FIVE-YEAR REVOLVING CREDIT AGREEMENT

Exhibit 10(P)

 

Execution Copy

 

FIVE–YEAR

REVOLVING

CREDIT AGREEMENT

 

dated as of August 31, 2005

 

among

 

CARPENTER TECHNOLOGY CORPORATION,

as a Borrower and as Guarantor,

 

VARIOUS DESIGNATED SUBSIDIARY BORROWERS,

 

THE LENDERS FROM TIME TO TIME PARTY HERETO,

 

WACHOVIA BANK, NATIONAL ASSOCIATION,

as Administrative Agent, Issuing Lender and Swingline Lender,

 

and

 

JPMORGAN CHASE BANK, N.A.

and

PNC BANK, NATIONAL ASSOCIATION,

as Syndication Agents

 

and

 

MANUFACTURERS AND TRADERS TRUST COMPANY,

as Documentation Agent

 

WACHOVIA CAPITAL MARKETS, LLC

Sole Lead Arranger and Sole Book Runner

 

TABLE OF CONTENTS

 

 

ii

 

iii

 

iv

 

Schedules:

 

Schedule 1.01 – Mandatory Cost Formulae

Schedule 1.01A – Lenders and Commitments

Schedule 2.06 – Existing Letters of Credit

Schedule 5.13 – Subsidiaries

Schedule 7.01 – Indebtedness

Schedule 7.02 – Existing Liens

Schedule 7.03 – Investments

Schedule 11.02 – Notices; Lending Offices

 

Exhibits:

 

Exhibit A–1 – Form of Notice of Syndicated Borrowing

Exhibit A–2 – Form of Competitive Bid Quote Request

Exhibit A–3 – Form of Competitive Bid Quote

Exhibit A–4 – Form of Notice of Extension/Conversion

Exhibit A–5 – Form of Swingline Loan Request

 

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Exhibit A–6 – Form of Letter of Credit Request

Exhibit B–1 – Form of Revolving Note

Exhibit B–2 – Form of Competitive Bid Note

Exhibit B–3 – Form of Swingline Note

Exhibit C – Form of Assignment and Acceptance

Exhibit D – Form of Opinion of Counsel for Carpenter

Exhibit E – Form of Eligible Investments Value Report

Exhibit F – Form of Assumption Agreement

 

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FIVE–YEAR REVOLVING

CREDIT AGREEMENT

 

THIS FIVE–YEAR REVOLVING CREDIT AGREEMENT is dated as of August 31, 2005 and is among CARPENTER TECHNOLOGY CORPORATION , a Delaware corporation (“ Carpenter ”), the Subsidiary Borrowers (as hereinafter defined) from time to time party hereto, the banks and other financial institutions from time to time party hereto (the “ Lenders ”), and WACHOVIA BANK, NATIONAL ASSOCIATION , as Administrative Agent, Issuing Lender and Swingline Lender.

 

Carpenter has requested the Lenders to provide a revolving credit facility to Carpenter and certain designated Subsidiary Borrowers in the aggregate principal amount of $150,000,000 for the purposes hereinafter set forth. The Lenders are willing to make the requested credit facility available to the Borrowers on the terms and conditions set forth herein. Accordingly, in consideration of the mutual agreements set forth herein, the parties hereto agree as follows:

 

ARTICLE I

 

DEFINITIONS AND ACCOUNTING TERMS

 

Section 1.01 Defined Terms . As used in this Agreement, the following terms shall have the meanings set forth below:

 

“ Absolute Rate Auction ” means a solicitation of Competitive Bids setting forth Competitive Bid Absolute Rates pursuant to Section 2.03 for Competitive Bid Loans in Dollars.

 

“ Absolute Rate Bid Loan ” means a Competitive Bid Loan made by a Lender pursuant to an Absolute Rate Auction.

 

“ Additional Letter of Credit ” means any letter of credit issued hereunder by an Issuing Lender on or after the Closing Date.

 

“ Administrative Agent ” means Wachovia Bank, National Association, in its capacity as administrative agent for the Lenders hereunder and under the other Loan Documents, and its successor or successors in such capacity.

 

“ Administrative Agent’s Office ” means (i) for all purposes other than as specified in clause (ii) below, the office of the Administrative Agent designated as its “Payment Office for Dollar-Denominated Loans” on Schedule 10.02 and (ii) in the case of Alternative Currency Loans, the office of the Correspondent, or in each case such other address and account as the Administrative Agent may from time to time designate to Carpenter and the Lenders.

 

“ Administrative Questionnaire ” means an Administrative Questionnaire in a form supplied by the Administrative Agent.

 

“ Affiliate ” means, as to any Person, any other Person directly or indirectly controlling, controlled by, or under direct or indirect common control with, such Person. A Person shall be deemed to be “controlled by” any other Person if such other Person possesses, directly or

indirectly, power (i) to vote 10% or more of the securities (on a fully diluted basis) having ordinary voting power for the election of directors or managing general partners or (ii) to direct or cause the direction of the management and policies of such Person, whether by contract or otherwise; provided, however, that in no case shall the Administrative Agent or any Lender (by reason of its capacity as such) be deemed an Affiliate of any Borrower.

 

“ Agent–Related Persons ” means the Administrative Agent, together with its Affiliates, and the officers, directors, employees, agents, advisors and attorneys–in–fact of the Administrative Agent and its Affiliates.

 

“ Agreement ” means this Agreement, as amended, restated, supplemented or otherwise modified from time to time.

 

“ Agreement Currency ” has the meaning set forth in Section 2.16 .

 

“ Alternative Currency ” means at any time any of the respective lawful currencies of the United Kingdom, Canada, Sweden and the European Economic Union, and such other currencies as Carpenter and the Administrative Agent may mutually agree from time to time, so long as at such time (i) such currency is dealt in the London interbank deposit market or, in the case of Euros, the European interbank deposit market, (ii) such currency is fully transferable and convertible into Dollars in the London foreign exchange market or, in the case of Euros, the European foreign exchange market and (iii) no central bank or other governmental authorization in the country of issue of such currency is required to permit the use of such currency by any Lender for making or maintaining any Loan hereunder and/or to permit the applicable Borrower to borrow and repay the principal thereof and to pay the interest thereon, unless such authorization has been obtained and is in full force and effect.

 

“ Alternative Currency Loan ” means a Committed Loan or a Competitive Bid Loan, as the case may be, that is made in an Available Alternative Currency in accordance with the applicable Notice of Borrowing or Competitive Bid Quote Request, as the case may be.

 

“ Applicable Foreign Obligor Documents ” has the meaning specified in Section 5.18(a) .

 

“ Applicable Interbank Offered Rate ” for any Eurocurrency Loan for the Interest Period applicable thereto means:

 

(a) the rate per annum equal to the rate determined by the Administrative Agent to be the offered rate that appears on the page of the Telerate screen (or any successor thereto) that displays the average British Bankers Association Interest Settlement Rate for deposits in the relevant currency (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period, determined as of approximately 11:00 A.M. (London time) two Business Days prior to the first day of such Interest Period; or

 

(b) if the rate referenced in clause (a) above does not appear on such page or service or such page or service shall cease to be available, the rate per annum equal to the rate determined by the Administrative Agent to be the offered rate that appears on such other page or service that displays an average British Bankers Association Interest Settlement Rate for deposits in the relevant currency (for delivery on the first day of such Interest Period) with a term

 

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equivalent to such Interest Period, determined as of approximately 11:00 A.M. (London time) two Business Days prior to the first day of such Interest Period; or

 

(c) if the rates referenced in the preceding clauses (a) and (b) are not available, the rate per annum determined by the Administrative Agent as the rate of interest (rounded upwards to the next 1/16th of 1%) at which deposits in the relevant currency for delivery on the first day of such Interest Period in same day funds in the approximate amount of the Eurocurrency Loan being made, continued or converted by Wachovia and with a term equivalent to such Interest Period would be offered by Wachovia’s London branch to major banks in the offshore market for the relevant currency at their request at approximately 11:00 A.M. (London time) two Business Days prior to the first day of such Interest Period.

 

“ Applicable Lending Office ” means (i) with respect to any Lender and for each Class and Type of Loan, the “ Lending Office ” of such Lender (or of an Affiliate of such Lender) designated for such Class and Type of Loan in such Lender’s Administrative Questionnaire or such other office of such Lender (or of an Affiliate of such Lender) as such Lender may from time to time specify to the Administrative Agent and the Borrowers as the office by which its Loans of such Class and Type are to be made and maintained; provided , that any Lender may from time to time by notice to the Borrowers and the Administrative Agent designate separate Lending Offices for Eurocurrency Loans in different currencies, in which case all references herein to the Applicable Lending Office of such Lender shall, with respect to its Eurocurrency Loans, be deemed to refer to any or all of such offices, as the context may require, and (ii) with respect to any Issuing Lender and for each Letter of Credit, the “ Lending Office ” of such Issuing Lender (or of an Affiliate of such Issuing Lender) designated on Schedule 10.02 or such other office of such Issuing Lender (or of an Affiliate of such Issuing Lender) as such Lender may from time to time specify to the Administrative Agent and Carpenter as the office by which its Letters of Credit are to be issued and maintained.

 

“ Applicable Percentage ” means, from time to time, the appropriate applicable percentage set forth below corresponding to the better of (i) Carpenter’s Ratings as determined below and (ii) the Debt to Capital Ratio as determined below:

 

 

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Initially, each Applicable Percentage shall be based upon Carpenter’s Ratings and Debt to Capital Ratio specified in the certificate delivered pursuant to Section 4.01(d)(ii) of this Agreement. Thereafter, each change in the Applicable Percentage shall be effective, (i) in the case of an upgrade in Carpenter’s Ratings, during the period commencing on the date of delivery by Carpenter to the Administrative Agent of notice thereof pursuant to Section 6.01(e)(ii)(G) and ending on the date immediately preceding the effective date of the next such change, (ii) in the case of a downgrade in Carpenter’s Ratings, during the period commencing on the date of the public announcement thereof and ending on the date immediately preceding the effective date of the next such change and (iii) in the case of any change in the Applicable Percentage resulting from a change in the Debt to Capital Ratio, such change shall become effective as of the first Business Day immediately following the date the officer’s certificate is received by the Administrative Agent pursuant to Section 6.01(c) ; provided , however , that if such certificate is not delivered when due in accordance with such Section, Category E pricing level shall apply during the period commencing on the date such certificate was required to have been delivered and ending on the date immediately preceding the date such certificate is delivered. In the event a rating differential of one level exists, Carpenter’s Ratings shall be deemed to be the higher of the two ratings. In the event a rating differential of more than one level exists, Carpenter’s Ratings shall be deemed to be one level below the higher of the two ratings.

 

“ Approved Fund ” means (i) with respect to any Lender, an entity (whether a corporation, partnership, limited liability company, trust or otherwise) that is engaged in making, purchasing, holding or otherwise investing in bank loans and similar extensions of credit in the ordinary course of its business and is administered or managed by such Lender or an Affiliate of such Lender, (ii) with respect to any Lender that is a fund that invests in bank loans and similar extensions of credit, any other fund that invests in bank loans and similar extensions of credit and is managed by the same investment advisor as such Lender or by an Affiliate of such investment advisor and (iii) any special purpose funding vehicle described in Section 11.06(h) .

 

“ Arranger ” means Wachovia Capital Markets, LLC and its successors.

 

“ Assignment and Acceptance ” means an Assignment and Acceptance, substantially in the form of Exhibit C hereto, under which an interest of a Lender hereunder is transferred to an Eligible Assignee pursuant to Section 11.06(b) .

 

“ Assumption Agreement ” means an assumption agreement in the form of Exhibit F .

 

“ Attorney Costs ” means all reasonable fees and disbursements of any law firm or other external counsel.

 

“ Attributable Indebtedness ” means, at any date (i) in respect of any Capital Lease of any Person, the capitalized amount thereof that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP, (ii) in respect of any Synthetic Lease

 

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Obligation of any Person, the capitalized or principal amount of the remaining payments under the relevant lease or other agreement that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP if such lease or other agreement were accounted for as a Capital Lease and (iii) in respect of any Sale/Leaseback Transaction, the lesser of (A) the present value, discounted in accordance with GAAP at the debt rate implicit in the related lease, of the obligations of the lessee for rental payments over the remaining term of such lease (including any period for which such lease has been extended or may, at the option of the lessor be extended) and (B) the fair market value of the assets subject to such transaction.

 

“ Available Alternative Currency ” means at any time (i) in the case of Committed Loans, any Alternative Currency and any other currency (other than Dollars) that Carpenter requests, by notice to the Lenders through the Administrative Agent, be included as an additional Alternative Currency for purposes of this Agreement, in each case so long as at such time (A) such currency is dealt in the London interbank deposit market or the European interbank deposit market, (B) such currency is freely transferable and convertible into Dollars in the London foreign exchange market or the European foreign exchange market, as applicable, (C) no central bank or other governmental authorization in the country of issue of such currency is required to permit the use of such currency by any Lender for making any Loan hereunder and/or to permit the Borrowers to borrow and repay the principal thereof and to pay interest thereon, unless such authorization has been obtained and (D) no Lender shall have objected to the inclusion of such currency as an Available Alternative Currency by notice to Carpenter and the Administrative Agent given within five Business Days of such Lender’s receipt of the notice referred to above and (ii) in the case of Letters of Credit issued or to be issued by any Issuing Lender in any currency other than Dollars, any Alternative Currency or other currency approved by the Administrative Agent and such Issuing Lender.

 

“ Bankruptcy Event ” means, with respect to any Person, (i) a court or governmental agency having jurisdiction in the premises shall enter a decree or order for relief in respect of such Person in an involuntary case under any Debtor Relief Law now or hereafter in effect, or appoint a receiver, liquidator, assignee, custodian, trustee, sequestrator or similar official of such Person or for any substantial part of its property or ordering the winding up or liquidation of its affairs, (ii) an involuntary case under any applicable Debtor Relief Law now or hereafter in effect is commenced against such Person and such petition remains unstayed and in effect for a period of 60 consecutive days, (iii) such Person shall commence a voluntary case under any applicable Debtor Relief Law now or hereafter in effect, or consent to the entry of an order for relief in an involuntary case under any such law, or consent to the appointment or taking possession by a receiver, liquidator, assignee, custodian, trustee, sequestrator or similar official of such Person or any substantial part of its property or make any general assignment for the benefit of creditors or (iv) such Person shall admit in writing its inability to pay its debts generally as they become due or any action shall be taken by such Person in furtherance of any of the aforesaid purposes.

 

“ Base Rate ” means, for any day, a rate per annum equal to the higher of (i) the Prime Rate for such day and (ii) the sum of 1/2 of 1% plus the Federal Funds Rate for such day. Any change in the Base Rate due to a change in the Prime Rate or the Federal Funds Rate shall be effective on the effective date of such change in the Prime Rate or the Federal Funds Rate.

 

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“ Base Rate Loan ” means a Committed Loan (Syndicated or Swingline) which bears interest at the Base Rate pursuant to the applicable Notice of Committed Borrowing, Swingline Loan Request, Notice of Extension/Conversion or the provisions of Article III .

 

“ Board ” means the Board of Governors of the Federal Reserve System of the United States of America.

 

“ Borrower ” means, as applicable, (i) Carpenter and (ii) each Subsidiary of Carpenter which is designated as a Subsidiary Borrower after the Effective Date in accordance with S ection 2.18 , together with their respective successors, and “ Borrowers ” shall mean each such Borrower collectively.

 

“ Borrowing ” has the meaning set forth in Section 1.04 .

 

“ Business Day ” means any day except a Saturday, Sunday or other day on which commercial banks are authorized or required to close, under the laws of, or are in fact closed in, the state where the Administrative Agent’s Office is located, except that: when used in Section 2.06 with respect to any action taken by or with respect to any Issuing Lender, or to the issuance of, drawing under, or reimbursement obligation arising in respect of, a Letter of Credit denominated in Dollars or a notice by Carpenter with respect to any such issuance, drawing or reimbursement obligation, the term “ Business Day ” shall not include any day on which commercial banks are authorized or required to close, under the laws of, or in fact closed in, the jurisdiction where such Issuing Lender’s Applicable Lending Office is located; if such day relates to a borrowing of, a payment or prepayment of principal of or interest on, or the Interest Period for, a Eurodollar Loan, or a notice by Carpenter with respect to any such borrowing, payment, prepayment or Interest Period, such day shall also be a day on which commercial banks are open for international business (including dealings in Dollar deposits) in London; if such day relates to a borrowing of, a payment or prepayment of principal of or interest on, or the Interest Period for, an Alternative Currency Loan, or to the issuance of, drawing under, or reimbursement of obligations in respect of a Letter of Credit, denominated in an Available Alternative Currency other than the Euro, or a notice by Carpenter with respect to any such borrowing, payment, prepayment or Interest Period or issuance, drawing under or reimbursement obligation, such day shall also be a day on which commercial banks are open for international business (including dealings in deposits on such Alternative Currency) in both London and in the principal financial center for such Available Foreign Currency; and if such day relates to a borrowing of, a payment or prepayment of principal of or interest on, or the Interest Period for, an Alternative Currency Loan, or to the issuance of, drawing under, or reimbursement of obligations in respect of a Letter of Credit, denominated in the Euro, or a notice by Carpenter with respect to any such borrowing, payment, prepayment or Interest Period or issuance, drawing under or reimbursement obligation, such day shall also be a day on which the Trans–European Automated Real–Time Gross Settlement Expense Transfer payment system is open for the settlement of payment in Euros.

 

“ Calculation Date ” means each of the following: (i) each date on which an Alternative Currency Loan is initially made or a Letter of Credit denominated in an Alternative Currency is issued, (ii) each date on which a Alternative Currency Loan is continued for an additional Interest Period, (iii) the last Business Day of each calendar month, (iv) the Maturity Date, (v) each date a Revolving Loan is made to reimburse a Swingline Loan or drawing under a Letter of

 

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Credit or a Participation Interest is required to be purchased in an outstanding Swingline Loan or outstanding LC Obligations pursuant to the terms hereunder and (vi) such additional dates as the Administrative Agent or the Required Lenders shall specify.

 

“ Capital Lease ” of any Person means any lease of property (whether real, personal or mixed) by such Person as lessee which would, in accordance with GAAP, be required to be accounted for as a capital lease on the balance sheet of such Person.

 

“ Capital Lease Obligations ” means, with respect to any Person, all obligations of such Person as lessee under Capital Leases, in each case taken at the amount thereof accounted for as liabilities in accordance with GAAP.

 

“ Carpenter ” is defined in the preamble.

 

“ Carpenter’s 2004 Form 10–K ” means Carpenter’s annual report on Form 10–K for the fiscal year ended June 30, 2004, as filed with the Securities and Exchange Commission pursuant to the Exchange Act.

 

“ Carpenter’s Latest Form 10–Q ” means Carpenter’s quarterly report on Form 10–Q for the quarter ended March 31, 2005, as filed with the Securities and Exchange Commission pursuant to the Exchange Act.

 

“ Carpenter’s Ratings ” means the ratings from Moody’s and S&P with respect to the senior, unsecured, long–term indebtedness for borrowed money of Carpenter that is not guaranteed by any other Person or subject to any other credit enhancement.

 

“ Cash Collateralize ” means to pledge and deposit with or deliver to the Administrative Agent, for the benefit of the Issuing Lenders and the Lenders, as collateral for the LC Obligations, cash or deposit balances in the applicable currency pursuant to documentation in form and substance satisfactory to the Administrative Agent and the Issuing Lenders (which documents are hereby consented to by the Lenders). Derivates of such term have a corresponding meaning.

 

“ Cash Equivalents ” means:

 

(a) securities issued or directly and fully guaranteed or insured by the United States of America or any agency or instrumentality thereof ( provided that the full faith and credit of the United States of America is pledged in support thereof) having maturities of not more than twelve months from the date of acquisition;

 

(b) Dollar–denominated certificates of deposit of (A) any Lender, (B) any United States commercial bank of recognized standing having capital and surplus in excess of $500,000,000 or (C) any bank whose (or whose parent company’s) short–term commercial paper rating from S&P is at least A–1 or the equivalent thereof or from Moody’s is at least P–1 or the equivalent thereof (any such bank being an “ Approved Lender ”), in each case with maturities of not more than 270 days from the date of acquisition;

 

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(c) commercial paper and variable or fixed rate notes issued by any Approved Lender (or by the parent company thereof) or any variable rate notes issued by, or guaranteed by, any domestic corporation not an Affiliate of Carpenter rated A–1 (or the equivalent thereof) or better by S&P or P–1 (or the equivalent thereof) or better by Moody’s and maturing within six months of the date of acquisition;

 

(d) repurchase agreements with a bank or trust company (including any of the Lenders) or recognized securities dealer having capital and surplus in excess of $500,000,000 for direct obligations issued by or fully guaranteed by the United States of America in which Carpenter or one or more of its Subsidiaries shall have a perfected first priority security interest (subject to no other Liens) and having, on the date of purchase thereof, a fair market value of at least 100% of the amount of the repurchase obligations;

 

(e) Investments, classified in accordance with GAAP as current assets, in money market investment programs registered under the Investment Company Act of 1940, as amended, which are administered by reputable financial institutions having capital of at least $500,000,000 and the portfolios of which are limited to Investments of the character described in the foregoing clauses (a) through (d) ; and

 

(f) any other marketable securities recorded as “Cash Equivalents” on the consolidated balance sheet of Carpenter and its Consolidated Subsidiaries.

 

“ Change of Control ” means, with respect to any Person, an event or series of events by which:

 

(a) any “person” or “group” (within the meaning of Section 13(d) and 14(d) of the Exchange Act) has become the “beneficial owner” (as defined in Rules 13d–3 and 13d–5 under the Exchange Act, except that a Person shall be deemed to have “beneficial ownership” of all securities that any such Person has the right to acquire, whether such right is exercisable immediately or only after the passage of time), by way of merger, consolidation or otherwise, of 25% or more of the Equity Interests of such Person on a fully–diluted basis after giving effect to the conversion and exercise of all outstanding Equity Equivalents (whether or not such Equity Equivalents are then currently convertible or exercisable); or

 

(b) during any period of 12 consecutive months, a majority of the members of the board of directors or other equivalent governing body of such Person cease to be composed of individuals (i) who were members of that board or equivalent governing body on the first day of such period, (ii) whose election or nomination to that board or equivalent governing body was approved by individuals referred to in clause (b)(i) above constituting at the time of such election or nomination at least a majority of that board or equivalent governing body or (C) whose election or nomination to that board or other equivalent governing body was approved by individuals referred to in clauses (b)( i) and (ii) above constituting at the time of such election or nomination at least a majority of that board or equivalent governing body.

 

“ Class ” has the meaning set forth in Section 1.04 .

 

“ Closing Date ” means the date on or after the Effective Date when the conditions precedent in Section 4.01 are satisfied or waived in accordance with Section 4.01 .

 

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“ Code ” means the Internal Revenue Code of 1986, as amended, and any successor statute thereto, as interpreted by the rules and regulations issued thereunder, in each case as in effect from time to time.

 

“ Commitment ” means (i) with respect to each Lender, its Revolving Commitment, (ii) with respect to each Issuing Lender, its LC Commitment and (iii) with respect to the Swingline Lender, the Swingline Commitment, in each case in the respective amount set forth on Schedule 1.01A or in the applicable Assignment and Acceptance or joinder agreement as its Commitment of the applicable Class, as any such amount may be increased or decreased from time to time pursuant to this Agreement.

 

“ Committed Loan ” means a Syndicated Loan or a Swingline Loan.

 

“ Competitive Bid ” has the meaning set forth in Section 2.03(d) .

 

“ Competitive Bid Absolute Rate ” has the meaning set forth in Section 2.03(d)(i)(C) .

 

“ Competitive Bid Auction ” means an Absolute Rate Auction or a Eurocurrency Rate Auction.

 

“ Competitive Bid Loan ” means a Competitive Bid Loan made by a Lender pursuant to an Absolute Rate Auction or a Eurocurrency Rate Auction.

 

“ Competitive Bid Note ” means a promissory note, substantially in the form of Exhibit B-2 hereto, evidencing the obligation of Carpenter to repay outstanding Competitive Bid Loans, as such note may be amended, modified, supplemented, extended, renewed or replaced from time to time.

 

“ Competitive Bid Loan Sublimit ” means an amount equal to the lesser of the aggregate Revolving Commitments and $75,000,000. The Competitive Bid Loan Sublimit is a part of, and not in addition to, the aggregate Revolving Commitments.

 

“ Competitive Bid Quote Request ” has the meaning set forth in Section 2.03(b) .

 

“ Consolidated Capitalization ” means the sum of, without duplication, (i) Consolidated Indebtedness and (ii) the consolidated stockholders’ equity (determined in accordance with GAAP) of the common and preferred stockholders of Carpenter recorded on Carpenter’s consolidated financial statements.

 

“ Consolidated EBITDA ” means for any period the sum of (i) Consolidated Net Income for such period plus (ii) an amount which, in the determination of Consolidated Net Income for such period, has been deducted for (A) Consolidated Interest Expense, (B) provisions for Federal, state, local and foreign income, value added and similar taxes, and (C) depreciation, amortization (including, without limitation, amortization of goodwill and other intangibles but excluding amortization of prepaid cash expenses that were paid in a prior period) and other non–cash expense excluding any such non–cash expense to the extent that it represents amortization of a prepaid cash expense that was paid in a prior period or an accrual of, or a reserve for, cash charges or expenses in any future period; provided that, notwithstanding the foregoing, all (y)

 

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actuarially determined non-cash retiree medical expenses equivalent to any amount that is funded under the Voluntary Employee Beneficiary Association Trust established by Carpenter pursuant to Section 501(c)(9) of the Code and (z) actuarially determined non-cash income or expense related to a Pension Plan to the extent included in the income statement of Carpenter and its Consolidated Subsidiaries, shall be excluded from Consolidated Net Income under clause (ii)(C) above.

 

“ Consolidated Indebtedness ” means at any date the Indebtedness of Carpenter and its Consolidated Subsidiaries, determined on a consolidated basis as of such date.

 

“ Consolidated Interest Expense ” means, for any period, the total interest expense, including the interest component of all payments under Capital Lease Obligations and the implied interest component of Synthetic Lease Obligations (regardless of whether accounted for as interest expense under GAAP), all commissions, discounts and other fees and charges owed with respect to letters of credit and bankers’ acceptances that are typically treated as interest expense in accordance with GAAP, of Carpenter and its Consolidated Subsidiaries, in each case as determined in accordance with GAAP and as determined on a consolidated basis for such period.

 

“ Consolidated Net Income ” means, for any period, the net income (or net loss) after taxes of Carpenter and its Consolidated Subsidiaries for such period, as determined in accordance with GAAP; provided that there shall be excluded from the calculation of Consolidated Net Income non–operating, non–recurring gains and losses and extraordinary gains and losses of Carpenter and its Consolidated Subsidiaries; provided , further , that the net income of any Consolidated Subsidiary shall be excluded from Consolidated Net Income to the extent that the declaration or payment of dividends or similar distributions by such Consolidated Subsidiary from such income is not at the time permitted by the terms of its charter or by-laws or any judgment, decree, order, law, statute, rule, regulation, agreement, indenture or other instrument which is binding on such Consolidated Subsidiary.

 

“ Consolidated Subsidiary ” means with respect to any Person at any date any Subsidiary of such Person or other entity the accounts of which would be consolidated with those of such Person in its consolidated financial statements if such statements were prepared as of such date in accordance with GAAP.

 

“ Consolidated Tangible Net Worth ” means at any date the consolidated stockholders’ equity of Carpenter and its Consolidated Subsidiaries, less intangible assets and goodwill of Carpenter and its Consolidated Subsidiaries, in each case as determined in accordance with GAAP.

 

“ Contractual Obligation ” means, as to any Person, any provision of any instrument, including a security, issued by such Person or of any agreement, instrument or other undertaking to which such Person is a party or by which it or any of its property is bound.

 

“ Correspondent ” shall mean Wachovia Bank, National Association, London branch, or any other financial institution designated by the Administrative Agent to act as its correspondent hereunder in respect of the disbursement and payment of Alternative Currency Loans.

 

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“ Credit Exposure ” has the meaning set forth in the definition of “ Required Lenders ” in this Section 1.01 .

 

“ Credit Extension ” means a Borrowing, a Competitive Bid Loan or the issuance, renewal or extension of a Letter of Credit, or the increase of the stated amount thereof, or the purchase by a Lender of a Participation Interest.

 

“ Creditor ” means each Lender, each Issuing Lender, the Administrative Agent and each Indemnitee and their respective successors and assigns, and “ Creditors ” means any two or more of such Creditors.

 

“ Debt to Capital Ratio ” means the ratio of Consolidated Indebtedness to Consolidated Capitalization; provided , however , that for purposes solely of determining the Applicable Percentages and not for determining compliance with Section 7.12(a), Carpenter may exclude from Consolidated Indebtedness in both the numerator and denominator of the Debt to Capital Ratio the amount of Eligible Investments held for or on behalf of Carpenter in excess of $50,000,000.

 

“ Debtor Relief Laws ” means Title 11 of the United States Code entitled “Bankruptcy,” as amended, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization or similar debtor relief laws of the United States of America or other applicable jurisdiction from time to time affecting the rights of creditors generally.

 

“ Default ” means any condition or event which constitutes an Event of Default or which with the giving of notice or lapse of time or both would, unless cured or waived, become an Event of Default.

 

“ Defaulting Lender ” means at any time any Lender that, within one Business Day of when due, (i) has failed to make a Loan or purchase a Participation Interest in a Swingline Loan or LC Obligation required pursuant to the terms of this Agreement, (ii) other than as set forth in clause (i) above, has failed to pay to the Administrative Agent or any Lender an amount owed by such Lender pursuant to the terms of this Agreement or any other Loan Document unless such amount is subject to a good faith dispute or (iii) has been deemed insolvent or has become subject to a Bankruptcy Event.

 

“ Disposition ” or “ Dispose ” means the sale, transfer, license or other disposition (including any Sale/Leaseback Transaction) of any property by any Person, including any sale, assignment, transfer or other disposal, with or without recourse, of any notes, accounts receivable or payment intangible or any rights or claims associated therewith.

 

“ Disqualified Stock ” of any Person means (i) any Equity Interest of such Person which by its terms (or by the terms of any security for which it is convertible or for which it is exchangeable or exercisable), or upon the happening of any event or otherwise (including an event which would constitute a Change of Control), (A) matures or is mandatorily redeemable or subject to any mandatory repurchase requirement, pursuant to a sinking fund or otherwise, (B) is convertible into or exchangeable for Indebtedness or Disqualified Stock or (C) is redeemable or subject to any repurchase requirement arising at the option of the holder thereof, in whole or in

 

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part, on or prior to the first anniversary of the Maturity Date and (ii) if such Person is a Subsidiary of Carpenter, any Preferred Stock of such Person.

 

“ Dollar Amount ” means at any time:

 

(a) with respect to Dollar–Denominated Loans, the aggregate outstanding principal amount thereof after giving effect to any Borrowings, conversions, continuations and prepayments or repayments of such Loans occurring on such date;

 

(b) with respect to Alternative Currency Loans, the Dollar Equivalent of the aggregate outstanding principal amount thereof after giving effect to any Borrowings, continuations and prepayments or repayments of such Loans occurring on such date;

 

(c) with respect to LC Obligations in respect of Letters of Credit denominated in Dollars, the aggregate amount of such LC Obligations after giving effect to any changes in the aggregate amount of such LC Obligations as of such date; and

 

(d) with respect to LC Obligations in respect of Letters of Credit denominated in an Alterative Currency on any date, the Dollar Equivalent of the aggregate amount of such LC Obligations after giving effect to any changes in the aggregate amount of such LC Obligations on such date.

 

“ Dollar–Denominated Loan ” means any Loan that is made in Dollars in accordance with the applicable Notice of Borrowing.

 

“ Dollar Equivalent ” means, on any date of determination, the equivalent in Dollars of an amount denominated in a currency other than Dollars determined by the Administrative Agent pursuant to Section 1.05 using the applicable Spot Rate.

 

“ Dollars ” and the sign “ $ ” means lawful money of the United States of America.

 

“ EMU ” means Economic and Monetary Union as contemplated in the Treaty on European Union.

 

“ EMU Legislation ” means the legislative measures of the European Union for the introduction of, changeover to, or operation of, the Euro in one or more member states.

 

“ Effective Date ” means the date this Agreement becomes effective in accordance with Section 11.18 .

 

“ Eligible Assignee ” means (i) any Lender, (ii) any Affiliate of a Lender, (iii) any Approved Fund and (iv) any other Person (other than a natural Person) approved by (A) the Administrative Agent, (B) in the case of any assignment of a Revolving Commitment, the Issuing Lenders and the Swingline Lender and (C) unless (x) such Person is taking delivery of an assignment in connection with physical settlement of a credit derivatives transaction or (y) an Event of Default has occurred and is continuing at the time any assignment is effected pursuant to Section 11.06(b), Carpenter (each such approval not to be unreasonably withheld or delayed and any such approval required of Carpenter to be deemed given by Carpenter if no objection

 

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from Carpenter is received by the assigning Lender and the Administrative Agent within two Business Days after notice of such proposed assignment has been provided by the assigning Lender to Carpenter); provided , however , that Carpenter and its Affiliates shall not qualify as Eligible Assignees.

 

“ Eligible Investments ” means, as of any date of determination, the cash, Cash Equivalents and Marketable Securities which (i) are owned by Carpenter and held in banks or other financial institutions located in the United States, (ii) are not subject to any Lien, (iii) collectively, have an average credit quality rated by S&P as A+ or better and an average maturity not greater than 365 days, and (iv) certified as meeting the criteria set forth in clauses (i) through (iii) by the chief financial officer of Carpenter in the manner set forth in Section 6.01(g) .

 

“ Environmental Laws ” means any current or future legal requirement of any Governmental Authority pertaining to (i) the protection of health, safety, and the environment, (ii) the conservation, management or use of natural resources and wildlife, (iii) the protection or use of surface water and groundwater or (iv) the management, manufacture, possession, presence, use, generation, transportation, treatment, storage, disposal, release, threatened release, abatement, removal, remediation or handling of, or exposure to, any hazardous or toxic substance or material and includes, without limitation, the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended by the Superfund Amendments and Reauthorization Act of 1986, 42 USC 9601 et seq., Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act of 1976 and Hazardous and Solid Waste Amendment of 1984, 42 USC 6901 et seq., Federal Water Pollution Control Act, as amended by the Clean Water Act of 1977, 33 USC 1251 et seq., Clean Air Act of 1966, as amended, 42 USC 7401 et seq., Toxic Substances Control Act of 1976, 15 USC 2601 et seq., Hazardous Materials Transportation Act, 49 USC App. 1801 et seq., Occupational Safety and Health Act of 1970, as amended, 29 USC 651 et seq., Oil Pollution Act of 1990, 33 USC 2701 et seq., Emergency Planning and Community Right–to–Know Act of 1986, 42 USC 11001 et seq., National Environmental Policy Act of 1969, 42 USC 4321 et seq., Safe Drinking Water Act of 1974, as amended, 42 USC 300(f) et seq., any analogous implementing or successor law, and any amendment, rule, regulation, order or directive issued thereunder.

 

“ Equity Equivalents ” means with respect to any Person any rights, warrants, options, convertible securities, exchangeable securities, indebtedness or other rights, in each case exercisable for or convertible or exchangeable into, directly or indirectly, Equity Interests of such Person or securities exercisable for or convertible or exchangeable into Equity Interests of such Person, whether at the time of issuance or upon the passage of time or the occurrence of some future event.

 

“ Equity Interests ” means all shares of capital stock, partnership interests (whether general or limited), limited liability company membership interests, beneficial interests in a trust and any other interest or participation that confers on a Person the right to receive a share of profits or losses, or distributions of assets, of an issuing Person, but excluding any debt securities convertible into such Equity Interests.

 

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“ ERISA ” means the Employee Retirement Income Security Act of 1974, as amended, and any successor statute thereto, as interpreted by the rules and regulations issued thereunder, in each case as in effect from time to time.

 

“ ERISA Affiliate ” means any trade or business (whether or not incorporated) under common control with Carpenter within the meaning of Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code for purposes of provisions relating to Section 412 of the Code).

 

“ ERISA Event ” means: (i) a Reportable Event with respect to a Pension Plan; (ii) a withdrawal by Carpenter or any ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA during a plan year in which it was a substantial employer (as defined in Section 4001(a)(2) of ERISA); (iii) a complete or partial withdrawal by Carpenter or any ERISA Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is in reorganization; (iv) the filing of a notice of intent to terminate, the treatment of a Plan amendment as a termination under Sections 4041 or 4041A of ERISA, or the commencement of proceedings by the PBGC to terminate a Pension Plan or Multiemployer Plan; (v) an event or condition which might reasonably be expected to constitute grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan or Multiemployer Plan; or (vi) the imposition of any liability under Title IV of ERISA, other than for PBGC premiums due but not delinquent under Section 4007 of ERISA, upon Carpenter or any ERISA Affiliate.

 

“ Euro ” means the single currency of the European Union as constituted by the Treaty on European and Monetary Union and as referred to in the EMU Legislation.

 

“ Euro Unit ” shall mean the currency unit of the Euro.

 

“ Eurocurrency Bid Margin ” means the margin to be added to or subtracted from the Eurocurrency Rate, which margin shall be expressed in multiples of 1/100 ^th of one basis point.

 

“ Eurocurrency Loan ” means a Syndicated Loan which is either a Eurodollar Loan or an Alternative Currency Loan.

 

“ Eurocurrency Rate ” means, for each Interest Period for each Eurocurrency Loan comprising the same Group, (i) with respect to any Eurocurrency Loans not denominated in Dollars or Euros, the Applicable Interbank Offered Rate for the applicable currency for such Interest Period, (ii) with respect to any Eurocurrency Loans denominated in Dollars, the quotient obtained (rounded upward, if necessary, to the next higher 1/16 of 1%) by dividing (A) the Applicable Interbank Offered Rate for Dollars for such Interest Period by (B) 1.00 minus the Eurocurrency Reserve Percentage and (iii) with respect to Eurocurrency Loans denominated in Euros, the Applicable Interbank Offered Rate for Euros for such Interest Period.

 

“ Eurocurrency Rate Auction ” means a solicitation of Competitive Bids setting forth Eurocurrency Bid Margins pursuant to Section 2.03 .

 

“ Eurocurrency Rate Competitive Bid Loan ” means a Competitive Bid Loan made by a Lender pursuant to a Eurocurrency Rate Auction.

 

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“ Eurocurrency Reserve Percentage ” means for any day that percentage (expressed as a decimal) which is in effect on such day, as prescribed by the Board (or any other entity succeeding to the functions currently performed thereby) for determining the maximum reserve requirement for a member bank of the Federal Reserve System in New York City with deposits exceeding $5,000,000,000 in respect of “Eurocurrency liabilities” (or in respect of any other category of liabilities which includes deposits by reference to which the interest rate on Eurodollar Loans is determined or any category of extensions of credit or other assets which includes loans by a non–United States office of any Lender to United States residents), whether or not a Lender has any Eurocurrency liabilities subject to such reserve requirement at that time. Eurocurrency Loans shall be deemed to constitute Eurocurrency liabilities and as such shall be deemed subject to reserve requirements without benefits of credits for prorations, exceptions or offsets that may be available from time to time to a Lender. The Eurocurrency Rate shall be adjusted automatically on and as of the effective date of any change in the Eurocurrency Reserve Percentage.

 

“ Eurodollar Loan ” means a Syndicated Loan denominated in Dollars which bears interest at a Eurocurrency Rate pursuant to the applicable Notice of Committed Borrowing or Notice of Extension/Conversion.

 

“ Event of Default ” has the meaning set forth in Section 8.01 .

 

“ Evergreen Letter of Credit ” has the meaning set forth in Section 2.06(c) .

 

“ Exchange Act ” means the Securities Exchange Act of 1934, as amended, and any successor statute thereto, together with the rules and regulations promulgated thereunder.

 

“ Existing Indebtedness ” has the meaning set forth in Section 7.01(i) .

 

“ Existing Facility ” means the Five–Year Revolving Credit Agreement dated as of November 20, 2001, among Carpenter, the subsidiary borrowers party thereto, the lending institutions party thereto and Wachovia, as administrative agent, as amended, restated, supplemented or otherwise modified.

 

“ Existing Letters of Credit ” means the letters of credit issued before the Closing Date and described by date of issuance, letter of credit number, undrawn amount, name of beneficiary and date of expiry on Schedule 2.06 hereto, and “ Existing Letter of Credit ” means any one of them.

 

“ Facility Fee ” has the meaning set forth in Section 2.12(a) .

 

“ Failed Loan ” has the meaning set forth in Section 2.04(e) .

 

“ Federal Funds Rate ” means for any day the rate per annum (rounded upward, if necessary, to the nearest 1/100th of 1%) equal to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers on such day, as published by the Federal Reserve Bank of New York on the Business Day next succeeding such day; provided that (i) if such day is not a Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on the next preceding Business Day as so published on the next succeeding Business Day, and (ii) if no such rate is so

 

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published on such next succeeding Business Day, the Federal Funds Rate for such day shall be the average rate quoted to Wachovia on such day on such transactions as determined by the Administrative Agent.

 

“ Fee Letter ” means the letter from the Administrative Agent and the Arranger to Carpenter, dated July 13, 2005, relating to certain fees payable by Carpenter in respect of the transactions contemplated by this Agreement, as amended, modified, restated or supplemented from time to time.

 

“ Foreign Benefit Plan ” means any employee benefit plan, pension plan or welfare plan not subject to ERISA which is maintained or contributed to for the benefit of the employees of a Foreign Obligor or its Subsidiaries which, under applicable law, (a) is required to be funded through a trust or similar funding vehicle or (b) creates or could result in a Lien on any property of such Foreign Obligor or any of its Subsidiaries.

 

“ Foreign Obligor ” means any Borrower that is incorporated or organized under the laws of a jurisdiction other than the United States, a State thereof or the District of Columbia.

 

“ GAAP ” means at any time generally accepted accounting principles as then in effect in the United States, applied on a basis consistent (except for changes with which Carpenter’s independent public accountants have concurred) with the most recent audited consolidated financial statements of Carpenter and its Consolidated Subsidiaries previously delivered to the Lenders.

 

“ Governmental Authority ” means any federal, state, local, provincial or foreign government, authority, agency, central bank, quasi–governmental or regulatory authority, court or other body or entity, and any arbitrator with authority to bind a party at law.

 

“ Granting Lender ” has the meaning set forth in Section 11.06(h) .

 

“ Group of Loans ” means at any time a group of Loans consisting of (i) all Loans which are Base Rate Loans at such time or (ii) all Loans which are Eurocurrency Loans denominated in the same currency and having the same Interest Period at such time; provided that, if a Committed Loan of any particular Lender is converted to or made as a Base Rate Loan pursuant to Article III , such Loan shall be included in the same Group or Group of Loans from time to time as it would have been had it not been so converted or made.

 

“ Guaranteed Obligations ” has the meaning set forth in Section 10.01 .

 

“ Guaranty Obligation ” means, with respect to any Person, without duplication, any obligation (other than endorsements in the ordinary course of business of negotiable instruments for deposit or collection) guarantying, intended to guaranty, or having the economic effect of guarantying, any Indebtedness of any other Person in any manner, whether direct or indirect, and including without limitation any obligation, whether or not contingent, (i) to purchase any such Indebtedness or other obligation or any property constituting security therefor, (ii) to advance or provide funds or other support for the payment or purchase of such indebtedness or obligation or to maintain working capital, solvency or other balance sheet condition of such other Person (including, without limitation, maintenance agreements, comfort letters, take or pay

 

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arrangements, put agreements or similar agreements or arrangements) for the benefit of the holder of Indebtedness of such other Person, (iii) to lease or purchase property, securities or services primarily for the purpose of assuring the owner of such Indebtedness or (iv) to otherwise assure or hold harmless the owner of such Indebtedness or obligation against loss in respect thereof. The amount of any Guaranty Obligation hereunder shall (subject to any limitations set forth therein) be deemed to be an amount equal to the outstanding principal amount (or maximum principal amount, if larger) of the Indebtedness in respect of which such Guaranty Obligation is made.

 

“ Hedging Obligations ” of any Person means all obligations of such Person in respect of any futures contract or options contract, interest rate swap agreements and interest rate collar agreements and all other agreements or arrangements, designed to protect such Person against fluctuations in interest rates.

 

“ Indebtedness ” of any Person means at any date, without duplication, (i) all obligations of such Person for borrowed money, including, without limitation, obligations for borrowed money incurred by any Person in respect of any asset securitization transaction, (ii) all obligations of such Person evidenced by bonds, debentures, notes or other similar instruments, (iii) all obligations of such Person under conditional sale or other title retention agreements relating to property purchased by such Person to the extent of the value of such property (other than customary reservations or retentions of title under agreements with suppliers entered into in the ordinary course of business), (iv) all obligations, other than intercompany items, of such Person to pay the deferred purchase price of property or services (other than trade accounts payable arising in the ordinary course of business), (v) the Attributable Indebtedness of such Person in respect of Capital Lease Obligations and Synthetic Lease Obligations (regardless of whether accounted for as indebtedness under GAAP), (vi) all obligations of such Person to purchase securities or other property which arise out of or in connection with the sale of the same or substantially similar securities or property, (vii) all non–contingent obligations (and, for purposes of Section 7.01 and Section 8.01(f) , all contingent obligations) of such Person to reimburse any bank or other Person in respect of amounts paid under a letter of credit, bankers’ acceptance or similar instrument, (viii) all Guaranty Obligations of such Person, (ix) all Disqualified Stock of such Person, (x) the net termination obligations of such Person in respect of any Hedging Obligations, calculated as of any date as if such agreement or arrangement were terminated as of such date and (xi) the Indebtedness of any other Person (including any partnership in which such Person is a general partner and any unincorporated joint venture in which such Person is a joint venturer) to the extent such Person would be liable therefor under applicable law or any agreement or instrument by virtue of such Person’s ownership interest in or other relationship with such entity, except to the extent the terms of such Indebtedness provide that such person shall not be liable therefor.

 

“ Indemnified Liabilities ” has the meaning set forth in Section 11.05 .

 

“ Indemnitee ” has the meaning set forth in Section 11.05 .

 

“ Interest Coverage Ratio ” means for any period the ratio of (i) Consolidated EBITDA to (ii) Consolidated Interest Expense for such period.

 

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“ Interest Payment Date ” means (i) as to Base Rate Loans and LIBOR Market Index Rate Loans, the last day of each fiscal quarter of Carpenter and the Maturity Date and (ii) as to Eurocurrency Loans, the last day of each applicable Interest Period and the Maturity Date, and, where the applicable Interest Period for a Eurocurrency Loan is greater than three months, also the date three months from the beginning of the Interest Period and each three months thereafter.

 

“ Interest Period ” means:

 

(i) with respect to each Eurocurrency Loan, a period commencing on the date of borrowing specified in the applicable Notice of Borrowing or on the date specified in the applicable Notice of Extension/Conversion and ending one, two, three or six months, thereafter, as the applicable Borrower may elect in the applicable notice (or such other period mutually agreed to by the applicable Borrower, the Administrative Agent and the Lenders); provided that:

 

(A) any Interest Period (except an Interest Period determined pursuant to clause (i)(C) below) which would otherwise end on a day which is not a Business Day for the relevant currency shall be extended to the next succeeding Business Day for such currency unless such Business Day falls in another calendar month, in which case such Interest Period shall end on the next preceding Business Day for such currency;

 

(B) any Interest Period which begins on the last Business Day for the relevant currency in a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall, subject to clause (C) below, end on the last Business Day for the relevant currency of a calendar month; and

 

(C) any Interest Period which would otherwise end after the Maturity Date shall end on the Maturity Date; and

 

(ii) with respect to each Competitive Bid Loan, the period commencing on the date of borrowing specified in the applicable Notice of Borrowing and ending such number of days thereafter (but not less than 7 or greater than 90) as Carpenter may elect in accordance with Section 2.03 ; provided that:

 

(A) any Interest Period (except an Interest Period determined pursuant to clause (iii)(B) below) which would otherwise end on a day which is not a Business Day for the relevant currency shall be extended to the next succeeding Business Day for such currency; and

 

(B) any Interest Period which would otherwise end after the Maturity Date for the relevant currency shall end on such Maturity Date.

 

“ Investment ” in any Person means (i) the acquisition (whether for cash, property, services, assumption of Indebtedness, securities or otherwise) of assets, shares of Capital Stock, bonds, notes, debentures, time deposits or other securities of such other Person, (ii) any deposit with, or advance, loan or other extension of credit to or for the benefit of such Person (other than

 

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deposits made in connection with the purchase of equipment or inventory in the ordinary course of business) or (iii) any other capital contribution to or investment in such Person, including by way of Guaranty Obligations of any obligation of such Person, any support for a letter of credit issued on behalf of such Person incurred for the benefit of such Person or in the case of any Subsidiary of Carpenter, any release, cancellation, compromise or forgiveness in whole or in part of any Indebtedness owing by such Subsidiary.

 

“ Issuing Lender ” means (i) Wachovia, in its capacity as issuer of Letters of Credit under Section 2.06(b) , and its successor or successors in such capacity, (ii) each Lender listed in Schedule 2.06 hereto as the issuer of an Existing Letter of Credit and (iii) any other Lender which Carpenter shall have designated as an “Issuing Lender” by notice to the Administrative Agent.

 

“ Issuing Lender Fees ” has the meaning set forth in Section 2.12(b)(iii) .

 

“ Judgment Currency ” has the meaning set forth in Section 2.16(b) .

 

“ Law ” means any international, foreign, Federal, state or local statute, treaty, rule, guideline, regulation, ordinance, code, or administrative or judicial precedent or authority, including the interpretation or administration thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof, and all applicable administrative orders, directed duties, requests, licenses, authorizations and permits of, and agreements with, any Governmental Authority, in each case whether or not having the force of law.

 

“ LC Commitment ” means the commitment of an Issuing Lender to issue Letters of Credit in an aggregate face amount at any one time outstanding (together with the amounts of any unreimbursed drawings thereon and all LC Commitments of other Issuing Lenders) of up to the LC Committed Amount.

 

“ LC Committed Amount ” means $50,000,000.

 

“ LC Disbursement ” means a payment or disbursement made by an Issuing Lender pursuant to a Letter of Credit.

 

“ LC Documents ” means, with respect to any Letter of Credit, such Letter of Credit, any amendments thereto, any documents delivered in connection therewith, any application therefor and any agreements, instruments, guarantees or other documents (whether general in application or applicable only to such Letter of Credit) governing or providing for (i) the rights and obligations of the parties concerned or at risk or (ii) any collateral security for such obligations.

 

“ LC Obligations ” means at any time, the sum of (i) the maximum amount which is, or at any time thereafter may become, available to be drawn under Letters of Credit then outstanding, assuming compliance with all requirements for drawings referred to in such Letters of Credit plus (ii) the aggregate amount of all LC Disbursements not yet reimbursed by Carpenter as provided in Section 2.06(h) to the applicable Issuing Lender in respect of drawings under Letters of Credit, including any portion of any such obligation to which a Lender has become subrogated pursuant to Section 2.06(i) .

 

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“ Lender ” means each bank or other lending institution listed on Schedule 1.01A , each Eligible Assignee that becomes a Lender pursuant to Section 2.17 or Section 11.06(b) and their respective successors and shall include, as the context may require, each Issuing Lender and/or the Swingline Lender, in each case in such capacity.

 

“ Letter of Credit ” means an Existing Letter of Credit or an Additional Letter of Credit, and “ Letters of Credit ” means any combination of the foregoing.

 

“ Letter of Credit Fee ” has the meaning set forth in Section 2.12(b)(i) .

 

“ Letter of Credit Request ” has the meaning set forth in Section 2.06(c) .

 

“ LIBOR Market Index Rate ” means, for any date, the rate for one month Pounds Sterling deposits or Euros, as applicable, as reported on Telerate page 3750 as of 11:00 a.m. London time, on such day, or if such day is not a London business day, then the immediately preceding London business day (or if not so reported, then as determined by the Administrative Agent from another recognized source or interbank quotation).

 

“ LIBOR Market Index Rate Loan ” means any Swingline Loan denominated in Pounds Sterling or Euros bearing interest at a rate determined by reference to the LIBOR Market Index Rate.

 

“ Lien ” means, with respect to any asset, any mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or other), charge, or preference, priority or other security interest or preferential arrangement of any kind or nature whatsoever (including any conditional sale or other title retention agreement, any financing lease having substantially the same economic effect as any of the foregoing, and the filing of any financing statement under the Uniform Commercial Code or comparable Laws of any jurisdiction), including the interest of a purchaser of accounts receivable, chattel paper, payment intangibles or promissory notes; provided , however, such term does not mean the grant of a security interest created in connection with merchandise delivered to Carpenter or any of its Subsidiaries on consignment until such time as any such merchandise is taken out of consignment and sold to, used and consumed by Carpenter or any of its Subsidiaries in their manufacturing processes.

 

“ Loan ” means a Committed Loan or a Competitive Bid Loan, and “ Loans ” means Committed Loans or Competitive Bid Loans or both.

 

“ Loan Documents ” means this Agreement, each LC Document and the Notes, in each case as the same may be amended, restated, modified or supplemented from time to time.

 

“ Local Time ” shall mean the local time in effect at the applicable Administrative Agent’s Office.

 

“ Mandatory Cost ” means, with respect to Loans denominated in Alternative Currencies for any period, the percentage rate per annum determined in accordance with Schedule 1.01 .

 

“ Marketable Securities ” means the U.S. Government and Government-guaranteed agency securities, U.S. Government-sponsored agency obligations, corporate debt and other obligations

 

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permitted for investment by Carpenter and all of its wholly-owned Subsidiaries in the “Policy Guidelines for Short-Term Excess Cash Investments,” created September 3, 2003, and as amended on February 14, 2005, furnished by Carpenter to the Administrative Agent, as modified and amended from time to time and reasonably satisfactory to the Administrative Agent.

 

“ Material Adverse Effect ” means (i) any material adverse effect upon the business, operations, business, properties, condition (financial or otherwise) or prospects of Carpenter and its Consolidated Subsidiaries taken as a whole, (ii) a material impairment of the ability of the Borrowers taken as a whole to perform any of their obligations under the Loan Documents taken as a whole or (iii) a material impairment of the rights and benefits of the Lenders under any Loan Document, which materially impairs the rights or benefits of the Lenders under the Loan Documents, taken as a whole.

 

“ Maturity Date ” means August      , 2010 or, if any such day is not a Business Day for the relevant currency, the next preceding Business Day for such currency. Unless the context otherwise requires, references to the Maturity Date are to the Maturity Date determined by reference to Loans denominated in Dollars.

 

“ Moody’s ” means Moody’s Investors Service, Inc., a Delaware corporation, and its successors or, absent any such successor, such nationally recognized statistical rating organization as Carpenter and the Administrative Agent may select.

 

“ Multiemployer Plan ” means any employee benefit plan of the type described in Section 4001(a)(3) of ERISA to which Carpenter or any ERISA Affiliate makes or is obligated to make contributions, or during the preceding three calendar years, has made or been obligated to make contributions.

 

“ National Currency Unit ” means a fraction or multiple of one Euro Unit expressed in units of the former national currency of a Participating Member State.

 

“ Note ” means a Revolving Note, a Competitive Bid Note or a Swingline Note and “ Notes ” means all of them, collectively.

 

“ Notice of Borrowing ” means a Notice of Syndicated Borrowing or a Notice of Competitive Bid Borrowing.

 

“ Notice of Competitive Bid Borrowing ” has the meaning set forth in Section 2.03(f) .

 

“ Notice of Extension/Conversion ” has the meaning set forth in Section 2.08 .

 

“ Notice of Syndicated Borrowing ” has the meaning set forth in Section 2.02(a) .

 

“ Obligations ” means, without duplication, all of the following whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising:

 

(a) all principal of and interest (including, without limitation, any interest or fees which accrues after the commencement of any Bankruptcy Event, whether or not allowed or

 

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allowable as a claim under any applicable Debtor Relief Law) on any Loan or LC Obligation under, or any Note issued pursuant to, this Agreement or any other Loan Document;

 

(b) all fees, expenses, indemnification obligations, foreign currency exchange obligations and other amounts of whatever nature now or hereafter payable by the Borrowers (including, without limitation, any amounts which accrue after the commencement of any Bankruptcy Event, whether or not allowed or allowable as a claim under any applicable Debtor Relief Law) pursuant to this Agreement or any other Loan Document;

 

(c) all expenses of the Administrative Agent to which it has a right to reimbursement under Section 11.04 of this Agreement;

 

(d) all Indemnified Liabilities and other amounts paid by any Indemnitee as to which such Indemnitee has the right to payment or reimbursement under Section 11.05 of this Agreement or under any other similar provision of any other Loan Document; and

 

(e) in the case of Carpenter pursuant to the provisions of Article X , all amounts now or hereafter payable by Carpenter and all other obligations or liabilities now existing or hereafter arising or incurred (including, without limitation, any amounts which accrue after the commencement of any Bankruptcy Event with respect to any Borrower, whether or not allowed or allowable as a claim under any applicable Debtor Relief Law) on the part of Carpenter pursuant to the provisions of Article X ;

 

together in each case with all renewals, modifications, consolidations or extensions thereof.

 

“ OFAC ” means the U.S. Department of the Treasury’s Office of Foreign Assets Control, and any successor thereto.

 

“ Organization Documents ” means: (i) with respect to any corporation, the certificate or articles of incorporation and the bylaws; (ii) with respect to any limited liability company, the articles of formation and operating agreement; and (iii) with respect to any partnership, joint venture, trust or other form of business entity, the partnership, joint venture or other applicable agreement of formation and any agreement, instrument, filing or notice with respect thereto filed in connection with its formation with the secretary of state or other department in the state of its formation, in each case as amended from time to time.

 

“ Other Taxes ” has the meaning set forth in Section 3.01(b) .

 

“ Participation Interest ” means a Credit Extension by a Lender by way of a purchase of a participation interest in Letters of Credit or LC Obligations as provided in Section 2.06(a) or Section 2.06(e) , in Swingline Loans as provided in Section 2.01(b)(vi) or in any Loans as provided in Section 2.14 .

 

“ Participating Member State ” shall mean each country so described in any EMU Legislation.

 

“ PATRIOT Act ” means the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT Act of 2001),

 

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as amended from time to time, and any successor statute, and all rules and regulations from time to time promulgated thereunder.

 

“ PBGC ” means the Pension Benefit Guaranty Corporation established pursuant to Subtitle A of Title IV of ERISA or any entity succeeding to any or all of its functions under ERISA.

 

“ Pension Plan ” means an “ employee pension benefit plan ” (as such term is defined in Section 3(2) of ERISA), other than a Multiemployer Plan, that is subject to Title IV of ERISA and is sponsored or maintained by Carpenter or any ERISA Affiliate or to which Carpenter or any ERISA Affiliate contributes or has an obligation to contribute, in which in the case of a multiple employer plan (as described in Section 4064(a) of ERISA) has made contributions at any time during the immediately preceding five plan years.

 

“ Permit ” means any license, permit, franchise, right or privilege, certificate of authority or order, or any waiver of the foregoing, issued or issuable by any Governmental Authority.

 

“ Permitted Lien ” has the meaning set forth in Section 7.02 .

 

“ Person ” means an individual, a corporation, a partnership, an association, a limited liability company, a trust or an unincorporated association or any other entity or organization, including a government or political subdivision or an agency or instrumentality thereof.

 

“ Preferred Stock ” means, as applied to the Equity Interests of a Person, Equity Interests of any class or classes (however designated) which is preferred as to the payment of dividends or distributions, or as to the distribution of assets upon any voluntary or involuntary liquidation or dissolution of such Person, over the Equity Interests of any other class of such Person.

 

“ Prime Rate ” means for any day the rate of interest publicly announced by Wachovia in Charlotte, North Carolina (or such other principal office of the Administrative Agent as communicated in writing to Carpenter and the Lenders) from time to time as its Prime Rate for Dollars loaned in the United States. It is a rate set by Wachovia based upon a variety of factors, including Wachovia’s costs and desired return, general economic conditions and other factors, and is used as a reference point for pricing some loans, which may be priced at, above or below such announced rate. Any change in the interest rate resulting from a change in the Prime Rate shall take effect at the opening of business on the day specified in the public announcement of such change.

 

“ Purchase Money Indebtedness ” means Indebtedness of Carpenter or any Subsidiary incurred for the purpose of financing all or any part of the purchase price or cost of construction or improvement of property used in the business of Carpenter or such Subsidiary; provided that such Indebtedness is incurred within 90 days after such property is acquired or, in the case of improvements, constructed.

 

“ Refunded Swingline Loan ” has the meaning set forth in Section 2.01(b)(iii) .

 

“ Register ” has the meaning set forth in Section 11.06(d) .

 

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“ Regulation D, T, U or X ” means Regulation D, T, U or X, respectively, of the Board as amended, or any successor regulation, in each case together with all interpretations of staff opinions issued in connection therewith.

 

“ Replacement Date ” has the meaning set forth in Section 2.11(c) .

 

“ Reportable Event ” means any of the events set forth in Section 4043 of ERISA, other than events for which the 30–day notice period has been waived.

 

“ Required Lenders ” means Revolving Lenders whose aggregate Credit Exposure (as hereinafter defined) constitutes more than 50% of the Credit Exposure of all Revolving Lenders at such time; provided , however , that if any Lender shall be a Defaulting Lender at such time then there shall be excluded from the determination of Required Lenders such Lender and the aggregate principal Dollar Amount of Credit Exposure of such Lender at such time. For purposes of the preceding sentence, the term “ Credit Exposure ” as applied to each Lender shall mean (i) at any time prior to the termination of the Commitments, the Revolving Commitment Percentage of such Lender multiplied by the Revolving Committed Amount, and (ii) at any time after the termination of the Commitments, the sum of (A) the Dollar Amount of the outstanding Revolving Loans of such Lender plus (B) the Dollar Amount such Lender’s Participation Interests in all LC Obligations and Swingline Loans.

 

“ Reset Date ” has the meaning set forth in Section 1.05 .

 

“ Responsible Officer ” means the president, chief executive officer, chief financial officer, treasurer or assistant treasurer of Carpenter. Any document delivered hereunder that is signed by a Responsible Officer of Carpenter shall be conclusively presumed to have been authorized by all necessary corporate, partnership and/or other action on the part of Carpenter and such Responsible Officer shall be conclusively presumed to have acted on behalf of Carpenter.

 

“ Restricted Payment ” means (i) any dividend or other distribution, direct or indirect, on account of any shares of any class of Equity Interests or Equity Equivalents of Carpenter or any Subsidiary, now or hereafter outstanding, (ii) any redemption, retirement, sinking fund or similar payment, purchase or other acquisition for value, direct or indirect, of any shares of any class of Equity Interests or Equity Equivalents of Carpenter or any Subsidiary, now or hereafter outstanding or (iii) any payment made to retire, or to obtain the surrender of, any Equity Interests or Equity Equivalents of Carpenter or any Subsidiary now or hereafter outstanding.

 

“ Revolving Borrowing ” means a Syndicated Borrowing comprised of Revolving Loans and identified as such in the Notice of Borrowing with respect thereto.

 

“ Revolving Commitment ” means, with respect to any Lender, the commitment of such Lender, in an aggregate principal amount at any time outstanding of up to such Lender’s Revolving Commitment Percentage of the Revolving Committed Amount, (i) to make Revolving Loans in accordance with the provisions of Section 2.01(a) , (ii) to purchase Participation Interests in Swingline Loans in accordance with the provisions of Section 2.01(b) and (iii) to purchase Participation Interests in Letters of Credit in accordance with the provisions of Section 2.06(d) .

 

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“ Revolving Committed Amount ” means $150,000,000 or such other amount to which the Revolving Committed Amount may be increased or reduced pursuant to the terms hereof.

 

“ Revolving Commitment Percentage ” means, for each Lender, the percentage identified as its Revolving Commitment Percentage on Schedule 1.01A hereto, as such percentage may be modified in connection with any assignment made in accordance with the provisions of Section 2.17 or Section 11.06(b) .

 

“ Revolving Lender ” means each Lender identified in the Schedule 1.01A as having a Revolving Commitment and each Eligible Assignee which acquires a Revolving Commitment or Revolving Loan pursuant to Section 2.17 or Section 11.06(b) and their respective successors.

 

“ Revolving Loan ” means a Committed Loan made under Section 2.01(a) .

 

“ Revolving Note ” means a promissory note, substantially in the form of Exhibit B–1 hereto, evidencing the obligation of the applicable Borrower to repay outstanding Revolving Loans made by such Borrower, as such Note may be amended, modified, supplemented, extended, renewed or replaced from time to time.

 

“ Revolving Outstandings ” means at any date the Dollar Amount of the aggregate outstanding principal amount of all Revolving Loans and Swingline Loans plus the aggregate outstanding Dollar Amount of all LC Obligations.

 

“ Sale/Leaseback Transaction ” means any direct or indirect arrangement with any Person or to which any such Person is a party providing for the leasing to Carpenter or any of its Subsidiaries of any property, whether owned by Carpenter or any of its Subsidiaries as of the Closing Date or later acquired, which has been or is to be sold or transferred by Carpenter or any of its Subsidiaries to such Person or to any other Person from whom funds have been, or are to be, advanced by such Person on the security of such property.

 

“ Sanctioned Country ” shall mean a country subject to a sanctions program identified on the list maintained by OFAC and available at http://www.treas.gov/offices/eotffc/ofac/sanctions/index/html, or as otherwise published from time to time.

 

“ Sanctioned Person ” means (i) a Person named on the list of Specially Designated Nationals or Blocked Persons maintained by OFAC available at http://www.treas.gov/offices/eotffc/ofac/sdn/index/html, or as otherwise published from time to time, or (ii) (A) an agency of the government of a Sanctioned Country, (B) an organization controlled by a Sanctioned Country, or (C) a Person resident in a Sanctioned Country, to the extent subject to a sanctions program administered by OFAC.

 

“ S&P ” means Standard & Poor’s Ratings Group, a division of McGraw Hill, Inc., a New York corporation, and its successor or, absent any such successor, such nationally recognized statistical rating organization as Carpenter and the Administrative Agent may select.

 

“ Securities Act ” means the Securities Act of 1933, as amended, and any successor statute thereto, together with the rules and regulations promulgated thereunder.

 

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“ SPC ” has the meaning set forth in Section 11.06(h) .

 

“ Spot Rate ” shall mean, with respect to any Alternative Currency, the rate quoted by Wachovia as the spot rate for the purchase by Wachovia of such Alternative Currency with Dollars through its principal foreign exchange trading office at approximately 11:00 a.m. on the date two (2) Business Days prior to the date as of which the foreign exchange computation is made.

 

“ Standby Letter of Credit ” has the meaning set forth in Section 2.06(b) .

 

“ Subsidiary ” means with respect to any Person any corporation, partnership, limited liability company, association or other business entity of which (i) if a corporation, more than 50% of the total voting power of stock entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof is at the time owned or controlled, directly or indirectly, by that Person or one or more of the other Subsidiaries of that Person or a combination thereof, or (ii) if a partnership, limited liability company, association or business entity other than a corporation, more than 50% of the partnership or other similar ownership interests thereof is at the time owned or controlled, directly or indirectly, by that Person or one or more Subsidiaries of that Person or a combination thereof. For purposes hereof, a Person or Persons shall be deemed to have more than 50% ownership interest in a partnership, limited liability company, association or other business entity if such Person or Persons shall be allocated more than 50% of partnership, association or other business entity gains or losses or shall be or control the managing director, manager or a general partner of such partnership, association or other business entity.

 

“ Subsidiary Borrower ” has the meaning set forth in Section 2.18 .

 

“ Swingline Commitment ” means the agreement of the Swingline Lender to make Loans pursuant to Section 2.01(b) .

 

“ Swingline Committed Amount ” means $24,000,000.

 

“ Swingline Lender ” means Wachovia, in its capacity as the Swingline Lender under Section 2.01(b) , and its successor or successors in such capacity.

 

“ Swingline Loan ” means a Base Rate Loan made by the Swingline Lender in Dollars or any Available Alternative Currency pursuant to Section 2.01(b) , and “ Swingline Loans ” means any two or more of such Base Rate Loans.

 

“ Swingline Loan Request ” has the meaning set forth in Section 2.02(b) .

 

“ Swingline Note ” means a promissory note, substantially in the form of Exhibit B–3 hereto, evidencing the obligation of the Borrowers to repay outstanding Swingline Loans, as such Note may be amended, modified, supplemented, extended, renewed or replaced from time to time.

 

“ Swingline Termination Date ” means the earlier of (i) fifth Business Day prior to the Maturity Date (or, if such day is not a Business Day, the next preceding Business Day) or such

 

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earlier date upon which the Revolving Commitments shall have been terminated in their entirety in accordance with this Agreement and (ii) the date on which the Swingline Commitment is terminated in its entirety in accordance with the Agreement.

 

“ Syndicated Loan ” means a Committed Loan made by a Lender pursuant to Section 2.01(a) ; provided that if any such Loan or Loans (or portions thereof) are combined or subdivided pursuant to a Notice of Extension/Conversion, the term “ Syndicated Loan ” shall refer to the combined principal amount resulting from such combination or to each of the separate principal amounts resulting from such subdivision, as the case may be.

 

“ Synthetic Lease Obligation ” means the monetary obligation of a Person under (i) a so–called synthetic, off–balance sheet or tax retention lease or (ii) an agreement for the use or possession of property creating obligations that do not appear on the balance sheet of such Person but which, upon the insolvency or bankruptcy of such Person, would be characterized as the indebtedness of such person (without regard to accounting treatment).

 

“ Taxes ” has the meaning set forth in Section 3.01 .

 

“ Trade Letter of Credit ” has the meaning set forth in Section 2.06(b) .

 

“ Type ” has the meaning set forth in Section 1.04 .

 

“ UCP ” has the meaning set forth in Section 2.06(n) .

 

“ Unfunded Pension Liability ” means at any date the excess of a Pension Plan’s benefit liabilities under Section 4001(a)(16) of ERISA, over the current value of that Pension Plan’s assets, determined in accordance with the assumptions used for funding the Pension Plan pursuant to Section 412 of the Code for the applicable plan year.

 

“ United States ” means the United States of America, including the states and the District of Columbia, but excluding its territories and possessions.

 

“ Utilization Fee ” has the meaning set forth in Section 2.12(c) .

 

“ Wachovia ” means Wachovia Bank, National Association, and its successors and assigns.

 

“ Wholly–Owned Subsidiary ” means, with respect to any Person at any date, any Subsidiary of such Person all of the shares of capital stock or other ownership interests of which (except directors’ qualifying shares) are at the time directly or indirectly owned by such Person.

 

Section 1.02 Computation of Time Periods and Other Definitional Provisions . For purposes of computation of periods of time hereunder, the word “from” means “from and including” and the words “to” and “until” each mean “to but excluding”. All references to time herein shall be references to Eastern Standard Time or Eastern Daylight Time, as the case may be, unless specified otherwise. References in this Agreement to Articles, Sections, Schedules, Appendices or Exhibits shall be to Articles, Sections, Schedules, Appendices or Exhibits of or to

 

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this Agreement unless otherwise specifically provided. The definitions in Section 1.01 shall apply equally to both the singular and plural forms of the terms defined.

 

Section 1.03 Accounting Terms and Determinations . Except as otherwise expressly provided herein, all accounting terms used herein shall be interpreted, and all financial statements and certificates and reports as to financial matters required to be delivered to the Lenders hereunder shall be prepared, in accordance with GAAP applied on a consistent basis. All financial statements delivered to the Lenders hereunder shall be accompanied by a statement from Carpenter that GAAP has not changed since the most recent financial statements delivered by Carpenter to the Lenders or, if GAAP has changed, describing such changes in detail and explaining how such changes affect the financial statements. All calculations made for the purposes of determining compliance with this Agreement shall (except as otherwise expressly provided herein) be made by application of GAAP applied on a basis consistent with the most recent annual or quarterly financial statements delivered pursuant to Section 6.01 (or, prior to the delivery of the first financial statements pursuant to Section 6.01 , consistent with the financial statements described in Section 5.05(a)) .

 

Section 1.04 Classes and Types of Borrowings . The term “ Borrowing ” denotes the aggregation of Loans of one or more Lenders to be made to the Borrowers pursuant to Article II on the same date, all of which Loans are of the same Class, Type (subject to Article III) , currency and, except in the case of Base Rate Loans, have the same initial Interest Period. Loans hereunder are distinguished by “Class” and “Type”. The “ Class ” of a Loan (or of a Commitment to make such a Loan or of a Borrowing comprised of such Loans) refers to whether such Loan is a Committed Loan (Syndicated or Swingline) or a Competitive Bid Loan. The “ Type ” of a Loan refers in the case of Committed Loans, to whether such Loan is a Base Rate Loan, LIBOR Market Index Rate Loan or a Eurocurrency Loan (Eurodollar or Alternative Currency). Identification of a Loan (or a Borrowing) by both Class and Type (e.g., a “Committed Eurocurrency Loan”) indicates that such Loan is a Loan of both such Class and such Type (e.g., both a Committed Loan and a Eurocurrency Loan) or that such Borrowing is comprised of such Loans. In addition, Borrowings are classified by reference to the provisions of Article II under which participation therein is determined (i.e., a “Committed Borrowing” is a Syndicated Borrowing under Section 2.01(a) in which all Lenders participate in proportion to their Commitments or a Swingline Borrowing under Section 2.01(b) funded by the Swingline Lender, while a “Competitive Bid Borrowing” is a Borrowing under Section 2.03 in which the Lender participants are determined on the basis of their respective bids in accordance therewith).

 

Section 1.05 Spot Rates . On each Calculation Date, the Administrative Agent shall determine the applicable Spot Rates as of such Calculation Date used for calculating relevant Dollar Amounts. The Spot Rates so determined shall become effective on the relevant Calculation Date (a “ Reset Date ”), shall remain effective until the next succeeding Reset Date and shall for all purposes of this Agreement (other than provisions expressly requiring the use of a current Spot Rate) be the Spot Rates employed in converting any amounts between Dollars and currencies other than Dollars. Whenever in this Agreement in connection with a Borrowing, conversion or continuation of a Loan or the issuance or extension of a Letter of Credit, an amount, such as a required minimum or multiple amount, is expressed in Dollars, but such Borrowing, Loan or Letter of Credit is denominated in a currency other than Dollars, such amount shall be the relevant equivalent in such currency of such Dollar Amount (rounded to the

 

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nearest 1,000th unit of such currency), as determined by the Administrative Agent. Determinations by the Administrative Agent pursuant to this Section shall be conclusive absent manifest error.

 

Section 1.06 Redenomination of Certain Foreign Currencies .

 

(a) Each obligation of the Borrowers to make a payment denominated in the national currency unit of any member state of the European Union that adopts the Euro as its lawful currency after the date hereof shall be redenominated into Euros at the time of such adoption (in accordance with the EMU Legislation). If, in relation to the currency of any such member state, the basis of accrual of interest expressed in this Agreement in respect of that currency shall be inconsistent with any convention or practice in the London interbank market for the basis of accrual of interest in respect of the Euro, such expressed basis shall be replaced by such convention or practice with effect from the date on which such member state adopts the Euro as its lawful currency; provided that if any Borrowing in the currency of such member state is outstanding immediately prior to such date, such replacement shall take effect, with respect to such Borrowing, at the end of the then current Interest Period.

 

(b) Without prejudice and in addition to any method of conversion or rounding prescribed by any EMU Legislation and without limiting the liability of the Borrowers for any amount due under this Agreement or any other Loan Document, all references in this Agreement to minimum amounts (or integral multiples thereof) denominated in the national currency unit of any member state of the European Economic and Monetary Union that adopts the Euro as its lawful currency after the date hereof shall, immediately upon such adoption, be replaced by references to such reasonably comparable and convenient amounts (or integral multiples hereof) in the Euro as the Administrative Agent may specify.

 

(c) Each provision of this Agreement shall be subject to such reasonable changes of construction as the Administrative Agent may from time to time specify to be appropriate to reflect the adoption of the Euro by any member state of the European Union and any relevant market conventions or practices relating to the Euro.

 

ARTICLE II

 

THE CREDIT FACILITIES

 

Section 2.01 Commitments to Lend .

 

(a) Syndicated Loans . Each Revolving Lender severally agrees, on the terms and conditions set forth in this Agreement, to make Revolving Loans denominated in Dollars or Available Alternative Currencies to the Borrowers pursuant to this Section 2.01(a) from time to time prior to the Maturity Date in amounts such that the aggregate Dollar Amount of its Revolving Outstandings shall not exceed (after giving effect to all Revolving Loans repaid, all reimbursements of LC Disbursements made, and all Refunded Swingline Loans paid, concurrently with the making of any Revolving Loans) its Revolving Commitment; provided that, immediately after giving effect to each such Revolving Loan, the aggregate Dollar Amount of the Revolving Outstandings shall not exceed the aggregate amount of the Revolving Commitments. Each Revolving Borrowing (other than a Borrowing to be used to repay

 

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Refunded Swingline Loans which shall be in an aggregate amount equal to such Refunded Swingline Loans) shall be in an aggregate principal Dollar Amount of $2,000,000 or any larger multiple of $1,000,000 (except that any such Borrowing may be in the aggregate amount of the unused Revolving Commitments) and shall be made from the several Revolving Lenders ratably in proportion to their respective Revolving Commitments. Within the foregoing limits, the Borrowers may borrow under this Section 2.01(a) , repay, or, to the extent permitted by Section 2.10 , prepay, Revolving Loans and reborrow under this Section 2.01(a) .

 

(b) Swingline Loans .

 

(i) The Swingline Lender agrees, on the terms and subject to the conditions set forth herein, to make a portion of the Revolving Commitments available to the Borrowers from time to time prior to the Swingline Termination Date by making Swingline Loans to the Borrowers in Dollars, Pounds Sterling or Euros (each such loan, a “ Swingline Loan ” and collectively, the “ Swingline Loans ”); provided that (i) the aggregate Dollar Amount of the Swingline Loans outstanding at any one time shall not exceed the Swingline Committed Amount, (ii) with regard to each Lender individually (other than the Swingline Lender in its capacity as such), the Dollar Amount of such Lender’s outstanding Revolving Loans plus its Participation Interests in outstanding Swingline Loans plus its Participation Interests in outstanding LC Obligations shall not at any time exceed such Lender’s Revolving Commitment Percentage of the Revolving Committed Amount, (iii) with regard to the Revolving Lenders collectively, the aggregate Dollar Amount of the Revolving Outstandings shall not exceed the Revolving Committed Amount and (iv) the Swingline Committed Amount shall not exceed the aggregate of the Revolving Commitments then in effect. Swingline Loans may be repaid and reborrowed in accordance with the provisions hereof prior to the Swingline Termination Date. Swingline Loans may be made notwithstanding the fact that such Swingline Loans, when aggregated with the Swingline Lender’s other Revolving Outstandings, exceeds its Revolving Commitment. The proceeds of a Swingline Borrowing may be used, in whole or in part, to refund any prior Swingline Borrowing.

 

(ii) The Dollar Amount of all Swingline Loans shall be due and payable on the earliest of (A) the maturity date agreed to by the Swingline Lender and the Borrowers with respect to such Swingline Loan, (B) the Swingline Termination Date, (C) the occurrence of a Bankruptcy Event with respect to any Borrower or (D) the acceleration of any Loan or the termination of the Revolving Commitments pursuant to Section 8.02 .

 

(iii) The Swingline Lender may, at any time in its sole discretion, by written notice to Carpenter and the Administrative Agent, demand repayment of its Swingline Loans by way of a Borrowing of Revolving Loans, and each such Lender hereby irrevocably agrees to make a Revolving Loan to the applicable Borrower (which shall be initially funded as a Base Rate Loan) in an amount equal to such Lender’s Revolving Commitment Percentage of the Dollar Amount of the Swingline Loans (“ Refunded Swingline Loans ”) outstanding on the date notice is given; provided that on the date on which any Refunded Swingline Loans that are made in Pounds Sterling or Euros are repaid with the proceeds of Revolving Loans made or deemed to be made by the Lenders (other than the Swingline Lender), any such Refunded Swingline Loans shall

 

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automatically be converted into Loans made in Dollars in which case the applicable Borrower shall be deemed to have requested Revolving Base Rate Loans in Dollars in the Dollar Amount of such Swingline Loans; provided , however , that in the event any Swingline Loans have not been paid by the applicable Borrower when due under clause (ii) above, any such demand for the repayment of Swingline Loans under this clause (iii) shall be deemed to have been given one Business Day prior to the occurrence of any event described in clause (ii) above. Upon such funding of Revolving Loans under this clause (iii) , Carpenter’s obligations to the Swingline Lender (in its capacity as a Swingline Lender, and not as Lender funding its Revolving Commitment Percentage of the Revolving Loans) in respect of the Refunded Swingline Loans shall be considered fully satisfied.

 

(iv) In the case of Revolving Loans made by Lenders other than the Swingline Lender under clause (iii) above, each such Revolving Lender shall make the Dollar Amount of its Revolving Loan available to the Administrative Agent, in Dollars in same day funds, at the Administrative Agent’s Office, not later than 2:00 P.M. on the Business Day next succeeding the date such notice is given. The proceeds of such Revolving Loans shall be immediately delivered to the Swingline Lender (and not to any Borrower) and applied to repay the Refunded Swingline Loans. On the day such Revolving Loans are made, the Swingline Lender’s Revolving Commitment Percentage of the Refunded Swingline Loans shall be deemed to be paid with the proceeds of a Revolving Loan made by the Swingline Lender and such portion of the Swingline Loans deemed to be so paid shall no longer be outstanding as Swingline Loans and shall instead be outstanding as Revolving Loans. Upon receipt by Carpenter of prior written notice from the Administrative Agent, Carpenter authorizes the Administrative Agent and the Swingline Lender to charge any Borrower’s account with the Administrative Agent (up to the amount available in such account) in order to pay immediately to the Swingline Lender the amount of such Refunded Swingline Loans to the extent amounts received from the Revolving Lenders, including amounts deemed to be received from the Swingline Lender, are not sufficient to repay in full such Refunded Swingline Loans. If any portion of any such amount paid (or deemed to be paid) to the Swingline Lender should be recovered by or on behalf of any Borrower from the Swingline Lender in bankruptcy, by assignment for the benefit of creditors or otherwise, the loss of the amount so recovered shall be ratably shared among all Revolving Lenders in the manner contemplated by Section 2.14 .

 

(v) A copy of each notice given by the Swingline Lender pursuant to this Section 2.01(b) shall be promptly delivered by the Swingline Lender to the Administrative Agent and the Borrower. Upon the making of a Revolving Loan by a Revolving Lender pursuant to this Section 2.01(b) , the amount so funded shall no longer be owed in respect of its Participation Interest in the related Refunded Swingline Loans.

 

(vi) If as a result of any Bankruptcy Event, Revolving Loans are not made pursuant to this Section 2.01(b) sufficient to repay any amounts owed to the Swingline Lender as a result of a nonpayment of outstanding Swingline Loans, each Revolving Lender agrees to purchase, and shall be deemed to have purchased, a participation in such outstanding Swingline Loans in an amount equal to its Revolving Commitment

 

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Percentage of the unpaid Dollar Amount together with accrued interest thereon. Upon one Business Day’s notice from the Swingline Lender, each Revolving Lender shall deliver to the Swingline Lender an amount in Dollars equal to its respective Participation Interest in such Swingline Loans in same day funds at the office of the Swingline Lender specified on Schedule 11.02 . In order to evidence such Participation Interest each Revolving Lender agrees to enter into a participation agreement at the request of the Swingline Lender in form and substance reasonably satisfactory to all parties. In the event any Revolving Lender fails to make available to the Swingline Lender the amount of such Revolving Lender’s Participation Interest as provided in this Section 2.01(b)(vi) , the Swingline Lender shall be entitled to recover such amount on demand from such Revolving Lender together with interest at the Federal Funds Rate for one Business Day and thereafter at the Base Rate plus the then Applicable Margin for Base Rate Loans.

 

(vii) Each Revolving Lender’s obligation to make Revolving Loans pursuant to clause (iii) above and to purchase Participation Interests in outstanding Swingline Loans pursuant to clause (vi) above shall be absolute and unconditional and shall not be affected by any circumstance, including (without limitation) (i) any set-off, counterclaim, recoupment, defense or other right which such Revolving Lender or any other Person may have against the Swingline Lender or any Borrower, (ii) the occurrence or continuance of a Default or an Event of Default or the termination or reduction in the amount of the Revolving Commitments after any such Swingline Loans were made, (iii) any adverse change in the condition (financial or otherwise) of any Borrower or any other Person, (iv) any breach of this Agreement or any other Loan Document by any Borrower or any other Lender, (v) whether any condition specified in Article IV is then satisfied or (vi) any other circumstance, happening or event whatsoever, whether or not similar to any of the forgoing. If such Lender does not pay such amount forthwith upon the Swingline Lender’s demand therefor, and until such time as such Lender makes the required payment, the Swingline Lender shall be deemed to continue to have outstanding Swingline Loans in the amount of such unpaid Participation Interest for all purposes of the Loan Documents other than those provisions requiring the other Lenders to purchase a participation therein. Further, such Lender shall be deemed to have assigned any and all payments made of principal and interest on its Loans, and any other amounts due to it hereunder to the Swingline Lender to fund Swingline Loans in the amount of the Participation Interest in Swingline Loans that such Lender failed to purchase pursuant to this Section 2.01(b)(vi) until such amount has been purchased (as a result of such assignment or otherwise).

 

Section 2.02 Notice of Committed Borrowings .

 

(a) Syndicated Borrowings . The applicable Borrower shall give the Administrative Agent notice of each Syndicated Borrowing substantially in the form of Exhibit A–1 hereto (a “ Notice of Syndicated Borrowing ”) (i) not later than 11:30 a.m., Local Time on the date of each Syndicated Base Rate Borrowing, (ii) not later than 11:00 a.m., Local Time on the third Business Day before each Syndicated Eurodollar Borrowing and (iii) not later than 11:00 a.m., Local Time on the fourth Business Day before each Syndicated Eurocurrency Borrowing in an Alternative Currency. Each such notice shall be irrevocable and shall specify:

 

(i) the name of the applicable Borrower;

 

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(ii) the date of such Borrowing, which shall be a Business Day for the relevant currency;

 

(iii) the currency, the aggregate amount (in the applicable currency) and the Dollar Amount, if applicable, of such Borrowing;

 

(iv) whether the Loans comprising such Borrowing are to bear interest initially at the Base Rate or the Eurocurrency Rate (it being understood that Alternative Currency Loans shall be made as Eurocurrency Loans only); and

 

(v) in the case of a Eurocurrency Borrowing, the duration of the initial Interest Period applicable thereto, subject to the provisions of the definition of Interest Period and to Section 2.07(a) .

 

(b) Swingline Borrowings . The applicable Borrower shall request a Swingline Loan by written notice (or telephone notice promptly confirmed in writing) substantially in the form of Exhibit A–5 hereto (a “ Swingline Loan Request ”) to the Swingline Lender and the Administrative Agent (and its Correspondent in respect of Swingline Loans denominated in an Alternative Currency) not later than 11:00 A.M. Local Time on the Business Day of the requested Swingline Loan. Each such notice shall be irrevocable and shall specify (A) that a Swingline Loan is requested, (B) the date of the requested Swingline Loan (which shall be a Business Day) and (C) the principal amount of the Swingline Loan requested. Each Swingline Loan denominated in Dollars shall be made as a Base Rate Loan, and each Swingline Loan denominated in Pounds Sterling or Euros shall be made as a LIBOR Market Index Rate Loan and, in each case, subject to Section 2.01(b)(ii) , shall have such maturity date as agreed to by the Swingline Lender and Carpenter upon receipt by the Swingline Lender of the Swingline Loan Request from Carpenter.

 

Section 2.03 Competitive Bid Borrowings .

 

(a) Competitive Bid Option . In addition to Committed Borrowings pursuant to Section 2.01 , Carpenter may, as set forth in this Section 2.03 , request the Lenders to make offers to make Competitive Bid Loans in Dollars or Available Alternative Currencies to Carpenter from time to time prior to the Maturity Date. The Lenders may, but shall have no obligation to, make such offers and Carpenter may, but shall have no obligation to, accept any such offers in the manner set forth in this Section. After giving effect to any Borrowing of Competitive Bid Loans, (i)(A) the aggregate Revolving Outstandings plus the aggregate Dollar Amount of all Competitive Bid Loans shall not exceed the aggregate amount of the Revolving Commitments and (B) the aggregate Dollar Amount of all Competitive Bid Loans shall not exceed the Competitive Bid Loan Sublimit and (ii) there shall not be more than six different Interest Periods in effect with respect to Competitive Bid Loans at any time.

 

(b) Competitive Bid Quote Request . When Carpenter wishes to request offers to make Competitive Bid Loans under this Section, it shall transmit to the Administrative Agent by telephone call followed promptly by facsimile transmission a request substantially in the form of Exhibit A–2 hereto (a “ Competitive Bid Quote Request ”) so as to be received by the

 

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Administrative Agent at the Administrative Agent’s Office not later than 12:00 Noon on the Business Day next preceding the date of Borrowing proposed therein or such other time or date as Carpenter and the Administrative Agent shall have mutually agreed and shall have notified to the Lenders not later than the date of the Competitive Bid Quote Request for the first Competitive Bid Auction for which such change is to be effective. Each such Competitive Bid Quote Request shall specify:

 

(i) the proposed date of Borrowing, which shall be a Business Day;

 

(ii) the proposed currency, the aggregate amount (in such currency) and the Dollar Amount, if applicable, of such Borrowing, which shall be $2,000,000 in aggregate Dollar Amount (or any larger multiple of $1,000,000);

 

(iii) whether Carpenter is requesting a Eurocurrency Rate Competitive Bid Loan or an Absolute Rate Competitive Bid Loan; and

 

(iv) the duration of the Interest Period applicable thereto, subject to the provisions of the definition of Interest Period.

 

Carpenter may request offers to make Competitive Bid Loans for more than one Interest Period in a single Competitive Bid Quote Request. No more than two Competitive Bid Quote Requests shall be given within five Business Days for the applicable currency (or such other number of days as Carpenter and the Administrative Agent may agree) of any other Competitive Bid Quote Request for a Borrowing in the same currency.

 

(c) Delivery of Competitive Bids Quote Requests . The Administrative Agent shall promptly notify each Revolving Lender of each Competitive Bid Quote Request received by it from Carpenter and the contents of such Competitive Bid Quote Requests, which notice shall constitute an invitation by Carpenter to each Revolving Lender to submit Competitive Bids offering to make the Competitive Bid Loans to which such Competitive Bid Quote Request relates in accordance with this Section 2.03 .

 

(d) Submission and Contents of Competitive Bids . Each Lender may submit a competitive bid (a “ Competitive Bid ”) containing an offer or offers to make Competitive Bid Loans in response to any invitation for Competitive Bids. Each Competitive Bid must comply with the requirements of this Section 2.03(d) and must be submitted to the Administrative Agent by facsimile at the Administrative Agent’s office not later than 10:30 A.M. on the proposed date of Borrowing, in the case of an Absolute Rate Auction, or on a Business Day five Business Days prior to the date of a requested Eurocurrency Rate Competitive Bid Loan to be made in an Available Alternative Currency, or on a Business Day four Business Days prior to the date of a requested Eurocurrency Rate Competitive Bid Loan consisting of Dollar Denominated Loans; provided that Competitive Bids submitted by the Administrative Agent (or any Affiliate of the Administrative Agent) in the capacity of a Lender may be submitted, and may only be submitted, if the Administrative Agent or such Affiliate notifies Carpenter of the terms of the offer or offers contained therein not later than 15 minutes before the deadline for the other Lenders for a Competitive Bid Auction. Subject to Articles III and IV , any Competitive Bid so made shall not

 

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be revocable except with the written consent of the Administrative Agent given on the instructions of Carpenter.

 

(i) Each Competitive Bid shall be substantially in the form of Exhibit A–3 hereto and shall in any case specify:

 

(A) the proposed date of Borrowing;

 

(B) the principal amount (in the relevant currency) of the Competitive Bid Loan for which each such offer is being made, which principal amount (w) may be greater than or less than the Commitment of the quoting Lender, (x) must be in the Dollar Amount of $2,000,000 (or any larger multiple of $1,000,000), (y) may not exceed the principal amount of Competitive Bid Loans for which offers were requested and (z) may be subject to an aggregate limitation as to the principal amount of Competitive Bid Loans for which offers being made by such quoting Lender may be accepted;

 

(C) if an Absolute Rate Auction, the rate of interest per annum (specified to the nearest 1/1,000th of 1%) (the “ Competitive Bid Absolute Rate ”) offered for such Absolute Rate Competitive Bid Loan;

 

(D) if an Eurocurrency Rate Auction, the Eurocurrency Bid Margin with respect to such Eurocurrency Rate Competitive Bid Loan and the Interest Period applicable thereto; and

 

(E) the identity of the quoting Lender.

 

A Competitive Bid may set forth up to three separate offers by the quoting Lender with respect to each Interest Period specified in the related invitation for Competitive Bids.

 

(ii) Any Competitive Bid shall be disregarded if it:

 

(A) is not substantially in conformity with Exhibit A–3 hereto or does not specify all of the information required by Section 2.03(d)(i) above;

 

(B) contains qualifying, conditional or similar language;

 

(C) proposes terms other than or in addition to those set forth in the applicable invitation for Competitive Bids; or

 

(D) arrives after the time set forth in Section 2.03(d)(i) .

 

(e) Notice to Carpenter . The Administrative Agent shall promptly notify Carpenter of the terms of (i) any Competitive Bid submitted by a Lender that is in accordance with Section 2.03(d) and (ii) any Competitive Bid that amends, modifies or is otherwise inconsistent with a previous Competitive Bid submitted by such Lender with respect to the same Competitive Bid Quote Request. Any such subsequent Competitive Bid shall be disregarded by the Administrative Agent unless such subsequent Competitive Bid is submitted solely to correct a

 

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manifest error in such former Competitive Bid. The Administrative Agent’s notice to Carpenter shall specify (A) the aggregate principal amount of Competitive Bid Loans for which offers have been received for each Interest Period specified in the related Competitive Bid Quote Request, (B) the principal amounts and the Competitive Bid Absolute Rates or Eurocurrency Bid Margins and Interest Periods applicable thereto so offered and (C) if applicable, limitations on the aggregate principal amount of Competitive Bid Loans for which offers in any single Competitive Bid may be accepted.

 

(f) Acceptance and Notice by Carpenter . Carpenter shall notify the Administrative Agent of its acceptance or non–acceptance of the offers notified to it pursuant to Section 2.03(e) at the Administrative Agent’s Office not later than 12:00 Noon on the proposed date of Borrowing for an Absolute Rate Auction, or four Business Days prior to the requested date of Borrowing for a Eurocurrency Rate Auction consisting of Alternative Currency Loans and three Business Days prior to the requested date of Borrowing for an Eurocurrency Rate Auction consisting of Dollar-Denominated Loans. In the case of acceptance, such notice (a “ Notice of Competitive Bid Borrowing ”) shall specify the aggregate principal amount of offers for each Interest Period that are accepted. Carpenter may accept any Competitive Bid in whole or in part; provided , that:

 

(i) the aggregate principal amount of each Competitive Bid Borrowing may not exceed the applicable amount set forth in the related Competitive Bid Quote Request;

 

(ii) the aggregate Dollar Amount of each Competitive Bid Borrowing must be in the amount of $2,000,000 (or any larger multiple of $1,000,000);

 

(iii) acceptance of offers may only be made on the basis of ascending Competitive Bid Absolute Rates or Eurocurrency Bid Margins; and

 

(iv) Carpenter may not accept any offer that is described in Section 2.03(d)(ii) or that otherwise fails to comply with the requirements of this Agreement.

 

(g) Allocation by Administrative Agent . If offers are made by two or more Lenders with the same Competitive Bid Absolute Rates or Eurocurrency Bid Margins, as the case may be, for a greater aggregate principal amount than the amount in respect of which such offers are accepted for the related Interest Period, the principal amount of Competitive Bid Loans in respect of which such offers are accepted shall be allocated by the Administrative Agent among such Lenders as nearly as possible in proportion to the aggregate principal amounts of such offers. Determinations by the Administrative Agent of the amounts of Competitive Bid Loans shall be conclusive in the absence of manifest error. After each Competitive Bid Auction pursuant to this Section 2.03 , the Administrative Agent shall notify each Lender that submitted a Competitive Bid in such auction of the range of bids submitted (without the bidder’s name) and accepted for each Competitive Bid Loan and the aggregate Dollar Amount of each Competitive Bid Borrowing resulting from such auction.

 

(h) Notice of Eurocurrency Rate . For any Eurocurrency Rate Auction, the Administrative Agent shall determine the Eurocurrency Rate for the relevant Interest Period, and

 

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promptly after making such determination, shall notify Carpenter and the Lenders that will be participating in such Competitive Bid Borrowing of such Eurocurrency Rate.

 

Section 2.04 Notice to Lenders; Funding of Loans .

 

(a) Notice to Lenders . Upon receipt of a Notice of Borrowing, the Administrative Agent shall promptly notify each Lender of such Lender’s ratable share (if any) of the Borrowing referred to therein, and such Notice of Borrowing shall not thereafter be revocable by the Borrower.

 

(b) Funding of Loans .

 

(i) On the date of each Borrowing, each Lender participating therein shall: (i) if such Borrowing is to be made in Dollars, make available its share of such Borrowing in Dollars not later than 2:00 P.M., Local Time, in Federal or other funds immediately available, to the Administrative Agent at the applicable Administrative Agent’s Office; or (ii) if such Borrowing is to be made in an Alternative Currency, make available to the Administrative Agent not later than 1:00 P.M., Local Time at the applicable Administrative Agent’s Office an amount, in the applicable currency and in immediately available funds, equal to its share of such Borrowing. Upon satisfaction of the applicable conditions specified in Article IV , the Administrative Agent will make the funds so received from the Lenders available to the applicable Borrower at the applicable Administrative Agent’s Office; provided , however , that if on the date of any Syndicated Borrowing there are outstanding Swingline Loans or LC Disbursements, then the funds so received shall be applied, first , to the payment of such LC Disbursements, second , to the repayment of such Swingline Loans and third , to the applicable Borrower as provided above.

 

(ii) On the date of each Swingline Borrowing, the Swingline Lender shall, unless the Administrative Agent shall have notified the Swingline Lender that any applicable condition specified in Article IV has not been satisfied, make available the amount of such Swingline Borrowing, in same day funds in the currency requested by the applicable Borrower, to such Borrower at the applicable Administrative Agent’s Office.

 

(c) Funding by the Administrative Agent in Anticipation of Amounts Due from the Lenders . Unless the Administrative Agent shall have received notice from a Lender prior to the date of any Borrowing (except in the case of a Base Rate Borrowing, in which case prior to the time of such Borrowing) that such Lender will not make available to the Administrative Agent such Lender’s share of such Borrowing, the Administrative Agent may assume that such Lender has made such share available to the Administrative Agent on the date of such Borrowing in accordance with Section 2.04(b) above, and the Administrative Agent or its Correspondent may, in reliance upon such assumption, make available to the applicable Borrower on such date a corresponding amount. If and to the extent that such Lender shall not have so made such share available to the Administrative Agent, such Lender and the Borrowers severally agree to repay to the Administrative Agent forthwith on demand such corresponding amount, together with interest thereon for each day from the date such amount is made available to the applicable Borrower until the date such amount is repaid to the Administrative Agent at (i) a rate per annum

 

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equal to the higher of the Federal Funds Rate (if such Borrowing is in Dollars) or the rate then applicable to such Loan in accordance with Section 2.07 , in the case of such Borrower, and (ii) the Federal Funds Rate (if such Borrowing is in Dollars) or the Applicable Interbank Offered Rate (if such Borrowing is in an Alternative Currency), in the case of such Lender. If such Lender shall repay to the Administrative Agent such corresponding amount, such amount so repaid shall constitute such Lender’s Loan included in such Borrowing for purposes of this Agreement.

 

(d) Obligations of Lenders Several . The failure of any Lender to make a Loan required to be made by it as part of any Borrowing hereunder shall not relieve any other Lender of its obligation, if any, hereunder to make any Loan on the date of such Borrowing, but no Lender shall be responsible for the failure of any other Lender to make the Loan to be made by such other Lender on such date of Borrowing.

 

(e) Failed Loans . If any Lender shall fail to make any Loan (a “ Failed Loan ”) which such Lender is otherwise obligated hereunder to make to the applicable Borrower on the date of Borrowing thereof, and the Administrative Agent shall not have received notice from such Borrower or such Lender that any condition precedent to the making of the Failed Loan has not been satisfied, then, until such Lender shall have made or be deemed to have made (pursuant to the last sentence of this Section 2.04(e)) the Failed Loan in full or the Administrative Agent shall have received notice from the applicable Borrower or such Lender that any condition precedent to the making of the Failed Loan was not satisfied at the time the Failed Loan was to have been made, whenever the Administrative Agent shall receive any amount from such Borrower for the account of such Lender, (i) the amount so received (up to the amount of such Failed Loan) will, upon receipt by the Administrative Agent, be deemed to have been paid to the Lender in satisfaction of the obligation for which paid, without actual disbursement of such amount to the Lender, (ii) the Lender will be deemed to have made the same amount available to the Administrative Agent for disbursement as a Loan to the applicable Borrower (up to the amount of such Failed Loan) and (iii) the Administrative Agent will disburse such amount (up to the amount of the Failed Loan) to such Borrower or, if the Administrative Agent has previously made such amount available to such Borrower on behalf of such Lender pursuant to the provisions hereof, reimburse itself (up to the amount made available to such Borrower); provided , however , that the Administrative Agent shall have no obligation to disburse any such amount to any Borrower or otherwise apply it or deem it applied as provided herein unless the Administrative Agent shall have determined in its sole discretion that to so disburse such amount will not violate any law, rule, regulation or requirement applicable to the Administrative Agent. Upon any such disbursement by the Administrative Agent, such Lender shall be deemed to have made a Base Rate Loan of the same Class as the Failed Loan to the applicable Borrower in satisfaction, to the extent thereof, of such Lender’s obligation to make the Failed Loan.

 

Section 2.05 Evidence of Loans .

 

(a) Lender Accounts . Each Lender shall maintain in accordance with its usual practice an account or accounts evidencing the indebtedness to such Lender resulting from each Loan made by such Lender from time to time, including the amounts of principal and interest payable and paid to such Lender from time to time under this Agreement.

 

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(b) Administrative Agent Records . The Administrative Agent shall maintain accounts in which it will record (i) the amount of each Loan made hereunder, the Class, Type and currency of each Loan made and the Interest Period, if any, applicable thereto, (ii) the amount of any principal or interest due and payable or to become due and payable from the Borrowers to each Lender hereunder and (iii) the amount of any sum received by the Administrative Agent hereunder from the Borrowers and each Lender’s share thereof.

 

(c) Evidence of Debt . The entries made in the accounts maintained pursuant to Sections 2.05(a) and (b) shall be prima facie evidence of the existence and amounts of the obligations therein recorded; provided , however , that the failure of any Lender or the Administrative Agent to maintain such accounts or any error therein shall not in any manner affect the obligations of the Borrowers to repay the Loans in accordance with their terms.

 

(d) Notes . Notwithstanding any other provision of this Agreement, if any Lender shall request and receive a Note or Notes as provided in Section 11.06 or otherwise, then the Loans of such Lender shall be evidenced by Notes of the applicable Class, in each case, substantially in the form of Exhibit B–l or B–2 , as applicable, and payable to the order of such Lender for the account of its Applicable Lending Office in an amount equal to the aggregate unpaid principal amount of such Lender’s Revolving Loans or Competitive Bid Loans, as applicable. If requested by the Swingline Lender, the Swingline Loans shall be evidenced by a single Swingline Note, substantially in the form of Exhibit B–3 , and payable to the order of the Swingline Lender in an amount equal to the aggregate unpaid principal amount of the Swingline Loans.

 

Section 2.06 Letters of Credit .

 

(a) Existing Letters of Credit . On the Closing Date, each Issuing Lender that has issued an Existing Letter of Credit shall be deemed, without further action by any party hereto, to have sold to each Revolving Lender, and each such Revolving Lender shall be deemed, without further action by any party hereto, to have purchased from each such Issuing Lender, without recourse or warranty, an undivided participation interest in such Existing Letter of Credit and the related LC Obligations in the proportion its Revolving Commitment Percentage bears to the aggregate Revolving Committed Amount (although any fronting fee payable under Section 2.12(b)(ii) shall be payable directly to the Administrative Agent for the account of each applicable Issuing Lender, and the Lenders (other than such Issuing Lender) shall have no right to receive any portion of such fronting fee) and any security therefor or guaranty pertaining thereto. On and after the Closing Date, each Existing Letter of Credit shall constitute a Letter of Credit for all purposes hereof.

 

(b) Additional Letters of Credit . Each Issuing Lender agrees, on the terms and conditions set forth in this Agreement, to issue Letters of Credit denominated in Dollars or an Available Alternative Currency, each such Letter of Credit being in a Dollar Amount of at least $500,000, from time to time before the 30th day prior to the Maturity Date for the account, and upon the request, of Carpenter and in support of (i) trade obligations of Carpenter and/or its Subsidiaries, which shall be payable at sight (each such letter of credit, a “ Trade Letter of Credit ” and, collectively, the “ Trade Letters of Credit ”) and (ii) such other obligations of Carpenter that are acceptable to the Lenders (each such letter of credit, a “ Standby Letter of Credit ” and,

 

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collectively, the “ Standby Letters of Credit ”); provided that, immediately after each Letter of Credit is issued, (i) the aggregate amount of the LC Obligations shall not exceed the LC Committed Amount, (ii) the aggregate Dollar Amount of the Revolving Outstandings shall not exceed the aggregate amount of the Revolving Commitments and (iii) with respect to each individual Revolving Lender, the aggregate outstanding principal Dollar Amount of the Revolving Lender’s Revolving Loans plus its Participation Interest in outstanding LC Obligations plus its (other than the Swingline Lender’s in its capacity as such) Participation Interests in outstanding Swingline Loans shall not exceed such Revolving Lender’s Revolving Commitment Percentage of the Revolving Committed Amount.

 

(c) Method of Issuance of Letters of Credit . Carpenter shall give the applicable Issuing Lender notice (with a copy to the Administrative Agent) substantially in the form of Exhibit A–6 hereto (a “ Letter of Credit Request ”) of the requested issuance or amendment of a Letter of Credit prior to 1:00 P.M. on the proposed date of the issuance or amendment of Trade Letters of Credit (which shall be a Business Day) and at least three Business Days before the proposed date of issuance or extension of Standby Letters of Credit (which shall be a Business Day) (or such shorter period as may be agreed by the applicable Issuing Lender in any particular instance). In the case of a request for an initial issuance of a Letter of Credit, such Letter of Credit Request shall specify in form and detail satisfactory to the applicable Issuing Lender: (A) the proposed issuance date of the requested Letter of Credit (which shall be a Business Day); (B) the amount, currency (which may only be Dollars or an Available Alternative Currency) and, if applicable, Dollar Amount thereof; (C) the expiry date thereof; (D) the name and address of the beneficiary thereof; (E) the documents to be presented by such beneficiary in case of any drawing thereunder; (F) the full text of any certificate to be presented by such beneficiary in case of any drawing thereunder; and (G) such other matters as such Issuing Lender may require. In the case of a request for an amendment of any outstanding Letter of Credit, such Letter of Credit Request shall specify in form and detail satisfactory to the Issuing Lender: (i) the Letter of Credit to be amended; (ii) the proposed date of amendment thereof (which shall be a Business Day); (iii) the nature of the proposed amendment; and (iv) such other matters as the Issuing Lender may require. The extension or renewal of any Letter of Credit shall be deemed to be an issuance of such Letter of Credit. Subject to the provisions of the following paragraph with respect to Evergreen Letters of Credit, no Letter of Credit shall have a term of more than one year or shall have a term extending or be extendible beyond the fifth Business Day prior to the Maturity Date.

 

If Carpenter so requests in any applicable Letter of Credit Request, the Issuing Lender may, in its sole and absolute discretion, agree to issue a Letter of Credit that has automatic renewal provisions (each, an “ Evergreen Letter of Credit ”); provided that any such Evergreen Letter of Credit must permit the Issuing Lender to prevent any such renewal at least once in each twelve–month period (commencing with the date of issuance of such Letter of Credit) by giving prior notice to the beneficiary thereof not later than a day (the “ Nonrenewal Notice Date ”) in each such twelve–month period to be agreed upon at the time such Letter of Credit is issued. Unless otherwise directed by the Issuing Lender, Carpenter shall not be required to make a specific request to the Issuing Lender for any such renewal. Once an Evergreen Letter of Credit has been issued, the Revolving Lenders shall be deemed to have authorized (but may not require) the Issuing Lender to permit the renewal of such Letter of Credit at any time to a date not later than the fifth Business Day prior to the Maturity Date; provided , however , that the Issuing Lender shall not permit any such renewal if (i) the Issuing Lender would have no obligation at

 

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such time to issue such Letter of Credit in its renewed form under the terms hereof or (ii) it has received notice (which may be by telephone or in writing) on or before the Business Day immediately preceding the Nonrenewal Notice Date (A) from the Administrative Agent that the Required Lenders have elected not to permit such renewal or (B) from the Administrative Agent, any Revolving Lender or Carpenter that one or more of the applicable conditions specified in Section 4.02 is not then satisfied. Notwithstanding anything to the contrary contained herein, the Issuing Lender shall have no obligation to permit the renewal of any Evergreen Letter of Credit at any time.

 

Promptly after receipt of any Letter of Credit Request, the Issuing Lender will confirm with the Administrative Agent (by telephone or in writing) that the Administrative Agent has received a copy of such Letter of Credit Request from Carpenter and, if not, the Issuing Lender will provide the Administrative Agent with a copy thereof. Upon receipt by the Issuing Lender of confirmation from the Administrative Agent that the requested issuance or amendment is permitted in accordance with the terms hereof, then, subject to the terms and conditions thereof, the Issuing Lender shall, on the requested date, issue a Letter of Credit for the account of Carpenter or enter into the applicable amendment, as the case may be, in each case in accordance with the Issuing Lender’s usual and customary business practices.

 

Promptly after its delivery of any Letter of Credit or any amendment to a Letter of Credit to an advising bank with respect thereto or to the beneficiary thereof, the Issuing Lender will also deliver to Carpenter and the Administrative Agent a true and complete copy of such Letter of Credit or amendment.

 

(d) Conditions to Issuance of Additional Letters of Credit . The issuance by an Issuing Lender of each Additional Letter of Credit shall, in addition to the conditions precedent set forth in Section 4.02 , be subject to the conditions precedent that (i) such Letter of Credit shall be satisfactory in form and substance to the applicable Issuing Lender, (ii) Carpenter shall have executed and delivered such other instruments and agreements relating to such Letter of Credit as the Issuing Lender shall have reasonably requested, (iii) the Issuing Lender shall have confirmed with the Administrative Agent on the date of (and after giving effect to) such issuance that (A) the Dollar Amount of the aggregate amount of all LC Obligations will not exceed the LC Committed Amount and (B) the Dollar Amount of the aggregate Revolving Outstandings will not exceed the aggregate amount of the Revolving Commitments and (iv) the Issuing Lender shall not have been notified by the Administrative Agent that any condition specified in Section 4.02(b) or (c) is not satisfied on the date such Letter of Credit is to be issued. Notwithstanding any other provision of this Section 2.06 , no Issuing Lender shall be under any obligation to issue any Additional Letter of Credit if: (x) any order, judgment or decree of any Governmental Authority shall by its terms purport to enjoin or restrain the Issuing Lender from issuing such Additional Letter of Credit, or any requirement of Law applicable to such Issuing Lender or any request or directive (whether or not having a force of Law) from any Governmental Authority with jurisdiction over such Issuing Lender shall prohibit, or request that such Issuing Lender refrain from, the issuance of letters of credit generally or such Additional Letter of Credit in particular or shall impose upon such Issuing Lender with respect to such Additional Letter of Credit any restriction, reserve or capital requirement (for which such Issuing Lender is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon such Issuing Lender any unreimbursed loss, cost or expense which was not applicable on the Closing

 

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Date and which such Issuing Lender in good faith deems material to it; or (y) the issuance of such Additional Letter of Credit shall violate any applicable general policies of such Issuing Lender.

 

(e) Purchase and Sale of Letter of Credit Participations . Upon the issuance by an Issuing Lender of an Additional Letter of Credit, such Issuing Lender shall be deemed, without further action by any party hereto, to have sold to each Revolving Lender, and each Revolving Lender shall be deemed, without further action by any party hereto, to have purchased from such Issuing Lender, without recourse or warranty, an undivided participation interest in such Letter of Credit and the related LC Obligations in the proportion its Revolving Commitment Percentage bears to the Revolving Committed Amount (although any fronting fee payable under Section 2.12(b)(ii) shall be payable directly to the Administrative Agent for the account of the applicable Issuing Lender, and the Lenders (other than such Issuing Lender) shall have no right to receive any portion of any such fronting fee) and any security therefor or guaranty pertaining thereto. Upon any change in the Revolving Commitments pursuant to Section 2.17 or Section 11.06 , there shall be an automatic adjustment to the Participation Interests in all outstanding Letters of Credit (including all Existing Letters of Credit, if any) and all LC Obligations to reflect the adjusted Revolving Commitments of the Lenders.

 

(f) Drawings under Letters of Credit . Upon receipt from the beneficiary of any Letter of Credit of any notice of a drawing under such Letter of Credit, the applicable Issuing Lender shall determine in accordance with the terms of such Letter of Credit whether such drawing should be honored. If the Issuing Lender determines that any such drawing shall be honored, such Issuing Lender shall make available to such beneficiary in accordance with the terms of such Letter of Credit the amount of the drawing and shall notify Carpenter and the Administrative Agent as to the amount to be paid as a result of such drawing and the payment date.

 

(g) Duties of Issuing Lenders to Revolving Lenders; Reliance . In determining whether to pay under any Letter of Credit, the relevant Issuing Lender shall not have any obligation relative to the Revolving Lenders participating in such Letter of Credit or the related LC Obligations other than to determine that any document or documents required to be delivered under such Letter of Credit have been delivered and that they substantially comply on their face with the requirements of such Letter of Credit. Any action taken or omitted to be taken by an Issuing Lender under or in connection with any Letter of Credit shall not create for the Issuing Lender any resulting liability if taken or omitted in the absence of gross negligence or willful misconduct. Each Issuing Lender shall be entitled (but not obligated) to rely, and shall be fully protected in relying, on the representation and warranty by Carpenter set forth in the last sentence of Section 4.02 to establish whether the conditions specified in Sections 4.02(b) and (c) of Section 4.02 are met in connection with any issuance or extension of a Letter of Credit. Each Issuing Lender shall be entitled to rely, and shall be fully protected in relying, upon advice and statements of legal counsel, independent accountants and other experts selected by such Issuing Lender and upon any Letter of Credit, draft, writing, resolution, notice, consent, certificate, affidavit, letter, cablegram, telegram, telecopier, statement, order or other document believed by it in good faith to be genuine and correct and to have been signed, sent or made by the proper Person or Persons, and may accept documents that appear on their face to be in order, without responsibility for further investigation, regardless of any notice or information to the contrary

 

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unless the beneficiary and Carpenter shall have notified such Issuing Lender that such documents do not comply with the terms and conditions of the Letter of Credit. Each Issuing Lender shall be fully justified in refusing to take any action requested of it under this Section in respect of any Letter of Credit unless it shall first have received such advice or concurrence of the Required Lenders as it reasonably deems appropriate or it shall first be indemnified to its reasonable satisfaction by the Revolving Lenders against any and all liability and expense which may be incurred by it by reason of taking or continuing to take, or omitting or continuing to omit, any such action. Notwithstanding any other provision of this Section, each Issuing Lender shall in all cases be fully protected in acting, or in refraining from acting, under this Section in respect of any Letter of Credit in accordance with a request of the Required Lenders, and such request and any action taken or failure to act in respect thereof shall be binding upon all Revolving Lenders and all future holders of participations in such Letter of Credit.

 

(h) Reimbursement Obligations . Carpenter shall be irrevocably and unconditionally obligated forthwith to reimburse each Issuing Lender in the applicable currency for any amounts paid by such Issuing Lender upon any drawing under any Letter of Credit, together with any and all reasonable charges and expenses which the Issuing Lender may pay or incur relative to such drawing and interest on the amount drawn at the rate applicable to Base Rate Loans for each day from and including the date such amount is drawn to but excluding the date such reimbursement payment is due and payable. Such reimbursement payment shall be due and payable (i) on the date the Issuing Lender notifies Carpenter of such drawing, if such notice is given at or before 12:00 P.M. on such date or (ii) the next succeeding Business Day is such notice is given after 12:00 P.M. on any such date; provided that no payment otherwise required by this sentence to be made by Carpenter shall be overdue hereunder if arrangements for such payment satisfactory to the Issuing Lender, in its reasonable discretion, shall have been made by Carpenter at or before 1:00 P.M. on such day and such payment is actually made at or before 3:00 P.M. on such day. In addition, Carpenter agrees to pay to the Issuing Lender interest, payable on demand, on any and all amounts not paid by Carpenter to the Issuing Lender when due under this Section 2.06(h) , for each day from and including the date when such amount becomes due to but excluding the date such amount is paid in full, whether before or after judgment, at a rate per annum equal to the sum of 2% plus the rate applicable to Base Rate Loans for such day. Subject to the satisfaction of all applicable conditions set forth in Article IV , Carpenter may, at its option, utilize the Swingline Commitment or the Revolving Commitments, or make other arrangements for payment satisfactory to the Issuing Lender, for the reimbursement of all LC Disbursements as required by this Section 2.06(h) . Each reimbursement payment to be made by Carpenter pursuant to this Section 2.06(h) shall be made to the Issuing Lender in Federal or other funds immediately available to it at its address referred to Section 11.02 .

 

(i) Obligations of Revolving Lenders to Reimburse Issuing Lender for Unpaid LC Disbursements . If Carpenter shall not have reimbursed an Issuing Lender in full for any LC Disbursement as required pursuant to Section 2.06(h), the Issuing Lender shall promptly notify the Administrative Agent, and the Administrative Agent shall promptly notify each Revolving Lender (other than the relevant Issuing Lender) of (x) the date of drawing under the related Letter of Credit, (y) the Dollar Amount of the unreimbursed LC Disbursement and (z) such Revolving Lender’s pro–rata share of the LC Disbursement. On the date of any such notice from the Administrative Agent in respect of an unreimbursed LC Disbursement in respect of a Letter of Credit denominated in an Alternative Currency, Carpenter’s reimbursement obligation to the

 

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Issuing Lender in respect of such drawing shall be automatically redenominated into Dollars. Upon receipt of notice from the Administrative Agent pursuant to this Section 2.06(i) each such Revolving Lender shall promptly and unconditionally pay to the Administrative Agent, for the account of such Issuing Lender, such Revolving Lender’s pro–rata share of the Dollar Amount of each LC Disbursement which is the subject of such notice (determined by the proportion its Revolving Commitment Percentage bears to the aggregate Revolving Committed Amount) in Dollars in Federal or other immediately available funds. Such payment from the Revolving Lender shall be due (i) on the date the Administrative Agent so notifies a Revolving Lender, if such notice is given at or before 12:00 P.M. on such date or (ii) on the next succeeding Business Day if such notice is given after 12:00 P.M. on such date, together with interest on such amount for each day from and including the date of such drawing to but excluding the day such payment is due from such Revolving Lender at the Federal Funds Rate for such day (which funds the Administrative Agent shall promptly remit to the applicable Issuing Lender). The failure of any Revolving Lender to make available to the Administrative Agent for the account of an Issuing Lender its pro–rata share of any unreimbursed LC Disbursement shall not relieve any other Revolving Lender of its obligation hereunder to make available to the Administrative Agent for the account of such Issuing Lender its pro–rata share of any payment made under any Letter of Credit on the date required, as specified above, but no such Lender shall be responsible for the failure of any other Lender to make available to the Administrative Agent for the account of the Issuing Lender such other Lender’s pro–rata share of any such payment. Upon payment in full of all amounts payable by a Lender under this Section 2.06(i), such Lender shall be subrogated to the rights of the Issuing Lender against Carpenter to the extent of such Lender’s pro–rata share of the related LC Obligation so paid (including interest accrued thereon). If any Revolving Lender fails to pay any amount required to be paid by it pursuant to this Section 2.06(i) on the date on which such payment is due, interest shall accrue on such Lender’s obligation to make such payment, for each day from and including the date such payment became due to but excluding the date such Lender makes such payment, whether before or after judgment, at a rate per annum equal to (i) for each day from the date such payment is due to the third succeeding Business Day, inclusive, the Federal Funds Rate for such day as determined by the relevant Issuing Lender and (ii) for each day thereafter, the sum of 2% plus the rate applicable to Base Rate Loans for such day. Any payment made by any Lender after 3:00 P.M. on any Business Day shall be deemed for purposes of the preceding sentence to have been made on the next succeeding Business Day. On the date of any notice from the Administrative Agent to the Revolving Lenders pursuant to this Section 2.06(i) in respect of an LC Disbursement in respect of a Letter of Credit denominated in an Alternative Currency, Carpenter’s reimbursement obligation in respect thereof shall be automatically redenominated in Dollars in an amount equal to the then Dollar Amount thereof.

 

(j) Funds Received from Carpenter in Respect of Drawn Letters of Credit . Whenever an Issuing Lender receives a payment of an LC Obligation as to which the Administrative Agent has received for the account of such Issuing Lender any payments from the Lenders pursuant to Section 2.06(i) above, such Issuing Lender shall pay the amount of such payment to the Administrative Agent, and the Administrative Agent shall promptly pay to each Lender which has paid its pro–rata share thereof, in Dollars in Federal or other immediately available funds, an amount equal to such Lender’s pro–rata share of the principal amount thereof and interest thereon for each day after relevant date of payment at the Federal Funds Rate.

 

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(k) Obligations in Respect of Letters of Credit Unconditional . The obligations of Carpenter under Section 2.06(h) above shall be absolute, unconditional and irrevocable, and shall be performed strictly in accordance with the terms of this Agreement, under all circumstances whatsoever, including, without limitation, the following circumstances:

 

(i) any lack of validity or enforceability of this Agreement or any Letter of Credit or any document related hereto or thereto;

 

(ii) any amendment or waiver of or any consent to departure from all or any of the provisions of this Agreement or any Letter of Credit or any document related hereto or thereto;

 

(iii) the use which may be made of the Letter of Credit by, or any acts or omission of, a beneficiary of a Letter of Credit (or any Person for whom the beneficiary may be acting);

 

(iv) the existence of any claim, set–off, defense or other rights that Carpenter may have at any time against a beneficiary of a Letter of Credit (or any Person for whom the beneficiary may be acting), any Issuing Lender or any other Person, whether in connection with this Agreement or any Letter of Credit or any document related hereto or thereto or any unrelated transaction;

 

(v) any statement or any other document presented under a Letter of Credit proving to be forged, fraudulent or invalid in any respect or any statement therein being untrue or inaccurate in any respect whatsoever;

 

(vi) payment under a Letter of Credit against presentation to an Issuing Lender of a draft or certificate that does not comply with the terms of such Letter of Credit; provided that the relevant Issuing Lender’s determination that documents presented under such Letter of Credit comply with the terms thereof shall not have constituted gross negligence or willful misconduct of such Issuing Lender; or

 

(vii) any other act or omission to act or delay of any kind by any Issuing Lender or any other Person or any other event or circumstance whatsoever that might, but for the provisions of this Section 2.06(k)(vii) , constitute a legal or equitable discharge of Carpenter’s obligations hereunder.

 

(l) Designation of Subsidiaries as Account Parties . Notwithstanding anything to the contrary set forth in this Agreement, a Letter of Credit issued hereunder may contain a statement to the effect that such Letter of Credit is issued for the account of a Subsidiary of Carpenter; provided , that notwithstanding such statement, Carpenter shall be the actual account party for all purposes of this Agreement for such Letter of Credit and such statement shall not affect Carpenter’s reimbursement obligations hereunder with respect to such Letter of Credit.

 

(m) Modification and Extension . The issuance of any supplement, modification, amendment, renewal, or extensions to any Letter of Credit shall, for purposes hereof, be treated in all respects the same as a Credit Extension hereunder.

 

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(n) Uniform Customs and Practices . Unless otherwise expressly agreed by the Issuing Lender and Carpenter when a Letter of Credit is issued (including any such agreement applicable to an Existing Letter of Credit), (i) the rules of the “International Standby Practices 1998” published by the Institute of International Banking Law & Practice (or such later version thereof as may be in effect at the time of issuance) shall apply to each Standby Letter of Credit, and (ii) the rules of the Uniform Customs and Practice for Documentary Credits (collectively, the “ UCP ”), as most recently published by the International Chamber of Commerce (the “ ICC ”) at the time of issuance (including the ICC decision published by the Commission on Banking Technique and Practice on April 6, 1998 regarding the European single currency (euro)) shall apply to each Trade Letter of Credit.

 

(o) Responsibility of Issuing Lenders . It is expressly understood and agreed that the obligations of the Issuing Lenders hereunder to the Revolving Lenders are only those expressly set forth in this Agreement and that the Issuing Lender shall be entitled to assume that the conditions precedent set forth in Section 4.02 have been satisfied unless it shall have acquired actual knowledge that any such condition precedent has not been satisfied; provided , however , that nothing set forth in this Section 2.06 shall be deemed to prejudice the right of any Revolving Lender to recover from the Issuing Lender any amounts made available by such Revolving Lender to the Issuing Lender pursuant to this Section 2.06 in the event that it is determined by a court of competent jurisdiction that the payment with respect to a Letter of Credit constituted gross negligence or willful misconduct on the part of the Issuing Lender.

 

(p) Conflict with LC Documents . In the event of any conflict between this Agreement and any LC Document, this Agreement shall govern.

 

(q) Indemnification of Issuing Lenders .

 

(i) In addition to its other obligations under this Agreement, Carpenter hereby agrees to protect, indemnify, pay and save each Issuing Lender harmless from and against any and all claims, demands, liabilities, damages, losses, costs, charges and expenses (including reasonable attorneys’ fees) that such Issuing Lender may incur or be subject to as a consequence, direct or indirect, of (A) the issuance of any Letter of Credit or (B) the failure of such Issuing Lender to honor a drawing under a Letter of Credit as a result of any act or omission, whether rightful or wrongful, of any present or future de jure or de facto government or Governmental Authority (all such acts or omissions, herein called “ Government Acts ”).

 

(ii) As between Carpenter and each Issuing Lender, Carpenter shall assume all risks of the acts, omissions or misuse of any Letter of Credit by the beneficiary thereof. The Issuing Lenders shall not be responsible for: (A) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document submitted by any party in connection with the application for and issuance of any Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged; (B) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, that may prove to be invalid or ineffective for any reason; (C) failure of the beneficiary of a Letter of Credit to comply fully with conditions

 

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required in order to draw upon a Letter of Credit; (D) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph or otherwise, whether or not they be in cipher; (E) errors in interpretation of technical terms; (F) any loss or delay in the transmission or otherwise of any documents required in order to make a drawing under a Letter of Credit or of the proceeds thereof; and (G) any consequences arising from causes beyond the control of any such Issuing Lender, including, without limitation, any Government Acts. None of the above shall affect, impair, or prevent the vesting of any Issuing Lenders’ rights or powers hereunder.

 

(iii) In furtherance and extension and not in limitation of the specific provisions hereinabove set forth, any action taken or omitted by an Issuing Lender, under or in connection with any Letter of Credit or the related certificates, if taken or omitted in good faith, shall not put such Issuing Lender under any resulting liability to Carpenter. It is the intention of the parties that this Agreement shall be construed and applied to protect and indemnify the Issuing Lenders against any and all risks involved in the issuance of any Letter of Credit, all of which risks are hereby assumed by Carpenter, including, without limitation, any and all risks of the acts or omissions, whether rightful or wrongful, of any present or future Government Acts. The Issuing Lenders shall not, in any way, be liable for any failure by any such Issuing Lender or anyone else to pay any drawing under any Letter of Credit as a result of any Government Acts or any other cause beyond the control of the Issuing Lenders. Œ

 

(iv) Nothing in this Section 2.06(q) is intended to limit the reimbursement obligation of Carpenter contained in this Section 2.06 . The obligations of Carpenter under this Section 2.06(q) shall survive the termination of this Agreement. No act or omission of any current or prior beneficiary of a Letter of Credit shall in any way affect or impair the rights of any Issuing Lender to enforce any right, power or benefit under this Agreement.

 

(v) Notwithstanding anything to the contrary contained in this Section 2.06(q) , Carpenter shall have no obligation to indemnify any Issuing Lender in respect of any liability incurred by the Issuing Lender arising solely out of the gross negligence or willful misconduct of the Issuing Lender, as determined by a court of competent jurisdiction. Nothing in this Agreement shall relieve any Issuing Lender of any liability to Carpenter in respect of any action taken by the Issuing Lender which action constitutes gross negligence or willful misconduct of the Issuing Lender or a violation of the UCP or Uniform Commercial Code, as applicable, as determined by a court of competent jurisdiction.

 

(r) Cash Collateral . If Carpenter is required pursuant to the terms of this Agreement to Cash Collateralize any LC Obligations, Carpenter shall deposit in an account with the Administrative Agent an amount in cash equal to 100% of the Dollar Amount of such LC Obligations. Such deposit shall be held by the Administrative Agent as collateral for the payment and performance of the LC Obligations. The Administrative Agent shall have exclusive dominion and control, including the exclusive right of withdrawal, over such account. The Administrative Agent will, at the request of Carpenter, invest amounts deposited in such account in Cash Equivalents; provided , however , that (i) the Administrative Agent shall not be required

 

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to make any investment that, in its sole judgment, would require or cause the Administrative Agent to be in, or would result in any, violation of any Law, (ii) such Cash Equivalents shall be subjected to a first priority perfected security interest in favor of the Administrative Agent for the benefit of the Creditors and (iii) if an Event of Default shall have occurred and be continuing, the selection of such Cash Equivalents shall be in the sole discretion of the Administrative Agent. Carpenter shall indemnify the Administrative Agent for any losses relating to such investments in Cash Equivalents. Other than any interest or profits earned on such investments, such deposits shall not bear interest. Interest or profits, if any, on such investments shall accumulate in such account. Moneys in such account shall be applied by the Administrative Agent to reimburse the Issuing Lenders immediately for drawings under Letters of Credit and, if the maturity of the Loans has been accelerated, to satisfy the LC Obligations. If Carpenter is required to provide an amount of cash collateral hereunder as a result of an Event of Default, such amount (to the extent not applied as aforesaid) shall be returned to Carpenter within three Business Days after all Events of Default have been cured or waived. Carpenter hereby pledges and assigns to the Administrative Agent, for its benefit and the benefit of the Creditors, the cash collateral account established hereunder (and all monies and investments held therein) to secure the Obligations.

 

(s) Resignation or Removal of an Issuing Lender . (a) Any Issuing Lender may resign at any time by giving 30 days’ notice to the Administrative Agent, the Lenders and Carpenter, and may be removed at any time by Carpenter by notice to such Issuing Lender, the Administrative Agent and the Lenders. Upon any such resignation or removal, Carpenter shall (within 30 days after such notice of resignation or removal) either appoint a successor, or terminate the unutilized LC Commitment of such Issuing Lender; provided , however , that, if Carpenter elects to terminate such unutilized LC Commitment, Carpenter may at any time thereafter that the Revolving Credit Commitments are in effect reinstate such LC Commitment in connection with the appointment of another Issuing Lender. Subject to Section 2.06(t) below, upon the acceptance of any appointment as an Issuing Lender hereunder by a successor Issuing Lender, such successor shall succeed to and become vested with all the interests, rights and obligations of the retiring Issuing Lender, and the retiring Issuing Lender shall be discharged from its obligations to issue Additional Letters of Credit hereunder. The acceptance of any appointment as Issuing Lender hereunder by a successor Issuing Lender shall be evidenced by an agreement entered into by such successor, in a form reasonably satisfactory to Carpenter and the Administrative Agent, and, from and after the effective date of such agreement, (i) such successor shall be a party hereto and have all the rights and obligations of an Issuing Lender under this Agreement and the other Loan Documents and (ii) references herein and in the other Loan Documents to the “ Issuing Lender ” shall be deemed to refer to such successor or to any previous Issuing Lender, or to such successor and all previous Issuing Lenders, as the context shall require.

 

(t) Rights with Respect to Outstanding Letter of Credit . After the resignation or removal of any Issuing Lender hereunder, the retiring Issuing Lender shall remain a party hereto and shall continue to have all the rights and obligations of an Issuing Lender under this Agreement and the other Loan Documents with respect to Letters of Credit issued by it prior to such resignation or removal, but shall not be required to issue Additional Letters of Credit.

 

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Section 2.07 Interest .

 

(a) Rate Options Applicable to Loans . Each Committed Borrowing shall be comprised of Base Rate Loans or (except in the case of Swingline Loans which shall be made and maintained as Base Rate Loans or LIBOR Market Index Rate Loans) Eurocurrency Loans, as the applicable Borrower may request pursuant to Section 2.02. Each Competitive Bid Borrowing shall be comprised of Competitive Bid Loans pursuant to Section 2.03 . Borrowings of more than one Type may be outstanding at the same time; provided , however , that the Borrowers may not request any Borrowing that, if made, would result in an aggregate for any Class of more than 10 separate Groups of Eurocurrency Loans being outstanding hereunder at any one time. For this purpose, Loans having different Interest Periods, regardless of whether commencing on the same date, shall be considered separate Groups.

 

(b) Base Rate Loans . Each Loan of a Class which is made as, or converted into, a Base Rate Loan shall bear interest on the outstanding principal amount thereof, for each day from the date such Loan is made as, or converted into, a Base Rate Loan until it becomes due or is converted into a Loan of any other Type, at a rate per annum equal to the Applicable Percentage for Base Rate Loans of such Class for such day plus the Base Rate for such day. Such interest shall be payable quarterly in arrears on each Interest Payment Date and, with respect to the principal amount of any Base Rate Loan converted to a Eurocurrency Loan, on the date such Base Rate Loan is so converted.

 

(c) LIBOR Market Index Rate Loans . Swingline Loans that are denominated in Pounds Sterling or Euros shall bear interest at the LIBOR Market Index Rate. Interest on such Swingline Loans shall be payable in arrears on each Interest Payment Date.

 

(d) Eurocurrency Loans . Each Eurocurrency Loan shall bear interest on the outstanding principal amount thereof, for each day during the Interest Period applicable thereto, at a rate per annum equal to the sum of the Applicable Percentage for Eurocurrency Loans for such day plus the Eurocurrency Rate applicable to Eurocurrency Loans denominated in the relevant currency for such Interest Period. Such interest shall be payable for each Interest Period on each Interest Payment Date.

 

(e) Competitive Bid Loans . The unpaid principal amount of each Competitive Bid Loan shall bear interest on the outstanding principal amount thereof, for the Interest Period applicable thereto, at a rate per annum equal to the Competitive Bid Absolute Rate quoted by the Lender making such Loan or the Eurocurrency Bid Margin plus the Eurocurrency Rate quoted by the Administrative Agent, as the case may be. Such interest shall be payable for each Interest Period on the last day thereof.

 

(f) Determination and Notice of Interest Rates . The Administrative Agent shall determine each interest rate applicable to the Loans hereunder. The Administrative Agent shall give prompt notice to Carpenter and the participating Lenders of each rate of interest so determined, and its determination thereof shall be conclusive in the absence of manifest error. Any notice with respect to Eurocurrency Loans shall, without the necessity of the Administrative Agent so stating in such notice, be subject to adjustments in the Applicable Percentage applicable to such Loans after the beginning of the Interest Period applicable thereto. When

 

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during an Interest Period any event occurs that causes an adjustment in the Applicable Percentage applicable to Loans to which such Interest Period is applicable, the Administrative Agent shall give prompt notice to Carpenter and the Lenders of such event and the adjusted rate of interest so determined for such Loans, and its determination thereof shall be conclusive in the absence of manifest error.

 

(g) Default Interest . Upon the occurrence and during the continuance of an Event of Default, the principal of and, to the extent permitted by law, interest on the Loans and any other amounts owing herein or under the other Loan Documents shall bear interest, payable on demand, at a per annum rate equal to (i) in the case of principal of any Loan, the rate otherwise applicable to such Loan during such period pursuant to this Section 2.07 plus 2.00% and (ii) in the case of any other amount, the Base Rate plus the Applicable Margin for Base Rate Loans plus 2.00%.

 

Section 2.08 Extension and Conversion .

 

(a) Conversions and Continuations . The Dollar–Denominated Loans included in each Syndicated Borrowing shall bear interest initially at the type of rate specified by the applicable Borrower in the applicable Notice of Syndicated Borrowing. Thereafter, the applicable Borrower shall have the option, on any Business Day, to elect to change or continue the type of interest rate borne by each Group of Syndicated Dollar–Denominated Loans (subject in each case to the provisions of Article III and Section 2.08(d)), as follows:

 

(i) if such Loans are Base Rate Loans, the applicable Borrower may elect to convert such Loans to Eurodollar Loans as of any Business Day; and

 

(ii) if such Loans are Eurodollar Loans, the applicable Borrower may elect to convert such Loans to Base Rate Loans or elect to continue such Loans as Eurodollar Loans for an additional Interest Period, subject to Section 3.05 in the case of any such conversion or continuation effective on any day other than the last day of the then current Interest Period applicable to such Loans.

 

Each such election shall be made by delivering a notice, substantially in the form of Exhibit A–4 hereto (a “ Notice of Extension/Conversion ”) to the Administrative Agent not later than 12:00 Noon on the third Business Day before the conversion or continuation selected in such notice is to be effective. A Notice of Extension/Conversion may, if it so specifies, apply to only a portion of the aggregate principal amount of the relevant Group of Loans, provided that (i) such portion is allocated ratably among the Loans comprising such Group and (ii) the portion to which such Notice applies, and the remaining portion to which it does not apply, are each $2,000,000 or any larger multiple of $500,000.

 

(b) Contents of Notice of Extension/Conversion . Each Notice of Extension/Conversion shall specify:

 

(i) the Group of Loans (or portion thereof) to which such notice applies;

 

(ii) the date on which the conversion or continuation selected in such notice is to be effective, which shall comply with the applicable clause of Section 2.08(a) above;

 

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(iii) if the Loans comprising such Group are to be converted, the new Type of Loans and, if the Loans being converted are to be Eurodollar Loans, the duration of the next succeeding Interest Period applicable thereto; and

 

(iv) if such Loans are to be continued as Eurodollar Loans for an additional Interest Period, the duration of such additional Interest Period.

 

Each Interest Period specified in a Notice of Interest Rate Election shall comply with the provisions of the definition of the term “ Interest Period ”.

 

(c) Notification to Lenders . Upon receipt of a Notice of Extension/Conversion from the applicable Borrower pursuant to Section 2.08(a) above, the Administrative Agent shall promptly notify each Lender of the contents thereof and such notice shall not thereafter be revocable by the Borrower. If no Notice of Extension/Conversion is timely received prior to the end of an Interest Period for any Group of Eurodollar Loans, the applicable Borrower shall be deemed to have elected that such Group be converted to Base Rate Loans as of the last day of such Interest Period.

 

(d) Limitation on Conversion/Continuation Options . The Borrowers shall not be entitled to elect to convert any Syndicated Loans to, or continue any Syndicated Loans for an additional Interest Period as, Eurodollar Loans if (i) the aggregate principal amount of any Group of Eurodollar Loans created or continued as a result of such election would be less than $2,000,000 or (ii) a Default shall have occurred and be continuing when any Borrower delivers notice of such election to the Administrative Agent.

 

(e) Alternative Currency Loans . The initial Interest Period for each Group of Syndicated Alternative Currency Loans shall be specified by the applicable Borrower in the applicable Notice of Borrowing. The applicable Borrower may specify the duration of each subsequent Interest Period applicable to such Group of Syndicated Alternative Currency Loans by delivering to the Administrative Agent, not later than 11:00 A.M., Local Time, on the fourth Business Day before the end of the immediately preceding Interest Period, a notice specifying the Group of Loans to which such notice applies and the duration of such subsequent Interest Period (which shall co