<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q
X QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
- - --- SECURITIES EXCHANGE ACT OF 1934 FOR THE QUARTERLY PERIOD ENDED
JUNE 30, 1994.
--------------
OR
TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934 FOR THE TRANSITION PERIOD FROM
- - --- ______________ TO ______________
Commission File No. 0-1093
KAMAN CORPORATION
(Exact Name of Registrant)
Connecticut 06-0613548
(State of Incorporation) (I.R.S. Employer Identification No.)
Blue Hills Avenue
Bloomfield, Connecticut 06002
(Address of Principal Executive Offices)
Registrant's telephone number, including area code: (203)243-7100
Indicate by check mark whether the registrant (1) has filed all
reports required to be filed by Section 13 or 15 (d) of the
Securities Exchange Act of 1934 during the preceding 12 months
(or for such shorter period that the registrant was required to
file such reports), and (2) has been subject to such filing
requirements for the past 90 days.
Yes x No
--- ---
Indicate the number of shares outstanding of each of the issuer's
classes of common stock as of July 31, 1994:
Class A Common 17,559,383
Class B Common 667,814
Page 1 of 162 Pages
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<PAGE>
KAMAN CORPORATION AND SUBSIDIARIES
PART I - FINANCIAL INFORMATION
Item 1. Financial Statements:
Condensed Consolidated Balance Sheets
(In thousands)
<TABLE>
June 30, December 31,
Assets 1994 1993
------ --------------- -----------------
<S> <C> <C> <C> <C>
Current assets:
Cash and cash equivalents $ 3,433 $ 3,845
Accounts receivable (net of allowance
for doubtful accounts of $1,820 in
1994, $1,576 in 1993) 157,374 165,615
Inventories:
Raw materials 11,415 $ 10,715
Work-in-process 48,675 28,241
Finished goods 1,122 1,131
Merchandise for resale 98,402 159,614 90,364 130,451
-------- --------
Other current assets 17,368 16,690
-------- --------
Total current assets 337,789 316,601
Property, plant and equipment, at cost 180,398 175,770
Less accumulated depreciation and
amortization 99,312 94,059
-------- --------
Net property, plant and equipment 81,086 81,711
Other assets 42,373 41,884
-------- --------
$461,248 $440,196
======== ========
Liabilities and Shareholders' Equity
- - ------------------------------------
Current liabilities:
Notes payable $ 34,265 $ 31,865
Accounts payable 52,831 51,246
Accrued liabilities 32,669 28,586
Other current liabilities 63,588 55,068
-------- --------
Total current liabilities 183,353 166,765
Deferred credits 7,552 7,141
Long-term debt, excluding current
portion 38,099 37,977
Shareholders' equity:
Series 2 preferred stock $ 57,167 $ 57,167
Other shareholders' equity 175,077 232,244 171,146 228,313
-------- -------- -------- --------
$461,248 $440,196
======== ========
</TABLE>
- 2 -
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<PAGE>
KAMAN CORPORATION AND SUBSIDIARIES
PART I - FINANCIAL INFORMATION, Continued
Item 1. Financial Statements, Continued:
Condensed Consolidated Statements of Earnings
(In thousands except per share amounts)
<TABLE>
For the Three Months For the Six Months
Ended June 30, Ended June 30,
-------------------- ------------------
1994 1993 1994 1993
---- ---- ---- ----
<S> <C> <C> <C> <C>
Revenues $208,957 $194,941 $406,937 $392,844
Cost and expenses:
Cost of sales 155,923 142,425 301,552 286,722
Selling, general and
administrative expense 44,167 42,406 88,405 87,372
Interest expense 1,052 1,895 1,922 3,748
Other expense 401 132 505 167
-------- -------- -------- --------
201,543 186,858 392,384 378,009
-------- -------- -------- --------
Earnings before income taxes 7,414 8,083 14,553 14,835
Income taxes 2,818 3,304 5,717 6,044
-------- -------- -------- --------
Net earnings $ 4,596 $ 4,779 $ 8,836 $ 8,791
======== ======== ======== ========
Preferred stock dividend
requirement $ (929) $ - $ (1,858) $ -
======== ======== ======== ========
Earnings applicable to
common stock $ 3,667 $ 4,779 $ 6,978 $ 8,791
======== ======== ======== ========
Net earnings per common share:
Primary $ .20 $ .26 $ .38 $ .48
Fully diluted $ .20 $ .25 $ .38 $ .47
======== ======== ======== ========
Dividends declared per share:
Series 2 preferred stock $ 3.25 $ - $ 6.50 $ -
Common stock $ .11 $ .11 $ .22 $ .22
======== ======== ======== ========
</TABLE>
- 3 -
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<PAGE>
KAMAN CORPORATION AND SUBSIDIARIES
PART I - FINANCIAL INFORMATION, Continued
Item 1. Financial Statements, Continued:
Condensed Consolidated Statements of Cash Flows
(In thousands)
<TABLE> For the Six Months
Ended June 30,
-------------------
1994 1993
------- -------
<S> <C> <C>
Cash flows from operating activities:
Net earnings $ 8,836 $ 8,791
Depreciation and amortization 6,122 6,554
Changes in current assets and liabilities (7,412) (25,173)
Other, net 584 326
-------- --------
Cash provided by (used in) operating
activities 8,130 (9,502)
-------- --------
Cash flows from investing activities:
Expenditures for property, plant &
equipment (5,119) (13,780)
Other, net (1,110) 184
-------- --------
Cash provided by (used in) investing
activities (6,229) (13,596)
-------- --------
Cash flows from financing activities:
Additions to notes payable 2,400 29,754
Dividends paid (5,858) (3,961)
Other, net 1,145 (2,339)
-------- --------
Cash provided by (used in) financing
activities (2,313) 23,454
-------- --------
Net increase (decrease) in cash and cash
equivalents (412) 356
Cash and cash equivalents at beginning of
period 3,845 2,455
-------- --------
Cash and cash equivalents at end of period $ 3,433 $ 2,811
======== ========
</TABLE>
- 4 -
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<PAGE>
KAMAN CORPORATION AND SUBSIDIARIES
PART I - FINANCIAL INFORMATION, Continued
Item 1. Financial Statements, Continued:
Notes to Condensed Consolidated Financial Statements
(In Thousands)
Basis of Presentation
- - ----------------------
The December 31, 1993 condensed consolidated balance sheet amounts
have been derived from the previously audited consolidated balance sheet
of Kaman Corporation and subsidiaries.
The balance of the condensed financial information reflects all
adjustments which are, in the opinion of management, necessary for a
fair presentation of the financial position, results of operations and
cash flows for the interim periods presented and are of a normal
recurring nature unless otherwise disclosed in this report.
The statements should be read in conjunction with the notes to the
consolidated financial statements included in Kaman Corporation's 1993
Annual Report.
Earnings Per Common Share Calculations
- - --------------------------------------
The primary net earnings per common share computation is based on net
earnings less the preferred stock dividend requirement (in 1994)
divided by the weighted average number of shares of common stock
outstanding which includes the common stock equivalency of options
granted under the 1983 and 1993 stock incentive plans.
The fully diluted net earnings per common share computation assumes, in
addition to the above, that the 6% convertible subordinated debentures
and Series 2 preferred stock (in 1994) were converted into common stock
at the beginning of each period. The resultant reduction in interest
costs net of tax and the preferred stock dividend requirement (in
1994)are added back to net earnings.
Cash Flow Items
- - ---------------
Cash payments for interest were $1,876 and $3,716 for the six months
ended June 30, 1994 and 1993, respectively. Cash payments for income
taxes for the six months ended June 30, 1994 and 1993 were $6,270 and
$5,692, respectively.
- 5 -
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<PAGE>
KAMAN CORPORATION AND SUBSIDIARIES
PART I - FINANCIAL INFORMATION, Continued
Item 2. Management's Discussion and Analysis of Financial
Condition and Results of Operations
Results of Operations
- - ---------------------
Consolidated revenues were up 7.2% and 3.6%, respectively, for the
three month and six month periods ended June 30, 1994 compared to the
same periods of 1993. These results are primarily attributable to
increased sales in the Distribution segment.
Diversified Technologies revenues were up 2.4% for the three month
period and down 4.8% for the six month period compared to 1993,
reflecting the adverse influence of conditions in the defense market
and the commercial aircraft industry.
For some time now, defense expenditures have been declining as changes
in U.S. defense planning and spending priorities continue to evolve.
These circumstances, coupled with ongoing political pressures upon the
federal budget, suggest that reductions in defense expenditures are
likely to continue in future periods. Military hardware programs, in
particular, are increasingly subject to risks of one form or another,
whether it be lack of funding, contract cancellation, or the demise of
a program. The corporation is feeling the effects of these risks,
principally with respect to its SH-2 helicopter. The corporation
expects to finish its contract to retrofit certain SH-2Fs to the SH-2G
configuration sometime this year. Management does not believe that
the U.S. Navy will have further requirements for retrofits of this
helicopter for its own use because the Navy is reducing the size of
its fleet. And, as fleet size decreases, so does the number of our
helicopters remaining in service. The corporation will continue to
provide logistics and spare parts support for the SH-2, but at lower
levels than in the past.
It has become fairly clear that defense planning and spending
priorities are shifting toward greater emphasis on more cost effective
advanced technology "smart" weapons which are intended to limit loss
of life and unnecessary destruction of property during military
conflict. The corporation has significant expertise in this area,
having performed a multitude of government contracts for advanced
technology programs over the years. Management believes that the
corporation is particularly well positioned to compete in a defense
environment that emphasizes advanced technology products and systems,
as well as advanced technology services such as computer software
development, intelligence analysis, and research and development.
- 6 -
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<PAGE>
KAMAN CORPORATION AND SUBSIDIARIES
PART I - FINANCIAL INFORMATION, Continued
The Diversified Technologies segment continues to perform work on a
number of commercial airframe manufacturing programs. However, the
level of commercial air travel and lack of profitability in the
domestic aircraft industry have caused a slowdown in aircraft
production rates which is continuing to affect the segment's
subcontract work. The K-MAX (Registered Trademark) helicopter
program is an important component of the Diversified Technologies
segment commercial diversification efforts.
The K-MAX(Registered Trademark)is a medium to heavy lift 'aerial
truck' helicopter with unique operating characteristics that
distinguish it from other helicopters for use in logging, fire
fighting, and other utility applications. The program is
proceeding according to plan, with receipt of Federal Aviation
Administration certification anticipated by the end of the third
quarter of this year. The production phase for the first five (5)
helicopters has begun and units are expected to be delivered to
initial customers shortly after certification is received. The
corporation intends to lease the first group under a special lease
program in order to maintain active involvement in the
product's introduction to the marketplace. Although management
believes that this program is an important part of the corporation's
defense conversion effort, in the shorter term the program is not
expected to materially offset the effects of reduced defense spending.
Distribution segment revenues were up 10.8% and 9.9%, respectively,
for the three month and six month periods of 1994 compared to a year
ago. These results are primarily attributable to the industrial
technologies business (which comprises slightly more than 75% of the
Distribution segment). They reflect continued improvement in economic
conditions in North America and, to some degree, the effects of the
segment's valued added systems marketing strategy which has
differentiated it from its competitors.
Although consolidated revenues increased, total operating profits for
the segments of the corporation were down 6.6% and 4.5% for the three
month and six month periods of 1994 compared to the same periods of
1993. These results are largely attributable to reductions in the
higher profit margin Diversified Technologies hardware programs and
increases in lower profit margin Distribution revenues. Specifically,
Diversified Technologies operating profits were down 14.2% for the
quarter and 13.8% for the first six months, for several reasons,
including program reductions due to lower defense spending; increased
competition for the awarding of defense contracts which has resulted
in downward pressures on margins; increased research and development
costs for defense conversion programs, notably the K-MAX (Registered
Trademark)helicopter and for new military product development; and a
continuing shift in business mix from hardware programs to research and
development type products and services with somewhat lower profit margins.
Distribution segment operating profits were up 6.2% and 13.7%, respectively,
for the three month and six month periods ended June 30, 1994. These
results are primarily attributable to the industrial technologies
business and reflect improvement in the domestic economic environment.
- 7 -
<PAGE>
<PAGE>
KAMAN CORPORATION AND SUBSIDIARIES
PART I - FINANCIAL INFORMATION, Continued
Interest expense for the first six months of 1994 decreased 49%
compared to the same period of 1993. This reduction is largely a
result of the corporation's exchange of $61.8 million of its 6%
convertible subordinated debentures for $57.2 million of its preferred
stock during the fourth quarter of 1993.
The consolidated effective income tax rate for the first six months of
1994 was 39.3% compared to 40.7% for the same period of 1993.
Net earnings were $4.6 million for the second quarter of 1994 compared
to $4.8 million a year ago. After giving effect to preferred stock
dividend requirements, earnings available to common shareholders were
$3.7 million compared to $4.8 million in 1993.
Net earnings were $8.8 million for the first six months of 1994 and
1993. After giving effect to preferred stock dividend requirements,
earnings available for common shareholders were $7.0 million compared
to $8.8 million a year ago.
Liquidity and Capital Resources
- - -------------------------------
The corporation's cash flow from operations has generally been
sufficient to finance a significant portion of its working capital and
other capital requirements.
For general borrowing purposes, the corporation has maintained
revolving credit agreements involving several banks located in the
United States, Canada, and Europe. In July 1994, the corporation
entered into amended and restated revolving credit agreements which
replace the previous agreements and increase the corporation's maximum
unsecured line of credit from $145 million to $200 million. The
agreements each have a term of five years and contain provisions
permitting the term to be extended for additional one-year periods
upon concurrence of the parties. The agreements also contain various
covenants, including working capital and tangible net worth
requirements. During the first six months of 1994 there were no
borrowings under the agreements which were in effect during that
period.
The corporation also maintains other short-term credit arrangements
with various banks. As of June 30, 1994, these borrowings were at
$33.6 million. For the first six months of 1994 average bank
borrowings against these short-term lines were $34.4 million compared
to $37.8 million for the same period of 1993.
- 8 -
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<PAGE>
KAMAN CORPORATION AND SUBSIDIARIES
PART I - FINANCIAL INFORMATION, Continued
In June, 1994, the corporation's board of directors authorized a
renewal ('the 1994 program') of the stock repurchase program which was
authorized in 1992 ('the 1992 program'). Under the 1994 program, the
corporation may repurchase up to 700,000 Class A shares in addition to
the shares remaining authorized under the 1992 program. As of June 30,
1994, a total of 658,000 Class A shares had been repurchased pursuant
to the 1992 program. The primary purpose of the stock repurchase
program is to meet the needs of the Employees Stock Purchase Plan and
Stock Incentive Plan.
Management believes that the corporation's cash flow from operations
and available unused bank lines of credit under its revolving credit
agreements will be sufficient to finance its working capital and other
capital requirements for the foreseeable future.
- 9 -
<PAGE>
<PAGE>
KAMAN CORPORATION AND SUBSIDIARIES
PART II - OTHER INFORMATION
Item 6. Exhibits and Reports on Form 8-K.
(a) Exhibits to Form 10-Q:
(4a) The Revolving Credit Agreement between the Corporation
and The Shawmut Bank Connecticut, as agent, dated as
of July 15, 1994.
(4b) The Revolving Credit Agreement between the Corporation
and The Bank of Nova Scotia, as agent, dated as of
July 15, 1994.
(11) Earnings per common share computation.
(b) Reports on Form 8-K:
There have been no reports on Form 8-K filed during the
quarter ended June 30, 1994.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of
1934, the registrant has duly caused this report to be signed on its
behalf by the undersigned thereunto duly authorized.
KAMAN CORPORATION
Registrant
Date: August 11, 1994 By
Harvey S. Levenson
President
(Duly Authorized Officer)
Date: August 11, 1994 By
Robert M. Garneau
Senior Vice President and
Chief Financial Officer
- 10 -
<PAGE>
<PAGE>
KAMAN CORPORATION AND SUBSIDIARIES
Index to Exhibits
Page in Sequentially
Numbered Copy
----------------------
Exhibit 4a The Revolving Credit Agreement
between the Corporation and The
Shawmut Bank Connecticut, as
agent, dated as of July 15, 1994. 12
Exhibit 4b The Revolving Credit Agreement
between the Corporation and The
Bank of Nova Scotia, as agent,
dated as of July 15, 1994. 86
Exhibit 11 Earnings Per Common Share Computation 162
- 11 -
<PAGE>
<PAGE>
EXHIBIT 4a
KAMAN CORPORATION
SECOND AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT
As of July 15, 1994
SECOND AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT dated
as of July 15, 1994 among KAMAN CORPORATION, a Connecticut
corporation the "Company"), and THE SHAWMUT BANK CONNECTICUT,
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, THE
FIRST NATIONAL BANK OF BOSTON, and NATIONSBANK OF NORTH
CAROLINA, N.A. (sometimes referred to herein individually
as a "Bank" or collectively as the "Banks")and THE SHAWMUT
BANK CONNECTICUT, as agent (in such capacity sometimes
referred to herein as the "Agent") for the Banks.
WHEREAS, the Company, the Banks and the Agent are each party to
an Amended and Restated Revolving Credit Agreement dated as of
December 31, 1991 (as amended through the date hereof, the
"Existing Credit Agreement");
WHEREAS, each of the Banks has agreed with the Company to amend
the terms and conditions of the Existing Credit Agreement;
NOW, THEREFORE, the Company, the Banks and the Agent agree that
as of the Effective Date (as hereinafter defined) the Existing
Credit Agreement shall be amended and restated in its entirety as
set forth herein.
ARTICLE I
THE LOANS
SECTION 1.01. 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 July 15, 1999 (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 Sections 1.02 or 10.05 hereof:
<TABLE>
BANK COMMITMENT PERCENTAGE OF TOTAL
COMMITMENT
<S> <C> <C>
Shawmut $35,000,000 31.8182%
Bank of America $25,000,000 22.7273%
FNBB $25,000,000 22.7273%
NationsBank $25,000,000 22.7273%
----------- --------
Total Commitment: $110,000,000 100%
</TABLE>
- 12 -
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<PAGE>
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 $110,000,000 in the aggregate (and
shall not exceed $110,000,000 even if the principal indebtedness to
a Bank exceeds 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, the Agent
or the other Banks for the obligations or Commitments of any other
Bank. The Agent shall not be responsible to the Company for the
obligations or Commitments of any of the Banks.
SECTION 1.02. 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 5.06.
(b) OPTIONAL TERMINATION OR REDUCTION OF COMMITMENTS.
At the Company's option and upon three (3) Business Days' prior
written notice to the Agent, 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 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 1.16.
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<PAGE>
(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 1.02 or
Section 7.03.
SECTION 1.03. 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 1.03 shall apply.
The Company shall give the Agent at least two (2) 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. Such notice
(individually an "Election Notice" and collectively the "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 Election Notices must be received by
the Agent before 10:00 a.m., Hartford, Connecticut time on the
Business Day specified in the second sentence of this Section
1.03(a). Each borrowing of Revolving Credit Loans shall be (x) in
the case of Domestic Loans, in an aggregate amount not less than
$1,000,000 or in a greater integral multiple of $500,000, and (y)
in the case of Eurodollar Loans, in an aggregate amount not less
than $5,000,000 or in a greater integral multiple of $1,000,000.
Except for Bid Auction Borrowings, each borrowing hereunder shall,
to the extent that each Bank satisfies its obligations hereunder,
be made from each Bank pro rata based upon such Bank's percentage
of the Total Commitment. The Revolving Credit Loans of each Bank
shall be evidenced by a promissory note payable to the order of
such Bank and in the amount of the Commitment of such Bank,
substantially in the form of Exhibit A attached hereto
(individually a Revolving Credit Note and collectively the
"Revolving Credit Notes"). The Revolving Credit Notes are issued
hereby as replacements and in exchange for (but do not evidence
payment or satisfaction of) the Revolving Credit Notes (as defined
in the Existing Credit Agreement). 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),
- 14 -
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<PAGE>
and reborrow pursuant to Section 1.01 and Section 1.03 hereof until
the Maturity Date. Notwithstanding any term to the contrary
contained herein, any failure of any Bank or the Agent
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 Election Notice received by the Agent in accordance with
paragraph (a) above, each of the Banks will make available to the
Agent, in immediately available funds, at the Agent'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 1.01 and upon
fulfillment of the applicable conditions of Article III, the
Agent shall make available to the Company, in immediately available
funds, at the Agent's Funding Office, such amount of funds received
from such Bank.
SECTION 1.04. BID AUCTION ADVANCES.
(a) GENERALLY. Each Bank severally agrees that the
Company may request Bid Auction Borrowings under this Section 1.04
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.
(b) NOTIFICATION OF BID AUCTION BORROWING. The Company
shall request a Bid Auction Borrowing under this Section 1.04 by
delivering to the Agent, 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 notice (an "Election Notice")
specifying:
(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;
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<PAGE>
(iv) the Interest Period for such proposed
borrowing; and
(v) any other terms to be applicable to such
proposed borrowing.
The Agent shall promptly notify each Bank by telephone, confirmed
by telex or 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 Agent 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 notifying the Company by telex,
telecopy or telefacsimile, before 10:00 a.m. (Hartford, Connecticut
time) on the date of the proposed borrowing specified in the
Election Notice of: (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
Election Notice, either:
(i) cancel such Bid Auction Borrowing by giving
the Agent 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
1.04(c), in the Company's sole discretion, by giving notice
to the Agent and such Bank or Banks of 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 1.04(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; and reject any remaining offers
made by any Bank or Banks pursuant to Section 1.04(c) by
giving the Agent and any such Bank or Banks notice to that
effect.
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(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 Agent
that a Bid Auction Borrowing is canceled pursuant to Section
1.04(d)(i), the Agent 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 1.16.
(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 Election Notice
pursuant to Section 1.04(b), if all applicable conditions specified
in Section 3.02 have been satisfied, make available to the Agent at
the Agent's Funding Office, in immediately available funds, such
Bank's portion of such Bid Auction Borrowing. After receipt by the
Agent of such funds, the Agent will make such funds available to
the Company at the Agent's Funding Office. The Agent will notify
each of the Banks, within a reasonable period of time (not to
exceed ten (10) days) after any Bid Auction Advance is made, of (i)
the principal amount of, the interest rate on, the Interest Period
for, and the date of, such Bid Auction Advance, and (ii) the Bank
which made such Bid Auction Advance.
(h) REPAYMENT AT MATURITY. The Company shall repay to
the Agent, 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.
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(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 1.05. 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 3.02 (except paragraph (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 Agent 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
second Business Day prior to the date of such proposed renewal or
conversion. Each such notice shall specify: (i) the date of such
renewal or conversion; (ii) the specific Domestic Loan to be
converted or Eurodollar Loan to be renewed or converted; (iii) the
Domestic Loan or Eurodollar Loan which is to replace such Domestic
Loan or Eurodollar Loan; and (iv) the Interest Period for any
replacement Eurodollar Loan.
SECTION 1.06. [INTENTIONALLY LEFT BLANK]
SECTION 1.07. 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: (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 1.04.
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(b) CALCULATION. Interest on Domestic Loans shall be
calculated on the basis of a 365 or 366 day year (as applicable)
and the actual number of days elapsed, and the interest
rate with respect to any Domestic Loan shall change effective
immediately upon any change in the Base Rate, without notice or
demand to or upon the Company. Interest on Eurodollar Loans
and Bid Auction Advances shall be calculated on the basis of a 360
day year and the actual number of days elapsed. Each determination
of any interest rate by the Agent 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 Agent for the account of the Bank or Banks making
such Advance as follows:
(i) Domestic Loans. With respect to any Domestic
Loan, on the last Business Day of each calendar quarter;
(ii) Eurodollar Loans. With respect to any
Eurodollar Loan, on the last day of the Interest Period for
such Loan, provided that interest shall also be payable on the
last day of the third (3rd) month for any Eurodollar Loan
having a six (6) month Interest Period; and
(iii) Bid Auction Advances. With respect to any Bid
Auction Advance, on the last day of the Interest Period for
such Bid Auction Advance, provided that interest shall also be
payable every ninety (90) days for Bid Auction Advances with
Interest Periods in excess of ninety (90) days.
It is understood and agreed that the interest payable on the last
day of an Interest Period in excess of 90 days shall be only of
interest accrued after the 90th day of such Interest Period if
interest accrued through such 90th day was paid on such 90th day,
as provided herein.
(d) [INTENTIONALLY DELETED]
(e) DEFAULT INTEREST. Notwithstanding the foregoing,
while any Event of Default is continuing, interest on all Domestic
Loans, Eurodollar Loans and Bid Auction Advances shall accrue at a
rate per annum equal to two percent (2%) per annum above the Base
Rate.
SECTION 1.08. INTEREST PERIODS. Each Interest Period relating
to any Eurodollar Loan shall be for such duration of 1, 2, 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
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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 (subject to the
provisions of the last sentence of this Section 1.08) 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). Any Interest
Period for a Eurodollar Loan which otherwise would end on the first
Business Day of a calendar quarter shall end on the last Business
Day of the prior calendar quarter.
SECTION 1.09. 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.
(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
5.06, the Company shall prepay all or a portion of the Advances in
accordance with the provisions of such Section 5.06.
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(e) The Company may, at its option, subject to the
provisions of Section 1.16, prepay without premium Domestic Loans,
in whole or in part, on the following conditions: (i) the Company
shall give to the Agent 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 $1,000,000 and an integral multiple of $500,000; and (iii) each
prepayment must be made to the Agent 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 paragraph (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 1.16 hereof.
(f) Except for payments in respect of Bid Auction
Borrowings, each payment of principal of borrowings hereunder shall
be made to each Bank pro rata based upon its percentage of the
aggregate outstanding amount of the Loans at the time of such
payment.
(g) Each payment of principal of or interest on any Bid
Auction Advance shall be made to the Agent 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 Agent 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 Agent for distribution to each Bank
pro rata based upon its percentage of the Total Commitment.
SECTION 1.10. PAYMENTS AND COMPUTATIONS.
(a) Notwithstanding anything in this Agreement to the
contrary, each payment payable by the Company to the Agent or any
Bank under this Agreement or the Notes shall be made directly to
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the Agent, in Dollars at the Agent's Funding Office, not later than
2:00 p.m., Hartford, Connecticut time, on the due date of each such
payment and in immediately available funds. The Agent 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 Agent.
(b) If any sum would, but for the provisions of this
paragraph (b), become due and payable to the Agent or any Bank by
the Company under this Agreement or any Note 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 Agent or such Bank under this Agreement or
any Note shall be adjusted by the Agent accordingly.
SECTION 1.11. PAYMENTS TO BE FREE OF DEDUCTIONS.
(a) Each payment payable by the Company to the Agent or
any Bank under this Agreement or any Note shall be made in
accordance with Section 1.10 hereof, in Dollars, without set-off or
counterclaim and free and clear of and without any deduction of any
kind, except as otherwise permitted by paragraph (b) below.
(b) Each Bank that is not organized under the laws of the
United States or any state thereof (a "Foreign Bank") agrees to
provide to the Company and the Agent 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 Agent shall
reasonably request (if either such form is applicable), two duly
completed signed copies of either (A) Internal Revenue Service Form
4224 (or any successor form), certifying that all payments
to be made to such Foreign Bank under this Agreement or any Note
will be effectively connected to a United States trade or business
(a "Form 4224 Certification") or (B) Internal Revenue Service Form
1001 (or any successor form), certifying that such Foreign Bank is
entitled to the benefits of a provision of a tax convention or
treaty to which the United States is a party which exempts from
United States withholding tax, in whole or in part, all payments to
be made to such Foreign Bank under this Agreement or any Note (a
"Form 1001 Certification"). In addition, each Foreign Bank agrees
that if such Foreign Bank previously filed a Form 1001
Certification it will deliver to the Company and the Agent 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 will deliver to the Company and the Agent a
new Form 4224 Certification prior to the first payment date
occurring in each of its subsequent taxable years. Each Foreign
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Bank also agrees to deliver to the Company and the Agent, to
theextent 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 any 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
1.11(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 Agent of such fact (a "Withholding Notice").
During any period with respect to which the Company and the Agent
(i) have not received from a Foreign Bank a Form 1001 Certification
or a Form 4224 Certification indicating that all payments to be
made to such Foreign Bank under this Agreement or any Note are not
subject to United States withholding tax (ii) have received a
Withholding Notice from a Foreign Bank, or (iii) are for any other
reason required by applicable law to deduct or withhold United
States federal, state or local income taxes from payments due to a
Foreign Bank hereunder or under any Note, the Company shall (A) be
permitted to make the deduction or withholding required by
applicable law in respect of such United States income taxes, and
(B) 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 Agent 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. Each Foreign Bank agrees to indemnify
and hold the Company and the Agent harmless from any United States
taxes, penalties, interest, expenses and costs (including
reasonable fees and disbursements of legal counsel) incurred or
payable by them as a result of either (y) such Foreign Bank's
failure to submit any form or notice that it is required to provide
pursuant to this Section 1.11(b), or (z) the Agent's or the
Company's reliance on any such form or notice which such Foreign
Bank has provided to them and which is or becomes inaccurate in any
material respect.
SECTION 1.12. FEES.
(a) FACILITY FEE. The Company shall pay to the Agent,
for the benefit of the Banks, on the first (1st) Business Day of
each calendar quarter (commencing October 3, 1994) and on the
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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 Facility Fee Payment Date (or July 2, 1994, in the case
of the Facility Fee Payment due October 3, 1994) and ending on
the day before the Facility Fee Payment Date. The average daily
amount of the Total Commitment during the period commencing July 2,
1994 and ending on the Effective Date shall be deemed to be
$80,000,000. 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 July 2, 1994. The Agent 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 Agent,
for the benefit of the Banks, a non-refundable fee, payable on the
Effective Date , in the aggregate amount of Fifty-Five Thousand
Dollars ($55,000) (the "Upfront Fee"). The Agent shall promptly
disburse the Upfront Fee to each of the Banks in accordance with
their respective shares of the Total Commitment.
(c) AGENT'S FEES. The Company agrees to pay to the
Agent, solely for account of the Agent, certain fees ("Agent's
Fees"), in the amounts and at the times heretofore agreed to
between the Agent and the Company executed and delivered in
connection herewith.
SECTION 1.13. 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 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 Board of Governors of the Federal Reserve System, 12
C.F.R. Parts 221 and 224.
SECTION 1.14. 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
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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 1.16(a).
SECTION 1.15. INCREASED COSTS; CAPITAL ADEQUACY; SUSPENSION 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 or change the basis of taxation of payments to any Bank of
principal, Fees, interest or any other amount payable hereunder
(except for changes in the rate of tax on the overall net income of
any Bank or taxes arising solely as a result of a Bank's negligent
acts or omissions, such as special assessments by governmental
authorities not generally applicable to the banking industry); (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
Board of Governors of the Federal Reserve System (but excluding any
such requirement arising solely out of any Bank's negligent acts or
omissions and applicable specifically only to such Bank as a result
of such negligence and not to the banking industry in general); or
(iii) impose on any Bank any other condition with respect to this
Agreement, any Note or any of the Loans or Bid Auction Advances
hereunder; and the result of any of the foregoing is to (x)
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 the Bank deems 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 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 Agent
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"). It is understood and agreed that Additional
Costs shall not include any amounts deducted and withheld by the
Company or the Agent pursuant to and in compliance with Section
1.11(b).
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(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, excluding any such requirements applied to
such Bank's negligent acts or omissions and applicable
specifically only to such Bank as a result of such negligence and
not to the bank industry as a whole, 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 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, the 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
Agent in any LIBOR Market for such Interest Period, or the Agent
otherwise determines (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 Agent 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.
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SECTION 1.16. 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 1.15 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 Agent or any
Bank under this Agreement or any Note or (iv) the acceleration, in
accordance with the terms of this Agreement, of the time of payment
of any of the Obligations. Such losses, costs or expenses shall
include, but shall not be limited to, (x) any costs incurred by any
Bank in carrying funds which were to have been borrowed by the
Company or in carrying funds to cover any overdue principal,
overdue interest or any other overdue sums payable by the Company
to the Agent or any Bank under this Agreement or any Note, (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 the Agent and each Bank harmless from any and
all manner of loss, liability, claim, damages and expenses
sustained or incurred arising out of or in any way related to the
Company's proposed or actual use of any proceeds of any Advances,
including without limitation, reasonable attorneys', and other
professionals' fees, court costs and costs of collection, as and
when incurred, except to the extent such loss or expenses are the
result of the Agent or such Bank's gross negligence or willful
misconduct or arise directly from the Agent's or such Bank's
affairs with a third party.
SECTION 1.17. BANK WIRES TO THE COMPANY. All transfers by the
Agent to the Company shall be effected by federal wire transfer of
immediately available funds to Account Number 0019-5213 of Kaman
Corporation maintained at the Agent, unless specifically instructed
otherwise in writing by the Company to the Agent.
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SECTION 1.18. AGENT OR BANK CERTIFICATE. A certificate signed
by an authorized employee of the Agent or any Bank, setting forth
any amount required to be paid by the Company to the Agent or such
Bank pursuant to Section 1.07, 1.14, 1.15 or 1.16 and the
computations made by the Agent or such Bank to determine such
amount, shall be submitted by the Agent or such Bank to the Company
in connection with each demand made at any time by the Agent of
such Bank upon the Company under the foregoing Sections. Any such
certificate submitted pursuant to Section 1.14 or 1.15 shall,
absent manifest error, constitute conclusive evidence as to the
amount owed pursuant to such Section.
SECTION 1.19. INTEREST LIMITATION. Notwithstanding any other
term of this Agreement or any Note, the maximum amount of interest
which may be charged to or collected from any Person liable
hereunder or under any Note 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 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 paragraph. If, in any month, the effective
interest rate on any amounts owing pursuant to this Agreement or
the Notes, 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.
SECTION 1.20. EXTENSION OF MATURITY DATE; REPLACEMENT OF
NON-EXTENDING BANKS.
(a) Provided that the Total Commitment shall not have
been terminated, the Company may request that the Maturity Date
then in effect be extended to the date which is exactly one year
after such Maturity Date by delivering a written notice (an
"Extension Request") to each Bank between March 15 and April 15 of
any year. Each Bank may, in its sole discretion, either agree to
or not agree to such extension and shall deliver written notice of
its decision to the Company and the Agent (which shall promptly
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notify each of the other Banks) within 60 days after its receipt of
the Extension Request. Unless all Banks agree to extend the
Maturity Date as provided above in this paragraph (a), the Maturity
Date will not be extended.
(b) If at any time any Bank declines to extend the
Maturity Date as provided in paragraph (a) above, so long as no
Event of Default has occurred and is continuing, the Company shall
have the right to offer to one or more Banks the right to increase
their Commitments up to, in the aggregate for all such increases,
the Commitment(s) of all such non-extending Banks, provided that no
Bank shall be obligated to increase its Commitment in response to
any such offer.
(c) If at any time any Bank declines to extend the
Maturity Date as provided in paragraph (a) above and the extending
Banks have not increased their Commitments as provided in paragraph
(b) above, so long as no Event of Default has occurred and is
continuing and a commitment to become a Bank for all purposes under
this Agreement and to assume all obligations of the Bank to be
replaced has been obtained from one or more banks or financial
institutions reasonably acceptable to the Agent, the Company may
replace the non-extending Bank with such other bank or financial
institution; provided that, prior to such replacement, (i) all
principal, interest, fees and other amounts due and payable to such
non-extending Bank through such date of replacement have been paid,
and (ii) all of the requirements for such assignment contained in
Section 10.05 have been fulfilled.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
The Company represents and warrants to the Agent and each Bank
that:
SECTION 2.01. DUE ORGANIZATION; GOOD STANDING; QUALIFICATION.
The Company and each of its Subsidiaries are duly organized,
validly existing and in good standing under the laws of their
respective jurisdictions of incorporation, except where a
Subsidiary's failure to be in good standing would not have a
Material Adverse Effect. Each of the Company and its Subsidiaries
has all requisite corporate power, authority, licenses, consents,
approvals and the like required to own and operate its respective
properties (except where the failure to do so would not have
a Material Adverse Effect) and to carry on its respective business
as presently conducted, and each is duly qualified to do business
and is in good standing as a foreign corporation in each
jurisdiction wherein the character of the properties owned or
leased by it therein or in which the transaction of its respective
business therein makes such qualification necessary and failure to
comply with any of the foregoing would have a Material Adverse
Effect.
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SECTION 2.02. DUE AUTHORIZATION; NO CONFLICTS. The execution
and delivery by the Company of this Agreement and the Notes, the
performance by the Company of all of its agreements and obligations
under each of such documents, 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.
Such execution, delivery, and performance by the Company, and the
making by the Company of the borrowings contemplated hereby, do not
and will not (a) contravene any provision of the Company'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, under any agreement, trust, deed, indenture, mortgage
or other instrument to which the Company is a party or by which the
Company or any of its properties is bound or affected, or (c)
require any waiver, consent or approval by any creditors,
shareholders, or public authority.
SECTION 2.03. BINDING AGREEMENTS. This Agreement constitutes,
and the Notes and any other instrument delivered in connection
herewith, 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.
SECTION 2.04. SUBSIDIARIES. All of the issued and outstanding
shares of capital stock of each Subsidiary of the Company which is
owned by the Company or a Subsidiary of the Company, has been
validly issued and is fully paid and non-assessable and is free and
clear of any Lien. No rights to subscribe for additional shares of
stock of any Subsidiary have been granted.
SECTION 2.05. NO DEFAULTS. No Default or Event of Default is
continuing.
SECTION 2.06. FINANCIAL STATEMENTS. The Company has furnished
to each of the Banks: (a) the audited consolidated and
consolidating balance sheets of the Company and its Subsidiaries
as at December 31, 1993, and the related consolidated and
consolidating statements of income, cash flows and shareholders'
equity of the Company and its Subsidiaries for the fiscal year
ended December 31, 1993, certified by Messrs. Peat Marwick Main &
Co., certified public accountants, and (b) the unaudited
consolidated and consolidating balance sheets of the Company
and its Subsidiaries as at March 31, 1994, and related consolidated
and consolidating statements of income, cash flows and
shareholders' equity for the three (3) months ended March 31, 1994,
certified by the president or principal financial officer of the
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Company. Such balance sheets and statements have been prepared in
conformity with GAAP applied on a consistent basis throughout the
periods specified and present fairly the financial condition and
results of operations of the Company and its Subsidiaries as at the
dates and for the periods indicated. The balance sheets referred
to in this Section 2.06 and the notes thereto disclose all material
liabilities, direct or contingent, known to the Company and its
Subsidiaries as of the dates thereof.
SECTION 2.07. NO MATERIAL ADVERSE CHANGES. Since December 31,
1993, 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 2.08. 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 or the
Notes 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 2.09. TRUE COPIES OF GOVERNING DOCUMENTS. The Company
has furnished or caused to be furnished to the Agent 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. To the best of the Company's knowledge
and belief, 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 $15,000,000 as of
the Effective Date.
SECTION 2.12. COMPLIANCE WITH ERISA. 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 ERISA.
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SECTION 2.13. EXISTING CREDIT AGREEMENT. As of the Effective
Date, no Obligations (under and as defined in the Existing Credit
Agreement) are due and payable, and no Default or Event of Default
(under and as defined in the Existing Credit Agreement) is
continuing.
ARTICLE III
CONDITIONS OF LENDING
SECTION 3.01. 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 AND NOTES. This
Agreement, each of the Revolving Credit Notes and each of the Bid
Auction Notes shall have been duly and properly authorized,
executed and delivered 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 Agent.
(b) EVIDENCE OF CORPORATE ACTION; CERTIFIED COPIES OF
GOVERNING DOCUMENTS. The Agent shall have received certified
copies of: (i) all corporate action taken by the Company to
authorize the execution, delivery and performance of this Agreement
and the Notes, and the borrowings to be made hereunder; (ii) all
the Company's Governing Documents; and (iii) such other papers as
the Agent 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 Agent, and the
Agent shall have received all such counterpart originals or
certified or other copies of all such instruments and documents as
the Agent shall have reasonably requested.
(D) OPINION OF COUNSEL. The Agent shall have received an
opinion addressed to the Banks and the Agent from Glenn M.
Messemer, Esq., counsel for the Company, in or substantially in the
form of Exhibit C attached hereto, dated as of the Effective Date,
accompanied by such supporting documents as the Agent may
reasonably require.
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SECTION 3.02. 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 are subject to the
satisfaction, at the time such loan 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 Agent all notices required by this Agreement in
connection with such Revolving Credit Loan or such Bid Auction
Advance. Such notice, without more, shall constitute certification
by the Company as to the matters set forth in paragraphs (c) and
(d) below.
(b) LEGALITY OF TRANSACTIONS. It shall not be unlawful
for the Company to perform any of its agreements or obligations
under this Agreement or any of the Notes.
(c) PERFORMANCE; NO DEFAULT. The Company shall have duly
and properly performed, complied with and observed each of its
covenants, agreements and obligations contained in this Agreement
and the Notes. 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 in this
Agreement 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. The Company's representations and warranties
in Section 2.11 shall not be deemed repeated in connection with any
Advance other than the first Revolving Credit Loan hereunder.
ARTICLE IV
AFFIRMATIVE COVENANTS
The Company covenants and agrees with the Agent 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 4.01. FINANCIAL STATEMENTS; NOTICE OF EVENTS OF
DEFAULT. Deliver to the Agent 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
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consolidated and consolidating statements of income and retained
earnings 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 D
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 financial statements required to be delivered pursuant
to clause (a) above for each fiscal year, a report containing an
unqualified opinion of Peat Marwick Main & Co. 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
Agent's written request, such other information about the financial
condition and operations of the Company and its Subsidiaries, and
any endorser or guarantor (if any), as the Agent may, from time to
time, reasonably request; (e) promptly after becoming available,
copies of all financial statements, reports, notices and proxy
statements sent by the Company to stockholders, and of all regular
and periodic reports filed by the Company with any securities
exchange or with the SEC or any governmental agency successor to
any or all of the functions of the SEC, and of all press releases
issued by the Company; (f) promptly upon becoming aware of any
Default or Event of Default, notice thereof in writing; (g)
promptly upon becoming aware of any development that is likely to
result in an Event of Default, notice thereof in writing; and (h)
promptly after becoming aware of any Change in Control, notice
thereof in writing.
SECTION 4.02. SECURITIES REGULATION COMPLIANCE REPORTS.
Promptly deliver to the Agent 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.
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SECTION 4.03. INSURANCE. (a) Keep its properties insured
against fire and other hazards (so-called "All Risk" coverage) in
amounts and with companies satisfactory to the Agent 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 Agent's request, agrees to deliver copies of all of the
aforesaid insurance policies to the Agent.
SECTION 4.04. TAX AND OTHER LIENS. Except for taxes the
payment of which is being contested in good faith after the
establishment of any reserves required by GAAP consistently
applied, pay or cause to be paid all taxes, assessments and
governmental charges of every kind which would, in the aggregate,
if not paid, be material as to the Company and its Subsidiaries
when taken as a whole or be reportable under the Securities
Exchange Act or required under FASB Standards to be disclosed on
the Company's consolidated audited financial statements; and
the Company shall deliver to the Agent such other information
related to the Company's and its Subsidiaries' taxes as may be
reasonably requested by the Agent.
SECTION 4.05. LITIGATION. Promptly notify the Agent 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 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 Agent such other information related to such
proceedings or litigation as reasonably requested by the Agent.
SECTION 4.06. 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
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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 non-material Subsidiaries from time to time as the Company
in the proper exercise of its judgment may determine, so long as
any such liquidation or dissolution shall not, either individually
or in the aggregate, have a Material Adverse Effect, 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 5.06.
SECTION 4.07. 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 Agent a copy of such notice.
SECTION 4.08. 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 4.09. INSPECTION. Permit any officer or employee
designated by the 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 times, upon reasonable
notice, in a reasonable manner and as often as the 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 the Agent and the
Banks that such policies and practices may restrict access by the
Agent 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 Agent and
the Banks to personnel of the Company and its Subsidiaries.
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SECTION 4.10. EQUAL AND RATABLE LIENS. If the Company or any
of its Subsidiaries shall create any Lien upon any of its property
or assets, whether now owned or hereafter acquired, to secure
Indebtedness under the BNS Credit Agreement for the pro rata
benefit of all lenders under the BNS Credit Agreement, it shall
forthwith make or cause to be made effective provision to secure
the Obligations hereunder equally and ratably and in the same
manner as under the BNS Credit Agreement as long as any such
Indebtedness under the BNS Credit Agreement shall be so secured.
This covenant shall not be construed as a consent by the Majority
Banks to any Lien not permitted by Section 5.01.
SECTION 4.11. FURTHER ASSURANCES. Cooperate with the Agent
and each Bank and take such action and execute such further
instruments and documents as the Agent shall reasonably
request to effect the purposes of this Agreement and the Notes.
ARTICLE V
NEGATIVE COVENANTS
The Company covenants and agrees with the Agent 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 5.04 and
5.06, 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 5.01. LIENS. Incur or permit to exist any Lien
against any of its property or assets, whether now owned or
hereafter acquired, except:
(a) [INTENTIONALLY DELETED];
(b) 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;
(c) easements, rights-of-way, zoning and similar
restrictions, encumbrances or title defects (but specifically
excluding mortgages and any other Liens securing Indebtedness)
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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;
(d) 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);
(e) 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, 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), (d), (f), or (g) of this
Section 5.01;
(f) 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 fifteen percent (15%) of the Company's
Consolidated Tangible Assets as reflected on the financial
statements of the Company and its Subsidiaries most recently
delivered to the Banks pursuant to Section 4.01; and
(g) liens on accounts receivable of the Company or any
Subsidiary which have been sold in compliance with Section 5.06.
No Indebtedness or Liens which might be permitted in connection
with the transactions described in subsection (e), (f), and (g)
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.
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SECTION 5.02. LIMITATION ON INDEBTEDNESs. Create, incur or
permit to exist or remain outstanding any Indebtedness, 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)
(in the case of any Subsidiary or Subsidiaries) exceed,
individually or in the aggregate at any time, the amount of any
Indebtedness permitted to be secured pursuant to Section 5.01(e)
and (f).
SECTION 5.03. CONTINGENT LIABILITIES. Assume, guarantee,
endorse or otherwise become liable upon the obligations of any
Person or enter into any other agreement having substantially
the same effect as a Guarantee, except for the endorsement of
negotiable instruments for deposit or collection or other
transactions in the ordinary course of business which are not
material to the Company and its Subsidiaries when taken as a whole,
provided that 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 Funded
Debt, 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.
SECTION 5.04. 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 Agent, all the Obligations of the Company
under this Agreement and each of the Notes and (ii) the Agent 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 under this Agreement and each of the Notes), (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 5.04, the acquisition by the Company
of all or substantially all of the shares of capital stock or all
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or substantially all of the assets of any Person shall be deemed to
be a consolidation of such Person with the Company. Nothing herein
shall prohibit the Company from divesting a Subsidiary by merging
it with another corporation so long as the Company otherwise
complies with Section 5.06 below.
SECTION 5.05. 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 5.06. SALE OF ASSETS. Sell or transfer any assets,
except for:
(a) sales of inventory in the ordinary course of
business;
(b) sales of accounts receivable in the ordinary course
of business under accounts receivable purchase programs, provided
that such transactions qualify as "sales" of accounts receivable
under Section 5 of Rule #77 of the Financial Accounting Standards
Board (as in effect on the date hereof); and
(c) sales of assets (other than those referred to in
paragraph (a) and (b) 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) the book value of which (at
the time of sale) does not exceed in the aggregate (i) for any
fiscal year of the Company, fifteen percent (15%) of the Company's
Consolidated Tangible Assets (as reflected on the financial
statements of the Company and its Subsidiaries most recently
delivered to the Banks pursuant to Section 4.01), and (ii) for the
period commencing on the Effective Date and ending on the Maturity
Date, forty-five percent (45%) of the Company's Consolidated
Tangible Assets (as reflected on the financial statements of the
Company and its Subsidiaries most recently delivered to the Banks
pursuant to Section 4.01).
In the event of any sale or transfer of assets of the Company or
any Subsidiary not permitted by paragraph (a), (b) or (c) above
(any such sale or transfer not permitted by paragraph (a), (b)
or (c) above being 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 the
Agent 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
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Commitment will be reduced, on the tenth (10th) Business Day after
receipt by the Company of written notice (a "Pay-Down Notice") from
the Agent (at the direction of the Majority Banks) that the Total
Commitment is to be so reduced. The Agent shall give a Pay-Down
Notice, if at all, not later than ten (10) days after receipt by
the Agent and the Banks of a Designated Sale Notice conforming to
the requirements of this Section 5.06. The amount of each such
reduction in the Total Commitment in any fiscal year of the Company
shall be equal to (i) the aggregate book value of all assets sold
or transferred during such fiscal year not in compliance with
paragraph (a) or (b) above, minus (ii) an amount equal to fifteen
percent (15%) of the Company's Consolidated Tangible Assets on the
date hereof, minus (iii) the aggregate amount of all previous
reductions in the Total Commitment during such fiscal year pursuant
to this Section 5.06 or otherwise. No Designated Sales shall be
permitted during the one month period prior to the Maturity Date
(as the Maturity Date may be extended from time to time in
compliance with this Agreement).
SECTION 5.07. AFFILIATE TRANSACTIONS. Enter into any
transaction with an affiliate, except in the ordinary course of
business and pursuant to the reasonable requirements of the
Company's and, if applicable, such Subsidiary's business and upon
fair, reasonable and arm's-length terms.
SECTION 5.08. CERTAIN RESTRICTIVE AGREEMENTS. Enter into or
permit to exist any indenture, agreement, instrument or other
arrangement (other than this Agreement and the Notes) 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 or (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.
SECTION 5.09. COMPLIANCE WITH ENVIRONMENTAL LAWS. Except in
compliance with all applicable Environmental Laws (and except to
the extent that non-compliance 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.
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ARTICLE VI
FINANCIAL COVENANTS
The Company covenants and agrees with the Agent 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 6.01. CONSOLIDATED NET WORTH. Cause or permit the
Company's Consolidated Net Worth to be less than $200,000,000.
SECTION 6.02. 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,
to be less than 2.5 to 1.
SECTION 6.03. CONSOLIDATED TOTAL INDEBTEDNESS TO TOTAL
CAPITALIZATION. Cause or permit the Company's Consolidated Total
Indebtedness to exceed forty-five percent (45%) of its Total
Capitalization at any time.
ARTICLE VII
EVENTS OF DEFAULT; CERTAIN REMEDIES
SECTION 7.01. 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, 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 the Agent of such
default, whichever first occurs;
(d) any representation made by the Company in Article II
of this Agreement 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
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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 in reasonable detail to the Agent
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;
(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 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 which is not dismissed within thirty
(30) days after the commencement thereof; and
(g) any Change in Control occurs, and the Agent and the
Banks notify the Company within thirty (30) days after first being
notified by the Company of the Change in Control that the Agent and
the Banks do not consent to the Change in Control.
SECTION 7.02. ACCELERATION OF OBLIGATIONS. If any one or more
Events of Default shall at any time be continuing, the Agent may,
and, upon the written direction of the Majority Banks, shall, by
giving notice to the Company, declare all of the Obligations,
including the entire unpaid principal of all the Notes, all of the
unpaid interest accrued thereon, and all (if any) other sums
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payable by the Company under this Agreement or the Notes, to be
immediately due and payable; except that upon the occurrence of any
Event of Default under Section 7.01(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 under this Agreement or the Notes shall
automatically and immediately be due and payable. 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 7.03. TERMINATION OF COMMITMENTS; EXERCISE OF OTHER
REMEDIES. If any one or more Defaults shall be continuing under
Section 7.01(c), or if any one or more Events of Default shall be
continuing, then:
(a) Subject always to the provisions of Section 8.10,
each of the Banks and the Agent may proceed to protect and enforce
all or any of its rights, remedies, powers and privileges under
this Agreement or the Notes by action at law, suit in equity or
other appropriate proceedings, whether for specific performance of
any covenant contained in this Agreement or any Note or in aid of
the exercise of any power granted to the Agent or any Bank herein
or therein; and
(b) The Agent 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 7.01(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 of any of its Obligations.
SECTION 7.04. NO IMPLIED WAIVERS; RIGHTS CUMULATIVE. No delay
on the part of the Agent or any Bank in exercising any right,
remedy, power or privilege under this Agreement or any of the Notes
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 Agent or any
Bank under this Agreement or any of the Notes 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 Agent or any Bank under this
Agreement or any of the Notes or otherwise shall be cumulative
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and in addition to each and every other right, remedy, power or
privilege so conferred on or reserved to the Agent or any such Bank
and (subject to the provisions of Section 8.10) may be exercised at
such time or times and in such order and manner as the Agent or any
such Bank shall (in its sole and complete discretion) deem
expedient.
SECTION 7.05. 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. 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
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 AGENT
SECTION 8.01. AUTHORIZATION. The Banks hereby authorize
Shawmut to act as agent for the Banks with respect to this
Agreement and the Notes, and the Agent hereby agrees to so act
as agent for the Banks, on the terms and subject to the conditions
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set forth in this Article VIII. All payments made by the Company
to the Agent, for the benefit of the Banks, shall be distributed by
the Agent to the Banks as set forth herein promptly after receipt
thereof in immediately available funds. Each Bank irrevocably
authorizes the Agent as the agent of such Bank to take such action
on its behalf under the provisions of this Agreement and the Notes
and to exercise such powers hereunder and thereunder as are
specifically delegated to the Agent by the terms hereof and
thereof, together with such powers as are reasonably incidental
thereto. With respect to the Advances made pursuant hereto, the
Agent shall have the same obligations and the same rights, powers
and privileges (a) with respect to its Commitment and the Advances
made by it in its role as a Bank hereunder, and (b) as the holder
of any of the Notes, as any other Bank and may freely exercise the
same.
SECTION 8.02. No Liability. Neither the Agent nor any of its
shareholders, directors, officers or employees 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 in connection herewith or
therewith or be responsible to the Banks for the consequences of
any oversight or error of judgment whatsoever, except that the
Agent may be liable for losses due to its willful misconduct or
gross negligence.
SECTION 8.03. Conditions of Acting as Agent. The Agent agrees
to act as Agent upon the following conditions set forth in this
Section 8.03.
(a) The Agent 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) The Agent shall not (i) be responsible to the Banks
for any recitals, statements, warranties or representations herein
or in any related agreements furnished to the Agent or any of the
Banks by or on behalf of the Company, 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 therein on the part
of the Company.
(c) The Agent shall be entitled to rely upon any Note,
notice, consent, certificate, affidavit, letter, telegram, teletype
message, statement, order, telephone communication or other
document or communication believed by it to be genuine and correct
and to have been signed or communicated to it by the proper Person
or Persons and, in respect of legal matters, upon the advice of
counsel selected by the Agent. Any request, authority or
consent of any Person who at the time of making such request or
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giving such authority or consent is a Bank hereunder shall be
conclusive and binding on any subsequent transferee or assignee of
such Bank.
(d) The Agent shall not be responsible to any Bank for
the validity or enforceability of this Agreement or any of the
Notes or for the validity, enforceability or collectibility of any
amounts owing with respect to this Agreement or any of the Notes.
(e) The Agent has not 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) The Agent shall not be responsible to (i) any party
on account of the failures of, or delay in performance or breach
by, any Bank (except for the Agent, 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 in connection herewith or therewith.
SECTION 8.04. PAYMENTS.
(a) If in the good faith opinion of the Agent 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 Agent is to be repaid, each Person
to whom any such distribution shall have been made shall either
repay to the Agent its proportionate share of the amount so
adjudged to be repaid or shall pay over the same in such manner and
to such Persons as shall be determined by such court. With respect
to obligations of the Company hereunder, a payment to the Agent
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
fails (x) to make available to the Agent its pro rata share of any
Advance (except as set forth in Section 1.14) or (y) to comply with
the provisions of Section 7.05 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
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payments due to it from the Borrower, 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 Agent 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 8.05. HOLDERS OF NOTES. The Agent may deem and treat
the payee of any Note as the absolute owner or purchaser thereof
for all purposes hereof until it shall have been furnished in
writing with a different name by such payee or obligor or by a
subsequent holder, assignee or transferee.
SECTION 8.06. MODIFICATION OF THIS AGREEMENT AND THE NOTES;
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 or the Notes, and to waive or consent to any
deviation from or violation of the provisions of this Agreement or
the Notes 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, 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 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 "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 7.01 shall not be waived without the written
consent of all the Banks;
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(f) the provisions of Section 5.01 shall not be amended,
modified or waived without the written consent of all the Banks;
and
(g) the provisions of this Section 8.06 shall not be
amended, modified or waived without the written consent of all the
Banks.
SECTION 8.07. Costs of Agent; Indemnification. Each Bank
agrees to reimburse the Agent, ratably according to its respective
Commitment, for all costs, expenses, and disbursements (including
reasonable attorneys' fees and disbursements and amounts paid to
consultants and agents retained by the Agent) incurred by the Agent
and not reimbursed by the Company, except for such costs, expenses,
and disbursements and amounts paid to consultants and agents
retained by the Agent incurred as a result of the Agent's gross
negligence or willful misconduct. Without limitation of the
foregoing, each Bank agrees to indemnify the Agent (to
the extent not reimbursed by the Company) ratably, as aforesaid,
from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses, or
disbursements of any kind or nature whatsoever which may be imposed
on, incurred by or asserted against the Agent in any way relating
to or arising out of this Agreement, the Notes or any action taken
or omitted by the Agent under this Agreement or the Notes, except
to the extent that the same may result from the Agent's gross
negligence or willful misconduct; 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 and the Notes.
SECTION 8.08. NON-RELIANCE ON AGENT; 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 the Agent,
or any warranty, either express or implied, by the Agent.
(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 10.05 below, no Bank may assign its Commitment
and/or obligations hereunder without the prior consent of the Agent
and the Company and any such transfers must comply with all
applicable laws.
SECTION 8.09. SUCCESSOR AGENT. The Agent 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
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successor Agent. A successor Agent shall be appointed upon a vote
of the Majority Banks. Upon the acceptance of any appointment as
Agent hereunder by a substitute or successor Agent, such substitute
or successor Agent shall thereupon succeed to and become
vested with all the rights, powers, privileges and duties of the
retiring Agent, and the retiring Agent 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 Agent from any liability
incurred in the discharge or its duties hereunder before such
resignation.
SECTION 8.10. ACTION BY THE AGENT. Except as otherwise
provided in the this Agreement, the Agent will take such action,
assert such rights and pursue such remedies under this
Agreement and the Notes as the Majority Banks shall direct and as
it shall be entitled to do so. Except as otherwise expressly
provided in this Agreement, the Agent 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 in violation or
contravention of any express direction or instruction of the
Majority Banks. The Agent 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 without the express written
direction and instruction of the Majority Banks. No Bank (other
than the Agent, acting in its capacity as such) shall be entitled
to take any action of any kind under this Agreement or any Note,
other than to enforce payment of amounts due and payable hereunder
or under any Note issued to such Bank.
SECTION 8.11. SUBSTITUTION OF BANKS. (a) Within thirty (30)
days after any Bank has been unable, for any reason, to fund any
Loan requested in accordance with the terms hereof (and to which
the Company is entitled under the terms hereof) (such Bank is
hereinafter referred to as an "Affected Bank"), the Company may
request the non-Affected Banks to acquire all or any portion of
such Affected Bank's Advances and to assume all or such portion of
such Affected Bank's 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.
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(b) If one or more non-Affected Banks shall so agree in
writing or if the Company designates a replacement lender or
lenders in respect of all or a portion of the outstanding
Advances of the Affected Bank, such non-Affected Bank or Banks
and/or such replacement lender or lenders shall purchase such
Advances or portion, without recourse to or warranty by
(other than a warranty from the Affected Bank as to the principal
amount of the Advances being purchased), or expense to, such
Affected Bank, and such Affected Bank shall sell such
Advances, for a purchase price equal to the outstanding principal
amount of the Advances of such Affected Bank, in each case in such
proportions as the non-Affected Banks, the replacement lenders and
the Company shall agree, in the same mixture of the Eurodollar,
Domestic 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 1.16)
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 8.11
and upon executing a counterpart of this Agreement, each
replacement lender shall become a Bank hereunder.
(e) If the non-Affected Banks and any replacement lender(s)
are only willing to acquire less than all of the Affected Bank's
outstanding Advances, the Commitment of the Affected Bank shall not
terminate, but shall be reduced in an amount proportionate to the
percentage of its Advances being acquired and the Affected Bank
shall continue to be a Bank hereunder with a reduced Commitment.
(f) The Company shall have no obligation to seek a replacement
lender or take any other action under this Section, and any failure
on the part of an Affected Bank to fund any Advances, unless
otherwise excused hereunder, shall be deemed to be a breach of this
Agreement on the part of such Bank.
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ARTICLE IX
DEFINITIONS
SECTION 9.01. 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 paragraphs shall be deemed
references to Sections and paragraphs 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 9.02. OTHER DEFINITIONS. As used herein, in the
Notes, 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 1.15(a).
"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.
"Agent" shall have the meaning ascribed to such term in
the preamble of this Agreement.
"Agent's Fees" shall have the meaning assigned to such
term in Section 1.12(c).
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"Agent's Funding Office" shall mean the Agent's office at
777 Main Street, Hartford, Connecticut, or such other office within
the United States as the Agent may from time to time designate by
written notice to the Company and the Banks.
"Agreement" shall mean this Amended and Restated Revolving
Credit Agreement, as the same may from time to time be amended,
supplemented or otherwise modified.
"Applicable Margin" shall mean a percentage based upon the
highest of the then applicable credit ratings from either S&P or
Moody's with respect to Public Senior Debt (whether or not any is
outstanding) as follows:
<TABLE>
Facility Fee Base Rate LIBOR
Applicable Applicable Applicable
Credit Rating Margin Margin Margin
- - ------------- ------------ ---------- ----------
<S> <C> <C> <C> <C>
S&P MOODY'S
- - --- -------
A - or higher A3 or higher 0.15% 0 0.35%
BBB+ Baa1 0.18% 0 0.40%
BBB Baa2 0.20% 0 0.45%
BBB- Baa3 0.25% 0 0.50%
below BBB- below Baa3 0.35% 0.25% 0.75%
</TABLE>
provided, that if at any time any Public Senior Debt is not rated
by either of S&P or Moody's, such Public Senior Debt shall, for
purposes of this definition, be deemed to have been rated one level
above the highest rating ascribed to the Company's Subordinated
Debt by S&P or Moody's; provided, further, that if at any time
neither the Subordinated Debt nor the Public Senior Debt of the
Company is rated by either of S&P or Moody's, or if at any
time neither of S&P nor 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 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
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covenants and agrees with the Agent 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 Agent)
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 E
attached hereto, entered into by a Bank and an assignee of such
Bank pursuant to Section 10.05, and accepted by the Company and the
Agent.
"Banks" shall have the meaning assigned to such term in
the preamble to this Agreement.
"Base Rate" shall mean the higher of (a) the interest rate
announced by the Agent from time to time as its base rate; or (b)
the interest rate quoted to the Agent for the purchase of overnight
federal funds by brokers of recognized standing plus one half of
one(1/2%)percentage point.
"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 1.04.
"Bid Auction Borrowing" shall mean a borrowing under
Section 1.04 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 1.04(d).
"Bid Auction Note" and "Bid Auction Notes" shall have the
respective meanings assigned to such terms in Section 1.04(j).
"BNS Credit Agreement" means (i) the Amended and Restated
Revolving Credit Agreement, dated as of July 15, 1994, among the
Company, The Bank of Nova Scotia, as agent, and the other lenders
thereunder, and (ii) all amendments thereto.
"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
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<PAGE>
Company's management, the Kaman family or any trust, corporation,
or other legal entity established by or for the benefit of such
affiliated Person.
"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 1.01 hereof.
"Company" shall have the meaning assigned to such term in
the preamble of this Agreement.
"Consolidated Net Income" shall mean the Company's
consolidated net income as determined under GAAP.
"Consolidated Net Worth" shall mean the Company's
consolidated shareholders equity (including any and all Qualifying
Preferred Stock) as determined under GAAP.
"Consolidated Total Indebtedness" shall mean, as of any
date, any Indebtedness of the Company or any Subsidiary, other than
any Indebtedness of the Company to any wholly-owned Subsidiary or
of any wholly-owned Subsidiary to the Company or any other wholly-
owned Subsidiary.
"Consolidated Tangible Assets" shall mean the Company's
consolidated assets, excluding all Intangible Assets.
"Contingent Liabilities" shall mean any liability,
indebtedness or obligation of the type described in or contemplated
by Section 5.03.
"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 and the Notes,
and (ii) any agreements or instruments pursuant to which the
Obligations of the Company under this Agreement or any of the Notes
are refunded, refinanced or replaced (in whole or in part) from
time to time, as such agreements 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.
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<PAGE>
"Dollar", "Dollars" and the sign "$" shall mean lawful
money of the United States of America.
"Domestic Loan" shall mean all or any portion of any Loan
made hereunder which bears interest based on the Base Rate.
"Effective Date" shall mean July 15, 1994.
"Election Notice" and "Election Notices" shall have the
respective meanings assigned to such terms in Sections 1.03 and
1.04 hereof.
"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 7.01.
"Excess" shall have the meaning assigned to such term in
Section 1.07(d).
"Existing Credit Agreement" shall have the meaning
assigned to such term in the recitals hereto.
"Facility Fee" and "Facility Fees" shall have the
respective meanings assigned to such terms in Section 1.12(b).
"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 Agent's Fees.
"Foreign Bank" shall have the meaning assigned to such
term in Section 1.11(b).
"GAAP" shall mean generally accepted accounting standards,
as in effect from time to time, applied on a consistent basis.
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<PAGE>
"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.
"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.
"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, 2, 3, or 6 months thereafter, as the case may be, as
selected by the Company in compliance with this Agreement and as
set forth in the applicable Election Notice.
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<PAGE>
(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 1.04.
"LIBOR" 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 Agent
for delivery in the LIBOR Market at or about ll:00 A.M., local time
two Business Days prior to the first day of 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 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 or the
Notes; or (c) any impairment of the validity or enforceability of
this Agreement or the Notes, or any of the rights, remedies or
benefits to the Agent or the Banks under this Agreement or
the Notes.
"Maturity Date" shall have the meaning assigned to such
term in Section 1.01.
"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.
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<PAGE>
"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 to the Agent 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 or
any of the Notes.
"Operating Profit" for any fiscal period shall mean the
Company's consolidated operating profit as determined on a
consolidated basis by the application of GAAP, but excluding
interest expense and interest income, special items such as gains
or losses on sales of assets, all taxes on income, any
extraordinary or special items reported net of taxes, and all other
items required by GAAP to be reported as non-operating income.
"PBGC" shall mean the Pension Benefit Guaranty
Corporation.
"Person" shall mean any individual, corporation,
association, partnership, trust, unincorporated association,
business, or other legal entity, and any government or any
governmental agency or political subdivision thereof.
"Plan" shall mean any employee benefit plan or other plan
maintained for employees covered by Title 10 of ERISA.
"Prohibited Transaction" shall have the meaning assigned
to such term in Section 4975 of the Code.
"Public Senior Debt" shall mean long-term, publicly-held
senior indebtedness of the Company (whether or not outstanding).
"Qualifying Preferred Stock" shall mean any issued and
outstanding preferred stock of the Company with respect to which no
mandatory redemption or repurchase is or could be required of the
Company or any of its Subsidiaries prior to the Maturity Date (as
the Maturity Date may be extended in compliance with this
Agreement).
"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 10.05(d).
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"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 Loan" and "Revolving Credit Loans" shall
mean any Loan made hereunder pursuant to Section 1.01.
"Revolving Credit Note" or "Revolving Credit Notes" shall
have the respective meanings assigned to such terms in Section
1.03.
"S&P" shall mean Standard & Poor's Corporation.
"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.
"Shawmut" shall mean The Shawmut Bank Connecticut.
"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.
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"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.
"Termination Date" shall mean the date all the
Obligations then due and payable have been paid in full and all
the Commitments have terminated.
"Total Capitalization" means the aggregate amount at any
time of the Company's Consolidated Net Worth plus the Company's
Consolidated Total Indebtedness.
"Total Commitment" shall have the meaning assigned to such
term in Section 1.01.
"Upfront Fee" shall have the meaning assigned to such
term in Section 1.12 (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 10.01. EXPENSES. The Company agrees to pay all
out-of-pocket expenses of the Agent (including reasonable fees and
expenses of the Agent's counsel) and the Banks (including
reasonable fees and expenses of counsel for the Banks) incurred in
connection with: (i) the collection of Obligations due hereunder or
under the Notes, and/or (ii) the defense, protection, preservation,
realization or enforcement of any of the rights or remedies of the
Agent or any of Banks under any provisions of this Agreement or any
of the Notes; provided that no fees and expenses of counsel for the
Banks (other than the Agent) shall be payable by the Company unless
incurred after an Event of Default has occurred.
SECTION 10.02. PREJUDGMENT REMEDY WAIVER; OTHER WAIVERS.
THE COMPANY ACKNOWLEDGES THAT THE FINANCING EVIDENCED HEREBY
IS A COMMERCIAL TRANSACTION AND WAIVES ITS RIGHTS TO NOTICE AND
HEARING UNDER CHAPTER 903A OF THE CONNECTICUT GENERAL STATUTES,
OR AS OTHERWISE ALLOWED BY ANY STATE OR FEDERAL LAW WITH
RESPECT TO ANY PREJUDGMENT REMEDY WHICH THE 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 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 AGENT AND THE BANKS ACKNOWLEDGE THE
COMPANY'S RIGHT TO SAID HEARING SUBSEQUENT TO THE ISSUANCE OF
SAID WRIT.
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SECTION 10.03. COVENANTS TO SURVIVE; BINDING AGREEMENT. All
covenants, agreements, warranties, representations and statements
of the Company made herein, in the Notes, 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 the Agent 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 and the delivery of the Notes,
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 10.04. AMENDMENTS AND WAIVERS. Neither this
Agreement, the Notes, 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 8.06. No
failure on the part of the Agent 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 or under any Note shall
preclude any other or future exercise thereof, or the exercise of
any other right, remedy or power. No waiver shall extend to or
affect any obligation not expressly waived.
SECTION 10.05. TRANSFER OF BANK'S INTEREST.
(a) To the extent set forth in this Section 10.05, 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 Banks owe to the
Company hereunder; and (ii) the transferring Bank make the
transfer in compliance with this Section 10.05.
(b) Each Bank may, with the consent of the Company and
the Agent (which consent will not be unreasonably withheld or
delayed), 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
owning 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 Agent) shall not be less than $5,000,000, and (ii)
the parties to each such assignment shall execute and deliver to
the Agent an Assignment and Acceptance, together with the Notes
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subject to such assignment and a processing and recordation fee of
$2,500. Upon acceptance and recording pursuant to paragraph (e) of
this Section 10.05, from and after the effective date specified in
each Assignment and Acceptance, which effective date shall be at
least five(5)Business Days after the execution thereof, (A) the
assignee thereunder shall be a party hereto and, to the extent
provided in such Assignment and Acceptance, have the rights and
obligations of a Bank under this Agreement (which obligations shall
in any event include all obligations from which the assigning Bank
is released as provided in such Assignment and Acceptance) and
(B) the assigning Bank thereunder shall, to the extent provided in
such Assignment and Acceptance, be released from its obligations
under this Agreement (and, in the case of an Assignment and
Acceptance covering all or the remaining portion of an assigning
Bank's rights and obligations under this Agreement, such Bank shall
cease to be a party hereto but shall continue to be entitled to the
benefits of Sections 1.15, 1.16, 10.01 and 10.09). Notwithstanding
the foregoing, any Bank may assign, without the consent of the
Company or the Agent, (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
paragraph (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, the Agent, 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 or any other instrument or document
furnished pursuant hereto; (ii) neither such assigning Bank, the
Agent, 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
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obligations under this Agreement, any of the Notes 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 4.01 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 the Agent, such assigning Bank 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; (v) such assignee appoints and authorizes the Agent
to take such action as agent on its behalf and to exercise such
powers under this Agreement as are delegated to the Agent 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 Agent 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, the Agent and 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 its receipt of a duly completed Assignment and
Acceptance executed by an assigning Bank and an assignee and
accepted by the Company and the Agent, together with each Note
subject to such assignment and the processing and recording fee
referred to in paragraph (b) above, the Agent shall record the
information contained therein in the Register. Within five
Business Days after receipt of notice, the Company, at its own
expense, shall execute and deliver to the Agent, 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
- 64 -
<PAGE>
<PAGE>
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.
(f) Each Bank may (without the consent of the Company or
the 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 1.15 and Section 1.16 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, the Agent 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, or an extension of
scheduled dates for payment of principal, interest, Fees or
scheduled termination dates, 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 5.04.
(h) Nothing herein shall prohibit any Bank from pledging
or assigning any Note to any Federal Reserve Bank in accordance
with applicable law.
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<PAGE>
<PAGE>
SECTION 10.06. 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, facsimile transmission or telex to the respective
parties to this Agreement as follows:
The Company:
Kaman Corporation
Blue Hills Avenue
Bloomfield, Connecticut 06002
Attention: William P. Desautelle
Senior Vice President &
Chief Investment Officer
The Agent:
The Shawmut Bank Connecticut
777 Main Street
Hartford, Connecticut 06115
Attention: Jeffrey C. Lynch
Vice President
The Banks:
The First National Bank of Boston
100 Federal Street, 01-15-02
Boston, Massachusetts 02110
Attention: Harvey H. Thayer, Jr.,
Vice President
Bank of America National Trust and
Savings Association
335 Madison Avenue
New York, New York 10017
Attention: Brock Harris
Vice President
NationsBank of North Carolina, N.A.
767 Fifth Ave., 23rd Floor
New York, New York 10153
Attention: Christopher C. Browder
Vice President
- 66 -
<PAGE>
<PAGE>
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 Agent
pursuant to Section 1.03, 1.04, 1.05 or 1.09 hereof, such notices
may be given by telephone if they are confirmed by a writing
received by the Agent 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 1.03, 1.04 or 1.05
or prepayment pursuant to Section 1.09.
SECTION 10.07. SECTION 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 and the Notes is
intended to be severable; if any term or provision of this
Agreement, the Notes, or any other document delivered in connection
herewith 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 to this Agreement shall
be annexed hereto and shall be deemed to be part of this Agreement.
This Agreement and the Exhibits attached hereto embody the entire
Agreement and understanding between the Company, the Banks and the
Agent and supersede all prior agreements and understandings
relating to the subject matter hereof.
SECTION 10.08. GOVERNING LAW. This Agreement, the Notes 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 10.09. COUNTERPARTS. This Agreement and any amendment
hereof may be executed in several counterparts and by each party on
a separate counterpart, each of which when so executed and
delivered shall be an original, and all of which together shall
constitute one instrument. In proving this Agreement it shall not
be necessary to produce or account for more than one such
counterpart signed by the party against whom enforcement is sought.
SECTION 10.10. WAIVER OF JURY TRIAL. THE AGENT, 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
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<PAGE>
<PAGE>
CONNECTION WITH, THIS AGREEMENT OR THE NOTES, OR ANY COURSE OF
CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR
WRITTEN), OR ACTIONS OF THE AGENT, ANY OF THE BANKS OR THE
COMPANY. THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE AGENT
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, each of the parties hereto on the date hereof hereby
expressly consents to the non-exclusive jurisdiction of any Federal
or state court located in Hartford, Connecticut.
SECTION 10.12 RETURN AND CANCELLATION OF TERM NOTES. The
execution of the Agreement by each Bank hereunder will constitute
the cancellation of the "Term Note" of the Company issued to such
Bank pursuant to the Existing Credit Agreement. Upon each Bank's
receipt of its Notes hereunder, such Bank will promptly return to
the Company, marked "Cancelled", the "Term Note" of the Company
issued to such Bank pursuant to the Existing Credit Agreement.
SECTION 10.13. EFFECTIVE DATE. This Agreement shall become
effective among the parties hereto as of the Effective Date.
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 non-exclusive jurisdiction
of any Federal or state court located in Hartford, Connecticut.
IN WITNESS WHEREOF, the parties have caused this SECOND AMENDED
AND RESTATED REVOLVING CREDIT AGREEMENT to be executed by their
duly authorized officers as of the date first written above.
Attest: KAMAN CORPORATION
Glenn M. Messemer By: William P. Desautelle
Secretary Its: Senior Vice President
and Chief Investment Officer
STATE OF CONNECTICUT )
) ss.
COUNTY OF HARTFORD )
On this 15th day of July, 1994, before me personally appeared
William P. Desautelle, to me known, who, being by me duly sworn,
declared that he is the Senior Vice President and Chief Investment
Officer of KAMAN CORPORATION (the "Corporation"), the corporation
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<PAGE>
<PAGE>
described in and which executed the foregoing AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT; that, being duly authorized, he did
execute the foregoing SECOND AMENDED AND RESTATED REVOLVING CREDIT
AGREEMENT on behalf of the Corporation; and that the foregoing
constitutes the free act and deed of the Corporation.
Shirley M. Miller
Notary Public
My commission expires: June 30, 1999
THE SHAWMUT BANK CONNECTICUT
By: Jeffrey C. Lynch
Its: Managing Director
THE FIRST NATIONAL BANK OF BOSTON
By: Harvey H. Thayer, Jr
Its: Vice President
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
By: Brock Harris
Its: Vice President
NATIONSBANK OF NORTH CAROLINA, N.A.
By: Christopher C. Browder
Its: Vice President
THE SHAWMUT BANK CONNECTICUT,
AS AGENT
By: Jeffrey C. Lynch
Its: Vice President
- 69 -
<PAGE>
<PAGE>
EXHIBIT A
FORM OF REVOLVING CREDIT NOTE
$------------- July 15, 1994
FOR VALUE RECEIVED, the undersigned KAMAN CORPORATION, a
Connecticut corporation (the "Company"), hereby absolutely and
unconditionally promises to pay to the order of --------------
(the "Bank"), at the Agent's Funding Office:
(a) On the Maturity Date the principal amount of
- - ---------------------- DOLLARS ($---------------) 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 Second Amended and Restated Revolving
Credit Agreement, dated as of July 15, 1994 (as the same is amended
and in effect from time to time, the "Credit Agreement"), among the
Company, the Bank, the other banks named therein, such other banks
as may become parties thereto from time to time, and the Agent
thereunder; 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 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.
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<PAGE>
<PAGE>
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 THE 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 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 is issued in replacement but not in satisfaction of
the Revolving Credit Note issued by the Company to the Bank under
the Existing Credit Agreement.
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:
Title:
Attest:
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<PAGE>
<PAGE>
<TABLE>
<C> <C> <C> <C> <C> <C> <C>
Date Interest Interest Amount of Paid or Amount of Notation
Rate Period Advance Prepaid Principal Made By
(Domestic Balance of
Eurodollar) Principal
Unpaid
- - -------------------------------------------------------------------
- - -------------------------------------------------------------------
- - -------------------------------------------------------------------
- - -------------------------------------------------------------------
- - -------------------------------------------------------------------
- - -------------------------------------------------------------------
- - -------------------------------------------------------------------
- - -------------------------------------------------------------------
- - -------------------------------------------------------------------
- - -------------------------------------------------------------------
</TABLE>
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<PAGE>
<PAGE>
Exhibit B
FORM OF BID AUCTION NOTE
$110,000,000 July 15, 1994
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 Agent'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
Second Amended and Restated Revolving Credit Agreement, dated as of
July 15, 1994 (as the same is amended and in effect from time to
time, the "Credit Agreement"), among the Company, the Bank, the
other banks named therein, such other banks as may become parties
thereto from time to time, and the Agent thereunder, and on the
Maturity Date, the principal amount of ONE HUNDRED TEN MILLION
DOLLARS ($110,000,000) 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.
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.
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<PAGE>
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 THE
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 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 is issued in replacement but not in satisfaction
of the Bid Auction Note issued by the Company to the Bank under the
Existing Credit Agreement.
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:
Title:
Attest:
. . . . . . . . . . . . . . . . . . . .
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<PAGE>
<PAGE>
<TABLE>
<C> <C> <C> <C> <C> <C> <C>
Date Interest Interest Amount of Paid or Amount of Notation
Rate Period Advance Prepaid Principal Made By
(Domestic Balance of
Eurodollar) Principal
Unpaid
- - -------------------------------------------------------------------
- - -------------------------------------------------------------------
- - -------------------------------------------------------------------
- - -------------------------------------------------------------------
- - -------------------------------------------------------------------
- - -------------------------------------------------------------------
- - -------------------------------------------------------------------
- - -------------------------------------------------------------------
- - -------------------------------------------------------------------
- - -------------------------------------------------------------------
</TABLE>
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<PAGE>
<PAGE>
Exhibit C
[Letterhead of Kaman Corporation]
July 15, 1994
The Shawmut Bank Connecticut
777 Main Street
Hartford, Connecticut 06115
The First National Bank of Boston
100 Federal Street
Boston, Massachusetts 02110
Bank of America National Trust and
Savings Association
335 Madison Avenue
New York, New York 10017
NationsBank, N.A.
767 Fifth Avenue, 23rd Floor
New York, New York 10153
Re: Second Amended and Restated Revolving Credit Agreement
(the "Agreement"), dated as of July 15, 1994, by and among
Kaman Corporation (the "Company"), The Shawmut Bank
Connecticut, individually and as Agent (the "Agent"),
Bank of America National Trust and Savings Associations,
The First National Bank of Boston and NationsBank, N.A.
(the foregoing banks are hereinafter collectively referred
to as the "Banks")
Ladies and Gentlemen:
I have acted as special counsel to the Company in connection
with the negotiation, execution and delivery of the Agreement, the
Notes, and the transactions contemplated thereby. Capitalized
terms used but not defined herein have the meanings given to such
terms in the Agreement.
This opinion letter has been requested of me as an inducement
to your entering into the Agreement with the Company. In this
connection, I have examined the Governing Documents of the Company
and resolutions of the Board of Directors of the Company and such
certificates of public officials and other corporate documents or
records and have made such other examinations and inquiries as I
have deemed necessary or appropriate.
I have examined either original, certified copies or copies
otherwise authenticated to my satisfaction of such documents as I
have deemed necessary or advisable to examine in order to furnish
the opinion 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.
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<PAGE>
<PAGE>
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
Agreement and the Notes and the transactions contemplated thereby
(a) are within the corporate authority of the Company, (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 it 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 it
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 it or any of its Subsidiaries is a party or
will be a party immediately after the Effective Date, or by which
or to which it or any of its Subsidiaries or any of their
respective property 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.
3. No approval or consent of, or filing with, any
Governmental Authority and no consent or approval of the
shareholders of the Company or any other Person is required to be
obtained or made by or on behalf of the Company to make valid and
legally binding the execution, delivery and performance of the
Agreement and the Notes. The consummation of the transactions
contemplated by the Agreement and the Notes 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 in the ordinary course of business such as customary
SEC reporting) filing, registration or declaration with any such
Governmental Authority or Person.
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<PAGE>
<PAGE>
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 Agreement or the Notes 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 Agreement and each of the Notes have been
duly and properly executed and delivered to the Agent by the
Company.
8. The agreements and obligations of the Company
contained in the Agreement and each of the Notes constitute the
legal, valid and binding obligations of the Company enforceable
against the Company 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,
Glenn M. Messemer
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<PAGE>
<PAGE>
Exhibit D
FORM OF
KAMAN CORPORATION
COMPLIANCE CERTIFICATE
The undersigned, William P. Desautelle, hereby certifies that
he is the duly elected, qualified and acting Senior Vice President
and Chief Investment Officer of Kaman Corporation (the "Company"),
a Connecticut corporation, and as such officer, he is familiar with
the terms, covenants and conditions of the Second Amended and
Restated Revolving Credit Agreement (the "Agreement"), dated as of
July 15, 1994, among the Company, The Shawmut Bank Connecticut, as
Agent, and the other Banks thereunder, as amended and in effect as
of the date hereof. All terms not specifically defined herein
shall have the definitions ascribed in the 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 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
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 [last day of most recently
ended fiscal quarter]:
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<PAGE>
<PAGE>
<TABLE>
Section of (Dollars in Thousands)
Agreement
Requirement Actual
or Ceiling
<S> <C> <C> <C>
5.01(f) Liens not to secure
Indebtedness in excess
of fifteen percent (15%)
of Consolidated
Tangible Assets $---------- $--------
5.06(c) Sale of Assets $---------- $--------
(figure represents
15% of Company's
Consolidated
Tangible Assets)
6.01 Consolidated Net
Worth $200,000,000 $--------
6.02 Fixed Charge
Coverage Ratio 2.5:1 ----:----
6.03 Consolidated Total
Indebtedness to
Total Capitalization 45% ---%
</TABLE>
KAMAN CORPORATION
Dated: [date of delivery
of Certificate]
By:
William P. Desautelle
Senior Vice President and
Chief Financial Officer
- 80 -
<PAGE>
<PAGE>
Annex A
<TABLE>
<S> <C> <C>
A. 5.01(f):
(i) Consolidated Assets: $--------
(ii) Intangible Assets: $--------
(iii) Consolidated Tangible Assets: $--------
(Item (i) minus Item (ii))
(iv) Item (iii) multiplied by .15: $--------
B. 5.06(c): Sale of Assets
(i) with respect to any fiscal year
of the Company:
Item (iii) from Section A above
(Consolidated Tangible Assets)
multiplied by .15: $--------
C. 6.01: Consolidated Net Worth
(i) consolidated shareholders'
equity $--------
(ii) Qualifying Preferred Stock: $--------
(iii) Consolidated Net Worth
(Item (i) plus Item (ii)): $--------
D. 6.02: Fixed Charge Coverage Ratio
(i) Operating Profit for 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 four (4) most recently completed
fiscal quarters of the Company: $--------
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<PAGE>
<PAGE>
(iii) Fixed Charge Coverage Ratio
(Ratio of Item (i) to Item (ii)) ------:-----
(Footnote 1)
E. 6.03: 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)) (Footnote 2) ------%
Footnote 1: Section 6.02 of the Agreement requires Fixed Charge
Coverage Ratio to be greater than or equal to 2.5:1.
Footnote 2: Section 6.03 of the Agreement requires the Company's
Consolidated Total Indebtedness to be less than or equal to 45% of
its Total Capitalization.
</TABLE>
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PAGE
<PAGE>
Exhibit E
FORM OF ASSIGNMENT AND ACCEPTANCE AGREEMENT
Reference is made to the Second Amended and Restated
Revolving Credit Agreement, (the "Credit Agreement"), dated as of
July 15, 1994, by and among Kaman Corporation (the "Company"), The
Shawmut Bank Connecticut, as agent (the "Agent") and the Banks
thereunder. 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 the Agent, 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 Effective Date (as defined below), (b) each of
the Advances owing on the 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
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, legality,
validity, enforceability, genuineness, sufficiency or value of the
Credit Agreement, any of the Notes held by such Assignor, 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 the performance or observance
by the Company of any of its obligations under the Credit
Agreement, any of the Notes or any other instrument or documents
furnished pursuant thereto.
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<PAGE>
<PAGE>
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 4.01 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 the Agent, 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 and any Notes held by it; (d) appoints and
authorizes the Agent to take such action as agent on its behalf and
to exercise such powers under the Credit Agreement as are delegated
to the Agent 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 1.11 of the Credit
Agreement if it is organized outside the United States.
4. The Effective Date for this Agreement shall be
, 19 (the "Effective Date").(Footnote 1)
5. From and after the 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 acceptance and recording of this Agreement
by the Agent, from and after the Effective Date, the Agent 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
Effective Date directly between themselves.
7. The Assignee hereby consents to the
non-exclusive jurisdiction of any Federal or State court located in
Hartford, Connecticut.
8. This Agreement shall be governed by and
construed in accordance with the laws of the State of Connecticut.
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<PAGE>
<PAGE>
Footnote 1: See Section 10.05(b) of the Credit Agreement. Such
date shall be at least five (5) Business Days after the execution
of this Agreement.
ASSIGNOR:
[Name of Assignor]
By:
Title:
ASSIGNEE:
[Name of Assignee]
By:
Title:
hereby accepted by each of
the
COMPANY:
KAMAN CORPORATION
By:
Title:
AGENT:
SHAWMUT BANK CONNECTICUT,
as Agent
By:
Title:
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<PAGE>
<PAGE>
EXHIBIT 4b
KAMAN CORPORATION
SECOND AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT
As of July 15, 1994
SECOND AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT dated
as of July 15, 1994 among KAMAN CORPORATION, a Connecticut
corporation (the "Company"), and THE BANK OF NOVA SCOTIA, ABN AMRO
BANK N.V. and SOCIETE GENERALE (sometimes referred to herein
individually as a "Bank" or collectively as the "Banks") and THE
BANK OF NOVA SCOTIA, as agent (in such capacity sometimes referred
to herein as the "Agent") for the Banks.
WHEREAS, the Company, the Banks and the Agent are each party to
an Amended and Restated Revolving Credit Agreement dated as of
September 5, 1991 (as amended through the date hereof, the
"Existing Credit Agreement");
WHEREAS, each of the Banks has agreed with the Company to amend
the terms and conditions of the Existing Credit Agreement;
NOW, THEREFORE, the Company, the Banks and the Agent agree that
as of the Effective Date (as hereinafter defined) the Existing
Credit Agreement shall be amended and restated in its entirety as
set forth herein.
ARTICLE I
THE LOANS
SECTION 1.01. 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 July 15, 1999 (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 Sections 1.02 or 10.05 hereof:
<TABLE>
BANK COMMITMENT PERCENTAGE OF TOTAL
COMMITMENT
<S> <C> <C>
BNS $40,000,000 44.44444%
ABN AMRO $25,000,000 27.77777%
Societe Generale $25,000,000 27.77777%
----------- --------
Total Commitment: $90,000,000 100%
</TABLE>
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<PAGE>
<PAGE>
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 $110,000,000 in the aggregate (and
shall not exceed $110,000,000 even if the principal indebtedness to
a Bank exceeds 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, the Agent
or the other Banks for the obligations or Commitments of any other
Bank. The Agent shall not be responsible to the Company for the
obligations or Commitments of any of the Banks.
SECTION 1.02. 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 5.06.
(b) OPTIONAL TERMINATION OR REDUCTION OF COMMITMENTS. At
the Company's option and upon three (3) Business Days' prior
written notice to the Agent, 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 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 1.16.
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<PAGE>
<PAGE>
(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 1.02 or
Section 7.03.
SECTION 1.03. 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 1.03 shall apply.
The Company shall give the Agent at least two (2) 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. Such notice
(individually an "Election Notice" and collectively the "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 Election Notices must be received by
the Agent before 10:00 a.m., Hartford, Connecticut time on the
Business Day specified in the second sentence of this Section
1.03(a). Each borrowing of Revolving Credit Loans shall be (x) in
the case of Domestic Loans, in an aggregate amount not less than
$1,000,000 or in a greater integral multiple of $500,000, and (y)
in the case of Eurodollar Loans, in an aggregate amount not less
than $5,000,000 or in a greater integral multiple of $1,000,000.
Except for Bid Auction Borrowings, each borrowing hereunder shall,
to the extent that each Bank satisfies its obligations hereunder,
be made from each Bank pro rata based upon such Bank's percentage
of the Total Commitment. The Revolving Credit Loans of each Bank
shall be evidenced by a promissory note payable to the order of
such Bank and in the amount of the Commitment of such Bank,
substantially in the form of Exhibit A attached hereto
(individually a Revolving Credit Note and collectively the
"Revolving Credit Notes"). The Revolving Credit Notes are issued
hereby as replacements and in exchange for (but do not evidence
payment or satisfaction of) the Revolving Credit Notes (as defined
in the Existing Credit Agreement). 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),
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<PAGE>
<PAGE>
and reborrow pursuant to Section 1.01 and Section 1.03 hereof until
the Maturity Date. Notwithstanding any term to the contrary
contained herein, any failure of any Bank or the Agent
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 Election Notice received by the Agent in accordance with
paragraph (a) above, each of the Banks will make available to the
Agent, in immediately available funds, at the Agent'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 1.01 and upon
fulfillment of the applicable conditions of Article III, the
Agent shall make available to the Company, in immediately available
funds, at the Agent's Funding Office, such amount of funds received
from such Bank.
SECTION 1.04. BID AUCTION ADVANCES.
(a) GENERALLY. Each Bank severally agrees that the
Company may request Bid Auction Borrowings under this Section 1.04
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.
(b) NOTIFICATION OF BID AUCTION BORROWING. The Company
shall request a Bid Auction Borrowing under this Section 1.04 by
delivering to the Agent, by 10:00 a.m. (Boston, Massachusetts
time) at least one (1) Business Day prior to the date of the
proposed Bid Auction Borrowing, a notice (an "Election Notice")
specifying:
(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;
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<PAGE>
(iv) the Interest Period for such proposed
borrowing; and
(v) any other terms to be applicable to such
proposed borrowing.
The Agent shall promptly notify each Bank by telephone, confirmed
by telex or 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 Agent 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 notifying the Company by telex,
telecopy or telefacsimile, before 10:00 a.m. (Boston, Massachusetts
time) on the date of the proposed borrowing specified in the
Election Notice of: (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
Election Notice, either:
(i) cancel such Bid Auction Borrowing by giving
the Agent 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
1.04(c), in the Company's sole discretion, by giving notice
to the Agent and such Bank or Banks of 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 1.04(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; and reject any remaining offers
made by any Bank or Banks pursuant to Section 1.04(c) by
giving the Agent and any such Bank or Banks notice to that
effect.
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<PAGE>
<PAGE>
(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 Agent
that a Bid Auction Borrowing is canceled pursuant to Section
1.04(d)(i), the Agent 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 1.16.
(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 (Boston, Massachusetts time) on the date
of such Bid Auction Borrowing specified in the Election Notice
pursuant to Section 1.04(b), if all applicable conditions specified
in Section 3.02 have been satisfied, make available to the Agent at
the Agent's Funding Office, in immediately available funds, such
Bank's portion of such Bid Auction Borrowing. After receipt by the
Agent of such funds, the Agent will make such funds available to
the Company at the Agent's Funding Office. The Agent will notify
each of the Banks, within a reasonable period of time (not to
exceed ten (10) days) after any Bid Auction Advance is made, of (i)
the principal amount of, the interest rate on, the Interest Period
for, and the date of, such Bid Auction Advance, and (ii) the Bank
which made such Bid Auction Advance.
(h) REPAYMENT AT MATURITY. The Company shall repay to
the Agent, 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.
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<PAGE>
<PAGE>
(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 1.05. 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 3.02 (except paragraph (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 Agent 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
second Business Day prior to the date of such proposed renewal or
conversion. Each such notice shall specify: (i) the date of such
renewal or conversion; (ii) the specific Domestic Loan to be
converted or Eurodollar Loan to be renewed or converted; (iii) the
Domestic Loan or Eurodollar Loan which is to replace such Domestic
Loan or Eurodollar Loan; and (iv) the Interest Period for any
replacement Eurodollar Loan.
SECTION 1.06. [INTENTIONALLY LEFT BLANK]
SECTION 1.07. 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: (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 1.04.
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<PAGE>
<PAGE>
(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 Agent 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 Agent for the account of the Bank or Banks making
such Advance as follows:
(i) Domestic Loans. With respect to any Domestic
Loan, on the last Business Day of each calendar quarter;
(ii) Eurodollar Loans. With respect to any
Eurodollar Loan, on the last day of the Interest Period for
such Loan, provided that interest shall also be payable on the
last day of the third (3rd) month for any Eurodollar Loan
having a six (6) month Interest Period; and
(iii) Bid Auction Advances. With respect to any Bid
Auction Advance, on the last day of the Interest Period for
such Bid Auction Advance, provided that interest shall also be
payable every ninety (90) days for Bid Auction Advances with
Interest Periods in excess of ninety (90) days.
It is understood and agreed that the interest payable on the last
day of an Interest Period in excess of 90 days shall be only of
interest accrued after the 90th day of such Interest Period if
interest accrued through such 90th day was paid on such 90th day,
as provided herein.
(d) [INTENTIONALLY DELETED]
(e) DEFAULT INTEREST. Notwithstanding the foregoing,
while any Event of Default is continuing, interest on all Domestic
Loans, Eurodollar Loans and Bid Auction Advances shall accrue at a
rate per annum equal to two percent (2%) per annum above the Base
Rate.
SECTION 1.08. INTEREST PERIODS. Each Interest Period relating
to any Eurodollar Loan shall be for such duration of 1, 2, 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
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<PAGE>
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 (subject to the
provisions of the last sentence of this Section 1.08) 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). Any Interest
Period for a Eurodollar Loan which otherwise would end on the first
Business Day of a calendar quarter shall end on the last Business
Day of the prior calendar quarter.
SECTION 1.09. 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.
(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.
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<PAGE>
(d) Upon certain sales of assets described in Section
5.06, the Company shall prepay all or a portion of the Advances in
accordance with the provisions of such Section 5.06.
(e) The Company may, at its option, subject to the
provisions of Section 1.16, prepay without premium Domestic Loans,
in whole or in part, on the following conditions: (i) the Company
shall give to the Agent and each of the Banks written notice of any
prepayment of Domestic Loans not later than 10:00 a.m., Boston,
Massachusetts time, on the Business Day on which such prepayment is
to be made; (ii) each prepayment shall be in a minimum amount
of $1,000,000 and an integral multiple of $500,000; and (iii) each
prepayment must be made to the Agent 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 paragraph (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 1.16 hereof.
(f) Except for payments in respect of Bid Auction
Borrowings, each payment of principal of borrowings hereunder shall
be made to each Bank pro rata based upon its percentage of the
aggregate outstanding amount of the Loans at the time of such
payment.
(g) Each payment of principal of or interest on any Bid
Auction Advance shall be made to the Agent 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 Agent 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 Agent for distribution to each Bank
pro rata based upon its percentage of the Total Commitment.
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SECTION 1.10. PAYMENTS AND COMPUTATIONS.
(a) Notwithstanding anything in this Agreement to the
contrary, each payment payable by the Company to the Agent or any
Bank under this Agreement or the Notes shall be made directly to
the Agent, in Dollars at the Agent's Funding Office, not later than
2:00 p.m., Boston, Massachusetts time, on the due date of each such
payment and in immediately available funds. The Agent 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 Agent.
(b) If any sum would, but for the provisions of this
paragraph (b), become due and payable to the Agent or any Bank by
the Company under this Agreement or any Note 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 Agent or such Bank under this Agreement or
any Note shall be adjusted by the Agent accordingly.
SECTION 1.11. PAYMENTS TO BE FREE OF DEDUCTIONS.
(a) Each payment payable by the Company to the Agent or
any Bank under this Agreement or any Note shall be made in
accordance with Section 1.10 hereof, in Dollars, without set-off or
counterclaim and free and clear of and without any deduction of any
kind, except as otherwise permitted by paragraph (b) below.
(b) Each Bank that is not organized under the laws of the
United States or any state thereof (a "Foreign Bank") agrees to
provide to the Company and the Agent 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 Agent shall
reasonably request (if either such form is applicable), two duly
completed signed copies of either (A) Internal Revenue Service Form
4224 (or any successor form), certifying that all payments
to be made to such Foreign Bank under this Agreement or any Note
will be effectively connected to a United States trade or business
(a "Form 4224 Certification") or (B) Internal Revenue Service Form
1001 (or any successor form), certifying that such Foreign Bank is
entitled to the benefits of a provision of a tax convention or
treaty to which the United States is a party which exempts from
United States withholding tax, in whole or in part, all payments to
be made to such Foreign Bank under this Agreement or any Note
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(a "Form 1001 Certification"). In addition, each Foreign Bank
agrees that if such Foreign Bank previously filed a Form 1001
Certification it will deliver to the Company and the Agent 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 will deliver to the Company and the Agent a
new Form 4224 Certification prior to the first payment date
occurring in each of its subsequent taxable years. Each Foreign
Bank also agrees to deliver to the Company and the Agent, 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 any 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
1.11(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 Agent of such fact (a "Withholding Notice").
During any period with respect to which the Company and the Agent
(i) have not received from a Foreign Bank a Form 1001 Certification
or a Form 4224 Certification indicating that all payments to be
made to such Foreign Bank under this Agreement or any Note are not
subject to United States withholding tax (ii) have received a
Withholding Notice from a Foreign Bank, or (iii) are for any other
reason required by applicable law to deduct or withhold United
States federal, state or local income taxes from payments due to a
Foreign Bank hereunder or under any Note, the Company shall (A) be
permitted to make the deduction or withholding required by
applicable law in respect of such United States income taxes, and
(B) 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 Agent 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. Each Foreign Bank agrees to indemnify
and hold the Company and the Agent harmless from any United States
taxes, penalties, interest, expenses and costs (including
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reasonable fees and disbursements of legal counsel) incurred or
payable by them as a result of either (y) such Foreign Bank's
failure to submit any form or notice that it is required to provide
pursuant to this Section 1.11(b), or (z) the Agent's or the
Company's reliance on any such form or notice which such Foreign
Bank has provided to them and which is or becomes inaccurate in any
material respect.
SECTION 1.12. FEES.
(a) FACILITY FEE. The Company shall pay to the Agent,
for the benefit of the Banks, on the first (1st) Business Day of
each calendar quarter (commencing October 3, 1994) 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 Facility Fee Payment Date (or July 2, 1994, in the case
of the Facility Fee Payment due October 3, 1994) and ending on
the day before the Facility Fee Payment Date. The average daily
amount of the Total Commitment during the period commencing July 2,
1994 and ending on the Effective Date shall be deemed to be
$65,000,000. 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 July 2, 1994. The Agent 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 Agent,
for the benefit of the Banks, a non-refundable fee, payable on the
Effective Date , in the aggregate amount of Forty-Five Thousand
Dollars ($45,000) (the "Upfront Fee"). The Agent shall promptly
disburse the Upfront Fee to each of the Banks in accordance with
their respective shares of the Total Commitment.
(c) AGENT'S FEES. The Company agrees to pay to the
Agent, solely for account of the Agent, certain fees ("Agent's
Fees"), in the amounts and at the times heretofore agreed to
between the Agent and the Company executed and delivered in
connection herewith.
SECTION 1.13. 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 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
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which would result in a violation by any Person of Regulation U or
X of the Board of Governors of the Federal Reserve System, 12
C.F.R. Parts 221 and 224.
SECTION 1.14. 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 1.16(a).
SECTION 1.15. INCREASED COSTS; CAPITAL ADEQUACY; SUSPENSION 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 or change the basis of taxation of payments to any Bank of
principal, Fees, interest or any other amount payable hereunder
(except for changes in the rate of tax on the overall net income of
any Bank or taxes arising solely as a result of a Bank's negligent
acts or omissions, such as special assessments by governmental
authorities not generally applicable to the banking industry); (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
Board of Governors of the Federal Reserve System (but excluding any
such requirement arising solely out of any Bank's negligent acts or
omissions and applicable specifically only to such Bank as a result
of such negligence and not to the banking industry in general); or
(iii) impose on any Bank any other condition with respect to this
Agreement, any Note or any of the Loans or Bid Auction Advances
hereunder; and the result of any of the foregoing is to (x)
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 the Bank deems to be material or (y) to reduce
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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 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 Agent
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"). It is understood and agreed that Additional
Costs shall not include any amounts deducted and withheld by the
Company or the Agent pursuant to and in compliance with Section
1.11(b).
(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, excluding any such requirements applied to
such Bank's negligent acts or omissions and applicable
specifically only to such Bank as a result of such negligence and
not to the bank industry as a whole, 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 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, the 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
Agent in any LIBOR Market for such Interest Period, or the Agent
otherwise determines (which determination shall be binding and
conclusive on the Company) that by reason of circumstances
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affecting the LIBOR Market, adequate and reasonable means do not
exist for ascertaining LIBOR, then the Agent 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 1.16. 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 1.15 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 Agent or any
Bank under this Agreement or any Note or (iv) the acceleration, in
accordance with the terms of this Agreement, of the time of payment
of any of the Obligations. Such losses, costs or expenses shall
include, but shall not be limited to, (x) any costs incurred by any
Bank in carrying funds which were to have been borrowed by the
Company or in carrying funds to cover any overdue principal,
overdue interest or any other overdue sums payable by the Company
to the Agent or any Bank under this Agreement or any Note, (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 the Agent and each Bank harmless from any and
all manner of loss, liability, claim, damages and expenses
sustained or incurred arising out of or in any way related to the
Company's proposed or actual use of any proceeds of any Advances,
including without limitation, reasonable attorneys', and other
professionals' fees, court costs and costs of collection, as and
when incurred, except to the extent such loss or expenses are the
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result of the Agent or such Bank's gross negligence or willful
misconduct or arise directly from the Agent's or such Bank's
affairs with a third party.
SECTION 1.17. BANK WIRES TO THE COMPANY. All transfers by the
Agent to the Company shall be effected by federal wire transfer of
immediately available funds to Account Number 0019-5213 of Kaman
Corporation maintained at The Shawmut Bank Connecticut, unless
specifically instructed otherwise in writing by the Company to the
Agent.
SECTION 1.18. AGENT OR BANK CERTIFICATE. A certificate signed
by an authorized employee of the Agent or any Bank, setting forth
any amount required to be paid by the Company to the Agent or such
Bank pursuant to Section 1.07, 1.14, 1.15 or 1.16 and the
computations made by the Agent or such Bank to determine such
amount, shall be submitted by the Agent or such Bank to the Company
in connection with each demand made at any time by the Agent of
such Bank upon the Company under the foregoing Sections. Any such
certificate submitted pursuant to Section 1.14 or 1.15 shall,
absent manifest error, constitute conclusive evidence as to the
amount owed pursuant to such Section.
SECTION 1.19. INTEREST LIMITATION. Notwithstanding any other
term of this Agreement or any Note, the maximum amount of interest
which may be charged to or collected from any Person liable
hereunder or under any Note 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 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 paragraph. If, in any month, the effective
interest rate on any amounts owing pursuant to this Agreement or
the Notes, 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.
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SECTION 1.20. EXTENSION OF MATURITY DATE; REPLACEMENT OF
NON-EXTENDING BANKS.
(a) Provided that the Total Commitment shall not hav been
terminated, the Company may request that the Maturity Date then in
effect be extended to the date which is exactly one year after such
Maturity Date by delivering a written notice (an "Extension
Request") to each Bank between March 15 and April 15 of any year.
Each Bank may, in its sole discretion, either agree to or not agree
to such extension and shall deliver written notice of its decision
to the Company and the Agent (which shall promptly notify each of
the other Banks) within 60 days after its receipt of the Extension
Request. Unless all Banks agree to extend the Maturity Date as
provided above in this paragraph (a), the Maturity Date will not be
extended.
(b) If at any time any Bank declines to extend the
Maturity Date as provided in paragraph (a) above, so long as no
Event of Default has occurred and is continuing, the Company shall
have the right to offer to one or more Banks the right to increase
their Commitments up to, in the aggregate for all such increases,
the Commitment(s) of all such non-extending Banks, provided that no
Bank shall be obligated to increase its Commitment in response to
any such offer.
(c) If at any time any Bank declines to extend the
Maturity Date as provided in paragraph (a) above and the extending
Banks have not increased their Commitments as provided in paragraph
(b) above, so long as no Event of Default has occurred and is
continuing and a commitment to become a Bank for all purposes under
this Agreement and to assume all obligations of the Bank to be
replaced has been obtained from one or more banks or financial
institutions reasonably acceptable to the Agent, the Company may
replace the non-extending Bank with such other bank or financial
institution; provided that, prior to such replacement, (i) all
principal, interest, fees and other amounts due and payable to such
non-extending Bank through such date of replacement have been paid,
and (ii) all of the requirements for such assignment contained in
Section 10.05 have been fulfilled.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
The Company represents and warrants to the Agent and each Bank
that:
SECTION 2.01. 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
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respective jurisdictions of incorporation, except where a
Subsidiary's failure to be in good standing would not have a
Material Adverse Effect. Each of the Company and its Subsidiaries
has all requisite corporate power, authority, licenses, consents,
approvals and the like required to own and operate its respective
properties (except where the failure to do so would not have
a Material Adverse Effect) and to carry on its respective business
as presently conducted, and each is duly qualified to do business
and is in good standing as a foreign corporation in each
jurisdiction wherein the character of the properties owned or
leased by it therein or in which the transaction of its respective
business therein makes such qualification necessary and failure to
comply with any of the foregoing would have a Material Adverse
Effect.
SECTION 2.02. DUE AUTHORIZATION; NO CONFLICTS. The execution
and delivery by the Company of this Agreement and the Notes, the
performance by the Company of all of its agreements and obligations
under each of such documents, 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.
Such execution, delivery, and performance by the Company, and the
making by the Company of the borrowings contemplated hereby, do not
and will not (a) contravene any provision of the Company'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, under any agreement, trust, deed, indenture, mortgage
or other instrument to which the Company is a party or by which the
Company or any of its properties is bound or affected, or (c)
require any waiver, consent or approval by any creditors,
shareholders, or public authority.
SECTION 2.03. BINDING AGREEMENTS. This Agreement constitutes,
and the Notes and any other instrument delivered in connection
herewith, 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.
SECTION 2.04. SUBSIDIARIES. All of the issued and outstanding
shares of capital stock of each Subsidiary of the Company which is
owned by the Company or a Subsidiary of the Company, has been
validly issued and is fully paid and non-assessable and is free and
clear of any Lien. No rights to subscribe for additional shares of
stock of any Subsidiary have been granted.
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SECTION 2.05. NO DEFAULTS. No Default or Event of Default is
continuing.
SECTION 2.06. FINANCIAL STATEMENTS. The Company has furnished
to each of the Banks: (a) the audited consolidated and
consolidating balance sheets of the Company and its Subsidiaries
as at December 31, 1993, and the related consolidated and
consolidating statements of income, cash flows and shareholders'
equity of the Company and its Subsidiaries for the fiscal year
ended December 31, 1993, certified by Messrs. Peat Marwick Main &
Co., certified public accountants, and (b) the unaudited
consolidated and consolidating balance sheets of the Company
and its Subsidiaries as at March 31, 1994, and related consolidated
and consolidating statements of income, cash flows and
shareholders' equity for the three (3) months ended March 31, 1994,
certified by the president or principal financial officer of the
Company. Such balance sheets and statements have been prepared in
conformity with GAAP applied on a consistent basis throughout the
periods specified and present fairly the financial condition and
results of operations of the Company and its Subsidiaries as at the
dates and for the periods indicated. The balance sheets referred
to in this Section 2.06 and the notes thereto disclose all material
liabilities, direct or contingent, known to the Company and its
Subsidiaries as of the dates thereof.
SECTION 2.07. NO MATERIAL ADVERSE CHANGES. Since December 31,
1993, 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 2.08. 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 or the
Notes 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 2.09. TRUE COPIES OF GOVERNING DOCUMENTS. The Company
has furnished or caused to be furnished to the Agent 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,
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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. To the best of the Company's knowledge
and belief, 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 $15,000,000 as of
the Effective Date.
SECTION 2.12. COMPLIANCE WITH ERISA. 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 ERISA.
SECTION 2.13. EXISTING CREDIT AGREEMENT. As of the Effective
Date, no Obligations (under and as defined in the Existing Credit
Agreement) are due and payable, and no Default or Event of Default
(under and as defined in the Existing Credit Agreement) is
continuing.
ARTICLE III
CONDITIONS OF LENDING
SECTION 3.01. 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 AND NOTES. This
Agreement, each of the Revolving Credit Notes and each of the Bid
Auction Notes shall have been duly and properly authorized,
executed and delivered 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 Agent.
(b) EVIDENCE OF CORPORATE ACTION; CERTIFIED COPIES OF
GOVERNING DOCUMENTS. The Agent shall have received certified
copies of: (i) all corporate action taken by the Company to
authorize the execution, delivery and performance of this Agreement
and the Notes, and the borrowings to be made hereunder; (ii) all
the Company's Governing Documents; and (iii) such other papers as
the Agent may reasonably require.
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(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 Agent, and the
Agent shall have received all such counterpart originals or
certified or other copies of all such instruments and documents as
the Agent shall have reasonably requested.
(D) OPINION OF COUNSEL. The Agent shall have received an
opinion addressed to the Banks and the Agent from Glenn M.
Messemer, Esq., counsel for the Company, in or substantially in the
form of Exhibit C attached hereto, dated as of the Effective Date,
accompanied by such supporting documents as the Agent may
reasonably require.
SECTION 3.02. 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 are subject to the
satisfaction, at the time such loan 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 Agent all notices required by this Agreement in
connection with such Revolving Credit Loan or such Bid Auction
Advance. Such notice, without more, shall constitute certification
by the Company as to the matters set forth in paragraphs (c) and
(d) below.
(b) LEGALITY OF TRANSACTIONS. It shall not be unlawful
for the Company to perform any of its agreements or obligations
under this Agreement or any of the Notes.
(c) PERFORMANCE; NO DEFAULT. The Company shall have duly
and properly performed, complied with and observed each of its
covenants, agreements and obligations contained in this Agreement
and the Notes. 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 in this
Agreement 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. The Company's representations and warranties
in Section 2.11 shall not be deemed repeated in connection with any
Advance other than the first Revolving Credit Loan hereunder.
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ARTICLE IV
AFFIRMATIVE COVENANTS
The Company covenants and agrees with the Agent 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 4.01. FINANCIAL STATEMENTS; NOTICE OF EVENTS OF
DEFAULT. Deliver to the Agent 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 and retained
earnings 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 D
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 financial statements required to be delivered pursuant
to clause (a) above for each fiscal year, a report containing an
unqualified opinion of Peat Marwick Main & Co. 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
Agent's written request, such other information about the financial
condition and operations of the Company and its Subsidiaries, and
any endorser or guarantor (if any), as the Agent may, from time to
time, reasonably request; (e) promptly after becoming available,
copies of all financial statements, reports, notices and proxy
statements sent by the Company to stockholders, and of all regular
and periodic reports filed by the Company with any securities
exchange or with the SEC or any governmental agency successor to
any or all of the functions of the SEC, and of all press releases
issued by the Company; (f) promptly upon becoming aware of any
Default or Event of Default, notice thereof in writing;
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(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 4.02. SECURITIES REGULATION COMPLIANCE REPORTS.
Promptly deliver to the Agent 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 4.03. INSURANCE. (a) Keep its properties insured
against fire and other hazards (so-called "All Risk" coverage) in
amounts and with companies satisfactory to the Agent 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 Agent's request, agrees to deliver copies of all of the
aforesaid insurance policies to the Agent.
SECTION 4.04. TAX AND OTHER LIENS. Except for taxes the
payment of which is being contested in good faith after the
establishment of any reserves required by GAAP consistently
applied, pay or cause to be paid all taxes, assessments and
governmental charges of every kind which would, in the aggregate,
if not paid, be material as to the Company and its Subsidiaries
when taken as a whole or be reportable under the Securities
Exchange Act or required under FASB Standards to be disclosed on
the Company's consolidated audited financial statements; and
the Company shall deliver to the Agent such other information
related to the Company's and its Subsidiaries' taxes as may be
reasonably requested by the Agent.
SECTION 4.05. LITIGATION. Promptly notify the Agent 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
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statement, or (b) which questions the validity of this
Agreement, the Notes, 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 Agent such other information related to such
proceedings or litigation as reasonably requested by the Agent.
SECTION 4.06. 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 non-material Subsidiaries from time to time as the Company
in the proper exercise of its judgment may determine, so long as
any such liquidation or dissolution shall not, either individually
or in the aggregate, have a Material Adverse Effect, 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 5.06.
SECTION 4.07. 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 Agent a copy of such notice.
SECTION 4.08. 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
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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 4.09. INSPECTION. Permit any officer or employee
designated by the 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 times, upon reasonable
notice, in a reasonable manner and as often as the 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 the Agent and the
Banks that such policies and practices may restrict access by the
Agent 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 Agent and
the Banks to personnel of the Company and its Subsidiaries.
SECTION 4.10. EQUAL AND RATABLE LIENS. If the Company or any
of its Subsidiaries shall create any Lien upon any of its property
or assets, whether now owned or hereafter acquired, to secure
Indebtedness under the Shawmut Credit Agreement for the pro rata
benefit of all lenders under the Shawmut Credit Agreement, it shall
forthwith make or cause to be made effective provision to secure
the Obligations hereunder equally and ratably and in the same
manner as under the Shawmut Credit Agreement as long as any such
Indebtedness under the Shawmut Credit Agreement shall be so
secured. This covenant shall not be construed as a consent by the
Majority Banks to any Lien not permitted by Section 5.01.
SECTION 4.11. FURTHER ASSURANCES. Cooperate with the Agent
and each Bank and take such action and execute such further
instruments and documents as the Agent shall reasonably
request to effect the purposes of this Agreement and the Notes.
ARTICLE V
NEGATIVE COVENANTS
The Company covenants and agrees with the Agent 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 5.04 and
5.06, 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:
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SECTION 5.01. LIENS. Incur or permit to exist any Lien
against any of its property or assets, whether now owned or
hereafter acquired, except:
(a) [INTENTIONALLY DELETED];
(b) 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;
(c) 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;
(d) 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);
(e) 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, 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), (d), (f), or (g) of this
Section 5.01;
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(f) 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 fifteen percent (15%) of the Company's
Consolidated Tangible Assets as reflected on the financial
statements of the Company and its Subsidiaries most recently
delivered to the Banks pursuant to Section 4.01; and
(g) liens on accounts receivable of the Company or any
Subsidiary which have been sold in compliance with Section 5.06.
No Indebtedness or Liens which might be permitted in connection
with the transactions described in subsection (e), (f), and (g)
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 5.02. LIMITATION ON INDEBTEDNESs. Create, incur or
permit to exist or remain outstanding any Indebtedness, 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)
(in the case of any Subsidiary or Subsidiaries) exceed,
individually or in the aggregate at any time, the amount of any
Indebtedness permitted to be secured pursuant to Section 5.01(e)
and (f).
SECTION 5.03. CONTINGENT LIABILITIES. Assume, guarantee,
endorse or otherwise become liable upon the obligations of any
Person or enter into any other agreement having substantially
the same effect as a Guarantee, except for the endorsement of
negotiable instruments for deposit or collection or other
transactions in the ordinary course of business which are not
material to the Company and its Subsidiaries when taken as a whole,
provided that 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 Funded
Debt, 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.
SECTION 5.04. 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
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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 Agent, all the Obligations of the Company
under this Agreement and each of the Notes and (ii) the Agent 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 under this Agreement and each of the Notes), (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 5.04, the acquisition by 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. Nothing herein
shall prohibit the Company from divesting a Subsidiary by merging
it with another corporation so long as the Company otherwise
complies with Section 5.06 below.
SECTION 5.05. 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 5.06. SALE OF ASSETS. Sell or transfer any assets,
except for:
(a) sales of inventory in the ordinary course of
business;
(b) sales of accounts receivable in the ordinary course
of business under accounts receivable purchase programs, provided
that such transactions qualify as "sales" of accounts receivable
under Section 5 of Rule #77 of the Financial Accounting Standards
Board (as in effect on the date hereof); and
(c) sales of assets (other than those referred to in
paragraph (a) and (b) 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) the book value of which (at
the time of sale) does not exceed in the aggregate (i) for any
fiscal year of the Company, fifteen percent (15%) of the Company's
Consolidated Tangible Assets (as reflected on the financial
statements of the Company and its Subsidiaries most recently
delivered to the Banks pursuant to Section 4.01), and (ii) for the
period commencing on the Effective Date and ending on the Maturity
Date, forty-five percent (45%) of the Company's Consolidated
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Tangible Assets (as reflected on the financial statements of the
Company and its Subsidiaries most recently delivered to the Banks
pursuant to Section 4.01).
In the event of any sale or transfer of assets of the Company or
any Subsidiary not permitted by paragraph (a), (b) or (c) above
(any such sale or transfer not permitted by paragraph (a), (b)
or (c) above being 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 the
Agent 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 Agent (at the direction of the Majority Banks) that the Total
Commitment is to be so reduced. The Agent shall give a Pay-Down
Notice, if at all, not later than ten (10) days after receipt by
the Agent and the Banks of a Designated Sale Notice conforming to
the requirements of this Section 5.06. The amount of each such
reduction in the Total Commitment in any fiscal year of the Company
shall be equal to (i) the aggregate book value of all assets sold
or transferred during such fiscal year not in compliance with
paragraph (a) or (b) above, minus (ii) an amount equal to fifteen
percent (15%) of the Company's Consolidated Tangible Assets on the
date hereof, minus (iii) the aggregate amount of all previous
reductions in the Total Commitment during such fiscal year pursuant
to this Section 5.06 or otherwise. No Designated Sales shall be
permitted during the one month period prior to the Maturity Date
(as the Maturity Date may be extended from time to time in
compliance with this Agreement).
SECTION 5.07. AFFILIATE TRANSACTIONS. Enter into any
transaction with an affiliate, except in the ordinary course of
business and pursuant to the reasonable requirements of the
Company's and, if applicable, such Subsidiary's business and upon
fair, reasonable and arm's-length terms.
SECTION 5.08. CERTAIN RESTRICTIVE AGREEMENTS. Enter into or
permit to exist any indenture, agreement, instrument or other
arrangement (other than this Agreement and the Notes) 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 or
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(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.
SECTION 5.09. COMPLIANCE WITH ENVIRONMENTAL LAWS. Except in
compliance with all applicable Environmental Laws (and except to
the extent that non-compliance 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 the Agent 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 6.01. CONSOLIDATED NET WORTH. Cause or permit the
Company's Consolidated Net Worth to be less than $200,000,000.
SECTION 6.02. 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,
to be less than 2.5 to 1.
SECTION 6.03. CONSOLIDATED TOTAL INDEBTEDNESS TO TOTAL
CAPITALIZATION. Cause or permit the Company's Consolidated Total
Indebtedness to exceed forty-five percent (45%) of its Total
Capitalization at any time.
ARTICLE VII
EVENTS OF DEFAULT; CERTAIN REMEDIES
SECTION 7.01. 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;
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(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, 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 the Agent of such
default, whichever first occurs;
(d) any representation made by the Company in Article II
of this Agreement 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 in reasonable detail to the Agent
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;
(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 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
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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 which is not dismissed within thirty
(30) days after the commencement thereof; and
(g) any Change in Control occurs, and the Agent and the
Banks notify the Company within thirty (30) days after first being
notified by the Company of the Change in Control that the Agent and
the Banks do not consent to the Change in Control.
SECTION 7.02. ACCELERATION OF OBLIGATIONS. If any one or more
Events of Default shall at any time be continuing, the Agent may,
and, upon the written direction of the Majority Banks, shall, by
giving notice to the Company, declare all of the Obligations,
including the entire unpaid principal of all the Notes, all of the
unpaid interest accrued thereon, and all (if any) other sums
payable by the Company under this Agreement or the Notes, to be
immediately due and payable; except that upon the occurrence of any
Event of Default under Section 7.01(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 under this Agreement or the Notes shall
automatically and immediately be due and payable. 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 7.03. TERMINATION OF COMMITMENTS; EXERCISE OF OTHER
REMEDIES. If any one or more Defaults shall be continuing under
Section 7.01(c), or if any one or more Events of Default shall be
continuing, then:
(a) Subject always to the provisions of Section 8.10,
each of the Banks and the Agent may proceed to protect and enforce
all or any of its rights, remedies, powers and privileges under
this Agreement or the Notes by action at law, suit in equity or
other appropriate proceedings, whether for specific performance of
any covenant contained in this Agreement or any Note or in aid of
the exercise of any power granted to the Agent or any Bank herein
or therein; and
(b) The Agent 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 7.01(f), the Commitments of all of the
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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 of any of its Obligations.
SECTION 7.04. NO IMPLIED WAIVERS; RIGHTS CUMULATIVE. No delay
on the part of the Agent or any Bank in exercising any right,
remedy, power or privilege under this Agreement or any of the Notes
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 Agent or any
Bank under this Agreement or any of the Notes 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 Agent or any Bank under this
Agreement or any of the Notes 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 Agent or any such Bank
and (subject to the provisions of Section 8.10) may be exercised at
such time or times and in such order and manner as the Agent or any
such Bank shall (in its sole and complete discretion) deem
expedient.
SECTION 7.05. 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. 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
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
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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 AGENT
SECTION 8.01. AUTHORIZATION. The Banks hereby authorize BNS
to act as agent for the Banks with respect to this Agreement and
the Notes, and the Agent 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 Agent, for the benefit of the Banks, shall be distributed by
the Agent to the Banks as set forth herein promptly after receipt
thereof in immediately available funds. Each Bank irrevocably
authorizes the Agent as the agent of such Bank to take such action
on its behalf under the provisions of this Agreement and the Notes
and to exercise such powers hereunder and thereunder as are
specifically delegated to the Agent by the terms hereof and
thereof, together with such powers as are reasonably incidental
thereto. With respect to the Advances made pursuant hereto, the
Agent shall have the same obligations and the same rights, powers
and privileges (a) with respect to its Commitment and the Advances
made by it in its role as a Bank hereunder, and (b) as the holder
of any of the Notes, as any other Bank and may freely exercise the
same.
SECTION 8.02. NO LIABILITY. Neither the Agent nor any of its
shareholders, directors, officers or employees 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 in connection herewith or
therewith or be responsible to the Banks for the consequences of
any oversight or error of judgment whatsoever, except that the
Agent may be liable for losses due to its willful misconduct or
gross negligence.
SECTION 8.03. CONDITIONS OF ACTING AS AGENT. The Agent agrees
to act as Agent upon the following conditions set forth in this
Section 8.03.
(a) The Agent 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.
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(b) The Agent shall not (i) be responsible to the Banks
for any recitals, statements, warranties or representations herein
or in any related agreements furnished to the Agent or any of the
Banks by or on behalf of the Company, 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 therein on the part
of the Company.
(c) The Agent shall be entitled to rely upon any Note,
notice, consent, certificate, affidavit, letter, telegram, teletype
message, statement, order, telephone communication or other
document or communication believed by it to be genuine and correct
and to have been signed or communicated to it by the proper Person
or Persons and, in respect of legal matters, upon the advice of
counsel selected by the Agent. 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) The Agent shall not be responsible to any Bank for
the validity or enforceability of this Agreement or any of the
Notes or for the validity, enforceability or collectibility of any
amounts owing with respect to this Agreement or any of the Notes.
(e) The Agent has not 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) The Agent shall not be responsible to (i) any party
on account of the failures of, or delay in performance or breach
by, any Bank (except for the Agent, 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 in connection herewith or therewith.
SECTION 8.04. PAYMENTS.
(a) If in the good faith opinion of the Agent 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 Agent is to be repaid, each Person
to whom any such distribution shall have been made shall either
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repay to the Agent its proportionate share of the amount so
adjudged to be repaid or shall pay over the same in such manner and
to such Persons as shall be determined by such court. With respect
to obligations of the Company hereunder, a payment to the Agent
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
fails (x) to make available to the Agent its pro rata share of any
Advance (except as set forth in Section 1.14) or (y) to comply with
the provisions of Section 7.05 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 Borrower, 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 Agent 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 8.05. HOLDERS OF NOTES. The Agent may deem and treat
the payee of any Note as the absolute owner or purchaser thereof
for all purposes hereof until it shall have been furnished in
writing with a different name by such payee or obligor or by a
subsequent holder, assignee or transferee.
SECTION 8.06. MODIFICATION OF THIS AGREEMENT AND THE NOTES;
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 or the Notes, and to waive or consent to any
deviation from or violation of the provisions of this Agreement or
the Notes 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:
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(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, 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 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 "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 7.01 shall not be waived without the written
consent of all the Banks;
(f) the provisions of Section 5.01 shall not be amended,
modified or waived without the written consent of all the Banks;
and
(g) the provisions of this Section 8.06 shall not be
amended, modified or waived without the written consent of all the
Banks.
SECTION 8.07. Costs of Agent; Indemnification. Each Bank
agrees to reimburse the Agent, ratably according to its respective
Commitment, for all costs, expenses, and disbursements (including
reasonable attorneys' fees and disbursements and amounts paid to
consultants and agents retained by the Agent) incurred by the Agent
and not reimbursed by the Company, except for such costs, expenses,
and disbursements and amounts paid to consultants and agents
retained by the Agent incurred as a result of the Agent's gross
negligence or willful misconduct. Without limitation of the
foregoing, each Bank agrees to indemnify the Agent (to
the extent not reimbursed by the Company) ratably, as aforesaid,
from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses, or
disbursements of any kind or nature whatsoever which may be imposed
on, incurred by or asserted against the Agent in any way relating
to or arising out of this Agreement, the Notes or any action taken
or omitted by the Agent under this Agreement or the Notes, except
to the extent that the same may result from the Agent's gross
negligence or willful misconduct; 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 and the Notes.
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SECTION 8.08. NON-RELIANCE ON AGENT; 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 the Agent,
or any warranty, either express or implied, by the Agent.
(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 10.05 below, no Bank may assign its Commitment
and/or obligations hereunder without the prior consent of the Agent
and the Company and any such transfers must comply with all
applicable laws.
SECTION 8.09. SUCCESSOR AGENT. The Agent 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 Agent. A successor Agent shall be appointed upon a vote
of the Majority Banks. Upon the acceptance of any appointment as
Agent hereunder by a substitute or successor Agent, such substitute
or successor Agent shall thereupon succeed to and become
vested with all the rights, powers, privileges and duties of the
retiring Agent, and the retiring Agent 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 Agent from any liability
incurred in the discharge or its duties hereunder before such
resignation.
SECTION 8.10. ACTION BY THE AGENT. Except as otherwise
provided in the this Agreement, the Agent will take such action,
assert such rights and pursue such remedies under this
Agreement and the Notes as the Majority Banks shall direct and as
it shall be entitled to do so. Except as otherwise expressly
provided in this Agreement, the Agent 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 in violation or
contravention of any express direction or instruction of the
Majority Banks. The Agent 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 without the express written
direction and instruction of the Majority Banks. No Bank (other
than the Agent, acting in its capacity as such) shall be entitled
to take any action of any kind under this Agreement or any Note,
other than to enforce payment of amounts due and payable hereunder
or under any Note issued to such Bank.
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SECTION 8.11. SUBSTITUTION OF BANKS. (a) Within thirty (30)
days after any Bank has been unable, for any reason, to fund any
Loan requested in accordance with the terms hereof (and to which
the Company is entitled under the terms hereof) (such Bank is
hereinafter referred to as an "Affected Bank"), the Company may
request the non-Affected Banks to acquire all or any portion of
such Affected Bank's Advances and to assume all or such portion of
such Affected Bank's Commitment. The non-Affected Banks may elect
to acquire less than, or none of, the amount of such Affected
Bank's outstanding Advances and to assume less than, or none
of, the amount of the Affected Bank's Commitment that the Company
requested be acquired and be assumed. If the non-Affected Banks do
not elect to acquire or assume all of such Affected Bank's
outstanding Advances and Commitment, and with the written consent
(such consent not to be unreasonably withheld) of non-Affected
Banks constituting the Majority Banks, the Company may designate a
replacement lender or lenders to acquire and assume all or any
portion of the Advances and Commitment of the Affected Bank not
being acquired and assumed by the non-Affected Banks, subject to
the requirement that no such replacement lender may have a
Commitment of less than $5,000,000.
(b) If one or more non-Affected Banks shall so agree in
writing or if the Company designates a replacement lender or
lenders in respect of all or a portion of the outstanding
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,
Domestic 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 1.16)
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.
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(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 8.11
and upon executing a counterpart of this Agreement, each
replacement lender shall become a Bank hereunder.
(e) If the non-Affected Banks and any replacement lender(s)
are only willing to acquire less than all of the Affected Bank's
outstanding Advances, the Commitment of the Affected Bank shall not
terminate, but shall be reduced in an amount proportionate to the
percentage of its Advances 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.
ARTICLE IX
DEFINITIONS
SECTION 9.01. 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 paragraphs shall be deemed
references to Sections and paragraphs 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".
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SECTION 9.02. OTHER DEFINITIONS. As used herein, in the
Notes, 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 1.15(a).
"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.
"Agent" shall have the meaning ascribed to such term in
the preamble of this Agreement.
"Agent's Fees" shall have the meaning assigned to such
term in Section 1.12(c).
"Agent's Funding Office" shall mean the Agent's office at
600 Peachtree Street N.E., Suite 2700, Atlanta, Georgia 30308, or
such other office within the United States as the Agent may from
time to time designate by written notice to the Company and the
Banks.
"Agreement" shall mean this Amended and Restated Revolving
Credit Agreement, as the same may from time to time be amended,
supplemented or otherwise modified.
"Applicable Margin" shall mean a percentage based upon the
highest of the then applicable credit ratings from either S&P or
Moody's with respect to Public Senior Debt (whether or not any is
outstanding) as follows:
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<TABLE>
Facility Fee Base Rate LIBOR
Applicable Applicable Applicable
Credit Rating Margin Margin Margin
- - ------------- ------------ ---------- ----------
<S> <C> <C> <C> <C>
S&P MOODY'S
- - --- -------
A - or higher A3 or higher 0.15% 0 0.35%
BBB+ Baa1 0.18% 0 0.40%
BBB Baa2 0.20% 0 0.45%
BBB- Baa3 0.25% 0 0.50%
below BBB- below Baa3 0.35% 0.25% 0.75%
</TABLE>
provided, that if at any time any Public Senior Debt is not rated
by either of S&P or Moody's, such Public Senior Debt shall, for
purposes of this definition, be deemed to have been rated one level
above the highest rating ascribed to the Company's Subordinated
Debt by S&P or Moody's; provided, further, that if at any time
neither the Subordinated Debt nor the Public Senior Debt of the
Company is rated by either of S&P or Moody's, or if at any
time neither of S&P nor 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 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 the Agent 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 Agent)
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 E
attached hereto, entered into by a Bank and an assignee of such
Bank pursuant to Section 10.05, and accepted by the Company and the
Agent.
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"Banks" shall have the meaning assigned to such term in
the preamble to this Agreement.
"Base Rate" shall mean the higher of (a) the interest rate
announced by the Agent from time to time as its base rate; or (b)
the interest rate quoted to the Agent for the purchase of overnight
federal funds by brokers of recognized standing plus one half of
one(1/2%)percentage point.
"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 1.04.
"Bid Auction Borrowing" shall mean a borrowing under
Section 1.04 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 1.04(d).
"Bid Auction Note" and "Bid Auction Notes" shall have the
respective meanings assigned to such terms in Section 1.04(j).
"BNS" shall mean The Bank of Nova Scotia.
"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.
"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 1.01 hereof.
"Company" shall have the meaning assigned to such term in
the preamble of this Agreement.
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"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 5.03.
"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 and the Notes,
and (ii) any agreements or instruments pursuant to which the
Obligations of the Company under this Agreement or any of the Notes
are refunded, refinanced or replaced (in whole or in part) from
time to time, as such agreements and instruments referred to in
clauses (i) and (ii) of this definition may from time to time be
amended, supplemented, restated, renewed or otherwise modified.
"Default" shall mean any event which, but for the giving
of notice or the lapse of time, or both, would constitute an Event
of Default.
"Dollar", "Dollars" and the sign "$" shall mean lawful
money of the United States of America.
"Domestic Loan" shall mean all or any portion of any Loan
made hereunder which bears interest based on the Base Rate.
"Effective Date" shall mean July 15, 1994.
"Election Notice" and "Election Notices" shall have the
respective meanings assigned to such terms in Sections 1.03 and
1.04 hereof.
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"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 7.01.
"Excess" shall have the meaning assigned to such term in
Section 1.07(d).
"Existing Credit Agreement" shall have the meaning
assigned to such term in the recitals hereto.
"Facility Fee" and "Facility Fees" shall have the
respective meanings assigned to such terms in Section 1.12(b).
"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 Agent's Fees.
"Foreign Bank" shall have the meaning assigned to such
term in Section 1.11(b).
"GAAP" shall mean generally accepted accounting standards,
as in effect from time to time, applied on a consistent basis.
"Governing Documents" shall mean as to any Person, the
articles or certificate of incorporation and by-laws or other
organizational documents of such Person, as amended.
"Governmental Authority" shall mean any nation or
government, any state or other political subdivision thereof, and
any entity exercising any executive, legislative, judicial,
regulatory, or administrative functions of or pertaining to
government.
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"Guarantee" shall mean, in relation to any Person, any
obligation, contingent or otherwise, of such Person guaranteeing or
having the economic effect of guaranteeing any liabilities of any
other Person in any manner, whether directly or indirectly.
"Hazardous Substances" shall mean any hazardous waste,
substances or materials, any pollutants or contaminants, any toxic
substances, and any other substances regulated by any Environmental
Laws.
"Indebtedness" shall mean, in relation to any Person,
without duplication: (a) all obligations of such Person for
borrowed money; (b) all obligations of such Person evidenced by
bonds, debentures or notes or similar instruments which (in the
case of such similar instruments only) are held by financial
institutions; (c) all obligations 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.
"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.
"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, 2, 3, or 6 months thereafter, as the case may be, as
selected by the Company in compliance with this Agreement and as
set forth in the applicable 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 1.04.
"LIBOR" 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 Agent
for delivery in the LIBOR Market at or about ll:00 A.M., local time
two Business Days prior to the first day of such Interest Period.
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"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 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 or the
Notes; or (c) any impairment of the validity or enforceability of
this Agreement or the Notes, or any of the rights, remedies or
benefits to the Agent or the Banks under this Agreement or
the Notes.
"Maturity Date" shall have the meaning assigned to such
term in Section 1.01.
"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,
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operation of law or otherwise, of the Company to the Agent 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 or
any of the Notes.
"Operating Profit" for any fiscal period shall mean the
Company's consolidated operating profit as determined on a
consolidated basis by the application of GAAP, but excluding
interest expense and interest income, special items such as gains
or losses on sales of assets, all taxes on income, any
extraordinary or special items reported net of taxes, and all other
items required by GAAP to be reported as non-operating income.
"PBGC" shall mean the Pension Benefit Guaranty
Corporation.
"Person" shall mean any individual, corporation,
association, partnership, trust, unincorporated association,
business, or other legal entity, and any government or any
governmental agency or political subdivision thereof.
"Plan" shall mean any employee benefit plan or other plan
maintained for employees covered by Title 10 of ERISA.
"Prohibited Transaction" shall have the meaning assigned
to such term in Section 4975 of the Code.
"Public Senior Debt" shall mean long-term, publicly-held
senior indebtedness of the Company (whether or not outstanding).
"Qualifying Preferred Stock" shall mean any issued and
outstanding preferred stock of the Company with respect to which no
mandatory redemption or repurchase is or could be required of the
Company or any of its Subsidiaries prior to the Maturity Date (as
the Maturity Date may be extended in compliance with this
Agreement).
"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 10.05(d).
"Reportable Event" shall have the meaning assigned to such
term in Section 4034 of ERISA.
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"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 Loan" and "Revolving Credit Loans" shall
mean any Loan made hereunder pursuant to Section 1.01.
"Revolving Credit Note" or "Revolving Credit Notes" shall
have the respective meanings assigned to such terms in Section
1.03.
"S&P" shall mean Standard & Poor's Corporation.
"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.
"Shawmut" Credit Agreement" means (i) the Second Amended
and Restated Revolving Credit Agreement, dated as of July 15, 1994,
among the Company, The Shawmut Bank Connecticut, as agent, and the
other lenders thereunder and (ii) all amendments thereto.
"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.
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"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.
"Termination Date" shall mean the date all the
Obligations then due and payable have been paid in full and all
the Commitments have terminated.
"Total Capitalization" means the aggregate amount at any
time of the Company's Consolidated Net Worth plus the Company's
Consolidated Total Indebtedness.
"Total Commitment" shall have the meaning assigned to such
term in Section 1.01.
"Upfront Fee" shall have the meaning assigned to such
term in Section 1.12 (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 10.01. EXPENSES. The Company agrees to pay all
out-of-pocket expenses of the Agent (including reasonable fees and
expenses of the Agent's counsel) and the Banks (including
reasonable fees and expenses of counsel for the Banks) incurred in
connection with: (i) the collection of Obligations due hereunder or
under the Notes, and/or (ii) the defense, protection, preservation,
realization or enforcement of any of the rights or remedies of the
Agent or any of Banks under any provisions of this Agreement or any
of the Notes; provided that no fees and expenses of counsel for the
Banks (other than the Agent) shall be payable by the Company unless
incurred after an Event of Default has occurred.
SECTION 10.02. PREJUDGMENT REMEDY WAIVER; OTHER WAIVERS.
THE COMPANY ACKNOWLEDGES THAT THE FINANCING EVIDENCED HEREBY
IS A COMMERCIAL TRANSACTION AND WAIVES ITS RIGHTS TO NOTICE AND
HEARING UNDER CHAPTER 903A OF THE CONNECTICUT GENERAL STATUTES,
OR AS OTHERWISE ALLOWED BY ANY STATE OR FEDERAL LAW WITH
RESPECT TO ANY PREJUDGMENT REMEDY WHICH THE 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 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 AGENT AND THE BANKS ACKNOWLEDGE THE
COMPANY'S RIGHT TO SAID HEARING SUBSEQUENT TO THE ISSUANCE OF
SAID
WRIT.
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<PAGE>
SECTION 10.03. COVENANTS TO SURVIVE; BINDING AGREEMENT. All
covenants, agreements, warranties, representations and statements
of the Company made herein, in the Notes, 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 the Agent 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 and the delivery of the Notes,
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 10.04. AMENDMENTS AND WAIVERS. Neither this
Agreement, the Notes, 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 8.06. No
failure on the part of the Agent 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 or under any Note shall
preclude any other or future exercise thereof, or the exercise of
any other right, remedy or power. No waiver shall extend to or
affect any obligation not expressly waived.
SECTION 10.05. TRANSFER OF BANK'S INTEREST.
(a) To the extent set forth in this Section 10.05, 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 Banks owe to the
Company hereunder; and (ii) the transferring Bank make the
transfer in compliance with this Section 10.05.
(b) Each Bank may, with the consent of the Company and
the Agent (which consent will not be unreasonably withheld or
delayed), 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
owning 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 Agent) shall not be less than $5,000,000, and (ii)
the parties to each such assignment shall execute and deliver to
the Agent an Assignment and Acceptance, together with the Notes
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<PAGE>
subject to such assignment and a processing and recordation fee of
$2,500. Upon acceptance and recording pursuant to paragraph (e) of
this Section 10.05, from and after the effective date specified in
each Assignment and Acceptance, which effective date shall be at
least five(5)Business Days after the execution thereof, (A) the
assignee thereunder shall be a party hereto and, to the extent
provided in such Assignment and Acceptance, have the rights and
obligations of a Bank under this Agreement (which obligations shall
in any event include all obligations from which the assigning Bank
is released as provided in such Assignment and Acceptance) and
(B) the assigning Bank thereunder shall, to the extent provided in
such Assignment and Acceptance, be released from its obligations
under this Agreement (and, in the case of an Assignment and
Acceptance covering all or the remaining portion of an assigning
Bank's rights and obligations under this Agreement, such Bank shall
cease to be a party hereto but shall continue to be entitled to the
benefits of Sections 1.15, 1.16, 10.01 and 10.09). Notwithstanding
the foregoing, any Bank may assign, without the consent of the
Company or the Agent, (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
paragraph (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, the Agent, 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 or any other instrument or document
furnished pursuant hereto; (ii) neither such assigning Bank, the
Agent, 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
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<PAGE>
obligations under this Agreement, any of the Notes 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 4.01 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 the Agent, such assigning Bank 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; (v) such assignee appoints and authorizes the Agent
to take such action as agent on its behalf and to exercise such
powers under this Agreement as are delegated to the Agent 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 Agent shall maintain at one of its offices in
Boston, Massachusetts 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, the Agent and 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 its receipt of a duly completed Assignment and
Acceptance executed by an assigning Bank and an assignee and
accepted by the Company and the Agent, together with each Note
subject to such assignment and the processing and recording fee
referred to in paragraph (b) above, the Agent shall record the
information contained therein in the Register. Within five
Business Days after receipt of notice, the Company, at its own
expense, shall execute and deliver to the Agent, 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
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<PAGE>
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.
(f) Each Bank may (without the consent of the Company or
the 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 1.15 and Section 1.16 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, the Agent 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, or an extension of
scheduled dates for payment of principal, interest, Fees or
scheduled termination dates, 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 5.04.
(h) Nothing herein shall prohibit any Bank from pledging
or assigning any Note to any Federal Reserve Bank in accordance
with applicable law.
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SECTION 10.06. 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, facsimile transmission or telex to the respective
parties to this Agreement as follows:
THE COMPANY:
Kaman Corporation
Blue Hills Avenue
Bloomfield, Connecticut 06002
Attention: William P. Desautelle
Senior Vice President &
Chief Investment Officer
THE AGENT:
The Bank of Nova Scotia
101 Federal Street
Boston, MA 02108
Attention: Carolyn A. Lopez
THE BANKS:
ABN AMRO Bank N.V.
Exchange Place
53 State Street
Boston, Massachusetts 02109
Attention: Carolyn Van Putten
Assistant Vice President
Societe Generale
50 Rockefeller Plaza
New York, New York 10020
Attention: John Stelwagon
Vice President
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Notices hereunder shall be deemed to have been given when (a) if
delivered by hand or telecopied or otherwise telecommunicated, to a
responsible officer of the party to which it is directed, at the
time of receipt thereof by such officer, (b) if sent by registered
or certified mail, postage prepaid, three days after the date when
mailed, or (c) if sent by overnight mail or overnight courier
service, to such a responsible officer, when received by such
officer. With respect to notices given by the Company to the Agent
pursuant to Section 1.03, 1.04, 1.05 or 1.09 hereof, such notices
may be given by telephone if they are confirmed by a writing
received by the Agent 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 1.03, 1.04 or 1.05
or prepayment pursuant to Section 1.09.
SECTION 10.07. SECTION 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 and the Notes is
intended to be severable; if any term or provision of this
Agreement, the Notes, or any other document delivered in connection
herewith 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 to this Agreement shall
be annexed hereto and shall be deemed to be part of this Agreement.
This Agreement and the Exhibits attached hereto embody the entire
Agreement and understanding between the Company, the Banks and the
Agent and supersede all prior agreements and understandings
relating to the subject matter hereof.
SECTION 10.08. GOVERNING LAW. This Agreement, the Notes 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 10.09. COUNTERPARTS. This Agreement and any amendment
hereof may be executed in several counterparts and by each party on
a separate counterpart, each of which when so executed and
delivered shall be an original, and all of which together shall
constitute one instrument. In proving this Agreement it shall not
be necessary to produce or account for more than one such
counterpart signed by the party against whom enforcement is sought.
SECTION 10.10. WAIVER OF JURY TRIAL. THE AGENT, 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
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CONNECTION WITH, THIS AGREEMENT OR THE NOTES, OR ANY COURSE OF
CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR
WRITTEN), OR ACTIONS OF THE AGENT, ANY OF THE BANKS OR THE
COMPANY. THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE AGENT
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, each of the parties hereto on the date hereof hereby
expressly consents to the non-exclusive jurisdiction of any Federal
or state court located in the city and state specified below
opposite the name of such party:
<TABLE>
<C> <C>
PARTY CITY AND STATE
Company New York, New York
BNS Boston, Massachusetts
ABN AMRO Bank N.V. Boston, Massachusetts
Societe Generale New York, New York
</TABLE>
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 non-exclusive jurisdiction of any
Federal or state court located in the city and state within the
United States specified in such Assignment and Acceptance. Any
Bank may change the city and state specified in this Section 10.11
or in the Assignment and Acceptance pursuant to which it becomes a
Bank hereunder to any other city and state within the United States
by one or more written notices to each of the Company and the Agent
specifying such change.
SECTION 10.12 RETURN AND CANCELLATION OF TERM NOTES. The
execution of the Agreement by each Bank hereunder will constitute
the cancellation of the "Term Note" of the Company issued to such
Bank pursuant to the Existing Credit Agreement. Upon each Bank's
receipt of its Notes hereunder, such Bank will promptly return to
the Company, marked "Cancelled", the "Term Note" of the Company
issued to such Bank pursuant to the Existing Credit Agreement.
SECTION 10.13. EFFECTIVE DATE. This Agreement shall become
effective among the parties hereto as of the Effective Date.
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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 non-exclusive jurisdiction
of any Federal or state court located in Hartford, Connecticut.
IN WITNESS WHEREOF, the parties have caused this SECOND AMENDED
AND RESTATED REVOLVING CREDIT AGREEMENT to be executed by their
duly authorized officers as of the date first written above.
Attest: KAMAN CORPORATION
Glenn M. Messemer By: William P. Desautelle
Secretary Its: Senior Vice President
and Chief Investment Officer
STATE OF CONNECTICUT )
) ss.
COUNTY OF HARTFORD )
On this 15th day of July, 1994, before me personally appeared
William P. Desautelle, to me known, who, being by me duly sworn,
declared that he is the Senior Vice President and Chief Investment
Officer of KAMAN CORPORATION (the "Corporation"), the corporation
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<PAGE>
described in and which executed the foregoing AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT; that, being duly authorized, he did
execute the foregoing SECOND AMENDED AND RESTATED REVOLVING CREDIT
AGREEMENT on behalf of the Corporation; and that the foregoing
constitutes the free act and deed of the Corporation.
Shirley M. Miller
Notary Public
My commission expires: June 30, 1999
THE BANK OF NOVA SCOTIA
By: Terry Pitcher
Authorized Signatory
ABN AMRO BANK, N.V.
By: Carolyn Van Putten
Assistant Vice President
By: Marilyn Tressel, Vice President
SOCIETE GENERALE
By: John Stelwagon
Vice President
THE BANK OF NOVA SCOTIA, AS AGENT
By: Terry Pitcher
Authorized Signatory
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EXHIBIT A
FORM OF REVOLVING CREDIT NOTE
$------------- July 15, 1994
FOR VALUE RECEIVED, the undersigned KAMAN
CORPORATION, a Connecticut corporation (the "Company"), hereby
absolutely and unconditionally promises to pay to the order of ----
- - ---------- (the "Bank"), at the Agent's Funding Office:
(a) On the Maturity Date the principal amount
of ---------------------- DOLLARS ($---------------) 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 Second Amended and Restated
Revolving Credit Agreement, dated as of July 15, 1994 (as the same
is amended and in effect from time to time, the "Credit
Agreement"), among the Company, the Bank, the other banks named
therein, such other banks as may become parties thereto from time
to time, and the Agent thereunder; 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 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.
- 146 -
<PAGE>
<PAGE>
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 THE 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 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 is issued in replacement but not in
satisfaction of the Revolving Credit Note issued by the Company to
the Bank under the Existing Credit Agreement.
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:
Title:
Attest:
- 147 -
<PAGE>
<PAGE>
<TABLE>
<C> <C> <C> <C> <C> <C> <C>
Date Interest Interest Amount of Paid or Amount of Notation
Rate Period Advance Prepaid Principal Made By
(Domestic Balance of
Eurodollar) Principal
Unpaid
- - -------------------------------------------------------------------
- - -------------------------------------------------------------------
- - -------------------------------------------------------------------
- - -------------------------------------------------------------------
- - -------------------------------------------------------------------
- - -------------------------------------------------------------------
- - -------------------------------------------------------------------
- - -------------------------------------------------------------------
- - -------------------------------------------------------------------
- - -------------------------------------------------------------------
</TABLE>
- 148 -
<PAGE>
<PAGE>
Exhibit B
FORM OF BID AUCTION NOTE
$90,000,000 July 15, 1994
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 Agent'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
Second Amended and Restated Revolving Credit Agreement, dated as of
July 15, 1994 (as the same is amended and in effect from time to
time, the "Credit Agreement"), among the Company, the Bank, the
other banks named therein, such other banks as may become parties
thereto from time to time, and the Agent thereunder, and on the
Maturity Date, the principal amount of NINETY MILLION DOLLARS
($90,000,000) 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.
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.
- 149 -
<PAGE>
<PAGE>
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 THE 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 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 is issued in replacement but not in
satisfaction of the Bid Auction Note issued by the Company to the
Bank under the Existing Credit Agreement.
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:
Title:
Attest:
. . . . . . . . . . . . . . . . . . . .
- 150 -
<PAGE>
<PAGE>
<TABLE>
<C> <C> <C> <C> <C> <C> <C>
Date Interest Interest Amount of Paid or Amount of Notation
Rate Period Advance Prepaid Principal Made By
(Domestic Balance of
Eurodollar) Principal
Unpaid
- - -------------------------------------------------------------------
- - -------------------------------------------------------------------
- - -------------------------------------------------------------------
- - -------------------------------------------------------------------
- - -------------------------------------------------------------------
- - -------------------------------------------------------------------
- - -------------------------------------------------------------------
- - -------------------------------------------------------------------
- - -------------------------------------------------------------------
- - -------------------------------------------------------------------
</TABLE>
- 151 -
<PAGE>
<PAGE>
Exhibit C
[Letterhead of Kaman Corporation]
July 15, 1994
The Bank of Nova Scotia
101 Federal Street, 16th Floor
Boston, Massachusetts 02110
ABN AMRO Bank N.V.
Exchange Place
53 State Street
Boston, Massachusetts 02109
Societe Generale
50 Rockefeller Plaza
New York, New York 10020
Re: Amended and Restated Revolving Credit Agreement
(the "Agreement"), dated as of July 15, 1994, by and among
Kaman Corporation (the "Company"), The Bank of Nova Scotia,
individually and as Agent (the "Agent"), ABN AMRO Bank, N.V.,
and Societe Generale (the foregoing banks are hereinafter
collectively referred to as the "Banks")
Ladies and Gentlemen:
I have acted as special counsel to the Company in connection
with the negotiation, execution and delivery of the Agreement, the
Notes, and the transactions contemplated thereby. Capitalized
terms used but not defined herein have the meanings given to such
terms in the Agreement.
This opinion letter has been requested of me as an inducement
to your entering into the Agreement with the Company. In this
connection, I have examined the Governing Documents of the Company
and resolutions of the Board of Directors of the Company and such
certificates of public officials and other corporate documents or
records and have made such other examinations and inquiries as I
have deemed necessary or appropriate.
I have examined either original, certified copies or copies
otherwise authenticated to my satisfaction of such documents as I
have deemed necessary or advisable to examine in order to furnish
the opinion 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.
- 152 -
<PAGE>
<PAGE>
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
Agreement and the Notes and the transactions contemplated thereby
(a) are within the corporate authority of the Company, (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 it 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 it
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 it or any of its Subsidiaries is a party or
will be a party immediately after the Effective Date, or by which
or to which it or any of its Subsidiaries or any of their
respective property 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.
3. No approval or consent of, or filing with, any
Governmental Authority and no consent or approval of the
shareholders of the Company or any other Person is required to be
obtained or made by or on behalf of the Company to make valid and
legally binding the execution, delivery and performance of the
Agreement and the Notes. The consummation of the transactions
contemplated by the Agreement and the Notes 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 in the ordinary course of business such as customary
SEC reporting) filing, registration or declaration with any such
Governmental Authority or Person.
- 153 -
<PAGE>
<PAGE>
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 Agreement or the Notes 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 Agreement and each of the Notes have been
duly and properly executed and delivered to the Agent by the
Company.
8. The agreements and obligations of the Company
contained in the Agreement and each of the Notes constitute the
legal, valid and binding obligations of the Company enforceable
against the Company 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,
Glenn M. Messemer
- 154 -
<PAGE>
<PAGE>
Exhibit D
FORM OF
KAMAN CORPORATION
COMPLIANCE CERTIFICATE
The undersigned, William P. Desautelle, hereby certifies that
he is the duly elected, qualified and acting Senior Vice President
and Chief Investment Officer of Kaman Corporation (the "Company"),
a Connecticut corporation, and as such officer, he is familiar with
the terms, covenants and conditions of the Second Amended and
Restated Revolving Credit Agreement (the "Agreement"), dated as of
July 15, 1994, among the Company, The Bank of Nova Scotia, as
Agent, and the other Banks thereunder, as amended and in effect as
of the date hereof. All terms not specifically defined herein
shall have the definitions ascribed in the 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 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
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 [last day of most recently
ended fiscal quarter]:
- 155 -
<PAGE>
<PAGE>
<TABLE>
Section of (Dollars in Thousands)
Agreement
Requirement Actual
or Ceiling
<S> <C> <C> <C>
5.01(f) Liens not to secure
Indebtedness in excess
of fifteen percent (15%)
of Consolidated
Tangible Assets $---------- $--------
5.06(c) Sale of Assets $---------- $--------
(figure represents
15% of Company's
Consolidated
Tangible Assets)
6.01 Consolidated Net
Worth $200,000,000 $--------
6.02 Fixed Charge
Coverage Ratio 2.5:1 ----:----
6.03 Consolidated Total
Indebtedness to
Total Capitalization 45% ---%
</TABLE>
KAMAN CORPORATION
Dated: [date of delivery
of Certificate]
By:
William P. Desautelle
Senior Vice President and
Chief Financial Officer
- 156 -
<PAGE>
<PAGE>
Annex A
<TABLE>
<S> <C> <C>
A. 5.01(f):
(i) Consolidated Assets: $--------
(ii) Intangible Assets: $--------
(iii) Consolidated Tangible Assets: $--------
(Item (i) minus Item (ii))
(iv) Item (iii) multiplied by .15: $--------
B. 5.06(c): Sale of Assets
(i) with respect to any fiscal year
of the Company:
Item (iii) from Section A above
(Consolidated Tangible Assets)
multiplied by .15: $--------
C. 6.01: Consolidated Net Worth
(i) consolidated shareholders'
equity $--------
(ii) Qualifying Preferred Stock: $--------
(iii) Consolidated Net Worth
(Item (i) plus Item (ii)): $--------
D. 6.02: Fixed Charge Coverage Ratio
(i) Operating Profit for 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 four (4) most recently completed
fiscal quarters of the Company: $--------
- 157 -
<PAGE>
<PAGE>
(iii) Fixed Charge Coverage Ratio
(Ratio of Item (i) to Item (ii)) ------:-----
(Footnote 1)
E. 6.03: 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)) (Footnote 2) ------%
Footnote 1: Section 6.02 of the Agreement requires Fixed Charge
Coverage Ratio to be greater than or equal to 2.5:1.
Footnote 2: Section 6.03 of the Agreement requires the Company's
Consolidated Total Indebtedness to be less than or equal to 45% of
its Total Capitalization.
</TABLE>
- 158 -
PAGE
<PAGE>
Exhibit E
FORM OF ASSIGNMENT AND ACCEPTANCE AGREEMENT
Reference is made to the Second Amended and Restated
Revolving Credit Agreement, (the "Credit Agreement"), dated as of
July 15, 1994, by and among Kaman Corporation (the "Company"), The
Bank of Nova Scotia, as agent (the "Agent") and the Banks
thereunder. 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 the Agent, 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 Effective Date (as defined below), (b) each of
the Advances owing on the 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
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, legality,
validity, enforceability, genuineness, sufficiency or value of the
Credit Agreement, any of the Notes held by such Assignor, 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 the performance or observance
by the Company of any of its obligations under the Credit
Agreement, any of the Notes or any other instrument or documents
furnished pursuant thereto.
- 159 -
<PAGE>
<PAGE>
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 4.01 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 the Agent, 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 and any Notes held by it; (d) appoints and
authorizes the Agent to take such action as agent on its behalf and
to exercise such powers under the Credit Agreement as are delegated
to the Agent 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 1.11 of the Credit
Agreement if it is organized outside the United States.
4. The Effective Date for this Agreement shall be
, 19 (the "Effective Date").(Footnote 1)
5. From and after the 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 acceptance and recording of this Agreement
by the Agent, from and after the Effective Date, the Agent 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
Effective Date directly between themselves.
7. The Assignee hereby consents to the
non-exclusive jurisdiction of any Federal or State court located in
Hartford, Connecticut.
8. This Agreement shall be governed by and
construed in accordance with the laws of the State of Connecticut.
- 160 -
<PAGE>
<PAGE>
Footnote 1: See Section 10.05(b) of the Credit Agreement. Such
date shall be at least five (5) Business Days after the execution
of this Agreement.
ASSIGNOR:
[Name of Assignor]
By:
Title:
ASSIGNEE:
[Name of Assignee]
By:
Title:
hereby accepted by each of
the
COMPANY:
KAMAN CORPORATION
By:
Title:
AGENT:
THE BANK OF NOVA SCOTIA,
as Agent
By:
Title:
- 161 -
<PAGE>
<PAGE>
KAMAN CORPORATION AND SUBSIDIARIES
EXHIBIT 11 - EARNINGS PER COMMON SHARE COMPUTATION
(In thousands except per share amounts)
<TABLE>
For the Three Months For the Six Months
Ended June 30, Ended June 30,
-------------------- -------------------
1994 1993 1994 1993
---- ---- ---- ----
<S> <C> <C> <C> <C>
Primary:
Net earnings $ 4,596 $ 4,779 $ 8,836 $ 8,791
======== ======== ======== ========
Preferred stock dividend
requirement $ (929)$ --- $ (1,858)$ ---
======== ======== ======== ========
Net earnings applicable to
common stock $ 3,667 $ 4,779 $ 6,978 $ 8,791
======== ======== ======== ========
Weighted average no. of common
shares outstanding 18,190 18,007 18,158 18,038
Weighted avg. shares issuable on
exercise of dilutive stock options 83 173 97 169
-------- -------- -------- --------
Total 18,273 18,180 18,255 18,207
======== ======== ======== ========
Net earnings per common share -
primary $ .20 $ .26 $ .38 $ .48
======== ======== ======== ========
Fully diluted:
Net earnings applicable to
common stock $ 3,667 $ 4,779 $ 6,978 $ 8,791
Elimination of interest expense
on 6% subordinated convertible
debentures (net after taxes) 309 842 * 1,689
Elimination of preferred stock
dividend requirement 929 --- * ---
-------- -------- -------- --------
Net earnings (as adjusted) $ 4,905 $ 5,621 $ 6,978 $ 10,480
======== ======== ======== ========
Weighted avg. no. of shares out-
standing including shares issuable
on exercise of stock options 18,273 18,180 18,255 18,207
Shares issuable on conversion of
6% subordinated convertible
debentures 1,421 4,067 * 4,067
Shares issuable on conversion of
series 2 preferred stock 4,551 --- * ---
Add'l shares using ending mkt. price
instead of avg. mkt. on treasury method
use of stock option proceeds - - - 7
-------- -------- -------- --------
Total 24,245 22,247 18,255 22,281
======== ======== ======== ========
Net earnings per common share -
fully diluted $ .20 $ .25 $ .38 $ .47
======== ======== ======== =======
* Anti-dilutive and accordingly not included in the computation.
</TABLE>
- 162 -
PAGE
<PAGE>
