EXHIBIT 10.2
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AMENDED AND RESTATED LETTER OF CREDIT
AND
REIMBURSEMENT AGREEMENT
by and between
▇▇▇▇, INC.,
BELK ADMINISTRATION COMPANY,
BELK INTERNATIONAL, INC.,
▇▇▇▇ STORES SERVICES, INC.,
▇▇▇▇-▇▇▇▇▇▇▇ COMPANY, GREENVILLE, SOUTH CAROLINA,
THE ▇▇▇▇ CENTER, INC.,
UNITED ELECTRONIC SERVICES, INC.,
BELK ACCOUNTS RECEIVABLE LLC,
▇▇▇▇ STORES OF VIRGINIA LLC,
BELK GIFT CARD COMPANY LLC
and
WACHOVIA BANK, NATIONAL ASSOCIATION
Dated as of June 28, 2002
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TABLE OF CONTENTS
(This Table of Contents is not a part of the Agreement
but rather is for convenience of reference only.)
Page
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ARTICLE I DEFINITIONS............................................................................................2
1.1 Definitions.....................................................................................2
ARTICLE II REPRESENTATIONS AND WARRANTIES OF THE BORROWERS.......................................................3
2.1 Organization....................................................................................3
2.2 Power and Authority.............................................................................3
ARTICLE III REIMBURSEMENT AND OTHER PAYMENTS.....................................................................4
3.1 Letter of Credit................................................................................4
3.2 Reimbursement and Other Payments................................................................4
3.3 Tender Advances.................................................................................4
3.4 Commission and Fees.............................................................................5
3.5 Obligations Absolute............................................................................5
ARTICLE IV [Reserved]............................................................................................6
ARTICLE V [Reserved]............................................................................................6
ARTICLE VI [Reserved]............................................................................................6
ARTICLE VII CONDITIONS PRECEDENT.................................................................................6
7.1 Conditions Precedent to Each Tender Advance.....................................................6
ARTICLE VIII DEFAULT.............................................................................................7
8.1 Events of Default...............................................................................7
8.2 Remedies........................................................................................7
8.3 No Remedy Exclusive.............................................................................8
ARTICLE IX PLEDGED BONDS.........................................................................................8
9.1 The Pledge......................................................................................8
9.2 Remedies Upon Default...........................................................................9
9.3 Valid Perfected First Lien......................................................................9
9.4 Release of Pledged Bonds........................................................................9
ARTICLE X MISCELLANEOUS.........................................................................................10
10.1 Transfer of Letter of Credit...................................................................10
10.2 Reduction of Letter of Credit..................................................................10
10.3 Liability of the Issuing Lender................................................................11
10.4 Successors and Assigns.........................................................................11
10.5 Notices........................................................................................11
10.6 Amendments, Waivers and Consents...............................................................11
10.7 Effect of Delay and Waivers....................................................................11
10.8 Counterparts...................................................................................12
10.9 Severability...................................................................................12
10.10 Governing Law..................................................................................12
10.11 References.....................................................................................12
10.12 Taxes, Etc.....................................................................................12
10.15 Jurisdiction and Venue.........................................................................12
Exhibit A - Existing Letter of Credit...........................................................................A-1
Schedule 1 - Subsidiary Borrowers
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THIS AMENDED AND RESTATED LETTER OF CREDIT AND REIMBURSEMENT AGREEMENT,
dated as of June 28, 2002 (the "Agreement"), is by and between ▇▇▇▇, INC., a
Delaware corporation ("Company"), the Subsidiaries of the Company listed on
Schedule 1 hereto (collectively, the "Subsidiary Borrowers" and together with
the Company, the "Borrowers"), and WACHOVIA BANK, NATIONAL ASSOCIATION a
national banking association (the "Administrative Agent"), as Administrative
Agent for the ratable benefit of the financial institutions (the "Lenders") as
are, or may from time to time become, parties to the Credit Agreement (as
defined below).
W I T N E S S E T H:
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WHEREAS, the Company and Wachovia Bank, National Association
("Wachovia") have previously entered into the Letter of Credit and Reimbursement
Agreement dated as of July 1, 1998 (the "Original Reimbursement Agreement"), as
amended, pursuant to which Wachovia issued an irrevocable, direct-pay letter of
credit in the face amount of $126,849,316 dated July 23, 1998 for the account of
the Company (such letter of credit is referred herein to as the "Existing Letter
of Credit"); and
WHEREAS, the Existing Letter of Credit was issued to enhance the
marketability of certain Taxable Variable Rate Demand Revenue Bonds, Series 1998
(the "Bonds") issued and sold by the Company pursuant to a Trust Indenture dated
as of July 1, 1998 between the Company and First Union National Bank, as Trustee
(as amended, the "Indenture"); and
WHEREAS, the Borrowers, the Administrative Agent, Bank of America, N.A.
as Syndication Agent, Branch Banking and Trust Company, as Documentation Agent
and the Lenders have entered into a Credit Agreement dated as of June 28, 2002
(the "Credit Agreement") pursuant to which the Lenders have provided certain
credit facilities to the Borrowers, which credit facilities include the Existing
Letter of Credit as a part of such credit facilities; and
WHEREAS, the parties desire to amend and restate the Original
Reimbursement Agreement to provide that the Existing Letter of Credit shall be
deemed to have been issued pursuant to the terms and conditions of the Credit
Agreement and shall be governed by and construed in accordance with the terms of
the Credit Agreement; provided that, in the event of a conflict between the
terms of the Credit Agreement and this Agreement, this Agreement shall control;
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, including the covenants, terms and conditions
hereinafter appearing, the Borrowers do hereby covenant and agree with the
Administrative Agent for the ratable benefit of the Lenders, as follows:
ARTICLE I
DEFINITIONS
1.1 Definitions. Capitalized terms used and not otherwise defined in
this Agreement, including the preambles and recitals hereof, shall have the
meaning assigned thereto in the Credit Agreement. In the event of a conflict
between capitalized terms defined herein and in the Credit Agreement, the Credit
Agreement shall control. The following terms shall have the following meanings:
"Agreement" means this Amended and Restated Letter of Credit and
Reimbursement Agreement, as the same may from time to time be amended, modified
or supplemented in accordance with the terms hereof.
"Bond Documents" means, collectively, the Indenture, the Bonds, the
Remarketing Agreement, the Placement Agreement, the Private Placement Memorandum
and any other documents relating to the issuance of the Bonds, as the same may
be amended, modified or supplemented from time to time in accordance with their
respective terms.
"Commitment Letter" means that certain commitment letter from First
Union National Bank to ▇▇▇▇, Inc. dated June 25, 1998, and accepted and executed
by ▇▇▇▇, Inc. on or before the date of issuance of the Bonds.
"Conversion Draft" shall have the meaning provided in the Existing
Letter of Credit.
"Credit Agreement" shall have the meaning provided in the Recitals to
this Agreement.
"Date of Issuance" means the date of issuance of the Existing Letter of
Credit.
"Event of Default" shall have the meaning specified in Article VIII
hereof.
"Expiration Date" means July 23, 2003, the expiration date of the
Existing Letter of Credit, as such date is extended pursuant to the terms of the
Credit Agreement.
"Issuing Lender" shall have the meaning given to such term in Section
3.1 hereof.
"Material Adverse Effect" means, with respect to the Borrowers or any
of their Subsidiaries, a material adverse effect on the properties, business,
prospects, operations or condition (financial or otherwise) of any such Person
or the ability of any such Person to perform its obligations under this
Agreement, the Credit Agreement, the Existing Letter of Credit or the Indenture,
in each case to which it is a party.
"Placement Agreement" shall have the meaning provided in the
Indenture.
"Pledged Bond Collateral" shall have the meaning provided in Section
9.1 hereof.
"Pledged Bonds" shall have the meaning provided in Section 9.1 hereof.
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"Private Placement Memorandum" shall have the meaning provided in the
Indenture.
"Remarketing Agent" shall have the meaning provided in Section 1101 of
the Indenture.
"Remarketing Agreement" shall have the meaning provided in the
Indenture.
"State" means the State of North Carolina.
"Tender Advance" shall have the meaning provided in Section 3.3 hereof.
"Tender Agent" shall have the meaning provided in Section 1102 of the
Indenture.
"Tender Draft" shall have the meaning provided in the Existing Letter
of Credit.
"Trustee" means any Person or group of Persons at the time serving as
trustee under the Indenture.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE BORROWERS
The Borrowers represent and warrant to the Administrative Agent and the
Lenders that:
2.1 Organization. Each of the Borrowers and their Subsidiaries is a
corporation or limited liability company duly organized, existing and in good
standing under the laws of the state of its incorporation, has the power to own
its properties and to carry on its business as now being conducted, and is duly
qualified as a foreign entity to do business in every jurisdiction in which the
nature of its business makes such qualification necessary.
2.2 Power and Authority. Each of the Borrowers and their Subsidiaries
is duly authorized under all applicable provisions of law to execute, deliver
and perform this Agreement and all corporate action on its part required for the
lawful execution, delivery and performance hereof and thereof has been duly
taken; and this Agreement, upon the due execution and delivery hereof or
thereof, will be the valid and binding obligation of each Borrower enforceable
in accordance with its terms. Neither the execution of this Agreement, nor the
fulfillment of or compliance with the provisions and terms hereof or thereof,
will (A) conflict with, or result in a breach of the terms, conditions or
provisions of, or constitute a violation of or default under, the Articles of
Incorporation, Bylaws or any other organizational documents of any Borrower or
any Subsidiary of such Borrower, or any agreement or instrument to which such
Borrower or any Subsidiary is now a party or any applicable law, regulation,
judgment, writ, order or decree to which such Borrower, any Subsidiary of such
Borrower or any of their respective properties are subject to the extent such
conflict, violation or default would have a Material Adverse Effect on the
business of such Borrower or any Subsidiary of such Borrower, taken as a whole
or (B) create any lien, charge or encumbrance upon any of the property or assets
of the Borrowers or any Subsidiary of any Borrower pursuant to the terms of any
agreement or instrument to which any Borrower or any Subsidiary is a party or by
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which it or any of its properties, are bound to the extent such lien, charge or
encumbrance would, taken as a whole, have a Material Adverse Effect on the
business of the Borrowers or any of their Subsidiaries.
ARTICLE III
REIMBURSEMENT AND OTHER PAYMENTS
3.1 Letter of Credit. The Existing Letter of Credit shall be deemed to
have been issued under the Credit Agreement and shall be governed by the terms
thereof, to the extent not inconsistent with this Agreement. Wachovia, in its
capacity as Issuing Lender under the Credit Agreement (in such capacity, the
"Issuing Lender"), agrees that any and all payments under the Existing Letter of
Credit will be made with the Issuing Lender's own funds.
3.2 Reimbursement and Other Payments. The Borrowers shall pay to the
Issuing Lender all amounts drawn under the Existing Letter of Credit, together
with all interest thereon and all other charges, commissions, costs and expenses
related thereto in accordance with the provisions of Sections 3.3 and 3.5 of the
Credit Agreement.
3.3 Tender Advances.
(a) If the Issuing Lender shall make any payment of that
portion of the purchase price corresponding to principal and interest
of the Bonds drawn under the Existing Letter of Credit pursuant to a
Tender Draft and the conditions set forth in Section 7.1 shall have
been fulfilled, such payment shall constitute a tender advance made by
the Issuing Lender to the Borrowers on the date and in the amount of
such payment (a "Tender Advance"); provided that if the conditions of
said Section 7.1 have not been fulfilled, the amount so drawn pursuant
to the Tender Draft shall be payable in accordance with the terms of
Section 3.5 of the Credit Agreement. Notwithstanding any other
provision hereof, the Borrowers shall repay the unpaid amount of each
Tender Advance, together with all unpaid interest thereon, on the
earlier to occur of: (i) such date as any Bonds purchased pursuant to a
Tender Draft are resold as provided in Section 3.3(d) hereof; (ii) on
the date one year following the date of such Tender Advance; or (iii)
the Expiration Date. The Borrowers may prepay the outstanding amount of
any Tender Advance in whole or in part, together with accrued interest
to the date of such prepayment on the amount prepaid. The Borrowers
shall notify the Issuing Lender prior to 11:00 A.M. Charlotte, North
Carolina time on the date of such prepayment of the amount to be
prepaid, except to the extent the prepayment is being made from the
proceeds of remarketed bonds.
(b) The Borrowers shall pay interest on the unpaid amount of
each Tender Advance from the date of such Tender Advance until such
amount is paid in full, payable quarterly, in arrears, on the last day
of each calendar quarter during the term of each Tender Advance and on
the date such amount is paid in full at the LIBOR Rate plus .60% from
the date of this Agreement through July 1, 2003; and thereafter, if the
Expiration Date of the Existing Letter of Credit is renewed and
extended in accordance with Section 3.1(b) of the Credit Agreement, at
the LIBOR Rate plus the Applicable Margin (as defined in the Credit
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Agreement) and, subject to Section 11.3 of the Credit Agreement, at the
discretion of the Administrative Agent or as directed by the Required
Lenders, upon the occurrence and during the continuance of an Event of
Default, at a rate equal to the LIBOR Rate plus 2.60% during the period
from the date of this Agreement through July 31, 2003 and thereafter at
a rate equal to two percent (2%) in excess of the rate then applicable
to Base Rate Loans (as defined in the Credit Agreement).
(c) Pursuant to Article IX, the Borrowers have agreed that, in
accordance with the terms of the Indenture, Bonds purchased with
proceeds of any Tender Draft shall be delivered by the Tender Agent to
the Issuing Lender or its designee to be held by the Issuing Lender or
its designee in pledge as collateral securing the Borrowers' payment
obligations to the Lenders hereunder and under the Credit Agreement.
Bonds so delivered to the Issuing Lender or its designee shall be
registered in the name of the Company, as provided in Section 9.1.
(d) Prior to or simultaneously with the resale of Pledged
Bonds, the Borrowers shall prepay the then outstanding Tender Advances
(in the order in which they were made) by paying to the Issuing Lender
an amount equal to the sum of (A) the amounts advanced by the Issuing
Lender pursuant to the corresponding Tender Drafts relating to such
Bonds, plus (B) the aggregate amount of accrued and unpaid interest on
such Tender Advances. Such payment shall be applied by the Issuing
Lender in reimbursement of such drawings (and as prepayment of Tender
Advances resulting from such drawings in the manner described above),
and, upon receipt by the Issuing Lender of a certificate completed and
signed by the Trustee in substantially the form of Annex F to the
Existing Letter of Credit, the Borrowers irrevocably authorize the
Issuing Lender to rely on such certificate and to reinstate the
Existing Letter of Credit in accordance therewith. Funds held by the
Tender Agent as a result of sales of the Pledged Bonds by the
Remarketing Agent shall be paid to the Issuing lender by the Tender
Agent to be applied to the amounts owing by Borrowers to the Issuing
Lender pursuant to this paragraph (d). Upon payment to the Issuing
lender of the amount of such Tender Advance to be prepaid, together
with accrued interest on such Tender Advance to the date of such
prepayment on the amount to be prepaid, the principal amount
outstanding of Tender Advances shall be reduced by the amount of such
prepayment and interest shall cease to accrue on the amount prepaid.
3.4 Commission and Fees. The Borrowers shall pay to the Administrative
Agent for the account of the Issuing Lender and the Existing Letter of Credit
Participants the fees, commissions, and other costs and charges with respect to
issuance, maintenance, amendment and draws under the Existing Letter of Credit
described in Section 3.3(b) and 3.3(c) of the Credit Agreement.
3.5 Obligations Absolute. The obligations of the Borrowers under this
Agreement shall be absolute, unconditional and irrevocable, and shall be paid
strictly in accordance with the terms of this Agreement, under all circumstances
whatsoever, including, without limitation, the following circumstances:
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(a) any lack of validity or enforceability of the Existing
Letter of Credit, the Bonds, any of the other Bond Documents or any
other agreement or instrument related thereto;
(b) any amendment or waiver of or any consent to departure
from the terms of the Existing Letter of Credit, the Bonds, any of the
other Bond Documents or any other agreement or instrument related
thereto;
(c) the existence of any claim, setoff, defense or other right
which the Borrowers may have at any time against the Trustee, any
beneficiary or any transferee of the Existing Letter of Credit (or any
Person for whom the Trustee, any such beneficiary or any such
transferee may be acting), the Administrative Agent, the Issuing
Lender, any Lender or any other Person, whether in connection with this
Agreement, the Existing Letter of Credit, the Bond Documents or any
unrelated transaction;
(d) any statement, draft or other document presented under the
Existing Letter of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect, or any statement therein being untrue or
inaccurate in any respect whatsoever; or
(e) the surrender or impairment of any security for the
performance or observance of any of the terms of this Agreement.
ARTICLE IV
[Reserved]
ARTICLE V
[Reserved]
ARTICLE VI
[Reserved]
ARTICLE VII
CONDITIONS PRECEDENT
7.1 To Each Tender Advance. Each payment made by the Issuing Lender
under the Existing Letter of Credit pursuant to a Tender Draft shall constitute
a Tender Advance hereunder only if on the date of such payment the following
statements shall be true:
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(a) The representations and warranties contained in Article II
of this Agreement, Section 701 of the Indenture and Article VI of the
Credit Agreement are true and correct on and as of the date of such
Tender Advance as though made on and as of such date; and
(b) No event has occurred or would result from such Tender
Advance, which constitutes an Event of Default or would constitute an
Event of Default but for the requirement that notice be given or time
elapse or both.
Unless the Borrowers shall have previously advised the Issuing Lender in writing
or the Issuing Lender has actual knowledge that one or more of the above
statements is no longer true, the Borrowers shall be deemed to have represented
and warranted, on the date of payment by the Issuing lender under the Existing
Letter of Credit pursuant to a Tender Draft, that on the date of such payment
the above statements are true and correct.
ARTICLE VIII
DEFAULT
8.1 Events of Default. Each of the following shall constitute an Event
of Default, whatever the reason for such event and whether it shall be voluntary
or involuntary or be effected by operation of law or pursuant to any judgment or
order of any court or any order, rule or regulation of any Governmental
Authority or otherwise:
(a) Failure of the Borrowers to pay when (i) due any payment
of principal or interest, commission, charge or expense referred to in
Article III hereof, except for amounts owed by the Borrowers pursuant
to a Tender Advance under Section 3.3 and (ii) payment of principal or
interest referred to in Section 3.3 hereof; or
(b) The occurrence of an "event of default" or an "Event of
Default" under the Credit Agreement or any of the Bond Documents or the
Indenture; or
(c) Any representation, warranty, certification or statement
made by the Borrowers herein, or in any writing furnished by or on
behalf of the Borrowers or any Subsidiary pursuant to this Agreement or
the Indenture shall have been false, misleading or incomplete in any
material respect on the date as of which made.
8.2 Remedies. Upon the occurrence of an Event of Default, with the
consent of the Required Lenders, the Administrative Agent may, or upon the
request of the Required Lenders, the Administrative Agent shall, (A) pursuant to
Section 802 of the Indenture, advise the Trustee that an Event of Default has
occurred and instruct the Trustee to declare the principal of all Bonds then
outstanding and interest thereon to be immediately due and payable, and (B)
proceed hereunder and, to the extent therein provided, under the Bond Documents
and under the Credit Agreement, in such order as it may elect, and exercise all
other rights and remedies available to it hereunder (including, without
limitation, under Section 9.2 hereof), under the Credit Agreement and at law;
and the Administrative Agent and the Lenders shall have no obligation to proceed
against any Person, to
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exhaust any other remedy or remedies which it or they may have, or to resort to
any other or particular security, whether held by or available to the
Administrative Agent or the Lenders.
8.3 No Remedy Exclusive. No remedy herein conferred upon or reserved to
the Administrative Agent or the Issuing Lender or any Lender is intended to be
exclusive of any other available remedy or remedies, but each and every such
remedy shall be cumulative and shall be in addition to every other remedy given
hereunder or under the Credit Agreement, or now or hereafter existing at law or
in equity.
ARTICLE IX
PLEDGED BONDS
9.1 The Pledge. The Borrowers hereby pledge, assign, hypothecate,
transfer, and deliver to the Administrative Agent for the ratable benefit of the
Lenders all their right, title and interest to, and hereby grant to the
Administrative Agent for the ratable benefit of the Lenders a first lien on, and
security interest in, all right, title and interest of the Borrowers in and to
the following (hereinafter collectively called the "Pledged Bond Collateral"):
(i) all Bonds delivered by the owners thereof to the Tender
Agent (as defined in the Indenture) or Remarketing Agent (as defined in
the Indenture) and purchased on behalf of the Borrowers with proceeds
of drawings under the Existing Letter of Credit (the "Pledged Bonds");
(ii) all income, earnings, profits, interest, premium or other
payments in whatever form in respect of the Pledged Bonds; and
(iii) all proceeds (cash and non-cash) arising out of the
sale, exchange, collection, enforcement or other disposition of all or
any portion of the Pledged Bonds.
The Pledged Bond Collateral shall serve as security for the payment and
performance when due of all obligations of the Borrowers hereunder. The
Borrowers shall deliver, or cause to be delivered, the Pledged Bonds to the
Administrative Agent or to a pledge agent designated by the Administrative Agent
immediately upon receipt thereof or, in the case of Pledged Bonds held under a
book-entry system administered by The Depository Trust Company ("DTC"), New
York, New York (or any other clearing corporation), the Borrowers shall cause
the Pledged Bonds to be reflected on the records of DTC (or such other clearing
corporation) as a position held by the Administrative Agent (or a pledge agent
acceptable to the Administrative Agent) as a DTC participant (or a participant
in such other clearing corporation) and the Administrative Agent (or its pledge
agent) shall reflect on its records that the Pledged Bonds are owned
beneficially by the Company subject to the pledge in favor of the Administrative
Agent.
9.2 Remedies upon Default. Upon the occurrence of an Event of Default,
the Administrative Agent may, and upon the request of the Required Lenders, the
Administrative Agent shall, without demand of performance or other demand,
advertisements and/or notices are hereby expressly waived), forthwith collect,
receive, appropriate and realize upon the Pledged Bond
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Collateral, or any part thereof, and/or forthwith sell, assign, give option or
options to purchase, contract to sell or otherwise dispose of and deliver said
Pledged Bond Collateral, or any part thereof, in one or more parcels at public
or private sale or sales, at any exchange, broker's board or at any of the
offices of the Administrative Agent or any Lender or elsewhere upon such terms
and conditions as it may deem advisable and at such prices as it may deem best,
for cash or on credit or for future delivery without assumption of any credit
risk, with the right to the Administrative Agent or any Lender upon any such
sale or sales, public or private, to purchase the whole or any part of said
Pledged Bond Collateral so sold, free of any right or equity of redemption in
the Borrowers, which right or equity is hereby expressly waived or released. The
Administrative Agent shall apply the net proceeds of any such collection,
recovery, receipt, appropriation, realization or sale, after deducting all
reasonable costs and expenses of every kind incurred therein or incidental to
the care, safekeeping or otherwise of any and all of the Pledged Bond Collateral
or in any way relating to the rights of the Administrative Agent hereunder,
including reasonable attorneys' fees and legal expenses, to the payment in whole
or in part of the obligations of the Borrowers hereunder in such order as the
Administrative Agent may elect, the Borrowers remaining liable for any
deficiency remaining unpaid after such application, and only after so applying
such net proceeds and after the payment by the Administrative Agent of any other
amount required by any provision of law, including, without limitation, Section
9-504(1)(c) of the Uniform Commercial Code, need the Administrative Agent
account for the surplus, if any, to the Borrowers. The Borrowers agree that the
Administrative Agent need not give more than ten days' notice of the time and
place of any public sale or of the time after which a private sale or other
intended disposition is to take place and that such notice is reasonable
notification of such matters. No notification need be given to the Borrowers if
the Borrowers have signed after an Event of Default a statement renouncing or
modifying any right to notification of sale or other intended disposition. In
addition to the rights and remedies granted to the Administrative Agent and
Lenders in this Agreement and in any other instrument or agreement securing,
evidencing or relating to any of the obligations of the Borrowers hereunder, the
Administrative Agent shall have all the rights and remedies of a secured party
under the Uniform Commercial Code in effect in the State at that time. To the
extent permitted by Applicable Law, the Borrowers waive all claims, damages and
demands they may acquire against the Administrative Agent or any Lender arising
out of the exercise by them of any rights hereunder. The Borrowers further waive
and agree not to assert any rights or privileges which they may acquire under
Section 9-112 of the Uniform Commercial Code.
9.3 Valid Perfected First Lien. The Borrowers covenant that the pledge,
assignment and delivery of the Pledged Bond Collateral hereunder will create a
valid, perfected, first priority security interest in all right, title or
interest of the Borrowers in or to such Pledged Bond Collateral, and the
proceeds thereof, subject to no prior pledge, lien, mortgage, hypothecation,
security interest, charge, option or encumbrance or to any agreement purporting
to grant to any third party a security interest in the property or assets of the
Borrowers which would include the Pledged Bond Collateral. The Borrowers
covenant and agree that they will defend the Administrative Agent's right, title
and security interest in and to the Pledged Bond Collateral and the proceeds
thereof against the claims and demands of all persons whomsoever.
9.4 Release of Pledged Bonds. The Pledged Bonds shall not be released:
(a) in connection with Pledged Bonds purchased with the
proceeds of a Tender Draft, (i) until the Issuing lender shall have
been reimbursed in full for any drawings under
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the Existing Letter of Credit in order to purchase Pledged Bonds or
Wachovia Capital Markets has received the proceeds from the remarketing
of the Pledged Bonds, and (ii) until the amount available to be drawn
under the Existing Letter of Credit shall have been reinstated in an
amount equal to the principal amount (and related interest) of the
Pledged Bonds to be so released. If the Borrowers, or the Remarketing
Agent or the Tender Agent on behalf of the Borrowers, reimburse the
Issuing Lender for any such Tender Advances and such payment is
accompanied by a certificate completed and signed by the Trustee in
substantially the form of Annex F to the Existing Letter of Credit, the
Issuing Lender may release from the lien of this Article IX and deliver
to the Borrowers (or their order) or the Remarketing Agent (if such
reimbursement is made by the Remarketing Agent or Tender Agent on
behalf of the Borrowers or if such Bonds are to be remarketed) Pledged
Bonds in a principal amount equal to the amount of such reimbursement;
and
(b) in connection with Pledged Bonds that are purchased with
the proceeds of a Conversion Draft, until the Issuing Lender is
reimbursed in full pursuant to Section 3.2 hereof with respect to the
drawing under the Existing Letter of Credit in connection with the
presentation of such Conversion Draft. Upon such reimbursement, there
may be released from the lien of this Article IX and delivered to the
Borrowers (or their order) Pledged Bonds in a principal amount equal to
the amount of such reimbursement.
With respect to a Tender Draft, the Issuing Lender will instruct the
Tender Agent not to release Pledged Bonds until the Tender Agent receives notice
from the Issuing Lender that the Existing Letter of Credit has been reinstated
in the principal amount of the Pledged Bonds to be released.
ARTICLE X
MISCELLANEOUS
10.1 Transfer of Letter of Credit. The Existing Letter of Credit may be
transferred and assigned in accordance with its terms.
10.2 Reduction of Letter of Credit.
(a) The Existing Letter of Credit is subject to reduction
pursuant to its terms.
(b) If the amount available to be drawn under the Existing
Letter of Credit shall be permanently reduced in accordance with the
terms thereof, then the Issuing Lender shall have the right to require
the Trustee to surrender the Existing Letter of Credit to the Issuing
Lender and to issue on such date, in substitution for such outstanding
Existing Letter of Credit, a substitute irrevocable letter of credit,
substantially in the form of the Existing Letter of Credit but with
such changes therein as shall be appropriate to give effect to such
reduction, dated such date, for the amount to which the amount
available to be drawn under the Existing Letter of Credit shall have
been reduced.
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10.3 Liability of the Issuing Lender. The Borrowers, to the extent
permitted by Applicable Law, assume all risks of the acts or omissions of the
Trustee and any beneficiary or transferee of the Existing Letter of Credit with
respect to its use of the Existing Letter of Credit. Neither the Issuing Lender,
the Administrative Agent or any Lender nor any of their officers, directors,
employees, agents or consultants shall be liable or responsible for:
(a) the use which may be made of the Existing Letter of Credit
or for any acts or omissions of the Trustee or any beneficiary or
transferee in connection therewith;
(b) the validity, sufficiency or genuineness of documents, or
of any endorsement(s) thereon, even if such documents should in fact
prove to be in any or all respects invalid, insufficient, inaccurate,
fraudulent or forged;
(c) payment by the Issuing Lender against presentation of
documents which do not comply on their face with the terms of the
Existing Letter of Credit, including failure of any documents to bear
any reference or adequate reference to the Existing Letter of Credit;
or
(d) any other circumstances whatsoever in any way related to
the making or failure to make payment under the Existing Letter of
Credit;
In furtherance and not in limitation of the foregoing, the Issuing Lender may
accept documents that appear on their face to comply with the terms of the
Existing Letter of Credit, without responsibility for further investigation,
regardless of any notice or information to the contrary.
10.4 Successors and Assigns. This Agreement shall be binding upon the
Borrowers, their successors and assigns and all rights against the Borrowers
arising under this Agreement shall be for the sole benefit of the Administrative
Agent, the Issuing Lender and the Lenders, their respective successors and
assigns, all of whom shall be entitled to enforce performance and observance of
this Agreement to the same extent as if they were parties hereto.
10.5 Notices. All notices and communications hereunder shall be given
to the addresses and otherwise made in accordance with Section 13.1 of the
Credit Agreement.
10.6 Amendments, Waivers and Consents. No term, covenant, agreement or
condition of this Agreement may be amended or waived, nor may any consent be
given, except in the manner set forth in Section 13.11 of the Credit Agreement.
10.7 Effect of Delay and Waivers. No delay or omission to exercise any
right or power accruing upon any default, omission or failure of performance
hereunder shall impair any such right or power or shall be construed to be a
waiver thereof, but any such right and power may be exercised from time to time
and as often as may be deemed expedient. In order to entitle the Administrative
Agent to exercise any remedy now or hereafter existing at law or in equity or by
statute, it shall not be necessary to give any notice, other than such notice as
may be herein expressly required. In the event any provision contained in this
Agreement should be breached by any party and thereafter waived by the other
party so empowered to act, such waiver shall be limited to the particular breach
hereunder. No waiver, amendment, release or modification of this Agreement shall
be established
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by conduct, custom or course of dealing, but solely by an instrument in writing
duly executed by the parties thereunto duly authorized by this Agreement.
10.8 Counterparts. This Agreement may be executed simultaneously in
several counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
10.9 Severability. The invalidity or unenforceability of any one or
more phrases, sentences, clauses or Sections contained in this Agreement shall
not affect the validity or enforceability of the remaining portions of this
Agreement, or any part thereof.
10.10 Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State, without reference to the conflicts or
choice of law principles thereof. The Borrowers hereby acknowledge that the
Existing Letter of Credit shall be governed by and construed in accordance with
Uniform Customs and Practice for Documentary Credits (1993 revisions),
International Chamber of Commerce Publication No. 500.
10.11 References. The words "herein", "hereof", "hereunder" and other
words of similar import when used in this Agreement refer to this Agreement as a
whole, and not to any particular article, section or subsection.
10.12 Taxes, Etc. Any taxes (excluding income taxes) payable or ruled
payable by federal or state authority in respect of the Existing Letter of
Credit or this Agreement shall be paid by the Borrowers upon demand by the
Administrative Agent, together with interest and penalties, if any.
10.13 Jurisdiction and Venue.
(a) Jurisdiction. The Borrowers hereby irrevocably consent to the
personal jurisdiction of the state and federal courts located in Mecklenburg
County, North Carolina (and any courts from which an appeal from any of such
courts must or may be taken), in any action, claim or other proceeding arising
out of any dispute in connection with this Agreement, the Existing Letter of
Credit, the Bond Documents or the Bonds, any rights or obligations hereunder or
thereunder, or the performance of such rights and obligations. The Borrowers
hereby irrevocably consent to the service of a summons and complaint and other
process in any action, claim or proceeding brought by the Administrative Agent
or any Lender in connection with this Agreement, the Existing Letter of Credit,
the Bond Documents or the Bonds, any rights or obligations hereunder or
thereunder, or the performance of such rights and obligations, on behalf of
itself or its property, in the manner specified in Section 13.1 of the Credit
Agreement. Nothing in this Section 10.13(a) shall affect the right of the
Administrative Agent or any Lender to serve legal process in any other manner
permitted by Applicable Law or affect the right of the Administrative Agent or
any Lender to bring any action or proceeding against any Borrower or its
properties in the courts of any other jurisdictions.
(b) Venue. The Borrowers hereby irrevocably waive any objection they
may have now or in the future to the laying of venue in the aforesaid
jurisdiction in any action, claim or other proceeding arising out of or in
connection with this Agreement, the Existing letter of Credit, the Bond
Documents or the Bonds or the rights and obligations of the parties hereunder or
thereunder.
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The Borrowers irrevocably waive, in connection with such action, claim or
proceeding, any plea or claim that the action, claim or other proceeding has
been brought in an inconvenient forum.
[Signature pages to follow]
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed under seal by their duly authorized officers, all as of the day and
year first written above.
THE BORROWERS:
[CORPORATE SEAL] ▇▇▇▇, INC., as a Borrower
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
--------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇
Title: Chairman of the Board
BELK ADMINISTRATION COMPANY,
as a Borrower
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
--------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇
Title: Chairman of the Board
BELK INTERNATIONAL, INC.,
as a Borrower
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
--------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇
Title: Chairman of the Board
▇▇▇▇ STORES SERVICES, INC.,
as a Borrower
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
--------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇
Title: Chairman of the Board
▇▇▇▇-▇▇▇▇▇▇▇ COMPANY, GREENVILLE,
SOUTH CAROLINA, as a Borrower
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
--------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇
Title: Chairman of the Board
Amended and Restated Letter of Credit and Reimbursement Agreement
THE ▇▇▇▇ CENTER, INC, as a Borrower
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
--------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇
Title: Chairman of the Board
UNITED ELECTRONIC SERVICES, INC.,
as a Borrower
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
--------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇
Title: Chairman of the Board
BELK ACCOUNTS RECEIVABLE LLC,
as a Borrower
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
--------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇
Title: Chairman of the Board
▇▇▇▇ STORES OF VIRGINIA LLC,
as a Borrower
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
--------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇
Title: Chairman of the Board
BELK GIFT CARD COMPANY LLC,
as a Borrower
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
--------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇
Title: Chairman of the Board
Amended and Restated Letter of Credit and Reimbursement Agreement
THE BANK:
WACHOVIA BANK, NATIONAL ASSOCIATION
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇ Marks
---------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇ Marks
Title: Director
Amended and Restated Letter of Credit and Reimbursement Agreement