained therein, and may exercise the respective
remedies provided for thereby or otherwise available in respect
thereof, all in accordance with the respective terms thereof.
All capitalized terms which are used in this Note without
definition and which are defined in the Credit Agreement shall
have the same meanings herein as in the Credit Agreement.
Page 88
The Bank shall, and is hereby irrevocably authorized by the
Company to, endorse on the schedule attached to this Note or a
continuation of such schedule attached hereto and made a part
hereof, an appropriate notation evidencing advances and
repayments of principal of this Note; provided, that failure by
the Bank to make any such notations shall not affect any of the
Company's obligations in respect of this Note.
The Company has the right in certain circumstances and the
obligation in certain other circumstances to prepay the whole or
part of the principal of this Note on the terms and conditions
specified in the Credit Agreement.
If any one or more of the Events of Default shall occur and
be continuing, the entire unpaid principal amount of this Note
and all of the unpaid interest accrued thereon may become or be
declared due and payable in the manner and with the effect
provided in the Credit Agreement.
THE COMPANY ACKNOWLEDGES THAT THE FINANCING EVIDENCED BY THE
CREDIT AGREEMENT AND THIS NOTE IS A COMMERCIAL TRANSACTION AND
WAIVES ITS RIGHTS TO NOTICE AND HEARING UNDER CHAPTER 903a OF THE
CONNECTICUT GENERAL STATUTES, OR AS OTHERWISE ALLOWED BY ANY
STATE OR FEDERAL LAW WITH RESPECT TO ANY PREJUDGMENT REMEDY WHICH
ANY AGENT MAY DESIRE TO USE.
Except as otherwise expressly provided in the Credit
Agreement, the Company and every endorser and guarantor of this
Note or the obligations represented hereby (including each of the
Significant Subsidiaries parties to any of the Subsidiary
Guarantees) waive presentment, demand, notice, protest and all
other demands and notices in connection with the delivery,
acceptance, performance, default or enforcement of this Note,
assent to any extension or postponement of the time of payment of
any amounts payable hereunder or under the Credit Agreement and
any other indulgence in respect hereof or thereof.
This Note shall be construed in accordance with the laws of
the State of Connecticut.
IN WITNESS WHEREOF, KAMAN CORPORATION has caused this BID
AUCTION NOTE to be signed in its corporate name and its corporate
seal to be impressed hereon by its duly authorized officer as of
the day and year first above written.
KAMAN CORPORATION
[Corporate Seal] By:
Attest: Name:
Title:
Page 89
Amount of
Interest Principal
Rate Amount Balance of
(Domestic/ Interest of Paid or Principal Notation
Date Eurodollar) Period Advance Prepaid Unpaid Made By
- ------------------------------------------------------------------------
- ------------------------------------------------------------------------
- ------------------------------------------------------------------------
Page 90
EXHIBIT C
REVOLVING CREDIT ELECTION NOTICE
Fleet National Bank of Connecticut,
as Administrator
75 State Street
Boston, Massachusetts 02109
Attention: -----------------
KAMAN CORPORATION
Gentlemen and Ladies:
This Revolving Credit Election Notice is delivered to you
pursuant to clause (a) of Section 1.3 of the Revolving Credit
Agreement, dated as of January 29, 1996 (as the same is amended
or otherwise modified and in effect from time to time, the
"Credit Agreement"), among Kaman Corporation (the "Company"), a
Connecticut corporation, the various financial institutions as
are or may from time to time become parties thereto (the
"Banks"), and The Bank of Nova Scotia ("Scotiabank") and Fleet
National Bank of Connecticut ("Fleet"), as the Co-Administrative
Agents. Unless otherwise defined herein or the context otherwise
requires, terms used herein have the meanings provided in the
Credit Agreement.
The Company hereby requests that a Revolving Credit Loan be
made in the aggregate principal amount of $------------- on
- -------- ---, 199- as [a Domestic Loan] [a Eurodollar Loan having
an Interest Period of [1] [3] [6] month[s]].
The Company hereby certifies and warrants that, pursuant to
Section 3.2 of the Credit Agreement, each of the delivery of this
Revolving Credit Election Notice and the acceptance by the
Company of the proceeds of the Revolving Credit Loans requested
hereby, constitute a representation and warranty that, on the
date the Revolving Credit Loans requested hereby are made, and
both before and after giving effect thereto and to the
application of the proceeds therefrom, all statements set forth
in clauses (c) and (d) of Section 3.2 of the Credit Agreement are
true and correct in all material respects. The Company further
certifies and warrants that on the date the Revolving Credit
Loans proposed hereby are made, the aggregate amount of the
proposed Revolving Credit Loans and all other Loans and Advances
outstanding after giving effect to such Revolving Credit Loans
(and any prepayments required pursuant to Section 1.8 of the
Credit Agreement) will not exceed the Total Commitment, as in
effect on such date.
Page 91
The Company agrees that if prior to the time of the funding
of the Revolving Credit Loans requested hereby any matter
certified to herein by it will not be true and correct at such
time as if then made, it will immediately so notify the
Administrator. Except to the extent, if any, that prior to the
time of the funding of the Revolving Credit Loans requested
hereby the Administrator shall receive written notice to the
contrary from the Company, each matter certified to herein shall
be deemed once again to be certified as true and correct at the
date of the funding of such Revolving Credit Loans as if then
made.
The Company hereby confirms that the requested Revolving
Credit Loans are to be made available to it in accordance with
Section 1.3 of the Credit Agreement.
The Company has caused this Revolving Credit Election Notice
to be executed and delivered, and the certification and
warranties contained herein to be made, by its duly authorized
officer this ----- day of ---------, 199-.
KAMAN CORPORATION
By:
Name:
Title:
Page 92
EXHIBIT D
BID AUCTION ELECTION NOTICE
Fleet National Bank of Connecticut,
as Administrator
75 State Street
Boston, Massachusetts 02109
Attention: -----------------
KAMAN CORPORATION
Gentlemen and Ladies:
This Bid Auction Election Notice is delivered to you
pursuant to clause (b) of Section 1.4 of the Revolving Credit
Agreement, dated as of January 29, 1996 (as the same is amended
or otherwise modified and in effect from time to time, the
"Credit Agreement"), among Kaman Corporation, a Connecticut
corporation (the "Company"), the various financial institutions
as are or may from time to time become parties thereto (the
"Banks"), and The Bank of Nova Scotia ("Scotiabank") and Fleet
National Bank of Connecticut ("Fleet"), as the Co-Administrative
Agents. Unless otherwise defined herein or the context otherwise
requires, terms used herein have the meanings provided in the
Credit Agreement.
The Company hereby proposes that a Bid Auction Borrowing be
made on the following terms:
A. 1. Date of Bid Auction
Borrowing: *----------- , 19--
2. Aggregate Amount of Bid
Auction Borrowing: $-------------------
3. Bid Auction Advance Maturity
Date(s) for repayment of such
Bid Auction Advance(s): -------------, 19--
4. The Interest Period(s) for such
Bid Auction Advance(s) **------------------
5. Bid Auction Advance Interest
- ----------------
* Must be at least one (1) business day after the delivery of
this Bid Auction Election Notice.
** Must be for such duration of 7 to 180 days.
Page 93
Payment Date(s): *-------------- ,19--
**[B.1. Date of Bid Auction
Borrowing: -------------, 19--
2. Aggregate Amount of Bid
Auction Borrowing: $ -------------------
3. Bid Auction Advance Maturity
Date(s) for repayment of such
Bid Auction Advance(s): ------------, 19--
4. The Interest Period(s) for such
Bid Auction Advance(s): -------------------
5. Bid Auction Advance Interest
Payment Date(s): ------------, 19--
C. 1. Date of Bid Auction
Borrowing: -----------, 19--
2. Aggregate Amount of Bid
Auction Borrowing: $ ------------------
3. Bid Auction Advance Maturity
Date(s) for repayment of such
Bid Auction Advance(s): -----------, 19--
4. The Interest Period(s) for such
Bid Auction Advance(s): -----------------
5. Bid Auction Advance Interest
Payment Date(s): ---------, 19--]
- -------------------
* Insert the Bid Auction Advance Maturity Date, and if the
Bid Auction dvance Maturity Date occurs more than three
months after the date of the proposed Bid Auction Advance,
the date occurring on each three (and integral of three)
month anniversary of the making of the Advance after the
date of such Bid Auction Advance.
** Insert if more than one Bid Auction Advance is requested.
Page 94
The Company hereby certifies and warrants that, pursuant to
Section 3.2 of the Credit Agreement, the delivery of this Bid
Auction Election Notice constitutes a representation and warranty
that, on the date the Bid Auction Advances requested hereby are
made, and both before and after giving effect thereto and to the
application of the proceeds therefrom, all statements set forth
in clauses (c) and (d) of Section 3.2 of the Credit Agreement are
true and correct in all material respects. The Company further
certifies and warrants that on the date the Bid Auction Advances
proposed hereby are made, the aggregate amount of the proposed
Bid Auction Borrowing and all other Loans and Advances
outstanding after giving effect to such Bid Auction Advances (and
any prepayments required pursuant to Section 1.8 of the Credit
Agreement) will not exceed the Total Commitment, as in effect on
such date.
The Company agrees that if prior to the time of the Bid
Auction Borrowing requested hereby any matter certified to herein
by it will not be true and correct at such time as if then made,
it will immediately so notify the Administrator. Except to the
extent, if any, that prior to the time of the Bid Auction
Borrowing proposed hereby, the Administrator shall receive
written notice to the contrary from the Company, each matter
certified to herein shall be deemed once again to be certified as
true and correct at the date of such Advance as if then made.
The Company has caused this Bid Auction Election Notice to
be executed and delivered, and the certification and warranties
contained herein to be made, by its duly Authorized Officer this
- ----day of ----------, 199-.
KAMAN CORPORATION
By:
Name:
Title:
Page 95
EXHIBIT E
BID AUCTION OFFER
---------------, 199-
Kaman Corporation
Blue Hills Avenue
Bloomfield, Connecticut 06002
Attention: Robert M. Garneau
Executive Vice President &
Chief Financial Officer
Gentlemen and Ladies:
This Bid Auction Offer is delivered to you pursuant to
clause (c) of Section 1.4 of the Revolving Credit Agreement,
dated as of January 29, 1996 (as the same is amended or otherwise
modified and in effect from time to time, the "Credit
Agreement"), among Kaman Corporation, a Connecticut corporation
(the "Company"), the various financial institutions as are or may
from time to time become parties thereto (the "Banks"), and The
Bank of Nova Scotia ("Scotiabank") and Fleet National Bank of
Connecticut ("Fleet"), as the Co-Administrative Agents. Unless
otherwise defined herein or the context otherwise requires, terms
used herein have the meanings provided in the Credit Agreement.
The undersigned Bank hereby makes a Bid Auction Offer in
response to the Bid Auction Election Notice made by the Company
on ------------ --, 199-, and in that connection, sets forth the
terms on which such Bid Auction Offer is made:
*1. Date of Bid Auction Borrowing: --------- --, 199-
2. Minimum principal amount of Bid
Auction Advance the undersigned
is willing to make as part of such
proposed Bid Auction Borrowing: $------------------
3. Maximum principal amount of Bid
Auction Advance the undersigned
is willing to make as part of such
proposed Bid Auction Borrowing: $------------------
- ------------
* Information to be repeated if multiple Bid Auction Advances
have been requested to be made in respect of a single Bid
Auction Election Notice.
Page 96
4. Bid Auction Advance Maturity Date
for repayment of such Bid Auction
Advance will be --------- --, 199-
5. Bid Auction Advance Interest
Payment Date(s) will be --------- --, 199-
[--------- --, 199-]
6. Rate of interest: -------% per annum
[NAME OF BANK]
By:
Name:
Title:
Page 97
EXHIBIT F
BID AUCTION ACCEPTANCE
[NAME AND ADDRESS OF BANK]
Attention: --------------
KAMAN CORPORATION
Gentlemen and Ladies:
This Bid Auction Acceptance is delivered to you pursuant to
clause (d) of Section 1.4 of the Revolving Credit Agreement,
dated as of January 29, 1996 (as the same is amended or otherwise
modified and in effect from time to time, the "Credit
Agreement"), among Kaman Corporation, a Connecticut corporation
(the "Company"), the various financial institutions as are or may
from time to time become parties thereto (the "Banks"), and The
Bank of Nova Scotia ("Scotiabank") and Fleet National Bank of
Connecticut ("Fleet"), as the Co-Administrative Agents. Unless
otherwise defined herein or the context otherwise requires, terms
used herein have the meanings provided in the Credit Agreement.
*The Company hereby accepts the Bid Auction Offer, dated
- -------------- --, 199-, made by [NAME OF BANK] on the following
terms:
**1. Date of Bid Auction Advance --------- --, 199-
2. Principal amount of Bid Auction
Advance $------------------
3. Bid Auction Advance Maturity
Date: --------- --, 199-
4. Rate of interest: -------% per annum
5. Bid Auction Advance Interest
Payment Date(s): --------- --, 199-
[-------- --, 199-]
- ----------------
* Repeat this paragraph (and information contained therein)
for each Bank whose Bid Auction Offer is accepted by the
Company or for multiple Bid Auction Advances.
** Terms must conform to the Bid Auction Election Notice
referred to in the Bid Auction Offer relating to such Bid
Auction Borrowing.
Page 98
The undersigned hereby confirms that it accepts such Bid
Auction Offer in accordance with clause (d)(ii) of Section 1.4 of
the Credit Agreement. The Company hereby certifies and warrants
that, pursuant to Section 3.2 of the Credit Agreement, this
acceptance by the Company of the proceeds of the Bid Auction
Advances constitutes a representation and warranty that, on the
date the Bid Auction Advances requested by the Bid Auction
Election Request are made, and both before and after giving
effect thereto and to the application of the proceeds therefrom,
all statements set forth in clauses (c) and (d) of Section 3.2 of
the Credit Agreement are true and correct in all material
respects. The Company further certifies and warrants that on the
date the Bid Auction Advances accepted hereby are made, the
aggregate amount of the proposed Bid Auction Advances and all
other Loans and Advances outstanding after giving effect to such
Bid Auction Advances (and any prepayments required pursuant to
Section 1.8 of the Credit Agreement) will not exceed the Total
Commitment, as in effect on such date.
The Company has caused this Bid Auction Acceptance to be
executed and delivered, and the certification and warranties
contained herein to be made, by its duly Authorized Officer this
- ---- day of --------, 199-.
KAMAN CORPORATION
By:
Name:
Title:
Page 99
EXHIBIT G
KAMAN CORPORATION
COMPLIANCE CERTIFICATE
The undersigned, ------------, hereby certifies that s/he is
the duly elected, qualified and acting ------------ of Kaman
Corporation (the "Company"), a Connecticut corporation, and as
such officer, s/he is familiar with the terms, covenants and
conditions of the Revolving Credit Agreement (as the same is
amended or otherwise modified and in effect from time to time,
the "Credit Agreement"), dated as of January 29, 1996, among the
Company, the various financial institutions as are or may from
time to time become parties thereto (the "Banks"), and The Bank
of Nova Scotia ("Scotiabank") and Fleet National Bank of
Connecticut ("Fleet"), as the Co-Administrative Agents. All
terms not specifically defined herein shall have the definitions
ascribed in the Credit Agreement.
This is to certify that, as of the date hereof (i) the
Company has complied, and shall be in compliance, with all terms,
covenants and conditions of the Credit Agreement as required
thereby; (ii) there exists no Default or Event of Default; and
(iii) the representations and warranties set forth in Article II
of the Credit Agreement are true and correct with the same effect
as though such representations had been made as of the date of
this Certificate.
The computations which produced the figures contained in
this Compliance Certificate are set forth on Annex A hereto.
Without limiting the generality of the foregoing, the
Company certifies specifically as follows as of [insert last day
of most recently ended fiscal quarter]:
Section of
Credit Agreement (Dollars in Thousands)
Requirement or
Ceiling Actual
5.1(e) Liens not to
secure
Indebtedness
in excess of
$25,000,000 $25,000,000 $-------
Page 100
Section of
Credit Agreement (Dollars in Thousands)
Requirement or
Ceiling Actual
5.6(b)(i) Sale of Assets $------------ $---------
pursuant to (figure
Section 5.6(b) represents 15%
for this fiscal of Company's
year through the Consolidated
date of this Tangible Assets
certificate as calculated
pursuant to
Section 5.6)
5.6(b)(ii) Sale of Assets $------------ $---------
pursuant to (figure
Section 5.6(b) represents 45% of
through the date Company's
of this Consolidated
certificate since Tangible Assets
Effective Date as calculated
pursuant to
Section 5.6)
6.1 Consolidated Net $200,000,000 $---------
Worth
6.2 Fixed Charge 2.50:1.0 through
Coverage Ratio (and including)
12/31/97
2.75:1.0 after
12/31/97 ---:1.0
6.3 Consolidated
Total
Indebtedness
as a percentage
of Total
Capitalization 55% ---%
KAMAN CORPORATION
Dated: [date of delivery
of Certificate]
By:
Name:
Title:
Page 101
Annex A
A. 5.6: Sale of Assets
(i) Applicable Percentage:
(a) The aggregate book value of all tangible
assets sold (as determined at the time of
such sale)divided by the Consolidated
Tangible Assets as of the most recently
completed fiscal quarter at the
time of such asset sale: $-----
(ii) Aggregate Percentage:
The sum of all Applicable Percentages:
(a) For the current fiscal year - not to
exceed 15%, and therefore the Company
[was] [was not] in compliance with
Section 5.6: -----%
(b) Since the Effective Date - not to
exceed 45%, and therefore the Company
[was] [was not] in compliance with
Section 5.6: -----%
Page 102
(iii)Designated Percentage:
Either of:
(a) 15%, for any fiscal year; or
(b) not to exceed a cumulative aggregate
percentage of 45% since the Effective
Date: [15%]
[45%]
(iv) Reduction Amount:
An amount equal to:
(a) if Item (iii) (a) above applies, the
book value of all asset sales during
the current fiscal year less 15% of the
Consolidated Tangible Assets as of the
most recently completed fiscal quarter
less any Total Commitment reduction
during such current fiscal year; or
(b) if Item (iii) (b) above applies, the
book value of all asset sales during
the current fiscal year less any Total
Commitment reductions during such
current fiscal year: $--------
B. 6.1: Consolidated Net Worth
(i) consolidated shareholders' equity: $-----
(ii) Qualifying Preferred Stock: $-----
(iii) Consolidated Net Worth (Item (i)
plus Item (ii)): $-----
Page 103
C. 6.2: Fixed Charge Coverage Ratio
(i) Operating Profit for the four (4) most
recently completed fiscal quarters of
Company: $-----
(ii) aggregate consolidated interest expense
on borrowed money (including the
Obligations) (net of cash income from
Investments) for the four (4) most
recently completed fiscal quarters
of the Company: $-----
(iii)Fixed Charge Coverage Ratio (ratio of
Item(i) to Item(ii)):* ---:---
D. 6.3: Consolidated Total Indebtedness
to Total Capitalization
(i) Consolidated Total Indebtedness: $-----
(ii) Consolidated Net Worth (see Item (iii)
from Section C above): $-----
(iii)Total Capitalization (Item (i)
plus Item (ii)): $-----
(iv) Item (i) divided by Item (iii): ----%
- ----------------------
* Section 6.2 of the Credit Agreement requires the Fixed
Charge Coverage Ratio to be greater than or equal to
2.50:1.0 through (and including) 12-31-97 and to be
greater than or equal to 2.75:1.0 at any time of
determination hereafter.
** Section 6.3 of the Credit Agreement requires the Company's
Consolidated Total Indebtedness to be less than or equal
to 55% of its Total Capitalization.
Page 104
EXHIBIT H
ASSIGNMENT AND ACCEPTANCE AGREEMENT
Reference is made to the Revolving Credit Agreement, (as the
same is amended or otherwise modified and in effect from time to
time, the "Credit Agreement") dated as of January 29, 1996, by
and among Kaman Corporation (the "Company"), the various
financial institutions as are or may from time to time become
parties thereto (the "Banks"), and The Bank of Nova Scotia
("Scotiabank") and Fleet National Bank of Connecticut ("Fleet"),
as the Co-Administrative Agents. Capitalized terms used but not
defined herein have the meanings assigned to such terms in the
Credit Agreement.
This Assignment and Acceptance Agreement (this "Agreement")
has been made by ------------- (the "Assignor") and -----------
(the "Assignee"), and consented to by the Company and each of the
Co-Administrative Agents, in order to effect the assignment by
the Assignor, and the assumption by the Assignee, of certain of
the Assignor's rights and duties with respect to the Credit
Agreement and the Notes issued to it thereunder.
The Assignor and Assignee agree as follows:
1. The Assignor hereby sells and assigns to the
Assignee, and the Assignee hereby purchases and assumes from the
Assignor, a ---% interest in and to all of the Assignor's rights
and obligations under the Credit Agreement, including (a) its
Commitment on the Assignment Effective Date (as defined below),
(b) each of the Advances owing on the Assignment Effective Date
to the Assignor, (c) each Note held by the Assignor, and (d) all
unpaid interest with respect to such Advances and Fees owing to
the Assignor and accrued to the Assignment Effective Date.
2. The Assignor (a) represents that as of the date
hereof, its Commitment (without giving effect to assignments
thereof which have not yet become effective) is $----------, and
the outstanding principal balances of each Note held by the
Assignor (unreduced by any assignments thereof which have not yet
become effective) is as follows: ----------, (b) makes no
representation or warranty and assumes no responsibility with
respect to any statements, warranties or representations made in
or in connection with the Credit Agreement or the execution,
Page 105
legality, validity, enforceability, genuineness, sufficiency or
value of the Credit Agreement, any of the Notes held by such
Assignor, any of the other Credit Documents or any other instrument
or document furnished pursuant thereto, other than that it is the
legal and beneficial owner of the interests being assigned by it
hereunder and that such interests are free and clear of any lien or
security interest, and (c) makes no representation or warranty and
assumes no responsibility with respect to the financial condition
of the Company or any other Obligor or the performance or
observance by the Company or any other Obligor of any of its
obligations under the Credit Agreement, any of the Notes or any of
the other Credit Documents or any other instrument or documents
furnished pursuant thereto.
3. The Assignee (a) represents and warrants that it
is legally authorized to enter into this Agreement, (b) confirms
that it has received a copy of the Credit Agreement, together
with copies of the most recent financial statements referred to
in Section 4.1 of the Credit Agreement and such other documents
and information as it has deemed appropriate to make its own
credit analysis and decision to enter into this Agreement; (c)
agrees that it will, independently and without reliance upon
either of the Co-Administrative Agents, the Administrator, the
Assignor or any other Bank and based on such documents and
information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action
under the Credit Agreement, any Notes held by it or any of the
other Credit Documents; (d) appoints and authorizes each of the
Co-Administrative Agents to take such action as agent on its
behalf and to exercise such powers under the Credit Agreement as
are delegated to either of the Co-Administrative Agents by the
terms thereof, together with such powers as are reasonably
incidental thereto; and (e) agrees that it will perform in
accordance with their terms all of the obligations which by the
terms of the Credit Agreement are required to be performed by it
as a Bank, including its obligations under Section 1.10 of the
Credit Agreement if it is organized outside the United States.
4. The Assignment Effective Date for this Agreement shall
be --------- --, 19-- (the "Assignment Effective Date").*
- -----------------------
* See Section 10.6(b) of the Credit Agreement. Such date
shall be at least five (5) Business Days after the execution
of this Agreement.
Page 106
5. From and after the Assignment Effective Date, (a)
the Assignee shall be a party to the Credit Agreement and, to the
extent rights and obligations have been transferred to it by this
Agreement, have the rights and obligations of a Bank thereunder
and (b) the Assignor shall, to the extent its rights and
obligations have been transferred to the Assignee by this
Agreement, relinquish its rights and be released from its
obligations under the Credit Agreement.
6. Upon receipt and recording of this Agreement by
the Administrator, from and after the Assignment Effective Date,
the Administrator shall make all payments under the Credit
Agreement in respect of the interest assigned hereby (including,
without limitation, all payments of principal, interest and Fees
with respect thereto) to the Assignee. The Assignor and Assignee
shall make all appropriate adjustments in payments under the
Credit Agreement for periods prior to the Assignment Effective
Date directly between themselves.
7. The Assignee hereby consents to the exclusive
jurisdiction of any Federal or State court located in
Connecticut.
8. This Agreement shall be governed by and construed
in accordance with the laws of the State of Connecticut.
ASSIGNOR:
[NAME OF ASSIGNOR]
By:
Name:
Title:
ASSIGNEE:
[NAME OF ASSIGNEE]
By:
Name:
Title:
Page 107
hereby accepted by each of the
COMPANY:
KAMAN CORPORATION
By:
Name:
Title:
CO-ADMINISTRATIVE AGENTS:
THE BANK OF NOVA SCOTIA,
as a Co-Administrative Agent
By:
Name:
Title:
FLEET NATIONAL BANK OF
CONNECTICUT,
as a Co-Administrative Agent
By:
Name:
Title:
Page 108
EXHIBIT I
SUBSIDIARY GUARANTEE
THIS SUBSIDIARY GUARANTEE (this "Guarantee"), dated as of
- ------------------, made by [NAME OF SUBSIDIARY], a ----------
[corporation] (the "Guarantor"), in favor of each of the Bank
Parties (as defined below).
W I T N E S E T H:
WHEREAS, pursuant to a Revolving Credit Agreement, dated as of
January 29, 1996 (together with all amendments and other
modifications, if any, from time to time thereafter made thereto,
the "Credit Agreement"), among Kaman Corporation, a Connecticut
corporation (the "Company"), the various financial institutions as
are or may from time to time become parties thereto (individually a
"Bank" and collectively the "Banks"), and The Bank of Nova Scotia
("Scotiabank") and Fleet National Bank of Connecticut ("Fleet"), as
the co-administrative agents (each a "Co-Administrative Agent" and
collectively, the "Co-Administrative Agents"), the Banks have
extended Commitments to make Loans to the Company; and
WHEREAS, as a condition precedent to the making of the initial
Loans under the Credit Agreement, the Guarantor is required to
execute and deliver this Guarantee; and
WHEREAS, the Guarantor has duly authorized the execution,
delivery and performance of this Guarantee; and
WHEREAS, it is in the best interests of the Guarantor to
execute this Guarantee inasmuch as the Guarantor will derive
substantial direct and indirect benefits from the Loans and
Advances made from time to time to the Company by the Banks
pursuant to the Credit Agreement;
NOW THEREFORE, for good and valuable consideration the receipt
of which is hereby acknowledged, and in order to induce the Banks
to make Loans and Advances (including the initial Loans) to the
Company pursuant to the Credit Agreement, the Guarantor agrees, for
the benefit of each Bank Party, as follows:
Page 109
ARTICLE I
DEFINITIONS
SECTION 1.1. Certain Terms. The following terms (whether or
not underscored) when used in this Guarantee, including its
preamble and recitals, shall have the following meanings (such
definitions to be equally applicable to the singular and plural
forms thereof):
"Administrator" means Fleet National Bank of Connecticut, in
its capacity as Administrator pursuant to the Credit Agreement, and
each of its successors, transferees and assigns thereto.
"Bank" and "Banks" is defined in the first recital.
"Bank Party" means, as the context may require, any Bank or
either Co-Administrative Agent and each of their respective
successors, transferees and assigns.
"Co-Administrative Agent" and "Co-Administrative Agents" is
defined in the first recital.
"Company" is defined in the first recital.
"Credit Agreement" is defined in the first recital.
"Guarantee" is defined in the preamble.
"Guarantor" is defined in the preamble.
SECTION 1.2. Credit Agreement Definitions. Unless otherwise
defined herein or the context otherwise requires, terms used in
this Guarantee, including its preamble and recitals, have the
meanings provided in the Credit Agreement.
Page 110
ARTICLE II
GUARANTEE PROVISIONS
SECTION 2.1. Guarantee. The Guarantor 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 the
Company, whether for principal, interest, fees, expenses or
otherwise (including all such amounts which would become due but
for the operation of the automatic stay under Section 362(a) of the
United States Bankruptcy Code, 11 U.S.C. Section 362(a), and the
operation of Sections 502(b) and 506(b) of the United States
Bankruptcy Code, 11 U.S.C. Section 502(b) and Section 506(b)), and
(b) indemnifies and holds harmless each Bank Party and
each holder of a Note for any and all costs and expenses (including
reasonable attorney's fees and expenses) incurred by such Bank
Party or such holder, as the case may be, in enforcing any rights
under this Guarantee; provided, however, that the Guarantor shall
be liable under this Guarantee for the maximum amount of such
liability that can be hereby incurred without rendering this
Guarantee, as it relates to the Guarantor, voidable under
applicable law relating to fraudulent conveyance or fraudulent
transfer, and not for any greater amount. This Guarantee
constitutes a guaranty of payment when due and not of collection,
and the Guarantor specifically agrees that it shall not be
necessary or required that any Bank Party or any holder of any Note
exercise any right, assert any claim or demand or enforce any
remedy whatsoever against the Company or any other Obligor (or any
other Person) before or as a condition to the obligations of the
Guarantor hereunder.
SECTION 2.2. Acceleration of Guarantee. The Guarantor agrees
that, in the event of the dissolution or insolvency of the Company
or the Guarantor, or the inability or failure of the Company or the
Guarantor to pay debts as they become due, or an assignment by the
Company or the Guarantor for the benefit of creditors, or the
commencement of any case or proceeding in respect of the Company or
the Guarantor under any bankruptcy, insolvency or similar laws, and
Page 111
if such event shall occur at a time when any of the Obligations of
the Company may not then be due and payable, the Guarantor will pay
to the Bank Parties forthwith the full amount which would be
payable hereunder by the Guarantor if all such Obligations were
then due and payable.
SECTION 2.3. Guarantee absolute, etc. This Guarantee shall
in all respects be a continuing, absolute, unconditional and
irrevocable guaranty of payment, and shall remain in full force and
effect until all Obligations of the Company have been paid in full,
all obligations of the Guarantor hereunder shall have been paid in
full and all Commitments shall have terminated. The Guarantor
guarantees that the Obligations of the Company will be paid
strictly in accordance with the terms of the Credit Agreement,
regardless of any law, regulation or order now or hereafter in
effect in any jurisdiction affecting any of such terms or the
rights of any Bank Party or any holder of any Note with respect
thereto. The liability of the Guarantor under this Guarantee shall
be absolute, unconditional and irrevocable irrespective of:
(a) any lack of validity, legality or enforceability
of the Credit Agreement, any Note or any other
Credit Document;
(b) the failure of any Bank Party or any holder of
any Note
(i) to assert any claim or demand or to enforce
any right or remedy against the Company, any
other Obligor or any other Person (including
any other guarantor) under the provisions of
the Credit Agreement, any Note or any other
Credit Document or otherwise, or
(ii) to exercise any right or remedy against any
other guarantor of, or collateral securing,
any Obligations of the Company or 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 the Company or any other Obligor,
or any other extension, compromise or renewal of
any Obligation of the Company or any other
Obligor;
Page 112
(d) any reduction, limitation, impairment or
termination of the Obligations of the Company or
any other Obligor for any reason, including any
claim of waiver, release, surrender, alteration or
compromise, and shall not be subject to (and the
Guarantor hereby waives any right to or claim of)
any defense or setoff, counterclaim, recoupment or
termination whatsoever by reason of the
invalidity, illegality, nongenuineness,
irregularity, compromise, unenforceability of,
or any other event or occurrence affecting, the
Obligations of the Company, any other Obligor or
otherwise;
(e) any amendment to, rescission, waiver, or other
modification of, or any consent to departure from,
any of the terms of the Credit Agreement, any Note
or any other Credit Document;
(f) any addition, exchange, release, surrender or
non-perfection of any collateral, or any amendment
to or waiver or release or addition of, or consent
to departure from, any other guaranty (including
any other Subsidiary Guarantee), held by any Bank
Party or any holder of any Note securing any of
the Obligations of the Company; or
(g) any other circumstance which might otherwise
constitute a defense available to, or a legal or
equitable discharge of, the Company, any other
Obligor, any surety or any guarantor.
SECTION 2.4. Reinstatement, etc. The Guarantor agrees that
this Guarantee shall continue to be effective or be reinstated, as
the case may be, if at any time any payment (in whole or in part)
of any of the Obligations is rescinded or must otherwise be
restored by any Bank Party or any holder of any Note, upon the
insolvency, bankruptcy or reorganization of the Company or
otherwise, all as though such payment had not been made.
SECTION 2.5. Waiver, etc. The Guarantor hereby waives
promptness, diligence, notice of acceptance and any other notice
with respect to any of the Obligations of the Company and this
Guarantee and any requirement that either of the Co-Administrative
Agents, any other Bank Party or any holder of any Note protect,
secure, perfect or insure any security interest or Lien, or any
property subject thereto, or exhaust any right or take any action
against the Company, any other Obligor or any other Person
(including any other guarantor) or entity or any collateral
securing the Obligations of the Company.
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SECTION 2.6. Postponement of Subrogation, etc. The Guarantor
will not exercise any rights which it may acquire by way of rights
of subrogation under this Guarantee, by any payment made hereunder
or otherwise, until the prior payment, in full and in cash, of all
Obligations of the Company. Any amount paid to the Guarantor on
account of any such subrogation rights prior to the payment in full
of all Obligations of the Company shall be held in trust for the
benefit of the Bank Parties and each holder of a Note and shall
immediately be paid to the Administrator and credited and applied
against the Obligations of the Company, whether matured or
unmatured, in accordance with the terms of the Credit Agreement;
provided, however, that if
(a) the Guarantor has made payment to the Bank Parties
and each holder of a Note of all or any part of
the Obligations of the Company, and
(b) all Obligations of the Company have been paid in
full and all Commitments have been permanently
terminated,
each Bank Party and each holder of a Note agrees that, at the
Guarantor's request, the Administrator, on behalf of the Bank
Parties and the holders of the Notes, will execute and deliver to
the Guarantor appropriate documents (without recourse and without
representation or warranty) necessary to evidence the transfer by
subrogation to the Guarantor of an interest in the Obligations of
the Company resulting from such payment by the Guarantor. In
furtherance of the foregoing, for so long as any Obligations or
Commitments remain outstanding, the Guarantor shall refrain from
taking any action or commencing any proceeding against the Company
(or its successors or assigns, whether in connection with a
bankruptcy proceeding or otherwise) to recover any amounts in the
respect of payments made under this Guarantee to any Bank Party or
any holder of a Note.
SECTION 2.7. Successors, Transferees and Assigns; Transfers
of Notes, etc. This Guarantee shall:
(a) be binding upon the Guarantor, and its successors,
transferees and assigns; and
(b) inure to the benefit of and be enforceable by
either of the Co-Administrative Agents and each
other Bank Party.
Page 114
Without limiting the generality of clause (b), any Bank may assign
or otherwise transfer (in whole or in part) any Note or Advance
held by it to any other Person or entity, and such other Person or
entity shall thereupon become vested with all rights and benefits
in respect thereof granted to such Bank under any Credit Document
(including this Guarantee) or otherwise, subject, however, to the
provisions of Section 10.5 and Article VIII of the Credit
Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.1. Representations and Warranties. The Guarantor
hereby represents and warrants unto each Bank Party as to all
matters contained in Article II of the Credit Agreement insofar as
the representations and warranties contained therein are applicable
to the Guarantor and/or its properties, each such representation
and warranty set forth in such Article (insofar as applicable as
aforesaid) and all other terms of the Credit Agreement to which
reference is made therein, together with all related definitions
and ancillary provisions, being hereby incorporated into this
Guarantee by reference as though specifically set forth in this
Section.
ARTICLE IV
COVENANTS, ETC.
SECTION 4.1. Affirmative Covenants. The Guarantor covenants
and agrees that, so long as any portion of the Obligations shall
remain unpaid or any Bank shall have any outstanding Commitment, or
any Advance shall remain outstanding, the Guarantor will perform,
comply with and be bound by all of the agreements, covenants and
obligations contained in each of Article IV and Article V of the
Credit Agreement which are applicable to the Guarantor and/or its
properties, each such agreement, covenant and obligation contained
in such Articles and all other terms of the Credit Agreement to
which reference is made therein, together with all related
definitions and ancillary provisions, being hereby incorporated
into this Guarantee by reference as though specifically set forth
in this Section.
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ARTICLE V
MISCELLANEOUS PROVISIONS
SECTION 5.1. Credit Document. This Guarantee is a Credit
Document executed pursuant to the Credit Agreement and shall
(unless otherwise expressly indicated herein) be construed,
administered and applied in accordance with the terms and
provisions thereof, including, without limitation, Article X
thereof.
SECTION 5.2. Binding on Successors, Transferees and Assigns;
Assignment. In addition to, and not in limitation of, Section 2.7,
this Guarantee shall be binding upon the Guarantor and its
successors, transferees and assigns and shall inure to the benefit
of and be enforceable by each Bank Party and each holder of a Note
and their respective successors, transferees and assigns (to the
full extent provided pursuant to Section 2.7); provided, however,
that the Guarantor may not assign any of its obligations hereunder
without the prior written consent of all the Banks.
SECTION 5.3. Amendments, etc. No amendment to or waiver of
any provision of this Guarantee, nor consent to any departure by
the Guarantor herefrom, shall in any event be effective unless the
same shall be in writing and signed by all of the Banks, and then
such waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given.
SECTION 5.4. Notices. All notices and other communications
provided to the Guarantor under this Guarantee shall be in writing
and shall be mailed by first class mail or sent by overnight
courier or delivered by hand or sent by telegraph, facsimile
transmission or telex to the Guarantor at its address, telex or
facsimile number set forth below its signature hereto or at such
other address, telex or facsimile number as may be designated by
the Guarantor in a notice to each of the Bank Parties. Notices
hereunder shall be deemed to have been given when (a) if delivered
by hand or telecopied or otherwise telecommunicated, to the officer
named below the Guarantor's signature hereto (or such other
responsible officer of the Guarantor notified to the Bank Parties
from time to time), at the time of receipt thereof by such officer,
(b) if sent by registered or certified mail, postage prepaid, three
days after the date when mailed, or (c) if sent by overnight mail
or overnight courier service, to such officer, when received by
such officer.
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SECTION 5.5. No Waiver; Remedies. In addition to, and not in
limitation of, Section 2.3 and Section 2.5, no failure on the part
of any Bank Party or any holder of a Note to exercise, and no delay
in exercising, any right hereunder shall operate as a waiver
thereof; nor shall any single or partial exercise of any right
hereunder preclude any other or further exercise thereof or the
exercise of any other right. The remedies herein provided are
cumulative and not exclusive of any remedies provided by law.
SECTION 5.6. Captions. Section captions used in this
Guarantee are for convenience of reference only, and shall not
affect the construction of this Guarantee.
SECTION 5.7. Setoff. In addition to, and not in limitation
of, any rights of any Bank Party or any holder of a Note under
applicable law, each Bank Party and each such holder shall, upon
the occurrence of any Default described in clause (f) of Section
7.1 of the Credit Agreement or any Event of Default, have the right
to appropriate and apply to the payment of the obligations of the
Guarantor owing to it hereunder, whether or not then due, and the
Guarantor hereby grants to each Bank Party and each such holder a
continuing security interest in, any and all balances, credits,
deposits, accounts or moneys of the Guarantor then or thereafter
maintained with such Bank Party or such holder; provided, however,
that any such appropriation and application shall be subject to the
provisions of Section 7.5 of the Credit Agreement.
SECTION 5.8. Severability. Wherever possible each provision
of this Guarantee shall be interpreted in such manner as to be
effective and valid under applicable law, but if any provision of
this Guarantee shall be prohibited by or invalid under such law,
such provision shall be ineffective to the extent of such
prohibition or invalidity, without invalidating the remainder of
such provision or the remaining provisions of this Guarantee.
SECTION 5.9. Governing Law. THIS GUARANTEE SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
CONNECTICUT.
Page 117
SECTION 5.10. Waiver of Jury Trial. THE GUARANTOR HEREBY
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHTS IT MAY
HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON,
OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS GUARANTEE OR
ANY OTHER CREDIT DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF
DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN), OR ACTIONS OF ANY
BANK PARTY OR THE GUARANTOR. THE GUARANTOR ACKNOWLEDGES AND AGREES
THAT IT HAS RECEIVED FULL AND SUFFICIENT CONSIDERATION FOR THIS
PROVISION AND THAT THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE
BANKS ENTERING INTO THE CREDIT AGREEMENT.
SECTION 5.11. Prejudgment Remedy Waiver; Other Waivers. THE
GUARANTOR ACKNOWLEDGES THAT THE FINANCING TO WHICH THIS GUARANTEE
RELATES IS A COMMERCIAL TRANSACTION AND WAIVES ITS RIGHTS TO NOTICE
AND HEARING UNDER CHAPTER 903A OF THE CONNECTICUT GENERAL STATUTES,
OR AS OTHERWISE ALLOWED BY ANY STATE OR FEDERAL LAW WITH RESPECT TO
ANY PREJUDGMENT REMEDY WHICH EITHER CO-ADMINISTRATIVE AGENT OR ANY
BANK MAY DESIRE TO USE, AND FURTHER WAIVES DILIGENCE, DEMAND,
PRESENTMENT FOR PAYMENT, NOTICE OF NONPAYMENT, PROTEST AND NOTICE
OF ANY RENEWALS OR EXTENSIONS. THE GUARANTOR ACKNOWLEDGES AND
RESERVES ITS RIGHT TO NOTICE AND A HEARING SUBSEQUENT TO THE
ISSUANCE OF A WRIT FOR PREJUDGMENT REMEDY AS AFORESAID AND THE
CO-ADMINISTRATIVE AGENTS AND THE BANKS ACKNOWLEDGE THE GUARANTOR'S
RIGHT TO SAID HEARING SUBSEQUENT TO THE ISSUANCE OF SAID WRIT.
SECTION 5.12. Consent to Jurisdiction. FOR THE PURPOSES OF
ANY ACTION OR PROCEEDING INVOLVING THIS GUARANTEE OR ANY OTHER
CREDIT DOCUMENT, THE GUARANTOR HEREBY EXPRESSLY CONSENTS TO THE
EXCLUSIVE JURISDICTION OF ANY FEDERAL OR STATE COURT LOCATED IN
CONNECTICUT; PROVIDED, HOWEVER, THAT ANY SUIT SEEKING ENFORCEMENT
AGAINST ANY COLLATERAL OR OTHER PROPERTY MAY BE BROUGHT, AT THE
CO-ADMINISTRATIVE AGENTS' OPTION, IN THE COURTS OF ANY JURISDICTION
WHERE SUCH COLLATERAL OR OTHER PROPERTY MAY BE FOUND.
Page 118
IN WITNESS WHEREOF, the Guarantor has caused this Guarantee to
be duly executed and delivered by its officer thereunto duly
authorized as of the date first above written.
[NAME OF GUARANTOR]
By
Name:
Title:
Address:
Attention:
Facsimile No:
Page 119
EXHIBIT J
[Letterhead of Kaman Corporation]
January ---, 1996
The Bank of Nova Scotia
101 Federal Street
Boston, Massachusetts 02110
Fleet National Bank of Connecticut
777 Main Street
Hartford, Connecticut 06115
[NAME OF EACH OF THE BANKS]
Re: Revolving Credit Agreement (the "Credit Agreement"),
dated as of January 29, 1996, by and among Kaman Corporation (the
"Company"), the various financial institutions as are or may from
time to time become parties thereto (the "Banks"), and The Bank
of Nova Scotia ("Scotiabank") and Fleet National Bank of
Connecticut ("Fleet"), as the co-administrative agents (the
"Co-Administrative Agents").
Ladies and Gentlemen:
I have acted as special counsel to the Company and each of
its Subsidiaries in connection with the negotiation, execution
and delivery of the Credit Agreement, the Notes, the Subsidiary
Guarantees and each of the other Credit Documents and the
transactions contemplated thereby. Capitalized terms used but
not defined herein have the meanings given to such terms in the
Credit Agreement.
This opinion letter has been requested of me as an
inducement to your entering into the Credit Agreement with the
Company. In this connection, I have examined the Governing
Documents of the Company and of each Subsidiary of the Company
and resolutions of the Board of Directors of the Company and of
each Subsidiary of the Company and such certificates of public
officials and other corporate documents or records and have made
such other examinations and inquiries as I have deemed necessary
or appropriate.
Page 120
I have examined either original, certified copies or copies
otherwise authenticated to my satisfaction of such documents as I
have deemed necessary or advisable to examine in order to furnish
the opinions herein expressed. I have made such other
examination as to matters of fact and law as I have deemed
necessary in order to enable me to give this opinion.
Based upon the foregoing and upon such investigations of law
as I have deemed appropriate, it is my opinion that, as of the
date hereof:
1. The Company and each Subsidiary (a) is a corporation
duly organized, validly existing and in good standing under the
laws of its respective jurisdiction of incorporation, (b) has all
requisite corporate power to own its respective material
properties and conduct its respective business, and (c) is duly
qualified to do business and is in good standing as a foreign
corporation in each of the jurisdictions where the nature of its
properties or its business requires such qualification except
where a Subsidiary's failure to be in good standing would not
result in a Material Adverse Effect.
2. The execution, delivery and performance of the Credit
Agreement, the Notes, the Subsidiary Guarantees and each of the
other Credit Documents and the transactions contemplated thereby
(a) are within the corporate authority of the Company or such
Subsidiary of the Company, as the case may be, (b) have been
authorized by proper corporate proceedings, (c) will not (i)
contravene or conflict with any Governing Document of the Company
or any of its Subsidiaries, (ii) conflict with or result in a
violation, breach or, but for the giving of notice or passage of
time or both, constitute a default under (A) any provision of any
existing statute, law, rule or regulation binding on the Company
or any of its Subsidiaries or, to the best of my knowledge, after
due inquiry and investigation, any order, judgment, award,
decree, license or authorization of any court or Governmental
Authority binding on the Company or any of its Subsidiaries (a
"Requirement of Law"), or (B) to the best of my knowledge, after
due inquiry and investigation, any mortgage, indenture, lease or
other contract, agreement, instrument or undertaking to which the
Company or any of its Subsidiaries is a party or will be a party
immediately after the Effective Date, or by which or to which the
Company or any of its Subsidiaries or any of their respective
properties or assets is now or immediately after the Effective
Date will be bound or subject (a "Contractual Obligation"), or
(iii) result in the creation or imposition of any Lien on any of
the properties or assets of the Company or any of its
Subsidiaries.
Page 121
3. No approval or consent of, or filing with, any
Governmental Authority and no consent or approval of the
shareholders of the Company, any of its Subsidiaries or any other
Person is required to be obtained or made by or on behalf of the
Company or any of its Subsidiaries to make valid and legally
binding the execution, delivery and performance of the Credit
Agreement, the Notes, the Subsidiary Guarantees or any other
Credit Document. The consummation of the transactions
contemplated by the Credit Agreement, the Notes, the Subsidiary
Guarantees and each of the other Credit Documents does not
require any approval, authorization or consent of or (except for
such disclosures as may be required in accordance with filings
made by the Company and/or its Subsidiaries in the ordinary
course of business such as customary SEC reporting) filing,
registration or declaration with any such Governmental Authority
or Person.
4. Neither the Company nor any of its Subsidiaries is or
immediately after the Effective Date will be in default under any
of its Governing Documents or in violation of any Requirement of
Law. To the best of my knowledge, after due inquiry and
investigation, neither the Company nor any of its Subsidiaries is
or immediately after the Effective Date will be in violation of
or default under any (a) Contractual Obligation, or (b) any
license, permit, certification or approval requirement of any
customer, supplier, Governmental Authority or other Person.
5. All of the shares of each Subsidiary are owned of
record by the Company, have been validly issued and are fully
paid and nonassessable.
6. To the best of my knowledge, after due inquiry and
investigation, no action, suit, investigation or proceeding is
pending or known to be threatened by or against or affecting the
Company or any of its Subsidiaries or any of their respective
properties or rights before any Governmental Authority (a) which
involves the Credit Agreement, the Notes, the Subsidiary
Guarantees or any other Credit Document or any instrument
delivered in connection therewith, or any action to be in
connection with the transactions contemplated thereby or (b) as
to which there is a reasonable possibility of an adverse
determination and which, if adversely determined, could,
individually or in the aggregate result in a Material Adverse
Effect.
7. The Credit Agreement, each of the Notes, each of the
Subsidiary Guarantees and each of the other Credit Documents have
been duly and properly executed and delivered to the
Co-Administrative Agents by the Company.
Page 122
8. The agreements and obligations of the Company and its
Subsidiaries contained in the Credit Agreement, each of the
Notes, each of the Subsidiary Guarantees and each of the other
Credit Documents constitute the legal, valid and binding
obligations of the Company or such Subsidiary, as the case may
be, enforceable against the Company or each such Subsidiary in
accordance with their respective terms, except to the extent
their enforcement may hereafter be limited by bankruptcy or
insolvency or other laws affecting creditors rights generally.
9. The rates of interest payable on the Notes are not in
violation of or prohibited by the laws of the State of
Connecticut.
Very truly yours,
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