Exhibit 10(a)
AMENDED AND RESTATED CREDIT AGREEMENT
dated as of
August 23, 2002
among
▇▇▇▇, INC.
The Banks Listed Herein
and
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Agent
TABLE OF CONTENTS
(continued)
PAGE
TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS...................................................1
SECTION 1.01. Definitions..........................................1
SECTION 1.02. Accounting Terms and Determinations.................14
SECTION 1.03. References..........................................15
SECTION 1.04. Use of Defined Terms................................15
SECTION 1.05. Terminology; Headings...............................15
ARTICLE II THE CREDITS..................................................15
SECTION 2.01. Commitments to Lend.................................15
SECTION 2.02. Method of Borrowing.................................16
SECTION 2.03. Money Market Loans..................................22
SECTION 2.04. Notes...............................................26
SECTION 2.05. Maturity of Loans...................................26
SECTION 2.06. Interest Rates......................................26
SECTION 2.07. Loan Fees...........................................29
SECTION 2.08. Optional Termination or Reduction of Commitments....29
SECTION 2.09. Termination of Commitments..........................29
SECTION 2.10. Optional Prepayments................................29
SECTION 2.11. Mandatory Prepayments...............................30
SECTION 2.12. General Provisions as to Payments...................30
SECTION 2.13. Computation of Interest and Fees....................32
ARTICLE III CONDITIONS TO BORROWINGS.....................................32
SECTION 3.01. Conditions to First Borrowing.......................32
SECTION 3.02. Conditions to All Borrowings........................33
ARTICLE IV REPRESENTATIONS AND WARRANTIES...............................34
SECTION 4.01. Corporate Existence and Power.......................34
SECTION 4.02. Corporate and Governmental Authorization; No
Contravention.......................................34
SECTION 4.03. Binding Effect......................................34
SECTION 4.04. Financial Information...............................35
SECTION 4.05. No Litigation.......................................35
SECTION 4.06. Compliance with ERISA...............................35
SECTION 4.07. Compliance with Laws; Payment of Taxes..............35
SECTION 4.08. Subsidiaries........................................36
SECTION 4.09. Investment Company Act..............................36
SECTION 4.10. Public Utility Holding Company Act..................36
SECTION 4.11. Ownership of Property; Liens........................36
SECTION 4.12. No Default..........................................36
SECTION 4.13. Full Disclosure.....................................36
SECTION 4.14. Environmental Matters...............................36
SECTION 4.15. Capital Stock.......................................37
SECTION 4.16. Margin Stock........................................37
SECTION 4.17. Insolvency..........................................38
SECTION 4.18. Insurance...........................................38
ARTICLE V COVENANTS....................................................38
SECTION 5.01. Information.........................................38
SECTION 5.02. Inspection of Property, Books and Records...........39
SECTION 5.03. Maintenance of Existence............................40
SECTION 5.04. Dissolution.........................................40
SECTION 5.05. Consolidations, Mergers and Sales of Assets.........40
SECTION 5.06. Use of Proceeds.....................................40
SECTION 5.07. Compliance with Laws; Payment of Taxes..............41
SECTION 5.08. Insurance...........................................41
SECTION 5.09. Change in Fiscal Year...............................41
SECTION 5.10. Maintenance of Property.............................41
SECTION 5.11. Environmental Notices...............................41
SECTION 5.12. Environmental Matters...............................41
SECTION 5.13. Environmental Release...............................41
SECTION 5.14. Transactions with Affiliates........................41
SECTION 5.15. Loans or Advances...................................42
SECTION 5.16. Investments.........................................42
SECTION 5.17. Priority Debt.......................................42
SECTION 5.18. Restrictions on Ability of Subsidiaries to Pay
Dividends...........................................43
SECTION 5.19. Interest and Leases Coverage........................44
SECTION 5.20. Ratio of Funded Debt to Total Tangible
Capitalization......................................44
SECTION 5.21. Debt/EBITDA Ratio...................................44
SECTION 5.22. Acquisitions........................................44
SECTION 5.23. Restricted Payments.................................44
SECTION 5.24. Capital Expenditures................................44
SECTION 5.25. Redemption of Bonds; Release of Collateral Upon
$8,000,000 Bond Redemption..........................44
ARTICLE VI DEFAULTS.....................................................45
SECTION 6.01. Events of Default...................................45
SECTION 6.02. Notice of Default...................................47
ARTICLE VII THE AGENT....................................................47
SECTION 7.01. Appointment; Powers and Immunities..................48
SECTION 7.02. Reliance by Agent...................................48
SECTION 7.03. Defaults............................................48
SECTION 7.04. Rights of Agent as a Bank and its Affiliates........49
SECTION 7.05. Indemnification.....................................49
SECTION 7.06. CONSEQUENTIAL DAMAGES...............................49
SECTION 7.07. Payee of Note Treated as Owner......................49
SECTION 7.08. Nonreliance on Agent and Other Banks................50
SECTION 7.09. Failure to Act......................................50
SECTION 7.10. Resignation or Removal of Agent.....................50
ARTICLE VIII CHANGE IN CIRCUMSTANCES; COMPENSATION........................50
SECTION 8.01. Basis for Determining Interest Rate Inadequate
or Unfair...........................................50
SECTION 8.02. Illegality..........................................51
SECTION 8.03. Increased Cost and Reduced Return...................51
SECTION 8.04. Base Rate Loans or Other Fixed Rate Loans
Substituted for Affected Fixed Rate Loans...........53
SECTION 8.05. Compensation........................................53
ARTICLE IX MISCELLANEOUS................................................53
SECTION 9.01. Notices.............................................54
SECTION 9.02. No Waivers..........................................54
SECTION 9.03. Expenses; Documentary Taxes.........................54
SECTION 9.04. Indemnification.....................................54
SECTION 9.05. Setoff; Sharing of Setoffs..........................55
SECTION 9.06. Amendments and Waivers..............................55
SECTION 9.07. No Margin Stock Collateral..........................56
SECTION 9.08. Successors and Assigns..............................56
SECTION 9.09. Confidentiality.....................................58
SECTION 9.10. Representation by Banks.............................59
SECTION 9.11. Obligations Several.................................59
SECTION 9.12. North Carolina Law..................................59
SECTION 9.13. Severability........................................59
SECTION 9.14. Interest............................................60
SECTION 9.15. Interpretation......................................60
SECTION 9.16. Waiver of Jury Trial; Consent to Jurisdiction.......60
SECTION 9.17. Counterparts........................................60
SECTION 9.18. Source of Funds - ERISA.............................60
SECTION 9.19. Replacement of Banks................................61
EXHIBIT A-1 Form of Syndicated Loan Note
EXHIBIT A-2 Form of Money Market Loan Note
EXHIBIT B Form of Opinion of Counsel for the Borrower
EXHIBIT C Form of New Letter of Credit Notice
EXHIBIT D Form of Assignment and Acceptance
EXHIBIT E Form of Notice of Borrowing
EXHIBIT E-2 Form of Notice of Continuation or Conversion
EXHIBIT F Form of Compliance Certificate
EXHIBIT G Form of Closing Certificate
EXHIBIT H Form of Officer's Certificate
EXHIBIT I Form of Money Market Quote Request
EXHIBIT J Form of Money Market Quote
EXHIBIT K Form of Amended and Restated Security Agreement
Schedule 4.08 Subsidiaries
Schedule 5.15 Loans and Advances existing on the Closing Date
Schedule 5.16 Investments existing on the Closing Date
Schedule 5.17 Debt of Subsidiaries existing on the Closing Date
AMENDED AND RESTATED CREDIT AGREEMENT
AGREEMENT dated as of August 23, 2002 among ▇▇▇▇, INC., the BANKS
listed on the signature pages hereof and WACHOVIA BANK, NATIONAL ASSOCIATION,
as Agent.
The parties hereto agree that this Agreement amends and restates in its
entirety the Original Credit Agreement (as defined below) as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions. The terms as defined in this Section 1.01 shall, for
all purposes of this Agreement and any amendment hereto (except as herein
otherwise expressly provided or unless the context otherwise requires), have the
meanings set forth herein:
"Acquisition" means the acquisition by the Borrower or any of its
Subsidiaries of all or substantially all of the assets or stock of any Person.
"Adjusted London Interbank Offered Rate" has the meaning set forth in
Section 2.06(c).
"Affiliate" of any relevant Person means (i) any Person that directly,
or indirectly through one or more intermediaries, controls the relevant
Person (a "Controlling Person"), (ii) any Person (other than the relevant
Person or a Subsidiary of the relevant Person) which is controlled by or is
under common control with a Controlling Person, or (iii) any Person (other
than a Subsidiary of the relevant Person) of which the relevant Person owns,
directly or indirectly, 20% or more of the common stock or equivalent equity
interests. As used herein, the term "control" means possession, directly or
indirectly, of the power to direct or cause the direction of the management
or policies of a Person, whether through the ownership of voting securities,
by contract or otherwise.
"Agent" means WACHOVIA BANK, NATIONAL ASSOCIATION, a national banking
association organized under the laws of the United States of America, in its
capacity as agent for the Banks hereunder, and its successors and permitted
assigns in such capacity.
"Agent's Letter Agreement" means any letter agreement between the
Borrower and the Agent relating solely to the structure of the Loans and fees
relating thereto from time to time payable by the Borrower to the Agent which
identifies itself as an "Agent's Letter Agreement," together with all
amendments and supplements thereto.
"Agreement" means this Credit Agreement, together with all amendments
and supplements hereto.
"Applicable Margin" has the meaning set forth in Section 2.06(a).
"Assignee" has the meaning set forth in Section 9.08(c).
"Assignment and Acceptance" means an Assignment and Acceptance executed
in accordance with Section 9.08(c) in the form attached hereto as Exhibit D.
"Authority" has the meaning set forth in Section 8.02.
"Bank" means each bank listed on the signature pages hereof as having a
Commitment, and its successors and assigns.
"Base Rate" means for any Base Rate Loan for any day, the rate per
annum equal to the higher as of such day of (i) the Prime Rate, or (ii)
one-half of one percent above the Federal Funds Rate. For purposes of
determining the Base Rate or the Federal Funds Rate for any day, changes in
the Prime Rate or the Federal Funds Rate shall be effective on the date of
each such change.
"Base Rate Loan" means a Loan which bears or is to bear interest at a
rate based upon the Base Rate, and is to be made as a Base Rate Loan pursuant
to the applicable Notice of Borrowing, Notice of Continuation or Conversion,
Section 2.02(f), or Article VIII, as applicable.
"Borrower" means ▇▇▇▇, Inc., a North Carolina corporation, and its
successors and permitted assigns.
"Borrowing" means a borrowing hereunder consisting of Loans made to the
Borrower (i) at the same time by all of the Banks, in the case of a
Syndicated Borrowing, or (ii) separately by one or more Banks, in the case of
a Money Market Borrowing, in each case pursuant to Article II. A Borrowing
is a "Base Rate Borrowing" if such Loans are Base Rate Loans or a
"Euro-Dollar Borrowing" if such Loans are Euro-Dollar Loans. A Borrowing is
a "Money Market Borrowing" if such Loans are made pursuant to Section 2.03 or
a "Syndicated Borrowing" if such Loans are made pursuant to Section 2.01.
"Capital Expenditures" means for any period the sum of all capital
expenditures incurred during such period by the Borrower and its Consolidated
Subsidiaries, as determined in accordance with GAAP.
"Capital Stock" means any nonredeemable capital stock of the Borrower
or any Consolidated Subsidiary (to the extent issued to a Person other than
the Borrower), whether common or preferred.
"CERCLA" means the Comprehensive Environmental Response Compensation
and Liability Act, 42 U.S.C. Section 9601 et. seq. and its implementing
regulations and amendments.
"CERCLIS" means the Comprehensive Environmental Response Compensation
and Liability Inventory System established pursuant to CERCLA.
"Change of Law" shall have the meaning set forth in Section 8.02.
"Chattanooga Restructuring" means the closing of the Borrower's
facility in Chattanooga, Tennessee (formerly operated in Rossville, Georgia),
and the movement and consolidation of certain of such facility's "▇▇▇▇
Decorative Fabrics" assets to other facilities of the Borrower.
"Chattanooga Sale/Leaseback Transaction" means a transaction whereby
the Borrower would: (i) convey to The Industrial Development Board of the
City of Chattanooga (the "Issuer) certain items of machinery, equipment and
related personal property owned (or to be owned) by the Borrower in
connection with the business currently conducted at its Rossville, Georgia
plant (the "Project"); (ii) lease back the Project from the Issuer for
payments in a nominal amount in lieu of ad valorem taxes for a period ending
December 31, 2007; (iii) have the right to terminate the lease at any time
upon written notice; (iv) have the option to purchase the Project upon any
lease termination (whether at maturity or upon early termination by the
Borrower) for a purchase price of $1; and (v) limit the Project to assets
with a cost basis not to exceed $20,000,000 in the aggregate.
"Closing Certificate" has the meaning set forth in Section 3.01(e).
"Closing Date" means August 23, 2002.
"Code" means the Internal Revenue Code of 1986, as amended, or any
successor Federal tax code.
"Commitment" means, with respect to each Bank, (i) the amount set forth
opposite the name of such Bank on the signature pages hereof, and (ii) as to
any Bank which enters into any Assignment and Acceptance (whether as
transferor Bank or as Assignee thereunder), the amount of such Bank's
Commitment after giving effect to such Assignment and Acceptance, in each
case as such amount may be reduced from time to time pursuant to Sections
2.08 and 2.09.
"Compliance Certificate" has the meaning set forth in Section 5.01(c).
"Consolidated Lease Expense" for any period means all rental expense
under operating leases of the Borrower and its Consolidated Subsidiaries on a
consolidated basis during such period.
"Consolidated Net Interest Expense" for any period means interest,
whether expensed or capitalized, in respect of Debt of the Borrower or any of
its Consolidated Subsidiaries outstanding during such period, net of any
interest income attributable to Restricted Investments.
"Consolidated Net Income" means, for any period, the Net Income of the
Borrower and its Consolidated Subsidiaries determined on a consolidated
basis, but excluding (i) extraordinary items and other non-recurring items
and (ii) any equity interests of the Borrower or any Subsidiary in the
unremitted earnings of any Person that is not a Subsidiary.
"Consolidated Net Worth" means, on a consolidated basis and in
accordance with GAAP, at any time, (a) the sum of (i) the par value (or value
stated on the books of the Borrower) of Capital Stock (excluding therefrom
Redeemable Preferred Stock, treasury stock and capital stock subscribed and
unissued) plus (ii) the amount of paid-in capital and retained earnings of
the Borrower and its Subsidiaries, minus (b) to the extent included in the
immediately preceding clause (a), all amounts properly attributable to
minority interests, if any, in the stock and surplus of any such Subsidiaries.
"Consolidated Subsidiary" means at any date any Subsidiary or other
entity the accounts of which, in accordance with GAAP, would be consolidated
with those of the Borrower in its consolidated financial statements as of
such date.
"Consolidated Tangible Net Worth" means, on a consolidated basis, at
any time, Consolidated Net Worth less the amount of any intangible items as
determined in accordance with GAAP at such time.
"Consolidated Total Assets" means, at any time, the total assets of the
Borrower and its Consolidated Subsidiaries, determined on a consolidated
basis, as set forth or reflected on the most recent consolidated balance
sheet of the Borrower and its Consolidated Subsidiaries, prepared in
accordance with GAAP.
"Controlled Group" means all members of a controlled group of
corporations and all trades or businesses (whether or not incorporated) under
common control which, together with the Borrower, are treated as a single
employer under Section 414 of the Code.
"▇▇▇▇ Family" means ▇▇▇▇▇▇ ▇. ▇▇▇▇, III, his spouse, his mother, his
siblings, his lineal descendants, and any trusts established for the benefit
of any of them.
"Debt" of any Person means at any date, without duplication, (i) all
obligations of such Person for borrowed money, (ii) all obligations of such
Person evidenced by bonds, debentures, notes or other similar instruments,
(iii) all obligations of such Person to pay the deferred purchase price of
property or services, except trade accounts payable arising in the ordinary
course of business, (iv) all obligations of such Person as lessee under
capital leases, (v) all obligations of such Person to reimburse any bank or
other Person in respect of amounts payable under a banker's acceptance, (vi)
all Redeemable Preferred Stock of such Person (in the event such Person is a
corporation), (vii) all obligations of such Person to reimburse any bank or
other Person in respect of amounts paid or to be paid under a letter of
credit or similar instrument, (viii) all Debt of others secured by a Lien on
any asset of such Person, whether or not such Debt is assumed by such Person,
(ix) all obligations of such Person with respect to interest rate protection
agreements, foreign currency exchange agreements or other hedging
arrangements (valued as the termination value thereof computed in accordance
with a method approved by the International Swap Dealers Association and
agreed to by such Person in the applicable hedging agreement, if any), and
(x) all Debt of others Guaranteed by such Person.
"Debt/EBITDA Ratio" means at any time the ratio of (i) Funded Debt to
(ii) EBITDA.
"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.
"Default Rate" means, with respect to any Loan, on any day, the sum of
2% plus the then highest interest rate (including the Applicable Margin)
which may be applicable to any Loans hereunder (irrespective of whether any
such type of Loans are actually outstanding hereunder).
"Dollars" or "$" means dollars in lawful currency of the United States
of America.
"Domestic Business Day" means any day except a Saturday, Sunday or
other day on which commercial banks in North Carolina are authorized by law
to close.
"EBIT" means at any time the sum of the following, determined on a
consolidated basis for the Borrower and its Consolidated Subsidiaries, at the
end of each Fiscal Quarter, for the Fiscal Quarter just ended and the 3
immediately preceding Fiscal Quarters: (i) Consolidated Net Income; plus (ii)
Consolidated Net Interest Expense; plus (iii) taxes on income.
"EBITDA" means at any time the sum of the following, determined on a
consolidated basis for the Borrower and its Consolidated Subsidiaries, at the
end of each Fiscal Quarter, for the Fiscal Quarter just ended and the 3
immediately preceding Fiscal Quarters (and with respect to any Acquisition
which is made during such 4 Fiscal Quarter period, the Consolidated
Subsidiary acquired in such Acquisition shall be included as if it had been a
Consolidated Subsidiary prior to the commencement of such 4 Fiscal Quarter
period): (i) Consolidated Net Income; plus (ii) Consolidated Net Interest
Expense; plus (iii) taxes on income; plus (iv) depreciation; plus (v)
amortization; plus (vi) cash charges described on Schedule 1.01(E) attached
hereto and made a part hereof not exceeding $5,100,000 in the aggregate
through the fourth Fiscal Quarter of Fiscal Year 2002; plus (vii) cash
charges described on Schedule 1.01(F) attached hereto and made a part hereof
not exceeding $1,400,000 in the aggregate through the fourth Fiscal Quarter
of Fiscal Year 2002; plus (viii) cash charges described on Schedule 1.01(G)
attached hereto and made a part hereof not exceeding $12,025,800 in the
aggregate through the fourth Fiscal Quarter of Fiscal Year 2003; plus (ix)
other non-cash charges.
"EBILTDA" means at any time the sum of the following, determined on a
consolidated basis for the Borrower and its Consolidated Subsidiaries, at the
end of each Fiscal Quarter, for the Fiscal Quarter just ended and the 3
immediately preceding Fiscal Quarters (and with respect to any Acquisition
which is made during such 4 Fiscal Quarter Period, the Consolidated
Subsidiary acquired in such Acquisition shall be included as if it had been a
Consolidated Subsidiary prior to the commencement of such 4 Fiscal Quarter
Period): (i) EBITDA; plus (ii) Consolidated Lease Expense.
"Environmental Authority" means any foreign, federal, state, local or
regional government that exercises any form of jurisdiction or authority
under any Environmental Requirement.
"Environmental Authorizations" means all licenses, permits, orders,
approvals, notices, registrations or other legal prerequisites for conducting
the business of the Borrower or any Subsidiary required by any Environmental
Requirement.
"Environmental Judgments and Orders" means all judgments, decrees or
orders arising from or in any way associated with any Environmental
Requirements, whether or not entered upon consent or written agreements with
an Environmental Authority or other entity arising from or in any way
associated with any Environmental Requirement, whether or not incorporated in
a judgment, decree or order.
"Environmental Liabilities" means any liabilities, whether accrued,
contingent or otherwise, arising from and in any way associated with any
Environmental Requirements.
"Environmental Notices" means notice from any Environmental Authority
or by any other person or entity, of possible or alleged noncompliance with
or liability under any Environmental Requirement, including without
limitation any complaints, citations, demands or requests from any
Environmental Authority or from any other person or entity for correction of
any, violation of any Environmental Requirement or any investigations
concerning any violation of any Environmental Requirement.
"Environmental Proceedings" means any judicial or administrative
proceedings arising from or in any way associated with any Environmental
Requirement.
"Environmental Releases" means releases as defined in CERCLA or under
any applicable state or local environmental law or regulation.
"Environmental Requirements" means any legal requirement relating to
health, safety or the environment and applicable to the Borrower, any
Subsidiary or the Properties, including but not limited to any such
requirement under CERCLA or similar state legislation and all federal, state
and local laws, ordinances, regulations, orders, writs, decrees and common
law.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, or any successor law. Any reference to any
provision of ERISA shall also be deemed to be a reference to any successor
provision or provisions thereof.
"Euro-Dollar Business Day" means any Domestic Business Day on which
dealings in Dollar deposits are carried out in the London interbank market.
"Euro-Dollar Loan" means a Loan which bears or is to bear interest at a
rate based upon the Adjusted London Interbank Offered Rate, and to be made as
a Euro-Dollar Loan pursuant to the applicable Notice of Borrowing or Notice
of Continuation or Conversion.
"Euro-Dollar Reserve Percentage" has the meaning set forth in
Section 2.06(c).
"Event of Default" has the meaning set forth in Section 6.01.
"Existing Letters of Credit" means the existing letters of credit
issued by the Issuer with respect to: (i) $3,377,000 original principal
amount Chesterfield County South Carolina Industrial Revenue Bonds (Series
1988); (ii) $7,900,000 original principal amount Alamance County Industrial
Facilities and Pollution Control Financing Authority Industrial Revenue
Refunding Bonds (Series A and B); and (iii) $6,000,000 original principal
amount Chesterfield County South Carolina Industrial Revenue Bonds (Series
1996).
"Federal Funds Rate" means, for any day, the rate per annum (rounded
upward, if necessary, to the next higher 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 Domestic Business
Day next succeeding such day, provided that (i) if the day for which such
rate is to be determined is not a Domestic Business Day, the Federal Funds
Rate for such day shall be such rate on such transactions on the next
preceding Domestic Business Day as so published on the next succeeding
Domestic Business Day, and (ii) if such rate is not so published for any day,
the Federal Funds Rate for such day shall be the average rate charged to the
Agent on such day on such transactions, as determined by the Agent.
"Fiscal Month" means any fiscal month of the Borrower.
"Fiscal Quarter" means any fiscal quarter of the Borrower.
"Fiscal Year" means any fiscal year of the Borrower, ending on the
Sunday closest to April 30 of each year.
"Fixed Rate Borrowing" means a Euro-Dollar Borrowing or a Money Market
Borrowing, or either of them, as the context shall require.
"Fixed Rate Loans" means Euro-Dollar Loans or Money Market Loans, or
either of them, as the context shall require.
"Funded Debt" means at any date, without duplication, the sum of the
following, determined on a consolidated basis and in accordance with GAAP for
the Borrower and its Consolidated Subsidiaries: (i) all obligations for
borrowed money; (ii) all obligations as lessee under capital leases; (iii)
all obligations with respect to industrial revenue bonds (or letters of
credit issued as an enhancement thereto), excluding, however, Restricted
Investments; and (iv) all Debt of the types described in clauses (i), (ii)
and (iii) of others Guaranteed by the Borrower or any Consolidated Subsidiary.
"GAAP" means generally accepted accounting principles applied on a
basis consistent with those which, in accordance with Section 1.02, are to be
used in making the calculations for purposes of determining compliance with
the terms of this Agreement.
"Guarantee" by any Person means any obligation, contingent or
otherwise, of such Person directly or indirectly guaranteeing any Debt or
other obligation of any other Person and, without limiting the generality of
the foregoing, any obligation, direct or indirect, contingent or otherwise,
of such Person (i) to secure, purchase or pay (or advance or supply funds for
the purchase or payment of) such Debt or other obligation (whether arising by
virtue of partnership arrangements, by agreement to keep-well, to purchase
assets, goods, securities or services, to provide collateral security, to
take-or-pay, or to maintain financial statement conditions or otherwise) or
(ii) entered into for the purpose of assuring in any other manner the obligee
of such Debt or other obligation of the payment thereof or to protect such
obligee against loss in respect thereof (in whole or in part), provided that
the term Guarantee shall not include endorsements for collection or deposit
in the ordinary course of business. The term "Guarantee" used as a verb has
a corresponding meaning.
"Hazardous Materials" includes, without limitation, (a) solid or
hazardous waste, as defined in the Resource Conservation and Recovery Act of
1980, 42 U.S.C. Section 6901 et seq. and its implementing regulations and
amendments, or in any applicable state or local law or regulation, (b)
"hazardous substance", "pollutant", or "contaminant" as defined in CERCLA, or
in any applicable state or local law or regulation, (c) gasoline, or any
other petroleum product or by-product, including, crude oil or any fraction
thereof (d) toxic substances, as defined in the Toxic Substances Control Act
of 1976, or in any applicable state or local law or regulation or (e)
insecticides, fungicides, or rodenticides, as defined in the Federal
Insecticide, Fungicide, and Rodenticide Act of 1975, or in any applicable
state or local law or regulation, as each such Act, statute or regulation may
be amended from time to time.
"Interest and Leases Coverage Ratio" means the ratio of EBILTDA to the
sum of (x) Consolidated Net Interest Expense plus (y) Consolidated Lease
Expense.
"Interest Period" means:
(1) with respect to each Euro-Dollar Borrowing, subject to paragraph
(c) below, the period commencing on the date of such Borrowing and
ending on the numerically corresponding day in the first, second, third
or sixth month thereafter, as the Borrower may elect in the applicable
Notice of Borrowing; provided that:
(a) any Interest Period which would otherwise end on a day which is
not a Euro-Dollar Business Day, shall be extended to the next succeeding
Euro-Dollar Business Day, unless such Euro-Dollar Business Day, falls in
another calendar month, in which case such Interest Period shall, subject
to paragraph (c) below end on the next preceding Euro-Dollar Business Day;
(b) any Interest Period which begins on the last Euro-Dollar Business
Day, of a calendar month (or on a day for which there is no numerically
corresponding day in the appropriate subsequent calendar month) shall end
on the last Euro-Dollar Business Day, of the appropriate subsequent
calendar month; and
(c) no Interest Period may be selected which begins before the
Termination Date and would otherwise end after the Termination Date.
(2) With respect to each Base Rate Borrowing, the period commencing
on the date of such Borrowing and ending 30 days thereafter; provided
that:
(a) any Interest Period which would otherwise end on a day which is
not a Domestic Business Day shall be extended to the next succeeding
Domestic Business Day; and
(b) no Interest Period which begins before the Termination Date and
would otherwise end after the Termination Date may be selected.
(3) With respect to each Money Market Borrowing, the period
commencing on the date of such Borrowing and ending on the Stated
Maturity Date or such other date or dates as may be specified in the
applicable Money Market Quote; provided that:
(a) any Interest Period (subject to clause (b) below) which would
otherwise end on a day which is not a Domestic Business Day shall be
extended to the next succeeding Domestic Business Day; and
(b) no Interest Period may be selected which begins before the
Termination Date and would otherwise end after the Termination Date.
"Investment" means any investment in any Person, whether by means of
purchase or acquisition of obligations or securities of such Person, capital
contribution to such Person, loan or advance to such Person, making of a time
deposit with such Person, Guarantee or assumption of any obligation of such
Person or otherwise; provided, however, that the term Investment shall not
include an Acquisition.
"Issuer" means Wachovia Bank, National Association in its capacity as
the issuer of the Letters of Credit.
"Joint Venture" means any Person in which the Borrower and one or more
other Persons makes an Investment for a limited purpose operation and which
does not constitute a Subsidiary.
"LC Commitment Percentage" means, with respect to a Bank, the ratio,
expressed as a percentage, of (a) the amount of such Bank's Commitment to (b)
the aggregate amount of the Commitments of all Banks hereunder; provided,
however, that if at the time of determination the Commitments have terminated
or been reduced to zero, the "LC Commitment Percentage" of each Bank shall be
the LC Commitment Percentage of such Bank in effect immediately prior to such
termination or reduction.
"Lending Office" means, as to each Bank, its office located at its
address set forth on the signature pages hereof (or identified on the
signature pages hereof as its Lending Office) or such other office as such
Bank may hereafter designate as its Lending Office by notice to the Borrower
and the Agent.
"Letter of Credit" means each Existing Letter of Credit and each New
Letter of Credit, and "Letters of Credit" means all Existing Letters of
Credit and New Letters of Credit.
"Letter of Credit Obligations" means, at any particular time, the sum
of (a) the Reimbursement Obligations outstanding at such time, and (b) the
aggregate maximum amount available for drawing under the Letters of Credit at
such time.
"Letter of Credit Reimbursement Agreements" shall mean, (i) with
respect to each Existing Letter of Credit, the following Reimbursement
Agreements between the Borrower and the Agent (as amended by that certain
First Amendment thereto dated as of November 14, 2000, that certain Second
Amendment thereto dated as of January 26, 2001, that certain Third Amendment
thereto dated as of even date with this Agreement and as amended or otherwise
modified from time to time), each dated as of April 1, 1997 (except for item
(iii) which is dated as of July 1, 1997), with respect to (i) $3,377,000
original principal amount Chesterfield County South Carolina Industrial
Revenue Bonds (Series 1988); (ii) $7,900,000 original principal amount
Alamance County Industrial Facilities and Pollution Control Financing
Authority Industrial Revenue Refunding Bonds (Series A and B); and (iii)
$6,000,000 original principal amount Chesterfield County South Carolina
Industrial Revenue Bonds (Series 1996); with such modifications thereto as
may by agreed upon by the Agent and the Borrower and are not materially
adverse to the interests of the Banks; and (ii) with respect to each New
Letter of Credit, such form of application therefor (whether in a single or
several documents) as the Issuer may employ in the ordinary course of
business for its own account, whether or not providing for collateral
security, with such modifications thereto as may by agreed upon by the Issuer
and the Borrower and are not materially adverse to the interests of the
Banks. In the event of any conflict between the terms of any Letter of
Credit Reimbursement Agreements and this Agreement, the terms of this
Agreement shall control.
"Lien" means, with respect to any asset, any mortgage, deed to secure
debt, deed of trust, lien, pledge, charge, security interest, security title,
preferential arrangement which has the practical effect of constituting a
security interest or encumbrance, or encumbrance or servitude of any kind in
respect of such asset to secure or assure payment of a Debt or a Guarantee,
whether by consensual agreement or by operation of statute or other law, or
by any agreement, contingent or otherwise, to provide any of the foregoing.
For the purposes of this Agreement, the Borrower or any Subsidiary shall be
deemed to own subject to a Lien any asset which it has acquired or holds
subject to the interest of a vendor or lessor under any conditional sale
agreement, capital lease or other title retention agreement relating to such
asset.
"Loan" means a Base Rate Loan, Euro-Dollar Loan, Money Market Loan,
Syndicated Loan, or Syndicated Loan, and "Loans" means Base Rate Loans, Euro-
Dollar Loans, Money Market Loans, Syndicated Loans, Syndicated Loans, or any
or all of them, as the context shall require.
"Loan Documents" means this Agreement, the Notes, the Letters of
Credit, the Letter of Credit Reimbursement Agreements, the Security
Agreement, and any other document evidencing, relating to or securing the
Loans or the Letters of Credit, and any other document or instrument
delivered from time to time in connection with this Agreement, the Notes, the
Loans, the Letters of Credit, the Letter of Credit Reimbursement Agreements,
or the Security Agreement, as such documents and instruments may be amended
or supplemented from time to time.
"London Interbank Offered Rate" has the meaning set forth in
Section 2.06(c).
"Luzerne County Bonds" means the Luzerne County Industrial Development
Revenue Bonds (Series 1996) in the original principal amount of $3,500,000.
"Margin Stock" means "margin stock" as defined in Regulations T, U or X.
"Material Adverse Effect" means, with respect to any event, act,
condition or occurrence of whatever nature (including any adverse
determination in any litigation, arbitration, or governmental investigation
or proceeding), whether singly or in conjunction with any other event or
events, act or acts, condition or conditions, occurrence or occurrences,
whether or not related, a material adverse change in, or a material adverse
effect upon, any of (a) the financial condition, operations, business or
properties of the Borrower and its Consolidated Subsidiaries taken as a
whole, (b) the rights and remedies of the Agent or the Banks under the Loan
Documents, or the ability of the Borrower to perform its obligations under
the Loan Documents to which it is a party, as applicable, or (c) the
legality, validity or enforceability of any Loan Document.
"Money Market Borrowing Date" has the meaning specified in Section 2.03.
"Money Market Loan" means a Loan which bears or is to bear interest at
a rate determined pursuant to Section 2.03 and to be made as a Money Market
Loan pursuant thereto.
"Money Market Loan Notes" means the promissory notes of the Borrower,
substantially in the form of Exhibit A-2, evidencing the obligation of the
Borrower to repay the Money Market Loans, together with all amendments,
consolidations, modifications, renewals and supplements thereto.
"Money Market Quote" has the meaning specified in Section 2.03.
"Money Market Quote Request" has the meaning specified in
Section 2.03(b).
"Money Market Rate" has the meaning specified in Section 2.03(c)(ii)(C).
"Moody's" means ▇▇▇▇▇'▇ Investor Service, Inc.
"Multiemployer Plan" shall have the meaning set forth in
Section 4001(a)(3) of ERISA.
"Net Income" means, as applied to any Person for any period, the
aggregate amount of net income of such Person, after taxes, for such period,
as determined in accordance with GAAP.
"New Letter of Credit" means each letter of credit (other than the
Existing Letters of Credit) issued by the Issuer for the account of the
Borrower pursuant to Section 2.02A.
"Notes" means the Syndicated Loan Notes, or, the Money Market Loan
Notes, or any or all of them, as the context shall require.
"Notice of Borrowing" has the meaning set forth in Section 2.02(a).
"Notice of Continuation or Conversion" has the meaning set forth in
Section 2.02B.
"Officer's Certificate" has the meaning set forth in Section 3.01(f).
"Original Credit Agreement" means that certain Credit Agreement dated
April 23, 1997, among the Borrower, Wachovia as agent, and the other banks
part thereto, as amended.
"Participant" has the meaning set forth in Section 9.08(b).
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
"Performance Pricing Determination Date" has the meaning set forth in
Section 2.06(a).
"Person" means an individual, a corporation, a partnership, limited
liability corporation, an unincorporated association, a trust or any other
entity or organization, including, but not limited to, a government or
political subdivision or an agency or instrumentality thereof.
"Plan" means at any time an employee pension benefit plan which is
covered by Title IV of ERISA or subject to the minimum funding standards
under Section 412 of the Code and is either (i) maintained by a member of the
Controlled Group for employees of any member of the Controlled Group or (ii)
maintained pursuant to a collective bargaining agreement or any other
arrangement under which more than one employer makes contributions and to
which a member of the Controlled Group is then making or accruing an
obligation to make contributions or has within the preceding 5 plan years
made contributions.
"Prime Rate" refers to that interest rate so denominated and set by
Wachovia from time to time as an interest rate basis for borrowings. The
Prime Rate is but one of several interest rate bases used by Wachovia.
Wachovia lends at interest rates above and below the Prime Rate.
"Properties" means all real property owned, leased or otherwise used or
occupied by the Borrower or any Subsidiary, wherever located.
"Redeemable Preferred Stock" of any Person means any preferred stock
issued by such Person which is at any time prior to the Termination Date
either (i) mandatorily redeemable (by sinking fund or similar payments or
otherwise) or (ii) redeemable at the option of the holder thereof.
"Regulation D" means Regulation D of the Board of Governors of the
Federal Reserve System, as in effect from time to time, together with all
official rulings and interpretations issued thereunder.
"Regulation T" means Regulation T of the Board of Governors of the
Federal Reserve System, as in effect from time to time, together with all
official rulings and interpretations issued thereunder.
"Regulation U" means Regulation U of the Board of Governors of the
Federal Reserve System, as in effect from time to time, together with all
official rulings and interpretations issued thereunder.
"Regulation X" means Regulation X of the Board of Governors of the
Federal Reserve System, as in effect from time to time, together with all
official rulings and interpretations issued thereunder.
"Reimbursement Obligations" means the reimbursement or repayment
obligations of the Borrower to the Issuer pursuant to Section 2.02A with
respect to Letters of Credit.
"Required Banks" means at any time Banks having at least 66 2/3% of the
aggregate amount of the Commitments or, if the Commitments are no longer in
effect, Banks holding at least 66 2/3% of the aggregate outstanding principal
amount of the sum of the (i) Syndicated Loans, (ii) Money Market Loans and
(iii) the Letter of Credit Obligations.
"Restricted Investments" means "restricted investments" consisting of
bond proceeds held in escrow by the bond trustee in connection with
industrial development revenue bonds.
"Restricted Payment" means (i) any dividend or other distribution on
any shares of the Borrower's Capital Stock (except dividends payable solely
in shares of its Capital Stock) or (ii) any payment on account of the
purchase, redemption, retirement or acquisition of (a) any shares of the
Borrower's Capital Stock (except shares acquired upon the conversion thereof
into other shares of its Capital Stock) or (b) any option, warrant or other
right to acquire shares of the Borrower's Capital Stock.
"▇▇▇▇▇▇▇ County Bonds" means the ▇▇▇▇▇▇▇ County Industrial Facilities
and Pollution Control Financing Authority Industrial Development Revenue
Bonds (Series 1997) in the original principal amount of $8,500,000.
"S&P" means Standard & Poor's Rating Group, a division of ▇▇▇▇▇▇-▇▇▇▇,
Inc.
"Security Agreement" means the Amended and Restated Security Agreement
by the Borrower in favor of the Agent substantially in the form of Exhibit K
which amends and restates that certain Security Agreement by the Borrower
dated March 28, 2001, together with all amendments, modifications, and
supplements thereto from time to time.
"Special Purchase Money Liens" means Liens which: (i) are incurred in
connection with the purchase of looms; (ii) secure Debt consisting only of
the deferred purchase price of such looms, and no other Debt, which deferred
purchase price Debt (x) is non-interest bearing and (y) is payable in no more
than 2 years from the date of purchase; and (iii) encumber only on the looms
so purchased, and not on any other assets.
"Stated Maturity Date" means, with respect to any Money Market Loan,
the Stated Maturity Date therefor specified by the Bank in the applicable
Money Market Quote.
"Stockholders' Equity" means, at any time, the shareholders' equity of
the Borrower and its Consolidated Subsidiaries, as set forth or reflected on
the most recent consolidated balance sheet of the Borrower and its
Consolidated Subsidiaries prepared in accordance with GAAP, but excluding any
Redeemable Preferred Stock of the Borrower or any of its Consolidated
Subsidiaries. Shareholders' equity generally would include, but not be
limited to (i) the par or stated value of all outstanding Capital Stock, (ii)
capital surplus, (iii) retained earnings, and (iv) various deductions such
as (A) purchases of treasury stock, (B) valuation allowances, (C) receivables
due from an employee stock ownership plan, (D) employee stock ownership plan
debt guarantees, and (E) translation adjustments for foreign currency
transactions.
"Subsidiary" means any corporation or other entity of which securities
or other ownership interests having ordinary voting power to elect a majority
of the board of directors or other persons performing similar functions are
at the time directly or indirectly owned by the Borrower.
"Syndicated Loan Notes" means promissory notes of the Borrower,
substantially in the form of Exhibit "A-1", evidencing the obligation of the
Borrower to repay the Syndicated Loans, together with all amendments,
consolidations, modifications, renewals, and supplements thereto.
"Syndicated Loan" means a Base Rate Loan or a Euro-Dollar Loan.
"Taxes" has the meaning set forth in Section 2.12(c).
"Telerate" means the display page so designated on the Dow ▇▇▇▇▇
Telerate Service (or such other page as may replace that page on that
service).
"Termination Date" means whichever is applicable of (i) August 23,
2004, (ii) the date the Commitments are terminated pursuant to Section 6.01
following the occurrence of an Event of Default, or (iii) the date the
Borrower terminates the Commitments entirely pursuant to Section 2.08."
"Third Parties" means all lessees, sublessees, licensees and other
users of the Properties, excluding those users of the Properties in the
ordinary course of the Borrower's business and on a temporary basis.
"Total Tangible Capitalization" means at any date the sum of: (i)
Consolidated Tangible Net Worth; plus (ii) Funded Debt.
"Transferee" has the meaning set forth in Section 9.08(d).
"Unfunded Vested Liabilities" means, with respect to any Plan at any
time, the amount (if any) by which (i) the present value of all vested
nonforfeitable benefits under such Plan exceeds (ii) the fair market value of
all Plan assets allocable to such benefits, all determined as of the then
most recent valuation date for such Plan, but only to the extent that such
excess represents a potential liability of a member of the Controlled Group
to the PBGC or the Plan under Title IV of ERISA.
"Unused Commitment" means at any date, with respect to any Bank, an
amount equal to its Commitment less the aggregate outstanding principal
amount of its Syndicated Loans; provided, however, the amount of its Money
Market Loans and its Existing Letter of Credit Obligations shall not be
subtracted from any Bank's Commitment in the calculation of such Bank's
Unused Commitment.
"Wachovia" means Wachovia Bank, National Association, a national
banking association, and its successors.
"Wholly Owned Subsidiary" means any Subsidiary 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 the
Borrower.
SECTION 1.02. Accounting Terms and Determinations. Unless otherwise
specified herein, all terms of an accounting character used herein shall be
interpreted, all accounting determinations hereunder shall be made, and all
financial statements required to be delivered hereunder shall be prepared,
in accordance with GAAP, applied on a basis consistent (except for changes
concurred in by the Borrower's independent public accountants or otherwise
required by a change in GAAP) with the most recent audited consolidated
financial statements of the Borrower and its Consolidated Subsidiaries
delivered to the Banks unless with respect to any such change concurred in
by the Borrower's independent public accountants or required by GAAP, in
determining compliance with any of the provisions of this Agreement or any
of the other Loan Documents: (i) the Borrower shall have objected to
determining such compliance on such basis at the time of delivery of such
financial statements, or (ii) the Required Banks shall so object in writing
within 30 days after the delivery of such financial statements, in either
of which events such calculations shall be made on a basis consistent with
those used in the preparation of the latest financial statements as to
which such objection shall not have been made (which, if objection is made
in respect of the first financial statements delivered under Section 5.01
hereof, shall mean the financial statements referred to in Section 4.04).
SECTION 1.03. References. Unless otherwise indicated, references in this
Agreement to "Articles", "Exhibits", "Schedules", "Sections" and other
Subdivisions are references to articles, exhibits, schedules, sections and
other subdivisions hereof.
SECTION 1.04. Use of Defined Terms. All terms defined in this Agreement
shall have the same defined meanings when used in any Exhibits or Schedules
hereto and in any of the other Loan Documents, unless otherwise defined
therein or unless the context shall require otherwise.
SECTION 1.05. Terminology; Headings. All personal pronouns used in this
Agreement, whether used in the masculine, feminine or neuter gender, shall
include all other genders; the singular shall include the plural, and the
plural shall include the singular. Titles of Articles and Sections in this
Agreement are for convenience only, and neither limit nor amplify the
provisions of this Agreement. ARTICLE II
THE CREDITS
SECTION 2.01 Commitments to Lend Syndicated Loans. Each Bank severally
agrees, on the terms and conditions set forth herein, to make Loans (which
may be, at the option of the Borrower and subject to the terms and
conditions hereof Base Rate Loans or Euro-Dollar Loans) to the Borrower
from time to time before the Termination Date; provided that, immediately
after each such Loan is made;
(i) the aggregate outstanding principal amount of all Syndicated Loans
by such Bank shall not exceed the amount of its Commitment.
(ii) the aggregate outstanding principal amount of all Syndicated
Loans, Money Market Loans and Letter of Credit Obligations with
respect to New Letters of Credit of all Banks shall not exceed the
aggregate amount of all of the Commitments. Notwithstanding each
Bank's risk participation in the Existing Letters of Credit, the Loans
available under the Commitments will not be reduced by the amount of
the Letter of Credit Obligations with respect to the Existing Letters
of Credit outstanding from time to time. Each Syndicated Borrowing
under this Section shall be in an aggregate principal amount of
$1,000,000 or any larger integral multiple of $500,000 (except that
any such Syndicated Borrowing may be in the aggregate amount of the
Unused Commitments) and shall be made from the several Banks ratably
in proportion to their respective Commitments. Within the foregoing
limits, the Borrower may borrow under this Section, repay or, to the
extent permitted by Section 2.09, prepay Syndicated Loans and reborrow
under this Section at any time before the Termination Date.
SECTION 2.02 Method of Borrowing.
(a) The Borrower shall give the Agent notice (a "Notice of Borrowing"),
which shall be substantially in the form of Exhibit E, prior to 11:00 A.M.
(Charlotte, North Carolina time) on the same Domestic Business Day for each
Base Rate Borrowing and at least 3 Euro-Dollar Business Days before each
Euro-Dollar Borrowing, specifying:
(i) the date of such Syndicated Borrowing, which shall be a Domestic
Business Day in the case of a Base Rate Borrowing or a Euro-Dollar
Business Day in the case of a Euro-Dollar Borrowing,
(ii) the aggregate amount of such Syndicated Borrowing,
(iii) whether the Syndicated Loans comprising such Borrowing are to be
Base Rate Loans or Euro-Dollar Loans, and
(iv) in the case of a Fixed Rate Borrowing, the duration of the
Interest Period applicable thereto, subject to the provisions of the
definition of Interest Period.
(b) Upon receipt of a Notice of Borrowing, the Agent shall promptly notify
each Bank of the contents thereof and of such Bank's ratable share of such
Borrowing and such Notice of Borrowing, once received by the Agent, shall
not thereafter be revocable by the Borrower.
(c) Not later than 11:00 A.M. (Charlotte, North Carolina time) on the date
of each Syndicated Borrowing, each Bank shall (except as provided in
paragraph (d) of this Section) make available its ratable share of such
Syndicated Borrowing, in Federal or other funds immediately available in
Charlotte, North Carolina, to the Agent at its address referred to in
Section 9.01, which funds shall be in Dollars. Unless the Agent determines
that any applicable condition specified in Article III has not been
satisfied, the Agent will make the funds so received from the Banks
available to the Borrower at the Agent's aforesaid address. Unless the
Agent receives notice from a Bank, at the Agent's address referred to in or
specified pursuant to Section 9.01, no later than 4:00 P.M. (local time at
such address) on the Domestic Business Day before the date of a Syndicated
Borrowing stating that such Bank will not make a Syndicated Loan in
connection with such Syndicated Borrowing, the Agent shall be entitled to
assume that such Bank will make a Syndicated Loan in connection with such
Syndicated Borrowing and, in reliance on such assumption, the Agent may
(but shall not be obligated to) make available such Bank's ratable share of
such Syndicated Borrowing to the Borrower for the account of such Bank. If
the Agent makes such Bank's ratable share available to the Borrower and
such Bank does not in fact make its ratable share of such Syndicated
Borrowing available on such date, the Agent shall be entitled to recover
such Bank's ratable share from such Bank or the Borrower (and for such
purpose shall be entitled to charge such amount to any account of the
Borrower maintained with the Agent), together with interest thereon for
each day during the period from the date of such Syndicated Borrowing until
such sum shall be paid in full at a rate per annum equal to the rate at
which the Agent determines that it obtained (or could have obtained)
overnight Federal funds to cover such amount for each such day during such
period, provided that (i) any such payment by the Borrower of such Bank's
ratable share and interest thereon shall be without prejudice to any rights
that the Borrower may have against such Bank and (ii) until such Bank has
paid its ratable share of such Syndicated Borrowing, together with interest
pursuant to the foregoing, it will have no interest in or rights with
respect to such Syndicated Borrowing for any purpose hereunder. If the
Agent does not exercise its option to advance funds for the account of such
Bank, it shall forthwith notify the Borrower of such decision.
(d) Notwithstanding anything to the contrary contained in this Agreement,
no Fixed Rate Borrowing may be made if there shall have occurred a Default
or an Event of Default, which Default or Event of Default shall not have
been cured or waived, and all Loans (including, without limitation, all
continuations and conversions pursuant to a Notice of Continuation and
Conversion) shall be made as Base Rate Loans (but shall bear interest at
the Default Rate, if applicable).
(e) In the event that a Notice of Borrowing fails to specify whether the
Syndicated Loans comprising such Borrowing are to be Base Rate Loans or
Euro-Dollar Loans, such Syndicated Loans shall be made as Base Rate Loans.
If the Borrower is otherwise entitled under this Agreement to repay any
Syndicated Loans maturing at the end of an Interest Period applicable
thereto with the proceeds of a new Syndicated Borrowing, and the Borrower
fails to repay such Syndicated Loans using its own moneys and fails to give
a Notice of Borrowing in connection with such new Borrowing, a new
Syndicated Borrowing shall be deemed to be made on the date such Syndicated
Loans mature in an amount equal to the principal amount of the Syndicated
Loans so maturing, and the Syndicated Loans comprising such new Syndicated
Borrowing shall be Base Rate Loans.
(f) Notwithstanding anything to the contrary contained herein, there shall
not be more than 8 Fixed Rate Borrowings outstanding at any given time.
SECTION 2.02A. Letters of Credit.
(a) New Letters of Credit. Subject to the terms and conditions of this
Agreement, and in reliance upon the representations and warranties of the
Borrower herein set forth, the Issuer shall issue for the account of
Borrower, one or more New Letters of Credit denominated in Dollars, in
accordance with this Section 2.02A., from time to time during the period
commencing on the Closing Date and ending on the Business Day prior to the
Termination Date.
(i) The Issuer shall have no obligation to issue any New Letter of
Credit at any time: (A) if the aggregate maximum amount then available
for drawing under all Letters of Credit, after giving effect to the
issuance of the requested New Letter of Credit, shall exceed any limit
imposed by law or regulation upon the Issuer; (B) if, after giving
effect to the issuance of the requested New Letter of Credit, (1) the
aggregate New Letter of Credit Obligations would exceed $2,500,000, or
(2) the conditions set forth in this Agreement as to the advancing of
Loans or issuance of New Letters of Credit Section would not be
satisfied; and (C) which has an expiration date (1) more than 90 days
after the date of issuance or (2) after the Termination Date. The
obligation of the Issuer to issue any New Letter of Credit is subject
to the satisfaction in full of the following conditions: (A) the
Borrower shall have delivered to the Issuer at such times and in such
manner as the Issuer may prescribe, a Letter of Credit Application
Agreement as to New Letters of Credit and such other documents and
materials as may be required pursuant to the terms thereof all
satisfactory in form and substance to the Issuer and the terms of the
proposed New Letter of Credit shall be satisfactory in form and
substance to the Issuer; (B) as of the date of issuance no order,
judgment or decree of any court, arbitrator or Authority shall purport
by its terms to enjoin or restrain the Issuer from issuing the New
Letter of Credit and no law, rule or regulation applicable to the
Issuer and no request or directive (whether or not having the force of
law) from any Authority with jurisdiction over the Issuer shall
prohibit or request that the Issuer refrain from the issuance of
letters of credit generally or the issuance of that New Letter of
Credit; and (C) after the issuance of the requested New Letter of
Credit, the conditions set forth in this Section shall be satisfied.
(ii) At least two Business Days before the effective date for any New
Letter of Credit, the Borrower shall give the Issuer a written notice
containing the original signature of an authorized officer or employee
of such Borrower. Such notice shall be irrevocable and shall specify
the original face amount of the New Letter of Credit requested (which
original face amount shall not be less than $100,000), the effective
date (which day shall be a Business Day) of issuance of such requested
New Letter of Credit, the date on which such requested New Letter of
Credit is to expire, the amount of then outstanding aggregate Letter
of Credit Obligations, the purpose for which such New Letter of Credit
is to be issued, whether such New Letter of Credit may be drawn in
single or partial draws and the person for whose benefit the requested
New Letter of Credit is to be issued.
(iii) If the conditions set forth above are satisfied, the Issuer
shall issue the requested New Letter of Credit. The Issuer shall give
each Bank written or telex notice in substantially the form of Exhibit
C, or telephonic notice confirmed promptly thereafter in writing, of
the issuance of a New Letter of Credit and shall deliver to each Bank
in connection with such notice a copy of the New Letter of Credit
issued by the Issuer.
(iv) The Borrower shall pay to the Issuer, solely for its own account,
the standard charges assessed by the Issuer in connection with the
issuance, administration, amendment and payment or cancellation of New
Letters of Credit issued hereunder, which charges shall be those
typically charged by the Issuer to its customers generally having
credit and other characteristics similar to the Borrower, as
determined in good faith by the Issuer.
(b) Purchase of Participations. Each Bank hereby irrevocably and
unconditionally purchases and receives from the Issuer, without recourse or
warranty, an undivided interest and participation, equal to the amount of
such Bank's LC Commitment Percentage in each Letter of Credit. Each Bank
acknowledges receipt of a copy of each Existing Letter of Credit.
(c) Sharing of Letters of Credit Payments. In the event that the Issuer
makes any payment under a Letter of Credit and the Borrower shall not have
repaid such amount to the Issuer on or before 10:00 a.m. on the next
Domestic Business Day, the Issuer shall promptly notify the Agent and the
Agent shall notify the other Banks of such failure, and each other Bank
shall promptly and unconditionally pay to the Issuer the LC Commitment
Percentage of the amount of such payment in Dollars and in same day funds.
If the Issuer so notifies the other Banks prior to 11:00 A.M. (Charlotte,
North Carolina time) on any Domestic Business Day, such other Banks shall
make available to the Issuer the LC Commitment Percentage of the amount of
such payment on such Domestic Business Day in same day funds. If and to the
extent any of such other Banks shall not have so made its LC Commitment
Percentage of the amount of such payment available to the Issuer, each such
other Bank agrees to pay to the Issuer forthwith on demand such amount
together with interest thereon, for each day from the date such payment was
first due until the date such amount is paid to the Issuer at the Federal
Funds Rate.
(d) Reimbursement Obligations; Duties of the Agent and Issuer.
(i) Reimbursement Obligations. Notwithstanding any provisions to the
contrary in any Letter of Credit Reimbursement Agreements:
(1) the Borrower shall reimburse the Issuer for drawings under a
Letter of Credit no later than the earlier of (A) the time
specified in such Letter of Credit Reimbursement Agreements, or
(B) 1 Domestic Business Day after the payment by the Issuer;
(2) any Reimbursement Obligation with respect to any Letter of
Credit shall bear interest from the date of the relevant drawing
under the pertinent Letter of Credit until the date of payment in
full thereof at a rate per annum equal to (A) prior to the date
that is 3 Domestic Business Days after the date of the related
payment by the Issuer, the applicable rate set forth in the
applicable Reimbursement Agreement, and (B) thereafter, the
Default Rate; and
(3) upon the occurrence of a draw under any Letter of Credit,
unless the Issuer is reimbursed in accordance with subsection (1)
above, the Borrower irrevocably authorizes the Agent, acting in
the exercise of the Agent's sole and absolute discretion, to
treat such nonpayment as a Notice of Borrowing in the amount of
such Reimbursement Obligation and to make Base Rate Loans to
Borrower in such amount subject to the existence of sufficient
availability under the Commitments. The Borrower further
authorizes the Agent, acting in the exercise of the Agent's sole
and absolute discretion, to credit the proceeds of such
Syndicated Loan so as to immediately eliminate the liability of
the Borrower for Reimbursement Obligations under such Letter of
Credit.
(ii) Duties of the Agent and Issuer. Any action taken or omitted to be
taken by the Agent or Issuer in connection with any Letter of Credit,
if taken or omitted in the absence of willful misconduct or gross
negligence, shall not put the Agent or Issuer under any resulting
liability to any Bank or relieve that Bank of its obligations
hereunder to the Agent or Issuer. In determining whether to pay under
any Letter of Credit, the Issuer shall have no obligation relative to
the Agent or the Banks other than to confirm that any documents
required to have been delivered under such Letter of Credit appear to
comply on their face, with the requirements of such Letter of Credit.
(e) Obligations Irrevocable. The obligations of the Banks to make payments
to the Issuer with respect to a Letter of Credit shall be irrevocable, not
subject to any qualification or exception whatsoever and shall be made in
accordance with, but not subject to, the terms and conditions of this
Agreement under all circumstances, including, without limitation, any of
the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of
the other Loan Documents;
(ii) the existence of any claim, set-off, defense or other right which
the Borrower may have at any time against a beneficiary named in a
Letter of Credit or any transferee of any Letter of Credit (or any
Person for whom any such transferee may be acting), the Agent, the
Issuer, any Bank or any other Person, whether in connection with this
Agreement, any Letter of Credit, the transactions contemplated herein
or any unrelated transactions;
(iii) any draft, certificate or any other document presented under the
Letter of Credit proves to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue or
inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance
or observance of any of the terms of any of the Loan Documents;
(v) payment by the Issuer under any 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;
(vi) payment by the Issuer under any Letter of Credit against
presentation of any draft or certificate that does not comply with the
terms of such Letter of Credit, except payment resulting from the
gross negligence or willful misconduct of the Agent; or
(vii) any other circumstances or happenings whatsoever, whether or not
similar to any of the foregoing, except circumstances or happenings
resulting from the gross negligence or willful misconduct of the Agent
or the Issuer.
(f) Payment of Reimbursement Obligations.
(i) Payments to Issuer. The Borrower agrees to pay to the Issuer the
amount of all Reimbursement Obligations, interest and other amounts
payable to the Agent or the Issuer under or in connection with any
Letter of Credit issued for such Borrower's account immediately when
due, irrespective of:
(1) any lack of validity or enforceability of this Agreement or
any of the other Loan Documents;
(2) the existence of any claim, set-off, defense or other right
which the Borrower may have at any time against a beneficiary
named in a Letter of Credit or any transferee of any Letter of
Credit (or any Person for whom any such transferee may be
acting), the Agent, the Issuer, any Bank or any other Person,
whether in connection with this Agreement, any Letter of Credit,
the transactions contemplated herein or any unrelated
transactions;
(3) any draft, certificate or any other document presented under
the Letter of Credit proves to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue
or inaccurate in any respect;
(4) the surrender or impairment of any security for the
performance or observance of any of the terms of any of the Loan
Documents;
(5) payment by the Issuer under any 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;
(6) payment by the Issuer under any Letter of Credit against
presentation of any draft or certificate that does not comply
with the terms of such Letter of Credit, except payment resulting
from the gross negligence or willful misconduct of the Agent; or
(7) any other circumstances or happenings whatsoever, whether or
not similar to any of the foregoing, except circumstances or
happenings resulting from the gross negligence or willful
misconduct of the Agent or the Issuer.
(ii) Recovery or Avoidance of Payments. In the event any payment by or
on behalf of the Borrower received by the Agent or the Issuer with
respect to a Letter of Credit and distributed by the Agent or the
Issuer to the Banks on account of their participations is thereafter
set aside, avoided or recovered from the Agent or the Issuer in
connection with any receivership, liquidation or bankruptcy
proceeding, each Bank that received such distribution shall, upon
demand by the Agent or the Issuer, contribute such Bank's LC
Commitment Percentage of the amount set aside, avoided or recovered
together with interest at the rate required to be paid by the Issuer
upon the amount required to be repaid by it.
(g) Cash Collateral. After the occurrence and during the continuation of an
Event of Default, or upon the termination of this Agreement, to the extent
of any Letter of Credit Obligations (and in addition to any collateral
security under the Security Agreement), the Issuer may, as separate
collateral security to be held by the Agent for the benefit of the Banks as
a collateral reserve for reimbursement of amounts of the Letter of Credit
Obligations which are subsequently funded by the Issuer (and for which the
other Banks have purchased a participation therein as set forth below),
demand from the Borrower cash collateral security in an amount equal to
100% of such Letter of Credit Obligations with respect to each Letter of
Credit as cash collateral security. The Borrower hereby agrees that the
Banks shall have a right of setoff against and security interest in such
cash collateral reserve. After a Letter of Credit has been canceled and all
Letter of Credit Obligations with respect to such Letter of Credit have
been satisfied, and the Issuer (or participant) has been reimbursed all
amounts funded by the Issuer with respect thereto, any balance remaining in
said collateral reserve with respect to such Letter of Credit may be
applied to other unpaid obligations of the Borrower hereunder, and, if
none, shall be remitted to the Borrower.
(h) Indemnification; Exoneration.
(i) Indemnification. In addition to amounts payable as elsewhere
provided in this Article III, the Borrower shall protect, indemnify,
pay and save the Agent, the Issuer and each Bank harmless from and
against any and all claims, demands, liabilities, damages, losses,
costs, charges and expenses (including reasonable attorneys' fees)
which the Agent, the Issuer or any Bank may incur or be subject to as
a consequence of the issuance of any Letter of Credit for the
Borrower's account other than as a result of its gross negligence or
willful misconduct, as determined by a court of competent
jurisdiction.
(ii) Assumption of Risk by Borrower. As between the Borrower, the
Agent, the Issuer and the Banks, the Borrower assumes all risks of the
acts and omissions of, or misuse of the Letters of Credit issued for
such Borrower's account by, the respective beneficiaries of such
Letters of Credit. In furtherance and not in limitation of the
foregoing, the Agent, the Issuer and the Banks shall not be
responsible for (i) 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 the Letters of
Credit, even if it should in fact prove to be in any or all respects
invalid, insufficient, inaccurate, fraudulent or forged, (ii) the
validity or sufficiency of any instrument transferring or assigning or
purporting to transfer or assign a Letter of Credit or the rights or
benefits thereunder or proceeds thereof, in whole or in part, which
may prove to be invalid or ineffective for any reason, (iii) failure
of the beneficiary of a Letter of Credit to comply duly with
conditions required in order to draw upon such Letter of Credit, (iv)
errors, omissions, interruptions or delays in transmission or delivery
of any messages, by mail, cable, telegraph, telex or otherwise,
whether or not they be in cipher, for errors in interpretation of
technical terms, (vi) any loss or delay in the transmission or
otherwise of any document required in order to make a drawing under
any Letter of Credit or of the proceeds thereof, (vii) the
misapplication by the beneficiary of a Letter of Credit of the
proceeds of any drawing under such Letter of Credit; and (viii) any
consequences arising from causes beyond the control of the Agent, the
Issuer and the Banks.
(iii) Exoneration. In furtherance and extension and not in limitation
of the specific provisions hereinabove set forth, any action taken or
omitted by the Agent or the Issuer under or in connection with the
Letters of Credit or any related certificates if taken or omitted in
good faith and with reasonable care, shall not put the Agent, the
Issuer or any Bank under any resulting liability to the Borrower or
relieve the Borrower of any of its obligations hereunder to any such
Person.
SECTION 2.02B Continuation and Conversion Elections. By delivering a notice (a
"Notice of Continuation or Conversion"), which shall be substantially in the
form of Exhibit E-2, to the Agent on or before 12:00 P.M., Charlotte, North
Carolina time, on a Domestic Business Day (or Euro-Dollar Business Day, in the
case of Euro-Dollar Loans outstanding), the Borrower may from time to time
irrevocably elect, by notice on the same Domestic Business Day, in the case of
Base Rate Loans and 3 Domestic Business Days in the case of Euro-Dollar Loans,
that all, or any portion in an aggregate principal amount of $1,000,000 or any
larger integral multiple of $500,000 be, (i) in the case of Base Rate Loans,
converted into Euro-Dollar Loans or, (ii) in the case of Euro-Dollar Loans,
converted into Base Rate Loans or continued as Euro-Dollar Loans (in the absence
of delivery of a Notice of Continuation or Conversion with respect to any
Euro-Dollar Loan at least 3 Euro-Dollar Business Days before the last day of the
then current Interest Period with respect thereto, such Euro-Dollar Loan shall,
on such last day, automatically convert to a Base Rate Loan); provided, however,
that (x) each such conversion or continuation shall be pro rated among the
applicable outstanding Loans of all Banks that have made such Loans, and (y) no
portion of the outstanding principal amount of any Loans may be continued as, or
be converted into, any Fixed Rate Loan when any Event of Default has occurred
and is continuing.
SECTION 2.03. Money Market Loans.
(a) In addition to requesting Syndicated Borrowings, so long as no Default
or Event of Default is in existence, the Borrower may, as set forth in this
Section 2.03, request the Banks to make offers to make Money Market
Borrowings available to the Borrower. The Banks may, but shall have no
obligation to, make such offers and the Borrower may, but shall have no
obligation to, accept any such offers in the manner set forth in this
Section 2.03, provided that:
(i) the number of interest rates applicable to Money Market Loans
which may be outstanding at any given time is subject to the
provisions of Section 2.02(g);
(ii) the aggregate principal amount of all Money Market Loans,
together with the aggregate principal amount of all Syndicated Loans,
at any one time outstanding shall not exceed the aggregate amount of
the Commitments of all of the Banks at such time; and
(iii) the Money Market Loans of any Bank will be deemed to be usage of
the Commitments for the purpose of calculating availability pursuant
to Section 2.01(ii) and 2.03(a)(ii), but will not reduce such Bank's
obligation to lend its pro rata share of the remaining Unused
Commitment.
(b) When the Borrower wishes to request offers to make Money Market Loans,
it shall give the Agent (which shall promptly notify the Banks) notice
substantially in the form of Exhibit I hereto (a "Money Market Quote
Request") so as to be received no later than 10:00 A.M. (Charlotte, North
Carolina time) at least 1 Domestic Business Day prior to the date of the
Money Market Borrowing proposed therein (or such other time and date as the
Borrower and the Agent, with the consent of the Required Banks, may agree),
specifying:
(i) the proposed date of such Money Market Borrowing, which shall be a
Euro-Dollar Business Day (the "Money Market Borrowing Date");
(ii) the maturity date (or dates) (each a "Stated Maturity Date") for
repayment of each Money Market Loan to be made as part of such Money
Market Borrowing (which Stated Maturity Date shall be that date
occurring not less than 7 days but not more than 180 days from the
date of such Money Market Borrowing); provided that the Stated
Maturity Date for any Money Market Loan may not extend beyond the
Termination Date (as in effect on the date of such Money Market Quote
Request); and
(iii) the aggregate amount of principal to be requested by the
Borrower as a result of such Money Market Borrowing, which shall be at
least $5,000,000 (and in larger integral multiples of $1,000,000) but
shall not cause the limits specified in Section 2.03(a) to be
violated. The Borrower may request offers to make Money Market Loans
having up to 2 different Stated Maturity Dates in a single Money
Market Quote Request; provided that the request for each separate
Stated Maturity Date shall be deemed to be a separate Money Market
Quote Request for a separate Money Market Borrowing. Except as
otherwise provided in the immediately preceding sentence, after the
first Money Market Quote Request has been given hereunder, no Money
Market Quote Request shall be given until at least 5 Domestic Business
Days after all prior Money Market Quote Requests have been fully
processed by the Agent, the Banks and the Borrower pursuant to this
Section 2.03.
(c) Each Bank may, but shall have no obligation to, submit a response
containing an offer to make a Money Market Loan substantially in the form
of Exhibit J hereto (a "Money Market Quote") in response to any Money
Market Quote Request; provided that, if the Borrower's request under
Section 2.03(b) specified more than 1 Stated Maturity Date, such Bank may,
but shall have no obligation to, make a single submission containing a
separate offer for each such Stated Maturity Date and each such separate
offer shall be deemed to be a separate Money Market Quote. Each Money
Market Quote must be submitted to the Agent not later than 10:00 A.M.
(Charlotte, North Carolina time) on the Money Market Borrowing Date;
provided that any Money Market Quote submitted by Wachovia may be
submitted, and may only be submitted, if Wachovia notifies the Borrower of
the terms of the offer contained therein not later than 9:45 A.M.
(Charlotte, North Carolina time) on the Money Market Borrowing Date (or 15
minutes prior to the time that the other Banks are required to have
submitted their respective Money Market Quotes). Subject to Section 6.01,
any Money Market Quote so made shall be irrevocable except with the written
consent of the Agent given on the instructions of the Borrower.
(i) Each Money Market Quote shall specify:
(1) the proposed Money Market Borrowing Date and the Stated
Maturity Date therefor;
(2) the principal amounts of the Money Market Loan which the
quoting Bank is willing to make for the applicable Money Market
Quote, which principal amounts (x) may be greater than or less
than the Commitment of the quoting Bank, (y) shall be at least
$5,000,000 or a larger integral multiple of $1,000,000, and (z)
may not exceed the principal amount of the Money Market Borrowing
for which offers were requested;
(3) the rate of interest per annum (rounded upwards, if
necessary, to the nearest 1/100th of 1%) offered for each such
Money Market Loan (such amounts being hereinafter referred to as
the "Money Market Rate"); and
(4) the identity of the quoting Bank.
Unless otherwise agreed by the Agent and the Borrower, no Money Market Quote
shall contain qualifying, conditional or similar language or propose terms other
than or in addition to those set forth in the applicable Money Market Quote
Request (other than setting forth the principal amounts of the Money Market Loan
which the quoting Bank is willing to make for the applicable Interest Period)
and, in particular, no Money Market Quote may be conditioned upon acceptance by
the Borrower of all (or some specified minimum) of the principal amount of the
Money Market Loan for which such Money Market Quote is being made.
(d) The Agent shall as promptly as practicable after the Money Market Quote
is submitted (but in any event not later than 10:30 A.M. (Charlotte, North
Carolina time)) on the Money Market Borrowing Date, notify the Borrower of
the terms (i) of any Money Market Quote submitted by a Bank that is in
accordance with Section 2.03(c) and (ii) of any Money Market Quote that
amends, modifies or is otherwise inconsistent with a previous Money Market
Quote submitted by such Bank with respect to the same Money Market Quote
Request. Any such subsequent Money Market Quote shall be disregarded by the
Agent unless such subsequent Money Market Quote is submitted solely to
correct a manifest error in such former Money Market Quote. The Agent's
notice to the Borrower shall specify (A) the principal amounts of the Money
Market Borrowing for which offers have been received and (B) the respective
principal amounts and Money Market Rates so offered by each Bank
(identifying the Bank that made each Money Market Quote).
(e) Not later than 11:00 A.M. (Charlotte, North Carolina time) on the Money
Market Borrowing Date, the Borrower shall notify the Agent of its
acceptance or nonacceptance of the offers so notified to it pursuant to
Section 2.03(d) and the Agent shall promptly notify each Bank which
submitted an offer. In the case of acceptance, such notice shall specify
the aggregate principal amount of offers (for each Stated Maturity Date)
that are accepted. The Borrower may accept any Money Market Quote in whole
or in part; provided that:
(i) the aggregate principal amount of each Money Market Borrowing may
not exceed the applicable amount set forth in the related Money Market
Quote Request;
(ii) the aggregate principal amount of each Money Market Loan
comprising a Money Market Borrowing shall be at least $5,000,000 (and
in larger integral multiples of $1,000,000) but shall not cause the
limits specified in Section 2.03(a) to be violated;
(iii) acceptance of offers may only be made in ascending order of
Money Market Rates; and
(iv) the Borrower may not accept any offer where the Agent has advised
the Borrower that such offer fails to comply with Section 2.03(c)(ii)
or otherwise fails to comply with the requirements of this Agreement
(including without limitation, Section 2.03(a)). If offers are made by
2 or more Banks with the same Money Market Rates for a greater
aggregate principal amount than the amount in respect of which offers
are accepted for the related Stated Maturity Date, the principal
amount of Money Market Loans in respect of which such offers are
accepted shall be allocated by the Borrower among such Banks as nearly
as possible in proportion to the aggregate principal amount of such
offers. Determinations by the Borrower of the amounts of Money Market
Loans shall be conclusive in the absence of manifest error.
(f) Any Bank whose offer to make any Money Market Loan has been accepted
shall, not later than 12:00 P.M. (Charlotte, North Carolina time) on the
Money Market Borrowing Date, make the amount of such Money Market Loan
allocated to it available to the Agent at its address referred to in
Section 9.01 in immediately available funds. The amount so received by the
Agent shall, subject to the terms and conditions of this Agreement, be made
available to the Borrower on such date by depositing the same, in
immediately available funds, not later than 4:00 P.M. (Charlotte, North
Carolina time), in an account of the Borrower maintained with Wachovia.
(g) After any Money Market Loan has been funded, the Agent shall notify the
Banks of the aggregate principal amount of the Money Market Quotes received
and the highest and lowest rates included in such Money Market Quotes.
SECTION 2.04 Notes.
(a) The Syndicated Loans of each Bank shall be evidenced by a single
Syndicated Loan Note in an amount equal to the original principal amount of
such Bank's Commitment payable to the order of such Bank for the account of
its Lending Office.
(b) The Money Market Loans made by any Bank to the Borrower shall be
evidenced by a single Money Market Loan Note payable to the order of such
Bank for the account of its Lending Office in an amount equal to the
original principal amount of the aggregate Commitments.
(c) Upon receipt of each Bank's Notes pursuant to Section 3.01, the Agent
shall deliver such Notes to such Bank. Each Bank shall record, and prior to
any transfer of its Notes shall endorse on the schedules forming a part
thereof appropriate notations to evidence, the date, amount and maturity
of, and effective interest rate for, each Loan made by it, the date and
amount of each payment of principal made by the Borrower with respect
thereto, whether such Loan is a Base Rate Loan or Euro-Dollar Loan, and
such schedules of each such Bank's Notes shall constitute rebuttable
presumptive evidence of the principal amounts owing and unpaid on such
Bank's Notes; provided that the failure of any Bank to make, or any error
in making, any such recordation or endorsement shall not affect the
obligation of the Borrower hereunder or under the Notes or the ability of
any Bank to assign its Notes. Each Bank is hereby irrevocably authorized by
the Borrower so to endorse its Notes and to attach to and make a part of
any Note a continuation of any such schedule as and when required.
SECTION 2.05. Maturity of Loans.
(a) Each Fixed Rate Loan included in any Borrowing shall mature, and the
principal amount thereof shall be due and payable, on the last day of the
Interest Period applicable to such Borrowing.
(b) Notwithstanding the foregoing, the outstanding principal amount of the
Loans, if any, together with all accrued but unpaid interest thereon, if
any, shall be due and payable on the Termination Date.
SECTION 2.06. Interest Rates.
(a) "Applicable Margin" means:
(i) for the period commencing on the Closing Date to the first
Performance Pricing Determination Date after the Closing Date, (x) for
any Base Rate Loan, -0-%, and (y) for any Euro-Dollar Loan, 3.00%; and
(ii) from and after the first Performance Pricing Determination Date
after the Closing Date, (x) for any Base Rate Loan, -0-% and (y) for
each Euro-Dollar Loan the percentage determined on each Performance
Pricing Determination Date by reference to the table set forth below
as to such type of Loan and the Debt/EBITDA Ratio for the quarterly or
annual period ending immediately prior to such Performance Pricing
Determination Date.
Debt/EBITDA Ratio Applicable Margin
<= 2.00 to 1.0 1.75%
> 2.00 to 1.0 but
<= 2.50 to 1.0 2.00%
> 2.50 to 1.0 but
<= 3.00 to 1.0 2.50%
> 3.00 to 1.0 3.00%
In determining interest for purposes of this Section 2.06 and fees for purposes
of Section 2.07 and Section 2.02A(f), the Borrower and the Banks shall refer to
the Borrower's most recent consolidated quarterly and annual (as the case may
be) financial statements delivered pursuant to Section 5.01(a) or (b), as the
case may be. If such financial statements require a change in the amount of
interest pursuant to this Section 2.06 or fees pursuant to Sections 2.07 or
2.02A(f), the Borrower shall deliver to the Agent, along with such financial
statements, a notice to that effect, which notice shall set forth in reasonable
detail the calculations supporting the required change. The "Performance Pricing
Determination Date" is the date which is the last date on which such financial
statements are permitted to be delivered pursuant to Section 5.01(a) or (b), as
applicable. Any such required change in interest and fees shall become effective
on such Performance Pricing Determination Date, and shall be in effect until the
next Performance Pricing Determination Date, provided that: (x) for Fixed Rate
Loans, changes in interest shall only be effective for Interest Periods
commencing on or after the Performance Pricing Determination Date; and (y) no
fees or interest shall be decreased pursuant to this Section 2.06 or Sections
2.07 or 2.02A(f) if a Default is in existence on the Performance Pricing
Determination Date.
(b) Each Base Rate Loan shall bear interest on the outstanding principal
amount thereof, for each day from the date such Loan is made until it
becomes due, at a rate per annum equal to the Base Rate for such day plus
the Applicable Margin. Such interest shall be payable for each Interest
Period on the last day thereof. Any overdue principal of and, to the extent
permitted by applicable law, overdue interest on any Base Rate Loan shall
bear interest, payable on demand, for each day until paid at a rate per
annum equal to the Default Rate.
(c) Each Euro-Dollar Loan shall bear interest on the outstanding principal
amount thereof, for the Interest Period applicable thereto, at a rate per
annum equal to the sum of the Applicable Margin plus the applicable
Adjusted London Interbank Offered Rate for such Interest Period. Such
interest shall be payable for each Interest Period on the last day thereof
and, if such Interest Period is longer than 3 months, at intervals of 3
months after the first day thereof. Any overdue principal of and, to the
extent permitted by law, overdue interest on any Euro-Dollar Loan shall
bear interest, payable on demand, for each day until paid at a rate per
annum equal to the Default Rate.
The "Adjusted London Interbank Offered Rate" applicable to any
Interest Period means a rate per annum equal to the quotient obtained
(rounded upwards, if necessary, to the next higher 1/100th of 1%) by
dividing (i) the applicable London Interbank Offered Rate for such Interest
Period by (ii) 1.00 minus the Euro-Dollar Reserve Percentage.
The "London Interbank Offered Rate" applicable to any Euro-Dollar Loan
means for the Interest Period of such Euro-Dollar Loan, the rate per annum
determined on the basis of the offered rate for deposits in Dollars of
amounts equal or comparable to the principal amount of such Euro-Dollar
Loan offered for a term comparable to such Interest Period, which rates
appear on the Telerate Page 3750 effective as of 11:00 A.M., London time, 2
Euro-Dollar Business Days prior to the first day of such Interest Period,
provided that if no such offered rates appear on such page, the "London
Interbank Offered Rate" for such Interest Period will be the arithmetic
average (rounded upward, if necessary, to the next higher 1/100th of 1%) of
rates quoted by not less than 2 major banks in New York City, selected by
the Agent, at approximately 10:00 A.M., New York City time, 2 Euro-Dollar
Business Days prior to the first day of such Interest Period, for deposits
in Dollars offered to leading European banks for a period comparable to
such Interest Period in an amount comparable to the principal amount of
such Euro-Dollar Loan.
"Euro-Dollar Reserve Percentage" means for any day that percentage
(expressed as a decimal) which is in effect on such day, as prescribed by
the Board of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement for a member bank of the
Federal Reserve System 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 Euro-Dollar Loans is determined or
any category of extensions of credit or other assets which includes loans
by a non-United States office of any Bank to United States residents). The
Adjusted London Interbank Offered Rate shall be adjusted automatically on
and as of the effective date of any change in the Euro-Dollar Reserve
Percentage.
(d) Each Money Market Loan shall bear interest on the outstanding
principal amount thereof, for each day from the date such Money Market
Loan is made until it becomes due, at a rate per annum equal to the
applicable Money Market Rate set forth in the relevant Money Market
Quote. Such interest shall be payable on the Stated Maturity Date
thereof, and, if the Stated Maturity Date occurs more than 90 days
after the date of the relevant Money Market Loan, at intervals of 90
days after the first day thereof. Any overdue principal of and, to the
extent permitted by law, overdue interest on any Money Market Loan
shall bear interest, payable on demand, for each day until paid at a
rate per annum equal to the Default Rate.
(e) The Agent shall determine each interest rate applicable to the
Loans hereunder. The Agent shall give prompt notice to the Borrower
and the Banks by telecopier of each rate of interest so determined,
and its determination thereof shall be conclusive in the absence of
manifest error.
(f) After the occurrence and during the continuance of an Event of
Default, the principal amount of the Loans (and, to the extent
permitted by applicable law, all accrued interest thereon) may, at the
election of the Required Banks, bear interest at the Default Rate.
SECTION 2.070. Loan Fees.
(a) The Borrower shall pay to the Agent, for the ratable account of
each Bank, an unused commitment fee, calculated in the manner provided
in the last paragraph of Section 2.06(a)(ii) on the average daily
amount of such Bank's Unused Commitment at a rate per annum equal to:
(i) for the period commencing on the Closing Date to and including the
first Performance Pricing Determination Date, 0.375%; and (ii) from
and after the first Performance Pricing Determination Date, the
percentage determined on each Performance Pricing Determination Date
by reference to the table set forth below and the Debt/EBITDA Ratio
for the quarterly or annual period ending immediately prior to such
Performance Pricing Determination Date:
Debt/EBITDA Ratio Unused Commitment Fee
<= 2.00 to 1.0 0.250%
> 2.00 to 1.0 0.375%
Such unused commitment fees shall accrue from and including the Closing Date to
(but excluding the Termination Date) and shall be payable on each March 31, June
30, September 30 and December 31 and on the Termination Date.
(b) The Borrower shall pay to the Agent, for the ratable account of each
Bank, a closing facility fee equal to $105,000. Such closing facility fee
shall be payable on the Closing Date.
(c) The Borrower shall pay to the Agent, for the ratable account of each
Bank, a bond exposure fee equal to the lesser of (x) $15,000 and (y) 0.076%
times the amount of all outstanding obligations of the Borrower or any
Subsidiary with respect to industrial revenue bonds (or letters of credit
issued as an enhancement thereto), calculated as of and payable on each of
December 1, 2002, and March 1, 2003.
SECTION 2.08. Optional Termination or Reduction of Commitments. The Borrower
may, upon at least 3 Domestic Business Days' notice to the Agent, terminate at
any time, or proportionately reduce the Unused Commitments from time to time by
an aggregate amount of at least $5,000,000 or any larger integral multiple of
$1,000,000. If the Commitments are terminated in their entirety, all accrued
fees (as provided under Section 2.07) shall be due and payable on the effective
date of such termination.
SECTION 2.09. Termination of Commitments. The Commitments shall terminate on the
Termination Date and any Loans then outstanding (together with accrued interest
thereon) shall be due and payable on such date.
SECTION 2.10. Optional Prepayments.
(a) The Borrower may, upon at least 1 Domestic Business Day's notice to the
Agent, prepay any Base Rate Borrowing in whole at any time, or from time to
time in part in amounts aggregating at least $1,000,000 or any larger
integral multiple of $500,000, by paying the principal amount to be prepaid
together with accrued interest thereon to the date of prepayment. Each such
optional prepayment shall be applied to prepay ratably the Base Rate Loans
of the several Banks included in such Base Rate Borrowing.
(b) Except as provided in Section 8.02, the Borrower may not prepay all or
any portion of the principal amount of any Fixed Rate Loan prior to the
maturity thereof.
(c) Upon receipt of a notice of prepayment pursuant to this Section 2.10,
the Agent shall promptly notify each Bank of the contents thereof and of
such Bank's ratable share of such prepayment and such notice, once received
by the Agent, shall not thereafter be revocable by the Borrower.
SECTION 2.11. Mandatory Prepayments.
(a) On each date on which the Commitments are reduced pursuant to Section
2.08 or Section 2.09, the Borrower shall repay or prepay such principal
amount of the outstanding Loans, if any (together with interest accrued
thereon and any amount due under Section 8.05(a)), as may be necessary so
that after such payment the aggregate unpaid principal amount of the Loans
does not exceed the aggregate amount of the Commitments as then reduced.
(b) Each such payment or prepayment under paragraph (a) or (b) above shall
be applied ratably to the Loans of the Banks outstanding on the date of
payment or prepayment in the following order of priority:(i) first, to Base
Rate Loans; (ii) secondly, to Euro-Dollar Loans; and (iii) lastly, to Money
Market Loans.
SECTION 2.12. General Provisions as to Payments.
(a) The Borrower shall make each payment of principal of, and interest on,
the Loans and of fees hereunder, not later than 11:00 A.M. (Charlotte,
North Carolina time) on the date when due, in Federal or other funds
immediately available in Charlotte, North Carolina, to the Agent at its
address referred to in Section 9.01.
(b) Whenever any payment of principal of, or interest on, the Base Rate
Loans or Money Market Loans or of fees hereunder shall be due on a day
which is not a Domestic Business Day, the date for payment thereof shall be
extended to the next succeeding Domestic Business Day. Whenever any payment
of principal of or interest on the Euro-Dollar Loans shall be due on a day
which is not a Euro-Dollar Business Day the date for payment thereof shall
be extended to the next succeeding Euro-Dollar Business Day unless such
Euro-Dollar Business Day falls in another calendar month, in which case the
date for payment thereof shall be the next preceding Euro-Dollar Business
Day.
(c) All payments of principal, interest and fees and all other amounts to
be made by a Borrower pursuant to this Agreement with respect to any Loan
or fee relating thereto shall be paid without deduction for, and free from,
any tax, imposts, levies, duties, deductions, or withholdings of any nature
now or at anytime hereafter imposed by any governmental authority or by any
taxing authority thereof or therein excluding in the case of each Bank,
taxes imposed on or measured by its net income, and franchise taxes imposed
on it, by the jurisdiction under the laws of which such Bank is organized
or any political subdivision thereof and, in the case of each Bank, taxes
imposed on its income, and franchise taxes imposed on it, by the
jurisdiction of such Bank's applicable Lending Office or any political
subdivision thereof (all such non-excluded taxes, imposts, levies, duties,
deductions or withholdings of any nature being "Taxes"). In the event that
the Borrower is required by applicable law to make any such withholding or
deduction of Taxes with respect to any Loan or fee or other amount, the
Borrower shall pay such deduction or withholding to the applicable taxing
authority, shall promptly furnish to any Bank in respect of which such
deduction or withholding is made all receipts and other documents
evidencing such payment and shall pay to such Bank additional amounts as
may be necessary in order that the amount received by such Bank after the
required withholding or other payment shall equal the amount such Bank
would have received had no such withholding or other payment been made. If
no withholding or deduction of Taxes are payable in respect to any Loan or
fee relating thereto, the Borrower shall furnish any Bank, at such Bank's
request, a certificate from each applicable taxing authority or an opinion
of counsel acceptable to such Bank, in either case stating that such
payments are exempt from or not subject to withholding or deduction of
Taxes. If the Borrower fails to provide such original or certified copy of
a receipt evidencing payment of Taxes or certificate(s) or opinion of
counsel of exemption, the Borrower agrees to compensate such Bank for, and
indemnify them with respect to, the tax consequences of the Borrower's
failure to provide evidence of tax payments or tax exemption.
Each Bank which is not organized under the laws of the United States
or any state thereof agrees, as soon as practicable after receipt by it of
a request by the Borrower to do so, to file all appropriate forms and take
other appropriate action to obtain a certificate or other appropriate
document from the appropriate governmental authority in the jurisdiction
imposing the relevant Taxes, establishing that it is entitled to receive
payments of principal and interest under this Agreement and the Notes
without deduction and free from withholding of any Taxes imposed by such
jurisdiction; provided, that, if it is unable, for any reason, to establish
such exemption, or to file such forms and, in any event, during such period
of time as such request for exemption is pending, the Borrower shall
nonetheless remain obligated under the terms of the immediately preceding
paragraph.
In the event any Bank receives a refund of any Taxes paid by the
Borrower pursuant to this Section 2.12(d), it will pay to the Borrower the
amount of such refund promptly upon receipt thereof; provided, however, if
at any time thereafter it is required to return such refund, the Borrower
shall promptly repay to it the amount of such refund.
If any Bank determines that it is entitled to a reduction in (and not
a complete exemption from) the applicable withholding Tax, such Bank shall
notify the Borrower and the Agent, and the Borrower and the Agent may
withhold from any interest payment to such Bank an amount equivalent to the
applicable reduction in withholding Tax. If any of the forms or other
documentation required above are not delivered to the Agent as therein
required, then the Borrower and the Agent may withhold from any interest
payment to such Bank not providing such forms or other documentation an
amount equivalent to the applicable withholding Tax.
Without prejudice to the survival of any other agreement of the
Borrower hereunder, the agreements and obligations of the Borrower and the
Banks contained in this Section 2.12(d) shall be applicable with respect to
any Participant, Assignee or other Transferee, and any calculations
required by such provisions (i) shall be made based upon the circumstances
of such Participant, Assignee or other Transferee, and (ii) constitute a
continuing agreement and shall survive the termination of this Agreement
and the payment in full or cancellation of the Notes.
Any of the Agent or any Bank claiming any additional amounts payable
pursuant to this Section 2.12(d) shall use reasonable efforts (consistent
with legal and regulatory restrictions) to file any certificate or document
reasonably requested by the Borrower or to change the jurisdiction of its
applicable Lending Office if the making of such filing or change would
avoid the need for or reduce the amount of any such additional amounts that
may thereafter accrue or avoid the circumstances giving rise to such
exercise and would not, in the reasonable determination of the Agent or
such Bank, as the case may be, result in any additional costs, expenses or
risks or be otherwise disadvantageous to it. Each of the Agent and each
Bank agrees to use reasonable efforts to notify the Borrower as promptly as
practicable upon its becoming aware that circumstances exist that would
cause the Borrower to become obligated to pay additional amounts to the
Agent or such Bank pursuant to this Section 2.12(d).
SECTION 2.13. Computation of Interest and Fees. Interest on Base Rate Loans and
Money Market Loans shall be computed on the basis of a year of 360 days and paid
for the actual number of days elapsed (including the first day but excluding the
last day). Interest on Euro-Dollar Loans shall be computed on the basis of a
year of 360 days and paid for the actual number of days elapsed, calculated as
to each Interest Period from and including the first day thereof to but
excluding the last day thereof. Facility fees and any other fees payable
hereunder shall be computed on the basis of a year of 360 days and paid for the
actual number of days elapsed (including the first day but excluding the last
day).
ARTICLE III
CONDITIONS TO BORROWINGS
SECTION 3.01. Conditions to First Borrowing. The obligation of each Bank to make
a Loan on the occasion of the first Borrowing and the Issuer to issue a New
Letter of Credit is subject to the satisfaction of the conditions set forth in
Section 3.02 and receipt by the Agent of the following (as to the documents
described in paragraphs (a),(c), (d) and (e) below (in sufficient number of
counterparts for delivery of a counterpart to each Bank and retention of one
counterpart by the Agent):
(a) from each of the parties hereto of either (i) a duly executed
counterpart of this Agreement signed by such party or (ii) a facsimile
transmission of such executed counterpart with the original to be sent to
the Agent by overnight courier;
(b) a duly executed Syndicated Loan Note, and a duly executed Money Market
Loan Note, for the account of each Bank (as applicable) complying with the
provisions of Section 2.04, and the duly executed Security Agreement;
(c) an opinion (together with any opinions of local counsel relied on
therein) of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, counsel for the Borrower, dated as
of the Closing Date, substantially in the form of Exhibit B and covering
such additional matters relating to the transactions contemplated hereby as
the Agent or any Bank may reasonably request;
(d) a certificate (the "Closing Certificate") substantially in the form of
Exhibit G, dated as of the Closing Date, signed by a principal financial
officer of the Borrower, to the effect that (i) no Default has occurred and
is continuing on the date of the first Borrowing and (ii) the
representations and warranties of the Borrower contained in Article IV are
true on and as of the date of the first Borrowing hereunder;
(e) A certificate of the Borrower, signed by the Secretary or an Assistant
Secretary of the Borrower substantially in the form of Exhibit H (the
"Officer's Certificate"), certifying as to the names, true signatures and
incumbency of the officer or officers of the Borrower authorized to execute
and deliver the Loan Documents, and certified copies of the following
items: (i) the Borrower's Articles of Incorporation, (ii) the Borrower's
Bylaws, (iii) a certificate of the Secretary of State of the State of North
Carolina as to the existence of the Borrower as a North Carolina
corporation, and (iv) the action taken by the Board of Directors of the
Borrower authorizing the Borrower's execution, delivery and performance of
this Agreement, the Notes and the other Loan Documents to which the
Borrower is a party;
(f) receipt of the fees and other amounts payable to the Agent on the
Closing Date pursuant to the Agent's Letter Agreement.
SECTION 3.02. Conditions to All Borrowings. The obligation of each Bank to make
a Syndicated Loan on the occasion of each Borrowing and the Issuer to issue a
New Letter of Credit is subject to the satisfaction of the following conditions
except as expressly provided in the last sentence of this Section 3.02:
(a) receipt by the Agent of a Notice of Borrowing or notification
pursuant to Section 2.03(e) of acceptance of one or more Money Market
Quotes, as applicable.
(b) the fact that, immediately before and after such Borrowing, no
Default shall have occurred and be continuing;
(c) the fact that the representations and warranties of the Borrower
contained in Article IV of this Agreement shall be true on and as of
the date of such Borrowing (except for representations and warranties
which are made only as of a stated prior date); and
(d) the fact that, immediately after such Borrowing, the conditions
set forth in clause (i) of Section 2.01 shall have been satisfied.
Each Syndicated Borrowing, each Money Market Borrowing and each Notice of
Continuation or Conversion hereunder shall be deemed to be a representation and
warranty by the Borrower on the date of such Borrowing as to the truth and
accuracy of the facts specified in paragraphs (b), (c) and (d) of this Section;
provided, that if such Borrowing is a Syndicated Borrowing which consists solely
of a Loan made pursuant to a Notice of Continuation or Conversion then, (i) if
such Borrowing is a Fixed Rate Borrowing or such Notice of Continuation or
Conversion is to a Fixed Rate Loan, such Borrowing or Notice of Continuation or
Conversion shall be deemed to be such a representation and warranty by the
Borrower only as to the matters set forth in paragraphs (b) and (d) above, and
(ii) if such Borrowing is a Base Rate Borrowing, or such Notice of Continuation
or Conversions is to a Base Rate Loan, such Borrowing or Notice of Continuation
or Conversion shall be deemed to be a representation and warranty by the
Borrower only as to the matters set forth in paragraph (d) above.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants that:
SECTION 4.01. Corporate Existence and Power. The Borrower is a corporation duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation, is duly qualified to transact business in
every jurisdiction where, by the nature of its business, such qualification is
necessary, except for any jurisdictions in which the failure to become qualified
does not have and would not reasonably be expected to cause a Material Adverse
Effect, and has all corporate powers and all governmental licenses,
authorizations, consents and approvals required to carry on its business as now
conducted, except where the failure to have such licenses, authorizations,
consents and approvals does not have and would not reasonably be expected to
cause a Material Adverse Effect.
SECTION 4.02. Corporate and Governmental Authorization; No Contravention. The
execution, delivery and performance by the Borrower of this Agreement, the Notes
and the other Loan Documents (i) are within the Borrower's corporate powers,
(ii) have been duly authorized by all necessary corporate action on the part of
the Borrower, (iii) require no action by or in respect of or filing with, any
governmental body, agency or official, (iv) do not contravene, or constitute a
default under, any provision of applicable law or regulation or of the
certificate of incorporation or by-laws of the Borrower or of any agreement,
judgment, injunction, order, decree or other instrument binding upon the
Borrower or any of its Subsidiaries, and (v) do not result in the creation or
imposition of any Lien on any asset of the Borrower or any of its Subsidiaries.
SECTION 4.03. Binding Effect. This Agreement constitutes a valid and binding
agreement of the Borrower enforceable in accordance with its terms, and the
Notes and the other Loan Documents, when executed and delivered in accordance
with this Agreement, will constitute valid and binding obligations of the
Borrower enforceable in accordance with their respective terms, provided that
the enforceability hereof and thereof is subject in each case to general
principles of equity and to bankruptcy, insolvency and similar laws affecting
the enforcement of creditors' rights generally.
SECTION 4.04. Financial Information.
(a) The consolidated balance sheet of the Borrower and its Consolidated
Subsidiaries as of April 28, 2002, and the related consolidated statements
of income, shareholders' equity and cash flows for the Fiscal Year then
ended, reported on by KPMG LLP, copies of which have been delivered to the
Agent, and the unaudited consolidated financial statements of the Borrower
for the interim period ended January 27, 2002, copies of which have been
delivered to the Agent, fairly present, in conformity with GAAP, the
consolidated financial position of the Borrower and its Consolidated
Subsidiaries as of such dates and their consolidated results of operations
and cash flows for such periods stated.
(b) Since April 28, 2002, there has been no event, act, condition or
occurrence having a Material Adverse Effect.
SECTION 4.05. No Litigation. There is no action, suit or proceeding pending, or
to the knowledge of the Borrower threatened, against or affecting the Borrower
or any of its Subsidiaries before any court or arbitrator or any governmental
body, agency or official which could have or reasonably be expected to cause a
Material Adverse Effect or which in any manner draws into question the validity
of or could impair the ability of the Borrower to perform its obligations under,
this Agreement, the Notes or any of the other Loan Documents.
SECTION 4.06. Compliance with ERISA.
(a) The Borrower and each member of the Controlled Group have fulfilled
their obligations under the minimum funding standards of ERISA and the Code
with respect to each Plan and are in compliance in all material respects
with the presently applicable provisions of ERISA and the Code, and have
not incurred any liability to the PBGC or a Plan under Title IV of ERISA.
(b) Neither the Borrower nor any member of the Controlled Group is or ever
has been obligated to contribute to any Multiemployer Plan.
SECTION 4.07. Compliance with Laws; Payment of Taxes. The Borrower and its
Subsidiaries are in compliance with all applicable laws, regulations and similar
requirements of governmental authorities, except where such compliance is being
contested in good faith through appropriate proceedings and except for any
noncompliance that does not have and would not reasonably be expected to cause a
Material Adverse Effect. There have been filed on behalf of the Borrower and its
Subsidiaries all Federal, state and local income, excise, property and other tax
returns which are required to be filed by them and all taxes due pursuant to
such returns or pursuant to any assessment received by or on behalf of the
Borrower or any Subsidiary have been paid, except where for taxes which are
being contested in good faith through appropriate proceedings and except for any
failure to file which does not have and would not reasonably be expected to
cause a Material Adverse Effect. The charges, accruals and reserves on the books
of the Borrower and its Subsidiaries in respect of taxes or other governmental
charges are, in the opinion of the Borrower, adequate. United States income tax
returns of the Borrower and its Subsidiaries have been examined and closed
through the Fiscal Year ended May 1, 1994.
SECTION 4.08. Subsidiaries. Each of the Borrower's Subsidiaries is a corporation
duly organized, validly existing and in good standing under the laws of its
jurisdiction of incorporation, is duly qualified to transact business in every
jurisdiction where, by the nature of its business, such qualification is
necessary, except for any jurisdictions in which the failure to become qualified
does not have and would not reasonably be expected to cause a Material Adverse
Effect, and has all corporate powers and all governmental licenses,
authorizations, consents and approvals required to carry on its business as now
conducted. The Borrower has no Subsidiaries except for those Subsidiaries listed
on Schedule 4.08 (and any new Subsidiaries created or acquired after the Closing
Date as to which the Agent has been notified in writing) which accurately sets
forth each such Subsidiary's complete name and jurisdiction of incorporation.
SECTION 4.09. Investment Company Act. Neither the Borrower nor any of its
Subsidiaries is an "investment company" within the meaning of the Investment
Company Act of 1940, as amended.
SECTION 4.10. Public Utility Holding Company Act. Neither the Borrower nor any
of its Subsidiaries is a "holding company", or a "subsidiary company" of a
"holding company", or an "affiliate" of a "holding company" or of a "subsidiary
company" of a "holding company", as such terms are defined in the Public Utility
Holding Company Act of 1935, as amended.
SECTION 4.11. Ownership of Property; Liens. Each of the Borrower and its
Consolidated Subsidiaries has title to its properties sufficient for the conduct
of its business, and none of such property is subject to any Lien except as
permitted in Section 5.17.
SECTION 4.12. No Default. Neither the Borrower nor any of its Consolidated
Subsidiaries is in default under or with respect to any agreement, instrument or
undertaking to which it is a party or by which it or any of its property is
bound which has or would reasonably be expected to cause a Material Adverse
Effect. No Default or Event of Default has occurred and is continuing.
SECTION 4.13. Full Disclosure. All factual information heretofore furnished in
writing by the Borrower to the Agent or any Bank for purposes of or in
connection with this Agreement or any transaction contemplated hereby is, and
all such factual information hereafter furnished in writing by the Borrower to
the Agent or any Bank will be, true, accurate and complete in every material
respect or based on reasonable estimates on the date as of which such
information is stated or certified. The Borrower has disclosed to the Banks in
writing any and all facts which have or would reasonably be expected to cause a
Material Adverse Effect.
SECTIOn 4.14. Environmental Matters.
(a) Neither the Borrower nor any Subsidiary is subject to any
Environmental Liability which has or would reasonably be expected to cause a
Material Adverse Effect and neither the Borrower nor any Subsidiary has been
notified that it has been designated as a potentially responsible party under
CERCLA or under any state statute similar to CERCLA. None of the Properties
has been identified on any current or proposed National Priorities List under
40 C.F.R. Section 300. There has been no identification of any of the Properties
on any CERCLIS list or any list arising from a state statute similar to
CERCLA which has or would reasonably be expected to cause a Material Adverse
Effect.
(b) No Hazardous Materials have been or are being used, produced,
manufactured, processed, treated, recycled, generated, stored, disposed of,
managed or otherwise handled at, or shipped or transported to or from the
Properties or are otherwise present at, on, in or under the Properties, or,
to the best of the knowledge of the Borrower, at or from any adjacent site
or facility that has or would reasonably be expected to cause a Material
Adverse Effect.
(c) The Borrower, and each of its Subsidiaries and Affiliates, has procured
all Environmental Authorizations necessary for the conduct of its business,
and is in compliance with all Environmental Requirements in connection with
the operation of the Properties and the Borrower's, and each of its
Subsidiary's and Affiliate's, respective businesses, except for any
non-procurement or noncompliance that does not have and would not
reasonably be expected to cause a Material Adverse Effect.
SECTION 4.15. Capital Stock. All Capital Stock, debentures, bonds, notes and all
other securities of the Borrower and its Subsidiaries presently issued and
outstanding are validly and properly issued in accordance with all applicable
laws, including but not limited to, the "Blue Sky" laws of all applicable states
and the federal securities laws. The issued shares of Capital Stock of the
Borrower's Wholly Owned Subsidiaries are owned by the Borrower free and clear of
any Lien or adverse claim. At least a majority of the issued shares of capital
stock of each of the Borrower's other Subsidiaries (other than Wholly Owned
Subsidiaries) is owned by the Borrower free and clear of any Lien or adverse
claim.
SECTION 4.16. Margin Stock. Neither the Borrower nor any of its Subsidiaries is
engaged principally, or as one of its important activities, in the business of
purchasing or carrying any Margin Stock, and no part of the proceeds of any Loan
will be used to purchase or carry any Margin Stock or to extend credit to others
for the purpose of purchasing or carrying any Margin Stock, or be used for any
purpose which violates, or which is inconsistent with, the provisions of
Regulation T, U or X.
SECTION 4.17. Insolvency. After giving effect to the execution and delivery of
the Loan Documents and the making of the Loans under this Agreement: (i) the
Borrower will not (x) be "insolvent," within the meaning of such term as used in
O.C.G.A. Section 18-2-22 or as defined in Section 101 of the "Bankruptcy Code",
or Section 2 of either the "UFTA" or the "UFCA", or as defined or used in any
"Other Applicable Law" (as those terms are defined below), or (y) be unable to
pay its debts generally as such debts become due within the meaning of Section
548 of the Bankruptcy Code, Section 4 of the UFTA or Section 6 of the UFCA, or
(z) have an unreasonably small capital to engage in any business or transaction,
whether current or contemplated, within the meaning of Section 548 of the
Bankruptcy Code, Section 4 of the UFTA or Section 5 of the UFCA; and (ii) the
obligations of the Borrower under the Loan Documents and with respect to the
Loans will not be rendered avoidable under any Other Applicable Law. For
purposes of this Section 4.17, "Bankruptcy Code" means Title 11 of the United
States Code, "UFTA" means the Uniform Fraudulent Transfer Act, "UFCA" means the
Uniform Fraudulent Conveyance Act, and "Other Applicable Law" means any other
applicable state law pertaining to fraudulent transfers or acts voidable by
creditors, in each case as such law may be amended from time to time.
SECTION 4.18. Insurance. The Borrower and each of its Subsidiaries has (either
in the name of the Borrower or in such Subsidiary's own name), with financially
sound and reputable insurance companies, insurance in at least such amounts and
against at least such risks (including on all its property, and public liability
and worker's compensation) as are usually insured against in the same general
area by companies of established repute engaged in the same or similar business.
ARTICLE V
COVENANTS
The Borrower agrees that, so long as any Bank has any Commitment hereunder
or any amount payable hereunder or under any Note remains unpaid:
SECTION 5.01. Information. The Borrower will deliver to each of the Banks:
(a) as soon as available and in any event within 90 days after the end of
each Fiscal Year, a consolidated (and consolidating, if requested by the
Agent) balance sheet of the Borrower and its Consolidated Subsidiaries as
of the end of such Fiscal Year and the related consolidated (and
consolidating, if requested by the Agent) statements of income,
shareholders' equity and cash flows for such Fiscal Year, setting forth in
each case in comparative form the figures for the previous fiscal year, all
certified by KPMG LLP or other independent public accountants of nationally
recognized standing, with such certification to be free of exceptions and
qualifications not acceptable to the Required Banks;
(b) as soon as available and in any event within 45 days after the end of
each of the first 3 Fiscal Quarters of each Fiscal Year, a consolidated
balance sheet of the Borrower and its Consolidated Subsidiaries (broken
down by business unit, if requested by the Agent) as of the end of such
Fiscal Quarter and the related consolidated statement of income and
statement of cash flows (broken down by business unit, if requested by the
Agent) for such Fiscal Quarter and for the portion of the Fiscal Year ended
at the end of such Fiscal Quarter, setting forth in each case in
comparative form the figures for the corresponding Fiscal Quarter and the
corresponding portion of the previous Fiscal Year, all certified (subject
to normal year-end adjustments) as to fairness of presentation, GAAP and
consistency by the chief financial officer or the chief accounting officer
of the Borrower;
(c) simultaneously with the delivery of each set of financial statements
referred to in paragraphs (a) and (b) above, a certificate, substantially
in the form of Exhibit F (a "Compliance Certificate"), of the chief
financial officer or the chief accounting officer of the Borrower (i)
setting forth in reasonable detail the calculations required to establish
whether the Borrower was in compliance with the requirements of Sections
5.05, 5.15, 5.16, 5.17, 5.19, 5.20, 5.21, 5.23 and 5.24 on the date of such
financial statements and (ii) stating whether any Default exists on the
date of such certificate and, if any Default then exists, setting forth the
details thereof and the action which the Borrower is taking or proposes to
take with respect thereto;
(d) simultaneously with the delivery of each set of annual financial
statements referred to in paragraph (a) above, a statement of the firm of
independent public accountants which reported on such statements to the
effect that nothing has come to their attention to cause them to believe
that any Default existed under Sections 5.05, 5.15, 5.16, 5.19, 5.20, 5.21,
5.23 and 5.24 on the date of such financial statements;
(e) within 5 Domestic Business Days after the Borrower becomes aware of the
occurrence of any Default or event which has or would reasonably be
expected to cause a Material Adverse Effect, a certificate of the chief
financial officer or the chief accounting officer of the Borrower setting
forth the details thereof and the action which the Borrower is taking or
proposes to take with respect thereto;
(f) promptly upon the mailing thereof to the shareholders of the Borrower
generally, copies of all financial statements, reports and proxy statements
so mailed;
(g) promptly upon the filing thereof, copies of all registration statements
(other than the exhibits thereto and any registration statements on Form
S-8 or its equivalent or any filings under Section 16 of the Securities and
Exchange Act) and annual, quarterly or monthly reports which the Borrower
shall have filed with the Securities and Exchange Commission;
(h) if and when any member of the Controlled Group (i) gives or is required
to give notice to the PBGC of any "reportable event" (as defined in Section
4043 of ERISA) with respect to any Plan which might constitute grounds for
a termination of such Plan under Title IV of ERISA, or knows that the plan
administrator of any Plan has given or is required to give notice of any
such reportable event, a copy of the notice of such reportable event given
or required to be given to the PBGC; (ii) receives notice of complete or
partial withdrawal liability under Title IV of ERISA, a copy of such
notice; or (iii) receives notice from the PBGC under Title IV of ERISA of
an intent to terminate or appoint a trustee to administer any Plan, a copy
of such notice; and
(i) from time to time such additional information regarding the financial
position or business of the Borrower and its Subsidiaries as the Agent, at
the request of any Bank, may reasonably request.
SECTION 5.02. Inspection of Property, Books and Records. The Borrower will (i)
keep, and cause each Subsidiary to keep, proper books of record and account in
which full, true and correct entries in conformity with GAAP shall be made of
all dealings and transactions in relation to its business and activities; and
(ii) subject to the next succeeding sentence, permit, and cause each Subsidiary
to permit, representatives of any Bank at such Bank's expense prior to the
occurrence of a Default and at the Borrower's expense after the occurrence of a
Default to visit and inspect any of their respective properties, to examine and
make abstracts from any of their respective books and records and to discuss
their respective affairs, finances and accounts with their respective officers,
employees and independent public accountants. The Borrower agrees to cooperate
and assist in such visits and inspections, in each case at such reasonable times
and on reasonable notice and as often as may reasonably be desired.
SECTION 5.03. Maintenance of Existence. The Borrower shall, and shall cause each
Subsidiary to, maintain its corporate existence and carry on its business in
substantially the same manner and in substantially the same fields as such
business is now carried on and maintained (provided that the Borrower may effect
the Chattanooga Restructuring).
SECTION 5.04. Dissolution. Neither the Borrower nor any of its Subsidiaries
shall suffer or permit dissolution or liquidation either in whole or in part or
redeem or retire any shares of its own stock or that of any Subsidiary, except
through corporate reorganization to the extent permitted by Section 5.05.
SECTION 5.05. Consolidations, Mergers and Sales of Assets. The Borrower will
not, nor will it permit any Subsidiary to, consolidate or merge with or into, or
sell, lease or otherwise transfer all or any substantial part of its assets to,
any other Person, or discontinue or eliminate any business line or segment,
provided that: (a) the Borrower may merge with another Person if (i) such Person
was organized under the laws of the United States of America or one of its
states (ii) the Borrower is the corporation surviving such merger and (iii)
immediately after giving effect to such merger, no Default shall have occurred
and be continuing; (b) Subsidiaries of the Borrower may merge with one another;
and (c) the foregoing limitation on the sale, lease or other transfer of assets
and on the discontinuation or elimination of a business line or segment shall
not prohibit (i) the consummation of the Chattanooga Sale/Leaseback Transaction
and the Chattanooga Restructuring, or (ii) in addition to the Chattanooga
Sale/Leaseback Transaction and the Chattanooga Restructuring, during any Fiscal
Quarter, a transfer of assets or the discontinuance or elimination of a business
line or segment (in a single transaction or in a series of related transactions)
unless the aggregate assets to be so transferred or utilized in a business line
or segment to be so discontinued, when combined with all other assets
transferred, and all other assets utilized in all other business lines or
segments discontinued (other than the Chattanooga Sale/Leaseback Transaction and
the Chattanooga Restructuring), during such Fiscal Quarter and the immediately
preceding 3 Fiscal Quarters, contributed more than 10% of EBITDA during the 4
Fiscal Quarters immediately preceding such Fiscal Quarter.
SECTION 5.06. Use of Proceeds. The proceeds of the Loans may be used for general
corporate purposes and payment of Debt in existence on the Closing Date. No
portion of the proceeds of the Loans will be used by the Borrower or any
Subsidiary (i) in connection with, whether directly or indirectly, any tender
offer for, or other acquisition of, stock of any corporation with a view towards
obtaining control of such other corporation, unless such tender offer or other
acquisition is to be made on a negotiated basis with the approval of the Board
of Directors of the Person to be acquired, and the provisions of Section 5.16
would not be violated, (ii) directly or indirectly, for the purpose, whether
immediate, incidental or ultimate, of purchasing or carrying any Margin Stock,
or (iii) for any purpose in violation of any applicable law or regulation.
SECTION 5.07. Compliance with Laws; Payment of Taxes. The Borrower will, and
will cause each of its Subsidiaries and each member of the Controlled Group to,
comply with applicable laws (including but not limited to ERISA), regulations
and similar requirements of governmental authorities (including but not limited
to PBGC), except where the necessity of such compliance is being contested in
good faith through appropriate proceedings diligently pursued and except for any
noncompliance that does not have and would not reasonably be expected to cause a
Material Adverse Effect. The Borrower will, and will cause each of its
Subsidiaries to, pay promptly when due all taxes, assessments, governmental
charges, claims for labor, supplies, rent and other obligations which, if
unpaid, might become a lien against the property of the Borrower or any
Subsidiary, except liabilities being contested in good faith and against which,
if requested by the Agent, the Borrower will set up reserves in accordance with
GAAP and except for any noncompliance that does not have and would not
reasonably be expected to cause a Material Adverse Effect.
SECTION 5.08. Insurance. The Borrower will maintain, and will cause each of its
Subsidiaries to maintain (either in the name of the Borrower or in such
Subsidiary's own name), with financially sound and reputable insurance
companies, insurance on all its property in at least such amounts and against at
least such risks (including on all its property, and public liability and
worker's compensation) as are usually insured against in the same general area
by companies of established repute engaged in the same or similar business.
SECTION 5.09. Change in Fiscal Year. The Borrower will not change its Fiscal
Year without the consent of the Required Banks.
SECTION 5.10. Maintenance of Property. The Borrower shall, and shall cause each
Subsidiary to, maintain all of its properties and assets in reasonably good
condition, repair and working order, ordinary wear and tear excepted.
SECTION 5.11. Environmental Notices. The Borrower shall furnish to the Banks and
the Agent prompt written notice of all Environmental Liabilities, pending,
threatened or anticipated Environmental Proceedings, Environmental Notices,
Environmental Judgments and Orders, and Environmental Releases at, on, in, under
or in any way affecting the Properties, and all facts, events, or conditions
that could lead to any of the foregoing, except for any such matters that would
not reasonably be expected to cause a Material Adverse Effect.
SECTION 5.12. Environmental Matters. The Borrower and its Subsidiaries will not,
and will use reasonable efforts to cause any Third Party to not, use, produce,
manufacture, process, treat, recycle, generate, store, dispose of, manage at, or
otherwise handle, or ship or transport to or from the Properties any Hazardous
Materials except for any such matters that would not reasonably be expected to
cause a Material Adverse Effect.
SECTION 5.13. Environmental Release. The Borrower agrees that upon the
occurrence of an Environmental Release at or on any of the Properties that does
not have and would not reasonably be expected to cause a Material Adverse
Effect, it will investigate the extent of, and take appropriate remedial action
to eliminate, such Environmental Release.
SECTION 5.14. Transactions with Affiliates. Neither the Borrower nor any of its
Subsidiaries shall enter into, or be a party to, any transaction with any
Affiliate of the Borrower or such Subsidiary (which Affiliate is not the
Borrower or a Wholly Owned Subsidiary), except as permitted by law and pursuant
to reasonable terms which are fully disclosed to the Agent and the Banks, and
are no less favorable to Borrower or such Subsidiary than would be obtained in a
comparable arm's length transaction with a Person which is not an Affiliate.
SECTION 5.15. Loans or Advances. Neither the Borrower nor any of its
Subsidiaries shall make loans or advances to any Person except as permitted by
Section 5.16 and except: (i) loans and advances made prior to the Closing Date
and listed on Schedule 5.15, (ii) loans or advances to employees not exceeding
$5,000,000 in the aggregate principal amount outstanding at any time, in each
case made in the ordinary course of business and consistent with practices
existing on the Closing Date; (iii) deposits required by government agencies or
public utilities; (iv) loans and advances made prior to the Closing Date to
Rayonese Textile Inc.; and (v) other loans and advances in an amount which,
together with Investments permitted by clause (viii) of Section 5.16, does not
exceed 10% of Stockholders' Equity; provided that after giving effect to the
making of any loans, advances or deposits permitted by this Section, and no
Default shall be in existence or be created thereby.
SECTION 5.16. Investments. Neither the Borrower nor any of its Subsidiaries
shall make Investments in any Person except as permitted by Section 5.15 and
Investments in existence on the Closing Date and listed on Schedule 5.16 and
except Investments in (i) direct obligations of the United States Government
maturing within one year, (ii) certificates of deposit issued by a commercial
bank whose credit is satisfactory to the Agent, (iii) commercial paper rated A1
or the equivalent thereof by S&P or P1 or the equivalent thereof by ▇▇▇▇▇'▇ and
in either case maturing within 6 months after the date of acquisition, (iv)
tender bonds the payment of the principal of and interest on which is fully
supported by a letter of credit issued by a United States bank whose long-term
certificates of deposit are rated at least AA or the equivalent thereof by S&P
and Aa or the equivalent thereof by ▇▇▇▇▇'▇, (v) Investments pursuant to its
deferred compensation plan, funded with life insurance or other investment
products through a Rabbi Trust; (vi) investments in Joint Ventures in an
aggregate amount not exceeding $25,000,000; (vii) Investments made prior to the
Closing Date in 3096726 Canada Inc. and/or in Rayonese Textile Inc.; and/or
(viii) other Investments in an amount which, together with loans and advances
permitted by clause (v) of Section 5.15, does not exceed 10% of Stockholders'
Equity; provided, however, immediately after giving effect to the making of any
Investment, no Default shall have occurred and be continuing.
SECTION 5.17. Priority Debt. Neither the Borrower nor any Consolidated
Subsidiary will create, assume or suffer to exist any Lien on any asset now
owned or hereafter acquired by it, and the Borrower shall not permit any
Subsidiary to incur any Debt, other than Debt of Subsidiaries existing on the
Closing Date and listed on Schedule 5.17, except:
(a) Liens (i) in favor of the Agent and the Banks created under the
Security Agreement, and (ii) existing on the Closing Date securing Debt
outstanding on the date of this Agreement in an aggregate principal amount
not exceeding $5,007,000 under this clause (ii);
(b) any Lien existing on any specific fixed asset of any corporation at the
time such corporation becomes a Consolidated Subsidiary and not created in
contemplation of such event;
(c) any Lien on any specific fixed asset securing Debt incurred or assumed
for the purpose of financing all or any part of the cost of acquiring or
constructing such asset, provided that such Lien attaches to such asset
concurrently with or within 18 months after the acquisition or completion
of construction thereof;
(d) any Lien on any specific fixed asset of any corporation existing at the
time such corporation is merged or consolidated with or into the Borrower
or a Consolidated Subsidiary and not created in contemplation of such
event;
(e) any Lien existing on any specific fixed asset prior to the acquisition
thereof by the Borrower or a Consolidated Subsidiary and not created in
contemplation of such acquisition;
(f) Liens securing Debt owing by any Subsidiary to the Borrower;
(g) any Lien arising out of the refinancing, extension, renewal or
refunding of any Debt secured by any Lien permitted by any of the foregoing
paragraphs of this Section, provided that (i) such Debt is not secured by
any additional assets, and (ii) the amount of such Debt secured by any such
Lien is not increased;
(h) Liens incidental to the conduct of its business or the ownership of its
assets which (i) do not secure Debt and (ii) do not in the aggregate
materially detract from the value of its assets or materially impair the
use thereof in the operation of its business;
(i) any Lien on Margin Stock;
(j) Debt owing to the Borrower or another Subsidiary;
(k) Special Purchase Money Liens;
(l) Liens not otherwise permitted by the foregoing paragraphs of this
Section securing Debt (other than the Loans and the Letter of Credit
Obligations), and Debt of Subsidiaries not otherwise permitted by paragraph
(j), in an aggregate principal amount at any time outstanding not to exceed
15% of Consolidated Net Worth.
Provided the sum of (A) the aggregate amount of Debt secured by Liens permitted
by the foregoing paragraphs (a) through (h) and (l), plus (B) Debt of
Subsidiaries permitted by paragraph (l), shall not at any time exceed an
aggregate amount equal to 15% of Consolidated Net Worth.
SECTION 5.18. Restrictions on Ability of Subsidiaries to Pay Dividends. The
Borrower shall not permit any Subsidiary to, directly or indirectly, create or
otherwise cause or suffer to exist or become effective any encumbrance or
restriction on the ability of any such Subsidiary to (i) pay any dividends or
make any other distributions on its Capital Stock or any other interest (other
than dividends paid or payable in the form of additional Capital Stock) or (ii)
make or repay any loans or advances to the Borrower or the parent of such
Subsidiary.
SECTION 5.19. Interest and Leases Coverage. At the end of each Fiscal Quarter,
the Interest and Leases Coverage Ratio shall not have been less than: (i) for
the period from and including the first Fiscal Quarter of Fiscal Year 2003
through and including the second Fiscal Quarter of Fiscal Year 2003, 2.25 to
1.0; (ii) for the period after the second Fiscal Quarter of Fiscal Year 2003
through and including the fourth Fiscal Quarter of Fiscal Year 2003, 2.50 to
1.0; and (iii) for Fiscal Year 2004, 2.75 to 1.0.
SECTION 5.20. Ratio of Funded Debt to Total Tangible Capitalization. For Fiscal
Year 2003, the ratio of Funded Debt to Total Tangible Capitalization will not
exceed 0.60 to 1.00. For Fiscal Year 2004, the ratio of Funded Debt to Total
Tangible Capitalization will not exceed 0.55 to 1.00.
SECTION 5.21. Debt/EBITDA Ratio. At the end of each Fiscal Quarter, the
Debt/EBITDA Ratio shall be less than (i) for the period from and including the
first Fiscal Quarter of Fiscal Year 2003 through the second Fiscal Quarter of
Fiscal Year 2003, 3.25 to 1.0; (ii) for the period after the second Fiscal
Quarter of Fiscal Year 2003 through the third Fiscal Quarter of Fiscal Year
2003, 3.00 to 1.0; (iii) for the period after the third Fiscal Quarter of Fiscal
Year 2003 through and including the fourth Fiscal Quarter of Fiscal Year 2003,
2.75 to 1.0; and (iv) for Fiscal Year 2004, 2.50 to 1.0.
SECTION 5.22. Acquisitions. Neither the Borrower nor any Subsidiary shall make
any Acquisitions after the Closing Date, except that the Borrower may make any
Acquisition which is (i) of stock or assets of a Person in substantially similar
lines of business to that of the Borrower and its Subsidiaries and (ii) in an
aggregate amount for any single Acquisition or series of related Acquisitions
which does not exceed $15,000,000.
SECTION 5.23. Restricted Payments. The Borrower shall not and shall not permit
any Subsidiary that is not a wholly-owned Subsidiary to pay any dividends or
make any other distributions on its Capital Stock or any other interest other
than (i) dividends paid or payable in the form of additional Capital Stock, and
(ii) any dividends declared and paid in any Fiscal Quarter after a Fiscal
Quarter in which the ratio of Funded Debt to Total Tangible Capitalization is
less than 0.50 to 1.00.
SECTION 5.24. Capital Expenditures. Capital Expenditures will not exceed (i) for
the Fiscal Year 2003, $14,000,000; and (ii) for Fiscal Years 2002 and 2004, 50%
of the Depreciation incurred for Fiscal Year 2004.
SECTION 5.25. Redemption of Bonds; Release of Collateral Upon $8,000,000 Bond
Redemption. So long as no Event of Default is in existence, upon the earlier to
occur of (x) payment in full with respect to the $8,000,000 Bond Redemption
(defined below) and the delivery of reasonable evidence thereof to the Agent,
and (y) the Debt/EBITDA Ratio having been less than 2.25 to 1.0 for two
consecutive Fiscal Quarters, then, upon such occurrence, the Agent shall
terminate the Security Agreement and any recorded UCC financing statements
relating thereto. "Bond Redemption" means a redemption and repayment in full of
industrial revenue bonds issued for the benefit of the Borrower and/or its
Subsidiaries in a principal amount equal to or greater than $8,000,000.
ARTICLE VI
DEFAULTS
SECTION 6.01. Events of Default. If one or more of the following events ("Events
of Default") shall have occurred and be continuing:
(a) the Borrower shall fail to pay when due any principal of any Loan or
any Reimbursement Obligations with respect to any Letter of Credit or shall
fail to pay any interest on any Loan within 5 Domestic Business Days after
such interest shall become due, or shall fail to pay any fee or other
amount payable hereunder within 5 Domestic Business Days after such fee or
other amount becomes due; or
(b) the Borrower shall fail to observe or perform any covenant contained in
Sections 5.01(e), 5.02(ii), 5.03 to 5.06, inclusive, Sections 5.15, 5.16 or
5.18 through 5.25 inclusive; or
(c) the Borrower shall fail to observe or perform any covenant or agreement
contained or incorporated by reference in this Agreement (other than those
covered by paragraph (a) or (b) above) and such failure shall not have been
cured within 30 days after the earlier to occur of (i) written notice
thereof has been given to the Borrower by the Agent at the request of any
Bank or (ii) the Borrower otherwise becomes aware of any such failure; or
(d) any representation or warranty made by the Borrower in Article IV of
this Agreement or any representation, warranty, certification or statement
made in any certificate, financial statement or other document delivered
pursuant to this Agreement shall prove to have been incorrect or misleading
in any material respect when made (or deemed made); or
(e) the Borrower or any Subsidiary shall fail to make any payment in
respect of Debt in an aggregate principal amount outstanding of $5,000,000
or more (other than the Notes) when due or within any applicable grace
period; or
(f) any event or condition shall occur which results in the acceleration of
the maturity of Debt in an aggregate principal amount outstanding of
$5,000,000 or more of the Borrower or any Subsidiary (including, without
limitation, any required mandatory prepayment or "put" of such Debt to the
Borrower or any Subsidiary) or enables (or, with the giving of notice or
lapse of time or both, would enable) the holders of such Debt or Commitment
or any Person acting on such holders' behalf to accelerate the maturity
thereof or terminate any such commitment (including, without limitation,
any required mandatory prepayment or "put" of such Debt to the Borrower or
any Subsidiary); or
(g) the Borrower or any Subsidiary shall commence a voluntary case or other
proceeding seeking liquidation, reorganization or other relief with respect
to itself or its debts under any bankruptcy, insolvency or other similar
law now or hereafter in effect or seeking the appointment of a trustee,
receiver, liquidator, custodian or other similar official of it or any
substantial part of its property, or shall consent to any such relief or to
the appointment of or taking possession by any such official in an
involuntary case or other proceeding commenced against it, or shall make a
general assignment for the benefit of creditors, or shall fail generally,
or shall admit in writing its inability, to pay its debts as they become
due, or shall take any corporate action to authorize any of the foregoing;
or
(h) an involuntary case or other proceeding shall be commenced against the
Borrower or any Subsidiary seeking liquidation, reorganization or other
relief with respect to it or its debts under any bankruptcy, insolvency or
other similar law now or hereafter in effect or seeking the appointment of
a trustee, receiver, liquidator, custodian or other similar official of it
or any substantial part of its property, and such involuntary case or other
proceeding shall remain undismissed and unstayed for a period of 60 days;
or an order for relief shall be entered against the Borrower or any
Subsidiary under the federal bankruptcy laws as now or hereafter in effect;
or
(i) the Borrower or any member of the Controlled Group shall fail to pay
when due any material amount which it shall have become liable to pay to
the PBGC or to a Plan under Title IV of ERISA; or notice of intent to
terminate a Plan or Plans shall be filed under Title IV of ERISA by the
Borrower, any member of the Controlled Group, any plan administrator or any
combination of the foregoing; or the PBGC shall institute proceedings under
Title IV of ERISA to terminate or to cause a trustee to be appointed to
administer any such Plan or Plans or a proceeding shall be instituted by a
fiduciary of any such Plan or Plans to enforce Section 515 or 4219(c)(5) of
ERISA and such proceeding shall not have been dismissed within 30 days
thereafter; or a condition shall exist by reason of which the PBGC would be
entitled to obtain a decree adjudicating that any such Plan or Plans must
be terminated; or the Borrower or any other member of the Controlled Group
shall enter into, contribute or be obligated to contribute to, terminate or
incur any withdrawal liability with respect to, a Multiemployer Plan; or
(j) one or more judgments or orders for the payment of money in an
aggregate amount in excess of $5,000,000 shall be rendered against the
Borrower or any Subsidiary and such judgment or order shall continue
unsatisfied and unstayed for a period of 30 days; or
(k) a federal tax lien shall be filed against the Borrower or any
Subsidiary under Section 6323 of the Code or a lien of the PBGC shall be
filed against the Borrower or any Subsidiary under Section 4068 of ERISA
and in either case such lien is for an amount of $1,000,000 or more and
remains undischarged for a period of 25 days after the date of filing; or
(l) (i) Except for the ▇▇▇▇ Family, any Person or two or more Persons
acting in concert shall have acquired beneficial ownership (within the
meaning of Rule 13d-3 of the Securities and Exchange Commission under the
Securities Exchange Act of 1934) of 20% or more of the outstanding shares
of the voting stock of the Borrower; or (ii) as of any date a majority of
the Board of Directors of the Borrower consists of individuals who were not
either (A) directors of the Borrower as of the corresponding date of the
previous year, (B) selected or nominated to become directors by the Board
of Directors of the Borrower of which a majority consisted of individuals
described in clause (A), or (C) selected or nominated to become directors
by the Board of Directors of the Borrower of which a majority consisted of
individuals described in clause (A) and individuals described in clause
(B).
then, and in every such event, (i) the Agent shall, if requested by the Required
Banks, by notice to the Borrower terminate the Commitments (and the commitments
of the Issuer to issue New Letters of Credit) and they shall thereupon
terminate, (ii) any Bank may terminate its obligation to fund a Money Market
Loan in connection with any relevant Money Market Quote, (iii) the Agent shall,
if requested by the Required Banks, by notice to the Borrower declare the Notes
(together with accrued interest thereon), the Letter of Credit Obligatoins, and
all other amounts payable hereunder and under the other Loan Documents, to be,
and the Notes (together with accrued interest thereon), and all other amounts
payable hereunder and under the other Loan Documents shall thereupon become,
immediately due and payable without presentment, demand, protest or other notice
of any kind, all of which are hereby waived by the Borrower together with
interest at the Default Rate accruing on the principal amount thereof from and
after the date of such Event of Default, and (iv) the Agent shall, if requested
by the Required Banks, take any action permitted under the terms of the other
Loan Documents or under applicable law (and, in any event, the Agent may take
any action required by it under the Reimbursement Agreements or the other bond
documents relating thereto without the request or consent of the Banks);
provided that if any Event of Default specified in paragraph (g) or (h) above
occurs with respect to the Borrower, without any notice to the Borrower or any
other act by the Agent or the Banks, the Commitments (and the commitments of the
Issuer to issue New Letters of Credit) shall thereupon terminate and the Notes
(together with accrued interest thereon), the Letter of Credit Obligations, and
all other amounts payable hereunder and under the other Loan Documents shall
automatically and without notice become immediately due and payable without
presentment, demand, protest or other notice of any kind, all of which are
hereby waived by the Borrower together with interest thereon at the Default Rate
accruing on the principal amount thereof from and after the date of such Event
of Default. In addition to the foregoing, If an Event of Default shall have
occurred and be continuing, the Borrower shall be obligated to deposit with the
Agent cash collateral in an amount equal to 105% of the undrawn amount available
under the Letters of Credit. Notwithstanding the foregoing, the Agent shall have
available to it all other remedies at law or equity, and shall exercise any one
or all of them at the request of the Required Banks.
SECTION 6.02. Notice of Default. The Agent shall give notice to the Borrower of
any Default under Section 6.01(c) promptly upon being requested to do so by any
Bank and shall thereupon notify all the Banks thereof.
ARTICLE VII
THE AGENT
SECTION 7.01.Appointment; Powers and Immunities. Each Bank hereby irrevocably
appoints and authorizes the Agent to act as its agent hereunder and under the
other Loan Documents with such powers as are specifically delegated to the Agent
by the terms hereof and thereof, together with such other powers as are
reasonably incidental thereto. The Agent: (a) shall have no duties or
responsibilities except as expressly set forth in this Agreement and the other
Loan Documents, and shall not by reason of this Agreement or any other Loan
Document be a trustee for any Bank; (b) shall not be responsible to the Banks
for any recitals, statements, representations or warranties contained in this
Agreement or any other Loan Document, or in any certificate or other document
referred to or provided for in, or received by any Bank under, this Agreement or
any other Loan Document, or for the validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement or any other Loan Document or
any other document referred to or provided for herein or therein or for any
failure by the Borrower to perform any of its obligations hereunder or
thereunder; (c) shall not be required to initiate or conduct any litigation or
collection proceedings hereunder or under any other Loan Document except to the
extent requested by the Required Banks, and then only on terms and conditions
satisfactory to the Agent, and (d) shall not be responsible for any action taken
or omitted to be taken by it hereunder or under any other Loan Document or any
other document or instrument referred to or provided for herein or therein or in
connection herewith or therewith, except for its own gross negligence or willful
misconduct. The Agent may employ agents and attorneys-in-fact and shall not be
responsible for the negligence or misconduct of any such agents or
attorneys-in-fact selected by it with reasonable care. The provisions of this
Article VII are solely for the benefit of the Agent and the Banks, and the
Borrower shall not have any rights as a third party beneficiary of any of the
provisions hereof. In performing its functions and duties under this Agreement
and under the other Loan Documents, the Agent shall act solely as agent of the
Banks and does not assume and shall not be deemed to have assumed any obligation
towards or relationship of agency or trust with or for the Borrower. The duties
of the Agent shall be ministerial and administrative in nature, and the Agent
shall not have by reason of this Agreement or any other Loan Document a
fiduciary relationship in respect of any Bank.
SECTION 7.02. Reliance by Agent. The Agent shall be entitled to rely upon any
certification, notice or other communication (including any thereof by
telephone, telecopier, telegram or cable) believed by it to be genuine and
correct and to have been signed or sent by or on behalf of the proper Person or
Persons, and upon advice and statements of legal counsel, independent
accountants or other experts selected by the Agent. As to any matters not
expressly provided for by this Agreement or any other Loan Document, the Agent
shall in all cases be fully protected in acting, or in refraining from acting,
hereunder and thereunder in accordance with instructions signed by the Required
Banks, and such instructions of the Required Banks in any action taken or
failure to act pursuant thereto shall be binding on all of the Banks.
SECTION 7.03. Defaults. The Agent shall not be deemed to have knowledge of the
occurrence of a Default or an Event of Default (other than the nonpayment of
principal of or interest on the Loans) unless the Agent has received notice from
a Bank or the Borrower specifying such Default or Event of Default and stating
that such notice is a "Notice of Default". In the event that the Agent receives
such a notice of the occurrence of a Default or an Event of Default, the Agent
shall give prompt notice thereof to the Banks. The Agent shall give each Bank
prompt notice of each nonpayment of principal of or interest on the Loans
whether or not it has received any notice of the occurrence of such nonpayment.
The Agent shall (subject to Section 9.06) take such action hereunder with
respect to such Default or Event of Default as shall be directed by the Required
Banks, provided that, unless and until the Agent shall have received such
directions, the Agent may (but shall not be obligated to) take such action, or
refrain from taking such action, with respect to such Default or Event of
Default as it shall deem advisable in the best interests of the Banks.
SECTION 7.04. Rights of Agent as a Bank and its Affiliates. With respect to the
Loans made by the Agent and any Affiliate of the Agent, the Agent in its
capacity as a Bank hereunder and any Affiliate of the Agent or such Affiliate
(collectively, "Wachovia"), Wachovia in its capacity as a Bank hereunder shall
have the same rights and powers hereunder as any other Bank and may exercise the
same as though it were not acting as the Agent, and the term "Bank" or "Banks"
shall, unless the context otherwise indicates, include Wachovia in its
individual capacity and any Affiliate of the Agent in its individual capacity.
The Agent and any Affiliate of the Agent may (without having to account therefor
to any Bank) accept deposits from, lend money to and generally engage in any
kind of banking, trust or other business with the Borrower (and any of the
Borrower's Affiliates) as if the Bank were not acting as the Agent, and the
Agent and any Affiliate of the Agent may accept fees and other consideration
from the Borrower (in addition to any agency fees and arrangement fees
heretofore agreed to between the Borrower and the Agent) for services in
connection with this Agreement or any other Loan Document or otherwise without
having to account for the same to the Banks.
SECTION 7.05. Indemnification. Each Bank severally agrees to indemnify the
Agent, to the extent the Agent shall not have been reimbursed by the Borrower,
ratably in accordance with its Commitment, for any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses (including, without limitation, counsel fees and disbursements) or
disbursements of any kind and nature whatsoever which may be imposed on,
incurred by or asserted against the Agent in any way relating to or arising out
of this Agreement or any other Loan Document or any other documents contemplated
by or referred to herein or therein or the transactions contemplated hereby or
thereby (excluding, unless an Event of Default has occurred and is continuing,
the normal administrative costs and expenses incident to the performance of its
agency duties hereunder) or the enforcement of any of the terms hereof or
thereof or any such other documents; provided, however that no Bank shall be
liable for any of the foregoing to the extent they arise from the gross
negligence or willful misconduct of the Agent. If any indemnity furnished to the
Agent for any purpose shall, in the opinion of the Agent, be insufficient or
become impaired, the Agent may call for additional indemnity and cease, or not
commence, to do the acts indemnified against until such additional indemnity is
furnished.
SECTION 7.06. CONSEQUENTIAL DAMAGES. THE AGENT SHALL NOT BE RESPONSIBLE OR
LIABLE TO ANY BANK, THE BORROWER OR ANY OTHER PERSON OR ENTITY FOR ANY PUNITIVE,
EXEMPLARY OR CONSEQUENTIAL DAMAGES WHICH MAY BE ALLEGED AS A RESULT OF THIS
AGREEMENT, THE OTHER LOAN DOCUMENTS OR ANY OF THE TRANSACTIONS CONTEMPLATED
HEREBY OR THEREBY.
SECTION 7.07. Payee of Note Treated as Owner. The Agent may deem and treat the
payee of any Note as the owner thereof for all purposes hereof unless and until
a written notice of the assignment or transfer thereof shall have been filed
with the Agent and the provisions of Section 9.08(c) have been satisfied. Any
requests, authority or consent of any Person who at the time of making such
request or giving such authority or consent is the holder of any Note shall be
conclusive and binding on any subsequent holder, transferee or assignee of that
Note or of any Note or Notes issued in exchange therefor or replacement thereof.
SECTION 7.08. Nonreliance on Agent and Other Banks. Each Bank agrees that it
has, independently and without reliance on the Agent or any other Bank, and
based on such documents and information as it has deemed appropriate, made its
own credit analysis of the Borrower and decision to enter into this Agreement
and that it will, independently and without reliance upon the Agent or any other
Bank, and based on such documents and information as it shall deem appropriate
at the time, continue to make its own analysis and decisions in taking or not
taking action under this Agreement or any of the other Loan Documents. The Agent
shall not be required to keep itself (or any Bank) informed as to the
performance or observance by the Borrower of this Agreement or any of the other
Loan Documents or any other document referred to or provided for herein or
therein or to inspect the properties or books of the Borrower or any other
Person. Except for notices, reports and other documents and information
expressly required to be furnished to the Banks by the Agent hereunder or under
the other Loan Documents, the Agent shall not have any duty or responsibility to
provide any Bank with any credit or other information concerning the affairs,
financial condition or business of the Borrower or any other Person (or any of
their Affiliates) which may come into the possession of the Agent.
SECTION 7.09. Failure to Act. Except for action expressly required of the Agent
hereunder or under the other Loan Documents, the Agent shall in all cases be
fully justified in failing or refusing to act hereunder and thereunder unless it
shall receive further assurances to its satisfaction by the Banks of their
indemnification obligations under Section 7.05 against any and all liability and
expense which may be incurred by the Agent by reason of taking, continuing to
take, or failing to take any such action.
SECTION 7.10. Resignation or Removal of Agent. Subject to the appointment and
acceptance of a successor Agent as provided below, the Agent may resign at any
time by giving notice thereof to the Banks and the Borrower and the Agent may be
removed at any time with or without cause by the Required Banks. Upon any such
resignation or removal, the Required Banks shall have the right to appoint a
successor Agent, which, if no Event of Default is in existence, has been
approved by the Borrower (which approval shall not be unreasonably withheld or
delayed). If no successor Agent shall have been so appointed by the Required
Banks and shall have accepted such appointment within 30 days after the retiring
Agent's notice of resignation or the Required Banks' removal of the retiring
Agent, then the retiring Agent may, on behalf of the Banks and, if no Event of
Default is in existence, with the consent of the Borrower (which shall not be
unreasonably withheld or delayed), appoint a successor Agent. Any successor
Agent shall be a bank which has a combined capital and surplus of at least
$500,000,000. Upon the acceptance of any appointment as Agent hereunder by a
successor Agent, such successor Agent shall thereupon succeed to and become
vested with all the rights, powers, privileges and duties of the retiring Agent,
and the retiring Agent shall be discharged from its duties and obligations
hereunder. After any retiring Agent's resignation or removal hereunder as Agent,
the provisions of this Article VII shall continue in effect for its benefit in
respect of any actions taken or omitted to be taken by it while it was acting as
the Agent hereunder. ARTICLE VIII
CHANGE IN CIRCUMSTANCES; COMPENSATION
SECTION 8.01. Basis for Determining Interest Rate Inadequate or Unfair. If on or
prior to the first day of any Interest Period:
(a) the Agent reasonably determines that deposits in Dollars (in the
applicable amounts) are not being offered in the relevant market for such
Interest Period, or
(b) the Required Banks advise the Agent that the London Interbank Offered
Rate, as reasonably determined by the Agent will not adequately and fairly
reflect the cost to such Banks of funding the relevant type of Fixed Rate
Loans for such Interest Period, the Agent shall forthwith give notice
thereof to the Borrower and the Banks, whereupon until the Agent notifies
the Borrower that the circumstances giving rise to such suspension no
longer exist, the obligations of the Banks to make the type of Fixed Rate
Loans specified in such notice, or to permit continuations or conversions
into such type of Loans, shall be suspended. Unless the Borrower notifies
the Agent at least 2 Domestic Business Days before the date of any
Borrowing of such type of Fixed Rate Loans for which a Notice of
Continuation or Conversion has previously been given that it elects not to
borrow on such date, such Borrowing shall instead be made as a Base Rate
Borrowing.
SECTION 8.02.Illegality. If, after the date hereof, the adoption of any
applicable law, rule or regulation, or any change therein or any existing or
future law, rule or regulation, or any change in the interpretation or
administration thereof by any governmental authority, central bank or comparable
agency charged with the interpretation or administration thereof (any such
agency being referred to as an "Authority" and any such event being referred to
as a "Change of Law"), or compliance by any Bank (or its Lending Office) with
any request or directive (whether or not having the force of law) of any
Authority shall make it unlawful or impossible for any Bank (or its Lending
Office) to make, maintain or fund its Euro-Dollar Loans and such Bank shall so
notify the Agent, the Agent shall forthwith give notice thereof to the other
Banks and the Borrower, whereupon until such Bank notifies the Borrower and the
Agent that the circumstances giving rise to such suspension no longer exist, the
obligation of such Bank to make or permit continuations or conversions of
Euro-Dollar Loans shall be suspended. Before giving any notice to the Agent
pursuant to this Section, such Bank shall designate a different Lending Office
if such designation will avoid the need for giving such notice and will not, in
the judgment of such Bank, be otherwise disadvantageous to such Bank. If such
Bank shall determine that it may not lawfully continue to maintain and fund any
of its outstanding Euro-Dollar Loans to maturity and shall so specify in such
notice, the Borrower shall immediately prepay in full the then outstanding
principal amount of each Euro-Dollar Loan of such Bank, together with accrued
interest thereon any amount due such Bank pursuant to Section 8.05(a).
Concurrently with prepaying each such Euro-Dollar Loan the Borrower shall borrow
a Base Rate Loan in an equal principal amount from such Bank (on which interest
and principal shall be payable contemporaneously with the related Euro-Dollar
Loans of the other Banks), and such Bank shall make such a Base Rate Loan.
SECTION 8.03. Increased Cost and Reduced Return.
(a) If after the date hereof, a Change of Law or compliance by any Bank (or
its Lending Office) with any request or directive (whether or not having
the force of law) of any Authority:
(i) shall impose, modify or deem applicable any reserve, special
deposit or similar requirement (including, without limitation, any
such requirement imposed by the Board of Governors of the Federal
Reserve System, but excluding with respect to any Euro-Dollar Loan any
such requirement included in an applicable Euro-Dollar Reserve
Percentage; or
(ii) shall impose on any Bank (or its Lending Office) or on the United
States market for certificates of deposit or the London interbank
market any other condition affecting its Fixed Rate Loans, its Notes
or its obligation to make Fixed Rate Loans;
and the result of any of the foregoing is to increase the cost to such Bank (or
its Lending Office) of making or maintaining any Fixed Rate Loan, or to reduce
the amount of any sum received or receivable by such Bank (or its Lending
Office) under this Agreement or under its Notes with respect thereto, by an
amount deemed by such Bank to be material, then, within 15 days after demand by
such Bank (with a copy to the Agent), the Borrower shall pay to such Bank such
additional amount or amounts as will compensate such Bank for such increased
cost or reduction.
(b) If any Bank shall have determined that after the date hereof the
adoption of any applicable law, rule or regulation regarding capital
adequacy, or any change therein, or any change in the interpretation or
administration thereof, or compliance by any Bank (or its Lending Office)
with any request or directive regarding capital adequacy (whether or not
having the force of law) of any Authority, has or would have the effect of
reducing the rate of return on such Bank's capital as a consequence of its
obligations hereunder to a level below that which such Bank could have
achieved but for such adoption, change or compliance (taking into
consideration such Bank's policies with respect to capital adequacy) by an
amount deemed by such Bank to be material, then from time to time, within
15 days after demand by such Bank, the Borrower shall pay to such Bank such
additional amount or amounts as will compensate such Bank for such
reduction.
(c) Each Bank will promptly notify the Borrower and the Agent of any event
of which it has knowledge, occurring after the date hereof, which will
entitle such Bank to compensation pursuant to this Section and will
designate a different Lending Office if such designation will avoid the
need for, or reduce the amount of, such compensation and will not, in the
judgment of such Bank, be otherwise disadvantageous to such Bank. A
certificate of any Bank claiming compensation under this Section and
setting forth the additional amount or amounts to be paid to it hereunder
shall be conclusive in the absence of manifest error and provided that it
is rendered in good faith. In determining such amount, such Bank may use
any reasonable averaging and attribution methods.
(d) The provisions of this Section 8.03 (i) shall be applicable with
respect to any Participant, Assignee or other Transferee, and any
calculations required by such provisions shall be made based upon the
circumstances of such Participant, Assignee or other Transferee and (ii)
shall constitute a continuing agreement and shall survive the termination
of this Agreement and the payment in full or cancellation of the Notes.
SECTION 8.04. Base Rate Loans or Other Fixed Rate Loans Substituted for Affected
Fixed Rate Loans. If (i) the obligation of any Bank to make or maintain any type
of Fixed Rate Loans has been suspended pursuant to Section 8.02 or (ii) any Bank
has demanded compensation under Section 8.03, and the Borrower shall, by at
least 5 Euro-Dollar Business Days' prior notice to such Bank through the Agent,
have elected that the provisions of this Section shall apply to such Bank, then,
unless and until such Bank notifies the Borrower that the circumstances giving
rise to such suspension or demand for compensation no longer apply:
(a) all Loans which would otherwise be made by such Bank as Euro-Dollar
Loans shall be made instead as Base Rate Loans (in which case interest and
principal on such Loans shall be payable contemporaneously with the related
Fixed Rate Loans of the other Banks), and
(b) after each of its Euro-Dollar Loans has been repaid, all payments of
principal which would otherwise be applied to repay such Fixed Rate Loans
shall be applied to repay its Base Rate Loans instead.
SECTION 8.05. Compensation. Upon the request of any Bank, delivered to the
Borrower and the Agent, the Borrower shall pay to such Bank such amount or
amounts as shall compensate such Bank for any loss, cost or expense incurred by
such Bank as a result of:
(a) any payment or prepayment (pursuant to Section 2.10, 2.11, 6.01, 8.02
or otherwise) of a Fixed Rate Loan on a date other than the last day of an
Interest Period for such Fixed Rate Loan; or
(b) any failure by the Borrower to prepay a Fixed Rate Loan on the date for
such prepayment specified in the relevant notice of prepayment hereunder
(if the Agent, acting at the direction of the Required Banks, has agreed to
permit any such prepayment); or
(c) any failure by the Borrower to borrow a Fixed Rate Loan on the date for
the Fixed Rate Borrowing of which such Fixed Rate Loan is a part specified
in the applicable Notice of Borrowing delivered pursuant to Section 2.02 or
notification of acceptance of Money Market Quotes pursuant to Section
2.03(e); or
such compensation to include, without limitation, as applicable: an amount equal
to the excess, if any, of (x) the amount of interest which would have accrued on
the amount so paid or prepaid or not prepaid or borrowed for the period from the
date of such payment, prepayment or failure to prepay or borrow to the last day
of the then current Interest Period for such Fixed Rate Loan (or, in the case of
a failure to prepay or borrow, the Interest Period for such Fixed Rate Loan
which would have commenced on the date of such failure to prepay or borrow) at
the applicable rate of interest for such Fixed Rate Loan provided for herein
over (y) the amount of interest (as reasonably determined by such Bank) such
Bank would have paid on deposits in Dollars of comparable amounts having terms
comparable to such period placed with it by leading banks in the London
interbank market (if such Fixed Rate Loan is a Euro-Dollar Loan).
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Notices. All notices, requests and other communications to any
party hereunder shall be in writing (including bank wire, telecopier or similar
writing) and shall be given to such party at its address or telecopier number
set forth on the signature pages hereof or such other address or telecopier
number as such party may hereafter specify for the purpose by notice to each
other party. Each such notice, request or other communication shall be effective
(i) if given by telecopier, when such telecopy is transmitted to the telecopier
number specified in this Section and the appropriate confirmation is received,
(ii) if given by mail, 72 hours after such communication is deposited in the
mails with first class postage prepaid, addressed as aforesaid or (iii) if given
by any other means, when delivered at the address specified in this Section.
SECTION 9.02. No Waivers. No failure or delay by the Agent or any Bank in
exercising any right, power or privilege hereunder or under any Note or other
Loan Document shall operate as a waiver thereof nor shall any single or partial
exercise thereof preclude any other or further exercise thereof or the exercise
of any other right, power or privilege. The rights and remedies herein provided
shall be cumulative and not exclusive of any rights or remedies provided by law.
SECTION 9.03. Expenses; Documentary Taxes. The Borrower shall pay (i) all
reasonable out-of-pocket expenses of the Agent, including fees and disbursements
of special counsel for the Agent, in connection with the preparation of this
Agreement and the other Loan Documents, any waiver or consent hereunder or
thereunder or any amendment hereof or thereof or any Default or alleged Default
hereunder or thereunder and (ii) if a Default occurs, all reasonable
out-of-pocket expenses incurred by the Agent and the Banks, including fees and
disbursements of counsel, in connection with such Default and collection and
other enforcement proceedings resulting therefrom, including reasonable
out-of-pocket expenses incurred in enforcing this Agreement and the other Loan
Documents. The Borrower shall indemnify the Agent and each Bank against any
transfer taxes, documentary taxes, assessments or charges made by any Authority
by reason of the execution and delivery of this Agreement or the other Loan
Documents.
SECTION 9.04. Indemnification. The Borrower shall indemnify the Agent, the Banks
and each Affiliate thereof and their respective directors, officers, employees
and agents from, and hold each of them harmless against, any and all losses,
liabilities, claims or damages to which any of them may become subject, insofar
as such losses, liabilities, claims or damages arise out of or result from any
actual or proposed use by the Borrower of the proceeds of any extension of
credit by any Bank hereunder or breach by the Borrower of this Agreement or any
other Loan Document or from any investigation, litigation (including, without
limitation, any actions taken by the Agent or any of the Banks to enforce this
Agreement or any of the other Loan Documents) or other proceeding (including,
without limitation, any threatened investigation or proceeding) relating to the
foregoing, and the Borrower shall reimburse the Agent and each Bank, and each
Affiliate thereof and their respective directors, officers, employees and
agents, upon demand for any expenses (including, without limitation, reasonable
legal fees) incurred in connection with any such investigation or proceeding;
but excluding any such losses, liabilities, claims, damages or expenses incurred
by reason of the gross negligence or willful misconduct of the Person to be
indemnified.
SECTION 9.05. Setoff; Sharing of Setoffs.
(a) The Borrower hereby grants to the Agent and each Bank a lien for all
indebtedness and obligations owing to them from the Borrower upon all
deposits or deposit accounts, of any kind, or any interest in any deposits
or deposit accounts thereof, now or hereafter pledged, mortgaged,
transferred or assigned to the Agent or any such Bank or otherwise in the
possession or control of the Agent or any such Bank for any purpose for the
account or benefit of the Borrower and including any balance of any deposit
account or of any credit of the Borrower with the Agent or any such Bank,
whether now existing or hereafter established hereby authorizing the Agent
and each Bank at any time or times during the existence of an Event of
Default with or without prior notice to apply such balances or any part
thereof to such of the indebtedness and obligations owing by the Borrower
to the Banks and/or the Agent then past due and in such amounts as they may
elect, and whether or not the collateral, if any, or the responsibility of
other Persons primarily, secondarily or otherwise liable may be deemed
adequate. For the purposes of this paragraph, all remittances and property
shall be deemed to be in the possession of the Agent or any such Bank as
soon as the same may be put in transit to it by mail or carrier or by other
bailee.
(b) Each Bank agrees that if it shall, by exercising any right of setoff or
counterclaim or resort to collateral security or otherwise, receive payment
of a proportion of the aggregate amount of principal and interest owing
with respect to the Note held by it which is greater than the proportion
received by any other Bank in respect of the aggregate amount of all
principal and interest owing with respect to the Note held by such other
Bank, the Bank receiving such proportionately greater payment shall
purchase such participations in the Notes held by the other Banks owing to
such other Banks, and such other adjustments shall be made, as may be
required so that all such payments of principal and interest with respect
to the Notes held by the Banks owing to such other Banks shall be shared by
the Banks pro rata; provided that (i) nothing in this Section shall impair
the right of any Bank to exercise any right of setoff or counterclaim it
may have and to apply the amount subject to such exercise to the payment of
indebtedness of the Borrower other than its indebtedness under the Notes,
and (ii) if all or any portion of such payment received by the purchasing
Bank is thereafter recovered from such purchasing Bank, such purchase from
each other Bank shall be rescinded and such other Bank shall repay to the
purchasing Bank the purchase price of such participation to the extent of
such recovery together with an amount equal to such other Bank's ratable
share (according to the proportion of (x) the amount of such other Bank's
required repayment to (y) the total amount so recovered from the purchasing
Bank) of any interest or other amount paid or payable by the purchasing
Bank in respect of the total amount so recovered. The Borrower agrees, to
the fullest extent it may effectively do so under applicable law, that any
holder of a participation in a Note, whether or not acquired pursuant to
the foregoing arrangements, may exercise rights of setoff or counterclaim
and other rights with respect to such participation as fully as if such
holder of a participation were a direct creditor of the Borrower in the
amount of such participation.
SECTION 9.06. Amendments and Waivers.
(a) Any provision of this Agreement, the Notes or any other Loan Documents
may be amended or waived if, but only if, such amendment or waiver is in
writing and is signed by the Borrower and the Required Banks (and, if the
rights or duties of the Agent are affected thereby, by the Agent); provided
that, no such amendment or waiver shall, unless signed by all Banks, (i)
change the Commitment of any Bank or subject any Bank to any additional
obligation, (ii) reduce the principal of or rate of interest on any Loan or
any fees (other than fees payable to the Agent) hereunder, (iii) change the
date fixed for any payment of principal of or interest on any Loan or any
fees hereunder, (iv) reduce the amount of principal, interest or fees due
on any date fixed for the payment thereof, (v) change the percentage of the
Commitments or of the aggregate unpaid principal amount of the Notes, or
the percentage of Banks, which shall be required for the Banks or any of
them to take any action under this Section or any other provision of this
Agreement, (vi) change the manner of application of any payments made under
this Agreement or the Notes, (vii) release or substitute all or any
substantial part of the collateral (if any) held as security for the Loans,
or (viii) release any Guarantee given to support payment of the Loans.
(b) The Borrower will not solicit, request or negotiate for or with respect
to any proposed waiver or amendment of any of the provisions of this
Agreement except through the Agent or unless each Bank shall be informed
thereof by the Borrower and shall be afforded an opportunity of considering
the same and shall be supplied by the Borrower with sufficient information
to enable it to make an informed decision with respect thereto. Executed or
true and correct copies of any waiver or consent effected pursuant to the
provisions of this Agreement shall be delivered by the Borrower to each
Bank forthwith following the date on which the same shall have been
executed and delivered by the requisite percentage of Banks. The Borrower
will not, directly or indirectly, pay or cause to be paid any remuneration,
whether by way of supplemental or additional interest, fee or otherwise, to
any Bank (in its capacity as such) as consideration for or as an inducement
to the entering into by such Bank of any waiver or amendment of any of the
terms and provisions of this Agreement unless such remuneration is
concurrently paid, on the same terms, ratably to all such Banks.
SECTION 9.07. No Margin Stock Collateral. Each of the Banks represents to the
Agent and each of the other Banks that it in good faith is not, directly or
indirectly (by negative pledge or otherwise), relying upon any Margin Stock as
collateral in the extension or maintenance of the credit provided for in this
Agreement.
SECTION 9.08. Successors and Assigns.
(a) The provisions of this Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns;
provided that the Borrower may not assign or otherwise transfer any of its
rights under this Agreement.
(b) Any Bank may at any time sell to one or more Persons (each a
"Participant") participating interests in any Loan owing to such Bank, any
Note held by such Bank, any Commitment hereunder or any other interest of
such Bank hereunder. In the event of any such sale by a Bank of a
participating interest to a Participant, such Bank's obligations under this
Agreement shall remain unchanged, such Bank shall remain solely responsible
for the performance thereof, such Bank shall remain the holder of any such
Note for all purposes under this Agreement, and the Borrower and the Agent
shall continue to deal solely and directly with such Bank in connection
with such Bank's rights and obligations under this Agreement. In no event
shall a Bank that sells a participation be obligated to the Participant to
take or refrain from taking any action hereunder except that such Bank may
agree that it will not (except as provided below), without the consent of
the Participant, agree to (i) the change of any date fixed for the payment
of principal of or interest on the related loan or loans, (ii) the change
of the amount of any principal, interest or fees due on any date fixed for
the payment thereof with respect to the related loan or loans, (iii) the
change of the principal of the related loan or loans, (iv) any change in
the rate at which either interest is payable thereon or (if the Participant
is entitled to any part thereof) fee is payable hereunder from the rate at
which the Participant is entitled to receive interest or fee (as the case
may be) in respect of such participation, (v) the release or substitution
of all or any substantial part of the collateral (if any) held as security
for the Loans, or (vi) the release of any Guarantee given to support
payment of the Loans. Each Bank selling a participating interest in any
Loan, Note, Commitment or other interest under this Agreement, other than a
Money Market Loan or Money Market Loan Note or participating interest
therein, shall, within 10 Domestic Business Days of such sale, provide the
Borrower and the Agent with written notification stating that such sale has
occurred and identifying the Participant and the interest purchased by such
Participant. The Borrower agrees that each Participant shall be entitled to
the benefits of Article VIII with respect to its participation in Loans
outstanding from time to time.
(c) Any Bank may at any time assign to one or more banks or financial
institutions (each an "Assignee") all, or in the case of its Syndicated
Loans and Commitments, a proportionate part of all its Syndicated Loans and
Commitments, of its rights and obligations under this Agreement, the Notes
and the other Loan Documents, and such Assignee shall assume all such
rights and obligations, pursuant to an Assignment and Acceptance, executed
by such Assignee, such transferor Bank and the Agent (and, in the case of
an Assignee that is not then a Bank, subject to clauses (iii) below, by the
Borrower); provided that (i) no interest may be sold by a Bank pursuant to
this paragraph (c) unless the Assignee shall agree to assume ratably
equivalent portions of the transferor Bank's Commitment, (ii) if a Bank is
assigning only a portion of its Commitment, then, the amount of the
Commitment being assigned (determined as of the effective date of the
assignment) shall be in an amount not less than $10,000,000, (iii) except
during the continuance of a Default, no interest may be sold by a Bank
pursuant to this paragraph (c) to any Assignee that is not then a Bank (or
an Affiliate of a Bank) without the consent of the Borrower and the Agent,
which consent shall not be unreasonably withheld, and (iv) a Bank may not
have more than 2 Assignees that are not then Banks at any one time. Upon
(A) execution of the Assignment and Acceptance by such transferor Bank,
such Assignee, the Agent and (if applicable) the Borrower, (B) delivery of
an executed copy of the Assignment and Acceptance to the Borrower and the
Agent, (C) payment by such Assignee to such transferor Bank of an amount
equal to the purchase price agreed between such transferor Bank and such
Assignee, and (D) payment of a processing and recordation fee of $2,500 to
the Agent, such Assignee shall for all purposes be a Bank party to this
Agreement and shall have all the rights and obligations of a Bank under
this Agreement to the same extent as if it were an original party hereto
with a Commitment as set forth in such instrument of assumption, and the
transferor Bank shall be released from its obligations hereunder to a
corresponding extent, and no further consent or action by the Borrower, the
Banks or the Agent shall be required. Upon the consummation of any transfer
to an Assignee pursuant to this paragraph (c), the transferor Bank, the
Agent and the Borrower shall make appropriate arrangements so that, if
required, a new Note is issued each of such Assignee and such transferor
Bank and such transferor Bank.
(d) Subject to the provisions of Section 9.09, the Borrower authorizes each
Bank to disclose to any Participant, Assignee or other transferee (each a
"Transferee") and any prospective Transferee any and all financial
information in such Bank's possession concerning the Borrower which has
been delivered to such Bank by the Borrower pursuant to this Agreement or
which has been delivered to such Bank by the Borrower in connection with
such Bank's credit evaluation prior to entering into this Agreement.
(e) No Transferee shall be entitled to receive any greater payment under
Section 2.12(d) or Section 8.03 than the transferor Bank would have been
entitled to receive with respect to the rights transferred, unless such
transfer is made with the Borrower's prior written consent or by reason of
the provisions of Section 8.02 or 8.03 requiring such Bank to designate a
different Lending Office under certain circumstances or at a time when the
circumstances giving rise to such greater payment did not exist.
(f) Anything in this Section 9.08 to the contrary notwithstanding, any Bank
may assign and pledge all or any portion of the Loans and/or obligations
owing to it to any Federal Reserve Bank or the United States Treasury as
collateral security pursuant to Regulation A of the Board of Governors of
the Federal Reserve System and any Operating Circular issued by such
Federal Reserve Bank, provided that any payment in respect of such assigned
Loans and/or obligations made by the Borrower to the assigning and/or
pledging Bank in accordance with the terms of this Agreement shall satisfy
the Borrower's obligations hereunder in respect of such assigned Loans
and/or obligations to the extent of such payment. No such assignment shall
release the assigning and/or pledging Bank from its obligations hereunder.
SECTION 9.09 Confidentiality. Each Bank agrees to exercise commercially
reasonable efforts to keep any information delivered or made available by the
Borrower to it which is clearly indicated to be confidential information,
confidential from anyone other than persons employed or retained by such Bank
who are or are expected to become engaged in evaluating, approving, structuring
or administering the Loans; provided, however that nothing herein shall prevent
any Bank from disclosing such information (i) to any other Bank, (ii) upon the
order of any court or administrative agency, (iii) upon the request or demand of
any regulatory agency or authority having jurisdiction over such Bank, (iv)
which has been publicly disclosed, (v) to the extent reasonably required in
connection with any litigation to which the Agent, any Bank or their respective
Affiliates may be a party, (vi) to the extent reasonably required in connection
with the exercise of any remedy hereunder, (vii) to such Bank's legal counsel
and independent auditors and (viii) to any actual or proposed Participant,
Assignee or other Transferee of all or part of its rights hereunder which has
agreed in writing to be bound by the provisions of this Section 9.09; provided
that should disclosure of any such confidential information be required by
virtue of clause (ii) of the immediately preceding sentence, to the extent
permitted by law, any relevant Bank shall promptly notify the Borrower of same
so as to allow the Borrower to seek a protective order or to take any other
appropriate action; provided, further, that, no Bank shall be required to delay
compliance with any directive to disclose any such information so as to allow
the Borrower to effect any such action.
SECTION 9.10. Representation by Banks. Each Bank hereby represents that it is a
commercial lender or financial institution which makes loans in the ordinary
course of its business and that it will make its Loans hereunder for its own
account in the ordinary course of such business; provided, however that, subject
to Section 9.08, the disposition of the Note or Notes held by that Bank shall at
all times be within its exclusive control.
SECTION 9.11. Obligations Several. The obligations of each Bank hereunder are
several, and no Bank shall be responsible for the obligations or commitment of
any other Bank hereunder. Nothing contained in this Agreement and no action
taken by the Banks pursuant hereto shall be deemed to constitute the Banks to be
a partnership, an association, a joint venture or any other kind of entity. The
amounts payable at any time hereunder to each Bank shall be a separate and
independent debt, and each Bank shall be entitled to protect and enforce its
rights arising out of this Agreement or any other Loan Document and it shall not
be necessary for any other Bank to be joined as an additional party in any
proceeding for such purpose.
SECTION 9.12. North Carolina Law. This Agreement and each Note shall be
construed in accordance with and governed by the law of the State of North
Carolina.
SECTION 9.13. Severability. In case any one or more of the provisions contained
in this Agreement, the Notes or any of the other Loan Documents should be
invalid, illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein and therein shall
not in any way be affected or impaired thereby and shall be enforced to the
greatest extent permitted by law.
SECTION 9.14. Interest. In no event shall the amount of interest, and all
charges, amounts or fees contracted for, charged or collected pursuant to this
Agreement, the Notes or the other Loan Documents and deemed to be interest under
applicable law (collectively, "Interest") exceed the highest rate of interest
allowed by applicable law (the "Maximum Rate"), and in the event any such
payment is inadvertently received by any Bank, then the excess sum (the
"Excess") shall be credited as a payment of principal, unless the Borrower shall
notify such Bank in writing that it elects to have the Excess returned
forthwith. It is the express intent hereof that the Borrower not pay and the
Banks not receive, directly or indirectly in any manner whatsoever, interest in
excess of that which may legally be paid by the Borrower under applicable law.
The right to accelerate maturity of any of the Loans does not include the right
to accelerate any interest that has not otherwise accrued on the date of such
acceleration, and the Agent and the Banks do not intend to collect any unearned
interest in the event of any such acceleration. All monies paid to the Agent or
the Banks hereunder or under any of the Notes or the other Loan Documents,
whether at maturity or by prepayment, shall be subject to rebate of unearned
interest as and to the extent required by applicable law. By the execution of
this Agreement, the Borrower covenants, to the fullest extent permitted by law,
that (i) the credit or return of any Excess shall constitute the acceptance by
the Borrower of such Excess, and (ii) the Borrower shall not seek or pursue any
other remedy, legal or equitable , against the Agent or any Bank, based in whole
or in part upon contracting for charging or receiving any Interest in excess of
the Maximum Rate. For the purpose of determining whether or not any Excess has
been contracted for, charged or received by the Agent or any Bank, all interest
at any time contracted for, charged or received from the Borrower in connection
with this Agreement, the Notes or any of the other Loan Documents shall, to the
extent permitted by applicable law, be amortized, prorated, allocated and spread
in equal parts throughout the full term of the Commitments. The Borrower, the
Agent and each Bank shall, to the maximum extent permitted under applicable law,
(i) characterize any non-principal payment as an expense, fee or premium rather
than as Interest and (ii) exclude voluntary prepayments and the effects thereof.
The provisions of this Section shall be deemed to be incorporated into each Note
and each of the other Loan Documents (whether or not any provision of this
Section is referred to therein). All such Loan Documents and communications
relating to any Interest owed by the Borrower and all figures set forth therein
shall, for the sole purpose of computing the extent of obligations hereunder and
under the Notes and the other Loan Documents be automatically recomputed by the
Borrower, and by any court considering the same, to give effect to the
adjustments or credits required by this Section.
SECTION 9.15. Interpretation. No provision of this Agreement or any of the other
Loan Documents shall be construed against or interpreted to the disadvantage of
any party hereto by any court or other governmental or judicial authority by
reason of such party having or being deemed to have structured or dictated such
provision.
SECTION 9.16. Waiver of Jury Trial; Consent to Jurisdiction. The Borrower (a)
and each of the Banks and the Agent irrevocably waives, to the fullest extent
permitted by law, any and all right to trial by jury in any legal proceeding
arising out of this Agreement, any of the other Loan Documents, or any of the
transactions contemplated hereby or thereby, (b) submits to the nonexclusive
personal jurisdiction in the State of North Carolina, the courts thereof and the
United States District Courts sitting therein, for the enforcement of this
Agreement, the Notes and the other Loan Documents, (c) waives any and all
personal rights under the law of any jurisdiction to object on any basis
(including, without limitation, inconvenience of forum) to jurisdiction or venue
within the State of North Carolina for the purpose of litigation to enforce this
Agreement, the Notes or the other Loan Documents, and (d) agrees that service of
process may be made upon it in the manner prescribed in Section 9.01 for the
giving of notice to the Borrower. Nothing herein contained, however, shall
prevent the Agent from bringing any action or exercising any rights against any
security and against the Borrower personally, and against any assets of the
Borrower, within any other state or jurisdiction.
SECTION 9.17. Counterparts. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
SECTION 9.18. Source of Funds - ERISA. Each of the Banks hereby severally (and
not jointly) represents to the Borrower that no part of the funds to be used by
such Bank to fund the Loans hereunder from time to time constitutes (i) assets
allocated to any separate account maintained by such Bank in which any employee
benefit plan (or its related trust) has any interest nor (ii) any other assets
of any employee benefit plan. As used in this Section, the terms "employee
benefit plan" and "separate account" shall have the respective meanings assigned
to such terms in Section 3 of ERISA.
SECTION 9.19. Replacement of Banks. The Borrower may, at any time and so long as
no Default or Event of Default has then occurred and is continuing, replace any
Bank that has requested additional amounts from the Borrower under Section
2.12(d) or 8.03, or who has caused a suspension of its obligation to make
Euro-Dollar Loans pursuant to Section 8.02, by written notice to such Bank and
the Agent given not more than thirty (30) days after any such event and
identifying one or more Persons each of which shall be reasonably acceptable to
the Agent (each, a "Replacement Bank," and collectively, the "Replacement
Banks") to replace such Bank (the "Replaced Bank"), provided that (i) the notice
from the Borrower to the Replaced Bank and the Agent provided for hereinabove
shall specify an effective date for such replacement (the "Replacement Effective
Date"), which shall be at least 5 Business Days after such notice is give, (ii)
as of the relevant Replacement Effect Date, each Replacement Bank shall enter
into an Assignment and Acceptance with the Replaced Bank pursuant to Section
9.08 pursuant to which such Replacement Banks collectively shall acquire, in
such proportion among them as they may agree with the Borrower and the Agent,
all (but not less than all) of the Commitments and outstanding Loans of the
Replaced Bank, and, in connection therewith, shall pay to the Replaced Bank, as
the purchase price in respect thereof, an amount equal to the sum as of the
Replacement Effective Date (without duplication) of (y) the unpaid principal
amount of, and all accrued but unpaid interest on all outstanding Loans of the
Replaced Bank and (z) the Replaced Bank's ratable share of all accrued but
unpaid fees owing to the Replaced Bank hereunder, and (iii) all other
obligations of the Borrower owing to the Replaced Bank under this Agreement
(other than those specifically described in clause (ii) above in respect of
which the assignment purchase price has been, or is concurrently being, paid),
as a result of the actions required to be taken under this Section, shall be
paid in full by the Borrower to the Replaced Bank on or prior to the Replacement
Effective Date.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed, under seal, by their respective authorized officers as of the day
and year first above written.
▇▇▇▇, INC.(SEAL)
By: __________________________
Title: ________________
▇▇▇▇, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Vice President and
Chief Financial Officer
Telecopier number: ▇▇▇-▇▇▇-▇▇▇▇
Confirmation number: ▇▇▇-▇▇▇-▇▇▇▇
COMMITMENTS WACHOVIA BANK, NATIONAL ASSOCIATION,
as Agent and as a Bank (SEAL)
$15,000,000
By: _________________________
Title:_______________
Lending Office
Wachovia Bank, National Association
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Telecopier number: ▇▇▇-▇▇▇-▇▇▇▇
Confirmation number: ▇▇▇-▇▇▇-▇▇▇▇
TOTAL COMMITMENTS:
$15,000,000
EXHIBIT A-1
FORM OF SYNDICATED LOAN NOTE
High Point, North Carolina ___________, 2002
For value received, ▇▇▇▇, INC., a North Carolina corporation (the
"Borrower"), promises to pay to the order of
__________________________________________________, a ____________________
(the "Bank"), for the account of its Lending Office, the principal sum of
___________________________________ AND NO/100 DOLLARS ($ ), or
such lesser amount as shall equal the unpaid principal amount of each Loan
made by the Bank to the Borrower pursuant to the Credit Agreement referred to
below, on the dates and in the amounts provided in the Credit Agreement. The
Borrower promises to pay interest on the unpaid principal amount of this
Syndicated Loan Note on the dates and at the rate or rates provided for
Syndicated Loans in the Credit Agreement. Interest on any overdue principal
of and, to the extent permitted by law, overdue interest on the principal
amount hereof shall bear interest at the Default Rate, as provided for in the
Credit Agreement. All such payments of principal and interest shall be made
in lawful money of the United States in Federal or other immediately
available funds at the office of Wachovia Bank, National Association, ▇▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or such other address
as may be specified from time to time pursuant to the Credit Agreement.
All Loans made by the Bank, the respective maturities thereof, the
interest rates from time to time applicable thereto, and all repayments of
the principal thereof shall be recorded by the Bank and, prior to any
transfer hereof, endorsed by the Bank on the schedule attached hereto, or on
a continuation of such schedule attached to and made a part hereof; provided
that the failure of the Bank to make any such recordation or endorsement
shall not affect the obligations of the Borrower hereunder or under the
Credit Agreement.
This Syndicated Loan Note is one of the Syndicated Loan Notes referred
to in the Amended and Restated Credit Agreement dated as of August 23, 2002
among the Borrower, the Banks listed on the signature pages thereof and
Wachovia Bank, National Association, as Agent (as the same may be amended and
modified from time to time, the "Credit Agreement"). Terms defined in the
Credit Agreement are used herein with the same meanings. Reference is made
to the Credit Agreement for provisions for the optional and mandatory
prepayment and the repayment hereof and the acceleration of the maturity
hereof, as well as the obligation of the Borrower to pay all costs of
collection, including reasonable attorneys fees, in the event this Syndicated
Loan Note is collected by law or through an attorney at law.
The Borrower hereby waives presentment, demand, protest, notice of
demand, protest and nonpayment and any other notice required by law relative
hereto, except to the extent as otherwise may be expressly provided for in
the Credit Agreement.
IN WITNESS WHEREOF, the Borrower has caused this Syndicated Loan Note
to be duly executed, under seal, by its duly authorized officer as of the day
and year first above written.
▇▇▇▇, INC. (SEAL)
By: ___________________________
Title:__________________
Syndicated Loan Note (cont'd)
LOANS AND PAYMENTS OF PRINCIPAL
Date Base Rate Amount Amount of Maturity Notation
or Euro- of Principal Date Made By
Dollar Loan Loan Repaid
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EXHIBIT A-2
MONEY MARKET LOAN NOTE
As of ___________, 2002
For value received, ▇▇▇▇, INC., a North Carolina corporation (the
"Borrower"), promises to pay to the order of ______________________________,
a _______________ (the "Bank"), for the account of its Lending Office, the
principal sum of FIFTEEN MILLION AND NO/100 DOLLARS ($15,000,000) or such
lesser amount as shall equal the unpaid principal amount of each Money Market
Loan made by the Bank to the Borrower pursuant to the Credit Agreement
referred to below, on the dates and in the amounts provided in the Credit
Agreement. The Borrower promises to pay interest on the unpaid principal
amount of this Money Market Loan Note on the dates and at the rate or rates
provided for in the Credit Agreement referred to below. Interest on any
overdue principal of and, to the extent permitted by law, overdue interest on
the principal amount hereof shall bear interest at the Default Rate, as
provided for in the Credit Agreement. All such payments of principal and
interest shall be made in lawful money of the United States in Federal or
other immediately available funds at the office of Wachovia Bank, National
Association, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or
such other address as may be specified from time to time pursuant to the
Credit Agreement.
All Money Market Loans made by the Bank, the respective maturities
thereof, the interest rates from time to time applicable thereto, and all
repayments of the principal thereof shall be recorded by the Bank and, prior
to any transfer hereof, endorsed by the Bank on the schedule attached hereto,
or on a continuation of such schedule attached to and made a part hereof;
provided that the failure of the Bank to make any such recordation or
endorsement shall not affect the obligations of the Borrower hereunder or
under the Credit Agreement.
This Money Market Loan Note is one of the Money Market Loan Notes
referred to in the Amended and Restated Credit Agreement dated as of August
23, 2002 among the Borrower, the Banks listed on the signature pages thereof
and Wachovia Bank, National Association, as Agent (as the same may be amended
and modified from time to time, the "Credit Agreement"). Terms defined in
the Credit Agreement are used herein with the same meanings. Reference is
made to the Credit Agreement for provisions for the optional and mandatory
prepayment and the repayment hereof and the acceleration of the maturity
hereof, as well as the obligation of the Borrower to pay all costs of
collection, including reasonable attorneys fees, in the event this Syndicated
Loan Note is collected by law or through an attorney at law.
The Borrower hereby waives presentment, demand, protest, notice of
demand, protest and nonpayment and any other notice required by law relative
hereto, except to the extent as otherwise may be expressly provided for in
the Credit Agreement.
IN WITNESS WHEREOF, the Borrower has caused this Money Market Loan Note
to be duly executed, under seal, by its duly authorized officer as of the day
and year first above written.
▇▇▇▇, INC. (SEAL)
By: __________________________
Title: ________________
Money Market Loan Note (cont'd)
MONEY MARKET LOANS AND PAYMENTS OF PRINCIPAL
Date Interest Amount Amount of Stated Notation
Rate of Principal Maturity Made By
Loan Repaid Date
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EXHIBIT B
OPINION OF
COUNSEL FOR THE BORROWER
[Dated as provided in Section 3.01 of the Credit Agreement]
To the Banks and the Agent Referred to Below
c/o Wachovia Bank, National Association, as Agent
____________________________
____________________________
Attn: _______________________
Ladies and Gentlemen:
We have acted as counsel to ▇▇▇▇, Inc., a North Carolina corporation
(the "Borrower"), in connection with the Amended and Restated Credit
Agreement dated as of ____________, 2002 among the Borrower, the banks listed
on the signature pages thereof and Wachovia Bank, National Association, as
Agent (the "Credit Agreement"). This opinion is furnished to you pursuant to
Section 3.01(c) of the Credit Agreement and at the request of our client.
Capitalized terms used in this opinion and not otherwise defined herein shall
have the meanings assigned to them in the Credit Agreement.
We have examined (i) executed copies of the Credit Agreement, the Notes
and the Security Agreement (collectively, the "Loan Documents") and the UCC
Financing Statement described on Schedule 1 attached hereto (the "UCC
Financing Statement") and (ii) such records, certificates, instruments and
other documents as are in our judgment necessary or appropriate to enable us
to furnish this opinion. In our examination we have assumed the genuineness
of all signatures (other than signatures of officers of the Borrower on
documents executed in our presence) and the authenticity of all documents
submitted to us as originals, the conformity with the originals of all
documents submitted to us as certified or photostatic copies thereof and the
authenticity of the originals of such latter documents. Where we have
considered it appropriate, as to certain facts we have relied, without
investigation or analysis of any underlying data contained therein, upon
certificates or other comparable documents of public officials and officers
or other appropriate representatives of the Borrower.
In furnishing the opinions set forth herein, we have assumed that:
(i) all corporate parties to the Loan Documents other than the
Borrower are duly organized, validly existing and in good standing under the
laws of their respective jurisdictions of organization and have the full
corporate power to enter into such Loan Documents;
(ii) the execution and delivery of the Loan Documents have been duly
authorized by all necessary corporate action and proceedings on the part of
all corporate parties thereto other than the Borrower; the Loan Documents
have been duly executed by all parties thereto other than Borrower, have been
delivered by all parties thereto other than Borrower, and constitute the
valid and binding obligations of parties thereto other than Borrower,
enforceable against such parties in accordance with their respective terms;
(iii) the Loan Documents have not been executed or delivered under
fraud, duress or mutual mistake; and
(iv) the Loan Documents fully state the agreement between the
Borrower, the Agent and the Banks with respect to the Loans.
Based on the foregoing and subject to the qualifications, limitations
and exceptions set forth herein, we are of the opinion that:
1. The Borrower is a corporation duly incorporated, validly existing
and in good standing under the laws of North Carolina and has all corporate
powers required to carry on its business as now conducted.
2. The execution, delivery and performance by the Borrower of the
Loan Documents (i) are within the Borrower's corporate powers, (ii) have been
duly authorized by all necessary corporate action, (iii) require no action by
or in respect of, or filing with, any governmental body, agency or official
(other than the filing of the UCC Financing Statement, which previously has
been made), (iv) do not contravene, or constitute a default under, any
provision of applicable law or regulation or of the articles of incorporation
or by-laws of the Borrower or, to our knowledge, of any agreement, judgment,
injunction, order, decree or other instrument which to our knowledge is
binding upon the Borrower and (v) to our knowledge, except as provided in the
Credit Agreement, do not result in the creation or imposition of any Lien on
any asset of the Borrower or any of its Subsidiaries.
3. The Loan Documents constitute valid and binding obligations of
the Borrower, enforceable against the Borrower in accordance with their
respective terms.
4. Based solely upon the search of Uniform Commercial Code filings
performed by ______________ in the offices of ____________ (the results of
which we have shared with you), the UCC Financing Statement has been properly
filed, and the Agent has a perfected security interest in the Borrower's
interest in the collateral described in such UCC Financing Statement, but
only to the extent that a security interest in such collateral may be
perfected by the filing of a filing statement pursuant to Article 9 of the
UCC as adopted in North Carolina.
5. Neither the Borrower nor any of its Subsidiaries is an
"investment company" within the meaning of the Investment Company Act of
1940, as amended.
6. Neither the Borrower nor any of its Subsidiaries is a "holding
company", or a "subsidiary company" of a "holding company", or an "affiliate"
of a "holding company" or of a "subsidiary" company" of a "holding company",
as such terms are defined in the Public Utility Holding Company Act of 1935,
as amended.
The foregoing opinions are subject to the following qualifications,
limitations and exceptions:
(a) The opinions herein expressed are limited in all respects to the
matters governed by the internal laws of the State of North Carolina and the
federal laws of the United States of America, and we have made no independent
investigation of the laws of any other jurisdiction. We express no opinion
concerning any matter respecting or affected by any laws other than laws that
a lawyer in North Carolina exercising customary professional diligence would
reasonably recognize as being directly applicable to the Borrower or the
Loans.
(b) Where an opinion is limited to or refers to our knowledge, we
have undertaken to inform you of any factual matters that have come to the
attention of the attorneys in our firm who have devoted substantive attention
to the transactions referred to in this opinion, but we have undertaken no
independent investigation of such factual matters. As to factual matters
forming the basis of our opinions, we have relied upon certificates executed
by officers of the Borrower and upon certificates or statements of various
governmental officials.
(c) Our opinion in paragraph 1 above with respect to the due
incorporation, existence and good standing of the Borrower is based solely on
our examination of a copy of the Borrower's Articles of Incorporation
certified as of _____________, 2002 by the office of the North Carolina
Secretary of State and a Certificate of Existence issued as of ___________,
2002 by such office, copies of which have been furnished to you.
(d) The validity, binding effect and enforceability of the Loan
Documents are expressly subject to: liquidation, conservatorship,
insolvency, bankruptcy, fraudulent conveyance, reorganization and other
similar debtor relief laws of general application; and equitable remedies and
to the power of courts to award equitable remedies and impose limitations on
enforcement of certain remedies.
(e) Certain remedial provisions of the Loan Documents may be
unenforceable in whole or in part, but the inclusion of such provisions does
not affect the validity of the Loan Documents; however, the unenforceability
of such provisions may result in delays in the enforcement of the Agent's and
Banks' rights and remedies under the Loan Documents (and we express no
opinion as to the economic consequences, if any, of such delays). Except as
set forth in subparagraph (d) above, the Loan Documents contain adequate
provisions for enforcing payment of the obligations and for the practical
realization of the rights and benefits intended to be afforded thereby.
(f) We express no opinion as to the enforceability of any provisions
in the Loan Documents relating to (i) set-off, (ii) self help or (iii)
evidentiary standards or other standards by which the Loan Documents are to
be construed.
(g) We express no opinion as to the effect of the compliance or
noncompliance of the Agent or any Bank with any state or federal laws or
regulations applicable to Agent or any Bank because of such Person's legal or
regulatory status or the nature of such Person's business.
(h) The Loan Documents contain provisions to the effect that the
failure of the Agent or any Bank to exercise any right or remedy accruing
upon any breach or default shall not impair such right or remedy or be
construed as a waiver of, or acquiescence in, the breach or default. We are
unable to opine that the above-described provisions would be enforceable
under all circumstances unless the Agent or Bank shall: (i) first provide
written notice to Borrower that subsequent defaults will not be accepted but
will result in the Borrower being declared in default under the Loan
Documents; and (ii) thereafter timely and diligently pursue its default
remedies under the Loan Documents.
(i) We express no opinion on the enforceability of any provisions
contained in the Loan Documents that (i) purport to excuse a party for
liability for its own acts, (ii) purport to make void any act done in
contravention thereof, (iii) purport to authorize a party to act in its sole
discretion, (iv) relate to the effect of laws or regulations that may be
enacted in the future, or (v) require waivers or amendments to be made only
in writing or that prohibit evidence of oral agreements from contradicting
the Loan Documents.
(j) We express no opinion with regard to any provisions of the Loan
Documents whereby a party purports to indemnify another party against its own
negligence or misconduct.
(k) It is more likely than not that North Carolina courts will
enforce the provisions of the Loan Documents providing for interest at a
"Default Rate," which rate is higher than the rate otherwise stipulated in
the Loan Documents. The law, however, disfavors penalties; and it is
possible that interest at the "Default Rate" may be held to be an
unenforceable penalty, to the extent such rate exceeds the rate applicable
prior to a default under the Loan Documents. Also, since North Carolina
General Statutes Section 24-10.1 expressly provides for late charges, it is
possible that North Carolina courts, when faced specifically with the issue,
might rule that said statutory late charge preempts any other charge (such as
default interest) by a lender for delinquent payments. The only North
Carolina case which we have found that addresses this is the 1978 Court of
Appeals decision, in our opinion of limited precedent value, North Carolina
National Bank ▇. ▇▇▇▇▇▇▇▇, 38 N.C. App. 120, 247 S.E.2d 648 (1978), rev'd on
other grounds, 297 N.C. 524, 256 S.E.2d 388 (1979). While the court in this
case did allow interest after default (commencing with the date requested in
the complaint) at a rate six percent in excess of pre-default interest, we
are unable to determine from the opinion that any question was raised as to
this being penal in nature, nor does the court address the possible question
of the statutory late charge preempting a default interest surcharge.
Therefore, since North Carolina's Supreme Court has not ruled in a properly
presented case raising issues of its possible penal nature and those of North
Carolina General Statutes Section 24-10.1, we are unwilling to express an
unqualified opinion that the Default Rate of interest prescribed in the Loan
Documents is enforceable.
(l) The Supreme Court of North Carolina has held that usury savings
clauses are not enforceable. Accordingly, we express no opinion as to the
enforceability by a North Carolina court of the interest rate limitation
clause or any other usury savings clause contained in the Loan Documents.
(m) No opinion is given regarding the enforceability of the waivers
in the Loan Documents of any statutory or constitutional rights (including
without limitation the right to trial by jury).
(n) We express no opinion on the enforceability of any provisions
contained in the Loan Documents that require waivers or amendments to be made
only in writing or that prohibit evidence of oral agreements from
contradicting the Loan Documents.
(o) We do not express any opinion as to the enforceability of any
provisions contained in the Loan Documents purporting to require a party
thereto to pay or reimburse attorneys' fees incurred by another party, or to
indemnify another party therefor, which may be limited by applicable statutes
and decisions relating to the collection and award of attorneys' fees,
including but not limited to North Carolina General Statutes Section 6-21.2.
(p) We do not express any opinion as to the enforceability of any
provisions contained in the Loan Documents concerning choice of forum or
consent to the jurisdiction of courts, venue of actions or means of service
of process.
(q) We do not express any opinion as to the enforceability of any
provisions contained in the Loan Documents whereby the Borrower appoints the
Agent or any Bank or other parties as an agent or attorney-in-fact.
(r) We do not express any opinion as to the enforceability of any
provisions contained in the Loan Documents which purport to grant the Agent
or any Bank (i) the right, without judicial process, to obtain possession of
or a present ownership in any assets, or (ii) the right to obtain such
possession, without judicial process, without becoming a
mortgagee-in-possession.
(s) This opinion does not cover any matter of title or priority of
liens. With respect to the collateral described in the UCC Financing
Statement, we express no opinion and make no representations as to whether or
not the Borrower owns (and, therefore, whether you have a security interest
in) any particular personal property or fixtures described in the UCC
Financing Statement. Additionally, we call your attention to the following:
(i) we express no opinion as to whether the description of the collateral in
the Security Agreement reasonably identifies the collateral as required under
the UCC as adopted in North Carolina (see North Carolina General Statutes
Section 25-9-108); (ii) any language in the Security Agreement purporting to
create a security interest in all of the Borrower's "assets" or "personal
property" will not be deemed to reasonably identify the collateral as required
under the UCC as adopted in North Carolina (see North Carolina General Statutes
Section 25-9-108(c)) and, therefore, no security interest in such collateral may
actually be created or perfected; (iii) North Carolina General Statutes Section
25-9-315 limits the rights of a secured party to enforce a security interest
in "proceeds" (as therein defined); (iv) North Carolina General Statutes Section
25-9-317, 320 and 330 permit purchasers of collateral to obtain title thereto
free and clear of perfected security interests in certain circumstances
therein set forth; (v) additional financing statement filings may be
necessary to maintain the perfected status of the security interests
described above if the Borrower hereafter changes its state of organization,
name or organizational structure (see North Carolina General Statutes Section
25-9-503, 507 and 508); (vi) North Carolina General Statutes Section 25-9-515
requires the filing of continuation statements within the period of six
months prior to the expiration of five years from the date of the original
filings, and within like periods thereafter, in order to maintain the
effectiveness of the UCC Financing Statement; and (vii) we express no opinion
as to any provisions in the Loan Documents that purport to waive the
requirement under North Carolina General Statutes Section 25-9-610 that every
aspect of a sale of collateral must be "commercially reasonable" or to define
what is "commercially reasonable." We disclaim any responsibility for
undertaking to file additional financing statements or continuation
statements or to notify you of the necessity of the same.
(t) The right to obtain a receiver is not an absolute right,
regardless of any provision in any Loan Documents to the contrary, and is
subject to equitable principles.
This opinion letter is a statement of our opinion as of the date
hereof. We do not undertake, and hereby disclaim, any obligation to advise
you of any change in the matters set forth herein. Furthermore, this opinion
is solely for the benefit of the Agent, the Banks now or hereafter parties to
the Credit Agreement and may not be relied upon in any manner by any other
person.
We acknowledge that the Agent and the Banks are relying on the opinions
expressed herein in extending credit under the terms of the Credit Agreement
and the Loan Documents and hereby consent to reliance by the Agent, and the
Banks now or hereafter parties to the Credit Agreement on the opinions
expressed herein.
Very truly yours,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.A.
EXHIBIT C
FORM OF NOTICE
IN RESPECT OF ISSUANCE OF LETTERS OF CREDIT
TO: The Banks parties to the Amended and Restated Credit Agreement,
dated as of August 23, 2002 (the "Credit Agreement"), among ▇▇▇▇, Inc., such
Banks and Wachovia Bank, National Association, as Agent (the "Agent").
Pursuant to Section 2.02A of the Credit Agreement, the Issuer hereby
certifies to the Banks that it has issued the following New Letters of Credit
pursuant to Section 2.02A of the Credit Agreement:
Face Date of
Number Amount Issuance/Expiration Beneficiary Purpose
------ ------ ------------------- ----------- -------
A copy of each of the New Letters of Credit listed above has been
attached hereto.
Unless otherwise defined herein, terms defined in the Credit Agreement
shall have the same meaning in this notice.
Date: ______________, ____.
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Agent
By: ___________________________
Name: _________________
Title: ________________
EXHIBIT D
ASSIGNMENT AND ACCEPTANCE
Dated _______________ ____, ______
Reference is made to the Amended and Restated Credit Agreement dated as
of August 23, 2002 (together with all amendments and modifications thereto,
the "Credit Agreement") among ▇▇▇▇, Inc., a North Carolina corporation (the
"Borrower"), the Banks (as defined in the Credit Agreement) and Wachovia
Bank, National Association, as Agent (the "Agent"). Terms defined in the
Credit Agreement are used herein with the same meaning.
___________________________ (the "Assignor") and
___________________________ (the "Assignee") agree as follows:
2. The Assignor hereby sells and assigns to the Assignee, without recourse
to the Assignor, and the Assignee hereby purchases and assumes from the
Assignor, a [ ]% interest in and to all of the Assignor's rights and
obligations under the Credit Agreement as of the Effective Date (as defined
below) (including, without limitation, a [ ] % interest (which on the
Effective Date hereof is $__________) in the Assignor's Commitment and a
[ ] interest (which on the Effective Date hereof is $[____________] ))
in the Syndicated Loans [and Money Market Loans] owing to the Assignor and a
[ ] % interest in the Note[s] held by the Assignor (which on the Effective
Date hereof is $__________).
3. The Assignor (i) makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations
made in or in connection with the Credit Agreement or the execution,
legality, validity, enforceability, genuineness, sufficiency or value of the
Credit Agreement or any other instrument or document furnished pursuant
thereto, other than that it is the legal and beneficial owner of the interest
being assigned by it hereunder, that such interest is free and clear of any
adverse claim and that as of the date hereof its Commitment (without giving
effect to assignments thereof which have not yet become effective) is
$__________ and the aggregate outstanding principal amount of Syndicated
Loans [and Money Market Loans] owing to it (without giving effect to
assignments thereof which have not yet become effective) is $
; (ii) makes no representation or warranty and assumes no responsibility with
respect to the financial condition of the Borrower or the performance or
observance by the Borrower of any of its obligations under the Credit
Agreement or any other instrument or document furnished pursuant thereto; and
(iii) attaches the Note[s] referred to in paragraph 1 above and requests
that the Agent exchange such Note[s] for [(x)] a new Syndicated Loan Note
dated ______________,____ in the principal amount of $__________ and a
new Money Market Loan Note in the principal amount of $___________, each
payable to the order of the Assignee [and (y) a new Syndicated Loan Note
dated ________________,____ in the principal amount of $__________ and a new
Money Market Loan Note in the principal amount of $___________, each payable
to the order of the Assignor].
4. The Assignee (i) confirms that it has received a copy of the Credit
Agreement, together with copies of the financial statements referred to in
Section 4.04(a) thereof (or any more recent financial statements of the
Borrower delivered pursuant to Section 5.01(a) or (b) thereof) and such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into this Assignment and Acceptance; (ii)
agrees that it will, independently and without reliance upon the Agent, the
Assignor or any other Bank and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit decisions
in taking or not taking action under the Credit Agreement; (iii) confirms
that it is a bank or financial institution; (iv) appoints and authorizes the
Agent to take such action as agent on its behalf and to exercise such powers
under the Credit Agreement as are delegated to the Agent by the terms
thereof, together with such powers as are reasonably incidental thereto; (v)
agrees that it will perform in accordance with their terms all of the
obligations which by the terms of the Credit Agreement are required to be
performed by it as a Bank; (vi) specifies as its Lending Office (and address
for notices) the office set forth beneath its name on the signature pages
hereof, (vii) represents and warrants that the execution, delivery and
performance of this Assignment and Acceptance are within its corporate powers
and have been duly authorized by all necessary corporate action (viii) makes
the representation and warranty contained in Section 9.18 of the Credit
Agreement [, and (ix) attaches the forms prescribed by the Internal Revenue
Service of the United States certifying as to the Assignee's status for
purposes of determining exemption from United States withholding taxes with
respect to all payments to be made to the Assignee under the Credit Agreement
and the Notes or such other documents as are necessary to indicate that all
such payments are subject to such taxes at a rate reduced by an applicable
tax treaty].
5. The Effective Date for this Assignment and Acceptance shall be
_______________, ______ (the "Effective Date"). Following the execution of
this Assignment and Acceptance, it will be delivered to the Agent for
execution and acceptance by the Agent and to the Borrower for execution by
the Borrower.
6. Upon such execution and acceptance by the Agent [and execution by the
Borrower] [If required by the Credit Agreement], from and after the Effective
Date, (i) the Assignee shall be a party to the Credit Agreement and, to the
extent rights and obligations have been transferred to it by this Assignment
and Acceptance, have the rights and obligations of a Bank thereunder and (ii)
the Assignor shall, to the extent its rights and obligations have been
transferred to the Assignee by this Assignment and Acceptance, relinquish its
rights (other than under Sections 8.03, 9.03 and 9.04 of the Credit
Agreement) and be released from its obligations under the Credit Agreement.
7. Upon such execution and acceptance by the Agent [and execution by the
Borrower] [If required by the Credit Agreement], from and after the Effective
Date, the Agent shall make all payments in respect of the interest assigned
hereby to the Assignee. The Assignor and Assignee shall make all appropriate
adjustments in payments for periods prior to such acceptance by the Agent
directly between themselves.
8.
9. This Assignment and Acceptance shall be governed by, and construed in
accordance with, the laws of the State of Georgia.
[NAME OF ASSIGNOR]
By: _______________________________
Title:______________________
[NAME OF ASSIGNEE]
By: ________________________________
Title:______________________
Lending Office:
[Address]
WACHOVIA BANK, NATIONAL ASSOCIATION,
As Agent
By: ________________________________
Title:______________________
[NAME OF BORROWER]
If required by the Credit Agreement.
By: ________________________________
Title:______________________
EXHIBIT E-1
NOTICE OF BORROWING
_______________, ______
Wachovia Bank, National Association, as Agent
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Syndications Group
Re: Amended and Restated Credit Agreement (as amended and
modified from time to time, the "Credit Agreement") dated
as of August 23, 2002 by and among ▇▇▇▇, Inc., the Banks
from time to time parties thereto and Wachovia Bank,
National Association, as Agent.
Gentlemen:
Unless otherwise defined herein, capitalized terms used herein shall
have the meanings attributable thereto in the Credit Agreement.
This Notice of Borrowing is delivered to you pursuant to Section 2.02
of the Credit Agreement.
The Borrower hereby requests a [Euro-Dollar Borrowing] [Base Rate
Borrowing] in the aggregate principal amount of $__________ to be made on
_____________, ___ , and for interest to accrue thereon at the rate
established by the Credit Agreement for [Euro-Dollar Loans] [Base Rate
Loans]. The duration of the Interest Period with respect thereto shall be [1
month] [2 months] [3 months] [30 days] [60 days] [90 days].
The Borrower has caused this Notice of Borrowing to be executed and
delivered by its duly authorized officer this day of , .
▇▇▇▇, INC.
By: ________________________________
Title:______________________
EXHIBIT E-2
NOTICE OF CONTINUATION OR CONVERSION
_____________________, 2002
Wachovia Bank, National Association, as Agent
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Syndications Group
Re: Amended and Restated Credit Agreement (as amended and modified
from time to time, the "Credit Agreement") dated as of August 23,
2002 by and among ▇▇▇▇, Inc., the Banks from time to time parties
thereto, and Wachovia Bank, National Association, as Agent.
Gentlemen:
Unless otherwise defined herein, capitalized terms used herein shall have the
meanings attributable thereto in the Credit Agreement.
This Notice of Continuation or Conversion is delivered to you pursuant to
Section 2.04 of the Credit Agreement.
With respect to the Euro-Dollar Loans in the aggregate amount of $___________
which has an Interest Period ending on _____________, the Borrower hereby
requests that such loan be [converted to a] [Base Rate Loan] [Euro-Dollar
Loan] [continued as a] [Euro-Dollar Loan] in the aggregate principal amount
of $__________ to be made on such date, and for interest to accrue thereon at
the rate established by the Credit Agreement for [Base Rate Loans]
[Euro-Dollar Loans]. [The duration of the Interest Period with respect
thereto shall be [1 month] [2 months] [3 months] [30 days][60 days] [90
days]].
The Borrower has caused this Notice of Continuation or Conversion to be
executed and delivered by its duly authorized officer this ______ day of
____________, 2002.
[Insert Name of Borrower]
By: __________________________________
Title: ______________________
EXHIBIT F
COMPLIANCE CERTIFICATE
Reference is made to the Amended and Restated Credit Agreement dated as of
August 23, 2002 (as modified and supplemented and in effect from time to time,
the "Credit Agreement") among ▇▇▇▇, Inc., as Borrower, the Banks from time to
time parties thereto, Wachovia Bank, National Association, as Agent. Capitalized
terms used herein shall have the meanings ascribed thereto in the Credit
Agreement.
Pursuant to Section 5.01(c) of the Credit Agreement,________________, the
duly authorized ______________________________ of ▇▇▇▇, Inc., hereby certifies
to the Agent and the Banks that the information contained in the Compliance
Check List attached hereto is true, accurate and complete as of _______________,
______, and that no Default is in existence on and as of the date hereof.
▇▇▇▇, INC.
By: ________________________________
Title:______________________
EXHIBIT F cont'd
CULP, INC.
COMPLIANCE CHECK LIST
_________________________
_______________, ______,
1. Consolidations, Mergers and Sales of Assets. (Section 5.05.)
The Borrower will not, nor will it permit any Subsidiary to,
consolidate or merge with or into, or sell, lease or otherwise transfer
all or any substantial part of its assets to, any other Person, or
discontinue or eliminate any business line or segment, provided that:
(a) the Borrower may merge with another Person if (i) such Person was
organized under the laws of the United States of America or one of its
states (ii) the Borrower is the corporation surviving such merger and
(iii) immediately after giving effect to such merger, no Default shall
have occurred and be continuing; (b) Subsidiaries of the Borrower may
merge with one another; and (c) the foregoing limitation on the sale,
lease or other transfer of assets and on the discontinuation or
elimination of a business line or segment shall not prohibit (i) the
consummation of the Chattanooga Sale/Leaseback Transaction and the
Chattanooga Restructuring, or (ii) in addition to the Chattanooga
Sale/Leaseback Transaction and the Chattanooga Restructuring, during
any Fiscal Quarter, a transfer of assets or the discontinuance or
elimination of a business line or segment (in a single transaction or
in a series of related transactions) unless the aggregate assets to be
so transferred or utilized in a business line or segment to be so
discontinued, when combined with all other assets transferred, and all
other assets utilized in all other business lines or segments
discontinued (other than the Chattanooga Sale/Leaseback Transaction and
the Chattanooga Restructuring), during such Fiscal Quarter and the
immediately preceding 3 Fiscal Quarters, contributed more than 10% of
EBITDA during the 4 Fiscal Quarters immediately preceding such Fiscal
Quarter.
(a) Value of assets transferred or business
lines or segments discontinued $ ___________
(b) EBITDA - Schedule 1 $ ___________
(c) 10% of (b) $ ___________
Limitation (a) not to exceed (c)
2. Loans and Advances (Section 5.15)
Neither the Borrower nor any of its Subsidiaries shall make loans or
advances to any Person except as permitted by Section 5.16 and except:
(i) loans and advances made prior to the Closing Date and listed on
Schedule 5.15, (ii) loans or advances to employees not exceeding
$5,000,000 in the aggregate principal amount outstanding at any time,
in each case made in the ordinary course of business and consistent
with practices existing on the Closing Date; (iii) deposits required by
government agencies or public utilities; (iv) loans and advances made
prior to the Closing Date to Rayonese Textile Inc.; and (v) other loans
and advances in an amount which, together with Investments permitted by
clause (viii) of Section 5.16, does not exceed 10% of Stockholders'
Equity; provided that after giving effect to the making of any loans,
advances or deposits permitted by this Section, and no Default shall be
in existence or be created thereby.
(a) To Employees $_________
Limitation $5,000,000
(b) Other Loans and advances-- See Paragraph 3(h) below
3. Investments (Section 5.16)
Neither the Borrower nor any of its Subsidiaries shall make Investments
in any Person except as permitted by Section 5.15 and Investments in
existence on the Closing Date and listed on Schedule 5.16 and except
Investments in (i) direct obligations of the United States Government
maturing within one year, (ii) certificates of deposit issued by a
commercial bank whose credit is satisfactory to the Agent, (iii)
commercial paper rated A1 or the equivalent thereof by S&P or P1 or the
equivalent thereof by ▇▇▇▇▇'▇ and in either case maturing within 6
months after the date of acquisition, (iv) tender bonds the payment of
the principal of and interest on which is fully supported by a letter
of credit issued by a United States bank whose long-term certificates
of deposit are rated at least AA or the equivalent thereof by S&P and
Aa or the equivalent thereof by ▇▇▇▇▇'▇, (v) Investments pursuant to
its deferred compensation plan, funded with life insurance or other
investment products through a Rabbi Trust; (vi) investments in Joint
Ventures in an aggregate amount not exceeding $25,000,000; (vii)
Investments made prior to the Closing Date in 3096726 Canada Inc.
and/or in Rayonese Textile Inc.; and/or (viii) other Investments in an
amount which, together with loans and advances permitted by clause (v)
of Section 5.15, does not exceed 10% of Stockholders' Equity; provided,
however, immediately after giving effect to the making of any
Investment, no Default shall have occurred and be continuing.
(a) Investments in Joint Ventures $ _________
Limitation $25,000,000
(b) Loans and advances not permitted by
clauses (i) through (iv), inclusive,
of Section 5.15 $ _________
(c) Investments not permitted by
clauses (i) through (vii), inclusive,
of Section 5.16 $ _________
(d) Sum of (b) and (c) $ _________
(e) Stockholders' Equity $ _________
(f) 10% of (e) $ _________
Limitation: (d) may not exceed (e)
4. Priority Debt (Section 5.17)
None of the Borrowers' nor any Consolidated Subsidiary's property is
subject to any Lien securing Debt, except for:
Description of Lien and Property Amount of Debt
subject to same Secured
a. ___________________________ $ _________
b. ___________________________ $ _________
c. ___________________________ $ _________
d. ___________________________ $ _________
e. ___________________________ $ _________
f. ___________________________ $ _________
Total $ _________
(a) Liens not permitted by Sections 5.17(a)
through (h), inclusive and Sections
5.17(i) and (k) inclusive $ _________
(b) Debt of Subsidiaries not permitted by
Section 5.17(j) $ _________
(c) Sum of (a) and (b) $ _________
(d) Consolidated Net Worth $ _________]
(e) Debt secured by Liens not permitted by Sections 5.17(a)
through (h), inclusive and Sections
5.17(i) and (k) inclusive $ _________
(f) Sum of (c) and (e) $ _________
(g) 15% of (f) $ _________
Limitations: (c) may not exceed (g)
(f) may not exceed (g)
5. Interest and Leases Coverage (Section 5.19)
At the end of each Fiscal Quarter, the Interest and Leases Coverage
Ratio shall not have been less than: (i) for the period from and
including the first Fiscal Quarter of Fiscal Year 2003 through and
including the second Fiscal Quarter of Fiscal Year 2003, 2.25 to 1.0;
(ii) for the period after the second Fiscal Quarter of Fiscal Year 2003
through and including the fourth Fiscal Quarter of Fiscal Year 2003,
2.50 to 1.0; and (iii) for Fiscal Year 2004, 2.75 to 1.0.
(a) EBILTDA - Schedule 1
$______________
Consolidated Net Interest Expense
- Schedule 1 $______________
Consolidated Lease Expense
- Schedule 1 $______________
(d) Sum of (b) and (c) $______________
(e) Actual ratio of (a) to (d) _____ to 1.0
Minimum Ratio [2.25 to 1.0]
[2.50 to 1.0]
[2.75 to 1.0]
6. Ratio of Funded Debt to Total Tangible Capitalization (Section 5.20)
For Fiscal Year 2003, the ratio of Funded Debt to Total Tangible
Capitalization will not exceed 0.60 to 1.00. For Fiscal Year 2004, the
ratio of Funded Debt to Total Tangible Capitalization will not exceed
0.55 to 1.00.
(a) Funded Debt $ _________
(b) Stockholders' Equity $ _________
(c) Total Tangible Capitalization (sum of (a) and (b) $ _________
(d) Actual ratio of (a) to (c) _____ to 1.0
Maximum ratio [0.60 to 1.0]
[0.55 to 1.0]
7. Debt/EBITDA Ratio (Section 5.21)
At the end of each Fiscal Quarter, the Debt/EBITDA Ratio shall be less
than (i) for the period from and including the first Fiscal Quarter of
Fiscal Year 2003 through the second Fiscal Quarter of Fiscal Year 2003,
3.25 to 1.0; (ii) for the period after the second Fiscal Quarter of
Fiscal Year 2003 through the third Fiscal Quarter of Fiscal Year 2003,
3.00 to 1.0; (iii) for the period after the third Fiscal Quarter of
Fiscal Year 2003 through and including the fourth Fiscal Quarter of
Fiscal Year 2003, 2.75 to 1.0; and (iv) for Fiscal Year 2004, 2.50 to
1.0.
(a) Funded Debt $ _____________
(b) EBITDA
- Schedule 1 $ _____________
(c) Actual ratio of (a) to (b) _____ to 1.0
Maximum ratio [3.25 to 1.0]
[3.00 to 1.0]
[2.75 to 1.0]
[2.50 to 1.0]
Schedule 1
EBIT/EBITDA
I. EBIT:
(a) Consolidated Net Income for:
_____ quarter _____ $ _________
_____ quarter _____ $ _________
_____ quarter _____ $ _________
_____ quarter _____ $ _________
Total $ _________
(b) Consolidated Net Interest Expense for:
_____ quarter _____ $ _________
_____ quarter _____ $ _________
_____ quarter _____ $ _________
_____ quarter _____ $ _________
Total $ _________
(c) Income taxes for:
_____ quarter _____ $ _________
_____ quarter _____ $ _________
_____ quarter _____ $ _________
_____ quarter _____ $ _________
Total $ _________
TOTAL EBIT (sum of (a) through (c)) $ _________
II. EBITDA
(a) EBIT (from Part I) $ _________
(b) Depreciation expense for:
_____ quarter _____ $ _________
_____ quarter _____ $ _________
_____ quarter _____ $ _________
_____ quarter _____ $ _________
Total $ _________
(c) Amortization expense for:
_____ quarter _____ $ _________
_____ quarter _____ $ _________
_____ quarter _____ $ _________
_____ quarter _____ $ _________
Total $ _________
(d) Other Non-cash charges for:
_____ quarter _____ $ _________
_____ quarter _____ $ _________
_____ quarter _____ $ _________
_____ quarter _____ $ _________
Total $ _________
TOTAL EBITDA (sum of (a) through (d)) $ _________
EXHIBIT G
▇▇▇▇, INC.
CLOSING CERTIFICATE
Reference is made to the Amended and Restated Credit Agreement (the
"Credit Agreement") dated as of August 23, 2002, among ▇▇▇▇, Inc., the Banks
listed therein and Wachovia Bank, National Association, as Agent.
Capitalized terms used herein have the meanings ascribed thereto in the
Credit Agreement.
Pursuant to Section 3.01(e) of the Credit Agreement, ___________________,
the duly authorized _____________________ of ▇▇▇▇, Inc., hereby certifies to the
Agent and the Banks that (i) no Default has occurred and is continuing as of the
date hereof, and (ii) the representations and warranties contained in Article IV
of the Credit Agreement are true on and as of the date hereof.
Certified as of August 23, 2002.
By: ________________________________
Printed Name:_______________
Title:______________________
EXHIBIT H
▇▇▇▇, INC.
SECRETARY'S CERTIFICATE
The undersigned, ____________________________,
____________________________, Secretary of ▇▇▇▇, Inc., a North Carolina
corporation (the "Borrower"), hereby certifies that [s]he has been duly
elected, qualified and is acting in such capacity and that, as such, [s]he is
familiar with the facts herein certified and is duly authorized to certify
the same, and hereby further certifies, in connection with the Amended and
Restated Credit Agreement dated as of August 23, 2002 among the Borrower and
Wachovia Bank, National Association as Agent, and the Banks listed on the
signature pages thereof, that:
1. Attached hereto as Exhibit A is a complete and correct copy of
the Certificate of Incorporation of the Borrower as in full force and effect
on the date hereof as certified by the Secretary of State of the State of
North Carolina, the Borrower's state of incorporation.
2. Attached hereto as Exhibit B is a complete and correct copy of
the Bylaws of the Borrower as in full force and effect on the date hereof.
3. Attached hereto as Exhibit C is a complete and correct copy of
the resolutions duly adopted by the Board of Directors of the Borrower on
_____________ , 2002 approving, and authorizing the execution and delivery
of, the Credit Agreement, the Notes and the other Loan Documents (as such
terms are defined in the Credit Agreement) to which the Borrower is a party.
Such resolutions have not been repealed or amended and are in full force and
effect, and no other resolutions or consents have been adopted by the Board
of Directors of the Borrower in connection therewith.
4. _________________________ , who is _______________________ of the
Borrower signed the Credit Agreement, the Notes and the other Loan Documents
to which the Borrower is a party, was duly elected, qualified and acting as
such at the time [s]he signed the Credit Agreement, the Notes and other Loan
Documents to which the Borrower is a party, and [his/her] signature appearing
on the Credit Agreement, the Notes and the other Loan Documents to which the
Borrower is a party is [his/her] genuine signature.
IN WITNESS WHEREOF, the undersigned has hereunto set [his/her] hand as
of August 23, 2002.
____________________________________
EXHIBIT I
MONEY MARKET QUOTE REQUEST
[Date]
Wachovia Bank, National Association
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Re: Money Market Quote Request
This Money Market Quote Request is given in accordance with Section
2.03 of the Amended and Restated Credit Agreement (as amended or modified
from time to time, the "Credit Agreement") dated as of August 23, 2002, among
▇▇▇▇, Inc., the Banks from time to time parties thereto, and Wachovia Bank,
National Association, as Agent. Terms defined in the Credit Agreement are
used herein as defined therein.
The Borrower hereby requests that the Agent obtain quotes for a Money
Market Borrowing based upon the following:
1. The proposed date of the Money Market Borrowing shall be
___________, 2002 (the "Money Market Borrowing Date").(1)
2. The aggregate amount of the Money Market Borrowing shall be
$_________.(2)
3. The Stated Maturity Date(s) applicable to the Money Market
Borrowing shall be _____ days.(3)
Very truly yours,
▇▇▇▇, INC.
By:_______________________________
Title:______________________________
EXHIBIT I
MONEY MARKET QUOTE
Wachovia Bank, National Association
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Re: Money Market Quote to ▇▇▇▇, Inc.
This Money Market Quote is given in accordance with Section 2.03(c)(ii)
of the Amended and Restated Credit Agreement (as amended or modified from
time to time, the "Credit Agreement") dated as of August 23, 2002, among
▇▇▇▇, Inc. (the "Borrower"), the Banks from time to time parties thereto, and
Wachovia Bank, National Association, as Agent. Terms defined in the Credit
Agreement are used herein as defined therein.
In response to the Borrower's Money Market Quote Request dated
___________, 2002, we hereby make the following Money Market Quote on the
following terms:
1. Quoting Bank:
2. Person to contact at Quoting Bank:
3. Date of Money Market Borrowing:(4)
4. We hereby offer to make Money Market Loan(s) in the following
maximum principal amounts for the following Interest Periods and at the
following rates:
--------------------------------------------------------------------------------
Maximum Principal Amount(5) Stated Maturity Date(6) Rate Per Annum(7)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
We understand and agree that the offer(s) set forth above, subject to
the satisfaction of the applicable conditions set forth in the Credit
Agreement, irrevocably obligate(s) us to make the Money Market Loan(s) for
which any offer(s) [is] [are] accepted, in whole or in part (subject to the
last sentence of Section 2.03(c)(i) of the Credit Agreement).
Very truly yours,
[Name of Bank]
By:____________________________________
Authorized Officer
EXHIBIT K
AMENDED AND RESTATED SECURITY AGREEMENT
THIS AMENDED AND RESTATED SECURITY AGREEMENT (this "Agreement") dated
as of August 23, 2002, executed and delivered by ▇▇▇▇, INC., a corporation
organized and existing under the laws of the State of North Carolina, with
its chief executive office and principal place of business located at ▇▇▇ ▇.
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (the "Borrower"), in favor of
WACHOVIA BANK, NATIONAL ASSOCIATION, as Agent with its office located at ▇▇▇
▇. ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (the "Agent") for the Lenders
(defined below). This Agreement amends and restates in its entirety that
certain Security Agreement dated March 28, 2001, from the Borrower in favor
of the Agent (as amended, the "Original Security Agreement").
WHEREAS, the Borrower, the Agent, WACHOVIA BANK, NATIONAL ASSOCIATION
("Wachovia"), and certain banks from time to time (the "Lenders") are parties
to that certain Amended and Restated Credit Agreement dated as of even date
herewith (as so amended and as further amended or otherwise modified from
time to time, the "Credit Agreement");
WHEREAS, the Borrower and Wachovia are parties to the following
separate Reimbursement and Security Agreements (as amended by that certain
First Amendment thereto dated as of November 14, 2000, that certain Second
Amendment thereto dated as of January 26, 2001, and as amended or otherwise
modified from time to time, collectively, the "Reimbursement Agreements"),
each dated as of April 1, 1997, with respect to (i) $3,377,000 original
principal amount Chesterfield County South Carolina Industrial Revenue Bonds
(Series 1988); (ii) $7,900,000 original principal amount Alamance County
Industrial Facilities and Pollution Control Financing Authority Industrial
Revenue Refunding Bonds (Series A and B); and (iii) $6,000,000 original
principal amount Chesterfield County South Carolina Industrial Revenue Bonds
(Series 1996);
WHEREAS, the Borrower has agreed to enter into this Amended and
Restated Security Agreement in order to amend certain provisions of the
Original Security Agreement and to ratify the security interests to the Agent
for the benefit of Wachovia (and the Lenders as risk participants) to secure
the Borrower's obligations under the Reimbursement Agreements;
NOW, THEREFORE, in consideration of the above premises and for other
good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged by the Borrower, the Borrower and the Agent hereby
covenant and agree that the Original Security Agreement is amended and
restated in its entirety as follows:
Section 1. Grant of Security. To secure the prompt and complete
payment, observance and performance when due (whether at stated maturity, by
acceleration or otherwise) of all obligations of the Borrower to Wachovia
(and the Lenders as risk participants) under the Reimbursement Agreements
(all such obligations of the Borrower of payment, observance and performance
are hereinafter referred to as the "Obligations"), the Borrower hereby
collaterally assigns and pledges to the Agent for the benefit of Wachovia
(and the Lenders as risk participants), and grants to the Agent for the
benefit of Wachovia (and the Lenders as risk participants) a security
interest and lien in and upon, the Collateral.
Section 2. Representations and Warranties. Borrower represents and
warrants to the Agent and the Lenders as follows:
(a) Chief Executive Office. The Borrower's chief executive office
and principal place of business for the 5 years prior to the date of this
Agreement is located at the address listed after its name in the preamble to
this Agreement.
(b) Organization; Power; Qualification. The Borrower is a
corporation, duly organized, validly existing and in good standing under the
laws of North Carolina, has the power and authority to own its properties and
to carry on its business as now being and hereafter proposed to be conducted
and is duly qualified and authorized to do business as a foreign corporation
in each jurisdiction in which the character of its properties or the nature
of its business requires such qualification or authorization other than in
such jurisdictions where the failure to be so qualified would have, in each
instance, a Material Adverse Effect (as defined in the Credit Agreement).
(c) Authorization. The Borrower has the right and power, and has
taken all necessary action to authorize it to execute, deliver and perform
this Agreement in accordance with its terms. This Agreement, the Financing
Statements and the instruments, agreements and other documents to which the
Borrower is a party and which evidence or relate in any way to the
Obligations have been duly executed and delivered by the authorized officers
of the Borrower and each is a legal, valid and binding obligation of the
Borrower enforceable against the Borrower in accordance with its terms,
except as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, or similar laws affecting the enforcement of
creditors' rights generally and by principles of equity.
(d) Compliance of Agreement with Laws, etc. The execution, delivery
and performance of this Agreement by the Borrower in accordance with its
terms, including the granting of the Security Interest, do not and will not,
by the passage of time, the giving of notice or otherwise:
(i) Require any Governmental Approval or violate any Applicable Law
relating to the Borrower;
(ii) Conflict with, result in a breach of or constitute a default under, the
articles or certificate of incorporation or bylaws of the Borrower, or any
indenture, instrument or other material agreement to which the Borrower is a
party or by which it or any of its properties may be bound; or
(iii) Result in, or require the creation or imposition of, any Lien upon or
with respect to any property in which the Borrower now or may hereafter have
rights, except the Liens in favor of the Lenders and the Agents' for the
benefit of the Lenders granted hereby.
(e) Liens. None of the Collateral or other properties of the
Borrower is, as of the date hereof, subject to any Lien, except "Liens"
permitted under Section 5.17 of the Credit Agreement, provided, that no such
Liens shall consist of consensual security interests against any of the
Collateral (the "Permitted Liens"). No financing statement under the Uniform
Commercial Code of any jurisdiction which names the Borrower as debtor or
covers any of the Collateral or any other property of the Borrower , or any
other notice filed in the public records indicating the existence of a Lien
thereon, has been filed and is still effective in any state or other
jurisdiction, and the Borrower has not signed any such financing statement or
notice or any security agreement authorizing any Person to file any such
financing statement or notice, except with respect to Permitted Liens.
(f) Security Interest. It is the intent of the Borrower that this
Agreement create a valid and perfected first-priority security interest in
the Collateral, securing the payment of the Obligations, subject to any prior
inchoate interest granted by law for taxes.
(g) Title to Properties. The Borrower has good, marketable and legal
title to its properties and assets.
Section 3. Continued Priority of Security Interest.
(a) The Security Interest shall at all times be valid, perfected and
of first priority and enforceable against the Borrower and all other Persons,
in accordance with the terms of this Agreement, as security for the
Obligations.
(b) The Borrower shall, at its sole cost and expense, take all action
that may be reasonably necessary or desirable, or that the Agent may
reasonably request, so as at all times to maintain the validity, perfection,
enforceability and priority of the Security Interest in the Collateral in
conformity with the requirements of Section 3(a) hereof, or to enable the
Agent to exercise or enforce its rights on behalf of the Lenders hereunder
including, without limitation:
(i) Paying all taxes, assessments and other claims lawfully levied or
assessed on any of the Collateral, except to the extent that such taxes,
assessments and other claims constitute Permitted Liens or as otherwise
permitted under Section 5.17 of the Credit Agreement;
(ii) Obtain (using its reasonable best efforts) landlords' or mortgagees'
releases, subordinations or waivers with respect to any or all of the
locations where the instruments, books and records relating to the Collateral
are located, in form and substance satisfactory to the Agent; and
(v) Executing and delivering financing statements, pledges, designations,
hypothecations, notices and assignments, in each case in form and substance
satisfactory to the Agent, relating to the creation, validity, perfection,
priority or continuation of the Security Interest under the Uniform
Commercial Code or other Applicable Law.
(c) To the extent permitted by applicable law, the Agent is hereby
authorized to execute and file in all necessary and appropriate jurisdictions
(as determined by the Agent) one or more financing or continuation statements
(or any other document or instrument referred to in Section 3(b)(v) above) in
the name of the Borrower. The Borrower authorizes the Agent to file any such
financing statement, document or instrument without the signature of the
Borrower to the extent permitted by Applicable Law. Further, to the extent
permitted by Applicable Law, a carbon, photographic, xerographic or other
reproduction of this Agreement or of any Financing Statement is sufficient as
a financing statement.
(d) The Borrower shall ▇▇▇▇ its books and records as may be necessary
or appropriate to evidence, protect and perfect the Security Interest and
shall cause its financial statements to reflect the Security Interest.
Section 4. Covenants Regarding Contracts.
(a) Anything herein to the contrary notwithstanding, (i) the Borrower
shall remain liable under all Assigned Contracts to the extent set forth
therein to perform its duties and obligations thereunder to the same extent
as if this Agreement had not been executed, (ii) the exercise by the Agent of
any of its rights on behalf of the Lenders hereunder shall not release the
Borrower from any of its duties or obligations under any of the Assigned
Contracts (except to the extent that such exercise prevents the Borrower from
satisfying such duties and obligations), and (iii) the Agent shall not have
any duties, obligations or liability under any of the Assigned Contracts or
duties by reason of this Agreement, nor shall the Agent be obligated to
perform any of the duties or obligations of the Borrower thereunder, to make
any payment, to make any inquiry as to the nature or sufficiency of any
payment received by the Borrower or the sufficiency of any performance by any
party under any such contract or agreement, or to take any action to collect
or enforce any claim for payment assigned hereunder.
(b) The Borrower shall at its expense:
(i) Perform and observe all the terms and provisions of the Assigned
Contracts to be performed or observed by it, maintain the Assigned Contracts
in full force and effect to the extent of the Borrower 's normal business
practices, and enforce the Assigned Contracts in accordance with their terms
to the extent of the Borrower 's normal business practices; and
(ii) Furnish to the Agent such information and reports regarding the
Assigned Contracts as the Agent may reasonably request.
(c) Unless expressly set forth herein, all contracts and contract
rights of the Borrower shall constitute Assigned Contracts and shall
constitute part of the Collateral to the extent expressly permitted under
Sections 9-404, 9-405, and 9-406 of the applicable Uniform Commercial Code.
Section 5. Covenants Regarding Collateral Generally and Other Property
of the Borrower.
(a) Verification. The Agent shall have the right at any time and
from time to time, in the name of such Agent or in the name of the Borrower,
to verify the validity, amount or any other matter relating to any
Receivables by mail, telephone or otherwise, and Agent will give the Borrower
reasonable notice thereof.
(b) Delivery of Instruments. In the event any of the Collateral
becomes evidenced by a promissory note, trade acceptance or any other
instrument, the Borrower will immediately thereafter deliver such instrument
to the Agent, appropriately endorsed to the Agent on behalf of the Lenders.
(c) Defense of Title. The Borrower shall at all times be the sole
owner of each and every item of Collateral and shall defend, at its sole cost
and expense, its title in and to, and the Security Interest in, the
Collateral against the claims and demands of all Persons.
(d) Maintenance of Collateral. The Borrower shall maintain all
physical property that constitutes Collateral in good and workable condition,
with reasonable allowance for wear and tear, and shall exercise proper
custody over all such property consistent with past business practice.
(e) Location of Office. The Borrower's chief executive office,
principal place of business, and its books and records relating to the
Collateral will continue to be kept at the address set forth in Section 2(a)
hereof, and the Borrower will not change the location of such office and
place of business or such books and records without giving the Agent thirty
days' prior written notice thereof.
(f) Change of Name, Structure, Etc. Without giving the Agent thirty
days' prior written notice, the Borrower will not (i) change its name,
identity, jurisdiction of incorporation or corporate structure, or
(ii) conduct business under any trade name or other fictitious name other
than those set forth on the signature page to this Agreement.
(g) Other Information. The Borrower shall furnish to the Agent such
other information with respect to the Collateral, as the Agent may reasonably
request from time to time.
(h) Collateral Account; Lock Boxes. During the existence of an Event
of Default, the Agent may establish or cause to be established one or more
collateral accounts in the name of and under the sole control of the Agent
and lock boxes in the name of and under the sole control of the Agent or
other similar arrangements for the deposit of proceeds of Receivables, and,
in such case, the Borrower shall cause to be forwarded to the Agent at the
Agent's address listed in the preamble to this Agreement, on a daily basis,
collection reports in form and substance satisfactory to the Agent. The
Agent is hereby authorized to endorse drafts and other items of payment with
respect to the proceeds of such Receivables.
(l) Sale of Collateral. Except as permitted under the terms of the
Credit Agreement and the Reimbursement Agreements, the Borrower shall not
sell, transfer, convey or dispose of any Collateral. The inclusion of
"proceeds" of the Collateral under the Security Interest shall not be deemed
a consent by the Agent to any other sale or other disposition of any part or
all of the Collateral.
(m) _Liens against the Collateral and other Personal Property. The
Borrower shall not permit any Liens to exist against (i) the Collateral,
except for Permitted Liens, and (ii) the Borrower's other personal property
(including, without limitation, the Borrower's equipment and inventory),
except for consensual security interests in equipment permitted by Section
5.17(b), (c), (d) and (e) of the Credit Agreement.
Section 6. The Agent Appointed Attorney-in-Fact. The Borrower hereby
irrevocably appoints the Agent the Borrower 's attorney-in-fact, with full
authority in the place and stead of the Borrower and in the name of the
Borrower or otherwise, from time to time upon the occurrence and during the
continuance of a Default or Event of Default in the Agent's discretion to
take any action and to execute any instrument or document which the Agent may
deem necessary or advisable to accomplish the purposes of this Agreement and
to exercise any rights and remedies the Agent may have under this Agreement
or Applicable Law, including, without limitation: (i) to ask, demand,
collect, ▇▇▇ for, recover, compromise, receive and give acquittance and
receipts for moneys due and to become due under or in respect of any of the
Collateral including any Receivable; (ii) to receive, endorse, and collect
any drafts or other instruments, documents and chattel paper, in connection
with clause (i) above; (iii) to sell or assign any Receivable upon such
terms, for such amount and at such time or times as the Agent deems
advisable, to settle, adjust, compromise, extend or renew any Receivable or
to discharge and release any Receivable; and (iv) to file any claims or take
any action or institute any proceedings which the Agent may deem necessary or
desirable for the collection of any of the Collateral or otherwise to enforce
the rights of the Agent on behalf of the Lenders with respect to any of the
Collateral. The power-of-attorney granted hereby shall be irrevocable and
coupled with an interest.
Section 7. The Agent May Perform. If the Borrower fails to perform
any agreement contained herein, the Agent may, without notice to the
Borrower, itself perform, or cause performance of, such agreement, and the
expenses of the Agent incurred in connection therewith shall be promptly
payable by the Borrower.
Section 8. The Agent's Duties. The powers conferred on the Agent
hereunder are solely to protect its interest in the Collateral and shall not
impose any duty upon the Agent to exercise any such powers. Except for the
safe custody of any Collateral in its possession and the accounting for
moneys actually received by it hereunder, the Agent shall have no duty as to
any Collateral. The Agent shall be deemed to have exercised reasonable care
in the custody of the Collateral in its possession if the Collateral is
accorded treatment substantially equal to that which the Agent accords its
own property; it being understood that the Agent shall be under no obligation
to take any steps necessary to preserve rights against prior parties or any
other rights pertaining to any Collateral, but may do so at its option, and
all reasonable expenses incurred in connection therewith shall be for the
sole account of the Borrower and shall be a part of the Obligations.
Section 9. Remedies. The Agent may take any or all of the following
actions upon the occurrence of an Event of Default.
(a) Patents. In the exercise of the rights of the Agent under this
Agreement, without payment or compensation of any kind, use any and all
trademarks, trade styles, trade names, patents, patent applications, licenses,
franchises and the like to the extent of the rights of the Borrower therein, and
the Borrower hereby grants a license to the Agent for this purpose.
(b) Payments Directly to Agent. The Agent may at any time and from
time to time notify, or request the Borrower to notify, in writing or
otherwise, any account debtor or other obligor with respect to any one or
more of the Receivables or Assigned Contracts to make payment to the Agent or
any agent or designee of the Agent directly, at such address as may be
specified by the Agent. If, notwithstanding the giving of any notice, any
account debtor or other such obligor shall make payment to the Borrower, the
Borrower shall hold all such payments it receives in trust for the Agent,
without commingling the same with other funds or property of or held by the
Borrower , and shall promptly deliver the same to the Agent or any such agent
or designee immediately upon receipt by the Borrower in the identical form
received, together with any necessary endorsements.
(c) Rights as a Secured Creditor. The Agent may exercise all of the
rights and remedies of a secured party under the Uniform Commercial Code and
under any other Applicable Law, including, without limitation, the right,
without notice except as specified below and with or without taking
possession thereof, to sell the Collateral or any part thereof in one or more
parcels at public or private sale at any location chosen by the Agent, for
cash, on credit or for future delivery, and at such price or prices and upon
such other terms as may be permitted by Applicable law. The Borrower agrees
that, to the extent notice of sale shall be required by law, at least ten
days' notice to the Borrower of the time and place of any public sale or the
time after which any private sale is to be made shall constitute reasonable
notification, but notice given in any other reasonable manner or at any other
reasonable time shall constitute reasonable notification. The Agent shall
not be obligated to make any sale of Collateral regardless of notice of sale
having been given. The Agent may adjourn any public or private sale from
time to time by announcement at the time and place fixed therefor, and such
sale may, without further notice, be made at the time and place to which it
was so adjourned. The Agent may bid all or any portion of the Obligations at
any such sale.
(d) Waiver of Marshaling. The Borrower hereby waives any right to
require any marshaling of assets and any similar right.
(e) Appointment of Receiver. The Agent shall be entitled to the
appointment of a receiver, without notice of any kind whatsoever, to take
possession of all or any portion of the Collateral and/or the business
operations of the Borrower and to exercise such power as the court shall
confer upon such receiver.
(f) Receivables/Assigned Contracts. The Agent shall have the
exclusive right to assert, either directly or on behalf of the Borrower, any
and all rights and claims the Borrower may have under any Receivables and/or
any of the Assigned Contracts as the Agent may deem proper and to receive and
collect any and all Receivables and Assigned Contracts and any and all rent,
fees, damages, awards and other monies arising thereunder or resulting
therefrom and to apply the same on account of any of the Obligations.
Section 10. Application of Proceeds. All proceeds from each sale of,
or other realization upon, all or any part of the Collateral following an
Event of Default shall be applied or paid over (i) to the costs and expenses
of the Agent and Wachovia (and the Lenders as risk participants), on a pro
rata basis, incurred in the collection and enforcement of the Obligations and
the Collateral, (ii) to unpaid and accrued interest on the Obligations, on a
pro rata basis, (iii) to all other outstanding and unpaid Obligations, on a
pro rata basis, and (iv) the remaining balance (if any) of such proceeds
shall be paid to the Borrower or to whomsoever may be legally entitled
thereto. The Borrower shall remain liable and shall pay, on demand, any
deficiency remaining in respect of the Obligations, together with interest
thereon at the highest rate payable on any of the Obligations plus 2% per
annum, which interest shall constitute part of the Obligations.
Section 11. Rights Cumulative. The rights and remedies of the Agent
and Wachovia (and the Lenders as risk participants) under this Agreement, the
Credit Agreement the Reimbursement Agreements, and each other document or
instrument evidencing or securing the Obligations shall be cumulative and not
exclusive of any rights or remedies which it would otherwise have, including,
but not limited to, those rights afforded by the Uniform Commercial Code and
other Applicable Laws. In exercising its rights and remedies the Agent may
be selective and no failure or delay by the Agent in exercising any right
shall operate as a waiver of it, nor shall any single or partial exercise of
any power or right preclude its other or further exercise or the exercise of
any other power or right.
Section 12. Amendments, Etc. No amendment or waiver of any provision
of this Agreement nor consent to any departure by the Borrower here from
shall in any event be effective unless the same shall be in writing and
signed by the parties hereto, and then such waiver or consent shall be
effective only in the specific instance and for the specific purpose for
which given.
Section 13. Notices. Unless otherwise provided herein, communications
provided for hereunder shall be in writing and shall be mailed, telecopied or
delivered, if to the Borrower at the Borrower's address as set forth in the
preamble to this Agreement, and if to the Agent, at its address as set forth
in the preamble to this Agreement; or, as to each party, at such other
address as shall be designated by such party in a written notice to the other
parties. All such notices and other communications to the Borrower shall be
effective as set forth in Section 9.01 of the Credit Agreement.
Section 14. Continuing Security Interest. This Agreement shall create
a continuing security interest in the Collateral and shall (i) remain in full
force and effect until the conditions set forth in Section 5.25 of the Credit
Agreement have been satisfied, (ii) be binding upon the Borrower , its
successors and assigns and (iii) inure the benefit of the Agent, and its
successors and assigns. The Borrower 's successors and assigns shall
include, without limitation, a receiver, trustee or debtor-in-possession
thereof or therefore.
Section 15. Applicable Law; Severability. THIS AGREEMENT SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NORTH
CAROLINA. Whenever possible, each provision of this Agreement shall be
interpreted in such a manner as to be effective and valid under Applicable
Law, but if any provision of this Agreement shall be prohibited by or invalid
under Applicable Law, such provisions shall be ineffective only to the extent
of such prohibition or invalidity, without invalidating the remainder of such
provisions or the remaining provisions of this Agreement.
Section 16. Litigation/Waivers. (a) THE AGENT AND THE BORROWER BOTH
ACKNOWLEDGE AND AGREE THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS
AGREEMENT OR THE RELATIONSHIP OF THE BORROWER AND THE AGENT ESTABLISHED
HEREBY AND THE DOCUMENTS AND INSTRUMENTS EVIDENCING THE OBLIGATIONS WOULD BE
BASED UPON DIFFICULT AND COMPLEX ISSUES. ACCORDINGLY, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, EACH OF THE AGENT AND THE BORROWER HEREBY WAIVES
ITS RESPECTIVE RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING OF ANY
KIND OR NATURE IN ANY COURT OR TRIBUNAL IN WHICH AN ACTION MAY BE COMMENCED
BY OR AGAINST THE BORROWER OR THE AGENT ARISING OUT OF THIS AGREEMENT, THE
OBLIGATIONS OR ANY OTHER DOCUMENT EXECUTED AND DELIVERED IN CONNECTION
HEREWITH OR THEREWITH OR IN CONNECTION WITH THE COLLATERAL OR THE SECURITY
INTEREST THEREIN OR BY REASON OF ANY OTHER CAUSE OR DISPUTE WHATSOEVER
BETWEEN THE BORROWER AND THE AGENT OF ANY KIND OR NATURE.
(b) THE BORROWER AND THE AGENT EACH HEREBY AGREE THAT THE FEDERAL
COURT OF THE MIDDLE DISTRICT OF NORTH CAROLINA, OR AT THE OPTION OF AGENT,
ANY STATE COURT LOCATED IN GUILFORD COUNTY, NORTH CAROLINA, SHALL HAVE
JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS OR DISPUTES BETWEEN THE
BORROWER AND THE AGENT, PERTAINING DIRECTLY OR INDIRECTLY TO THIS AGREEMENT,
THE OBLIGATIONS OR TO ANY MATTER ARISING THEREFROM, THE COLLATERAL OR THE
SECURITY INTEREST THEREIN OR ANY OTHER DOCUMENT EXECUTED AND DELIVERED IN
CONNECTION HEREWITH OR THEREWITH. THE BORROWER EXPRESSLY SUBMITS AND
CONSENTS IN ADVANCE TO SUCH JURISDICTION IN ANY ACTION OR PROCEEDING
COMMENCED IN SUCH COURTS. THE CHOICE OF FORUM SET FORTH IN THIS PARAGRAPH
SHALL NOT BE DEEMED TO PRECLUDE THE BRINGING OF ANY ACTION BY THE AGENT OR
THE ENFORCEMENT BY THE AGENT OF ANY JUDGMENT OBTAINED IN SUCH FORUM IN ANY
OTHER APPROPRIATE JURISDICTION.
(c) THE FOREGOING WAIVERS HAVE BEEN MADE WITH THE ADVICE OF COUNSEL
AND WITH A FULL UNDERSTANDING OF THE LEGAL CONSEQUENCES THEREOF.
Section 17. Counterparts. This Agreement may be executed in several
counterparts, each of which shall be an original and all of which, taken
together, shall constitute but one and the same instrument.
Section 18. Definitions. (a) For the purposes of this Agreement:
"Agent" has the meaning set forth in the first paragraph hereof.
"Agreement" means this Security Agreement, as the same may be amended,
supplemented, restated or otherwise modified from time to time.
"Assigned Contract" means any contract or agreement to which the
Borrower is a party or which runs in favor of the Borrower and which
constitutes part of the Collateral.
"Borrower" has the meaning set forth in the first paragraph hereof.
"Collateral" means all of the Borrower's right, title and interest in
and to each of the following, wherever located and whether now or hereafter
existing, or now owned or hereafter acquired or arising:
(a) all Assigned Contracts and Receivables;
(b) all general intangibles of the Borrower of every kind and nature
including, but not limited to, all contract rights, choses in action and
causes of action of the Borrower against any Person or property, all tax
refunds owing to the Borrower, all insurance policies of the Borrower and all
rights of the Borrower to receive monies thereunder and all licenses,
franchises, trademarks, trade names, trade secrets, patents, copyrights and
any and all other intellectual property of the Borrower;
(c) all books, records, files, computer programs, data processing
records, computer software, documents, correspondence and other information
at any time evidencing, describing or pertaining to or in any way related to
any of the foregoing or otherwise pertaining or relating to the business or
operations of the Borrower;
(d) any and all balances, credits, deposits, accounts, items and
monies of the Borrower now or hereafter maintained or deposited with the
Agent, Wachovia, or any other Lender or any affiliate of any of the foregoing
or deposited with any financial institution selected by the Agent pursuant to
any lock box, deposit, escrow or other collection agreement or otherwise, and
all property of the Borrower of every kind and description now or hereafter
in the possession or control of the Agent, Wachovia, or any other Lender or
any affiliate thereof for any reason; and
(e) any and all products and proceeds of any of the foregoing
(including, but not limited to, any claims to any items referred to in this
definition, and any claims of the Borrower against third parties for loss of,
damage to or destruction of, any or all of the Collateral or for proceeds
payable under, or unearned premiums with respect to, policies of insurance)
in whatever form.
"Default" means (i) a "Default" under the Credit Agreement, or (ii) a
"Default" under any of the Reimbursement Agreements.
"Event of Default" means (i) an "Event of Default" under the Credit
Agreement, or (ii) an "Event of Default" under any of the Reimbursement
Agreements.
"Financing Statements" means any and all financing statements prepared
in connection with the perfection of the Security Interest, together with any
amendments thereto and any continuations thereof.
"Lien", as applied to the property of any Person, means any security
interest, lien, encumbrance, mortgage, deed to secure debt, deed of trust,
pledge, charge, conditional sale or other title retention agreement, or other
encumbrance of any kind covering any property of such Person, or upon the
income or profits therefrom or any agreement to convey any of the foregoing
or any other agreement or interest covering the property of a Person which is
intended to provide collateral security for the obligation of such Person.
"Receivables" means all accounts and any and all rights to the payment
of money or other forms of consideration of any kind (whether classified
under the Uniform Commercial Code as accounts, chattel paper, general
intangibles, or otherwise) for goods sold or leased or for services rendered
including, but not limited to, accounts receivable, proceeds of any letters
of credit naming the Borrower as beneficiary, all contract rights, notes,
drafts, instruments, documents, acceptances in favor of the Borrower, and all
other debts, obligations and liabilities in whatever form owing by any Person
to the Borrower.
"Security Interest" means the Lien of the Agent on behalf of the
Lenders upon, and the collateral assignments to the Agent of, the Collateral
effected hereby or pursuant to the terms hereof.
"Uniform Commercial Code" shall mean the Uniform Commercial Code as in
effect in the State of North Carolina, as the same may be amended from time
to time.
(b) Unless otherwise set forth herein to the contrary, all terms not
otherwise defined herein and which are defined in the Uniform Commercial Code
are used herein with the meanings ascribed to them in the Uniform Commercial
Code.
IN WITNESS WHEREOF, the Borrower has caused this Agreement to be duly
executed and delivered under seal by its duly authorized officer as of the
day first above written.
▇▇▇▇, INC.
(SEAL)
By:_________________________________
Title:
Agreed and accepted as of the
date first written above.
WACHOVIA BANK, NATIONAL ASSOCIATION, as Agent
By:___________________________
Name:___________________
Title:__________________
Schedule 1.01(E)
Charges taken in connection with the restructuring of the Borrower's
Decorative Fabrics and Yarns businesses.
Schedule 1.01(F)
Charges taken in connection with the idling of the Borrower's Wet Print
Division.
Schedule 1.01(G)
Charges taken in connection with the Chattanooga Restructuring.
Schedule 4.08
Subsidiaries
Name Jurisdiction of Incorporation
3096726 Canada Inc. Federal Laws of Canada
Rayonese Textile Inc. Federal Laws of Canada]
Schedule 5.15
Loans and Advances existing on the Closing Date
NONE
Schedule 5.16
Investments existing on the Closing Date
1. The Borrower's Investments in Subsidiaries.
Schedule 5.17
Debt of Subsidiaries existing on the Closing Date
Indebtedness of Rayonese Textile, Inc. (the outstanding principal amount of
which is approximately CN $2,894,400 as of the Closing Date) represented by
that certain Canada-Quebec Subsidiary Agreement on Industrial Development
between Rayonese Textile Inc. and Industry Canada.
1 The date must be a Euro Dollar Business Day.
2 The amount of the Money Market Borrowing is subject to Section
2.03(a) and (b).
3 The Stated Maturity Dates are subject to Section 2.03(b)(iii). The
Borrower may request that up to 2 different Stated Maturity Dates be
applicable to any Money Market Borrowing, provided that (i) each such Stated
Maturity Date shall be deemed to be a separate Money Market Quote Request and
(ii) the Borrower shall specify the amounts of such Money Market Borrowing to
be subject to each such different Stated Maturity Date.
4 As specified in the related Money Market Quote Request.
5 The principal amount bid for each Stated Maturity Date may not exceed
the principal amount requested. Money Market Quotes must be made for at
least $5,000,000 or a larger integral multiple of $1,000,000.
6 The Stated Maturity Dates are subject to Section 2.03(b)(iii).
7 Subject to Section 2.03(c)(ii)(C).